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When did the War Begin?

Published online by Cambridge University Press:  20 April 2017

Edwin Borchard
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Abstract

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Type
Editorial Comment
Information
American Journal of International Law , Volume 41 , Issue 3 , July 1947 , pp. 621 - 622
Copyright
Copyright © American Society of International Law 1947

References

1 Louise C. Bennion v. New York Life insurance Company, No. 3308, CCA, 10th, 1946; cert. denied by the Supreme Court April 28, 1947. For test of decision see p. 680, below.

2 Savage v. Sun Life Ins. Co., 57 E. Supp. 620 (W.D. La.). Pang v. Sun Life Assur. Co., Circuit Court, 1st Judicial Circuit, Territory of Hawaii, dated Aug. 2, 1944, appeal 37, Hawaii 208 (1945). Rosenau v. Idaho Mut. Benefit Assoc. (Idaho) 145 Pac. (2d) 187. West v. Palmetto State Life Ins. Co., 202 8.C 422, 25 8.E. (2d) 475, 145 A.L. B. 1461.

3 Prize Cases. “If a war is made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but he is bound to accept the challenge without waiting for any special legislative authority, and whether the hostile party be a foreign invader or states organized in rebellion, it is none the less a war, although the declaration of it be unilateral… However, long may have been its previous conception, it nevertheless springs forth from the parent brain, a Minerva in the full panoply of war. The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name, and no name given to it by him or them could change the fact.”

Dole v. Merchants Mutual Marine Insurance Co. “War is an existing fact and not a legislative decree. Congress alone may have power to declare it beforehand, and thus cause or commence it. But it may be initiated by other nations, or by traitors; and then it exists, whether there is any declaration of it or not. It may be prosecuted without any declaration; or congress may, as in the Mexican war, declare its previous existence. In either case it is the fact that makes ‘enemies’ and not any legislative Act.”