ON JUST OR SOLEMN WAR ACCORDING TO THE LAW OF NATIONS ON DECLARATIONS
OF WAR.
Solemn war, according to the Law of Nations between different
states--A people, though engaged in unjust war, to be
distinguished from pirates and robbers--Change in the condition
of belligerents--Formal war can be made by the Sovereign power
alone--Declaration of war--The Law of Nature, Law of Nations,
respecting the same--Declaration, conditional, absolute--Forms of
declaration introduced by the civil law--War declared against a
Sovereign includes his subjects, and allies--The reason why allies
are included--Declarations, why necessary to establish certain
effects--Whether actual warfare immediately follows a declaration,
considered--Whether the violation of an Ambassador's rights to be a
just ground of war.
I. In the first book of this treatise it was observed, that according
to the best writers, a war is defined to be just, not on account of the
CAUSES solely, in which it originates, nor on account of the MAGNITUDE
of its objects, but from certain, peculiar, effects of right, with
which it is attended.
But to what kind of war such an appellation most duly belongs will be
best understood by considering the definition, which the Roman Lawyers
have given of a PUBLIC or NATIONAL enemy. "Those, _says Pomponius_, are
PUBLIC and LAWFUL ENEMIES, with whose STATE our own is engaged in war:
but enemies of every other description, come under the denomination of
pirates and robbers." With that opinion Ulpian entirely accords, making
an additional observation, that "if any one be taken by robbers, as he
is not a lawful prisoner of war, he cannot claim of his own state the
right of postliminium. But if he be taken prisoner by a public enemy of
the state, being considered as a prisoner of war, he is entitled by the
right of postliminium to be restored to his former condition."
These opinions are supported by that of Paulus, who maintains, that
persons captured by pirates still continue free, that is, are not to
be considered as prisoners, for whom an exchange may be demanded. So
that by the opinion of the Roman Lawyers it is evident, that no war
is considered to be lawful, regular, and formal, except that which is
begun and carried on by the sovereign power of each country. Cicero, in
his fourth Philippic, describes "a public and authorised enemy to be
the person, who possesses the civil and military powers of the state,
who can command the treasury, and the services of the people in support
of his measures, and who, as occasions offer, has power to conclude
treaties of peace and amity."
II. A state, though it may commit some act of aggression, or injustice,
does not thereby lose its political capacity, nor can a band of pirates
or robbers ever become a state, although they may preserve among
themselves that degree of subordination, which is absolutely necessary
to the subsistence of all society. For with the latter, the commission
of crime is the SOLE bond of union, whereas the former, though not
always free from blame, but occasionally deviating from the laws of
nature, which in many cases have been in a great measure obliterated,
still regulate their conduct by the treaties, which they have made,
and certain customs that have been established, being united among
themselves for the mutual support of lawful rights, and connected with
foreign states by known rules of standing polity.
The Scholiast, upon Thucydides, remarks that the Greeks, at the time
when piracy was reckoned lawful, forebore committing massacres, or
nightly depredations, and carrying off the oxen that were necessary
for the plough. We are informed by Strabo, that other nations too, who
lived by plunder, after they had returned home from their predatory
voyages, sent messages to the owners, whom they had plundered, to know
if they would redeem the captures at a fair price.
In morals, the whole system often derives its name from some one of the
principal parts, as Cicero remarks, in the fifth book of his BOUNDS
of GOOD and EVIL, and Galen observes that a mixture is often called
by the name of its chief ingredient. So that Cicero is not altogether
correct in saying, that a state is not merely diseased, but entirely
destroyed, by the injustice of its component and leading members. For a
morbid body is still a body, and a state, though dreadfully diseased,
is still a political being, as long as its laws and tribunals and other
necessary parts of its constitution remain, to administer justice and
give redress to foreigners, no less than to private subjects in their
actions against each other.
There is a beautiful observation in Dion Chrysostom, who compares the
law of a state, particularly that branch of it relating to the law of
nations, to the body animated by the soul, upon the departure of which
the corporeal frame becomes a mass of lifeless clay: in the same manner
political society cannot subsist without the guiding and controuling
principle of law. Aristides, encouraging the Rhodians to harmony,
observes, that even under a tyrannical government many good laws may be
found.
These are points, which may be cleared up by examples. Thus Ulpian
maintains that those who are captured by pirates cannot be considered
as prisoners of war: but if captured by the Germans, for instance,
or any national enemy, they lose their liberty for a time. But the
Germans, as we are informed by Caesar, thought acts of plunder, if
committed in a foreign territory, no disgrace. Tacitus says that the
Cattians, a noble race of people in Germany, and the Garamantians were
addicted to the same habits of plunder, yet still retained their rank
among states.--Such is the difference between a national and political
body, and a band of men uniting together SOLELY FOR THE COMMISSION OF
CRIMES.
III. A change may occur not only in the situations of individuals, as
in those of Jephthah, Arsaces, and Viriatus, who, from being leaders
of voluntary bands, became lawful commanders; but the same has also
happened with respect to whole communities, which being originally
composed of nothing but freebooters have, by the gradual course and
changes of time, risen to the rank and dignity of states.
IV. What has been said with respect to the right of making formal and
lawful war, being vested in the sovereign power alone, includes those
who have any share in the sovereign power, as the different communities
forming the States General of many commonwealths. The same rule will
hold good of those, who are not SUBJECTS of a superior state, but
joined to it in confederacy by an unequal treaty: innumerable instances
of which are to be found in history. This was the case between the
Romans and their allies, the Volscians, the Latins, and the Spaniards:
and all whom we read of being engaged in wars, which were considered as
lawful and just.
V. But to make a war just, according to this meaning, it must not only
be carried on by the sovereign authority on both sides, but it must
also be duly and formally declared, and declared in such a manner, as
to be known to each of the belligerent powers. Cicero, in the first
book of his offices, points out "the equity of the rules prescribed
by the Roman Law for the declaration of war, from whence it may be
concluded that no war is regular or just, but such as is undertaken to
compel restitution, and to procure indemnity for injuries, and that too
accompanied with a formal declaration." Livy also in the same manner
deems an observance of these rules requisite to form the characteristic
of a just war. And describing an incursion of the Acarnanians into
Attica, and their ravaging the country, he says that "those acts of
irritation ended in a declaration of JUST and REGULAR war on both
sides."
VI. In order to understand all these points clearly respecting the
declaration of war, an accurate distinction must be made between the
principles, which are founded on the law of nature itself, and those,
which, though not derived immediately from that source, are still found
to be just: it will be necessary also to examine, what is required by
the law of nations towards obtaining, IN WAR, all the consequences,
privileges and effects of that law, and, at the same time, to
investigate the consequences and rights arising from the peculiar laws
and customs of particular nations.
To repel force, or to punish a delinquent, the law of nature requires
no declaration. And, as Thucydides relates, Sthenelaidas, one of the
Ephori, maintains that "where we have been injured, not by WORDS, but
by ACTIONS, the matter cannot be decided by WORDS and FORMS." And
Aelian, after Plato, observes that it is not the declaration of the
Herald, but the voice and law of nature, which proclaim war, undertaken
to repel force. Hence Dion Chrysostom, in addressing the Nicomedians,
says that many wars are begun without any declaration.
Upon the same ground Livy condemns the conduct of Menippus, a general
belonging to Antiochus for having killed some Roman citizens before
any declaration of war had been made, or even before a sword had
been drawn, or a drop of blood spilt, to shew that hostilities
were intended. By this objection he proves that either a formal
declaration, or some act indicative of hostilities was deemed requisite
to justify actual warfare.
Neither, if we follow the law of nature, is there any more occasion for
notice or declaration, where an owner intends to lay hands upon HIS
OWN PROPERTY. But whenever one thing is taken in return for another,
or the property of a debtor is seized for the recovery of a debt, and,
especially, if any one intends seizing the property of those, who are
subjects to the debtor, a formal demand must be made, as a proof that
recourse to such security is the only means left of obtaining redress
and satisfaction. Such a demand is necessary because that is not a
PRIMARY and ORIGINAL right, but a SECONDARY right, SUBSTITUTED in the
place of the primary and original, by the artificial rules of civil law.
In the same manner to justify an attack upon a sovereign power for the
aggressions and debts of its subjects, a previous remonstrance, and a
proper demand of justice must be made to that power. For it is only by
refusing to punish the guilty, or to grant indemnity to the injured,
that states or sovereigns can be implicated in the misconduct of their
subjects.[60] But even where the law of nature does not directly
prescribe that such a remonstrance or demand should be made, yet the
common principles of humanity and equity will recommend the[61] use
of any means, that may prevent recourse to the calamities of war. The
commandment given by God to the Hebrews, to send a message of peace to
any state or city, before they began an intended attack, was designed
as a special command to that people, yet some have confounded it with
the general law of nations. For it was not ANY kind of peace that was
meant by that injunction, but only such a peace as imposed terms of
SUBJECTION and TRIBUTE. We are informed by Xenophon, that when Cyrus
went into the country of the Armenians, he sent messengers to the king,
to demand the tribute and number of troops, which had been stipulated
by treaty.
But to obtain the peculiar rights and consequences resulting from the
law of nations, a declaration of war by one of the parties, at least,
if not by both, is absolutely requisite in all cases.
VII. Those declarations are either conditional or absolute. A
conditional declaration is that which is coupled with a demand of
restitution or redress. Under the name of restitution, the FECIAL LAW
of Rome, that is the LAW RESPECTING DECLARATIONS OF WAR, comprehended
not only the claims, which OWNERSHIP established, but the prosecution
of EVERY right arising from criminal or civil causes.
Hence the declarations were couched in terms, requiring restoration,
satisfaction, or surrender. Here, by the term, surrender, the party
appealed to is understood to have the option either of punishing the
offender, himself, or delivering him up to the aggrieved person. This
manner of demanding restitution is, according to the testimony of
Pliny, called CLARIGATION, that is, a LOUD and FORMAL DEMAND. Livy
gives us an example of a conditional and qualified declaration, wherein
the aggrieved power denounces "a determined resolution to prosecute
her rights with the utmost violence, if the aggressor will not make
reparation and atonement for the injury he has done." Tacitus also
relates the substance of a dispatch sent to Caecina by Germanicus,
wherein he declares, that "if the ringleaders of the mutinous and
rebellious legions are not immediately punished, he will advance with
his army, and put the whole to the sword."
An ABSOLUTE declaration of war is issued, where any power has already
begun hostilities, or committed acts which call for exemplary
punishment. Sometimes indeed a conditional, is followed by an absolute
war, though in such a case the latter is not actually necessary, but
only a confirmation of the former. This gave rise to the form, which
says, "an appeal is hereby made against such a people, as unjust and
refusing to grant redress." There is another form also purporting,
that "the principal herald of the Roman citizens has made known to the
principal herald of the ancient Latins, and to the Latin people, that
redress is demanded of them by just and lawful war, on account of all
the disputes which they have refused to settle, and the indemnities
which they have been bound to grant, and have refused; and that this
is the only means remaining to recover all that has been unjustly
detained." There is also a third mode of declaration, which runs in
the following tenour; "Since the ancient people of the Latins have
committed aggressions against the people of Rome, the people of Rome,
with the advice and consent of the senate, declare war against them,
and in the name of the senate and people of Rome their purpose is thus
published."
But that in case of RENEWED wars such a declaration is not absolutely
necessary, appears from the circumstance of its being made in due form
at the nearest garrison, and not PERSONALLY to the offender himself,
according to the answer given by the heralds, when they were consulted
in the case of Philip of Macedon, and afterwards respecting Antiochus.
Whereas a declaration for the FIRST time should be made to the enemy
himself. Indeed in the war against Pyrrhus the declaration was made
to one of his soldiers, in the Flaminian Circus, where, as Servius
observes in his notes on the sixth book of the Aeneid, he was commanded
to purchase a piece of ground, as a handle for dispute. A proof also
that IN SOME CASES a declaration is superfluous may be taken from the
circumstance that war is frequently declared by BOTH SIDES, which was
done by the Corcyraeans and Corinthians in the Peloponnesian war,
though a declaration by one of the parties would have been sufficient.
VIII. As to the use of the caduceum, or staff with the figure of two
snakes twisted around it, which ambassadors carried, when they sued
for peace, it was a ceremony peculiar to the GREEKS, and not derived
from the GENERAL law of nations. The ROMANS in the same manner had
particular customs, such as using vervain in forming alliances,
throwing a bloody spear, as a declaration of war, renouncing all
former friendship and alliance at the expiration of thirty days, after
satisfaction had been demanded and refused, and again throwing another
spear. None of these PECULIAR customs ought to be confounded with the
GENERAL law of nations. For Arnobius informs us, that in his time many
of them had fallen into disuse, and even in the time of Varro some of
them were omitted. The third Punic war indeed was not declared till the
moment of its actual commencement.
IX. A declaration of war, made against a sovereign, includes not only
his own subjects, but all who are likely to become his associates, as
thereby they make themselves accessories in the war. And this is what
the modern lawyers mean, when they say that, in bidding defiance to
a Prince, we bid defiance to all his associates. For they give the
name of defiance to a declaration of war. By which is understood the
war carried on with the power against whom it has been declared. Thus
upon war being declared against Antiochus, there was no occasion for
a separate declaration against the Aetolians, who had openly joined
Antiochus. For, as the heralds in their answer justly observed, the
Aetolians had, by that act, voluntarily brought war upon themselves.
X. But if after the conclusion of such a war it should be deemed
expedient to attack any other nation or king for having furnished
supplies and assistance towards that war, a new declaration of war
will be necessary. For that nation or king is then to be considered,
not as an accessory, but as a principal enemy. And therefore it was
with reason said, that the war of Manlius against the Galatians, and
that of Caesar against Ariovistus, were not just wars according to the
law of nations. For war was made upon them not as accessories, but as
principals. So that for this purpose, as the law of nations would have
required a declaration, in the same manner the Roman law would have
required a new order of the Senate.
For on the motion being made for the war with Antiochus, the question
was also put, whether it should not at the same time be made with his
adherents. The same rule also being observed against King Perseus, it
must be understood, as including the adherents during all the time that
war with those princes continued; and implicating all, who in reality
gave them support.
XI. The reason why a declaration is necessary to constitute what is
deemed, according to the law of nations, a just war, is not that which
some writers assign. For they allege that it is to prevent every
appearance of clandestine and treacherous dealing: an openness, which
may be dignified with the name of magnanimity, rather than entitled a
matter of right. On this point, we are informed that some nations have
gone so far, as to settle and make known the very time and place of a
general engagement.
But waving all conjecture, a more satisfactory reason may be found in
the necessity that it should be known for CERTAIN, that a war is not
the PRIVATE undertaking of bold ADVENTURERS, but made and sanctioned
by the PUBLIC and SOVEREIGN authority on both sides; so that it is
attended with the effects of binding all the subjects of the respective
states;--and it is accompanied also with other consequences and rights,
which do not belong to wars against pirates, and to civil wars.
XII. There is much truth indeed in the observations, which some have
made, and which they have produced examples to confirm, that even in
wars of this kind all captures become the lawful prize of the captors.
Yet this is only partially true, and that too, according to the law
of nature, and not according to the voluntary law of nations. For the
latter only makes provision to secure the rights of nations, as WHOLE
communities, and not of those, who, as in civil wars, form but ONE PART
of a nation.
The same writers are mistaken too in the supposition that defensive
wars require no declaration. For it is no less necessary to shew by
way of vindication that it is a defensive war, and at the same time
by public declaration to give it the character of a national and
lawful war, in order to establish those rights and consequences, that
have been already mentioned, and which will hereafter be more fully
explained.
XIII. They maintain another position also, which is by no means
true, and that is, that a power ought not IMMEDIATELY to follow up
a declaration of war with actual hostilities, as Cyrus did to the
Armenians, and the Romans to the Carthaginians. For the law of nations
requires the intervention of no DEFINITE time between the declaration
and the commencement of war.
There may indeed be some cases, where natural justice will render such
a delay proper. Thus, for instance, where reparation for injury, or
the punishment of aggressors is demanded, it is but reasonable to wait
till it can be known, whether the just demand will be complied with or
rejected.
XIV. In order to establish the same consequences, a declaration will
be equally necessary too, where the rights of Ambassadors have been
violated. Yet it will be sufficient for it to be made in the manner,
in which it may be done with the greatest safety. As in many other
matters, in places which afford no security, satisfaction is demanded
by denunciation or summons.