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untary hostilities authorized by the English sovereign, and his king, he said, would look on them as such. Still, Hosier was not ordered to withdraw, and the Spaniards began to besiege the fort of Gibraltar. They killed over three hundred British soldiers, and reprisals were not ordered by England until afterwards. Nor even then did they call it a war. Preliminaries of peace, however, were made between the parties, including their allies, at Paris and Vienna, in 1727. (See Dumont, viii., 2, 146, for the Convention of Paris.) In such transactions, there is real war without declaration, as Mr. Ward, the historian, justly maintains in his "inquiry into the manner in which different wars in Europe have commenced," etc., pp. 23-28 (London, 1805). The party injured has a right in such cases to regard the condition of things as one of war, and neutral states, in the event of a so-called pacific blockade, would have an equal right to claim that a state of war existed. Thus, when such an occurrence takes place, we have this singular state of things offered to us: the nation injured and the neutrals declaring that there is war, the nation using the violence, that there is not. Surely a state of peace can never

involve such contradictions.

Commence

ment of war. Declaration.

§ 120.

War between independent sovereignties is, and ought to be, an avowed open way of obtaining justice. For every state has a right to know what its relations are towards those with whom it has been on terms of amity, - whether the amity continues or is at an end. It is necessary, therefore, that some act show in a way not to be mistaken that a new state of things, a state of war, has begun. The civilized nations of antiquity generally began war by

Greek and

tice.

a declaration of their purpose so to do. Among the Roman prac- Greeks, a herald, whose person was sacred and inviolate, carried the news of such hostile intent to the enemy, or accompanied an ambassador to whom this business was committed. Only in rare cases, when men's passions were up, was war ȧKýpuктos, i. e., such, that no communica

tions by heralds passed between the enemies. Among the Romans the ceremonies of making known the state of war vere very punctilious. This province belonged to the Fetiales, a college of twenty men, originally patricians, whose first duty was to demand justice, res repetere, literally to demand back property, an expression derived from the times when the plunder of cattle or other property was the commonest offense committed by a neighboring state. Three or four of the college, one of their number being pater patratus for the time, and so the prolocutor, passed the bounds of the offending state, and in a solemn formula, several times repeated, demanded back what was due to the Roman people. On failure to obtain justice, there was a delay of three and thirty days, when the pater patratus again made a solemn protestation that justice was withheld. Then the king consulted the senate, and if war was decreed, the pater patratus again visited the hostile border, with a bloody lance, which he threw into the territory, while he formally declared the existence of the war. This custom, which seems to have been an international usage of the states of middle and southern Italy, continued into the earlier times of the republic; but when the theatre of war became more distant, the fetialis, consul, or prætor, contented himself with hurling his lance from a pillar near the temple of Bellona in the direction of the hostile territory, while the declaration of war itself was made by the military commander of the province through an ambassador. It was thus always a principle with the Romans, as Cicero ("De Officiis," i., 11) has it, "Nullum bellum esse justum, nisi quod aut rebus repetitis geratur, aut denuntiatum ante sit et indictum." But the form satisfied them, and they cared little for the spirit.1

So also in the Middle Ages, war could not be honorably begun without a declaration; but the spirit which Mediæval dictated this, seems to have been, as Mr. Ward practice. remarks, rather a knightly abhorrence of everything under

1 For the Greeks, see Schömann, u. s. For the Romans, Osenbrüggen, pp. 2734, Bekker-Marquardt, Röm. Alterthüm., iv., 380-388.

handed and treacherous, than a desire to prevent the effusion of blood by giving the enemy time to repair his fault. Even in the private warfare which characterized that age, as much as in the duel, a challenge or formal notice to the enemy was necessary. The declaration of war was made by heralds or other messengers: that of Charles V. of France against Edward III., was carried to that king by a common servant, the letter containing it bearing the seals of France. Such formal challenges were sanctioned by law. Thus the public peace of the Emperor Barbarossa, in 1187, contains the clause that an injured party might prosecute his own rights by force, provided he gave to his adversary three days' notice that he intended to make good his claims in open war. And the Golden Bull of the Emperor Charles IV. in 1356, forbids invasions of the territory of others on pretext of a challenge unless the same had been given for three natural days to an adversary in person, or publicly made known before witnesses at his usual place of residence; and this, on pain of infamy, just as if no challenge had been offered.1

Modern practice.

The modern practice ran for some time in the same direction, but since the middle of the eighteenth century formal declarations have extensively not been made, and are falling into disuse. Instances of the same may be gathered from still earlier times. Thus no declaration preceded the expedition of the Grand Armada in 1588,- before which indeed a state of hostilities existed in fact, and the war between England and Holland, in 1664, began with an act of the English Council, authorizing general reprisals, which became a full-blown war without any declaration. Thus also the war of Orleans, so called, was begun by Louis XIV. in 1688, before he issued his manifesto; in the war of the Austrian succession the battle of Dettingen had been fought before the French declared war against Great Britain and Austria; and in the Seven Years' War hostilities began on this continent between England and France two years. 1 Ward, ii., 211 seq. The passage is in Ŏlenschlage's ed. of the Golden Bull, ch. 17. (Frankf. 1766.)

before the parties to this important war made their declarations.1

usage.

This disuse of declarations does not grow out of an intention to take the enemy at unawares, which would imply Reasons for an extreme degradation of moral principle, but out of the modern the publicity and circulation of intelligence peculiar to modern times. States have now resident ambassadors within each other's bounds, who are accurately informed in regard to the probabilities of war, and can forewarn their countrymen. War is for the most part the end of a long thread of negotiations, and can be generally foreseen. Intentions, also, can be judged of from the preparations which are on foot, and nations have a right to demand of one another what is the meaning of unusual armaments. It is, also, tolerably certain that nations, if they intend to act insidiously, will not expose their own subjects in every quarter of the globe to the embarrassments of a sudden and unexpected war. And yet the modern practice has its evils, so that one cannot help wishing back the more honorable usage of feudal times.

This rule, be it observed, of declaring war beforehand, so long as it was thought obligatory, only bound the assailant. The invaded or defensive state accepted the state of war as a fact, without the formalities of a declaration.2

§ 121.

Declaration

tinued.

Grotius considered a denuntiatio belli to be necessary for the reason that the war might appear manifestly to be a public one, waged by the public authority. The de- of war connuntiatio might be conditioned on refusal to render justice or unconditioned. In order that a war should be just, i. e., should be a war capable of jural consequences, it should be publicly decreed, “et quidem ita decretum publice ut ejus rei significatio ab altera partium alteri facta sit." No denunti1 Comp. Bynkersh., Quæst. J. P., i., 2, and among modern systematists Phillimore, iii., 75-102.

2 Under a government like that of the United States, when an Act of Congress creates a state of war, a formal declaration is needless. War begins with a legislative act. And the passage of this can generally be foreseen.

atio is required by natural law, when either violence is repelled, or punishment is demanded from the person himself who has done the wrong. Otherwise interpellatio is required, i. e., formal demand, "to make it appear that in no other way [except by armed force] we can get at what is ours or is due to us. Nor is it true that war cannot be waged as soon as declared. For jure gentium a declaration needs to have no delay after it, although ex naturali jure some time may be needed before war begins, as when a demand is made on the opposite party to render justice (iii., 3, § 3, 5-12).

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Bynkershoek (" Quæst. J. P.," i., 2) denies that any declaration is needed. He asks whether, when justice has been demanded and refused,, "vim mutuam fieri vetabis?" and replies, "I do not forbid this, but Grotius and others do, unless a declaration shall have preceded." That is, rerum repetitio is necessary; but all formalities, such as declaration, spring from imitation of Roman usage. And the prevailing sentiment is, that delay or refusal of justice, after redress demanded, is of itself, without a special notice, good ground of war.

The number of wars without declaration within the last three centuries is quite considerable. Bynkershoek (u. s.) mentions the war of Spain with the United Provinces — which, however, needed a declaration the less as being a war between a sovereign and his subjects-and that of Gustavus Adolphus with the Emperor Ferdinand II., who complained that no declaration had been made, and received for reply that the Emperor had before invaded Prussia without that formality. Robert Ward, the historian of international law, has devoted to this matter of the commencement of wars an essay published at London in 1805, which is, like the other works of this author, excellent. From the historical part of the essay we give the following list of wars without a declaration. Besides the two just mentioned, this was true of the war of England and Spain in Elizabeth's time, when Drake's ravages of the Spanish colonies and the Grand Armada had no such introduc

1 An Inquiry into the Manner in which the Different Wars in Europe have commenced during the Last Two Centuries, p. 72.

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