CHAPTER III.

DECLARATION OF WAR.

of war usual

In ancient times war was solemnly declared, either by Declarations certain fixed ceremonies, or by the announcement of in ancient heralds; and a war commenced without such declaration times. was regarded as informal and irregular, and contrary to the usage of nations. Grotius says, that a declaration of war is not necessary by the Law of Nature, "naturali jure nulla requiritur declaratio," but that it was required by the Law of Nations, "jure gentium," by which term, be it remembered, he means the usage of nations. (1) And in this he was right, as, until the age in which he lived, wars were almost invariably preceded by solemn declarations. The Romans, according to Albericus Gentilis, did not grant a triumph for any war which had been commenced without a formal declaration; (2) but the Greeks do not seem to have been at all regular in their observance of this custom. (3) During the times of chivalry declarations of war were usually given with great formality, the habits of knighthood being carried into the customs of general warfare, and it being held mean to fall upon an adversary when unprepared to defend himself. (4) With the decline of chivalry this custom gradually fell into disuse. Gustavus Adolphus invaded Germany without any declaration of war; (5) but this appears to have been an exception to the usages of the age: and Clarendon speaks of declarations of war as being customary in his times,

(1) De Jure, lib. III. c. III. § 6. (2) De Jure Belli, lib. II. § I. (3) Bynkershoek, Quæst. Jur. Pub. lib. I. c. II.

M.

(4) Ward's Introduction, Vol. II. 206-230.

(5) Zouch, de Judicio inter gentes, P. II. § x. 1.

M

Manifestoes

employed.

and blames the war in which the Duke of Buckingham went to France, as entered into "without so much as the formality of a declaration from the king, containing the ground and provocation and end of it, according to custom and obligation in the like cases." (1) Formal denunciations of war by heralds were discontinued about the time of Grotius; the last instance having been, according to Voltaire, (2) when Louis XIII. sent a herald to Brussels to declare war against Spain, in

1635.

Since that period formal declarations of war have now generally fallen into disuse; but manifestoes are generally published by the belligerent governments in their own countries, and communicated to foreign states, proclaiming that war has commenced, and stating the reasons for hostilities. In the beginning of the last century, according to Bynkershoek, declarations of war were not considered necessary; (3) but Vattel says, that declarations of war ought always to be given by manifestoes, humanity requiring that notice should be given of so sad an alternative as war, and it being, for many reasons, desirable to fix the date when the rights of war have commenced. (4) De Martens and Klüber both state that, by the customary Law of Nations, declarations of war are no longer considered necessary, but that it is usual to publish manifestoes, which are communicated to foreign courts. (5)

Many wars without such notice.

There are numerous instances in modern times in which war has been entered into without notice of any description. In 1740 Prussia commenced war with

(1) Hist. Reb. Vol. I. 40, ed. 1707.

(2) Sièc. de Louis XIV. tom. I. ch. II.

(3) Quæst. Jur. Pub. lib. I.

(4) Droit des Gens, liv. III. ch. IV. § 51, 55, 56, 64.

(5) De Martens Précis, liv. VIII. ch. III. § 267. Klüber, Droit des Gens, P. II. tit. II. § 238.

Austria without any declaration; (1) so did France with Sardinia in 1743; (2) so did the empire with Prussia in 1757; (3) so did France and Great Britain in 1756;(4) Russia invaded Finland, in 1808, without any declaration of war; (5) and, in 1812, the Americans commenced war immediately that the act of Congress had passed, without waiting to communicate their intentions to Great Britain. (6) Thus nearly all the chief states of Europe and America have afforded examples of this practice; but still it may be considered that these are exceptions, and that, according to the usage of nations, war should be proclaimed by manifestoes.

bassadors.

The recall of ambassadors is usually considered as Recall of amtantamount to a declaration of war. In our treaty with Portugal, in 1812, it is declared, art. XXI., that a rupture of pacific relations is not to be regarded as taking place till the recall, or dismissal, of the respective ambassadors. (7) This article has been adopted by Brazil, in her treaty with France, in 1826; (8) with Prussia, in 1827; (9) with Great Britain, in the same year; (10) and with Denmark, in 1828. (11) And it would be well if this article were generally adopted, as it would prevent the many disputes and difficulties that arise from the want of power to ascertain the date when hostilities have commenced.*

[*There are two distinct purposes to be served by the proceeding called a "declaration of war," or by what

[are now considered to be sufficient equivalents. One is to ascertain for a certainty, in the interests of Neutral States, that a war has actually commenced. The other purpose is to determine, in view of judicial processes relating to the capture or confiscation of property, the exact moment at which the war commenced. The advantage of interposing a delay between the announcement of a fully-formed resolution to resort to war and the commencement of hostilities is recommended by a different class of considerations, among which the inconvenience caused to the commercial and social relations of private persons, both in the belligerent and neutral States, and the expediency of affording time for passion to cool and friendly mediation to take place, are some of the most prominent. Mr. Dudley Field, in his "International Code," has inserted a clause to secure the last-mentioned object. Section 709 is: "No nation "uniting in this code shall commence a war against any "nation whatever without making public within its own territory, and, as far as possible, within the territory of "the nation to be attacked, a declaration of war, assign

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ing the reasons thereof, at least sixty days before com"mitting the first act of hostility." It is to be feared that a recognition of what are called "military necessities" will stand in the way of this being adopted for some time to come. One gain would be that, as far as it goes, it would tend to diminish the necessity of maintaining standing military establishments. It has been noticed by M. Rolin-Jacquemyns, in his paper published in 1870 in the Revue de Droit International, on the bearing of the war between France and Germany on the Law of Nations, that "in order to mark the commencement of the hostilities, France recurred to a practice which had been abandoned, that of issuing a declaration of war." He then cites in full the letter of M. le Sourd, the French chargé d'affaires, addressed to M. de Bismark, on the 19th of July, 1870. The

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[last paragraph in that letter is as follows: "En conséquence, le gouvernement Français a jugé qu'il avait "le devoir de pourvoir sans retard à la défense de sa dignité et de ses intérêts lésés, et décidé à prendre "dans ce but toutes les mesures commandées par la "situation qui lui est créé, il se considère dès-à-présent comme étant en état de guerre avec la Prusse.”

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It is obvious that for the guidance of its own courts of justice a State may select what mark it chooses to determine the epoch of the commencement of war, whether the State itself is a belligerent or a neutral. The date of the publication in the London Gazette of the royal proclamation by which citizens are reminded of their liabilities, would, in the case of England being belligerent, for many judicial purposes, be taken as the epoch at which the war commenced. The historical cases illustrative of the subject will be found collected in Sir R. Phillimore's Commentaries, Part IX., Chap. V. Among these some of the most important for Englishmen are Lord Stowell's judgments in the Nayade (4 Rob. Adm. R. 253) and the Eliza Ann (1 Dod. Ad. R. 247). In the latter Lord Stowell says: "It is "said that the two countries (Sweden and Great Britain) were not in reality in a state of war, because "the declaration was unilateral only. I am, however, "perfectly clear that it was not the less war on that "account, for war may exist without a declaration on "either side. It is so laid down by the best writers on "the Law of Nations."-ED.]

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