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claration of war. What Grotius says about interpellatio applies to a demand only; but what he says afterwards about a public declaration, denunciation cannot be applied in like manner. Nevertheless, it was from his and other's prejudices, although not atall consonant to reason, that this subject, otherwise very clear, began to become obscure. Yet it must have been evident, that where there is no judge between the parties, as is the case with princes, every one may forcibly retake that which belongs to him and has been unjustly taken away from him by another, who refuses to make restitution. This being the case, every one is at liberty to make or not as he pleases a declaration of war; the necessity of such a solemnity can only have been established by an agreement which between nations has no obligatory force.*
Nations however, and princes, who are impressed with sentiments of magnanimity, are not willing to make war without a previous declaration. They wish by an open and manly attack to render victory more glorious and more honourable. But here I must repeat the distinction between justice and generosity, which I have laid down in the preceding chapter: the former permits the use of force without any previous notice; the latter considers every thing in a nobler point of view, deems it inglorious to subdue an unarmed and unprepared enemy, and considers it an unworthy act to attack and despoil of a sudden those who have come among us on the faith of the public peace, which happens to be suddenly broken, perhaps without their fault. Hence Polybius, 1. 13. c. 1., praises very highly the custom of declaring war, which was peculiar to the Achaians and to the Romans, and he praises them in the same manner for abstaining from fraud and deceit in war; but his praise in both instances is due only to their generosity.
Speaking of the Achaians, Polybius adds, that they had also appointed a particular place to fight their battles in, precisely
* Non nisi conventione, quaf inter Gentes nulla est. Our author probably means here that such an agreement has no force, except between the parties to it; otherwise, he would appear at variance with himself. See pp. 3.13.17.
as we read of certain counts of Holland, who in ancient times, when they intended to go to war, not only gave notice of it by a public declaration, but appointed the time and place of combat. This appointment of time and place Grotius* himself acknowledges to be unnecessary, and yet he urges a declaration as if it were indispensable. If you inquire into the reason of this difference, you will find no other but that it is not at present customary in Europe to appoint the time and place of combat. Whence it appears, that Grotius, in writing his book on the law of war and peace, has not so much written of the universal law of nations, as of the customs and manners of most of the European countries, which, as he himself teaches us,f do not constitute the law of nations. But on other points as well as on the present he has extracted the law of nations from customs and manners alone; so that when he has found these to differ on any particular question, he has hardly ever ventured to decide upon it.
From what Polybius said, however, that it was an honour peculiar to the Achaians and Romans that they did not make war without a previous declaration, we sufficiently understand that what is said byDionChrysostom, that war is mostfrequently Not declared\, is certainly true; not merely because it is not required by the law of nature, but because such is the custom or usage of nations. And indeed a declaration of war was not so frequent among other nations, as among the Romans and Achaians. Nor was such a declaration made by either party when the other nations of Greece waged war with the barbarians or with one another; nor do we read of the Jews, who went to war by God's command, that they ever declared war against their enemies. Neither did the Macedonians make a public declaration of war when they destroyed
• L. 3. c. 3. §11. t L-2- c. 8. §1. n. 1& 2.
t In the original, this passage from Dion Chrysostom is quoted so as to mean, that war is mostfrequently Declared, (bella indicta tri To x\£rot, ut plurhniim) but from the context it appears evidently to have been an error of the press. The words of Chrysostom are: iroxtjwi oelrl To *x«rov 'AKHPTKT01 ,ylytotTni. Wars are most frequently made Without a public declaration, and so our author translates them very correctly above, page T. T.
with so much glory the empire of the Persians. Even at this day, as far as I have been able to learn, none but the European nations declare war; nor even do they all or always do it, but they are accustomed so to do after the example of the Romans, for no other reason perhaps than because the Romans did so before them. For such was the estimatjon in which the Romans have been held among the nations of Europe, that not only their laws, but their manners and customs have been adopted among us, although those customs, as for instance that of declaring war which we are speaking of, differed from those of the rest of the world. Wherefore, if any sovereign of Europe should make war without previously declaring it, as was done by Gustavu's Adolphus upon the Germans in the last century, he would certainly act contrary to the general custom of European nations, but none would say that he acted in opposition to the law of nations, except those who call by that name every trling which they see done in their own country.
But let us consult reason, whose authority is of so much weight in the law of nations. Reason, as I have before said, does not require any other formalities than that we should demand in a friendly manner what has been taken from us; nor perhaps will it even require that amicable demand; because all laws permit the repelling force by force, nor do I know that any solemnity in order to repel force is known to the law of nations. But admitting that among good men it may be proper or necessary to make a previous request; yet if that should be denied, will it be prohibited to make use of force? I surely do not prohibit it, though Grotius and others do, unless a declaration of war be previously made. But the arguments which are commonly made use of in support of the necessity of declaring war amount in fact to nothing. That which is adduced by Gentilis is reprobated by Grotius himself,* while he gives another, which I have already quoted, and which if not the worst of all is certainly a very bad one.
When two sovereigns commit hostilities against each other withouthavingdeclaredwar,can we doubt that itis their mutual
• L.3.C. 3. 511.
will to make war? If we cannot doubt it, to what purpose would their declaration be? When a thing is public and notorious, it certainly requires no proof. That is not therefore a sufficient argument, and yet Grotius has preferred making use of it in order to deduce the necessity of declaring war, from its being commonly done among European nations, though he well knew that that was not sufficient to constitute the general law. Reason alone, reason is the soul of the law of nations, and if we take her for our guide in the present discussion, no argument will be found to prove the necessity of a declaration of war, but many on the contrary, which I have adduced, to shew that it is not necessary.
But even if this question were to be decided by the customs of European nations, authorities can also be quoted from that source. To recur back to the precedents of ancient times would be an endless task. That war of extermination which was carried on between Spain and the United Provinces, from the time of the foundation of our republic until the year 1648, was begun by mutual hostilities, without any public declaration. Because therefore no such declaration was made, will the legality of the war, of the victories and of the peace which followed in 1648 be doubted? I do not think that it will. But the states of Holland seem to have thought otherwise, when on the 4th of March 1600 they published an edict declaring that the owners of the ships which Philip III. had confiscated in Spain in 1658 should have satisfaction, because the Dutch before that time resorted freely to Spain, and those ships had been confiscated without any previous warning. I do not approve of this edict, for who could justly have required the king of Spain to declare war, when the Dutch since the year 1581 had not ceased publicly to commit hostilities against him? War, in fact, properly begins from the mutual use of force, not to speak of other cases* mentioned by the publicists which fall within the same reason.
In the preamble of this edict, as well as in the edict itself, the states-general add, that formerly, that is to say prior to th«
* Zouch, Be Jureinttr gentcs, part 2. sect. 10. $ 1.
year 1598, the Belgians* were allowed a free intercourse with Spain. But of the truth of this fact I have never been able to satisfy myself, and admitting it to be true, I cannot see how it applies to the justice of the present case, as I shall shew hereafter. If the Belgians thus carried on a free trade and intercourse with Spain, it could not be by force of the laws of war, but rather by the negligence of the magistrates. Indeed it is stated in the preamble to the edict, by which on the 4th of April 1586, the earl of Leicester, with the advice of the statesgeneral and their counsellors, prohibited the United Belgians from trading with the Spaniards, that the king of Spain had' already condemned and sold Belgic vessels, both in Spain and Portugal. And in the first section of the said edict of 1586, as well as by another edict of the 18th of July in the same year, the earl of Leicester actually forbids all commercial intercourse with the Spaniards. It is true, that by the first section of the edict of the 4th of August following he restricted the prohibition to trading with those places within the Belgic territory, which were in the possession of Spain, and permitted carrying on trade with Spain proper; but this was done for no other cause than for the advantage of the Belgic merchants, which brought no alteration in the laws of war, which could not be changed without the consent of the Spaniards.
Even if a declaration of war had been necessary, it would not have availed the Belgians any thing to prevent the condemnation of their vessels. For what if the Spaniards in that very year 1598 had solemnly declared war against the Belgians, and immediately afterwards condemned their vessels, perhaps the same day? They might have done this conformably to the laws of war; nor indeed are the Belgians or any other power, when a war suddenly breaks out, in the habit of giving notice to the subjects of their enemies to withdraw their effects and property, or otherwise that they shall be forfeited. No one ever required this; on the contrary, Tryphonius, in 1. 12. pr.
* Our author, when referring to the times of the Dutch revolution, calls indiscriminately Dutch and Belgians those Netherlander*, who were in insurrection against Spain. Several of the now Belgic provinces were at times in possession of the insurgents. T.