up any considerable number of forces, his neighbours took their BOOK III. measures accordingly, formed leagues against him, and obliged CHAP. III. him to disarm. Why has not that salutary custom been pre served? The constant maintenance of numerous armies deprives the soil of its cultivators, checks the progress of population, and can only serve to destroy the liberties of the nation by whom they are maintained. Happy England! whose situation exempts it from any considerable charge in supporting the instruments of despotism. Happy Switzerland! if, continuing carefully to exercise her militia, sh keeps herself in a condition to repel any foreign enemies, without feeding a host of idle soldiers, who might one day crush the liberties of the people, and even bid defiance to the lawful authority of the sovereign. Of this the Roman legions furnish a signal instance. This happy method of a free republic,-the custom of training up all her citizens to the art of war,-renders the state respectable abroad, and saves it from a very pernicious defect at home. It would have been everywhere imitated, had the public good been everywhere the only object in view. Sufficient has now been said on the general principles for estimating the justice of a war. Those who are thoroughly acquainted with the principles, and have just ideas of the various rights of nations, will easily apply the rules to particular cases. CHAP. IV. OF THE DECLARATION OF WAR,-AND OF WAR IN DUE FORM. (142) [ 315 ] CHAP. IV. THE right of making war belongs to nations only as a 51. Deremedy against injustice: it is the offspring of unhappy claration of necessity. This remedy is so dreadful in its effects, so war. destructive to mankind, so grievous even to the party whohas recourse to it, that unquestionably the law of nature allows of it only in the last extremity, that is to say, when every other expedient proves ineffectual for the maintenance of justice. It is demonstrated in the foregoing chapter, that, in order to be justifiable in taking up arms, it is necessary1. That we have a just cause of complaint. 2. That a reasonable satisfaction have been denied us. 3. The ruler of the nation, as we have observed, ought maturely to consider (142) See in general, Grotius, B. iii. c. iv. s. 8; and 1 Chitty's Com. Law, 378. -C. CHAP. IV. thereof. BOOK III. whether it be for the advantage of the state to prosecute his right by force of arms. But all this is not sufficient. As it is possible that the present fear of our arms may make an Necessity impression on the mind of our adversary, and induce him to do us justice, we owe this further regard to humanity, and especially to the lives and peace of the subjects, to declare to that unjust nation, or its chief, that we are at length going to have recourse to the last remedy, and make use of open force, for the purpose of bringing him to reason. This is called declaring war. All this is included in the Roman manner of proceeding, regulated in their fecial law. They first sent the chief of the feciales, or heralds, called pater patratus, to demand satisfaction of the nation who had offended them; and if, within the space of thirty-three days, that nation did not return a satisfactory answer, the herald called the gods to be witnesses of the injustice, and came away, saying that the Romans would consider what measures they should adopt. The king, and in after times the consul, hereupon asked the senate's opinion: and when war was resolved on, the herald was sent back to the frontier, where he declared it.* It is surprising to find among the Romans such justice, such moderation and prudence, at a time too when, apparently, nothing but courage and ferocity was to be expected from them. By such scrupulous delicacy in the conduct of her wars, Rome laid a most solid foundation for her subsequent greatness. 8 52. What it is to con tain. A declaration of war being necessary, as a further effort to terminate the difference without the effusion of blood, by making use of the principle of fear, in order to bring the enemy to more equitable sentiments,-it ought, at the same time that it announces our settled resolution of making war, [316] to set forth the reasons which have induced us to take up arms. This is, at present, the constant practice among the powers of Europe. 2 53. It is simple or conditional. 254. The right to After a fruitless application for justice, a nation may proceed to a declaration of war, which is then pure and simple. But, to include the whole business in a single act, instead of two separate ones, the demand of justice (called by the Romans rerum repetitio) may, if we think proper, be accompanied by a conditional declaration of war, notifying that we will commence hostilities unless we obtain immediate satisfaction on such or such subject. In this case there is no necessity for adding a pure and simple declaration of war,-the conditional one sufficing, if the enemy delays giving satisfaction. If the enemy, on either declaration of war, offers equitable conditions of peace, we are bound to refrain from hostilities; make war for as soon as justice is done to us, that immediately super ceases on Livy, lib. i. cap. 31. sedes all right to employ force, which we are not allowed to BOOK II. use unless for the necessary maintenance of our rights. To CHAP. IV. these offers, however, are to be added securities; for we are the offer of under no obligation to suffer ourselves to be amused by empty conditions. equitable proposals. The word of a sovereign is a sufficient security, as long as he has not disgraced his credit by any act of perfidy: and we should be contented with it. As to the conditions. themselves, besides the principal subject, we have a right to demand a reimbursement of the expenses incurred in our preparations for war. declaration of war.(143) It is necessary that the declaration of war be known to the ? 55. Forstate against whom it is made. This is all which the natural malities of a law of nations requires. Nevertheless, if custom has introduced certain formalities in the business, those nations who, by adopting the custom, have given their tacit consent to such formalities, are under an obligation of observing them, as long as they have not set them aside by a public renunciation (Prelim. § 26). Formerly, the powers of Europe used to send heralds, or ambassadors to declare war; at present, they content themselves with publishing the declaration in the capital, in the principal towns, or on the frontiers: manifestoes are issued; and, through the easy and expeditious channels of communication which the establishment of posts now affords, the intelligence is soon spread on every side. the necessi ty of its Besides the foregoing reasons, it is necessary for a nation 2 56. Other to publish the declaration of war for the instruction and direc- reasons for tion of her own subjects, in order to fix the date of the rights which belong to them from the moment of this declaration, publicaand in relation to certain effects which the voluntary law of tion.(143) nations attributes to a war in form. Without such a public declaration of war, it would, in a treaty of peace, be too difficult to determine those acts which are to be considered as the effects of war, and those that each nation may set down as injuries of which she means to demand reparation. In the last treaty of Aix-la-Chapelle, between France and Spain on the one side, and England on the other, it was agreed that all the prizes taken before the declaration of war should be restored. He who is attacked and only wages defensive war, needs? 57. Denot to make any hostile declaration,—the state of warfare be- fensive war ing sufficiently ascertained by the enemy's declaration, or declaration. (143) But there seems to be no absolute necessity for a formal declaration of war to render it legal. See observations of Sir William Scott, in Nayede, 4 Rob. Rep. 252; Chitty's Law Nat. 29, 3. But, in England, the king must have assented to a war to render it strictly legal. Brooke's Abrid. tit. "Denizen," pl. 26; The Hoop, 1 Rob. Rep. 196.-C. {The late war between the United States and Great Britain was declared by Act of Congress, June requires no BOOK III. open hostilities. In modern times, however, the sovereign CHAP. IV. who is attacked, seldom omits to declare war in his turn, whether from an idea of dignity, or for the direction of his subjects. 258. When it may be omitted in an offensive war. 259. It is not to be omitted by way of retalia tion. 260. Time claration. If the nation on whom we have determined to make war will not admit any minister or herald to declare it,—whatever the custom may otherwise be, we may content ourselves with publishing the declaration of hostilities within our own territories, or on the frontier; and if the declaration does not come to the knowledge of that nation before hostilities are commenced, she can only blame herself. The Turks imprison and maltreat even the ambassadors of those powers with whom they are determined to come to a rupture: it would be a perilous undertaking for a herald to go and declare war against them in their own country. Their savage disposition, therefore, supersedes the necessity of sending one. But no person being exempted from his duty for the sole reason that another has been wanting in his, we are not to omit declaring war against a nation, previous to a commencement of hostilities, because that nation has, on a former occasion, attacked us without any declaration. That nation, in so doing, has violated the law of nature (§ 51); and her fault does not authorize us to commit a similar one. The law of nations does not impose the obligation of declarof the de- ing war, with a view to give the enemy time to prepare for an unjust defence. The declaration, therefore, need not be made till the army has reached the frontiers; it is even lawful to delay it till we have entered the enemy's territories, and there possessed ourselves of an advantageous post: it must, however, necessarily precede the commission of any act of hostility. For thus we provide for our own safety, and equally attain the object of a declaration of war, which is, to give an unjust adversary the opportunity of seriously considering his past conduct, and avoiding the horrors of war, by doing justice. Such was the conduct of that generous prince, Henry the Fourth, towards Charles Emanuel duke of Savoy; who had wearied his patience by vain and fraudulent negotiations.* of the inhabitants on a foreign tering a 261. Duty If he, who enters a country with an army kept under strict discipline, declares to the inhabitants that he does not come as an enemy, that he will commit no violence, and will acarmy's en quaint the sovereign with the cause of his coming,-the inhabitants are not to attack him; and should they dare to attempt it, he has a right to chastise them. But they are not to admit him into any strong-holds, nor can he demand admission. It is not the business of subjects to commence hostilities without orders from their sovereign: but if they are brave and loyal, they will, in the mean time, seize on all the country before a declaration of war. *See Sully's Memoirs. advantageous posts, and defend themselves against any at- BOOK 11. tempt made to dislodge them. CHAP. IV. of hostilities. After a declaration of war on the part of the sovereign who? 62. Comhas thus invaded the country, if equitable conditions are not mencement offered him without delay, he may commence his operations; for, I repeat it, he is under no obligation to suffer himself to be amused. But, at the same time, we are never to lose sight of the principles before laid down (§§ 26 and 51) concerning the only legitimate causes of war. To march an army into a neighbouring country by which we are not threatened, and without having endeavoured to obtain, by reason and justice, an equitable reparation for the wrongs of which we complain, would be introducing a mode pregnant with evils to mankind, and sapping the foundations of the safety and tranquillity of states. If this mode of proceeding be not exploded and proscribed by the public indignation and the concurrence of every civilized people, it will become necessary to continue always in a military posture, and to keep ourselves constantly on our guard, no less in times of profound peace, than during the existence of declared and open war. wards the the country The sovereign declaring war can neither detain the persons 63. Connor the property of those subjects of the enemy who are duct to be within his dominions at the time of the declaration. They observed tocame into his country under the public faith. By permitting subjects of them to enter and reside in his territories, he tacitly promised an enemy, them full liberty and security for their return. He is there- who are in fore bound to allow them a reasonable time for withdrawing at the time with their effects; and, if they stay beyond the term prescribed, of the dehe has a right to treat them as enemies,-as unarmed enemies, claration of however. But, if they are detained by an insurmountable war. (144) impediment, as by sickness, he must necessarily, and for the same reasons, grant them a sufficient extension of the time. At present, so far from being wanting in this duty, sovereigns carry their attention to humanity still farther, so that foreigners, who are subjects of the state against which war is declared, are very frequently allowed full time for the settlement of their affairs. This is observed in a particular manner with regard to merchants; and the case is moreover carefully provided for in commercial treaties. The king of England has done more than this. In his last declaration of war against France, he ordained that all French subjects who were in his dominions should be at liberty to remain, and be perfectly secure in their persons and effects, "provided they demeaned themselves properly." We have said (§ 56), that a sovereign is to make the de- 64. Pubclaration of war public within his dominions, for the informa-lication of tion and direction of his subjects. He is also to make known his declaration of war to the neutral powers, in order to ac (144) See in general 1 Chitty's Com. L. 414.-C. the war, and manifestoes. |