[316] CHAPTER III.

Of Just or Formal War by the Law of Nations; and herein of Declaration of War.

I. 1 WE have above begun to say that a just war is often so called in respectable authors, not from the cause in which it originates, nor from the scale of the movements, but on account of certain peculiar jural effects. What kind of war this is, is best understood from the definition of an enemy in the Roman Jurist: Those are our enemies who publicly declare war against us or we against them: others are robbers or pirates, says Pomponius. And so Ulpian, adding: therefore he who is taken prisoner by robbers is not subject to them, nor is postliminium necessary for him. But he who is taken prisoner by enemies, suppose Germans or Parthians, becomes their slave, and recovers his former state by postliminium. So Paulus. Ulpian adds that, in civil wars, the opposite parties are not formal enemies, and therefore the captives taken do not lose their free condition.

2 We may note that which is said by the Roman jurists, of the Roman People, is to be understood of him who has the supreme power in any state. He is our enemy, says Cicero, who has the government, the council, the treasury, the consent and agreement of the citizens, and the power of making war and peace.

II. 1 A State or Commonwealth does not cease to be such by perpetrating an act of injustice, even in common: nor is a band of robbers or pirates a State, although they preserve a sort of equal rule among them, without which indeed no body of men can hold together. For such a body is associated for the purpose of crime: but the others, though they are not free from fault, are associated by mutual rights, and acknowledge certain rights in others; if not rights according to Na317tural Law (which is often much obliterated), yet rights according to certain conventions or usages. Thus the Greeks, while they held it lawful to plunder at sea, abstained from murder, from night-attacks, and from seizing oxen and ploughs, as the Scholiast to Thucydides notes. Other nations, as mentioned by Strabo, who lived by plunder at sea, were in the habit, when they had carried their plunder home, of sending to the owners to ransom it at a fair price. So Homer.

2 But in morals, the principal part is taken as the characteristic; so Cicero and Galen. Wherefore Cicero spoke too widely, when he said (in the third book of the Republic) that when the king is unjust, or the aristocracy, or the people itself, the commonwealth is not so much to be called vicious, as non-existing: which opinion, Augustine correcting, says, We are not to say that the people does not exist, or that its common concerns are not those of a commonwealth, so long as there remains a body of any reasonable number, associated by a common participation in its interests. A body which is diseased is still a body; and a state, though grievously out of health, is a state, as long as there remain the laws, the tribunals, and other things which are necessary in order that strangers may there obtain justice, as well as private persons in their affairs one with another. Dio Chrysostom speaks more rightly when he says that Law, (especially that which realizes the Law of Nations,) exists in a state, as the soul in the body; and that when that is taken away, the state no longer exists. And Aristides, in the oration in which he exhorts the Rhodians to concord, shews that many good laws may subsist even under a tyranny. Aristotle in his Politics says, if any one carry too far the violent proceedings either of the Few or of the People, the commonwealth first becomes vicious, and by going on, becomes non-existent. We will illustrate this by examples.

3 That a person taken prisoner by robbers is not subject to them, we have above quoted from Ulpian. He says also that those who are taken by the Germans do lose their liberty. Yet among the Germans, robberies which were exercised out of the boundaries of each state were subject to no infamy; which are the words of Cæsar. Tacitus says of the Venedi, Inthe woody and mountainous region which, occupies the whole space between the Peucini and the Fenni, they drive their booty freely. The same writer elsewhere says that the Catti, a noble people of Germany, practise plunder. The same author calls the Garamantes a nation habituated to plunder, but still a nation. The Illyrians were accustomed to plunder at sea without distinction: yet a triumph over them was celebrated, as over an hostile nation; though Pompey had no triumph for conquering the Pirates. So great is the distinction between a people, though wicked, and those who, not being a people, associate for the sake of crime.

III. But a transition may take place from one condition to the other; not only in individuals, as Jephtha, Arsaces, Viriatus, from being leaders of bands of robbers, became regular rulers; but also in 318societies, so that they who had been only robbers, embracing another mode of life, become a state. Augustine, speaking of bands of robbers, says, If this evil, by the accession of bad men, grows to such a height that they keep possession of their ground, establish a seat of residence, occupy cities, subjugate peoples, it assumes the name of a kingdom.

IV. Who have sovereign authority, we have discussed above: from whence it may be understood that if any have it partially only, they may, so far as that part goes, carry on a just war: and much more they who are not subjects, but bound by an unequal league; as under the Romans, we learn that the Volsci, Latins, Spaniards, Carthaginians, though inferior in the federation, all maintained just wars.

V. But that a war may be just in this sense, it is not sufficient that it be carried on between the supreme authorities on each side; but it is requisite also, as already said, that it be publicly decreed; and in such manner publicly decreed, that signification of that fact is made by the one party to the other, as Ennius [Cicero, J. B.] speaks of promulgated wars. So Cicero, in his Offices, says that by the Fecial Law, no war was just except one preceded by a demand for redress, or by a declaration of war. So in Isidore. So Livy: and where he narrates that the Acarnanians wasted Attica, he adds, This was the first irritation of the minds of the parties; afterwards a just war was decreed and declared by the states.

VI. 1 In order to understand these passages concerning the declaration of war, we must distinguish what is done by Natural Law, and what is, by nature, not due, but only decent: what by the Law of Nations is required for the jural effects of that Law, and what, besides, follows from the peculiar institutions of certain peoples.

By Natural Law, when either violence is to be resisted, or punishment is to be exacted from an offender, no declaration is required. This is what Sthenelaidas the Ephor says in Thucydides: We have not to wrangle in words and pleadings, being wronged in more than words. And Latinus in Dionysius: He who begins a war may be repelled by the sufferer. So Elian from Plato. Hence Dio Chrysostom says that most wars are begun without declaration of war. And on the same ground Livy objects to Menippus, the prefect of Antiochus, that he had slain certain Romans, war being neither declared, nor so far existing, that they had heard of swords drawn and blood shod; thus showing that either of these two cases would have sufficed for the defense of the act. Nor is declaration of war any more necessary, if the owner attempts to lay hands upon his own property.

2 But whenever one thing is taken as security for another, or the property of the debtor is seized for the debt, and still more, if any one sets about taking the property of those who are subjects of the debtor, a formal demand is requisite, by which it may appear, that in no other way can we obtain our property or our debt. For this right of so taking is not a primary right, but a secondary and substitutive right, as we have elsewhere explained. And in like man319ner, before he who has the supreme power can be attacked for the debt or delict of his subject, there ought to be interposed a formal demand which may put him in the wrong, so that he may be either supposed to be the author of a damage, or to have himself committed a delict according to the principles already laid down.

3 And even when Natural Law does not require such a formal demand to be made, yet it is decent and laudable that it be interposed; in order, for instance, to avoid offense, or to give room for making atonement for the delict by repentance and satisfaction, as we have said in speaking of the ways of avoiding war; so that extremes are not to be tried in the first place. And to the same purpose is the precept which God gave the Hebrews, that before besieging a city they should invite it to make peace. This command, however, was specially given to the Hebrew people, and therefore is wrongly by some confounded with the Law of Nations. Cyrus, when he had come into the country of the Armenians, before he did any harm to any one, sent persons to the king to ask for the appointed tribute and soldiers; thinking that more humane than to march upon him without notice, as Xenophon says in the Cyropædia. But by the Law of Nations, a declaration of war is requisite in all cases to give occasion for these peculiar effects; not on both sides, but on one.

VII. 1 But such a declaration is either conditional or pure; conditional, when it is conjoined with a demand for the restoration of the things in question. But under the demand of restoration of things, the Fecial Law comprehended not only demands by the right of ownership, but also the promotion of anything which was due for civil claims or criminal acts; as Servius rightly explains. Hence the formula requiring that the things be restored, satisfied, given up: where given up, as we have elsewhere explained, is to be understood that the persons summoned may be allowed to prefer themselves punishing the guilty person. This demand was called clarigation, as Pliny testifies. We have in Livy a conditional declaration: that this injury, except it were remedied by those who had done it, they themselves would repel: and in Tacitus, except they exact punishment of the offenders, he would make a promiscuous slaughter. And in the same way in the Supplices of Euripides; and Statius in his narration of the same matter in the Thebais. Polybius calls this demanding satisfaction; the old Romans, condicere.

A pure declaration is what is especially called indictio.

2 But a conditional declaration is [often] followed by a pure declaration, though this is not necessary, but is done ex superabundanti. And the formulas are given, accusing the enemy of injustice. But that in this case, as we have said, such declaration is not necessary, appears from this, that it might be made to the nearest town occupied by troops, as the Feciales announced, when they were consulted about the case of Philip of Macedon, and afterwards of Antiochus, since the first declaration of war was to be made by him who 320was attacked. In the war with Pyrrhus, the declaration was made to one of the soldiers of Pyrrhus, and this was done in the circus of Flaminius, when the soldier was compelled formally to purchase his place in order to be a party to the cause, as Servius relates on the ninth book of the Æneid.

3 That the formality is unnecessary, is also proved by this, that war is often declared on both aides, as the Peloponnesian war by the Corcyreans and Corinthians, though it was sufficient that it should be declared on one side only.

VIII. There are some things which belong to the institutions of certain nations, not to the Law of Nations in general; as the Caduceus, or Herald’s rod among the Greeks; the sagmina (sacred herbs,) and bloody spear, among the Equicolæ at first, and the adoption of this by the Romans; the renunciation of friendship and alliance, if any had existed; the thirty appointed days after the demand of restitution; the sending of the spear a second time; and other observances of the same kind, which are not to be confounded with things which belong to the Law of Nations in general. For Arnobius informs us that the greater part of those things had ceased to be practised in his time; and even in the age of Varro some were omitted. The third Punic war was declared and commenced at the same time. And Mæcenas in Dio holds that some of these belong especially to a popular state.

IX. A war declared against him who has the supreme authority in a people is conceived as declared, at the same time, not only against all who are his subjects, but also against all who join themselves to him, as accessories to him; and this is what the [feudal] jurists say, that he who defies the prince defies his adherents; for to declare war they call to defy. This is to be understood of that especial war which is carried on against the person mentioned in the declaration: thus when war had been declared against Antiochus, it was not thought proper to declare it against the Etolians separately, because they openly joined Antiochus; the Feciales answered that the Etolians had of themselves declared war against themselves.

X. But if, when that war is over, a people or a king are to be attacked on account of aid supplied, then, in order to obtain the effects of the Law of Nations, there is need for a new declaration of war. And therefore it was rightly said that those were not just wars according to the Law of Nations, which Manlius carried on against the Gallo-Grecians, or Cæsar against Ariovistus: for they were then attacked, not as accessories in another’s wars, but as principals; and to this effect, by the Law of Nations, a declaration of war was required, and by the constitution of Rome, a new edict of the people. For what had been said in the decree against Antiochus: Do you decree that war should take place with Antiochus and his followers? which form was also used with regard to Perseus, seems to require to be understood, as long as the war with Antiochus or with Perseus continued, and with regard to those who really joined in the war.

321 XI. The cause why nations require a declaration of war for that kind of war which we call just by the Law of Nations, is not that given by some, that nothing may be done clandestinely or fraudulently; for that is a matter rather of bold frankness than of right; as some nations are related to have announced beforehand the day and place of battle: but that it might be clearly known that the war was undertaken, not as a venture of private persons, but by the will of the two peoples, or their heads: for from this public character arise peculiar effects, which do not take place either in a war carried on against pirates, or in one which a king makes against his subjects. And so Seneca speaks with a distinction, of war declared against neighbours, or carried on against our own citizens.

XII. For what some remark, and illustrate by examples, that even in such wars, what is captured becomes the property of the captors, is true, but on one side only, and that by Natural Law, not by the instituted Law of Nations; since that regards only nations and their dealings with nations, not those who are without nation, or are only part of a nation. They err in this, that they think that a war undertaken for the purpose of defending one’s self or one’s property, does not need to be preceded by a declaration of war; for it by all means needs such an introduction: not indeed simply, but for the sake of leading to the effects we have already partly explained, and shall explain further.

XIII. Nor is it true even that a war may not be begun immediately after it has been declared: which Cyrus did in Armenia, and the Romans towards the Carthaginians, as we have already said. For a declaration of war does not, by the Law of Nations, require any definite time after it. But it may be requisite that, by Natural Law, some time may be required, in consequence of the quality of the business: as for instance, if property is required to be restored, or criminals to be punished, and this is not refused. For then, so much time is to be given as may conveniently suffice for doing what is asked.

XIV. But even if the rights of legation be violated, it does not follow that a declaration of war is not needed for the effects to which I refer: but it is sufficient if it be made in such way as it may safely be made, that is, by letter: as also it is usual to make summonses and denunciations in unsafe places.