I venture further to think that the traditionary modes of the declaration of war may be detected among the Gauls in Cæsar’s time, in the manner of their challenge. E.g. it so came about that Cæsar wished to draw the enemy (the Nervii) to his side of the valley and to engage them at a disadvantage before his camp. To this end he simulated fear. “Our men meanwhile retiring from the rampart, they approached still nearer, cast their darts on all sides within the trenches and sent heralds round the camp to proclaim,” &c. (Duncan’s Cæsar, B. v. xlii.)
We will now turn to the Greek tradition. I quote from an old author who has examined the matter more fully than I find it treated elsewhere. Rous. (“Archæologiæ Atticæ,” lib. 6, s. 3, civ.) says:—“As careful and cunning as they were in warlike affairs, I cannot find but that they did ‘propere signi quæ piget inchoare,’ bear a great affection to peace; as may appear in their honourable receiving of ambassadors, to whom they gave hearing in no worse place than a temple.... The usual ensign carried by Greek ambassadours was κηρυκεον, caduceus,[335] a right staff of wood with snakes twisted about it and looking one another in the face.... If the peace could not be kept, but they must needs have war, yet they would be sure to give warning and fair play, and make proclamations of their intentions before they marcht. The manner in proclaiming war was to send a fellow of purpose either to cast a spear or let loose a lamb into the borders of the country, or into the city itself whither they were marching (which Hesychius rather thinks to have been the signal before a battel), thereby showing them, that what was then a habitation for men, should shortly be a pasture for sheep.”[336] I should rather have thought that it had analogy with the Jewish scapegoat; but, whatever the idea, it was apparently symbolled and commemorated in the woollen veil prescribed to the Roman pontiff in the declaration of war. It would seem, however, that the signal for battle ([chap. v.]) was “instead of sounding a trumpet, they had fellows whom they called πυρφορους, that went before with torches, and throwing them down in the midst between the two armies, gave the sign.... Now, this business they might do safely and without any danger, ... for the torch-bearers were peculiarly protected by Mars, and accounted sacred.”[337]
The sense of national responsibility in war, and the reluctance of kings to involve themselves without the consent of their people would appear from Œschylos’ “Supplicants” (v. 393, 363).
I have referred ([p. 326]) to the Peruvian traditions of Manco Capac’s laws of war, and that “in every stage of the war the Peruvian was open to propositions for peace.”
From the Hindoo tradition, apparently, Manu’s code was conceived in an identical spirit. (Vide “Hist. of India,” “The Hindu and Mahometan Periods,” by the Hon. Mountstuart Elphinstone; Murray, 1866, ch. ii. p. 26.) “The laws of war (Manu’s code) are honourable and humane. Poisoned arrows and mischievously barbed arrows and fire arrows are all prohibited.” [Dr Hooker, in his “Himalayan Journal,” mentions a similar tradition among the Limboos, I think, or Lepchas.[338]] “There are many situations in which it is by no means allowable to destroy the enemy. Among those who must always be spared are unarmed or wounded men, and those who have broken their weapons, and one who says, ‘I am thy captive.’ Other prohibitions are still more generous.... The settlement of a conquered country is conducted on equally liberal principles. Immediate security is to be assured to all by proclamation. The religion and laws of the country are to be maintained and respected.” And I have fancied (vide [395]) that the recognition at least of such a tradition, if it be only the “homage which vice pays to virtue,” is to be read in the devices carried by the Babylonians.[339]
There was, moreover, a law at Athens which forbade them to declare war until after a deliberation of three days—“Bellum vero antequam decerneretur, triduo deliberare lex jubebat” (Apsines, Marcell. in Hermog. ap. J. Meursii Them. Att., l. i. c. xi.); and we have seen that the Senate at Rome postponed the declaration of war for thirty days. I cannot help thinking, though it is the merest surmise, that it is in the dim recollection of some such tradition that we must account for the meaningless and superstitious delays which we occasionally read of in the warfare of barbarous nations; e.g. Cæsar (De Bello Gallico, i. xl. c.) had drawn up his troops and offered the enemy battle, but Ariovistus thought proper to sound a retreat. “Cæsar inquiring of the prisoners why Ariovistus so obstinately refused an engagement, found that it was the custom among the Germans for the women to decide by lots and divination when it was proper to decide a battle; and that these had declared the army would not be victorious if they fought before the new moon.”[340] [There was also a law at Athens that it was not lawful to lead forth an army before the seventh day of the month. “Vetitum Athenis erat, exercitum educere ante diem septimum.”] J. Muersii, id.
I have discussed the ancient mode of declaration of war at some length as an instance of tradition. There are some, I am afraid, to whom the discussion will appear ineffably trifling; and I may even be misconstrued to say that everything would be set right in Europe, if only a herald were sent in proper form to declare war. There are men of a certain cast of mind to whom forms are repugnant; there are others to whom they are unintelligible. It has been observed, however, that the rejection of forms is one thing, the neglect of them another. The rejection of forms may be, on some principle, good, though misapplied, often does unconscious homage when it means to spurn, and may be compensated for in other ways. The neglect of them is simply evidence of laxity. Cromwell perfectly well knew the divinity which attached to forms when he said, “Take away that bauble;” and, on the other hand, no one better than he would have judged the state of an army (not his own) in which he was told that it was the custom of soldiers not to salute their officers. The declaration of war without any solemnity, still more the commencement of hostilities without any declaration at all,[341] seems to me closely analogous—as a sign of disorganisation—to the absence of any form of salute at a parade. I am far from contending that old forms, when they have become obsolete, can be resuscitated; but I do contend for the resuscitation of ancient maxims and ideas. In any age fully imbued with the responsibility of war, in which it was considered unseemly to declare it until after a three days’ deliberation in solemn conclave, and which even then protracted the declaration till the seventh or the thirtieth day, would it have been possible for two great nations to have gone to war because there had been “a breach of etiquette,” if indeed there was a breach of etiquette, “at a German watering-place?”[342] Allowing that this was merely the ostensible pretext, and that the real grounds remained behind—if these long deliberations had been necessarily interposed, would there not have been a thousand chances in favour of such a European intervention as saved the peace of Europe three years before in the affair of Luxembourg? Yet, so far as we know at present, the following is the history of the commencement of the most horrible, the most destructive, and the most barbarous war[343] of modern times.
“A private letter from Paris relates that the Duc de Grammont, who has taken to spend his evenings at the Jockey Club, was lately asked there, ‘How he came to blunder into such a fatal war?’[344] He replied, ‘I asked the Minister of War, Lebœuf, if he was ready, and he answered, “Ready! ay, and doubly ready;” otherwise,’ added the Duc, ‘I should have taken care not to have counselled a war which there were twenty modes of averting.’”—Times, Sept. 1, 1870.[345]
The extent of the disorganisation and the laxity into which we have fallen, appears perhaps as strikingly as in any anything else in the frequency of the complaints of the little regard paid to “parlémentaires” and officers bearing flags of truce. But what startles us more than all is the light manner in which this transgression of the law of nations is referred to even by the parties aggrieved.
I will here place two extracts which I have made in juxtaposition:—