“Holding in one hand the branches
Suppliant, wreathed with white wool fillets.”
[336] Also, “Joannis Meursii Themis Athica, sive de Legibus Alticis,” i. xi. says, “Postquam vero exercitus eductus esset pugnam inire, non licebat antiquam emissum agmen hostium quis, hunc expectans accepisset.”
[337] This has something in common with the fiery cross sent round by the Highlanders as the summons to war. In another aspect it has resemblances with the Indian mode of declaration of war. “The manner in which the Indians declare war against each other is by sending a slave with a hatchet, the handle of which is painted red, to the nation which they intend to break with; and the messenger, notwithstanding the danger to which he is exposed from the sudden fury of those whom he thus sets at defiance, executes his commission with great fidelity.”—Carver’s “Travels in North America,” p. 307.
[338] That there may be limitations to the horrors of war, seems to be established by the instance of the prohibition of explosive bullets. I read in the Times (March 11, 1871):—“The British Medical Journal declares its opinion that the charges which have been put forward of explosive bullets having been used by the contending armies have been groundless; and is inclined to believe that the articles of the St Petersburg Convention have been faithfully adhered to, notwithstanding the mutual recriminations to the contrary by both French and German Governments.”
[339] Indirect evidence of the importance formerly attached to the declaration of war may, I think, be discovered in the formal addresses and invocations of the gods by the Homeric heroes previous to combat, which to us seem so forced and unnatural; and the same sentiment was noticed by the Spaniards, when they first came over, among the Peruvians, who did not neglect the punctilio of the declaration of war even in their most high-handed aggressions, e.g. Garcilasso de la Vega (Hakluyt Soc. ed. ii. 141) says—“The invaders sent the usual summons that the people might not be able to allege afterwards that they had been taken unawares.”
[340] Carver (“Travels in North America,” p. 301) says of the Indians—“Sometimes private chiefs make excursions.... These irregular sallies, however, are not always approved of by the elder chiefs, though they are often obliged to connive at them.... But when war is national, and undertaken by the community, their deliberations are formal and slow. The elders assemble in council, to which all the head warriors and young men are admitted, when they deliver their opinions in solemn speeches; weighing with maturity the nature of the enterprise they are about to engage in, and balancing with great sagacity the advantages or inconveniences that will arise from it. Their priests are also consulted on the subject, and even sometimes the advice of the most intelligent of their women is asked. If the determination be for war they prepare for it with much ceremony.”
[341] “In ancient times war was solemnly declared either by certain fixed ceremonies or by the announcement of heralds; and a war commenced without such declaration was regarded as informal and irregular, and contrary to the usages of nations. Grotius says that a declaration of war is not necessary by the law of nations—“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 usages of nations. 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 (De Jure Belli, c. ii. § i.); but the Greeks do not seem to have been at all regular in the observance of the custom (Bynkershock, Quæs. Jur. Pub., l. i. c. ii.) 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 (Ward, Introd. ii. 206–230). With the decline of chivalry this custom fell into disuse. Gustavus Adolphus invaded Germany without any declaration of war (Zouch, De Judicio inter Gentes, P. ii. § x. 1); 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 time, 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.’ Formal denunciations of war by heralds were discontinued about the time of Grotius; the last instance having been, according to Voltaire, when Louis XIII. sent a herald to Brussels to declare war against Spain in 1635.”—W. Oke Manning’s Commentaries on Law of Nations.
[342] “Looking back on the history of the autumn ... we may yet be impressed by the conviction that, had the union of the European family of nations been strengthened as it might have been before the war broke out, it might never have been begun, or would have long since terminated. The Treaty of Paris put on record a declaration in favour of arbitration, but it proved to be worthless when sought to be applied.”—Times, Feb. 15, 1871. I shall have a word to say presently on the declaration of the Treaty of Paris.
[343] It must not be forgotten, however, that it was the revolution in Paris which gave this war its abnormal character, and created situations for which the law of nations had no precedents, or precedents only which were of doubtful application.