The Rights of War and Peace

by Hugo Grotius

To repel force, or to punish a delinquent, the law of nature requires no declaration. And, as Thucydides relates, Sthenelaidas, one of the Ephori, maintains that "where we have been injured, not by WORDS, but by ACTIONS, the matter cannot be decided by WORDS and FORMS." And Aelian, after Plato, observes that it is not the declaration of the Herald, but the voice and law of nature, which proclaim war, undertaken to repel force. Hence Dion Chrysostom, in addressing the Nicomedians, says that many wars are begun without any declaration.

Upon the same ground Livy condemns the conduct of Menippus, a general belonging to Antiochus for having killed some Roman citizens before any declaration of war had been made, or even before a sword had been drawn, or a drop of blood spilt, to shew that hostilities were intended. By this objection he proves that either a formal declaration, or some act indicative of hostilities was deemed requisite to justify actual warfare.

Neither, if we follow the law of nature, is there any more occasion for notice or declaration, where an owner intends to lay hands upon HIS OWN PROPERTY. But whenever one thing is taken in return for another, or the property of a debtor is seized for the recovery of a debt, and, especially, if any one intends seizing the property of those, who are subjects to the debtor, a formal demand must be made, as a proof that recourse to such security is the only means left of obtaining redress and satisfaction. Such a demand is necessary because that is not a PRIMARY and ORIGINAL right, but a SECONDARY right, SUBSTITUTED in the place of the primary and original, by the artificial rules of civil law.

In the same manner to justify an attack upon a sovereign power for the aggressions and debts of its subjects, a previous remonstrance, and a proper demand of justice must be made to that power. For it is only by refusing to punish the guilty, or to grant indemnity to the injured, that states or sovereigns can be implicated in the misconduct of their subjects.[60] But even where the law of nature does not directly prescribe that such a remonstrance or demand should be made, yet the common principles of humanity and equity will recommend the[61] use of any means, that may prevent recourse to the calamities of war. The commandment given by God to the Hebrews, to send a message of peace to any state or city, before they began an intended attack, was designed as a special command to that people, yet some have confounded it with the general law of nations. For it was not ANY kind of peace that was meant by that injunction, but only such a peace as imposed terms of SUBJECTION and TRIBUTE. We are informed by Xenophon, that when Cyrus went into the country of the Armenians, he sent messengers to the king, to demand the tribute and number of troops, which had been stipulated by treaty.

But to obtain the peculiar rights and consequences resulting from the law of nations, a declaration of war by one of the parties, at least, if not by both, is absolutely requisite in all cases.

VII. Those declarations are either conditional or absolute. A conditional declaration is that which is coupled with a demand of restitution or redress. Under the name of restitution, the Fecial Law of Rome, that is the Law respecting declarations of war, comprehended not only the claims, which OWNERSHIP established, but the prosecution of EVERY right arising from criminal or civil causes.

Hence the declarations were couched in terms, requiring restoration, satisfaction, or surrender. Here, by the term, surrender, the party appealed to is understood to have the option either of punishing the offender, himself, or delivering him up to the aggrieved person. This manner of demanding restitution is, according to the testimony of Pliny, called CLARIGATION, that is, a LOUD and FORMAL DEMAND. Livy gives us an example of a conditional and qualified declaration, wherein the aggrieved power denounces "a determined resolution to prosecute her rights with the utmost violence, if the aggressor will not make reparation and atonement for the injury he has done." Tacitus also relates the substance of a dispatch sent to Caecina by Germanicus, wherein he declares, that "if the ringleaders of the mutinous and rebellious legions are not immediately punished, he will advance with his army, and put the whole to the sword."

An ABSOLUTE declaration of war is issued, where any power has already begun hostilities, or committed acts which call for exemplary punishment. Sometimes indeed a conditional, is followed by an absolute war, though in such a case the latter is not actually necessary, but only a confirmation of the former. This gave rise to the form, which says, "an appeal is hereby made against such a people, as unjust and refusing to grant redress." There is another form also purporting, that "the principal herald of the Roman citizens has made known to the principal herald of the ancient Latins, and to the Latin people, that redress is demanded of them by just and lawful war, on account of all the disputes which they have refused to settle, and the indemnities which they have been bound to grant, and have refused; and that this is the only means remaining to recover all that has been unjustly detained." There is also a third mode of declaration, which runs in the following tenour; "Since the ancient people of the Latins have committed aggressions against the people of Rome, the people of Rome, with the advice and consent of the senate, declare war against them, and in the name of the senate and people of Rome their purpose is thus published."

But that in case of RENEWED wars such a declaration is not absolutely necessary, appears from the circumstance of its being made in due form at the nearest garrison, and not PERSONALLY to the offender himself, according to the answer given by the heralds, when they were consulted in the case of Philip of Macedon, and afterwards respecting Antiochus. Whereas a declaration for the FIRST time should be made to the enemy himself. Indeed in the war against Pyrrhus the declaration was made to one of his soldiers, in the Flaminian Circus, where, as Servius observes in his notes on the sixth book of the Aeneid, he was commanded to purchase a piece of ground, as a handle for dispute. A proof also that IN SOME CASES a declaration is superfluous may be taken from the circumstance that war is frequently declared by BOTH SIDES, which was done by the Corcyraeans and Corinthians in the Peloponnesian war, though a declaration by one of the parties would have been sufficient.

VIII. As to the use of the caduceum, or staff with the figure of two snakes twisted around it, which ambassadors carried, when they sued for peace, it was a ceremony peculiar to the Greeks, and not derived from the GENERAL law of nations. The Romans in the same manner had particular customs, such as using vervain in forming alliances, throwing a bloody spear, as a declaration of war, renouncing all former friendship and alliance at the expiration of thirty days, after satisfaction had been demanded and refused, and again throwing another spear. None of these PECULIAR customs ought to be confounded with the GENERAL law of nations. For Arnobius informs us, that in his time many of them had fallen into disuse, and even in the time of Varro some of them were omitted. The third Punic war indeed was not declared till the moment of its actual commencement.