Lawful recourse to War. vivatur." It is the paramount duty of every independent political community to protect its members from suffering wrong, either at the hands of other members of the same community, or at the hands of members of other communities; and as it is a maxim of political law that no citizen can stand aloof and claim to be neutrarum partium in cases of civil tumult, so it is, by parity of reasoning, an axiom of international law, that no member of an independent political community can be at peace with any member of another independent political community, when the communities themselves are For an individual citizen to stand aloof, when the united force of all the members of a political community is to be put forth against the members of another political community, would be to betray a primary duty of Civil Society, which is constituted after the fashion of a State, with the express design of the Sovereign Power enforcing the co-operation of all its subjects, at the proper times and places, in the business of mutual assistance and mutual defence. at war. § 29. An appeal to the united force of all the members of a political community to procure Right to be done to one of its members on the part of a member of another political community, in other words a recourse to War, becomes lawful only when it becomes necessary 10, and it becomes necessary only when amicable negotiation has been tried and failed, or when it is morally certain to fail, if it should be tried, or when it cannot be tried without certain danger. According to the Fetial Law of the Romans no war was just which had not been preceded either 9 Cic. Off. L. I. c. II. 19 Justum est bellum quibus necessarium, et pia arma, quibus nulla nisi in armis relinquitur spes. Livii Hist. L. IX. c. 1. A by a formal demand of redress, or by declaration and proclamation of war. "Ex quo intelligi potest, nullum bellum esse justum, nisi quod aut rebus repetitis geratur, aut denuntiatum ante sit et indictum"." Nation may with good cause have recourse to war, either to procure reparation for injury done, or to obtain security against injury threatened; in other words, a Nation may lawfully make war upon another Nation, which has violated or threatened to violate its rights. But if a Nation takes up arms, when she has not received any injury nor is menaced with any injury, she has recourse to force without lawful cause. When an injury has been inflicted upon a Nation, it is right that reparation should be made to it, if the injury be of a nature to be repaired, or in case that the mischief resulting from it be irreparable, then that compensation should be made, and further that securities should be taken by the Nation, that the injury should not be repeated. Again, if an injury should be threatened, it is right that a Nation should protect itself and take securities for its future safety. Hence arises a distinction between wars which are made to redress injury, and wars which are undertaken to prevent injury. When war is undertaken to enforce the reparation of an injury, and to exact satisfaction for it, it is termed an offensive war; when it is undertaken to repel actual or threatened attack, it is called a defensive war. The latter, however, is not necessarily a just war; for if a Nation, which wages an offensive war, has justice on its side, its adversary has no right to make forcible opposition; and a defensive war will be in such a case an unjust war, for it is an act of injustice to resist any person, who is asserting a lawful 11 Cic. Off. L. I. c. II. Offensive and defen Vattel. right. But if the Nation, which has been originally in the wrong, offers to make restitution or reasonable satisfaction, and the other Nation is not content to accept it, the balance of right will incline in favour of the Nation which has offered satisfaction, and a defensive war on its part will be a just war. 66 30. The distinction between an offensive and a sive War. defensive war in the sense in which these terms are employed by Wolff and Vattel, is not unimportant in its bearings upon the question, whether a Nation may have recourse to arms in the prosecution of Right against another Nation without previous notice. War," says Vattel 13, "is either offensive or defensive. The Power, which takes up arms to repel the attack of an enemy, carries on a defensive war; the Power, which is first to take up arms and attack a Nation which is living at peace with it, wages an offensive war. The object of a defensive war is simple; it is self-defence. The object of an offensive war varies with the various affairs of Nations, but in general it has regard either to the prosecution of right, or to security. In the case of a defensive war, when a Nation takes up arms to repel attack, the reason of the thing dispenses with any previous notice." "By the Law of Nature," writes Grotius, "where either force is repelled by force, or punishment is inflicted upon him who is the offender, there no denunciation is required." It is otherwise, however, in the case of an offensive war. "But as often," continues Grotius, "as one thing is to be taken for another, or the goods of a debtor to be seized for a debt, a formal demand is requisite, and still more Grotius. 12 Klüber, § 235, founds his distinction between a defensive and an offensive war on the circumstance of its justice or injustice. 13 Droit des Gens, L. III. C. I. § 5. Wolff. Jus Gentium, $ 615. when the goods of those who are the subjects of the debtor are to be seized; so that it may be evident that we can obtain our own, or what is due to us, in no other way14" For this right of so seizing is not a primary right, but a secondary and substitutive right. And in like manner before he, who has the supreme Power, be attacked for the debts or offences of his subjects, there ought to be interposed a formal demand which may put him in the wrong, so that he may be rightly deemed to be the cause of the damage, or to be responsible for it." In all such cases, in order to work the peculiar effects, which are legally incidental to a State of War, a declaration is required, if not on both sides, at least on one side, as a preliminary to actual hostilities15. The practice of Nations appears to have been in accordance with the views of Grotius as late as the middle of the seventeenth century. Declaration § 31. The formal mode of declaring war, as estab- Formal lished in Europe in the twelfth century, was by of War. Letters 16 of Defiance, under the Seal of the Sovereign Power who declared war, and which were delivered by a messenger17 into the hands of the Sovereign Power against whom war was declared. The practice of declaring war by heralds and pursuivants-atarms, which prevailed in the fifteenth and sixteenth centuries, has been considered by some writers 18 to have had its origin in the magnanimity of Knightly Honour, rather than in consideration of Order and Right, and to be one of the instances of the improvement, which the Law of Nations derived from the institutions of Chivalry. It seems, however, probable, that the custom itself of formally declaring war, as a preliminary step before recourse could be had to actual hostilities, did not originate in any voluntary impulse of high chivalric feeling, but was either a tradition of the ancient Fetial Law of the Romans, which survived the fusion of Roman and Barbaric institutions, or was founded on an institution of the early Germanic tribes1, and had acquired the character of Law throughout the Germanic Empire of the Romans in the time of the Emperor Frederic Barbarossa. (Anno 1152-1190.) The Peace of the Empire (Land-Friede), which was established by a constitution of that Emperor, made in the Diet of Nurnberg (anno 1187), reserved to every one the right to do justice to himself, provided only that he gave three days' notice to his Law of the adversary. It was one great object of this constitution Empire in to check the practice of private warfare amongst the Princes of the Germanic Empire, and to modify its Germanic Twelfth Century. was delivered by a valet of the seal pronounced it to be genuine, and made preparations for war. Froissart Chronicles, I. c. 250. 18 Ward on the Law of Nations, Vol. II. p. 207. 19 Turpinus in Carolo Magno, c. 17. Talis erat inter eos institutio, quod, si aliquis treugam datamante diffidentiam frangeret, statim interficeretur. Ducange, vox Diffidare. |