dsages.

The Romans knew nothing of reprisals,* but with great Greek and Roman formality defined and observed the limits between peace and war. The Greeks, however, had usages, similar to this, drawn from their simpler semi-barbarous times. Thus, before war was declared, and after the denial of justice, they gave license to their citizens to take plunder from the offending state on land and sea. There was also a custom prevailing between border states, when a homicide had been committed, and the man-slayer was not given up to the relatives of the deceased, of allowing them to seize and keep in chains three countrymen of the wrong-doer, until satisfaction should be rendered.

Medieval and

The Greeks here present to us two forms of reprisals, the one where the state gives authority to all, or in a public way attempts to obtain justice by force, which is called general, and the other, where power is given to the injured party to right himself by his own means, or special reprisals. The latter has now fallen into disuse, and would be 1egarded as an act of hostility, but with the other was a received method of redress in the middle ages; nor was it strange that a private person, by the leave of his superior, should wage a war of his own, when private wars were a part of the order of things. Mr. Ward (I. 176), and the English historians, mention an instance of reprisals between the English and France in the 13th century, which might seem to pertain to the Dyaks or the Ojibways. In 1292, two sailors, a Norman and an Englishman, having come to blows at Bayonne, the latter stabbed the former, and was not brought before the courts of justice. The Normans applied to Philip the Fair for redress, who answered by bidding them take their own revenge. They put to sea, seized the first English ship they met, and hung up several of the crew at the mast head. The English retaliated without applying to their government, and things arose to such a pitch, that 200 Norman vessels scoured

Osenbrüggen, de jure etc., p. 35. Schömann, Antiq. juris publici, p. 366, and bis Griech. Alterthümer, 2, p. 6. Comp. Bynkershoek, Quæst. J. P. I. 24. The Greeks said, σύλα διδόναι, ῥύσια καταγγέλλειν κατά τινος.

modern usage.

the English seas, hanging all the sailors they caught, while the English, in greater force, destroyed a large part of the Norman ships, and 15,000 men. It was now that the governments interposed, and came at length into a war which stripped the English of nearly all Aquitaine, until it was restored in 1303. Every authority in those times, which could make war, could grant letters of reprisals. But when power began to be more centralized, the sovereign gave to magistrates, governors of provinces and courts the right of issuing them, until at length this right was reserved for the central government alone. In France, Charles VIII., at the instance of the states-general held at Tours, in 1484, first confined this power to the king, for, said the estates, "reprisals ought not to be granted without great deliberation and knowl edge of the case, nor without the formalities of law in such matters required." The ordinance of Louis XIV., on the marine, published in 1681, prescribes the method in which injured persons, after they had shown the extent of their damages received from a foreigner, and after the king's ambassadors had taken the proper steps at the foreign courts, should receive letters of reprisals permitting them to make prizes at sea of property belonging to the subjects of the state which had denied them justice, and having brought their prizes before the court of admiralty, should, in case everything was lawful, be reimbursed to the extent of their injuries. (Note 7.)

Since the end of the 17th century but few examples have occurred of reprisals made in time of peace, and a number of treaties restrict the use of them to the denial or delay of justice.* (Note 8.)

$115.

of war.

Declara

War between independent sovereignties is, and ought to be, an avowed open way of obtaining justice. For Commencement every state has a right to know what its relations tion. are towards those with whom it has been on terms of amity,whether the amity continues or is at an end. It is necessary,

*Ortolan, I. 391-401.

therefore, that some act show in a way not to be mistaken that a new state of things, a state of war, has begun.

practice.

The civilized nations of antiquity generally began war by Greek and Roman a declaration of their purpose so to do. Among the Greeks, a herald, whose person was sacred and inviolate, carried the news of such hostile intent to the enemy, or accompanied an ambassador to whom this business was committed. Only in rare cases, when men's passions were up, was war akýрUKтоs, i. e., such, that no communications by heralds passed between the enemies. Among the Romans, the ceremonies of making known the state of war, were very punctilious. This province belonged to the Fetiales, a college of twenty men, originally patricians, whose first duty was to demand justice, res repetere, literally, to demand back property, an expression derived from the times when the plunder of cattle or other property, was the commonest offence committed by a neighboring state. Three or four of the college, one of their number being pater patratus for the time, and so the prolocutor, passed the bounds of the offending state, and in a solemn formula, several times repeated, demanded back what was due to the Roman people. On failure to obtain justice, there was a delay of three and thirty days, when the pater patratus again made a solemn protestation that justice was withheld. Then the king consulted the senate, and if war was decreed, the pater patratus again visited the hostile border, with a bloody lance, which he threw into the territory, while he formally declared the existence of the war. This custom, which seems to have been an international usage of the states of middle and southern Italy, continued into the earlier times of the republic; but when the theatre of war became more distant, the fetialis, consul, or prætor, contented himself with hurling his lance from a pillar near the temple of Bellona in the direction of the hostile territory, while the declaration of war itself was made by the military commander of the province through an ambassador. It was thus always a principle with the Romans, as Cicero (de offic. I. 11) has it, "nullum bellum esse justum, nisi quod aut rebus repetitis geratur, aut denuntia

tum ante sit et indictum." But the form satisfied them, and they cared little for the spirit.*

So also in the middle ages, war could not be honorably begun without a declaration; but the spirit which Mediæval prac dictated this, seems to have been, as Mr. Ward tice.

remarks, rather a knightly abhorrence of everything underhanded and treacherous, than a desire to prevent the effusion of blood by giving the enemy time to repair his fault. Even in the private warfare which characterized that age, as much as in the duel, a challenge or formal notice to the enemy was necessary. The declaration of war was made by heralds or other messengers: that of Charles V. of France against Edward III., was carried to that king by a common servant, the letter containing it bearing the seals of France. Such formal challenges were sanctioned by law. Thus the public peace of the Emperor Barbarossa, in 1187, contains the clause that an injured party might prosecute his own rights by force, provided he gave to his adversary three days' notice that he intended to make good his claims in open war. And the Golden Bull of the Emperor Charles IV. in 1356, forbids invasions of the territory of others on pretext of a challenge unless the same had been given for three natural days to an adversary in person, or publicly made known before witnesses at his usual place of residence; and this, on pain of infamy, just as if no challenge had been offered.t.

Modern practice.

The modern practice ran for some time in the same direction, but since the middle of the eighteenth century formal declarations have not been extensively made, and are falling into disuse. Instances of the same may be gathered from still earlier times. Thus no declaration preceded the expedition of the grand Armada in 1588, --before which indeed a state of hostilities existed in fact,and the war between England and Holland, in 1664, began with an act of the English Council, authorizing general repri

* For the Greeks, see Schömann, u. s. For the Romans, Osenbrüggen, pp. 27– 84, Bekker-Marquardt, Röm. Alterthüm. IV. 380–388.

+ Ward, II. 123, seq.

sals, which became a full-blown war without any declaration. Thus also the war of Orleans, so called, was begun by Louis XIV. in 1688, before he issued his manifests; in the war of the Austrian succession the battle of Dettingen had been fought before the French declared war against Great Britain and Austria; and in the seven years' war hostilities began on this continent between England and France two years before the parties to this important war made their declarations.*

Reasons for the modern usage.

This disuse of declarations does not grow out of an intention to take the enemy at unawares, which would imply an extreme degradation of moral principle, but out of the publicity and circulation of intelligence peculiar to modern times. States have now resident ambassadors within each other's bounds, who are accurately informed in regard to the probabilities of war, and can forewarn their countrymen. War is for the most part the end of a long thread of negotiations, and can be generally foreseen. Intentions, also, can be judged of from the preparations which are on foot, and nations have a right to demand of one another what is the meaning of unusual armaments. It is, also, tolerably certain that nations, if they intend to act insidiously, will not expose their own subjects in every quarter of the globe to the embarrassments of a sudden and unexpected war. And yet the modern practice has its evils, so that one cannot help wishing back the more honorable usage of feudal times. (Note 9.)

This rule, be it observed, of declaring war beforehand, so long as it was thought obligatory, only bound the assailant. The invaded or defensive state accepted the state of war as a fact, without the formalities of a declaration.

What notice of a

& 116.

But if a declaration of war is no longer necessary, a state which enters into war is still bound (1.) to indistate of war ought cate in some way, to the party with whom it has a difficulty, its altered feelings and relations. This is done by sending away its ambassador, by a state of

to be given?

*Comp. Bynkersh. Quæst. J. P. I. 2, and among modern systematists Phillimore III. 75-102.