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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 way 14" 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 hostilities 15. 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 messenger" into the hands of the Sovereign

14 Naturali jure, ubi aut vis illata arcetur, aut ab eo ipso qui deliquit pœna deposcitur, nulla requiritur denuntiatio. At quoties pro re unâ res alia, aut pro debito res debitoris invaditur, multoque magis si res eorum, qui debitori subditi sunt, occupare quis velit, interpellatio requiritur, quâ constet alio modo fieri nequire, ut nostrum aut nobis debitum consequamur. De Jure B. et. P. L. III. c. 3. § vi. 1 & 2.

15 Cæterum jure Gentium ad effectus illos peculiares omnibus casibus requiritur denuntiatio,

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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
French King's household into the
hands of the English King, in his
Council Chamber. The latter
expressed surprise at so mean a
messenger being the bearer of
the letter; saying that it ought
to have been sent "by a prelate,
or a valiant baron, or knight,"
and at first doubted its genuine-
ness; but after examining 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 datam ante diffidentiam frangeret, statim interficeretur. Ducange, vox Diffidare.

The same

evils by regulating its commencement. Emperor had been powerful enough to abrogate the right of private warfare altogether amongst the cities and nobles of the Kingdom of Italy at the Diet of Roncaglia (anno 1158), and he was so firmly resolved 20 to uphold the practice of giving notice to an adversary before commencing war, as essential to good faith, that he sent a messenger to Saladin the Great to demand satisfaction from him for the injuries which he had inflicted on the Christian community, and in case of refusal to declare war formally against him. We find the rule of giving three days' notice of intended hostilities maintained in a still more peremptory manner in the thirteenth century by the Golden Bull21 of the Emperor Charles IV, (anno 1356,) which regulated the manner of commencing war amongst the German Princes, and which provided that no one should on any pre- Law of Eutext invade his neighbour, unless he had given Fourteenth him three days' personal notice beforehand, or had Century. publicly signified his intention to make war against him at the place of his usual residence in the presence of competent witnesses. From these and other instances, which occur in French and Spanish Annals 22, there can be no doubt that in the fourteenth century it was the established Law of Europe, that an offensive war could not be rightfully commenced without a previous declaration of hostilities.

20 Et quia imperialis majestas neminem citra defectionem impetit, sed hostibus suis bella semper indicit, destinatus ab Imperatore ad Saladinum nuntius, ut vel Christianorum universitati, quam læsit, satisfaciat in plenum, vel diffiduciatus se præparet ad bellum. Auctor. Hist. Hierosolym, anno 1177.

21 C. 18. De Diffidationibus.

22 Diffidamento non præcedente legitimo et forali, regulariter nullus potest in Arragonia alium damnificare, capere, aut occidere, vel castrum ejus per vim et forciam occupare: alias incurrit pœnam traditionis. Mich. del Molino, Repertorium.

rope in the

§ 32. The primary object of a formal Declaration of War was to notify to a party the intention of his adversary to prosecute his right by force 23. But after war came to be exclusively a trial of Right between. Nations, in which Sovereign Princes alone could take the initiative, and in which the whole body of their subjects was bound to array itself in arms against the adverse Nation, it became necessary for Sovereign Princes to notify by a Proclamation to their subjects the cessation of peace, and the existence of a state of war with all its legal consequences. The form and manner of declaring war abroad, as well as of proclaiming war at home, was, no doubt, influenced in some degree by the institutions of Chivalry; and the Herald of the middle ages came to discharge functions analogous to those, which were assigned to the Fetial of Ancient Rome, as the messenger of peace and war. We find Declaration accordingly that the most solemn mode of declaring Heralds-at- war in the fifteenth and sixteenth centuries was by a herald-at-arms. Thus Garter King-of-Arms was sent by King Edward IV to Louis XI of France with a letter written in such fine language and style, that, according to Philippe de Commines, it could not have been written by an English hand24. The Registers of the Heralds' College in London contain numerous entries of similar missions on the part of Garter, or Clarencieux, or Norroy King-ofArms. The functions of the Herald, however, were Proclama- not confined to the business of declaring war abroad. The commencement of war was generally proclaimed

of War by

Arms.

tion of War at home.

23 Sed ut justum hoc significatu bellum sit, non sufficit inter summas utrinque potestates geri; sed oportet, ut audivimus, ut et publice decretum sit et quidem ita decretum publice, ut ejus rei

significatio ab altera partium alteri facta sit. Grotius, L. III. c. 3. § 5.

24 Memoires of Philippe de Commines, L. IV. c. 4.

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by heralds-at-arms on behalf of the Sovereign Prince to his subjects. Thus we find it recorded by Hollinshed, on the occasion of Queen Mary declaring war against Henry II of France by a herald-at-arms, that the war was brought to the knowledge of the English Nation by a proclamation of an equally solemn character. "In this season," (anno 1557,) writes the chronicler 25, "although the French King (as was said) was verie loth to have warres with England, yet the Queene (Mary) tangling herself contrarie to promise in her husband's quarrell, sent a defiance to the French King by Clarencieux King-of-armes; who comming to the citie of Remes, where the said King then laie, declared the same unto him the seventh of June, being the Mondaie in Whitsun-weeke. On the which daie, Carter and Norreie King-of-armes, accompanied with other heralds, and also the lord maire and certeine of the aldermen of the citie of London, by sound of three trumpets that rode before them, proclaimed open war against the said King, first in Cheapeside, and after in other parts of the citie, where customarilie such proclamations are made the sheriffes still riding with the heralds till they had made an end, although the lord maior brake off in Cheapeside and went to St. Peter's to hear service, and after to Paules, where (according to the usage then) he went in procession." This record of the double fact Last British of a Declaration of War abroad and of a Proclamation of War by of War at home is the more curious, as it seems to at-Arms. have been the last occasion of any English Sovereign declaring war by a herald-at-arms.

There was no Declaration of War in the reign of Queen Elizabeth, on the occasion of the Expedition

25 Hollinshed Chronicles, Vol. IV. p. 87.

Declaration

a Herald

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