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 Bull" 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 hand 24. 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. tion of War The commencement of war was generally proclaimed of War by Arms. 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. by heralds-at-arms on behalf of the Sovereign Prince to his subjects. Thus 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 "In this season," of an equally solemn character. (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 Last Declaration of War by a Herald-at Arms in 1657. Printed Declarations of reign of of the Spanish Armada, although there was a State of War, after that event, between England and Spain. So likewise in the reign of Charles I, Lord Clarendon 26 narrates how Villars, Duke of Buckingham, "made war upon France without any colour of reason, or 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, for it was observed that the Manifesto which was published was in the Duke's own name, who went admiral and general of the Expedition." The practice, however, of declaring war by a herald-at-arms had not entirely passed away on the continent of Europe in the early part of the seventeenth century; for we find it told by the historian of the reign of Louis XIV, that Louis XIII still clung to the ancient rule, and sent a herald-at-arms to Brussels, in 1635, to declare war against Spain 27. This is cited by many writers as the last known instance of the kind; but there appears to have been one later instance in 1657, when Sweden declared war against Denmark by a herald-at-arms sent to Copenhagen. 28 §33. It appears from a passage in Chief-Justice War in the Hale's "Pleas of the Crown", that in the reign Charles II. of Charles II the solemn form of declaring war then in use was by a printed declaration, such as that monarch issued against the Dutch in 1671. The institution of permanent embassies resident in the capital cities of Europe, which dates from the ministry of Cardinal Richelieu, could not but 26 Clarendon's History, Vol. I. § 267. Holberg Danmarks Rige's p. 71. ed. Oxford 1826. Hist. Tom. III. p. 241. 27 Voltaire Siecle de Louis XIV. c. II. 28 Marten's Précis, L. VIII. 29 Pleas of the Crown. I. p. 162. tend very much to modify the earlier forms of international intercourse, more particularly in regard to the course of proceedings introductory to war. Further, during the Thirty Years' War, the Law of Nations underwent a rapid development, for the stormy conflicts resulting from the union of religious with political antipathies consequent on the Reformation, and which had been confined in the sixteenth century to single states, convulsed the entire political system of Europe in the seventeenth century, and the Northern Powers of Europe came to take a part in the disputes of Central and Southern Europe. War, therefore, whenever it broke forth, was attended by more general consequences; and hence it became expedient for Nations which were about to become belligerents to give notice of their intention to other Nations, so that the latter might, if they did not side with either party, know from what period they should observe the duties of neutrality. Hence originated a practice for a belligerent Nation 30 to issue Manifestoes to other Na- Manifestoes tions, to make known the fact that it had taken Neutral up arms. Grotius speaks of this as an established practice in his time; and Vattel considers that a belligerent Power is bound to publish a Manifesto to neutral Powers, in order to obviate all difficulties. that may otherwise arise from the subjects of the latter Powers carrying to a belligerent any supplies in the nature of contraband of war, and so incurring the penalty of their confiscation, if captured by his adversary. 30 Et has ob causas solent a bellum gerentibus publicæ significationes fieri ad alios populos, tum ut de jure causæ, tum etiam ut de spe probabili juris ex- 31 L. III. c. 2. § 64. of War to Nations. |