International law; Natural law; War (International law)
VI. In order to understand all these points clearly respecting the
declaration of war, an accurate distinction must be made between the
principles, which are founded on the law of nature itself, and those,
which, though not derived immediately from that source, are still found
to be just: it will be necessary also to examine, what is required by
the law of nations towards obtaining, IN WAR, all the consequences,
privileges and effects of that law, and, at the same time, to
investigate the consequences and rights arising from the peculiar laws
and customs of particular nations.
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.
Public-domain text, read in full here on John Shaqi.
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