in arms.” [45′]
Moreover, similar messages were brought to Theseus from Creon, so that we find the Greek custom clearly portrayed in tragedy. An analogous custom is depicted in many passages of Roman history.
Denuntiatio or Indictio
Now, when the two steps in question are combined in this manner, the procedure involved is properly called denuntiatio [notification by way of warning], or indictio [declaration]; and he who has already employed the device of rerum repetitio is under no obligation [from the standpoint of the law of nations] to issue a second notification. On the contrary, just as those edicts which appear after sentence has been pronounced are derived not from the law of nations but from the established practices of individual states, so the customary formalities attendant upon the undertaking of wars, whenever they constitute an addition to those above mentioneda (as they do, for example, when the warning notification is reiterated), originate in no other source than the customs of individual nations. Maecenas, so Dio tells us, apparently supports this view. The Romans adopted many such customs, borrowed from the Aequi: among others, the symbolic use of the bloody spear, and similar practices. Again, just as an interval of exactly thirty days after the pronouncement of a sentence was conceded to the party condemned in a legal trial, so, for a like reason, the same interval was granted to the party against whom war had been decreed. This practice need not be regarded as particularly strange, since other nations have frequently gone so far as to announce in advance the locality and time when a battle would take place, a procedure which is sometimes nobly magnanimous but by the same token always unnecessary. Thus we find that even the Romans, during the most scrupulous period of their history, never presented the demands classified under the head of rerum repetitio to any persons other than the actual perpetrators of an injury or the magistrates of the latter. To be sure, after war was decreed, the Romans were wont to issue a declaration of that fact not only to the parties just mentioned, but also—for form’s sake, as it were—to neighbouring regions; yet they omitted even this step in certain cases, when the reclamation had been lawfully presented and the law had not been obeyed [by the defendant]. Furthermore, Varroa and Arnobiusb testify that the custom of formally announcing entry into war was eventually abolished among the Romans, as were other practices pertaining to civil law.
The foregoing observations indicate to us the proper construction to be put upon the assertion made by learned authorities,c that no war is just unless it has been legally declared, an opinion which cannot be better interpreted than it is in the words of Cicero:d “No war is just unless it is waged either after the procedure of rerum repetitio has been followed, or after notification and warning thereof have been given and a formal declaration made.” Cicero requires that one of these conditions, not both, shall be fulfilled.
Even this statement of the case must be taken in a limited sense, with the understanding that there is no need of a warning announcement (as we have already pointed out) when the person against whom action is to be taken has previously begun the war. A certain well-known [46] fragment from the works of Isidoree is pertinent in this connexion: “That war is just which is waged by command on matters already brought to attention through the process of rerum repetitio, or which is waged in order to repel public enemies.”13 For the term hostes [public enemies], in its legal connotation,a comprises not only those persons against whom we publicly decree war, but also those who publicly decree war against us. Therefore, no warning notification is necessary for war against persons who are already conducting themselves as enemies of our state. This principle is commonly accepted by the doctors of law,b who maintain that those persons who are openly harmful and troublesome to us are ipso iure proclaimed liable to confiscation of goods on the ground of bad faith;14 for, according to the said doctors, such a proclamation is equivalent to a formal declaration of war. A notable example is found in the history of the Israelites,c who had been commanded by God to refrain from making an armed attack against any people without first inviting that people, by formal notification, to establish peaceful relations; for the Israelites thought that this prohibition was inapplicable to many of the Canaanite tribes, inasmuch as they themselves had previously been attacked in war by the Canaanites. Hence we arrive at the following deduction: once the formality of rerum repetitio has been observed and a decree on the case in question has been issued, no further proclamation or sentence is required for the establishment of that right which arises in the actual process of execution. For, in such circumstances, one is not undertaking a new war but merely carrying forward a war already undertaken. Thus the fact that justice has once been demanded and not obtained, suffices to justify a return to natural law, that is to say, a return to the precept which permits us to obtain by force that which is properly ours. Nevertheless, even when formal notification is unnecessary, it is not inappropriate to issue a general statement, for example, a statement relative to the collection of debts, and particularly punitive debts, so that enemy property may be seized as if by judicial authorization.
For the rest, when formal notification has been given by the principal author of a war, there is no need for such notification on the part of his ally, who is merely assisting in the attainment of another’s right without presenting any separate demand for himself. Similarly, when a war has been begun with the proper formalities against a given state or magistrate, no formal declaration of that war need be issued to the allies and subjects of the said state or magistrate. Our commentatorsa word this conclusion in their own fashion, as follows: When a prince has been challenged to combat,15 all of his subjects, confederates and assistants have been challenged.15 Moreover, this very conclusion formed one of the basic points for Gnaeus Manlius’ defence of his own conduct, when he was reproached by his legates because of the Galatian war.
Conclusion VII, Article II
But, to return to the statement quoted above from Isidore, we find that its meaning is clearly the same as if one should say: A public war is undertaken justly in so far as judicial recourse is lacking, or if the formality of rerum repetitio has been observed, and a decree has been passed by the state undertaking the war. [46′]
We come now to another question, namely: What qualifications should be sought in voluntary agents who are participating in a war, and what is permissible for them? This question is of course extremely broad, but we shall discuss it summarily under several main heads.
Just form, as we have already observed,a consists in conformity with the laws. Now, even as the laws relative to judicial procedure appeared to be incompatible with the act of undertaking a war (though we have demonstrated that these laws are partially invalidated by others of a superior order, while we have been able in part to reconcile the seemingly incompatible factors), just so the Third and Fourth Laws apparently conflict with the act of carrying on a war. For if the words of Virgilb are not deceptive,—
When that time comes, [the lawful time for strife,]
It shall be licit to contend in hate,
And play the plunderer’s part. . . .
—if, I say, slaughter and plunder are the concomitants of war, how shall we deal with those laws which forbid us to injure another, or to lay hands upon another’s property? In many cases, too, the Third Rule would seem to constitute an obstacle, since any interchange based on human law is apparently swept away, so to speak, once a war has begun.
Who, of a foe, would ask: “Is this deceit
Or valor?” . . .c
For we seek to do harm to our foes,
ἢ δόλῳ ἠὲ βίῃ, ἢ ἀμφαδὸν ἠὲ κρυφηδόν;d
Whether by fraud or unmasked violence,
