Commentary on the Law of Prize and Booty. Hugo Grotius
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resort to arbitration is an honourable procedure, but arbitration is a voluntary, not a necessary measure; for it is common agreement that gives the arbiter his authority, and no one is compelled to entrust his rights to this or that person. We are dealing, however, with necessary measures. It is clear, then, on the basis of the Ninth Rule, that a twofold obligation must necessarily be met by him who is about to undertake a war.
Clarigatio or Rerum repetitio
For, in the first place, an opportunity to apply judicial procedure must be offered to that state which is the defendant, or whose citizen is the defendant, in a given case; and furthermore, if the said state fails to discharge this duty, the state which has itself been injured, or whose citizen has been injured, must pass judgement. Formerly, in the fetial law of the Romans (a people who certainly have never been surpassed in scrupulous attention to that phase of law), this preliminary procedure was called clarigatio [a demand for redress and, at the same time, a declaration of war to be waged if redress was not received within thirty-three days], or rerum repetitio [reclamation of goods or rights].a This latter expression (as Serviusb well says) covers every possible case of injury, inasmuch as both res [things, goods] and repetitio [reclamation] are general terms. Now, that which is claimed is threefold: restitution, satisfaction, surrender; and the third item is not of an unmixed character, since it may consist in simple surrender, or it may involve punishment. In other words, these three claims are founded respectively upon the Second Law as opposed to the Fourth, upon the Sixth Law and upon the Fifth. As for cases in which the First Law conflicts with the Third, we have already observed that in such circumstances there is no necessity for [45] judicial measures.
The second necessary step is the order for war, or decree condemning the opposing side, issued by the state which has been injured or whose citizen has been injured, or by a magistrate of that state.c From this practice certain formulas arose. The first ran as follows: “I bear witness that the said nation is unjust and does not make just reparation.” Another formula was couched in the following terms:d “‘[What is your opinion11] regarding the things, the suits, the causes, concerning which formal claims have been presented by the pater patratus12 of the Roman People of the Quirites to the pater patratus of the Nation of the Ancient Latins and to the men of the Ancient Latins, which things the latter nation has not paid, delivered nor acted upon, and which should have been delivered, acted upon and paid?’ ‘I hold that these things should be sought in a blameless and righteous war, and to that course I lend my vote and approval.’” A third formula was worded thus: “Because the tribes of the Ancient Latins have committed acts and offences adverse to the Roman People of the Quirites, and because the Roman People of the Quirites has commanded that war be made on the Ancient Latins and furthermore the Roman Senate of the Quirites has voted, agreed upon, and decreed the waging of war against the Ancient Latins, I, therefore, together with the Roman People, declare and make war upon the Nation of the Ancient Latins.”
To be sure, these two steps (rerum repetitio and the declaration of war) may be taken either separately or as a combined action: separately, if (in the manner above indicated) they are executed singly and with an interval of time between; as a combined action, if the injured state, on the occasion when it offers the other party an opportunity to employ judicial measures, appends a declaration of the judgement to be pronounced by the injured party itself in the event that the other does not judge justly. In the latter case, the formula used runs more or less as follows:a “That they themselves will repel the injury with might and main, unless the said injury is wiped out by its own authors.” Or it may take this form:b “Unless they forestall him by inflicting the death penalty upon the wrongdoers, he will resort to indiscriminate slaughter.” Theseus, too (according to Euripides),c followed just such a procedure when he instructed the herald to transmit these demands to Creon:
Θησεύς σ’ ἀπαιτει̑ πρὸς χάριν θάψαι νεκρούς,
συγγείτον’ οἰκω̑ν γαι̑αν, ἀξιω̑ν τυχει̑ν,
φίλον τε θἑσθαι πάντ’ Ἐρεχθειδω̑ν λεών.
κἂν μὲν θἑλωσιν αἰνἑσαι, παλίσσυτος στει̑χ’. ἢν δ’ ἀπιστω̑σ’, οἵδε δεύτεροι λόγοι. κω̑μον δἑχεσθαι τὸν ἐμὸν ἀσπιδηφόρον.
Theseus, ruler of a neighbouring land, Asks for the dead that he may bury them. To win Athenian friendship, grant this plea. If it be granted, herald, turn thou back; If disobeyed, speak then these other words: “Look soon to see my men arrayed 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