Слике страница
PDF
ePub

courtesy which it will show to other Nations. But there are many rights, for the refusal of which the proper remedy, as between Nations, is passive Retaliation, or in other words Retorsion. Thus if a Sovereign Prince should forbid to the subjects of another Sovereign Prince access to the ports of his territory for the purposes of peaceful commerce, the latter Prince may with justice retort the prohibition upon the subjects of the former in regard to his own ports. But the prohibition of all commerce would not be a suspension 29 of Comity, but a denial of a Natural Right, for the total hinderance of commerce would be contrary to the nature of human society, being the debarring of mankind, as St. Ambrose says, from sharing the goods of their common mother, which are scattered about for the benefit of all. Yet a Nation in such a case would not be justified in having recourse to war. In like manner, if a Nation chooses to grant to the subjects of another Nation special privileges within its territory, although it may be contrary to natural equity to exclude the subjects of other Nations from the enjoyment of similar advantages, yet such exclusion does not constitute a wrong which may be redressed by arms, but only justifies Retorsion or passive Retaliation. Active Retaliation, or the Lex Talionis in its full sense, has Lex Taliono place between Nations, for a Nation has no right to extend a penalty beyond what its own safety requires; and Retaliation which is unjust between individuals, would be much more unjust between Nations, because it would be difficult in the latter case to make the punishment fall upon the actual wrong-doers. On the other hand, Sovereign Princes are held to participate so far in the wrongful acts of L. II. c. 18. § 339. Klüber, § 234.

29 Grotius, L. II. c. 2. § 18.
30 Vattel, L. I. c. 13. § 171;

nis.

their subjects, and subjects are held to be so far amenable for the faults of their rulers, amongst which faults the foremost is their neglect to compel their subjects to do justice to the subjects of other Sovereign Princes, that they may reasonably be required mutually to share the inconveniences, which will result from a reciprocal rule of conduct being adopted by other Nations.

§ 11. If a Nation has refused to pay a debt to, or has inflicted an injury upon the subjects of another Nation, and the former has refused to make satisfaction or to give redress, the latter may proceed to do Reprisals. justice to its subjects by making Reprisals upon the former. Every political community takes upon itself the responsibility of the acts of its members in relation to other political communities, if, upon complaint made to it, it does not constrain the wrong-doers to make satisfaction. A Nation, as such, only takes cognisance of individual men as members of a Nation, and who, as such, belong either to its own political body, or to some other independent political body. If an individual is a wrong-doer, and is a member of its own body, the Governing Power of a Nation proceeds to exact satisfaction from him according to its own laws; but those laws being only operative within its own territory, a Nation cannot exact satisfaction in like manner from a member of another independent political body, who does not happen to be within its territory. It must in such a case demand at the hands of the Governing Power of the Nation, to which the offending party belongs, satisfaction for the offence; and if the Nation refuses to constrain its own subject to make such satisfaction, it takes upon itself the responsibility of his acts, and makes itself an accessory to the wrong which he has committed. An injured Nation is

under such circumstances justified in seizing both the persons and the property of the subjects of the other Nation, with a view to keep them as pledges until it has obtained satisfaction; or even, in the case of property, to apply it at once in satisfaction of the debt, or in compensation for the injury 30.

§ 12. Embargo is one of the modes of proceeding Embargo. which a Nation may adopt with a view to obtain satisfaction for a debt or an injury. The term is borrowed from the Spanish Law-procedure, and signifies arrest or sequestration; and it is applied to the seizure or detention of persons or property, which happen to be within the territory of a Nation at the time of seizure. Embargo is a term of very varied import. It is frequently used to denote the seizure of ships and cargoes in the ports of a Nation under the authority of its municipal law; and such seizures and the consequent detention are spoken of as Civil Embargoes. An International Embargo, on the other hand, is an act not of civil procedure, but of hostile detention. It may be made for the same object as Reprisals are made upon the high seas, namely, for the satisfaction of a debt, or for the redress of an injury; but it may also be made in cases where Reprisals could not justly be granted, and frequently Equivocal by way of prelude to war. It is, however, not in ter itself an act of war, but is at first equivocal as to its effect; and if the matter in dispute ends in reconciliation, the seizure, although hostile in form, proves in substance to have been merely a temporary sequestration consistent with relations of amity. On the other hand, if the transaction ends in war, the subsequent hostilities impress a retrospective character on the Embargo, and it is to be considered a

30 Grotius, L. III. c. 2. § 14. Puffendorf, L. I. c. 13. § 10. Vattel, L. II. § 342.

in charac

Embargoes.

hostile sequestration ab initio. The property seized in such a case is liable to be regarded as the property of persons who were trespassers ab initio, and guilty of injuries, which they have refused to redeem by any amicable alteration of their measures. Such is the necessary course, to use the language of Lord Stowell, if no particular compact intervenes for the restitution of such property taken before a formal declaration of hostilities. It may be open to quesProvisional tion, however, whether the doctrine of provisional Embargoes has not been maintained by the British Prize Courts in too absolute a manner. An Embargo by way of obtaining redress may be justifiable, notwithstanding that the parties, whose persons and property are seized and detained, have ventured within the jurisdiction of the Nation which makes the Embargo, trusting to that security which the existing relations of peace between the two Nations warrant. If they should suffer in the result, they will suffer vicariously for the wrong which their Nation has refused to redress, and they will have no just cause of complaint except against the original wrong-doer, or their own Nation, which has failed to compel him to do justice. But an Embargo, which is made merely in contemplation of war under circumstances in which Reprisals could not be justly granted, cannot well be distinguished from a breach of good faith towards the parties who are the subject of it. It seems not unreasonable therefore to limit the international right of Embargo to those cases in which it is clear that the Nation which makes the Embargo is entitled to exact satisfaction for a debt, or compensation for an injury; and in which cases the right may be lawfully exercised during that ambiguous state of things, which precedes open war. The President of the

[ocr errors]

31 The Boedes Lust, 5 Robinson, p. 246.

United States (Jefferson) thus speaks of the Embargo laid upon American vessels in British ports in 1807-8 32: "The immediate danger we are in of a rupture with England is postponed for this year. This is effected by the Embargo, as the question was simply between this and war. That may go on a certain time, perhaps through the year, without the loss of their property to our citizens; but only its remaining unemployed in their hands. A time would come, however, when war would be preferable to the continuance of the Embargo."

§ 13. Reprisals is a term derived from the old Reprisals. French word Reprisalles, which is found in documents of the fourteenth century, as for instance, under the antique form of Reprisale, in an English Statute, 17 Edw. III. st. 2. c. 17. (anno 1355), and likewise in a treaty between England and France, of 7th of May, 136033. The Latin forms Repræsalia or Repressalia, the latter of which is adopted by Bynkershoek, do not appear to have been familiar to Grotius, as he uses the word pignoratio, which is borrowed from the Civil Law of Rome; but the word Repreysalliæ occurs in an ancient Aragonese Charter, of a date as early as anno 1326, so that we may be satisfied that the International remedy for Wrong, which the word Reprisals denoted, was in general practice in Europe during the early part of the fourteenth century. The practice of Reprisals seems to have been the complete form of the exercise of the Right of Redress, which had been termed as early as the twelfth century the practice of Marque. Practice of The word Marque, which is of French origin, has Marque. been identified by some authors with the German

[blocks in formation]
« ПретходнаНастави »