compel those of his subjects who by their conduct have given occasion for just Reprisals, to compensate those upon whom the Reprisals have fallen, and so to take care that the property of innocent persons be not made answerable for the obligations of others. For although the Sovereign, by refusing or delaying to do justice, may have brought on Reprisals against his own subjects, those who were the final cause of them do not become less guilty, and the fault of their Sovereign does not exempt them from repairing the consequences of their own offence. tive Re §16. Jurists, who confine the use of the term Retorsion to remedies for departures from Comity, have divided Reprisals into negative and positive Reprisals, accord- Negative ing as they are instituted by reason of the refusal of and posi a Right or the infliction of an Injury. According prisals. to this nomenclature which Klüber appears to have introduced, and which is adopted by Mr. Wheaton** and Dr. Phillimore, negative Reprisals take place when a State refuses to fulfil a perfect obligation which it has contracted, or to permit another Nation to enjoy a right which it claims. Positive Reprisals, on the other hand, take place when a State seizes persons and effects belonging to another Nation, in order to obtain satisfaction for a wrong or an injury. Heffter, on the other hand, following Grotius, De Wolff, and Vattel, limits the term Reprisals to acts of force, to which a Nation has recourse in order to obtain satisfaction for wrong or injury done to itself or its subjects, and according to this view, those acts which are termed Negative Reprisals are more properly classed under the head of Retorsion. If we look to the etymology of the words Retorsion and Reprisals, Heffter appears to have reason on his side. The sense, which ancient usage has attached to the term Letters of Reprisals, 44 Wheaton, Elements, P. IV. c. 1. § 2. Phillimore, Vol. III. § 12. Special Re coincides with the etymology of the word, besides whenever Reprisals are spoken of in Treaties, there is no doubt that acts of forcible possession are in the contemplation of the framers of those Treaties. 17. A more substantial and less technical division prisals. of Reprisals is that which is founded upon the extent to which a Sovereign Power permits them to proceed. Reprisals are Special, when a Sovereign Prince grants Letters of Reprisals and Marque to certain of his Subjects, who have suffered wrong from the Subjects of another Sovereign Prince, for which they have in vain demanded justice. Such Reprisals are held in practice to be perfectly consistent with a state of amity between Nations, and they are identical with the Reprisals of the fourteenth century, by which private war was reduced to a certain order, and the way was paved for its extinction by subjecting it to the control of Sovereign Princes. General General Reprisals, on the other hand, is a general permission given by a Sovereign Power to its Subjects to seize the persons and property of the Subjects of another Power. It is immaterial in what manner such Reprisals are executed, whether by the commissioned ships of the Crown, or by the armed ships of its Subjects at large under Letters of Marque and Reprisals from the Crown, so long as General Reprisals are ordered by the Sovereign Power to be made against the persons and property of the Subjects of another Power. Several writers, following the supDe Witt. posed authority of the Grand Pensionary De Witt, approve his remark, as if it was of general application, that "he saw no difference between General Reprisals and Open War" 45 This remark of the Grand Pensionary is cited in a note to a passage in Vattel, L. II. c. 18. There is however an im § 346. Several writers have referred to it, as if it were a statement of the customary law of 46 portant difference between them, and it would appear that those writers who have supposed themselves to be countenanced by the Grand Pensionary of the States General, have not sufficiently kept in view the occasion of his remark. It It appears that England had laid an Embargo in 1662 upon all Dutch vessels in British ports in favour of the Knights of Malta, in reprisal for the detention by the Dutch of certain property belonging to the Knights, and that the States General remonstrated against Reprisals being made by a Sovereign Prince in behalf of foreigners, not his subjects, as being contrary to the practice of Nations. England on this occasion acquiesced in the justice of the Dutch remonstrance, and directed the Embargo to be raised. On this occasion the Grand Pensionary remarked that he saw no difference between General Reprisals and Open War; and it may well be, that such a general sequestration of Dutch vessels in British ports, if not warranted by the Law of Nations, could only be regarded as an act of Open War against the States General. But an order for General Reprisals seems to be distinguishable in the practice of Nations from a declaration of war in this respect, that a State of Peace is not terminated by an order for General Reprisals in the same manner as it is terminated by a declaration of war. There is still a locus pœnitentiæ open to a Nation against which General Reprisals have been declared, and have even begun to be enforced; and until it resents an act of General Reprisals, there is no war. If a Nation declares war against another Nation, it renounces all Europe, which Vattel himself had adopted in the very words of the Grand Pensionary. But the note is not found in the original edition of Vattel's work: it is added for the first time in the edition of 1797, which was published after Vattel's death. 46 Bynkershoek, De Foro Legatorum, c. 22. its treaties of friendship and alliance with it, and there is an end to all international amity towards its subjects. Thus it was contemplated by President Jefferson" in 1808, that recourse should be had by the United States of America to General Reprisals against the Continental System of the Emperor Napoleon, on the assumption that a repeal of the edicts issued by the Emperor and by the President of the United States respectively would at once revive relations of peace without the delay and ceremonies of a treaty. Jefferson, it is true, speaks of the relations which would exist between France and the United States under a system of General Reprisals as relations between belligerents; but so in a certain sense are Special Reprisals, being acts of forcible possession for the attainment of right, which are not altogether consistent in theory with perfect peace between Nations, yet in practice they are held to be exceptional measures consistent with amity, and which do not give rise to a State of War. The more correct view seems to be, that General Reprisals per se are not inconsistent with a State of Peace, although they may be in certain cases a preliminary step towards a Condition public war. According to present usage, they are tion of war, in the nature of a conditional declaration of war, al declara. which, however, may still be averted by an offer of satisfaction from the offending State. Chief Justice Hale, in his Pleas of the Crown (Vol. I. p. 162, 3), 47 Perhaps the advocates of the second (war) may to a formal declaration of war prefer general letters of Mark and Reprisal, because on repeal of their edicts by the belligerents, a revocation of the letters of Mark restores peace without the delay, difficulties, and ceremonies of a treaty. Letters of Jefferson to Lt. Governor Lincoln, Washington, Nov. 13, 1808. Jefferson's Correspondence, 8vo. Lond. 1829, Vol. IV. p. 119. 48 Letters of Marque and Reprisal are mentioned in the 9th of the Articles of Confederation of the United States (anno 1781) as issuing in time of peace. against says, that "General Marque or Reprisal doth not make the two Nations in a perfect state of hostility between them, though they mutually take from one another, as enemies, and many times, in process of time, these General Reprisals grow into a very formal war and this was the condition of the war between us and the Dutch 22 Feb. anno 1664, the first beginning whereof was by that Act of Council, which instituted only a kind of universal Reprisal, and there were particular reasons of State for it, but in process of time it grew into a very war, and that without any war solemnly denounced." Thus General Reprisals Letters of Marque and Reprisal were issued by England Spain in against Spain on 10 July, 1739, by reason of Spain 1739exercising a right of search over English vessels beyond the limits of her jurisdictional waters on the coast of South America. The Ambassadors of both Powers, notwithstanding this, remained at their respective posts. Spain in return issued Letters of Reprisal on 20th July, 1739, and it was not until two months had expired after the English Letters of Reprisal had been issued, that the Ambassadors of the two Nations left the Courts to which they had been respectively accredited. War was formally declared by England on 19th October, 1739. against the § 18. That General Reprisals are distinct in character from War, and are not attended with that interruption of all friendly relations which War entails, may be inferred from the proceedings which took place in Reprisals 1839-40, between her Britannic Majesty's Govern- Two Sicilies ment and the Government of the King of the Two in 1839. Sicilies, in reference to the Sulphur Monopoly in Sicily, which had been granted by the Crown of Naples to a Company of French Merchants, (Messrs. Taix, Aycard, and Cie.) The British Government held that the grant made to the French Company |