PART FOURTH. INTERNATIONAL RIGHTS OF STATES IN THEIR CHAPTER I. COMMENCEMENT OF WAR, AND ITS IMMEDIATE EFFECTS. § 1. Redress by tween na THE independent societies of men, called States, acknowledge no common arbiter or judge, except such as forcible are constituted by special compact. The law by which means bethey are governed, or profess to be governed, is deficient tions. in those positive sanctions which are annexed to the municipal code of each distinct society. Every State has therefore a right to resort to force, as the only means of redress for injuries inflicted upon it by others, in the same manner as individuals would be entitled to that remedy were they not subject to the laws of civil society. Each State is also entitled to judge for itself, what are the nature and extent of the injuries which will justify such a means of redress. Among the various modes of terminating the differences between nations, by forcible means short of actual war, are the following: 1. By laying an embargo or sequestration on the ships and goods, or other property of the offending nation, found within the territory of the injured State. 2. By taking forcible possession of the thing in controversy, by securing to yourself by force, and refusing to the other nation, the enjoyment of the right drawn in question. 3. By exercising the right of vindictive retaliation, (retorsio facti,) or of amicable retaliation, (rétorsion de droit); by which last, the one nation applies, in its transactions with the other, the same rule of conduct by which that other is governed under similar circumstances. 4. By making reprisals upon the persons and things belonging to the offending nation, until a satisfactory reparation is made for the alleged injury.1 § 2. Re This last seems to extend to every species of forcible prisals. means for procuring redress, short of actual war, and, of course, to include all the others above enumerated. Reprisals are negative, 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. They are positive, when they consist in seizing the persons and effects belonging to the other nation, in order to obtain satisfaction.2 Reprisals are also either general or special. They are general, when a State which has received, or supposes it has received, an injury from another nation, delivers commissions to its officers and subjects to take the persons and property belonging to the other nation, wherever the same may be found. It is, according to present usage, the first step which is usually taken at the commencement of a public war, and may be considered as amounting to a declaration of hostilities, unless satisfaction is made by the offending State. Special reprisals are, where letters of marque are granted, in time of peace, to particular individuals who have suffered an injury from the government or subjects of another nation.3 Reprisals are to be granted only in case of a clear and open denial of justice. The right of granting them is vested in the sovereign or supreme power of the State, and, in former times, was regulated by treaties and by the municipal ordinances of different nations. Thus, in England, the statute of 4 Hen. V., cap. 7, declares, "That if any subjects of the realm are oppressed in time of peace by any foreigners, the king will grant marque in due form to all that feel themselves grieved;" which form is 1 Vattel, liv. ii. ch. 18. Klüber, Droit des Gens Moderne de l'Europe, § 234. 2 Klüber, § 234, Note (c). 3 Bynkershoek, Quæst. Jur. Pub. lib. i. Duponceau's Transl. p. 182, Note. specially pointed out, and directed to be observed in the statute. So, also, in France, the celebrated marine ordinance of Louis XIV., of 1681, prescribed the forms to be observed for obtaining special letters of marque by French subjects against those of other nations; but these special reprisals in time of peace have almost entirely fallen into disuse.1 § 3. Effect Any of these acts of reprisal, or resort to forcible means of redress between nations, may assume the cha- of reprisals. racter of war in case adequate satisfaction is refused by the offending State. "Reprisals," says Vattel, "are used between nation and nation, in order to do themselves justice when they cannot otherwise obtain it. If a nation has taken possession of what belongs to another, if it refuses to pay a debt, to repair an injury, or to give adequate satisfaction for it, the latter may seize something belonging to the former, and apply it to its own advantage, till it obtains payment of what is due, together with interest and damages; or keep it as a pledge till the offending nation has refused ample satisfaction. The effects thus seized are preserved, while there is any hope of obtaining satisfaction or justice. As soon as that hope disappears they are confiscated, and then reprisals are accomplished. If the two nations, upon this ground of quarrel, come to an open rupture, satisfaction is considered as refused from the moment that war is declared, or hostilities commenced; and then, also, the effects seized may be confiscated."2 4. Emvious to de bargo pre claration of Thus, where an embargo was laid on Dutch property in the ports of Great Britain, on the rupture of the peace of Amiens, in 1803, under such circumstances as hostilities. were considered by the British government as constituting a hostile aggression on the part of Holland, Sir W. Scott, (Lord Stowell,) in delivering his judgment in this case, said, that "the seizure was at first equivocal; and if the matter in dispute had 1 Vattel, Droit des Gens, liv. ii. ch. 18, §§ 342-346. Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 24. rope, liv. viii. ch. 2, § 260. Martens, Précis du Droit des Gens Moderne de l'Eu- 2 Vattel, Droit des Gens, liv. ii. ch. 18, § 342. terminated in reconciliation, the seizure would have been converted into a mere civil embargo, so terminated. Such would have been the retroactive effect of that course of circumstances. On the contrary, if the transaction end in hostility, the retroactive effect is exactly the other way. It impresses the direct hostile character upon the original seizure; it is declared to be no embargo; it is no longer an equivocal act, subject to two interpretations; there is a declaration of the animus by which it is done; that it was done hostili animo, and it is to be considered as a hostile measure, ab initio, against persons guilty of injuries which they refuse to redeem, by any amicable alteration of their measures. This is the necessary course, if no particular compact intervenes for the restoration of such property, taken before a formal declaration of hostilities."1 § 5. Right of making war, in whom vested. The right of making war, as well as of authorizing reprisals, or other acts of vindictive retaliation, belongs, in every civilized nation, to the supreme power of the State. The exercise of this right is regulated by the fundamental laws or municipal constitution in each country, and may be delegated to its inferior authorities in remote possessions, or even to a commercial corporation—such, for example, as the British East India Company-exercising, under the authority of the State, sovereign rights in respect to foreign nations.2 § 6. Public or so lein war. A contest by force between independent sovereign States is called a public war. If it is declared in form, or duly commenced, it entitles both the belligerent parties to all the rights of war against each other. The voluntary or positive law of nations makes no distinction, in this respect, between a just and an unjust war. A war in form, or duly commenced, is to be considered, as to its effects, as just on both sides. Whatever is permitted by the laws of war to one of the belligerent parties is equally permitted to the other.3 1 Robinson's Adm. Rep. vol. v. p. 246. The Boedes Lust. 2 Vattel, liv. iii. ch. 1, § 4. Martens, Précis, &c. liv. viii. ch. 2, §§ 260, 264. 3 Vattel, Droit des Gens, liv. iii. ch. 12. Rutherforth, Inst. b. ii. ch. 9, § 15. S A perfect war is where one whole nation is at war § 7. Perfect war. with another nation, and all the members of both na- or imperfect A civil war between the different members of the same society is what Grotius calls a mixed war; it is, according to him, public on the side of the established government, and private on the part of the people resisting its authority. But the general usage of nations regards such a war as entitling both the contending parties to all the rights of war as against each other, and even as respects neutral nations.2 § 8. De war, how sary. A formal declaration of war to the enemy was once considered necessary to legalize hostilities between na- claration of tions. It was uniformly practised by the ancient Ro- far necesmans, and by the States of modern Europe until about the middle of the seventeenth century. The latest example of this kind was the declaration of war by France against Spain, at Brussels, in 1635, by heralds at arms, according to the forms observed during the middle age. The present usage is to publish a manifesto, within the territory of the State declaring war, announcing the existence of hostilities, and the motives for commencing them. This publication may be necessary for the instruction and direction of the subjects of the belligerent State in respect to their intercourse with the enemy, and regarding certain effects which the voluntary law of nations attributes to war in form. Without such a declaration, it might be difficult to distinguish in a treaty of peace those acts which are to be accounted lawful effects of war, from those which either nation may consider as naked wrongs, and for which they may, under certain circumstances, claim reparation. 3 1 Such were the limited hostilities authorized by the United States against France in 1798. Dallas' Rep. vol. ii. p. 21; vol. iv. p. 37. 2 Vide ante, Pt. I. ch. 2, §§ 7-10, pp. 31-35. 3 Grotius, de Jur. Bel. ac Pac. lib. i. cap. 3, § 4. Bynkershoek, Quæst. Jur. |