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 Stowell31, 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

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

United States (Jefferson) thus speaks of the Embargo laid upon American vessels in British ports in 1807-832: "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 Reprisalx, 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

32 Letter to Charles Pinckney, March 30, 1808. Jefferson's Correspondence, Vol. IV. p. 114.

33 Dumont, Traités, Tom. II. Pt. I. p. 16.

34 Ducange, Vox Marcha. (4.)

Mark," or the Latin Marcha, in the sense of a boundary; and Letters of Marque have been accordingly interpreted to mean Letters of Licence granted by a Sovereign Prince to his subjects to cross the frontier of his territory with the object of attacking a neighbouring Prince or his subjects. By other authors the phrase Letters of Marque has been held to mean Licences from an Independent Prince to set a mark upon, or to seize as a pledge, the goods of others. There is no doubt that the verb Marcare, or Marchiare, is used in documents of the thirteenth century in a sense akin to that of the pure Latin word pignorare. A Charter granted anno 1283, by Peter (III.) the Great, of Aragon, to the citizens of Barcelona, forbids any provisions imported into the city of Barcelona by sea or land from being arrested or taken in pledge. Victualia quæ apportantur in Barcinona per mare vel per terram... non marcentur neque pignorentur. . . tam pro alienis debitis quam pro propriis. So, likewise, the Council of Marciac 36, in France, in the next century (anno 1326), enacted that, Personæ Ecclesiasticæ vel earum bona pro aliis non marchientur vel pignorentur. (Cap. LIV.)

The analogy of the Roman Civil Law, which authorised a creditor in certain cases to proceed summarily against his debtor per pignoris capionem 37, in other words, to seize any property belonging to his debtor as a pledge for the payment of his debt, suggests rather that the original meaning of the word marcare, in connection with the jus marcandi, Droit de Marque, was that of arresting and sequestrating goods or property, and in this Letters of sense we find Letters of Contremarque issued by Sovereign Princes to their subjects, authorising them Par. II. Par. II. p. 1767.

Contre

marque.

35 Ducange, Glossarium, Vox Marcare.

36 Labbei Concilia, Tom. XI.

37 Gaii Institut. L. IV. c. 26.

in their turn to seize the goods of those who had taken from them their goods under the authority of Letters of Marque.

§14. The granting of Letters of Marque by Sovereign Princes to the commanders of private ships, armed and equipped for maritime warfare at the expense of their owners, although it may now be regarded as an institution of a barbarous age, which ought to be allowed to fall into desuetude, was nevertheless the first systematic attempt to regulate private warfare on the high seas, and thereby paved the way for its abolition. During that long period of anarchy, which prevailed on the high seas after the breaking up of the Roman Empire, merchants had been compelled to form themselves into voluntary associations for mutual defence against lawless sea-rovers, and thus it happened, that the police of the high seas came to be administered by voluntary associations. These bodies were accustomed to exact redress without waiting for any authority of Princes, not merely in behalf of the Growth of members of such associations, but also in behalf of ralty Juris other honest merchants, who had been despoiled of diction. their goods by pirates, or had otherwise suffered violence on the high seas in the pursuit of their lawful calling. Besides these associations for mutual defence, other associations were organised in the great commercial cities of the Mediterranean, for the express purpose of making war against pirates, and articles of association came to be framed with a view to regulate the conduct of their expeditions, and the distribution of the booty captured from the enemy. There is extant a very ancient body of Ordinances of the fourteenth century for the government of the armed vessels of these voluntary associations going on a cruise, which are bound up with the Consolato del Mare in some ancient editions, as if they

the Admi

en Course.

formed a portion of that work 39, but they deserve to be regarded as altogether distinct in their origin. They have most probably been confused with the Consolato del Mare owing to the circumstance that they are found in a very ancient manuscript joined on to the latter work, as if they were a continuance of it. M. Pardessus 39 has very properly separated these ordinances from the chapters of the Consolato, and has published them apart, under the title of Armemens "Chapitres sur les Armemens en Course," as being in substance a portion of the Maritime Law of Catalonia and Aragon. From these ordinances it would appear that these private Societies of cruisers, or to call them by their Italian name corsari, were allowed to appropriate to themselves the property which they had captured at sea, without the authority of a Commission from any Sovereign Prince, and without any necessity of bringing in their prizes for adjudication before disposing of them. It would not be unreasonable to suppose that this general licence of cruising against pirates, styled la guerra del corso, would degenerate in course of time into something very much akin to the evil practices which it was intended to suppress, and that it would become necessary for Sovereign Princes to regulate in its turn the practice of cruising (la course). We accordingly find Ordinances issued by Sovereign Princes, upon consultation with the Councils of Commerce (les prud-hommes de mer), for regulating the practice of cruising, and after the Admiralty Jurisdiction came to be exercised by Sovereign Princes, measures were taken by them to put an end to the system of private warfare on the high seas, by stipulating with one another that their subjects following chapters.

38 In some editions of the Consolato they form the 298th and

39 Lois Maritimes, V. p. 396.