should not be allowed to make war without an authority to that effect from their respective Sovereigns. It would seem that, in the thirteenth century 40, Sovereign Princes had begun to forbid their subjects to cruise against the subjects of other Princes without their authority; but it was not before the fourteenth century that any mention of Letters of Marque occurs in Public Treaties, or that it came to be thought obligatory upon private cruisers to provide themselves with an authority from a Sovereign Prince, in the form of Letters of Marque, or Letters of Reprisals. 41 § 15. When an injury has been committed by the subjects of an Independent Prince upon the subjects of another Independent Prince, and the former has plainly refused, or unreasonably delayed, to procure redress to be made by the offending parties, the latter, in virtue of his obligation to protect his subjects, is warranted in authorising them to make Grant of Reprisals upon the offending parties and their fel- Reprisals. low-subjects, for their fellow-subjects accept the responsibility of the acts of the offending parties by supporting the Sovereign Power of their State in its refusal or delay to procure redress. It is not an unreasonable view of the origin of this practice of Reprisals, which refers it to the inability of Independent Princes, in the infancy of international life, to induce their more powerful subjects to make redress for wrong done by them to the subjects of 4 Thus king Edward I. of England says, in a letter of the year 1295, "Bernardus nobis supplicavit ut nos sibi licentiam marcandi homines et subditos de regno Portugalliæ et bona eorum per terram et mare, ubicunque eos et bona eorum invenire possit, concederemus, quousque de sibi ablatis integram habuisset restitutionem." Rymer. Fœdera, 41 The Law and Custom of consistent other Independent Princes; as in such cases Princes would be likely to prefer that the injured parties should exact redress for themselves, rather than they should have to turn their arms against their own subjects to compel them to make such redress. 42 The employment of force by an Independent Prince, for the purpose of making Reprisals against the subjects of another Independent Prince, has accordingly been held to be compatible with the maintenance of general pacific relations between the two Reprisals Nations. Bynkershoek observes that Reprisals have with Peace. only place in time of peace. Reprisals are for the most part resorted to for the purpose of redressing a wrong inflicted upon an individual, after he has ineffectually demanded justice from the Sovereign Power of the Nation, of which the wrong-doer is a member. Under such circumstances, everything that belongs to the Nation is subject to Reprisals, whereever it can be taken, provided that it is not a deposit entrusted to the public faith; for as a Nation has control over the latter only in consequence of that implicit confidence, which the owner of the deposit has placed in its good faith, it ought to respect it as sacred even in the case of open war. But as between Nations, the property of individuals is regarded as belonging to the Nation at large of which they are members. Accordingly the private property of every individual member of a Nation is liable to Reprisals in redress for wrong inflicted upon a member of another Nation. Further, it is only from the Sovereign Power of a Nation, that authority is rightfully derived to make Reprisals upon the private property of the members of another Nation. Vattel holds that when Reprisals have been made, it is the duty of the Sovereign to 42 Repressaliis locum non esse nisi in pace. Bynkershoek, Quæst. Juris Publici, c. 24. 43 Vattel, L. II. c. 18. § 344. 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. and posi §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 tive Rea 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 Reprisals. General 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 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 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." There is however an im 45 This remark of the Grand Pensionary is cited in a note to a passage in Vattel, L. II. c. 18. § 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 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 pænitentiæ 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. |