ground of war, and since every one may restrict his own right and reprisals are less than war: any sovereign that has a right of war has a right of reprisals (7). The usage of nations renders the corporeal and incorporeal property of all subjects liable for wrongs done by their sovereigns. For otherwise great license would be allowed to their wrongful acts, as it is not so easy to lay hands on their property as on that of their subjects; and it is easier for the members of a state to obtain justice and indemnity from their sovereign, than for strangers, whose claims are often slighted (m). As the obligation is common to all nations, those who suffer by it on one occasion may profit by it on another, and as every state considers an injury to any of its subjects as an injury to itself; it is not unjust, that they on the other hand should be liable for the obligations of the state, which is bound to indemnify them for any losses which may ensue (n).

By the usage of nations, whether derived from civil or from international law, certain persons and property in the offending state are exempt from reprisals. The persons of women, children and ecclesiastics are exempt; and the persons and property of ambassadors and students; and of merchants and all other persons, whose residence is merely transitory (o). The same exemption attaches to property which is under the protection of the public faith (p). When Great Britain issued reprisals against Spain, no debts due here to Spaniards were touched, and no Spanish effects here were seized. It will not be easy to find an instance where a prince has thought fit to make reprisals upon a debt due from himself to private men. There is a confidence that this will not be done. A private

(1) Heinecc. El. 205 (n); Prælec. in Grot. iii. 2, ii.; Vatt. ii. § 354. (m) Grot. iii. 2, ii.

(n) Grot. iii. 2, ii.; Heinecc. Prælec. in loc.; Puff. viii. 6, xiii.; Vatt. ii. § 345.

(0) Grot. iii. 2, vii.; Heinecc. Prælec. in loc.; Loccenius de J. M. iii. 3, ix.; Bynk. F. L. xxii.

(p) Vatt. ii. § 344.

man lends money to a prince upon the faith of an engagement of honour, because a prince cannot be compelled like other men in an adverse way by a court of justice. So scrupulously did England, France and Spain adhere to this public faith that even during the war they suffered no inquiry to be made, whether any part of the public debts was due to subjects of the enemy, though it is certain many English had money in the French funds, and many French had money in the English funds (q). In 1752 the King of Prussia detained by way of reprisals the sums assigned upon Silesia, the payment of which he had engaged to the Empress Queen to take upon himself, and of which the reimbursement was stipulated by an express article of the treaty by which that Duchy was ceded to him. These sums were due in respect of a loan to the Emperor of Germany, Charles 6. This loan was not a state transaction, but a mere private contract with the lenders, who advanced their money upon the Emperor's obliging himself, his heirs and posterity to repay the principal with interest, at the rate in the manner and at the times in the contract mentioned, without any delay, demur, deduction or abatement whatsoever; and lest the words and instruments made use of should not be strong enough, he promised to secure the performance of his contract in and by such other instruments, method, manner, form and words, as should be most effectual and valid to bind the said Emperor, his heirs, successors and posterity, or as the lenders should reasonably desire. As a specific security he mortgaged his revenues arising from the Duchies of Upper and Lower Silesia for payment of the principal and interest, and the whole debt, principal and interest was to be discharged in 1745. If the money could not be paid out of the revenues of Silesia, the Emperor, his heirs and posterity still remained debtors, and were bound to pay. The eviction or destruction of the thing mortgaged does not extinguish the debt or dis

(9) Answer to Pruss. Mem., 1 Coll. Jur. 154.

charge the debtor. Therefore the Empress Queen, without the consent of the lenders, made it a condition of her yielding the Duchies of Silesia to his Prussian Majesty, that he should stand in the place of the late Emperor in respect of this debt. The seventh of the preliminary articles between the Queen of Hungary and the King of Prussia, signed at Breslaw the 11th of June, 1742, is in these words: "Sa majesté le roi de Prusse se charge de seul paiement de la somme hypothéquée sur la Silésie aux marchands Anglois selon le contract signé à Londres le 7 Janvier, 173." This stipulation is confirmed by the ninth article of the treaty between their said Majesties, signed at Berlin the 28th of July, 1742. In consideration of the Empress Queen's cession his Prussian Majesty engaged to pay this money selon le contrat, and consequently bound himself to stand in the place of the late Emperor in respect thereof to all intents and purposes (r). Upon these facts the question arose, whether the King of Prussia could lawfully seize this money as reprisals. The question is discussed in the answer to the Prussian memorial, which Montesquieu characterized as an answer that admits of no reply (s). The Emperor, it is argued, could not have seized this money as reprisals, or even in case of open war between the two nations, because his faith was engaged to pay it without any delay, demur, deduction or abatement whatsoever. If these words should not extend to all possible cases, he plighted his honour to bind himself by any other form of words more effectually to pay the money; and, therefore, was liable at any time to be called upon to declare expressly that it should not be seized as reprisals or in case of war, which is very commonly expressed when sovereign princes or states borrow money from foreigners. Therefore, supposing for a moment that his Prussian Majesty's complaint was founded in justice and the law of nations, and that he had a right to make reprisals in general; he could not (r) Answer to Pruss. Mem., 1 Coll. Jur. 154.

(s) Mont. litt. a l'Abbé de Guasco, 5 March, 1753-cf. Vatt. ii. § 84.

consistently with his engagements to the Empress Queen seize this money as reprisals. Besides this whole debt, according to the contract, ought to have been discharged in 1745. It should, in respect of the private creditors in justice and equity, be considered as if the contract had been performed, and the Prussian complaints do not begin till 1746, after the whole debt ought to have been paid (t).

To justify acts of reprisal there is required the authority of the sovereign signified by letters of reprisal, and to justify the issuing of such letters the sovereign must have been injured in his own rights, or in those of his subjects, without being able to obtain justice from the tribunals or sovereign of the country against which they are issued.

First. The authority of the sovereign is essential to the legality of reprisals. The right of reprisals is a right of sovereignty. As the exercise of the right approaches nearly to an open rupture, by which it is usually followed, it is naturally vested in those who have the right of declaring war; and is much too important a matter to be abandoned to the discretion of private persons (u). Any private person who should take upon himself to make reprisals for any injury he had received, would be guilty of piracy or robbery according to the maxim of the civil law: hostes sunt, qui nobis aut quibus nos bellum publice decernimus, cæteri latrones aut prædones sunt (v). The authority of the sovereign is signified by the grant of letters of marque and reprisal. These words are now used as synonymous. The word marque appears originally to have been used in a more restricted sense to signify the passing the frontiers for the purpose of reprisals; the word reprisals

(t) 1 Coll. Jur. 156.

(u) Guidon x. i.; Loccen. de J. M. iii. 3, iv.; Bynk. Q. J. P. i. xxiv. ; Barbey, note, Grot. iii. 2, vii. 4 (n), and Puff. iii. 16, xiii. (n); Val. Comm. ii. 3, x. ii., and Traité d. P. xx. i. xiii.

(v) Grot. iii. 3, i.

This form is observed in the

exactly corresponds with the Saxon withernam (w). Letters of marque are either general or private. Private letters of marque are grantable on proof of the amount of damage, which is set forth therein in order that the surplus of property captured may be restored to the owner after the payment of damages, interest and expenses (x). Reprisals are therefore to be limited to a certain sum (y). letters granted by Charles 2 to Sir Edmond Turner, and set forth at large in Molloy's work (z). All vessels seized by virtue of letters of marque must be brought in for adjudication in the same manner as vessels captured in time of war (a); that the surplus, if any, may be restored; and that, where vessels are seized that are not liable to seizure, the wrong doer may be made responsible in costs and damages (6).

It is said, that the practice of princes granting private letters of marque against the subjects of a power in amity is obsolete (c). Loccenius also states, that some princes have invariably refused private letters of marque, for fear of provoking war (d). Valin remarks, that such a practice is no proof of the moderation of the governments that have adopted it, or of their love of peace; but rather of their feebleness and pusillanimity; and that any sovereign, who should refuse them on such a pretext, would be regardless of his own honour, and of the justice which he owes to his subjects (e). It is not, however, to be supposed, that letters of marque are to be granted for any wrongs, but such as are of sufficient importance

(w) Grot. iii. 2 (n) c.; Val. Comm. iii. 10, i.

(x) Grot. iii. 2, vii.; Guidon, x. 4; Val. Comm. iii. 10, vi. (y) Life of Sir L. Jenkins, ii. 779

(z) Jus Mar. i. 2, xv.

(a) Loccen. de J. M. iii. 3, 9; Molloy, ibid.; Val. Comm. iii. 10, v.

(b) Loccen. ibid.; Val. Comm. iii. 10, vii.

(c) Per Sir W. Scott, Le Louis, 2 Dod. 245.

(d) De Jur. Mar. iii. 3, iv.

(e) Val. Comm. iii. 10, ii.