here, on the threshold of the terrible code of war, as indeed throughout the whole system of International Jurisprudence, we are met by this cardinal maxim, viz., that the opinions and feelings of the individual citizen are, so far as foreign States are concerned, bound up in the declarations and acts of the Government of his country. The jus iniquum (p) of one State is to be encountered by the retorsio legis et juris of another (9). "Quod quisque in alterum statuerit, ut ipse eodem jure "utatur," is the maxim of jurisprudence applicable to this case. In other words, Retorsion is the remedy for these departures from Comity. How and in what manner the Retorsion shall be effected,-whether by withdrawing reciprocal, analogous, or other privileges from the subjects of the offending State,-is a matter rather of International, than of Public Law (r). (p) For the distinction between jus iniquum and injustitia, vide post. (q) Klüber, s. 234, n. d. "Die Retorsion ist eine Reaction gegen eine Iniquität (jus iniquum), die Repressalien gegen eine Ungerechtigkeit (injustitia)."-Heffters, s. 111, note. CHAPTER II. REPRISALS. VIII. RETORSION, we have seen, is a vindication of offended COMITY (a). But even an injury done to the Rights, stricti juris, of a State, may be vindicated by the employment of a kind of force, which nevertheless falls short of war, and the use of which is, and has always been held to be, compatible with the maintenance of general pacific relations. Such a vindication may be sought and obtained through the medium of Reprisals. "Observa," Bynkershoek says, "Repressaliis locum non esse nisi in pace" (b). 66 IX. It must be remembered, that as the Rights of a State partly respect the collective capacity of the State, its Government or its Representative, partly the individuals of which it is composed, so a State may be injured in two ways, either directly, by a violation of the Right affecting its collective capacity, or indirectly (c) by a violation of the Right of the individual to whom it owes protection, in return for his allegiance. For it is to be borne in mind that individuals have committed the defence of themselves to the State of which they are members, and, having done so, they are not entitled to redress their own injuries, or, to use a common but expressive phrase, "to take the law into their own hands." The principle of law which forbids this course is thus laid down in (a) Heffters, s. 110. 66 66 the Digest: "Non est singulis concedendum, quod per magistratum publicè possit fieri, ne occasio sit majoris "tumultûs faciendi " (d). This important doctrine is enforced by a judgment of Lord Stowell, in which he says, "It is a wild conceit, that wherever force is used, it may be lawfully resisted. A lawful force cannot be lawfully re"sisted. The only case where it can be so is in the state of "war and conflict between two countries, where one party "has a perfect right to attack by force, and the other an equal right to resist by force. But, in the relative situa"tion of two countries at peace with each other, no such "conflicting rights can possibly co-exist" (e). 66 And it is also to be observed that force is substituted for law, whenever redress is sought otherwise than judicially, (including under this term, in International Law, remonstrance by Governments,) even though no injury be inflicted upon person or property. It is well said in the Roman Law, "Tu vim putas esse solum si homines vulnerentur; vis est "tunc, quoties quis id, quod deberi sibi putat, non per "judicem reposcit " (ƒ). X. (g) It most commonly happens that Reprisals are re (d) Dig. L. t. xvii. s. 176. (e) The Maria, 1 Robinson, Adm. Rep. pp. 360–1. The Marianna Flora, 11 Wheaton's (Amer.) Rep. 56. (f) Dig. iv. ii. 13. (g) Grotius, 1. iii. c. ii., Quomodo Jure Gentium bona subditorum pro debito Imperantium obligentur : ubi de Repressaliis, ss. 4, 5, 6, 7. Wolff, Jus Gentium, c. v. ss. 589-606. Bynkershoek, Q. J. P. c. xxiv. See, too, notes to Mr. Du Ponceau's (American) translation. (Philadelphia, 1810.) Ib. De For. Leg., c. xxii. Vattel, 1. ii. c. xviii. ss. 342–354. Valin, Ordonnance de la Marine, 1. iii. t. x., Des Lettres de Marque, on de Représailles. De Martens, 1. viii. c. ii. 260. Zouch, p. 120, on Repræsaliæ sint licitæ. Sir L. Jenkins, ii. pp. 718, 721-2, 759, 763, 778. Wheaton, Elem. i. 4me Pue ch. ii. Manning, L. of N. c. iii. Kent, Comm. i. pp. 56-8. sorted to for the purpose of redressing injuries inflicted upon the Right of Individuals. As we are now drawing very near to the borders of actual war (h), and are discussing a redress which is to be enforced viâ facti (i), it is expedient to consider what kind of injuries inflicted upon individuals justify a recourse to Reprisals. With respect to injuries upon States, in their collective capacity, it may be laid down as acknowledged law, that Reprisals, according to the modern understanding of International Law, cannot, and ought not to be, granted. General Reprisals, that is, a general permission accorded to the subjects of one State to seize the goods and attack the lives of the subjects of another, do, in fact, constitute a state of war, and are yet considered to be without the pale of the rules of law applicable to war. De Witt was quite correct in saying that he could discover no distinction between General Reprisals and open War. The two are now, by the practice of nations, synonymous (k). In the late war between England and Russia, an Order of the English Council issued on the 29th of March, 1854, in these terms: Her Majesty having determined to afford "active assistance to her ally, His Highness the Sultan of the 66 "Alia executionis violentæ species est rexvpaapòg sive pignoratio inter populos diversos, quod jus repressalium vocant recentiores jurisconsulti, Saxones et Angli Withernamium" (probably from wiedernehmen, to retake), "et Galli etiam, ubi à rege impetrari id solet, literas Marcæ.” -Grot. ib. iv. Repressalium nomen servo, quia nullum aliud magis aptum occurrit quod rem ipsam significat: alii utuntur voce pignorationis, alii clarigationis, sed neutram convenire satis est manifestum; operam ludunt qui rem, apud Romanos incognitam, Latino vocabulo conantur exprimere."-Bynk. ib. (h) "Postquam autem Repressaliæ involvêre et hæc, et secuta mox bella," &c.-Bynk. ib. (i) Vide ante, vol. i. p. 11. (k) Jefferson appears to have contemplated a recourse to General Reprisals, but as a form of open war, against the "Continental System," "because, on a repeal of their edicts by the belligerents, a revocation of the letters of marque would restore peace without the delay, difficulties, and ceremonies of a Treaty."-Jefferson, Correspondence, vol. iv. p. 119. cited by Manning, p. 116. 66 66 "Ottoman Empire, for the protection of his dominions against "the encroachments and unprovoked aggression of His Imperial Majesty the Emperor of all the Russias, Her Majesty is therefore pleased, by and with the advice of "her Privy Council, to order, and it is hereby ordered, "that General Reprisals be granted against the ships, vessels, "and goods of the Emperor of all the Russias, and of his "subjects, or others inhabiting (1) within any of his countries, territories, or dominions, so that Her Majesty's fleets and ships shall and may lawfully seize all ships, vessels, and "goods," &c. 66 XI. What are the causes which justify Special Reprisals? -"locum autem habet, ut aiunt jurisconsulti, ubi jus dene"gatur" (m). 66 An injury committed upon one of his subjects, for which justice has been plainly denied, or unreasonably delayed (n), warrants a Sovereign in issuing Letters of Marque or Re (1) Vide post. (m) Grot. ib. 1. iii. iv. (n) Vattel, 1. ii. c. xviii. s. 343. "Ne repressaliæ concedantur nisi palam denegatâ justitiâ."Bynk. ib. "Nor do I know of any Treaty, either ancient or modern, wherein provision is made for this case; but it requires a legal process, first in the Law Courts, then an appeal or supplication to the Prince or Supreme Power, before such a denial of justice can be stood upon, as is to be repaired by Letters of Marque or Reprisals."-Life of Sir L. Jenkins, vol. ii. p. 759, et vide ib. pp. 718, 721, 722, 759, 772. "Alors en cas de refus sans cause légitime, ou des délais trop affectés, un Roi manqueroit à sa gloire et à la justice qu'il doit à ses sujets, s'il ne leur accordoit pas des Lettres de Représailles sous prétexte que la guerre peut s'ensuivre."-Valin ubi supr. 419. "The provisions as to Reprisals in the famous French Ordonnance of 1681, are little more than a modernised reproduction of those in the Guidon de la Mer on the same subject. In this collection of the maritime usages of the 15th and 16th centuries it is said: 'Lettres de Marque ou Représailles se concèdent par le Roy, Potentats, ou Seigneurs Soverains en leurs terres ; quand hors le fait de la guerre, les sujets de diverses obeyssances ont pillé, ravagé les uns sur les autres, et que par voye de justice ordinaire, droit n'est rendu aux intéressez, ou que par temporisation ou délais, justice leur est desniée.""-C. x. art. i., cited Ortolan, Dipl. de la Mer, i. 389. |