which the private property even of enemies is treated, ought to make it disgraceful, and drive it into disuse. 2. Retorsion (from retorquere, French, retordre, retort), or retaliation, is to apply the lex talionis to another Retorsion. nation, treating it or its subjects in similar circum stances according to the rule which it has set. Thus, if a nation has failed in comity or politeness, if it has embarrassed intercourse by new taxes on commerce or the like, the same or an analogous course may be taken by the aggrieved power to bring it back to propriety and duty. The sphere of retorsion ought to be confined within the imperfect rights or moral claims of an opposite party. Rights ought not to be violated because another nation has violated them. Reprisals. 3. Reprisals (from reprendere, Latin, repressaliæ, in mediæval Latin, reprisailles, French), consist properly in recovering what is our own by force, then in seizing an equivalent, or, negatively, in detaining that which belongs to our adversary. Reprisals, says Vattel," are used between nation and nation to do justice to themselves, 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, to make a just satisfaction; the other may seize what belongs to it, and apply it to its own advantage, till it has obtained what is due for interest and damage, or keep it as a pledge until full satisfaction has been made. In the last case it is rather a stoppage or a seizure than reprisals; but they are frequently confounded in common language." (Lib. ii., § 342.) Reprisals differ from retorsion in this, that the essence of the former consists in seizing the property of another nation by way of security, until it shall have listened to the just reclamations of the offended party, while retorsion includes all kinds of measures which do an injury to another, similar and equivalent to that which we have experienced from him.1 Embargo, therefore, is a species of reprisals. Reprisals may be undertaken on account of any injury, but 1 Pinheiro-Ferreira in De Martens, vol. ii., § 255. are chiefly confined to cases of refusal or even obstinate delay of justice. Grotius adds that they are authorized, “si in re minime dubia plane contra jus judicatum sit." (iii., 2, § 5, 1.) But this is an unsafe opinion, and to be acted upon only in an extreme case, for the sentence of a regular tribunal will always be supported by some plausible, if not valid reason: there should be the fullest proof of an intention to deny or to overturn justice.1 Where the property of a state is seized by way of reprisals, the proceeding needs no defense; on the other hand, to take the goods of private persons, as security for the reparation of public wrongs, is indefensible, except on the ground that a state and its subjects are so far one as to give it a claim on their property for public purposes, and that the injured state takes the place of the injurer, and exercises its power by the only means within its reach. As, therefore, when a man's land is taken for a public road, he has a claim for compensation, so, when a man loses his property by the violent process of a foreign state against his own country, not he, but the whole society ought to make his loss good. Still, reprisals are inhuman, and, like seizure of private effects in land-war, will, it is to be hoped, ere long, entirely cease. 1 Bluntschli (Mod. Völckerr., § 500) mentions the following ways of reprisals as internationally permissible": (1.) Seizure and sale of the offending state's property found within the territory of the injured state. (2.) Seizure of private property of persons belonging to the offending state provided the latter has unjustly seized property of persons belonging to the injured state. But this, he adds, is a most questionable means of self-help, as it touches neither the guilty nor the responsible party. (3.) Stopping means of communication, as by post, railroad, telegraph, or ships. (4.) Expelling or refusing to receive persons belonging to the injured state within the territory. (5.) Keeping representatives or subjects of the offending state as hostages. (6.) Imprisonment of officials or private citizens of an offending state in requital for the same conduct on its part. (7.) Refusing to fulfill agreements, or to be bound by treaties. (8.) Taking privileges or protection in matters of private right from persons belonging to the offending state. Greek and Roman usages. The Romans knew nothing of reprisals,1 but with great formality defined and observed the limits between peace and war. The Greeks, however, had usages, similar to this, drawn from their simpler semi-barbarous times. Thus, before war was declared, and after the denial of justice, they gave license to their citizens to take plunder from the offending state on land and sea. There was also a custom prevailing between border states, when a homicide had been committed, and the man-slayer was not given up to the relatives of the deceased, of allowing them to seize and keep in chains three countrymen of the wrong-doer, until satisfaction should be rendered. Mediæval and The Greeks here present to us two forms of reprisals, the one where the state gives authority to all, or in a public way attempts to obtain justice by force, which is called general, and the other, where power is given to the injured party to right himself by his own means, or special reprisals. The latter has now fallen into disuse, and would be regarded as an act of hostility, but was with the other a received method of redress in the Middle Ages; nor was it strange that a private person, by the leave of his superior, should wage a war of his own, when private wars were a part of the order of things. Mr. Ward (i., 176), and the English historians, mention an instance of reprisals between the English and French in the 13th century, which might seem to pertain to the Dyaks or the Ojibways. In 1292, two sailors, a Norman and an Englishman, having come to blows at Bayonne, the latter stabbed the former, and was not brought before the courts of justice. The Normans applied to Philip the Fair for redress, who answered by bidding them to take their own revenge. They put to sea, seized the first English ship they met, and hung up several of the crew at the masthead. The English retaliated without applying to their government, and things arose to such a pitch, that two hundred 1 Osenbrüggen, De Jure, etc., p. 35. Schömann, Antiq. Juris Publici, p. 366, and his Griech. Alterthümer, ii., p. 6. Comp. Bynkershoek, Quæst. J. P., i., 24. The Greeks said, σῦλα διδόναι, ῥύσια καταγγέλλειν κατά τινος. Norman vessels scoured the English seas, hanging all the sail- Every authority in those times, which could make war, could grant letters of reprisals. But when power modern began to be more centralized, the sovereign gave to usage. magistrates, governors of provinces, and courts, the right of issuing them, until at length this right was reserved for the central government alone. In France, Charles VIII., at the instance of the States-general, held at Tours, in 1484, first confined this power to the king, for, said the estates, "reprisals ought not to be granted without great deliberation and knowledge of the case, nor without the formalities of law in such matters required." The ordinance of Louis XIV., on the marine, published in 1681, prescribes the method in which injured persons, after they had shown the extent of their damages received from a foreigner, and after the king's ambassadors had taken the proper steps at the foreign courts,— should receive letters of reprisals, permitting them to make prizes at sea of property belonging to the subjects of the state which had denied them justice; and having brought their prizes before the court of admiralty, should, in case everything was lawful, be reimbursed to the extent of their injuries. Since the end of the 17th century but few examples have occurred of reprisals made in the time of peace, and a number of treaties restrict the use of them to the denial or delay of justice.1 1 We cite from Phillimore iii., 16, the following passage in regard to reprisals, and the time that ought to elapse before they are granted on complaint of denial of justice. "By the 24th Article of the treaty between England and Holland, of the 5th of April, 1854, three months are to elapse after application for redress before reprisals are granted By the 17th Article of the treaty between France and Holland, 27th of April, 1669, four months are to elapse, after the application for redress, before reprisals are granted. The same period is prescribed . XX § 119. Besides the forms of violent redress here mentioned, there has been an attempt to establish another in the pres Pacific ent age, to which the name of Pacific Blockade has been given. Heffter has sanctioned such a right by his great authority (§ 112 of ed. 3), and Cauchy has given to it a qualified support (" Droit Maritime," ii., 428). Most other writers on this branch of law have passed it over in silence, while Hautefeuille (ii., 272 ff. of the 2d ed.) and Gesner (“Le Droit des Neutres sur Mer," Berl., 1865, pp. 215-223) with Pistoye and Duverdy ("Traite des Prises," 376-378) have denied its existence. Comp. an article in the "New Englander" for July, 1869, on the Alabama (pp. 587-593), by the author of this work. The points most worthy of notice, as regards Pacific Blockade, are, in brief, these: 1st. The so-called right was quite unknown, we believe, until 1827, and all the cases of it occurred between that year and 1838. They were five in number: (1.) The blockade of the coasts of Greece by the three powers, who, while they claimed that the state of peace with Turkey had not ceased, ended the affair by destroying her fleet at Navarino. (2.) That of the coasts of Portugal by France in 1831. (3.) That of New Granada by the English in 1836. (4.) That of Mexico by the French in 1838. (5.) That of the Argentine Republic, begun in 1838 and continued for ten years. Three of these ran out into measures of violence, which went beyond mere blockade. 2d. The higher French courts decided, in the case of a Brazilian vessel seized for breach of blockade, that a part of by the treaty of Ryswick (Art. IX.), and by the treaty of Utrecht (Art. XVI.), 11th of April, 1713, between France and England, and by the third article of the commercial treaty, concluded on the same day between the same parties. The same period is prescribed by the famous commercial treaty of Versailles, 1789, between France and England (Art. III.). In fact, the obligation to allow a tempus idoneum to elapse before reprisals are granted, may now be considered, still more reasonably than in the time of Valin, 'le droit commun des nations.'” |