have told rather in favour of those strong governments which have been enlightened enough to turn these forces most astutely to account for their own purposes, and yet have failed to be enlightened enough to count war too dear a price to pay for what they sought. The increased rapidity and wide destructiveness of modern wars-due to the constitution of modern armies, to the use of steam-locomotion, and to improvements in artillery-while tending to make war and the assiduous preparation for it more expensive, tend, likewise, to facilitate resort to it on the slightest provocation, if the temptation be sufficiently strong. On the other hand, it cannot be denied that there are many influences of daily increasing strength which are steadily tending in favour of a general pacific policy. In addition to the educational and popular influences alluded to in the text, the commercial habits and growing intercourse of the populations of modern States, and the publicity of diplomatic negotiations-owing, partly, to the existence of the public press and, partly, to the diffusion of parliamentary institutions-tend to render war an object of increasing popular concern and general abomination. Such a sentiment must not only conduce to the prevention of war by the popular pressure exerted on the governments of would-be Belligerents, but must also contribute greatly to reinforce the energies of Neutrals in confining wars to the narrowest possible area and in bringing them to the earliest possible close.-ED.]

Retorsion.

CHAPTER II.

OF RETORSION-EMBARGO-REPRISALS-AND

PRIVATEERS.

BESIDES the sad alternative of obtaining redress by war, there are various methods, of a forcible nature, by which a State may obtain justice to its injured subjects, and which do not interrupt the relations of amity. One of these is called Retorsion, a name used for the employment of the same hard treatment of the subjects of a State, as this State has used towards the subjects of another State, by whose government retaliation is resorted to as a means of obtaining the removal of the obnoxious measures. (1)

(1) For further notice on Retorsion, see Vattel, liv. II. ch. XVIII. § 341. De Martens, Précis,

liv. VIII. ch. II. § 254. Klüber, Droit des Gens., Sect. II. ch. II. § 234.

[* Retorsion is said to be the characteristic remedy against jus iniquum, that is, want of comity or fairness in the laws of one State as affecting the citizens of another.

Reprisals is the remedy against injustitia. See Heffter, § 110.

The following is the passage from Vattel cited in the note (1):— "When a sovereign is not satisfied with the manner in which his subjects are treated by the laws and customs of another nation, he is at liberty to declare that he will treat the subjects of that nation in the same manner as his are treated. This is what is called Retorsion. There is nothing in this but what is conformable to justice and sound policy. Thus the King of Poland, Elector of Saxony, enforces the law of escheatage only against the subjects of those princes who make the Saxons liable to it. This retorsion may also take place with respect to certain regulations, of which we have no right to complain, and which we are even obliged to approve, though it is proper to guard against their effect by imitating them."

The right of Retorsion is claimed, and the exercise of it, in a particular case, regulated by the 37th clause of Magna Charta: "All merchants, unless they have been publicly prohibited, shall have safety

Embargo is a term used for the sequestration, either Embargo. temporary or permanent, of the property of individuals for the purposes of a government. Embargoes have been often imposed by governments with no hostile purpose, but merely to obtain some immediate object; such as by an embargo on shipping to obtain vessels for the transport of troops, the owners being reimbursed for this forced service; and this exercise of authority was formerly so frequent as to have occasioned the usual insertion, in treaties of commerce, of an article declaring that the subjects of neither power shall be liable to this, often injurious, treatment. But the species of embargo we are now considering is when for injuries received, or anticipated, from another power, an embargo is laid upon the property of the subjects of that State found in the territory of the aggrieved country. If the injury be removed or compensated, upon the repeal of the embargo intercourse is restored on its usual footing; if

and security in going out of England and in coming into England, and in staying in and in travelling through England, as well by land as by water, to buy and sell, without any unjust exactions, according to ancient and right customs, excepting in the time of war, and if they be of a country at war against us; and if such are found in our land at the beginning of a war, they shall be apprehended, without injury of their bodies and goods, until it be known to us, or to our chief justiciary, how the merchants of our country are treated who are found in the country at war with us, and if ours be in safety there, the others shall be in safety in our land." The proceedings here contemplated might be either by way of Retorsion or Reprisals according as the treatment of English merchants by the enemy was merely oppressive or transparently unjust. Of course the line cannot be always clearly drawn between the one kind of treatment and the other, nor therefore between the two sorts of appropriate remedies.

Retorsion has been sometimes distinguished into Retorsio juris and Retorsio facti. Retorsio juris is the sort of retaliation which is inflicted by making a change in the law to the disadvantage of the citizens of the offending State. Retorsio facti would seem to imply strictly nothing more than an act or course of action resorted to by the executive government. Retorsio facti is, in fact, a species of Reprisals.]

justice be denied, the means of redress are in our own hands, either wholly or partly, by confiscating the goods and obtaining indemnification from the proceeds.*

66

[* Embargo (derived from the Spanish embargar, to hinder or detain) has been distinguished into civil and hostile; and civil embargo again into that which a State exercises towards its own subjects or the subjects of other States with which it is on friendly terms, and that which it exercises in order to bring pressure to bear on a State with which it has a difference and as a possible precursor of war. An instance of the civil embargo of the first kind is supplied by the conduct of the United States in 1807 and 1808 (see the complaints presented by citizens of Boston and Philadelphia, and President Jefferson's answer to them in the Annual Register, vol. xlix.). The right known as the "Droit d'Angarie" (from the word ayyapos, a Persian word appearing in the New Testament in the form ayyapɛúa-"I press as a messenger") is, in fact, a civil embargo of the first kind. It is defined by Sir R. Phillimore (Part IX. ch. II.) to be "an act of the State by which foreign as well as private domestic vessels, which happen to be within the jurisdiction of the State, are seized upon and compelled to transport soldiers, ammunition, or other instruments of war; in other words, to become parties against their will to carrying on direct hostilities against a power with whom they are at peace." Heffter extends the right to neutral merchandise, magazines, grain and the like, either within the territory of the State or arrested on the open sea. A full account of this right,-if it be any other than the questionable sort of right which circumstances of special necessity occasionally call into ephemeral existence,-will be found in Hautefeuille's "Rights and Duties of Neutral Nations," tit. 14, pp. 433-452. A recent instance of the exercise of this so-called right was supplied in the Franco-German War of 1870, when the German general, in command at Rouen, seized some English vessels and sunk them in the Seine at Duclair in order to prevent French gunboats from running up the river and cutting off the communication between the German corps on the two banks. Count Bismarck alleged that the measure in question, however exceptional in its nature, did not overstep the bounds of international warlike usage. The English. Government in reply confined itself to insisting on compensation to the persons whose property had been destroyed. (See Hall's "Rights and Duties of Neutrals," p. 188.) The meaning of a hostile embargo and its relation to a subsequent condition of peace or of war, as the case may be, can be gathered from the following extract of Sir W. Scott's judgment in the case of the "Boedes Lust" (5th Robinson, p. 246): "The seizure was at first equivocal, and if the matter in dispute had terminated in reconciliation, the seizure would have been converted into a mere civil embargo, so terminated. That would have been the retroactive effect of that course

Reprisals are a seizure of property belonging to Reprisals. the subjects of a State that has inflicted unredressed grievances on the subjects of another State.* Some

of circumstances. On the contrary, if the transactions end in hostility, the retroactive effect is directly the other way. It impresses the direct hostile character upon the original seizure. It is declared to be no embargo; it is no longer an equivocal act subject to two interpretations; there is a declaration of the animus by which it was done, that it was done hostili animo, and is to be considered as a hostile measure ab initio * * * It was a provisional seizure declared to be hostile by subsequent events acting in a reflex manner upon all the property then seized."]

[* The proper definition of the term Reprisals would seem to make its signification much larger than that given in the text. It would seem to cover all the methods by which a State, on conceiving itself to be injured, resorts to what the Germans call "self-help," and takes the law into its own hands either by the action of the executive government or by the means of licences granted to private citizens. Wheaton's definition is as follows:-"The mode of making reprisals seems to extend to every species of forcible means for procuring redress, short of actual war, and, of course, to include all the others above enumerated (such as embargo and retorsion in its various kinds). Reprisals are negative, 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. They are positive where they consist in seizing the persons and effects belonging to the other nations, in order to obtain satisfaction." (Eighth edition by Dana, p. 369.) See also Heffter, § 111. One sort of reprisals not considered in the text, but to which recent wars have drawn special attention,-and which formed a special topic in the programme discussed by the late Conference at Brussels on the Rules of Military Warfare in 1874,—is the species of retaliation which the commander-in-chief of an army exercises against an enemy or the private citzens in an enemy's territory in case of an infraction by them of the laws of war. In this sense of the term the consideration of them does not strictly belong to the present place, but it may be entered upon conveniently in order to prevent the necessity of recurring to it again. It was held, indeed, at the Conference, that occasions on which reprisals of a severe character had been executed were of far too recent a date to allow the practice to be discussed calmly. The passage relative to reprisals in the original project ran as follows: § 69. "Reprisals are admissible in extreme cases only, due regard being paid, as far as shall be possible, to the laws of humanity, when it shall have been unquestionably proved that the laws and customs of war have been violated by the enemy, and that they have had recourse to measures L

M.