times not only goods, but individuals, have been made the subjects of reprisals; as when, in 1740, the Empress of Russia arrested a Baron Stackelberg, who was born her subject, but was an officer in the Prussian service, and the King of Prussia seized two Russians till Stackelberg was. liberated. (1) Grotius quotes from Homer, and from the Roman history of the time of the Tarquins, instances where redress by reprisals was resorted to in ancient times, (2) the retaliation of robbery for robbery being in fact a method of obtaining satisfaction that was at once obvious, and congenial to the rude habits of the period. And in the middle ages there were frequently instances in which individuals took the law into their own hands, and seized upon the property of foreigners, to indemnify themselves for injuries sustained from other members of the same State. (3) At the present day, such unauthorized violence on the high seas would be considered, and be (1) Moser, Versuch, VIII. 504. (2) De Jure, lib. III. c. II. § 5. (3) De Martens, Précis, liv. VIII. ch. II. § 260. condemned by the Law of Nations. § 70. The selection of the means and extent of reprisals should be proportionate to the degree of the infraction of the law committed by the enemy. Reprisals that are disproportionately severe are contrary to the rules of international law. § 71. Reprisals shall be allowed only on the authority of the commander-in-chief, who shall likewise determine the degree of their severity and their duration." On the Conference feeling itself com- . pelled to decline to discuss the subject, the first Russian delegate, the Baron A. Jomini, said, "I regret that the uncertainty of silence is to prevail with respect to one of the most bitter necessities of war. If the practice could be suppressed by this reticence, I could but approve of this course. But if it is still to exist this reticence may, it is to be feared, remove any limits to its exercise. Nevertheless, I believe that the mere mention in the protocol that the committee after having endeavoured to regulate, to soften, and to restrain reprisals, has shrunk from the task before the general repugnance felt with regard to the subject, will have a most serious moral bearing. It will, perhaps, be the best limitation we have been able to affix to the practice, and especially to the use which may be made of it in the future." Supplement to the London Gazette, Oct. 23, 1874.-ED.] punished, as piracy. The word reprisal has, in its derivative sense, reference to every sort of retaliation, but at the present day the term is almost exclusively employed for the issuing of letters of marque, commissioning the owners of private vessels to seize upon the ships and cargoes of the subjects of an offending State, for the indemnification of their private injuries. allowable layed. To justify recourse to reprisals, it is indispensably Reprisals only necessary that there should be a denial, or highly inju- when justice is rious delay, of redress for received injuries. This is em- denied or dephatically insisted on by all the great authorities on the Law of Nations. It is the clear dictate of reason that such violent measures, involving great individual calamity, and risking the expenditure of human life, cannot be sanctioned by anything short of necessity, arising from the failure of friendly negotiations. The practice of States uniformly coincides with this dictate of the Law of Nature. In the words of Sir Leoline Jenkins, "reprisals will not lie when there is neither denial of justice nor a delay of it amounting to denial." (1) Grotius says, that the right to use reprisals exists "ubi jus denegatur," and subsequently adds, that this right may not be exercised when the judicature of the offending foreign country will afford redress,-" exteri habent jus cogendi, sed quo uti non liceat quamdiu per judicium suum possint obtinere." (2) Bynkershock says, "ne repressaliæ concedantur, nisi palam denegatâ justitiâ." (3) And Vattel says, that it is after an injured party "has ineffectually demanded justice, or at least that he has every reason to think that it would be in vain for him to demand it; then alone does it become lawful for him (1) Opinions of eminent lawyers on various points of English jurisprudence, edited by Chalmers, vol. II. 324. 5. (2) De Jure, lib. III. c. II. § 4, (3) Quæst. Jur. Pub. lib. I. C. XXIV. This restric tion enforced in many treaties. to take the matter into his own hands, and do himself justice." (1) This line of conduct has also been insisted on in a great number of treaties, especially those made during the middle ages, when the frequency of outrage and piracy occasioned constant resort to reprisals. One curious example regarding reprisals occurring in 1326 has been already mentioned. (2) In the treaty between the Duke of Lorraine and the Count of Flanders in 1339, it was agreed that reprisals should never be resorted to, unless justice had first been sought from the constituted authorities. (3) In the treaty between Henry IV. and the Duke of Burgundy in 1406, it was agreed that no letters of marque, or other reprisals, should be allowed for any acts previous to that treaty. (4) The same stipulation was made in the treaty between Edward IV. and the Hanse Towns in 1474. (5) In the treaty of 1410, between our Henry IV. and the Grand Master of the Teutonic order, it was stipulated that no seizure of property belonging to the subjects of either party shall be made for purposes of indemnification until application has been made to the respective governments for the amount of the injury; but that, if six months elapse without restitution, it shall then be permitted to either party to seize upon the goods of the other's subjects, to the amount of the injury sustained. (6) That such stipulations, regarding the exercise of reprisals, were rendered necessary by the manner in which private retaliation was resorted to in those lawless times, is shewn by its having been even thought necessary to (1) Droit des Gens, liv. II. ch. XVIII. § 343. See further, De Martens, Précis, liv. VIII. ch. II. and Moser, Versuch, VIII. B. XVII. c. 4, § 5. (2) Ante, p. 18. (3) Dumont, Corps Dipl. I. II. 185. (4) Id. II. 1. 305. insert in treaties, that neither party would permit these private hostilities among their respective subjects: as in the treaty between Edward IV. and the King of Castile in 1467, where it is stipulated that neither party shall allow their subjects to make war on the other; (1) and in the treaty of 1470 between Henry VI. and Louis XI. it is stipulated that neither monarch, nor the subjects of either, should exercise hostilities for their own quarrels, or for the quarrels of others. (2) Similar stipulations are found in other treaties before me of the same period. In the sixteenth century, the treaties of commerce continually contain the stipulation that no reprisals are to take place, unless for denial or delay of justice. See for instance the treaties between England and Spain in 1515, (3) between France and England in 1525, (4) and between France and Spain in 1559. (5) In a treaty between England and France in 1510, it was agreed that neither party should grant letters of marque, except against the principal delinquents or their goods, and for manifest delay or denial of justice; (6) this was renewed in the treaties between the same powers in 1514 and 1515; (7) and in their treaty of 1632 it was agreed that reprisals should never be issued unless for denial, or excessive delay of justice, and never to take effect upon goods and ships in harbour, except those belonging to the offender himself. (8) In the treaty between the States General and Morocco in 1610, it is agreed that no reprisals shall be granted on either side, but that prompt justice shall be administered; (9) and a similar stipulation occurs in the treaty between England and Denmark in 1621. (10) But these are exceptions; most treaties allow reprisals Reprisals can to a third party. to be made if there be denial or delay of justice; and in the treaties from the middle of the seventeenth century, it was frequently stipulated that reprisals should be allowed if justice were not done within some definite time, as three, four, or six months: of these several instances lie before me, but I refrain from giving further citations. (1) Reprisals constitute a method whereby a nation obnot be allowed tains justice for its injured subjects, when such justice cannot be obtained by friendly methods. They are a mode of obtaining satisfaction that creates fewer evils than war, and a nation should therefore exercise this right, if it will suffice to the object to be obtained, rather than proceed to the greater calamity of general hostilities. But though a nation has, both by the Law of Nature and by the usage of nations, and frequently also by express convention, a right to resort to reprisals if justice be denied to its subjects, yet no nation has a right to exercise reprisals for the benefit of any but its own subjects. Reprisals are a method of obtaining satisfaction for grievances, and no nation can claim compensation when it has received no injury. Nor can it possibly be admitted that one nation should erect itself into a judge of other nations, and, by taking from one party to give to another, exercise rights that belong only to jurisdiction and sovereignty. Reprisals can only be issued on the denial or delay of justice, and are exclusively a means of obtaining compensation for the injured subjects of the State that grants them. Vattel insists emphatically that a nation cannot grant reprisals except in favour of its own subjects, and he adduces a case in (1) Those who desire to see such will find them in Dumont, VI. II. 76, 121, 347, and VII. 1. 38, 42, and VII. 11. 387, 401, &c., &c., and for more modern instances, De Martens, Recueil, IV. 157, 680, &c. |