which obtained considerable reputation. The Abbé Mably also attempted to treat this subject systematically, in an essay entitled Principes des Négotiations, which is commonly prefixed as an introduction to his Droit Publique de l'Europe, in the various editions of the works of that author. A catalogue of the different histories which have appeared of particular negotiations would be almost interminable; but nearly all that is valuable in them will be found collected in the excellent work of M. Flassan, entitled L'Histoire de la Diplomatie Française. The late Count de Ségur's compilation from the papers of Favier, one of the principal secret agents employed in the double diplomacy of Louis XV., entitled Politique de tous les Cabinets de l'Europe pendant les Règnes de Louis XV. et de Louis XVI., with the notes of the able and experienced editor, is a work which also throws great light upon the history of French diplomacy. A history of treaties, from the earliest times to the Emperor Charlemagne, collected from the ancient Latin and Greek authors, and from other monuments of antiquity, was published by Barbeyrac, in 1739. (a) It had been preceded by the immense collection of Dumont, embracing all the public treaties of Europe, from the age of Charlemagne to the commencement of the eighteenth century. (b) The best collections of the more modern European treaties are those published at different periods by Professor Martens, of Göttingen, including the most important public acts upon which the present conventional law of Europe is founded. To these may be added Koch's Histoire abregée des Traités de Paix depuis la Paix de Westphalie, continued by Schöll. A complete collection of the proceedings of the Congress of Vienna has also been published in German, by Klüber. (e) 150

(a) Histoire des Anciens Traités, par Barbeyrac, forming the first volume of Dumont's Supplément au Corps Diplomatique.

(b) Corps Universel Diplomatique du Droit des Gens, &c. 8 tomes, fol. Amsterd. 1726-1731. Supplément au Corps Universel Diplomatique. 5 tomes, fol. 1739. (c) Acten des Wiener Congresses in den Jahren 1814 und 1815; von J. L. Klüber. Erlangen, 1815 und 1816. 6 Bde. 8vo.

[15) Appendix II. to Woolsey's Introduction contains a list of the most important treaties since the Reformation, with a brief statement of their provisions. See also Phillimore's Intern. Law, iii. 650, Index, title “Treaties.”] — D.

PART FOURTH.

INTERNATIONAL RIGHTS OF STATES IN THEIR HOSTILE RELATIONS.

Redress

means between na

tions.

CHAPTER I.

COMMENCEMENT OF WAR, AND ITS IMMEDIATE EFFECTS.

§ 290. THE independent societies of men, called States, by forcible acknowledge no common arbiter or judge, except such as are constituted by special compact. The law by which they are governed, or profess to be governed, is deficient in those positive sanctions which are annexed to the municipal code of each distinct society. Every State has therefore a right to resort to force, as the only means of redress for injuries inflicted upon it by others, in the same manner as individuals would be entitled to that remedy were they not subject to the laws of civil society. Each State is also entitled to judge for itself, what are the nature and extent of the injuries which will justify such a means of redress.

Among the various modes of terminating the differences between nations, by forcible means short of actual war, are the following:

1. By laying an embargo or sequestration on the ships and goods, or other property of the offending nation, found within the territory of the injured State.

2. By taking forcible possession of the thing in controversy, by securing to yourself by force, and refusing to the other nation, the enjoyment of the right drawn in question.

3. By exercising the right of vindictive retaliation, (retorsio facti,) or of amicable retaliation, (rétorsion de droit); by which

last, the one nation applies, in its transactions with the other, the -same rule of conduct by which that other is governed under similar circumstances.

4. By making reprisals upon the persons and things belonging to the offending nation, until a satisfactory reparation is made for the alleged injury. (a)

§ 291. This last seems to extend to every species of Reprisals.

forcible means for procuring redress, short of actual war, and, of course, to include all the others above enumerated. 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, when they consist in seizing the persons and effects belonging to the other nation, in order to obtain satisfaction. (a)

Reprisals are also either general or special. They are general, when a State which has received, or supposes it has received, an injury from another nation, delivers commissions to its officers and subjects to take the persons and property belonging to the other nation, wherever the same may be found. It is, according to present usage, the first step which is usually taken at the commencement of a public war, and may be considered as amounting to a declaration of hostilities, unless satisfaction is made by the offending State. Special reprisals are, where letters of marque are granted, in time of peace, to particular individuals who have suffered an injury from the government or subjects of another nation. (b)

Reprisals are to be granted only in case of a clear and open denial of justice. The right of granting them is vested in the sovereign or supreme power of the State, and, in former times, was regulated by treaties and by the municipal ordinances of different nations. Thus, in England, the statute of 4 Hen. V., cap. 7, declares, “That if any subjects of the realm are oppressed in time of peace by any foreigners, the king will grant marque in due form to all that feel themselves grieved;" which form is specially pointed out, and directed to be observed in the statute. So, also, in France, the celebrated marine ordinance of Louis XIV., of 1681, prescribed the forms to be observed for obtaining special letters of

(a) Vattel, liv. ii. ch. 18. Klüber, Droit des Gens Moderne de l'Europe, § 234. (a) Klüber, § 234, note c.

(b) Bynkershoek, Quæst. Jur. Pub. lib. i. Duponceau's Transl. p. 182, note.

marque by French subjects against those of other nations; but these special reprisals in time of peace have almost entirely fallen into disuse. (c)

Effect of

§ 292. Any of these acts of reprisal, or resort to forcireprisals. ble means of redress between nations, may assume the character of war in case adequate satisfaction is refused by the offending State. "Reprisals," says Vattel," are used between nation and nation, in order to do themselves justice 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, or to give adequate satisfaction for it, the latter may seize something belonging to the former, and apply it to its own advantage, till it obtains payment of what is due, together with interest and damages; or keep it as a pledge till the offending nation has refused ample satisfaction. The effects thus seized are preserved, while there is any hope of obtaining satisfaction or justice. As soon as that hope disappears they are confiscated, and then reprisals are accomplished. If the two nations, upon this ground of quarrel, come to an open rupture, satisfaction is considered as refused from the moment that war is declared, or hostilities commenced; and then, also, the effects seized may be confiscated. (a) 151

(c) Vattel, Droit des Gens, liv. ii. ch. 18, §§ 342-346. Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 24. Martens, Précis du Droit des Gens Moderne de l'Europe, Martens, Essai concernant les Armateurs, § 4.

liv. viii. ch. 2, § 260.

(a) Vattel, Droit des Gens, liv. ii. ch. 18, § 342.

[151 Reprisals. Reprisals may be granted for injuries to private citizens as well as to the State, and when done by foreign individuals as well as when by public authority. The granting of letters of reprisal (not of marque and reprisal) to citizens injured by private hands, to remunerate themselves by reprisals on private property of any citizens of the nation of the wrong-doer, has been reprobated by the best modern writers, and discountenanced by the practice of nations. It entails all the responsibilities of national acts, with none of their political or moral securities. (Stephens's Blackstone, ii. 516. Phillimore, iii. 22. Woolsey, § 114. Halleck, 298, § 12.) Especially is it true, that, for injuries done directly to the State, letters of general reprisal are not now issued to private persons in time of peace. The issuing of such letters would now be considered an act of war. (Kent, i. 61. Halleck, 299.) Phillimore, iii. 24-36, contains a summary of the chief modern instances of general reprisals.

The right of making reprisals is not limited to property, but extends to persons. Still, the practice of modern times discountenances the arrest and detention of innocent persons, strictly in the way of reprisal. (Halleck, 301, § 16. Phillimore, iii. 23.)

By the later usage of speech, the term "letter of marque" seems to be confined to the authorization to private armed trading vessels to make captures of property of the enemy in war. If there is no declared or recognized status of war, and the government,

Embargo

§ 293. Thus, where an embargo was laid on Dutch property in the ports of Great Britain, on the rupture of previous to the peace of Amiens, in 1803, under such circumstances of hostilias were considered by the British government as consti

declaration

ties.

for a public purpose, desires to seize property, in the way of security or warning or specific retaliation, such authorization to such vessels would be called "letters of reprisal," or "letters of marque and reprisal." If, in time of war, the private vessel receiving the authorization is fitted out and employed solely as a cruiser, she is called a "privateer."

It is agreed that reprisals for private wrongs should never be resorted to by a government until all reasonable appeals to the government of the wrong-doer have been exhausted. The course of the British Government in the case of Pacifico, in making reprisals against Greece, has been condemned, not only because the preliminary methods had not been exhausted, but because of the extortionate character of the demand made against a power incapable of resistance. (Phillimore, iii. 29-33. Halleck, 298, § 11.)

The case of McLeod, sometimes discussed in this connection, was in no sense a case of reprisal. In time of peace, McLeod, being in New York, was arrested and tried before the regular judicial tribunals, in the usual course of criminal procedure, on a charge of murder and arson committed by him within the territory of New York. The case took an international character only from the fact, that, after his arrest, the British Government assumed the responsibility for his act, in an address to the United States Government. The question of law involved was, whether, as peace existed between the United States and Great Britain at the time of the act done, and down to the time of the trial, and the responsibility for his act was not assumed by the British Government at the time of its commission nor until the trial, and he was not a commissioned officer of the government, and the act was done within the limits of New York, the courts of New York were ousted of their jurisdiction by such an assuming of responsibility. The Supreme Court of New York held that it did not lose its jurisdiction thereby. As the verdict of the jury was of acquittal, the question did not get before the Supreme Court of the United States. Mr. Webster, then Secretary of State, admitted, in his correspondence with Mr. Fox, the British Minister, that the intervention of the British Government did require our government to protect McLeod against judicial proceedings; and the adjustment of the diplomatic controversy was upon that principle, which has also received the sanction of the best writers. (Halleck, 303, § 19-23. Webster's Diplomatic Papers, 120-140. Webster's Works, vi. 247-270. People v. McLeod, Wendell, xxv. 483. Appendix to Wendell's Rep. xxvi. 663. Annual Register, 1841, viii. 310. Phillimore, iii. 50-54.)

The remedy of retorsion, where there is no recognized war, is distinguished from strict reprisals. It is the application of the lex talionis to nations, and is confined to cases of the violation of mere comity, or of the imperfect obligations. It is not proper to resort to specific retaliation for cases of serious injury and injustice. The tendency of modern times is to put every thing which may result in public international controversy directly into the hands of the government, and to confine all acts of force to public military officers, and to simplify these acts of force into acts of war, either special and preliminary, or general. (Woolsey, § 114. Halleck, 296, § 10. Kent, i. 93, 94. Manning, 105. Klüber, § 234. Heffter, §§ 110, 111. Phillimore, iii. 8.) By treaties and the practice of nations, the making of reprisals is now confined to the seizure of commercial property on the high seas, by public cruisers, or private cruisers specially authorized thereto. Heffter, § 110.]—D.