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tirely with my opinion, I submit them to the reader, without observation or comment.
It may not be improper to notice here, a difference which took place in the year 1666, between the states-general, and the governor-general of the Spanish Netherlands. The states complained to him, that the bishop of Munster, with whom they were at war, had enlisted soldiers in the Spanish territories in the Low Countries. The governor answered, that he had not authorised him so to do, but that if he had, there was nothing to prevent him, as Spain was neutral in the war, and that the states-general might exercise the same right, if they pleased.* But, whether such a thing is lawful, without the consent of the sovereign, and whether the sovereign may, with propriety, refuse his permission, when applied to for it, is the very subject of our inquiry. Whether or not, the bishop of Munster had a right to enlist soldiers in the Spanish
Vetherlands, without the permission of the governor-general, the reader must determine for himself from what has been above stated.
the United States, was fitted and equipped as such, enlist or enter himself, or hire or retain another subject or citizen of the same foreign prince or state, who is transiently within the United States, to enlist or enter himself to serve such prince or state on board such vessel of war, letter of marque or privateer, if the United States shall then be at peace with such prince or state.” 3 Laws U. S. 88.
* Aitz. I. 46.
Of the right of the several provinces of the United Nether.
lands to declare and make war.
1 N this chapter our author discusses a constitutional question,
relating exclusively to his own country, under its former government. He inquires, “ whether the united provinces of the Netherlands had separately the right of declaring and making war. From the tenor of one of the articles of the Confederation of Utrecht, (the federal constitution of the Dutch union), it would seem that they had not that power; for, it is there expressly stipulated, “ that no war shall be made without the advice and consent of all the provinces;” but our author contends and argues at great length, that every power which by that treaty was not expressly granted, was retained by the several provinces; that before it was entered into, they separately had the right of declaring and making war, and had not explicitly parted with it. That the abovementioned clause in their confederation was only applicable to national wars, entered into for the redress of national injuries; but that if a single province should receive an injury from a foreign state, it might lawfully avenge it by a separate war.
As we do not think that this chapter can interest our readers in any point of view, we have omitted it in this translation, and believe it sufficient to have given this general outline of its contents.
DEPRISALS* were a thing entirely unknown to the anIl cient Romans, and cannot be expressed by an adequate word in their language. Some writers have used the words pignoratio, clarigatio, but neither of them renders with precision what we understand by reprisals. Nor had the Romans occasion for such a word, who paid the most sacred regard to the property of their friends, and who would have disdained to commit hostilities on those for whom they professed friendship, and to subject their good friends to indiscriminate, plunder, by sea and land.
As there is no instance of such wickedness in the history of that magnanimous people, neither do their laws exhibit
* The word reprisal, according to its etymology, is synonimous with recaption or retaking, and the thing which is meant by it, is analogous in name as well as in substance, to the common law process of withernam; with this difference, that the one is a legal retaliation, exercised only on the goods and chattels of the party who has been guilty of the first tortious taking; the other is exercised on the property of all the indi. viduals of the same nation, “ For," says Valin, “it is a principle established by the universal law of nations, that all the subjects of a state are bound in solidum, to make reparation for the injuries done to foreigners by the state itself, or any of its members.” Traité des Prises, p. 321.
Reprisals are either general or special.-They are general, when a sovereign, who has, or thinks that he has received an injury from another prince, issues orders to his military officers, and delivers commissions to his sub. jects to take the persons and property of the subjects of the other nation, wherever the same may be found. It is, at present, the first step which is generally taken at the commencement of a public war, and is considered as equivalent to a declaration of it.
Special reprisals are granted, in time of peace, to individuals who have suffered an injury from the subjects of another nation, and these alone are treated of in the present chapter.
the least trace of it. How then shall we explain the stipulation which is contained in two different treaties * between Spain and the United Provinces, “ that no letters of marquet or reprisal shall be granted, but with full knowledge of the cause, against those persons only on whom they may lawfully be issued by the Imperial laws and constitutions, and conforming to the regulations which those laws prescribe?” For, in the laws of Justinian, which are always understood by the general description of Imperial laws in countries that are not governed by an emperor, there is not a single word about reprisals, which, as I have already observed, were entirely unknown to the Romans. In order to rescue from the imputation of ignorance, the very learned men who drew up those treaties, I must suppose, that by Imperial laws, they meant the law of nations, which, as well as the law of Justinian, is denominated throughout Europe, the common law,t so that they must have considered the words common and Imperial law, as convertible terms. I cannot think of any other way of accounting for that mistake.
According to the law of nations, then, reprisals are not to be granted but with a full knowledge of the cause,nor for
* Truce of the 9th of April 1609, art. 11.–Treaty of Munster, of the 23d of January 1648, art. 22.
† Letter of marque and reprisal is the old technical expression for what we now call a privateer's commission. It still preserves, in law, the same signification, although it is common, at present, to apply the denomination letter of marque, by way of distinction, to a vessel fitted out for war and merchandize, and armed merely for defence.
T. I See note † above, p. 53. T.
$ In order that letters of reprisal may not be granted, without ful! knowledge of the cause, or without sufficient reasons, various wise precautions were taken by Louis XIV, in his Ordonnance de la Marine, of August 1681. By that ordinance, the party injured, is obliged, as soon as possible after the injury suffered, to cause the facts to be ascertained, and the damage to be estimated by a court of admiralty; after which, and not before, he may petition the crown for letters of reprisal; these are not issued until after a proper and fruitless application to the sovereign of the offending party, nor then, without sufficient security being given by the petitioner; and notwithstanding all that, if at a future day, the statement contained in the petition should be found not to be true, the petitioner is to be condemned to the payment of full damages and interest to the party whose pro.
such causes or against such persons as the law exempts from them, nor then without conforming to the rules and order of proceeding which usage has established. The first of these rules, is, that letters of reprisal are not to be granted, unless there has been a clear and open denial of justice. Hence, by the treaties above mentioned, * it was agreed between us and Spain, “ that if any injury should be done not warranted by the orders of his majesty on the one hand, or of the statesgeneral on the other, the peace should not be thereby considered as ipso facto broken, but that it should be lawful, in case of an open denial of justice, to seek redress according to custom, by issuing letters of marque and reprisal.” Such is the common law, which has long been and still is used among nations, when justice is denied by the sovereign, and it is conformable to the opinion of all who have written on this subject. There is never any occasion for reprisals, except in time of peace, though Mornacf is of opinion, that they cannot be granted, except where there is actual war. But he is certainly mistaken.
Reprisals, therefore, are a means of redress, to be used only in case of a denial of justice. They are an authorization, granted by a sovereign, to take the persons and goods of the subjects of another prince; in order to obtain satisfaction for an injury# committed upon his own subjects,s for which
perty shall have been seized by virtue of the letters of reprisal, and moreover, to restore four times the amount which he shall have received. For the sake of greater regularity, letters of reprisal are, in all cases, to express the sum for which they are given, and to specify a time to which their exercise is limited, and after the expiration of which, they become void. Ord. de la Mar. l. 3. tit. 10. Des Représailles.
T. * Art. 31, of the truce, and 60 of the treaty above mentioned. + Ad auth. sed omnino, cod. ne uxor pro marito. .
| Valin is of opinion, that letters of reprisal may be granted not only for reparation of an injury done by means of actual force and violence, but also for a debt justly due by a subject of a foreign power, for which the creditor has not been able to obtain justice in a regular course of legal proceedings. Traité des Prises, p. 321.
. T. $ Mr. Valin is also of opinion, that not only a subject, by birth or naturalization, may apply for and obtain letters of reprisal, but also a