BOOK II. CHAP. XVIII. sals. carry on business with each other directly, and can only consider a foreign nation as a society of men who have but one common interest. It belongs therefore to sovereigns alone order reprito make and order reprisals on the footing we have just described. Besides, this violent measure approaches very near to an open rupture, and is frequently followed by one. It is, therefore, an affair of too serious a nature to be left to the discretion of private individuals. And accordingly we see, that in every civilized state, a subject who thinks himself injured by a foreign nation, has recourse to his sovereign, in Letters of order to obtain permission to make reprisals. This is what marque. the French call applying for letters of marque. (135) (135) We may make reprisals against a nation not only for the 2 347. Reactions of the sovereign, but also for those of his subjects: prisals and this may take place when the state or the sovereign par- against a ticipates in the act of his subject, and takes it upon himself, actions of which he may do in several ways, as we have shown in Chap. its subjects, VI. of this Book. nation fo and in favour of the injured In the same manner the sovereign demands justice, or makes reprisals, not only for his own concerns, but also for subjects. those of his subjects, whom he is bound to protect, and whose cause is that of the nation. foreigners. But to grant reprisals against a nation in favour of fo- 3 348. But reigners, is to set himself up as a judge between that nation not in and those foreigners; which no sovereign has a right to do. favour of The cause of reprisals ought to be just: they ought even to be grounded on a denial of justice, either an actual denial, or one which there is good reason to apprehend (§ 343). Now, what right have we to judge whether the complaint of a stranger against an independent state is just, if he has really been denied justice? If it be objected, that we may espouse the quarrel of another state in a war that appears to us to be just, to assist her, and even to unite with her, the case is different. In granting succours against a nation, we do not [ 286 ] detain her property or her people that happen to be within our territories under the public faith; and in declaring war against her, we suffer her to withdraw her subjects and her effects, as will hereafter appear. In the case of reprisals granted to our own subjects, a nation cannot complain that we violate the public faith in seizing on her people or her property; because we are under no other obligation to grant security to that property and those people, than what arises from a reasonable supposition that their nation will not, in the first instance, violate, with respect to us or our subjects, the rules of justice which nations ought to observe towards each other. If she violate them, we have a right to obtain satisfaction; and the mode of reprisals is more easy, safe, and mild, than that of war. We cannot urge the same argu (135) As to decisions on letters of Law, 418-422. Chitty's L. N. 73marque, see 1 Chitty's Commercial 86.-C. BOOK II. CHAP. XVIII. 3349. Those who have demnify those who suffer by them. ments in justification of reprisals ordered in favour of foreigners. For the security we owe to the subjects of a foreign power does not depend, as a condition, on the security which that power shall grant to all other nations, to people who do not belong to us, and are not under our protection. England having, in 1662, granted reprisals against the United Provinces in favour of the knights of Malta,* the states of Holland asserted, with good reason, that, according to the law of nations, reprisals can only be granted to maintain the rights of the state, and not for an affair in which the nation has no concern.† The individuals, who by their actions have given cause for just reprisals, are bound to indemnify those on whom they given cause fall; and the sovereign ought to compel them to do it. For for reprisals ought to in- We are under an obligation to repair the damage we have occasioned by our own fault. And, although the sovereign, by refusing justice to the offended party, has brought on the reprisals against his subjects, those who were the first cause of them do not become the less guilty: the fault of the sovereign does not exempt them from repairing the consequences of theirs. However, if they were ready to give satisfaction to the party whom they had injured or offended, and their sovereign has prevented their doing it, they are not bound to do any thing more in that case, than they would before have been obliged to do in order to prevent the reprisals; and it is the sovereign's duty to repair the additional damage, which is the consequence of his own fault (§ 345). What may be deemed a refusal to do justice. We have said (§ 343) that we ought not to make reprisals, except when we are unable to obtain justice. Now, justice is refused in several ways:-First, by a denial of justice, properly so called, or by a refusal to hear your complaints or those of your subjects, or to admit them to establish their right before the ordinary tribunals. Secondly, by studied [287] delays, for which no good reasons can be given-delays On that subject, the grand pensionary De Witt wrote as follows:"Nothing can be more absurd than that grant of reprisals: for, to say nothing of its proceeding from a board of admiralty, who have no power to grant it without infringing on the sovereign authority of their prince, it is evident that no sovereign can grant or make reprisals, except for the defence or indemnification of his own subjects, whom he is, in the sight of God, bound to protect; but he never can grant reprisals in favour of any foreigner who is not under his protection, and with whose sovereign he has not any engagement to that effect, ex pacto vel fædere. Besides, it is certain that reprisals ought not to be granted except in case of an open denial of justice. Finally, it is also evident, that, even in case of a denial of justice, he cannot empower his subjects to make reprisals, until he has repeatedly demanded justice for them, and added, that, in the event of a refusal, he will be obliged to grant them letters of marque and reprisal." From the answers of M. Boreel, it appears that this conduct of the British admiralty was strongly condemned by the court of France. The king of England testified his disapprobation of it, and gave orders for the release of the Dutch vessels whose seizure had been permitted by way of reprisal.-Edit. 1797. † See Bynckershoek's Competent Judge of Embassadors, chap. xxii. equivalent to a refusal, or still more ruinous. Thirdly, by an evidently unjust and partial decision. But it is necessary that this injustice should be manifest and palpable. In all cases susceptible of doubt, a sovereign ought not to listen to the complaints of his subjects against a foreign tribunal, nor to attempt to screen them from the effects of a sentence passed in due form: for that would be the means of exciting continual troubles. The law of nations directs that states should reciprocally pay that kind of deference to each other's jurisdiction, for the same reason as the civil law ordains, within the state, that every definitive sentence, passed in due form, shall be esteemed just. Between nation and nation the obligation is neither so express nor so extensive: but it cannot be denied, that it is highly conducive to their peace and conformable to their duties towards human society, to oblige their subjects, in all doubtful cases, and, unless where there is a manifest wrong done to them, to submit to the sentences of the foreign tribunals before which their causes have been tried. (See above, § 84). As we may seize the things which belong to a nation, in a 351. Sub? order to compel her to do justice, we may equally, for the jects arrestsame reason, arrest some of her citizens, and not release ed by way of reprisals. them till we have received full satisfaction. This is what the Greeks called Androlêpsia.* At Athens the law permitted the relatives of him who had been assassinated in a foreign country, to seize three of the inhabitants of that country, and to detain them till the murderer was punished or delivered up. But, in the practice of modern Europe, this method is seldom resorted to, except with a view to obtain satisfaction for an injury of the same nature-that is to say, to compel a sovereign to release a person whom he detains unjustly. The persons, however, who are thus arrested, being detained only as a security, or pledge, in order to oblige a nation to do justice-if their sovereign obstinately persists in refusing it, we cannot take away their lives, or inflict any corporal punishment upon them, for a refusal of which they are not guilty. Their property, their liberty itself, may be staked for the debts of the state; but not their lives, of which man has not the power of disposing. A sovereign has no right to put to death the subjects of a state which has done him an injury, except when they are engaged in war; and we shall see, elsewhere, what it is that gives him that right. those who But the sovereign is authorized to employ forcible means 2 352. Our against those who resist him in the exertion of his right, and right against to pursue such means as far as is necessary to overcome their unjust resistance. It is therefore lawful to repel those who undertake to oppose the making of just reprisals: and if, for that purpose, it be necessary to proceed even so far as to * Ανδροληψία, seizure of men. † Demosthenes, Orat. adv. Aristocrat. oppose reprisals. CHAP. XVIII. BOOK II. put them to death, the whole blame of that misfortune is imputable to their unjust and inconsiderate resistance. In such a case, Grotius would have us rather abstain from making reprisals.* Between private persons, and for things that are not of the highest importance, it is certainly worthy, not only of a Christian, but, in general, of every man of principle, rather to abandon his right than to kill the person who unjustly resists him. But, between sovereigns, the case is otherwise. To suffer themselves to be bullied, would be attended with consequences of too serious a nature. The true and just welfare of the state is the grand rule: moderation is ever laudable in itself; but the conductors of nations ought to practise that virtue so far only as it is consistent with the happiness and safety of their people. 353. Just reprisals do not af ford a just cause for war. 2354. How After having demonstrated the lawfulness of making reprisals when we can no otherwise obtain justice, we may thence readily conclude that a sovereign is not justifiable in making forcible opposition to, or waging war against, the party, who, by ordering or making reprisals in such a case, only exerts his just right. And as the law of humanity directs nations as well as inwe ought to dividuals ever to prefer the gentlest measures, when they are confine our sufficient to obtain justice-whenever a sovereign can, by selves to re- the mode of reprisals, procure a just indemnification or a prisals, or at length suitable satisfaction, he ought to confine himself to this method, proceed to which is less violent and less fatal than war. On this subject, hostilities. I cannot avoid noticing an error which is too general to be wholly disregarded. If it happens that a prince, having reason to complain of some injustice or some acts of hostility, and not finding his adversary disposed to give him satisfaction, determines to make reprisals with the view of endeavouring to compel him to listen to the voice of justice before he proceeds to an open rupture,-if, without a declaration of war, he seizes on his effects, his shipping, and detains them as pledges,-you hear certain men cry out that this is robbery. If that prince had at once declared war, they would not have said a word; they would perhaps have praised his conduct. Strange forgetfulness of reason, and of every sound principle! Would we not, at this rate, be tempted to suppose that nations were bound to observe the laws of chivalry,-to challenge each other to the lists, and decide their quarrels like a pair of doughty champions engaged in regular duel? It is the duty of sovereigns attentively to maintain the rights of their people, and to obtain justice by every lawful means-still, however, preferring the gentlest methods: and we again repeat the assertion-it is evident that the mode of reprisals, of which we are speaking, is infinitely more gentle and less fatal than that of war. But since, between powers whose strength is nearly * Grotius De Jure Belli et Pacis, lib. iii. cap. ii. 26. equal, reprisals often lead to war, they ought not to be attempt- BOOK II. ed, except in the last extremity. In such circumstances, the CHAP. XVIII. prince who has recourse to that expedient, instead of proceeding to an open rupture, is undoubtedly entitled to praise for his moderation and prudence. Those who run to arms without necessity, are the scourges of the human race, barbarians, enemies to society, and rebellious violaters of the laws of nature, or rather, the laws of the common father of mankind. There are cases, however, in which reprisals would be justly condemnable, even when a declaration of war would not be so: and these are precisely those cases in which nations may with justice take up arms. When the question which constitutes the ground of a dispute, relates, not to an act of violence, or an injury received, but to a contested right,— after an ineffectual endeavour to obtain justice by conciliatory and pacific measures,-it is a declaration of war that ought to follow, and not pretended reprisals, which, in such a case, would only be real acts of hostility without a declaration of war, and would be contrary to public faith as well as to the mutual duties of nations. This will more evidently appear, when we shall have explained the reasons which establish the obligation of declaring war previous to a commencement of hostilities.* But if, from particular conjunctures, and from the obstinacy of an unjust adversary, neither reprisals, nor any of the methods of which we have been treating, should prove sufficient for our defence, and for the protection of our rights, there remains only the wretched and melancholy alternative of war, which will be the subject of the following book. * See Book III. chap. iv. 391 |