and false notion which represents evil as effentially and in its own nature worthy of punishment. We have fhewn above (Book I. 169), what is the true origin of the right of punishing *; whence we have deduced the true and juft proportion of penalties (Book I. § 171). Let us fay then, that a nation may punish another which has done her an injury, as we have fhewn above (fee Chap. IV. and VI. of this Book), if the latter refuses to give her a just fatisfaction: but fhe has not a right to extend the penalty beyond what her own fafety requires. Retaliation, which is unjuft between private perfons, would be much more fo between nations, because it would, in the latter cafe, be difficult to make the punishment fall on thofe who had done the injury. What right have you to cut off the nofe and ears of the embaffador of a barbarian who had treated your embaffador in that manner? As to thofe reprifals in time of war which partake of the nature of retaliation, they are juftified on other principles; and we shall speak of them in their proper place. The only truth in this idea of retaliation is, that, all circumftances being in other refpects equal, the punishment ought to bear fome proportion to the evil for which we mean to inflict it,-the very object and foundation of punishment requiring thus much.

§ 340.

Various

It is not always neceffary to have recourfe to arms, in order to punish a nation. The offended party may, by way of punish modes of ment, deprive her of the privileges the enjoyed in his dominions, punishing, feize on fome of her property, if he has an opportunity, and detain it till fhe has given him fufficient fatisfaction.

without

having recourse to

arms.

§ 341.

When a fovereign is not fatisfied with the manner in which his fubjects are treated by the laws and cuftoms of another nation, he is at liberty to declare that he will treat the subjects of Retortion. that nation in the fame manner as his are treated. This is what is called retortion. There is nothing in this, but what is conformable to juftice and found policy. No one can complain on receiving the fame treatment which he gives to others. Thus the king of Poland, elector of Saxony, enforces the law of efcheatage only against the fubjects of thofe princes who make the Saxons liable to it. This retortion may also take place with refpect 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. Such are the orders relating to the importation or exportation of certain commodities or merchandise. On the other hand, circumftances frequently forbid us to have recourfe to retortion. In this refpect, each nation may act according to the dictates of her own prudence.

Reprifals are ufed between nation and nation, in order to do § 342. themselves juftice when they cannot otherwife obtain it. If a na- Reprifals tion has taken poffeffion of what belongs to another, -if she refufes to pay a debt, to repair an injury, or to give adequate fatisfaction

Nam, ut Plato ait, nemo prudens punit quia peccatum eft, fed, ne peccetur.” Seneca, de Ira.

for

8343.

them law

ful.

for it, the latter may feize fomething belonging to the former, and apply it to her own advantage till the obtains payment of what is due to her, together with intereft and damages, or keep it as a pledge till the has received ample fatisfaction. In the latter cafe, it is rather a ftoppage or a feizure, than reprifals: but they are frequently confounded in common language. The effects thus feized on are preferved while there is any hope of obtaining fatisfaction or juftice. As foon as that hope difappears, they are confifcated, and then the reprifals are accomplished. If the two nations, upon this ground of quarrel, come to an open rupture, fatisfaction is confidered as refufed from the moment that war is declared or hoftilities commenced; and then alfo the effects feized may be confifcated.

It is only upon evidently just grounds, or for a well-ascertained What is re- and undeniable debt, that the law of nations allows us to make quired to reprifals. For he who advances a doubtful pretenfion, cannot in render the firft instance demand any thing more than an equitable examination of his right. In the next place, before he proceed to fuch extremities, he fhould be able to fhew that he has ineffectually demanded juftice, or at least that he has every reason to think it would be in vain for him to demand it. Then alone does it become lawful for him to take the matter into his own hands, and do himself juftice. It would be too inconsistent with the peace, the repofe, and the safety of nations, with their mutual commerce, and the duties which bind them to each other, that each one should be authorised to have immediate recourse to violent measures, without knowing whether there exift on the other fide a difpofition to do her justice, or to refuse it.

eflects re

prifals are made.

But in order perfectly to understand this article, it must be observed, that if, in a disputable cafe, our adversary either refufes to purfue or artfully evades the neceffary fteps for bringing the matter to the proof,-if he does not candidly and fincerely accede to fome pacific mode of terminating the difpute,-efpecially if he is foremost in adopting violent measures,--he gives justice to our cause which before was problematical: we may then have recourfe to reprisals, or the feizure of his effects, in order to compel him to embrace the methods of conciliation which the law of nature preferibes. This is the laft remaining effort previous to a commencement of open hoftilities.

5 ༣44. We have obferved above (§ 81), that the wealth of the citiUpon what zens conftitutes a part of the aggregate wealth of a nation,-that, between state and ftate, the private property of the members is confidered as belonging to the body, and is anfwerable for the debts of that body (82): whence it follows, that in reprisals we feize on the property of the fubject just as we would on that of the state or fovereign. Every thing that belongs to the nation is fubject to reprifals, whenever it can be feized, provided it be not a depofit intrufted to the public faith. As it is only in confequence of that confidence which the proprietor has placed in our good-faith, that we happen to have fuch deposit in our

hands,

hands, it ought to be refpected, even in cafe of open war. Such is the conduct obferved in France, England, and elsewhere, with refpect to the money which foreigners have placed in the public funds.

He who makes reprisals against a nation, on the property of§ 345. its members indiscriminately, cannot be taxed with feizing the The state ought to property of an innocent perfon for the debt of another: for in compenfate this cafe the fovereign is to compenfate thofe of his fubjects thofe who on whom the reprisals fall; it is a debt of the state or nation, of fuffer by rewhich each citizen ought only to pay his quota *. prifals.

can order

It is only between state and state that all the property of the§ 346. individuals is confidered as belonging to the nation. Sovereigns The fovetranfact their affairs between themselves; they carry on bufinefs reign alone with each other directly, and can only confider a foreign nation reprisals. as a fociety of men who have but one common interest. It belongs therefore to fovereigns alone to make and order reprifals on the footing we have just described. Befides, this violent. meafure approaches very near to an open rupture, and is frequently followed by one. It is therefore an affair of too ferious a nature to be left to the difcretion of private individuals. And accordingly we fee, that, in every civilised state, a subject who thinks himself injured by a foreign nation, has recourse to his fovereign in order to obtain permiffion to make reprisals. This is what the French call applying for letters of marque.

against a

nation

We may make reprisals against a nation not only for the ac- § 347tions of the fovereign, but also for those of his fubjects: and this Reprifals may take place when the ftate or the fovereign participates in the infor act of his fubject, and takes it upon himfelf; which he may actions of do in feveral ways, as we have fhewn in Chap. VI. of this Book. its fubjects, In the fame manner the fovereign demands juftice, or makes reprifals, not only for his own concerns, but also for thofe of his injured fubfubjects, whom he is bound to protect, and whofe caufe is that jects.

of the nation.

and in fa

vour of the

favour of

But to grant reprisals against a nation in favour of foreigners, is § 348. to fet himself up as judge between that nation and thofe foreign- But not in ers; which no fovereign has a right to do. The caufe of repri- foreigners. fals ought to be juft: they ought even to be grounded on a denial of justice, either an actual denial, or one which there is good reafon to apprehend (§ 343). Now what right have we to judge whether the complaint of a stranger against an independent ftate is juft, if he has really been denied juftice? If it be objected, that we may efpoufe the quarrel of another ftate in a war that appears to us to be juft,-to affift her, and even to unite with her, the cafe is different. In granting fuccours against a nation, we do not detain her property or her people that happen to be within our territories under the public faith; and in declaring war against her, we fuffer her to withdraw her fubjects and her

*On the subject of reprisals, it is neceffary to obferve, that when we adopt that expedient as being a gentler mode of proceeding than that of war, the reprifals ought not to be general. The grand penfionary De Witt very properly remarked "I do not fee any difference between general repritas and open w.r."

effects,

$249.

repritals

ought to indemnify

thote who

fuffer by

them.

effects, as will hereafter appear. In the cafe of reprisals granted to our own fubjects, a nation cannot complain that we violate the public faith in feizing on her people or her property; because we are under no other obligation to grant fecurity to that property and thofe people, than what arifes from a reasonable suppofition that their nation will not in the first inftance violate, with refpect to us or our fubjects, the rules of justice which na tions ought to obferve towards each other. If the violate them, we have a right to obtain fatisfaction; and the mode of reprifals is more eafy, fafe, and mild, than that of war. We cannot urge the fame arguments in juftification of reprifals ordered in favour of foreigners. For the fecurity we owe to the subjects of a foreign power does not depend, as a condition, on the fecurity which that power fhall 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 fiates of Holland afferted with good reafon, 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 concernt.

The individuals who by their actions have given cause for juft Thofe who reprisals, are bound to indemnify thofe on whom they fall; and caufe for the fovereign ought to compel them to do it. For we are under an obligation to repair the damage we have occafioned by our own fault. And although the fovereign, by refufing juftice to the offended party, has brought on the reprifals againft his fubjects, thofe who were the first cause of them do not become the lefs guilty the fault of the fovereign does not exempt them from repairing the confequences of theirs. However, if they were ready to give fatisfaction to the party whom they had injured or offended, and their fovereign has prevented their doing it, they are not bound to do any thing more in that cafe, than they would before have been obliged to do in order to prevent the reprisals; and it is the fovereign's duty to repair the additional damage, which is the confequence of his own fault (§ 345).

*On that fubject, the grand penfionary De Witt wrote as follows-"Nothing " can be more abfurd than that grant of reprifals: for-to fay nothing of its pro"ceeding from a board of admiralty who have no power to grant it without in"fringing on the fovereign authority of their prince-it is evident that no fove"reign can grant or make reprfals, except for the defence or indemnification of his own fubjects, whom he is, in the fight of God, bound to protect: but he can never grant reprifas in favour of any foreigner who is not under his prote&iou, "and with whofe fovereign he has not any engagement to that effect, ex patto vel "fædere. Befides, it is certain that reprisals ought not to be granted except in "cafe of an open denial of juftice. Finally, it is alfo evident, that, even in cafe "of a denial of justice, he cannot empower his fubjects to make reprifals, until he "has repeatedly demanded juice for them, and added, that, in the event of a refufal, he will be obliged to grant them letters of marque and reprifal."From the answers of Mr. Boreel, it appears that this conduct of the tritish admiralty was ftrongly condemned by the court of France. The king of Eng and tefti fied his difapprobation of it, and gave orders for the release of the Dutch vellels whofe feizure had been permitted by way of reprifal.

See Bynckerfhock's Competent Judge of Embaffadors, chap. xxii. § 5.

We

be deemed

We have faid (§ 343) that we ought not to make reprifals, ex§ 350. cept when we are unable to obtain juftice. Now juftice is refuf- What may ed in feveral ways:-First, by a denial of juftice, properly fo call- a refufal ed, or by a refufal to hear your complaints or thofe of your fub- to do jus jects, or to admit them to eftablish their right before the or- tice. dinary tribunals. Secondly, by ftudied delays, for which no good reafons can be given,-delays equivalent to a refufal, or still more ruinous. Thirdly, by an evidently unjuft and partial decifion. But it is neceffary that this injuftice fhould be manifeft and palpable. In all cafes fufceptible of doubt, a fovereign ought not to listen to the complaints of his fubjects against a foreign tribunal, nor to attempt to fcreen them from the effects of a fentence paffed in due form: for that would be the means of exciting continual troubles. The law of nations directs that states fhould reciprocally pay that kind of deference to each other's jurifdiction, for the fame reafon as the civil law ordains within the ftate that every definitive fentence, paft in due form, fhall be esteemed juft. Between nation and nation, the obligation is ncither fo exprefs nor fo extenfive: but it cannot be denied, that it is highly conducive to their peace, and conformable to their duties towards human fociety, to oblige their fubjects, in all doubtful cafes, and unlefs where there is a manifeft wrong done to them, to fubmit to the fentences of the foreign tribunals before which their caufes have been tried. (See above § 84.)

8 35T.

way of re

As we may feize the things which belong to a nation, in order to compel her to do juftice, we may equally, for the fame reafon, Subjects arreft fome of her citizens, and not release them till we have rearrested by ceived full fatisfaction. This is what the Greeks called Andro- priials. lepfia*. At Athens the law permitted the relatives of him who had been affaffinated in a foreign country, to feize three of the inhabitants of that country, and to detain them till the murderer was punished or delivered up f. But in the practice of modern Europe, this method is feldom reforted to, except with a view to obtain fatisfaction for an injury of the fame nature,-that is to fay, to compel a fovereign to releafe a perfon whom he detains. unjustly.

The perfons, however, who are thus arrefted, being detained only as a fecurity or pledge in order to oblige a nation to do juftice, if their fovereign obftinately perffts in refufing it, we cannot take away their lives, or inflict any corporal punishment upon them, for a refufal, of which they are not guilty. Their property, their liberty itself, may be ftaked for the debts of the ftate; but not their lives, of which man has not the power of difpofing. A fovereign has no right to put to death the fubjects of a state which has done him an injury, except when they are engaged in war; and we fhall fee elsewhere, what it is that gives him that right.

*Ardpohatia, feisure of men.

† Demofthenes, Orat. adv. Ariftocrat.

But