moderation. it is not justifiable for a Nation to disturb by force of arms another Nation which is in possession of a territory, if the claimant has only an uncertain or a doubtful title, but a claimant in such a case has a right to compel a possessor, even by force of arms, if Duty of necessary, to come to an amicable discussion of the question of right, or to submit it to arbitration, with a view to settle the point in dispute by articles of agreement. If, on the other hand, a dispute should arise between two Nations on account of an injury received by one of them, the injured party ought to follow a similar rule of proceeding, unless it is convinced that its adversary would not entertain with sincerity its proposal for an amicable reparation, or that the delay, which the discussion of the wrong would give rise to, would only expose it to greater danger of being worsted in an appeal to arms. This moderation is the more becoming, and as Vattel says, is in general cases even indispensable, since the act which a Nation may be disposed to regard as an injury, does not always proceed from a design25 to offend it, and may be rather a mistake than an act of malice. Besides it frequently happens that the injury has been done by individuals without any sanction from the Nation of which they are members, and if satisfaction should be demanded from it, the Nation will not refuse to do justice. Instances are frequent in which Sovereign Princes have refused to countenance the wrongful acts of their subjects towards the subjects of other Sovereign Princes, and have thought it not a derogation from their independence, upon complaint made to them, to give satisfaction for the wrong. It is perfectly consistent with good faith for a Nation, which has received an injury, to make preparations for war, 24 Vattel, L. II. c. 18. § 331. 333. 337. 25 Ibid, L. II. c. 18. § 338. while it attempts by pacific negotiation to obtain reparation for the injury. For war must be presumed to be the necessary alternative, if amicable negotiation should fail, and the right of self-preservation warrants a Nation in taking measures to guard itself against hostile surprise. § 10. When a Nation cannot obtain redress in an amicable manner from another Nation, either for the refusal of a right, or the infliction of a wrong, it may proceed to do justice to itself in the former case by Retorsion, in the latter case by Reprisals. When a Sovereign Prince is not satisfied with the manner in which his subjects are treated according to the laws Retorsion and customs of another Nation, he is at liberty to of Right. declare, that he will treat the members of that Nation of Fact. in the same manner as his own subjects are treated. This is what is called by Vattel26 Retorsion of Right. "There is nothing in this," he observes, "but what is conformable to justice and sound policy. No one can complain on receiving the same treatment which he has exhibited to others." Klüber 27 has instituted a Retorsion distinction between Retorsion of Fact (retorsio facti) and Retorsion of Right (retorsio juris), and limits the application of the latter term to questions of Comity, as distinguished from questions of Right. But the distinction appears to have no practical value, and tends to cause confusion rather than greater clearness. It may be true that for offences against Comity, a Nation has no other remedy than to reciprocate the uncourteous conduct of the offending Nation, for a violation of Comity is clearly not the subject of a just war2, as every Nation must be the final judge for itself of the nature and extent of the Comity or 26 Rétorsion de Droit, L. II. c. 18. $341. Retorsio Juris, Wolfii, Jus Gentium, § 582. 27 Klüber, § 234. 28 Grotius, L. II. c. 22. § 16. courtesy which it will show to other Nations. But there are many rights, for the refusal of which the proper remedy, as between Nations, is passive Retaliation, or in other words Retorsion. Thus if a Sovereign Prince should forbid to the subjects of another Sovereign Prince access to the ports of his territory for the purposes of peaceful commerce, the latter Prince may with justice retort the prohibition upon the subjects of the former in regard to his own ports. But the prohibition of all commerce would not be a suspension 29 of Comity, but a denial of a Natural Right, for the total hinderance of commerce would be contrary to the nature of human society, being the debarring of mankind, as St. Ambrose says, from sharing the goods of their common mother, which are scattered about for the benefit of all. Yet a Nation in such a case would not be justified in having recourse to war. In like manner, if a Nation chooses to grant to the subjects of another Nation special privileges within its territory, although it may be contrary to natural equity to exclude the subjects of other Nations from the enjoyment of similar advantages, yet such exclusion does not constitute a wrong which may be redressed by arms, but only justifies Retorsion or passive Retaliation. Active Retaliation, or the Lex Talionis in its full sense, has Lex Taliono place between Nations, for a Nation has no right to extend a penalty beyond what its own safety requires; and Retaliation which is unjust between individuals, would be much more unjust between Nations, because it would be difficult in the latter case to make the punishment fall upon the actual wrong-doers 30. On the other hand, Sovereign Princes are held to participate so far in the wrongful acts of L. II. c. 18. § 339. Klüber, § 234. 29 Grotius, L. II. c. 2. § 18. nis. their subjects, and subjects are held to be so far amenable for the faults of their rulers, amongst which faults the foremost is their neglect to compel their subjects to do justice to the subjects of other Sovereign Princes, that they may reasonably be required mutually to share the inconveniences, which will result from a reciprocal rule of conduct being adopted by other Nations. § 11. If a Nation has refused to pay a debt to, or has inflicted an injury upon the subjects of another Nation, and the former has refused to make satisfaction or to give redress, the latter may proceed to do Reprisals. justice to its subjects by making Reprisals upon the former. Every political community takes upon itself the responsibility of the acts of its members in relation to other political communities, if, upon complaint made to it, it does not constrain the wrong-doers to make satisfaction. A Nation, as such, only takes cognisance of individual men as members of a Nation, and who, as such, belong either to its own political body, or to some other independent political body. If an individual is a wrong-doer, and is a member of its own body, the Governing Power of a Nation proceeds to exact satisfaction from him according to its own laws; but those laws being only operative within its own territory, a Nation cannot exact satisfaction in like manner from a member of another independent political body, who does not happen to be within its territory. It must in such a case demand at the hands of the Governing Power of the Nation, to which the offending party belongs, satisfaction for the offence; and if the Nation refuses to constrain its own subject to make such satisfaction, it takes upon itself the responsibility of his acts, and makes itself an accessory to the wrong which he has committed. An injured Nation is under such circumstances justified in seizing both the persons and the property of the subjects of the other Nation, with a view to keep them as pledges until it has obtained satisfaction; or even, in the case of property, to apply it at once in satisfaction of the debt, or in compensation for the injury 30. § 12. Embargo is one of the modes of proceeding Embargo. which a Nation may adopt with a view to obtain satisfaction for a debt or an injury. The term is borrowed from the Spanish Law-procedure, and signifies arrest or sequestration; and it is applied to the seizure or detention of persons or property, which happen to be within the territory of a Nation at the time of seizure. Embargo is a term of very varied import. It is frequently used to denote the seizure of ships and cargoes in the ports of a Nation under the authority of its municipal law; and such seizures and the consequent detention are spoken of as Civil Embargoes. An International Embargo, on the other hand, is an act not of civil procedure, but of hostile detention. It may be made for the same object as Reprisals are made upon the high seas, namely, for the satisfaction of a debt, or for the redress of an injury; but it may also be made in cases where Reprisals could not justly be granted, and frequently Equivocal by way of prelude to war. It is, however, not in ter. itself an act of war, but is at first equivocal as to its effect; and if the matter in dispute ends in reconciliation, the seizure, although hostile in form, proves in substance to have been merely a temporary sequestration consistent with relations of amity. On the other hand, if the transaction ends in war, the subsequent hostilities impress a retrospective character on the Embargo, and it is to be considered a 30 Grotius, L. III. c. 2. § 14. Puffendorf, L. I. c. 13. § 10. Vattel, L. II. § 342. in charac |