its treaties of friendship and alliance with it, and there is an end to all international amity towards its subjects. Thus it was contemplated by President Jefferson" in 1808, that recourse should be had by the United States of America to General Reprisals against the Continental System of the Emperor Napoleon, on the assumption that a repeal of the edicts issued by the Emperor and by the President of the United States respectively would at once revive relations. of peace without the delay and ceremonies of a treaty. Jefferson, it is true, speaks of the relations which would exist between France and the United States under a system of General Reprisals as relations between belligerents; but so in a certain sense are Special Reprisals, being acts of forcible possession for the attainment of right, which are not altogether consistent in theory with perfect peace between Nations, yet in practice they are held to be exceptional measures consistent with amity, and which do not give rise to a State of War. The more correct view seems to be, that General Reprisals per se are not inconsistent with a State of Peace, although they may be in certain cases a preliminary step towards a Condition public war. According to present usage, they are tion of war, in the nature of a conditional declaration of war, al declara. which, however, may still be averted by an offer of satisfaction from the offending State. Chief Justice Hale, in his Pleas of the Crown (Vol. I. p. 162, 3), 47 Perhaps the advocates of the second (war) may to a formal declaration of war prefer general letters of Mark and Reprisal, because on repeal of their edicts by the belligerents, a revocation of the letters of Mark restores peace without the delay, difficulties, and ceremonies of a treaty. Letters of Jefferson to Lt. Governor Lincoln, Washington, Nov. 13, 1808. Jefferson's Correspondence, 8vo. Lond. 1829, Vol. IV. p. 119. 48 Letters of Marque and Reprisal are mentioned in the 9th of the Articles of Confederation of the United States (anno 1781) as issuing in time of peace. says, against that "General Marque or Reprisal doth not make the two Nations in a perfect state of hostility between them, though they mutually take from one another, as enemies, and many times, in process of time, these General Reprisals grow into a very formal war and this was the condition of the war between us and the Dutch 22 Feb. anno 1664, the first beginning whereof was by that Act of Council, which instituted only a kind of universal Reprisal, and there were particular reasons of State for it, but in process of time it grew into a very war, and that without any war solemnly denounced." Thus General Reprisals Letters of Marque and Reprisal were issued by England Spain in against Spain on 10 July, 1739, by reason of Spain 1739exercising a right of search over English vessels beyond the limits of her jurisdictional waters on the coast of South America. The Ambassadors of both Powers, notwithstanding this, remained at their respective posts. Spain in return issued Letters of Reprisal on 20th July, 1739, and it was not until two months had expired after the English Letters of Reprisal had been issued, that the Ambassadors of the two Nations left the Courts to which they had been respectively accredited. War was formally declared by England on 19th October, 1739. against the § 18. That General Reprisals are distinct in character from War, and are not attended with that interruption of all friendly relations which War entails, may be inferred from the proceedings which took place in Reprisals 1839-40, between her Britannic Majesty's Govern- Two Sicilies ment and the Government of the King of the Two in 1839. Sicilies, in reference to the Sulphur Monopoly in Sicily, which had been granted by the Crown of Naples to a Company of French Merchants, (Messrs. Taix, Aycard, and Cie.) The British Government held that the grant made to the French Company was a breach of the Treaty of Commerce of 1816 between Great Britain and the Two Sicilies. On this occasion, after the British Minister at Naples had formally demanded the revocation of the grant made to the French Company, and the Neapolitan Government had declined to comply with this demand, orders from the British Government were transmitted to the Admiral of the British fleet in the Mediterranean Sea "to cause all Neapolitan and Sicilian ships which he might meet with either in the Neapolitan or Sicilian waters to be seized and detained, until such time as notice should be received from her Majesty's Minister at Naples that the just demand of her Britannic Majesty's Government had been complied with." Lord Palmerston, then Secretary of State for Foreign Affairs, upon the announcement that the British Admiral was proceeding to carry out his instructions, sent a despatch to the British Minister at Naples (April 14, 1840), in which he observes, that "as the Reprisals, which Sir Robert Stopford has been instructed to make, do not, however, constitute war, it is not the wish of Her Majesty's Government that you should follow up those steps by quitting Naples. If indeed the Neapolitan Government were to add to the injustice, which it has committed towards British subjects in regard to the Sulphur Monopoly, by any acts of violence towards British subjects or property, you would in such case leave Naples, and retire to Rome, there to await further instructions." On 17th April the British fleet began to make Reprisals in the vicinity of Naples, and captured a number of Neapolitan vessels. An Embargo was at the same time laid in the ports of Malta on all vessels that bore the 49 49 British and Foreign State Papers, 1840, 41, p. 202. pre Sicilian flag 50. Naples, not always § 19. Although General Reprisals do not neces- Reprisals sarily put an end to all relations of amity, and so far lawful. are means for procuring international redress short of actual war, there are cases in which it would not be lawful to use Reprisals by way of prelude to war, and in which a proclamation of General Reprisals would be equivalent to a proclamation of War. To such cases the observation of the Grand Pensionary De Witt 52 is justly applicable, when he remarked, that he saw no distinction between the General Reprisals made by the British Government and open War. Acts of Reprisal as distinguished from acts of War are only allowed by the Law of Nations, when there has been a denial of justice to a well-founded claim, or such a delay as is inconsistent with an honest intention to do justice. "Reprisals," says 50 Annual Register, 1840, p. 210. 51 Annuaire Historique Uni versel, 1840, p. 48. 52 Letter to the King in Council, Oct. 8, 1675. Jenkins. Grotius. Bynkershoek. Vattel. Sir Leoline Sir Leoline Jenkins, "will not lie where there is neither denial of justice, nor a delay amounting to denial." Reprisals," writes Grotius, " are a species of violent execution, which takes place when Right is denied 54." Reprisals," says Bynkershoek 55," are not to be granted except upon an open denial of justice." It is only for an evidently just cause,' writes Vattel 56, " and for a clear and undeniable debt, that the Law of Nations allows us to make Reprisals; for he who advances a doubtful claim cannot in the first instance demand anything more than a fair examination of his right. In the next place, before he proceed to such extremities, he should be able to show that he has ineffectually demanded justice, or at least that he has every reason to think that 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 to do himself justice." International justice may be denied in several ways, either by the refusal of a Nation to entertain the complaint at all or to allow the right to be established before its ordinary tribunals, or by studied delays and impediments, for which no good reason can be given, and which in effect are equivalent to a refusal, or by an evidently unjust and partial decision 57. But if a court of competent jurisdiction should pass an erroneous judgment in a doubtful question in which a foreigner is a party, such a result would give no right of Reprisals to 53 Sir Leoline Jenkins's Works, Vol. II. p. 778. 54 Locum autem habet, ut aiunt juris consulti, ubi jus denegatur. Grotius de Jure B. et P., L. III. c. 2. § 14. 55 Quæstiones Juris Publici, L. I. c. 24. 56 Law of Nations, L. II. c. 18. $343. 57 Vattel, L. II. c. 18. § 350. |