« AnteriorContinuar »
Of the right of the several provinces of the United Nether.
lands to declare and make war.
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.
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 individuals 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 Created 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, 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,ỹ nor for
* Truce of the 9th of April 1609, art. 11.— Treaty of Munster, of the 230 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.
See note + above, p. 53. T $ In order that letters of reprisal may not be granted, without full knowJedge 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 Mornact 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 injurycommitted upon his own subjects,g for which
perty shall have been seized by virtue of the letters of reprisal, and more. over, to restore four times the amount which lie 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. 1. 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
justice has been denied by the sovereign of the offending party. Thus, an injury committed by force and violence, and not repressed by the competent magistrate, is redressed by the same means and in the same manner.
In order that no one should rashly complain of a denial of justice, special provisions have been made by treaties between different nations. By the 24th article of the treaty of peace between England and the states-general of the 5th of April 1654, reprisals are not to take place, except sub modo; for, it is there stipulated, “that letters of reprisal shall not be granted, unless the prince, whose subject shall conceive himself to have been injured, shall first lay his complaint before the sovereign whose subject is supposed to have committed the tortious act, and unless that sovereign shall not cause justice to be rendered to him within three months after his application. This stipulation was renewed by the 31st article of the treaty of peace between the same nations, of the 31st of July 1667.
There are many other instances of treaties between nations, in which this subject has been attended to. In the treaty of commerce between the king of France and the states-general, of the 27th of April 1669, article 17, after stipulating, that reprisals shall not be resorted to, unless justice shall have been first denied, it is immediately added, " that justice shall not be considered as having been denied, unless the petition by which letters of reprisal are applied for shall have been first communicated to the ambassador of the sovereign whose subjects are complained of, that he may inquire into the truth of the complaint, and if he finds it true, that he may cause justice to be done to the injured party within four months.* Thus, without
foreigner, domiciliated in the country (regnicola;) the state being bound also to protect him, and to consider the injury dune to him as an affront to the majesty of the sovereign. Ibid. p. 225.
T. • By the treaty of Ryswick, art. 9, and the treaty of Utrecht, art. 16, (the latter concluded between England and France on the 11th of April 1713), it is stipulated, " that letters of reprisal shall not thereafter be granted by either of the high contracting parties, to the prejudice or detriment of the subjects of the other, except only in such case wherein justice is denied or delayed; which denial or delay of justice shall not be regarded as verified, unless the petitions of the person who desires the said letters of reprisal
+ 2 A