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any violation of the existing peace, the sovereign against whose subjects a complaint is made, sits in judgment upon it, and pronounces his own sentence. It is certainly useful to restrict the use of reprisals by similar treaties; for, it would be unjust to take it away altogether between the subjects of independent nations.
It was, however, stipulated, by the 9th article of the treaty between the emperor of Morocco and the states-general, of the 24th of September 1610, “ that neither of the two sovereigns should issue letters of reprisal, but that they should administer justice to each other's subjects.” But this is an idle stipulation; for what is to be done, if justice is not administered? The injured sovereign will then have recourse to reprisals, and will say that he is compelled to it by the exigency of the case. If it be agreed between princes, that justice shall be mutually administered to the subjects of each other, that stipulation should be performed with good faith; but still, it is true, that the obligation to render justice to foreigners, exists independent of treaties, and whether there is or not, a special convention to that effect, reprisals are not to be resorted to, unless justice is previously denied.
It might, perhaps, be supposed, that reprisals are entirely taken away by the 16th article of the abovementioned treaty of the 5th of April 1654,* because it is there agreed, that if any one shall commit an infraction of the peace subsisting between the two powers, the infractor shall be punished, and judgment shall be given within a certain time, which is limited by the same article. But such an inference would not be correct, for, what if the criminal should not be punished, or if what he had forcibly taken away should not be restored? Reprisals, in such a case, would still have to be resorted to; and that such was the intention of the parties, appears by the 24th article of the same treaty, in which, as I have already shewn, there is a mode of proceeding pointed out for the granting of letters of reprisal. Since reprisals are in use among nations, these, and war, which follows close at their heels, * are the only remedies of independent sovereigns, for repelling unjust aggressions, as they cannot submit themselves to the judgment of a foreign prince, which they would consider as a shameful prostitution of their own majesty.
be communicated to the minister residing there, on the part of the prince against whose subjects they are requested to be granted; that within the space of four months or sooner, if it be possible, he may manifest the con. trary, or procure the satisfaction which may be justly due. And if there should not be on the spot, any minister or ambassador from that sovereign, no letters of reprisal shall be issued until after the expiration of the four months, reckoning from the day on which the petition shall have been pre. sented to the prince against whose subjects the letters are applied for, or 10 his privy council.”
The same stipulation is contained in substance, in the 3d article of the treaty of commerce concluded between Great-Britain and France, on the same day with the treaty of Utrecht, and in all the treaties made at Utrecht at the same time between the other powers; "and thus,” says M. Valin, “it has become a part of the common law of nations." Traité des Prises, p. 331.-It is also contained (except the last in the treaty of commerce between France and Great Britain, of the 26th of September 1786, art. 3. T.
* Above, p. 185.
It seems that the power of granting letters of reprisal belongs to the sovereign alone; for, it is beyond the authority of subordinate magistrates. It is so observed every where, even in France, where formerly letters of reprisal were granted by the parliaments.t When the towns of the Netherlands waged separate wars, they, in like manner, granted letters of reprisal. There exists an ancient law of the city of Amsterdam, by which it was provided, that if any injury should be done to one of its citizens out of its territory and jurisdiction, either by main force and violence, or by an unjust judgment, (which last expression, I beg the reader will particularly observe), the
Les représailles-sans annoncer précisément la guerre, y conduisent natureltement, & en sont assez souvent le prélude. Reprisals do not, it is true, precisely indicate war, but they naturally lead to that state of things, and are often enough a prelude to it. Valin, Traité des Prises, p. 321.
+ Cetui droit est de puissance absolue, qui ne se communique ni délègue aux gouverneurs des provinces, villes & cités, amiraux, vice-amiraux ou autres magistrats. The right of granting letters of reprisal, is a right summi imperii, and cannot be communicated nor delegated to the governors of provinces, cities or towns, nor to the admirals, vice-admirals or other magistrates. Le Guidon, c. 10, art. 10. The parliaments of France, however, exercised it until the year 1485, when Charles VIII. by a special or. dinance, reserved it exclusively to himself. Valin, ibid. p. 329. T.
aggrieved party should prefer his complaint to the magistrate of Amsterdam, who should write on the subject, to the magistracy of the place where the injury was committed, and if after receiving an answer, he should still think that his fellow-citizen had been injured and was entitled to redress, he should, by his judicial authority, indemnify the injured party, by issuing process against the persons or goods of the subjects of the prince whose subjects had done the injury, if they should be found within the territory of Amsterdam.*
I have observed, that this law of the city of Amsterdam, says, or by an unjust judgment. It is not enough that the property of our subjects or citizens be taken by virtue of a judgment, it must be also an unjust one. Of this, however, the magistrate of Amsterdam alone was to judge; for, such things are seldom trusted to the judgment of others.f The treaties between sovereigns merely say, that letters of reprisal are not to be granted, unless for a denial of justice; but an unjust sentence will easily be construed into such a denial, and indeed sovereigns will qualify as unjust, every sentence that is not agreeable to them. I
* Those who have obtained letters of reprisal, may, by virtue thereof, seize within their own country, the goods and effects of the subjects of the power, whose subjects have done them the injury; but it must be done viâ juris, by some judicial process, and not manu forti, by private authority, unless there should be danger of the property being carried out of the country, before application could be made to a competent magistrate. Valin, ibid. p. 333.
+ See above, p. 72.
| In the letter of the duke of New-Castle, to Mons. Michell, on the subject of the celebrated controversy with the king of Prussia respecting the Silésia loan, are found the sentiments of the English jurists upon this subject. “The Jaw of nations," say they, “founded upon justice, equity, convenience and the reason of the thing, and confirmed by long usage, does not allow of reprisals, except in case of violent injuries, directed or supported by the state, and justice absolutely denied in re minimè dubia, by all the tribunals, and afterwards by the prince. Where the judges are left free, and give sentence according to their conscience, though it should be erroneous, that would be no ground for reprisals. Upon doubtful questions, different men think and judge differently; and all a friend can desire, is, that justice should be as impartially administered to him, as it is to the subjects of the prince in whose courts the matter is tried.” 1 Magens on Insur. 491.
I have seen many instances in our own country, of letters of reprisal granted by cities and towns. They are vestiges of the ancient liberty of the Hollanders, when the several members of the states were more independent than the states themselves; for, the provincial states, ever since the confederation of Utrecht, although they are severally independent, cannot issue letters of reprisal generally and in every case. Indeed, it might be said, that they cannot issue them in any case, because they are a species of war, and by the 17th article of the said confederation, it is expressly declared to be unlawful for the several provinces to give any cause of war to foreign princes.
The remainder of this chapter treats only of the right of the several provinces of the United Netherlands to issue letters of reprisal; our author thinks that they may do it in their own cause, for an injury done to themselves in their several capacities, but not for an injury done to the union. We have omitted this discussion, as uninteresting to our readers.
These principles are undoubtedly correct, on the supposition, that law and justice are every where impartially administered, according to the old established rules of the law and usage of nations; but where certain courts (as is at present the case in almost every country of Europe) are known to be mere political establishments, and are, properly speaking, ministerial boards, obliged to conform to the decrees and orders of the sovereign, and guided in their decisions by considerations of state policy, varying and fluctuating with every change in the aspect of national affairs, such impartiality from them can hardly be presumed, and tribunals so constituted, ought not to be held up as a shield to ward off the responsibility of the sovereign. In the case just cited, the king of Prussia was not satisfied with the plausible arguments of the English civilians, but demanded and obtained of the British court € 20,000 sterling, as an indemnity for Prussian vessels and cargoes illegally condemned. Examination of the British doctrine, &c. p. 99. And there have been iustances of commissioners being appointed, in pursuance of treaties between neutral and belligerent powers, to reform the unjust judgments of prize tribunals. Treaty between the United States and Great Britain, of the 19th of November 1794, art. 7-between the United States and Spain, of the 27th of October 1795, art. 21. 2 Laws U. S. 473, 534.
Miscellaneous Maxims and Observations.
T is not lawful to take or retain possession of a neutral
fortress, for fear the enemy should occupy it. In the year 1620, the states-general, who had promised to evacuate the fortress of Lieroort, in East Friesland, did not do it, but kept possession of it, “ lest,” said they, “ the enemy should occupy it, and make use of it against themselves.” They were clearly in the wrong, and acted in this against the opinion of prince Maurice of Orange, who was no friend to the Frieslanders, and was warmly attached to the cause of the states. Their conduct was even blamed by their own counsellors, in 1621, and several times afterwards, as Aitzema relates. *
There are men, however, who call themselves lawyers, and who approve of similar injuries, among whom I wish I had not to name the celebrated Grotius.t I can tolerate such an opinion in such men as Zouch and Buddæus, the former
* Aitz. I. 2.
+ Hinc colligere est, quomodo ei, qui bellum pium gerit, liceat locum occupare, qui situs sit in solo pacato: nimirùm si non imaginarium, sed certum sit periculum, ne hostis cum locum invadat, & inde irreparabilia damna det. Hence, it may be inferred, how it is lawful for one who is engaged in a lawful war, to occupy a place situated on neutral territory; particularly if there is a certain and not an imaginary danger of the enemy's occupying it, and from thence doing considerable injury to his adversary. Grot. De F. B. ac P. I. 2. c. 2. § 10. Gronovius, in a note upon this passage in Grotius, considers our author's opinion upon this subject as unreasonable. Dissentit, absque ratione, amplissimus Bynkershoek. Whether his dissent was entirely absque ratione, the awful events which have taken place in Europe within these few years have surely enabled the reader to decide.
T. | De Jure Fec. p. 2. $ 5. s Philosoph. Pract. c. 5. § 6. ult.