but after the commission of certain acts of injustice by that government, as were regarded equivalent, in their hostile character, to a declaration of war against Great Britain. The formal declaration of war, which was subsequently made, was held to have a retrospective effect, as rectifying and confirming whatsoever had been done pursuant to the embargo, ordered in consequence of the implied declaration.

"The seizure," says the learned judge, “was at first equivocal; and if the matter in dispute had terminated in a reconciliation, the seizure would have been converted into a mere civil embargo, so termed.

"That would have been the retroactive effect of that course of circumstances. On the contrary, if the transactions end in hostility, the retroactive effect is directly the other way. It impresses the direct hostile character upon the original seizure. It is declared to be no embargo. It is no longer an equivocal act, subject to two interpretations. There is a declaration of the animus by which it is done; that it was done hostili animo, and is to be considered as a hostile measure ab initio. The property taken is liable to be used as the property of trespassers, ab initio, and guilty of injuries which they have refused to redeem by any alteration of their measures. This is the necessary course, if no compact intervenes for the restitution of the property taken before a formal declaration of hos tilities." In another case,1 the same learned judge observed: "Actual hostilities are not to be reckoned

1 The Herstelder, 1 Rob., 114.

Civil embargo.

merely from the date of the declaration, but such declaration has been applied with a retroactive force.” There is no doubt that embargo, as practised in modern times, is sanctioned by the uniform usage of nations.

It substantially conforms to that practised by the Syracusans in the time of Dionysus the Elder (which Mr. Mitford, in his History of Greece, considers a gross violation of the law of nations), who, having declared war against Carthage, at once seized the effects of Carthaginian traders in their warehouses, and Carthaginian vessels in their harbors, and then sent a herald to Carthage to negotiate.

This act of the Syracusans is not distinguishable from the ordinary practice of Great Britain, as declared by Lord Mansfield: "Upon the declaration of war or hostilities, all the ships of the enemy are detained in our ports, to be confiscated as the property of the enemy, if no reciprocal agreement is made."

The consideration of the subject of civil embargoes, as they are called, would be apart from the purpose of this treatise. It is sufficient here to say, that the authority of the government to enforce an embargo upon the ships and merchandise of its citizens and subjects, has been made a subject of grave discussion, both in the United States and in Great Britain. "The civil embargo," says Beawes, "is laid on ships and merchandise in the ports of this kingdom by virtue of the king's proclamation,

1

Lindo vs. Rodney, Doug., 613. 2 Lex Mercatoria, 271.

and is strictly legal, when the proclamation does not contravene the ancient laws, or tend to establish new ones, but only to enforce the execution of such laws as are already in being, in such manner as the king shall judge necessary." The same doctrine, with the like qualifications, is laid down by Blackstone.1

But it has been held that a civil embargo cannot be enforced upon British ships in a foreign port, unless by the consent of the nation to which that port belongs; for the reason that such an embargo would operate to the prejudice of the rights of neighboring nations, which cannot lawfully be disturbed, however much such an act might operate for the benefit of the nation seeking to enforce it.

ordered by the

in 1807.

Whether the civil embargo imposed by the Con- The embargo of the United States in 1807 was sanctioned United States gress by the constitution of the government, was made a government subject of much learned discussion in the federal tribunals at that time, and of much angry controversy in the political assemblages of the people.

effects on the commerce of the nation.

It is certain, that without in any manner accom- Its oppressive plishing the hostile purpose towards Great Britain, which led to its adoption, it inflicted injuries upon the commerce of the northern and eastern states of the Union, of a tenfold greater severity than all the combined injuries received by the southern states, in consequence of an insufficient protection of their peculiar property. It was contended that the power conferred upon Congress to regulate commerce, did not carry with it the power to destroy, to put an

1 Blackstone's Com., I., 7; vide also 4 Mod., 177; Skinņer, 93; 1 Selkeld. 32.

The Gertrude, 2 Rob., 211.

when pro

stitutional by

end to commerce altogether. That regulation was a guidance, a control, an establishment of rules for the government of commerce, and not the power of extinguishing it absolutely and without limitation of time. But the people whose interests were inSubmitted to vaded by this measure of the government, the thou nounced con- sands and hundreds of thousands who were utterly the courts. impoverished and beggared by its results, did not nullify the law-they did not rebel against the government-they did not seize upon the public property-they did not trample upon the constitu tion and the insignia of their common country, and undertake to erect themselves into a separate confederacy. They referred the question to the solemn decision of the federal tribunals; and when those tribunals pronounced the embargo act constitu tional, they acquiesced in that decision. The grest

commercial interests of the United States believed the embargo act to be unconstitutional, clearly, palpably so; but they did not seek to take the law into their own hands, "because they did not wish to bring about a revolution nor to break up the Union." They saw that "between submission to the decisions of the constituted tribunals, and revolution or disunion, there was no middle ground, no ambiguous condition, no half allegiance and half rebellion."

The principle upon which the law of nations re cognizes the right of a sovereign state to impose a warlike embargo, forms the basis of what are called reprisals.

"Reprisals," says Vattel, "are used between nation and nation, in order to do themselves justice, 1 Vattel, B. II., c. xviii., § 342.

individual

when they cannot otherwise obtain it. If a nation To redress has taken possession of what belongs to another, if wrongs. she refuses to pay a debt or repair an injury, or to give adequate satisfaction for it, the latter may seize something belonging to the former, and apply it to her own advantage, till she obtains payment of what may be due to her, together with interest and damages, or keep it as a pledge till she has received ample satisfaction. In the latter case, it is rather a stoppage or seizure, than a reprisal-but they are frequently confounded in common language. The effects thus seized are preserved while there is any hope of obtaining satisfaction or justice. As soon as that hope disappears, they are confiscated and then the reprisals are accomplished. If the two nations, upon this ground of quarrel, come to an open rupture, satisfaction is considered as refused, from the moment war is declared or hostilities commenced, and then also the effects seized may be confiscated."

"In reprisals," continues the same author, "we seize on the property of the subject, just as we would on that of the state or sovereign. Every thing that belongs to the nation is subject of reprisals whenever it can be seized, provided it be not a deposit intrusted to the public faith. As it is only in consequence of that confidence which the propri etor has placed in the good faith of the government that such a deposit happens to be made, it ought to be respected even in open war-such is the conduct observed in England and elsewhere, with respect to the money which foreigners have placed in the public funds."

The sovereign or supreme power of a nation is