RETALIATION, OR REPRISALS.

Reprisals are an exception to the general rule of equity, that an innocent person ought not to suffer for the guilty. They are also at variance with the rule that each belligerent should conform to the rules of war, without reciprocity on the part of the enemy. This necessary rigor, however, is modified to some extent by the following restrictions:

ARTICLE 85. Reprisals are formally prohibited in case the injury complained of has been repaired.

ARTICLE 86. In grave cases in which reprisals appear to be absolutely necessary, their nature and scope shall never exceed the measure of the infraction of the laws of war committed by the enemy. They can only be resorted to with the authorization of the commander in chief.

They must conform in all cases to the laws of humanity and morality.

Institute (1880), p. 42.

Privateering.

ARTICLE 3. The arming of privateers is still permitted as a method of reprisal against belligerents which do not respect the principle contained in Article 2 [forbidding privateering]. In this case it is forbidden to give commissions to foreigners.

Institute (1883), p. 46.

ARTICLE 4. Cases of reprisal and retorsion are not subject to the following rules [relative to the admission and expulsion of aliens]. However, aliens domiciled in a country with the express authority of the government may not be expelled on the ground of reprisal or retorsion.

Institute (1892), p. 105.

Letters of marque and reprisal.

Reprisals by commission, or letters of marque and reprisal, granted to one or more injured subjects, in the name and by the authority of a sovereign, is another mode of redress for some specific injury, which is considered to be compatible with a state of peace, and permitted by the law of nations. The case arises when one nation has committed some direct and palpable injury to another, as by withholding a just debt, or by violence to person or property, and has refused to give

any satisfaction. The reprisals may be made in support of the rights of a subject as well as those of the sovereign and for the acts of the subject as well as for those of the sovereign. The commission is not to be issued except in a case clearly just-in re minime dubia; and it authorizes the seizure of the property of the subjects as well as of the sovereign of the offending nation, and to bring it in to be detained as a pledge or disposed of under judicial sanction, in like manner as if it were a process of distress under national authority for some debt or duty withheld. These letters of reprisal, as being applicable to a state of peace, have been frequently recognized and regulated by treaty. The French ordinance of the marine of 1681 regulates minutely this remedial process, and the judicial sanction requisite to the proceedings under letters of reprisal, and which Valin considers to be sage precautions, proper to temper the rigor of this perilous mode of redress. General reprisals upon the persons and property of the subjects of another power are equivalent to open war; but these special letters of marque and reprisal, limited to a specific object, are spoken of generally, and even in the articles of confederation of the United States, in 1781, as issuing "in times of peace." They are, however, regarded by Barbeyrac, Emerigon, and other publicists as a species of hostility, an imperfect war, and usually a prelude to open hostilities. The favorable or adverse issue of the hazardous experiment will depend, in some degree, upon the matter in demand, and, in a much greater degree, upon the relative situation, character, strength, and spirit of the nations concerned.

Kent, vol. I, p. 73.

Law of retaliation.

Cruelty to prisoners, and barbarous destruction of private property, will provoke the enemy to severe retaliation upon the innocent. Retaliation is said by Rutherforth not to be a justifiable cause for putting innocent prisoners or hostages to death; for no individual is chargeable, by the law of nations, with the guilt of a personal crime, merely because the community of which he is a member is guilty. He is only responsible as a member of the state, in his property, for reparation in damages for the acts of others; and it is on this principle that, by the law of nations, private property may be taken and appropriated in war. Retaliation, to be just, ought to be confined to the guilty individuals, who may have committed some enormous violation of public law. On this subject of retaliation Professor Martens is not so strict. While he admits that the life of an innocent man cannot be taken, unless in extraordinary cases, he declares that cases will sometimes occur, when the established usages of war are violated, and there are no other means, except the influence of retalia

tion, of restraining the enemy from further excesses. Vattel speaks of retaliation as a sad extremity, and it is frequently threatened without being put in execution, and probably without the intention. to do it, and in hopes that fear will operate to restrain the enemy. Instances of resolutions to retaliate on innocent prisoners of war occurred in this country during the Revolutionary war, as well as during the war of 1812; but there was no instance in which retaliation, beyond the measure of severe confinement, took place in respect to prisoners of war.

Kent, vol. I, pp. 108, 109.

Retaliation, or, as it is sometimes called, vindictive retaliation, or retorsio facti, is where one state seeks to make another, or its citizens, suffer the same amount of evil which the latter has inflicted upon the former. Retaliation should be limited to such punishments as may be requisite for our own safety and the good of society; beyond this it cannot be justified. We have no right to mutilate the ambassador of a barbarous power, because his sovereign has treated our ambassador in that manner, nor put prisoners and hostages to death, and to destroy private property, merely because our enemy has done this to us; for no individual is justly chargeable with the guilt of a personal crime for the acts of the community of which he is a member. Retaliation of this kind should be confined, as a general rule, to the individuals who have committed the violation of public law. There may be extraordinary cases which constitute an exception to this rule, but these must be judged according to the peculiar circumstances by which they are attended. "Instances of resolutions to retaliate on innocent prisoners of war," says Kent, "occurred in this country during the revolutionary war, as well as during that of 1812; but there was no instance in which retaliation, beyond the measure of secure confinement, took place in respect to prisoners of war." Vindictive retaliation is sometimes applied to the property of the offending state or individual, but such acts are usually of a belligerent character, and will be discussed in another place. (Rutherforth, Institutes, b. 2, ch. 9, § 15; Martens, Precis du Droit des Gens, § 258, note: Kent, Com. on Amer. Law, vol. 1, pp. 93-94; Journals of Congress under the Confed., vol. 2, p. 245; vol. 7, pp. 9-147; vol. 8, p. 10; President's Messages, Dec. 7th, 1813, and Oct. 28th, 1814; Vattel, Droit des Gens, liv. 2, ch. 18, § 339; Manning, Law of Nations, p. 105; Ortolan, Diplomatie de la Mer, liv. 1, ch. 16; Garden, De Diplomatie, liv. 6, § 3; Rayneval, Inst. du Droit Nat., liv. 2, ch. 12; Kluber, Droit des Gens Mod., § 234; Heffter, Droit International, §§ 110, 111; Bello, Derecho Internacional, pt. 1, cap. 11, § 3.)

Halleck, pp. 296, 297.

Debt due from sovereign to individuals.

In the argument of the English civilians against the reprisals made by the King of Prussia in that case [of the Silesian loan], on account of the capture of Prussian vessels by the cruisers of Great Britain, it is stated that "it would not be easy to find an instance where a prince had thought fit to make reprisals upon a debt due from himself to private men. There is a confidence that this will not be done. A private man lends money to a prince upon an engagement of honor; because a prince cannot be compelled, like other men, by a court of justice. So scrupulously did England and France adhere to this public faith, that even during the war," (alluding to the war terminated by the peace of Aix-la-Chapelle,) "they suffered no injury to be made whether any part of the public debt was due to the subjects of the enemy, though it is certain many English had money in the French funds, and many French had money in ours."

Wheaton, p. 379; Letters of Camillus, by Alexander Hamilton, No. 20.

Subjects of reprisals.

Grotius, in the second chapter of his third book, where he is treating of the liability of the property of subjects for the injuries committed by the State to other communities, lays down that " by the law of nations, all the subjects of the offending State, who are such from a permanent cause, whether natives or emigrants from another country, are liable to reprisals, but not so those who are only traveling or sojourning for a little time;-for reprisals," says he, "have been introduced as a species of charge imposed in order to pay the debts of the public; from which are exempt those who are only temporarily subject to the laws. Ambassadors and their goods are, however, excepted from this liability of subjects, but not those sent to an enemy." In the fourth chapter of the same book, where he is treating of the right of killing and doing other bodily harm to enemies, in what he calls solemn war, he holds that this right extends, "not only to those who bear arms or are subjects of the author of the war, but to all those who are found within the enemy's territory. In fact, as we have reason to fear the hostile intentions even of strangers who are within the enemy's territory at the time, that is sufficient to render the right of which we are speaking applicable even to them in a general war. In which respect there is a distinction between war and reprisals, which last, as we have seen, are a kind of contribution paid by the subjects for the debts of the State."

Barbeyrac, in a note collating these passages, observes, that "the late M. Cocceius, in a dissertation which I have already cited, De Jure Belli in Amicos, rejects this distinction, and insists that even those foreigners who have not been allowed time to retire ought to be considered as adhering to the enemy, and for that reason justly exposed

to acts of hostility. In order to supply this pretended defect, he afterwards distinguishes foreigners who remain in this country, from those who only transiently pass through it, and are constrained by sickness or the necessity of their affairs. But this is alone sufficient to show that, in this place, as in many others, he criticised our author without understanding him. In the following paragraph, Grotius manifestly distinguishes from the foreigners of whom he has just spoken those who are permanent subjects of the enemy, by whom he doubtless understands, as the learned Gronovius has already explained, those who are domiciled in the country. Our author explains his own meaning in the second chapter of this book, in speaking of reprisals, which he allows against this species of foreigners, whilst he does not grant them against those who only pass through the country, or are temporarily resident in it."

Whatever may be the extent of the claims of a man's native country upon his political allegiance, there can be no doubt that the naturalborn subject of one country may become the citizen of another, in time of peace, for the purposes of trade, and may become entitled to all the commercial privileges attached to his required domicil. On the other hand, if war breaks out between his adopted country and his native country, or any other, his property becomes liable to reprisals in the same manner as the effects of those who owe a permanent allegiance to the enemy State.

Wheaton, pp. 403-405; Grotius, par Barbeyrac, in loc,

Causes of reprisals.

Reprisals may be undertaken on account of any injury, but are chiefly confined to cases of refusal or even obstinate delay of justice. Grotius adds that they are authorized, "if in a very clear case judgment be given plainly against right." (iii., 2, § 5, 1.) But this is an unsafe opinion, and to be acted upon only in an extreme case, for the sentence of a regular tribunal will always be supported by some plausible, if not valid reason; there should be the fullest proof of an intention to deny or to overturn justice.

Woolsey, p. 182.

When admissible.

That retaliation in war is sometimes admissible all agree: thus if one belligerent treats prisoners of war harshly, the other may do the same; or if one squeezes the expenses of war out of an invaded territory, the other may follow in his steps. It thus becomes a measure of self-protection, and secures the greatest amount of humanity from unfeeling military officers. But there is a limit to the rule. If one general kills in cold blood some hundreds of prisoners who embarrass his motions, his antagonist may not be justified in staining