justice and sound policy, so long as it does not degenerate into cruel and barbarous treatment of private individuals. This kind of retaliation usually follows the breach of what are called imperfect obligations, and which do not justify a resort to forcible measures. (Vattel, Droit des Gens, liv. 2, ch. 18, §341; Wheaton, Elem. Int. Law, pt. 4, ch. 1, § 1; Martens, Precis du Droit des Gens, § 254; The Girolamo, 3 Hagg. Rep., p. 185; Polson, Law of Nations, sec. 6; Phillimore, On Int. Law, vol. 1, § 16; vol. 2, §8; Manning, Law of Nations, p. 105; Ortolan, Diplomatie de la Mer, tome 1, ch. 16; Garden, De Diplomatie, liv. 6, §3; Rayneval, Inst. du Droit Nat., liv. 2, ch. 12; Heffter, Droit International, §§ 110, 111.)

§ 10. 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 to 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 Am. 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.)

war.

§ 11. Reprisals are resorted to for the redress of injuries inflicted upon the state, in its collective capacity, or upon the rights of individuals to whom it owes protection in return for their allegiance. They consist in the forcible taking of things belonging to the offending state, or of its subjects, and holding them until a satisfactory reparation is made for the alleged injury. If the dispute is afterward arranged, the things thus taken by way of reprisal are restored, or, if confiscated and sold, are paid for with interest and damages; but if war should result, they are condemned and disposed of in the same manner as other captured property, taken as prize of As reprisals bring us to the awful confines of actual war, it is proper to inquire what kind of injuries, inflicted upon the state collectively, or upon its individual members, justify a resort to so dangerous a measure of redress. It is only in cases where justice has been plainly denied, or most unreasonably delayed, that a sovereign state can be justified in authorizing reprisals upon the property of another nation. Moreover, the delay must be of such a character as to render it tantamount to a denial of justice. Thus, if the claim be a national one, it must be properly demanded, and the demand refused. If it be of an individual, the claimant must first exhaust the legal remedies in the tribunals of the state from which the claim is due, and after an absolute denial of justice by such tribunals, his own government must make the demand of the sovereign authorities of the offending nation. Although the presumption of law is clearly in favor of the decisions of the lawfully constituted tribunals of a state, yet, if it is plain that justice has been administered partially, and in a different manner to the foreigner than to the subject, the government of the injured party may, notwithstanding such decision, demand justice, and if it be refused,

resort to reprisals. It was a doctrine of the Roman law, that an unjust sentence does not extinguish a just debt. Subjects must submit to the authority of the law, however great the injustice; but foreigners are under no such obligation, for their own state may, by force, compel the execution of justice on their behalf. In 1850, the British government authorized reprisals upon the Greeks for a claim of one Pacifico, a British subject, who had not first prosecuted it in the Greek tribunals. The protest of the Greek government, and the remonstrance addressed by Russia to the British government, contain a strong but dignified rebuke for an act so manifestly in violation of international law; moreover, the conduct of the British foreign minister, was censured by a large majority of the house of peers. The mediation of France effected an adjustment of the dispute, and the claim of Pacifico, for twenty-one thousand two hundred and ninety-five pounds one shilling and four pence, was referred to commissioners appointed for that purpose, who awarded to him the sum of one hundred and fifty pounds! What a paltry sum for a great nation to authorize reprisals upon a weaker state, and that, too, without first making the proper and legal demand! (Vattel, Droit des Gens, liv. 2, ch. 18, § 342; Wheaton, Elem. Int. Law, pt. 4, ch. 1, §§ 1, 2; Kent, Com. on Am. Law, vol. 1, pp. 60, 61; Bynkershoek, Quest. Jur. Pub., lib. 1, cap. 24; Emerigon, Traité des Assurances, ch. 12, sec. 36; Phillimore, On Int. Law, vol. 3, §§ 8-24; Grotius, de Jur. Bel. ac Pac., lib. 3, cap. 2, § 5; British Annual Reg., 1850, vol. 92, pp. 281-286; Hansard, Parl. Deb., 1850; Ortolan, Diplomatie de la Mer., tome 1, ch. 16; Manning, Law of Nations, pp. 106-111; Martens, Precis du Droit des Gens, §§ 255-258; Pistoye et Duverdy, Traité des Prises, tit. 1, ch. 3, sec. 3; Moser, Versuch, etc., b. 8, p. 504; Heffter, Droit International, §§ 110, 111; Bello, Derecho Internacional, pt. 1, cap. 11, § 3; Riquelme, Derecho Pub. Int., lib. 1, tit. 1, cap. 8; De Cussy, Droit, Maritime, liv. 2, ch. 37.)

§ 12. Reprisals may be either general or special. They are general where one state awards to its subjects a general permission to seize the goods or persons of the offending nation upon the high seas, or wherever found without the jurisdiction of another state. They are special where such permis

sion is limited to particular persons or things, or in time and place. Licenses, or letters of marque, to the injured persons, authorizing them to indemnify themselves upon the property of the subjects of the offending state, wherever found, have almost entirely fallen into disuse, and the term itself is now somewhat differently applied, the commissions issued to privateers in, time of actual war, being ordinarily denominated letters of marque. These are not to be confounded with letters of reprisal. General permission to all the citizens of one state to make reprisals upon the property and persons of all citizens of another state, is little short of actual war, although considered, in international law, as without the pale of the rules applicable to war. The captors are not entitled to exercise the rights of war either toward the subjects of the offending state, or toward neutrals, nor are the persons, or goods captured, subject to the rules applicable to belligerant captures. Such matters are regulated by the law or authority authorizing the reprisals, and the acts of the parties making them are to be regulated and judged of by such law or authority, but they must, in no case, be in violation of the rules of international law which may be applicable. (Wheaton, Elem. Int. Law, pt. 4, ch. 1, §2; Kent, Com. on Am. Law, vol. 1, pp. 94, 95; Kluber, Droit des Gens Mod., § 234; Bynkershoek, Quaest. Jur. Pub., lib. 1, cap. 24; Polson, Law of Nations, sec. 6; Wildman, Int. Law, vol. 1, p. 192; Phillimore, On Int. Law, vol. 3, §§ 8-24; Duverdy et Pistoye, Traité des Prises, tit. 1, ch. 3, sec. 3; Manning, Law of Nations, p. 115; Heffter, Droit International, §§ 110, 111; Bello, Derecho Internacional, pt. 1, cap. 11, §3; Riquelme, Derecho Pub. Int., lib. 1, tit. 2, cap. 12; De Cussy, Droit Maritime, liv. 1, tit. 2, § 51.)

§ 13. Another division of reprisals, made by writers on public law, is, into positive and negative, or, as termed by some writers, active and passive. Reprisals are negative when a state refuses to fulfil a perfect obligation which it has contracted, or to permit another nation to enjoy a right which it claims; they are positive when they consist in seizing the persons and effects belonging to the other nation, in order to obtain satisfaction. The same rule applies to both of these classes, that is, neither should be resorted to except

where the cause is manifestly just, and after all milder means have proved ineffectual. Negative reprisals, however, are, in general, less likely to produce an immediate rupture than those of a positive character. Nations are more ready to repel force than to employ it. (Wheaton, Elem. Int. Law, pt. 4, ch. 1, §2; Vattel, Droit des Gens, liv. 1, ch. 18, §§ 342– 346; Kluber, Droit des Gens Mod., § 234, note; Polson, Law of Nations, sec. 6; Phillimore, On Int. Law, vol. 3, §11; Heffler, Droit International, § 110; Bello, Derecho Internacional, pt. 1, cap. 11, §3; Riquelme, Derecho Pub. Int., lib. 1, tit. 2, cap. 12.)

§ 14. Seizure is a general term applicable to the forcible taking of the persons or property of others, and is applied alike to reprisals and belligerent captures made in war. But, in its more restricted sense, as applied to measures taken viâ facta, or forcible means of settling international disputes, the term is limited to taking forcible possession of the thing in dispute, or of the persons by whom the offense is committed. The seizure of the thing in controversy is generally regarded as the preliminary step toward the commencement of a war. It is, nevertheless, neither an actual nor a formal declaration of hostilities, and there is, therefore, still a possibility of a settlement of the dispute, before entering into a state of solemn and public war. In other words, it does not make the subjects of the two states public enemies, or give to either the rights of war, as against the other, or with respect to neutrals. If, however, war should immediately follow such seizure, it would be classed as a belligerent act in all its consequences. Thus, the seizure of San Juan island, in 1859, was, unquestionably, an act of hostility, but not, in its results, an act of war. (Wheaton, Elem. Int. Law, pt. 4, ch. 1, §1; Vattel, Droit des Gens, liv. 2, ch. 18, § 337; Polson, Law of Nations, sec. 6; Riquelme, Derecho Pub. Int., lib. 1, tit. 2, cap. 12; President's Message, Dec., 1859.)

§ 15. But before taking such forcible possession, it is necessary for us to prove clearly our right to the thing in dispute, and also that we have already tried the milder modes of adjustment, for other people are not obliged to respect that title any further than we show its validity, nor will they justify us in resorting to a measure of so much rigor, and one,