522; Tallmadge, Rewiew, etc., 26 Wendell, Rep., app., p. 674.) § 24. Among European writers on public law, there seems to be a very general unanimity of opinion. Vattel says, that "on all occasion susceptible of doubt, the whole nation, the individuals, and especially the military, are to submit their judgement to those who hold the reins of government.' The sovereign alone is to be held guilty for the acts of unlawful war; that he alone is bound to repair the injuries, and not those who act under his authority. "The subjects, and in particular the military, are innocent, they have acted only from a necessary obedience." Rutherforth says, that even in an imperfect sort of war, "what the members do, who act under the particular direction and authority of their nation, is, by the law of nations, no personal crime in them; they cannot, therefore, be punished, consistently with this law, for any act in which it considers them only as the instruments, and the nation as the agent." Burlamaqui says, that the mere presumption of the will of the sovereign, will not be sufficient to excuse a governor, or any other officer to commit acts of war. But if the sovereign ratify such acts, this approbation reflects back the authority of the sovereign upon the acts, and so obliges the whole commonwealth. (Vattel, Droit des Gens., liv. 3. ch. 2, § 187; Rutherforth, Institutes, b. 2, ch. 9, § 18; Burlamaqui, Droit de la Nat. et des Gens, tome 5, pt. 4, ch. 3, §§ 18, 19; Tallmadge, Review, etc.. 26 Wendell, Rep., app., pp. 663, et seq.; Phillimore On Int. Law, vol. 3, § 38; Thorshaven and its Dep., 1 Edw. Rep., p. 102.)

§ 25. An embargo is a species of reprisal upon the property of the offending nation, found within the territory of the injured state, by prohibiting the departure of vessels, or the removal of goods. An embargo may, or may not be, followed by the sequestration of the goods and property detained. If war follows, it is said to have a retroactive effect, and the detained goods are considered as the property of enemies taken in war. But if the difficulty which led to the embargo is amicably arranged, they are released upon the terms which the parties may stipulate in such arrangement. In maritime embargoes, persons as well as goods are usually seized and retained, to be subsequently released, or treated as prisoners of war, according as the embargo results in peace

or solemn war. An embargo is more usually resorted to in contemplation of hostilities, than as a mode of settling disputes between states. It is, therefore, classed by Phillimore as a measure of redress, "midway between reprisals and war." (Phillimore, On Int. Law, vol. 3, §§ 24-26; Wheaton, Elem. Int. Law, pt. 4, ch. 1, §§ 1, 2; Emerigon, Traité des Assurances, ch. 12, sec. 35; Valin, Traité des Reprisailles, liv. 3, tit. 10; The Theresa Bonita, 4 Rob. Rep., p. 245; The Boedes Lust; 5 Rob. Rep., p. 245; Manning, Law of Nations, p. 105; Ortolan, Diplomatie de la Mer., liv. 2, ch. 16; Rayneval, Inst. du Droit Nat., liv. 2, ch. 12; Bello, Derecho Internacional, pt. 1, ch. 11, § 3; Heffter, Droit International, § 112; Riquelme, Derecho Pub. Int., lib. 1, tit. 2, cap. 12.)

§ 26. The resort to reprisals, seizures, or embargoes, or forcible means of redress between nations, may assume the character of war, in case they fail to produce the satisfaction demanded of the offending state. Such acts, as already remarked, not being positive acts of war, the effects seized are not usually condemned till the question of peace or war is finally decided. If peace should be continued, they are restored, but if war follows, they are confiscated. "Reprisals," says Vattel, "are used between nation and nation, in order to do themselves justice when they cannot otherwise obtain it. If a nation has taken possession of what belongs to another; if it refuses to pay a debt, or repair an injury, or to make a just satisfaction, the latter may seize what belongs to the former, aud apply it to its own advantage, till it obtains full payment for what is due, together with interest and damages; or keep it as a pledge till the offending nation has made ample satisfaction. 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 that the war is declared, or hostilities commenced; and then, also, the effects seized may be confiscated." These remarks are more particularly applicable to general reprisals, although, even then, sequestration sometimes immediately follows the seizure. Where such extreme measures are

resorted to it is not easy to distinguish between them and actual hostilities. But in special reprisals, made for the indemnification of injuries upon individuals, and limited to particular places and things, immediate confiscation is more frequently resorted to. Thus, Cromwell having made a demand on Cardinal Mazarin, during the minority of Louis XIV., for indemnity to a Quaker, whose vessel had been illegally seized and confiscated on the coast of France, and receiving no reply within the three days specified in the demand, dispatched two ships of war to make prize of French vessels in the channel. The vessels were seized and sold, the Quaker paid out of the proceeds the value of his loss, and the French ambassador apprised that the residue was at his service. This substantial act of justice caused neither reclamation nor war. (Vattel, Droit des Gens, liv. 2, ch. 18, § 342; Wheaton. Elem. Int. Law, pt. 4, ch. 1, § 3; Kent, Com. on Am. Law, vol. 1, pp. 60, 61; Chitty, Com. Law, vol. 1, pp. 418– 423; Phillimore, On Int. Law, vol. 3, § 21; Villemain, Histoire de Cromwell, tome 2, pp. 236, 237; Ortolan, Dip. de la Mer., liv. 2, ch. 16; Duer, On Insurance, pp. 441-444; The Diana, 5 Rob. Rep., p. 60; De Cussy, Droit Maritime, liv, 1, tit. 2, § 51.)

§ 27. When an embargo was laid on Dutch property in the ports of Great Britain, on the rupture of the peace of Amiens, in 1803, Sir William Scott announced the law applicable to such cases, as follows: "The seizure was at first equivocal, and if the matter in dispute had terminated in reconciliation, the seizure would have been converted into a civil embargo, and so terminated. Such would have been the retroactive effect of that course of circumstances. On the contrary, if the transaction end in hostility, the retroactive effect is exactly 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 it is to be considered as a hostile measure, ab initio, against persons guilty of injuries which they refuse to redeem by any amicable alteration of their measures. This is the necessary course, if no compact intervenes for the restoration of such property, taken before a formal declaration of hostilities." (Wheaton, Elem.

Int. Law, pt. 4, ch. 1, § 4; The Boedes Lust., 5 Rob. Rep., p. 246; Duer, On Insurance, vol. 1, pp. 441, et seq.; The Diana, 5 Rob. Rep., p. 60; Phillimore, On Int. Law, vol. 3, § 21; De Cussy, Droit Maritime, liv. 1, tit. 2, § 51; liv. 2, ch. 27.)

§ 28. The right of granting reprisals, or of authorizing seizures and embargoes, is vested in the sovereign, or supreme power of the state. It being little short of the right to carry on war, it is usually conferred only by the war-making power of the state. This, however, is regulated by municipal law. The English statute (4 Henry V., cap. 7,) declared that "the king will grant marque in due form to all that feel themselves grieved." The marine ordinance of Louis XIV., of 1681, described the form to be observed in issuing letters of marque to French subjects. But these special reprisals, in time of peace, as has been already said, have almost entirely fallen into disuse. In case of general reprisals, the state duly authorizes its officers and subjects by commissions, or by some general law or decree. Without such authority previously given, or its exercise subsequently ratified, by the supreme authority of the state, reprisals or seizures are not justified by the law of nations. (Kent, Com. on Am. Law, vol. 1, pp. 61, 62; Valin, Commentaries, tome 2, tit. 10, pp. 414, 416; Wheaton, Elem. Int. Law. pt. 4, ch. 1, §5; Bynkershoek, Quaest. Jur. Pub., lib. 1, cap. 24; Vattel, Droit des Gens, liv. 2, ch. 18, §§ 342-346; Martens, Precis du Droit des Gens, liv. 8, ch. 2, § 260; Emerigon, Traité des Assurances, ch. 12, sec. 35; Phillimore, On Int. Law, vol. 3, §18; Wildman, Int. Law, vol. 1, p. 191; Bouchaud, Theorie des Traités de Commerce, ch. 13, § 4; Rayneval, Inst. du Droit de la Nat., etc., lib. 2, ch. 12; Heffter, Droit International, § 110; Bello, Derecho Internacional, pt, 1, ch. 11, § 3.)

§ 29. A state may authorize seizures and reprisals in favor of its own citizens, and for the redress of its own grievances, but not in favor of foreigners, or in an affair in which the nation has no concern. In 1662, England granted reprisals against the United Provinces in favor of the knights of Malta. On this subject the grand pensionary, De Witt, pro-. tested, saying: "It is evident that no sovereign can grant or make reprisals, except for the defense or indemnification of his own subjects, whom he is, in the sight of God, bound to

protect; but he never can grant reprisals in favor of a foreigner who is not under his protection, and with whose sovereign he has not an engagement to that effect, expacto vel foedere. Besides, it is certain that reprisals cannot be granted except in case of an open denial of justice. Finally, it is also evident, that, even in case of a denial of justice, he cannot empower his subjects to make reprisals until he has repeatedly demanded justice for them, and added, that in the event of a refusal, he will be obliged to grant them letters of marque and reprisal." The court of France strongly coudemned the conduct of the British admiralty in this case, and the king of England himself testified his disapprobation of it, and gave orders for the release of the Dutch vessels which had been seized by way of reprisal. (Vattel, Droit des Gens, liv. 2, ch. 18, § 348; Bynkershoek, de Foro Legat., cap. 22, §5; Bynkershoek, Quaest. Jur. Pub., lib. 1, cap. 24; Valin, Com. sur l'Ord., 1, 3, tit. 10, Représailles; Phillimore, On Int. Law, vol. 3, § 16; Wildman, Int. Law, vol. 1, p. 191; Manning, Law of Nations, p. 110; Garden, De Diplomatie, liv. 6, sec. 3, § 2.)

§ 30. Valin is of opinion that the exception of foreigners does not apply to aliens domiciled in the country, (regnicola,) the state being bound to protect them, and to consider an injury done to them as an affront to its own sovereignty. Letters of reprisal may, therefore, issue not only to a subject, by birth or naturalization, but also to a foreigner domiciled in the country. This might be inferred from the rule of international law, which subjects the property of domiciled aliens to all the contingencies of the war, they being considered, in law, as the subjects of the state in which they are domiciled. Being themselves liable to reprisals against the country of their domicil, it would seem just that they be allowed to participate in their benefits. (Valin, Traité des Prises, p. 225; Duponceau, Translation of Bynkershoek, note, p. 184; Phillimore, On Int. Law, vol. 3, § 16; Valin, Ord. de la M., 1, 3, tit. 10, des Représailles; Garden, De Diplomatie, liv. 6, sec. 3, § 2.)