« PreviousContinue »
alone vested with the authority of making or ordering reprisals. This is the universal rule of all civ. ilized communities. It is not doubted that the right to authorize reprisals, exists as well for the redress of wrongs inflicted upon the citizen of a state, as upon the state itself.
Commissions, or letters of marque, however, to secure individual redress, are rarely issued, and never but in a case of undoubted and flagrant wrong. Upon this interesting question, the remarks of Viscount Palmerston, made in the British Parliament in 1847, upon the motion of Lord George Bentnick for the "adoption of such measures as might secure for the British holders of unpaid Spanish bonds, redress from the government of Spain,” are particularly instructive. He said:
“My noble friend has quoted passages from the law of nations, laying down the doctrine that one government is entitled to enforce from another, redress for all wrongs done to the subjects of the government making the application for redress, and that if redress be denied, it may justly be obtained by reprisals from the nations so refusing. I fully admit to this extent, the principles which my noble friend has laid down. At the same time, I am sure the house will see that there may be a difference and distinction drawn in point of expediency, and in point of established practice, as to the application of an indisputable principle to particular and different cases. Now, if the government of Spain had, we will say, for example, violently seized the property of British subjects, this country being on terms of amity with Spain, under treaties, no man will for a moment, hesitate in declaring, that it would be the duty of this government to enforce redress. In the same manner, in any transaction that is founded on mutual compact between two governments, in any transaction that is founded on the previous sanction of the government, whose subject is the complainer, in any case of that sort, it has been the practice of Great Britain to demand and insist upon redress. Again, if any act of injustice in the prosecution of trade and commerce, be inflicted on British subjects, there can be no question as to the course which this country ought to pursue. But a distinction has always been drawn between the ordinary transactions of British subjects with the subjects of other countries, and the transactions of British subjects with the governments of other countries. When a British subject, engaged in trade with a foreign country, sustains a loss, his first application is, to the law of that country for redress. If that law is not properly administered in his case, then the British government steps in and demands, either that the law shall be properly dealt out, or that redress shall be given by the government of that state. It is to the advantage of this country to encourage commercial dealings with foreign countries—but I do not know that it is to the advantage of this country to give great encouragement to British subjects to invest their capital in loans to foreign countries. I think it is inexpedient, for many reasons, that that course should be pursued. It exposes British subjects to loss from trusting governments that are not trustworthy; and if this principle were adopted as a guide for the practice of British subjects, that the payment of such loans should be enforced by the
arms of England, it would place the British nation in the situation of being always liable to be in. volved in serious disputes with foreign governments, in matters with regard to which the British government of the day might have had no opportunity of being consulted, or of giving an opinion one way or the other. Although I entreat the house, upon grounds of public policy, not to im pose at present, upon her majesty's government, the obligations sought to be thrown upon them, yet I would take this opportunity of warning foreign governments, who are the debtors to British subjects, that the time may come, when this house will not sit patient under the wrongs and injuries inflicted upon the subjects of this country.
“I warn them that the time may come, when the British nation will not see with tranquillity. the sum of £150,000,000 due to British subjects, and the interest, not paid—and I must warn them, that if they do not make proper efforts, adequately to fulfil their engagements, the government of this country, whatever men may be in office, may be compelled, by the voice of public opinion, and by the votes of Parliament, to depart from that which has hitherto been the established practice of Eng. land, and to insist upon the payment of debts due to British subjects. That we have the means of enforcing the rights of British subjects, I am not prepared to dispute. It is not because we are afraid of these states, or all of them put together, that we have refrained from taking the steps to which my noble friend would urge us. England, I trust, will always have the means of obtaining jus. tice for its subjects from any country on the face of
the earth. But this is a question of expediency, and not a question of power. Therefore let no foreign country, which has done wrong to British subjects, deceive itself by a false impression, either that the British nation or the British Parliament will ever remain patient under wrong, or that, if called upon to enforce the rights of the people of England, the government of England will not have ample power and means at its command to obtain justice for them.” This principle is not only fully acknowledged, Right ac
> knowledged but in several instances it has been acted upon by by all nations. the government of the United States. In the year Acted upon by 1834, it was proposed by President Jackson, as a States. measure of redress against France, on behalf of citizens of the United States, having lawful claims against that nation; and again in 1847, the nonpayment of debts due to American citizens by the republic of Mexico was made the leading ground of the war which was carried on against that nation.
These general reprisals, for the redress of individual wrongs, are considered by publicists as a species of hostility, an imperfect war, and usually a prelude to open hostilities. They are experimental attempts to secure indemnity without an open conflict of arms, which are successful or otherwise, according to the character of the matter in dispute, and the relative situation, character, strength, and spirit of the nations concerned."
Reprisals made by one belligerent of the property Definition of of another, pursuant to general hostilities, are capture. denominated CAPTURES.
i i Kent's Com., 69, 70.
By public and Captures are either made by the government private armed
vessels-of-war, or by privateers. The law upon the subject of captures is alike applicable to those made by ships-of war and by privateers. The final disposition of the proceeds of a lawful capture varies under varying circumstances, which will be considered hereafter. It is only necessary, in this connection, to review the subject as particularly applicable to letters of marque.
Privateers. A privateer is a vessel, the property of private
individuals, fitted out and equipped at their expense, but specially commissioned, by what are denomi. nated “letters of marque and reprisal," with the principal design of attacking and seizing the vessels and property of the enemy; but also of preventing neutrals from carrying on an illicit trade with the enemy.
The right of making war, as we have seen, is a right appertaining exclusively to the sovereign power of the state; and this right necessarily carries with it, as an incident, that of directing and
controlling all its operations. Their author- Private citizens cannot, of themselves, and without ity, power, commission from the supreme power, take any steps and rights.
in relation to the perpetration of acts of hostility.
Persons fitting out ships to cruise against the enemy, acquire the property which they capture, either in whole or in part, according to the provisions of the contract made with them, as a compensation for the expenses which they incur and the hazards which they assume ; and this property they acquire solely by virtue of the commissions from, the sovereign power under which they sail.