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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 Mice 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 ivould 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.2
Whether the civil embargo imposed by the Con- Tho embargo gress of the United States in 1807 was sanctioned united smtos by the constitution of the government, was made ;i -^soT'TM1 subject of much learned discussion in the federal tribunals at that time, and of much angry controversy in the political assemblages of the people.
It is certain, that without in any manner acconi- its oppressive pushing the hostile purpose towards Great Britain, commlrce of which led to its adoption, it inflicted injuries uponthe natlonthe 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
'Blackstone's Com., I., 7 ; vide also 4 Mod., 177; Skinner, 93; 1 Selkcld. 32. 1 The Gertrude, 2 Rob., 211.
end to commerce altogether. That regulation w;> a guidance, a control, an establishment of rules for the government of commerce, and not the power o;' extinguishing it absolutely and without limitation of time. But the people whose interests were hiwS^pro-t0 vaded by this measure of the government, the thounounced con- sands and hundreds of thousands who were utterly
stitutional by. . . - , , ,
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 pul ilkproperty—they did not trample upon the constitution 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 constitutional, they acquiesced in that decision. The great j 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 fo'eah 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 recognizes the right of a sovereign state to impose, a warlike embargo, forms the basis of what are called reprisals.
Reprisals gen- "Reprisals,"1 says Vattel, "are used between naeraUy. ^on ancj nation, in order to do themselves justice.
1 Vattel, B. II., c. xviii., § 342.
I when they cannot otherwise obtain it. If a nation ?°J.r??re?a
I * . individual
lias taken possession of what belongs to another, if wrongs, she refuse? 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 proprietor 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
alone vested with the authority of making or ordering reprisals. This is the universal rule of all civilized 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 Ae 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 Mend 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 oil 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 id 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 anil 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