more weight, as the author is our austerest authority on questions of the Law of Nations, giving to the rights of war the strongest statement. According to him, reprisals are nothing less than "wickedness" (improbitas), and unworthy of a magnanimous people. During the Middle Ages, and afterwards, reprisals were in vogue; but they never found favor. They have been constantly reprobated. Even when formally sanctioned, they have been practically excluded by safeguards and conditions. In a treaty between Cromwell and the States-General there was a stipulation against reprisals, "unless the prince whose subject shall conceive himself to have been injured shall first lay his complaint before the sovereign whose subject is supposed to have committed the tortious act, and unless that sovereign shall not cause justice to be rendered to him within three months after his application." This stipulation was renewed under Charles the Second. The same principle was declared by the Grand Pensionary, De Witt, who, in the name of the United Provinces, protested, "that reprisals cannot be granted, except in case of an open denial of justice,” and 'that, even in case of a denial of justice, a sovereign cannot empower his subjects to make reprisals, until he has repeatedly demanded justice for them."3 A similar rule was also declared in the famous letter to the King of Prussia, in the case of the Silesian loan, written by Murray, afterward Lord Mansfield, and much praised by Montesquieu and by Vattel. Here it is said: "The Law of Nations, founded upon justice, equity, convenience, and the reason of the thing, and confirmed by long

1 Bynkershoek, Quæst. Jur. Pub., tr. Du Ponceau, Lib. I. Cap. 21, p. 185. 2 Ibid.

8 Halleck, International Law, Ch. XII. § 29, p. 310.

4 Wheaton, Elements of International Law, ed. Lawrence, (Boston, 1863,) p. 528, note.

usage, does not allow of reprisals, except in case of violent injuries, directed or supported by the State, and justice absolutely denied, in re minime dubia, by all the tribunals, and afterwards by the prince." This is clear and strong. I might quote authorities without end to the same point. I content myself with adding the words of General Halleck, who, after saying, in his admirable manual, that "reprisals bring us to the awful confines of actual war," proceeds to lay down the rule, that reprisals, even on property, can be only "where justice has been plainly denied or most unreasonably delayed." This rule commends itself as proper and just. It is your duty to apply it on the present occasion. But, in the face of the authorities in our own. country, judges, jurists, publicists, and commentators, in long array, according to whom our own claim of allegiance is coincident with that of England, — and then, again, in face of the well-known and much-heralded disposition of foreign powers, including England, to settle this whole question by treaty, is it not absurd to say that here is a case for reprisals of any kind?

2

In the early days reprisals were directed against persons as well as property. Even against property it was done with hesitation, only in cases free from all doubt, and after ample appeal to the sovereign for justice. Against persons it was done very rarely. Grotius, our greatest master, who brought the rules of International Law to the touchstone of reason, asserts that all reprisals are vindicated by custom rather than by Nature. His language is, that this rule "is not

1 Bynkershoek, Quæst. Jur. Pub., tr. Du Ponceau, Lib. I. Cap. 24, p. 188, note.

2 International Law, Ch. XII. § 11, p. 297.

indeed authorized by Nature, but generally received by custom." 1 Since then the tendency has been to a constant mitigation of this pretension, even as regards property. Without burdening this discussion with cases, which are numerous, I give a summary of Wheaton in these words:"It appears to be the modern rule of international usage, that property of the enemy found within the territory of the belligerent state, or debts due to his subjects by the Government or individuals, at the commencement of hostilities, are not liable to be seized and confiscated as prize of war."2 This rule, which is applicable to the condition of things on the breaking out of war, attests the care with which the modern Law of Nations watches the rights of individuals, and how it avoids making them suffer. Thus even debts are not liable to seizure. How much more should an innocent person be exempt from any such outrage!

It is when we consider the modern rule with regard to persons, instead of property, that we are impressed still more by its benignity. Here I quote, first a British authority, and then an American. Mr. Phillimore, the author of the very elaborate and candid treatise on the Law of Nations, so full of various learning, after admitting that reprisals, "strictly speaking, affect the persons as well as the goods," proceeds to say, that, "in modern times, however, they have been chiefly confined to goods"; and then adds, in words worthy of consideration now, that "it is to be hoped that the reprisal of persons has fallen, with other unnecessary and unchristian severities, into desuetude; and certainly, to seize travellers, by way of reprisal, is a breach of the tacit faith pledged to

1 De Jure Belli ac Pacis, Lib. III. Cap. II. § v. 2.

2 Elements of International Law, ed. Lawrence, (Boston, 1863,) Part IV. Ch. I. § 9, p. 529.

1

them by the State, when they were allowed to enter her borders." The same enlightened conclusion is expressed by Dana, in his excellent notes to Wheaton, as follows: "The right of making reprisals is not limited to property, but extends to persons; still, the practice of modern times discountenances the arrest and detention of innocent persons strictly in the way of reprisal." 2 Thus do British and American publicists concur in homage to a common civilization.

If we look at the reason of the modern rule which spares persons, we shall find it in two different considerations, each of controlling authority: first, that an innocent person cannot be seized in a foreign country without a violation of the Public Faith; and, secondly, that no private individual can be justly held responsible for the act of his Government. On the first head Vattel speaks as follows: "The sovereign who declares war can no more detain the subjects of the enemy who are found in his states at the time of the declaration than he can their effects. They have come into his dominions on the Public Faith. In permitting them to enter his territories and continue there he tacitly promised them full liberty and full security for their return." 8 In the same sense Halleck says, "Travellers and passing guests are in general excepted from such liability.” Here again Grotius speaks with the authority of a Christian lawgiver, saying that by the Law of Nations there can be no reprisals "on travellers or sojourners." 5

"4

1 Commentaries upon International Law, Part IX. Ch. II. § 19, Vol. III. pp. 23, 24.

2 Wheaton's Elements of International Law, ed. Dana, p. 370, note.

8 Le Droit des Gens, Liv. III. Ch. 4, § 63.

4 International Law, Ch. XII. § 16, p. 302.

5 De Jure Belli ac Pacis, Lib. III. Cap. II. § VII. 2.

The other reason was assigned by Mr. Webster, in his correspondence with the British Government in relation to the "Caroline." The British Government having acknowledged the act of McLeod in burning this vessel as their act, Mr. Webster at once declared, that, after this avowal, the individuals engaged in it could not be held personally responsible, and he added words worthy of memory at this juncture: "The President presumes that it can hardly be necessary to say that the American people, not distrustful of their ability to redress public wrongs by public means, cannot desire the punishment of individuals, when the act complained of is declared to have been an act of the Government itself."1 Weighty words, by which our country is forever bound. The same principle is adopted by Halleck, in his text-book, when he says, "No individual is justly chargeable with the guilt of a personal crime for the act of the community of which he is a member." 2 All these authorities furnish us the same lesson, and warn against the present proposition. Shall we at the same time violate the Public Faith and wreak a dishonorable vengeance on an innocent traveller or sojourner, making him the scapegoat of his country? Shall we do this outrage to the stranger

within our gates?

Another argument may be found in the extent to which reprisal on persons has been discarded by modern precedents. It is denounced, not only by authority, but also by practice. I have already said that the proposition to suspend commercial relations is without

1 Mr. Webster to Mr. Fox, April 24, 1841: Works, Vol. VI. p. 253. See also Phillimore, International Law, Part IX. Ch. III. § 38, Vol. III P. 53.

2 International Law, Ch. XII. § 10, p. 296.