was a breach of the Treaty of Commerce of 1816 between Great Britain and the Two Sicilies. On this occasion, after the British Minister at Naples had formally demanded the revocation of the grant made to the French Company, and the Neapolitan Government had declined to comply with this demand, orders from the British Government were transmitted to the Admiral of the British fleet in the Mediterranean Sea "to cause all Neapolitan and Sicilian ships which he might meet with either in the Neapolitan or Sicilian waters to be seized and detained, until such time as notice should be received from her Majesty's Minister at Naples that the just demand of her Britannic Majesty's Government had been complied with." Lord Palmerston, then Secretary of State for Foreign Affairs, upon the announcement that the British Admiral was proceeding to carry out his instructions, sent a despatch to the British Minister at Naples (April 14, 1840), in which he observes, that "as the Reprisals, which Sir Robert Stopford has been instructed to make, do not, however, constitute war, it is not the wish of Her Majesty's Government that you should follow up those steps by quitting Naples. If indeed the Neapolitan Government were to add to the injustice, which it has committed towards British subjects in regard to the Sulphur Monopoly, by any acts of violence towards British subjects or property, you would in such case leave Naples, and retire to Rome, there to await further instructions." On 17th April the British fleet began to make Reprisals in the vicinity of Naples, and captured a number of Neapolitan vessels. An Embargo was at the same time laid in the ports of Malta on all vessels that bore the 49 49 British and Foreign State Papers, 1840, 41, p. 202. Sicilian flag 50. Naples, on the other hand, made preparations for defence; and the Neapolitan Government laid an Embargo1 on all British vessels in Neapolitan and Sicilian ports. Everything appeared to be tending to open war, when the Cabinet of the Tuileries offered its mediation, and the King of the Two Sicilies accepted it (26 April, 1840). Reprisals thereupon ceased to be made on either side; the Neapolitan Government agreed to dissolve its contract with the French Company, and the vessels seized by the British fleet by way of Reprisals were restored to their Neapolitan owners without the general relations of peace between the two Nations having suffered any such interruption, which required that they should be renewed by any formal Treaty of Peace between the two Nations. not always 19. Although General Reprisals do not neces- Reprisals sarily put an end to all relations of amity, and so far lawful. are means for procuring international redress short of actual war, there are cases in which it would not be lawful to use Reprisals by way of prelude to war, and in which a proclamation of General Reprisals would be equivalent to a proclamation of War. To such cases the observation of the Grand Pensionary De Witt is justly applicable, when he remarked, that he saw no distinction between the General Reprisals made by the British Government and open War. Acts of Reprisal as distinguished from acts of War are only allowed by the Law of Nations, when there has been a denial of justice to a well-founded claim, or such a delay as is inconsistent with an honest intention to do justice. "Reprisals," says 52 50 Annual Register, 1840, p. 210. 5 Annuaire Historique Uni versel, 1840, p. 48. 52 Letter to the King in Council, Oct. 8, 1675. D 2 Jenkins. Grotius. Bynkershoek. Vattel. 66 Sir Leoline Sir Leoline Jenkins 53, "will not lie where there is neither denial of justice, nor a delay amounting to denial." "Reprisals," writes Grotius, "are a species of violent execution, which takes place when Right is denied." Reprisals," says Bynkershoek 55, "are not to be granted except upon an open denial of justice." "It is only for an evidently just cause," writes Vattel 56, "and for a clear and undeniable debt, that the Law of Nations allows us to make Reprisals; for he who advances a doubtful claim cannot in the first instance demand anything more than a fair examination of his right. In the next place, before he proceed to such extremities, he should be able to show that he has ineffectually demanded justice, or at least that he has every reason to think that it would be in vain for him to demand it. Then alone does it become lawful for him to take the matter into his own hands, and to do himself justice." International justice may be denied in several ways, either by the refusal of a Nation to entertain the complaint at all or to allow the right to be established before its ordinary tribunals, or by studied delays and impediments, for which no good reason can be given, and which in effect are equivalent to a refusal, or by an evidently unjust and partial decision 57. But if a court of competent jurisdiction should pass an erroneous judgment in a doubtful question in which a foreigner is a party, such a result would give no right of Reprisals to 53 Sir Leoline Jenkins's Works, Vol. II. p. 778. 54 Locum autem habet, ut aiunt juris consulti, ubi jus denegatur. Grotius de Jure B. et P., L. III. c. 2. § 14. 55 Quæstiones Juris Publici, L. I. c. 24. 56 Law of Nations, L. II. c. 18. § 343. 57 Vattel, L. II. c. 18. § 350. the Nation to which the foreigner belongs, if the judges have been left free, and have given sentence according to their conscience. Upon doubtful questions, different men think and judge differently; and all that a foreigner can desire is, that justice should be as impartially administered to him as it is to the subjects of the Prince, in whose courts the matter is tried." Grotius observes, that "in a doubtful case the presumption is always in favour of the established judges, and that Reprisals are permitted by custom only, where judgment is given plainly against Right 5' 58 " persons. § 20. Reprisals by the custom of Nations extend to persons as well as to property. Reprisals against Reprisals persons known by the Greek name ardpoλnia, or the against seizure of persons, are recognised by Grotius, Vattel, Bynkershoek, and all modern writers; but under the practice of the Christian Nations of Europe this form of Reprisals is seldom resorted to, except with a view to obtain satisfaction for the unjust seizure or detention of other persons. Thus in 174059 the Empress Catherine of Russia having arrested the Baron de Stackelberg, who was a natural born subject of Russia but had acquired a Prussian domicile and was in the military service of Prussia, the King of Prussia made reprisal by seizing two Russian subjects, and detained them until the Baron de Stackelberg was liberated. Whenever persons are thus seized by way of reprisal, they are entitled to be treated as hostages, whose lives are sacred, and who are entitled to good treatment. A Sovereign has no right to put to death the subjects of a State 58 De Jure Belli, L. III. c. 2. § 5. 59 Moser, Versuch, VIII. 504. 60 Vattel, L. II. c. 18. § 351. Political which has done him an injury, except when they are engaged in actual war against him. By the Law of Nations all the subjects of an offending Power, whether they are natural born subjects or persons who have acquired a domicile in his territory by long residence therein, are liable in their persons and their property to the operation of Reprisals made against that Power; but individuals who may be only temporarily resident in the country, or travelling through it, do not thereby incur any liability to Reprisals; for the liability to undergo Reprisals is as it were a liability to share the burden of a public debt, to which those are not liable who are only subject to the laws of a country for a time. Political Envoys, although they may be permaempt from nently resident in a country, are equally exempt Reprisals. from the operation of Reprisals. They cannot be the subjects of Reprisals, either in their persons or in their property, on the part of the Nation which has received them in the character of envoys (legati), for they have entrusted themselves and their property in good faith to its protection; on the other hand, they cannot be the subjects of Reprisals on the part of another Nation, which may be entitled to make Reprisals on the Sovereign to whom they are accredited, as they are not domiciled within his territory. Grotius appears to consider that Political Envoys who are on their way to our enemies, and come within our territory without having first obtained letters of safe conduct, may be seized by way of reprisal 62. The meaning of Grotius is not altogether clear, and several writers have objected to such Grotius. 61 Grotius, de Jure Belli, L. III. c. 2. § 7. 62 A numero tamen subditorum jure gentium excipiuntur legati non ad hostes nostros missi, et res eorum. De Jure Belli, L. III. c. 2. § 7. |