used have a different legal sense in different States, then there will be a presumption in favour of that sense which attaches in the State upon which the obligation is imposed (k).

Conflict of Treaties.-In cases where two treaties conflict, the rules commonly laid down are as follows: (1) Where the conflict is between two treaties made between the same Powers, at different times, then that which was last entered into will be preferred, it being presumed to have been made in substitution for the earlier; save, perhaps, in cases when the latter was made by inferior authority (1). (2) Where the conflict is between two treaties made at different times between different States, then it is said that the earlier will prevail, for the reason that it is not permissible to derogate from an earlier engagement made with one State by a subsequent engagement made with another, without the former's assent (m).

INTERNATIONAL DELINQUENCIES AND METHODS OF REDRESS SHORT OF WAR.

THE CASE OF THE SILESIAN LOAN.
[1752; De Martens, Causes Célèbres, ii. 97.]

Case.] IN 1744 war broke out between Great Britain, on the one hand, and France and Spain, on the other. Towards the end of 1745 certain Prussian subjects commenced to load cargoes of merchandise on French account; whereupon several Prussian vessels laden with French goods were captured by British cruisers, and their cargoes condemned on the ground that they were enemy property or property embarked in the enemy trade. By the end of 1748 some eighteen Prussian vessels as well as thirtythree other neutral vessels, chartered in whole or part by Prussian subjects, had been thus captured and brought in for adjudication on similar grounds. In effecting these seizures Great Britain followed her usual maritime practice, which was based on the principles (1) that neutral property found on enemy ships, not being contraband, was exempt from capture; (2) that property belonging to the enemy or embarked in the enemy trade,

(k) Hall, 346. For a fuller discussion of this subject, see the references given in note (z), p. 345, supra.

(1) Hall, 350; Taylor, 399. (m) Ibid.

A list of English and

American decisions which touch on the question of interpretation of treaties will be found in Phill. ii. 130 n; and Halleck, i. 318.

found on neutral vessels, was liable to capture; and (3) that property having a contraband character was liable wherever found. By way of reprisal the King of Prussia thereupon confiscated certain funds which had been hypothecated to British subjects in consideration of a loan of money which had been made by them on the security of the revenues of Silesia; a debt which he had bound himself to repay by certain treaties entered into in 1742.

Controversy.] In substance the two main questions in issue between the parties were: (1) as to the legality of the proceedings adopted by Great Britain with respect to the capture of the Prussian vessels and their cargoes; and (2) as to the legality of the proceedings adopted by Prussia in confiscating debts due to British subjects, by way of reprisal and indemnity. On these points the Prussian contention was, shortly: (1) That neither by the laws of nature nor by the law of nations had Great Britain any jurisdiction over property found in neutral vessels on the high seas, except in the case of contraband, whereas the goods in the present case were not of that character; and (2) That, in view of such captures having been illegal, the King of Prussia was entitled to utilise funds under his control, not so much by way of reprisal as by way of compensation, even though such funds might have been hypothecated to British subjects. In Great Britain these questions were referred for report to a commission, consisting of one of the judges, and the Attorney-General, the SolicitorGeneral, and the Judge-Advocate-General (n), who advised, in effect: (1) That, according to the recognised principles of international law, the British seizures were justifiable, on the grounds (a) that property belonging to the enemy was liable to seizure, even though found on neutral vessels, and (b) that contraband was also liable to seizure, even though belonging to neutrals; and (2) That the law of nations permitted reprisals in two cases only: (a) in cases of violent wrong directed and supported by the sovereign authority, and (b) in cases of a denial of justice by all tribunals and by the sovereign authority itself in matters not admitting of doubt. It was further pointed out that the practice

of reprisals would not warrant the seizure of debts owing to private individuals; especially in a case where the Sovereign effecting such seizure had bound himself in honour to pay such debts, and in a case where, at the time of the seizure, the payment of the debt had already accrued due.

Settlement.] After much further discussion and negotiation the matter was finally settled by the Treaty of Westminster, 1756, whereby, in consideration of Prussia agreeing to pay off the loan according to the original contract, Great Britain undertook to pay a sum of £20,000 to Prussia in discharge of all claims (0).

The controversy in this case turned largely on the question of the liability of enemy property, not being contraband, found on neutral vessels. At the time of the dispute two rival principles prevailed with respect to the liability of property to maritime capture in time of war. According to one, which was generally followed by Great Britain, the liability of the property was determined by the nationality of its owner; with the result that enemy goods found on neutral vessels were liable, whilst neutral goods, not being contraband, found on enemy vessels went free. According to the other, which was generally followed by other European nations, the liability of the property was determined, by the nationality of the vessel; with the result that enemy goods on neutral vessels went free, whilst neutral goods on enemy vessels, unless exempted by treaty, were held liable. This matter, however, is now regulated as between nearly all civilised States by the Declaration of Paris, 1856, the effect of which, in relation to the earlier law, will be considered later (p). The case is therefore cited mainly as illustrating an application, although in the circumstances seemingly an improper application, of a mode of redress falling short of war, known as reprisals." This method of redress once filled an important place in all treatises on the law of nations; and even now claims some notice, although it has greatly decreased in importance. Reprisals are strictly acts of retaliation, and may be either hostile reprisals,' which belong to the subject of war (q), or "pacific reprisals." The latter are acts of retaliation which are unfriendly in their nature, but which are not in themselves intended to set up a state of war. Such reprisals are sometimes classed as general" or "special." But of these, general reprisals" (r) appear to involve the adoption of actual measures of hostility both against the offending State and its subjects, and to constitute really a preliminary to or concomitant of war. So, on the outbreak of war between Great Britain and Russia,

(0) See also Phillimore, ii. 33. (p) Infra, vol. ii.

(q) Being in fact acts of retaliation generally on innocent parties, resorted to in order to punish some violation of

66

the usages of war committed by the enemy; infra, vol. ii,

(r) This term is, however, sometimes identified with public reprisals; see Hall, 383 n.

in 1854, an Order in Council was isued authorising general reprisals against the ships, vessels, and goods of the Emperor of All the Russias, his subjects, and other inhabitants of his dominions

(s).

Special reprisals, on the other hand, are acts of retaliation, limited in their nature or scope, resorted to by one State in order to extort satisfaction for some injury to itself or its subjects, for which justice has been denied or unreasonably delayed, but without embarking in open war. There was formerly a distinction between "public reprisals," in virtue of which an aggrieved State issued letters of marque and reprisal to its armed forces or agents; and "private reprisals," in virtue of which it issued letters of reprisal to particular individuals who had suffered injury at the hands of some other State or its subjects. But the practice of issuing letters of reprisal to private individuals has now been abandoned, and reprisals in so far as they are still resorted to are now carried out only by the State or its agents. With this much of the earlier learning on the subject of reprisals has fallen into abeyance. Measures of reprisal may be either positive" or "negative" in their character. Positive reprisals " consist in the seizure of any property belonging either to the offending State or its subjects. So, in 1834, President Jackson, in recommending to Congress the adoption of reprisals against France, urged that it was a well-settled principle of international law that when one State owes another a liquidated debt which it refuses or neglects to pay, the aggrieved party may seize property belonging to the delinquent State or its subjects, sufficient to pay the debt, without giving just cause of war (t). But the seizure by way of reprisal of the property of private individuals other than commercial property (u), would now probably be reprobated. Negative reprisals," on the other hand, consist in the refusal to discharge some admitted obligation owing to the offending State, whether under treaty or otherwise. Of this form of reprisals the action of the King of Prussia in the case of the Silesian loan affords an example; although the reprisals, in this particular case, were, by general assent, regarded as unjustifiable (x). At the present time reprisals, in so far as they are still resorted to, are usually applied to minor Powers, and generally take the form of a temporary occupation of a port or some part of the territory of the offending State, or a seizure of customs duties, or the imposition of an embargo on vessels, or the institution of a pacific blockade. So, amongst recent instances, Great Britain, in 1895, seized the port of Corinto and levied the customs duties there, until Nicaragua agreed to make reparation for injuries inflicted on British subjects. France, in 1901, seized a port in the island of Mitylene, until Turkey agreed to satisfy certain contractual claims on the part of French citizens. The Netherlands, in 1908, blockaded the ports of Venezuela and seized two gunboats by way of reprisal for illegal interference with her trade and the expulsion of her Minister. Other forms of procedure by way of reprisal will be considered hereafter. Reprisals, whether of this or

(s) See Phill. iii. 20.

(t) Phill. iii. 41.

(u) And even this is not usually

confiscated, at any rate in cases of

embargo or pacific blockade; infra, p. 352.

(x) Supra, p. 347; Phill. iii. 34, n. (e).

Some

the earlier kind, if they do not lead to war, have the advantage of being limited in their operation, of not involving any general disturbance of trade or treaties, and also of not affecting private interests outside the immediate scene of the operations (y). what different in their object are those summary measures, such as the shelling of a village or the bombardment of a town, which are occasionally resorted to by civilised States for the purpose of punishing or preventing the continuance of outrages or wrongs committed against their subjects by members of uncivilised communities (z).

Case.] IN 1803 various disputes arose between Great Britain and Holland, with the result that on the 16th of May in that year an embargo was imposed on all Dutch property found in British ports. By virtue of this embargo, the "Boedes Lust," a Dutch vessel, was seized on the 19th of May. In the following month war actually broke out between the two countries. On the captors proceeding to adjudication, the property was claimed on behalf of certain persons resident in Demerara, on the ground that they were not, either at the time of the seizure or at the time of the adjudication, in the position of enemies of Great Britain. It appeared that at the time of the seizure Demerara was a Dutch settlement; but it was urged on behalf of the claimants that even if this were so, yet, inasmuch as the property had been seized before any actual declaration of war, it could not be regarded as enemy property. It was also urged that inasmuch as in the course of the war Demerara had passed under British control, the property could not be deemed enemy property at the time of adjudication. Notwithstanding these contentions, a decree of condemnation was pronounced by the Court.

66

Judgment.] Sir William Scott, in giving judgment, stated, in effect, that a seizure under an embargo" was at first equivocal. If the matter in dispute had been settled, the

(y) These differences are well stated in Gray v. U. S. (21 Court of Claims, 340; Scott, 452).

(z) See Wharton, Dig. i. 229, and

66

ii. 595; and on the subject of reprisals" generally, Hall, 379; Taylor, 435; Westlake, L. Q. R., April, 1909.