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Sec. 1. Embargo.

Sec. 2. Civil em. bargo.

Embargo of 1807.

PART III.

EMBARGO, REPRISALS AND RETORSION.

As means of obtaining redress for injuries, nations sometimes have recourse to measures partaking of a hostile character which are short of actual war. These measures are: Embargo, Reprisals and Retorsion.

An embargo is a "detention of vessels in a port, whether they be national or foreign, whether for the purpose of employing them and their crews in a naval expedition, as was formerly practiced, or for political purposes, or by way of reprisals."*

"There are two kinds of embargoes; and although each is an act of hostility designed to weaken the commerce of the enemy, they have been distinguished by designating the one as warlike, as operating directly upon the vessels of the enemy; and the other as civil, as operating upon those of the citizens or subjects of the nation proclaiming the embargo."†

A civil embargo may be laid by a government upon the vessels of its own citizens with other motives than hostility towards another nation; to restrict commerce in certain directions, to protect the vessels and their crews from the exactions of belligerents, or as "a simple act of internal security ordered to facilitate measures of police."‡

Great Britain, in 1766, in consequence of fears entertained of an impending famine, laid an embargo upon all grain-laden ships in her ports by an Order in Council, which was afterwards confirmed by Parliament.

"The embargo laid by Congress, in 1807, by the special recommendation of President Jefferson, was avowedly recommended as a measure of safety for our vessels, our seamen and our merchandise, from the then threatening dangers from the belligerents of Europe; and it was explicitly stated 'to be a measure called for by the occasion,' and 'neither hostile in its † Upton, p. 164. Heffter, quoted by Lawrence, Wheaton, p. 511.

*Woolsey, Sec. 114.

character, nor as justifying or inciting or leading to hostility with any nation whatever.' It was in no sense, then, a war measure."*

Great Britain, the nation most seriously affected by the embargo of 1807, admitted that it afforded foreign nations no just cause of complaint. "And yet, in the half century since that event, uninterrupted intercourse has come to be regarded almost as an absolute right, and the injuries inflicted in such a way on friendly States would cause them to protest with energy or to retaliate."†

3. Hostile embargo.

A hostile embargo is one laid by a nation upon the vessels Sec. of a foreign power in her ports, to enforce some demand for redress. If this measure is followed by a peaceable arrangement of the dispute between the nations, the vessels are restored to their owners, but if by war, they are regarded as lawful captures, and are condemned as prize of war.

The practice of imposing hostile embargoes is sanctioned by international law, and, as said by Upton, "There is no doubt that embargo, as practiced in modern times, is sanctioned by the uniform usage of nations." But it is condemned on principle by many writers of the highest authority.

condemned.

"This species of reprisals for some previous injury is laid The practice down in the books as a lawful measure according to the usage of nations, but it is often reprobated, and cannot well be distinguished from the practice of seizing property found in the territory upon the declaration of war."§

"Although such a measure might bring an adversary to terms, and prevent war, yet its resemblance to robbery, occurring as it does in the midst of peace, and its contrariety to the rules according to which the private property even of enemies is treated, ought to make it disgraceful and drive it into disuse."|| In accordance with the modern ideas of war, the practice of Modern usage. declaring embargoes has fallen completely into disuse at the present day. During the Crimean War, and in all the later wars in Europe, no belligerent imposed an embargo on the enemy's vessels, but, on the contrary, the greatest indulgences have been granted them in the completion of their cargoes, the time of sailing, and the prosecution of their voyages.¶

* Story, Comm. on the Const., Sec. 1289.

Kent, Vol. I, p. 71.

† Woolsey, Sec. 114.
Woolsey, Sec. 114.

Upton, p. 92.
Comp. Sec. 50 "War," and Sec. 10" Privateers."

Treaties of the
United States.

Sec. 4. Reprisals.

positive re

The latest treaties made by the United States all contain articles forbidding embargoes between the contracting parties. "The citizens of neither of the contracting parties shall be liable in the States or territories of the other to any embargo, nor shall they be detained with their vessels, cargoes, merchandise, or effects, for any military expedition, nor for any public or private purpose whatsoever, without allowing to those interested a sufficient indemnification, previously agreed upon when possible."*

In the United States the power to declare an embargo is conferred by the Constitution upon Congress alone.

"Reprisals are used between nation and nation in order to do justice to themselves, when they cannot otherwise obtain it. If a nation has taken possession of what belongs to another; if it refuses to pay a debt, to repair an injury, to make a just satisfaction, the other may seize what belongs to it, and apply it to its own advantage till it has obtained what is due for interest and damage, or keep it as a pledge until full satisfaction has been made. In the last case it is rather a stoppage or a seizure than reprisals; but they are frequently confounded in common language. The effects thus seized on 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 that war is declared or hostilities commenced; and then also the effects seized may be confiscated."+

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Reprisals differ from retorsion in this, that the essence of the former consists in seizing the property of another nation by way of security, until it shall have listened to the just reclamations of the offended party, while retorsion includes all kind of measures which do an injury to another, similar and equivalent to that which we have experienced from him. Embargo, therefore, is a species of reprisals."‡

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Negative and Reprisals are negative when a State refuses to fulfil a prisals. perfect obligation which it has contracted, or to permit another nation to enjoy a right which it claims. They are positive

* U. S. Treaties, 1873; Italy, p. 504. See treaties U. S. generally.

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when they consist in seizing the persons and effects belonging to another nation, in order to obtain satisfaction.

cial reprisals.

"Reprisals are also either general or special. They are General and spegeneral when a State which has received, or supposes it has received, an injury from another nation, delivers commissions to its officers and subjects to take the persons and property belonging to the other nation wherever they may be found. It is, according to the present usage, the first step which is usually taken at the commencement of a public war, and may be considered as amounting to a declaration of hostilities, unless satisfaction is made by the offending State. Special reprisals are, where letters of marque are granted, in time of peace, to particular individuals who have suffered an injury from the government or citizens of another nation.

"Reprisals are only to be granted in case of a clear and open denial of justice. The right of granting them is vested in the sovereign or supreme power of the State."

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"Reprisals may be undertaken on account of any injury, but are chiefly confined to cases of refusal or even obstinate delay of justice."+

President Jackson, in his Message to Congress in December, 1834, said, in reference to certain claims against France: "It is a well settled principle of the international code, that where a nation owes another a liquidated debt, which it refuses or neglects to pay, the aggrieved party may seize on property belonging to the other, its citizens, or subjects, sufficient to pay the debt, without giving just cause of war. I recommend that a law be passed, authorizing reprisals upon French property, in case provision shall not be made for the payment of the debt at the approaching session of the French Chambers."‡

"Any of these acts of reprisal, or resort to forcible means of redress between nations, may assume the character of war in case adequate satisfaction is refused by the offending State."§

tions.

In several treaties concluded by the United States with South Treaty stipulaand Central American States, it is stipulated that no acts of reprisals shall be authorized unless satisfaction is refused or unreasonably delayed. The treaty of Guadalupe Hidalgo with

*Lawrence's Wheaton, p. 506. ‡ An. Register, 1834, p. 361.

† Woolsey, Sec. 114.
§ Lawrence's Wheaton, p. 508.

Reprisals against a State.

Power to grant

letters of marque.

Mexico, concluded in 1848, required disputes to be submitted to arbitration, on the proposal of either party, before any acts of reprisal or hostility of any kind should be resorted to, unless where such mode of procedure should be incompatible with the nature of the difference, or the circumstances of the case.*

"He who makes reprisals against a nation on the property of its members indiscriminately, cannot be taxed with seizing the property of an innocent person for the debt of another; for, in this case, the sovereign is to compensate those of his subjects on whom the reprisals fall; it is a debt of the State or nation, of which each citizen ought only to pay his quota."†

"Where the property of the State is seized by way of reprisals, the proceeding needs no defence; on the other hand, to take the goods of private persons as security for the reparation of public wrongs is indefensible, except on the ground that a State and its subjects are so far one as to give it a claim on their property for public purposes, and that the injured State takes the place of the injurer, and exercises its power by the only means within its reach. As, therefore, when a man's land is taken for a public road, he has a claim for compensation, so when a man loses his property by the violent process of a foreign State against his own country, not he, but the whole society ought to make his loss good. Still reprisals are inhumane, and like seizure of private effects in land war, will, it is to be hoped, ere long entirely cease."‡

The power to grant letters of marque and reprisal is conferred upon Congress by the Constitution, and is exercised by the passage of an act to authorize the President to issue them. This power has been exercised by Congress in the following instances:

The Act of July 9, 1798, authorized the issuance of special letters of marque and reprisal against French armed vessels. Orders to cruise against such vessels only were also given to the public vessels of the United States.§

The Act of February 6, 1802, authorized reprisals against the Bey of Tripoli and his subjects.||

* U. S. Treaties, 1873, Mexico, p. 571. See also Bolivia, Brazil, &c. † Vattel, p. 284.

§ U. S. Statutes at Large, Vol. I, p. 578.

Woolsey, Sec. 114.

|| Ibid. Vol. II, p. 129.

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