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may be a delict. But when there is no treaty limitation, then the questions arising under this head may be beset with much difficulty. Four rules, however, may be regarded as settled: (1) The fact that a state imposes on its subjects severer restrictions as to neutrality than are imposed by the law of nations does not make such self-imposed restrictions the standard between itself and belligerents, it being bound to belligerents, not (if there be no treaty) by its municipal law, but by the law of nations. (2) A state, by taking a lax view, in its domestic legislation, of the duties of neutrals, does not incorporate such rules into the law of nations; and yet it may expose itself, if it complains of other nations taking equally lax views, to the retort that the act complained of is one which its own legislation sanctions. (3) Incapacity on the part of the state by whose subjects the injury was inflicted to prevent the injury is no defence. A state is bound to suffer the consequence if it permits its subjects to invade the rights of another state. (4) A state, which, by its own negligence, exposes itself to the fillibustering attacks of the subjects of another state, may lose the right to recover.2 $205. Restitution or indemnity may be voluntarily made by one state to another in case of admitted injuries, or indem- as in the case of the payment by Great Britain to the United States of losses incurred by the depredations of the Alabama; and of the restoring by the United States to Great Britain of Messrs. Mason and Slidell, taken by Admiral Wilkes from the Trent. To restitution and indemnity apology is added when properly due.'



1 Infra, § 241; see Whart. Crim. who had entered the vessel on various Law, 8th ed., § 1901.

2 See infra, §§ 240 et seq.

3 See, for other illustrations, Hartmann, § 90; Phillimore, ii. 46.

4 As illustrations of restitution, in cases of invasions of neutral rights, may be mentioned the following: In 1863, the Chesapeake, a passenger boat running between New York and Portland, was seized and diverted to their use by a party of Confederates,

pretences in New York. The vessel was pursued by a United States cruiser, and seized, with those on board her, in British waters. The vessel and the men were surrendered by the United States government to the British authorities, with an apology for the invasion of territory.-In 1864 the Confederate steamer Florida was seized by a United States cruiser in the harbor of Bahia, belonging to Brazil. Repa

Retorsion and reprisal

§ 206. Retorsion and reprisal bear about the same relation to arbitration and war, as the personally abating a nuisance does to a suit for its removal. States as well as individuals have a right to protect themselves when injustice is done them by removing the cause of offence; and that in disputes between nations this right is more largely extended than in disputes between individuals, is to be explained by the fact that in disputes between nations there are not the modes of redress by litigation which exist in suits between individuals.-" Retorsion" and "reprisal" are often used convertibly; though the difference is that "retorsion" is retaliation in kind, while "reprisal" is seizing or arresting the goods or trade of subjects of such state as set-off for the injuries received. Under this head fall embargoes, and what are called pacific blockades (blocus pacifique), by the former of which trade is forbidden with the offending state; by the latter of which a port belonging to the offending state is closed to foreign trade. These acts approach in character to war, to which they generally lead; yet technically they are not war, and there are cases where the remedy has been applied without war resulting.1

ration was demanded; and, though the Florida could not be restored, having foundered, her crew was given up to Brazil, and an apology tendered. See Dana's Wheaton, notes 207 and 209; Hall's Int. Law, 544.

On the topic in the text may be consulted Le Droit de la Guerre, par Ernest Nys, Brussels, 1882, pp. 27 et seq., in which mediation is historically examined.

1 Holtzendorff, ut supra, 1238, citing Sanford's Law of Special Reprisals, 1858; Wurm's Selbsthülfe der Staaten in Friedenzeiten. Perels (§ 30) cites as an illustration of reprisal, the action of the British government in 1861, in seizing, as an indemnity for the pillage of a stranded British ship, several Brazilian merchant ships.

The evils attending reprisals are well exhibited in Nys's Le Droit de la Guerre, Brussels, 1882, pp. 40 et seq.

Wheaton, after noticing embargoes and sequestrations, to be hereafter considered, specifies the following modes of reprisal:

1. Taking forcible possession of the thing in controversy, by securing to one's self by force, and refusing to the other nation, the enjoyment of the right drawn in question.

2. Exercising the right of vindictive retaliation (retorsio facti), or of amicable retaliation (rétorsion de droit); by which last the one nation applies, in its transactions with the other, the rule of conduct by which that other is governed under similar circumstances. Lawrence's Wheaton, Elements of Intern. Law, pt. IV., ch. i. § 1; Dana's Wheaton, § 290: citing Vattel, liv. II. ch. xviii.; Klüber, Droit des Gens Modernes de l'Europe, § 234; see, also, Wildman's International Law, i. 187; Halleck's Intern. Law, 297.


207. Hence it is in the power of a state to shut its ports to the shipping of another state with whom it has a supposed cause of offence; and this is regarded as an international right. This course was taken by Mr. Jefferson's administration towards England; and the right was conceded by both England and France. A belligerent, also, may lay an absolute general embargo on its own ports as against vessels of all nationalities. But neutral vessels entering such a port in defiance of such an embargo are not open to confiscation in the same way as is a vessel running a blockade. Repulsion, not confiscation, is the remedy.1

§ 208. The practice is now prevalent, in cases of a controversy


now usually at

tempted to avert war. Arbitration

between nations which does not from the nature of things necessarily involve war, to ask an independent nation to act as arbitrator; and in some instances the offer of arbitration is made by a state friendly to both of the litigants. Arbitration was declared by the peace of Paris, in 1856, to be the proper course in all cases of international disputes; though the principal parties to that peace were afterwards very far from following the rule they themselves laid down. But arbitrations, especially in cases of disputed boundary, are often efficacious, and each year adds to the confidence felt in them as an honorable and effective mode of doing justice and of avoiding war. Of arbitration, it is only necessary here to say that it is gov erned by the terms of the treaty prescribing it, and when these terms are not precise, by the usages adopted in international law, and when these fail, by common law rules in respect to arbitrations of private litigations.2


§ 209. War is the final and often the essential appeal for the redress of national wrongs. A weak state may appear to court ruin by declaring war against a powerful aggressor; yet submission may be less destructive

War the final appeal.

Perels, § 52.

As to the Geneva arbitration, see infra, §§ 244 et seq. As to the fishery award of 1878, see article by Senator

Edmunds, in North Am. Rev., Jan. 1879, p. 1, in which the question whether arbitrators are to be unanimous is discussed.

than war, and there are few instances in modern history in which the heroic resistance of a weak state to the aggressions of an invader has not gradually obtained for it effective allies. It must, also, be recollected that a state is not subject to punishment as such. It may be insulted and assailed; its ports may be seized, its cities burned, and heavy contributions may be levied on it; but tried, convicted, and executed as a criminal it cannot be.1

Only states

can be parties to

war; but

involves all subjects.

§ 210. It must be remembered that only states can be parties to a war. A band of marauders, which, without incorporation into the army of a specific sovereign, undertakes to perform acts of war, subjects its members to indictment for murder or robbery, as the case may be. Whether, however, when an insurrection exists, the insurgents are to be treated as belligerents, is a difficult question, dependent upon the extent to which the organization of the insurgents has acquired local authority and permanence. That a foreign government should recognize insurgents as belligerents is not a matter which the government revolted from can treat as a cause of war. But however this may be, all the subjects of a sovereign are ordinarily parties to a war he declares. "When the sovereign of a state declares war against another sovereign, it implies that the whole nation declares war, and that all the subjects of the one are enemies to all the subjects of the other."3

of war

§ 211. Unless a declaration of war is made as soon as war is determined on and overt acts of war are begun, not only might a party springing an attack have an unfair advantage, but neutrals might be greatly injured. It is part of the law of nations, therefore, that a declaration of war should precede an attack;

1 Phill. Int. Law, 3d ed., i. 5. As to "coercion of a state" see infra, § 378. See this question discussed, supra,

§§ 140 et seq.

Declaration should be made.


court of the United States that military action, even by an insurgent soldier, does not render him liable in a civil court when the insurgent government is recognized as belligerent. Ford v. Surget, 97 U. S. 594; see Whart. Crim. Law, 8th ed., §§ 94, 283, 310; and see supra, §§ 144, 178,

Kent's Com., 156. Infra, § 214. That the Confederate states in the late civil war were belligerents, see supra, § 141; infra, § 217. It has been held by the supreme infra, § 221, for other authorities.

but this rule is by no means generally followed,' nor is there any fixed prior notice required. In recent times, the fact that one nation intends war against another is known from the nature of the preparations, as soon as these preparations take specific shape; and the formal declaration is not issued until its contents are generally understood. A declaration of war, also, may be implied: as where an act of hostilities takes place which can be explained on no other hypothesis. A declaration of war, also, may be conditional, that is to say, war is declared unless a certain condition, called an ultimatum, is performed on the other side. In cases of civil war, also, when the party in power has not as yet acknowledged the insurgents as belligerents, it cannot be expected that a declaration should be formally made by the party in power. Nor is this necessary under the constitution of the United States.3 § 212. An invading army is authorized, according to international law, to appoint officials for the purpose of determining matters relative to the occupation. This does not vacate the authority of the local courts as existing at the time of the invasion. It simply establishes by their side a tribunal which in all matters relative to the occupation is supreme so long as the occupation is in force. The occupying authorities, however, have internationally no right to call upon the subjects of the occupied territory for military service, or for a betrayal of political secrets, though requisitions may be imposed, and a strict submission to military police exacted.*

Provisional govern

ments may be established.

1 That declarations of war are fallen into disuse, and that wars in modern times usually begin by a surprise attack, see article in London Spectator of December 8, 1883, p. 1573.

2 Prize Case, 2 Black, 635. "Where the party in rebellion occupy and hold in a hostile manner a certain portion of territory, have declared their independence, have cast off their allegiance, have organized armies, have commenced hostilities against their former sovereign, the

world acknowledges them as belliger-
ents, and the contest as a war.'
Field's International Code, § 709.
3 Infra, § 454.

As to military provisional governments during the late American civil war, see Milligan er parte, 4 Wal. 2; Ford v. Surget, 97 U. S. 594. In Texas v. White, 7 Wall. 700, such governments were sustained.

As to such governments generally, see Leitensdorfer v. Webb, 20 Howard, 176; Cross v. Harrison, 16 How. 164.

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