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operated exclusively on the mind of the officer who resorted to ithas not been disapproved by me.. The Brazilian Government, however, complained of it as a measure for which no adequate intentional cause had been given by them, and upon an explicit assurance through their chargé d'affaires residing here that a successor to the late representative of the United States near that Government, the appointment of whom they desired, should be received and treated with the respect due to his character, and that indemnity should be promptly made for all injuries inflicted on citizens of the United States or their property contrary to the laws of nations, a temporary commission as chargé d'affaires to that country has been issued, which it is hoped will entirely restore the ordinary diplomatic intercourse between the two Governments and the friendly relations between their respective nations."
President J. Q. Adams, annual message, Dec. 4, 1827, Richardson's Messages, II. 385.
"This state of affairs was brought to a crisis in May last by the promulgation of a decree levying a contribution pro rata upon all the capital in the Republic between certain specified amounts, whether held by Mexicans or foreigners. Mr. Forsyth, regarding this decree in the light of a 'forced loan,' formally protested against its application to his countrymen and advised them not to pay the contribution, but to suffer it to be forcibly exacted. Acting upon this advice, an American citizen refused to pay the contribution, and his property was seized by armed men to satisfy the amount. Not content with this, the Government proceeded still further and issued a decree banishing him from the country. Our minister immediately notified them that if this decree should be carried into execution he would feel it to be his duty to adopt 'the most decided measures that belong to the powers and obligations of the representative office.' Notwithstanding this warning, the banishment was enforced, and Mr. Forsyth promptly announced to the Government the suspension of the political relations of his legation with them until the pleasure of his own Government should be ascertained.
"This Government did not regard the contribution imposed by the decree of the 15th May last to be in strictness a 'forced loan,' and as such prohibited by the 10th article of the treaty of 1826 between Great Britain and Mexico, to the benefits of which American citizens are entitled by treaty; yet the imposition of the contribution upon foreigners was considered an unjust and oppressive measure. Be sides, internal factions in other parts of the Republic were at the same time levying similar exactions upon the property of our citizens and interrupting their commerce. There had been an entire failure on the part of our minister to secure redress for the wrongs which
our citizens had endured, notwithstanding his persevering efforts. And from the temper manifested by the Mexican Government he had repeatedly assured us that no favorable change could be expected until the United States should give striking evidence of their will and power to protect their citizens,' and that severe chastening is the only earthly remedy for our grievances.' From this statement of facts it would have been worse than idle to direct Mr. Forsyth to retrace his steps and resume diplomatic relations with that Government, and it was therefore deemed proper to sanction his withdrawal of the legation from the City of Mexico."
President Buchanan, annual message, Dec. 6, 1858, Richardson's Messages, V. 513.
A refusal to accept an ultimatum as to a claim for damages due a citizen of the United States may be followed by a withdrawal of our diplomatic representative at the country by which the demand is refused.
Mr. Cass, Sec. of State, to Mr. Dana, Oct. 31, 1860, 53 MS. Dom. Let. 224.
2. RETORSION OR RETALIATION.
"Retorsion is the appropriate answer to acts which it is within the strict right of a state to do, as being general acts of state organisation, but which are evidence of unfriendliness, or which place the subjects of a foreign state under special disabilities as compared with other strangers, and result in injury to them. It consists in treating the subjects of the state giving provocation in an identical or closely analogous manner with that in which the subjects of the state using retorsion are treated. Thus if the productions of a particular state are discouraged or kept out of a country by differential import duties, or if its subjects are put at a disadvantage as compared with other foreigners, the state affected may retaliate upon its neighbors by like laws and tariffs."
Hall, Int. Law (5th ed.), 367, citing De Martens, Précis, § 254; Phillimore,
See, further, as to retorsion, Rivier, Principes du Droit des Gens, II. 189.
“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."
Wharton, Com. Am. Law, § 206.
Reciprocating to the subjects of a nation, or retaliating on them its unjust proceedings towards our citizens, is a political and not a legal measure. It is for the consideration of the Government not of its courts. The degree and the kind of retaliation depend entirely on considerations foreign to this tribunal. It may be the policy of the nation to avenge its wrongs in a manner having no affinity to the injury sustained, or it may be its policy to recede from its full rights, and not to avenge them at all. It is not for its courts to interfere with the proceedings of the nation and to thwart its views.
If it be the will of the Government to apply to Spain any rule respecting captures which Spain is supposed to apply to us, the Government will manifest that will by passing an act for the purpose. Till such an act be passed, the court is bound by the law of nations which is a part of the law of the land."
Marshall, C. J., The Nereide. 9 Cranch, 388, 422.
By the act of April 18, 1818, the ports of the United States were closed, after September 30, 1818, against British vessels arriving from a British colony which, by the ordinary laws, was closed against American vessels.
3 Stat. 432.
A British ship, coming from a foreign port, not British, to a port of the United States, did not become liable to forfeiture under this act by touching at an intermediate British closed port from necessity, in order to procure provisions, and without trading there. (The Frances and Eliza, 8 Wheat. 398.) Nor did the act prohibit the coming of British vessels from a British closed port, through a foreign port, not British, where the continuity of the voyage was actually and fairly broken. (The Pitt, 8 Wheat. 371.)
The Chinese Government having persistently refused to pay a claim for personal injuries to a citizen of the United States which it admitted to be due, the United States minister at China was, in 1855, instructed, at his discretion, "to resort to the measure of withholding duties to the amount thereof.”
Mr. Marcy, Sec. of State, to Mr. Parker, Oct. 5, 1855, MS. Inst. China,
"Anticipating that an attempt may possibly be made by the Canadian authorities in the coming season to repeat their unneighborly acts toward our fishermen, I recommend you to confer upon the Executive the power to suspend, by proclamation, the operation of the laws authorizing the transit of goods, wares, and merchandise in bond across the territory of the United States to Canada; and further, should such an extreme measure become necessary, to suspend the operation of any laws whereby the vessels of the Dominion of Canada are permitted to enter the waters of the United States."
President Grant, annual message, Dec. 5, 1870, For. Rel. 1870, 11.
3. DISPLAY OF FORCE.
"The constant maintenance of a small squadron in the Mediterranean is a necessary substitute for the humiliating alternative of paying tribute for the security of our commerce in that sea, and for a precarious peace, at the mercy of every caprice of four Barbary States, by whom it was liable to be violated. An additional motive for keeping a respectable force stationed there at this time is found in the maritime war raging between the Greeks and the Turks, and in which the neutral navigation of this Union is always in danger of outrage and depredation. A few instances have occurred of such depredations upon our merchant vessels by privateers or pirates wearing the Grecian flag, but without real authority from the Greek or any other Government. The heroic struggles of the Greeks themselves, in which our warmest sympathies as freemen and Christians have been engaged, have continued to be maintained with vicissitudes of success adverse and favorable.
"Similar motives have rendered expedient the keeping of a like force on the coasts of Peru and Chile, on the Pacific. The irregular and convulsive character of the war upon the shores has been extended to the conflicts upon the ocean. An active warfare has been kept up for years with alternate success, though generally to the advantage of the American patriots. But their naval forces have not always been under the control of their own Governments. Blockades, unjustifiable upon any acknowledged principles of international law, have been proclaimed by officers in command, and though disavowed by the supreme authorities, the protection of our own commerce against them has been made cause of complaint and erroneous imputations against some of the most gallant officers of our Navy. Complaints equally groundless have been made by the commanders of
the Spanish royal forces in those seas; but the most effective protection to our commerce has been the flag and the firmness of our own commanding officers. The cessation of the war by the complete triumph of the patriot cause has removed, it is hoped, all cause of dissension with one party and all vestige of force of the other. But an unsettled coast of many degrees of latitude forming a part of our own territory and a flourishing commerce and fishery extending to the islands of the Pacific and to China still require that the protecting power of the Union should be displayed under its flag as well upon the ocean as upon the land."
President J. Q. Adams, annual message, Dec. 6, 1825, Richardson's Messages, II. 308.
When, in 1852, the Japanese authorities refused to protect citizens of the United States visiting or cast ashore in Japan, it was held proper (there being then no treaty protection) to display at Japan an imposing naval force, and to inform the Japanese Government that the Government of the United States will insist upon the protection and hospitality asked for being given.
Mr. Conrad, Act. Sec. of State, to Mr. Kennedy, Nov. 5, 1852, MS. Notes,
Several citizens of the United States, having been massacred at Jaffa, in January, 1858, and the Turkish Government having taken no efficient measures to bring the assassins to justice, the Secretary of State requested the Secretary of the Navy "that orders may be given to the commanding officer of our squadron in the Mediterranean to put himself in communication with the minister of the United States at Constantinople, and after receiving from him such information as he may require, to repair to Jaffa and to take such measures as may be in his power to induce the Turkish authorities to inflict. upon the criminals referred to the punishment which they so richly deserve."
Mr. Cass, Sec. of State, to Mr. Toucey, Sec. of Navy, Aug. 10, 1858, 49 MS.
Writing to Mr. Beach, American consul-general at Guayaquil, May 1, 1885, with reference to the case of Julio R. Santos, a naturalized citizen of the United States of Ecuadorean origin, who was imprisoned in Ecuador on account of alleged participation in a political uprising, Mr. Bayard said: "This instruction will be handed to you by Commander Mahan, of the U. S. S. Wachusett, who revisits the waters of Ecuador by direction of the Secretary of the Navy for that purpose. Commander Mahan will be instructed to remain within reach pending the prompt disposal of Mr. Santos's case, and,