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treatment, either at the moment when the war against Venezuela ceased or immediately after the signature of the protocols of February 13, 1903; that, all through the negotiations which resulted in the signature of the protocols of February 13, 1903, the British and German Governments constantly insisted on obtaining guarantees for "a sufficient and punctual discharge" of Venezuela's obligations to them; that Venezuela accepted this reservation without protest, and engaged with respect to the allied powers alone to offer special guarantees for the accomplishment of her engagements, and that the blockading powers were consequently entitled to preferential treatment for the payment of their claims out of the customs revenues in question.
For. Rel. 1904, 506.
The arbitrators, in the course of their decision, declared that they were “not called upon to decide whether the three blockading powers had exhausted all pacific methods in their dispute with Venezuela in order to prevent the employment of force;" but adverted to the fact that since 1901 the Government of Venezuela categorically refused to submit its dispute with Germany and Great Britain to arbitration, which was proposed several times, and especially by the note of the German Government of July 16, 1901." (For. Rel. 1904, 507.)
For the final report of the Hon. W. L. Penfield, agent and of counsel for Venezuela and the United States before the tribunal, see For. Rel. 1904, 509.
As to the claim of France to equal treatment in the settlement of the claims against Venezuela, as opposed to the preferential claim of the blockading powers, see For. Rel. 1903, 410.
(1) NATURE OF THE REMEDY.
"According to Molloy (De Jure Maritimo, b. i. ch. ii. s. 15), ' persons murdered, spoiled, or otherwise damnified in hostile manner in the territories or places belonging to that king to whom letters of request are issued forth; if no satisfaction be returned, letters of reprisal may issue forth; and the parties petitioners are not in such cases compelled to resort to the ordinary prosecutions, but the prince of that. country against whom the same are awarded, must repair the damage out of his or that estate who committed the injuries; and if that proves deficient, it must then fall as a common debt on his country; and of such reprisals Molloy then proceeds to give many instances out of the maritime annals of this country.”
Mr. C. Anstey, House of Commons, June 25, 1850, Hansard, Parl. Debates,
H. Doc. 551-vol 7-9
The law of nations does not allow reprisals, except in cases of violent injuries directed and supported by the state, and the denial of justice by all the tribunals and the prince.
Randolph, At. Gen., 1793, 1 Op. 30.
Reprisals,' says Vattel, are used between nation and nation in order to do themselves justice when they can not otherwise obtain it. If a nation has taken possession of what belongs to another; if it refuses to pay a debt or repair an injury, or to make a just satisfaction, the latter may seize what belongs to the former, and apply it to its own advantage, till it obtains full payment for what is due, together with interest and damages; or keep it as a pledge till the offending nation has made ample satisfaction. The effects thus seized 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 the war is declared, or hostilities commenced; and then, also, the effects seized may be confiscated.' These remarks are more particularly applicable to general reprisals, although, even then, sequestration sometimes immediately follows the seizure. Where such extreme measures are resorted to it is not easy to distinguish between them and actual hostilities. But in special reprisals, made for the indemnification of injuries upon individuals, and limited to particular places and things, immediate confiscation is more frequently resorted to. Thus, Cromwell having made a demand on Cardinal Mazarin, during the minority of Louis XIV. for indemnity to a Quaker, whose vessel had been illegally seized and confiscated on the coast of France, and receiving no reply within the three days specified in the demand, dispatched two ships-of-war to make prize of French vessels in the channel. The vessels were seized and sold, the Quaker paid out of the proceeds the value of his loss, and the French ambassador apprised that the residue was at his service. This substantial act of justice caused neither reclamation nor war."
Halleck, Int. Law (Baker's ed.), I. 434, citing, Vattel, Droit des Gens, liv. ii. chap. xviii. § 342.
"Neutral nations in time of war have now no right, when they are injured, to exact compensation from the countrymen of the aggressors, though the Barbary States were said by Lord Stowell to do so under a law of nations now peculiar to themselves.' Neither in time. of peace are nations entitled to have recourse to reprisals, until reparation for the injury sustained has been formally asked and
denied, both of the proper tribunal, and of the government, in re minime dubia."
1 Phillimore, Int. Law (3d ed.), 43-44, citing Bynkershoek, Observationes Juris Romani, c. ii., vol. ii.; The Maria, 1 C. Rob. 373; The Walsingham Packet, id. 83; The Snipe, Edwards' Adm. 412; The Kinder Kinder, 2 C. Rob. 88.
"The British, in case of war, seize every vessel in their ports belonging to the enemy. With this single exception, the relic of an age of barbarism and piracy, and which makes part of the King's droits of admiralty, I am not aware that any civilized nation does at this time, even in case of war, seize the property of private individuals which in time of peace had been trusted to the hospitality and good faith of the country. I am certain that the United States never were guilty of such an act as a nation, neither in 1793, when the British were plundering without notice our West India trade, and when an unsuccessful motion to that effect was made, never to be again repeated, nor in 1798, at the time of the greatest excitement and quasiwar against France, nor when war was declared against England, in 1812. Since the motion of 1793, which, if brought to the test, would have been indignantly rejected, during the various periods when our trade was exposed to the depredations of one or both the belligerents, amongst all the devices and expedients proposed in order to avoid war, never was the iniquitous proposal of seizing property confided to the protection of our laws again suggested. And I trust that, whilst so much is said of what is due to the honor of the nation (how applicable to the present state of things is another question), such truly dishonorable act is not in contemplation.
"The preceding observation is strictly correct with respect to seizures in time of peace, and is intended to show the gross impropriety of supposing that such seizures are a peace measure. I admit that they have sometimes taken place in time of war. Such was the sequestration by several of the States of the British debts during the war of independence. Russia also suspended the payment of the interest on a loan formerly contracted in Holland whilst she was at war with France, of which Holland had become a province. Yet these are not examples for imitation. The seizure without violence of property belonging to the offending Government and not to individuals would, I think, be legitimate in some cases.
"With respect to letters of marque and reprisal, if we were to judge of the act on the immutable principles of justice and in conformity with those which regulate the conduct of nations by land, private war of every description must be disallowed altogether. But we are compelled, in this as in many other instances, to recur to the practice of nations, to their actual practice at this time, and not to
what it was in Grotius's time, or even in that of Vattel, who has, by the by, often copied the first writer without attending to changes which had since taken place, and asserted doctrines which in practice were already obsolete. The change in this case has been produced by the progress of civilization, and may in fact be considered as an amelioration.
"It is undeniable that at present general letters of marque and reprisal are war to all intents and purposes; that they are never granted but in consequence of an existing war, or as a way of making war without a formal declaration. Both the Seven Years' War and that of 1778 between France and England commenced in that way, and were long so continued before war was actually declared.
"It is equally true that special letters of reprisal granted to injured individuals and authorizing them to capture at sea an equivalent for their losses from subjects of the offending country, have fallen into entire disuse. Some cases may have escaped my notice. I recollect no one instance (in time of peace) since Cromwell. In short, the present practice or law of nations admits private war by sea (privateering) in time of war, never in time of peace, any more by sea than by land."
Mr. Gallatin to Mr. Everett, Jan. 5, 1835, 2 Gallatin's Writings, 476, referring to President Jackson's proposal of reprisals against France. It is to be observed, with regard to the opening sentence of the foregoing extract, that Great Britain on the outbreak of the Crimean war abandoned the practice of embargoing ships of the enemy and allowed Russian ships to depart from British ports within a certain term after the outbreak of war.
"The general position assumed by the President, and apparently sustained by Judge Wayne and others, is, that whenever a nation has a claim clearly founded in justice, as that in question undoubtedly is, and justice is denied, resort must ultimately be had to war for redress of the injury sustained. This, as an abstract proposition, is wholly untenable, supported neither by the practice of nations nor by common sense. The denial of justice gives to the offending nation the right of resorting to arms, and such a war is just so far as relates to the offending party. But to assert that a nation must in such a case, without attending either to the magnitude or nature of the injury. and without regard either to its own immediate interest or to political considerations of a higher order affecting perhaps its foreign and domestic concerns, inflict upon itself the calamities of war, under the penalty of incurring disgrace, is a doctrine which, if generally adopted, would keep the world in perpetual warfare, and sink the civilized nations of Christendom to a level with the savage tribes of our forests." (Mr. Gallatin to Mr. Everett, Jan. 1835, 2 Gallatin's Writings, 494.)
There is no example in the history of the United States of the granting of authority for special reprisals, for the purpose of enabling an individual to redress his own grievance. In the Aves Islands case
an application was made in 1857 by Henry S. Sanford, in behalf of Philo S. Shelton and Sampson & Tappan, for a lettre de requête, authorizing them to take forcible measures to indemnify themselves, but no action on the application appears to have been taken.
Mr. Sanford to Mr. Cass, Aug. 16, 1857, S. Ex. Doc. 10, 36 Cong. 2 sess. 242.
The application was accompanied with an interesting brief.
S. Ex. Doc. 10, 36 Cong. 2 sess. 466.
"The making a reprisal on a nation is a very serious thing. Remonstrance and refusal of satisfaction ought to precede; and when reprisal follows, it is considered an act of war, and never failed to produce it in the case of a nation able to make war; besides, if the case were important and ripe for that step, Congress must be called upon to take it; the right of reprisal being expressly lodged with them by the Constitution, and not with the Executive."
Opinion of Mr. Jefferson, Sec. of State, May 16, 1793, 7 Jefferson's Works, 628.
As to proposed reprisals on the then Spanish possessions of the Floridas, see Mr. Jefferson, President, to the Secretary of State, Aug. 16, 1807, 5 Jefferson's Works, 164.
To a formal declaration of war may be preferred "general letters of mark and reprisal, because, on a repeal of their edicts by the belligerent, a revocation of the letters of mark restores peace without the delay, difficulties, and ceremonies of a treaty."
President Jefferson to Mr. Lincoln, Nov. 13, 1808, 5 Jefferson's Works, 387.
By the treaty of July 4, 1831, negotiated by Mr. Rives at Paris, France agreed to pay the United States 25,000,000 francs in six annual installments, with interest, in settlement of spoliation claims. The ratifications were exchanged at Washington February 2, 1832; and under an act of Congress of July 13, 1832, a commission was appointed to adjudicate claims upon the fund. This commission entered upon its labors in August, 1832. The treaty, however, encountered opposition in France, and the Government hesitated to submit it to the Parliament in order that the necessary appropriation might be made. When, therefore, the first installment fell due it was not paid. The Secretary of the Treasury negotiated through the Bank of the United States a draft on the French minister of finance, but, as there was no appropriation to meet it, it was allowed to go to protest. The Duc de Broglie, then minister of foreign affairs, complained of this action on the part of the United States, and urged that under the French constitutional system the financial clauses of the convention could not be carried into effect without the cooperation of the legislative branch of the Government. The United States