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State. Counsel for the plaintiff States, in their argument, contended that the jurisdiction of the Supreme Court in respect of suits by one State against another should be asserted in this manner, for the reason, among others, that the Constitution of the United States had deprived the States of the power to resort to reprisals against one another and thus obtain satisfaction for their citizens via facti. Mr. John A. Campbell, ex-justice of the Supreme Court, replying, as counsel for Louisiana, to this argument, said: “The third case cited in respect to reprisals is a message of President Jackson in respect to France. It required the large capacity of Edward Livingston, then minister of the United States in France, and the Senate under a leadership adverse; the interference of Great Britain, and the good sense of the people, to prevent serious complications with France for no offence whatsoever. (2 Writings of Gallatin, 494.) Reprisal is found in the Constitution of the United States. It represents now an obsolete idea among civilized nations. The thing is prevalent among the Comanches, Sioux, Blackfeet, and Cheyennes; and seems to have been thought of in New York, if Knickerbocker can be relied on as a historian. In the 10th and 11th centuries they were usual and prevalent. Those were centuries when robbery and pillage did not offend the general conscience. The law of force was predominant, and men rendered homage to the strong. But every right implies a reciprocity, and inferior force did not surrender its own claims. There were wars, contests, quarrels, combats, reprisals; violence begat violence, and ended at last in equilibrium. Organization, discipline, combinations, laws, caused the formation of States, and banished reprisals to the seas, and since then from recognition as a lawful mode of settling disputes or a proper mode of redress. 4 Muratori Antiq. pp. 49, 52; 5 Ducagne, Glossarium verbo Repræsaliæ; 1 Laurent, Du Droit Int. 260, 261; W. E. Hall, Int. Law, 312; 3 Science du Publiciste (Fritot), pp. 252-5." (Oral argument of John A. Campbell, case of New Hampshire . Louisiana, printed in Baltimore, Md., in 1882.)
The inference should not be drawn from Mr. Campbell's remarks that Edward Livingston adjusted the difference with France at Paris. He asked for his passports and withdrew, April 28, 1835, under instructions, a year before the quarrel was adjusted.
For a brief but excellent narrative of the French incident, see Schurz, Life of Henry Clay, II. 52-58.
"Our Government are in a great alarm lest this dispute between the French and Americans should produce a war, and the way in which we should be affected by it is this: Our immense manufacturing population is dependent upon America for a supply of cotton, and, in case of any obstruction to that supply, multitudes would be thrown out of employment, and incalculable distress would follow. They think that the French would blockade the American ports, and then such obstruction would be inevitable. A system like ours, which resembles a vast piece of machinery, no part of which can be disordered without danger to the whole, must be always liable to interruption or injury from causes over which we have no control; and this danger must always attend the extension of our manufacturing system to the prejudice of other interests; so that, in case of a stoppage or serious interruption to the current in which it flows, the consequences
would be appalling; nor is there in all probability a nation on the Continent (our good ally, Louis Philippe, included) that would not gladly contribute to the humiliation of the power and diminution of the wealth of this country." (Greville's Journal, ed. by Reeve, Dec. 10, 11, 1835, II. 446.)
President Buchanan, in his annual message on December 9, 1859, in view of the political chaos then existing, and which had for so long existed, in Mexico, and of the enormous indebtedness of Mexico to the United States for spoliations, recommended Congress to pass a law authorizing the sending to Mexico a sufficient military force to secure indemnity, which could not be enforced by diplomatic pressure, and to produce security on the border line. Such a step, he argued, would tend, incidentally, to sustain the constitutional Government of Juarez against such aggressions of European sovereigns as the helpless condition of Mexico would be likely to invite. Congress, however, did not act upon this proposal, and shortly afterwards began the intrigues of Napoleon III. which, after our own civil war had relieved him from our active antagonism, resulted in the expedition of Maximilian. On December 14, 1859, however, before the interference began to be perceptible, Mr. McLane, then United States minister at Mexico, signed, under instructions from the President, a treaty of transit and of commerce, which was followed by a convention to enforce treaty obligations, and to aid in producing such order on the border as would best promote the friendly relations of the two countries. Neither treaty nor convention, however, was approved by the Senate of the United States.
See supra, §§ 860, 955.
Reprisals or war will not be resorted to in order to compel payment of damages due for tort to a citizen of the United States by a foreign nation unless no other mode of prosecution remains.
Mr. Seward, Sec. of State, report to the President, Mar. 30, 1861, 8 MS.
"When there is a persistent refusal on the part of one government to pay damages claimed by another on behalf of one of its citizens, the only method of redress that exists, if arbitration be not resorted to, is by reprisal, which, in a case such as the present, would inevitably produce war. It certainly would not be claimed that at this period, when the refusal of the British Government to pay the claim has been acquiesced in by administration after administration without even a suggestion of reprisals, reprisals could now be threatened."
Mr. Bayard, Sec. of State, to Messrs. Benedict, Taft, and Benedict, May 18, 1886, 160 MS. Dom. Let. 237.
Reprisals, under proper control and attention, come regularly within the scope of the law of nations as observed at present; and although I am aware that there is a great authority for the contrary opinion, yet it is upon the whole settled, that no private hostilities, however general, or however just, will constitute what is called a legitimate and public state of war. So far indeed has my Lord Coke carried this point, that he holds, if all the subjects of a King of England were to make war upon another country in league with it, but without the assent of the King, there would still be no breach of the league between the two countries.
"In the times before us various were the instances in which individuals possessing no public character, and authorized by no public commission, assumed, and were almost encouraged to assume, the province of redressing the wrongs that were offered them from without. I will select one, which was not less remarkable for the account which it affords us of the sentiments of our ancestors, than it was important in the end, by involving the whole force of two mighty nations in a serious war.
"In 1292 two sailors, the one Norman, the other English, quarrelled in the port of Bayonne, and began to fight with their fists. The Englishman being the weaker, is said to have stabbed the other with his knife. It was an affair which challenged the intervention of the civil tribunals, but being neglected by the magistrates, the Normans applied to their King (Philip le Bel), who with neglect still more unpardonable, desired them to take their own revenge. They instantly put to sea, and seizing the first English ship they could find, hung up several of the crew, and some dogs at the same time, at the masthead. The English retaliated without applying to their Government, and things arose to that height of irregularity, that (with the same indifference on the part of their Kings) the one nation made alliance with the Irish and Dutch; the other with the Flemings and Genoese. Two hundred Norman vessels scoured the English seas, and hanged all the seamen they could find. Their enemies in return fitted out a strong fleet, destroyed or took the greater part of the Normans, and giving no quarter, massacred them, to the amount of fifteen thousand men. The affair then became too big for private hands, and the Governments interposing in form, it terminated in that unfortunate, war, which by the loss of Guienne entailed upon the two nations an endless train of hostilities, till it was recovered."
Ward, Law of Nations (1795), I. 294–296.
The King of Prussia, in 1753, "resorted to reprisals, by stopping the interest upon a loan due to British subjects, and secured by hy
pothecation upon the revenues of Silesia, until he actually obtained from the British Government an indemnity for the Prussian vessels unjustly captured and condemned " by a British prize court.
2 Halleck's Int. Law (Baker's ed.), 431.
The British Government in 1840 made the capture of several Neapolitan vessels on account of a grant of monopoly for the sulphur produced and worked in Sicily contrary, it was alleged, to the commercial treaty between England and Naples of 1816. The difficulty was settled by the mediation of France.
3 Phillimore, Int. Law, 27.
In the case of Don Pacifico the House of Lords, June 17, 1850, adopted the following resolution: "That while the House fully recognizes the right and duty of the Government to secure to Her Majesty's subjects residing in foreign states the full protection of the laws of those states, it regrets to find, by the correspondence recently laid upon the table by Her Majesty's command, that various claims against the Greek Government, doubtful in point of justice or exaggerated in amount, have been enforced by coercive measures directed against the commerce and people of Greece, and calculated to endanger the continuance of our friendly relations with other powers."
Hansard, Parl. Debates, CXI. 1332.
But, it is said, M. Pacifico should have applied to a court of law for redress. What was he to do? Was he to prosecute a mob of five hundred persons? Was he to prosecute them criminally, or in order to make them pay the value of his loss? Where was he to find his witnesses? Why, he and his family were hiding or flying, during the pillage, to avoid the personal outrages with which they were threatened. He states, that his own life was saved by the help of an English friend. It was impossible, if he could have identified the leaders, to have prosecuted them with success.
"But what satisfaction would it have been to M. Pacifico to have succeeded in a criminal prosecution against the ringleaders of that assault? Would that have restored to him his property? He wanted redress, not revenge. A criminal prosecution was out of the question, to say nothing of the chances, if not the certainty, of failure in a country where the tribunals are at the mercy of the advisers of the Crown, the judges being liable to be removed, and being often actually removed upon grounds of private interest and personal feeling. Was he to prosecute for damages? His action would have lain against individuals, and not, as in this country, against the hundred. Suppose he had been able to prove that one particular man had
carried off one particular thing, or destroyed one particular article of furniture; what redress could he anticipate by a lawsuit, which, as his legal advisers told him, it would be vain for him to undertake? M. Pacifico truly said, 'If the man I prosecute is rich, he is sure to be acquitted; if he is poor, he has nothing out of which to afford me compensation if he is condemned.'
"The Greek Government having neglected to give the protection. they were bound to extend, and having abstained from taking means to afford redress, this was a case in which we were justified in calling on the Greek Government for compensation for the losses, whatever they might be, which M. Pacifico had suffered."
Lord Palmerston, speech in the House of Commons, June 25, 1850, Hansard, Parl. Debates (3d series), CXII. 394–396.
"In 1847, a motion was made in the House of Commons for reprisals, on account of unpaid Spanish bonds. It was conceded that such a course would be justified by the principles of international law, but it was resisted on the ground of expediency. In 1850 reprisals, which afterwards became the subject of parliamentary discussion and of complaint by France, were resorted to by England on account of the claims for property alleged to have been destroyed at Athens by a mob, aided by Greek soldiers and gendarmes, belonging to one Pacifico, a British subject, from being a native of Gibraltar. The real question of international law in this case,' says Phillimore, was whether the state of the Greek tribunals was such, as to warrant the English foreign minister in insisting upon M. Pacifico's demand being satisfied by the Greek Government before that person had exhausted the remedies which, it must be presumed, are afforded by the ordinary legal tribunals of every civilized state. That M. Pacifico had not applied to the Greek courts of law for redress appears to be an admitted fact.' Though Greece was compelled to accept the conditions of England the commissioners appointed to examine the claim awarded only £150 instead of £21,295 1s. 4d., which was demanded. Phillimore, as to the point whether the state of the courts rendered it a mockery to expect justice at their hands, adds: The international jurist is bound to say that the evidence produced does not appear to be of that overwhelming character, which alone could warrant an exception from the well-known and valuable rule of international law upon questions of this description.""
Lawrence's Wheaton (1863), 509.
For a fuller account of the reprisals on Neapolitan vessels and of the discussion relative to the Spanish bonds, see 1 Halleck's Int. Law (Baker's ed.), 435.
A convention was signed at London on October 31, 1861, between Great Britain, France, and Spain for the purpose of taking forcible measures with a view to obtain redress from Mexico for injuries done