APPENDIX TO PART I.

NOTE A.—­The Law of Reprisals.[199]

Reprisals by commission, or letters of marque and reprisal, granted to one or more injured persons, in the name and authority of the Sovereign, constitutes a case of “partial, or special reprisals,” and is considered to be compatible with a state of peace, and was formerly permitted by the Law of Nations; though it may be doubted if such a rule would hold good now.[200] General reprisals upon the persons and property of the subjects of another nation are equivalent to open war.  It is often the first step which is 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.

A stoppage or seizure (in other words, an embargo), must not be confounded with complete reprisals.  When ships are seized for the purpose of obtaining satisfaction for a particular injury, or security against a possible event, that seizure is only an embargo.  The vessels are preserved as long as there is any hope of obtaining satisfaction or justice.  As soon as that hope disappears, they are confiscated, and the reprisals are accomplished.  In fact, that which was embargo becomes reprisals by the act of confiscation.[201]

In the words of Lord Stowell: 

“Upon property so detained the declaration of war is said to have a retroactive effect, and to render it liable to be considered as the property of enemies taken in time of war.  The property is seized provisionally—­an act hostile enough in the mere execution, but equivocal as to its effects, and liable to be varied by subsequent events, and by the conduct of the government, the property of whose subjects is so detained.  Where the first seizure is equivocal, if the matter in dispute terminates in reconciliation, the seizure is converted into a mere civil embargo.  This would be the retroactive effect of that course of circumstances.  On the contrary, if the transactions end in hostility, the retroactive effect is directly the other way.  It impresses a hostile character upon the original seizure.  It is declared to be embargo; it is no longer an equivocal act, subject to two interpretations; there is a declaration of the animus by which it was done, that it was done hostili animo, and is to be considered a hostile measure ab initio.  The property taken is liable to be used as the property of persons, trespassers ab initio, and guilty of injuries which they have refused to redeem by any amicable alteration of their measures.  This is the necessary course, if no particular compact intervenes for the restitution of such property taken before a formal declaration of hostilities."[202]

The modern rule seems to be, that tangible property, belonging to an enemy, ought not to be immediately confiscated.  It may be considered as the opinion of all who have written on the jus belli, that war gives the right to confiscate, but does not of itself confiscate the property of an enemy.