Questions of Public Law (1737)
Cornelius van Bynkershoek
On Letters of Reprisal
I KEEP the term reprisal because I can think of no more suitable word for the expression of the practice. Some use the term pigneratio (pledging), others clarigatio (a demand for redress), but it is clear that neither gives the precise meaning. It is futile to try to express with a Latin word a practice unknown to the Romans. And this was unknown, for the federated and free peoples retained their liberties with respect to the Romans and remained owners of their goods, whether within the territory of the Romans or their own; and the same held true of Roman property within the territory of the allies, as Proculus relates. The Romans, therefore, were not accustomed to play the part of an enemy and lay hands upon property on land and sea while claiming to be friends. Hence there is not so much as a jot or tittle of this wicked practice in the whole Roman code. In view of this fact the phraseology of Article 11 of the truce between the United Provinces and Spain of April 9, 1609, as well as of Article 22 of the Peace of Münster of January 30, 1648, seems difficult to explain. In both there occur the words: ‘that no letters of marque or reprisal shall be issued but with full knowledge of the cause, and only against persons on whom they may be granted by the laws and constitutions of the Caesars and according to the regulations prescribed by those laws’. But so far are the laws of the Caesars from providing the forms for the regulation of reprisals, that those laws do not even recognize the practice, if indeed we mean by that term the codes of Justinian, as is usually the understanding of the term in free republics. In fact I do not know how to rescue the learned men who composed these treaties from the charge of ignorance, unless perchance we may suppose that they meant the common law when they spoke of the laws of the Caesars. Now in general we understand the Justinian codes by this term, and since these codes are sometimes called the common law, so by a kind of inversion the common law might be called the laws of the Caesars. At least that is the only explanation that occurs to me; and if this is correct, it was the intention of the writers that letters of reprisal should not be granted except after a thorough examination of the cause, nor in causes or against persons which are generally exempt, nor in any instance contrary to accepted usage. And the accepted usage is that letters of reprisal shall not be given unless justice has clearly been refused. Hence in Article 31 of the truce and in Article 60 of the peace just cited, it is agreed by the Spaniards and the States-General that if any clause of the treaty were infringed without the orders of the respective governments, the peace was not thereby broken nor should war be declared, ‘but it should be lawful in case of an open denial of justice to seek redress in the customary manner by issuing letters of marque and reprisal’. This is the common law which nations have long used and still use when justice has been refused, and which accords with the accepted opinion of those who have written on the subject. It must also be observed that there is no occasion for reprisals except in time of peace, though Mornac holds that they can be issued only in time of war. But this is certainly incorrect.
The denial of justice is therefore usually met by the issuance of letters of reprisal, and through them we receive from the government the licence to seize the persons and goods of others, on account of the violence or injustice previously done the subjects of the government, if restitution for the injustice has been denied. Thus an injury done by force and not rectified by the courts is repaired by force. To prevent the bringing of unreasonable charges that justice has been denied, special provisions have been made in the treaties of various nations. In Article 24 of the treaty of April 5, 1654, between the English and the States-General, the practice of giving these letters was recognized only under restrictions, for it was there agreed! that such letters should not be issued unless the sovereign, whose subject complains of injury, shall lay the complaint before the sovereign whose subject is accused of the wrongdoing, and the latter fails to have justice rendered within three months. And this provision is repeated in Article 31 of the treaty of July 31, 1667, between the same signatories. The matter has indeed frequently been attended to with much care, as for instance in Article 17 of the commercial treaty of April 27, 1662, between the King of France and the States-General. There, after the stipulation that such letters should not be granted except when justice has been refused, the provision is added that justice shall not be considered denied unless the petition for reprisal be also shown to the envoys of the sovereign whose subjects are complained of, so that he may inquire into the truth of the complaint, and if he finds them true he may have four months in which to have justice rendered. In this way the peace is not disturbed, and the sovereign may himself judge regarding the justice or injustice of the charge and pronounce his own sentence. It is a useful thing, therefore, to restrict this practice by such treaties; but considering the injustices practised upon each other by subjects of different nations, we would not do well to take it away altogether. There was indeed an agreement in Article 9 of the treaty between the Emperor of Morocco and the States-General, on September 24, 1610, that neither should grant letters of reprisal and that both should render justice to each other’s subjects, but there is little use in such an agreement. For when justice is not rendered, the injured party will certainly resort to reprisals on the claim that he had been compelled to by circumstances. If two powers agree to render justice they should abide by the agreement, but even without such an agreement sovereigns are bound to see that justice is done to foreigners, and in either case there is no occasion for reprisals unless justice has been denied. Article 16 of the above-cited treaty of April 5, 1654, between the English and the States-General might lead one to infer that this treaty completely forbade the practice, for it is there agreed that if any one infringes any part of the treaty, he alone is to be punished, and the court shall pronounce judgement within a definite period fixed by the same clause. However, in cases of this kind the practical difficulties are greater than the phrases of the treaties imply. If for instance the guilty party actually escaped punishment and no reparation is made, then reprisals follow; and clause 24 of the same treaty shows that this was the intention of the contracting parties, for there, as I have said, they prescribe the rules to be followed in the granting of letters of reprisal. Moreover, since the custom has grown common, these letters, and war, which usually soon results, are now the only remedies that independent sovereigns have for repelling unjust force; for they cannot make use of their own courts, which are helpless in such cases, and to submit themselves to the courts of a foreign sovereign they consider nothing less than a shameful prostitution of their majesty.
The sovereign alone seems to have the right to issue letters of reprisal, for it lies beyond the power of ordinary magistrates; this is certainly now the opinion everywhere, even in France where such letters were formerly issued by the higher courts. In the Netherlands, when formerly the cities had a right to wage war, they also issued such letters. An old law of Amsterdam specifies that if any citizen of that place suffers wrong outside the domains of the state, whether by force or by an unjust judgement, and lays his claim before the magistrate of Amsterdam, the latter may forward the claim to the magistrate of the place where the wrong was done; then if after receiving an answer the magistrate of Amsterdam still considers that an injustice has been done the subject of his city, reparation shall be made to the injured person by order of the court, by a process against such goods and persons of the foreign sovereign as may be found in the territory of Amsterdam.
The law uses the phrase ‘by an unjust judgement’, so that it does not suffice merely to pronounce judgement, it must also be just; and the magistrate is to be judge of the fairness, for this is a matter which is not usually submitted to the decision of others. To be sure, treaties of nations usually say only that letters are not to be given except ‘when justice has been refused’, but the plaintiff will readily interpret it as a refusal even when a decision is given, but in an unfair way, and we may add that sovereigns will generally interpret all unfavourable decisions as unfair. It is apparent then that what this law of Amsterdam provides for is actually reprisal. I have also found many other instances of cities and towns exercising this right; but these are vestiges of the ancient liberties of the people of Holland, of the time when the parts of the province were more independent than the province as a whole is now. At present indeed, though the several provinces are independent states, even after the Union of Utrecht, yet they cannot give letters of reprisal entirely at their own discretion. In fact some one might claim that they have no authority to grant any, since the practice is a land of warfare, and the above-cited Article 17 expressly forbids the separate provinces to do anything that might provide foreign princes an occasion for war.
Nevertheless, I believe that circumstances which permit a province to wage war for itself, also permit it to issue letters of reprisal. That is to say the right depends wholly upon the principles of states’ rights which we laid down in the preceding chapter. I shall not repeat what I said there; if you will only apply those principles to this subject, you will recognize that the right of reprisal cannot belong to the separate provinces in a case that concerns the whole of the United Provinces, and that in such a case the consent of all is required. But I know of no reason or law to prevent the individual province from exercising this right in its own cause if the cause is just. The province cannot be accused of providing a casus belli if, when the rest are unwilling to aid, it undertakes alone to procure reparation for wrongs done its subjects. I dare say that you will not find any proof for the assertion that the individual provinces have not this right.
From the abovesaid, it is apparent that the people of Zealand were in the wrong when they contended that they had a right to issue letters of reprisal in a case that concerned all the provinces, though the rest refused their consent, furthermore that they were wrong when they threatened to grant such letters to the West India Company against the Portuguese if the States-General refused to do so. There is also a third instance in which they were in error with respect to such letters. When the States-General had repeatedly refused letters of reprisal to some traders of Middelburg, against the people of Bremen, because the plaintiffs had themselves protracted the trial pending at Bremen so that there was not yet a just cause for reprisals, the Estates of Zealand, on March 21, 1659, decreed that the States-General should again be urged to issue letters ‘and that meanwhile it should be permissible to lay hands upon all things belonging to the subjects of Bremen that might be found in the province’. But this decree seems to me unjust, not only because the traders of Middelburg, on the suggestion of the Court of Holland, were protracting the case in the courts of Bremen, but also because, while the people of Bremen had granted a trial and their court had even given a decision favourable to the plaintiffs, the latter were, through no fault of Bremen, appealing the case to the court of Espierres. In 1665 the province of Holland also undertook on its own authority to avenge a wrong done the whole state. The English had imprisoned a secretary of the ambassador of the States-General; hence the Dutch by way of retaliation arrested in public the secretary of the English ambassador sent to the States-General, and threw him into prison. But the Estates of the other provinces, and especially of Zealand, were very indignant over it, saying that a single province had no right to judge whether or not an injustice had been done the States-General of the United Provinces when the latter had not been consulted and had not given their consent. With this view I would also agree, but I wish that my fellow citizens of Zealand had not forgotten the arguments they had formerly used to prove the opposite view.