when reprisals are resorted to in time of war, for the purpose of weakening the enemy by depriving his subjects or citizens of their property, the principle that there can be no lawful reprisals until an injury is sustained is equally applicable.

Wheaton enumerates, "among the various modes of terminating the differences between nations by forcible means short of actual war,"

4. "By making reprisals upon the persons and things belonging to the offending nation, until a satisfactory reparation is made for the alleged injury."

He says:

"Reprisals are also general or special. They are general when a state which has received, or supposes it has received, an injury from another nation, delivers commissions to its officers and subjects to take the persons and property belonging to the other nation, wherever the same may be found. It is, according to present usage, the first step which is usually 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. Special reprisals are where letters of marque are granted, in time of peace, to particular individuals who have suffered an injury from the government or subjects of another nation."

"Reprisals are to be granted only in case of a clear and open denial of justice." - Elements of Int. Law, Part IV. Chap. I. Sect. 1, 2.

It is one of the singular features, however, of this controversy and warfare, and one of the strange perversions of all ordinary action, that the proposals by Mr. Jefferson Davis to issue "letters of marque and reprisal" were made before any article of property belonging to the Confederate States, or any one of them, or to any person claiming to be a citizen of any one of those States, had been interfered with; or any person belonging to the Confederate States had been molested by the government of the United States, except in self-defence.* It is true that the United States in the war of 1812, by the same

* April 17, 1861.

act in which they declared the existence of the war, authorized the President to issue letters of marque and reprisal; but it must be recollected that they complained of long-continued grievances by reason of the seizure of men and property, the confiscation of property, and the denial of reparation. The cases are not only unlike; they are entirely dissimilar. The Confederate States can hardly claim to make reprisals because of the passage of a tariff long since repealed, even supposing it to have been onerous; or the passage of personal-liberty laws by some of the States; or the refusal of Congress to assent that slavery should be admitted into the Territories; or the election of Mr. Lincoln. None of these things were done to, or suffered by, the Confederate States, which were not then in existence as a belligerent power, or in separation from the United States. In the war of the Revolution, the United Colonies did not attempt to authorize the capture of private property until nearly a year after the commencement of hostilities. Not so the Secessionists. There is no doubt that, from the first, even before any vote of secession, this warfare upon private property was relied upon as one of the means of insuring the success of the insurrection. "If you do not let us secede without any attempt at coercion, we will refuse to pay our debts, and, by means of privateers, ruin your commerce."

From what has been thus stated, we draw a further conclusion that the recent order of Mr. Judah P. Benjamin, acting Secretary of War for the Confederate States, subjecting Colonels Corcoran, Wood, and Lee, Major Revere, and others, who were taken prisoners by the Confederate forces at the battle of Ball's Bluff, to imprisonment in the dungeons of felons, in retaliation or reprisal for the imprisonment of persons taken prisoners on board of the Confederate privateers, some of whom have been tried for piracy under the statute of the United States before cited, is a gross violation of the rules of honorable warfare. The Confederates attempt to escape from the odium of treason by alleging the existence of war. They are bound,

then, to conduct the warfare on their part according to the usages of civilized nations. But there is no usage of nations by which one belligerent, having prisoners who have never been amenable to its laws, and have committed no crime against them, but who have been taken in battle fighting under their own banners, can immure those persons in damp dungeons, and subject them to the treatment of convicts, merely because its belligerent adversary, finding among his prisoners those who according to his laws owe allegiance, and have committed treason, or who in violation of long-existing statutes have incurred the guilt of piracy, proceeds with such persons in the ordinary course of justice according to those laws. If one belligerent merely proceeds according to law, that furnishes no reason why the other should resort to measures sanctioned by no law. The law of reprisals, as it affects persons, usually termed retaliation, or lex talionis, — may rightfully be resorted to in time of war by one nation, when a gross outrage in violation of the laws of war has been committed upon its citizens or subjects by the other, in order to restrain and prevent further outrage. Some of the accredited writers upon public and natural law will, however, hardly sustain even this proposition.

Rutherforth expressly denies the right of retaliation by killing prisoners, when the enemy has done the same thing: —

"The exceptions to this rule of not killing these persons, who never were in arms at all, or who, though they have been in arms, have surrendered themselves, are very few. If they are considered as members of the nation with which we are at war, nothing more is necessary, in the first instance, than to get them into our power. The law of nature, therefore, will not allow us to go further. But if they whom we thus get into our power have been guilty of any previous crime for which they deserve death, this law does not forbid us to inflict this punishment, any more than if they and we were members of no society at all, but were still in the original state of nature.

"The obstinacy of holding out long in a siege, is not one of these

crimes; for a discharge of their duty towards their own nation is not in its own nature a crime against the other. There might, perhaps, be some advantage in putting a garrison to the sword for holding out long, as such an example might be a means to deter others from giving the besiegers the same trouble; but neither this nor any other motive of mere utility will render it just to take away the lives of those who are in our power, and have not deserved to lose them. Neither is retaliation a justifiable cause for killing prisoners of war. Though our adversaries should have killed the prisoners whom they have taken from us, this will not justify us in killing the prisoners whom we have taken from them. The law of nature allows of retaliation only where they who have done harm are made to suffer as much harm as they have done. But to kill such prisoners of war as are in our power, because the nation to which they belong has treated our countrymen in this manner, would be to do harm to one person because harm had been done by another. An injury which is done by a nation does, indeed, communicate itself to all the members of that nation; and such a communication of guilt is all that can be pleaded for the retaliation of which we have been speaking. But Grotius very truly replies here, that to punish captives or prisoners of war in this manner would be to punish them in what is their own as individuals, whereas the national guilt can only be communicated to them as they are members of the offending nation; and consequently the proper punishment of it should only be inflicted on them as they are members of the offending nation, and not as they are individuals." Institutes of Natural Law, Book II. Chap. 9, Sect. 15.

"Prisoners of war are, indeed, sometimes killed; but this is no otherwise justifiable than as it is made necessary, either by themselves, if they make use of force against those who have taken them, or by others, who make use of force in their behalf, and render it impossible to keep them. And as we may collect from the reason of the thing, so it likewise appears, from common opinion, that nothing but the strongest necessity will justify such an act; for the civilized and thinking part of mankind will hardly be persuaded not to condemn it till they see the absolute necessity of it."— Ibid.

Martens admits a more extended rule. Under the head of Reprisals, he says:—