more so between nations, because it would, in the latter case, be difficult to make the punishment fall on those who had done the injury. What right have you to cut off the nose and ears of the ambassador of a barbarian who had treated your ambassador in that manner? As to those reprisals in time of war which partake of the nature of retaliation, they are justified on other principles; and we shall speak of them in their proper place." Vattel, Book II. Chap. XVIII. Sect. 339.

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Reprisals are used between nation and nation, in order to do themselves justice when they cannot otherwise obtain it. If a nation has taken possession of what belongs to another, if she refuses to pay a debt, to repair an injury, or to give adequate satisfaction for it, — the latter may seize something belonging to the former, and apply it to her own advantage till she obtains payment of what is due to her, together with interest and damages, or keep it as a pledge till she has received ample satisfaction."- Ibid., Sect. 342.

arms.

"There are cases, however, in which reprisals would be justly condemnable, even when a declaration of war would not be so; and these are precisely those cases in which nations may with justice take up When the question which constitutes the ground of a dispute relates, not to an act of violence, or an injury received, but to a contested right, after an ineffectual endeavor to obtain justice by conciliatory and pacific measures, it is a declaration of war that ought to follow, and not pretended reprisals, which, in such a case, would only be real acts of hostility, without a declaration of war, and would be contrary to public faith, as well as to the mutual duties of nations.". Ibid., Sect. 354.

"Reprisals by commission, or letters of marque and reprisal, granted to one or more injured subjects, in the name and by the authority of a sovereign, is another mode of redress for some specific injury, which is considered to be compatible with a state of peace, and permitted by the law of nations. The case arises when one nation has committed some direct and palpable injury to another, as by withholding a just debt, or by violence to person or property, and has refused to give any satisfaction."-1 Kent's Comm. 61.

The principle stated in these authorities relates to reprisals as a measure of redress before the existence of a war.

But

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:

"A sovereign violates his perfect obligations in violating the natural or perfect rights of another. It matters not whether these rights are innate, or whether they have been acquired by express or tacit covenant, or otherwise.

"In case of such violation, the injured sovereign may refuse to fulfil his perfect obligations towards the sovereign by whom he is injured, or towards the subjects of such sovereign. He may also have recourse to more violent means, till he has obliged the offending party to yield him satisfaction, or till he has taken such satisfaction himself, and guarded himself against the like injuries in future.

"There are many acts by which a sovereign refuses to do or to suffer what he is perfectly obliged to do or to suffer, or by which he does what he is ordinarily obliged to omit, in order to obtain satisfaction for a real injury sustained. All these acts are called reprisals. Consequently, reprisals are of many sorts. The talio, by which an injury received is returned by an injury exactly equal to it, is one sort of reprisals; but the use of it is not indiscriminately permitted on all occasions."-Law of Nations, Book VIII. Chap. 1, Sect. 3.

In a note he adds:

"If the ambassador or messenger of a state has been put to death by another state, the former state could not, on that account, have a right to put the ambassador or messenger of the latter to death; but in time of war, a prisoner of war may sometimes be put to death in order to punish a nation that has violated the laws of war. In the first case, the injured nation has other means of obtaining satisfaction, and of guarding against such violations for the future; but war being of itself the last state of violence, there often remains no other means of guarding against future violations on the part of the enemy."

So Vattel admits the right to execute prisoners in retaliation for an execution by the hostile general without any just reason, and against an inhuman enemy who frequently commits enormities.

"This leads us to speak of a kind of retaliation sometimes practised in war, under the name of reprisals. If the hostile general has, without any just reason, caused some prisoners to be hanged, we hang an equal number of his people, and of the same rank, -notifying to him

that we will continue thus to retaliate, for the purpose of obliging him to observe the laws of war. It is a dreadful extremity thus to condemn a prisoner to atone, by a miserable death, for his general's crime; and if we had previously promised to spare the life of that prisoner, we cannot, without injustice, make him the subject of our reprisals. Nevertheless, as a prince or his general has a right to sacrifice his enemies' lives to his own safety and that of his men, it appears, that, if he has to do with an inhuman enemy, who frequently commits such enormities, he is authorized to refuse quarter to some of the prisoners he takes, and to treat them as his people have been treated." III. Chap. 8, Sect. 142.

Book

Chancellor Kent sums up the authorities in these words:

"Cruelty to prisoners, and barbarous destruction of private property, will provoke the enemy to severe retaliation upon the innocent. Retaliation is said by Rutherforth not to be a justifiable cause for putting innocent prisoners or hostages to death; for no individual is chargeable, by the laws of nations, with the guilt of a personal crime, merely because the community of which he is a member is guilty. He is only responsible as a member of the state, in his property, for reparation in damages for the acts of others; and it is on this principle that, by the law of nations, private property may be taken and appropriated in war. Retaliation, to be just, ought to be confined to the guilty individuals, who may have committed some enormous violation of public law. On this subject of retaliation, Professor Martens is not so strict. While he admits that the life of an innocent man cannot be taken, unless in extraordinary cases, he declares that cases will sometimes occur, when the established usages of war are violated, and there are no other means, except the influence of retaliation, of restraining the enemy from further excesses. Vattel speaks of retaliation as a sad extremity, and it is frequently threatened without being put in execution, and probably without the intention to do it, and in hopes that fear will operate to restrain the enemy. Instances of resolutions to retaliate on innocent prisoners of war occurred in this country during the Revolutionary war, as well as during the war of 1812; but there was no instance in which retaliation beyond the measure of severe confinement took place in respect to prisoners of war."- Commentaries, I. 93, 94.