AVES ISLAND. 24T' 



because it was the doctrine of the " time-honored" Consulato del Mare 

 of the eleventh century . As England in 1856, by the convention of 

 Paris, agreed that if such principle of 'Hhe flag not covering the- 

 cargo" had been the law it ought not to be any longer, it is presumed 

 he would not now insist that those opinions ought to be completely 

 yielded to by others. 



But upon this subject, and as a conclusive answer to all the objec- 

 tions about this remedy being "^obsolete" and having "fallen into 

 disuse among civilized nations," &c., the treaty of 1836 between Ven- 

 ezuela and the United States is decisive. It recognizes and sanctions 

 the resort to the precise remedy of special reprisals ; it provides for 

 resort to that remedy, in proper cases, instead of other remedies given 

 by the law of nations, to either State injured in the persons or prop- 

 erty of its citizens. In providing for the resort to such remedy, it is 

 important to observe that the provisions of that treaty not merely 

 regulate, but are, all of them, in restraint of its exercise, whilst it 

 clearly and unequivocally recognizes its legitimacy. (See Art. 34 of 

 Treaty, 3d clause, 8 Stat, at Large, p. 482.) 



Yet we do not rest the right to special reprisals upon this treaty. 

 We place it upon the universal law of nations. 



Suggesting the idea that a State may not pursue the remedy of special 

 letters of reprisal unless a ' ' recent treaty ' ' with the State against 

 •which such letters are issued, we conceive to be an arrant blunder. 

 The right of a State to adopt such remedy to obtain satisfaction for 

 injuries by another State, and in order to avoid a resort to declared and 

 general war, rests upon the well established principles of the law of 

 nations, and not upon treaties allowing it. Treaties between States 

 may regulate the exercise of such right by these States as to each other ; 

 may restrain or agree to abandon or prohibit the resort to such remedy 

 by either against the other ; but the absence of a convention on the 

 subject in no wise impairs the right to have recourse to a remedy so 

 founded upon the ancient and approved customs and rules of interna- 

 tional law. Empirics as to international law and international mo- 

 rality have always endeavored to cut off what they thought excresences, 

 and to patch up what they considered rents in the science of interna- 

 tional law in various ways, some by treaty, and some by denying 

 ancient principles and rules ; but the same class of persons, whensoever 

 any of their favorite notions are assailed by the provisions of a treaty, 

 are loud in their denunciation of the impolicy of the removal of the 

 ancient landmarks of thej/MS gentium. 



All publicists allow that treaties altering orrestraining ancient laws 

 or customs are not to be regarded with favor, and a>'e to be strictly 

 construed. 1 Keddie, p. 173. 2 Wynn's Jenkins, p. 759. 1 Molloy, 

 book 1, chap. 5, note to § 12. 2 Burke's Works, p. 521. 



No difficulty can arise from the non-existence of a treaty prescribing 

 the formula of procedure, or the cases in which the remedy may be 

 adopted. The cases in which it is proper to resort to such remedy, 

 and the general modes of procedure, may be readily ascertained by an 

 examination of the authorities above referred to, and no difficulty can 

 ensue as to the application of the principles on which this remedy is 



