Reprisals in Early-Modern European Peace Treaties
By: Randall Lesaffer
In the final weeks of the year 1664, the British King Charles II (1630–1685) issued general reprisals against the Republic of the United Provinces, ordering the seizure of all Dutch ships in England and on the high seas. Although this was typically a war-time measure, the king refrained from declaring war, or from giving full execution to the order. While almost thirty Dutch ships had been effectively seized by late February 1665, no case had yet been brought before the admiralty to declare them good prize and confiscate them, nor had letters of marque been issued to privateers allowing them to prey on Dutch merchants or fishermen on the seas. Only after the measures failed to force any concession out of the Dutch did Charles II issue further declarations against the Republic of the Northern Netherlands. These declarations from 2 and 14 March 1665 entailed a full execution of the order, allowed for the High Lord of the Admiralty to issue letters of marque, and imposed measures against neutral trade with the Republic. Even the final declaration was not styled as a formal declaration of war; it labelled the Dutch as ‘aggressors’ but refrained from declaring full war. To the Dutch, however, it was tantamount to a declaration of war. They judged that they had no choice but to alert their allies and neutral states that the Republic would act against neutral trade with Britain, while third states as well considered the laws and customs concerning neutral trade now to be in operation, as they were in times of war. Naval action in the late spring took away all doubt and at last brought the two states from the misty zone between peace and war into that of open rupture.
The events at the turn of 1665 marked the final stage of the escalation of tensions between the British Monarchy and the Dutch Republic and led to their descent into war. Part of the British power elite had never stomached the Peace of Westminster of 5 April 1654 (3 CTS 225), which according to them had not sufficiently exploited the British Commonwealth’s victory over the Dutch Republic in the First Anglo-Dutch War (1652–1654) as it had put no end to the Dutch domination over the European cargo trade. During the course of the 1660s, after the restoration of the monarchy, an ever more vocal coalition of merchants, former privateers, and young nobles, led by the king’s brother and heir, James, Duke of York (1633–1701), High Lord of the Admiralty, clamoured for war. In 1664, tensions rose to a head when a fleet of the Royal Adventurers, a recently established merchant company, with the support of a navy vessel, attacked the Dutch West India Company’s settlements on the coast of West Africa in an attempt to wipe out Dutch competition over the slave trade. It was the retaliatory expedition by the Dutch navy that caused Charles II to issue general reprisals, setting in motion a crucial step towards what became the Second Anglo-Dutch War (1665–1667).
That war is remembered in naval history for some spectacular naval actions in European waters, most of all the daring raid of the Dutch fleet on the Medway in July 1667. But this action and others were just sporadic events interlaced with the far more constant activity of numerous privateers on both sides. In the end, even if the raid on the Medway forced the deal and compelled the British king to accept the Peace of Breda on 31 July 1667 (10 CTS 231), it was the huge losses to British shipping caused by Dutch privateers that sapped the support for war in London and did much to bring the British to negotiate at Breda in the first place.
Scholars have often associated special reprisals and privateering commissions with one another. They are, however, two distinct legal institutions. A letter of (special) reprisal is a commission where sovereign A grants one of his subjects the right to seek redress for an injury committed by a subject from sovereign B against all subjects of the latter. This institution has its roots in late-medieval trading practices and the acceptance of collective liability for the debts of co-nationals abroad, but has since the 14th century been treated by jurists under the heading of just war. Whereas reprisals were often executed in a peaceful manner against foreign subjects within the territory of the commissioning prince, they could also be executed beyond the ‘marque’—borders—through the use of force, as on the seas. They were typically a peacetime measure. Under the extant regulations and customary practices, reprisals were only granted in case of manifest denial of justice to the lessee by the courts of the lessor’s sovereign.
Privateering was a wartime measure under which private ship owners received a commission from the sovereign to prey on all shipping belonging to the enemy state and to enemy subjects. They thus acted under the jura belli, the predecessor of the modern laws of war, which allowed for the seizure and plunder of all enemy property. They were commissioned within the context of ‘general reprisals’, a general measure against all enemy property. Whereas general reprisals and privateering commissions were a wartime measure and considered an act of war, the practice from early-modern Europe shows that they often operated in a grey zone between peace and war, or in the run-up to war, as in the case of the Second Anglo-Dutch War.
Although special and general reprisals were two distinct institutions, there were terminological and material connections. Firstly, the terms letters of reprisal and letters of marque or countermarque were used without much discrimination. Secondly, general reprisals and privateering commissions held some historic connections to special reprisals. They grew out of the practice whereby private ship owners would buy up several special reprisals and mount an expedition to collect several debts. Thirdly, peace treaties generally dealt with both special and general reprisals, and not always with a clear distinction between both.
Early-modern peace treaties between European powers typically held two major clauses with regard to reprisals. Firstly, it was stipulated that all letters of reprisals, marque, and countermarque would be revoked with the coming of peace. This was dependent on the general ending of hostilities and referred first and foremost to general reprisals and privateering commissions. In many cases, the clause could be read to encompass special reprisals. Secondly, most early-modern peace treaties included a provision on the use of special reprisals for the future. This provision generally affirmed the right to issue them, but under the restriction that they could only be applied in cases of manifest denial of justice, and often conditioned upon the exhaustion of certain procedural steps. These articles thus indicated a desire to limit the use of special reprisals, but in fact the restrictive conditions did not expand beyond what was customary practice.
Throughout the 18th century, clauses would become gradually more restrictive and prohibitive.
The Peace of Breda was quite elaborate on both accounts. Article 8 stated
that under the foresaid renunciation and stipulation, all letters whatsoever of reprisal, marque, and counter-marque, both general and particular, and others of that kind, by virtue whereof any hostility may be exercised for the future, ought also to be reckoned and comprehended; and by the public authority of this alliance they are inhibited and revoked.
The treaty expressly framed the revocation of reprisals as part of the general ending of the war and the revocation for the future of all wartime measures. This attuned to the dual logic whereby under the amnesty clause all wartime actions were deemed legal and the status quo post bellum was legalized, but now that the state of war was ended and the state of peace was restored, all wartime actions and legal permissions to commit hostilities were to be revoked. Remarkably, Article 8 did not limit the revocation to general reprisals, but expressly mentioned special (particulares) reprisals as well. From a doctrinal point of view, there is no logic in including these in the revocation as they are a peacetime measure. However, it was the practical thing to do in order to avoid endless disputes.
The Peace of Breda did not contain a clause which prohibited the issuing of general reprisals or privateering commissions for the future. There was no need as this was logically implemented in the peace and issuing such order would be tantamount to an act of war, and thus a rupture of the peace in any case. The treaty was, however, rather singular in holding an express prohibition for the subjects of each signatory party to accept any ‘commissions or letters of reprisal’ from third sovereigns which were at war with the peace partner (Article 21).
Much more common were Articles 23 and 31. Article 23 was a fairly standard provision that any violation of the peace treaty by a subject would only be vindicated against the perpetrator himself. This held two implications. Firstly, the violation of a treaty clause or an attack by a subject did not equal a violation of the peace between the states and did thus did not lead to the resumption of war. Secondly, it also meant that, in principle at least, no redress could be sought against other subjects who were not guilty of any injury. This, Article 31 expressly stated, extended to the restriction of special reprisals to cases of manifest denial of justice and only after certain procedures and delays had been respected. Whereas the text spoke of ‘reprisal, marque, or countermarque’, it clearly spoke of special reprisals:
That if any injury be done or practiced by either nation, or the subjects or inhabitants of the same, against the subjects or inhabitants of the other, or against any of the articles of this present treaty, or against common right; yet nevertheless no letters of reprisal, marque, or countermarque, shall be granted by either side, till justice hath been first demanded according to the ordinary course of law; but in case justice be there denied or delayed, then that the said King of Great Britain, and the said States General, or commissioners of that nation whose subjects and inhabitants have suffered the wrong, shall publicly require justice from that other party, where (as abovesaid) it was denied or delayed, or from that power appointed to hear and decide such differences, that there may be a friendly composure, or due process of law. But if still there happen more delays, and neither justice be administered, nor satisfaction given within three months after such demand, that then letters of reprisal, marque, or countermarque, may be granted.
English text of the Peace of Breda from George Chalmers (ed.), A Collection of Treaties between Great Britain and Other Powers (London: John Stockdale 1790), vol. 1, 133.
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