Also known as: positive reprisals · reprisal
Written by attorneys · grounded in primary & secondary sources — see below
A reprisal by which a nation forcibly seizes another nation's property or persons. The act supplies the concrete mechanism for redressing an injury inflicted by the target nation.
Parker Phillips, a U.S. merchant vessel captain, receives authorization to board and detain a foreign freighter carrying goods belonging to a nation that had earlier seized American property. The crew takes possession of the cargo and brings it into a U.S. port for adjudication. The operation constitutes a positive reprisal because it directly seizes the offending nation's property to redress the prior injury.
State officials in a coastal state issue orders permitting local vessels to seize ships registered to a foreign power that had violated a commercial treaty. The vessels detain two merchantmen and their cargoes. Because the state lacks authority to grant such seizures, the positive reprisal action violates the constitutional prohibition on state grants of letters of marque and reprisal.
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After a U.S. privateer seizes a foreign merchant vessel during an authorized reprisal, the captured ship and cargo are brought before a federal court. The court must determine whether the seizure qualifies as a valid positive reprisal under the law of nations and whether title passes to the captors. The proceeding turns on whether the forcible taking was properly authorized and executed.
A U.S. privateer receives a letter of marque authorizing seizure of vessels from a nation that had confiscated American shipping. The crew boards and detains two merchantmen belonging to that nation and sails them into port. The operation qualifies as a positive reprisal because it forcibly takes the offending nation's property to redress the earlier injury.
During an authorized reprisal Congress issues letters of marque permitting privateers to capture ships of a foreign power that had seized U.S. cargo. The privateers take possession of three vessels and their goods. The captures constitute positive reprisals because they directly seize the target nation's property to remedy the prior wrong.
Under congressional authorization a U.S. captain detains a foreign merchant ship whose nation had earlier taken American property. The vessel and cargo are brought in for adjudication as prize. The seizure is a positive reprisal because it supplies the concrete mechanism of forcible taking to redress the injury.
A positive reprisal involves the forcible seizure of another nation's property or persons. A negative reprisal consists of refusing to perform an obligation owed to the other nation. The distinction turns on whether the responding nation takes affirmative physical action or merely withholds performance.
Supporting sources
Article I, Section 8 grants Congress the power to declare war and grant letters of marque and reprisal. This authority permits Congress to authorize private citizens to conduct positive reprisals against foreign vessels or property. The power is expressly enumerated among Congress's war-related authorities.
Supporting sources
Article I, Section 10 prohibits states from granting letters of marque and reprisal. Any state attempt to authorize a positive reprisal therefore exceeds state authority and violates the constitutional allocation of foreign-relations powers to the federal government.
Supporting sources
…Sylvia was not shifting blame but rather corroborating her husband's story that he acted in self-defense or "justified reprisal"; she had direct knowledge as an eyewitness; she was describing recent events; and she was being questioned by a "neutral" law enforcement officer. App. 76-77. The prosecution played the…