§ 26. Authority to grant

It was made a question in some cases in those courts, how far these documents could protect against British capture, on account of the nature and extent of the authority of the per- licenses. sons by whom they were issued. The leading case on this subject is that of the Hope, an American ship laden with corn and flour, captured whilst proceeding from the United States to the ports of the Peninsula occupied by the British troops, and claimed as protected by an instrument granted by the British consul at Boston, accompanied by a certified copy of a letter from the admiral on the Halifax station. In pronouncing judgment in this case, Sir W. Scott observed, that the instrument of protection, in order to be effectual, must come from those who have a competent authority to grant such a protection, but that the papers in question came from persons who were vested with no such authority. To exempt the property of enemies from the effect of hostilities is a very high act of sovereign authority: if at any time delegated to persons in a subordinate station, it must be exercised either by those who have a special commission granted to them for the particular business, and who in legal language are called mandatories, or by persons in whom such a power is vested in virtue of any situation to which it may be considered incidental. It was quite clear that no consul in any country, particularly in an enemy's country, is vested with any such power in virtue of his station. Ea rei non præponitur, and, therefore, his acts in relation to it are not binding. Neither does the admiral, on any station, possess such authority. He has, indeed, power relative to the ships under his immediate command, and can restrain them from committing acts of hostility; but he cannot go beyond that-he cannot grant a safeguard of this kind beyond the limits of his own station.. The protections, therefore, which had been set up did not result from any power incidental to the situation of the persons by whom they had been granted; and it was not pretended that any such power was specially intrusted to them for the particular occasion. If the instruments which had been relied upon by the claimants were to be considered as the naked acts of those persons, then they were, in every point

of view, totally invalid. But the question was, whether the British government had taken any steps to ratify these proceedings, and thus to convert them into valid acts of state; for persons not having full power may make what in law are termed sponsiones, or, in diplomatic language, treaties sub spe rati, to which a subsequent ratification may give validity; ratihabitio mandato æquiparatur. The learned judge proceeded to show, that the British government had confirmed the acts of its officers by the order in council of the 26th October, 1813, and accordingly decreed restitution of the property. In the case of the Reward, before the lords of appeal, the principle of this judgment was substantially confirmed; but in that of the Charles, and other similar cases, where certificates or passports of the same kind, signed by Admiral Sawyer, and also by the Spanish minister in the United States, had been used for voyages from thence to the Spanish West Indies, the lords of appeal held that these documents, not being included within the terms of the confirmatory order in council, did not afford protection. In the cases of the passports granted by the British minister in the United States, permitting American vessels to sail with provisions from thence to the island of St. Bartholomew's, but not confirmed by an order in council, the lords condemned in all the cases not expressly included within the terms of the order in council by which certain descriptions of licenses granted by the minister had been confirmed.32

The contract made for the ransom of enemy's property § 27. Ransom of taken at sea is generally carried into effect by a safe-concaptured property. duct, granted by the captors, permitting the captured vessel and cargo to proceed to a designated port within a limited time. Unless prohibited by the law of the captor's own country, this document furnishes a complete legal protection against the cruisers of the same nation, or its allies, during the period and within the geographical limits prescribed by its terms. This protection results from the general authority

32 Dodson's Adm. Rep. vol. i. p. 226. The Hope. Ib. Appendix (D.) Stewart's Vice-Adm. Rep. p. 367.

ransom.

to capture which is delegated by the belligerent state to its commissioned cruisers, and which involves the power to ransom captured property when judged advantageous. If the ransomed vessel is lost by the perils of the sea before her arrival, the obligation to pay the sum stipulated for her ransom is not thereby extinguished. The captor guaranties, the captured vessel against being interrupted in its course, or retaken by other cruisers of his nation, or its allies, but he does not ensure against losses by the perils of the seas. Even where it is expressly agreed that the loss of the vessel by these perils shall discharge the captured from the payment of the ransom, this clause is restrained to the case of a total loss on the high seas, and is not extended to shipwreck or stranding, which might afford the master a temptation fraudulently to cast away his vessel, in order to save the most valuable part of the cargo, and avoid the payment of the Where the ransomed vessel, having exceeded the time or deviated from the course prescribed by the ransombill, is retaken, the debtors of the ransom are discharged from their obligation, which is merged in the prize, and the amount is deducted from the net proceeds thereof, and paid to the first captor, whilst the residue is paid to the second captor. So if the captor, after having ransomed a vessel belonging to the enemy, is himself taken by the enemy, together with the ransom-bill, of which he is the bearer, this ransom-bill becomes a part of the capture made by the enemy; and the persons of the hostile nation, who were debtors of the ransom, are thereby discharged from their obligation. The death of the hostage taken for the faithful performance of the contract on the part of the captured does not discharge the contract; for the captor trusts to him as a collateral security only, and by losing it does not also lose his original security, unless there is an express agreement to that effect.33

Sir William Scott states, in the case of the Hoop, that as to ransoms, which are contracts arising ex jure belli, and tolerated as such, the enemy was not permitted to sue in the

33 Pothier, Traité de Proprieté, Nos. 134-137. Valin, sur l'Ordonnance, liv. iii. tit. 9; des Prises, art. 19. Traité des Prises, ch. 11, Nos. 1-3.

British courts of justice in his own proper person for the payment of the ransom, even before British subjects were prohibited by the statute 22 Geo. III. cap. 25, from ransoming enemy's property; but the payment was enforced by an action brought by the imprisoned hostage in the courts of his own country for the recovery of his freedom. But the effect of such a contract, like that of every other which may be lawfully entered between belligerents, is to suspend the character of enemy so far as respects the parties to the ransombill; and consequently the technical objection of the want of a persona standi in judicio cannot, on principle, prevent a suit being brought by the captor directly on the ransom-bill. And this appears to be the practice in the maritime courts of the European continent.34

34 Robinson's Adm. Rep. vol. i. p. 201. The Hoop. See Lord Mansfield's judgment in the case of Ricord v. Bettenham, Burrow's Rep. p. 1734.

ر

CHAPTER III.

RIGHTS OF WAR AS TO NEUTRALS.

§ 1.

duties of

THE right of every independent nation to remain at peace, whilst other nations are engaged in war, is an incontestable Rights and attribute of sovereignty; but it is obviously impossible that neutrality. neutral nations should be wholly unaffected by the existence of war between those with whom they continue to maintain the accustomed relations of friendship and commerce. The rights of neutrality bring with them corresponding duties. Among these duties is that of impartiality between the belligerent parties. The neutral is the common friend of both parties, and consequently is not at liberty to favour one party to the detriment of the other.'

ed alliance

gerent

There is, however, one very important exception arising § 2. out of antecedent engagements, by which the neutral may modified Neutrality be bound to one of the parties to the war. Thus the neu- by a limittral may be bound by treaty, previous to the war, to furnish with one of one of the belligerent parties with a limited succour in mo- the belliney, troops, ships, or munitions of war, or to open his, ports to the armed vessels of his ally with their prizes. The fulfilment of such an obligation does not necessarily forfeit his neutral character, nor render him the enemy of the other belligerent nation, because it does not render him the general associate of its enemy.2

How far a neutrality thus limited may be tolerated by the opposite belligerent must depend more upon considerations

1 Bynkershoek, Quæst. Jur. Pub. lib. i. cap, 9. Vattel, Droit des Gens, liv. iii. ch. 7, §§ 103-110.

2 Vide ante, pt. iii. ch. 2, § 13.

parties.