governor of a besieged place, and the general or admiral commanding the forces by which it is invested, if necessarily connected with the surrender, do not require the subsequent sanction of their respective sovereigns. Such are the usual stipulations for the security of the religion and privileges of the inhabitants, that the garrison shall not bear arms against the conquerors for a limited period, and other like clauses properly incident to the particular nature of the transaction. But if the commander of the fortified town undertake to stipulate for the perpetual cession of that place, or enter into other engagements not fairly within the scope of his implied authority, his promise amounts to a mere sponsion. (a) The convention of § 406. The celebrated convention made by the Roman the Caudine consuls with the Samnites, at the Caudine Forks, was of Forks. this nature. The conduct of the Roman senate in disavowing this ignominious compact, is approved by Grotius and Vattel, who hold that the Samnites were not entitled to be placed in statu quo, because they must have known that the Roman consuls were wholly unauthorized to make such a convention. This consideration seems sufficient to justify the Romans in acting on this occasion according to their uniform uncompromising policy, by delivering up to the Samnites the authors of the treaty, and persevering in the war until this formidable enemy was finally subjugated. (a) The armistice of ClosterSeven. § 407. The convention concluded at Closter-Seven, during the seven years' war, between the Duke of Cumberland, commander of the British forces in Hanover, and Marshal Richelieu, commanding the French army, for a suspension of arms in the north of Germany, is one of the most remarkable treaties of this kind recorded in modern history. It does not appear, from the discussions which took place between the two governments on this occasion, that there was any disagreement between them as to the true principles of international law applicable to such transactions. The conduct, if not the language of both parties, implies a mutual admission that the convention was of a nature to require ratification, as exceeding the ordinary powers of military commanders in respect to mere military capitulations. The same remark may be applied to the convention (a) Vide ante, § 255. (a) See the account given by Livy of this remarkable transaction. signed at El Arish, in 1800, for the evacuation of Egypt by the French army; although the position of the two governments, as to the convention of Closter-Seven, was reversed in that of El Arish, the British government refusing in the first instance to permit the execution of the latter treaty upon the ground of the defect in Sir Sidney Smith's powers, and, after the battle of Heliopolis, insisting upon its being performed by the French, when circumstances had varied and rendered its execution no longer consistent with their policy and interest. Good faith may have characterized the conduct of the British government in this instance, as was strenuously insisted by ministers in the parliamentary discussions to which the treaty gave rise, but there is at least no evidence of perfidy on the part of General Kleber. His conduct may rather be compared with that of the Duke of Cumberland at Closter-Seven, (and it certainly will not suffer by the comparison,) in concluding a convention suited to existing circumstances, which it was plainly his interest to carry into effect when it was signed, and afterwards refusing to abide by it when those circumstances were materially changed. In these compacts, time is material: indeed it may be said to be of the very essence of the contract. If any thing occurs to render its immediate execution impracticable, it becomes of no effect, or at least is subject to be varied by fresh negotiation. (a)195 § 408. Passports, safe-conducts, and licenses, are docu- Passports, ments granted in war to protect persons and property ducts, and The com- licenses. from the general operation of hostilities. petency of the authority to issue them depends on the general principles already noticed. This sovereign authority may be vested in military and naval commanders, or in certain civil officers, either expressly, or by inevitable implication from the nature and extent of their general trust. Such documents are to be interpreted by the same rules of liberality and good faith with other acts of the sovereign power. (a) 196 safe-con (a) Flassan, Histoire de la Diplomatie Française, tom. vi. pp. 97-107. Annual Register, i. 209–213, 228–234; xlii. [219], 223–233, State Papers; vol. xliii. [28–34]. [195 For detailed statement of the rules and effects of agreements for capitulation and other terms, see Halleck's Intern. Law, 660-662. For the rules adopted by the United States in the civil war, in respect to armistice and capitulation, see Instructions to the Armies, of April 24, 1863, General Order No. 100, § 8.] —D. (a) Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 21, § 14. Vattel, Droit des Gens, liv. iii. ch. 17, §§ 265–277. [196 Halleck's Intern. Law, 664-8. Kent's Comm. i. 162-3. Phillimore's Intern. Law, iii. § 101. Heffter, Europ. Völker. § 142. U. S. Laws, i. 118. U. S. Army Regu Licenses to trade with § 409. Thus a license granted by the belligerent State the enemy. to its own subjects, or to the subjects of its enemy, to carry on a trade interdicted by war, operates as a dispensation with the laws of war, so far as its terms can be fairly construed to extend. The adverse belligerent party may justly consider such documents of protection as per se a ground of capture and confiscation; but the maritime tribunals of the State, under whose authority they are issued, are bound to consider them as lawful relaxations of the ordinary state of war. A license is an act proceeding from the sovereign authority of the State, which alone is competent to decide on all the considerations of political and commercial expediency, by which such an exception from the ordinary consequences of war must be controlled. Licenses, being high acts of sovereignty, are necessarily stricti juris, and must not be carried further than the intention of the authority which grants them may be supposed to extend. Not that they are to be construed with pedantic accuracy, or that every small deviation should be held to vitiate their fair effect. An excess in the quantity of goods permitted might not be considered as noxious to any extent, but a variation in their quality or substance might be more significant, because a liberty assumed of importing one species of goods, under a license to import another, might lead to very dangerous consequences. The limitations of time, persons, and places, specified in the license, are also material. The great principle in these cases is, that subjects are not to trade with the enemy, nor the enemy's subjects with the belligerent State, without the special permission of the government; and a material object of the control which the government exercises over such a trade is, that it may judge of the fitness of the persons, and under what restrictions of time and place such an exemption from the ordinary laws of war may be extended. Such are the general principles laid down by Sir W. Scott for the interpretation of these documents; but Grotius lays down the general rule, that safe-conducts, of which these licenses are a species, are to be liberally construed; laxa quàm stricta interpretatio admittenda est. And during the last war, licenses were eventually interpreted with great liberality in the British Courts of Prize. (a)197 lations, 1857, § 769-773. Instructions to the Armies of the United States, April 24, 1863, § 6.]-D. (a) Chitty's Law of Nations, ch. 7. Kent's Comm. i. 163, note b. to grant § 410. It was made a question in some cases in those Authority courts, how far these documents could protect against licenses. British capture, on account of the nature and extent of the authority of the persons 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. Ei 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 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, 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. (a) 198 (a) The Hope, Dodson's Adm. Rep. i. 226. Ibid. Appendix D. Stewart's ViceAdm. Rep. 367. [198 License to Trade with the Enemy. — A license to trade with the enemy must be issued by competent authority, without material misrepresentation, whether intentional or not, on the part of the receiver, and used in good faith, strictly according to its terms. An error, though without fraud, may vitiate it. It is always ultimately from sovereign authority. The only question is, what authority the sovereign expressly or impliedly grants to a subordinate commander. It is understood that a commander may grant special licenses within his department, but not licenses general in respect of time or place. As to the Persons. The person named in the license may be either a principal or an agent; but, if he is described as principal, he cannot protect property for which he is agent. If no person is named or implied, it is presumed to be negotiable, and the subject of sale. As to the Vessel. There must be a substantial compliance with any statement of nationality of the vessel to be used. An enemy's vessel cannot be used, unless expressly permitted; nor a vessel of the grantor's nation, if neutral vessels only are named. Still, as substantial compliance is sufficient, where the nationality of the neutral vessel, or the number of the vessels of one flag, is not material, a departure in that particular, in good faith and from necessity or great convenience, is not fatal. As to Cargo. A liberal construction has been put upon this subject in cases of good faith and necessity. But the pressure of hostile powers is never regarded as a justifying necessity, as that would open a door to fraud. A change of the quantity or quality of the goods, or substitution in case of loss, if not making a material variation, is permitted. So the going or returning in ballast may be implied, or the |