of the seventeenth century, for we find that when Count Solmes, who was serving under William of Orange in Ireland in 1690, threatened to deport his prisoners as slaves to America, the Duke of Berwick threatened to retaliate by sending his prisoners to the galleys in France. Bynkershoek, in commenting on the conduct of the Dutch in 1602, in liberating certain prisoners of war whom their friends would not ransom, observes that it would have been foreign to the manners of that age moribus, qui nunc frequentantur, alienum, to have put them to death, or to have sold them as slaves, although he remarks that the Dutch are accustomed to sell, as slaves, to the Spaniards all prisoners of war belonging to Algiers, Tunis, or Tripoli; and that the States General had ordered their Admiral in 1661 to sell, as slaves, all pirates whom he might capture at sea. From a proclamation of Charles I of 23 July 1628, we may infer two facts; first, that a practice of exchanging prisoners during war was growing up; and secondly, that the private interest of the actual captor in his prisoners had not been entirely devested at that time, as we find all prisoners brought into the kingdom by private men were to be kept in prison at the charge of the captors, until they should be delivered by way of exchange or otherwise. At a later period of the same century we arrive at greater certainty; for we find in the year 1666 mention made by D'Estrades of a person coming to England in a public capacity from Holland, to negotiate an exchange of prisoners between England and Holland then at war. It seems not improbable that Humanity is indebted to the Dutch 45 45 Lettres de M. le Comte d'Estrades, Tom. III. p. 475. Modern Cartels for the ex for initiating the modern practice of exchanging prisoners, whilst war was going on. § 178. It was amongst the provisions (Art. LXIII.) of the Peace of Munster (A. D. 1648) that all prisoners change of of war should be released on both sides without prisoners. ransom and without any distinction or reservation; and it is from about the same period that we may date the introduction of cartels in Europe for the release of prisoners at a fixed rate of ransom, whilst war is going on. It is not unusual in the present day for two States which are engaged in war against each other to enter into an agreement, which is termed a Cartel, either for the exchange of prisoners, or for their ransom at fixed rates. Such a Cartel was agreed upon on 26 March 1673 between the Duke of Luxemburg on the part of Louis XIV and Count Horn on the part of the States General, under which a proportionate scale of money prices was settled for the ransom of officers and soldiers according to their respective grades, in cases where there was no officer or soldier of equal grade, who could be released in exchange. All medical and surgical officers with their servants were to be released without ransom. Similar Cartels were made between the French and the Dutch in 1675 18, and between the Emperor Leopold and Louis XIV in 16929, and between the French and the Imperial armies in Italy in 1701 50. It is not unusual in modern Cartels to stipulate, not merely for the ransom of prisoners for a pecuniary equivalent, if no exchange of prisoners of equal grade can be effected, but to stipulate for 46 3 Ch. Robinson's Reports, Appendix A. 47 Dumont, Corps Diplomatique, Tom. VII. Part I. p. 230. 48 Ibid. p. 292. 49 Tom. VII. Part II. p. 310. 50 Martens, Récueil, Tom. III. p. 310. the ransom of prisoners for a personal equivalent, as for instance in the Cartel of 1780 51 agreed upon between France and Great Britain, a Field Marshal was to be ransomed for sixty pounds sterling, or for sixty private soldiers, each private soldier being allowed to be ransomed for one pound sterling. A Cartel for the exchange of prisoners during war was agreed to between Great Britain and the United States in 1813, under which the same principle was adopted of exchanging prisoners not merely for prisoners of equal rank, but for equivalents in men 52. During the war of the Allied Powers against Russia (1854-56) frequent exchanges of prisoners took place, and it was agreed, under a special convention between France and England, that whenever the two allied Governments should agree to an exchange of prisoners with the Enemy, no distinction should be made between their respective subjects who might have fallen into the hands of the Enemy, but their liberation should be effected according to the priority of their respective capture, except under special circumstances, which were reserved for the mutual consideration of the two Governments 53. It seems to have been thought necessary even in the Treaty of Paris (30 March 1856) to stipulate that the prisoners of war on both sides should be immediately released 5. It is advisable that such a provision should be introduced ex majori cautela into all Treaties, even between Powers which do not recognise the status of domestic slavery. Dr. Phillimore has very justly observed, that if prisoners are not released during the war, their freedom should 1854. Martens, N. R. Gén. XV. p. 505... 51 Lamberty's Memoirs, Tom. I. p. 694. 52 National Advocate, May 26, 1813. 53 Convention of 10 May PART II. 54 Les prisonniers de guerr seront immédiatement rendus de part et d'autre. Ibid. p. 774. A a Cartel always form one of the conditions of the peace which § 179. The Cartel of 1813, between Great Britain and the United States, provided that American Agents might reside at Halifax and other places, and British Agents at various places within the United States. It is usual, and obviously of the last importance for carrying out the objects of a Cartel, that a Commissary of prisoners should reside in the country of the Enemy; and it is competent for him to grant a pass or special safe conduct eundo et redeundo to ships employed in conveying prisoners who have been exchanged or ransomed 56. Such ships are denominated Cartel Ships. The employment of such ships, whilst it is entitled to every favourable consideration upon the same principles as all other commercia belli, by which the violence of war may be allayed, as far as is consistent with its purposes, must be conducted with very delicate honour on both sides, so as to leave no ground for suspicion, that a practice introduced for the common benefit of mankind should be made a stratagem of war, or become liable to fraudulent abuse. In general, when a ship is going on a Cartel, unless there has been a stipulation as to the character of the ships to be so employed, it is immaterial whether she is a merchant ship or a ship of war; but a Cartel ship has no right to trade by carrying either merchandise or passengers for hire 57; neither is a ship protected 55 Commentaries upon Inter- 57 The Venus, 4 Ch. Rob. p. cargo which had been shipped at Dover on board of a French Cartel ship, which was lying near the quay with her sails set and ready to sail back to France. La Rosine, 2 Ch. Rob. p. 373. from capture when she is proceeding to a port for 58 at Sea. § 180. The Ransom of Captures at sea comes Ransom of under different considerations of Law from the ran- Captures som of prisoners of war. In the latter case the person of the captive has been brought infra præsidia, but with regard to capture at sea circumstances will frequently not permit a captor to bring or send his prize into port. In such a case he may destroy the property of his enemy jure belli. Being thus of Right dominus of the property which he has taken, he may restore it, if he sees fit, to the owner on an agreement on the part of the latter to pay a specific sum of money by way of ransom 59. The right of every captor to restore a captured ship and cargo upon ransom is not founded on a formal vested title in the captor to the captured property. Mr. Justice 58 The Gloire, 5 Ch. Rob. p. 93. 59 Emérigon, Traité des As surances, c. 12. § 21. Consolato |