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 16758, and between the Emperor Leopold and Louis XIV in 1692, 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 54. 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 Ships. always form one of the conditions of the peace which terminates it 55. Cartel § 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 5. 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 ployed, 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. em cargo which had been shipped from capture when she is proceeding to a port for the purpose of taking upon herself the character of a Cartel ship when she arrives at such port; but she is protected from capture in returning from a port of the enemy to which she has conveyed prisoners of war, until she has arrived at a port of her own country, for she is protected in the whole trajectus between the ports of the two belligerents. There are cases in which the privileges of Cartel have been allowed to vessels employed in carrying prisoners of war back to their own country agreeably to an understanding with the commander of the enemy-forces, although such vessels have not been provided with the formal documents of Cartel. Lord Stowell held that in such a case a Prize Court was placed under an obligation to support the good faith of an agreement, on which the other party had acted with confidence 59. 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 Ransom 60 Story has observed that "whether the property vests after twenty-four hours' possession; or after bringing infra præsidia, as seems the doctrine of the Civilians; or after condemnation, as is the doctrine of Great Britain; it is clear that the right to take a ransom exists from the moment of capture. And by the general practice of the maritime world, a decree of condemnation is deemed necessary to ascertain and confirm the inchoate title of the captors, at least in respect to the Sovereign and subjects of their own country. Nor is a ransom, strictly speaking, a repurchase of the captured property. It is rather a repurchase of the actual right of the captors at the time, be it what it may; or, more properly, it is a relinquishment of all the interest and benefit, which the captors might acquire or consummate in the property by the regular adjudication of a prize tribunal, whether it be an interest in rem, a lien, or a mere title to expenses. In this respect there seems to be no legal difference between the case of a ransom of the property of an enemy, and of a neutral. For if the property be neutral, and yet there be a probable cause of capture, or if the delinquency be such, that the penalty of confiscation might be justly applied, there can be no intrinsic difficulty in supporting a contract, by which the captors agree to waive their rights in consideration of a sum of money voluntarily paid, or agreed to be paid, by the captured." § 181. The captor, when he restores a captured vessel to its commander under a Contract of Ransom, takes from the latter what is termed a ransom bill, under which the latter binds himself and the owner of the vessel and cargo to pay a certain sum of money at a future day named in the bill. This contract is usually made in duplicate, one of which is kept by 60 Maissonnaire and others v. Keating, 2 Gallison, p. 337. |