pends upon its faithful observance by the other contracting party (a). Where a penalty is annexed to a violation of a truce, an option is given to exact the penalty or to renew hostilities; but when the penalty is demanded and paid, the option is determined, and the truce continues (b). A truce is not violated by unauthorized acts, unless they are ratified by refusal of satisfaction (c). A truce binds the principals from its completion; but it is not binding upon other persons, until it has been published, and if it be violated before publication, the parties violating it are not criminally responsible; but the contracting party, whose duty it was to publish it, is bound to make compensation to the party injured (d). Passports or safe conducts are to be construed according to the grammatical sense of the words in their natural meaning, where a deviation is not requisite in order to avoid an absurdity (e). Where a safe conduct is granted to a class of persons, it includes all persons belonging to that class of whatever degree: a passport to the clergy would include bishops; a passport to military persons would include commanders in chief, sailors, and all persons subject to martial law (ƒ). Where license is granted to go to such a place, it implies license to return, wherever that is the purpose for which the license is granted; for otherwise the license would be absurd and inoperative. Where it is granted to leave a place, it implies protection during the journey (g). A passport or safe conduct to a particular person is a personal privilege and cannot be transferred; but it extends to necessary attendants and equipage, the necessity of which is to be determined by (a) Grot. iii. 21, xi. (b) Grot. iii. 21, xii.; Puff. viii. 7, xi. (d) Grot. iii. 21, v. (e) Grot. iii. 21, xiv. (ƒ) Grot. iii. 21, xv. (g) Grot. iii. 21, xvi. the rank of the person to whom the passport is granted (h); but it does not include the wife or son of him to whom it is personally granted (i). A safe conduct is not determined by the death of the person granting it, nor is it confined to the territories of the prince by whom or by whose delegated authority it is granted, but is co-extensive with his exercise of the right of war (k). The principal use of safe conducts, in modern times, is for the protection of cartel ships employed for the exchange of prisoners of war. The practice of exchanging prisoners of war in this manner is of no ancient introduction among the states of Europe; it succeeded to the elder practice of ransoming, which succeeded to the still more ancient practice of killing or carrying them into captivity. It is a practice which, as far as the writings of Grotius seem to indicate, was not of very familiar or general use in his time, though, perhaps, not altogether unknown. It is, however, of a nature highly deserving of very favorable consideration upon the same principles as are all other commercia belli, by which the violence of war may be allayed so far as is consistent with its purposes, and by which something of a pacific intercourse may be kept up, which in time may lead to an adjustment of differences and end ultimately in peace. At the same time, it is very proper that it should be conducted with very delicate honour on both sides, so as to leave no ground of suspicion, that a practice introduced for the common benefit of mankind, should be made a stratagem, or become liable to fraudulent abuse. Ships are to be protected in this office ad eundum et redeundum, both in carrying prisoners and in returning from that service. A ship going as a cartel ship, is not protected by mere intention on her way from one port to another of her own country for the purpose of taking upon herself that (h) Grot. iii. 21, xvi.; Vatt. iii. § 267. (i) Grot. iii. 21, xvii. xviii. (k) Grot. iii. 21, xix. xxii.; Vatt. iii. § 268. character when she arrives at the latter port. In some cases a necessity for sending ships for such a purpose may occur, but it is usual in such cases, and it is proper to apply to the commissary of prisoners residing in the country of the enemy and to obtain a pass from him. From this practice alone, we may infer, that it is not the employment that is held to carry a necessary protection in such cases, but that the security is derived from the special safe conduct, which would be unnecessary, if the mere service were sufficient. It is a precaution most reasonable, that such a safe conduct should be obtained. Yet where ships were going in perfect good faith on cartel service, and had ventured out to sea under a reliance of being protected by the nature of the service, it was held that, though it must be considered a rash step to venture without a safe conduct, it would be too strict to hold them liable to the penalty of confiscation, and they were restored (1). So, where a ship was taken sailing under a flag of truce, that is, under the English and French colours joined together, without any safe conduct, but acting bonâ fide as a cartel ship. It appeared that the St. Lucie was taken by assault without any capitulation, and that after surrender, the English general had granted permission to the French general to proceed to France on parole, not to serve again till exchanged. It was not therefore a contract of mutual benefit, but a matter of indulgence to be favourably considered indeed as the act of a general officer, who may be supposed to have been the best judge of the propriety of the measure at the time; but something, which does not bind his country precisely to the same extent as a capitulation of war, by which return of advantage is stipulated and obtained for his country. It also appeared, that the second in command had given permission to other persons to go to Martinique and afterwards to France as they might find most convenient. These gentlemen went to Mar (1) The Daifjee, 3 Rob. 139. tinique, and there this vessel was taken up as a cartel ship by virtue of this permission, though not strictly a cartel ship. It was certified that this transaction did not exceed the intention of the British officer, under whose permission the prisoners were allowed to return to France; and it was held, that if he had exceeded his powers or made an improvident concession, that would not supersede the obligation of the court to support the good faith of the agreement on which the other party had acted with confidence, and restitution was decreed (m). The privileges and immunities of a cartel ship are of a very sacred nature and are to be received with very great respect, inasmuch as they tend very beneficially to mitigate the miseries of war and to facilitate the return of peace by the removal of those obstructions which put a stop to the intercourse of nations. The actual existence of war is not necessary to give effect to contracts of cartel; it is sufficient if they are entered into prospectively and in expectation of an approaching war, because the occasions for them may just as naturally arise from a view of approaching events. Parties may contract to provide against the consequences of hostilities, which they may foresee. That the Crown has the power of granting the protection of cartel is undoubted. Though he may have given away the interest in all captures to the captors, his Majesty may still grant such particular exemptions, as in his wisdom he may deem expedient. And when a cartel appears to have been employed in the public service and for purposes of national utility, that circumstance alone will entitle it to be considered as an engagement sanctioned by the public services of the state. Authority delegated by the Crown may be taken as emanating from the Crown. It is the practice for general orders and instructions to be sent out to all persons executing the functions of executive government abroad; but as it would be impossible to provide for all (m) La Gloire, 5 Rob. 492. the special exigencies that may occur, such persons must often be left under the necessity of acting on their own judgment and discretion; and what is done by them under such circumstances in the execution of their public duty may fairly be considered as done under the authority of the Crown, if not renounced by the Crown, in subsequent actions or declarations. Thus, where protection in contemplation of hostilities had been granted to a Dutch ship, employed to remove British troops from Amboyna in pursuance of the treaty of Amiens, by the British commander in that place; and the protection had been confirmed by the governor of Madras after the commencement of hostilities, the vessel was held to be protected as a cartel ship; and the protection was held to extend to a cargo, which the vessel took in at Madras, as it was stipulated, that she should be at liberty to do to the amount of freight, free from duties (n). When an English ship went into the Cape of Good Hope in ignorance of hostilities, and was there taken, and her crew imprisoned; and some of the prisoners being put on board an English cartel ship with their own consent to be conveyed to England, to be there exchanged for Dutch prisoners, seized the boat of the cartel ship, attacked their vessel and carried her off: it was held, that the recapture was not such as would revest the interest of the original proprietors, or entitle the recaptors to salvage. Such a recapture is not of such a nature as can be deemed a legal capture; for an act, which is itself illegal, can convey no right. The surprising and retaking, described by the act of Parliament, must be such a surprising and retaking as the law would acknowledge and justify, and not such a surprising and retaking as being in itself piratical, must be deemed a nullity as to any legal effect. Here was a surprising and retaking, that had been effected through a violation of contract, by persons pretending to act upon (n) The Carolina, 6 Rob. 336. |