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 Vice Adm. 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

of captured

§ 411. The contract made for the ransom of enemy's Ransom property, taken at sea, is generally carried into effect by property. means of a safe-conduct 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 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 insure 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

returning full, where unlading becomes impossible. If unprotected goods are on board, by accident or mistaken interpretation, they are condemned; but the license is not rendered void, unless it has been perverted intentionally for the purpose of carrying such goods.

The Course of the Voyage. On this, the greatest strictness is required. The rules laid down do not vary much from those applied to policies of insurance for described voyages. An intentional deviation forfeits the license, but not a mere intent, the execution of which is not entered upon, unless it shall, in fact, have produced some effect on the voyage. The requirement to visit certain ports for convoy or other purpose, whether the purpose be expressed or not, must be complied with. These visits are guaranties of good faith, and also enable the grantor to inspect the vessel.

As to Time. Time is usually of the essence of the license. In case of a license to export from a port of the grantor, the time is a condition that must be complied with, or the license does not take effect. In case of a license to import from an enemy's country, allowance will be made for circumstances beyond the control of the licensee.

A license gives no right to visit a permitted port, if under blockade, or to carry contraband goods, papers, or persons, or to resist search.

Halleck, 675-690. Manning, § 123. Wildman, ii. 245-266. Kent's Comm. i. 163. Duer on Insurance, i. 594-619. Hautefeuille, tom. i. p. 19. Woolsey, § 147. Phillimore's Intern. Law, iii. 249, 613.] — D.

cargo, and avoid the payment of the ransom. Where the ransomed vessel, having exceeded the time or deviated from the course prescribed by the ransom-bill, 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. (a)199

(a) Pothier, Traité de Propriété, Nos. 134–137. Valin, sur l'Ordonnance, liv. iii. tit. 9; des Prises, art. 19. Traité des Prises, ch. 11, Nos. 1-3.

time, liv. i. tit. 2, § 29.

[199 Ransom.-Ransoms were prohibited by Acts of Parliament of Great Britain from and after the time of George III., as tending to relax the energies of war by depriving cruisers of the chance of recapturing prizes. The Act of 1804 (§ 45) leaves the subject in the hands of the Queen in Council, to prohibit or allow ransoms, wholly or in certain cases, and absolutely or subject to terms and conditions, in any pending war; and gives jurisdiction over ransom agreements exclusively to the Court of Admiralty as a prize court. It punishes by fine any person who gives a ransom in violation of Orders in Council. Other maritime nations, including the United States, have admitted them among the commercia belli. (Halleck's Intern. Law, 670. Kent's Comm. i. 105. Phillimore's Intern. Law, iii. § 433. Pothier, De Propriété, No. 144. Bello, Derecho Intern. p. 2, ch. 5, § 9.) Ransom bills, and the safe-conducts given to effectuate ransoms, are binding on the allies of both parties to the contract. (Kent's Comm. i. 105. Phillimore's Intern. Law, iii. § 110. De Cussy, Droit MariHalleck's Intern. Law, 671.) If, as is sometimes the case, the captor agrees that the parties to the bill shall be discharged in case of loss of the vessel by perils of the seas, that includes only total loss on the high seas, and not loss by stranding. (Pothier, Traité du Droit de Propriété, No. 138. Halleck's Intern. Law, 672. Kent's Comm. i. 105.) The English courts, when ransoms were permitted, held that an enemy cannot sue on a ransom bill, during the war, for want of a persona standi; Lord Mansfield dissenting from the majority of the court, and holding that the contract of ransom, if allowed to a subject by the State, is an implied suspension of the disability to sue, so far as remedies on that contract are concerned. (Anthon v. Fisher, note to Douglas's Rep. 526.) Lord Mansfield's ground is generally approved by the later jurists, and the objection does not obtain in other countries. (Halleck's Intern. Law, 674. Story, J., in Maissoniere v. Keating, Gallison, ii. 337. Kent's Comm. i. 68, 104-108. Ricord v. Bettenham, Burrow, iii. 1734. Pothier, De Propriété, No. 144.) On the subject of ransom generally, see Judge Story's opinion in Mais

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 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 into between belligerents, is to suspend the character of enemy, so far as respects the parties to the ransom-bill; 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. (6) 200

soniere v. Keating, Gallison, ii. 337. Kent's Comm. i. 68, 104-108. Pothier, De Propriété, Nos. 134-144. Anthon v. Fisher, note to Douglas's Rep. 526. Cornu v. Blackburn, Douglas, 641. The Hoop, Rob. i. 196. Ricord v. Bettenham, Burrow, iii. 1734. Halleck's Intern. Law, 670-674. Woolsey's Introd. § 142. Heffter, Europ. Völker. § 141. Phillimore's Intern. Law, iii. § 432. Bouvier's Law Dict. verb. "Ransom." Bello, Derecho Intern. Part II. ch. 5, § 9. Azuni, Droit Maritime, tom. 2, ch. 4, art. 7. Emerigon, Des Prises, ch. 12, § 21. Valin, Des Prises, art. 19, 66. De Cussy, Droit Maritime, liv. i. tit. 2, § 29. Miller v. Miller, Dallas, ii. 15. Vattel, Droit des Gens, liv. 3, ch. 17, § 278-286.]-D.

(b) The Hoop, Robinson's Adm. Rep. i. 201. See Lord Mansfield's judgment in the case of Ricord v. Bettenham, Burrow's Rep. 1734. Pothier, Propriété, Nos. 136, 137.

[200 See note 199, suprà, on Ransoms. Halleck (pp. 665-673) treats fully of cartels, ransoms, ransom bills, the safeguards involved in them, the effect of recapture or loss, and remedies on the contracts of ransom. See also Wildman, ii. 26-31. Phillimore's Intern. Law, iii. 109-112, 432. Manning's Law of Nations, § 156-63. Heffter, Europ. Völker. § 142. De Cussy, vol. i. tit. 3, § 29. Martens, § 275, 296. Bello, Derecho Intern. Part II. ch. 95.] —D.

507