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, tó 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.1

§ 28. Ran

tured pro

perty.

The contract made for the ransom of enemy's prosom of cap- perty, taken at sea, is generally carried into effect by 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 guarantees 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 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,

1 Dodson's Adm. Rep. vol. i. p. 226. The Hope. Ibid. Appendix (D.) Stewart's Vice Adm. Rep. p. 367.

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.1

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 ransombill. And this appears to be the practice in the maritime courts of the European continent.2

1 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.

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

CHAPTER III.

RIGHTS OF WAR AS TO NEUTRALS.

§ 1. Definition of neutrality.

Ir deserves to be remarked, that there are no words in the Greek or Latin language which precisely answer to the English expressions, neutral and neutrality. The terms neutralis, neutralitas, which are used by some modern writers, are barbarisms, not to be met with in any classical author. The Roman civilians and historians make use of the words amici, medii, pacati, socii, which are very inadequate to express what we understand by neutrals, and they have no substantive whatever corresponding to neutrality. The cause of this deficiency is obvious. According to the laws of war, observed even by the most civilized nations of antiquity, the right of one nation to remain at peace, whilst other neighboring nations were engaged in war, was not admitted to exist. He who was not an ally was an enemy; and as no intermediate relation was known, so no word had been invented to express such relation. The modern public jurists, who wrote in the Latin language, were consequently driven to the necessity of inventing terms, to express those international relations which were unknown to the Pagan nations of antiquity, and which had grown out of a milder dispensation, struggling against the inveterate customs of the dark ages which preceded the revival of letters. Grotius terms neutrals medii,"middle men."1 Bynkershoek, in treating of the subject of neutrality, says:-" Non hostes appello, qui neutrarum partium sunt, nec ex fœdere his illisve quicquam debent; si quid debeant, Fœderati sunt, non simplicitur Amici." 2

1 Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 9.

2 "I call neutrals (non hostes) those who take part with neither of the belligerent powers, and who are not bound to either by any alliance. If they are so bound, they are no longer neutrals but allies. Bynkershoek, Quæst. Jur. Pub.

ent species

There are two species of neutrality recognized by $ 2. Differinternational law. These are, 1st. Natural, or perfect of neutralneutrality; and 2d. Imperfect, qualified, or conventional ity. neutrality.

1. Natural, or perfect neutrality, is that which every 3. Perfect sovereign State has a right, independent of positive neutrality. compact, to observe in respect to the wars in which other States. may be engaged.

The right of every independent State to remain at peace, whilst other States are engaged in war, is an incontestable attribute of sovereignty. It is, however, obviously impossible, that neutral nations should be wholly unaffected by the existence of war between those communities with whom they continue to maintain their accustomed relations of friendship and commerce. The rights of neutrality are connected with correspondent duties. Among these duties is that of impartiality between the contending parties. The neutral is the common friend of both parties, and consequently is not at liberty to favor one party to the detriment of the other.' Bynkershoek states it to be "the duty of neutrals to be every way careful not to interfere in the war, and to do equal and exact justice to both parties. Bello se non interponant," that is to say, "as to what relates to the war, let them not prefer one party to the other, and this is the only proper conduct for neutrals. A neutral has nothing to do with the justice or injustice of the war; it is not for him to sit as judge between his friends, who are at war with each other, and to grant or refuse more or less to the one or the other, as he thinks that their cause is more or less just or unjust. If I am a neutral, I ought not to be useful to the one, in order that I may hurt the other." "2

lib. i. cap. 9. De Statu belli inter non hostes. We shall hereafter see that this definition is merely applicable to that species of neutrality which is not modified by special compact.

1 Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 9. Vattel, Droit des Gens, liv. iii. ch. 7, §§ 103-110.

2" Horum officium est, omni modo cavere, ne se bello interponant, et his quàm illis partibus sint vel æquiores vel iniquiores. Bello se non interponant, hoc est, in causâ belli alterum alteri ne perferant, et eo solo recte defunguntur, qui neutrarum partium sunt. ... Si recte judico, belli justitia