§ 20. The term ransom is now usually applied to property taken from an enemy in war, and surrendered or restored to the owner on the payment of, or agreement to pay, a specified sum of money, which is called ransom money. This term was formerly applied to the redemption of property captured on land, as well as on the high seas; but, by general use, it is now understood to apply to the agreement made between the commander of a captured vessel or cargo, and the captor, by which the latter permits the former to depart with his vessel, and gives him a safe-conduct, in consideration of a sum of money which the former, in his own name, and in the name of the owners of the vessel and cargo, promises to pay at a future time named. This contract is usually made in writing, in duplicate, one of which is kept by the captor, which is properly called the ransom bill, and the other by the captured vessel, which is its safe-conduct. The general law relating to the ransom of captured property, was fully and ably discussed by Story.1

§ 21. The contract of ransom is considered in England as tending to relax the energy of war, by depriving cruisers of the chance of recapture, and several statutes in the reign of George III. absolutely prohibited to British subjects the privilege of ransom of property captured at sea, unless in a case of extreme necessity, to be judged of by the court of Admiralty. Other maritime nations,' says Kent, regard ransoms as binding, and to be classed among the few legitimate commercia belli. They have never been prohibited in the United States, and the Act of Congress of August 2, 1813, interdicting the use of British licences, or passes, did not apply to the contract of ransom.'

2

§ 22. The general authority to capture, which is delegated

tome iii. p. 361; Wheaton, Elem. Int. Law, pt. iv. ch. ii. § 3; Lingard, Hist. of England, vol. v. p. 118; U. S. Statutes at Large, vol. iii. pp. 351, 778; Niles, Register, vol. ii. p. 382; Bello, Derecho Internacional, pt. îì. cap. ix. §5; Riquelme, Derecho Pub. Int., lib. i. tit. i. cap. xiii; Dumont Corps Diplomatique, tome vii. p. 231.

i Maisonnaire v. Keating, 2 Gallis. R., p. 337; Bouvier, Law Dic., verb. Ransom; Pothier, Droit de Prop., nos. 134-144; Valin, Des Prises, art. xix; Miller v. Resolution, 2 Dall. R., 15.

2 Kent, Com. on Am. Law, vol. i. p. 105; Chitty, On Com. Law, vol. i. p. 428; Valin, Des Prises, art. lxvi. p. 149; Goodrich v. Gordon, 15 Johns. R., p. 6; Girard v. Ware, 1 Peters C. C. R., p. 142; the 'Saratoga,' 2 Gallis. R., p. 164; Maisonnaire v. Keating, 2 Gallis. R., p. 336; Brooks v. Dorr, 2 Mass. R., p. 39; Spafford v. Dodge, 14 Mass. R., p. 66.

by the belligerent State to its commissioned cruiser, involves the power to ransom captured property, unless prohibited by the law of the captor's own country. The contract made for the ransom of enemy's property taken at sea, is generally carried into effect by a safe-conduct issued by the captor, permitting the captured vessel and cargo to proceed to a designated port, by a prescribed route, and within a limited time, and such a document furnishes a complete legal protection against the cruisers of the same belligerent State, or its allies, during the period and within the terms prescribed in the safeconduct. From the very nature of the connection between allies,' says Kent, 'their compacts with the common enemy must bind each other, when they tend to accomplish the objects of the alliance. If they did not the ally would reap all the fruits of the compact, without being subject to the terms and conditions of it; and the enemy with whom the agreement was made would be exposed, in regard to the ally, to all the disadvantages of it, without participating in the stipulated benefits. Such an inequality of obligation is contrary to every principle of reason and justice.'

§ 23. As a general rule, the captor, by the safe-conduct implied in a ransom-bill, simply guarantees the ransomed vessel against being interrupted in its course, or retaken by other cruisers of its own nation or of its allies, but not against loss by the perils of the sea. There is no implied insurance in the ransom-bill against such losses. If, therefore, the ransomed vessel should founder at sea, or be wrecked, and become a total loss, the contract is still binding, and the ransom-bill payable to the captor. But it is sometimes specified in the contract of ransom, that the loss of the vessel by the perils of the sea shall discharge the captured party from the payment of the ransom; such a clause is restrained to the case of a total loss on the high seas, and is not extended to stranding, which might afford the master a temptation to fraudulently cast away his vessel, in order to save the most valuable part of his cargo, and avoid the payment of the ransom.'

24. If the ransomed vessel should exceed the time, or deviate from the course, prescribed in the contract, she forfeits her safe-conduct, and is liable to recapture; and if retaken,

1 Wheaton, Elem. Int. Law, pt. iv. ch. ii. § 28; Phillimore, On Int. Law, vol. iii. p. 110.

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. But any variation from the course prescribed, or the time limited, by the contract, caused by the stress of weather, or unavoidable necessity, does not work a forfeiture of the safe-conduct. If the captor, after having ransomed an enemy's vessel, 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 under the ransom-bill. But questions relating to maritime captures and recaptures will be more particularly considered in the chapter on the rights and duties of captors.1

25. Sometimes a hostage is taken for the faithful performance of the contract on the part of the captured. The death or the recapture of the hostage does not discharge the contract of ransom, unless there is an express stipulation to that effect; for the captor takes the hostage only as a collateral security, and the loss of such collateral security does not cancel the contract, or discharge the debtor from his obligation to pay the ransom. 'The practice in France,' says Kent, 'when a French vessel has been ransomed, and a hostage given to the enemy, is for the officers of the Admiralty to seize the vessel and her cargo, on her return to port, in order to compel the owners to pay the ransom debt, and relieve the hostage; and this is a course dictated by a prompt and liberal sense of justice.' Vattel and others have given very minute rules in relation to hostages for prisoners. If a hostage be given in order to procure the liberty of a prisoner, and the prisoner die, the hostage should be set free; but if the hostage die, the prisoner is not thereby restored to his liberty. If, however, one prisoner has been substituted for another, the death of one releases the other. prisoner be released on condition of procuring the release of another, and that other dies before his liberty has been attained, it is said that the survivor is bound to return to

1 Vide post, ch. xxxi.

his prison! No civilised nation would now impose such conditions.1

§ 26. Contracts of ransom, like all other agreements arising jure belli, and lawfully entered into between belligerents, suspend the character of enemy, so far as respects the parties to the contract. There can, therefore, be no just reason why the captor should not bring suit directly on the ransom-bill. And such appears to be the practice in the maritime courts of the European continent. The English courts, however, have decided that the subject of an enemy is not permitted to sue in the British courts of justice, in his own proper person, for the payment of a ransom, on the technical objection of the want of a persona standi in judicio, but that the payment could be forced by an action brought by the imprisoned hostage in the courts of his own country for the recovery of his freedom. This technical objection is not based on principle, nor supported by reason, and the decision has not the sanction of general usage. The effect of this contract,' says Wheaton, 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 ransombill; 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.' Lord Mansfield considered this contract as worthy to be sustained by sound morality and good policy, and as governed by the law of nations and the eternal rules of justice. Licences to trade, which properly belong to commercia belli, will be discussed in a separate chapter.2

§ 27. As flags of truce are sometimes sent from the enemy to forces in position, or on the march, or in action, nominally for making some convention, as for a suspension of arms,

1 Vattel, Droit des Gens, liv. iii. ch. xvii. §§ 278–286; Kent, Com. on Am. Law, vol. i. p. 107.

Hostages were taken, during the Franco-German War, 1870, in districts theoretically, but not practically, occupied. The mayor of Neufchâtel and his adjunct, for instance, were made hostages for having allowed the arrest of some provision dealers engaged in supplying the German army. As a rule, where a fine was imposed on a town, and not paid, these two chief officials were kept in custody or under surveillance, until the money was forthcoming.

2 Wheaton, Elem. Int. Law. pt. iv. ch. ii. § 28; Anthon v. Fisher, Doug. R., 649, note; the 'Hoop,' i Rob. R., 169; Corun v. Blackburn, í Doug. R., 641; Ricard v. Bettenham, 3 Burr. R., 1734.

but really with the design of gaining information, it is proper that restrictions should be placed upon its use. Thus, if sent to an army in position, the bearer of said flag should never be allowed to pass the outer line of sentinels, nor even to approach within the range of their guns, without permission. If warned away, and he should not instantly depart, he may be fired on. Similar precautions may be taken by an army on the march. If the flag proceeds from the enemy's lines during a battle, the ranks which it leaves must halt and cease their fire. When the bearer displays his flag, he will be signalled by the opposing force, either to advance, or to retire; if the former, the forces he approaches will cease firing; if the latter, he must instantly retire; for, if he should not, he may be fired upon.1

1 Scott, Military Dic., p. 304.

During the war in 1807, the British squadron, under Sir Edward Pellew, arrived off Point Pauka, and a commission, with a flag of truce, was immediately sent to the commandant of the Dutch naval force for the surrender of the ships of war lying at Gressie. The Dutch commodore thought fit to detain the boat, and to place in arrest the persons on board of her. He then sent one of his officers to Sir Edward, with information of the unwarrantable step he had taken, accompanied with a flat refusal to deliver up the ships, although they were all in a dismantled state, with their guns on shore.

The Governor and Council of Sourabaya, a settlement about 15 miles higher up the river, and to which Gressie was subordinate, released the gentlemen of the commission and the boat's crew, disclaimed the violent measures pursued by the commodore, and offered to treat. By the treaty the ships were delivered up to the British, but as they had previously been scuttled by the Dutch commodore, the British completed their destruction by burning them.-Jas. Nav. Hist. vol. iv. 358.

In the island of Cayenne, when the British were before Fort Diamant, as a preliminary measure, Captain Yeo tried the effect of a summons. The French general's advanced guard allowed the gig with the flag of truce to approach within a boat's length, then fired two volleys at Lieut. Mulcaster and his party, and quickly retreated. Upon a second attempt a field-piece was discharged at them.-Ibid. vol. v. 211.

After the battle of Montebello, 1859, the French refused to receive flags of truce from the Austrian lines. But this was essential in order to conceal some manœuvres.

In 1870 the Bishop of Strasburg, under a flag of truce, endeavoured to obtain permission from General Werder for the women and children to leave that town, but he was stopped at the outposts and informed that his application would be in vain. Eventually, on the arrival of the delegates from Switzerland, 1,400 old men, women, and children, were allowed to leave for that country.-Edwards, Germans in France.

The following were among the regulations issued by the Navy De partment of the United States, August 7, 1876, for the government of all persons attached to that service :

CHAPTER XXI., Section I.-1. A flag of truce is, in its nature, of a