trous effect upon American commerce. The merchants of the United States, relying upon the rule, recognised by Sir William Scott, that the landing of the goods and the payment of the duties in the neutral port would be regarded as conclusive evidence that the continuity of the voyage had been broken so as to legalise a subsequent exportation (although the language of the judge did not fully warrant the inference), had engaged largely in trade with the colonies of France and Spain, re-exporting the same goods to European ports. When this trade had existed without interruption for some years, the unexpected decision of the Lords of Appeal on the continuity of the voyage caused the seizure and condemnation of a vast number of American ships and cargoes.1

Opinions § 24. Phillimore adopts Mr. Justice Story's opinion with of Story respect to the rules of 1756 and 1793. This opinion was as and of Phillimore follows: Ist, That the coasting trade of a nation being by its nature exclusively national, neutrals cannot engage in it, when thrown open during war; but that the British extension of this doctrine to cases where a neutral traded between ports of the enemy, with a cargo taken in at a neutral country, was unjust; and 2nd, with respect to colonial trade, that, if a neutral engage in trade between the mother country and the colony which is thrown open merely in war, he is liable, in most instances, to the same penalty. But,' continues Story, the British have extended this doctrine to all intercourse with the colony, even from or to a neutral country, and herein it seems to me, they have abused the rule. This, at present, appears to me to be the proper limits of the rule, as to the colonial and the coasting trade; and the rule of 1756 (as it was at that time applied) seems to me well founded; but its late extension is reprehensible.' 2

Views of

Government

§ 25. The British extension of the rule of 1756 to the docA nerican trine of 1793, and its subsequent application to the ruin of American commerce, drew from the Government of the United States an earnest and energetic remonstrance. From the grounds then assumed, with respect to the rule of 1793, there is no reason to believe that this government will ever depart.

1

Duer, On Insurance, vol. i. pp. 719-725; Kent, Com. on Am. Law, vol. i. p. 85, note; the 'Maria,' 5 Rob., 365.

2 Phillimore, On Int. Law, vol. ii. §§ 215, 225; Story, Life and Letters, vol. i. pp. 287, 288.

They were taken on full deliberation, and maintained at the time with signal ability, and they have since been adopted by all her ablest statesmen and writers on public law. Some have boldly attacked the doctrine of 1756, as unsanctioned by the law of nations, but it has now become the settled conviction that its main principles, when properly limited and distinguished from that of 1793, are just and correct. At the same time the British rule is regarded as an innovation so unjust and ruinous to neutral commerce, that neutral States are bound to resist any new attempt to force its application. There is no doubt that the United States would now regard any attempt to apply it to American commerce as an act of direct and immediate hostility.1

British

§ 26. But there is very little probability that Great Britain Change of will attempt to revive it in any future war, from the great colonial change in British opinion on this subject, and more particularly policy from the changes which have since been made in the colonial system of the powers of Europe. The colonial trade of England being now open to the navigation of the world, the theory on which the restriction of 1793 was based necessarily falls to the ground. It is enacted by 39 and 40 Vict., c. 36 (re-enacting the provisions of former statutes), that all trade by sea from any one port of the United Kingdom to any other port thereof shall be deemed to be a coasting trade, and all ships while employed therein shall be deemed to be coasting ships, and no port of the United Kingdom, however situated with regard to any other port, shall be deemed in law with reference to each other to be ports beyond the seas (s. 140). Every foreign ship in the coasting trade is subject to the same laws, rules, and regulations to which British ships are subjected, and to no higher rates (s. 141). Every coasting ship is confined to the coasting voyage (s. 142). And by 32 Vict., c. 11 (1869), the legislature of a British possession may by Act or ordinance regulate its own coasting trade, subject to the provisions of this Act.

1 Monroe, Letter to Lord Mulgrave, Sept. 23, 1805; Madison, Letter to Monroe and Pinkney, May 17, 1805; Wheaton, Elem. Int. Law, pt. iv. ch. iii. 27; Wheaton, Hist. Law of Nations, pp. 374 et seq.; Wheaton, Reports, vol. i. Appendix, note iii. p. 506; Story, Life and Letters, vol. i. p. 287.

Object and

of com

belli

CHAPTER XXIX

PACIFIC INTERCOURSE OF BELLIGERENTS

1. Object and character of commercia belli-2. General compacts and conventions-3. Suspension of arms, truces and armistices-4. Authority to make them—5. Acts of individuals ignorant of their existence 6. What may be done during a truce-7. Conditional and special truces-8. Their interpretation-9. Renewal of hostilities10. Capitulations—11. Individual promises—12. Passports and safeconducts-13. When and how revoked-14. Their violation, how punished-15. Safeguards-16. Cartels for prisoners-17. Cartel ships -18. Their rights and duties-19. Ransom of prisoners of war— 20. Ransom of captured property-21. In England-22. Ransom bill binding on allies-23. If ransomed vessel be lost or stranded-24. Recapture of ransomed vessel and ransom bill-25. Hostages for captures and prisoners-26. Suits on contracts of ransom—27. Flags of truce.

§ 1. THE usage of civilised nations has introduced a certain character friendly intercourse in war, technically called commercia belli, mercia by which its violence may be allayed, so far as is consistent with its object and purpose, and a way be kept open which may lead, in time, to an adjustment of differences, and ultimately to peace. Were all pacific communications between armies absolutely cut off, war would not only become unnecessarily cruel and destructive, but there would be no chance of terminating it, short of the total annihilation of the belligerents. Grotius has devoted an entire chapter to prove, by the concurring testimony of all ages and all nations, that good faith should always be observed between enemies in war. Even Bynkershoek, who adopted sentiments respecting the rights of war now happily rejected by the whole civilised world, prohibits perfidy towards an enemy, 'not,' he says, 'because anything is unlawful towards an enemy, but because, when our faith has been pledged to him, so far as the promise extends, he ceases to be an enemy.' Vattel says that the faith of promises made to an enemy is absolutely

essential for the common safety of mankind, and is, therefore, held sacred by all civilised nations.1

§ 2. Belligerent States, and their armies and fleets, fre- Military compacts quently have occasion, during the continuance of a war, to and conenter into agreements of various kinds; sometimes for a ventions general or partial suspension of hostilities, for the capitulation of a place, or the surrender of an army, for the exchange of prisoners, or the ransom of captured property; and sometimes for the purpose of regulating the general manner of conducting hostilities, or the mode of carrying on the war. All these agreements, of whatsoever kind, are included under the general name of compacts or conventions. These compacts, which relate to the pacific intercourse of the belligerents, suppose the war to continue; those which put an end to it, come under the general head of treaties of peace, which have been considered in chapter ix.

sions of

and con

§ 3. If the cessation of hostilities is only for a very short Suspen period, or at a particular place, or for a temporary purpose, arms, such as for a parley, or a conference, or for removing the truces wounded, and burying the dead, after a battle, it is called a ventions suspension of arms. This kind of compact may be formed between the immediate commanders of the opposing forces, and is obligatory upon all persons under their respective commands. Even commanding officers of detachments may enter into this kind of compact, but such an agreement can only bind the detachment itself; it cannot affect the operations of the main army, or of other troops not under the authority of the officer making it. A suspension of arms is only for a temporary purpose, and for a limited period. If the suspension of hostilities is for a more considerable length of time, or for a more general purpose, it is called a truce or an armistice. Truces are either partial or general. A partial truce is limited to particular places, or to particular forces, as

1 Grotius, De Jure Bell. ac Pac., liv. iii. ch. xxi.; Bynkershoek, Quæst. Jur. Pub., cap. i.; Vattel, Droit des Gens, liv. iii. ch. x. § 174.

2 The following were among the regulations issued by the Navy Department 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 sacred character, and the use of it to obtain knowledge or information surreptitiously against the interests or wishes of an enemy is to abuse it, and will subject the bearer to punishment as a spy.

2. The senior officer present is alone authorised to despatch, or to

Authority to make

them

a suspension of hostilities between a town or fortress and the forces by which it is invested, or between two hostile armies or fleets. But a general truce applies to the general operations of the war, and whether it be for a longer or shorter period of time, it extends to all the forces of the belligerent States, and restrains the state of war from producing its proper effects, leaving the contending parties, and the questions between them, in the same situation in which it found them. Such a truce has sometimes been called a temporary peace, but when we call it so,' says Rutherforth, 'we use the word peace only in opposition to acts of war, and not in opposition to a state of war.''

§ 4. Such a general suspension of hostilities throughout the nation, can only be made by the sovereignty of the State, either directly or by authority specially delegated. Such authority not being essential to enable a general or commander to fulfil his official duties, is never implied, and, in such a case, the enemy is bound to see that the agent is specially authorised to bind his principal. But a partial

admit communication by, a flag of truce; a vessel in a position to discover the approach of such a flag is to communicate the fact promptly.

3. Flags of truce should never be permitted to approach sufficiently near to acquire useful information. The firing of a gun, by the flag or senior officer's ship, is generally understood as a warning not to approach

nearer.

4. On the water, a flag of truce should be met at a suitable distance by a boat or vessel from the senior officer's vessel, in charge of a commissioned officer, having a white flag plainly displayed from the time of leaving until her return. In despatching a flag of truce the same precautions are to be observed.

'5. When a flag of truce is admitted, the ensign is always to be hoisted, and a white flag at the fore on board the vessel of the senior officer present, when no engagement is in progress, and kept flying until the flag of truce from the enemy has returned within his lines.

'6. A flag of truce cannot insist on being admitted, and should rarely be used, during an engagement; if then admitted, there is no breach of faith in retaining it. Firing is not necessarily to cease on the appearance of a flag of truce during an engagement, and should any person connected with it be killed, no complaint can be made. If, however, the white flag should be exhibited as a token of submission, firing is to cease.

'7. An attacking force should avoid firing on hospitals, whenever they are designated by flags or other symbols understood. It is an act of bad faith, amounting to infamy, to hoist the hospital protective flag over any other building, unless the attacking force should request or consent that it might be used, in order to spare edifices dedicated to science or literature, or containing works of art.'

Rutherforth, Institutes, b. ii. ch. ix. § 22; Martens, Précis du Droit des Gens, § 293; a league is an alliance, offensive or defensive, but generally offensive.