guished from that of 1793, are just and correct. At the same time, the British rule is regarded as a modern innovation, forming no part of the general and permanent code of international jurisprudence,- an innovation so unjust and ruinous to neutral commerce, that neutral states are bound to resist any new attempt to enforce 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. (Duer, On Insurance, vol. 1, p. 701; Monroe, Letter to Lord Mulgrave, Sept. 23d, 1805; Madison, Letter to Monroe and Pinkney, May 17th, 1806; Wheaton, Elem. Int. Law, pt. 4, ch. 3, § 27; Wheaton, Hist. Law of Nations, pp. 374, et seq.; Wheaton, Reports, vol. 1, appendix, note 3, p. 506; Story, Life and Letters, vol. 1, p. 287; Bello, Derecho Internacional, pt. 2, cap. 8, § 8.)

§ 26. But there is very little probability that Great Britain will attempt to revive it in any future war, not only on account of the resistance it will be certain to prevoke, and the exceedingly doubtful character of the rule itself, but from the great change in British opinion on this subject, and more particularly 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. Nevertheless, a treatise on international law would be very incomplete without an examination and discussion of a question so recently regarded of paramount importance, and which caused the condemnation of such a vast amount of American property. (Wheaton, Elem. Int. Law, pt. 4, ch. 3, § 27; Duer, On Insurance, vol. 1, p. 717; Phillimore, On Int. Law, vol. 3, § 212; Order in Council, April 15th, 1854; Edinburg Review, No. 203, art. 6.)

CHAPTER XXVII.

PACIFIC INTERCOURSE OF BELLIGERENTS.

CONTENTS.

1. Object and character of commercia belli-2 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-27. Conditional and special truces— 28. Their interpretation- 9. Renewal of hostilities-10. Capitulations- 11. Individual promises-12. Passports and safe conducts13. 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. Prohibited in England- 22. Ransom bill23. If ransom 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 civilized nations has introduced a certain friendly intercourse in war, technically called commercia belli, 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 bellige

rents. 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 civilized 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 civilized nations. (Grotius, de Jure Bel. ac Pac., liv. 3, ch. 21; Bynkershoek, Quaest. Jur. Pub., cap. 1; Vattel, Droit des Gens, liv. 3, ch. 10, § 174; Puffendorff, de Jur. Nat. et Gent., lib. 8, cap. 7, § 2; Virgil, Aeniad, 10, 532; Tacitus, Ann., lib. 14, cap. 33; Rutherforth, Institutes, b. 2, ch. 9, § 22; Phillimore, On Int. Law, vol. 3, §§ 97, et seq.; Heffter, Droit International, § 141.)

§ 2. Belligerent states, and their armies and fleets, frequently have occasion, during the continuance of a war, to enter into agreements of various kinds; sometimes for a 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 will be considered in another chapter. (Martens, Precis du Droit des Gens, § 290; Vattel, Droit des Gens, liv. 3, ch. 16, § 233; liv. 4, ch. 2, §9; Kent, Com. on Am. Law, vol. 1, pp. 159-168; Wheaton, Elem. Int. Law, pt. 4, ch. 2, §§ 18-28; Rayneval, Inst. du Droit Nat., etc., liv. 3, ch. 27; Bello, Derecho Internacional, pt. 2, cap. 9, §2; Burlamaqui, Droit de la Nat. et des Gens, tome 5, pt. 4, ch. 10.)

§3. If the cessation of hostilities is only for a very short period, or at a particular place, or for a temporary purpose,

such as for a parley, or a conference, or for removing the wounded, and burying the dead, after a battle, it is called a 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 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." (Puffendorf, de Jur. Nat. et Gent., lib. 8, cap. 7, § 3; Grotius, de Jur. Bel. ac Pac., lib. 3, cap. 21, §1; Rutherforth, Institutes, b. 2, ch. 9, § 22; Vattel, Droit des Gens, liv. 3, ch. 16, § 235; Martens, Precis du Droit des Gens, § 293; Wheaton, Elem. Int. Law, pt. 4, ch. 2, § 19; Garden, De Diplomatie, liv. 5, §16; Kent, Com. on Am. Law, vol. 1, p. 159.)

§ 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 authorized to bind his principal. But a partial

truce may be concluded between the military and naval commanders of the respective forces, without any special authority for that purpose, where, from the nature and extent of their commands, such authority is necessarily implied, as essential to the fulfilment of their official duties. If the commander, in making such a compact, has abused his trust to the advantage of the enemy, he is accountable to his own state for such abuse. "The nature of his trust implies," says Rutherforth, "that he has power to enter into a compact of this sort; and this power is sufficient to render the compact valid. The obligation that he is under, not to abuse his trust, regards his own state only, and not the enemy; and, consequently, it cannot effect the validity of the compact which he makes with the enemy." A case occurring in the recent war between the United States and Mexico, serves to point out the limitation of the foregoing rule, with respect to the authority of a commander to make a general truce or armistice. By the convention of February 29th, ratified by General Butler, March 5th, and published in general orders No. 18, March 6th, 1848, it was stipulated that the Mexican civil authorities, political, administrative, and judicial, were to be reëstablished and installed in their respective offices. The terms of the convention were general, and included the entire republic of Mexico. But California, although a part of the Mexican territory, had been organized into a separate military department, entirely independent of the general commanding in Mexico. Pico, the Mexican Governor of California, basing himself on the words of this convention, demanded of the American military governor of that department, to be reinstated and recognized in his official position and character. The American commander not only refused to comply with Pico's demand, but adopted pretty severe measures to prevent any attempt on his part to exercise authority in California. If the convention, entered into by General Butler in the capitol of Mexico, was really intended to include California, as its terms would seem to indicate, he, undoubtedly, exceeded his powers, and the armistice, so far as concerned California, was utterly null and void. (Kent, Com. on Am. Law, vol. 1, p. 159; Wheaton, Elem. Int. Law, pt. 4, ch. 2, § 20; Rutherforth, Institutes, b. 2, ch. 9, § 21;