The Act 27 & 28 Vict. c. 25, however, cited as "The Naval Prize Act, 1864" (h), so provides for the ransom of property captured by the enemy, that it shall be deemed legal or illegal to effect such ransoms according as an Order in Council shall declare. § 45 runs as follows:

"Her Majesty in Council may from time to time, in relation to any war, make such orders as may seem expedient, according to circumstances, for prohibiting or allowing, wholly or in certain cases, or subject to any conditions or regulations or otherwise, as may from time to time seem meet, the ransoming, or the entering into any contract or agreement for the ransoming, of any ship or goods belonging to any of her Majesty's subjects, and taken as prize by any of her Majesty's enemies.

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Any contract or agreement entered into, and any bill, bond, or other security, given for ransom of any ship or goods, shall be under the exclusive jurisdiction of the High Court of Admiralty as a Prize Court (subject to appeal to the Judicial Committee of the Privy Council), and if entered into or given in contravention of any such Order in Council, shall be deemed to have been entered into or given for an illegal consideration.

"If any person ransoms, or enters into any contract or

agreement for ransoming, any ship or goods, in contravention of any such Order in Council, he shall, for every such offence, be liable to be proceeded against in the High Court of Admiralty, at the suit of her Majesty in her office of Admiralty, and on conviction to be fined, in the discretion of the Court, any sum not exceeding five hundred pounds."

(h) The Act will be found in the Appendix.

In the absence of an Order in Council, it is to be presumed that the law stands as is expressed in $$ 42-44 of the Act of 1854, already quoted, viz., that all ransom is primâ facie illegal. This principle is in accord with the general policy of the European powers, but it would seem that in the United States, ransoms have never been prohibited by Congress.

The precise nature of the circumstances which shall " appear to the court to be such as to justify" the ransoming, cannot be laid down. Sir W. Scott, in The Ships taken at Genoa (i), in declaring that "even ransoms, under circumstances of necessity, are still allowed," forbore to enlarge upon this text, and the circumstances of the particular case are not such as to be very valuable as a precedent. Lord Keith, on the capitulation of Genoa, seized some five hundred vessels lying in the harbour, leaving it to the owners of each vessel to show that their property was neutral and had not broken the blockade which had been established for a considerable time. On the subsequent evacuation of the port, Lord Keith demanded the sum of 500,0007., as an equivalent for all ships in the port. "To carry all the ships away was impossible, yet he had a right to take away the value of all, as having a right to the possession," said the learned judge. On the Genoese declaring their inability to raise any such sum as that demanded, Lord Keith agreed to accept 17,0007., and this was paid to him. Three years afterwards the Genoese raised the plea that the terms of the capitulation, exempting property generally from seizure, exempted the ships, and that the seizure was consequently illegal. Sir W. Scott held, as to this, that ships are a species of property sui generis, and are not included by mere general terms, however comprehensive. The claimants having raised the further plea that the trans

(i) 4 Rob. 388.

action constituted a ransom (though it is not easy to see how such a plea, even if successful, could benefit them), and that ransom was prohibited by British law, his Lordship delivered himself as above, adding, however, that the money-proceeds must go to the Crown, the Prize Act giving to captors only ships, goods, &c., afloat,-whereas this was a sum of money.

The above is an instance, it should be noted, of restoring, for a money-payment, property captured from the enemy, a transaction to be more favourably regarded than the ransom of property captured by the enemy; for while in the latter case there may always be the possibility or even the probability of a recapture by British cruisers, in the former the acceptance of a money equivalent (it should be an equivalent) operates to practically defeat any such chance of recapture on the part of the enemy.

The American Courts, in Jecker v. Montgomery (k), when referring to the duty of captors to bring in their prizes for adjudication, gave utterance to remarks useful as throwing some little light on the subject of justification of ransom. "There are cases," said Mr. Justice Taney, "where, from existing circumstances, the captors may be excused from the performance of this duty, and may sell or otherwise dispose of the property before condemnation. And where the commander of a national ship cannot, without weakening inconveniently the force under his command, spare a sufficient prize crew to man the captured vessel, or where the orders of his government prohibit him from doing so, he may lawfully sell or otherwise dispose of the captured property in a foreign country, and may afterwards proceed to adjudication in a Court of the United States." It must, however, be remembered that ransom is apparently not illegal by United

(k) 13 Howard, 115.

States law. Under the present greatly altered conditions of naval warfare, in which seamen and marines have been largely supplanted by machinery and machine guns, it will necessarily be a difficult matter to spare men for the navigation of prize ships to the extent practised in former days. So that unless the circumstances justifying release to the enemy, for ransom money, should be liberally regarded by Orders in Council, captors will often have to choose between letting their prizes go scot free on the one hand, or wantonly destroying them on the other. Possibly the framers of the 1864 Act had this contingency in view when they decided to provide for a relaxation of the stringency of the Act passed in 1854.

But it was formerly a common practice to ransom British ships taken by the enemy, by delivering to the captor what was called a ransom bill. This secured to him the price agreed upon, and operated both as a bill of sale to the original owners and as a protection to the ship against other cruisers of the enemy during the remainder of her voyage. A hostage was likewise delivered to the captor as security for the punctual payment of the stipulated sum. Actions at common law were formerly maintained upon ransom bills (1); but inasmuch as ransom has since become unlawful, no action can now be supported by such bills. Moreover, it was in Anthon v. Fisher (m) decided that an alien enemy cannot sue for any right claimed to be acquired by him in actual war: and, as we have seen above, persons who have given such a ransom bill are primâ facie liable to heavy penalties. Previous to this the case of Ricord v. Bettenham (n) had established the contrary. In this case the master of an English vessel,

(1) Park's Mar. Insce. 8th ed. p. 154.

(m) 2 Doug. 649, an. 1781. See also The Hoop, 1 Rob. 196; also Antoine v. Morshead, 6 Taunt. 237, an. 1815.

(n) 3 Burr. 1734, an. 1765.

on obtaining a release from the French privateer which had captured his vessel, gave to the Frenchman a ransom bill, and at the same time handed over his mate, Bell, as a collateral security. The unfortunate hostage having died in prison, the defendants pleaded that the plaintiff had by this event lost his right of action; that, being at the time of the contract an alien enemy, he himself could not sue on the bill, and that the action should have been brought by the mate. The Court, however, found for the plaintiff, presumably on the ground that such a contract was valid among the other nations of Europe, and was not discharged by the death of the hostage, who was merely a collateral security.

Emerigon (p. 377), treating on this subject, writes as follows:-"The ransom bill is lawful and binding in itself. It is only for greater precaution that the captor fortifies himself with a hostage, whose person thus becomes both surety and pledge for the promise made. If this hostage has the baseness to escape by flight, or should he come to die, the promise would not the less exist." Lord Mansfield also, in Cornu v. Blackburne (a), emphatically declared his opinion that the contract was "worthy to be sustained by sound morality and good policy, and as governed by the law of nations and the eternal rules of justice." Sir W. Scott, however, in a subsequent case (p), observed that "even in cases of ransom the ransom could not be put in suit on the part of the enemy: proceedings were always carried on against the owner in the name of the hostage suing for his liberty"; but this observation is scarcely in accord with the decision in Ricord's case, supra.

The ordinary procedure in case of ransom is as follows:The captor, on restoring the captured vessel to the master, takes from him a ransom bill, in which the master binds

(0) 2 Doug. 641, an. 1781.

(p) The Rebecca, 5 Rob. 102, an. 1804.