CHAPTER VII, SECTION II.

CAPITULATIONS.

250. Military honor in.-H. R. Art. XXXV. Capitulations agreed upon between the contracting powers must take into account the rules of military honor.

Once settled, they must be scrupulously observed by both parties.1

The foregoing is the only article on the subject of capitulations in The Hague Rules, It will be observed that it refers solely to the question of military honor in such conventions. The rules concerning such capitulations must therefore be sought for outside of The Hague Conventions. For forms of capitulation see Appendices A, B, C, D, this chapter.

251. Definition.-A capitulation is an agreement entered into between commanders of belligerent forces for the surrender of a body of troops, a fortress, or other defended locality, or of a district of the theater of operations.

Capitulations are essentially military agreements, which involve the cessation of further resistance by the force of the enemy which capitulates. The surrender of a territory is frequently spoken of as an evacuation.

252. Powers of commanders. The commander of a fort or place and the commander in chief of an army are presumed to be duly authorized to enter into capitulations, being responsible to their respective governments for any excess of power in stipulations entered into by them. His powers do not extend beyond what is necessary for the exercise of his command. He does not possess power to treat for a permanent cession of the place under his command, for the surrender of a territory, for the cessation of hostilities in a district, beyond his command,3 or generally to make or agree to terms of a political nature or such as will take effect after the termination of hostilities.*

1 Marshall Blanco and the Spanish Government both disputed the right of Gen. Toral to capitulate at Santiago in 1898, But the Spanish Government was forced to recognize the validity of the capitulation, for a governor of a fortress may capitulate under his personal responsibility, without any authorization from his Government." War Rights on Land, Spaight, p. 249.

For abuse of powers such as surrendering upon too lenient terms or when he should not do so he is subject to trial under the laws or articles of war of his own country. Vide A. W., art. 42. 2 Vide Hague Convention, 1907, Actes, p. 25. "The competence of a commander to accept conditions of capitulation is limited to the troops immediately under his command, and does not necessarily extend to detached forts or to all the forts of a fortress." Land Warfare, Opp., par. 306.

The surrender of Gen. Lee did not include the other Confederate Armies, although subsequent surrenders were made in accordance with its terms."

The capitulation of Verdun Nov. 8, 1870, stipulated that the surrender was made on the express condition of the retrocession of the fortress and town to France on the conclusion of peace. This exceeded the powers of the contracting_commanders and created no obligation for their governments. Land Warfare, p. 67, par. 304 and notes.

In reply to a letter from Gen. Lee to Gen. Grant, 1865, proposing to submit the subjects of controversy between the belligerents to a military convention," President Lincoln, to whom the letter had been referred by Gen. Grant, replied:

"The President directs me to say to you that he wishes you to have no conference with Gen. Lee, unless it be for the capitulation of Lee's army, or on solely minor or purely military matters. He instructs me to say that you are not to decide, discuss, or confer upon any political question. Such questions the President holds in his own hands and will submit them to no military conferences or conventions. Meantime you are to press to the utmost your military advantage." Draper, Am. Civil War, Vol. III, p. 561, cited by Spaight, p. 250.

253. Forms of capitulations.-There is no specified form for capitulations. They may be concluded either orally or in writing, but in order to avoid disputes which may arise as to the terms thereof it is best, whenever possible, that they be reduced to writing. The convention should contain in precise terms every condition to be imposed; the time, manner, and execution should be laid down in the most precise and unequivocal terms. In case of an unconditional surrender following an assault the terms might be oral, but should be reduced to writing if practicable.

254. Subjects usually regulated. In the terms of capitulation the following subjects are usually determined:

(a) The fate of the garrison, including those persons who may have assisted them:

These are usually declared to be prisoners of war, but it frequently occurs that on account of their valorous resistance they are authorized to march out from the garrison with the "honors of war."

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1 For examples see Surrender of Belfort, in 1871; Bellair's Transvaal War, 1880-81, p. 272. At Potchefstrom, in 1881, the troops were allowed the honors of war. In 1855 the garrison at Kars marched out with the honors of war, but became prisoners.

(b) The disarming of the place and of the defenders:

It frequently occurs that the officers are allowed to retain their armis, equipment, and certain specified articles of personal property.2

2 The officers are not usually allowed to take their horses, although sometimes permitted to retain private mounts.

Mr. Spaight, in his Laws of War on Land, pp. 258-259, gives a table showing the disposition of certain property at Kars (1855), Vicksburg (1863), Appomattox (1865), Sedan (1870), Strasburg (1870), Metz (1870), Belfort (1871), Bitsche (1871), Avliar (1877), Wei-haiwei (1895), Santiago (1898), Manila (1898), Verliesfontein (1900). and Port Arthur (1905), as follows: War matériel, etc., surrendered entirely in every case but two, when only partially arms and troops, surrendered in all cases except three; officers' swords, retained in all

cases except at Wei-hai-wei; officers' private property, retained (at Sedan by paroled officers only): troops private property, retained (at Appomattox clothing only retained); officers' horses, surrendered in 8 cases, retained in 4 cases, private owned in 1 case, and 1 horse each in 1 case; troops' horses, surrendered in 10 cases, retained in 3 cases. (c) The turning over of the arms and matériel, and, in a proper case, the locating of the mine defenses, etc..

The French, Russian, and other Governments require that in every case the commander of the place must not surrender until he has destroyed all flags, but this should be done before signing the capitulation.

Gen. Stoessel destroyed all Russian flags at Port Arthur. (Ariga, 309-310.)

(d) Provisions relative to private property of prisoners, including personal belongings and valuables:

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Usually prisoners retain the ownership of their effects, personal belongings and valuables. However, they can be deprived temporarily of the possession of them as a measure of safety.*

Gen. Grant declined to permit Confederate officers at Vicksburg to take their servants (slaves) as private property. (Draper, Vol III, p. 52.) The Japanese permitted the men to take with them their tents and necessary personal belongings, the officers to take baggage within the limits of weights fixed for corresponding ranks in the Japanese Army, though reasonable excesses were not objected to. (Ariga, p. 312.) The Japanese declined to assume any responsibility for the private property of Russian officers. (Ariga, p. 325.), Vide ante as to prisoners, pars. 52-55.

(e) The evacuation of and taking possession of the surrendered place.

The provisions relative to the withdrawal of the defenders and the entering into possession by the besiegers are fixed in advance with absolute precision, according to the circumstances of each case.

Commissions are named for the delivery and taking possession, respectively."

The details for the evacuation and taking possession of Port Arthur were incorporated in an annex to the convention. For latter see Appendix D, this chapter.

(f) Provisions relative to the medical personnel, sick, and wounded.

• The provision with regard to the medical personnel, sick, and wounded is contained in Art. IX of the treaty of Port Arthur, Appendix D, this chapter, and conforms to the provisions of The Hague and Geneva Conventions.

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(g) Provisions for taking over the civil government and property of the place, with regard to the peaceable population.

These, together with the preparation of the lists of prisoners, repatriation of prisoners, etc., may be arranged in what is known as the appendix to the original terms of the convention.'

The civil and military archives may be left in the hands of the officials of the vanquished party. Land Warfare, Opp., par. 319

(h) Stipulations with regard to the immediate handing over to the besiegers of certain forts or places, or other similar provisions, as a pledge for the fulfillment of the capitulation.3

8 This was done at Paris and likewise at Port Arthur. See treaties, Appendix D, this chapter.

255. Damage or destruction of property prohibited after capitulation. So soon as a capitulation is signed, the capitulator has no right to demolish, destroy, or injure the works, arms, stores, or ammunition in his possession during the time which elapses between the signing and the execution of the capitulation, unless otherwise stipulated in same.1

1"Nothing, however, prevents a commander who intends to surrender from destroying fortifications, war material, and stores, the possession of which might assist the enemy, providing he does so before signing the capitulation."

Marshal Bazaine was tried for surrendering Metz and was sentenced to death and military degradation for treating with the enemy "without having previously done all that duty and honor required." He was charged, among other things, with failing to destroy his arms and ammunition before surrendering. Cassell's History, Vol. I, p. 296. Hozier, Franco-Prussian War, Vol. II, p. 121. Cited in Spaight, War on Land, p. 252.

256. Denunciation of capitulation.—A capitulation can be denounced and hostilities immediately resumed for failure to execute, any clause which has been agreed upon, or in case it was obtained through a breach of faith.1

1 Land Warfare, Opp., p. 324. It may not, however, be annulled, because one of the parties has been induced to agree to it by ruse, or from motives for which there is no justification, or by his own incapacity or feebleness."

In 1898 the Spanish Government contended that the capitulation of Manila, which occurred on the 14th, was null and void, because the protocol which was signed two days before, on August 12, stipulated that the hostilities should cease. The United States claimed that by the terms of the protocol it was to take effect upon receipt of notice of same; that notice had been immediately dispatched, but was not received in Manila before the capitulation, and added further that " as to the nature of the right by which the United States holds the city, bay, and harbor of Manila, it is the opinion of this Government that it is immaterial whether the occupation is to be considered as existing by virtue of the capitulation or by virtue of the protocol, since in either case the powers of the military occupant are the same. Vide Dig. Int. Law, Moore, sec. 1160. Mr. Oppenheim says in this connection "A capitulation which took place after a general armistice has been agreed upon, and of which the parties to the capitulation had had no knowledge, is null and void, unless the armistice stipulated cessation of hostilities from the time when notification reaches the different forces concerned, and not from the date of signature." Land Warfare, par. 325.

APPENDIX A.

CAPITULATION AT METZ, 1870.

PROTOCOL.

Between the undersigned, the chief of the staff of the Prussian Army before Metz, and the chief of the staff of the French Army in Metz, both being delegated with full powers by H. R. H. General of Cavalry Prince Frederick Charles of Prussia, and by H. E. the Commander in Chief, Marshal Bazaine, the following agreement has been ratified:

ARTICLE I. The French Army under the orders of Marshal Bazaine are prisoners of war.

ART. II. The fortress and the town of Metz, with all the forts, matériel of war, stores of all kinds, and all public property will be handed over to the Prussian Army in the same condition in which it stands at the time of signing this agreement. Forts St. Quentin, Plappeville, St. Julien, Queuleu, and St. Privat, as well as the Mazelle Gate (Strassburg Road) will be handed over on Saturday, the 29th of October, at noon to the Prussian troops. At 10 a. m. that day artillery and engineer officers, with some noncommissioned officers, will be admitted into the above-mentioned forts for the purpose of taking over the powder magazines and rendering harmless any mines that might exist.

ART. III. The arms, as well as the whole of the war matériel of the army, consisting of the colors, eagles, cannon, mitrailleuses, horses, money chests, military wagons, ammunition, etc., will be handed over, in Metz and in the forts, to a commission appointed by Marshal Bazaine, for the purpose of being transferred immediately after to Prussian commissaries.

The troops, disarmed, will be drawn up by regiment or by corps, and will be brought in parade order to the places which shall be indicated for each corps.

The officers will then return to the lines of the intrenched camp or to Metz, but on the condition that they are hereby bound on their word of honor not to quit Metz without orders from the Prussian commandant.

The troops will then be conducted by their noncommissioned officers to their places of bivouac.

The soldiers will retain their knapsacks, effects, and camp equipment (tents, blankets, cooking utensils, etc.).

ART. IV. All generals and other officers, in addition to those military officials holding the relative rank of officers, who give their word of honor in writing not to serve against Germany. during the present war, nor to act against its interests in any other manner, will cease to be prisoners of war.