Sec. 43. Capitulations.

Sec. 44. Flags of

truce.

lingers freely in the enemy's country, or within his lines, after this date, is obnoxious to the law of war. But forced delay on account of illness, or other imperative reason, would exempt such a one from harsh treatment."*

"If the truce has been concluded for an indefinite, or for a very long period, good faith and humanity concur in requiring previous notice to be given to the enemy of an intention to terminate what he may justly regard as equivalent to a treaty of peace."+

"Capitulations for the surrender of troops and fortresses fall naturally within the scope of the general powers intrusted to military and naval commanders. Stipulations between the governor of a besieged place and the general or admiral commanding the forces by which it is invested, if necessarily connected with the surrender, do not require the subsequent sanction of their respective sovereigns. Such are the usual stipulations for the security of the religion and privileges of the inhabitants, that the garrison shall not bear arms against the conquerors for a limited period, and other like clauses properly incident to the particular nature of the transaction. But if the commander of a fortified town undertake to stipulate for the perpetual cession of that place, or enter into other engagements not fairly within the scope of his implied authority, his promises amounts to a mere sponsion."‡ That is, an agreement not binding unless ratified by the sovereign authority.

Such was the convention entered into by General Sherman and General Johnston, noticed in the preceding section.

"A flag of truce is used when a belligerent wishes to enter into negotiations with his enemy. The person charged with the negotiation presents himself to the latter accompanied by a drummer or a bugler and a person bearing a white flag. As belligerents have the right to decline to enter into negotiations, they are not obliged to receive a flag of truce; but the persons bearing it are inviolable; they must not therefore be turned back by being fired upon, and any one who kills or wounds them intentionally is guilty of a serious infraction of the laws of war. "If, however, they present themselves during the progress of an engagement, a belligerent is not obliged immediately to put

*Woolsey, Sec. 149. Lawrence's Wheaton, p. 687.

Ibid. p. 687.

a stop to his fire, the continuance of which may be of critical importance to him, and he cannot be held responsible if they are then accidentally killed. If the enemy receives persons under the protection of a flag of truce he engages by implication to suspend his war with respect to them as long as the negotiation lasts; he cannot therefore make them prisoners, and must afford them the means of returning safely within their own lines; but a temporary detention is permissible if they are likely to be able to carry back information of importance to their army. Effectual precautions may always be taken to prevent the acquisition of such knowledge; bearers of flags of truce may for example be blindfolded, or be prevented from holding communication with other persons than those designated for the purpose of having intercourse with them.

to obtain infor

mation.

"It is a necessary consequence of the obligation to conduct Must not be used the non-hostile intercourse of war with good faith, that a belligerent may not make use of a flag of truce in order to obtain military information; and though its bearer is not expected to refrain from reporting whatever he may learn without effort on his own part, any attempt to acquire knowledge surreptitiously exposes him to be treated as a spy. Deserters, whether bearing or in attendance upon a flag of truce, are not protected by it; they may be seized and executed, notice being given to the enemy of the reason of their execution."*

"In the Instructions to the United States Armies of April 24, 1863, Sec. 14, it is declared, that 'if it be discovered and fairly proved that a flag of truce has been abused for surreptitiously obtaining military knowledge, the bearer of the flag thus abusing his sacred character is deemed a spy,' yet great caution is enjoined in convictions of that description, on account of the great utility of flags of truce, and the good faith to be observed towards as well as by their bearers."†

The Navy Regulations of the United States, published in 1876, contain full instructions to officers as to the use and reception of flags of truce.

"Passports and safeguards, or safe-conducts, are letters of Sec. 45. Passprotection, with or without an escort, by which the person of an enemy is rendered inviolable. These may be given to carry on

ports, safeguards and safe-conducts.

*Hall, p. 465.

† Dana's Wheaton, p. 345, n.

Chap. XXI, p. 137.

the peculiar commerce of war, or for reasons which have no relation to it, which terminate in the person himself.”*

They may also be issued to protect vessels from capture, or to exempt any species of property from hostile seizure.

The right to exempt the persons and property of the enemy's subjects from the operations of war is vested in the sovereign authority of a State. "This sovereign authority may be vested in military and naval commanders, or in certain civil officers, either expressly or by inevitable implication from the nature and extent of their general trust. Such documents are to be interpreted by the same rule of liberality and good faith with other acts of the sovereign power."†

A safeguard or passport issued by one commander must be respected by all others of the same State.

Any person holding a passport who remains within the enemy's lines beyond the period for which it was granted, may be treated as a prisoner of war, unless some unavoidable detention can be shown. If he acts as a spy, or is discovered in any intrigue, he forfeits the protection of his passport, as he thus abuses it to commit an act of hostility. Even where the officer giving the passport is privy to his design the case is the same. Arnold's pass to André could be of no avail when once his true character was brought to light."S

Passports are not transferable, since the persons to whom they are granted cannot know if the authority issuing them would consent to their use by others.

'If the safe-conduct is granted, not for persons, but for certain effects, those effects may be removed by others besides the owner. The choice of those who remove them is indifferent, provided there do not lie against them any personal exception sufficient to render them objects of just suspicion in the eye of him who grants the safe-conduct, or to exclude them from the privilege of entering his territories."||

A passport protects the person holding it, not only within the territory of the grantor, but also wherever he has control by the presence of his forces.

Woolsey, Sec. 147. Bynkershoek, p. 195.

† Lawrence's Wheaton, p. 690.

? Woolsey, Sec. 147.

Vattel, p. 416.

Vattel, p. 416.

Ibid.

bardments.

"In bombarding towns, it is difficult to spare the finest edifices. Sec. 46. BomAt present we generally content ourselves with battering the ramparts and defences of a place. To destroy a town with bombs and red-hot balls is an extremity to which we do not proceed without cogent reasons. But it is nevertheless warranted by the laws of war, when we are unable by any other mode to reduce an important post, on which the success of the war may depend, or which enables the enemy to annoy us in a dangerous manner. It is also sometimes practiced when we have no other means of forcing an enemy to make war with humanity, or punishing him for some instance of outrageous conduct. But it is only in cases of the last extremity, and with reluctance, that good princes exert a right of so rigorous a nature."

"Modern usage in sieges and storms, though in some respects very harsh, shows an advance in humanity. There is a distinction to be made between forts and fortified towns. Any means of assailing a fort may be used that are likely to be successful, but many generals abstain from bombarding a garrisoned town, and resort to storming in order to save the inhabitants; or if the nature of the place or anything else renders bombardment necessary, they give notice to the inhabitants, that they may retire to a place of safety. It was a proceeding worthy only of barbarians when Suchet drove the people of Lerida, in Catalonia, into the citadel, then threw shells among the unprotected multitude, and compelled the governor to capitulate by such an appeal to his humanity. Formerly, it was regarded somewhat in the light of a crime if a commander of a fortress held out as long as he could, and instances may be adduced where such officers were put to death for their obstinacy. Now, in ordinary cases, surrender at discretion only reduces the soldiers to the state of prisoners of war. A commander who should blow up the works of his fortress, and break through a blockading army, would, according to the opinion of some, be doing an act contrary to the laws of war; but this does not appear to be true, although the blockader might be justified in refusing quarters to those, or at least to those officers who should seek thus to deprive them of the fruit of their toils."+

*Vattel, p. 368.

† Woolsey, Sec. 132.

Modern feeling.

The capture of Plevna by the Russians, in the late Turkish war, showed a marked change in feeling in this respect. The Turkish commander, Osman Pasha, was treated with every respect and consideration by the captors, as a gallant enemy who had used every means to prolong the defence of his post, and at last, in despair of holding out longer, attempted to break through the Russian lines with his command.

An officer who should destroy or disable the guns of a fort or injure the works, after a surrender, or while negotiations were in progress for a surrender, would be guilty of an act of perfidy that would merit severe punishment.

The bombardment of Charleston, S. C., in 1863, by General Gillmore, was undertaken in connection with operations for the reduction of the works defending that place, and was clearly in accordance with the laws of war, although protests were made by the Confederate authorities. Ample notice was given of the intention to open fire on the city, in order that non-combatants might withdraw, and the notice of bombardment was given only after a formal demand had been made for the surrender of the forts and batteries that no longer served to protect it. The bombardment of the city of Strasburg by the Prussians in 1870 was a similar case.

The bombardment of the unfortified city of Valparaiso, by the Spanish fleet, in March, 1865, was in consequence of an insult to the Spanish flag, followed by war, and a persistent refusal on the part of the Chilian government to give any satisfaction. The Admiral commanding, who was also entrusted with diplomatic functions, was instructed to make demand for a salute to the Spanish flag by a fixed date, and to enforce this demand, if necessary, by a bombardment of Valparaiso. The demand was made accompanied by a notice that one month from its date the Spanish fleet would move into the harbor, and firing a blank charge, would wait an hour for the required salute before commencing the bombardment, when should it be refused, the vessels would open fire, directing their guns at the public buildings only. Notice was given that all private property would be respected as far as possible, and a request was made that churches and hospitals should be distinguished by flags that they might be carefully avoided.

"It has already appeared that the usages of naval warfare are