§ 10. Capitulations are agreements entered into by a commanding officer for the surrender of his army, or by the governor of a town, or a fortress, or particular district of country, to surrender it into the hands of the enemy. Capitulations usually contain stipulations with respect to the inhabitants of the place which is surrendered, the security of their religion, property, privileges and franchises, and also with respect to the troops or garrison, either allowing them to march out with their arms and baggage, with the honours of war, or requiring them to lay down their arms and surrender as prisoners of war. The general phrase with all the honours of war,' is usually construed to include the right to march with colours displayed, drums beating, etc. It is proper, however, that such matters should be precisely stated in the articles of capitulation. The authority to make capitulations falls within the scope of the general powers of the chief commander of the military or naval forces, or of the town, fortress, or district of country included in the capitulation. The power of the general or admiral to enter into an ordinary capitulation, the same as in the case of a truce, is necessarily implied in his office. So, of the chief officer of a town, fortress, or district of country. The governor of a town,' says Rutherforth, is the commander of the garrison, that is, of an army employed for the particular purpose of defending the town. The nature, therefore, of his trust implies, that his compacts about surrendering the town will bind himself and the garrison. If he surrenders it when he might have defended it, or upon worse terms than he might have made, he is accountable to his own State for his misconduct; but the abuse of his power does not affect any compact which he makes, in consequence of that power.' But if unusual and extraordinary stipulations are inserted in the capitulation which are not within the ordinary and implied powers of the officer making it, they are not binding either upon the State or upon the troops. For example, if the general should stipulate that his troops shall never bear arms against the same enemy, or, if the governor of a place should agre to cede it to the enemy as a conquest, such agreements, not coming within his implied powers, would be null and void unless special authority to that effect had been given to him

or his acts should subsequently receive the sanction of his government.1

§ 11. Small detached parties or individuals, whether belonging to the military service or not, who happen to fall in with the enemy in a place distant from succour or any superior officer, are left to their own discretion and may, so far as con

1 Rutherforth, Institutes, b. ii. ch. ix. § 21; Martens, Précis du Droit des Gens, §§ 291, 295; Burlamaqui, Droit de la Nat. et des Gens, tome v. pt. iv. ch. xii.; Phillimore, On Int. Law, vol. iii. § 121; La Gloire,' 5 Rob., p. 197; Ompteda, Litteratur, etc., t. ii. p. 648; Moser, Versuch, etc., t. ix. pt. i. pp. 157, 176; Heffter, Droit International, § 142.

The Brussels Conference, 1874, declares-Art. 46. The conditions of capitulations shall be discussed by the contracting parties. These conditions should not be contrary to military honour. When once

settled by a Convention they should be scrupulously observed by both sides.

In April, 1865, General Grant wrote to General Lee that he proposed to receive the surrender of the Army of Northern Virginia on the following terms, viz. :

1. That rolls of all the officers and men were to be made in duplicate, one copy to be given to an officer of the selection of the former, the other to be retained by whomsoever the latter might appoint.

2. That the officers give their individual paroles not to take arms against the Government of the United States until properly exchanged, and each commander of a company or regiment to sign a like parole for his men. The arms, artillery, and public property to be parked and stacked, and turned over to the officers appointed by the former to receive them. That this do not include the side-arms of the officers, nor their private horses or baggage.

3. That, this being done, each officer and man shall be allowed to return to his home, and shall not be disturbed by the United States authority so long as they observe their paroles and the laws in force where they reside.

General Lee accepted these terms on the same day, and the other rebel armies subsequently surrendered on substantially the same terms.

By an agreement made the same month between General Johnston, commanding the Confederate army, and Major-General Sherman, commanding the army of the United States, the Confederate armies then in existence were to be disbanded and conducted to their several State capitals, therein to deposit their arms and public property in the State arsenal; and each officer and man to agree to cease from acts of war, and to abide the action of both State and Federal authorities. The number of arms and munitions of war to be reported to the Chief of Ordnance at Washington, subject to the future action of the Congress of the United States, and in the meantime to be used solely to maintain peace and order within the borders of the different States. The Executive of the United States to recognise the several State governments, on their officers and legislatures taking the oaths prescribed by the Constitution of the United States. The Federal Courts in the several States to be re-established; the people and inhabitants of those States to be guaranteed their political rights and franchise so far as the Executive could do so. Executive authority of the Government of the United States not to disturb any of the people by reason of the war, so long as they lived in peace and quiet. In fact, a general amnesty to be established.

The

cerns their own persons, do everything which a commander might do with respect to himself and the troops under his command. Promises made by individuals under such circumstances, if confined to their own persons and within the sphere of a private individual, are valid and binding, and the sovereign has no right to release them from their obligations, or compel them to violate the compact. For, when a subject can neither receive his sovereign's orders, nor enjoy his protection, he resumes his natural rights, and may provide for his safety by any just and honourable means in his power. Individual promises of this kind, made with competent powers, are of as binding a nature as truces and capitulations, and the good of the State equally requires that faith be kept on such occasions as in more formal agreements. Thus, a prisoner who is released on parole, is bound to observe it with scrupulous punctuality, nor can the sovereign oppose such observance of his engagement. But if a soldier should be made prisoner in the vicinity of his commander and while under his immediate orders, he is not properly the master of his own acts or left to his own discretion, and, under ordinary circumstances, he should wait as prisoner of war, till his superiors can treat for his exchange or release. But if he fall into the hands of a barbarous enemy, and, to avoid a cruel imprisonment, or to save his life, he promises a ransom or services not treasonable, his agreement should be respected by his superiors.1

1 Vattel, Droit des Gens, liv. iii. ch. xvi. § 264.

The Brussels Conference, 1874, declares-Art. 31. Prisoners of war may be released on parole if the laws of their country allow of it, and in such a case they are bound on their personal honour to fulfil scrupulously, as regards their own government, as well as that which made them prisoners, the engagements they have undertaken. In the same case their own government should neither demand nor accept from them any service contrary to their parole. Art. 32. A prisoner of war cannot be forced to accept release on parole, nor is the enemy's government obliged to comply with the request of a prisoner claiming to be released on parole. Art. 33. Every prisoner of war liberated on parole and retaken carrying arms against the government to which he had pledged his honour, may be deprived of the rights accorded to prisoners of war, and may be brought before the tribunals.

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 II.-1. Paroling must always take place by the interchange of signed duplicates of a written document, in which the

§ 12. A passport, or safe-conduct, is a document granting to persons or property an exemption from the operations of war, for the time, and to the extent prescribed in the instrument itself. The term passport is applied to personal permissions given on ordinary occasions, both in peace and war, where there is no reason why the parties named in them should not go where they please; while safe-conduct is the name usually given to the instrument which authorises an enemy, or an alien, to go into places where he could not go without danger, or to carry on trade forbidden by the laws of war. The word passport, however, is more generally applied to persons, and

names and rank of the persons paroled are correctly and distinctly stated. Any one, who intentionally mistates his rank, forfeits the benefit of his parole, and is liable to punishment.

2. None, but commissioned officers, can give parole for themselves and their command, and no inferior officer can give parole without the authority of his superior, if within reach.

3. Paroling of entire bodies of men after a battle or capture, and the dismissal of large numbers of prisoners, with a general declaration that they are paroled, is not permitted.

4. An officer who gives a parole for himself, or his command, without referring to his superior, when it is in his power to do so, will be considered as giving aid and comfort to the enemy, and may be regarded as a deserter, and be punished accordingly.

5. For an officer the pledging of his parole is his individual act, but no wholesale paroling by an officer for a number of inferiors in rank, in violation of paragraph 1, is permitted, or will be considered valid.

6. No person belonging to the navy, or marine corps, can give his parole except through a commissioned officer. Individual paroles not given through an officer, are not only void, but make the individuals giving them amenable to punishment as deserters. The only admissible exception is, when individuals, separated from their commanders, have suffered long confinement, without the possibility of being paroled through an officer.

7. No prisoner can be forced by a hostile government to pledge his parole, and threats or ill-treatment to force giving parole, is contrary to the laws of war.

8. No prisoner of war can enter into an engagement, inconsistent with his character and duties, as a citizen or subject of his State. He can only bind himself not to bear arms against his captor, for a limited period, or until exchanged, and this only with the stipulated or implied consent of his own government. If the engagement which he makes is not approved by his government, he is bound to return and surrender himself.

9. No prisoner can give his parole, that he will not bear arms against the government of his captors, or their allies, beyond the period of an exchange or release of prisoners, or during the period of the existing war. 10. While the pledging of the military parole is a voluntary act of the individual, the capturing power is not obliged to grant it.

II. Parole not authorised by the law of war, is not valid until approved by the government of the individual so pledging it; and pledging an unauthorised military parole is a military offence, punishable under the laws of war.

safe-conduct, to both persons and things. A passport is not transferable by the person named in the permission, for although there were no objections to giving the privilege to him, there might be very serious objections to the individual taking his place. It, however, generally includes the servants and personal baggage of the person to whom it is granted, unless there should be particular objection to the passage of such servants, or to the admission of the baggage; but, to save all doubt and difficulty in such matters, it is usual to enumerate with precision every particular with respect to the extent of the indulgence. A safe-conduct for effects, without designating the person who is to introduce or remove them, may be introduced or removed by any agent of the owner, unless the agent selected should be personally objected to, as an object of suspicion or danger. Instruments of this kind are always to be taken strictly, and must be confined to the persons, effects, purpose, place and time, for which they are granted. But, if the person who has received a passport should be detained in an enemy's country by sickness or by force, beyond the specified time, he should receive a new instrument, or be considered as still under the protection of the old one. But no detention by business, or by circumstances not entirely unavoidable, will entitle him to such indulgence. If, for example, he should take advantage of a suspension of hostilities to remain, he will do so at his peril, and if he should be found in an enemy's country at the termination of the truce, the time named in his passport having expired, he will be subject to the ordinary laws of war, without any claim for special protection. Passports and safe-conducts are of two kinds; those which are limited in their effects to particular places or districts of country, and those which are general and extend over a whole country. Those of the first class may be granted by military and naval officers or governors of towns, to have effect within the limits of their respective commands, and such instruments must be respected by all persons under their authority. The power to issue such documents is implied in the nature of their trust. But a general passport, or safe-conduct, to extend over the whole country, must proceed from the supreme authority of the State, either directly or by an agent duly empowered to issue it.'

1 The Government of the United States declared, in August 1865,