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

3 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.

4 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, Åm. 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 tủe “honors of war.” 1

1 For examples see Surrender of Belfort, in 1871 ; Bellair's Transvaal War, 1880-81, p. 272. At Potch strom, 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.

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

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

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

Mr. Spaíght, 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-haiand 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

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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 capitulations

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

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

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 or weights fixed for corresponding ranks in the Japanese Army, though reasonable excesses 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.

(c) 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 adyance with absolute precision, according to the circumstances of each case.

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

5 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.

6 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,

(9) 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.

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case the powers of the mi or by virtuent are the same. Vide Dig. Int.

(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.

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 capit

as a capitulation to demolish, destroy, or injure the works, arms,

is signed, the capitulator 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“ 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." charged, among other things, with failing to destroy his arms and ammunition before surrenderinga Cassell's History, Vol. 1, 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 Land Warfare, Opp., p. 824. 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 in

In 1898 the Spanish Government contended that the capitulation of Manila, which occurred on the 14th, was null and void, because the that the hostilities shoiune denso days before, on August 12, stipulated

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 reto the nature of the right by which the United States libres that citas 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 of

, Law, Moore, sec. 1160. Mr. Oppenheim says in this connection:"A capitulation which took place after a general armistice has been agreed edge, is null and voia, unless the artistice stipulatea de Stadiono brows tilities from the time when notification reaches the different forces concerned, and not from the date of signature." Land Warfare, par. 325.

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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.

The officers and officials who accept this condition will retain their arms and personal property.

In consideration of the valor displayed by both the army and the garrison during the campaign, those officers who elect to be prisoners of war will be permitted, in addition, to take with them their swords and their personal property.

ART. V. All army doctors will remain at Metz in order to look after the wounded; they will receive the privileges in conformity with the Geneva Convention. The same is to apply to the personnel of the hospitals.

ART. VI. Explanations with regard to certain points, more particularly with regard to local interests, are treated in an appendix hereto annexed, which has the same authority as the present protocol.

ART. VII. Any article which might admit of doubt will always be interpreted in favor of the French Army. Done at Chateau Frescaty, 27th October, 1870.

(Signed) V. STIEHLE.

(Signed) JARRAS.

[Appendix. ] ARTICLE 1. The civil officials, superior and inferior, belonging to the army or the fortress, now present at Metz, may proceed whither they desire and take all their property with them.

ART. 2. No one, whether he belong to the national guard or be he an inhabitant of the town, or a fugitive therein, shall be liable to punishment; either on account of political or religious views, or for any share that he may have taken in the defense, or on account of any assistance he may have rendered to the army or to the garrison.

ART. 3. Sick and wounded left in the town shall receive every care which their condition may require.

ART. 4. Families which may be left in Metz by the garrison shall not be molested, and, like the civil officials, may likewise depart without let or hindrance with all that belongs to them.

The furniture and effects which the members of the garrison are compelled to leave in Metz shall neither be plundered nor confiscated, but shall remain their property. It will be optional with them to cause this property to be fetched away within a period of six months from the conclusion of peace or their release from captivity.

ART. 5. The commander in chief of the Prussian Army undertakes the duty of preventing any damage being done either to the persons or goods of the inhabitants.

In the same manner the property of the Department, of the parishes, of trade or other unions, of civil or spiritual or other corporations, of workhouses or charitable institutions, shall remain uninjured.

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