MILITARY SURRENDERS AND PAROLES.

WE propose to discuss in this article the subject of military surrenders and paroles, in their relations to the laws, military regulations and orders of the United States, and to the rules and usages established by International Laws and the Laws of War.

I. SURRENDERS.

Military surrenders are of two kinds: those which are the immediate result of force, and made unconditionally, and those which are upon conditions agreed upon between the parties.

Publicists apply the term capitulation to the formal agreement entered into by a commanding officer for the surrender, on certain specified conditions, of an army, a fortress, a town, or a district of country; and they say, in general terms, that the authority to make such agreements falls within the implied powers of such chief commander. This is true, inasmuch as regards the captor, and the forces, places, and things, of which he actually possesses himself under the conditions of such capitulations. They are to him legal captures, not by virtue of the capitulation, but by virtue of actual military possession. The title to military captures of this kind does not depend upon the mode or means of getting possession of them, whether by force of arms, by surprise, or by surrender, but rather to the actual possession itself.

But this supposed or implied power of the commander who capitulates, binds his own government and those whom he agrees to surrender only in a very limited degree. If he has exceeded the powers actually conferred upon him, or acted in violation of the instructions given him, or of the laws and regulations of his government and service, he may be punished, and his acts disavowed. It should be observed, however, that if his government takes advantage of, or willingly profits by, any one part of the agreement, it is bound by the whole instrument, and must execute all the other parts. But even where the capitulation is within the usually implied powers of the commander, if the orders or instructions of his government, not to agree upon certain specified conditions, are brought to the knowledge of the captor before the surrender, he cannot claim the performance of these conditions from the opposing belligerents, nor can the captured claim the benefit of stipulations which he knew the captor had no authority, express or implied, to grant.

In regard to the persons immediately affected by the capitulation, they are, in general, at liberty either to accept or to

reject the conditions agreed upon, for no commander has a right to enforce the surrender of those under him. For example, suppose a general commanding a district of country enters into a capitulation for the surrender of his own immediate post, and also of other posts within the same district under the direct command of his subordinate officers, they being permitted to retain their arms, baggage, &c., and to march out 66 with all the honors of war," but not again to bear arms against the captor till duly exchanged, &c., &c. The commander of the subordinate and detached post is under no obligation to accept these conditions. He is at perfect liberty to repudiate the capitulation of his superior, and to refuse to surrender his post. By doing so, he subjects himself to no punishment, to no pains or penalties, but simply to the ordinary chances of war and siege. But, in refusing to surrender under the capitulation, he deprives himself and his command of all the benefits of that capitulation, and cannot claim its conditions in favor of himself or his cominand. His final surrender is a separate and distinct affair, having no necessary relation to the previous capitulation which he has repudiated or refused to accept.

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By the Roman law, whosoever surrendered a fort, castle, garrison, or place committed to his trust, incurred capital punishment; which, nevertheless," says Bruce, "is undoubtedly to be taken with this limitation, that he is not thereto pressed by extreme and invincible necessity. For, in that case (as when provisions fail, or such breaches are made in the fortifications as threaten a sudden storm, &c.), it is surely far better service to a prince or state to yield a little to necessity, and reserve their persons to serve more successfully at another time, than to madly run the risk of utter excision, by the conquering swords of an enraged enemy."

The English law under Queen Elizabeth on this subject was, "That whosoever shall surrender any Town or Fortification, which they are commanded to defend, or speak Words, or make a Shew towards a Surrender, or dispute the Order of the Garrison, they shall dy for it." "But," says Bruce, "all this is to be understood with the above exception of extreme necessity. And therefore it was that those gallant men who sustained a three years and a half's siege of Ostend, were after the surrender, upon very honorable terms, received by that great Captain, Maurice, Prince of Orange, not as vanquished, but as men wearied with repeated victories."

The authority of a general in actual campaign, or on the battle-field, to enter into stipulations for the surrender of the several portions of his command, is much more limited than that of a governor of a town or fortress, or of a commander of a distant and isolated district of country. Here there are no

supposed or implied powers; all the authority he can exercise is direct, immediate, and limited. Unlike the case of investment and siege, with a threatened bombardment or assault, he cannot command the surrender either of his officers or of is troops without their consent. A general who surrenders or his taken prisoner has no right to control the conduct of those who do not surrender and are not taken prisoners. He can merely negotiate terms for those who actually surrender or are taken prisoners with him. Others may accept or reject these terms as they deem proper.

In the campaign of 1756, the Prussian general, Finck, was surrounded at Maxen, and capitulated for the surrender of himself and his entire army. His cavalry had forced a passage, but as it was included in the capitulation, it returned and laid down its arms. General Finck was subsequently tried for making this capitulation, found guilty of improper conduct, and sentenced to be deprived of all his military dignities, and to two years' imprisonment.

Napoleon's remarks on this affair, in Chapter V. of his Commentaries on the Wars of Frederick the Great, are interesting and instructive, and should be read again and again by every military student. We make some extracts from these Commentaries:

"A question of the utmost importance arises here. Do the laws and principles of war authorize a general to order his soldiers to lay down their arms and yield to their enemies, and to constitute a whole corps prisoners of war? There can be no such doubt with respect to the garrison of a fortified place; but the governor of a place is in a peculiar situation. The laws of all nations authorize him to lay down arms when his provisions fail, when the defences of the place are demolished, and when he has sustained several assaults. In fact, a fortified place is a military machine which forms a whole, has peculiar functions, and a prescribed, definite, and known destination. A small number of men, protected by this fortification, defend themselves, stop the enemy, and preserve the deposit intrusted to them against the attacks of a great number of men; but when these fortifications are destroyed, and no longer afford protection to the garrison, it is just and reasonable to anthorize the commandant to do what he judges most for the interest of his troops."

"In proof that the laws and practice of all nations have specially authorized commandants of fortified places to surrender their arms on conditions stipulated for their benefit, and that they have never authorized any general to order his men to lay down their arms in any other case, it may be advanced that no prince, no republic, no military law, has ever authorized them to do so. The sovereign or the nation prescribes to the soldiers and to the inferior officer, obedience towards their general and their superiors for all purposes conducive to the interest or the honor of the service. When the soldier receives his arms, he takes the military oath to defend them till death. A general has received orders and instructions to employ his troops in the defence of his country; how, then, can he be empowered to order his soldiers to give up their arms, and to submit to chains? "There is seldom a battle in which some companies of light infantry or grenadiers, and frequently whole battalions, are not for a short time surrounded in houses, cemeteries, or woods. Any captain or lieutenant colonel who should enter nto a capitulation as soon as it became evident that he was surrounded, would betray his prince, and forfeit his honor. There have been few battles in which the conduct of men in analogous situations has not decided the victory. Now a lieutenant-general is to an army what a lieutenant-colonel is to a division. Capitu

lations made by corps which are surrounded, either during a battle or an active campaign, are contracts of which all the advantageous clauses are in favor of the parties making them, and all the burdensome clauses attach to the prince, and to the other soldiers of the army. To fly from danger in order to render the situation of one's comrades more perilous, is evidently a piece of cowardice. Should a soldier say to a commander of cavalry, 'There is my musket, let me go home to my village,' he would be deserting in the presence of the enemy, and the laws would condemn him to death. But what difference is there between his conduct and that of the general commanding a division, the lieutenant-colonel of a battalion, or the captain, who says, 'Let me go home, or receive me in your country, and I will surrender my arms?' There is but one honorable way of being made prisoner, which is, to be taken alone, with arms in one's hands, when one can no longer use them. It was thus that King John, Francis I., and many other brave men of all nations, were taken. In this manner of surrendering there is no bargain, nor can there be any, consistently with honor; life only is accepted, because the party has no power to take that of his enemy, who spares him on condition of similar lenity, because such is the tenor of the law of nations.

"The danger of allowing officers and generals to lay down their arms on a private capitulation, in any other case than that of the garrison of a fortress, is incontestable. It destroys the military spirit of a nation, and weakens its sense of honor, to open this door to cowardice and timidity, or even to the errors of the brave. If military laws decreed corporal and infamous punishment against all generals, officers, and soldiers, laying down their arms by virtue of a capitulation, this expedient for extricating themselves from a perilous situation would never occur to the soldiers' minds; they would have no resource but their valor and perseverance; and what prodigies have they not performed?"

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"But what should a general do, when surrounded by superior numbers? We can give no other answer than that of old Horace. In extraordinary situations, extraordinary resolutions are necessary; the more obstinate the resistance made, the greater will be the chance of being relieved, or of forcing a passage. How many things, which at first appeared impossible, have been performed by resolute men, with no other resource than death! The more resistance you make, the more of the enemy you will kill, and the fewer men he will have to attack the other corps of the army. This question does not appear to us capable of any other solution, without destroying the military spirit of a nation, and exposing it to the greatest calamities.

"Ought the laws to authorize a general, who is surrounded by very superior forces, at a great distance from the army to which he belongs, and who has sustained an obstinate conflict, to disperse his army by night, intrusting every individual with the care of his own safety, and fixing a rallying point more or less distant? This question may be doubtful, but there is certainly no doubt that a general who should take such a measure, in a desperate situation, would save three-fourths of his men, he would save himself from the dishonor of surrendering his arms and colors in pursuance of a contract stipulating advantages for individuals, to the detriment of the army and the country.

"In the capitulation of Maxen there was a very singular circumstance. General Wunsch, with the cavalry, had opened himself a passage at daybreak. One of the conditions of the capitulation was, that he should return to the camp and lay down his arms. This general had the simplicity to obey the order given him by General Finck; this was a misconception of military obedience. A general in the power of the enemy has no right to give orders, and those who obey him are criminal. And here one cannot but observe that, since Wunsch had made his way with a large body of cavalry, the infantry might also have penetrated; for, in a mountainous country like Maxen, it was more easy for the infantry to escape by night than the cavalry.

"The Romans disavowed the capitulation made with the Samnites, and refused to exchange or ransom the prisoners. All that is great was instinctive with them; nor was it without reason that they conquered the world."

The principles enunciated in the foregoing extracts seem to have been adopted by Napoleon as the rule of his conduct towards his own generals. He did not judge them by the vic

tories which they won, but by the measures which they adopted to secure victory. This was right, for success in war, as in any other profession, does not always depend upon the ability of the chief who directs it. The standing of a lawyer is not determined by his success in any particular case, nor, indeed, by the number of decisions in his favor, but by the skill and ability which he displays in the conduct of his causes. Thus, Soult and Massena, although not successful generals when intrusted with separate commands, enjoyed the full confidence of their chief, because he knew that they would always adopt the very best measures of which the circumstances admitted. On the other hand, Ney and Murat, though more successful in the field, often committed the most serious military errors. But while thus considerate towards those who failed of success in spite of human agencies, he was exceedingly severe towards those who, in his opinion, unnecessarily surrendered an army or a place.

One of the most important capitulations made during his wars was that of Genoa, by Massena, in 1800. Although premature and unfortunate, as subsequent events proved, Massena was not blamed for making it, but was fully justified by his chief. Not so with Dupont's capitulation of Baylen, in 1808. He was not only censured by Napoleon, but tried and condemned by a high court of honor. The reason of this was, that he not only capitulated for the troops under his immediate direction, but for others which could readily have escaped (vide "Jomin's Life of Napoleon," "Napier's Peninsular War," "Thiers's Consulate and Empire").

A capitulation includes all property and persons in the fort or place surrendered not expressly excepted by its terms; and a commander who destroys military stores or other property, or clandestinely sends away important personages, after entering into such agreement, not only forfeits all its benefits, but subjects himself to severe punishment for his perfidy. So, after a capitulation for the surrender of troops in garrison or the field, any officer who destroys his insignia of rank deprives himself of all the privileges of that rank, and may be treated as a private sol· dier. All individual violations of the conditions, expressed or implied, of a capitulation, may be punished by a forfeiture of all its benefits, or otherwise more severely, at the discretion of the captor. Such conduct not only deprives the victor of rights to which he would otherwise be entitled, but is, in itself, dishonorable.

II. PAROLES.

We will next consider the subject of Military Paroles, as immediately connected with military surrenders and capitulations. Sometimes, prisoners of war, after surrender or capture, are permitted to resume their liberty and to return to their own coun