ordinary official authority of the general or admiral Chap. II. commanding in chief the military or naval forces of the State. The conclusion of such a general truce requires either the previous special authority of the supreme power of the State, or a subsequent ratification by such power (o). A partial truce or limited suspension of hostilities may be concluded between the military and naval officers of the respective belligerent States, without any special authority for that purpose, where, from the nature and extent of their commands, such an authority is necessarily implied as essential to the fulfilment of their official duties (p). $ 402. operation. A suspension of hostilities binds the contracting parties, Period of its and all acting immediately under their direction, from the time it is concluded; but it must be duly promulgated in order to have a force of legal obligation with regard to the other subjects of the belligerent States; so that if, before such notification, they have committed any act of hostility, they are not personally responsible, unless their ignorance be imputable to their own fault or negligence. But as the supreme power of the State is bound to fulfil its own engagements, or those made by its authority, express or implied, the government of the captor is bound, in the case of a suspension of hostilities by sea, to restore all prizes made in contravention of the armistice. To prevent the disputes and difficulties arising from such questions, it is usual to stipulate in the convention of armistice, as in treaties of peace, a prospective period within which hostilities are to cease, with a due regard to the situation and distance of places (9). § 403. Besides the general maxims applicable to the interpre- Rules for interpreting tation of all international compacts, there are some rules conventions of truce. Part IV. peculiarly applicable to conventions for the suspension of hostilities. The first of these peculiar rules, as laid down by Vattel, is that each party may do within his own territory, or within the limits prescribed by the armistice, whatever he could do in time of peace. Thus either of the belligerent parties may levy and march troops, collect provisions and other munitions of war, receive reinforcements from his allies, or repair the fortifications of a place not actually besieged. $ 404. Recommencement of hostilities on The second rule is, that neither party can take advantage of the truce to execute, without peril to himself, what the continuance of hostilities might have disabled him from doing. Such an act would be a fraudulent violation of the armistice. For example:-in the case of a truce between the commander of a fortified town and the army besieging it, neither party is at liberty to continue works, constructed either for attack or defence, or to erect new fortifications for such purposes. Nor can the garrison avail itself of the truce to introduce provisions or succours into the town, through the passages or in any other manner which the besieging army would have been competent to obstruct and prevent, had hostilities not been interrupted by the armistice. The third rule stated by Vattel is rather a corollary from the preceding rules than a distinct principle capable of any separate application. As the truce merely suspends hostilities without terminating the war, all things are to remain in their antecedent state in the places, the possession of which was specially contested at the time of the conclusion of the armistice (»). It is obvious that the contracting parties may, by express compact, derogate in any and every respect from these general conditions. At the expiration of the period stipulated in the truce, hostilities recommence as a matter of course, without any the expiration new declaration of war. But if the truce has been con of truce. (r) Vattel, Droit des Gens, liv. iii. ch. 16, §§ 245-251. cluded for an indefinite, or for a very long period, Chap. II. 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. Such was the duty inculcated by the Fecial college upon the Romans, at the expiration of a long truce which they had made with the people of Veii. That people had recommenced hostilities before the expiration of the time limited in the truce. Still it was held necessary for the Romans to send heralds and demand satisfaction before renewing the war (s). for the sur fortresses. § 405. Capitulations for the surrender of troops, fortresses, Capitulations and particular districts of country, fall naturally within render of the scope of the general powers entrusted to military and troops 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 the 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 promise amounts to a mere sponsion (t). $406. the Caudine The celebrated convention made by the Roman consuls Convention of with the Samnites, at the Caudine Forks, was of this Forks. nature. The conduct of the Roman senate in disavowing this ignominious compact, is approved by Grotius and Vattel, who hold that the Samnites were not entitled to be placed in statu quo, because they must have known that the Roman consuls were wholly unauthorized to make such a convention. This consideration seems suf (s) Liv. Hist. lib. iv. cap. 30. As to the laws of war observed by the Romans, see Wheaton's Hist. Law of Nations, (t) Vide ante, Pt. III. ch. 2, § 255. Part IV. ficient to justify the Romans in acting on this occasion according to their uniform uncompromising policy, by delivering up to the Samnites the authors of the treaty, and persevering in the war until this formidable enemy was finally subjugated (u). § 407. Convention of ClosterSeven. The convention concluded at Closter-Seven, during the seven years' war, between the Duke of Cumberland, commander of the British forces in Hanover, and Marshal Richelieu, commanding the French army, for a suspension of arms in the north of Germany, is one of the most remarkable treaties of this kind recorded in modern history. It does not appear, from the discussions which took place between the two governments on this occasion, that there was any disagreement between them as to the true principles of international law applicable to such transactions. The conduct, if not the language of both parties, implies a mutual admission that the convention was of a nature to require ratification, as exceeding the ordinary powers of mere military commanders in respect to mere military capitulations. The same remark may be applied to the convention signed at El Arish, in 1800, for the evacuation of Egypt by the French army; although the position of the two governments, as to the convention of Closter-Seven, was reversed in that of El Arish, the British government refusing in the first instance to permit the execution of the latter treaty upon the ground of the defect in Sir Sidney Smith's powers, and, after the battle of Heliopolis, insisting upon its being performed by the French, when circumstances had varied and rendered its execution no longer consistent with their policy and interest. Good faith may have characterized the conduct of the British government in this instance, as was strenuously insisted by ministers in the parliamentary discussions to which the treaty gave rise, but there is at least no evidence of perfidy on the part of General Kleber. His conduct may rather be compared with that of the Duke of (") See the account given by Livy of this remarkable transaction. Cumberland at Closter-Seven (and it certainly will not Chap. II. suffer by the comparison), in concluding a convention suited to existing circumstances, which it was plainly his interest to carry into effect when it was signed, and afterwards refusing to abide by it when those circumstances were materially changed. In these compacts, time is material: indeed it may be said to be of the very essence of the contract. If anything occurs to render its immediate execution impracticable, it becomes of no effect, or at least is subject to be varied by fresh negotiation (x). § 407a. The city of Manila and all the Philippine Islands surrendered to the Capitulation English in 1762. By art. 1 of the Capitulation it is stipulated, of Manila. "That all the effects and possessions of the inhabitants of Manila and its dependencies shall be secured to them, under the protection of His Britannic Majesty, with the same liberty they have heretofore enjoyed." Art. 4. That the inhabitants may carry on all sorts of commerce as British subjects. A Spanish man-of-war, The Trinidad, sailed from Manila, 1st August, 1762, before the date of the capitulation, but being damaged by storm put back to Manila to refit, and was captured by H.M. ships Argo and Panther near the island of Capult, one of the Philippines, 30th October, 1762. The Trinidad and her cargo were subsequently condemned in the Admiralty Court as lawful prize to the Argo and Panther. On an appeal interposed in the name of an inhabitant of Manila, the Lords declared that the capitulation ought to be construed liberally in favour of the claimant, but that there was no room for doubt. The agreement to preserve the city of Manila from the plunderer and the inhabitants in their effects and possessions, for a price to be paid, is manifestly ransoming what fell under the power of the conqueror in consequence of the place having been taken by storm, but can have no relation to any effects or possessions in other parts of the world, not under the power of the conqueror, nor subject to the fate of the place. Further, even if the ship had not begun her voyage before the surrender, sailing a Spanish man-of-war was not carrying on commerce as British subjects. And the appeal was dismissed (y). $408. Passports, safe-conducts, and licenses, are documents Passports, granted in war to protect persons and property from the ducts, and (x) Flassan, Histoire de la Diplomatie Française, tom. vi. pp. 97-107. Annual Register, vol. i. pp. 209-213, 228 -234; vol. xlii. p. 219, pp. 223-233. State Papers, vol. xliii. pp. 28-34. But see Hall, International Law, p. 553, (y) The Santissima Trinidad, alias El safe-con licenses. |