Every officer in chief command of an army, fleet or fortified post, is competent to enter into a capitulation with regard to the forces or places under his control; but if he makes stipulations affecting other portions of the field of hostilities, they must be ratified by the commander-in-chief before they become valid. Moreover, the ratification of the supreme authorities in the state is required when a commander, supreme or subordinate, makes a capitulation at variance with the terms of his instructions, or includes political conditions among the articles he agrees to. Stipulations in excess of the powers of those who make them are called Sponsions, and are null and void unless the principals on each side accept them. In default of such acceptance, an agreement of the kind we are considering has no validity, and all acts done under it must be reversed as far as possible. A good example of a Sponsion is to be found in the Capitulation entered into by General Sherman in April, 1865, with General Johnston, the commander of the last Confederate army in the field east of the Mississippi. On condition that the Confederate soldiers should immediately disband and deposit their arms in the arsenals of their respective states, it provided that the state governments which submitted to the Federal authorities were to be recognized, and the people of the Confederacy guaranteed their political rights and franchises as citizens of the Union. These conditions went beyond the sphere of military action, and were clearly in advance of the general's authority, though he had some reason to believe that they would prove acceptable.1 The government of Washington was, however, guilty of no act of bad faith when it repudiated them. The much-discussed capitulation of El Arish is an instance of an agreement made by an officer contrary to his instructions, though, as it happened, in ignorance of their terms. The circumstances were most peculiar, and, since accusations of dishonorable behavior have been made on both 1 W. T. Sherman, Memoirs, II., Ch. XXIII. war. sides, it is desirable to examine the case and show by a recapitulation of its extraordinary incidents that no breach of good faith took place. On January 24, 1800, the British Admiral, Sir Sidney Smith, signed an agreement with General Kleber, the commander of the French army in Egypt, whereby the forces of France were to evacuate the country and be transported to their own ports with arms, baggage and other property. But in the previous December orders had been sent to Lord Keith, the commander-in-chief in the Mediterranean and the superior officer of Sir Sidney Smith, instructing him not to consent to any terms which did not involve the surrender of the French troops as prisoners of The orders based on these instructions did not reach Sir Sidney Smith till February 22, 1800, a month after he had signed a capitulation with Kleber in contravention of them. He immediately informed the French commander of the delicate situation in which he was placed, and stated his intention of endeavoring to induce the home government to ratify the capitulation. Kleber had already restored certain places to the Turks in accordance with its provisions, and when summoned to surrender by Lord Keith, he broke off negotiations and considered the agreement at an end. On resuming hostilities he gained a great victory over the Turks at Heliopolis on March 20, 1800. Before the news of this altered condition of affairs reached England, the British Government had agreed to ratify Sir Sidney Smith's capitulation. But Menou, who succeeded to the command of the French after the assassination of Kleber in June, declined to accept it, and hostilities went on for more than a year longer, when they were terminated by the surrender of the remains of the French army on terms substantially the same as those agreed upon at El Arish. Thus through a strange combination of untoward circumstances first one side and then the other refused to be bound by an agreement which both had signed, and that without any just suspicion of bad faith attaching to either.1 1 Fyffe, Modern Europe, I., 224-227; Dyer, Modern Europe, IV., 353-354. § 237. Lastly we must give a brief outline of the law of Truces and Armistices. They are temporary suspensions of hostilities over the whole or a portion of the field of warfare. There is some difference tices. of opinion and usage as to the terms to be ap- Truces and Armisplied to them. An agreement to cease from active operations within a limited area, for a short time, and with the object of carrying out a definite purpose such as the burial of the dead, is generally called a Suspension of Arms, but it is also, and with equal propriety, termed an Armistice, the latter being the English usage. A similar agreement, extending over a very long period and applying to the whole field of warfare, goes invariably by the name of a Truce. It amounts in fact to a peace, except that no treaty is drawn up. Such lengthy cessations of hostilities are unknown in modern warfare, but operations are often suspended for a time in order that negotiations may take place between the belligerents, either for a definite peace or for the surrender of some place or force, and these rifts in the clouds of war are called indifferently Truces or Armistices. The chief, if not the only distinction between them, appears to be that the former is an older word than the latter, which has come into general use within the last hundred and fifty years. Every commander has power to conclude an armistice with respect to the forces and places under his immediate control, but a general armistice covering the whole field of hostilities can be made only by the supreme power in the state. The agreement for an armistice should contain a clear announcement of the exact time when it begins and ends. As a rule the terms of these instruments are precise, but in 1 Speeches of Generals Voigts-Rhetz, de Schönfeld and Horsford at the Brussels Conference of 1874; see British State Papers, Miscellaneous, No. 1 (1875), p. 209. default of definite stipulations on various points we may extract a certain amount of guidance from the general rules of International Law. They lay down that as soon as an armistice is concluded it should be notified to all concerned, and add that if no definite time has been fixed for the suspension of hostilities, they cease immediately after the notification. If the duration of the armistice has not been agreed upon, either belligerent may resume operations at any moment, provided that he gives clear and sufficient notice to his foe. Moreover, when one side violates the armistice, the other has the right of terminating it; but in such a case notice should be given to the offending party in order to afford him an opportunity for explanation and reparation. If, however, the breach of the conditions agreed upon is the act of unauthorized individuals, the side which suffers has no right to bring the arrangement to an end, but it may demand the punishment of the guilty parties and an indemnity for any losses it has sustained.1 It is universally agreed that during an armistice a belligerent may do in the actual theatre of war only such things as the enemy could not have prevented him from doing at the moment when active hostilities ceased. Thus a besieged garrison may not repair a breach commanded by the enemy's artillery, but they may build an inner defence out of the range of his guns. Beyond the zone of active operations the parties may perform what acts of naval and military preparation they please. They can fit out ships, move troops, recruit armies, and, in short, act as if hostilities were still going on. There is, however, a dispute about the revictualling of a besieged place. The fairest plan would be to allow it to be supplied for a few days at a time under the supervision of the besiegers. But as a rule they are the stronger party and dictate their own terms, as the Germans did in 1871, when they would not allow Paris to receive any supplies during the armistice which preceded its surrender. 1 Projected Brussels Code, Arts. 47-52. CHAPTER VIII. PEACE AND THE MEANS OF PRESERVIN PEACE. § 238. War is generally treaty of peace. WAR between civilized states is almost invariably ended by a treaty of peace. It has sometimes happened that the belligerents have exhausted themselves and tacitly ceased from further operations, but there terminated by a are no recent instances of such a termination to hostilities. They may come to an end through the destruction of one of the communities engaged in them, as Poland was destroyed by the Third Partition, or as the Southern Confederacy fell after four years of strenuous warfare. In such cases no treaty is possible because there is no body politic left for the victor to treat with. But when each of the belligerents preserves its political identity after the war, a treaty is drawn up embodying the conditions of peace. As a rule it settles all the matters in dispute between the belligerents. But sometimes the difficulties of a settlement prove insuperable, and the parties content themselves with providing for the restoration of peace and amity. This was the case with Great Britain and the United States in 1814, when the Treaty of Ghent terminated the war between them without solving any of the difficult questions which had originally caused it. Such a curious combination of a strong desire to terminate the struggle with an equally strong inability to agree upon a settlement of the points at issue is very rare. Generally the causes of the quarrel are dealt with in the instrument which restores peace, and it |