Cyclopædia of Political Science, Political Economy, and the Political History of the United States
CAPITULATION. When an army corps or a fortress feels no longer able to resist the enemy, and the belligerents are not induced by passion to refuse all quarter, there remains only to surrender at discretion or on condition. The latter form of submission, especially when a fortress is in question, is called more particularly a capitulation. Nevertheless, it would seem that in ordinary language a distinction is no longer made between a surrender pure and simple and a capitulation.
—The rules regarding capitulations are very simple. They are treaties whose clauses have been discussed beforehand, and which, once signed, become binding on the contracting parties, except, say some writers, when one or both of them have exceeded their powers. Now, the officer in command of the fortress, on the one hand, and the commander of the besieging army, on the other, are authorized by usage and necessity to negotiate and conclude this kind of treaty; and the supposition of the treaty containing other provisions than those relative to the capitulation is a case which it does not seem worth while to consider here. Neither do we wish to consider the case of non-fulfillment of the capitulation on the part of the victor. A general who did not keep his engagements with the vanquished, would dishonor himself, and would expose himself or his side to reprisals.
—The stipulations which may be contained in capitulations depend on circumstances. According as the chances of relief are greater or less, according as the defense has been more or less prolonged, according to the extent of the means of resistance still left the garrison, the terms granted will be more or less lenient or severe. It rarely occurs that a garrison is allowed to leave a fortress with "the honors of war," that is to say, with arms and baggage, colors flying, and bands playing martial airs; but neither, on the other hand, is it necessary to stipulate that the lives of the garrison shall be spared. That is understood, for prisoners of war are no longer put to death. The soldiers, also, are allowed their personal effects, and sometimes the officers, too, are permitted to retain their swords. The victor must not seize on anything but the property of the state, and he ought not to forget that peaceful inhabitants are not to be considered as enemies.
—Prior to the capitulation the commander of a fortress is master there, and is accountable only to his superiors. But the capitulation once signed, the United States Instructions for Armies in the Field, § 144, says that, the capitulator has no right, during the time that elapses between the signing and the execution of the capitulation, to destroy or injure the defensive works, the arms, provisions and munitions in his possession, unless it has been otherwise agreed.
—Thus far we have considered capitulations from the standpoint of international law; there remains still the standpoint of the military code. The government which has intrusted a soldier with the charge of a fortress has a right to demand an account of his acts, and this account is often required. In France, the decree of May 1, 1812, provides as follows: "Art. 1. All generals and all commanders of armed forces, whatever their rank, are forbidden to enter into any capitulation, written or verbal, in the open field.
—Art. 2. Every capitulation of this sort, that results in a laying down of arms, is declared dishonorable and criminal, and shall be punished with death. [But what if there are absolutely no means of defense?] The same shall hold true of all other capitulations where the general or commander has not done all that honor and duty prescribed.
—Art. 3. In a fortified place, besieged and invested, a capitulation is allowed in the cases provided in the next article.
—Art 4. A capitulation of a fortified place besieged and invested may be made if the provisions and munitions are exhausted after due economy, if the garrison has sustained an assault on its enceinte, and is unable to withstand a second, and if the governor or commandant has fulfilled all the obligations imposed upon him by the decree of the 24th of December, 1811.
—The governor or commander, as well as the officers, shall in no case separate their own lot from that of their soldiers but shall always share the fortunes of the latter.
—When the conditions prescribed in the preceding article shall not have been fulfilled, any capitulation or loss of the place that shall ensue is declared dishonorable and criminal, and shall be punished with death * * * * ."
—Other countries have analogous provisions. (See
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