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“He can take all steps necessary to prevent the envoy taking advantage of his mission to obtain information.

• In case of abuse, he has the right to detain the envoy temporarily.

ARTICLE XXXIV. The envoy loses his rights of inviolability is it is proved beyond doubt that he has taken advantage of his privileged position to provoke or commit an act of treachery.

Convention respecting the Laws and Customs of War on Land, The Hague,

July 29, 1899, 32 Stat. II. 1819.

A communication from the Spanish consul, at Charleston, to Mr. Tassara, Spanish minister at Washington, was delivered, sealed, by the Confederate authorities to the military authorities of the United States, under flag of truce. The latter, in conformity with military practice, opened the parcel, and it was sent in that condition to Mr. Seward, who transmitted it to Mr. Tassara. Mr. Tassara remonstrated against the opening of the parcel, but at the same time requested Mr. Seward to convey an official communication from him to the consul. Mr. Seward answered (1) that he would " direct the conveyance by flag of truce of any unsealed official communication;" (2) that, while he approved the military order requiring the conductor of a flag of truce to open all communications received by him, he held in such high respect Mr. Tassara and his Government that he would in any case forbear to read any official communications between officers of that Government which might come, sealed or unsealed, into his hands; (3) that, in view of Mr. Tassara's complaint and remonstrance, the military authorities of the United States conducting flags of truce would be instructed " neither to receive nor to convey any communications whatever issuing from or directed to any Spanish authority or agent, unless the same shall be unsealed.”

Mr. Seward, Sec. of State, to Mr. Tassara, Dec. 17, 1864, MS. Notes to

Spanish Leg. VIII. 23.

A report having been received in Washington that President Balmaceda, of Chile, had threatened to shoot envoys of the Congressional party if they should be found within his jurisdiction, the American minister at Santiago was instructed by telegraph, May 14, 1891, that, if they should come within such jurisdiction, relying on an offer of mediation or on an invitation of the mediators (of whom the American minister was one), he would “insist that under any circumstances they should have ordinary treatment of flag of truce."

For. Rel. 1891, 123.
A safe conduct was given by the Chilean Government, May 2, 1891, to

representatives of the Congressional party to confer with the mediating diplomatic representatives. It seems that the report that the envoys would be shot grew out of a vague threat of the minister of the interior, made under excitement, after a bomb had been thrown

at some of the members of the cabinet. The minister of foreign affairs wrote an explanation and apology to the mediators, and President Balmaceda and his cabinet disavowed any intention of molesting the envoys and afforded them every facility to leave the country. It appears that before the negotiations the envoys were concealed in Santiago. (For. Rel. 1891, 123, 126, 130.)

In March, 1904, the Japanese Government sought permission from the Russian Government, as soon as navigation was opened, to send a neutral ship to Korsakov, Saghalien Island, to bring away two members of the Japanese consular staff and 600 Japanese subjects, who were detained there by ice, and who were believed to be suffering from scarcity of food. The Russian Government replied that, under the rules of war adopted by it on February 14, 1904, the departure of the Japanese from Korsakov would be permitted; that arrangements might be made for a neutral vessel to proceed there when navigation opened, about the 1st of May, and that facilities would be given for direct communication with all Japanese subjects in Siberia as soon as information concerning their whereabouts could be obtained. In accordance with this permission a neutral vessel, early in May, arrived at Vladivostok, and four days later left with 326 Japanese from Korsakov.

For. Rel. 1904, 432-433, 434-435, 436, 715, 718, 720.

See, also, as to other Japanese subjects permitted to leave Russia, For.
Rel. 1904, 436.


§ 1158.

A passport or safe conduct is a document granting persons or property a specified exemption for the time being from the operations of war. The term passport is applied to personal permission given to friends on ordinary occasions, both in peace and war, to go where they wish; while the term safe conduct is usually given to an authority to an enemy or an alien to go into places where they would otherwise be in danger or to carry on a trade forbidden by the laws of war. The word passport, however, is more generally applied to persons, and safe conduct to both persons and things.

See Halleck, Int. Law (3d ed., by Baker), II. 323–325.

General Scott, referring to approaching meeting of the new Federal Congress, after his capture of the City of Mexico, says: "I have seen and given safe conduct through this city to several of its members." He also gave Santa Anna's wife a passport to enable her to follow her husband.

Scott, Autobiography, II. 532. 537.


$ 1159.


Safeguards are protections granted by a general or other officer for persons or property within the limits of his command against the operations of his own troops. Sometimes they are delivered to the parties whose persons or property are to be protected; at others, they are posted upon the property itself, as upon a church, museum, library, public office, or private dwelling. They are particularly useful in the assault of a place, or immediately after its capture, or after determination of a battle, to protect persons and property of friends from destruction by an excited soldiery. Violation of such instruments are usually punished with the utmost severity. A guard of men is sometimes called a safeguard when detached to enforce the safety of the persons and property of those protected. A safeguard, when used to denote a kind of passport or safe conduct, is to be construed according to the rules of interpretation applicable to such instruments.

Halleck, Int. Law (3d ed. by Baker), II. 325-326.


$ 1160.

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C'apitulations are agreements entered into by a commanding officer for the surrender of his army, or by the governor of a town, or a fortress, or particular district of country to surrender it into the hands of the enemy. Capitulations usually contain stipulations with respect to the inhabitants of the place which is surrendered, the security of their religion, property, privileges and franchises, and also with respect to the troops or garrison, either allowing them to march out with their arms and baggage, with the honours of war, or requiring them to lay down their arms and surrender as prisoners of war."

Hallerk, Int. Law (3d ed., by Baker), II. 319–320.

A capitulation entered into by a belligerent in regard to the surrender of one of its possessions binds its allies.

('ase of The Resolution, Federal Court of Appeals, 1781, 2 Dall. 1, 15.

“ In April, 1865, General Grant wrote to General Lee that he proposed to receive the surrender of the Army of Northern Virginia on the following terms, viz:

“ 1. That rolls of all the officers and men were to be made in duplicate, one copy to be given to an officer of the selection of the former, the other to be retained by whomsoever the latter might appoint.

* 2. That the officers give their individual paroles not to take arms against the Government of the United States until properly exchanged, and each commander of a company or regiment to sign a like parole for his men. The arms, artillery, and public property to be parked and stacked, and turned over to the officers appointed by the former to receive them. That this do not include the side-arms of the officers, nor their private horses or baggage.

"3. That, this being done, each officer and man shall be allowed to return to his home, and shall not be disturbed by the United States authority so long as they observe their paroles and the laws in force where they reside.

“ General Lee accepted these terms on the same day, and the other rebel armies subsequently surrendered on substantially the same terms.

“ By an agreement made the same month between General Johnston, commanding the Confederate army, and Major-General Sherman, commanding the Army of the United States, the Confederate armies then in existence were to be disbanded and conducted to their several State capitals, therein to deposit their arms and public property in the State arsenal; and each officer and man to agree to cease from acts of war, and to abide the action of both State and Federal authorities. The number of arms and munitions of war to be reported to the Chief of Ordnance at Washington, subject to the future action of the Congress of the United States, and in the meantime to be used solely to maintain peace and order within the borders of the different States. The Executive of the United States to recognise the several State governments, on their officers and legislatures taking the oaths prescribed by the Constitution of the United States. The Federal courts in the several States to be reestablished; the people and inhabitants of those States to be guaranteed their political rights and franchise so far as the Executive could do so. The executive

. authority of the Government of the United States not to disturb any of the people by reason of the war, so long as they lived in peace and quiet. In fact, a general amnesty to be established."

Halleck, Int. Law (3d ed., by Baker), II. 321.

“ First. The Spanish Government is of the opinion that the occupation by the American forces of the city, bay, and harbor of Manila must be considered in virtue of the provisions of Article III. of the protocol of August 12, and not in virtue of what was agreed to in the capitulation of the 14th of the same month, which is absolutely null by reason of its having been concluded after the belligerents had signed an agreement declaring the hostilities to be suspended.

“ Second. By virtue of the agreement, the Spanish Government is of the opinion that the occupation of the city, harbor, and bay of


Manila by the Americans does not confer upon the United States the faculty of altering the Spanish laws there in force, but that they are to respect these laws and provisions and maintain all the civil, administrative, judicial, and political institutions until the final treaty of peace shall determine the régime (control), disposition, and government of the Philippine Islands for the future, since it is a matter of occupation in which Spain has acquiesced without renouncing her sovereignty, and not of territory conquered manu militari.

“ Third. The Government of His Majesty, considering the Spanish troops that were garrisoned at Manila as free, proposes to avail itself of them during the suspension of hostilities by transporting thein, with their colors, arms, and ammunition, to other parts of the island of Luzon which are not occupied by the Americans, or other islands in the archipelago, with a view of putting down rebellion, maintaining order, and protecting the lives and property of its subjects and of foreigners, in accordance with its rights and duties as a sovereign.

* Fourth. The Spanish Government is also confident that the Government of the United States will not, during the period preceding the ratification of the treaty of peace, bring any change into the economics and fiscal administration of Manila, and that it will not divert for other purposes the customs revenues which are applied to the discharge of lawfully incurred obligations. Were it otherwise, legitimate private interests would be injuriously affected.

“Fifth. The Spanish Government requests that the Federal Government will demand of the Tagal rebels the surrender of the Spanish prisoners now held by them, in order either to release them, as humane sentiments should suggest, or to hold them on the honor and guaranty of the United States. The Spanish prisoners are made to suffer every description of ill-treatment at the hands of the Tagal rebels, and inasmuch as the latter have not been recognized as belligerents, they can not be allowed the right to hold prisoners on territory which is, as a matter of fact, occupied by the American forces. Merey demands the cessation of a condition of things repugnant to morality.

“Sixth. The Spanish Government holds that the rebels in the Philippines, not having been recognized as belligerents, have also no right to charter armed vessels and to display on such vessels a flag that possesses no kind of international representation, to the end of engaging in acts of aggression and in depredations on Spanish territorial land and waters. Consequently they will be considered by Spain as pirates and tried as such. In order to repel and chastise the attacks of such rebel vessels on Spanish merchant ships that may visit the Philippines, the Government of His Majesty has decided to provide said ships with adequate armament, and hopes that the Gorernment of the United States will admit that this is a necessary and fair measure.”

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