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Note of the Duke of Almodovar, minister of state, communicated by the

French embassy to the Department of State of the United States,
Sept. 11, 1898, For. Rel. 1898, 813.

“ The first four paragraphs of the communication now under consideration may be said to depend upon the opinion now expressed by the Spanish Government that the American forces must be considered to hold the city, bay, and harbor of Manila by virtue of the provisions of Article III. of the protocol of August 12, and not by virtue of the capitulation of the 14th of the same month, since the protocol provided for the suspension of hostilities.

“The Department is unable to concur in the opinion of the Spanish Government that the capitulation of Manila was null and void because after the signature of the protocol. It was expressly provided in the protocol that notice should be given of the suspension of hostilities, and it is the opinion of this Government that the suspension is to be considered as having taken effect at the date of the receipt of notice, which was immediately given by this Government. Indeed, it would seem that the suggestion made in the present communication of the nullity of the capitulation is in the nature of an afterthought, since nothing of the kind was suggested in the communications of the 29th of August and the 3d of September, which specifically related to the situation in the Philippines.

“As to the nature of the right by which the United States holds the city, bay, and harbor of Manila, it is the opinion of this Government that it is immaterial whether the occupation is to be considered as existing by virtue of the capitulation or by virtue of the protocol, since in either case the powers of the military occupant are the same.

“As to what is stated in the communication of the Duke of Almodovar in relation to the treatment of Spanish prisoners, it is proper to say that the information of the Department is that such prisoners have for the most part been well treated. Within the last few days it has been reported that some of the prisoners have been released.”

Mr. Day, Sec. of State, to M. Cambon, French ambass., Sept. 16, 1898, For.

Rel. 1898, 814.


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The minister of state at Madrid ... has just requested me to lay the following observations before you:

“1. The Spanish Government rejects, as contrary to international law and to the history of wars between civilized countries, the theory which the Federal Government announced in its note of September 16 relative to the effects of the protocol of August 12 and the capitulation of the 14th of that month concerning the occupation of Manila.

“ 2. In opposition to this theory the Spanish Government maintains that, according to the terms of Article VI. of the protocol, any act of hostility committed subsequently to the signing of that instrument is morally without legal value. If the belligerent forces could not be at once notified of the agreement made, this was merely due to a material impossibility, owing to the cutting by the Federal authorities of the cable whereby telegraphic communication was maintained between Manila and Asia.

“ Under these circumstances the Spanish Government persists in its conviction that the capitulation of August 14 is null and void, and will consider it useless to make any reference thereto until certain acts of the American authorities at Manila shall come to its knowledge.

" 3. The Federal Government has expressed the opinion that it is unimportant whether the occupation of Manila originated in the protocol or the capitulation. The Spanish Government is unable to share this view. If the capitulation were really valid the United States would have all the rights which are conferred upon them by the clauses of that instrument; on the contrary, according to the terms of Article III. of the protocol, the United States can not exercise, in the city, port, and bay of Manila, over which the sovereignty of Spain has not been relinquished, anything more than the jurisdiction which is indispensable to secure public order until the conclusion of the treaty of peace. Under these circumstances (as the Spanish Government remarked in paragraphs 2 and 4 of the note delivered to the Department of State by the ambassador of France on the 11th ultimo) the American authorities would not be justified in changing the laws, institutions of good order, the economical and fiscal régime established by Spain in the Philippines, or in devoting to other objects the customs revenues which have been set apart for the payment of legally contracted obligations.

“4. According to recent information the Spanish prisoners who are in the hands of the Tagals continue to be subjected to the worst treatment, even in the territory occupied by the Americans. The Spanish Government is concerned about what the Federal Government proposes to do for the protection of these prisoners, and insists, in the name of humanity, that a stop be put to their sufferings.

“5. The Spanish Government has been informed that several insurgent vessels are navigating in the waters of the Visayas for the purpose of stirring up the natives of the country to rebellion, and that 1,500 Tagals have landed at Panay with sundry pieces of artillery. General Rios is obliged to oppose these rebels with insufficient forces. This information naturally causes deep anxiety to the Royal Government, and fully justifies the proposition made by the minister of state through this embassy (note of August 29, 1898), to transport to those points of the archipelago that are menaced by the insurrection either the troops who have been rendered inactive by the capitulation of Manila or troops sent directly from the Peninsula. The Spanish Government can but regret that the refusal of the United States to allow Spain to utilize her troops has contributed to the extension of the insurrection, and deems it to be its duty to refer to these facts in order that it may not be held responsible for the results."

Mr. Thiébaut, French chargé, to Mr. Hay, Sec. of State, Oct. 4, 1898, For.

Rel. 1898, 815.

"I had the honor duly to receive the note which you addressed to me on the 4th instant, in which, at the request of the minister of state of Spain, you lay before me certain observations of the Spanish Government made in reply to this Department's notes to Mr. Cambon of the 5th, 8th, and 16th ultimo.

“Among these observations are included several subjects which are now under discussion by the peace commission at Paris, and for that reason the Government of the United States does not think it convenient to discuss them here.

“ I deem it proper, however, to say:

“1. That the Government of the United States is not able to accept the interpretation placed by the Government of Spain upon the respective effects in law and in fact of the proctocol of August 12 and the capitulation of August 14 upon the military situation at Manila.

"2. That the President has given orders to the American authorities in the Philippines to use their good offices, wherever possible, to prevent any excesses of the insurgents or any cruel treatment of prisoners or Spanish subjects."

Mr. Hay, Sec. of State, to Mr. Thiébaut, French chargé, Oct. 29, 1898,

For. Rel. 1898, 817.

“144. So soon as a capitulation is signed, the capitulator has no right to demolish, destroy, or injure the works, arms, stores, or ammunition, in his possession, during the time which elapses between the signing and the execution of the capitulation, unless otherwise stipulated in the same."

Instructions for the Government of Armies of the United States in the

Field, General Orders, No. 100, April 24, 1863, War of Rebellion,
Official Records, series 3, III. 162.

“ARTICLE XXXV. Capitulations agreed on between the Contracting Parties must be in accordance with the rules of military honour.

“When once settled, they must be scrupulously observed by both the parties."

Convention respecting the Laws and ('ustoms of War on Land, The

Hague, July 29, 1899, 32 Stat. II. 1820.


$ 1161.

Belligerent states and their armies and fleets often have occasion during the continuance of war to enter into agreements of various kinds for the general or partial suspension of hostilities. All such agreements are included under the general name of compacts and conventions. If the cessation of hostilities is only for a very short time, or at a particular place, or for a temporary purpose, such as i parley, a conference, the removal of the wounded, or the burial of the dead, it is called a suspension of arms. Such a compact may be formed between the immediate commanders of the opposing forces, and is obligatory on all persons under their respective commands. Even commanders of detachments may enter into such a compact. But it binds in such a case only the detachment itself, and can not affect the operation of other troops.

Halleck, Int. Law (3d ed., by Baker), II. 311.

"After a truce to allow of the removal of noncombatants protracted negotiations continued from July 3d until July 15th, when, under menace of immediate assault, the preliminaries of surrender were agreed upon. On the 17th General Shafter occupied the city. The capitulation embraced the entire eastern end of Cuba. The number of Spanish soldiers surrendering was 22,000, all of whom were subsequently conveyed to Spain at the charge of the United States."

President McKinley, annual message. Dec. 5, 1898, For. Rel. 1898, LXI.


$ 1162.

If the suspension of hostilities is for a more considerable length of time or for a more general purpose, it is called a truce or armistice. Such suspension is either partial or general. A partial truce is limited to particular places or to particular force, as a suspension of hostilities between a town or fortress and the forces by which it is invested, or between two hostile armies or fleets. But a general truce or armistice applies to the general operations of war, and whether it be for a longer or shorter time extends to all the forces of the belligerent states and restrains the state of war from producing its proper effects, leaving the contending parties and the questions between them in the same situation in which it found them. Such a truce has sometimes been called a temporary peace, though in such case the word peace is used only in opposition to acts of war and not in opposition to a state of war. Such a general suspension of hos

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tilities throughout the nation can be made only by the sovereignty of the state, either directly or by authority specially delegated.

Halleck, Int. Law (34 ed., by Baker), II. 311–312.

See, also, as to truces, Hall, Int. Law (5th ed.), 544-549; Calvo, §§ 2434, 2436, 2446; Heffter, Bergson's ed., 330; Rivier, Principes, II. 364-365; Woolsey, § 157; Pradier-Fodéré, VII. § 2900.

“135. An armistice is the cessation of active hostilities for a period agreed between belligerents. It must be agreed upon in writing, and duly ratified by the highest authorities of the contending parties.

“136. If an armistice be declared without conditions it extends no further than to require a total cessation of hostilities along the front of both belligerents.

"If conditions be agreed upon, they should be clearly expressed, and must be rigidly adhered to by both parties. If either party violates any express condition, the armistice may be declared null and void by the other.

"137. An armistice may be general, and valid for all points and lines of the belligerents; or special-that is, referring to certain troops or certain localities only.

"An armistice may be concluded for a definite time; or for an indefinite time, during which either belligerent may resume hostilities on giving the notice agreed upon to the other.

"138. The motives which induce the one or the other belligerent to conclude an armistice, whether it be expected to be preliminary to a treaty of peace, or to prepare during the armistice for a more vigorous prosecution of the war, does in no way affect the character of the armistice itself."

"140. Commanding officers have the right to conclude armistices binding on the district over which their command extends, but such armistice is subject to the ratification of the superior authority, and ceases so soon as it is made known to the enemy that the armistice is not ratified, even if a certain time for the elapsing between giving notice of cessation and the resumption of hostilities should have been stipulated for.

"141. It is incumbent upon the contracting parties of an armistice to stipulate what intercourse of persons or traffic between the inhabitants of the territories occupied by the hostile armies shall be allowed, if any.

"If nothing is stipulated the intercourse remains suspended, as during actual hostilities.

"142. An armistice is not a partial or a temporary peace; it is only the suspension of military operations to the extent agreed upon by the parties.

"143. When an armistice is concluded between a fortified place and the army besieging it, it is agreed by all the authorities on this

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