[446] See U.S. Naval War Code, article 51.
[447] Martens, R. VII. p. 1.
[448] Martens, R. VII. pp. 8 and 9.
[449] Martens, R. VII. p. 10.
[450] Martens, R. VII. p. 11.
[451] Martens, R. VII. p. 15.
[452] Martens, R. VII. p. 16.
It is obvious that Sir Sidney Smith, in approving the capitulation, granted a condition which did not depend entirely upon himself and the forces under him, but which depended upon Lord Keith and his fleet. Lord Keith as well as the British Government could have lawfully disowned this condition. That the British Government did not do so, but was ready to ratify Sir Sidney Smith's approval, was due to the fact that it did not want to disavow the promises of Sir Sidney Smith, who was not at the time aware of the orders of his Government to Lord Keith. On the other hand, the French Generals were not wrong in resuming hostilities after having received Lord Keith's first information, as thereby the capitulation fell to the ground.
Violation of Capitulations.
§ 230. That capitulations must be scrupulously adhered to is an old customary rule, now enacted by article 35 of the Hague Regulations. Any act contrary to a capitulation would constitute an international delinquency if ordered by the belligerent Government concerned, and a war crime if committed without such order. Such violation may be met with reprisals or punishment of the offenders as war criminals.