Striking the ensign was and is the universally recognized indication of surrender. Surrender is dated from the time the ensign is struck.
I. In international law, striking the colors indicates surrender.
A. "Colors. A national flag. The colors . . . are hauled down as a token of submission." A Naval Encyclopedia (Philadelphia: L. R. Hamersly & Co., 1881), p. 148.
B. International law absolutely requires a ship of war to fly its ensign at the commencement of any hostile acts, i.e., before firing on the enemy. H. W. Halleck, International Law; or, Rules Regulating the Intercourse of States in Peace and War (New York: D. Van Nostrand, 1861), pp. 402-405. During battle there is no purpose in striking the colors other than to indicate surrender.
C. It was and is an offense to continue to fight after striking one's colors, and an offense to continue to fire on an enemy after he has struck his colors, unless he indicates by some other action, such as continuing to fire or seeking to escape, that he has not truly surrendered. It is for this reason that Raphael Semmes spoke with bitter sarcasm about USS Kearsarge's continuing to fire after CSS Alabama had struck her colors. [Raphael Semmes, Memoirs of Service Afloat During the War Between the States (Secaucus, N.J.: The Blue and Grey Press, 1987; orig. published New York: PJ Kennedy, 1900), p. 757.] For this reason, striking the colors is conclusive evidence of a surrender having taken place in the case of a warship, but not in the case of a merchant ship. What would be perfidy in the case of a warship is not in the case of a merchant ship: A merchant ship may strike its colors as a ruse de guerre in an attempt to escape capture, since it does not engage the enemy in combat. C. John Colombos, The International Law of the Sea, 6th rev. ed., New York: David McKay Company, Inc., p. 781.
D. In distinction to striking one's colors, hoisting a white flag, in itself, is not an indication of surrender. Rather, hoisting a white flag indicates a request for a truce in order to communicate with the enemy. A belligerent is not required to cease fighting if the enemy hoists a white flag. "A flag of truce cannot insist on being admitted, and should rarely be used during an engagement. . . . Firing is not necessarily to cease on the appearance of a flag of truce during an engagement, and should any person connected with it be killed, no complaint can be made. If however, the white flag should be exhibited as a token of submission, firing is to cease." A Naval Encyclopedia (Philadelphia: L. R. Hamersly & Co., 1881), p. 285.
II. Numberless examples show the immense significance given to the ensign during naval engagements and that striking the colors was universally understood as an indication of surrender.
A. Nailing the colors to the mast is a traditional sign of defiance, indicating that the colors will never be struck, the ship will never surrender. Before going into battle against Continental Navy ship Bonhomme Richard, Capt. John Paul Jones, on 23 September 1779, Capt. Richard Pearson, RN, of HMS Serapis, with his own hands nailed the British ensign to the ensign staff and had to tear it down himself when surrendering.
B. During the battle between Continental Navy ship Bonhomme Richard and HMS Serapis, Bonhomme Richard‘s ensign was shot away. When the captain of Serapis saw that the colors on Bonhomme Richard were down, he asked Jones if he had struck. Jones replied something to the effect that he had not yet begun to fight.
C. In 1807, when the captain of United States frigate Chesapeake refused to permit officers of HMS Leopard to search her for deserters from the Royal Navy, Leopard ranged along side Chesapeake and fired into her for ten minutes until Chesapeake struck her colors as a token of surrender. The British refused to accept the ship as a prize of war, the two nation's being at peace. Log of U.S. frigate Chesapeake: "Having one Gun ready fired and haul'd down our Colours. the Leopard ceased firing and sent her Boat on board." The Naval War of 1812: A Documentary History, vol. 1, ed. William S. Dudley (Washington: Naval Historical Center, 1985), pp. 26-28.
D. In 1811, while the United States and Great Britain were at peace with each other, U.S. frigate President engaged HM sloop of war Little Belt. John Rodgers, Captain of President reported to the Secretary of the Navy, that "when perceiving our opponent's Gaff & Colours down . . . I . . . embraced the earliest moment to stop our fire and prevent the further effusion of blood." The Naval War of 1812: A Documentary History, vol. 1, ed. William S. Dudley (Washington: Naval Historical Center, 1985), pp. 44-49.
E. On 29 July 1812, at the start of the War of 1812, Lt. William M. Crane, USN, commanding officer of U.S. brig Nautilus, reported his capture by a British squadron in these words: "the chaseing ship put her helm up hoisted a broad pendant and English colours and ranged under my lee quarter--unable to resist I was compelled to strike the Flag of the United States." The Naval War of 1812: A Documentary History, vol. 1, ed. William S. Dudley (Washington: Naval Historical Center, 1985), pp. 209-211.
F. Captain David Porter, USN, of U.S. frigate Essex reported the capture of HM brig Alert on 13 August 1812 in these words: "He avoided the dreadful consequences that our broad side would in a few moments have produced by prudentially striking his colours."The Naval War of 1812: A Documentary History, Vol. 1, ed. William S. Dudley (Washington: Naval Historical Center, 1985), pp. 443-446.
G. On 19 August 1812, U.S. frigate Constitution chased a large vessel. Captain Isaac Hull, USN, reported that "As we bore up she hoisted an English Ensign at the Mizen Gaff, another in the Mizen Shrouds, and a Jack at the Fore, and Mizentop Gallant mast heads." After the ships had engaged each other, Hull looked to see if the enemy ship, which proved to be HM frigate Guerriere, had surrendered by striking its colors: "not knowing whither the Enemy had struck, or not, we stood off for about half an hour, to repair our Braces, and such other rigging, as had been shot away, and wore around to return to the Enemy, it being now dark we could not see whether she had any colours, flying or not, but could discover that she had raised a small flag Staff or Jury mast forward. I ordered a Boat hoisted out, and sent Lieutenant Reed on board as a flag [of truce] to see whether she had surrendered or not." The Naval War of 1812: A Documentary History, vol. 1, ed. William S. Dudley (Washington: Naval Historical Center, 1985), pp. 237-243. Captain James R. Dacres, RN, of Guerriere reported the surrender in these words: "When calling my few remaining officers together, they were all of opinion that any further resistance would be a needless waste of lives, I order'd, though reluctantly, the Colours to be struck." Ibid., pp. 243-245.
H. The Journal of HMS Poictiers reports the capture of US sloop of war Wasp on 18 October 1812 as follows: "Fired Several Shot at the chase, Observed [chase] hoist American Colours, . . . Shortnd sail, the chase having Struck her colours." The Naval War of 1812: A Documentary History, vol. 1, ed. William S. Dudley (Washington: Naval Historical Center, 1985), pp. 536-537.
I. Captain William Bainbridge, USN, reported the surrender of HM frigate Java to HM frigate Constitution on 29 December 1812 by the following minutes taken during the action: "At 4.5 [o'clock] Having silenced the fire of the enemy completely and his colours in main Rigging being [down] Supposed he had Struck, Then hawl'd about the Courses to shoot ahead to repair our rigging, which was extremely cut, leaving the enemy a complete wreck, soon after discovered that The enemies flag was still flying hove too to repair Some of our damages. At 4.20 [o'clock] The Enemies Main Mast went by the board. At 4.50 [Wore] ship and stood for the Enemy. At 5.25 [o'clock] Got very close to the enemy in a very [effective] rakeing position, athwart his bows & was at the very instance of rakeing him, when he most prudently Struck his Flag." The Naval War of 1812: A Documentary History, vol. 1, ed. William S. Dudley (Washington: Naval Historical Center, 1985), pp. 639-644. Lt. Henry D. Chads, RN, of Java, reported her surrender thus: "At 5:50 our Colours were lowered from the Stump of the Mizen Mast and we were taken possession a little after 6." Ibid., pp. 646-649.
J. US sloop of war Hornet engaged HM brig sloop Peacock on 24 February 1813. Badly damaged and sinking, Peacock, as a sign of surrender, lowered her ensign, and as an additional sign of distress, hoisted an ensign union down from the fore rigging. Her main mast fell shortly after this signal of surrender. Her senior surviving officer thought it necessary to give an addition sign of surrender since her ensign had fallen into the water. He wrote, "I was compelled . . . to wave my Hat in acknowledgment of having struck the Ensign having fallen with the Gaff into the Water." The Naval War of 1812: A Documentary History, vol. 2, ed. William S. Dudley (Washington: Naval Historical Center, 1992), pp. 68-73.