No such exception is provided in the act of Congress under which the lease was made, (act July 2, 1864, 13 Stat. at Large, 375.) None is found in the lease. None is implied from the purpose Congress had in view in providing for leases. This was to give loyal men opportunity to grow cotton if they chose to incur the risks of war. It was to secure employment for freedmen and furnish the country with cotton. But these were objects which Congress could not by any rule of construction or reason have designed to carry out at the peril of impairing the efficiency of the military service. It is unjust to attribute to Congress a purpose to agree to anything by mere inference that would seriously interfere with the highest of all duties to suppress the rebellion by marches of armies, by battle, and by all the means requisite to success. The claim was disallowed. By the strict rules of law literary institutions are equally subject to use by the lawful military authorities. But on grounds of public pol icy nothing but urgent necessity could justify such use. The proper military authorities must, as a general rule, be allowed to judge of the necessity, or military operations could not be successfully carried on. And certainly when such institutions are a source of strength to the enemy, or are engaged in actually inculcating the sentiment of rebellion, it may be a necessity to withdraw them from a work so dangerous and destructive of public interests.1 102 102 In the Senate, January 12, 1869, Mr. Sumner said: "From the beginning of our national life Congress has been called to deal with claims for losses by war. Though new in form, the present case belongs to a long list whose beginning is bidden in revolutionary history. The folio volume of State Papers now before me, entitled 'Claims,' attests the number and variety. Even amid the struggles of the war, as early as 1779, the Reverend Dr. Witherspoon was allowed $19,040 for repairs of the college at Princeton damaged by the troops. [Claims, pp. 197, 198, 6 Stat., 40.] There was afterward a similar allowance to the academy at Wilmington, in Delaware, [Claims p. 6 Stat., 8,] and also to the college in Rhode Island. These latter were recommended by Mr. Hamilton while Secretary of the Treasury, as 'affecting the interests of literature.' On this account they were treated as exceptional. It will also be observed that they concerned claimants within our own jurisdiction." 1 See Globe, vol. 71, third session Fortieth Congress, page 301, January 12, 1869. It might be added, they were loyal to the Government. Congress has considered the subject since the close of the rebellion. See claim of William and Mary College. Claim for indemnity for destruction of buildings and property by "disorderly soldiers of the United States during the late rebellion." For House proceedings and debates see Globe, vol. 87, 2d sess. 42d Congress, pages 784, 785, (February 2, 1872,) and vol. 88, pages 934, 940, 941, 942, 943, 1190, 1191, 1192, 1193, 1194, 1195. The bill was defeated. See House Report No. 9, 2d sess. 42d Congress, January 29, 1872. East Tennessee University.—Claims for damages by reason of use and occupation of buildings by United States troops. For Senate proceedings in 42d Congress, see Globe, vol. 89, page 2288, 2d sess. 42d Congress, (April 9, 1872.) For House proceedings, see Globe, vol. 93, page 697, (January 18, 1873.) See Senate Report No. 17, 2d sess. 42d Congress. No debate in either House. Vetoed, January 30, 1873. See Senate Ex. Doc. 33, 3d sess. 42d Congress. See Globe, vol. 93, page 991, January 31, 1873. Kentucky University.—Claim for damages by reason of use and occupation of buildings by United States troops. For Senate proceedings, 41st Congress, see vol. 78, p. 3145, (May 2, 1870,) vol. 80, p. 5538, (July 13, 1870.) For House proceedings, see Globe, vol. 82, page 480, (January 13, 1871.) In the application of the general principles stated there are some recognized exceptions. The Government, in honor and in law, is bound to make compensation for property of citizens used, damaged, or destroyed, when 1. The commander of an army, under proper authority, or other officer duly authorized, in advance or at the time of the use, damage, or destruction, distinctly agrees with the owner of the property that the Government shall make compensation, and when, upon the faith of this, the promise is accepted and the property voluntarily surrendered.103 But a contract is not necessarily created by the mere fact that the highest military authority gives instructions to subordinate officers, or issues orders to them, advising them that enemies "will be paid at the time," or that "they will hereafter be fully indemnified." A contract is an agreement between competent parties, upon a sufficient consideration, to do or omit some lawful act. Where the assent of both parties is not given there is no contract. 103 Steven vs. United States, 2 Court Claims 95; Elliott's Claim, 12 Opinions AttorneysGeneral, 485; Provene vs. United States, 5 Court Claims, 456; Kimball vs. United States, id., 253; Waters vs. United States, 4 Court Claims, 390; Filor vs. United States, 9 Wallace, 45; Ayres vs. United States, 3 Court Claims. As to unauthorized contracts see act March 2, 1861, ch. 84, sec. 10, vol. 12, Stat., 220; joint res. No. 8, January 31, 1868, 15 Stat., 246; act June 2, 1852, 12 Stat., 411: 4 Court Claims, 75, 359, 549; 5 Court Claims, 65; 1 Opinions Attorneys-General, 320; 7 Wallace, 666; 4 Court Claims, 176, 401, 495; 5 Court Claims, 302; 8 Wallace, 7. The act of February 21, 1867, prohibits payment for occupancy, &c., in the insurrectionary States, but this did not divest the right to pay for rent arising on an authorized contract; this was decided by the Attorney-General, September 2, 1870, vol. 13, Opinions, p. 314; House Report, No. 262, Committee on War-Claims, 1st session 43d Congress, p. 75. The acts in relation to public contracts are: [Acts distinguished by a have been heretofore repealed.] Act of 8 May, 1792, chapter 37, section 5, volume 1, page 280; act of 16 July, 1798 chapter 85, sections 3, 6, volume 1, page 610; act of 21 April, 1808, chapter 48, volume 2, page 484; act of 3 March, 1809, chapter 28, sections 3, 5, volume 2, page 536; act of 14 April, 1818, chapter 61, section 7, volume 3, page 427; act of 1 May, 1820, chapter 52, sections 6, 7, volume 3, page 568; resolution of 10 February, 1832, number 1, volume 4, page 605; act of 3 March, 1835, chapter 49, section 1, volume 4, page 780; act of 23 August, 1842, chapter 186, section 5, volume 5, page 513; act of 3 March, 1843, chapter 83, volume 5, page 617; resolution of 18 February, 1843, number 2, volume 5, page 648; act of 17 June, 1844, chapter 107, section 2, volume 5, page 703; act of 17 June, 1844, chapter 107, sections 5, 6, volume 5, p. 703; act of 3 March, 1845, chapter 77, sections 3, 12, volume 5, pages 794, 795; act of 10 August, 1846, chapter 176, section 6, volume 9, page 101; act of 3 August, 1848, chapter 121, section 11, volume 9, page 272; resolution of 9 May, 1848, number 6, volume 9, page 334; act of 28 September, 1850, chapter 80, section 1, volume 9, page 513; act of 28 September, 1850, chapter 80, section 1, volume 9, pages 513, 515; act of 3 March, 1851, chapter 34, section 1, volume 9, page 621; act of 5 August, 1854, chapter 268, section 1, volume 10, pages 583, 585; resolution of 27 March, 1854, number 8, volume 10, page 592; act of 4 May, 1858, chapter 25, section 4, volume 11, page 269; *act of 23 June, 1860, chapter 205, section 3, volume 12, page 103; act of 21 February, 1861, chapter 49, section 5, volume 12, page 150; act of 2 March, 1861, chapter 84, section 10, volume 12, page 220; act of 2 June, 1862, chapter 93, sections 1, 2, 3, 5, volume 12, page 411; act of 14 June, 1862, chapter 164, section 1, volume 12, page 561; act of 17 July, 1862, chapter 200, sections 13, 14, 15, volume 12, page 596; act of 17 July, 1862, chapter 203, volume 12, page 600; resolution of 12 July, 1862, number 53, volume 12, page 624; resolution of 3 March, 1863, number 32, section 2, volume 12, page 828; act of 4 July, 1864, chapter 252, section 7, volume 13, page 394; act of 2 March, 1865, chapter 74, section 7, volume 13, page 467; act of 23 June, 1866, chapter 138, section 3, volume 14, page 73; act of 13 July, 1866, chapter 176, section 4, volume 14, page 92; act of 28 June, 1868, chapter 72, volume 15, page 77; act of 25 July, 1868, chapter 233, section 3, volume 15, page 177; resolution of 31 January, 1868, number 8, volume 15, page 246; act of 11 July, 1870, chapter 243, volume 16, page 229; act of July 15, 1870, chapter 29%, volume 16, pages 291–296; act of 3 March, 1871, chapter 117, section 3, volume 16, page 535. See letter of Quartermaster-General M. C. Meigs, February 26, 1874, in Appendix to this report. The Government is not bound, either, by the unauthorized promise of an officer, 104 The mere fact that a voucher or receipt is given for property taken in enemy's country by a military officer does not make the Government liable to pay for it.105 Military officers frequently organize a "board of survey" or commission to assess the value of property taken in the enemy's country, or destroyed on loyal territory. This is done to preserve the history of military operations, to enable superior officers to hold subordinates to a proper responsibility in the conduct of war, and in cases where, from special causes, Congress may deem it advisable to make some compensation, it may furnish a means of judging of the proper amount.106 But such assessment is for the benefit of the Government, and imposes no liability on it. The liability is determined by the laws of war. 2. When, by the terms of the capitulation of a hostile city or army, there is a distinct stipulation by the proper officer commanding the Union Army that rights of person and property shall be respected, this pledge is to be respected, and a violation of it by military officers clothed with authority to act in the name of the Government would create a liability to repair any damages. This, however, requires some explanation. The "Instructions for the government of the armies in the field," prepared by Francis Lieber, LL. D., promulgated under General Orders No. 100, April 24, 1863, embody the well-recognized laws of civilized107 warfare as universally understood and in force. These rules declare (No. 37) that— The United States acknowledge and protect in hostile countries occupied by them strictly private property. This rule does not interfere with the right of the victorious invader to tax the people, or their property, to levy forced loans, to billet soldiers, or 104 In Filor vs. United States, 9 Wallace 45, the court refer to a case, at Key West, of contract for the use of the Quartermaster's Department, and say it was not "binding upon the Government until approved by the Quartermaster-General." Ayres vs. United States, 3 Court Claims, 1; Gibbons vs. United States, 8 Wallace, 269. See letter of Meigs in note 53, ante. See the acts relating to the Court of Claims; act March 3, 1863, 12 Stat., 767, section 12, and other acts cited in the volumes of reports of that court. "The law of agency, as applicable to the United States, is far more strict than to individuals, for the agent must have actual authority in order to bind the Government.” 1 Boston American Law Review, section 58. 105 The Revised Army Regulations of 1861, as corrected to June 25, 1863, edition of 1867, p. 512, section 22, provides that "all property, public or private, taken from alleged enemies, must be inventoried and duly accounted for. If the property be claimed as private, receipts must be given to such claimants or their agents." But this does not change the laws of war, and give a liability which does not exist by such law. the laws of war are prescribed by another power, and cannot be abrogated by Army regulations. In the report of November 30, 1873, of Hon. R. S. Hale to the Secretary of State, of claims allowed by the commission under the 12th article of the treaty of 8th May, 1871, between the United States and Great Britain, it is said: "In the case of John Kater, No. 19, claimant was allowed for two horses taken by Sheridan's army on its raid through the valley of Virginia, in August, 1864, all the commissioners joining in this award, General Sheridan's order of August 16, 1864, directing the seizure of mules, horses, and cattle for the use of the Army, having in effect promised compensation for such property to loyal citizens." 106 Such valuation was made by order of General Jackson, after the battle of New Orleans, of certain damages to real estate. American State Papers, class ix, claim 752. Such boards were frequently organized during the rebellion. 107 These regulations are authorized and have the force of law. House Rep. Com. War-Claims, No. 6, 2d sess. 43d Congress, p. 4. The acts of Congress of April 24, 1816, section 9, (ch 69, § 9, 3 Stat. at L., 298,) and of May 7, 1822, (3 Stat. at L., 689,) authorized the President to prescribe "Army regulations" having the force of law. (Scott's Digest Military Laws, p. 134, § 182; U. S. vs. Eliason, 16 Peters, 291; U. S. vs. Freeman, 3 How., 566; Gratiot vs. U. S., 4 How., 80; to appropriate property, especially houses, land, boats, or ships and churches, for temporary and military purposes. And this is the effect of a proclamation promising "protection of persons and property." "Protection" implies, that there shall be no destruction unless imperatively required by military emergencies. It does not imply that military officers shall refrain from using the means necessary for their own shelter or protection, or that of the Army, or those necessary for military operations. And this is all the more certain, because during all the time of our occupancy of the States in insurrection the military authorities did seize and occupy whatever buildings were necessary for military purposes and operations, and the Government has never recognized a liability to pay for them. In the early part of the war this rule was not strictly adhered to, but the settled doctrine and practice of the Government afterward became as stated. It is not to be presumed that military officers violated pledges, and their conduct is evidence then of what was understood. It is a contemporaneous construction, and the highest evidence of the understanding. 66 In Planters' Bank vs. Union Bank, 16 Wallace, 496, the court held that such proclamation prohibited the seizure of private property as booty of war." But "booty of war" is very different from necessary military seizure for use. And the protection afforded by a promise of protection of perscas and property only extends to such enemies as strictly observe neutrality and the terms of the capitulation, and to property the nature of which does not take it out of the condition of neutrality 108 Opinions Attorney-General, January, 1, 1857, and May 19, 1821; Harney vs. U. S., 3 Nott & H., 42.) The regulations so prescribed declare that "The laws of the United States and the general laws of war authorize, in certain cases, the seizure and conversion of private property for the subsistence, transportation, and other uses of the Army. * All property lawfully taken from the enemy, * or from the inhabitants of an enemy's country, instantly becomes public property, and must be used and accounted for as such." (Regulations of 1861; Appendix to 1863, p. 512, § 21.) The "instructions for the government of the armies of the United States in the field," approved by the President, and published in General Orders No. 100, Adjutant-General's Office, April 24, 1863, only reiterate what had been done under previous orders. 108 Case of Thorshaven, Edwards, 107; Alexander's Cotton, 2 Wallace, 421; Vattel book 3, ch. 18. sec. 294, p. 425. The Venice, 2 Wallace, 258; Winthrop's Digest Opinions of Judge-Advocate-General, 1862 to 1868, p. 86, (ed. of 1868,) vol. xviii, p. 511, Records of Bureau of Military Justice; House Rep. 777, 1st sess. 43d Cong., p. 20. Planters' Bank vs. Union Bank, 16 Wallace, 468. The commission under the 12th article of the treaty of 8th May, 1871, between the United States and Great Britain, held substantially thus: The report of Hon. R. S. Hale shows that where aliens claimed compensation for property used by the United States troops, taken by proper authority, the commission were unanimous in the allowance of claims for property coming under this head when taken within the loyal States or within those portions of the insurrectionary States permanently occupied by the Federal forces, except when something in the nature of the property or in the conduct of the claimant took him out of the condition of neutrality. Thus, for instance, in the case of Robert Davidson, No. 66, the claim was for gun-carriages and other artillery apparatus, manufactured by the claimant for the use of the confederate government, and remaining in his possession at the surrender of New Orleans, together with material for use in the same manufacture, which was taken and appropriated by the Federal forces, under the orders of General Banks, some months after the capture of New Orleans. The claim was unanimously disallowed, In the case of Samuel Brook, No. 99, the claim was for certain tarpaulins taken by an authorized officer for the use of the United States, at Memphis, Tenn., in June, 1862, shortly after the capture of that city by the Federal forces. An award was made in favor of the claimant, Mr. Commissioner Frazer dissenting upon the question of the sufficiency of proof, but the commissioners all agreeing as to the principle involved. And it cannot be an absolute guarantee against unauthorized pillage or other damages incident to surrounding circumstances. 3. The same rule of protection is extended to persons and property where there is no capitulation, but an authorized military proclamation promising it, when a city or district of the enemy is subdued and occupied.109 This principle will apply generally to duly authorized safeguards.110 A passport may be given which does not amount to a safeguard, and which will impose less of liability and no absolute guarantee of safety. But a safeguard for the purpose of protection under a flag of truce may amount to a guarantee of the safety of persons, and of such property as may be named, or may reasonably accompany the person, excluding unnecessary valuables.111 109 And while the conditions of the proclamation are observed by the enemy, and hostilities are not renewed by them, the pledge of protection cannot be revoked by military authority. Planters' Bank vs. Union Bank, 16 Wallace, 496. See also act July 13, 1861, sec. 5, (12 Stat., 257,) and President's proclamation, August 16, 1861, (12 Stat., 1262.) 110 See act February 13, 1862, sec. 5; Army Regulations of 1861, revised to June 25, 1863, (ed. of 1867,) pp. 112, 113. The following is a copy of one issued by General Grant : HEADQUARTERS DEPARTMENT OF THE TENNESSEE, By authority of Maj. Gen. U. S. Grant: A safeguard is hereby granted to Mrs. Eugenie Bass, her plantations, houses, horses, cattle, sheep, hogs, poultry, and all other property, real or personal, situated near Princeton, in the county of Washington, and State of Mississippi. All officers and soldiers belonging to the armies of the United States are therefore commanded to respect this safeguard, and to afford, if necessary, protection to the said Mrs. Eugenie Bass and property. "Whoever, belonging to the armies of the United States in foreign parts, or at any place within the United States or their Territories during rebellion against supreme authority of the United States, shall force a safeguard, shall suffer death." (55 Art. of War.) By order of Maj. Gen. U. S. Grant: JOHN A. RAWLINS, Brig. Gen. and A. A. A. Gen. Under this the question has been made whether the award of a military board of survey for property taken by Union military authorities should be paid, or a less sum awarded by the Commissioners of Claims. By submitting a claim to the latter there is an implied agreement to accept their award, subject to revision by Congress. But without this the Government can determine by law how valuations shall be made. The loyalty of this claimant was proved to the satisfaction of the commissioners. 111 Chancellor Kent defines the general rule with regard to flags of truce: "He who promises security by a passport is morally bound to defend it against any of his subjects or forces, and make good any damages the party might sustain by violation of the passport. The privilege being so far a dispensation from the legal effects of war, it is always to be taken strictly, and must be confined to the purpose and place and time for which it was granted. A safe-conduct generally includes the necessary baggage and servants of the person to whom it is granted." (1 Kent's Com., 161.) Also as to the inviolability secured under a flag of truce, Vattel, ch. xvii, p. 416: "A safe-conduct given to a traveler naturally includes his baggage or his clothes and other things necessary for his journey." (Id., 417, § 270; Woolsey's International Law, p. 250.) "The sovereign can revoke the passport even before the fulfillment of its terms, by giving to the bearer the liberty of return." (Bello, p. 265.) "Passports should not be granted for the purpose of attracting persons or effects with the object of confiscating them afterward by means of revocation, because to act thus would be a perfidy contrary to the laws." (1 Bello, p. 265.) "The violation of the good faith pledged by passports and documents of that character draws after it the most condign punishment. If it is committed on the part of the authorities or agents of the government which gives it, its bearer will be amply indemnified for the consequences that result from the violation; and the person who commits the violation will be punished in accordance with the laws of his country.' (Calvo, 2 v., p. 87, edition of 1868.) On the same page, Calvo confirms the principles |