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4. During the rebellion the ordinary laws of war as to enemy's country were by the general policy of the Government, sanctioned by Congress and the President's proclamation of August 16, 1861, so far modified that in such parts of tbe rebel States as were permanently occupied and controlled by the Union military forces, and where rebellion had ceased and was no longer probable, the Government assumed to interfere no further with the rights of person and property of the enemy than should be required by necessary subjection to military government.112
But this immunity would only extend to those who were loyal, or who ceased to engage in or aid or encourage rebellion.
stated by a citation of the most distinguished writers on the laws of nations of all civa ilized countries from the time of Grotius to the present.
In 1863, while General Banks was in command at New Orleans, Mrs, Flora A. Darling, intending to go north, was received through the enemy's lines from Mobile, on a flag of truce boat at New Orleans, with baggage, including a trunk containing, as alleged, confederate bonds. She claimed to have a passport, or safe-conduct, and alleged that while on the boat she was arrested, her baggage taken, including money and confed. erate bonds, and never returned to her. Several years after this she applied to the War Department for redress for money taken. The War Department found it impossible to ascertain the facts as to the alleged loss. The Judge-Advocate-General, as to this case, among other things, said :
“In regard to the merits of such claim, it need only be said that as far as the rebel securities are concerned the seizure was clearly authorized.
“No flag of truce could protect such bonds which have invariably heretofore been held as illegal and disloyal publications, intended to give aid and comfort to the enemy-from confiscation and destruction. On the contrary, a party availing himself of a flag of truce to bring such securities within our lines would be guilty of a violation of the truce, and become amenable to trial and punishment.
" It was probably the discovery of these bonds in Mrs. Darling's baggage which led to her subsequent detention by the military authorities.”
112 The Venice, 2 Wallace, 259; Planters' Bank vs. Union Bank, 16 Wallace, 483; Mrs. Alexander's Cotton, 2 Wallace, 419; Prize Cases, 2 Black, 674 ; Senator Carpenter in Cong. Record, March 20, 1874, p. 22. See letter of February 26, 1874, of QuartermasterGeneral M. C. Meigs, in appendix to this report; Senate Claims Committee's Report, No. 85, 2d sess. 42d Cong., March 27, 1872. In the claim of Cowan & Dickinson, referred to in this report, it was insisted that Knoxville, Tenn., was not “enemy's country.” Early in September, 1863, General Burnside occupied Knoxville with Union forces. The city was beleaguered by the rebel General Longstreet on the 17th November, and his forces made an assault upon the defenses on the 28th. In this assault three brigades of assailants lost about 800 men, and the Union forces about 100. The cotton of Cowan & Dickinson was seized on the nights of the 17th and 18th November, by order of General Burnside, for fortifications. The siege of the city was raised on the 5th of December, and the enemy left that part of Tennessee. This report asserts that Knoxville was not “enemy's country” at the time the cotton was seized. The authority relied on is the case of The Venice, 2 Wallace, 259. The report was made March 27, 1872. But afterward, in December, 1872, the Supreme Court decided the case of Planters' Bank is. Union Bank, 16 Wallace, 495. That case will give some idea as to what is such“ permanent occupancy and control by Union forces” as will show that a district is no longer enemy's country. In that case the court, referring to the exercise of military authority ordering a seizure on the 17th of August, 1863, say: “Then the city of New Orleans was in quiet possession of the United States. It had been captured more than fifteen months before that time, and undisturbed possession was maintained ever after its capture. Hence the order was no attempt to seize property flagrante bello.'”
But this described a very different condition of affairs than existed at Knoxville. There was no“ undisturbed possession." There the seizure was flagrante bello. In this case the Judge-Advocate-General, in an opinion to the War Department, December 4, 1867, said: “The cotton was seized in the enemy's country, and on the theater of the war, and was appropriated to the strengthening of one of our forts, then threatened with an attack by an advanciug column of rebel forces. For this act of legitimate warfare the Government incurred no responsibility.”
The following letter from Hon. B. F. Butler, late major-general, is appended for information:
HOUSE OF REPRESENTATIVES, Tashington, D. C., December 22, 1874. Sir: I have the honor to reply to your letter of December 16, asking certain opin ions in matters of law,
The proposition you state to me is, “ that I occupied the buildings sometimes of
And this is true so long as the proclamation continued in force and as to the places covered by its exceptions.
The President's proclamation of August 16, 1861, declared the inhab. itants of Tennessee and other States “in a state of insurrection against the United States." (12 Stat. at L., 1262.) But it excepted "such parts of States as may maintain a loyal adhesion to the Union and the Constitution, or may be, from time to time, occupied and controlled by forces of the United States engaged in the dispersion of said insurgents.
The proclamation of July 1, 1862, (12 Stat., 1266,) declared eleren State: in insurrection, and excepted only certain counties of Virginia. loyal citizens for the use of the officers of the Army.” That I never did. All the buildings that I occupied while in New Orleans were buildings belonging to the Government, or were those of officers in the confederate army who had deserted New Orleans. By the proclamation made at or about the first day of May, all private property was to be held “inviolate.” Of course that referred to the property of those who were present in the city, and who should remain under the authority of the United States, and conduct themselves in a quiet and peaceable manner, obedient to the laws of the United States; and no such man's property was occupied by me. In Algiers, opposite New Orleans, certain buildings, the property of those who, whether loyal or not, were absent from the city and left their property unprotected, were taken down by the negroes for the purpose of making themselves shanties. That was not done by the order of the military authorities, nor was there permission—but it would have been permitted if it had been asked-and under no circumstances could the United States be held liable for that unauthorized act of trespass. There was no authorization of or contracts under which by the degroes or by others any buildings were occupied.
The law governing all this matter seems to be simply this-I speak, of course, without examiuation of authorities: that where an army occupies and garrisons a town in time of actual war, the occupation of such buildings as are necessary to the use of the army and those depending upon them, with all the costs and damages, is an incident of war, for which the government is in no sense responsible, and ought not to be so held or considered. Au army cannot hold a city without occupying some portion of it; and if they do do so, that is one of the incidents of war, and gives no contract, explicit or implied, against the government of the occupying army.
This is the law, and fully understood in Europe, where the capture and occupation of a city or capital of one nation by the army of another is frequently the case, and no reclamation would ever be made under those circumstances against the government of the conquering army, and none can be made here. I have the honor to be, very respectfully, your friend and servant,
BENJ. F. BUTLER. Hon. WM. LAWRENCE, Chairman Committee on Iar-Claims,
House of Representatives, fleshington, D. C.
The law-officer of the War Department holds that the proclamation of April 2, 1863, did not give even loyal citizens in New Orleans during the rebellion a right to demand compensation for rent of buildings used as a military necessity. This is shown in the following:
WAR DEPARTMENT, BUREAU OF MILITARY JUSTICE,
Washington, D. C., January 4, 1875. Sir: I have the honor to acknowledge the receipt from you of two communications of the 29th ultino: one relating to a claim for the use and occupation of a building taken and used by the military authorities in New Orleans in March, 1863; and the other referring to the matter of the settlement of claims of a similar character, arising, however, in a State not in insurrection. To these communications I have to reply as follows:
1. As to claim for rent of building taken in New Orleans. In your note in regard to this claim, while recognizing the general principle that the United States cannot be held liable for the use of property taken and used in rebel territory pending the late war, you, however, suggest that “the President's proclamation of April 2, 1863, seems to put New Orleans on the footing of loyal territory, just as Ohio or Pennsylvania would be ;” and you conclude with the inquiry, “whether a loyal owner of property in New Orleans is entitled to pay for use and occupation after April 2, 1863," (the date of the proclamation,) “where the occupancy was a military necessity, during 1863 and 1864. Or was there such a state of war that the Government was excused from paying ?”
The very question raised by you, viz, that of the proper construction of the term
And it may well be maintained that this latter proclamation withdrew the exceptions contained in the former.
The exceptions made in the proclamation of August 16, 1861, interfered with the enforcement of the act of July 13, 1861, regulating trade and intercourse, (12 Stat., 257,) and the President issued a proclamation, April 2, 1863, (13 Stat., 731,) revoking the exceptions contained in the former proclamation, but again making or continuing certain local ex. ceptions, but Nashville was not one of them.
Culver vs. United States, N. and H., Court Claims R., 418; S. O. on appeal in Supreme Court; The Venice, 2 Wallace, 258; Planters' Bank vs. Union Bank, 16 Wallace, 493; Ouachita Cotton, 6 Wallace, 531.
But where there has been no hostile military operations, it must be remembered that by the laws of nations war, either foreign or civil, may exist where no battle has been or is being fought.113
No nation in the world's history ever failed to seize any property and occupy it where its armies were surrounded with great perils. “port of New Orleans," as employed in the proclamation referred to, was fully considered by me in a report addressed to the Secretary of War in 1866. The substance of this report is very fully presented in the following abstract, published in the Digest of Opinions of the Judge-Advocates-General, p, 95, section 29:
“ Held, That the President's proclamation of April 2, 1863, by which the 'port of New Orleans? was excepted from the declaration of places in insurrection and the operation of the probibition of commercial intercourse, did not alter the status of real estate occupied by our military forces during the war, or authorize the payment of rent therefor, for the period of occupation subsequent to the date of such proclamation; that the object of this proclamation, which revoked the exceptions of that of August 16, 1861, as too general, and substituted others which were precise and definite, was more effectnally to prevent an illegal commercial intercourse with insurrectionary districts by restricting such intercourse to certain few localities specified; that it was the Executive intent to exempt from the status and penalties of rebellion the port of New Orleans as a harbor, to remove the ban of nonintercourse from it, as such, and not to relieve the people of the city from the legal condition of insurrection in which they had been formerly declared to be, nor to modify in any manner their political relations; that, had it been the design of the Executive to rehabilitate the citizens of New Orleans by this proclamation in all those rights of which they had been restrained by an antecedent solemn decree, it would bave been easy so to decree, and clear and positive language would have been employed for the purpose; and that, in view of the general rule of interpretation, that a law, whether statutory or otherwise, which repeals or restricts the scope of a previously existing provision, is to be strictly construed, the use of the specific word 'port,' in connection with New Orleans, must be regarded as limiting the operation of the exception to the port alone as such."
This opinion (which is still entertained) appears to me to cover your inquiry. In view of the decision of the Supreme Court in the prize-cases, that all the inbabitants of the States in rebellion became public enemies upon the inauguration of the civil war, I scarcely need add that the personal loyalty of the claimant in the instance mentioned by you, (however much it might commend his claim to Congress as proper to be excepted from the general rule of exclusion,) cannot, of course, affect the legal aspect of the case.
J. HOLT, Judge-Advocate-General. Hon. WILLIAM LAWRENCE, Chairman Committee on War-Claims,
House of Representatives.
(See House Report 740, p. 5, and No. 748, p. 2, and No.777, p. 24, all at 1st session 430 Congress. Cutner vs. U. S., 6 Court Claims R., 418,)
113 Const., art. 3, seo. 3, clause 3 ; Ex parte Milligan, 4 Wallace, 121, 140, 142; Luther v. Borden ; Grant v. United States, 1 Nott & Hopkins, Court Claims, 41; s. C., 2'id, 551; Whiting's War-Powers, 43; Ex parte Milligan, 127. The court say to justify martial law “the necessity must be actual and present;' Paschal, Annotated Const., 212, note 215; Ex parte Bollman, 4 Cranch, 126 ; United States v. Burr, 4 Cranch, 469-503; Sergeant, Const., ch. 30, [32;] People v. Lynch, 1 Johns., 553.
OF DAMAGES DONE BY THE ENEMY.
When private property is destroyed by the unlawful acts of individuals, governments seek to give redress by civil action, or to punish for acts which are criminal. But they do not indemnify the parties who may lose by such depredations.
If a loss is sustained by arson, burglary, theft, robbery, or by an act which constitutes only a trespass, governments do not make good the loss. And this is so whether the illegal acts are done by one or many persons.
Nations apply the same rule when their citizens suffer losses by a foreign or doinestic eneiny. They are no more bound to repair the losses of citizens by the ravages of war than to indemnify them against losses by arson, or other individual crimes, or the destruction of flocks by wolves.
In a report made by Alexander Hamilton, Secretary of the Treasury, to the House of Representatives, November 19, 1792, he stated the rule of law to be
That according to the laws and usages of nations, a state is not obliged to make compensation for damages done to its citizens by an enemy, or wantonly or unauthorized, by its own troops. 114
The rule, as thus stated, applies to all damages, whether in battle, or by the seizure of army supplies, or the wantou destruction of private property on a raid or march.
This was declared to be the law as to property destroyed in battle, and not controverted, in the Senate of the United States on the 4th of January, 1871, in these words:
" I admit that it is the law of nations, it is a principle of universal law, that property destroyed in the course of a fight, in the progress of a fight as it is going on, is not to be paid for by even the United States where it is a party to such conflict. I admit that the Constitution of the United States does not bear the interpretation that property destroyed under such circumstances should be paid for by the United States.9115
There are damages caused by inevitable necessity; as, for instance, the destruction caused by the artillery in retaking a town from the enemy. These are merely accidents. They are misfortunes, which chance deals out to the proprietors on whom they happen to fall.
The sovereign, indeed, onght to show an equitable regard for the sufferers, if the situation of his affairs will admit of it; but no action lies against the state for misfortunes of this nature—for losses which she has occasioned, not willfully, but through necessity and by mere accident, in the exertion of her rights. The same may be said of damages caused by the enemy. All the subjects are exposed to such damages; and woe to him on whom they fall! The members of a society may well encounter such risk of property, since they encounter a similar risk of life itself. Were the state strictly to indemnify all those whose property is injured in this manner, the public
114 American State Papers, class ix, vol. 1 of Claims, p. 55; Pitcher vs. United States, 1 Court Claims R., 9; Mitchell 16. Harmory, 13 Howard, p. 115.
This is the rule adopted in a resolve of the Continental Congress June 3, 1784, Journals, vol. 4, p. 443. It was re-iterated and approved by a committee of House of Representatives March 29, 1822, American State Papers, Claims, 858.
115 Senator Davis, January 4, 1871, 82 Globe, p. 297. His State of Kentucky was largely interested in insisting on the liability of the United States wherever the laws of nations, or the Constitution, would admit.
finances would soon be exhausted; and every individual in the state would be obliged to contribute bis share in due proportion-a thing utterly impracticable. Besides, these indemnifications would be liable to a thousand abuses, and there would be no end of the particulars. It is therefore to be presumed that no such thing was ever intended by those who united to form a society.116
The same rule of law was adopted in England when, during the Amer. ican Revolution, the property of British loyalists in the colonies was destroyed.
Mr. Pitt said in Parliament:
The American loyalists could not call upon the House to make compensation for their losses as a matter of strict justice; but they most undoubtedly have strong claims on their generosity and compassion.117
116 Vattel, book 3, chap. xv, \ 232, p. 403.
117 Hansard's Parliamentary History, vol. 27, p. 610-618, June 3, 1788; Sumner's speech January 12, 1869, 71 Globe, 301. He shows that the British loyalists at the close of the war appealed to Parliament. The number of their claims was 5,072; the amount claimed £8,026,045, of which commissioners appointed allowed not quite balf.
This subject was discussed before the American-British Claims Commission, under the twelfth article of the treaty of May 8, 1871, between the United States and Great Britain.
Mr. Hale, in his report, says:
AMERICAN-BRITISH CLAIMS COMMISSION.
3.-Claims for property alleged to have been destroyed by the rebels. In the case of John H. Hanna, No. 2, the memorial alleged in effect that the c-aimant was the owner of 819 bales of cotton, situated within the rebel States of Louisiana and Mississippi, and that “without fault of petitioner, against his consent, and by force and arms, said cotton was destroyed by rebels in arms against the Government of the United States prior to the year 1863.” By the schedules annexed to his memorial, and made a part of the same, it appeared that the cotton in question was destroyed by order of the authorities of the Confederate States and of the rebel State of Louisiana, for the purpose of preventing the same from falling into the hands of the Federal forces.
A demurrer to the memorial was interposed on behalf of the United States.
On the argument of the demurrer it was contended by Her Majesty's counsel, on behalf of the claimant, that the acts of destruction alleged in the memorial appearing to have been deliberately committed under the orders of the commander of the forces of the Confederate States, and with the concurrent authority of the governor of the State of Louisiana and commander of the troops of that State, reclamation must lie on behalf of the British government, in the interest of the claimant as a subject of that government, against the United States as representing and including the State of Louisiana, as well as all the other States forming the so-called Confederate States; that the persons engaged in these acts of destruction were not liable, either civilly or criminally, either for reparation or punishment in respect of those acts, they baving been committed in the course of military operations under the authority of the existing government, whether lawful or usurped.
That for the wrongfui acts of the several States in respect to foreign nations or their subjects, reclamation could be made only against the United States, to the Government of which, by its Constitution, was reserved the power of making treaties, declaring war, and making peace, and all international powers generally, the same being denied to the individual States; that no foreign nation could negotiate with or make demand upon individual States in respect of such acts, but could deal only with the Government of the United States; that in case of wrongs committed by any State upon foreign nations, in regard to which that State, if wholly independent and not a member of the Federal Union, would be liable to reclamation, and to be called to account in the mode practiced between nations—by treaty or by war—these remedies against such State being denied to foreign powers by the Constitution of the United States, the liability for reparation devolved upon the United States, and the Federal Government must be held to answer as well for the acts of the authorities of its several constituent States. as for those of the Federal Government.
That the so-called secession of the State of Louisiana and the other States forming the so-called Confederate States did not extinguish or suspend the liability of the United States for wrongful acts committed by said States.
That by the treaties of 1794, 1815, and 1827, the United States had stipulated with Great Britain for the protection of her subjects in the State of Louisiana as well as in all other territory of the United States; that the United States not having allowed the claim of Louisiana to be released from her constitutional obligations and restric