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There is a work entitled the Diplomatic Correspondence of the American Revolution, being the letters of Benjamin Franklin, Silas Deane, John Adams, John Jay, Arthur Lee, Wm. Lee, Ralph Izard, Francis Dana, Wm. Carmichael, Henry Laurens, M. De Lafayette, M. Dumas, and others, concerning the foreign relations of the United States during the whole Revolution, together with the letters in reply from the Secret Committee of Congress and the secretary of foreign affairs; also the entire correspondence of the French ministers, Gerard and Luzerne, with Congress. Published under the direction of the President of the United States from the original manuscripts in the Department of State, conformably to a resolution of Congress of March 27, 1818. Edited by Jared Sparks. Volumu X. Boston: Nathan Hale and Gray & Brown; 1830.

The proposed article will be found in this work (p. 106, &c.,) as follows: Article proposed and read to the conmissioners before signing the preliminary articles.

It is agreed that His Britannic Majesty will earnestly recommend it to his Parliament to provide for and make a compensation to the merchants and shop-keepers of Boston, whose goods and merchandise were seized and taken out of their stores, warehouses, and shops, by order of General Gaye and others of his commanders, and officers there, and also to the inhabitants of Philadelphia, for the goods taken away by bis. army there, and to make compensation also for the tobacco, rice, indigo, and negroes, &c., seized and carried off by his armies under Generals Arnold, Cornwallis, and others, from the States of Virginia, North and South Carolina, and Georgia, and also for all vessels and cargoes belonging to the inhabitants of the said United States, which were stopped, seized, or taken, either in the ports, or on the seas, by his governors, or by his ships of war, before the declaration of war against the said States.

FACTS.

There existed a free commerce, upon mutual faith between Great Britain and America. The merchants of the former credited the merchants and planters of the latter with great quantities of goods, on the common expectation that the merchants having sold the goods, would make the accustomed remittance; that the planters would do the same by the labor of their negroes, and the produce of that labor, tobacco, rice, indigo, &c.

England, before the goods were sold in America, sends an armed force, seizes those goods in the stores—some even in the ships that brought them-and carries them off ; seizes, also, and carries off the tobacco, rice, and indigo provided by the planters tó raake returns, and even the negroes, from whose labor they might hope to raise other produce for that purpose.

Britain now demands that the debts shall, nevertheless, be paid.
Will she, can she, justly refuse making compensation for such seizures ?

If a draper, who had sold a piece of linen to a neighbor on credit, should follow him, take the linen from him by force, and then send a bailiff to arrest him for the debt, would any court of equity award the payment of the debt without ordering a restitution of the cloth ?

Will not the debtors in America cry out that, if this compensation be not made, they were betrayed by the pretended credit, and are now doubly ruined; first by the enemy, and then by the negotiators at Paris, the goods and negroes sold them being taken from them, with all they had besides, and they are now to be obliged to pay for what they have been robbed off?

But the article was not agreed on.

There is in the fourth volume of the secret journals of the Congress of the Confederation, prior to the treaty of peace, much information on this subject. The result of all is that, on principles of international law, nations do not recognize a liability to indemnify citizens who suffer osses from acts of the public enemy in war.

There is a class of cases which may be said in some sense to form an exception to this rule.

A receiver of public money is not accountable for funds in his hands which were forcibly seized by the rebel authorities during the rebellion, against his will and without fault or negligence on his part. (United States v. Thomas, 15 Wallace, 337.) But in such case he is not protected if he has neglected to promptly

H. Rep. 134-18

disburse or pay money into the Treasury as his duty requires. (Bevans v. United States, 13 Wallace, 56; Halliburton v. United States, 13 Wallace, 63. See, also, the report of the Committee on War.Claims in House of Representatives, second session Forty-third Congress, as to the so-called Saint Albans raid, and report of Senate Committee on Claims as to the claim of the First National Bank of Saint Albans to be indemnified for loss of Government bonds in the bank seized and carried away by the rebel raiders.)

There is another class of cases in which compensation is sometimes provided for damages inflicted by the enemy. During the rebellion in the United States the rebels frequently made raids on loyal citizens in the insurrectionary States and carried away and destroyed their property. In such cases the Union military authorities sometimes made and collected assessments on disloyal citizens in the vicinity of the raids, and with it indemnified the parties suffering loss. One object of this was to give indemnity and protection to loyal citizens, and another was to discourage such raids and to make disloyal citizens earnest in opposing them. The indemnity-money in such cases was generally paid by the military authorities directly to the parties injured. If for any cause they were absent or could not be found, the money was used by the Army or paid into the Treasury. When so used or paid the Government has deemed it just to pay, on proper application and proof, by special act of Congress. 119

CHAPTER IV.

PROPERTY DESTROYED OR DAMAGED IN BATTLE BY THE GOVERNMENT

FORCES, OR WANTONLY, OR UNAUTHORIZED BY ITS OWN TROOPS.

* *

The American rule of international law was early adopted, that the Government was under no obligation to compensate its citizens for property destroyed or damages done in battle or by necessary military operations in repelling an invading enemy.120

To this rule Alexander Hamilton added thatAccording to the laws and usages of nations a state is not obliged to make compensation for damages done to its citizens wantonly or unauthorized by its own troops."

This is the general rule which is recognized now.122

119 This subject is discussed in the debate in the House of Representatives February 12, 1875, on a bill for the relief of John Aldridge.

120 American State Papers, Clainis, 199, February 13, 1797 : A committee of the House of Representatives made a report on a claim for “compensation for a dwelling-house burned in Massachusetts, in March, 1776, by order of General Sullivan, commanding the American troops. The house was in possession of British troops, and for the purpose of dislodging them General Sullivan sent troops with orders to set fire to the building, which was done.''

The committee say: The loss of houses, and other sufferings by the general ravages of war, have never been compensated by this or any other government. In the history of our Revolution sundry decisions of Congress against claims of this nature may be found. Government has not adopted a general rule to compensate individuals who have suffered in a similar manner."

121 Report to Congress, November 19, 1792; American State Papers, Claims, 55.

122 In the report made November 30, 1873, by Hon. Robert S. Hale, counsel of the United States before the commission of claims under the 12th article of treaty of 8th May, 1871, between the United States and Great Britain, is a statement of claims made by citizens of Great Britain against the United States, and the decision thereon as follows:

“In the case of Thomas Stirling, No. 12, were included as well claims for property It has been said, again, thatNo government, but for a special favor, has ever paid for property even of its own citizens, destroyed in its own country, on attacking or defending itself against a common public enemy, much less is any government obliged to pay for property belonging to neutrals domiciled in the country of its enemy which may possibly be destroyed by its forces in their operations against such enemy.123

Mr. Seward, Secretary of State, said, in relation to a claim made upon the United States by a French subject for property destroyed by the bombardment of Greytown, in July, 1854, that

The British government, upon the advice of the law-officers of the Crown, declared to Parliament its inability to prosecute similar claims. In 1857 Lord Palmerston applied the decision in the case of Greytown as a precedent for refusing compensation to British merchants whose property in a Russian port had been destroyed by a British squadron during the Crimean war. _(See note in Lawrence's Wheaton, p. 145.)

The governments of Austria and Russia have applied the doctrine involved in the Greytown case to the claims of British subjects injured by belligerent operations in Italy in 1849 and 1850. (See note p. 49, vol. 2, of Vattel, Guilaumin & Co.'s edition, 1863.)

We have applied the same principle in declining to make reclamations for citizens of the United States whose property was destroyed in the bombardment of Valparaiso by a Spanish fleet, and in resisting the claims of subjects of neutral powers who sustained injury from our military operations in the Southern States during the recent rebellion. It will probably be found a sufficient answer to the reclamations of many of our citizens who have sustained losses from belligerent operations on both sides during the recent occupation of Mexico by French troops.124 destroyed by the United States Army in its marches and encampments in the State of Virginia, as for horses, carriages, cattle, hogs, flour, corn, and bacon alleged to havə been taken and carried off by the soldiers. The proofs showed nothing beyond the disappearance of the property in the presence of the United States Army. The decision of the commission, in which all the commissioners joined, was made in the following words:

“ The acts done upon which this claim is based seem to have been the ordinary results incident to the march of an invading army in a hostile territory, with possibly some unauthorized acts of destruction and pillage by the soldiery, with no proof of appropriation by the United States. Under such circunstances there is ground for a valid claim against the United States. The claim is, therefore, disallowed."

“In the case of the Misses Hayes, No. 100, milliners, at Jackson, Miss., a claim was made for a stock of millinery goods and like property, alleged to have been taken by soldiers of the United States Army on the first capture of Jackson, in May, 1863. The acts complained of appeared, if committed by United States soldiers, to have been acts of pillage merely, and the claim was unanimously disallowed.”

“In the cases of Michael Grace, No. 132, Elizabeth Bostock, No. 133, Thomas McMahon, No. 136, and others, at Savannah, being claiins for property alleged to have been taken and appropriated by United States soldiers, the same appeared to have been by acts of unauthorized pillage, and were rejected.”

And Mr. Hale says, again, as to property taken," where the property was in its nature not a proper subject of military use, or, being such, was not applied to military use, or where the taking appeared to be mere acts of unauthorized pillage or marauding, the claims were disallowed.”

And again, page 50:

" In several cases there were allegations of the wanton destruction of property by United States troops, and in some cases satisfactory proof was made of the fact of such destruction by soldiers without command or authority of their commanding officers and in defiance of orders.

“In the case of Anthony Barclay, No.5, allegations were made of wanton destruction of property, including valuable furniture, china, pictures, and other works of art, books, &c. The proof was conflicting as to whether the injuries alleged were committed by soldiers or not; but if committed by soldiers, it was plainly not only without authority, but in direct violation of the orders of General Sherman. In the award made in favor of Mr. Barclay, I am advised that nothing was included for property alleged to have been destroyed.

“ For property alleged to have been wantonly and without provocation or military necessity destroyed or injured in the enemy's country, as in the cases of Anthony Barclay, No. 5; Godfrey Barnsley, No. 162, and in the Columia cases.

The claims were not allowed.
123 Perrin vs. U. S., 4 Court Claims, 547.
124 Letter to Hon. Charles Sumner, February 26, 1868, 4 Court Claims R., 548.

*

This is the rule recognized by Vattel, who says: “But there are other 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.

No action lies against the state for misfortunes of this nature; for losses wbich she has occasioned, not willfully, but through necessity and by mere accident in the exertion of her rights.??125

These principles are generally recognized, and any departure from them rests on mere gratuity or other exceptional reasons.

126

CHAPTER V.

TEMPORARY OCCUPATION OF, INJURIES TO, AND DESTRUCTION OF PROPERTY CAUSED BY ACTUAL AND NECESSARY

AND NECESSARY GOVERNMENT MILITARY OPERATIONS TO REPEL A THREATENED ATTACK OF, OR IN ADVANCING TO MEET, AN ENEMY IN FLAGRANT WAR.127

By the principles of universal law recognized anterior to the Constitution, in force when it was adopted, and never abrogated, every civilized nation is in duty bound to pay for army supplies taken from its loyal citizens, and for all property voluntarily taken for or devoted to “public use."

But there is a class of cases in which property, real or personal, of loyal citizens may be temporarily occupied or injured, or even destroyed, on the theater of and by military operations, either in a loyal State or in enemy's country, in time of war, as a military necessity. The advance or retreat of an army may necessarily destroy roads, bridges, fences, and growing crops.

In self-defense an army may, of necessity, erect forts, construct embankments, and seize cotton-bales, timber, or stone, to make barricades.

In battle or immediately after, and when it may be impossible to procure property in any regular mode by contract or impressment, self-preservation and humanity may require the temporary occupancy of houses for hospitals for wounded soldiers, or for the shelter of troops, and for necessary military operations which admit of neither choice nor delay.

In these and similar cases the question arises whether there is a deliberate voluntary taking of property for public use requiring compensation, or whether these acts arise from and are governed by the law of overruling military necessity—mere accidents of war inevitably and unavoidably incidental to its operations—and which by international law impose no obligation to make recompense. It seems quite clear that they are of this latter class.

This is so upon reason, authority, and the usage of nations. 125 Vattel, book 3, ch. xv, Ø 232, p. 403.

126 In report of Hon. R. S. Hale to Secretary of State, Nov. 30, 1873, of the proceedings of the commission under 12 art., treaty of 8 May, 1871, between United States and Great Britain, it is said, “In the case of Watkins and Donnelly, administrators, No. 329, an award was made against the United States, in which all the commissioners joined, for property pillaged by United States soldiers in the night from a country store in Missouri, a State not in insurrection, upon proof showing great neglect of discipline on the part of Colonel Jennison, the commanding officer, and his neglect and refusal to take any steps for the surrender of the stolen property or the punishment of the offenders when notified of the facts, and that a part, at least, of the stolen property was then in possession of his troops."

127 See this subject discussed somewhat in notes 53-64.

Most of the considerations applicable to the destruction of property in battle, or to prevent it from falling into the hands of the enemy, are equally appropriate here. Some of these have been and others will hereafter be more fully stated. And if property may be so destroyed without incurring liability, why may not property temporarily occupied or even damaged, when the purpose is the same, to prevent it from being useful to the enemy? The greater includes the less. These cases rest on principles entirely distinct from those which relate to and govern ordinary army supplies. There is no reason why one citizen should furnish quartermaster's or comissary supplies rather than another. The Gov. ernment can, as to these, exercise a discretion; it can buy from any who may have to sell, or select those from whom it will impress. Here is a deliberate voluntary taking for public use.

But an army advancing to meet an enemy has no discretion in selecting its route. The public safety compels it to pursue that which is most practicable.

If crops stand in the way, their destruction by the march may be inevitable and unavoidable, a mere accident and incident of military operations, as much so as the destruction caused by battle.

On principle, the Government cannot be liable to make restitution for the damage, unless it has assumed to do so by an implied contract or has been guilty of a wrong.

There is in such case no contract, for this implies consent, deliberation, choice. It implies that what is done is not done as of right or by lawful authority, but by consent of all parties in interest. 66 If a man is assaulted, he may (lawfully) fly through another's close," and he does not thereby become a party to a contract to pay any damage he does, 128 because his act is lawful. It is the exercise of a legal right.

So a nation, on the same principle, makes no implied promise to pay when its army retreats from a pursuing enemy or advances to prevent his blow.

Nor is a nation in such case liable as a trespasser or wrong-doer. "A trespass *

* from the very nature of the term transgressio imports to go beyond what is right.9129 An army in its march performs an imperative duty-justified by the law of nations-required by the public safety.

The rule has been thus stated by the late solicitor of the War Department:

If one of our armies marches across a corn-field, and so destroys a growing crop, or fires a building which conceals or protects the enemy, or cuts down timber to open a passage for troops through a forest, the owner of such property, citizen or alien, has no legal claim to have his losses made up to him by the United States. Misfortunes like these must be borne wherever they fall. If any government is obliged to guarantee its subjects against losses by casualties of public war, such obligations must be founded upon some constitutional or statute law. Thus far no such obligations have been recoguized in our system of congressional legislation. (Whiting's War-Powers, 43d ed., 1871, p. 340.)

Damages done by the erection of forts, the seizure of timber or materials for barricades, under pressure of military necessity, give no legal right to compensation.

"In time of war," said the supreme court of Pennsylvania, bulwarks

128 5 Bacou, Abr., 183; Respublica v. Sparhawk, 1 Dallas, Pa., 362. 129 5 Bacon, Abr., 150; Respublica v. Sparhawk, 1 Dallas, 362.

In Perrin v. United States, 4 C. of Cls. R., 547, where a French subject made a claim against the Government for property destroyed by the bombardment of Greytown, the court said:

“ The claimant's case must necessarily rest upon the assumption that the bombardment and destruction of Greytown was illegal, and not justified by the law of nations."

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