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may be built on private ground, and the reason assigned is * * because it is for the public safety.

It is a lawful act, imposing no liability on the Government, which is guilty of no wrong, and which makes no promise by the act.

In principle it can make no difference whether a forest or cotton-bales are destroyed by cannonading in batile, in case an army seeks shelter behind them, or seizes them in advance to throw up breastworks for

Yet all writers agree that a nation is not bound to make compensation in such cases as these.

The same position has been judicially assumed. The supreme court of Georgia has said:

It is not to be doubted but that there are cases in which private property may be taken for a public use without the consent of the owner, and without compensation, and without any provision of law for making compensation. There are cases of urgent public necessity, which no law has anticipated, and which cannot await the action of the legislature. In such cases the injured individual has no redress at law—those who seize the property are not trespassers-and there is no relief for him but by petition to the legislature: for example, the pulling down of houses and raising bulwarks for the defense of the State against an enemy, seizing corn and other provisions for the sustenance of an army in time of war, or taking cotton-bags, as General Jackson did at New Orleans, to build ramparts against an invading foe.132

130 Respublica v. Sparhawk, 1 Dallas, 362; Dyer, 8; Brook's Trespass, 213; 5 Bacon, Abr., 175; 20 Viner, Abr., (Trespass,) B, a, sec. 4, fo. 476.

131 The report of Hon. R. S. Hale to the Secretary of State, November 30, 1873, as to claims of British subjects before the American-British claims commission, under article 12, treaty of May 8, 1871, shows that claims of this character were unanimously rejectel. The report says, p. 49: "2.-Claims for property alleged to have been wrongfully injured or destroyed by the forces of

the United States. “These claims were also numerous, and involved a large variety of questions. They included claims for property injured or destroyed by the bombardment of towns of the enemy, as in the case of Charles Cleworth, No. 48; and in other ordinary operations of war, such as the passage of armies, the erection of fortifications, as in the case of Trook, administrator, No. 58, &c.

“ Also, for timber felled in front of forts and batteries to give clear range for the guns and deprive the enemy of cover, as in the cases of Trook, administrator, No. 58, and of William B. Booth, No. 143.

“In these claims for destruction of property, it may be stated generally that, with very few exceptions, and those mostly insignificant, no awards were made agaiust the United States.

“ The claims for injuries by bombardment, the passage of armies, the cutting of timber to clear away obstructions, the erection of fortifications, &c., in the enemy's country, were all disallowed by the unanimous voice of the commissioners.

“The same may be said of the incidental destruction of innocent property involved in the destruction of public stores and works of the enemy.” Toese were in the States proclaimed in insurrection and they asked compensation for property damaged or destroyed in battle.

132 1. Parham vs. The Justices, &c., 9 Georgia R., 341. See report, November 30, 1873, of Hon. R. S. Hale to Secretary of State, of claims decided by commission under 12th article of treaty of May 8, 1871, between United States and Great Britain, pages 44-235. Commissioner Frazer said, as to cotton seized by the United States military forces under orders of General Banks, in Louisiana, and used for fortifications, “No citizen of the United States could, under like circumstances, claim compensation.” He adds:

66 2. The cotton was the property of an enemy of the United States, so recognized by every writer upon international law and so held by all tribunals, both American and British, as well as continental, in every reported case involving the question. The mixed commission, constituted under the convention of 1853, between the two countries, so held in Laurent's case. Indeed, it went further, and held that an unnaturalized Englishman voluntatily domiciled in a country at war with the United States was not even to be regarded as a British subject; thus going a little too far, as I think.

“ The property of Henderson was as liable to capture as the property of Jeff. Davis himself, or any rebel in arms. I believe this is not questioned. That the property itself was a proper subject of capture on land under the modern rules by which civil ized nations govern themselves in war, seems to me to be quite as clear.

“The legislation and the known practice of the rebel authorities made it so. They

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The same principle was stated in a report made by the Committee on Claims to the House of Representatives December 11, 1820. From this report it appeared that a claimant alleged that

She was possessed of a plantation, with sundry buildings, situated below New Orleans, and that during the invasion by the enemy in December, 1814, and subsequently, her dwelling-house was occupied as quarters for some of the officers and a hospital for the sick and wounded, and, while so occupied, her house, outhouses, fences, &c., were damaged.

She claimed compensation for use and occupation and for damages.

The committee in their report say, in effect, that compensation cannot be claimed by virtue of the constitutional provision as to taking “private property for public use," because this provision

Seems to imply a voluntary act on the part of the Government, which in the present case could hardly be alleged, particularly as it respects a large portion of it. There are no known rules or established usage of the Government which would seem to. authorize an allowance in a case thus involved in obscurity.133

The Government has always paid loyal citizens for the use and occupation of buildings and grounds in loyal States when used for officers' quarters, regular recruiting camps, and in cases where the occupation was voluntary and the result of choice, superinduced by no overruling military necessity, and for this the law provides. 134 made cotton the basis of their public credit by a policy which aimed to deal largely in it on Government account, to purchase it even before it was grown, and hypothecate it as security for the payment of loans, with the proceeds of which they did, to a large extent, supply themselves with arms and munitions of war, and with a fleet of armed vessels to infest the ocean and destroy American commerce. They committed it to the flames, whether owned by friend or foe, rather than permit it to reach the markets of the world otherwise than through their own ports; thus endeavoring by warlike operations to secure to themselves a monopoly in supplying the foreign demand, that they might thereby constrain nations abroad to aid them in their struggle. In short, cotton was a special and formidable foundation of the rebel military power. It was more important than arms or ships of war, for it supplied these and all else beside. It was more potent than gold, for it not only commanded gold, but it largely enlisted in behalf of the rebels the interests of foreigners whose manufacturing industry was in a measure paralyzed because this staple was needed to keep it in motion. The necessities and purposes of war, therefore, required its capture at every opportunity more imperatively than the capture of munitions and implements of war; indeed, that necessity was quite as pressing and certainly as humane as the killing of men in battle ; for it was no less efficient as a means of accomplishing the subjugation of the rebel armies, and re-establishing the national authority. It is to me astonishing if there is a difference of opinion upon this subject.

“The Supreme Court of the United States, recognizing to the fullest extent all the limitations which the practice of nations has lately engrafted upon the right of capture upon land, so held in the case of a loyal American widow.' (See the case of Mrs. Alexander's cotton, 2 Black.) This is high authority, especially when it is remembered that that august tribunal las certainly exhibited no tendency whatever to give undne license to military anthority or warlike operations. Complaint, if any, has been altogether in the other direction. But I would be quite content, in the absence of any authority, to trust the question with the common sepse of all civilized nations so long as war in any form shall be recognized as a lawful method of deciding differences. If the capture was rightful by laws of war, it would be a novelty in international law that its exercise involves an obligation to make compensation."

The commission allowed the claim, a voucher having been given by military officer, " by order of Col. S. B. Holabird, for the United States Government."

133 But the report concludes that “in a case of such extreme apparent hardship, it would best comport with the dictates of sound policy that in the exercise of the discretion of Congress some relief should be granted.” (American State Papers, Claims, class ix, p. 753. Here the relief is put on the ground of a discretion, not law.) (See act March 2, 1821, 6 Stat., 258.)

134 House Ex. Doc. No. 124, 1st sess. 43d Congress; see letter of Quartermaster-General M. C. Meigs, February 19, 1874, in part 2 of this report, and letter February 26, 1874, in appendix to this report; act July 16, 1798, sec. 3, ch. 85; act May 8, 1792, sec.5; act March 3, 1799, sec. 24, ch.48; United States 28. Speed, 8 Wallace, 83; Stevens vs. United States, 2 N. & H. Court Claims, 101 ; Crowell's case, id., 501; McKenney is. United States, 4 N. & H. Court Claims, 540 ; Wentworth vs. United States, 5 Court Claims, 309; Scott's Digest Military Laws, 1873, p. 102, sec, 96, &c.

But a temporary occupancy of real estate imposed by overruling necessity-an occupancy continued during the actual existence of suck impending necessity-or the application of materials to purposes of defense in an emergency, has not, by the usage of the Government, been regarded as giving any claim for compensation.

This has been the uniform usage of the War Department, founded on the opinion not only of the Solicitor, but also of the Judge-AdvocateGeneral.135

The Executive Department of the Government has laid down certain rules of law in relation to some questions growing out of the war of the rebellion.

The President, in his message of June 1, 1873, said : It is a general principle of both international and municipal law that all property is held subject not only to be taken by the Government for public uses, in which case, under the Constitution of the United States, the owner is entitled to just compensation, but also subject to be temporarily occupied, or even actually destroyed, in times of great public danger and when the public safety demands it; and in this latter case governments do not admit a legal obligation on their part to compensate the owner. The

135 See opinions of Judge-Advocates-General, vol. 20, pp. 598–525; vol. 26, pp.52, 242, 247; id., 27, p. 304; Digest of Opinions of Judge-Advocates, 1868, pp. 97, 98. As an example, the following is presented : WAR DEPARTMENT, BUREAU OF MILITARY JUSTICE,

August 4, 1866. To the SECRETARY OF WAR:

Dr. W.P. Jones claims $35,000 for damages sustained by the crection by the United States of a fort upon his land near Nashville.

Major-General Thomas reports that he is thoroughly loyal, and recommends allowance of the claim.

In the case of N. Vignie, this Burean, under date of May 7, 1855, submitted the following remarks:

“A clear distinction has always been recognized between the taking of real estate or personal property for such purposes, and the taking of the same for the ordinary uses of peace.”

(Here follows a reference to Whiting's War-Powers, 340, and to 9 Georgia R., 341.)

Èntertaining the conclusions pointed to by the two foregoing citations, this Bureau is of opinion that the claim under consideration, and others of like description, for compensation for the use of land taken and occupied by the forces of the United States for the sites of forts or other works of defense against the public enemy, must be rejected by the War Department, and all parties making such claims must be referred to Congress for relief, if they shall be deemed entitled to any under the general principles of the law of war.

If the above views are approved by the Departinent, this case, notwithstanding the loyalty of the claimant, must be referred to Congress.

VY. WINTHROP, Breret Colonel and Judge-Advocate, in the absence of the Judge-Advocate-General. Official copy, for the Hon. William Lawrence, M. C.

J. HOLT, Judge- Advocate-General. Tlie same principles have been reiterated since, (Digest of Opinions of Judge-Advocates-General, 97,) as follows:

“So held in the case of a claim arising in Tennesses during the war, for alleged damages sustained by the claimant in the erection by the military authorities of a fort upon his land. XXII, 304. So held in the case of the claim of an alleged Spanish subject for indemnity for the destruction of buildings and other property in Louisiana, in the course of the erection of fortifications by our forces. XX, 525. So held in the case of a claim for the value of certain buildings (with their contents) burned by our troops in West Virginia, in January, 1863, by way of a ruse to deceive and divert the enemy-a legitimate act of ordinary warfare—the loss incurred being one of those casualties for which the Government does not become liable to the individual injured. XXVI, 242. And see XXVI, 247, for a case of a claim (preferred subsequently to the passage of the act of February 19, 1867, and co expressly precluded from settlement) for the value of cotton seized at Knoxville, Tenn., in the enemy's country and on the theater of war, and used for strengthening a fort threatened with attack by the rebel forces. XXVI, 247.

temporary occupation of, injuries to, and destruction of property caused by actual and necessary military operations are generally considered to fall within the last-mentioned principle. If a government makes compensation under such circumstances, it is a matter of bounty rather than of strict legal right.136




The question now to be considered is, whether the Government is liable to make compensation for the property of a loyal citizen in a loyal state seized and destroyed or damaged by competent military authority--flagrante belloto prevent it from falling into the hands of the enemy, as an element of strength where warlike operations are in prog. ress, or where the approach of the enemy is prospectively imminent.

The same law prevails when our territory is invaded by a foreign enemy or a loyal State by a rebel invading force.

It has been asserted with great emphasis that the duty to make compensation in such cases as have frequently arisen in each House of Congress

Is a principle not recognized by public law, by the law of nations, or any other code of law or morals known to the civilized world. It has never been applied by our own Government, by the government of Great Britain, or any other civilized government in the world.137

It has been said, on the contrary, with equal earnestness, that there has never been

One single instance in the whole history of this Government since the Constitution was adopted where a claimant of this kind has been turned from the doors of Congress unsatisfied.138

136 Senate Ex. Doc. 85, 2 sess. 42 Cong., veto bill for relief of J. Milton Best.

In Senate Rep. 412, 3 sess. 42 Cong., it is said of this statement of the law by the President:

“ The committee has not found any such general principle affirmed either in international or municipal law, but has found the very reverse of that to be affirmed by all law, international and municipal.”

Among the text-writers, Vattel discusses the very question, “ Is the state bound to indemnify individuals for the damage they have sustained in war ?" But the report omits to quote the next sentence in Vattel, in which he says:

“We may learn from Grotius that authors are divided on this question." Vattel then says :

The damages under consideration are to be distinguished into two kinds—those done by the state itself or the sovereign, and those done by the enemy. Of the first kind some are done deliberately and by way of precautiov, as when a field, a house, a garden, belonging to a private person, is taken for the purpose of erecting on the spot a town-rampart, or any other piece of fortification, or when his standing corn or his store-houses are destroyed to prevent their being of use to the enemy. Such damages are to be made good to the individual, who should bcar only his quota of the loss." 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. (Vattel, 6th Am. ed., 402.)

The rule stated by Vattel is elsewhere hereafter referred to, and it is shown that its correctness has been denied in a note to the American edition of 1872, referring to 4th Term R., 382, and by Grotius and many other authorities.

137 Roscoe Conkling in Senate, December 14, 1870, 82 Globe, 98, on claim of J. Milton Best; see President's veto-message, June 1, 1872.

138 Senator Howe, January 4, 1871, 82 Globe, 302, referring to the claim of J. Milton Best.



In this conflict of opinion it becomes necessary to consider the question somewhat elaborately.

There are five modes in which the Government has a right to take or use private property:

1. By taxation.139

2. As punishment for crime under judicial sentence, or by sentence of a court-partial.?

3. In virtue of the right of eminent domain for public use, with just compensation.141

4. By the law of "overruling necessity,which Lord Hale calls the lex temporis et loci, and which is both a war and peace power.

5. By the war-power on the theater of military operations, flagrante bello, for military purposes.143

The power to take in these several modes must have for each an appropriate sphere of operation; they all stand in pari materia, and the right in no one can be so omnipresent or exclusive as to enroach upon or destroy the other. These are axiomatic principles, universally admitted.

The right to take property in the first, second, and fourth class of cases named exists without any duty to make “just compensation" in money.

The question of the liability of the Government to make compensation for property taken and damaged, or destroyed to prevent it from falling into the hands of an enemy, must be determined by a consideration of the cbaracter of the power exercised, and the purpose or reason of the seizure.

This question, as was very well said by the supreme court of Pennsylvania in September, 1788, in the case of Respublica v. Sparhauk, 1 Dallas, 362, is to be governedBy reason, by the law of nations, and by precedents analogous to the subject before us.

First, then, on principles of reason, should the Government be liable to make compensation? This may be considered with reference to the reason as applied to citizens, and as applied to the Government. Upon the plainest principles of right and propriety, a military officer, even in flagrant war, would not be justified in seizing and destroying the property of a private citizen to prevent it from falling into the hands of the enemy, unless the danger be immediate and impending," or be reasonably certain to happen during hostile military operations; for if this be pot so, the officer acting without necessity or excuse would be. come a trespasser, and his act would be one of lawless violence, for which he would, and the nation would not, be liable in damages.

139 Constitution, art. 1, sec. 8, clause 1, (ante,) Clark 1. Mayor, 13 Barb., N. Y. S. C. R., 35. This is not an exercise of the right of eminent domain, Gilman v. Sherloygan, 2 Black R., 510; see Steubenville and lud. R. R. Co.2. Tascarance Co., 6 Pittsburgh Legal Journal, 68, cited in Brightley's Federal Digest, 158, sec. 4, 0. C.; Hallenback v.

Hahn, 2 Nebraska, 400 ; People v. Mayor, 4 Comst., N. Y., 424; Hanson v. Vernon, 27 Iowa, 28; Booth v. Woodbury, 5 Am. Law. Regr., N. S., 212; Commissioners v. Miller, 7 Kansas ; McCullough v. Maryland, 4 Wheat., 425.

140 Constitution, art. 3, sec. 1, clause 3, &c.; amendments, art. v, vi, viii. Grotius, b. 2, ch. 14, sec.7.

141 Constitution, art. v, amendments. Eminent domain is a civil right.” Grant r. U.S., 1 Court Claims, 45; American Print-Works v. Lawrence, 1 Zabriskie, 258. Grotius, b. 2, ch. 14, sec. 7; id., b.3, ch. 20, sec. 7; 2 Nebraska, 400, note 113 post.

142 Hale v. Lawrence, 3 Zabriskie, 728–9; Grant v. U.S., 1 Court Claiins, 45 ; Respublica v. Sparhawk, 1 Dallas, p. 362.

143 13 Howard, 140; Whiting's War-Powers, 26.

144 Mitchell v. Harmony, 13 Howard, 115 ; Grant 2. U.S., 1 Nott & H., Court of Claims, 45, 47, 48; American State Papers, part ix, Claims, vol. 1, p. 55; Pitcher 2. U. S., 1 Court of Claims, 9; Gibbons v. U. S., 8 Wallace, 269.


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