It has been determined, also, that under certain circumstances the officer is not the sole judge of the necessity of seizing and destroying.145 Now, as a matter of common sense and reason, the owner of property is no more injured if it is destroyed by our own Government than if by the enemy. The loss to him is the same in either case.

Yet no statesman or writer on the laws of nations ever claimed that a Government is bound by any principle or rule of law to make compensation for property taken or destroyed by the enemy in time of war, nor by its own military forces in actual battle.147

146

It has been said, with a force of reason which has not yet been answered, that where property is taken to prevent it from falling into the hands of the enemy, the position of property so situated is the owner's misfortune.

He is not to be relieved of it at the cost of the United States, for they are not responsible to him for the circumstances that created it.148

To require the Government to pay where it is guilty of no wrong, no omission of duty, in the exercise of both a right recognized by the civilized world and enjoined by the highest duty and for the common good, would be the harshest rule that could be recognized. If the property of a citizen is in a position where it is reasonably certain he will lose it by the seizure of an enemy, he cannot be said to be in any worse position because it is seized by his own government.

All writers agree that the government incurs no liability by destroying it in battle, or for destroying it in an attempt to recapture it from an enemy. Bynkershoek says of the property of loyal citizens:

Those goods may be properly taken by us, by the laws of war, if they have been before taken by our enemies.149

What difference can it make to the owner whether his property is destroyed immediately in advance of a battle, or in the conflict, or in an effort to recapture? To say that a nation is not liable if it applies the match and blows up a house a moment after the enemy gets in it, but is liable for doing the same thing a moment before, would seem a very reductio ad absurdum,150

145 Mitchell v. Harmony, 13 Howard, 115, perhaps does not necessarily so decide. In that case, property was taken, not from "necessity," but "for the purpose of insuring the success of a distant expedition," thereafter to be prosecuted. The property was not destroyed. See Ex parte Milligan, 4 Wallace, 2; Martin v. Mott, 12 Wheat., 19; Whiting's War Powers, 67; Luther v. Borden, 7 Howard, 45; American Print-Works v. Lawrence, 1 Zabriskie, 260, and cases cited. A ratification by the Government of an act done by military authority relieves the officer from liability; Baron v. Denman, 2 Exchequer, 189. This modifies a case found in vol. ix, p. 404, of Niles Register, March, 1816, in which it is said martial law cannot be declared but subsequent to an act of the legislature authorizing it, and that a British farmer in Upper Canada recovered damages from a commissary for taking 100 bushels of wheat under_martial law. See Milligan v. Hovey, 3 Bissell, U. S. Circuit Court R., 13 American Law Register, N. S., 122 ; Stevens v. U. S., 2 Court Claims, 95. See Linds v. Rodney, 2 Douglass, 613; Elphintone v. Bedreechund, 1 Knapp's P. C. R., 300; Coolidge v. Guthrie, Swayne, J., U. S. circuit court, S. district Ohio, Oct., 1868, in appendix to (43d ed., 1871) Whiting's War Powers, 591. In Report No. 600, House Reps., 1 sess. 36 Congress, May 26, 1860, Mr. Stanton, of the Committee on Military Affairs, in a case similar to that of Mitchell v. Harmony, said the officer" was the proper judge." See Ex parte Milligan, 4 Wallace, Martin v. Mott, 12 Wheaton, 19; Whiting's War Powers, 67; Luther v. Borden, 7 Howard, 45.

2;

146 Senator Davis, January 4, 1871, 82 Globe, 297; Alexander Hamilton, Nov. 19, 1792, American State Papers, part ix, vol. 1, Claims, p. 55.

147 Vattel, ch. xv, p. 402, and authorities heretofore cited.

148 Loring, J., dissentiente, Grant's case, 2 Court Claims, 552; 1 Id., 41.

149 1 Laws of War, ch. v.

150 See President Grant's veto-message, February 12, 1872, Senate Ex. Doc. 42, 3d sess. 42d Cong., as to Manchester, Ky., salt-works.

It may be said the Government should be liable for destroying a house when its seizure by the enemy might be only for the purpose of temporary occupancy, but not with a purpose to destroy it.

But if the enemy occupy a house the Government may in battle destroy it to dislodge him, and in such case incur no liability. It can make no difference to the owner whether it be destroyed a moment before or a moment after the enemy enter it. The destruction is an accident of war growing out of the situation of the house with reference to the conflict.

In such case, too, the reason of the rule mentioned by Grotius, which exempts a nation from liability for damage done by the enemy, may well apply, "in order to make every man more careful to defend his own."

To hold the Government liable under such circumstances would furnish an inducement to owners of property in times of danger to magnify it in order to induce the Government to destroy it and so become an insurer against peril; it would remove the inducement of citizens to throw obstacles in the way of the enemy's approach; it might encourage citizens rather to invite or aid it; it would diminish the motive to furnish supplies and aid to our Army in advancing to anticipate or defeat the approach of the enemy, and in all these modes disregard the maxim salus populi suprema lex. This overpowering and relentless rule of the supreme law of public safety is one which the stern necessities of war can neither safely omit nor mitigate.

A rule which would hold the Government liable might sometimes furnish an excuse for treacherous officers to omit necessary destruction of property, or induce a nation financially embarrassed to desist from the only means of preserving its existence. These considerations, so immeasurably important, should never be left to turn the hesitating scale in a moment of peril.

A nation should not be liable for property taken to prevent it from falling into the hands of an enemy, because it is impossible to establish any just measure of damages. What is the value of property liable to the imminent impending danger of being taken or destroyed by rebels? Why should the Government pay when the markets of the world could not supply another purchaser ?

There are other considerations of public policy connected with this subject which cannot be overlooked.

Vattel, in assigning reasons why an invaded nation is not liable to its citizens for the ravages of war, says, "the public finances would be exhausted,” and “these indemnifications would be liable to a thousand abuses."

Now, all these reasons apply with very great if not equal force to the damages now under consideration.

151

151 See 2 Greeley's American Conflict, 611; Sumner's Speech, January 12, 1869, 71 Globe, 301; Alexander's Cotton, 2 Wallace, 420; Senator Conkling, December 14, 1870, 82 Globe, 98; Senator Chandler, December 14, 1870, 82 Globe, 100; Senator Howe, January 4, 1871, 82 Globe, 303; Whiting's Opinion, January 15, 1864, in Globe, May 20, 1864, vol. 52, p. 2390.

The President, in his annual message, December, 1873, says to Congress :

"Your careful attention is invited to the subject of claims against the Government, and to the facilities afforded by existing laws for their prosecution. Each of the Departments of State, Treasury, and War have demands for many millions of dollars upon their files, and they are rapidly accumulating. To these may be added those now pending before Congress, the Court of Claims, and the southern claims commission, making, in the aggregate, an immense sum. Most of these grow out of the rebellion, and are intended to indemnify persons on both sides for their losses during the war; and not a few of them are fabricated and supported by false testimony. Projects are

This question involves to some extent the theory and nature of gov

ernment.

The preamble to the Constitution declares that it was ordained—

To form a more perfect Union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty.

A. government organized to insure domestic tranquillity and the common defense is ex necessitate clothed with the power to employ the necessary means to secure the end. But it is not necessary to invoke the aid of this well-known rule. The Constitution, in recognizing the laws of nations and the war-power, gives the Government a right to employ the means which it may declare necessary, or which nations usually employ, to make the common defense. These laws give the power and create the duty to seize property in time of war to prevent it from falling into the hands of an enemy. Where a nation exercises a lawful power in a lawful mode in the performance of an absolute duty, it would reverse every precept of reason, justice, and the whole logic of the common law, to hold it liable and guilty as a trespasser or a tort feasor. Nor is there any principle on which to rest an express or implied contract to pay in the class of cases under consideration. No act of Congress has created any such liability.

It cannot grow out of any obligation of the Government, for no principle of law, no writer, has ever declared it an insurer of the safety of its citizens from the perils which exist in all wars. On the contrary, the Constitution, by recognizing and conferring war-powers, admonishes all who share the privileges of Government of the dangers and perils of war.

There is no constitutional obligation to make compensation in this class of cases, unless it be found in the last clause of the fifth amendment to the Constitution, which, after reciting certain principles, most of which relate to rights of person and property in a state of peace and by civil administration, concludes by saying:

Nor shall private property be taken for public use without just compensation.

This can have no reference to the war seizure and destruction property, unless

1. This clause relates to war-measures and the exercise of military powers; nor unless

2. The destruction indicated is a "public use."

This constitutional provision does relate to property in time of peace. It does relate to property not in the "enemy's country," and not in the on foot, it is believed, to induce Congress to provide for new classes of claims, and to revive old ones through the repeal or modification of the statute of limitations, by which they are now barred. I presume these schemes, if proposed, will be received with little favor by Congress, and I recommend that persons having claims against the United States cognizable by any tribunal or department thereof, be required to present them at an early day, and that legislation be directed as far as practicable to the defeat of unfounded and unjust demands upon the Government; and I would suggest, as a means of preventing fraud, that witnesses be called upon to appear in person to testify before those tribunals having said claims before them for adjudication. Probably the largest saving to the national Treasury can be secured by timely legislation on these subjects of any of the economic measures that will be proposed.

On the 11th March, 1818, a report was made to the House of Representatives as to war-claims, under the act of April 9, 1816, in which it is said the documents from the commissioners of claims "develop the fact that on the frontiers of New York a system of fraud, forgery, and perhaps perjury, has been in operation, which the committee believe has never been witnessed in this country. It may well be questioned whether, in a national point of view, it would not have been better that the law of April, 1816,

immediate theater where armies are operating or war is flagrant, and battle in progress or imminent, in loyal territory. In such cases the laws of peace prevail. By its very terms, and upon the maxim, noscitur a sociis, this provision applies wherever the laws of peace prevail. That a provision confessedly so applicable can be ubiquitous or operative in a double capacity in peace, and concurrently with the laws of war, operating differently at the same time, in different places, may be more difficult to conceive.

That it does admit the right of eminent domain is clear, but that it does not extend such right to the cases of property seized by military authority and destroyed in war, upon principles of overruling military had never been passed. It is the duty of a good government to attend to the morals of the people as an affair of primary concern."

There are now pending before the commissioners of claims, under the act of March 3, 1871, 17,048 claims, amounting to $50,000,000.

In a speech in the House of Representatives, February 7, 1874, Mr. Lowndes said : "By reference to the Quartermaster-General's report for 1871, we find that from 1864 to 1871 there were filed in his department 28,039 claims. Out of that number 4,950 were approved, and claims allowed amounting to the sum of $2,078,083.05. There were 12,923 claims rejected, which amounted to $8,308,254.07; and 6,231 were suspended, amounting to $2,663,036.35; and only 3,935 claims remained to be acted upon, representing the sum of $3,884,094.45.

"A great many of the claims marked suspended are virtually rejected, as they have been laid aside on account of insufficiency of proof; which insufficiency or deficiency can never be given or supplied.

"Since the report of 1871 there has been filed in the Department 3,087 claims, representing $3,508,039.34; and during the same time 1,905 claims, representing $2,232,340.59 have been acted upon, leaving about 5,116 claims, amounting to $5,159,793.20, still pending, requiring action by the Department."

See also House Executive Document No. 121, first session Forty-third Congress; report Quartermaster-General, page 225, of Executive Document No. 1, part 2, House of Representatives, Forty-second Congress, second session.

The following statement of the amount of claims, as made and as allowed by the commissioners of claims under the act of March 3, 1871, in their first three annual reports, will illustrate this subject also:

See remarks of Mr. Delano (now Secretary of the Interior) in the House of Representatives, January 30, 1866, 56 Globe, 509-512; and in the report he made from the Committee of Claims, January, 1866, House of Representatives, No. 10, first session Thirty-ninth Congress. In the debate he said that the magnitude of the ravages of war were such that it would be an act of injustice to the people to heap upon the Government the liability resulting from their assumption. He added: "It would result, I think, in shaking the credit of the nation. It would place us in a condition of liability, I imagine, vastly beyond our capacity of endurance."

As to criminal liability for making fraudulent claims on the Government, see act 2 March, 1863, ch. 67, 12 Stat., 696, secs. 1-3; act 2 March, 1867, ch. 169, 14 Stat., 484, sec. 30; Scott's Analytical Digest Military Laws, sec. 78.

See Garfield's speech in Congressional Record of June 29, 1874. Senator Davis's speech in Senate, May 13, 1874, estimates claims $88,527,121 before Congress-Commissioners of Claims, Commissary, and Quartermaster-General.

necessity analogous to the "belligerent right of capture and destruction of enemy's property in enemy's country,"152 has been often affirmed.

But there is a law of "OVERRULING NECESSITY," entirely distinct from the right of eminent domain. Clark v. Mayor, 13 Barbour, N. Y. S. C. R., 35.

The Constitution, as originally made, contained no provision requiring just compensation for private property taken for public use. It was silent as to that. But the principle that such compensation should be made, as Story says,

Is founded on natural equity, and is laid down by jurists as a principle of universal law. 153

This principle antedates the Constitution, existed when it was adopted, is not abrogated by it, and was therefore in force without the fifth amendment, which only affirms it, but makes no new law in this respect. So the law of overruling necessity antedated the Constitution, existed when it was adopted, is not abrogated by it, therefore admits it, and has through our whole history been recognized in courts, both under national and State authority.

It is a law, too, for peace and war, and may be exercised by civil and military authorities.

And, unlike the right of eminent domain, whatever power is exercised in virtue of the law of overruling necessity, does not generally create a claim for compensation or damages on the citizens or Government

152 Senator Carpenter, January 4, 1871, 82 Globe, 300. Senator Edmunds, January 5, 1871, 82 Globe, 311. Grant vs. United States, 1 Court of Claims, 45.

Vattel says: (6 No action lies against the state for losses which she has occasioned, not willfully but through necessity." (Ch. xv, p. 403.)

On the 11th December, 1820, the Committee on Claims of the House of Representatives made a report on a claim for use and occupation of houses, and damages thereto, by General Jackson's officers, and for hospitals, during the invasion of the British at New Orleans in 1814, in which it is said, referring to the demand as based on the fifth amendment to the Constitution, that "the taking of 'private property for public use' would seem to imply a voluntary act on the part of the Government, which in the present case could hardly be alleged." (American State Papers, Class ix, Claims, vol. 1, p. 753.)

This is possibly more doubtful than the question whether property destroyed as a military necessity is taken for a use. Such property is not used. All writers agree that the destruction of property in a battle is not a taking for public use within the meaning of the Constitution. Then how is a destruction for war purposes just before a battle a use of the property? It cannot be so. The Government does not use, but destroys, to prevent the enemy from using. A destruction of property is very different from an ordinary taking for the public use. This belligerent right of destruction is distinct from and should not be confounded with the right of eminent domain. It is agreed by writers that this clause of the fifth amendment recognizes and affirms the right of eminent domain, and that is a peace power-" a civil right."

Undoubtedly even in time of war Congress may, by law, authorize the exercise of the right of eminent domain in aid of military operations. But this is a peace power. It operates by or in pursuance of a statute. It employs judicial process.

But the war power may act without statute, and in flagrant war may seize supplies where needed. But in time of peace, or in time of war, but away from the theater of war, the war power is as powerless as is the peace power in the conflict of battle.

It was in reference to this supremacy of the laws of peace over military power in time of peace that enabled Lord Chatham to illustrate the celebrated maxim of the English law, that "every man's house is his castle," by a brilliant eulogy, in which he said of it: "The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail, its roof may shake, the wind may blow through it, the storm may enter, the rain may enter, but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement."

1532 Story Const., (4th ed.,) sec. 1790; 2 Kent Com., Lect. 24, pp. 275, 276, (2d ed., 339, 340 ;) 3 Wils. Law Lec., 203; Ware vs. Hylton, 3 Dallas, 194, 235; 1 Blackst. Com., 138– 140; Parham vs. The Justices, 9 Georgia, 348.

a Grant vs. United States, 1 Court Claims, 45; "is a civil right; " Halleck, Int. Law, 124; 6 Cranch, 145.