There are some unauthoritative dicta, and perhaps a single decided case, apparently in conflct with these views.165

The Judge Advocate-General held, in the case of a claim for the value of certain buildings, with their contents, burned by Union troops in West Virginia, a loyal State, in January, 1863, by way of a ruse to de

165 House Rep. No. 43, 42d Cong, 3d sess.; 13 Wend., 372; Vattel, ch. xv, p. 403; Whiting, War-Powers, 15. In Grant vs. United States, 1 N. & H., Court., Claims, 41, it was held that "the taking of private property for destruction by a military officer [in a state of war, to prevent it from falling into the hands of the enemy] is an exercise of the right of eminent domain." That "there is no discrimination to be made between property taken to be used and property taken to be destroyed," and that a right of action against the Government as upon an implied contract, arises in favor of the party whose property is destroyed.

So far as this holds that military officers by right of common military law exercised a power of eminent domain, it is contradicted in the same case, which declares that "eminent domain is a civil right," and it is contradicted by many reliable authorities. If the seizure was in fact a military necessity in a state of war, the officer was not liable. Buron vs. Denman, 2 Exchequer, 189; Mitchell vs. Harmony, 13 Howard, 134. If it was not a necessity, the act was unauthorized and the Government is not liable. (Am. State Papers, Claims, 55; 13 Howard, 115; Res. Cont. Cong., June 3, 1784, Journal, vol. 4, p. 443; Gibbons vs. U. S., 8 Wallace, 269 )

So far as it holds the Government liable it is contradicted by the authorities already cited. It is practically overruled in the same court by the learned Chief-Justice Casey, and the court in Wiggins vs. United States, 1 Court Claims, 182. The case of Grant vs. United States goes the extreme length of declaring that a seizure for destruction is a taking for "public use." If this be so, why is not property destroyed in a battle taken for the public use? Where is the difference in principle? Yet no writer can be found to declare that destruction by battle is a taking for public use.

Senator Davis, of Kentucky, a conceded strict constructionist, declared that property so destroyed, even by the Union military forces, was not taken for public use. (In Senate, January 4, 1871; Globe, vol. 82, p. 297.)

The case of Grant vs. United States is in principle overruled by the able opinion of the learned Chief-Justice of the Court of Claims, who, in Perrin vs. United States, 4 Court of Claims, 546, said of a claim for compensation for property destroyed in the bombardment of Greytown: "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." (Gibbons vs. U. S., 8 Wallace, 269, overrules Grant's case.)

If the destruction was legal, the act was not wrong; and if not wrong, no action would lie for it. An action is only given to redress a wrong. No action lies for doing what is right. And it is remarkable that no lawyer has ever since brought a suit in that court on any one of the many cases since of a similar character.

Congress by act of July 4, 1864, prohibited the Court of Claims from taking jurisdietion of "any claim against the United States growing out of the destruction, or appropriation of, or damage to property by the Army or Navy engaged in the suppression of the rebellion, from the commencement to the close thereof."

It is to be presumed Congress would not deny any claim justified by the laws of nations.

In Mitchell vs. Harmony, 13 Howard, 134, the court said, not as authority, but on a mere obiter dictum, that

"There are, without doubt, occasions in which private property may lawfully be taken possession of or destroyed to prevent it from falling into the hands of the public enemy; and also, where a military officer charged with a particular duty may impress private property into the public service or take it for public use. Unquestionably in such cases the Government is bound to make full compensation to the owner." (13 How., 134; and see numerous authorities cited infra.) United States v. Russell, 13 Wallace, 627. In this case there was a military impressment, and the court cited, with approval, the case of Mitchell v. Harmony. But this was a seizure not on the theater of war, and where the laws of peace were prevailing.

Unquestionably, by the law of nations, where the private property of citizens is by common international military authority impressed into the public service, it is, by virtue of the same law, generally to be paid for independently of any constitutional provision; but this is not at all so when property is lawfully taken to prevent it from falling into the hands of an enemy. That is an exercise of the law of overruling necessity, as has been shown.

In Russell v. The Mayor, &c., 2 Denio, 484, it was said by one of the judges that"A vessel may in time of war be taken from the owner, when the interests of the public demand it, or it may be destroyed to prevent its falling into the hands of an enemy, and thereby increase its power of aggression or resistance, and the owner

ceive and divert the enemy, a legitimate act of ordinary warfare, that the loss incurred was one of those accidents of war for which the Gov ernment does not become liable to individuals.166

The opinions of elementary writers have not been entirely uniform. Grotius seems to assert that the government is not liable to make compensation, by saying:

This also may be constituted by the civil law, that no action may be brought against such a city for damages by war, in order to make every man more careful to defend his

own. 167

Vattel admits the law of overruling necessity by saying:

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. 68

But he differs with Grotius, by saying:

Of the damages done by the state or the sovereign, some are done deliberately and by way of precaution, as when a field, a house, or a garden belonging to a private person is taken for the purpose of erecting on the spot a town, a rampart, or any other piece of fortification, or when his standing corn or 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 bear only his quota of the loss.

In the edition of 1872 there is a note to this, as follows:

It is legal to take possession of these for the benefit of the community, and no action lies, that is, no claim for compensation, nor is any recoverable, unless given by act of Parliament. (4 Term. R., 382.)

And he says:

No action-claim for damages-lies against the state for misfortunes of this natur e for losses which she has occasioned, not willfully, but through necessity, and by mere accident, in the exertion of her rights.

The principle here stated applies to the necessary destruction of property to prevent it from falling into an enemy's hands, when his approach is imminent.

Notwithstanding anything elsewhere said, the right to compensation finds no sanction by the usage of the Government.

During the revolutionary war property was often destroyed to prevent it from falling into the hands of the enemy.

It was determined by the courts in Pennsylvania that in such cases there was no claim for redress.

Congress never made provision for paying any such claims.169
The States made no such compensation.

During the war of 1812 with Great Britain property was destroyed by the military authorities of the United States to prevent it from falling into the hands of the enemy. But no general provision was made by act of Congress for paying for such loss.

Congress did, by act of April 9, 1816, provide for paying for horses. killed while in service, and for paying

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Any person who sustained damage by the destruction of his or her house or building by the enemy while the same was occupied as a military deposite under the authority of an officer or agent of the United States.170

would be entitled upon this principle of the Constitution to be paid a just compensation. In these cases private property is taken for public use. The right of eminent domain is here asserted.”

This is merely obiter, and the same remarks apply as to the cases above noticed. (See note 88, ante; see Clark v. Mayor, 13 Barbour, N. Y. S. C. R., 35.)

166 See Opinions of Judge-Advocate-General, vol. 26, p. 242. See Digest of Opinions of Judge-Advocate-General from September, 1862, to July, 1868, (3d ed.,) p. 93.

167 Book 3, ch. xx, sec. 8.

168 Ch. xv, p. 402.

169 See American State Papers, class ix, vol. 1, Claims, passim.

170 3 Stat. at L., p. 263, sec. 9; 3 Stat. at L., p. 397, sec. 1.

So the act of 3 March, 1849, (ch. 129, sec. 2,) and March 3, 1863, (ch. 78, sec. 5,) provided compensation for the loss or destruction of property in the service by impressment or contract. (Scott's Digest Military Laws, 1874, p. 112, sec. 115, 116.) And the act of June 25, 1864, (13 Stat. at L., p. 182,) secures compensation to any officer, noncommissioned officer, or private, during the rebellion, who surrendered horses to the enemy by order of superior officer.

But this was, by act of March 8, 1817, limited to

Houses or buildings occupied as a place of deposit for military or naval stores, or as barracks for military forces of the United States.171

But it was said by a committee of Congress that, so far as this related to houses destroyed by the enemy, it was enacted by Congress as

A law originating in its benignity and aimed gratuitously for the benefit of a suffering portion of the community.172

They declared it

A law originating in the benign and charitable disposition of the Government. The original act barred all claims not exhibited within two years from its date, and Congress refused to extend the time.

But claims for compensation for property destroyed to prevent it from falling into the hands of the enemy are so rare as to show them entirely exceptional.1

173

171 See Reports of Court of Claims to Congress, vol. 1, 1857-58; Rep. No. 95, 1st. sess. 35th Cong., sec. 15, 1857; House Rep. 746, 1st sess. 43d Cong., June 22, 1874, p. 2 ; note Frederick City Claim.

In the case of Joseph Loranger vs. The United States, Judge Blackford, delivering the opinion of the Court of Claims, used the following language:

"We consider the law to be that, if the Government, by its authorized agents, takes possession of a private building and make use of it as a military depot or as barracks, and the enemy, in consequence of such possession and use, destroy the building while it is so used, the Government would be liable to the owner for the value of the building. There would be reason for saying in such case that the Government had given a character to the property which, by the usage of civilized warfare, would justify the enemy in destroying it." (See Report No. 96, 1st session 35th Congress, December 15, 1857, Reports Court of Claims, vol. 1, 1857-'58. See, also, sec. 9 of the act of April 9, 1816, 3 Stats. at Large, 263; also, act of March 3, 1817, 3 Stats. at Large, 397.)

172 American State Papers, class ix, vol. 1, Claims, 590. See letter No. 150 of Secretary of War to House of Representatives, February 20, 1818, in Ex. Doc. vol. 4, for 1817-'18, 1st sess. 15th Congress.

173 William H. Washington was paid for a house blown up in August, 1814, by order of our military officers. (6 Stat. at L., 151; American State Papers, Claims, 446.) Bat this was a case which came within the principle of the act of April 9, 1816. The Government placed stores in the house and blew up the house to destroy the stores, to prevent them from falling into the hands of the enemy.

On February 5, 1817, a report was made to the House of Representatives recommending the payment of a precisely similar claim for damages done at Valley Forge, in 1777, but Congress did not give the relief. (Claims, vol. 1, p. 522.)

So a rope-walk, destroyed September, 1814, at Baltimore, to prevent it from falling into the hands of the enemy, was paid for, but this is clearly exceptional. (Am. St. Papers, Claims, 444; 6 Stat. at L., p. 150.)

A report made February 14, 1816, states a liberal view, by saying "that indemnity is due to all those whose losses have arisen from the acts of our own Government, or those acting under its authority, while losses produced by the conduct of the enemy are to be classed among the unavoidable calamities of war, and do not entitle the sufferers to indemnification by the Government." (Claims, vol. 1, 462; Sumner's speech, 71 Globe, 301, January 12, 1869.)

But a very different rule of law was subsequently stated by a committee, December 11, 1820, (Claims, vol. —, 752,) as to property taken at New Orleans. The report says: "There have been thousands of instances during the late war where the

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loss to the owners can be traced, directly or indirectly, to the acts of the Government. * * There are no known rules or established usages of the Government which would seem to authorize an allowance in a case thus involved in obscurity."

Mr. Sumner, in an elaborate and masterly speech in the Senate, January 12, 1869, (71 Globe, 300,) gives a summary, thus:

"After the battle of New Orleans, the question was presented repeatedly. In one

The usage of the Government during and since the rebellion is a clear denial of all liability in this class of cases.

No general provision has been made for paying them. This undoubt edly would have been done if there had been any admitted liability.

On the contrary, Congress, while providing for the payment of quartermaster's and commissary supplies taken in the loyal States, by the act of July 4, 1864, has made a provision applicable everywhere :

That the jurisdiction of the Court of Claims shall not extend to or include any claim against the United States growing out of the destruction or appropriation of or damage to property by the Army or Navy, or any part of the Army or Navy engaged in the suppression of the rebellion, from the commencement to the close thereof.

Even where provision has been made for special reasons in exceptional cases, the policy of this has generally been denied by the executive branch of the Government, and the broad rule of international law contained in the act of 1864 has been re-asserted by the President.174 Where compensation has been made it has been for exceptional reasons.175

The rule of law as stated is that recognized by the executive branch of the Government. The President, in his message of February 12, case a claim for a quantity of fencing,' used as fuel by troops of General Jackson, was paid by Congress; so also was a claim for damages to a plantation upon which public works for the defense of the country were erected;' also a claim for an elegant and well-furnished house,' which afforded shelter to the British army, and was, therefore, fired on with hot shot; also a claim for damage to a house and plantation on which a battery was erected by our troops." (American State Papers, Claims, p. 521.)

"There was also another case where Congress seems to have acted on a different principle. On the landing of the enemy near New Orleans, the levee was cut, in order to anuoy him. As a consequence the plantation of the claimant was inundated, and suffered damages estimated at $19,250. But the claim was rejected on the ground that 'the injury was done in the necessary operations of war.'" (Ibid., p. 835.)

174 See veto messages of June 1, 1872; Senate Ex. Doc. 8, 2d sess. 42d Cong., act for relief of J. Milton Best; June 7, 1872, Senate Ex. Doc. 86, 2d sess. 42d Cong., act for relief of Thomas B. Wallace; January 31, 1873, Senate Ex. Doc. 33, 3d sess. 42d Cong., act for relief of East Tennessee University; February 12, 1873, Senate Ex. Doc. 42, 3d sess. 42d Cong., bill for relief for destruction of Manchester, Ky., Salt-Works.

On the 27th November, 1864, General Sheridan issued an order, which was executed, to destroy all "forage and subsistence, burn all barns, mills, and their contents, and drive off all stock in Loudoun County, Va." (See Senate Report No. 80, second session Forty-second Congress, Court of Claims.) The stock was used by the Army, in part, and the residue driven into Pennsylvania and sold, and the proceeds paid into the Treasury. Much of the property so used or destroyed belonged to men whose loyalty had never been questioned, many of them members of the Society of Friends. The Senate committee reported in favor of paying not only for property of loyal citizens so destroyed, but for cattle and supplies so used and sold. Congress, by act of January 23, 1873, authorized payment to "loyal citizens of Loudoun County, Va., for their live-stock partly slaughtered and used and partly sold, and the proceeds paid into the Treasury." (17 Stat., 713.) The House refused to pass any bill to pay for property destroyed.

175 Claim of Josiah O. Armes.-Act of January 31, 1867, provides for paying $9,500 "in consequence of the burning of his buildings at Annandale, Fairfax County, Va., by United States troops." (See 14 Stat., page 617; see, also, Senate Report No. 112, second session Thirty-ninth Congress; also, vol. 62, pages 758, 759, second session Thirty-ninth Congress.) The report shows that the house was burned "to prevent its being used by the enemy as a stronghold." For House proceedings and debates in Thirty-eighth Congress, see Globe, vol. 50, pages 313, 758, 759; vol. 51, pages 1286, 2388. For Senate proceedings and debates, see Globe, vol. 54, page 547; vol. 55, pages 1273, 1274, 1275, 1388. For Senate proceedings and debates in Thirty-ninth Congress, see vol. 56, pages 7, 134, 147, 162; vol. 60, page 3873. For House proceedings and debates, see Globe, vol. 56, page 148; vol. 60, page 3907; vol. 61, pages 414, 755, 758, 759, 760, 761. But this case is exceptional, and seems to have been a reward made in consideration that "Armes was of service to our troops in giving information of the movement and situation of the rebels," and that his wife "came in one dark night at the risk of her life" to give information to the Union military authorities.

1873, says, in relation to the Kentucky salt-works destroyed by order of General Craft, commanding Union military forces:

I understand him to say, in effect, that the salt-works were captured from the rebels, that it was impracticable to hold them, and that they were demolished so as to be of no further use to the enemy.

I cannot agree that the owners of property destroyed under such circumstances are entitled to compensation therefor from the United States. Whatever other view may be taken of the subject, it is incontrovertible that these salt-works were destroyed by the Union Army while engaged in regular military operations, and that the sole object of their destruction was to weaken, cripple, or defeat the armies of the so-called southern confederacy.

I am greatly apprehensive that the allowance of this claim could and would be construed into the recognition of a principle binding the United States to pay for all property which their military forces destroyed in the late war for the Union. No liability by the Government to pay for property destroyed by the Union forces in conducting a battle or siege has yet been claimed; but the precedent proposed by this bill leads directly and strongly in that direction; for it is difficult upon any ground of reason or justice to distinguish between a case of that kind and the one under consideration. Had General Craft and his command destroyed the salt-works by shelling out the enemy found in their actual occupancy, the case would not have been different in principle from the one presented in this bill. What possible difference can it make in the rights of owners or the obligations of the Government, whether the destruction was in driving the enemy out, or in keeping them out, of the possession of the salt-works? This bill does not present a case where private property is taken for public use, in any sense of the Constitution. It was not taken from the owners, but from the enemy; and it was not then used by the Government, but destroyed. Its destruction was one of the casualties of war; and though not happening in actual conflict, was perhaps as disastrous to the rebels as would have been a victory in battle.

Owners of property destroyed to prevent the spread of a conflagration, as a general rule, are not entitled to compensation therefor, and, for reasons equally strong, the necessary destruction of property found in the hands of the public enemy, and constituting a part of their military supplies, does not entitle the owner to indemnity from the Government for damages to him in that way.176

CHAPTER VII.

CLAIMS IN THE DEPARTMENTS OF THE GOVERNMENT.

Upon this subject the following information has been transmitted to the House of Representatives:

WAR DEPARTMENT,
February 6, 1874.

The Secretary of War has the honor to transmit to the House of Representatives, for the information of the Committee on War-Claims,

176 Veto message February 12, 1873, Senate Ex. Doc. 42, 3d sess. 42d Congress. Claim of Dr. J. Milton Best, of Paducah, Ky. Claim for compensation of his dwelling-house, taken by United States military authority, and destroyed by order of United States officer as a military necessity, March 26, 1862.

Forty-first Congress, Senate proceedings and debates, for which see Globe, vol. 82, pp. 97, 98, 99, 100, 101, 165, 166, 167, 168, 169, 295, 296, 297, 298, 299, 300, 301, 302, 303, 304, 311, 312, 313, 314, 315, 316, 317, 318, 319.

See Senate Rep. No. 69, 2d sess. 41st Cong. For House proceedings and debates see vol. 84, p. 1934.

Senate proceedings and debates for 42d Cong. See Globe, vol. 89, pp. 2252, 2253, (April 8, 1872;) vol. 91, pp. 4156, 4157, (June 1, 1872.) See, also, Senate Rep. No. 9, 2d sess. 42d Cong.

For House proceedings and debates see Globe, vol. 91, pp. 3621, 3622, 3623, 3624. See veto message, June 1, 1872, Senate Ex. Doc. 85, 2d sess. 42d Cong.

Kentucky salt-works. Claim for indemnity be reason of destruction of salt-works near Manchester, Ky., by order of Major-General Buell as a military necessity.