Part 2

Here is an austere statement; but it was adopted by Mr. Jefferson as a fundamental principle in his elaborate letter to the British Minister, vindicating the confiscation of the property of Loyalists during the Revolution.[7] It was the corner-stone of his argument, as it has since been the corner-stone of judicial decisions. To cite texts and precedents in its support is superfluous. It must be accepted as the rule of International Law.

The rule, as succinctly expressed, is simply this,--that the property of persons domiciled in an enemy country is liable to seizure and capture without regard to the alleged friendly or loyal character of the owner.

Unquestionably there are limitations imposed by humanity which must not be transcended. A country must not be wasted, or buildings destroyed, unless under some commanding necessity. This great power must not be wantonly employed. Men must not become barbarians. But, if, in the pursuit of the enemy, or for purposes of defence, property must be destroyed, then by International Law it can be done. This is the rule. Vattel, while pleading justly and with persuasive examples for the preservation of works of art, such as temples, tombs, and structures of remarkable beauty, admits that even these may be sacrificed:--

“If for the operations of war, to advance the works in a siege, it is necessary to destroy edifices of this nature, one has undoubtedly the right to do so. The sovereign of the country, or his general, destroys them indeed himself, when the necessities or the maxims of war invite thereto. The governor of a besieged city burns its suburbs, to prevent the besiegers from obtaining a lodgment therein. Nobody thinks of blaming him who lays waste gardens, vineyards, orchards, in order to pitch his tent and intrench himself there.”[8]

This same rule is recognized by Manning, in his polished and humane work, less frequently quoted, but entitled always to great respect. This interesting writer expresses himself as follows:--

“It is clearly a belligerent’s right to destroy the enemy’s property _as far as necessary in making fortifications_.… Destruction of the enemy’s property is justifiable as far as indispensable for the purposes of warfare, but no further.”[9]

With the limitations which I have tried to exhibit, the rule is beyond question in the relations between nations. Do you call it harsh? Undoubtedly it is so. It is war, which from beginning to end is terrible harshness. Without the incidents sanctioned by this rule war would be changed, so that it would be no longer war. It was such individual calamities that Shakespeare had in mind, when he spoke of “the purple testament of bleeding war”; and it was such which entered into the vision of that other poet, when, in words of remarkable beauty, he pictured, by way of contrast, the blessings of peace:--

“Straight forward goes The lightning’s path, and straight the fearful path Of the cannon-ball. Direct it flies, and rapid, Shattering that it may reach, and shattering what it reaches. My son! the road the human being travels, That on which blessing comes and goes, doth follow The river’s course, the valley’s playful windings, Curves round the cornfield and the hill of vines, Honoring the holy bounds of property; And thus, secure, though late, leads to its end.”[10]

It only remains now to show that this rule of International Law is applicable to the present case. Of course, our late war was not between two nations; therefore it was not strictly international. But it was between the National Government, on one side, and a Rebellion which had become “territorial” in character, with such form and body as to have belligerent rights on land. Mark the distinction, if you please; for I have always insisted, and still insist, that complete belligerency on land does not imply belligerency on the ocean. As there is a dominion of the land, so there is a dominion of the ocean; and as there is a belligerency of the land, so there is also a belligerency of the ocean. Therefore, while denying to our Rebels belligerent rights on the ocean, I have no hesitation with regard to them on the land. But just in proportion as these are admitted, is the rule of International Law made applicable to the present case.

Against our Rebels the Nation had two sources of power and two arsenals of rights,--one of these being the powers and rights of sovereignty, and the other the powers and rights of war,--the former being determined by the Constitution, the latter by International Law. The Nation might pursue a Rebel as traitor or as belligerent; but whether traitor or belligerent, he was always an enemy. Pursuing him in the courts as traitor, he was justly entitled to all the delays and safeguards of the Constitution; but it was otherwise, if he was treated as belligerent. Pursuing him in battle, driving him from point to point, dislodging him from fortresses, expelling him from towns, pushing him back from our advancing line, and then building fortifications against him,--all this was war; and it was none the less war because the enemy was unhappily our own countryman. A new law supplied the rule for our conduct,--not the Constitution, with its manifold provisions dear to the lover of Liberty, including the solemn requirement that nobody shall “be deprived of life, liberty, or property without due process of law,” and then again that other requirement, that “private property shall not be taken for public use without just compensation.” All these were silent while International Law prevailed. The Rebellion had grown until it became a war; and as this war was among countrymen, it was a civil war. But the rule of conduct in a civil war is to be found in the Law of Nations.

I do not stop to quote the familiar views of publicists, especially of Vattel, to the effect that in a civil war the two parties are to be treated as “two different nations.”[11] Suffice it to say, that such is the judgment of all the authorities on International Law. But I come directly to the decisions of our Supreme Court, which recognize the rule of International Law as applicable to our civil war.

In the famous cases known as the _Prize Cases_, the Court expressly says:--

“All persons residing within this territory, whose property may be used to increase the revenues of the hostile power, are in this contest liable to be treated as enemies, though not foreigners.”[12]

Here is the rule of International Law applied directly to our civil war. In a later case the rule is applied with added emphasis and particularity:--

“We must be governed by the principle of public law, so often announced from this bench as applicable alike to civil and international wars, that _all the people of each State or district in insurrection against the United States must be regarded as enemies_.”[13]

Thus, according to our highest tribunal, the rule in civil war and international war is the same. By another decision of the Court, this same rule continues in force until the character of public enemy is removed by competent authority. On this point the Court declares itself as follows, in the Alexander cotton case:--

“All the people of each State or district in insurrection against the United States must be regarded as enemies, until, by the action of the Legislature and the Executive, or otherwise, that relation is thoroughly and permanently changed.”[14]

If the present case is to be settled by authority, this is enough. Here is the Supreme Court solemnly recognizing the rule of International Law, even to the extent of embracing under its penalties _all the people_ of the hostile community, without regard to their sentiments of loyalty. This is decisive. You cannot decree the national liability in the present case without reversing these decisions. You must declare that the rule of International Law is not applicable to our civil war. There is no ground for exception. You must reject the rule absolutely.

Do you say that its application is harsh? Of course it is. But again I say, this is war; or rather, it is rebellion which has assumed the front of war. I do not make the rule. I have nothing to do with it. I take it as I find it, affirmed by great authorities of International Law, and reaffirmed by the Supreme Court of the United States.

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Here I might stop; for the conclusion stands on reason and authority, each unanswerable; but I proceed further in order to relieve the case of all ambiguity. Of course instances may be adduced where compensation has been made to sufferers from an army, but no case like the present. If we glance at these instances, we shall see the wide difference.

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1. The first instance is where property is taken by the Nation, or its representative, _within its own established jurisdiction_. Of course this is unlike that now before us. To cite it is only to perplex and mystify, not to instruct. Thus, a Senator [Mr. WILLEY, of West Virginia] has adduced well-known words from Vattel on the question, “Whether subjects should be indemnified for damages sustained in war,” “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-rampart, or any other piece of fortification.”[15] But this authority is not applicable to the present case, where the claimant is not what Vattel calls a “subject,” and the property was not within the established jurisdiction of the nation. It applies only to such cases as occurred during the War of 1812, where property was taken on the Canadian frontier or at New Orleans for the erection of a fortress,--or such a case as that which formed one of the military glories of the Count Rochambeau, when at the head of the French forces in our country. The story is little known, and therefore I adduce it now, as I find it in the Memoirs of Ségur, one of the brilliant officers who accompanied the expedition.

The French squadrons were quitting their camp at Crompond, near the North River, in New York, on their way to embark for France. Their commander, fresh from the victory of Yorktown, was at the head of the columns, when a simple citizen approached, and, tapping him slightly on the shoulder, said: “In the name of the law you are my prisoner.” The glittering staff by which Count Rochambeau was surrounded broke forth with indignation, but the General-in-Chief restrained their impatience, and, smiling, said to the American citizen: “Take me away with you, if you can.” “No,” replied the simple representative of the law, “I have done my duty, and your Excellency may proceed on your march, if you wish to set justice at defiance. Some of your soldiers have cut down several trees, and burnt them to make their fires. The owner of them claims an indemnity, and has obtained a warrant against you, which I have come to execute.” The Count, on hearing this explanation, which was translated by one of his staff, gave bail, and at once directed the settlement of the claim on equitable grounds. The American withdrew, and the French squadrons, which had been arrested by a simple constable, proceeded on their march. This interesting story, so honorable to our country and to the French commander, is disfigured by the end, showing extortion on the part of the claimant. A judgment by arbitration fixed the damages at four hundred dollars, being less than the commander had at once offered, while the claimant demanded no less than three thousand dollars.[16]

Afterward, in the National Assembly of France, when that great country began to throb with republican life, this instance of submission to law was mentioned with pride.[17] But though it cannot lose its place in history, it cannot furnish a precedent of International Law. Besides being without any exigency of defence, the trespass was within our own jurisdiction, in which respect it differed precisely from the case on which we are to vote. I adduce it now because it serves to illustrate vividly the line of law.

2. Another instance, which I mention in order to put it aside, is _where an army in a hostile country has carefully paid for all its supplies_. Such conduct is exceptional. The general rule was expressed by Mr. Marcy, during our war with Mexico, when he said that “an invading army has the unquestionable right to draw its supplies from the enemy without paying for them, and to require contributions for its support,” that “the enemy may be made to feel the weight of the war.”[18] But General Halleck, after quoting these words, says that “the resort to forced contributions for the support of our armies in a country like Mexico, under the particular circumstances of the war, would have been at least impolitic, if not unjust; and the American generals very properly declined to adopt, except to a very limited extent, the mode indicated.”[19] According to this learned authority, it was a question of policy rather than of law.

The most remarkable instance of forbearance, under this head, was that of the Duke of Wellington, as he entered France with his victorious troops, fresh from the fields of Spain. He was peremptory that nothing should be taken without compensation. His order on this occasion will be found at length in Colonel Gurwood’s collection of his “Dispatches.”[20] His habit was to give receipts for supplies, and ready money was paid in the camp. The British historian dwells with pride on the conduct of the commander, and records the astonishment with which it was regarded by both soldiers and peasantry, who found it so utterly at variance with the system by which the Spaniards had suffered and the French had profited during the Peninsular campaigns.[21] The conduct of the Duke of Wellington cannot be too highly prized. It was more than a victory. I have always regarded it as the _high-water mark_ of civilized war, so far as war can be civilized. But I am obliged to add, on this occasion, that it was politic also. In thus softening the rigors of war, he smoothed the way for his conquering army. In a dispatch to one of his generals, written in the spirit of the order, he says, in very expressive language: “If we were five times stronger than we are, we could not venture to enter France, if we cannot prevent our soldiers from plundering.”[22] It was in a refined policy that this important order had its origin. Regarding it as a generous example for other commanders, and offering to it my homage, I must confess, that, as a precedent, it is entirely inapplicable to the present case.

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Putting aside these two several classes of cases, we are brought back to the original principle, that there can be no legal claim to damages for property situated in an enemy country, and belonging to a person domiciled there, when taken for the exigencies of war.

If the conclusion were doubtful, I should deem it my duty to exhibit at length the costly consequences from an allowance of this claim. The small sum which you vote will be a precedent for millions. If you pay Miss Sue Murphey, you must pay claimants whose name will be Legion. Of course, if justice requires, let it be done, even though the Treasury fail. But the mere possibility of such liabilities is a reason for caution on our part. We must consider the present case as if on its face it involved not merely a few thousands, but many millions. Pay it, and the country will not be bankrupt, but it will have an infinite draft upon its resources. If the occasion were not too grave for a jest, I would say of it as Mercutio said of his wound: “No, ’tis not so deep as a well, nor so wide as a church-door; but ’tis enough.”

If you would have a practical idea of the extent of these claims, be taught by the history of the British Loyalists, who at the close of our Revolution appealed to Parliament for compensation on account of their losses. The whole number of these claims was five thousand and seventy-two. The whole amount claimed was £8,026,045, or about thirty-eight million dollars, of which the commissioners allowed less than half.[23] Our claimants would be much more numerous, and the amount claimed vaster.

We may also learn from England something of the spirit in which such claimants should be treated. Even while providing for them, Parliament refused to recognize any legal title on their part. What it did was in compassion, generosity, and bounty,--not in satisfaction of a debt. Mr. Pitt, in presenting the plan which was adopted, expressly denied any right on grounds of “strict justice.” Here are his words:--

“The American Loyalists, in his opinion, could not call upon the House to make compensation for their losses as a matter of strict justice; but they most undoubtedly had strong claims on their generosity and compassion. In the mode, therefore, that he should propose for finally adjusting their claims, he had laid down a principle with a view to mark this distinction.”[24]

In the same spirit Mr. Burke said:--

“Such a mode of compensating the claims of the Loyalists would do the country the highest credit. It was a new and a noble instance of national bounty and generosity.”[25]

Mr. Fox, who was full of ardent sympathies, declared:--

“They were entitled to a compensation, _but by no means to a full compensation_.”[26]

And Mr. Pitt, at another stage of the debate, thus denied their claim:--

“They certainly had _no sort of claim_ to a repayment of all they had lost.”[27]

So far as this instance is an example to us, it is only an incentive to a kindly policy, which, after prudent inquiry, and full knowledge of the extent of these claims, shall make such reasonable allowance as humanity and patriotism may require. There must be an inquiry not only into this individual case, but into all possible cases that may spring into being, so that, when we act, it may be on the whole subject.

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From the beginning of our national life Congress has been called to deal with claims for losses by war. Though new in form, the present case belongs to a long list, whose beginning is hidden in Revolutionary history. The folio volume of State Papers, now before me, entitled “Claims,” attests the number and variety. Even amid the struggles of the war, as early as 1779, the Rev. Dr. Witherspoon was allowed $19,040 for repairs of the college at Princeton damaged by the troops.[28] There was afterward a similar allowance to the academy at Wilmington, in Delaware, and also to the college in Rhode Island. These latter were recommended by Mr. Hamilton, while Secretary of the Treasury, as “affecting the interests of literature.”[29] On this account they were treated as exceptional. It will also be observed that they concerned claimants within our own jurisdiction. But on a claim for compensation for a house burnt at Charlestown for the purpose of dislodging the enemy, by order of the American commander at that point during the Siege of Boston, a Committee of Congress in 1797 reported, that, “as Government has not adopted a general rule to compensate individuals who have suffered in a similar manner, the Committee are of opinion that the prayer of this petition cannot be granted.”[30] At a later day, however, after successive favorable reports, the claim was finally in 1833 allowed, and compensation made to the extent of the estimated value of the property destroyed.[31]

In 1815 a claimant received compensation for a house at the end of the Potomac bridge, which was blown up to prevent certain public stores from falling into the hands of the enemy;[32] and other claimants at Baltimore received compensation for rope-walks burnt in the defence of the city.[33] The report of a committee in another case says that the course of Congress “seems to inculcate 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.”[34] This is the most complete statement of the rule which I find.

After the Battle of New Orleans the question of the application of this rule was presented repeatedly, and with various results. In one 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 defence of the country were erected.”[35] On the other hand, 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 where a battery was erected by our troops, and on both of which claims the Committee, simultaneously with the two former, reported favorably, were disallowed by Congress.[36] In a subsequent case both the report and action seem to have proceeded on a different principle from that previously enunciated. At the landing of the enemy near New Orleans, the levee was cut in order to annoy 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.”[37] Certainly this ground may be adopted in the present case, while it must not be forgotten that in all the foregoing cases the claimants were citizens within our own jurisdiction, whose property had been used against a foreign enemy.

The multiplicity of claims arising in the War of 1812 prompted an Act of Congress in 1816 for “the payment for property lost, captured, or destroyed by the enemy.” In this Act it was, among other things, provided,--

“That any person, who, in the time aforesaid [the late war], has sustained damage by the destruction of his or her house or building by the enemy, while the same was occupied as a military deposit, under the authority of an officer or agent of the United States, shall be allowed and paid the amount of such damage, provided it shall appear that such occupation was the cause of its destruction.”[38]

Two years later it was found, that, in order to obtain the benefits of this Act, people, especially on the frontier of the State of New York, had not hesitated at “fraud, forgery, and perhaps perjury.”[39] Thereupon, the law, which by its terms was limited to two years, and which it had been proposed to extend, was permitted to expire; and it is accordingly now marked in our Statutes, “Obsolete.” But it is not without its lesson. It shows what may be expected, should any precedent be adopted by Congress to quicken the claimants now dormant in the South. “It is the duty of a good Government to attend to the morals of the people as an affair of primary concern.”[40] So said the Committee in 1818, recommending the non-extension of the Act. But this warning is as applicable now as then.

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