*

*92 Vattel condemns very strongly the spoliation of a country without palpable necessity; and he speaks with a just indignation of the burning of the Palatinate by Turenne, under the cruel instructions of Luvois, the war minister of Louis XIV. (a) The general usage now is not to touch private property upon land, without making compensation, unless in special cases, dictated by the necessary operations of war, or when captured in places carried by storm, and which repelled all the overtures for a capitulation. Contributions are sometimes levied upon a conquered country, in lieu of confiscation of property, and as some indemnity for the expenses of maintaining order and affording protection. (b) If the conqueror goes beyond these limits wan

1785. (See post, 98.) General Brune stated to the Duke of York, in October, 1799, when an armistice in Holland was negotiating, that if the latter should cause the dikes to be destroyed, and the country to be inundated, when not useful to his own army, or detrimental to the enemy's, it would be contrary to the laws of war, and must draw upon him the reprobation of all Europe and of his own nation. Nay, even the obstinate defence of a town, if it partake of the character of a mercantile place, rather than a fortress of strength, has been alleged to be contrary to the laws of war. (See the correspondence between General Laudohn and the Governor of Breslau, in 1760. Dodsley's Ann. Reg. 1760.) So, the destruction of the forts and warlike stores of the besieged in the post of Almeida, by the French commander, when he abandoned it with his garrison by night, in 1811, is declared by General Sarazin, in his history of the Peninsular War, to have been an act of wantonness which justly placed him without the pale of civilized warfare. When a Russian army, under the command of Count Diebitsch, had penetrated through the passes of the Balkan to the plains of Romelia, in the summer of 1829, the Russian commander gave a bright example of the mitigated rules of modern warfare, for he assured the Mussulmen that they should be entirely safe in their persons and property, and in the exercise of their religion; and that the Mussulman authorities in the cities, towns, and villages might continue in the exercise of their civil administration for the protection of person and property. The inhabitants were required to give up their arms, as a deposit, to be restored on the return of peace, and in every other respect they were to enjoy their property and pacific pursuits as formerly. This protection and full security to the persons and property of the peaceable inhabitants of conquered towns and provinces are according to the doctrine and declared practice of modern civilized nations. (See Dodsley's Ann. Reg. 1772, p. 37.)

(a) Vattel, b. 3, c. 9, sec. 167.

(b) Vattel, b. 2, c. 8, sec. 147; c. 9, sec. 165; Scott's Life of Napoleon, iii. 58. Contributions exacted from the inhabitants by the armies of an invader, without payment, is contrary to the ordinary usages of modern warfare, though the practice is not consistent. The campaigns of revolutionary France, and of Napoleon, in modern Europe, were melancholy exceptions, of the severest character. Upon the invasion of Mexico by the armies of the United States, in 1846, the American Secretary of War (Marcy) instructed General Taylor (September 22, 1846) to abstain from appropriating private property to the public uses, until purchased at a fair price, though he said that was in some respects going far beyond the common requirements of

tonly, or when it is not clearly indispensable to the just purposes of war, and seizes private property of pacific 93

*

civilized warfare, and that an invading army had the unquestionable right to draw its supplies from the enemy without paying for them, and to require contributions for its support, and to make the enemy feel the weight of the war. He further observed; that upon the liberal principles of civilized warfare, either of three modes might be pursued in relation to obtaining supplies from the enemy: first, to purchase them on such terms as the inhabitants of the country might choose to exact; second, to pay a fair price without regard to the enhanced value resulting from the presence of a foreign army; and, third, to require them as contributions, without paying or engaging to pay therefor; that the last mode was the ordinary one, and General Taylor was instructed to adopt it, if in that way he was satisfied he could get abundant supplies for his forces. The previous instructions in that campaign had been to abstain from appropriating private property to the public use without purchase, at a fair price; but the instructions had now, in the progress of the campaign, risen to a severer character. The principle of kindness and liberality towards the enemy seems to be of a flexible character, and to be swayed by considerations of policy and circumstances. The President of the United States (James K. Polk), in his letter to the Secretary of the Treasury, of the 23d March, 1847, declared the right of the conqueror to levy contributions upon the enemy, in their seaports, towns, or provinces, which may be in his military possession by conquest, and to apply the same to defray the expenses of the war. He further declared, that the conqueror possessed the right to establish a temporary military government over such seaports, towns, or provinces, and to prescribe the terms of commerce with such places; that he might, in his discretion, exclude all trade, or impose terms upon it, such, for instance, as a prescribed rate of duties on tonnage and imports. The President of the United States, therefore, with a view to impose a burden on the enemy, and deprive him of the revenue to be derived from trade, and secure it to the United States, ordered that all the ports and places in Mexico, in the actual possession of the land and naval forces of the United States, by conquest, should be opened, while the military occupation continued, to the commerce of all neutral nations, as well as of the United States, in articles not contraband of war, upon the payment of a prescribed tariff of duties and tonnage, prepared under the instructions of the President, and by him adopted, and to be enforced by the military and naval commanders. All these rights of war undoubtedly belong to the conqueror or nation who holds foreign places and countries by conquest; but the exercise of those rights and powers, except those that temporarily arise from necessity, belong to that power in the government to which the prerogative of war is constitutionally confided. The President of the United States, in his official letter to the Secretary of the Navy, of March 31, 1847, claimed and exercised, as being charged by the Constitution with the prosecution of the war, this belligerent right to levy military contributions upon the enemy, and to collect and apply the same towards defraying the expenses of the war, and to open the Mexican ports for that purpose, on a footing favorable to neutral commerce. The whole execution of the commercial regulations was placed under the control of the military and naval forces, and, with the policy of blockading some and opening other Mexican ports, to compel the whole commerce for the supply of Mexico to pass under the control of the American forces, subject to the contributions, exactions, and duties to be imposed. (See President Polk's Letter of March 31, 1847, to the Secretary of the Navy, and his letter of March 23, 1847, to the Secretary of the Treasury, and the letter of Mr. Walker, of the 30th March, 1847, to the President, containing a scale of duties to be collected, as a mili

persons for the sake of gain, and destroys private dwellings, or public edifices devoted to civil purposes only, or makes war upon monuments of art and models of taste, he violates the modern usages of war, and is sure to meet with indignant resentment, and to be held up to the general scorn and detestation of the world. (a)

2. Law of Retaliation. - Cruelty to prisoners, and barbarous destruction of private property, will provoke the enemy to severe retaliation upon the innocent. Retaliation is said by Rutherforth (b) not to be a justifiable cause for putting innocent prisoners or hostages to death; for no individual is chargeable, by the law of nations, with the guilt of a personal crime, merely because

tary contribution, in the ports of Mexico, and with a recommendation that the Mexican coastwise trade, and the interior trade, above ports of entry, be confined to American vessels, and that in all other respects the ports of Mexico in our possession be freely opened.) These fiscal and commercial regulations, issued and enforced at the mere pleasure of a President, would seem to press strongly upon the constitutional power of Congress to raise and support armies, to lay and collect taxes, duties, and imports, and to regulate commerce with foreign nations, and to declare war, and make rules for the government and regulation of the land and naval forces, and concerning captures on land and water, and to define offences against the law of nations. Though the Constitution vests the executive power in the President, and declares him to be commander-in-chief of the army and navy of the United States, these powers must necessarily be subordinate to the legislative power in Congress. It would appear to me to be the policy or true construction of this simple and general grant of executive power to the President, not to suffer it to interfere with those specific powers of Congress which are more safely deposited in the legislative department, and that the powers thus assumed by the President do not belong to him, but to Congress.

(a) Vattel, b. 3, c. 9, sec. 168. In the case of The Marquis de Somerueles (Stew art's Vice-Adm. Rep. 482), the enlightened judge of the vice-admiralty court at Halifax restored to the Academy of Arts in Philadelphia a case of Italian paintings and prints, captured by a British vessel in the war of 1812, on their passage to the United States; and he did it "in conformity to the law of nations, as practised by all civilized countries," and because "the arts and sciences are admitted to form an exception to the severe rights of warfare." Works of art and taste, as in painting and sculpture, have, by the modern law of nations, been held sacred in war, and not deemed lawful spoils of conquest. When Frederick II. of Prussia took possession of Dresden as conqueror, in 1756, he respected the valuable picture gallery, cabinets, and museums of that capital, as not falling within the rights of a conqueror. But Bonaparte, in 1796, compelled the Italian states and princes, including the Pope, to surrender their choicest pictures and works of art, to be transported to Paris. The chefs d'auvre of art of the Dutch and Flemish schools, and in Prussia, were acquired by France in the same violent way. This proceeding is severely condemned by distinguished historians, as an abuse of the power of conquest, and a species of military contribution contrary to the usages of modern civilized warfare. Alison's History of Europe, iii. 42; Sir Walter Scott's Life of Napoleon, iii. 58-68.

(b) Inst. b. 2. c. 9.

the community of which he is a member is guilty. He is only responsible as a member of the state, in his property, for reparation in damages for the acts of others; and it is on this principle that, by the law of nations, private property may be taken and appropriated in war. Retaliation, to be just, ought to be confined to the guilty individuals, who may have committed some enormous violation of public law. On this subject of retaliation Professor Martens is not so strict. (c)1 While he admits that the life of an innocent man cannot be taken, unless in extraordinary cases, he declares that cases will sometimes occur, when the established usages of war are violated, and there are no other means, except the influence of retaliation, of restraining the enemy from further excesses. Vattel speaks of retaliation as a sad extremity, and it is frequently threatened * 94 without being put in execution, and probably without the intention to do it, and in hopes that fear will operate to restrain the enemy. Instances of resolutions to retaliate on innocent prisoners of war occurred in this country during the Revolutionary war, as well as during the war of 1812; but there was no instance in which retaliation, beyond the measure of severe confinement, took place in respect to prisoners of war. (a)

Although a state of war puts all the subjects of the one nation in a state of hostility with those of the other, yet, by the customary law of Europe, every individual is not allowed to fall upon the enemy. If subjects confine themselves to simple defence, they are to be considered as acting under the presumed order of the state, and are entitled to be treated by the adversary as lawful enemies; and the captures which they make in such a case are allowed to be lawful prize. But they cannot engage in offensive hostilities, without the express permission of their sovereign; and if they have not a regular commission, as evidence of that consent, they run the hazard of being treated by the enemy as

(c) Summary of the Law of Nations, b. 8, c. 1, sec. 3, note.

(a) Journals of Congress under the Confederation, ii. 245; vii. 9 and 147; viii. 10; British Orders in Canada, of October 27 and December 12, 1813, and President's Message to Congress of December 7, 1813, and of October 28, 1814.

1 But it is said that the above view does not appear in the last edition of Martens's work, and that the whole subject is discussed in a different spirit. Abdy's

Kent, 245, citing Vergé's ed. 1858, t. ii. 1. viii. c. 2, §§ 252, 262.

1 Post, 96, n. 1.

lawless banditti, not entitled to the protection of the mitigated rules of modern warfare. (b)

*

It was the received opinion in ancient Rome, in the times of Cato and Cicero, (c) that one who was not regularly enrolled as a soldier could not lawfully kill an enemy. But the law of Solon, by which individuals were permitted to form associations for plunder, was afterwards introduced into the Roman *95 law, and has been transmitted to us as part of their system. (a) During the lawless confusion of the feudal ages, the right of making reprisals was claimed and exercised without a public commission. It was not until the fifteenth century that commissions were made necessary, and were issued to private subjects in time of war, and that subjects were forbidden to fit out vessels to cruise against enemies without license. There were ordinances in Germany, France, Spain, and England to that effect. (b) It is now the practice of maritime states to make use of the voluntary aid of individuals against their enemies as auxiliary to the public force; and Bynkershoek says that the Dutch formerly employed no vessels of war but such as were owned by private persons, and to whom the government allowed a proportion of the captured property, as well as indemnity from the public treasury. Vessels are now fitted out and equipped by private adventurers, at their own expense, to cruise against the commerce of the enemy. They are duly commissioned, and it is said not to be lawful to cruise without a regular commission. (c) Sir Matthew Hale held it to be depredation in a subject to attack the enemy's vessels, except in his own defence, without a commission. (d) The subject has been repeatedly discussed in the Supreme Court of the United States, (e) and the doctrine of the law of nations is considered to be that pri

(b) Bynk. Q. J. Pub. b. 1, c. 20; Vattel, b. 3, c. 15, sec. 226; Journals of Congress, vii. 187; Martens, b. 8, c. 3, sec. 2.

(c) De Off. b. 1, c. 11.

(a) Dig. 47. 22. 4; Bynk. Q. J. Pub. b. 1, c. 18.

(b) Code des Prizes, i. 1; Martens on Privateers, 18; Robinson's Collectanea Maritima, 21.

(c) Bynk. ubi supra; Martens, b. 8, c. 3, sec. 2; Judge Croke, in the case of The Curlew, Stewart, Vice-Adm. 326.

(d) Harg. Law T. 245, 246, 247.

(e) Brown v. United States, 8 Cranch, 132-135; The Nereide, 9 Cranch, 449 ; The Dos Hermanos, 2 Wheaton, 76, and 10 Wheaton, 306; The Amiable Isabella, 6 Wheaton, 1.