** it also extends to property, and gives to one belligerent the right to deprive the other of everything which might add to his strength and enable him to carry on hostilities.79

A firm possession is sufficient to establish the captor's title to personal or movable property on land, but a different rule applies to immovables or real property. A belligerent who makes himself master of the provinces, towns, public lands, buildings, &c., of an enemy, has a perfect right to their possession and use. The possession gives a right to its use and its products.80

*

*

By modern usage there are, and ought to be, humane limitations on the ancient right of seizure, which restrict it to what is useful in the prosecution of the war or necessary to disable the enemy.81

By General Order No. 100, approved by the President April 24, 1863, "instructions for the government of the armies" were issued, which were prepared by the eminent jurist, Francis Lieber, LL. D., embodying the laws of war as recognized among civilized and Christian nations, in which it is declared that—

*

Churches, hospitals, or other establishments of an exclusively charitable character, establishments of education, museums, &c., * may be taxed or used when the public service may require it.82

The Supreme Court has determined that during the rebellion—

Cotton in the southern rebel districts-constituting, as it did, the chief reliance of the rebels for means to purchase munitions of war, an element of strength to the rebellion-was a proper subject of capture by the Government during the rebellion on general principles of public law relating to war, though private property; and the legislation of Congress during the rebellion authorized such captures.

And the court said, as to cotton :

Being enemy's property, the cotton was liable to capture and confiscation by the adverse party. It is true that this rule, as to property on land, has received very important qualifications from usage, from the reasonings of enlightened publicists, and from judicial decisions. It may now be regarded as substantially restricted "to special cases, dictated by the necessary operation of the war," and as excluding, in general, the seizure of the private property of pacific persons for the sake of gain. The commanding general may determine in what special cases its more stringent application is required by military emergencies; while considerations of public policy, and positive provisions of law, and the general spirit of legislation, must indicate the cases in which its application may be properly denied to the property of non-combatant enemies.

In the case before us, the capture seems to have been justified by the peculiar character of the property and by legislation. It is well known that cotton has constituted the chief reliance of the rebels for means to purchase the munitions of war in Europe. It is matter of history that, rather than permit it to come into the possession of the national troops, the rebel government has everywhere devoted it, however owned, to destruction. "The value of that destroyed at New Orleans, just before its capture, has

79 International Law, 446; id., 457-460; 71 vol. Globe, 300, Sumner's Speech, January 12, 1869; Prize Cases, 2 Black, 671-674; Lawrence's Wheaton, 596. This includes cotton. The rebels destroyed $50,000,000 in value to prevent it from being captured by Union forces. (Mrs. Alexander's Cotton, 2 Wallace, 420.)

80 Halleck, 447; Wheaton, Int. Law, pt. 4. ch. 2, §§ 5-11; 1 Kent, 110; Heffert, Droit International, § 130; Martens, Précis du Droit des Gens, § 280; Requelme, Derecho Pub. Int., lib. 1, tit. 1, cap. 12.

81 United States v. Klein, 13 Wallace, 138; Whiting's War Powers, 48, 52, 53; Lawrence's Wheaton, 630; Dana's Wheaton, section 256, note 171; Halleck, 448-451; Vattel, Law Nat., 365, book 3, chapter 9; Bynkershoek's Laws of War; Brown v. United States, 8 Cranch, 122, 228; 71 Globe, 383; 1 Kent, 92, 93, 120; Alexander v. Duke of Wellington, 2 Russell and Mylne, 35; 1 Kent's Com., 357. In United States v. Paddleford, 9 Wallace, 531, the court said: "The rights in private property are not disturbed by the capture of a district of country or a city or town until the captor signifies by some declaration or act, and generally by actual seizure, his determination to regard a particular description of property as not entitled to the immunity usually conceded in conformity with the humane maxims of the public laws."

Cooledge v. Guthrie, United States circuit court, southern district Ohio, October, 1868, Appendix 591 to (43d ed., 1871) Whiting's War Powers.

Mrs. Alexander's Cotton, 2 Wallace, 419; 1 Kent, 92, 93; United States v. Klein, 13 Wallace, 137.

82 Scott's Digest Military Laws, 446. See McPherson's chapter "The Church and the Rebellion," History of Rebellion, 460, &c.

been estimated at eighty millions of dollars. The rebels regard it as one of their main sinews of war; and no principle of equity or just policy required, when the national occupation was itself precarious, that it should be spared from capture and allowed to remain, in case of the withdrawal of the Union troops, an element of strength to the rebellion. And the capture was justified by legislation as well as by public policy.83 Tobacco and other property was also an element of strength, and by the laws of war might equally with cotton, and upon the same princiciples, be destroyed.84

83 Mrs. Alexander's Cotton, 2 Wallace, 419.

84 The commissioners of claims, under the act of March 3, 1871, in their third annual report of December 8, 1873, House Mis. Doc. No. 23, 1st sess. 41st Cong., p. 3, say :

"As we now, for the first time, present reports allowing for tobacco taken for Army use, we desire to state the reasons for such allowances.

"Tobacco was by law never made an Army supply till the act of March 3, 1865, provided that it might be furnished at cost to those who desired it, and at their expense. All the claims for tobacco which have been examined by us are for tobacco taken before that date.

"After the capture of Atlanta, in September, 1864, General Sherman found that he was short of rations for his army, and that the soldiers were subject to many privations. To make his army contented, and, as far as possible, to make up to them for their usual rations, of which they were for the time deprived, he issued an order on the 8th of September, 1864, authorizing the chief commissary of subsistence to take possession of and issue to the troops all the tobacco in Atlanta, and give certificates thereof to the owners, to be accounted for in accordance with existing orders.

"Pursuant to this order, tobacco belonging to George J. Stubblefield was taken, and upon his making claim for payment the Commissary Department recommended, 'As this tobacco was taken by order of General Sherman and issued to the troops in lieu of other rations, and as the loyalty of the claimant is clearly established,' that payment should be made. This was approved by the Secretary of War, Mr. Stanton, and the claim was paid.

"The payment stands upon the ground that when an army is deprived of its usual rations the commanding general can, in his judgment, authorize an article not a supply to be taken and nsed for the time being as a supply, and in lieu of other rations; and in such case the Government is bound to pay for it. We have strictly followed this precedent, and have not allowed for tobacco except when taken under this order.”—(3d Genl. Rep. Com. of Claims, art. 6, p. 3.)

The commission of claims, under 12th article of treaty of 8th May, 1871, between the United States and Great Britain, adopted the same principle; Hale's report to the Secretary of State, November 30, 1873, page 45, showing an award only when it was "allowed as an Army ration."

In Senate Report No. 338, 1st ses. 43d Cong., on a claim for tobacco, General Sherman said in a letter to the Committee on Claims:

"HEADQUARTERS ARMY OF THE UNITED STATES,
"Washington, D. C., April 18, 1874.
of your communication of the 16th
claim of N. P. Harben, of Georgia,'
about the 22d day of July, 1864.

"SIR: I have the honor to acknowledge receipt instant, inclosing the brief for claimant in the for tobacco seized at Covington and Oxford, on or

*

*

“As a rule I endeavored, as far as circumstances permitted, to check the tendency to cause wanton waste,' which is the natural impulse of invading armies, but always authorized the appropriation of such things as soldiers needed to keep them strong and contented; and tobacco is one of those things which, whether authorized or not, soldiers will have by fair means or foul. I do not wish, however, to be construed as advocating Mr. Harben's claim, for, whatever his sentiments may have been, he was in bad company; his property was lost to him, and our army recovered possession of it, and were entitled to salvage at the rate of about a hundred per cent. "W. T. SHERMAN,

"General."

This claim was before the commissioners of claims, and they disposed of it as follows:

"No. 329. The claim of N. P. Harben, of Whitfield County, in the State of Georgia. "This claim is for 342 boxes of tobacco valued at $51,438. Claim rejected. "This claim is for tobacco taken in July, 1864, by a party of Union soldiers at Covington and Oxford, Ga. It was carried off by the soldiers on horseback and in large quantities in wagons. It was taken to a camp of the Army in the vicinity of Atlanta. What was then done with it does not appear, but probably most of it, perhaps all, was

Bynkershoek says:

It is a question whether our friends are to be considered as enemies, when they live among the latter, say in a town which they occupy. Petrinus Bellus de R. Milit., part 2, tit. 11, note 5, thinks they are not. Zauch, de Jure Fec., part 2, § 8, q. 4, gives no opinion. For my part, I think that they must also be considered as enemies.

*

*

*

They say that our friends, although they are among our enemies, yet are not hostilely inclined against us; for if they are there, it is not from choice, and the quo animo only is to be considered. But the thing does not depend only on the quo animo; for, even among the subjects of our enemy there are some, however few they may be, who are not hostilely inclined against us; but the matter depends upon the law, because those goods are with the enemy, and because they are of use to them for our destruction.85 used by the Army. Tobacco was not an Army supply. The Government has never paid for tobacco, except in the one single and exceptional case of tobacco taken at Atlanta under the general order issued by General Sherman on the 8th September, 1864, where it has been paid for as taken in an emergency by an order of the commanding general of the army in lieu of other rations. Claim must be rejected. "A. O. ALDIS, "Commissioner of Claims."

85 Laws of War, 25; Manning's Law of Nations, ch. iv, p. 122; Thomas Jefferson vindicated the confiscation of property of colonists who adhered to Great Britain during the Revolution on this principle. Jefferson's Works, vol. 3, p. 369. Sumner's speech, 71 Globe, 380.

On the 30th January, 1866, the House of Representatives passed the following:

"Resolved, That, until otherwise ordered, the Committee of Claims be instructed to reject all claims referred to them for examination by citizens of any of the States lately in rebellion, growing out of the destruction or appropriation of or damage to property by the Army or Navy while engaged in suppressing the rebellion.” (See debates in Globe, vol. 56, pp. 509-512.)

This resolution was reported from the Committee of Claims by Hon. C. Delano, now Secretary of the Interior. (See House Rep. No. 10, 1st sess. 39th Cong., January 18, 1866.)

In the debate, Mr. Delano said:

"I do not deem it necessary to go into an argument to show that there is no responsibility resting on Congress to pay those damages that are the result of the necessary ravages of war."

As to claims for "damages resulting from the appropriation of property by our Army for subsistence," he said that "an effort to discriminate between the loyal and disloyal would be an impracticability."

As a question of law, he said, "I am not furnished with any authorities that would enable me to draw a distinction" between loyal and disloyal claimants.

The nation has power to make a rule, however, and reason and justice, the bases of all law, would draw a line when necessary or practicable.

Mr. Delano, in the report of the committee unanimously made in favor of that resolution, said:

"The committee are therefore of the opinion that, in view of the magnitude of these losses, as well as the magnitude of the public debt, and the thousand abuses necessarily resulting from an attempt to satisfy these claims, in the words of Vattel, the thing is utterly impracticable,' and ought not to be encouraged.

"It may be suggested that a distinction should be made between losses arising out of the destruction of property incident to the ravages of war and damages growing out of the appropriation of property for the uses of the Army. Without controverting the propriety of this distinction, so far as citizens of the loyal States are concerned, it is suggested that it will be dangerous and inexpedient to apply it to claims coming from States lately in rebellion. It will be difficult to determine with a sufficient degree of certainty the question of individual loyalty; and, if it be established as a rule that property taken from loyal citizens in ebellious States for military supplies shall be paid for, it may be conceded that every claimant will find some proof to present of his devotion and suffering in the cause of the Government."

The report also says that in our former history some claims had been allowed "in cases of doubtful propriety;" but the cases were not such as to impose great burdens on the nation. And the report says:

"Appeals to our sympathy, humanity, and benevolence are not easily resisted, and it is a credit to human nature that we are so constituted as to be accessible to such appeals. It is to be remembered, however, that such appeals ought not to induce and cannot authorize us to levy extraordinary taxation upon our constituents in order to gratify our charitable impulses. We are not almoners merely for the nation, and have no just right to impose increased taxation in order to gratify our feelings of benevolence, nor to establish principles of abstract justice and equity, when there is no rule or law requiring it, and particularly when the attempt is to be attended with great uncertainty, and be subjected to innumerable imposions and frauds."

While these are the rights which the Government might lawfully enforce against all the inhabitants of the seceded States during actual nsurrection, yet in practice they were wisely and humanely modified by acts of Congress, and the military authorities in virtue of their general power in special cases advised departures from strict rules.86

Congress has also, as a gratuity, provided for the payment

To those citizens who remained loyal adherents to the cause and the Government of the United States during the war, for stores or supplies taken or furnished during the rebellion for the Army and Navy of the United States in States proclaimed as in insurrection, including the use and loss of vessels or boats while employed in the military service of the United States.87

The right to take property in the insurgent States, by the common laws of war, remained generally in force, but Congress also provided modes of taking property in statutory modes.88

86 General Halleck, in his instructions of March 5, 1863, to the commanding officers in Tennessee, said :

"The people of the country in which you are likely to operate may be divided into three classes: "First. The truly loyal, who neither aid nor assist the rebels, except under compulsion, but who favor or assist the Union forces. Where it can possibly be avoided, this class of persons should not be subjected to military requisitions, but should receive the protection of our armies. It may, however, sometimes be necessary to take their property, either for our own use or to prevent its falling into the hands of the enemy. They will be paid at the time the value of such property; or, if that be impracticable, they will hereafter be fully indemnified. Receipts should be given for all property so taken without being paid for.'

(Lawrence's Wheaton, supplement, p. 40.) This related only to Tennessee, and after March 5, 1863, the general rule was prescribed, by an order of the War Department, July 22, 1862, as follows:

"Ordered, that the military commanders within the States of Virginia, Georgia, Florida, Alabama, Mississippi, Louisiana, Texas, and Arkansas, in an orderly manner, seize and use any property, real or personal, which may be necessary or convenient for their several commands as supplies or for other military purposes, and while property may be destroyed for military objects, none shall be destroyed in wantonness or malice."

(Lawrence's Wheaton, note, page 625.)

Halleck's International Law and Laws of War, p. 460, § 17, cites Mr. Marcy, Secretary of War, as giving directions to our commanding generals, during the war with Mexico, that they might obtain supplies from the enemy:

1.

By buying them in open market at such prices as the enemy might exact ;" (this, of course, they could do if they saw fit.)

2. They might take the supplies and pay the owners a fair price, without regard to what they might themselves demand on account of the enhanced value resulting from the presence of a foreign army.

3. They might require contributions without paying or engaging to pay. Halleck says:

"There can be no doubt of the correctness of the rules of war as here announced by the American Secretary."

He cites many authorities, and the letters from Marcy to Scott and Taylor, &c. (See Ex. Doc. 60, House Reps., 1 sess. 30 Cong., p. 963.)

As to cotton, &c., act March 12, 1863, 12 Stat., 591; act May 18, 1872, 17 Stat., 134; House Ex. Doc. 97, 39 Cong., 2 sess.; Senate Ex. Doc. 37, 2 sess. 39 Cong.; House Ex. Doc. No. 114, 2 sess. 39 Cong.; Senate Ex. Doc. No. 22, 2 sess. 40 Cong.; House Rep. No. 7, 1 sess. 40 Cong.; Senate Ex. Doc. 56, 2 sess. 40 Cong.; House Ex. Doc. 82, 3 sess. 40 Cong.; House Ex. Doc. 113, 3 sess. 41 Cong; House Ex. Doc. 1 sess. 43 Cong.

87 Act March 3, 1871, 16 Stat., 524; May 11, 1872, 17 Stat., 97; March 3, 1873, 17 Stat., 577. See the peports of Commissioners of Claims, House Mis. Doc. 16, 2 sess. 42 Cong.; Mis. Doc. 21, Mis. Doc. 213, Mis. Doc. 218, 2 sess. 42 Cong,; Mis. Doc. 12, 3 sess. 42 Cong. Joint Res. No. 50, 1 sess. 39 Cong., June 18, 1866; Joint Res. No. 99, 1 sess. 39 Cong., July 28, 1866; act July 4, 1864, ch. 240, 1 sess. 38 Cong.

88 In United States vs. Klein, (13 Wallace, p. 128,) the court said :

It may be said, in general terms, that property in the insurgent States may be distributed into four classes: [1.] That which belonged to the hostile organizations, or was employed in actual hostilities on land; [2.] That which at sea became lawful subject of capture and prize; [3.] That which became the subject of confiscation; [4.] A peculiar description, known only in the recent war, called captured and abandoned property.

The statutes in relation to captured and abandoned property authorized the Secretary of the Treasury to appoint special agents to receive all abandoned or captured property in the States proclaimed as in insurrection, and required the military and naval authorities who took or received any such abandoned property, or cotton, sugar, rice, or tobacco, to turn the same over to the Treasury agents, who were required to sell the same and pay the proceeds into the Treasury. These acts provide, also, that any person claiming to have been the owner of any such property might, at any time within two years after the suppression of the rebellion, prefer his claim to the proceeds thereof in the Court of Claims, and, on proof of ownership and loyalty, he shall receive the proceeds, less costs and expenses.89

The act of May, 1872, required the Secretary of the Treasury to pay

1. The first of these descriptions of property, like property of other like kind in ordinary international wars, became, wherever taken, ipso facto the property of the United States. (Halleck's Int. Law.)

2. The second of these descriptions comprehends ships and vessels, with their cargoes, belonging to the insurgents, or employed in aid of them; but property in these was not changed by capture alone, but by regular judicial proceeding and sentence. Accordingly it was provided, in the abandoned and captured property act of March 12, 1863, (12 Stat., p. 820,) that the property to be collected under it "shall not include any kind or description used, or intended to be used, for carrying on war against the United States, such as arms, ordnance, ships, steamboats and their furniture, forage, military supplies, or munitions of war."

3. Almost all the property of the people in the insurgent States was included in the third description, for after sixty days from the date of the President's proclamation of July 25, 1862, (12 Stat., p. 1266,) all the estates and property of those who did not cease to aid, countenance, and abet the rebellion became liable to seizure and confiscation, and it was made the duty of the President to cause the same to be seized and applied, either specifically or in the proceeds thereof, to the support of the Army. (12 Stat., p. 590.) But it is to be observed that tribunals and proceedings were provided, by which alone such property could be condemned, and without which it remained unaffected in the possession of the proprietors.

It is thus seen that, except to property used in actual hostilities, as mentioned in the first section of the act of March 12, 1863, no titles were divested in the insurgent States unless in pursuance of a judgment rendered after due legal proceedings. The Government recognized to the fullest extent the humane maxims of the modern laws of nations, which exempt private property of non-combatant enemies from capture as booty of war. Even the law of confiscation was sparingly employed. The cases were few indeed in which the property of any not engaged in actual hostilities was subjected to seizure and sale.

The spirit which animated the Government received special illustration from the act under which the present case arose. We have called the property taken into the custody of public officers under that act a peculiar species, and it was so. There is, so far as we are aware, no similar legislation mentioned in history.

As to captured and abandoned property, see—

39th Congress, 2d session, House of Representatives. Ex. Doc. No. 97. Captured and forfeited cotton.

39th Congress, 2d session, Senate. Ex. Doc. No. 37. cotton, &c.

39th Congress, 2d session, House of Representatives. cotton claims.

Relative to proceeds of sale of

Ex. Doc. No. 114. Relative to

Letter from the Secretary of the

House Report, No. 7. 1st session 40th Congress. November 25, 1867. 40th Congress, 2d session, Senate. Ex. Doc. No. 22. Treasury relative to captured and abandoned property. 40th Congress, 2d session, Senate. Ex. Doc. No. 56. abandoned property.

Relative to sales of captured and

Ex. Doc. No. 82. Letter from and abandoned property.

40th Congress, 3d session, House of Representatives. Secretary of Treasury relative to proceeds of captured 41st Congress, 3d session, House of Representatives. Ex. Doc. No. 113. Sale of captured vessels, cotton, &c.

Alexander's Cotton, 2 Wallace, 421.

89 See acts of March 12, 1863, and July 2, 1864. See a compilation of acts of Congress and rules and regulations prescribed by the Secretary of the Treasury, concerning commercial intercourse with the States declared in insurrection, and as to captured, abaudoned, and confiscable property, reprint, 1872.