MR. PRESIDENT,--This discussion, so unexpectedly prolonged, has already
brought us to see two things,--first, the magnitude of the interests
involved, and, secondly, the simplicity of the principle which must
determine our judgment. It is difficult to exaggerate the amount of
claims which will be let loose to feed on the country, if you recognize
that now before us; nor can I imagine anything more authoritative than
the principle which bars all these claims, except so far as Congress in
its bounty chooses to recognize them.
* * * * *
By the Report of the Committee on Claims[4] it appears that the house
of Miss Sue Murphey, of Decatur, Alabama, was destroyed, so that not
a vestige remained, by order of the commander at that place, on the
19th March, 1864, under instructions from General Sherman to make it a
military post. It is also stated that Miss Murphey was loyal. These are
the important facts. Assuming the loyalty of the petitioner, which I
have been led to doubt, the simple question is, whether the Nation is
bound to indemnify a citizen, domiciled in a Rebel State, for property
in that State, taken for the building of a fort by the United States
against the Rebels.
Here it is proper to observe three things,--one concerning the
petitioner, and two concerning the property taken: first, that the
petitioner was domiciled in a Rebel State, or, to use more technical
language, in a State declared by public proclamation to be in
rebellion; secondly, that the property was situated within the Rebel
State; and, thirdly, that the property was taken under the necessities
of war, and for the national defence. On these three several points
there can be no question. They are facts which have not been denied
in this debate. Thus far I confine myself to a statement of facts,
in order to prepare the way for the consideration of the legal
consequences.
Bearing in mind these facts, several difficulties which have been
presented during this debate disappear. For instance, a question was
put by a learned Senator [Mr. DAVIS, of Kentucky] as to the validity
of an imagined seizure of the property of the eminent Judge Wayne,
situated in the District of Columbia. But it is obvious that the facts
in the imagined case of the eminent judge are different from those in
the actual case before us. Judge Wayne, unlike the petitioner, was
domiciled in a loyal part of the country; and his property, unlike that
of the petitioner, was situated in a loyal part of the country. This
difference between the two cases serves to illustrate the position of
the petitioner. Because property situated in the District of Columbia
and belonging to a loyal judge domiciled here could not be taken, it by
no means follows that property situated in a Rebel State and belonging
to a person domiciled there can enjoy the same immunity.
Behind the fact of domicile, and the fact that the property
was situated in a Rebel State, is that other fact, equally
incontrovertible, that it was taken in the exigencies of war.
The military order under which the taking occurred declares that
“the necessities of the Army require the use of every building in
Decatur,”--not merely the building in question, but every building; and
the Report of the Committee says that “General Sherman had previously
issued an order to fortify Decatur for a military post.” I might quote
more to illustrate this point; but I quote enough. It is plain and
indisputable that the taking was under an exigency of war. To deny this
is to assail the military order under which it was done, and also the
Report of the Committee.
* * * * *
Three men once governed the mighty Roman world. Three facts govern the
present case, with the power of a triumvirate,--the domicile of the
petitioner, the situation of the property, and the exigency of war. If
I dwell on these three facts, it is because I am unwilling that either
should drop out of sight; each is important. Together they present a
case which it is easy to decide, however painful the conclusion. And
this brings me to the principle which I said at the beginning was so
simple. Indeed, let the facts be admitted, and it is difficult to see
how there can be any question in the present case. But the facts, as I
have stated them, are indubitable.
On these facts two questions arise: first, as to the rule of
International Law applicable to property of persons domiciled in
an enemy country; and, secondly, as to the applicability of this
rule to the present case. Of the rule there can be no question; its
applicability is sustained by reason, and also by authority from which
there can be no appeal.
In stating and enforcing the rule I might array writers, precedents,
and courts; but I content myself with a paragraph from a writer who in
expounding the Laws of War is perhaps the highest authority. I refer
to the Dutch publicist of the last century, Bynkershoek, whose work is
always quoted in the final resort on these questions. This great writer
expresses himself as follows:--
“Could it be doubted whether under the name of enemies may
be understood also our friends who having been conquered are
with the enemy, their city perhaps being occupied by him?…
I should think that they also were to be so understood,
certainly as regards goods which they have under the government
of the enemy.… I know upon what ground others say the
contrary,--namely, that our friends, although they are with
the enemy, have no spirit of hostility to us; for that it is
not of their free will that they are there, and that it is
only from the _animus_ that the case is to be judged. But the
case does not depend upon the _animus_ alone; because neither
are all the rest of our enemy’s subjects, at any rate very
few of them, carried away by a spirit of hostility to us; but
it depends upon the right by which those goods are with the
enemy, and upon the advantage which they afford him for our
destruction.”[5]
Nothing could be stronger in determining the liability from domicile.
Its sweeping extent, under the exigency of war, is proclaimed by this
same writer in words of peculiar weight:--
“Since it is the condition of war that enemies are despoiled
and proscribed as to every right, it stands to reason that
everything found with the enemy changes its owner and goes
to the Treasury.… If we follow the mere Law of War, even
_immovable_ property may be sold and its price turned into the
Treasury, as in the case of movable property.”[6]
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.
* * * * *
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.
* * * * *
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.
* * * * *
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]