LAWS OF WAR--"RIGHT TO FORAGE OLDER THAN HISTORY"--XENOPHON--KENT ON
INTERNATIONAL LAW--HALLECK'S AUTHORITY VERSUS SHERMAN'S THEORY AND
PRACTICE--PRESIDENT WOOLSEY--LETTER OF BISHOP ATKINSON.
In the preceding chapter, attention was drawn to the striking contrast
between the policy pursued by General Sherman toward the inhabitants of
the country he was invading, and that of his illustrious predecessor in
the days of the Revolution. I think there can be but little doubt as
to which of these distinguished commanders is entitled to most credit
on the score of _humanity_. General Sherman's friends, considering
that he who conducts a campaign to a successful issue may well afford
to disregard the means to the desired end, will doubtless support
his policy; for where Cornwallis failed, he succeeded, and succeeded
brilliantly. Lord Cornwallis, however, in the general benevolence of
his character--tempering, as far as was practicable, the severities of
war with forbearance and generosity--is more justly entitled to stand
by the side of WASHINGTON than any other military commander of his age.
As to his failure, time has shown that it was well for both countries
that he did fail; and his memory is crowned with more unfading laurels
than the title of mere conqueror could have conferred. Self-control,
discipline, and magnanimous consideration for the weak and the
defenseless are better than burning houses and a devastated country.
If, however, it still be asserted that humanity is _necessarily_ no
part of a soldier's duty, and that his business is to win the fight, no
matter how, an appeal to the authorities on such points, recognized in
all civilized nations, will show that the law is otherwise laid down.
General Sherman begins his famous letter to General Hampton with the
assertion that "the right to forage is older than history." What was
the precise character of this right among barbarians in the morning
twilight of civilization it may hardly be worth our while to inquire.
But we have clear historic evidence that, long before the coming
of the Prince of Peace, in the earliest ages of profane history,
among civilized nations the "right to forage" did _not_ mean a right
to indiscriminate pillage, "waste, and destruction"--destruction
extending not only to the carrying off of the cattle necessary in
farming operations, but to the agricultural tools and implements of
every description. More than twenty centuries ago, Xenophon, at the
head of the Ten Thousand, accomplished his famous retreat from Babylon
to the sea. The incidents of that great march are given by himself
in a narrative, whose modesty, spirit, and elegance have charmed all
subsequent ages. His views as to the right to forage are clearly
stated in the following passage, taken from _Kent's Commentaries
on International Law_--an authority that was studied by General
Sherman at West-Point, and was taught by him when Superintendent
of the Military Academy of Louisiana. Treating of plunder on land,
depredations upon private property, etc., he says:
"Such conduct has been condemned in all ages by the wise and virtuous,
and it is usually punished severely by those commanders of disciplined
troops who have studied war as a science, and are animated by a sense
of duty or the love of fame. We may infer the opinion of Xenophon on
this subject, (and he was a warrior as well as a philosopher,) when
he states, in the _Cyropoedia_, that Cyrus of Persia gave orders to
his army, _when marching upon the enemy's borders_, not to disturb
the cultivators of the soil; and there have been such ordinances in
modern times for the protection of innocent and pacific pursuits. If
the conqueror goes beyond these limits wantonly, or when it is not
clearly indispensable to the just purposes of war, and seizes private
property of pacific 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." (Part I.
Sec. 5.)
To this authority may be added a still more modern and binding
exposition of the laws of war. _Halleck's International Law and Laws of
War_, written and published in 1861 by an officer of the Government,
and for a time a major-general and commander-in-chief of the Federal
army, may be considered as the latest and ablest summary of the best
authorities on these subjects. It was in the hands of General Sherman
and his officers, and its decisions may be regarded as final. Nothing
can be more explicit or more emphatic than the following extracts.
First, as to general right of war in an enemy's property (on land):
"The general theory of war is, as heretofore stated, that all private
property may be taken by the conqueror; and such was the ancient
practice. But the modern usage is, not to touch private property
on land without making compensation, except in certain specified
cases. These exceptions may be stated under three general heads: 1st.
Confiscations or seizures by way of penalty for military offenses;
2d. Forced contributions for the support of the invading army, or as
an indemnity for the expenses of maintaining order, and affording
protection to the conquered inhabitants; and 3d. Property taken on the
field of battle, or in storming a fortress or town.
"In the first place, we may seize upon private property, by way of
penalty for the illegal acts of individuals, or of the community to
which they belong. Thus, if an individual be guilty of conduct in
violation of the laws of war, we may seize and confiscate the private
property of the offender. So, also, if the offense attach itself to a
particular community or town, all the individuals of that community or
town are liable to punishment; and we may seize upon their property,
or levy upon them a retaliatory contribution by way of penalty. When,
however, we can discover and secure the individuals so offending, it is
more just to inflict the punishment on them only; but it is a general
law of war that communities are accountable for the acts of their
individual members. If these individuals are not given up, or can not
be discovered, it is usual to impose a contribution upon the civil
authorities of the place where the offense is committed; and these
authorities raise the amount of the contribution by a tax levied on
their constituents." (Chap. 19, pages 457, 458.)
If the town of Fayetteville had in any way become peculiarly obnoxious
to the Federal army, one would have thought that a glance into Halleck
might have satisfied the commanding officers as to their rights and
duties there on the eleventh of March, 1865. Not a word here of
plunder, pillage, or arson. There can be no doubt that Fayetteville
would have gladly compounded for her offenses by a tax of almost any
possible amount, levied and collected in a lawful and civilized way, in
preference to her actual experiences.
Next, as to right of forage, etc.:
"In the second place, we have a _right_ to make the enemy's country
contribute to the expenses of the war. Troops in the enemy's country
may be subsisted either by regular magazines, by forced requisitions,
or by authorized pillage. It is not always politic, or even possible,
to provide regular magazines for the entire supply of an army during
the active operations of a campaign. When this can not be done, the
general is obliged either to resort to military requisitions, or to
intrust their subsistence to the troops themselves. The inevitable
consequences of the latter system are universal pillage, and a total
relaxation of discipline: the loss of private property, and the
violation of individual rights, are usually followed by the massacre
of straggling parties; and the _ordinary peaceful and non-combatant
inhabitants are converted into bitter and implacable enemies_. The
system is, therefore, regarded as both impolitic and unjust, and is
coming into general disuse among the more civilized nations--at least
for the support of the main army. In case of small detachments, where
great rapidity of motion is requisite, it sometimes becomes necessary
for the troops to procure their subsistence wherever they can. In such
a case, the seizure of private property becomes a necessary consequence
of the military operations, and is, therefore, unavoidable. Other cases
of similar character might be mentioned. But even in most of these
special and extreme cases, provisions might be made for subsequently
compensating the owners for the loss of their property." (Page 459.)
"The evils resulting from irregular requisitions, and foraging for
the ordinary supplies of an army, are so very great, and so generally
admitted, that it has become a recognized maxim of war, that the
commanding officer who permits indiscriminate pillage, and allows the
taking of private property without a strict accountability, whether he
be engaged in defensive or offensive operations, fails in his duty to
his own government, and violates the usages of modern warfare. It is
sometimes alleged, in excuse for such conduct, that the general is
unable to restrain his troops; but in the eye of the law there is no
excuse; for _he who can not preserve order in his army has no right
to command it_. In collecting military contributions, trustworthy
troops should be sent with the foragers, to prevent them from engaging
in irregular and unauthorized pillage; and the party should always
be accompanied by officers of the staff and administrative corps,
to see to the proper execution of the orders, and to report any
irregularities on the part of the troops. In case any corps should
engage in unauthorized pillage, due restitution should be made to the
inhabitants, and the expenses of such restitution deducted from the
pay and allowances of the corps by which such excess is committed. But
modify and restrict it as you will, the system of subsisting armies on
the private property of an enemy's subjects without compensation is
very objectionable, and almost inevitably leads to cruel and disastrous
results. There is, therefore, very seldom a sufficient reason for
resorting to it." (Chap. 19, page 451.)
"While there is some uncertainty as to the exact limit fixed by the
voluntary law of nations to our right to appropriate to our own use
the property of an enemy, or to subject it to military contributions,
_there is no doubt whatever respecting its waste and useless
destruction_. _This is forbidden alike by the law of nature and the
rules of war._ There are numerous instances in military history
where whole districts of country have been totally ravaged and laid
waste. Such operations have sometimes been defended on the ground of
necessity, or as a means of preventing greater evils. 'Such violent
remedies,' says Vattel, 'are to be sparingly applied: there must be
reasons of suitable importance to justify the use of them. He who
does the like in an enemy's country when impelled by no necessity, or
induced by feeble reasons, becomes the scourge of mankind.'
"The general rule by which we should regulate our conduct toward
an enemy is _that of moderation; and on no occasion should we
unnecessarily destroy his property_. 'The pillage and destruction of
towns,' says Vattel, 'the devastation of the open country, ravaging and
setting fire to houses, are measures no less odious and detestable on
every occasion when they are evidently put in practice without absolute
necessity, or at least very cogent reasons. But as the perpetrators of
such outrageous deeds might attempt to palliate them, under pretext
of deservedly punishing the enemy, be it here observed that the
natural and voluntary law of nations does not allow us to inflict such
punishments, except for enormous offenses against the law of nations;
and even then it is glorious to listen to the voice of humanity and
clemency, when rigor is not absolutely necessary.'" (Pages 455--456.)
To these unimpeachable decisions I can not refrain from adding that of
President Woolsey, of Yale College. In his Introduction to the Study
of International Law, sec. 130, pp. 304--5, he says: "The property,
movable and immovable, of private persons in an invaded country is to
remain uninjured. But if the wants of the hostile army require, it
may be taken by authorized persons at a fair value; but marauding must
be checked by discipline and penalties." And even as to "permissible
requisitions," which Wellington regarded as iniquitous, and opposed as
"_likely to injure those who resorted to them_," President Woolsey adds
that they "are demoralizing; they arouse the avarice of officers, and
_leave a sting in the memory of oppressed nations_."
It is this _sting_, left in the breasts of the Southern people, these
bitter hatreds aroused by the indiscriminate and licensed pillage to
which they were subjected, which are more to be deprecated than any
consequence of the blood shed in fair and open fight during the war.
Hard blows do not necessarily make bad blood between generous foes. It
is the ungenerous policy of the exulting conqueror that adds poison to
the bleeding wounds.
From a mass of agreeing testimony, as to the conduct of the Federal
troops on their entrance into our State, I select the following letter
from a clergyman of distinction, the authorized head of one of the most
influential denominations in the State; a man of national reputation
for the learning, ability, and piety with which he adorns his high
office in the Church of God. Let it be carefully read, and its calm and
moderate tone be fairly estimated and appreciated:
... "I am altogether indisposed to obtrude myself on the public, and
especially to bring before it complaints of personal grievance; but
it seemed to me important, not only for the interests of justice,
but of humanity, that the truth should be declared concerning the
mode in which the late civil war was carried on, and I did not see
that I was exempted from this duty rather than any one else who had
personal knowledge of facts bearing on that subject. For this reason I
made the statement to my Convention which you allude to, and for the
same reason I have, after some hesitation, felt bound to give you the
information you ask.
"When General Sherman was moving on Cheraw, in South-Carolina, one
corps of his army, under General Slocum, I believe, advanced in
a parallel line north of him, and extended into this State. Some
companies of Kilpatrick's cavalry attached to this corps came on
Friday, third March, to Wadesboro, in Anson county, where I was
then residing. As their approach was known, many persons thought it
best to withdraw from the place before the cavalry entered it; but
I determined to remain, as I could not remove my family, and I did
not suppose that I would suffer any serious injury. I saw the troops
galloping in, and sat down quietly to my books, reading, having
asked the other members of my family to remain in a room in the rear
of the building. After a time a soldier knocked at the door, which
I opened. He at once, with many oaths, demanded my watch, which I
refused to give him. He then drew a pistol and presented it at me,
and threatened to shoot me immediately if I did not surrender it. I
still refused, and, the altercation becoming loud, my wife heard it,
ran into the room and earnestly besought me to give it up, which I
then did. Having secured this, he demanded money, but as we had none
but Confederate, he would not take that. He then proceeded to rifle
our trunks and drawers, took some of my clothes from these, and my
wife's jewelry; but he would have nothing to do with heavy articles
as, fortunately, he had no means of carrying them off. He then left
the house, and I went in search of his officers to ask them to compel
him to return what he had taken from me. This might seem a hopeless
effort; for the same game had been played in every house in the town
where there seemed to be any thing worth taking. However, in my case,
the officers promised, if I could identify the robber, to compel him
to make restitution. The men, accordingly, were drawn up in line, and
their commander and I went along it examining their countenances,
but my acquaintance was not among them. It turned out that he had
gone from my house to that of a neighbor, to carry on the same work,
and during my absence had returned to my house, taken a horse from
the stable, and then moved off to his camp at some miles' distance.
The next day other bands visited us, taking groceries from us and
demanding watches and money. They broke open the storehouses in the
village; and as at one of these I had some tierces of china and boxes
of books, these they knocked to pieces, breaking the china, of course,
and scattering the books, but not carrying them off, as they probably
did not much value them, and had, fortunately, no wagons. I finally
recovered nearly all of them. Another part of Sherman's army, in
their march through Richmond county, passed by two railroad stations
where I had a piano and other furniture, which they destroyed; and
also at Fayetteville I had furniture at the house of a friend,
which shared the fate of his. Yet I was among those who suffered
_comparatively lightly_. Where the army went with its wagons, they
swept the country of almost every thing of value that was portable. In
some instances defenseless men were killed for plunder. A Mr. James C.
Bennet, one of the oldest and wealthiest men in Anson county, was shot
at the door of his own house because he did not give up his watch and
money, which had been previously taken from him by another party.
"These and the like atrocities ought to be known; for even men who do
not much fear the judgments of God, are kept somewhat in awe by the
apprehension of the sentence of the civilized world and of posterity.
"In conclusion, I must say that I wish as little reference to be made
to me, and the injuries done me, as is consistent with the faithful
narrative which you have undertaken to give of the last ninety days of
the war in North-Carolina.
"I remain, very truly and respectfully yours,
"Thomas Atkinson."
Bishop Atkinson, it is well known, was the first to set the example,
after the war was closed, of leading his church half-way to reünite the
church connection North and South. An example of Christian charity,
meekness, and forbearance most worthy of our admiration and imitation.