1847; Cong. Doc., 30 Cong., 1 Sess., H. R., Ex. Doc., No. 56, pp. 195, 197; Scott, Gen. Orders No. 358, Nov. 25th, 1847; Scott, Gen. Orders No. 395, Dec. 31st, 1847.)

§ 18. 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 offensive or defensive 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 eyes of the law, there is no excuse; for he who cannot preserve order in his army, has no right to command it. In collecting military contributions, trustworthy troops should always 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. A few examples of such summary justice, soon restores discipline to the army, and pacifies the inhabitants of the country or territory so occupied. 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 excuse for resorting to it. If, however, the general be left without the means of support, or if the nature of his operations prevent his carrying subsistence in the train of his army, or of purchasing it in the country passed over, his conduct becomes the result of necessity, and the responsibility of his acts rests upon the government of his state, which has failed to make proper provisions for the support

of his troops, or which has required of him services which cannot be performed without injury and oppression to the inhabitants of the hostile country. (Kent, Com. on Am. Law, vol. 1, pp. 91, 92; Halleck, Elem. Mil. Art and Science, ch. 4, pp. 94, 95; Manning, Law of Nations, p. 136; Vattel, Droit des Gens, liv. 3, ch. 9, § 165; Moser, Beytrage, etc., b. 3, § 256; Heffter, Droit International, §§ 135, 136; Hautefeuille, des Nations Neutres, tit. 7, ch. 1; Isambert, Annales Pol. et Dip. Int., p. 115.)

§ 19. In the third place, private property taken from the enemy on the field of battle, in the operations of a siege, or in the storming of a place which refuses to capitulate, is usually regarded as legitimate spoils of war. The right to private property, taken in such cases, must be distinguished from the right to permit the unrestricted sacking of private houses, the promiscuous pillage of private property, and the murder of unresisting inhabitants, incident to the authorized or permitted sacking of a town taken by storm, as described in the preceding chapter. In other words, we must distinguish between the title to property acquired by the laws of war, and the accidental circumstances accompanying the acquisition. Thus, the right of prize in maritime captures, and of land in conquests, may be good and valid titles, although such acquisitions are sometimes attended with cruelty and outrage on the part of the captors and conquerors. So with respect to the right of booty acquired in battle or assault; the acquisition may be valid by the laws of war, although other laws of the same code may have been violated by the general or his soldiers in the operations of the campaign or siege. (Polson, Law of Nations, sec. 6; Phillimore On Int. Law, vol. 3, § 135; Bello, Derecho Internacional, pt. 2, cap. 4, § 4; Heffter, Droit Internacional, §§ 135, 136; Ompteda, Literatur des Volk., § 309; Moser, Versuch, etc., b. 9, 2, p. 109; Puffendorff. De Jur. Nat. et Gent., lib. 8, ch. 6, § 21.)

§ 20. Towns, forts, lands, and all immovable property taken from an enemy, are called conquests; while captures made on the high seas are called maritime prizes; but all movables taken on land come under the denomination of booty. All captures in war, whether conquests, prizes, or

booty, naturally belong to the state in whose name, and by whose authority they are made. It alone has such claims against the enemy as will authorize the seizure and conversion of his property; the military forces who make the seizures are merely the instruments of the state, employed for this purpose; they do not act on their individual responsibility, or for their individual benefit. They, therefore, have no other claim to the booty or prizes which they may take, than their government may see fit to allow them. The amount of this allowance is fixed by the municipal laws of each state, and is different in different countries. (Vattel, Droit des Gens, liv. 3, ch. 9, § 164; Kent, Com. on Am. Law, vol. 1, p. 101; Grotius, de Jur. Bel ac Pac., lib. 3, cap. 6; The Elsebe, 5 Rob. Rep., p. 173; Horne v. Earl Camden, 2 H. Black. Rep., p. 533; Bello, Derecho Internacional, pt. 2, cap. 4, § 4; Heffter, Droit International, § 125.)

§ 21. Among the Romans, the soldier was obliged to bring into the public stock all the booty he had taken. This the general caused to be sold, and after distributing a part of the produce of such sale among the soldiers according to their rank, he consigned the residue to the public treasury. It is the general practice in modern times, under the laws and ordinances of the belligerent governments, to distribute the proceeds, or at least a part of the proceeds, of captured property among the, captors, as a reward for bravery, and a stimulus to exertion. In France the prize ordinances fully provide for such distribution. In Great Britain, the statutes 6 Anne, c. 13, and c. 37, vest in seamen the prizes they may take. In the United States, the statute of April 23d, 1800, and subsequent laws, direct the manner of distributing the proceeds of prizes on condemnation. Where captures are not so granted away, they enure to the use of the government, on the elementary principle of the laws of war. Some states, in their municipal laws, distinguish between military captures and prizes at sea; in international law, however, they rest on the same principle. Thus, in England no statute passes with respect to military captures, but the proceeds belong to the crown, and are distributed according to the regulations established by the crown. The act of April 10th, 1806, establishing rules and articles for the government of the

armies of the United States, article fifty-eight, requires that "all public stores taken in the enemy's camp, towns, forts, or magazines, whether of artillery, amunition, clothing, forage, or provisions, shall be secured for the service of the United States;" but no provision is made, as in the case of captures by the naval forces, for distributing such captured property, or its proceeds, among the captors, "as a reward for bravery and a stimulus." This act simply affirms the general rule of international law, that such property is to be taken for the government under whose authority the capture is made, and who is responsible to claimants for the legality of the capture. Congress may direct the disposition of booty of war, either by distributing it among the captors, as is done with prize of war, or by transferring it to the treasury. In the absence of any statute as to its disposition, it is used and accounted for under the discretion of the President, as commander-in-chief. (Kent, Com. on Am. Law, vol. 1, p. 101; Wheaton, Reports, vol. 2, appendix, p. 71; Finch, Discourse on Law, pp. 28, 178; Brymer v. Atkins, 1 H. Blacks. Rep. pp. 189-191; Alexander v. The Duke of Wellington, 2 Russ. and Mylne, Rep., p. 35; Cross et al. v. Harrison, 16 Howard Rep., p. 164; Cross, Military Laws, p. 116; Bello, Derecho Internacional, pt. 2, cap. 4, § 4; Heffter, Droit International, § 135.)

§ 22. 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. But if such destruction is necessary in order to cripple the operations of the enemy, or to insure our own success, it is justifiable. Thus, if we cannot bring off a captured vessel, we may sink or burn it in order to prevent its falling into the enemy's hands; but we cannot do this in mere wantonness. We may destroy provisions and forage, in order to cut off the enemy's subsistence; but we cannot destroy vines and cut down fruit trees, without being looked upon as savage barbarians. We may demolish fortresses, ramparts, and all structures solely devoted to the purposes of war; but, as already stated, we cannot destroy public or private edifices of a civil

character, temples of religion, and monuments of art, unless their destruction should become necessary in the operations of a siege, or in order to prevent their affording a lodgment or protection to the enemy. (Kent, Com. on Am. Law, vol. 1, pp. 92, 93; Vattel, Droit des Gens, liv. 3, ch. 9, §§ 167, 172; Burlamaqui, Droit de la Nat. et des Gens, tome 5, pt. 4, ch. 7; Polson, Law of Nations, sec. 6; Manning, Law of Nations, p. 139; Bello, Derecho Internacional, pt. 2, cap. 4, § 5; Riquelme, Derecho Pub. Int., lib. 1, tit. 2, cap. 12.)

§ 23. 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. It was on this ground that Italy and Spain justified their destruction of the maritime towns on the coast of Africa, which had become mere nests of pirates. But the sacking of towns and villages, and delivering them up to a prey to fire and the sword, are terrible remedies, which are often worse than the evil to be removed. "Dreadful extremities," says Vattel, "even when we are forced into them; savage and monstrous excesses, when committed without necessity," Another excuse for ravaging a district of country, is to render it a barrier against the advance of an enemy. Thus, the Czar, Peter the Great, laid waste an extent of four score leagues of his own territory, to check the advance of Charles the Twelfth, of Sweden. The victory of Pultowa was claimed as the result of this sacrifice. Again, in 1812, the Russians laid waste a vast extent of country, and burnt their capital, to prevent its affording a shelter to the French, from the rigors of a Polar winter. The disastrous retreat from Moscow was claimed as the fruit of this circumspection. "Such violent remedies," says Vattel, "are to be sparingly applied; there must be reasons of suitable importance to justify the use of them. A prince who should, without necessity, imitate the Czar's conduct, would be guilty of a crime against his people; and 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." (Vattel, Droit des Gens, liv. 3, ch. 8, § 142; ch. 9, §§ 166-172; Kent, Com. on Am. Law, vol. 1, p. 92; Dodsley, Ann. Register, 1760;