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Case of Messrs. Laurent, under Convention of Feb. 8, 1853.
Opinion of Mr. Bates, the umpire, pp. 158, 160.
Charming Betsey,” 2 Cr., 64. II. If the Commissioners should be of opinion that, notwithstanding the domicile of the claimant and his relations to the local power, his claim is not excluded from their consideration under Article XII of the Treaty, it is respectfully submitted that the claimant has not made out a case for indemnification.
In the first place, it will not be pretended that his property was treated in any manner differently from other property found by the United States' forces within the enemy territory.
To bring his case within the Treaty one of two things must be shown: either that he suffered in his property specially in his capacity as a subject of Her Britannic Majesty, or that, in common with all others, his property was taken in violation of the laws of war, to such an extent as entitles any sovereignty, whose interposition he could claim, to demand redress under the law of nations. It can scarcely be argued that he comes within the first category.
This property was landed property, and immovable or movable property connected with or arising out of and deriving its character from the land. His domicile and residence, the rights he had against the local power, and the claims of that power upon him, were such as to show that he did not suffer in his capacity as a subject of Her Britannic Majesty, but in his capacity as a subject of the local power.
This claim is to be treated as it would be if the claimant had held the like relations to France during the recent invasion by the German armies, and a Treaty had been made between Great Britain and Germany for indemnification by each sovereign for acts done to the subjects or citizens of the other. Such a Treaty would embrace the following classes of injuries done by Germany to property of Pritish subjects ::
1. Movable property, commercial in its character, belonging to to British subjects, whether personally in France or not, and confided to French territory for temporary or business purposes.
2. Movable property, domestic or personal, belonging to British subjects temporarily in France and discriminated by Germany, either on the ground of the nationality of its owner or in some way directly attributable to or affecting that nationality.
3. The occupation and usufruct of immovable property belonging to a British subject not in France, or temporarily there, discriminated against in like manner.
4. If such a Treaty could include injury to the movable or to the use of immovable property of a person long permanently domi
ciled in France and domiciled nowhere else, and residing there
First. There is no pretence that any discrimination was made
It need hardly be argued, that such property of an alien so
Wheaton Int. Law, (Dana's Edit.,) secs. 318-320. p. 145 n.
series, vol. 146, pp. 41, 49, 55, 56.)
pp. 1045, 1046).
vol. 110, p. 635).
April 14, 1850, and of Count Nesselrode to Baron
pp. 343, 348).
Jan. 11, March 1, and March 28, 1871, respecting pro-
Wheaton's Int. Law, (Dana's Ed.) sec. 336-340.)
The only question, therefore, that remains is embraced in the next proposition:
Second. The acts complained of were not beyond the rights of war. (Assuming for the purpose of the argument that if they were so, the claimant's case would come within the Treaty.)
At the time the acts complained of 'were done the territory was sub arbitrio belli. It was subject every day to the chances of war; whether it should be ultimately territory of the United States or of the belligerent Confederacy depending upon the final result of
If the independence of the latter should be recognized by the former the Treaty of Peace would determine the national character of territory. If that independence should not be recognized, and the United States should succeed in extinguishing the belligerent Power it would be in fact, as in law, territory of the United States, in all respects, international and municipal alike.
It follows, therefore, that as between those Treaty Powers the acts complained of by the claimant must be considered as done by forces of the United States in belligerent occupation of the country, or belligerent progress through it.
The facts do not present a case of " complete conquest," but, at most, of " belligerent occupation.” There was no original civil government in operation under the authority of the United States, in this territory, at that time.
(For the distinctions and illustration of these, see Dana's Note 169 to Wheaton's International Law, p. 432, and Halleck's Int. Law, p. 775.)
We will first treat the case as one of belligerent occupation. The question is, whether the acts complained of were beyond the rights of belligerent occupation.
But belligerent occupation varies in degree and quality. It may be very firm and long continued, or temporary and precarious.
At the time of the acts complained of the possession of this territory was of the latter description. From the beginning of the war in April, 1861, until December 20, 1864, it had been in the exclusive possession of the Confederate forces against all efforts of the United States forces, by sea and by land, to dislodge them. The taking or the destroying of the claimant's movable property was at the time of the occupation of the territory by the United States' forces.
Any changes in the fortunes of war at or near this territory, or any change in the general strategy of the entire war might require the abandonment of this territory and leave it to re-occupation by the Confederate forces.
The rights of an army of occupation are far greater where its tenure is precarious and temporary, as in this case, than where it is substantially permanent, though short of what is technically called completed conquest. (Bluntsandchli, Lebulay's Ed., p. 543.) General Sherman's army must be considered as in itinere through
the enemy's territory. The question how long it should stop in any place, and what possession, if any, it should leave behind it on abandoning a place, was always uncertain.
This being assumed to be the condition of General Sherman's forces, as most favourable to the claimant, the question is, whether the acts done to the claimant were beyond the right of war growing out of that position.
It will be most convenient to divide the claimant's property into movable and immovable for the purpose of this discussion.
As to his movable property — It was all connected with his land, placed upon it, used upon it, or drawn from it. Much of it was contraband of war. As to such of it as was ancipitis usus the circumstances made it subject to capture or destruction by the invading army, either for its own use or to prevent its being used by the enemy.
The products of the soil of an invaded territory, or articles found upon it, capable of being used for food, clothing, shelter, cooking, or warming of either belligerent, may be used by either, or be destroyed, to prevent their falling into the possession of the other.
Halleck's Int. Law, pp. 458-460, sec. 15, et seq. (authori
ties cited by Halleck.)
Int. Law, p. 460, sec. 17, and documents there cited.
Nos. 15, 16, 17.
In this category is included all the consumable provisions, livestock, fences, and movable wooden structure, much of the household furniture, stores of bedding, clothing, and table furniture, wines and liquors of the claimant, and, indeed, substantially everything of a movable character which was either taken or destroyed. No fine line can be drawn between luxuries and necessities. What are called luxuries may be appropriate for the sick or convalescent, and official persons may be served according to their rank.
The only movables within the claimant's claim which were destroyed or removed and cannot be treated in any respect and for any purpose fit to be used by the forces of either belligerent, seem to have been a few “pictures," "trunks of papers,” and a “library of valuable books.” The value of these was probably not great. The taking and destroying of them were not separate acts. In time of war, when buildings are destroyed, or entered and despoiled, and made uninhabitable, for the legitimate purposes of war, some margin is always allowed for the acts of soldiers; and if a house or store is properly destroyed, and the great body of the contents are properly taken or destroyed, a strict account cannot be taken between great nationalities of a few articles involved with the rest which, by themselves, might strictly have been exempt.
(As to these few articles assumed to be, as by thenfselves, strictly exempt under the laws of capture, some observations will be offered hereafter, under the head of ravaging enemy's territory.)
There is no doubt that it is within the discretion of a belligerent force to draw its support entirely from the invaded territory. The reasons which shall determine whether this shall be done are those of policy and humanity balanced against necessities or high expediencies; and this balance may vary from time to time during the war, and in different places. The invading force is the final judge, and from its decision there is no appeal.
Halleck's Int. Law, 460, sec. 17, and document cited:
There can be no doubt that the conduct of the forces of the United States in this respect will compare well with that of any European army in recent wars.
As to the immovable property of the claimant it seems to have consisted of lands, growing timber, houses, barns, and storehouses. Of the right to the absolute use of these by an invading army, there can be no doubt; and the timber may be cut down either for use or destruction, to prevent its being used by the enemy. The principal houses do not seem to have been destroyed. The smaller housesthe out-buildings—doubtless of wood, might be used for fuel, or be torn down to be carried off to be used elsewhere for any purpose.
The necessities of the belligerent occupation threw upon General Sherman's care the entire race of ignorant and helpless emancipated slaves, who had no property, nor the means of obtaining any, and were objects of suspicion and hatred on the part of their late masters. It was entirely competent for General Sherman to assign the claimant's plantation for the occupation of the emancipated slaves, the providing for them being a part of the military necessities.
The principles above stated cover the use and occupation of the claimant's lands and buildings from December, 1864, to April 9, 1865, a period of but little over three months.
Halleck, p. 447.
438, belligerent occupation. But there is another right of war which may be invoked to cover any part of the claimant's case not covered by the rights hitherto considered. So far we have considered only those rights of the belligerent which grow out of the use he may make of property on enemy's territory for the purposes of his military forces or of military operations or their incidents, and his right to destroy property strictly to prevent its being used in the same manner by the other belligerent.
But the laws of war allow a wider scope to belligerent operations. They allow an army to ravage and destroy either its own territory or that of its enemy, for the purpose of creating desolation, if, that desolation be actually and in good faith a part of its strategy. In such case all property, movable or immovable, on its own terri