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restrictive of the unbridled fury of war. In this direction no nation has advanced further than the United States. We have had occasion heretofore to ask attention to the language of the Supreme Court, speaking by Mr. Chief Justice Marshall, in the case of Brown vs. The United States (VIII Cranch), and to the more recent opinion of the same Court, delivered by the late Chief Justice Chase, in the case of Klein vs. The United States (XIII Wallace,
[See also Lawrence's Wheaton, part IV, ch. 2, pp. 586 to 626, especially the discussion respecting the acts of the British in the war of 1812 (609 to 622).]
At page 635 of the same chapter, in Mr. Lawrence's note, is given an account of an interview which took place in March, 254, between Lord Clarendon and Mr. Buchanan, then United States Minister at London. Mr. Buchanan, in answer to Lord Clarendon's suggestion as to the abolition of privateering, stated “that it did not seem to him possible, under existing circumstances, for the United States to agree to the suppression of privateering unless the naval Powers of the world would go one step further, and consent that war against private property should be abolished altogether upon the ocean, as it already had been on land.” (See also p. 640, note.)
Halleck, whose treatise on international law was published first about the commencement of the American Civil War, says (p. 456, sec. 12):
“ Private property on land is now, as a general rule of war exempt from seizure or confiscation. * Private rights and private property, both movable and immovable, are in general unaffected by the operations of war, whether such operations be limited to mere military occupation, or extended to complete conquest. Some modern text writers, Hautefeuille for example, contend for the ancient rule that private property on land is subject to seizure and confiscation. They are undoubtedly correct with respect to the general abstract right, as deduced from the law of nature and ancient practice; but while the general right continues, modern usage, and the opinions of modern text writers of the highest authority, have limited this right by establishing the rule of general exemption." The author then proceeds to state that there are exceptions in this rule, and alludes to the general theory of war and the ancient practice." But the modern usage,” he continues, "is not to touch private property on land without making compensation, except in certain specified cases. Thus exceptions may be stated under three general heads : 1st, Confiscation or seized by way of penalty for military offence; 2nd, Forced contributious for the support of an invading army, or as an indemnity for the expenses incurred in maintaining order, and affording protection to the conquered inhabitants; and 3rd, Property taken on field of battle, or in storming a fortress or town."
Since the publication of the treatise of General Halleck, the attention of the civilized world has been deservedly attracted by
that of Mr. Calvo, first published in Paris, in French and Spanish. As we have not the advantage of having access to any English edition (if there be one), we refer to that in Spanish, translating for ourselves those passages which seem appropriate to the occasion. This publicist (sec. 434), after speaking of the unlawful rigour of the ancient law of nations which, in the seventeenth century, laid down the principle that the obstinate defenders of a weak town, by their own act, lost all right to be treated in accordance with the laws of war, which principle he says is "strongly condemned by the laws and civilized customs of our day," proceeds: "The same can be said of sacking, so common in ancient war, and of which modern war offers some examples, though fortunately few. Vattel admits it, as a practice which he does not censure, followed in his epoch, but Pinheirs Ferreira combats it, considering it a deplorable disgrace that it is necessary to have recourse to such means in order to maintain military discipline. This opinion has become so general that, if it has not grown into a principle, it has given an impulse to public opinion to declare itself strongly in its favour. Moved by the same impulse, the historians of the wars of Napoleon I strongly condemn the horrors committed in the taking of some Spanish cities, as Ciudad Rodrigo, Badajoz, San Sebastian, and others. The conduct of the Russians in Poland, and that of some of the generals in the civil war in the United States, deserve the same reprobation.” (See also sec. 436, as to the bombardment of Valparaiso by the Spanish.)
Again (sec. 443), speaking of public edifices and monuments, he says: "The truth is, unhappily, that these noble sentiments have not always been acted upon, as the reprehensible acts of this kind which characterised the last war of France and England against China, the civil war in the United States, and that of Spain against Chili demonstrate, all of which, we can safely say, have been strongly and universally condemned.” He proceeds (sec. 444): The exemption from capture or confiscation, which the modern codes have made in favour of private property, is a noble evidence of progress.
Riquelme attempting to show its foundation, makes the following reflections: “In order to be able to distinguish easily the rights which war gives with respect to enemy property, one ought to begin with the principle that the belligerent who invades the enemy's territory sustains temporarily the character of the sovereign in the places which he occupies, so that all that is lawful for the sovereign in extraordinary circumstances is lawful as well for the invader, without any modification other than that afforded by the principle of the law of nations, which forbids any evil not strictly necessary for the object of military operations to be done to an enemy." There appears to us a certain confusion of ideas in these considerations, since, far from setting a limit to the rule of which we treat, concede to the belligerent rights much greater than those he really possesses.
The exemption by which private property is distinguished, is due, without doubt, to the fact that in wars on land the end
proposed can very well be accomplished without calling in an aid, as extraordinary as it is unlawful, viz., the capture and destruction of the property of the individual; this is not the case in maritime warfare.
Hautefeuille sustains the right to capture and confiscate private property in war, both on sea and lands, but he only supports his opinions by the doctrines of ancient laws, which the different practice and greater enlightenment of our age have weakened.” (See also sec. 450).
The third proposition of the learned Counsel is, that "the measure of such destruction or appropriation of property, and of such pillaging and ravaging, must always be left solely to the discretion of the invading belligerent himself. He is of necessity the sole judge as to the requirements of his military position, and of the necessity or propriety of the destruction or appropriation of property."
Here again Vattel is cited (see 173, pp. 368-9), and the Commissioners are respectfully requested to read the citation and context. It must be remembered that when Vattel wrote, about the middle of the last century, the ideas of moderation and justice, which we find expressed in his work, were comparatively new, and though the same spirit had been manifested in the writings of Grotius long before Bynkershoek and Wolf had intervened with their barbarous doctrines which are now universally condomned. Vattel's work must be considered as the expression of his own advanced ideas at a time when the harsh principles of the elder publicists were the only distinct exposition of the laws of war. It is in treating of these very principles that Vattel speaks, in the passage cited, of the difficulties which present themselves in strictly applying the humane doctrines that he teaches in the very same chapter.
The measure of destruction, &c., “must be left solely to the discretion of the invading belligerent” says the learned Counsel; but this is true of acts of destruction and pillage only so far as it is true of any other acts of sovereign States. "He is of pecessity the sole judge of the requirements of his military possition, and of necessity and propriety of the destruction and appropriation of property” at the time the acts are determined upon, and to deny this would be to deny the independence of a nation. But can it be maintained that, because a State deems necessary some measure contrary to the law of nations, which deserves the reprobation of all civilized peoples, and is a disgrace to the age, that this State is to be the sole judge, and the simple defence, “I thought it necessary," relieves it from all responsibility? The common opinion of nations and the writings of publicists would pass judgment on this necessity, and their condemnation of the act would be recorded iu history and in the law of nations. The opinion of other nations and the principles of international law are, without doubt, ordidarily the only extrinsic restraint of the action of a State. The discussion of all international questions shows this, but the method of solution of such questions adopted, in modern times, shows too that nations do now acknowledge a “common judge. "All the differences
which had arisen between Great Britain and the United States before the Treaty of Washington were referred to the arbitration of common judges, and as one of these, it is the duty of this tribunal to consider, first, whether the United States is responsible for these acts, or in other words whether they are the acts of the Government of the United States against the property of British subjects; secondly, whether such acts were justifiable or not according to the law of nations; and, thirdly, whether or not the United States is bound to indemnify the parties injured.
The Counsel for the United States proceeds to adduce tlie sacking of Badajoz and Ciudad Rodrigo as affording “extreme examples of the extent to which belligerent right has been carried.” We may add to these the laying waste of the villages along the Chesapeake by the British, and the burning of the Capitol and Houses of Government at Washington, in the war of 1812, and the bombardment of Valparaiso by the Spaniards.
The sacking of Badajoz and Ciudad Rodrigo has been condemned by every writer, publicist and historian, who has treated of it. The acts of the British in the war of 1812, were bitterly condemned by the people and Government of the United States, while Sir James McIntosh, in the British House of Commons, characterized them as a disgrace to his nation. The bombardment of Valparaiso we find stigmatized by Calvo as contrary to the laws of war, and a stain on the honour of Spain. (Sec. 436.)
Upon this review of the subject, we are justified in asserting that the pillage and destruction of Columbia can find no justification in the writings of any publicist or historian of modern times. It is difficult to see how it can find any warrant or palliation in the examples cited from the Peninsular war,
These instances themselves are now regarded with universal reprobation, yet Badajoz and Ciudad Rodrigo were fortified places : the former twice unsuccessfully besieged by the Duke of Wellington, and finally carried by storm after a third siege; the latter also carried by storm after a seige of eleven days. Widely different was the condition of Columbia. The city had been surrendered to the advance guard on the outskirts by the civil authorities, and the large and well-disciplined army of the United States marched triumphantly into it with banners flying, and without an opposing shot. In a military point of view, the place itself was entirely unimportant to the success of the United States' arms, and even if it had been otherwise, there was not the slightest difficulty in holding it firmly and securely. Already the last resources of the Confederacy were taxed severely to hold their capital at Richmond. It could not have entered into the mind of the merest dreamer that any attempt would or could be made to retake Columbia. Yet the learned counsel says: “ If Columbia had been burned by the express command of General Sherman, such destruction, although a severe and rigorous act, would have been fully justified by the laws of war.” If the mere statement of the case be not sufficient to satisfy this Commission that such destruction could only have originated in the spirit of malice and revenge, and ought to be condemned
by the judgment of all civilized nations, volunes of cominentary could add nothing to the argument which the facts themselves present.
That the destruction of Columbia was designed, and not accidental, and that the United States are responsible for that destruction, has been clearly shown upon the elaborate review of the whole evidence in the briefs heretofore filed for the claimants in these cases, among which may be especially mentioned those in the cases of Sarah Watts, No. 249, David Jacobs, No. 236, and Wood and Heyworth, No. 103. In the confidence that these briefs will be carefully considered by the Commission, it is not deemed necessary to repeat any review of this evidence here.
It is not necessary or material to the support of these claims that it should be shown that General Sherman gave formal written orders for the destruction of Columbia. If such destruction and pillage were the result of the unbridled fury of the troops themselves, the case would not be thereby altered.' High officers testify to the perfect discipline in which the army of the United States then was, and say that when the disorder was at its highest in Columbia, the long roll” would have brought every man to his place in the ranks. But even if this were not so the responsibility of the United States would remain. Halleck (sec. 22, chap. 18), says, “It is true that soldiers sometimes commit excesses which their officers cannot prevent; but in general a commanding officer is responsible for the acts of those under his orders. Unless he can control them, he is unfit to command them.”
General Sherman, who has been examined as a witness, makes no complaint that he was unable to control his soldiers, but on the contrary, boasts that he held his army perfectly “in hand.” But both he and General Halleck, then his superior officer, understood, as appears plainly from their correspondence in evidence, how a city might be reduced to ashes without express orders to that effect.
All the principles which we have endeavoured to maintain throughout these remarks apply as well to the acts of destruction and pillage at Camden, and other places in South Carolina, as to those committed in Columbia.
In all the cases the defence maintains that, whatever may be the doctrine of international law as to the destruction of private property generally, yet the article of cotton produced upon the enemy's soil, and found within his boundaries, stands upon a distinct footing, and was lawfully destroyed and appropriated. This is not apparently upon any idea that this product could be considered contraband of war, but simply because it constituted the chief wealth and principal reliance of the enemy of the United States in maintaining the war. We do not propose to re-open the discussion of this subject, being content to refer generally to briefs heretofore filed on this point. But it may be permitted to add a single illustration.
Let us suppose that in the progress of the power of Russia