require them, as contributions, without paying, or engaging to pay therefor. The last mode was, thereafter, to be adopted, if the general was satisfied that in that way he could get abundant supplies for his forces. There can be no doubt of the correctness of the rules of war, as here announced by the American secretary, but 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. It would undoubtedly have led to innumerable insurrections and massacres, without any corresponding advantages in obtaining supplies for the American forces.1

§ 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 recognised 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. collecting military contributions, trustworthy troops should always be sent with the foragers, to prevent them from engaging in irregular and unauthorised pillage; and the

In

1 Kent, Com. on Am. Law, vol. i. p. 92 ; Mr. Marcy's Letter to Gen. Taylor, Sept. 22, 1846; To Gen. Scott, April 3, 1847; Cong. Doc., 30 Cong., 1 Sess., Senate Ex. Doc., No. 1, p. 563; Scott to Marcy, May 20, 1847; Cong. Doc., 30 Cong., 1 Sess., H. R., Ex. Doc. No. 60, p. 963; Mason to Gen. Scott, Sept. 1, 1847; Marcy to Gen. Scott, Oct. 6, 1847; Cong. Doc., 30 Cong., 1 Sess., H. R., Ex. Doc., No. 56, pp. 195–7; Scott, Gen. Orders, No. 358, Nov. 25, 1847; Ibid. No. 395; Dec. 31, 1847.

General Scott wrote as follows, May 20, 1847: If it be expected at Washington, as is now apprehended, that the army is to support itself by forced contributions levied upon the country, we may ruin and exasperate the inhabitants and starve ourselves; for it is certain they would sooner remove or destroy the products of their farms than allow them to fall into our hands without compensation. Not a ration for man or horse would be brought in except by the bayonet, which would oblige the troops to spread themselves out many leagues to the right and left in search of subsistence, and to stop all military operations.'

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 unauthorised 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.'

§ 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 authorised

1 Manning, Law of Nations, p. 136; Vattel, Droit des Gens, liv. iii. ch. ix. § 165; Moser, Beiträge, etc., b. iii. § 256; Isambert, Annales Pol. et Dip. Int., p. 115.

During the occupation of Versailles by the Germans in 1870, the French mayor made frequent complaints to the Prussian CommandingGeneral that many acts of violence were committed by the German soldiers, such as breaking into private houses and plundering or destroying the furniture, especially the clocks. In the populous part of the town order was tolerably well maintained, but not so in the outskirts. These complaints do not appear to have obtained any favourable results. (Delerot, Versailles.)

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.1

§ 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 authorise 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.2

§ 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

1 Phillimore, On Int. Law, vol. iii. § 135; Bello, Derecho Internacional, pt. ii. cap. iv. § 4; Heffter, Droit International, §§ 135, 136. Kent, Com. on Am. Law, vol. i. p. 101; Grotius, De Jur. Bel. ac Pac., lib. iii. cap. vi.; Horne v. Earl Camden, 2 H. Black. Rep., p. 533.

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2

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.1 In the United States, the statute of April 23, 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 is passed with respect to military captures, but the proceeds belong to the Crown, and are distributed according to the regulations established by the Crown. In the Act of April 10, 1806, establishing rules and articles for the government of the armies of the United States, article 58 requires that 'all public stores taken in the enemy's camp, towns, forts, or magazines, whether of artillery, ammunition, clothing, forage, or provisions, shall be secured for the service of the

16 Anne, c. 13 and c. 37, Ruff. (being cc. 65 and 64 respectively of the Statutes at Large), were repealed by the 27 and 28 Vict. c. 23.

No British seaman can claim an interest in prize unless it falls within the provisions of the proclamation in force for the time being. The Naval Prize Act, 1864 (27 and 28 Vict., c. 25), expressly declares. that nothing therein shall give to the officers and men of any of Her Majesty's ships of war, any right or claim in or to any ship or goods taken as prize, or the proceeds thereof, it being the intent of that Act that such officers and crew shall continue to take only such interest (if any) in the proceeds of prizes as may be from time to time granted to them by the Crown. A royal proclamation usually directs that the net produce of every prize taken by vessels of war (except when acting in conjunction with the army, in which case the distribution is reserved to the Crown) shall be for the entire benefit of the officers and crew making such capture, after the same shall have been adjudged lawful prize. The Crown formerly used to reserve to itself a share in all prizes made by privateers. The Prize Act (55 Geo. III. c. 160, now expired) conferred on the owners of privateers all prizes made by them.

2 The last Act of Congress of the United States on the subject of prizes is that of June 30, 1864, c. 174; it directs that the net proceeds of all property condemned as prize shall, when the prize is of superior or equal force to the vessel or vessels making the capture, be decreed to the captors; and that when of inferior force, one half shall be decreed to the United States and the other half to the captors. Provided that in case of privateers and letters of marque the whole shall be decreed to the captors, unless it shall be otherwise provided in the commissions issued to such vessels.

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.1

§ 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.2

§ 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 de

1 Brymer v. Atkins, 1 H. Blacks. Rep., pp. 189-91; Cross et al. v. Harrison, 16 Howard Rep., p. 164; Cross, Military Laws, p. 116.

* Burlamaqui, Droit de la Nat. et des Gens, tome v. pt. iv, ch. vii. ; Riquelme, Derecho Pub. Int., lib. i. tit. ii. cap. xii.