"By the law and practice of civilized nations, enemies' subjects taken in arms may be made prisoners of war, but every person found in the train of an army is not to be considered as therefore a belligerent or an enemy. In all wars and in all countries multitudes of persons follow the march of armies for the purposes of traffic or from motives of curiosity or the influence of other causes who neither expect to be nor reasonably can be considered belligerents. Whoever in the Texan expedition to Santa Fé was commissioned or enrolled for the military service of Texas, or, being armed, was in the pay of that Government and engaged in an expedition hostile to Mexico, may be considered as her enemy, and might lawfully, therefore, be detained as a prisoner of war. This is not to be doubted, and by the general progress of modern nations it is true that the fact of having been found in arms with others admitted to be armed for belligerent purposes raises a presumption of hostile character. In many cases, and especially in regard to European wars in modern times, it might be difficult to repel the force of this presumption. It is still, however, but a presumption, because it is nevertheless true that a man may be found in arms with no hostile intentions. He may have assumed arms for other purposes, and may assert a pacific character with which the fact of his being more or less armed would be entirely consistent. In former and less civilized ages cases of this sort existed without number in European society. When the peace of communities was less firmly established by efficient laws, and when, therefore, men often traveled armed for their own defense, or when individuals being armed according to the fashion of the age, yet often journeyed under the protection of military escorts or bodies of soldiers, the possession of arms was no evidence of hostile character, circumstances of the times sufficiently explaining such appearances consistently with pacific intentions; and circumstances of the country may repel the presumption of hostility as well as circumstances of the times or the manners of a particular age. "There would be no meaning in that well-settled principle of the law of nations which exempts men of letters and other classes of non-combatants from the liability of being made prisoners of war if it were an answer to any claim for such exemption that the person making it was united with a military force, or journeying under its protection. As to the assertion that it is against the law of Mexico for foreigners to pass into it across the line of Texas, it is with no little surprise that the Mexican secretary of state is found to assert this reason for making Mr. Kendall a prisoner." Mr. Webster, Sec. of State, to Mr. Thompson, Apr. 5, 1842. MSS. Inst., Mex. 6 Webster's Works, 427, 432. Prisoners taken from a Texan hostile expedition in Mexico in 1840 (Mexico not having at the time acknowledged Texan independence) are to be regarded as prisoners of war, and cannot be treated as subject to the municipal laws of Mexico. "Any proceeding founded on this idea would undoubtedly be attended with the most serious consequences. It is now several years since the independence of Texas as a separate Government has been acknowledged by the United States, and she has since been recognized in that character by several of the most considerable powers of Europe. The war between her and Mexico, which has continued so long and with such success that for a long time there has been no hostile foot in Texas, is a public war, and as such it has been and will be regarded by this Government. It is not now an outbreak of rebellion-a fresh insurrection-the parties to which may be treated as rebels. The contest, supposed, indeed, to have been substantially ended, has at least advanced far beyond that point. It is a public war, and persons captured in the course of it, who are detained at all, are to be detained as prisoners of war, and not otherwise. It is true that the independence of Texas has not been recognized by Mexico. It is equally true that the independence of Mexico has only been recently recognized by Spain. But the United States, having acknowledged both the independence of Mexico before Spain acknowledged it and the independence of Texas, although Mexico has not yet acknowledged it, stands in the same relation toward both these Governments, and is as much bound to protect its citizens in a proper intercourse with Texas against injuries by the Government of Mexico as it would have been to protect such citizens in a like intercourse with Mexico against injuries by Spain." Ibid., 434. (3) WANTON DESTRUCTION PROHIBITED. The burning in 1814 by the British of the President's residence, of the Capitol, and of other buildings in Washington, was an outrage and an indignity unexampled in modern times; and was remarkable from the fact that the injury it produced to Great Britain was immeasurably greater than that it produced to the United States. It is true that buildings associated with the settlement of the Government at Washington were destroyed; but these could be readily, with scarce a consciousness of the loss, be replaced. It is true, also, that valuable records of the Government were burned or carried off, and that this loss is one which cannot be fully made up. But to Great Britain the penalty inflicted was summary and effective. The invaders were almost immediately ignominiously driven back to their ships, with the humiliating stigma attached to a horde of baffled marauders. Whatever party divisions existed in the United States as to the policy of the war ceased when it was found in what way this war was to be conducted by Great Britain. Throughout the continent of Europe there was not a publicist who spoke on the subject who did not condemn the outrage as a disgrace to those who inflicted it and as a gross violation of the laws of war. Napoleon, it was said, had been spoken of as reckless, and yet, though he had occupied almost every capital of Europe, so far from burning public buildings, he sheltered them from injury by putting them under special guards. It is true that when fortified towns had been taken after defenses unnecessarily protracted there had been sometimes hard measure shown to the defenders, but Washington was not a fortified town, nor were the assailants a besieging army wearied by long service in the trenches. They were simply a cohort of incendiaries, so it. was argued, not organized for battle, who, landing on an unprotected coast, darted on a capital which was but a village, burned its public buildings, and then, when they met an armed force after the burning was done, hurried back to their ships. It is no wonder, so it was further said, that the military power of the United States should have derived an immense stimulus from such an outrage, nor that the battle of New Orleans should have been the response to the burning of Washington. "They wantonly destroyed the public edifices having no relation in their structure to operations of war, nor used at the time for military annoyance; some of these edifices being costly monuments of taste and of the arts, and others depositories of the public archives, not only precious to the nation as the memorials of its origin and its early transactions, but interesting to all nations as contributions to the general stock. of historical instruction and political science." President Madison's proclamation of Sept. 1, 1814. The British Government, immediately after being advised of the conflagration, publicly thanked the officers concerned in it; and on being subsequently informed of the death of General Ross, who was killed, the day after the conflagration, in the abortive march to Baltimore, erected a monument in Westminster Abbey to his memory. But before long it was discovered that the burning of Washington was as impolitic as it was in violation of the law of nations. The sentiment of condemnation that then sprung up is exhibited in a speech of Sir James Mackintosh in the House of Commons on April 11, 1815, in an address to the Prince Regent on the treaty of peace. It was argued by him that "the culpable delay of the ministry in opening the negotiations of peace could be explained only on the miserable policy of protracting the war for the sake of striking a blow against America. The disgrace of the naval war, of balanced success between the British navy and the new-born marine of America, was to be redeemed by protracted warfare, and by pouring our victorious armies upon the American continent. That opportunity, fatally for us, arose. If the congress had opened in June, it was impossible that we should have sent out orders for the attack on Washington. We should have been saved from that success, which he considered a thousand times more disgraceful and disastrous than the worst defeat. It was a success which had made our naval power hateful and alarming to all Europe. It was a success which gave the hearts of the American people to every enemy who might rise against England. It was an enterprise which most exasperated a people and least weakened a government of any recorded in the annals of war. For every justifiable purpose of present warfare, it was almost impotent. To every wise object of retrospective policy, it was hostile. It was an attack, not against the strength or resources of a state, but against the national honor and public affections of a people. After twenty-five years of the fiercest warfare, in which every great capital of the European continent had been spared, he had almost said respected, by enemies, it was reserved for England to violate all that decent courtesy towards the seats of national dignity which, in the midst of enmity, manifest the respect of nations for each other, by an expedition deliberately and principally directed against palaces of government, halls of legislation, tribunals of justice, repositories of the muniments of property, and of the records of history; objects, among civilized nations, exempted from the ravages of war, and secured, as far as possible, even from its accidental operation, because they contribute nothing to the means of hostility, but are consecrated to purposes of peace, and minister to the common and perpetual interest of all human society. It seemed to him an aggravation of this atrocious measure that ministers had attempted to justify the destruction of a distinguished capital as a retaliation for some violences of inferior American officers, unauthorized and disavowed by their Government, against he knew not what village in Upper Canada. To make such retaliation just, there must always be clear proof of the outrage; in gen eral, also, sufficient evidence that the adverse Government had refused to make due reparation for it; and, at least, some proportion of the punishment to the offense. Here there was very imperfect evidence of the outrage-no proof of refusal to repair-and demonstration of the excessive and monstrous iniquity of what was falsely called retaliation. The value of a capital is not to be estimated by its houses and warehouses and shops. It consisted chiefly in what could be neither numbered nor weighed. It was not even by the elegance or grandeur of its monuments that it was most dear to a generous people. They looked upon it with affection and pride as the seat of legislation, as the sanctuary of public justice, often as linked with the memory of past times, sometimes still more as connected with their fondest and proudest hopes of greatness to come. To put all these respectable feelings of a great people, sanctified by the illustrious name of Washington, on a level with half a dozen wooden sheds in the temporary seat of a provincial government, was an act of intolerable insolence, and implied as much contempt for the feelings of America as for the common sense of mankind." 30 Hansard Parl. Deb. 526 ff. See Dana's Wheaton, § 351. 2 Ingersoll's Hist. Late War, ser. 1, ch. viii. "Nothing could be so unwise, to say nothing more," so said the Edinburgh Review, in the year of the event, "as our unmeaning marauding expedition to Washington and Baltimore, which exasperated without weakening, and irritated all the passions of the nation, without even a tendency to diminish its resources-nay, which added directly to their force, both by the indignation and unanimity which they excited and by teaching them to feel their own strength, and to despise an enemy that, with all his preparation and animosity could do them so little substantial mischief." 24 Edinb. Rev., 254, Nov., 1814. Sir A. Alison, after showing his Tory proclivities by declaring that the "battle" of Bladensburg has done "service to the cause of historic truth by demonstrating in a decisive manner the extreme feebleness of the means for national protection which democratic institutions afford," goes on to say that "it is to be regretted that the luster of the victory has been much tarnished to the British arms by the unusual and, under the circumstances, unwarrantable extension which they made of the ravages of war to the pacific or ornamental edifices of the capital." 10 Alis. Hist. of Europe, 725. "The following propositions, drawn from the instructions issued for the government of the Army of the United States in the field, commend themselves to approval so much by their moderation and by their sound reason, that they are given here as rules that all enlightened powers recognize, accept, and act upon: Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of war, and which are lawful according to the modern laws and usages of war. Military necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contests of the war. It allows of all destruction of property and obstruction of the ways and channels of traffic, travel, or communication, and of all withholding of sustenance or means of life from the enemy, of the appropriation of whatever an enemy's country affords necessary for the safety and subsistence of the army, and of such deception as does not involve the breaking of good faith, either pointedly pledged regarding agreements entered into during the war, or supposed by the modern law of war to exist. Military necessity does not admit of cruelty or torture to extract confession, nor of poison, nor of wanton devastation of a district. It admits of deception, but disdains acts of perfidy; and, in general, it does not include any act of hostility that makes the return to peace unnecessarily difficult." Abdy's Kent (1878), 223. See 2 Halleck's, Int. Law (Baker's ed.), 37. "Commanders, whenever admissible, inform the enemy of their intention to bombard a place, so that the non-combatants, and especially the women and children, may be removed before the bombardment commences. But it is no infraction of the common law of war to omit thus to inform the enemy. Surprise may be a necessity." Instructions for the government of armies of the United States in the field. 2 "31. A victorious army appropriates all public money, seizes all public movable property until further direction by its Government, and sequesters for its own benefit or that of its Government all the revenues of real property belonging to the hostile Government or nation. The title to such real property remains in abeyance during military occupation, and until the conquest is made complete. * "34. As a general rule, the property belonging to churches, to hospitals, or other establishments of an exclusively charitable character, to establishments of education, or foundations for the promotion of knowledge, whether public schools, universities, academies of learning, or observatories, museums of the fine arts, or of a scientific character-such property is not to be considered public property in the sense of paragraph 31; but it may be taxed or used when the public service may require it. "35. Classical works of art, libraries, scientific collections, or precious instruments, such as astronomical telescopes, as well as hospitals, must be secured against all avoidable injury, even when they are contained in fortified places whilst besieged or bombarded. "36. If such works of art, libraries, collections, or instruments belonging to a hostile nation or Government, can be removed without injury, the ruler of the conquering state or nation may order them to be seized and removed for the benefit of the said nation. The ultimate ownership is to be settled by the ensuing treaty of peace. S. Mis. 162-VOL. III- 22 337 |