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and better calculated to secure a contribution to be used in carrying on the war and in relief of the United States Treasury. It was expressly pointed out that the orders in this regard derived no authority from the Treasury Department, which had no control over the subject, but from the President, who, as Commander in Chief, had determined to cause them to be carried into effect by the officers of the Army and Navy.

A communication, similar to that addressed to the Secretary of the Navy, was, March 31, 1847, addressed to Mr. Marcy, Secretary of War, who, April 3, 1847, addressed to General Scott the following instructions:

"As the Mexicans persist in protracting the war, it is expected that, in the further prosecution of it, you will exercise all the acknowledged rights of a belligerent, for the purpose of shifting the burden of it from ourselves upon them. The views of the Government, in this respect, were presented to General Taylor in a despatch from this Department of the 22d September, 1846, a copy of which, so far as relates to this subject, is herewith sent to you, with the direction that these views may be carried out under a discretion similar to that given to him. The enemy should be made to realize that there are other inducements to make them desire peace besides the loss of battles, and the burden of their own military establishments. The right of an army, operating in an enemy's country, to seize supplies, to forage, and to occupy such buildings, private as well as public, as may be required for quarters, hospitals, storehouses, and other military purposes, without compensation therefor, can not be questioned; and it is expected that you will not forego the exercise of this right to any extent compatible with the interest of the service in which you are engaged."

Referring to these instructions, General Scott, in a letter of April 28, 1847, dated at Jalapa, said that he had endeavored to reach that place, where he might obtain as many essential supplies as possible, such as clothing, ammunition, medicines, breadstuffs, beef, mutton, sugar, coffee, rice, beans, and forage. For these they must pay or they would be withheld, concealed, or destroyed by the owners, whose national antipathy to the Americans remained unabated. Again, on May 20, 1847, he wrote that, if it was expected at Washington that the army was to support itself by forced contributions levied upon the country, it might ruin and exasperate the inhabitants and starve itself. Not a ration for a man or horse would be brought in except by the bayonet, and this 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.

On Sept. 1, 1847, Mr. John Y. Mason, Acting Secretary of War, and on Oct. 6, 1847, Mr. Marcy wrote to General Scott urging a

change of his policy in order that the burden of sustaining the American forces might, so far as possible, be shifted to the Mexican people. In both communications anxiety was betrayed by reason of the futility of the efforts that had been made to bring the war to a close, and an apprehension that the Mexican authorities were encouraged to continue the conflict by that portion of the population which had not been made to feel its hardships.

By General Order, No. 358, Nov. 25, 1847, General Scott gave notice that a change of system would be begun by stopping, as soon as the contracts would permit, all rents for houses or quarters occupied by officers or troops of the American Army in any city or village in Mexico. He directed that in future the necessary quarters, both for officers and troops, where the public buildings were insufficient, should first be demanded of the civil authorities of the several places occupied by the troops, so as to equalize the inconvenience imposed upon the inhabitants.

Dec. 15, 1847, General Scott in Mexico ordered that, on the occupation of the principal point or points in any State, the payment of all the usual taxes due to the Mexican Government should be demanded of the proper civil authorities for the support of the army of occupation, except the rent derived from lotteries, the continuance of which he prohibited.

General Orders, No. 376, Dec. 15, 1847, H. Ex. Doc. 56, 30 Cong. 1 sess. 240.
See, also, S. Ex. Doc. 1, 30 Cong. 1 sess. 558-563.

By a supplemental order of Dec. 31, 1847, he fixed the amounts which the
several States already occupied, and others as they were or should
be assessed, by the year. This assessment was the quadruple of the
direct taxes paid by the several States to the Federal Government in
1843 or 1844, but all transit taxes were abolished, together with the
national lotteries, and it was stated that the tobacco monopoly would
soon be done away with; and the receipts of the post-offices, together
with the playing card and stamped paper monopolies, were reliu-
quished to the States. (General Orders, No. 395, Dec. 31, 1847, H. Ex.
Doc. 56, 30 Cong. 1 sess. 253.)

In a report to the President, January 31, 1848, Marcy stated that no particular instructions had been given to General Scott for the issuance of General Orders, No. 376, but that it was supposed he had taken that step in consequence of the general instructions given him on the subject of levying contributions and of making the resources of the enemy's country available as far as might be, within the rules of civilized warfare, for the maintenance of the American troops in Mexico and defraying the expenses incident to the state of hostilities. (S. Ex. Doc. 19, 30 Cong. 1 sess.)

"No principle is better established than that a nation at war has the right of shifting the burden off itself and imposing it on the enemy by exacting military contributions. The mode of making such exactions must be left to the discretion of the conqueror, but it should.

be exercised in a manner conformable to the rules of civilized warfare. "The right to levy these contributions is essential to the successful prosecution of war in an enemy's country, and the practice of nations has been in accordance with this principle. It is as clearly necessary as the right to fight battles, and its exercise is often essential to the subsistence of the army."

President Polk, special message, Feb. 10, 1848, Richardson's Messages,
IV. 571.

In October, 1864, during the advance of the Confederate army. under General Sterling Price towards St. Louis, thirteen bridges were destroyed on the lines of the Pacific Railroad Company, a corporation under the laws of Missouri. Some were destroyed by the forces of the United States and others by the forces of the Confederacy. All were rebuilt by the company except four, two of which were destroyed by order of the commander of the Federal forces and two presumably by the Confederate forces. These four were rebuilt by the United States military authorities, as the quickest and surest way of restoring railway communication as a military measure. Subsequently the Government of the United States sought to deduct the cost of the restoration of the four bridges from the amounts due to the company from the United States for the transportation of passengers and freight. Held, that such a charge against the company could not properly be made, the court saying:

"While the Government can not be charged for injuries to, or destruction of, private property caused by military operations of armies in the field, or measures taken for their safety and efficiency, the converse of the doctrine is equally true, that private parties can not be charged for works constructed on their lands by the Government to further the operations of its armies. Military necessity will justify the destruction of property, but will not compel private parties to erect on their own lands works needed by the Government, or to pay for such works when erected by the Government. The cost of building and repairing roads and bridges to facilitate the movements of troops, or the transportation of supplies and munitions of war, must, therefore, be borne by the Government."

United States v. Pacific Railroad (1887), 120 U. S. 227, 239.

"38. Private property, unless forfeited by crimes or by offenses of the owner, can be seized only by way of military necessity, for the support or other benefit of the army or of the United States.

"If the owner has not fled, the commanding officer will cause receipts to be given, which may serve the spoliated owner to obtain indemnity."

Instructions for the Government of Armies of the United States in the
Field, General Orders No. 100, April 24, 1863, War of the Rebellion,
Official Records, series 3, III. 152.

"ARTICLE LII. Neither requisition in kind nor services can be demanded from communes or inhabitants except for the necessities of the army of occupation. They must be in proportion to the resources of the country, and of such a nature as not to involve the population in the obligation of taking part in military operations against their country.

"These requisitions and services shall only be demanded on the authority of the Commander in the locality occupied.

"The contributions in kind shall, as far as possible, be paid for in ready money; if not, their receipt shall be acknowledged.

"ARTICLE LIII. An army of occupation can only take possession of the cash, funds, and property liable to requisition belonging strictly to the State, depôts of arms, means of transport, stores and supplies, and, generally, all movable property of the State which may be used for military operations.

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Railway plant, land telegraphs, telephones, steamers, and other ships, apart from cases governed by maritime law, as well as depôts of arms and, generally, all kinds of war material, even though belonging to Companies or to private persons, are likewise material which may serve for military operations, but they must be restored at the conclusion of peace, and indemnities paid for them.

"ARTICLE LIV. The plant of railways coming from neutral States, whether the property of those States, or of Companies, or of private persons, shall be sent back to them as soon as possible."

Convention respecting the Laws and Customs of War on Land, The
Hague, July 29, 1899, 32 Stat. II. 1823.

Private property may be taken by a military commander for public use, in cases of necessity, or to prevent it from falling into the hands of the enemy, but the necessity must be urgent, such as will admit of no delay, or the danger must be immediate and impending. But in such cases the government is bound to make full compensation to the

owner.

Mitchell v. Harmony, 13 How. 115.

Where private property is impressed into public use during an emergency, such as a war, a contract is implied on the part of the government to make compensation to the owner.

United States v. Russell, 13 Wall. 623.

(2) CONFISCATION.

§ 1150.

When the British evacuated Philadelphia, Congress decided that public property left by the British should belong to the United

States, and that private property belonging to British subjects should belong to the State of Pennsylvania.

Wilcox . Henry, 1 Dallas, 69, supreme court of Pennsylvania, 1782. British subjects adhering to the British Government during the war of American independence "became personally answerable for the conduct of that Government, of which they remained a part; and their property, wherever found (on land or water) became liable to confiscation. On this ground Congress, on the 24th of July, 1776, confiscated any British property taken on the seas. See 2 Ruth. Inst. lib. 2, c. 9, s. 13, p. 531, 559. Vatt. lib. 2, c. 7, s. 81, & c. 18, s. 344; lib. 3, c. 5, s. 74, & c. 9, s. 161 & 193."

Ware . Hylton (1796), 3 Dallas, 199, 225, opinion of Chace, J.

By the law of nations the debts, credits, and corporal property of an enemy, found in the country on the breaking out of war, are confiscable.

Cargo of ship Emulous, 1 Gallison, 562.

British property found in the United States, on land, at the commencement of hostilities with Great Britain, can not be condemned as enemy's property without a legislative act authorizing its confiscation. The act of the legislature declaring war is not such an act. Timber floating into a salt-water creek which is not navigable, but where the tide ebbs and flows, leaving the ends of the timber resting on the mud at low water, and secured and prevented from floating away at high tide by booms and stakes, is to be considered as landed.

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Brown v. United States (1814), 8 Cranch, 110.

Dana, in a note to Wheaton, says that, in the case just cited, it was decided primarily and unequivocally that, by the law of nations, the right exists to seize and confiscate any property of an enemy found in the country on the happening of war." This statement, though it is of the same import as the commentary made by many other writers, is not justified by the facts. If it should be said that the court expressed an opinion, or uttered a dictum, to the effect. alleged, the statement would be quite correct; but the only point decided by the court was that the property before it was not subject to confiscation.

See Dana's Wheaton, § 304, note 156.

See, also, Wharton's Com. on Am. Law, § 216.

As to the actual practice of the United States, as illustrated in the civil war, see the subject of the abandoned and captured property act, infra, § 1152.

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