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service of the Confederate States to destroy all cotton, tobacco, and other property that might be useful to the forces of the United States, whenever, in their judgment, it should be about to fall into their hands, "assumed to confer upon such commanders no greater authority than, consistently with the laws and usages of war, they might have exercised, without the previous sanction of the Confederate legislative authorities, as to any cotton within their military lines likely to fall into the hands of the Federal forces. They had the right, as an act of war, to destroy private property within the lines of the insurrection, belonging to those who were co-operating, directly or indirectly, in the insurrection against the Government of the United States, if such destruction seemed to be required by impending necessity for the purpose of retarding the advance or crippling the military operations of the Federal forces. Whether the redress here sought could, consistently with the provisions of the Federal Constitution, be denied to one who, by the laws of war, is to be deemed an enemy to the lawful government, solely by reason of residence. within the insurrectionary district pending the struggle, but who, in point of fact, was a loyal citizen, adhering to the United States, giving no voluntary aid or comfort to the rebellion, it is not necessary for us now to decide. No such question is here presented, and we forbear any expression of opinion upon it."

Ford v. Surget (1878), 97 U. S. 594, 606, 607. This was an action for damages by the owner of the cotton against the person who, under military orders, destroyed it.

As cotton, within the military lines of the Confederacy, being "the chief reliance of the rebels for means to purchase the munitions of war in Europe" (Young v. United States, 97 U. S. 39; Mrs. Alexander's Cotton, 2 Wall. 404), was not only enemy, but hostile property," and as such liable to seizure or destruction by the Federal Army, without regard to the individual sentiments of the owner, for the purpose of strengthening that army or of crippling the enemy, it would seem to be a "logical deduction" that "the destruction of the same cotton, under the orders of the Confederate military authorities, for the purpose of preventing it from falling into the hands of the Federal Army, was, under the circumstances alleged in the special pleas, an act of war upon the part of the military forces of the rebellion, for which the person executing such orders was relieved from civil responsibility at the suit of the owner voluntarily residing at the time within the lines of the insurrection."

Ford v. Surget (1878), 97 U. S. 594, 605.

Bills of sale given by the owners of cotton given to the purchasing agents of the Confederate Government, found in the rebel archives

in Washington, are evidence to show that the title of the property passed to the Confederate Government and vested in the United States a right of conquest.

Gilmer v. United States, 14 Ct. Cl. 184.

"The loan made by European capital is a direct engagement with the armed insurgents who have assumed to control, supply, and deliver cotton for the reimbursement of the money advanced, with interest. You will give notice to Earl Russell that this transaction necessarily brings to an end all concessions, of whatever form, that have been made by this Government for mitigating or alleviating the rigor of the blockade in regard to the shipment of cotton and tobacco. Nor will any title of any person, whether citizen of the United States or subject of a foreign power, to any cotton or merchandise, which title is derived from or through any pretended insurgent authority or other agency hostile to the United States, be respected by this Government."

Mr. Seward, Sec. of State, to Mr. Adams, min. to England, April 10, 1863,
Dip. Cor. 1863, I. 210, 211.

As to blockade-running, see S. Ex. Doc. 11, 41 Cong. 1 sess. I. 719.

Cotton was made use of by the Confederacy in carrying on the war, both by accumulating it in large quantities for sale, when it could be passed through the lines, and by destroying it when in danger of being seized by the United States troops; in this way aiding a cotton famine in foreign countries, so as to stimulate and secure recognition of the Confederacy as a separate member of the family of nations.

"Cotton was useful as collateral security for loans negotiated abroad by the Confederate States government, or, as in the present case, was sold by it for cash to meet current expenses, or to purchase arms and munitions of war. Its use for such purposes was publicly proclaimed by the Confederacy, and its sale interdicted except under regulations established by, or contract with, the Confederate govern- . ment. Cotton was thus officially classed among war supplies, and, as such, was liable to be destroyed when found by the Federal troops or turned to any use which the exigencies of war might dictate.

The military importance of cotton to the Confederacy is shown by the fact that as early as February, 1861, an act passed by the provisional government of the Confederate States to raise money for the support of the government and to provide for the defense of the Confederate States of America' levied a duty on all cotton in the raw state exported from the Confederate States; and in May of the same year an act was passed prohibiting the export of cotton from the Confederate States, except through the ports of said States.

"In the same year (1864) in which the claimants made their contract, the Confederate war department officially recognized cotton as being one of the chief munitions of war by advising that large amounts of Confederate bonds should be issued for the separate use of that department in purchasing cotton and steamers with which to obtain military supplies from abroad."

Mr. Bayard, Sec. of State, to Mr. de Muruaga, Spanish min., June 28, 1886,
For. Rel. 1887, 1006.

"The cotton within the Confederate States was publicly recited in their obligations and bonds as a security for their payment; its expor tation and sale controlled and regulated by statute, and it thus became officially and publicly classified among the war assets and supplies of that government, and its destruction was authorized, wherever found, whenever military exigencies rendered it advisable to avoid capture by United States forces."

Mr. Bayard, Sec. of State, to Mr. de Muruaga, Spanish min., Dec. 3, 1886,
For. Rel. 1887, 1015.

(6) SLAVES.

§ 1154.

Article VII. of the treaty of peace with Great Britain of September 3, 1783, provided for the withdrawal of the British forces from the United States "without causing any destruction, or carrying away any negroes or other property of the American inhabitants." When the British forces withdrew from New York, they sent away in advance 3,000 negroes, whom they claimed to have emancipated. Claims were put forward on behalf of the owners for compensation and were pressed against the British Government; but they were merged in the Jay treaty, and abandoned.

The treaty of Ghent contained (Art. I.) a similar clause, and again many negroes were taken away by the British forces. Claims were put forward for compensation, and the question of liability was referred to the Emperor of Russia, who rendered, April 22, 1822, an award in favor of the United States. Under the convention of November 13, 1826, Great Britain paid the sum of $1,204,960 in satisfaction of the claims.

See Moore, Int. Arbitrations, I. 350–390.

During the war of 1812 an American privateer captured slaves on an English ship. Held, that, especially as the law prohibited the importation of slaves, they should not be deemed prize; that the court. should not however assume the responsibility of declaring them pris

oners of war; but that the question of their disposition should be left to the government, to be treated as a matter of state policy.

Re Certain Slaves, 5 Hughes, C. C. 55.

The British Government, in the argument submitted by it to the Emperor of Russia, as to whether its forces had, by carrying away slaves, violated the obligations of Article I. of the treaty of Ghent against carrying away American property, broadly asserted the right of emancipating slaves as a legitimate right of war. "This is utterly incomprehensible on the part of a nation whose subjects hold slaves by millions and who in this very treaty [of Ghent recognized them as private property. No such right is acknowledged as a law of war, by writers who admit any limitation. The right of putting to death all prisoners in cold blood and without special cause might as well be pretended to be a law of war. . . . You will present the argument against it, in all its force, and yet without prolixity."

Mr. Adams, Sec. of State, to Mr. Middleton, min. to Russia, No. 6, Nov. 6, 1820, MS. Inst. United States Ministers, IX. 57.

**The emancipation of an enemy's slaves is not among the acts of legiti-
mate war. As relates to the owners, it is a destruction of private
property not warranted by the usages of war.” (Mr. Adams, Sec. of
State, to Mr. Rush, min. to England, July 7, 1820, MS. Inst. United
States Ministers, IX. 148.)

As to the proceedings before the Russian Emperor, and his decision, see
Moore, Int. Arbitrations, I. 350.

40. There exists no law or body of authoritative rules of action between hostile armies, except that branch of the law of nature and nations which is called the law and usages of war on land.

41. All municipal law of the ground on which the armies stand, or of the countries to which they belong, is silent and of no effect between armies in the field.

42. Slavery, complicating and confounding the ideas of property (that is, of a thing), and of personality (that is, of humanity), exists according to municipal or local law only. The law of nature and nations has never acknowledged it. The digest of the Roman law enacts the early dictum of the pagan jurist, that so far as the law of nature is concerned, all men are equal. Fugitives escaping from a country in which they were slaves, villains, or serfs, into another country, have, for centuries past, been held free and acknowledged free by judicial decisions of European countries, even though the municipal law of the country in which the slave had taken refuge acknowledged slavery within its own dominions.

43. Therefore, in a war between the United States and a belligerent which admits of slavery, if a person held in bondage by that belligerent be captured by or come as a fugitive under the protection

of the military forces of the United States, such person is immediately entitled to the rights and privileges of a freeman. To return such person into slavery would amount to enslaving a free person, and neither the United States nor any officer under their authority can enslave any human being. Moreover, a person so made free by the law of war is under the shield of the law of nations, and the former owner or state can have, by the law of postliminy, no belligerent lien or claim of service."

"58. The law of nations knows of no distinction of color, and if an enemy of the United States should enslave and sell any captured persons of their army, it would be a case for the severest retaliation, if not redressed upon complaint.

"The United States can not retaliate by enslavement; therefore death must be the retaliation for this crime against the law of nations."

Instructions for the Government of Armies of the United States in the
Field, General Orders, No. 100, April 24, 1863, War of the Rebellion
Records, series 3, III. 153, 155.

The emancipation proclamation is decisive as to what was deemed the "seat of war" by the President, as it was a military measure against private property.

Blanchard v. United States (1897), 32 Ct. Cl. 444.

As to the proceedings of the Joint High Commission of 1871, refusing claims for emancipated slaves, see Moore, Int. Arbitrations, 1. 686.

Public debts.

(7) DEBTS.

§ 1155.

By the testimony of publicists and the practice of nations, the principle is established that the obligation of a state for the payment of its debts is not affected by war even though such debts be held by citizens or subjects of the enemy. It is true that in certain early writers, who reiterated the stern rules of the law of Rome, sweeping generalizations may be found in which the right is asserted on the part of enemies to seize all property and confiscate all debts. The same writers, upon the same authority, assert the lawfulness of treating all subjects of the belligerent as enemies, and as such of killing them, including women and children. These generalizations, even at the time when they were written, neither expressed nor purported to express the actual practice of nations, and it is superfluous to declare that the law of the present day is not to be found in them; for, with the change in the practice of nations, growing out of the advance in human thought, the law also has changed.

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