Discussions between the American

§ 348. The last war between the United States and Great Britain was marked by a series of destructive measand British ures on the part of the latter, directed against both persons and property hitherto deemed exempt from hostilities this subject, by the general usage of civilized nations. These measures were attempted to be justified, as acts of retaliation

govern

ments upon

during the

late war.

transferred from the private citizen to the occupying power, except as being contraband of war: a test that could be applied only to the males capable of military service or of labor in aid of war. But, as persons capable of being used by the will of the master or his State, irrespective of their own will, in war, as soldiers or as laborers, the occupying sovereign has the right to transfer their faculty of service from the enemy to himself. They are so directly liable to State-control in war, that their condition follows the fortunes of the war. And, as the slaves are grouped, at least temporarily, in families, with rights at least moral, in the service and affection and duty of one another, the transfer includes the whole slave population of women, children, and persons not capable of labor, as appurtenant to the laborers. If the occupying State holds slaves, the slaves merely change masters; if it does not, the slaves are emancipated. Their emancipation is as complete as their mere transfer would have been. It is a plenary act of ownership exercised upon them by the capturing power, in actual possession. The emancipating of slaves by the occupying power may also be treated as an exercise of temporary power of conquest over the political system of the ejected enemy, which, as far as it operates on slaves to give them freedom, is complete, and must be so regarded by all neutrals, and by the conquered State itself, after peace, on the principle of uti possidetis. It is true, that, after the Revolutionary war, the United States Government claimed compensation for slaves who were induced by proclamation to escape to the British lines, and were there protected, and carried off by the British forces; and, in the negotiations after the war of 1812, Mr. J. Q. Adams took the ground, that emancipation of slaves was not a legitimate mode of warfare. But, during this period, the slaveholding power was able to control the action of the government, in all matters bearing upon its interests. The arbitration of the Emperor of Russia related only to the construction of the article in the treaty of Ghent, and gave indemnity for slaves carried away from captured places stipulated to be restored; and he declined to award indemnification for slaves which the British forces carried from other places not stipulated to be restored. (Mr. J. Q. Adams to Mr. Rush, July 7, 1820; same to Mr. Middleton, Oct. 18, 1820; same to Mr. Monroe, Aug. 22, 1815: Am. State Papers, iv. 117. The award of the Emperor of Russia of April 22, 1822. Martens, Nouveau Recueil, vi. 66. U. S. Laws, viii. 282.) During the civil war of 1861-5, the commanders of the national forces refused to restore slaves that fled to their lines, or that came under their control, to masters who were domiciled in places under control of the rebel enemies. This was a war measure, and put on the ground that the slaves were in the nature of contraband of war. By the Act of Congress of July 17, 1862 (U. S. Laws, xii. 590), slaves of any persons engaged in the rebellion, coming within the lines of the armies of the Union; and all slaves captured from such persons, or deserted by them, and coming under the control of the armies of the Union; and slaves of such persons, found in any place occupied by the rebel forces, and afterwards by the armies of the Union, were declared to be captives of war, and to be for ever free. By the same act, the President was authorized to employ persons of African descent in the public military service. President Lincoln, by a proclamation of 1st January, 1863, designated certain States and parts of States as

for similar excesses on the part of the American forces on the frontiers of Canada, in a letter addressed to Mr. Secretary Monroe, by Admiral Cochrane, commanding the British naval forces on the North American station, dated on board his flag-ship in the Patuxent River, on the 18th of August, 1814. In this communication it was stated that the British admiral, having been called upon by

still engaged in rebellion, and then declared as follows: "By virtue of the power in me vested as commander-in-chief of the army and navy of the United States, in time of actual rebellion against the authority and government of the United States, and as a fit and necessary war measure, I do order and declare, that all persons held as slaves within said designated States and parts of States are, and from henceforth shall be, free ; and that the executive government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons.”

It will be observed that this order of emancipation was not a legislative act of the law-making power of the Union, but an act of the President, in his character as commander-in-chief, and a military measure. Although the language of the proclamation is general, and in the present tense, as if giving a legal status of freedom, from its date, to all slaves in the designated States, still, from the nature of the case, it would seem, that, being a military measure, by a commander-in-chief who had no general legislative authority over regions of country not in his possession, it could not operate further than as a military order. From that time, all slaves coming under the control of the forces of the United States, in the manner recognized by the law of belligerent occupation, were to be free. If this is the correct view of the virtue of the proclamation, it became thereafter a question of fact, as to each slave and each region of country, whether the forces of the Union had such possession as to give effect to the proclamation. In time of peace, the relation of master and slave was matter of local and not of national legislation: and it could not be maintained that the civil war gave Congress a general legislative power on that subject over regions of country covered by those States, and not in possession of the Union forces; or that the President, as commander-in-chief, had any legislative functions which could operate, by a mere declaration of his will, in places out of his belligerent control. Whether this is the proper view of the proclamation, or it had any further virtue and effect, is now of little more than speculative importance, as all the designated regions did, at last, come under the military occupation of the armies of the Union, in such sense as to effect the emancipation of all slaves, in the strictest view of the law of belligerent occupation ; and the system of slavery has since been abolished, throughout the Union, by an amendment to the Constitution. The ethical objection to a general military proclamation of freedom to slaves of the enemy, and an employment of them as soldiers in war against their late masters, was not sustained by the events in the United States. The proclamation was followed by no insurrections or acts of violence by the slaves; and those employed as soldiers in the armies of the Union, obeyed the articles of war, and gave no cause of alarm or complaint.

(9) Jus Postliminii. In modern international law, the analogies of the Roman postliminy are extended, under the same name, and with some changes. The term is used in relation to all kinds of property and of status. Captivity has now no effect on the political status of prisoners, after a return home. By the Roman law, the master of a slave had the benefit of postliminy in all cases of return during the war, by whatever means effected. It is the opinion of most jurists, that modern international law will not now recognize that right; but that a slave, freed by a conqueror, is fixed in free

the governor-general of the Canadas to aid him in carrying into effect measures of retaliation against the inhabitants of the United States, for the wanton destruction committed by their army in Upper Canada, it had become the duty of the admiral to issue to the naval forces under his command an order to destroy and lay waste such towns and districts on the coast as might be found assailable.

The answer of

States Gov

§ 349. In the answer of the American government to the United this communication, dated at Washington on the 6th of ernment. September, 1814, it was stated that it had seen, with the greatest surprise, that this system of devastation which had been practised by the British forces, so manifestly contrary to the usages of civilized warfare, was placed on the ground of retaliation. No sooner were the United States. compelled to resort to war against Great Britain, than they resolved to wage it in a manner most consonant to the principles of humanity, and to those friendly relations which it was desirable to preserve between the two nations, after the restoration of peace. They perceived, however, with the deepest regret, that a spirit alike just and humane, was neither cherished nor acted on by the British government. Without dwelling on the deplorable cruelties committed by the Indian savages, in the British ranks and in British pay, at the river Raisin, which had never been disavowed or atoned for, the American government referred, as more particularly connected with the subject of the above communication, to the wanton desolation that was committed, in 1813, at Havre-deGrace and Georgetown, in the Chesapeake Bay. These villages were burnt and ravaged by the British naval forces, to the ruin of dom by the peace and no neutral State will now regard the right of the former master as continuing, for any purpose, after such emancipation. In case of recapture during war, it is matter of State policy whether the slave is remitted to his former owner. During the civil war, the United States claimed that captured slaves, freed and enrolled in the army of the Union, and then recaptured, must be treated as prisoners of war; while the rebels contended that they reverted to their masters by postliminy. Postliminy is applied to all lands; for the belligerent occupant does not acquire absolute title to them, but only the usufruct. As to all movables, the tendency of modern times is to make the title of the captor absolute, and to exclude postliminy. In maritime captures, it is excluded when the capture is complete, unless by statute or treaty. In capture of movables on land, if the capture is complete, and carries with it by international law a change of ownership, the rights of the original owner are gone; and recapture by the forces of his State leaves it matter of State policy whether he shall regain his title, and on what terms. If the treaty of peace is silent on the subject, it is presumed to leave the title in the possessor.]—D.

their unarmed inhabitants, who saw with astonishment that they derived no protection to their property from the laws of war. During the same season, scenes of invasion and pillage, carried on under the same authority, were witnessed all along the shores of the Chesapeake, to an extent inflicting the most serious private distress, and under circumstances that justified the suspicion, that revenge and cupidity, rather than the manly motives that should dictate the hostility of a high-minded foe, led to their perpetration. The late destruction of the houses of the government at Washington, was another act which came necessarily into view. In the wars of modern Europe, no example of the kind, even among nations the most hostile to each other, could be traced. In the course of ten years past, the capitals of the principal powers of the European continent had been conquered, and occupied alternately by the victorious armies of each other, and no instance of such wanton and unjustifiable destruction had been seen. They must go back to distant and barbarous ages, to find a parallel for the acts of which the American government complained.

Although these acts of desolation invited, if they did not impose on that government the necessity of retaliation, yet in no instance had it been authorized.

The burning of the village of Newark, in Upper Canada, posterior to the early outrages above enumerated, was not executed on the principle of retaliation. The village of Newark adjoined Fort George, and its destruction was justified, by the officers who ordered it, on the ground that it became necessary in the military operations there. The act, however, was disavowed by the American government. The burning which took place at Long Point was unauthorized by the government, and the conduct of the officer had been subjected to the investigation of a military tribunal. For the burning at St. David's, committed by stragglers, the officer who commanded in that quarter was dismissed, without a trial, for not preventing it.

The American government stated, that it as little comported with any orders which had been issued to its military and naval commanders, as it did with the known humanity of the American nation, to pursue the system which had been adopted by the British. That government owed to itself, and to the principles it had ever held sacred, to disavow, as justly chargeable to it, any such wanton, cruel, and unjustifiable warfare. Whatever unauthorized

irregularities might have been committed by any of its troops, it would have been ready, acting on the principles of sacred and eternal obligation, to disavow, and, as far as might be practicable, to repair them. But in the plan of desolating warfare which Admiral Cochrane's letter so explicitly made known, and which was attempted to be excused on a plea so utterly groundless, the American government perceived a spirit of deep-rooted hostility, which, without the evidence of such fact, it could not have believed to exist, or that it would have been carried to such an extremity for the reparation of injuries, of whatsoever nature they might be, not sanctioned by the law of nations, which the naval or military forces of either power might have committed against the other. That the government would always be ready to enter into reciprocal arrangements; but should the British government adhere to a system of desolation, so contrary to the views and practices of the United States, so revolting to humanity, and so repugnant to the sentiments and usages of the civilized world, whilst it would be seen with the deepest regret, it must and would be met with a determination and constancy becoming a free people, contending in a just cause for their essential rights and their dearest interests.

of the Brit

The reply § 350. In the reply of Admiral Cochrane to the above ish admiral. communication, dated on the 19th September, 1814, it was stated that he had no authority from his government to enter into any kind of discussion relative to the point contained in that communication. He had only to regret that there did not appear to be any hope that he should be authorized to recall his general order, which had been further sanctioned by a subsequent request from the governor-general of the Canadas. Until the admiral received instructions from his government, the measures he had adopted must be persisted in, unless remuneration should be made to the Canadians for the injuries they had sustained from the outrages committed by the troops of the United States. (a)

The disavowal of the burning of Newark by the American government had been communicated to the governor-general of the Canadas, who answered on the 10th February, 1814, that it had been with great satisfaction that he had received the assurance

(a) Correspondence between Mr. Secretary Monroe and Admiral Cochrane: American State Papers, fol. edit. iii. 693, 694.