absolute rules in advance for all nations, under all circumstances, limiting possible means of coercion.""" Hope for such exemption lies rather in international practice than in international agreement.-That the capture of private property at sea is often utterly futile can hardly be questioned. The solution of the question would seem to be to class such captures among those "ulterior measures of government," of which Chief Justice Marshall speaks, which, not following from the fact of war itself, are only carried out when the proper political authority thinks them necessary. If, on the occasion of war, each nation should announce its intention not to avail itself of this right at all, or on condition of reciprocity, as Austria and Prussia did in 1866, or should reserve the right, as Spain did with regard to privateering in 1898, it is possible that eventually a practice of abstention would grow up that would render an agreement possible or superfluous. 26 Dana's Wheaton, p. 401. 27 United States v. Brown, 8 Cranch, 126. CHAPTER VII. THE CIVIL WAR IN THE UNITED STATES. The Instructions for the Government of Armies of the United States in the Field.-The Civil War in the United States will be remembered in the annals of the Laws of War for the issuance of the Instructions for the Government of Armies of the United States in the Field, prepared by Dr. Francis Lieber and revised by a board of officers of the United States Army. The circumstances that led to their preparation are narrated by Brigadier-General George B. Davis in his work on the Elements of International Law. "The need of a positive code of instructions was," says General Davis, "severely felt during the early part of the Civil War in the United States. During the first two years of that war the Federal Government had succeeded in placing in the field armies of unexampled size, composed in great part of men taken from civil pursuits most of whom were unfamiliar with military affairs, and utterly unacquainted with the usages of war. These armies were carrying on hostile operations of every kind over a wide area, and questions of considerable intricacy and difficulty were constantly arising, which required for their decision a knowledge of international law which was not always possessed by those to whom these questions were submitted for decision. Conflicting decisions and rulings were of frequent occurrence in different armies, and at times in different parts of the same field of operation and great harm not infrequently resulted before these decisions could be reversed by competent authority. "To remedy this difficulty, Professor Francis Lieber, an eminent jurist, who had been for many years an esteemed and honored citizen of the United States, was requested. by the Secretary of War to prepare a code of instruction for the government of the armies in the field. This code while conforming to the existing usages of war on land, was to contain such modifications as were necessary to adapt those usages to the peculiar circumstances of the contest then prevailing. The rules prepared by Dr. Lieber were submitted to a board of officers, by whom they were approved and recommended for adoption. They were published in 1863, and were made obligatory upon the armies of the United States by their publication in the form of a General Order of the War Department."" They were the first comprehensive codification of the laws of war.-The Instructions were of special importance as the first comprehensive codification of the laws of war. At the Brussels Conference of 1874, the President, Baron Jomini, declared it was they that had suggested the idea of an international war code and had thus led the Russian Emperor to convoke the Conference, and as the Project of Declaration adopted at Brussels served as the basis of The Hague Regulations relating to the Laws and Customs of War on Land, the historical importance of the Instructions is evident. Their defects.-But it was a first attempt. It embodied extreme views of the rights of the military occupant over the inhabitants of occupied territory, followed too closely the hard precedents of earlier wars, and was in general diffuse and academic. Written by a nonmilitary man, it lacked the clearness which actual experience would have afforded, and omitted much that might have occurred to one who had seen responsible service in the field. Furthermore, it was the work of an individual and not of collective body. The advantage of the latter in legislative work of any kind is not easily over-estimated. Prof. Holland has noticed this in connection with the drawing up of the Manual of the Laws of War of the Institute of International Law. "I was much struck," he says, "by the advantage of getting a number of competent persons to work simultaneously upon one subject, even when oral discussion of their differences of opinion was only partially possible. It was surprising to see how, when a phrase had carefully been considered for months, it was still possible for a fresh mind to make a suggestion for its amendment, which every one at once saw to be an improvement.' 1 Davis, Elements of International Law, pp. 499–500. Articles 36, 60. •Holland, Studies in International Law, p. 94. ACTS OF SEQUESTRATION AND CONFISCATION. 75 The Confederate Act of Sequestration.-Early in the war, on August 6, 1861, the United States Congress passed an act subjecting "to seizure and forfeiture all property of every kind, used or intended to be used, in aiding, abetting or promoting the insurrection," or allowed or permitted to be so used, including slaves employed in military operations. This was clearly within belligerent right at that time. Property specially adapted to such purposes when on the sea would be classed as contraband of war and confiscated even in the hands of neutrals. But exaggerated ideas of the effect of the statute appear to have been held by the Confederate authorities, who replied by the Act of Sequestration of August 30, 1861, which subjected to sequestration all property of the inhabitants of the Northern States, including debts owed to them by Southerners, in order to indemnify those aiding the Confederate States for losses incurred under any confiscation acts of the United States or of any of the States thereof. This act could have been justified only as a measure of retaliation for the Federal Confiscation Act, but, as that act was within belligerent right, it furnished no excuse for the seizure of private property and especially of debts, which by this time had come to be recognized as inviolable. Mr. Blaine states that the Sequestration Act was largely responsible for the Confiscation and Captured and Abandoned Property Acts passed later in the North. The Federal Confiscation Act of July 17, 1862.—The Federal Confiscation Act of July 17, 1862, directed that proceedings in rem be taken against all property of those who did not cease after sixty days to aid and abet the rebellion.10 The act was directed at private property generally and can be defended only as a retaliation for the Sequestration Act or as an exercise of sovereign power in suppressing rebellion, not as an ordinary exercise of belligerent right. As a matter of fact, however, the requirement that the proceedings for confiscation must be brought in the district or territorial court of the United States, at the •United States v. Klein, 13 Wallace, 130. McPherson, History of the Rebellion, p. 195, ⚫ Blaine, Twenty Years of Congress, I, 349. place where the property was found, limited its operation to Northern States, or to places where the power of the United States was firmly established. As a result, the act netted only $408,008.03 into the United States Treasury. The returns of the operation of the Confederate Sequestration Act are very meagre, but from January 1, 1863, to September 30, 1864, they amounted to $6,102,070.39 in Confederate currency, equivalent to perhaps $380,000 in gold at the time of collection." The Captured and Abandoned Property Act.-Much more important was the Captured and Abandoned Property Act of March 12, 1863. It declared that all captured and abandoned property not used or intended to be used for waging or carrying on war against the United States should be turned over to agents of the Treasury, and the proceeds turned into the Treasury, subject to claim by the owner till two years after the suppression of the rebellion." "The act was undoubtedly intended to apply particularly to cotton and the other staple products of the Southern States. To such products only was it in practice applied." They constituted the sinews of the South, her mainstay in the war. From the sales under this act, $31,722,466.20 was realized.14 It was the general impression and such was the literal wording of the act that only those owners who had never given any aid or comfort to the rebellion would be entitled to claim the proceeds of the property. Accordingly few who had participated in the rebellion even though they had been pardoned, put in any claim under the Act and when, in the December Term of 1871, the Supreme Court decided that the property had not been confiscated, but had been held in trust not only for those who had been loyal, but for those who had been pardoned as well" the two years for presenting claims had passed. Congressional Committees have continued to make efforts to have the period for presenting claims revived, but so far unsuccessfully, so that at last accounts $10,512,007,96 was still held 11 Schwab, The Confederate States of America, p. 120. 13 Moore, International Arbitrations, Vol. 4, p. 37-45. 18 United States v. Klein, 13 Wallace, 128. |