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Opinion of the Court.
efficiency, were almost beyond calculation. For all injuries and destruction which followed necessarily from these causes no compensation could be claimed from the government. By the well settled doctrines of public law it was not responsible for them. The destruction or injury of private property in battle, or in the bombardment of cities and towns, and in many other ways in the war, had to be borne by the sufferers alone as one of its consequences. Whatever would embarrass or impede the advance of the enemy, as the breaking up of roads, or the burning of bridges, or would cripple and defeat him, as destroying his means of subsistence, were lawfully ordered by the commanding general. Indeed, it was his imperative duty to direct their destruction. The necessities of the war called for and justified this. The safety of the state in such cases overrides all considerations of private loss. Salus populi is then, in truth, suprema lex.
These views are sustained in treatises of text-writers, by the action of Congress, and by the language of judicial tribunals. Respublica v. Sparhawk, 1 Dall. 357; Parham y. The Justices, 9 Geo. 341; Taylor v. Nashville & Chattanooga Railroad, 6 Coldwell, 646; Mayor v. Lord, 18 Wend. 126.
Vattel, in his Law of Nations, speaks of damages sustained by individuals in war as of two kinds those done by the state and those done by the enemy. And after mentioning those done by the state deliberately and by way of precaution, as when a field, a house, or a garden, belonging to a private person, is taken for the purpose of erecting on the spot a town rampart or other piece of fortification; or when his standing corn or his storehouses are destroyed to prevent their being of use to the enemy; and stating that such damages are to be made good to the individual, who should bear only his quota of the loss, he says: “But there are other damages, caused by inevitable necessity, as, for instance, the destruction caused by the artillery in retaking a town from the enemy. These are merely accidents; they are misfortunes which chance deals out to the proprietors on whom they happen to fall. The sovereign, indeed, ought to show an equitable regard for the sufferers, if the situation of his affairs will admit of it; but no
Opinion of the Court.
action lies against the state for misfortunes of this nature for losses which she has occasioned, not wilfully, but through necessity and by mere accident, in the exertion of her rights. The same may be said of damages caused by the enemy. All the subjects are exposed to such damages; and woe to him on whom they fall! The members of a society may well encounter such risk of property, since they encounter a similar risk of life itself. Were the state strictly to indemnify all those whose property is injured in this manner, the public finances would soon be exhausted, and every individual in the state would be obliged to contribute his share in due proportion, a thing utterly impracticable.”] Book III, c. 15, §
Three cases in Congress, one before the House of Representatives in 1797, and two before the Senate, one in 1822 and one in 1872, illustrate this doctrine. In the first of these a Mr. Frothingham, of Massachusetts, presented a petition to the House of Representatives, asking compensation for a dwelling-house, the property of his mother, burned at Charlestown, in March, 1776, by order of General Sullivan, then commanding the American troops at that place. The Committee on Claims, to whom it was referred, made a report that they found that the house for which compensation was sought was, with several other buildings in the vicinity, at that time in possession of the British troops; and that, for
1 Mais d'autres dommages sont causés par une nécessité inévitable: tels sont, par exemple, les ravages de l'artillerie, dans une ville que l'on reprend sur l'ennemi. Ceux-ci sont des accidents, des maux de la fortune, pour les propriétaires sur qui ils tombent. Le souverain doit équitablement y avoir égard, si l'état de ses affaires le lui permet; mais on n'a point d'action contre l'État pour des malheurs de cette nature, pour des pertes qu'il n'a point causeés librement, mais par nécessité et par accident, en usant de ses droits. J'en dis autant des dommages causés par l'ennemi. Tous les sujets sont exposés à ces dommages; malheur à celui sur qui ils tombent! On peut bien, dans une société, courir ce risque pour les biens, puisqu'on le court pour la vie. Si l'État devait à la rigueur dédommager tous ceux qui perdent de cette manière, les finances publiques seraient bientôt épuiseés; il faudrait que chacun contribuật du sien, dans une juste proportion; ce qui serait impraticable. Vattel Droit des Gens, Liv. 3, c. 15, § 232; Vol. 3, p. 115, ed. Pradier-Fodéré, Paris, 1863.
Opinion of the Court.
the purpose of dislodging them, the general sent a party of troops with orders to set fire to the buildings, which was done accordingly; and that they apprehended that the loss of houses and other sufferings by the general ravages of war had never been compensated by this or any other government; that in the history of our Revolution, sundry decisions of Congress against claims of this nature might be found; and that the claim presented rested upon the same basis with all others where sufferings arose from the ravages of war.
As the government had not adopted a general rule to compensate individuals who had suffered in a similar manner, the committee were of opinion that the prayer of the petitioner could not be granted; and no further action was had upon the claim. American State Papers, Class XIV, Claims, p. 199.
In the second of the cases referred to, a Mr. Villiers, of Louisiana, presented a petition to the House of Representatives, stating that during the invasion of the British in 181+-15, after the enemy had landed near the city of New Orleans, in order to prevent him from bringing up his cannon and other ordnance to the city, General Morgan, commanding the Louisiana militia, caused the levee to be cut through, at or near the plantation of the petitioner, whereby the greater part of his plantation was inundated, and remained so till after the departure of the invading army from the state; that in consequence the petitioner had suffered great losses in the destruction of his sugar cane, cane plants, and in the expenses of repairing the levee, appraised at $19,250; for which he prayed compensation. The Committee on Claims, to whom the petition was referred, recommended that its prayer should not be granted, on the ground that the losses were sustained in the necessary operations of war, for which the United States were not liable, and their recommendation was adopted. American State Papers, Class XIV, Claims, p. 835; Annals of Congress, 17th Cong., 1st Sess., Part 1, p. 311.
The third of the cases referred to is that of J. Milton Best, which was much discussed in the Senate. His claim was for the value of a dwelling-house and contents destroyed by order of the officer commanding the Union forces in defence of the
Opinion of the Court.
city of Paducah, Kentucky, in March, 1864. The city being attacked by the Confederates in force, the Federal troops, numbering seven hundred, were withdrawn into Fort Anderson. The claimant's house, which was about one hundred and fifty yards from the fort, was taken possession of by the sharpshooters of the enemy, who did great execution picking off men at the guns within the defences. They were driven from the house by shells from the fort and gunboats, and late that night the Confederates retired from their assault without success. They appeared with reinforcements the next morning, and the Union officer, regarding his command in great peril, his ammunition being nearly exhausted, gave orders for the destruction of all houses within musket-range of the fort. The claimant's loyalty was unquestioned. The officers in command at the post from time to time during the war testified to his reliability and the effective aid he rendered the Union cause.
The Senate Committee on Claims reported the case as one presenting the “simple question of who shall pay for the destruction of a loyal citizen's property, destroyed by the order of a commanding officer to save his imperilled army, at the claimant's home, a place never in possession of the enemy, and in a nonseceding state.” Upon this question they say: “It appears to your committee that the facts establish a just claim against the government for private property taken and destroyed to prevent a greater destruction of its own property and the massacre of its troops."
They reported that “the injuries to the claimant's house, by shelling out the rebels in the battle of the 25th of March (the day preceding the destruction of the property], may be regarded as a casualty by the general ravages of war, which might properly be deducted from the amount of loss proved by claimant,” and they made what they deemed a proper deduction on that account in the bill presented by them for the payment of the damages. The bill was intended to cover the value of his property at the time it was burned to prevent its use by the reinforced enemy on the following day. In the debate which followed, it was contended by advocates of the bill, that while the damage by shelling from our own fort
Opinion of the Court.
during the battle came within the ravages of war, the subsequent burning of the house to prevent its being used by the sharpshooters of the enemy was a taking by the governinent of private property for public use, for which compensation should be made.
The bill passed in the Senate January 5, 1871, but was not acted upon by the House during that Congress. It again passed in the Senate, April 8, 1872, and in the House, May 18, 1872. It was vetoed by the President June 1, 1872. In his message to the Senate the President, after speaking of the claim as one for compensation on account of the ravages of war, and observing that its payment would invite the presentation of demands for very large sums of money against the government for necessary and unavoidable destruction of property by the army, said: “It is a general principle of both international and municipal law that all property is held subject, not only to be taken by the government for public uses, in which case, under the Constitution of the United States, the owner is entitled to just compensation, but also subject to be temporarily occupied, or even actually destroyed, in times of great public danger, and when the public safety demands it; and in this latter case governments do not admit a legal obligation on their part to compensate the owner. The temporary occupation of, injuries to, and destruction of property caused by actual and necessary military operations, is generally considered to fall within the last-mentioned principle. If a government makes compensation under such circumstances, it is a matter of bounty rather than of strict legal right.” Cong. Globe, 42d Cong., 2d Sess., Part V, p. 4155.
The message was referred to the Committee on Claims, and on the 7th of February, 1873, it was reported back with a recommendation that the bill be passed, the objections of the President to the contrary notwithstanding. On the 24th of the same month, the bill was reached on the calendar and was passed over upon objection. No further action was ever taken upon it in the Senate, and consequently it never reached the House.
The claim has been repeatedly presented to Congress since,