They are undoubtedly correct with respect to the general abstract right, as deduced from the law of nature and ancient practice; but while the general right continues, modern usage and the opinions of modern text writers of the highest authority have limited this right by establishing the rule of general exemption. * * *
SEC. 13. But it must also be remembered that there are many exceptions to this rule, or rather that the rule itself is not by any means absolute or universal. The general theory of war is, as heretofore stated, that all private property may be taken by the conqueror, and such was the ancient practice. But the modern usage is not to touch private property on land, without making compensation, except in certain specified cases. These exception may be stated: * * * First. Confiscations or seizures by way of penalty for military offenses. Second. Forced contributions for the support of the invading armies, or as in indemnity for the expenses of maintaining order and affording protection to the conquered inhabitants. * * *
SEC. 14. In the first place, we may seize upon private property by way of penalty for the illegal acts of individuals, or of the community to which they belong. Thus, if an individual be guilty of conduct in violation, of the laws of war, we may seize and confiscate the private property of the offender. So, also, if the offense attach itself to a particular community or town, all the individuals of that community or town are liable to punishment, and we may either seize upon their property or levy upon them a retaliatory contribution, by way of penalty. Where, however, we can discover and secure the individuals so offending, it is more just to inflict the punishment upon them only; but it is a general law of war that communities are accountable for the acts of their individual members. This makes it the interest of all to discover the guilty persons, and to deliver them up to justice. But if these individuals are not given up, or cannot be discovered, it is usual to impose a contribution upon the civil authorities of the place where the offense is committed, and these authorities raise the amount of the contribution by a tax levied upon their constituents. * * *
SEC. 15. In the second place, we have a right to make the enemy's country contribute to the expenses of the war. Troops, in the enemy's country, may be subsisted either by regular magazines, by forced requisitions, or by authorized pillage. It is not always politic, or even possible, to provide regular magazines for the entire supplies of an army during the active operations of a campaign. Where this cannot be done, the general is obliged either to resort to military requisitions or to intrust their subsistence to the troops themselves. The inevitable consequences of the latter system are universal pillage and a total relaxation of discipline; the loss of private property, and the violation of individual rights, are usually followed by the massacre of struggling parties, and the ordinary peaceful and non-combatant inhabitants are converted into bitter and implacable enemies. The system is, therefore, regarded as both impolitic and unjust, and is coming into general disuse among the most civilized nations, at least for the support of the main army. In case of small detachments, where great rapidity of motion is requisite, it sometimes become necessary for the troops to procure their subsistence wherever they can. In such a case, the seizure of private property becomes a necessary consequence of the military operations, and is, therefore, unavoidable. Other cases of similar character might be mentioned. But even in most of these special and extreme cases provision might be made for subsequently compensating the owners for the loss of property. * * *
SEC. 16. In the invasion of the Spanish Peninsula, Napoleon had to choose between methodical operations, with provisions carried int he train of his army, or purchased of the inhabitants and regularly paid for, and irregular warfare, supplying his troops by forced requisition and pillage. The former was adopted for some of the main armies, moving on prescribed lines, and the latter for the more active masses. Soult and Suchet, in favorable parts of the country, succeeded for a considerable length of time in procuring regular supplies for their armies, but most of the French generals obtained subsistence for their troops mainly by pillage. * * *
SEC. 17. Upon the invasion of Mexico by th armies of the United States, in 1846, the commanding, generals were, at first, instructed to abstain from appropriating private property to the public use without purchase, at a fair rice; but subsequently instructions of a severer character were issued. It was said by the American Secretary of War (Mr. Marcy) that an invading army had the unquestionable right to draw its supplies from the enemy without paying for them, and to require contributions for its support, and to make the enemy feel the weight of the war. He further observed that, upon the liberal principles of civilized warfare, either of three modes might be pursued to obtain supplies from the enemy: First, to purchase them in open market at such prices as the inhabitants of the country might choose to exact; second, to pay the owners a fair price, without regard to what they themselves might demand, on account of the enhanced value resulting from the presence of a foreign army; and, third, to require them as contributions, without paying or engaging to pay therefor.
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SEC. 22. While there is some uncertainty as to the exact limit fixed by the voluntary law of nations to our right to appropriate to our own use the property of an enemy, or to subject it to military contributions, there is no doubt whatever respecting