In the absence of a Supreme Court of the Confederate States I am happy at having it in my power to submit the question to a tribunal so pure and so intelligent as the Supreme Court of Appeals of Virginia.
Very respectfully, your obedient servant,
GEO. W. RANDOLPH,
Secretary of War.
[OCTOBER 16, 1862. -For Lee to Randolph, in relation to Confederate money, see Series I, VOL. XIX, Part II, p. 668.]
CONFEDERATE STATES OF AMERICA, DEPT. OF JUSTICE,
Richmond, Va., October 17, 1862.
Hon. GEORGE W. RANDOLPH,
Secretary of War:
SIR: I have the honor to acknowledge the receipt of the letter of Lewis Cruger, comptroller, &c., addressed to you on the 14th instant, propounding certain questions hereinafter more specifically noticed. You ask my opinion on the questions thus presented. How far Government is bound to indemnify individuals, its inhabitants, for damages sustained during war has been a mooted question for centuries. Of course each government must decide this question for itself, and be guided in the decision by this own fundamental law or constitution. When a government has a written constitution prescribing its duties and powers, these duties and powers must be examined in ascertaining whether the damages sustained in war create such an obligation as is within the power of the legislative department to provide for. The Constitution of the Confederate States divides the powers and duties of the Confederate Government into three separate and distinct departments, the legislative, judicial, and executive. The powers of the legislative department are specially defined, and its duties, though not specifically defined, are, nevertheless, clearly made known. Congress, the organ of the legislative department, has not only no power to bestow gratuities or gifts, but is by the first clause of eighth section, first article, of the Constitution prohibited from granting bounties. The Government of the Confederate States has vested in it the power to declare and carry on war and to conclude peace. The States composing the Confederacy have no war-making powers, and are expressly forbidden to keep troops or ships of war in time of peace, and to engage in war unless actually invaded or in such imminent danger as will not admit of delay. By virtue of this exclusive right to make war and raise and support armies for the defense of States and people, the Confederate Government has the right to seize private property for the public use. This right is recognized distinctly in the sixteenth clause, ninth section, article first, of the constitution. This right of taking private property for the public use is coupled with the duty of providing just compensation for the property so seized. The power to take cannot be constitutionally exercised without the performance of the duty to provide the pay. This has been repeatedly decided by the highest judicial authority. There are other damages sustained in war besides those arising from taking private property for public use, which would create an obligation no just State having the ability and the power by its constitution to pay could resist. Vattel, on PAGE402, says "damages sustained in war are divided into two kinds-those