done by the state itself and those done by the enemy. " Those done by the state are subdivided into two kinds: those done deliberately, by way of precaution, for the public safety, and those caused by inevitable necessity. Of the first kind caused by the state itself Vattel gives as examples:
When a field, a house, or a garden belonging to a private person is taken for the purpose of erecting on the spot a tower, rampart, or any other piece of fortification, or when his standing corn or his store-houses are destroyed to prevent their being of use to the enemy, all such damages are to be made good to the individual, who should bear only his quota of the loss.
Damages caused by inevitable necessity, such as the destruction caused by the artillery in retaking a town the enemy, are accidents, misfortunes, which chance deals out to the proprietors on whom they may 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. No action lies against the state for misfortunes of this nature for losses which she has occasioned, not willfully, but through mere accident in the exercise of her rights.
Damages caused by the enemy to individuals are mere accidents of war, and have not generally been considered as creating any just charge against the state.
But under our Government Congress must determine what damages shall be paid for and make appropriations for the indemnity. No other department of the Government has the constitutional right to determine the question. In the absence of a law the Executive Department, where the public necessity was so imperative as to admit of no delay, has frequently exercised the power to appropriate private property for the public use. The impending necessity which occasioned the act may be said to furnish the justification. (See Hamron vas. Mitchell, 13 How., 115.) In all such cases the legislative department would provide the just compensation for the property so seized. The facts presented by the letter referred to me, and on which my opinion is asked, show that vessels belonging to private individuals, citizens of the State of Virginia, "were seized as a military necessity, by order of the commanding general (Joseph E. Johnson), and sunk in the Pamunkey River to impede the advance of enemy's gun-boats. " The public necessity certainly justified General Johnston in this use of private property, and I have no doubt that just compensation should be made to the owners of the vessels so destroyed. But under our Constitution "no money shall be drawn from the Treasury but in consequence of appropriations made by law. " The law-making power of the Government. Congress can appropriate no money from the Treasury except by a vote of two-thirds of both Houses, taken by years and nays, unless it be asked and estimated for by some one of the heads of the Departments and submitted by the President, save in two cases expressly named in the Constitution. The Constitution requires that all bills appropriating money shall specify in Federal currency the exact amount of each appropriation and the purposes for which it is made. Unless, therefore, an appropriation has been of the vessels thus seized and appropriated to the public use no payment can legally be made to them. I have examined the appropriation act of the last session of Congress, and I can find none out of which these claims can be legally paid.
I have the honor to remain, very respectfully, your obedient servant,
T. H. WATTS,