Smith v. Brazelton. first treated as pirates were exchanged. M. and N. Hist. f. 323; 4 Law. Wheat. 593. The confederate government, on all occasions, negotiated with that of the United States, for the exchange of prisoners, on terms of perfect equality; and, in consequence of its ability to marshal large armies, the war, to all intents and purposes, was treated and carried on by both belligerents as a public war, in which cach asserted and maintained for the time being the same belligerent rights. But we have been unable to find in any work to which we have access, any clear, concise, certain and accurate definition of the nature and extent of belligerent rights, as understood by writers on international law, and can only deduce them from the usage of nations and their general exercise under the laws of war During the existence of the civil war between Spain and her colonies, and previous to the acknowledgment of the independence of the latter by the United States, the colonies were deemed by them belligerent nations, and entitled to all the sovereign rights of war, against their enemy. 3 Wheat. 610; 4 id. 52; 7 id. 337; Law Wheat. 42, 43. Among these sovereign rights of war may be classed the right to attack and capture or destroy the persons and property of the enemy; to destroy his commerce; to despoil and plunder his territory; to levy contributions; and to put in practice, against him, every method known in civilized warfare, necessary to weaken him. 1 Kent, lect. V., 90-101, Vattel, book III, chap. 8, pp. 346-363. Every nation, at war with another, is justifiable, by the general and strict law of nations, in seizing and confiscating all movable property of its enemy, of any kind or nature whatsoever, wherever found, whether within its territory or not; but the general usage now is, not to touch private property on land, without making compensation, unless in special cases, dictated by the necessary operations of war, or when captured in places captured by storm, and which repelled all the overtures for capitulation. 4 Kent, 91–92, m ; Ware, adm'r, v. Hylton et al., 3 Dal. 199; 1 Pet. C. R. 104. This usage was adopted in the earlier stage of the Mexican war, in the instructions to General Taylor to abstain from appropriating private property to public use, until purchased at a fair price; but was departed from, and military contributions levied, before the elose of the war. 1 Kent, 92, 93, m, in note. And it was notoriusly departed from by the army of the United States, in every southern state, during the late civil war, and the private property Smith v. Brazelton. of the citizens, whether friendly or unfriendly to the government. was taken and appropriated to the uses of the army, in most cases, without any compensation. The departure from this usage on the part of the United States would have justified the other belliger. ent--the confederate states—in the adoption of a similar course, in regard to the private property of any of the citizens of the United States residing out of the limits of the confederacy, but would not have justified taking, without just compensation, the private property of any citizen of the confederate states, except in cases justified, as a military necessity, by the usages of war; because the confederate states, as a de facto government, were bound to protect their own citizens. Their right to follow the example of the United States depended upon their equal rights as belligerents, and upon the law of retaliation. But, whatever may have been the actual practice of the two belligerents, there is no difficulty in ascertaining the laws of war as recognized by the United States. In the "Instruetions for the government of the armies of the United States in the field," prepared by Francis Leiber, LL. D., approved by the president, and published by order of the secretary of war April 24, 1863, general orders, volunteer force, $2, 37, p. 70, it is declared that "the United States acknowledge and protect, in hostile countries occupied by them, religion and morality, strictly private property, the persons of the inhabitants, especially those of women, and the sacredness of domestic relations. Offenses to the contrary shall be rigorously punished. This rule does not interfere with the right of the victorious invader to tax the people or their property, to levy forced loans, to billet soldiers, or to appropriate property, especially houses, lands, boats or ships, and churches, for temporary and military uses." In the same book, p. 68, ¶ 22, it is declared that "the principle has been more and more acknowledged, that the unarmed citizen is to be spared in person, property and honor, as much as the exigencies of war will admit," thus leaving a large margin to military necessity; and on p. 67, ¶ 17, it is said, "war is not carried on by arms alone. It is lawful to starve the hostile belligerent, armed or unarmed, so that it leads to the speedier subjection of the enemy." And in the further progress of the war, Major-General Halleck, commander-in-chief of the armies of the United States. issued certain stringent instructions to the commanding officer in Tennessee, in which, among other things, he said You have already been urged to procure your subsistence, forago and means Smith v. Brazelton. of transportation, so far as is possible, in the country occupied. This you had the right to do without any instructions. As the commanding general in the field you have the power to enforce all laws and usages of war, however rigid and severe these may be, unless there be some act of congress, regulation, order or instruction forbidding or restricting such enforcement." La... Wheat. (2d ed.). supplement, 40. Such being the laws of war, as recognized and promulgated by the United States, we hold that, during the war, it was lawful for the armies of General Vaughn and General Longstreet to encamp upon the lands of defendant in error, and to cut down and consume the timber therefrom; that said military commanders in active service were the proper and only judges of the propriety or necessity of taking and consuming the other property mentioned in the pleadings, and that, if it was lawful in them to take, it was lawful for the plaintiff in error, who was then within their lines, and sympathized with their objects in the war, to advise the taking; and that, in this view, no trespass was, either in law or in fact, committed. How the law would be if it were shown that the party giving the advice was animated solely by malicious motives, or personal hatred or revenge; or how it would be if there had been any proof that. plaintiff directed the seizure of the corn, hogs and hay, it is unnecessary for us to determine, as there is no proof in the record to require such determination. The right of the United States, through the army, to take and appropriate private property, in the late civil war, was fully discussed and carefully considered in Taylor v. N. & C. R. R. Co., 6 Cold. 650, and it was held that even in friendly territory, the right exists under the general powers of the government; and that the military commander is the proper judge of the necessity, and cannot be held responsible, in a civil tribunal; and, for the reasons already stated, we hold that, during the late civil war, the same principle was applicable to the armies of the southern confederacy. In the case just cited, the right of the government to take and impress private property, for the use of an army in the field, and upon the actual theater of military operations, was fully considered. in the learned opinion of the court. It was rested upon the police power of the nation, and declared to arise from its obligation te protect the national existence and the lives and property of its citi zens: and, while the duty of the government to make compensation to those whose property has been taken and appropriated to public Smith v. Brazelton. use was distinctly recognized, it was held that this is not a condition precedent to the right to take property, or to the vesting of title thereto in the government. Id. 651. .. The duty of making compensation to their own citizens was, at all times, fully recognized and enforced by the government of the confederate states of America, and never departed from, so far as we are informed, except under the pressure of military necessity, and by armies engaged in actual hostilities. Citizens were paid for their property from the commencement of the war, and the right of impressment was regulated by statute. An act was passed by the congress of the confederate states, approved March 26, 1863, entitled, an act to regulate impressments;" and this was amended by an act approved April 27, 1863, and still further amended by an act approved February 16, 1864. These acts provided for the impressment of private property, and its fair valuation in cases where the impressing officer and the owners could not agree, and for payment to the owner. Regulations were prescribed, from time to time, by the war department of the confederate states, for carrying said statutes into effect; and, so late as March 7, 1864, in the regulations issued by "S. Cooper, adjutant and inspector-general," it was directed in section six that "no officer or agent shall impress the necessary supplies which any person may have for the consumption of himself, his family, employees or slaves, or to carry on his ordinary mechanical, manufacturing or agricultural employments." In the constitution of the United States, article 5, it is provided that private property shall not be taken for public use without just compensation, and the same provision was contained in the constitution of the confederate states, article 1, section 16. It will thus be seen that both belligerents acknowledged in their fundamental law the duty of making compensation; and this has always been considered as in affirmance of a great doctrine, established by the common law, laid down by jurists as a principle of universal law, and founded on natural equity. Story Const., § 1790. But while the lawful government of the United States and the de facto government of the confederate states mutually acknowledged, at least in theory, the application of this principle to their own citizens, the stern and rigorous doctrine recognized in the law of nations, that all movable property of their enemies, including private property, may be seized or destroyed, was practically adopted by both belligerents; and, as has been already announced, we hold Smith v. Brazelton. that, in the late civil war, each party belligerent was entitled to the same belligerent rights. This doctrine is fully recognized, not only in the authorities before cited, but in Lawrence's Wheaton, 521, 522, text, and 523 in the notes, and is incidentally stated in Halleck's Int. Law, 458, 459, 464. It was declared, in another form, by the supreme court of the United States, long before our civil war, in the case of The Santissima Trinidad and the St. Andre, 7 Wheat. 283; 5 Pet. C. R. 284. There it was held that, during the existence of the civil war between Spain and her colonies, and previous to the acknowledgment of the independence of the latter by the United States, the colonies were deemed by us belligerent nations, and entitled, so far as concerns us, to all the sovereign rights of war against their enemy. And, in two cases determined by the court of appeals of Kentucky in 1866, the same general principle was asserted and enforced. In the one, it was held that the capture of horses for the public use of the confederate army, under military authority, express or implied, however wrongful in fact, was excusable as a lawful exercise of a belligerent right. Price v. Poynter, 1 Bush (Ky.), 327. In the other it was announced that the admitted laws of all civilized warfare entitle each party in a civil war to the same right of capture or destruction of enemies property, and show that when either the capture or destruction of property by one of such belligerents is lawful, it is equally lawful by the other; and if unlawful by one, it would be equally so by the other. Bell v. Louisville and Nashville R. R. Co., 1 Bush (Ky.), 404. It was declared by this court, in Hammond v. The State, 3 Cold. 236, that in the late civil war the people were separated into two distinct and hostile societies, each, as belligerents merely, standing on the same level, and entitled, pending the contest, to the same rights of war, as against each other, that they would have been entitled to, had they both been independent sovereigns; and that they could alike take prisoners, capture property belonging to each hostile party, and deal with combatants, for the time, wherever the armies marched, as two sovereign and independent states. We fully approve the principle as there stated. The doctrine seems to have been greatly modified in Yost v. Stout, 4 Cold. 205, where it was held that Yost and other confederate soldiers, who had taken the wagon and mules of Stout, by order of the commander of the rebel force, were trespassers, and that the order was no justification. The case of Yost v. Stout, and the cases of Davidson v. Maalore, 2 |