Hawkins v. Nelson

| Ala. | Jan 15, 1867

JUDGE, J.

In the general operations of war, it is now the true and universally acknowledged rule of the law of nations, that private property, on land, is exempt from capture and confiscation. — Gardner’s Institutes, 612. This exemption extends even to the case of an absolute and unqualified conquest of the enemy’s country.' — Wheaton’s Int. Law, 346-7. And eminent publicists contend, that “the moral sense of mankind will soon compel all Christian nations to abstain from pirating on private property and persons non-combatant, at sea, as well as on land. The principles of the gospel — the basis of public law — require that war by sea and land should respect private persons and property.” — Gardner’s Institutes, 619.

But to the general rule of international law above stated, there are exceptions. Private property may be taken from enemies in the field, or in besieged towns, or by levies of military contributions, or when it is contraband of war, or necessary for supplies or military purposes. — See note by Dana to Wheaton’s International Law, and authorities therein cited, on page 347.

During tbe progress of tbe recent war in tbe United States, tbe general rule above stated was recognized by tbat government in tbe published orders of its authorized officials, however much it may have been disregarded or abused in tbe operations of armies in tbe field. In, General Orders No. 107, from tbe war department, of date August 15, 1862, issued by command of Major-General Halleck, then “ General-in-chief of the army ”, tbe following paragraph occurs : “ III. Tbe laws of tbe United States, and tbe general laws of war, authorize, in certain cases, tbe seizure and conversion of private property, for tbe subsistence, transportation, and other uses of tbe army; but this must be distinguished from pillage, and tbe taking of property for public purposes is very different from its conversion to private uses. * * * Tbe 52d article of war authorizes tbe penalty of death for pillage or plundering ”, &c. And an order of the president of tbe United States, issued from tbe war department, on tbe 16th of August, 1862, contains tbe following: “First — Ordered,'that military commanders, within tbe States of Virginia, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, Texas, and Arkan-. sas, in an orderly manner, seize and use any property, real or personal, which may be necessary or convenient for their several commands, as supplies, or for other military purposes; and that, while property may he destroyed for proper military objects, none shall be destroyed in wantonness or malice.”

Whether' tbe wholesome injunction against tbe destruction of property <fin wantonness or malice ”, was in all cases observed, it were needless now to inquire. Tbe horse which is tbe subject of this suit, was tbe private property of a noncombatant, and, prima facie, not liable to capture. It does not appear from tbe record, tbat any evidence was introduced by tbe plaintiff in tbe court below, on whom was the burden of such proof, showing that tbe capture was within any one of tbe exceptions to tbe general rule above laid down, or tbat it was authorized by any military commander, under tbe laws of tbe United States and tbe general laws of war. Tbe horse having been abandoned by those who took him, tbe rightful owner, under tbe circumstances, was authorized peaceably to re-possess himself of the property.

It follows that the circuit court did not err in the charge given to the jury, nor in the refusal to charge as requested.

Judgment affirmed.