Page:The Green Bag (1889–1914), Volume 12.pdf/244

 War Claims—American Occupation of the Philippines. 2 17 obligation on their part to compensate the owner. The temporary occupation of, in juries to, and destruction of property caused by actual and necessary military operations, is generally considered to fall within the last mentioned principle. If a government make compensation under such circumstances, it is a matter of bounty rather than of strict legal right." For losses accruing to private individuals, by the destruction of their property as a re sult of active military operations, in the three great wars in which our country has been engaged, the same principle has been enunci ated; " That for injuries to, or destruction of private property in necessary military opera tions, the government is not responsible." No cause of action exists against the United States; compensation if granted at all, is as a matter of bounty. The same doctrine was announced by the United States Supreme Court at an early day. (See i Dallas, page 176.) The action was for recovery of damages for flour, which by order of Congress had been taken from the owner and placed in supposed safety; subsequently it was captured by the British. Held that no recovery could be had, the original removal or the flour being considered necessary as a military measure. The legal principle governing this class of cases is thus announced by a great master of international law : " Damages are of two kinds : Those clone by the State itself, and those clone by the enemy. Of the first kind, some are done deliberately and by way of precaution, as when a field, house, or garden belonging to a private person is taken for a special military purpose, or when his standing corn or store house is destroyed, such dam ages are made good to the individual. . . but there are other damages, caused by in evitable necessity : as, for instance, the de struction caused by the artillery in retaking a town from the enemy. These are merely accidents, they are misfortunes which chance deals out to the proprietors on whom they

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, but no action lies against the State for mis fortunes of this nature, — for losses which she has occasioned, not willfully, but through necessity and mere accident, in the exertion of her rights. The same may be said of dam ages caused by the enemy. All the subjects are exposed to such damages; and woe to him on whom they fall. The members of a society may .well encounter such risk of pro perty since they encounter a similar risk of life itself. Were the State strictly to indem nify all those whose property is injured in this manner, the public finances would soon be exhausted, and every individual in the State would be obliged to contribute his share in due proportion, a thing utterly impracticable." (Vattell, book 3, chapter 15, page 402.) Modern nations have not yet risen to the high moral plane of Vattell where, as quoted above, he recommends the payment for priv ate property destroyed, as standing corn or a store house that happens to be in the " track of war." That an alien resident is not entitled to greater privileges than the citizen of a country in a state of war or insurrection, and that no liability is incurred by the government of the alien resident for the loss of his property, is laid clown by Mr. Scward in diplomatic corre spondence with the Austrian minister, in which he uses the following language : " It is believed that it is a received principle of public law, that the subjects of foreign powers domiciled in a country in a state of war are rjot entitled to greater privileges or immuni ties than the other inhabitants of the insur rectionary district. If, for a supposed pur pose of the war, one of the belligerents thinks proper to destroy neutral property, the other cannot legally be regarded as accountable therefor. By voluntarily remaining in a country in a state of civil war they must be held to have been willing to accept the risks as well as the advantages of that domicile.