[CHAPTER IV.]

LAWS OF WAR—"RIGHT TO FORAGE OLDER THAN HISTORY"—XENOPHON—KENT ON INTERNATIONAL LAW—HALLECK'S AUTHORITY VERSUS SHERMAN'S THEORY AND PRACTICE—PRESIDENT WOOLSEY—LETTER OF BISHOP ATKINSON.

In the preceding chapter, attention was drawn to the striking contrast between the policy pursued by General Sherman toward the inhabitants of the country he was invading, and that of his illustrious predecessor in the days of the Revolution. I think there can be but little doubt as to which of these distinguished commanders is entitled to most credit on the score of humanity. General Sherman's friends, considering that he who conducts a campaign to a successful issue may well afford to disregard the means to the desired end, will doubtless support his policy; for where Cornwallis failed, he succeeded, and succeeded brilliantly. Lord Cornwallis, however, in the general benevolence of his character—tempering, as far as was practicable, the severities of war with forbearance and generosity—is more justly entitled to stand by the side of Washington than any other military commander of his age. As to his failure, time has shown that it was well for both countries that he did fail; and his memory is crowned with more unfading laurels than the title of mere conqueror could have conferred. Self-control, discipline, and magnanimous consideration for the weak and the defenseless are better than burning houses and a devastated country.

If, however, it still be asserted that humanity is necessarily no part of a soldier's duty, and that his business is to win the fight, no matter how, an appeal to the authorities on such points, recognized in all civilized nations, will show that the law is otherwise laid down.

General Sherman begins his famous letter to General Hampton with the assertion that "the right to forage is older than history." What was the precise character of this right among barbarians in the morning twilight of civilization it may hardly be worth our while to inquire. But we have clear historic evidence that, long before the coming of the Prince of Peace, in the earliest ages of profane history, among civilized nations the "right to forage" did not mean a right to indiscriminate pillage, "waste, and destruction"—destruction extending not only to the carrying off of the cattle necessary in farming operations, but to the agricultural tools and implements of every description. More than twenty centuries ago, Xenophon, at the head of the Ten Thousand, accomplished his famous retreat from Babylon to the sea. The incidents of that great march are given by himself in a narrative, whose modesty, spirit, and elegance have charmed all subsequent ages. His views as to the right to forage are clearly stated in the following passage, taken from Kent's Commentaries on International Law—an authority that was studied by General Sherman at West-Point, and was taught by him when Superintendent of the Military Academy of Louisiana. Treating of plunder on land, depredations upon private property, etc., he says:

"Such conduct has been condemned in all ages by the wise and virtuous, and it is usually punished severely by those commanders of disciplined troops who have studied war as a science, and are animated by a sense of duty or the love of fame. We may infer the opinion of Xenophon on this subject, (and he was a warrior as well as a philosopher,) when he states, in the Cyropœdia, that Cyrus of Persia gave orders to his army, when marching upon the enemy's borders, not to disturb the cultivators of the soil; and there have been such ordinances in modern times for the protection of innocent and pacific pursuits. If the conqueror goes beyond these limits wantonly, or when it is not clearly indispensable to the just purposes of war, and seizes private property of pacific persons for the sake of gain, and destroys private dwellings, or public edifices devoted to civil purposes only; or makes war upon monuments of art, and models of taste, he violates the modern usages of war, and is sure to meet with indignant resentment, and to be held up to the general scorn and detestation of the world." (Part I. Sec. 5.)

To this authority may be added a still more modern and binding exposition of the laws of war. Halleck's International Law and Laws of War, written and published in 1861 by an officer of the Government, and for a time a major-general and commander-in-chief of the Federal army, may be considered as the latest and ablest summary of the best authorities on these subjects. It was in the hands of General Sherman and his officers, and its decisions may be regarded as final. Nothing can be more explicit or more emphatic than the following extracts. First, as to general right of war in an enemy's property (on land):

"The general theory of war is, as heretofore stated, that all private property may be taken by the conqueror; and such was the ancient practice. But the modern usage is, not to touch private property on land without making compensation, except in certain specified cases. These exceptions may be stated under three general heads: 1st. Confiscations or seizures by way of penalty for military offenses; 2d. Forced contributions for the support of the invading army, or as an indemnity for the expenses of maintaining order, and affording protection to the conquered inhabitants; and 3d. Property taken on the field of battle, or in storming a fortress or town.

"In the first place, we may seize upon private property, by way of penalty for the illegal acts of individuals, or of the community to which they belong. Thus, if an individual be guilty of conduct in violation of the laws of war, we may seize and confiscate the private property of the offender. So, also, if the offense attach itself to a particular community or town, all the individuals of that community or town are liable to punishment; and we may seize upon their property, or levy upon them a retaliatory contribution by way of penalty. When, however, we can discover and secure the individuals so offending, it is more just to inflict the punishment on them only; but it is a general law of war that communities are accountable for the acts of their individual members. If these individuals are not given up, or can not be discovered, it is usual to impose a contribution upon the civil authorities of the place where the offense is committed; and these authorities raise the amount of the contribution by a tax levied on their constituents." (Chap. 19, pages 457, 458.)