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 _Cyropoedia_, 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.)

If the town of Fayetteville had in any way become peculiarly obnoxious to the Federal army, one would have thought that a glance into Halleck might have satisfied the commanding officers as to their rights and duties there on the eleventh of March, 1865. Not a word here of plunder, pillage, or arson. There can be no doubt that Fayetteville would have gladly compounded for her offenses by a tax of almost any possible amount, levied and collected in a lawful and civilized way, in preference to her actual experiences.

Next, as to right of forage, etc.:

"In the second place, we have a _right_ to make the enemy's country contribute to the expenses of the war. Troops in the enemy's country may be subsisted either by regular magazines, by forced requisitions, or by authorized pillage. It is not always politic, or even possible, to provide regular magazines for the entire supply of an army during the active operations of a campaign. When this can not be done, the general is obliged either to resort to military requisitions, or to intrust their subsistence to the troops themselves. The inevitable consequences of the latter system are universal pillage, and a total relaxation of discipline: the loss of private property, and the violation of individual rights, are usually followed by the massacre of straggling parties; and the _ordinary peaceful and non-combatant inhabitants are converted into bitter and implacable enemies_. The system is, therefore, regarded as both impolitic and unjust, and is coming into general disuse among the more civilized nations--at least for the support of the main army. In case of small detachments, where great rapidity of motion is requisite, it sometimes becomes necessary for the troops to procure their subsistence wherever they can. In such a case, the seizure of private property becomes a necessary consequence of the military operations, and is, therefore, unavoidable. Other cases of similar character might be mentioned. But even in most of these special and extreme cases, provisions might be made for subsequently compensating the owners for the loss of their property." (Page 459.)

"The evils resulting from irregular requisitions, and foraging for the ordinary supplies of an army, are so very great, and so generally admitted, that it has become a recognized maxim of war, that the commanding officer who permits indiscriminate pillage, and allows the taking of private property without a strict accountability, whether he be engaged in defensive or offensive operations, fails in his duty to his own government, and violates the usages of modern warfare. It is sometimes alleged, in excuse for such conduct, that the general is unable to restrain his troops; but in the eye of the law there is no excuse; for _he who can not preserve order in his army has no right to command it_. In collecting military contributions, trustworthy troops should be sent with the foragers, to prevent them from engaging in irregular and unauthorized pillage; and the party should always be accompanied by officers of the staff and administrative corps, to see to the proper execution of the orders, and to report any irregularities on the part of the troops. In case any corps should engage in unauthorized pillage, due restitution should be made to the inhabitants, and the expenses of such restitution deducted from the pay and allowances of the corps by which such excess is committed. But modify and restrict it as you will, the system of subsisting armies on the private property of an enemy's subjects without compensation is very objectionable, and almost inevitably leads to cruel and disastrous results. There is, therefore, very seldom a sufficient reason for resorting to it." (Chap. 19, page 451.)

"While there is some uncertainty as to the exact limit fixed by the voluntary law of nations to our right to appropriate to our own use the property of an enemy, or to subject it to military contributions, _there is no doubt whatever respecting its waste and useless destruction_. _This is forbidden alike by the law of nature and the rules of war._ There are numerous instances in military history where whole districts of country have been totally ravaged and laid waste. Such operations have sometimes been defended on the ground of necessity, or as a means of preventing greater evils. 'Such violent remedies,' says Vattel, 'are to be sparingly applied: there must be reasons of suitable importance to justify the use of them. He who does the like in an enemy's country when impelled by no necessity, or induced by feeble reasons, becomes the scourge of mankind.'

"The general rule by which we should regulate our conduct toward an enemy is _that of moderation; and on no occasion should we unnecessarily destroy his property_. 'The pillage and destruction of towns,' says Vattel, 'the devastation of the open country, ravaging and setting fire to houses, are measures no less odious and detestable on every occasion when they are evidently put in practice without absolute necessity, or at least very cogent reasons. But as the perpetrators of such outrageous deeds might attempt to palliate them, under pretext of deservedly punishing the enemy, be it here observed that the natural and voluntary law of nations does not allow us to inflict such punishments, except for enormous offenses against the law of nations; and even then it is glorious to listen to the voice of humanity and clemency, when rigor is not absolutely necessary.'" (Pages 455--456.)

To these unimpeachable decisions I can not refrain from adding that of President Woolsey, of Yale College. In his Introduction to the Study of International Law, sec. 130, pp. 304--5, he says: "The property, movable and immovable, of private persons in an invaded country is to remain uninjured. But if the wants of the hostile army require, it may be taken by authorized persons at a fair value; but marauding must be checked by discipline and penalties." And even as to "permissible requisitions," which Wellington regarded as iniquitous, and opposed as "_likely to injure those who resorted to them_," President Woolsey adds that they "are demoralizing; they arouse the avarice of officers, and _leave a sting in the memory of oppressed nations_."

It is this _sting_, left in the breasts of the Southern people, these bitter hatreds aroused by the indiscriminate and licensed pillage to which they were subjected, which are more to be deprecated than any consequence of the blood shed in fair and open fight during the war. Hard blows do not necessarily make bad blood between generous foes. It is the ungenerous policy of the exulting conqueror that adds poison to the bleeding wounds.

From a mass of agreeing testimony, as to the conduct of the Federal troops on their entrance into our State, I select the following letter from a clergyman of distinction, the authorized head of one of the most influential denominations in the State; a man of national reputation for the learning, ability, and piety with which he adorns his high office in the Church of God. Let it be carefully read, and its calm and moderate tone be fairly estimated and appreciated:

... "I am altogether indisposed to obtrude myself on the public, and especially to bring before it complaints of personal grievance; but it seemed to me important, not only for the interests of justice, but of humanity, that the truth should be declared concerning the mode in which the late civil war was carried on, and I did not see that I was exempted from this duty rather than any one else who had personal knowledge of facts bearing on that subject. For this reason I made the statement to my Convention which you allude to, and for the same reason I have, after some hesitation, felt bound to give you the information you ask.

"When General Sherman was moving on Cheraw, in South-Carolina, one corps of his army, under General Slocum, I believe, advanced in a parallel line north of him, and extended into this State. Some companies of Kilpatrick's cavalry attached to this corps came on Friday, third March, to Wadesboro, in Anson county, where I was then residing. As their approach was known, many persons thought it best to withdraw from the place before the cavalry entered it; but I determined to remain, as I could not remove my family, and I did not suppose that I would suffer any serious injury. I saw the troops galloping in, and sat down quietly to my books, reading, having asked the other members of my family to remain in a room in the rear of the building. After a time a soldier knocked at the door, which I opened. He at once, with many oaths, demanded my watch, which I refused to give him. He then drew a pistol and presented it at me, and threatened to shoot me immediately if I did not surrender it. I still refused, and, the altercation becoming loud, my wife heard it, ran into the room and earnestly besought me to give it up, which I then did. Having secured this, he demanded money, but as we had none but Confederate, he would not take that. He then proceeded to rifle our trunks and drawers, took some of my clothes from these, and my wife's jewelry; but he would have nothing to do with heavy articles as, fortunately, he had no means of carrying them off. He then left the house, and I went in search of his officers to ask them to compel him to return what he had taken from me. This might seem a hopeless effort; for the same game had been played in every house in the town where there seemed to be any thing worth taking. However, in my case, the officers promised, if I could identify the robber, to compel him to make restitution. The men, accordingly, were drawn up in line, and their commander and I went along it examining their countenances, but my acquaintance was not among them. It turned out that he had gone from my house to that of a neighbor, to carry on the same work, and during my absence had returned to my house, taken a horse from the stable, and then moved off to his camp at some miles' distance. The next day other bands visited us, taking groceries from us and demanding watches and money. They broke open the storehouses in the village; and as at one of these I had some tierces of china and boxes of books, these they knocked to pieces, breaking the china, of course, and scattering the books, but not carrying them off, as they probably did not much value them, and had, fortunately, no wagons. I finally recovered nearly all of them. Another part of Sherman's army, in their march through Richmond county, passed by two railroad stations where I had a piano and other furniture, which they destroyed; and also at Fayetteville I had furniture at the house of a friend, which shared the fate of his. Yet I was among those who suffered _comparatively lightly_. Where the army went with its wagons, they swept the country of almost every thing of value that was portable. In some instances defenseless men were killed for plunder. A Mr. James C. Bennet, one of the oldest and wealthiest men in Anson county, was shot at the door of his own house because he did not give up his watch and money, which had been previously taken from him by another party.

"These and the like atrocities ought to be known; for even men who do not much fear the judgments of God, are kept somewhat in awe by the apprehension of the sentence of the civilized world and of posterity.

"In conclusion, I must say that I wish as little reference to be made to me, and the injuries done me, as is consistent with the faithful narrative which you have undertaken to give of the last ninety days of the war in North-Carolina.

"I remain, very truly and respectfully yours,

"Thomas Atkinson."

Bishop Atkinson, it is well known, was the first to set the example, after the war was closed, of leading his church half-way to reünite the church connection North and South. An example of Christian charity, meekness, and forbearance most worthy of our admiration and imitation.