describe them.' It is true that soldiers sometimes commit excesses which their officers can not prevent; but, in general, a commanding officer is responsible for the acts of those under his orders. Unless he can control his soldiers, he is unfit to command them. The most atrocious crimes in war, however, are usually committed by militia and volunteers suddenly raised from the population of large cities, and sent into the field before the general has time or opportunity to reduce them to order and discipline. In such cases the responsibility of their crimes rests upon the state which employs them, rather than upon the general who is, perhaps, unwillingly, obliged to use them." Halleck's International Law and Laws of War (San Francisco, 1861, § 22, p. 442), citing Kent's Commentaries, Vattel's Droit de Gens, and other authorities. Cited with approval in Mr. Bayard, Sec. of State, to Mr. Hall, infra, p. 920. "As civilization has advanced during the last centuries, so has likewise steadily advanced, especially in war on land, the distinction between the private individual belonging to a hostile country and the hostile country itself, with its men in arms;" and 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." Instructions for the Government of Armies of the United States in the A belligerent is responsible to neutrals for capricious and wanton injury inflicted on their persons or property. Mr. Seward, Sec. of State, to Mr. Dayton, Mar. 13, 1863, MS. Inst. France, XVI. 345; Mr. Frelinghuysen, Sec. of State, to Mr. Logan, June 7, 1883, min. to Chile, June 7, 1883, For. Rel. 1883, 107. A claim was made on behalf of certain Italian subjects for indemnity on account of losses suffered at the capture and pillaging of Bagdad, Mexico, on the morning of January 15, 1866. The town when captured was held by the French. It was taken by a force under the immediate command of R. Clay Crawford, a citizen of the United States, who was acting under General Escobedo, general in chief of the Mexican Republican forces in the north. The attacking force embraced a number of negro soldiers, belonging to the United States Army, who were inveigled from Brownsville, Texas, to take part in the affair. These soldiers were absent from their command without leave and were afterwards subjected to discipline and punishment for their absence. No officer of the United States, military or civil, was in any way connected or identified with the transaction. It was therefore held that the United States was not liable for what took place, and this position was afterwards sustained by the mixed com- Mr. Fish, Sec. of State, to Count Corti, Italian min., Dec. 9, 1872, MS. Citizens of the United States have a right to engage in the military service of foreign powers, Christian or non-Christian, and in such cases, while the Government of the United States will not take cognizance of their death in battle, it "will expect that no unusual or inhuman punishment be inflicted upon any of its citizens who may be taken prisoners, but that they shall be treated according to the accepted rules of civilized warfare." Mr. Fish, Sec. of State, to Mr. Williams, min. to China, July 29, 1874, For. On January 7, 1885, Mr. Dawson, American consul at Barranquilla. Colombia, reported that the country was in a state of revolution; that various river steamers, including one owned by citizens of the United States, had been seized by the insurgents, and that the Government authorities had also seized a river steamer similarly owned for the purpose of transporting troops. Mr. Frelinghuysen, in acknowledg ing the receipt of this report, said that "while the question of accountability for the spoliation of insurgents may remain open, yet there can be no doubt as to the responsibility of the Government de jure for all spoliations it may resort to for its own protection.“ Mr. Frelinghuysen, Sec. of State, to Mr. Scruggs, min. to Colombia, No. 22. Feb. 25, 1885, For. Rel. 1885, 207. "It is not disputed that a neutral person domiciled in a belligerent country can not claim from the opposing belligerent redress for injury inflicted by the latter in due course of war. The present case, however, is taken out of this rule by evidence herewith forwarded. showing that the injuries in question were not inflicted in due course of war, but were in violation of the rules of civilized warfare. For such violations of international duty the sovereign of the injured neutral has a right to call for redress." Mr. Bayard, Sec. of State, to Mr. Hall, May 27, 1886, MS. Inst. Cent. Am. The memorialist claimed compensation for a quantity of cotton and other articles of personal property valued at $4,000, which were shown to have been destroyed by fire set by United States soldiers. There was evidence tending to show that the property in question was at the time of its destruction situated in the theater of war, in a portion of the country marched over and ravaged by the forces both of the United States and of the Confederacy; and on this ground it was argued on the part of the United States that the claim was not within the treaty between the United States and France of January 15, 1880, because the acts complained of were not committed within "the territorial jurisdiction" of the United States. This question was disposed of by agreement between the two Governments. Apart from the question of jurisdiction, it was contended on the part of the United States that that Government was not liable for losses "arising from depredations committed in places where the armies were present, whether such depredations were by the soldiery or by camp-followers, inasmuch as the acts were not only without authority, either civil or military, but were in violation of the rules, and articles of war, and of the orders of the military commanders.” Upon the merits of the case the Commission made an award in favor of Chourreau of the sum of $970. Joseph Chourreau v. United States, French and American Claims Commission, convention of Jan. 15, 1880, Boutwell's Report, 134, 140. In the case of Edward C. Du Bois . The Republic of Chile, No. 2, before the United States and Chilean claim commission under the treaty of August 7, 1892, it was held by the commissions, the Chilean commissioner dissenting on the grounds that the property in question was the property of the Government of Peru and not of the claimant, that "the Government of Chile should be held responsible for the wanton and unnecessary destruction of claimant's property at Chimbote by General Lynch, in command of the Chilean forces." Judgment was rendered for the claimant to the amount of $155,232 U. S. gold. Report of the Agent and Counsel of the United States, 32. Andrew Moss, a citizen of the United States, made a claim for the burning by Chilean forces of certain houses belonging to him in Miraflores, Peru, in January, 1881. It was alleged that the place was burned by the Chilean forces, wantonly, after a battle near the town, in which they were victorious. The town itself was unfortified and undefended, there being in it neither Peruvian troops nor any fighting. An award was made in favor of the claimant for $6,000. Andrew Moss r. Chile, No. 25, United States and Chilean Claims Com- See Mr. Blaine, Sec. of State, to Mr. Christiancy, No. 153, June 21, 1881, The commission disallowed a claim for the loss of property by the "5. As war between Spain and the insurgents existed in a material sense, although not a state of war in the international sense, Spain was entitled to adopt such war measures for the recovery of her authority as are sanctioned by the rules and usages of international warfare. If, however, it be alleged and proved in any particular case that the acts of the Spanish authorities or soldiers were contrary to such rules and usages Spain will be held liable in that case. "6. It is the opinion of the Commission that the treaty of 1795 and the protocol of 1877 were in full force and effect during the insurrec tion in Cuba, and they will be applied in deciding cases properly falling within their provisions." Statement by the president of the Spanish Treaty Claims Commission, Mr. William E. Chandler, Nov. 24, 1902, concurred in by Commissioners Diekema and Wood. (S. Doc. 25, 58 Cong. 2 sess.) Commissioners Maury and Chambers dissented as to paragraph 5, for the reason that even though it was correct as an abstract proposition, it tended to qualify the liability of the United States under Art. VII. of the treaty of peace with Spain of Dec. 10, 1898. (S. Doc. 25. 58 Cong. 2 sess. 10, 12.) The foregoing propositions were repeated, under the numbers 5 and 9, in a statement issued by the commission on April 28, 1903. (Id. 6, 7.) 7. QUESTION OF RECONCENTRATION. § 1038. "6. As this Commission has been directed by Congress to ascertain and apply the principles of international law in the adjudication of claims of neutral foreigners for injuries to their persons and property caused by a parent state while engaged in subduing by war an insurrection which had passed beyond its control, it can not fail, in determining what are and what are not legitimate war measures, to impose upon the parent state such limitations as the consensus of nations at the present day recognizes as restricting the exercise of the right to remove all the inhabitants of a designated territory and concentrate them in towns and military camps and to commit to decay and ruin the abandoned real and personal property or destroy such property and devastate such region. "7. Adopting therefore a wide and liberal interpretation of the principle that the destruction of property in war where no military end is served is illegitimate, and that there must be cases in which devastation is not permitted, it should be said that whenever reconcentration, destruction, or devastation is resorted to as a means of suppressing an insurrection beyond control the parent state is bound to give the property of neutral foreigners such reasonable protection as the particular circumstances of each case will permit. It must abstain from any unnecessary and wanton destruction of their prop erty by its responsible military officers. When such neutral foreigners are included in the removal or concentration of inhabitants, the Government so removing or concentrating them must provide for them food and shelter, guard them from sickness and death, and protect them from cruelty and hardship to the extent which the military exigency will permit. And finally, as to both property and persons, it may be stated that the parent state is bound to prevent any discrimination in the execution of concentration and devastation orders against any class of neutral foreigners in favor of any other class or in favor of its own citizens. "8. Subject to the foregoing limitations and restrictions, it is undoubtedly the general rule of international law that concentration and devastation are legitimate war measures. To that rule aliens as well as subjects must submit and suffer the fortunes of war. The property of alien residents, like that of natives of the country, when in the track of war,' is subject to war's casualties, and whatever in front of the advancing forces either impedes them or might give them aid when appropriated, or if left unmolested in their rear might afford aid and comfort to the enemy, may be taken or destroyed by the armies of either of the belligerents; and no liability whatever is understood to attach to the Government of the country whose flag that army bears and whose battles it may be fighting. "If in any particular case before this Commission it is averred and proved that Spain has not fulfilled her obligations as above defined she will be held liable in that case. "9. It is the opinion of the Commission that the treaty of 1795 and the protocol of 1877 were in full force and effect during the insurrection in Cuba, and they will be applied in deciding cases properly falling within their provisions. 66 10. As to the first clause of Article VII. of the said treaty, wherein it is agreed that the subjects and citizens of each nation, their vessels, or effects shall not be liable to any embargo or detention on the part of the other for any military expedition or other public or private purpose whatever, the Commission holds that whether or not the clause was originally intended to embrace real estate and personal property on land as well as vessels and their cargoes, the same has been so construed by the United States, and this construction has been concurred in by Spain; and therefore the Commission will adhere to such construction in making its decisions. "11. But neither this particular clause nor any other provision of the treaty of 1795 will be so applied as to render either nation, while endeavoring to suppress an insurrection which has gone beyond its control, liable for damages done to the persons or property of the citizens of the other nation when found in the track of war or for |