From Edmund Randolph, with a Memorandum by Jefferson
February 9. 1781.
As your excellency and the council probably have not access to Vattel, on whose doctrines this hasty answer is founded, I shall inclose the paragraph from his work, which treats of the right of soldiery to booty. They seem to amount to this: that booty does in strictness belong to the commonwealth; but that late usage has divided it among the captors, military stores excepted. Now I believe, but cannot affirm, that congress have distributed captures in conformity to this usage. Whether this state has made a declaration of a like nature in favor of the army, or, if none such exists, whether the continental rule ought to be adopted here, or whether horses do not fall within the description of military stores, I must refer to your board, as better judges. I trust, that I am correct, when I suppose, that there is no just distinction in this instance between regulars and militia.
No similar conclusion, however, is drawn from the above with respect to the unarmed peasantry: who seem to stand in the following predicament. They are in truth parties to the war, and in that view possessed unquestionably a right of capture, before the law of arms was modelled upon the present customs of Europe. As to the enemy that right still exists, but they are liable to be hanged, as robbers, if taken. Vattel conceives, that private citizens are prohibited from making captures by a kind of tacit law of the state, not by the law of nations. He says indeed, that “custom actually authorizes, nay even obliges all subjects of whatever rank to secure the persons and things belonging to the enemy, when they fall into their hands.” This gives no right of property in what is taken. And yet it is Every day’s practice for private persons to retain a ship which they have captured, if another with a commission should not lay His hands upon it before condemnation: And such property, as horses, belong to the takers without the formality of a condemnation. I presume that the same restriction as to military stores will apply to unarmed citizens and soldiers equally. But I do not pretend to say, whether Vattel or daily practice shall prevail.
I have the honor to be yr. excys. mo. ob. serv:,
[Below the text, in TJ’s hand:]
The opinion of the board is that these horses (of the property of the enemy) belong to the captors; that they be lodged with the Q.M. till the captor makes his right of capture appear before the Commissioner of the W[ar] Office.
RC (Vi). Enclosure (filed with the letter in Vi): 3-page extract in clerk’s hand, with interlineations by Randolph, from Vattel’s Law of Nations concerning booty; Vattel’s opinion was that title to both lands taken (conquest) and movable things captured (booty) vested in the sovereign; he further asserted, however, that the sovereign might, and by custom did, grant the troops what share of the booty he pleased. This extended to things found on enemy soldiers fallen in battle, to the pillage of a camp, and even to the plundering of a town, but not to “artillery, military stores, magazines, and convoys of provision or forage which are applied to the wants and use of the army.” Randolph challenged this exception (as to unarmed citizens) in the letter following; see also TJ to Nelson, 10 Feb. 1781.