gives to the invading force the right to exercise control for the period of occupation. The nature and extent of this control will be determined by circumstances, as by the proximity of the occupied territory to the seat of hostilities. Formerly no distinction was made between occupation and conquest. Early writers regarded effective occupation as equivalent to the acquisition of title to a region, and did not consider a treaty or other sanction as essential. Pufendorf discusses this matter fully, and argues that the sovereignty must be established by other means than simple exercise of force, which is simply a physical fact, which may or may not have a political significance. Writers of the eighteenth century began to differentiate conquest and occupation. They maintained that the inhabitants of the occupied territory should not be treated as enemies, but as subjects for the time being. In 1815 a judgment of the Supreme Court of the United States affirmed that, "although acquisitions made during war are not considered as permanent until confirmed by treaty, yet to every commercial and belligerent purpose they are considered as a part of the domain of the conqueror, so long as he retains the possession and government of them." According to a decision of the same court in 1901, during military occupation military authority supersedes civil authority to the extent deemed nececessary and in accord with the laws of war.8 According to the Hague Convention of 1907: "Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised." Military occupation is therefore a question of fact, because one or the other state must be competent to exercise authority. 4 Downes v. Bidwell, 182 U. S. 345, 21 Sup. Ct. 770, 45 L. Ed. 1088. 5 Pufendorf, De Jure Natural, bk. VII, c. VII, 3ff. 6 Wolf, Institutiones Juris Natural et Gentium, MCCIV; Vattel, Le Droit de Gens, § 197ff. 7 Thirty Hogsheads of Sugar v. Boyle, 9 Cranch, 191, 3 L. Ed. 701. 8 Dooley v. United States, 182 U. S. 222, 21 Sup. Ct. 762, 45 L. Ed. 1074. Hague Convention, 1907, Laws and Customs of War on Land, art. XLII, Appendix, p. 543. If the hostile army is in control, it is within the authority of that belligerent to govern the region over which it has in fact the power.10 As the military occupation is a fact, the beginning and ending of military occupation is determined by the presence or absence of an effective military force in a hostile territory, or by a treaty which fixes the status of the occupied territory. When military force is withdrawn, the occupation ceases, and the national government assumes sway. When a treaty transfers an occupied territory to the sovereign of the occupying forces, military occupation ceases, though the military forces may remain, and military control may continue. MILITARY GOVERNMENT. 143. The organization through which the authority is exercised in a region under military occupation constitutes the military government. "Military government-that is, the administration of the affairs of civil government exercised by a belligerent in territory of an enemy occupied by him-is not considered in modern times as doing away with all laws and substituting therefor the will of a military commander. Such government is considered as a new means or instrument for the execution of such laws, natural and enacted, international and domestic, as are necessary to preserve the peace and order of the community, protect rights, and promote the war to which it is an incident. "Under any government, if for any reason the usual and ordinary means of enforcing the laws and accomplishing the purposes of government are found inadequate to meet an existing emergency, resort may be had to martial rule, in order to enforce the law and accomplish the purposes of government. Martial rule is intended to effectuate some law, not to abrogate all law. To illustrate: Private property may be taken or injured for public purposes. Ordinarily this is accomplished by the slow process of condemnation. 10 United States v. Rice, 4 Wheat. 246, 4 L. Ed. 562. Under martial rule the process is accelerated. If the necessity apparently exists, as in the presence of a conflagration, a building may be summarily destroyed, or trespass committed without liability. Again, a man's life may be taken if he is guilty of treason. Under the ordinary administration of the law the most notoriously guilty individual, captured red-handed, must be proceeded against by the slow process of the court. Under martial rule he is incontinently executed. It is the procedure which is dispensed with, not the law. "While a military government continues as an instrument of warfare, used to promote the objects of the invasion by weakening the enemy or strengthening the invader, its powers are practically boundless." 11 The military authorities, in the exercise of their governmental functions, may in general perform such administrative functions under the laws of war as are by them deemed expedient. Legislative and other powers are, however, limited to strict necessity.12 Halleck says: "The government established over an enemy's territory during its military occupation may exercise all the powers given by the laws of war to the conqueror over the conquered, and is subject to all the restrictions which that code imposes. It is of little consequence whether such government be called a military or a civil government. Its character is the same, and the source of its authority the same. In either case it is a government imposed by the laws of war, and so far as it concerns the inhabitants of such territory, or the rest of the world, those laws alone determine the legality or illegality of its acts. But the conquering state may, of its own will, whether expressed in its constitution, or in its laws, impose restrictions additional to those established by the usage of nations, conferring upon the inhabitants of the territory so occupied privileges and rights to which they are not strictly entitled by the laws of war; and, if such government of military occupation violate these additional restrictions so imposed, it is 11 Magoon, The Law of Civil Government under Military Occupation, p. 14; United States v. Diekelman, 92 U. S. 520, 23 L. Ed. 742. 12 Dooley v. United States, 182 U. S. 234, 21 Sup. Ct. 762, 45 L. Ed. 1074. accountable to the power which established it, but not to the rest of the world." 13 The Hague Convention of 1907 provides that: "The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country." 14 Professor Westlake says that the above provision of the Hague Convention "indicates that the law to be enforced by the occupant consists, first, of the territorial law in general, as that which stands to the public order and social and commercial life of the district in a relation of mutual adaptation, so that any needless displacement of it would defeat the object which the invader is enjoined to have in view, and, secondly, of such variations of the territorial law as may be required by real necessity and are not expressly prohibited by any of the further rules which will come before us. Such variations will naturally be greatest in what concerns the relation of the communities and individuals within the district to the invading army and its followers; it being necessary for the protection of the latter, and for the unhindered prosecution of the war by them, that acts committed to their detriment shall not only lose what justification the territorial law might give them as committed against enemies, but shall be repressed more severely than the territorial law would repress acts committed against fellow subjects. Indeed, the entire relation between the invaders and the invaded, so far as it may fall within the criminal department, whether by the intrinsic nature of the acts done or in consequence of the regulations made by the invaders, may be considered as taken out of the territorial law and referred to what is called martial law." 15 An executive order of the President of the United States to the Secretary of War, May 19, 1898, during the SpanishAmerican War gives a statement of the point of view of the 13 2 Halleck, Int. Law (4th Ed.) p. 466. 14 Hague Convention, 1907, Laws and Customs of War on Land, art. XLIII, Appendix, p. 543. 18 Westlake, Int. Law, p. 42; War, p. 86. United States. "The first effect of the military occupation of the enemy's territory is the severance of the former political relations of the inhabitants and the establishment of a new political power. Under this changed condition of things the inhabitants, so long as they perform their duties, are entitled to security in their persons and property and in all their private rights and relations. It is my desire that the people of the Philippines should be acquainted with the purpose of the United States to discharge to the fullest extent its obligations in this regard. It will therefore be the duty of the commander of the expedition, immediately upon his arrival in the islands, to publish a proclamation declaring that we come, not to make war upon the people of the Philippines, nor upon any party or faction among them, but to protect them in their homes, in their employments, and in their personal and religious rights. All persons who, either by active aid or by honest submission, co-operate with the United States in its efforts to give effect to this beneficent purpose, will receive the reward of its support and protection. Our occupation should be as free from severity as possible." 18 EXERCISE OF MILITARY AUTHORITY IN OCCUPIED TERRITORY. 144. In the exercise of military authority in an occupied territory the occupant in general (a) Is under obligation to insure so far as possible the security of the occupied territory. (b) Is forbidden to violate the personal rights of the inhabitants. (c) Is permitted to exercise restraint over persons and to use property to the extent necessary and allowed by the laws of war. The Hague Convention, 1907, Respecting the Laws and Customs of War on Land, which is a revision of the convention of 1899 upon the same subject, contains specific regulations in section III in regard to exercise of military authority. (a) This convention provides that the occupant shall so far as possible secure public order, respect the laws, and carry on 16 10 Messages and Papers of Presidents, p. 209. |