the administration of the occupied territory.17 Being in control, the occupant would for his own sake maintain public order. Not all laws would flourish during a period of military occupancy. Laws relating to political relations would in general be suspended during occupancy, because the political power which would enforce these laws is for the time in abeyLocal laws regulating private relations are continued, unless regarded as detrimental to the occupant. Ordinary laws of trade, local taxes, registration of marriages, births, and deaths, and other laws not affecting the military occupant, are usually operative. (b) By this convention the occupant is forbidden to compel the inhabitants of the territory to swear allegiance to the hostile power or to furnish military information. He is forbidden to violate personal or property rights of individuals. This prohibition extends to religious convictions and to the confiscation or pillage of private property. He is also under obligations to treat the property of municipalities and of institutions devoted to the welfare of humanity as private property, 18 Article 44 of the convention, providing that "any compulsion on the population of occupied territory to furnish information about the army of the other belligerent or about his means of defense is forbidden," has been a subject of discussion, owing to the difference of interpretation. Some maintained that under this article inhabitants of an occupied country might be forced to act as guides for the enemy. Article 23 forbids, however, a belligerent "to compel the nationals of the adverse party to take part in the operations of war directed against their country." 19 (c) The occupant is permitted to levy contributions or make requisitions upon the inhabitants in case of need. In such cases receipts must be given. He may take possession of public property, which may be used for military operations, and as administrator enjoy the use of other public property, but must preserve the capital.20 In article 53 the army of occu 17 Articles XLIII, XLVIII, Appendix, p. 543. 18 Articles XLIV-XLVI, L, LVI, Appendix, pp. 543, 544. 19 See Lémonon, La Second Conférence de la Paix, p. 358ff; German Weissbuch, No. 527 (1907) p. 7. 20 Id. arts. XLIX, LI-LV, Appendix, p. 544. pation is permitted to take possession of valeurs exigibles, "realizable securities," belonging to the state, which is regarded as including obligations already payable or such as may become payable during the period of occupation. This expression has been differently translated, and Professor Holland regards it as intentionally ambiguous.21 Hall, quoting with approval Heffter and Phillimore, says: "According to them, incorporeal things can only be occupied by actual possession of the subject to which they adhere. When territory is occupied, there are incorporeal rights, such as servitudes, which go with it, because they are inherent in the land. But the seizure of instruments or documents representing debts has not an analogous effect. They are not the subject to which the incorporeal right adheres. They are merely the evidence that the right exists, 'or, so to speak, the title deeds. of the obligee.' The right itself arises out of the purely personal relations between the creditor and the debtor; it inheres in the creditor. It is only, consequently, when a belligerent is entitled to stand in the place of his enemy for all purposes— that is to say, it is only when complete conquest has been made, and the identity of the conquered state has been lost in that of the victor-that the latter can stand in its place as a creditor, and gather in the debts which are owing to it." 22 "Submarine cables, connecting an occupied territory with a neutral territory, shall not be seized or destroyed, except in the case of absolute necessity. They must likewise be restored, and compensation fixed, when peace is made." 23 An illustration of the application of the principles for the exercise of military authority in an occupied territory is shown in the executive order of President McKinley to the Secretary of War on May 19, 1898, relating to the occupation of the Philippines by United States forces. A portion of the order particularly applicable is as follows: "Though the powers of the military occupant are absolute and supreme, and immediately operate upon the political con 21 Holland, Laws and Customs of War on Land, p. 78. 22 Hall, Int. Law (5th Ed.) p. 421. § 1977; 2 Rivier, Principes, 307. 23 Article LIV, Appendix, p. 544. See, also, Heffter, § 134; Calvo, dition of the inhabitants, the municipal laws of the conquered territory, such as affect private rights of person and property and provide for the punishment of crime, are considered as continuing in force, so far as they are compatible with the new order of things, until they are suspended or superseded by the occupying belligerent; and in practice they are not usually abrogated, but are allowed to remain in force and to be administered by the ordinary tribunals, substantially as they were before the occupation. This enlightened practice is, so far as possible, to be adhered to on the present occasion. The judges and the other officials connected with the administration of justice may, if they accept the authority of the United States, continue to administer the ordinary law of the land as between man and man under the supervision of the American commander in chief. The native constabulary will, so far as may be practicable, be preserved. The freedom of the people to pursue their accustomed occupations will be abridged only when it may be necessary to do so. "While the rule of conduct of the American commander in chief will be such as has just been defined, it will be his duty to adopt measures of a different kind if, unfortunately, the course of the people should render such measures indispensable to the maintenance of law and order. He will then possess the power to replace or expel the native officials in part or altogether, to substitute new courts of his own constitution for those that now exist, or to create such new or supplementary tribunals as may be necessary. In the exercise of these high powers the commander must be guided by his judgment and his experience and a high sense of justice. "One of the most important and most practical problems with which the commander of the expedition will have to deal is that of the treatment of property and the collection and administration of the revenues. It is conceded that all public funds and securities belonging to the government of the country in its own right and all arms and supplies and other movable property of such government may be seized by the military occupant and converted to the use of this government. The real property of the state he may hold and administer, at the same time enjoying the revenues thereof; but he is not to WILS. INT.L.-22 destroy it, save in the case of military necessity. All public means of transportation, such as telegraph lines, cables, railways, and boats belonging to the state may be appropriated to his use; but, unless in case of military necessity, they are not to be destroyed. All churches and buildings devoted to religious worship and to the arts and sciences, all schoolhouses, are, so far as possible, to be protected, and all destruction or intentional defacement of such places, of historical monuments or archives, or of works of science or art, is prohibited, save when required by urgent military necessity. "Private property, whether belonging to individuals or corporations, is to be respected, and can be confiscated only as hereafter indicated. Means of transportation, such as telegraph lines and cables, railways, and boats, may, although they belong to private individuals or corporations, be seized by the military occupant; but, unless destroyed under military necessity, are not to be retained. "While it is held to be the right of a conqueror to levy contributions upon the enemy in their seaports, towns, or provinces which may be in his military possession by conquest, and to apply the proceeds to defray the expenses of the war, this right is to be exercised within such limitations that it may not savor of confiscation. As the result of military occupation the taxes and duties payable by the inhabitants to the former government become payable to the military occupant, unless he sees fit to substitute for them other rates or modes of contribution to the expenses of the government. The moneys so collected are to be used for the purpose of paying the expenses of government under the military occupation, such as the salaries of the judges and the police, and for the payment of the expenses of the army. "Private property taken for the use of the army is to be paid for when possible in cash at a fair valuation, and when payment in cash is not possible receipts are to be given." 24 10 Messages and Papers of Presidents, p. 209. 99 24 MARTIAL LAW. 145. Martial law is the law in accordance with which military authority is exercised. Martial law becomes operative when a hostile territory is occupied by the enemy. It does not suspend or supersede local laws, except so far as necessary.25 Martial law is not a justification for oppression or other arbitrary action, and a commander thus exercising his authority is liable to penalty.26 "What is called 'declaration of martial law' is the mere announcement of a fact; it does not and cannot create that fact. The exigencies which, in any particular place, justify the taking of human life without the interposition of the civil tribunals, and without the authority of the civil law, may justify the suspension of the power of such tribunals and the substitution of martial law. The law of war, or at least many of its rules, are merely the results of a paramount necessity." 27 Martial law may be proclaimed in the time of peace, when for any reason the regular course of administration is so disturbed as to make it necessary, as in time of great disaster by fire, or earthquake. General Davis says: "Martial law, or, to speak more correctly, military rule, or the law of hostile occupation, is a term applied to the government of an occupied territory by the commanding general of the invading force. Martial law also prevails in the immediate theater of operations of an army in the field. The reason in both cases is the same. The ordinary agencies of government, including the machinery provided for the prevention and punishment of crime, are suspended by the fact of war. This suspension takes place at a time when society is violently disturbed, when the usual restraints of law are at a minimum of efficiency, and when the need of such restraints is the greatest possible. This state of affairs is the direct result of the invasion, or occupation, of the disturbed territory by an enemy. The only organized power capable of 25 Dow v. Johnson, 100 U. S. 158, 25 L. Ed. 632, |