restoring and maintaining order is that of the invading force. which is vested in its commanding general. Upon him, therefore, international law places the responsibility of preserving order, punishing crime, and protecting life and property within the limits of his command. His power in the premises is equal to his responsibility. In cases of extreme urgency, such as arise after a great battle, or the capture of a besieged place or a defended town, he may suspend all law, and may punish crimes summarily, or by tribunals of his own constitution." 28

MILITARY LAW, COURTS-MARTIAL, AND MILITARY COMMISSIONS.

146. Military law, courts-martial, and military commissions are particularly concerned with offenses against military discipline or good order.

Military law may and does exist in time of peace and in time of war. Military law is the law for the government of military forces. As such forces are called upon to perform duties in behalf of the state, a soldier may sometimes, under orders, act in a manner which might render an ordinary civilian liable before a civil court, but which would be the proper action under military law. It would be manifestly inexpedient to allow local authorities to assume jurisdiction over offenses which might take place within the limits of a military post. Indeed, for offenses against certain military regulations there might be no provision in the local law.

Offenses against military law are tried as the law may prescribe, but usually by courts-martial instituted for the purpose. The sentence of such a court must also be in accord with law, and when proceedings of such a court have been regular and sentence proper the civil courts decline to take jurisdiction,' and in general civil courts will review the findings of a courtmartial only to ascertain whether the court acted within its proper competence.30

28 Davis, Elements of Int. Law (3d Ed.) p. 333. 29 Dynes v. Hoover, 20 How. 65, 15 L. Ed. 838.

29

30 Carter v. McClaughry, 183 U. S. 365, 22 Sup. Ct. 181, 46 L. Ed. 236. See discussion of jurisdiction of court-martial in Case of Wal

Offenses not provided for in the military law may be brought before a military commission, which may recommend to the commanding officer a suitable punishment. Such commissions are usually appointed for special cases. "In the war between the United States and the Republic of Mexico, it was found that no provisions had been made in the United States Rules and Articles of War for numerous cases, civil and criminal, between the citizens of the United States and between such citizens and foreigners, in Mexican territory occupied by the troops of, but without the jurisdiction of any court of, the United States. All such cases, of a criminal character, arising in the territory of Mexico occupied by the 'main army' under General Scott, were referred by him to 'military commissions,' which were special tribunals constituted and appointed for that purpose. In California they were usually left to be decided by the ordinary tribunals of the country, although special tribunals were there organized, in a few special cases, by the government of military occupation." 31

CESSATION OF HOSTILE MILITARY OCCUPATION AND

OF MILITARY CONTROL.

147. Hostile military occupation ceases when the effective military force is withdrawn from a hostile territory, or on the conclusion of peace.

Military control ceases when and to the extent that the regular civil government is restored.

Military occupation in the strict sense is a term applicable only in time of war, and is the effective holding by force of an enemy territory. This would cease in fact when the force is withdrawn, and would cease from a legal point of view when by treaty of peace the war is at an end.

The term "military occupation" is also used in a loose sense to designate exercise of authority through the military forces after peace is restored and before a regular government is established. The object of the continued maintenance of a mili

ler, Foreign Relations U. S. 1895, p. 304, and index "Arrest of J. L. Waller."

312 Halleck, Int. Law (4th Ed.) p. 474.

tary force in a territory after the close of war is in general not such as to bring it within the scope of international law of war. As Magoon says of Porto Rico and of Cuba after the Spanish-American War:

"Upon the ratifications of the treaty of peace being exchanged, the sovereignty and jurisdiction of the United States permanently attached to Porto Rico, and the island became territory appertaining to the United States. The United States is in undisputed possession of the island, and therefore the military government of Porto Rico has ceased to occupy the place of the suspended or expelled sovereignty of Spain, and has become an instrument of the new sovereignty. It has become the representative of sovereignty, instead of a substitute. Since hostilities have ceased in Porto Rico, it follows that the military government is not authorized to adopt measures seeking to promote the success of military operations, nor to justify its action on that ground.

"As to Porto Rico the war has ended, and the purposes of the military operations therein have been accomplished; that is to say, a complete conquest has been effected and a peace secured. Therefore in that island the United States is no longer a belligerent, and it follows that the existing government therein no longer exercises its powers by virtue of belligerent right." 82

"The conditions existing in Cuba differ materially from those prevailing in Porto Rico, as do also the powers of the military government.

"The sovereignty of Spain has been withdrawn from Cuba, but the sovereignty of the United States has not attached thereto, and the sovereignty, declared by Congress to be possessed by the people of the island, remains dormant. Under these conditions the military government of Cuba continues to be a substitute for sovereignty, as though the question of sovereignty were still pending the outcome of a war. It appears to the writer that under this condition the military government of Cuba may exercise such powers of sovereignty as are necessary for the successful conduct of the internal af

32 Magoon, Law of Civil Government under Military Occupation,

fairs of government, subject to the restraints imposed by the ideas and theories of government prevailing under the sovereignty by which it was created and the orders of the superior officials and authorities of the sovereignty by which said military government is sustained." 33

Military control may be necessary in the time of an insurrection or other disturbance, when the ordinary operations of governmental organs are impossible.

"If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theater of active military operations, where war really prevails, there is necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and of society; and, as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war." 84

33 Id. p. 31.

84 Ex parte Milligan, 4 Wall. 2, 18 L. Ed. 281.

148. Persons whom a belligerent may kill, capture, or deprive of liberty for military reasons are entitled to be treated as prisoners of war.

In early times any inhabitant of a territory of the enemy might be made captive and be put to death. Gradually those of the inhabitants who from various reasons could not participate directly in the hostilities were made exempt. Toward the end of the fourteenth century publicists advocated a general recognition of exemption of children and old people. The stimulus to the capture of such persons was removed, so far as certain states were concerned, by agreements that such persons should not be the subject for ransom. To these exemptions on account of age, exemptions by reason of sex and of profession were added; and women, priests, and certain other persons engaged in professional work not related to the war were also included among those exempt from capture.1 Lieber says in 1863:

"22. Nevertheless, 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. 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.

1 Nys, Les Origines du Droit International, p. 237ff.