« iepriekšējāTurpināt »
opinions of attorneys general and judge advocates general form the body of military law.
Military law is enforced by executive action, 19 as in the power of promotion, demotion and discharge exercisable by superior military officers; by courts martial,20 whose jurisdiction is defined by statute and extends only over statutory military offences, most of which are included in the Articles of War:21 and by military commissions.22 Military commissions administer military law by a procedure similar to courts martial, but they are not limited to the punishment of statutory offenses. They may take cognizance of acts contrary to the unwritten law of war or to military regulations.
The jurisdiction of both courts martial and military commissions is of an exclusively criminal character.23 They decree punishments but do not award damages or reparation of any kind. Their jurisdiction, however, is not territorial.24 It extends over offenses committed in foreign countries.
The statutory provisions, known as the Articles of War, 25 largely prescribe duties of enlisted men and officers26 in relation to their military superiors and the performance of their military duties. Their aim is to enforce discipline in the army and they contain little matter referring to the law of war. Courts martial, being limited in jurisdiction to these offenses, cannot take cognizance of breaches of the unwritten law of war, including breaches of the army's obligations to neutral states and persons. The enforcement of these matters is in the hands of military commissions and their jurisdiction in time of war extends to
19 Military Laws, 1911, p. 5, note 2.
21 Rev. Stat., sec. 1342-1343; Military Laws, 1911, pp. 962-1026. For historical account of development of articles of war; Military laws, 1911, p. 962.
22 For history of development of military commissions see Dig. of Op. of Judge Ad. Gen. 1912, p. 1067. Use during Civil War, Ibid. p. 1071. Authority of, see Rev. Stat. 1343. Military Laws, 1911, p. 744, note 1, p. 745; Lieber's Instructions, art. 13, Military Laws, 1911, p. 1076; Dig. Op. Judge Ad. Gen., 1912, pp. 1067-1072.
23 Dig. Op. Judge Ad. Gen., 1912, pp. 510, 1072.
26 An exception may be noted in the jurisdiction given to courts martial over enemy spies, Rev. Stat. sec. 1343, Military Laws, 1911, p. 1026.
offenses committed by enlisted men or officers, civilians or enemies, contrary to military law or the law of war.?
It is therefore by executive action and the adjudication of military commissions that the duties of the army toward neutrals are enforced. The provisions of the treaties mentioned, and the general requirements of international law, as well as the rules specified in army regulations and instructions may be enforced by these authorities.
ACTS BY NAVAL FORCES
The naval forces of a belligerent are much more likely to infringe the rights of neutral states than land forces. With them therefore the duty of preventing such infractions has received more attention in the municipal law of the United States.
(1) By the Hague conventions the United States has recognized the obligation to prevent its naval forces violating neutral territory by committing hostilities or setting up prize courts in neutral waters, using neutral territory as a base of operations or violating the usual rules of asylum.
As in the case of the army the action of naval commanders is largely regulated by executive control. There are, however, statutes dealing with the navy. The “Articles for the Government of the Navy of the United States'29 specify certain acts as crimes and subject to the jurisdiction of courts martial. The only authority capable of inflicting punishment in the navy is commanders, 30 for minor offenses, and for more serious offenses, summary and general courts martial.31 There are no courts in the navy similar to military commissions.
27 On the distinction between the jurisdiction of military commissions and courts martial, see Lieber's Instructions, art. 13, Military Laws, 1911, P. 1076.
28 Hague Conventions, 1907, xiii, art. 1, 4, 5, 12, 15-23. In thirtytwo treaties with twenty-five countries the United States has been given the right of asylum for its war vessels in neutral ports, when necessary through “stress of weather, pursuit of pirates or enemies." The following are now in force: Bolivia, 1858, art. 9, Malloy, p. 117; Prussia, 17991810, revived 1828, art. 18, 19, p. 1492; Sweden, 1783-1798, revived 1816, 1827, art. 21, p. 1732. Such action does not constitute a violation of neutral territory even in the absence of treaty. Moore's Digest, 7;982-985.
20 Rev. Stat. sec. 1624; Navy Regulations 1913, p. 15.
In addition to statutory provisions, the navy is governed by bodies of rules known as navy regulations and naval instructions which are promulgated by the president and have the force of law until repealed.32
No statutory provisions deal with violations of neutral territory, but regulations and instructions, 33 since the Revolutionary war, have enjoined officers to respect neutral rights and especially to refrain from hostilities in neutral territory. Thus by the Navy Regulations of 1913 commanders in chief are to
'scrupulously respect the territorial authority of foreign civilized nations in amity with the United States.
(2) The duty of preventing its naval forces injuring neutral individuals involves largely restraints which such forces are bound to observe in exercising the belligerent right of seizing neutral prizes on the high seas. The law applied by courts in enforcing the government's duty to abstain from illegally confiscating neutral prizes has been considered. Here we will consider the methods by which naval forces are prevented from making such seizures, or otherwise injuring neutral persons.
It must be observed that the acts prohibited in performing these duties of prevention and abstention are not exactly the same. The belligerent must prevent a prima facie unjustifiable seizure, but even when the seizure is justifiable the government may be bound to abstain from confiscating the prize. Thus it
32 Regulations for the government of the Navy of the United States, Washington, 1913, under authority of Rev. Stat., sec. 1547.
33 Naval Instructions, Apr. 3, 1776, Apr. 7, 1781, (Journ. Cong., Ford, ed., 4;253, 19;361); Aug. 28, 1812, (2 Wheat. App. 80, Moore's Digest, 7;545. Authority for the issuance of these orders was given in the prize act of 1812, 2 stat. 760, sec. 8. They were upheld in the Thomas Gibbons, 8 Cranch 421, (1814), but in the Mary and Susan, 1 Wheat. 46, 57, (1816) it was held that the captor must be notified of the order before his right to prize money from vessels, captured contrary to them, would be affected); May 14, 1846, (Br. and For. St. Pap., 34;1139, Moore's Digest, 7;828); Dec. 24, 1846, (Moore's Digest, 7;790); Nov. 6, 1861; May 14, 1862, (Upton, op. cit. p. 490); Aug. 18, 1862, (Official Records, Union and Confederate Navies, Ser. 1, 1;417, Moore's Digest, 7;700); June 20, 1898, (Gen. Ord., Navy Dept., 1898, No. 492, For. Rel., 1898, p. 780); Jan. 27, 1900, (Gen. Ord., Navy Dept., 1900, No. 551, revoked, Ibid., Feb. 4, 1904. No. 150); Navy Regulations, 1913, sec. 1645, 1647.
34 Navy Regulations, 1913, sec. 1645. Naval commanders are allowed some discretion under these rules. See note at head of chapter 15, Navy Regulations, 1913, p. 1599.
frequently happens that a naval officer will be held completely justified in making a seizure even though the prize after adjudication is restored to the neutral owner.
It might be supposed that the means adopted to prevent illegal seizure of neutral property at sea would be a matter of purely national concern and would not be specified by international law. This is not the case. The exercise of belligerent rights over neutral commerce is so important and so subject to abuse that international law has to some extent specified the exact means which a state must provide for carrying out this obligation. Thus, it forbids captures by privateers, requires certain specified formalities of visit and search, and demands adjudication of the prize by a court acting in the usual form of judicial bodies. The belligerent state is of course at liberty to enact supplementary laws better to fulfill its duties under this head. Among such acts in force in the United States may be mentioned the statutes abolishing prize money, and those affixing criminal penalties for the spoliation of prizes. Before the abolition of privateering the requirement of bonds from privateers and the enforcement of liability against the owners of privateers were rules of this character. The abolition of privateering and the attempted abolition of prize money at the Second Hague conference are illustrations of the tendency of international law to enter more and more this field, formerly left to the discretion of states.
The United States has taken measures to prevent the illegal seizure of prizes by restricting the classes of vessels which may make seizures, by prescribing rules for visit and search of neutral vessels, and by affixing penalties for making unjustifiable seizures. An improper treatment of prizes and their crews is also prevented by municipal law. Definite rules for the conduct of prizes have been prescribed. Criminal penalties enforceable by court martial proceedings against persons in the navy violating these rules, as well as liability to civil suit for damages, add sanctions to their enforcement. Adjudication of prizes has also been provided for by the establishment of courts of prize jurisdiction. These matters will be considered in greater detail in the following sections dealing with the seizure of prizes, the care and treatment of prizes and the adjudication of prizes.
35 The Marianna Flora, 11 Wheat. I, (1826).
SEIZURE OF PRIZES The United States has authorized seizures during war by three varieties of vessels, (1) privateers, (2) converted merchantment, (3) vessels of the navy.
(1) The use of privateers or private armed vessels in war was prohibited by the Declaration of Paris of 1856. The United States has not acceded to this declaration,36 but refrained from using privateers during the Civil war,37 and by proclamation at the outbreak of the Spanish war of 1898 disclaimed intention to use them during that war.38 Privateers have not been extensively used since 1856 and it may safely be said that their use is now forbidden by international law.
The United States made free use of privateers in the Revolutionary war and the War of 1812. On these occasions efforts were made to prevent illegal seizures through rules of municipal law expressed in treaties, statutes, naval instructions and court decisions. Privateers were provided with commissions or letters of marque accompanied by special instructions stating the scope and limits of their right to seize property.30 These commissions 36The United States did not accede to the Declaration of Paris be
ot having a navy it considered this type of naval militia necessary until the right to capture private property at sea should be abolished altogether. This complete exemption has been a tradition of American policy since earliest times. In a treaty with Bolivia, of 1858, it was reciprocally agreed to give asylum to privateers until the two parties should relinquish their use, “in consideration of the general relinquishment of the right of capture of private property upon the high seas,” art. 9, Mal. loy, p. 117.
370n proposals to issue letters of marque during the Civil War and reasons for not doing so, see Moore's Digest, 7;556. An act of March 3, 1863, 12 stat. 758, gave the president authority to issue letters of marque.
38 Proclamation, Apr. 26, 1898, 30 stat. 1770; Moore's Digest, 7;541.
39 Privateers were authorized by a resolution of the Continental congress, March 23, 1776. On April 2 and 3, forms of commission were adopted to be sent in blank to the colonies. About 1700 letters of marque were issued during the Revolutionary war. See Allen, Naval History of the American Revolution, 1;451 ; 2;701. During the War of 1812, privateers were of great importance. In the Civil war the Confederate states issued letters of marque and an act of Mch. 3, 1863, authorized their issuance by the federal government. Regulations and instructions were drawn up on Mch. 20, 1863, but as a matter of policy no commissions were issued. See Moore's Digest, 7;556. See Resolutions of Congress, Mch. 23, 1776, Instructions Apr. 3, 1776, Apr. 17, 181, (Journ. Cong., Ford, ed., 4:230, 253, 19:361); Instructions, Aug. 28, 1812, (2 Wheat. App. 80) (Moore's Digest, 7;544). On necessity of carrying commissions see Upton, op. cit. p. 177.