the seat of war or in a state of insurrection. It is a matter regulated entirely by constitutional law and as its effect is primarily domestic it has no connection with international law, except in case neutrals are injured by the suspension of constitutional guarantees, in which case international questions would arise, but extraneous to the present topic.

Military government exists when an army is in secure occupation of a portion of enemy territory. The law applied under military government, (to which the term martial law is also sometimes applied), bears a relation to martial law, but in reality the condition is somewhat different. In the latter case the persons affected are for the most part citizens; in the former they are foreigners. The law of military government, therefore, is a matter governed by international law. The occupying belligerent owes obligations to the inhabitants and they owe obligations to it, both of which are determined by international law. We are therefore concerned here with the law of military government which the United States requires of its armies.

Military law is the law regulating the conduct of the army. It consists of the rules defining the powers and liabilities of military officers and enlisted men and the means of enforcing them. It defines the constitution of military tribunals, such as courts martial, military commissions and commissions of inquiry, their jurisdiction and their procedure, as well as the rules of executive subordination and enforcement of discipline. In the United States, military law is found in statutes, army regulations, and instructions and opinions of courts, attorneys general and judge advocates general.3 Military law is not a part of international

2See Lieber's Instructions, art. 1-10. By applying the theory of de facto governments, that sovereignty passes immediately upon effectual occupation of the territory, the law of military governments fulfills our definition of marital law, for the occupied territory has become home territory. With this conception the law of military government would be a subject of constitutional rather than of international law. Because of the practical difference and because of the fact that military government is regarded as a temporary and not permanent transfer of sovereignty, it seems well to preserve the distinction.

3The statutory laws relating to the control of the army, annotated with references to court decisions, and official opinions, may be found in "The Military laws of the United States", 1901, ed. G. B. Davis, with supplement to 1911, ed. J. B. Porter. The "Digest of Opinions of the Judge Advocates General of the Army" published in 1912, C. R. Rowland, ed., also contains references to statutes, cases and opinions of attorneys general bearing on the various points. See also annual publication of Army Regulations and General Orders of the War Department.

law. The relationships it defines are entirely domestic. Yet it is of great importance for our present subject, for it is through the sanctions of military law that the army is compelled to obey the law of war. Much of it consists of laws supplementary to international law.

There has long been a discussion whether war is a relation between states or between armies. The latter view was eloquently espoused by Rousseau and apparently influenced the early statesmen of the United States. At any rate the policy they established, now a national tradition, that private property ought to be immune from capture in war, is in harmony with it. The present regime of universal conscription armies seems to nullify the theory, in Europe at least. In our view Rousseau's dicta is untenable. The relationship is one between two communities or states, not between two armies or two navies. Facts are sufficient justification for the assertion. It is, however, clear that though both are enemies a distinction exists between combatants and noncombatants. We may therefore consider successively the duties of the army to (1) combatants and (2) non-combatants.

(1) The duties of armed forces toward enemy combatants include such matters as the employment of only legitimate means of warfare, care of sick and wounded, treatment of prisoners of war and spies, observance of flags of truce, armistices, etc.

A number of early treaties prescribed humane treatment for prisoners of war. All of the subjects mentioned are regulated in detail in the Hague conventions of 1899 and 1907 relating to the laws of war on land and in the Geneva conventions of 1864 establishing the red cross flag and prescribing rules for the care of the sick and wounded. By its ratification of these treaties the United States has made them law for its armies. The same matters are covered by Francis Lieber's celebrated instructions for the government of the armies of the United States in the field, written during the Civil war. On April 24, 1863, these instructions were officially promulgated as a general order of the war department and are therefore binding law for the army. The in

J. J. Rousseau, The Social Contract, Translation by Tozer, London, 1909, p. 106. See discussion on this question, J. Westlake, Principles of International Law, Cambridge, 1894, p. 258; G. M. Ferrante, Private Property in Maritime War, Pol. Sci. Quar., 20; 706, (1895).

"Treaties, Algiers, 1816-1830, art. 17, p. 15; Prussia, 1785-1796, art. 24, p. 1484; 1799-1810, revived 1828, art. 24, p. 1494; Mexico, 1848, art. 22, p. 1118; Morocco, 1787-1836, art. 16, p. 1209, Tripoli, 1805-1911, art. 16, p. 1791.

structions give detailed regulations defining the limits permitted by necessity and by retaliation, the treatment of prisoners of war and spies, use of flags of truce, exchange of prisoners, and prohibited measures such as assassination.

The enforcement of these laws is largely in the hands of military commissions. Courts martial, being of statutory jurisdiction, can not take cognizance of many of these cases, as violations of the laws of war are not listed in the offenses specified in the articles of war. By statute courts martial are, however, given jurisdiction over the trial of spies, and over officers or soldiers injuring persons bringing provisions or other necessaries to the army while in "foreign parts". This jurisdiction extends to camp followers, retainers and militia in the service of the government, as well as the regular army and volunteers violating the articles of war. The imposition of criminal penalties upon violators is the means employed by both courts martial and military commissions for enforcing the law. It must not be lost sight of, however, that the control of the army is largely executive rather than legal. It is to the discretion of commanding officers that enforcement of the laws of war, whether unwritten, in treaties, or in orders, is left.10

(2) Non-combatants vary in legal rights somewhat according to circumstances. Thus non-combatants domiciled in the belligerent's own state, in territory under military government and in the actual zone of hostilities enjoy different immunities. The army does not affect the first class. Their treatment will be considered under the duties of the civil population.

"On authority and jurisdiction of courts martial and military commissions see Rev. Stat. sec. 1342-1343; Military Laws, 1911, p. 744, note I, P. 745; Dig. Op. Judge. Ad. Gen., 1912, p. 1067; Lieber's Instructions, art. 13.

7Rev. Stat. sec. 1343.

Articles of War, Rev. Stat., sec. 1342, art. 56, 63, 64. Courts martial may punish members of these classes for felonies in time of war, (art. 58) and soldiers for being found over a mile from camp without leave, (art. 34).

"Dig. Op. Judge Ad. Gen., 1912, pp. 510-511, 1071-1072.

10 By the Articles of War an officer must keep good order and "to the utmost of his power, redress all abuses and disorders which may be committed by an officer or soldier under his command, (art. 54) and officers guilty of conduct unbecoming an officer and a gentleman may be dismissed." (art. 61).

In the second case the United States has recognized the principles that such persons are immune from injury and their property from confiscation so long as they observe their duty of acquiescence to the occupying government. The duties of the army in this connection are prescribed in the Hague conventions and in Lieber's instructions. Special instructions to army officers are also usually issued providing rules for military government. It is a remarkable fact that during General Scott's occupation of parts of Mexico in 1846, he enforced the general rule of paying for requisitions and levying only contributions in lieu of taxes to pay for the civil administration of the territory, until he had received special instructions from Washington to adopt a harsher practice. It was thought that Mexico was continuing the war because the civil population was not feeling its hardship, consequently the instructions ordered him to support his army by uncompensated seizures. Very reluctantly he undertook this policy, which is contrary to modern international law and in his opinion at that time was inexpedient. Here was a case where the discretion of the general on the field was more efficient in enforcing the law of war than that of authorities higher up.11

The conduct toward non-combatants in the actual zone of hostilities is also provided for in the Hague conventions. A number of early treaties provided for the immunity of noncombatants in person and the payment for all requisitions.12 The Hague conventions besides covering these points forbid unnecessary injuries to non-combatants, the bombardment of undefended towns, and pillage. Similar matters are covered in Lieber's instructions. Special statutes and instructions, however, especially during the Civil war, have required a far harsher treatment.13 The treaties and instructions covering these points are law and enforceable through the exercise of penal jurisdiction by military commissions and through executive coercion. The preservation of the rights of non-combatants may also be enforced through laws providing for their indemnification for requisitions, after the war. This is provided for in the provi

11 Moore's Digest, 7;282-285.

12 Treaties with Prussia, 1785-1796, art. 23, p. 1414; 1799-1810, revived 1828, art. 23, p. 1444; Mexico, 1848, art. 22, p. 1117; Italy, 1871, art. 21, p. 975.

13 Confiscation act, July 17, 1862, 12 stat, 589. On confiscation of cotton and slaves during the Civil war see Moore's Digest 7;300-366. For orders during Mexican war see Moore's Digest 7;282-285.

sions of the Hague conventions and Lieber's instructions which require the giving of cash or receipts, good after the war for all requisitions. In the Civil war by the captured and abandoned property act15 the United States provided for the indemnification of non-combatants. A sum equal in value to all requisitions was to be deposited in the treasury and all persons were compensated from this fund if they could prove that they had taken no active part in the rebellion.

ACTS BY NAVAL FORCES.

The law governing the conduct of the naval authorities is contained in statutes, regulations, instructions, and the opinions of courts.16 Naval courts martial with jurisdiction over offenses against the statutory articles for the government of the navy are provided, but the enforcement of the law of naval warfare is largely intrusted to the discretion of commanding officers.

(1) The duties of the navy toward enemy combatants are specified in the Hague convention of 1907 and the Geneva conventions as applied to naval warfare adopted at the same time. In 1868 a treaty was signed extending the provisions of the Geneva convention to naval war. It was not generally ratified, although the United States did so in 1882. In 1898 the United States issued a circular stating that these additional articles would serve as a modus vivendi during the war with Spain, and in consequence the Navy Department issued a General Order requiring the observance of these regulations in the treatment of "The Solace", which had been fitted out as an ambulance ship. Besides incorporating the principles of the Geneva convention, the Hague convention of 1907 limits the use of submarine contact mines, and the bombardment of undefended coast towns. In Stockton's Naval War Code, in force from 1900 to 1904, and in instructions issued at the beginning of wars18 the limits of hostile acts against enemy public forces have been

17

14 Hague Conventions, 1907, v, art. 52; Lieber's Instructions, art. 38. 15 Act March 12, 1863, 12 stat. 820. See Moore's Digest, 7;295-300. 16 Articles for the government of the Navy, Rev. Stat. sec. 1624; Regulations for the Government of the Navy of the United States, 1913, containing also permanent instructions.

17 Additional articles to Geneva Convention, 1868, Modus Vivendi, 1898, General Order of Navy Dept., and Correspondence, Malloy, Treaties, P. 1907-1924.

18 Instructions to Blockading vessels and Cruisers, June 20, 1898, Gen. Ord. 492, For. Rel. 1898, p. 780.