Martial Law. 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 theatre 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 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.'

erative until the ratification and exchange of a treaty of peace. Such would be the case upon general principles in respect to war and peace between nations. In this instance it is recognized by the treaty itself. Cross vs. Harrison, 16 Howard, 190. The Constitution did not prohibit the creation by military authority of courts for the trial of civil causes during the civil war in conquered portions of the insurgent states. The establishment of such courts was the exercise of the ordinary rights of conquest.-Mechanics and Traders' Bank vs. Union Bank, 22 Wallace, 276.

1 Creasy, pp. 505-507; Finlason, p. 107; Pomeroy, Const. Law, pp.

475-480; I Kent, p. 178, note; I Cooley's Blackstone, p. 413, note; Luther vs. Borden, 7 Howard, 1, 45: Ex parte Milligan, 4 Wallace, 2.

Hall, pp. 469, 470; II Ferguson, §§ 187, 269; Risley, pp. 135–139; Snow, pp. 109-113; Creasy, pp. 505-507; Instructions to Armies of the United States, etc., pars. 113. Martial law is the law of military necessity in the actual presence of war. It is administered by the general of the army, and is in fact his will. Of necessity it is arbitrary, but it must be obeyed. United States vs. Diekelman, 92 U. S. 526. A merchant vessel of one country visiting, for the purpose of trade, a port of another

If his occupation be temporary, amounting to a mere passage through a portion of the enemy's territory, he may decline to interfere in local affairs, further than to make such transient dispositions as will protect non-combatants and their property along his line of march. If he occupies a district for a considerable period of time his responsibility becomes more general, and the performance of his duty more intricate and difficult. To deduce a rule that shall control a general commanding in an enemy's country, his position and duty must be clearly understood. He appears in the occupied territory as an agent of his government, charged with conduct of certain military operations. His first responsibility is to his own government, for the successful conduct of the military operations with the direction of which he is charged. In carrying on those operations his government and himself are bound by the laws of war. The usages of war authorize him to employ certain forcible measures towards his enemy. They forbid indiscriminate violence, the use of excessive force, or the use of any force which does not contribute directly to the end for which the war is undertaken. His exercise of authority in the occupied territory must, therefore, be the least possible, consistent with these ends. He may suspend the constitution and municipal laws, but he cannot change them, because such changes in no way contribute to the prosecution of the war. He can impose no unusual or unauthorized burdens upon persons and property, because the laws of war require him to protect them.'

If the territory is to be occupied for a considerable time, but without the intention, on the part of the invader, of permanently incorporating it in his own dominions, it is usual to permit the local laws to prevail, and to sanction their enforcement by the existing courts and other legal agencies. Crimes of special atrocity, offences against the laws of war, and crimes

where martial law has been established, under belligerent right, subjects herself to that law while she is in such port.—Ibid.

1 Hall, pp. 469-478; II Halleck, pp. 446-477; Risley, pp. 134-140; Creasy, pp. 504-510.

over which neither the local nor military courts have jurisdiction, are tried and punished by military commissions, or other special tribunals, constituted for the purpose by the commanding general. The existence of these tribunals is recognized by the laws of war as a necessity of martial rule.'

Indefinite Occupation. When territory comes into the temporary possession of a state, as a result of war, and its ultimate disposition is to be subsequently determined, the state into whose temporary possession it passes becomes vested with full rights of sovereignty, in so far as foreign states and its former sovereign are concerned, from the date of the occupation, which is confirmed by the treaty of peace. In respect to the occupied territory, however, the new sovereign occupies, in most respects, the status of a trustee. If his duties are not defined by the treaty of peace they are determined by the circumstances of the case; and he administers the affairs of the territory in the interest of its inhabitants until the question of its ultimate disposition has been lawfully determined. While all governmental authority, legislative and judicial, as well as executive, vests in the new sovereign, such authority must be exercised with constant reference to its transient and temporary character. "He is therefore forbidden, as a general rule, to vary or suspend laws affecting property and private personal relations, or which regulate the moral order of the community. Commonly, also, he has not the right to interfere with the public exercise of religion, or to restrict expression of opinion upon matters not directly touching his rule."a

Permanent Occupation. The rules which have been discussed refer to cases of temporary or indefinite occupation.

1 II Halleck, pp. 452-454:

Hall, § 155; Bluntschli, §§ 539 540; Creasy, p. 507; Proclamation, of Count Bismarck - Bohlen to inhabitants of Alsace, August 30, 1871, D'Angeberg, No. 371; Dana's Wheaton, § 347, note 169; Risley, p. 137; II Halleck, pp. 450-451; I Wildman, pp. 162-164. The capture and

occupation of Tampico by the arms of the United States during the war with Mexico, though sufficient to cause it to be regarded by other nations as part of our territory, did not make it a part of the United States under our Constitution and laws. Fleming vs. Page, 9 Howard, 603.

When a conquest is to be made permanent, as when territory is acquired by conquest, or a province is recovered by the state to which it originally belonged, a belligerent is justified in making such permanent political changes as he may deem expedient or necessary.

In so far as the property rights of individuals are concerned, however, "it is very unusual, even in cases of conquest, for the conqueror to do more than to displace the sovereign and assume dominion over the country. The modern usage of nations, which has become law, would be violated; that sense of justice and of right which is acknowledged and felt by the whole civilized world would be outraged, if private property should be generally confiscated, and private rights annulled. The people change their allegiance; their relation to their ancient sovereign is dissolved; but their relations to each other, and their rights of property, remain undisturbed."'

THE INTERCOURSE OF BELLIGERENTS IN WAR

Necessity and Sanction. Although the rule of non-intercourse between belligerent states prevails with great strictness during the existence of war between them, it would be impossible even for hostilities to be carried on, if all intercourse, irrespective of its character and purpose, were to be absolutely prohibited. International law recognizes this necessity, and deduces from the usages of nations in war the rules governing such intercourse, the conditions upon which it is based, and the formalities with which it shall begin and end. Such intercourse, to be lawful, must have some direct connection with the existing state of war, or must be carried on with a view to the re-establishment of friendly relations.

'U. S. vs. Percheman, 7 Peters, 51, 86; III Phillimore, §§ 539-544, 579-596; I Dig. Int. Law, §§ 3-5; II Ibid. § 187, III Ibid. § 354; IV Calvo, §§ 2453-2490; Bluntschli, §§ 289, 576, 715, 733; II Guelle, pp. 251-258; II Ferguson, § 309; Lawrence, Int. Law, §239; United States vs. Repentigny, 5 Wallace, 211;

Strother vs. Lucas, 12 Peters, 410; Mitchell vs. United States, 9 Ibid. 711; More vs. Steinbach, 127 U.S. 70; Leitensdorfer vs. Webb, 20 Howard, 176; United States vs. Huckabee, 16 Wallace, 414; vol. iii. Revue de Droit International, pp. 531-539; iv. Ibid. 622; v. Ibid. 69121, 252-254, 531-539.

Flags of Truce. Communication between belligerents in the field is established by means of flags of truce. They are sent towards the enemy's lines habitually during an interval of active operations. In case of extreme urgency they may be sent during an engagement. Though each party has a right to send them, there is no corresponding obligation on the part of the enemy to receive them, though it is usual to do so save in very exceptional cases. After due notification has been given they may be warned away; and, after a reasonable time has been given to allow them to withdraw, they may be fired upon. An officer coming under a flag of truce has no right to enter the enemy's lines, nor can he demand that he be conducted into the presence of the commanding general. As a matter of strict right he cannot expect to pass the outposts of the hostile army. His message, if written, may there bet transferred to the officer receiving him, or, if verbal, the belligerent may demand that it be reduced to writing, or that it be delivered orally to such person as the commanding general may designate to receive it.

If permitted to pass the outposts he may be blindfolded, or resort may be had to such other means as will prevent him from obtaining information. While the officer accompanying a flag may see whatever the enemy permits him to see, while in that enemy's lines under a flag of truce, and the bearer of a bona fide message, the rules of war justly forbid the sending of flags of truce with a view of obtaining information, either directly or indirectly. The present rule of war regards the use of flags for the purpose of obtaining information as illegal and dishonorable, subjecting the bearer to punishment as a spy.'

Safe-conducts and Safeguards. A safe-conduct is a pass given to an enemy subject by the general commanding an army in the field. It authorizes the bearer to pass from one specified point to another, by a specified route, and within

'II Halleck, p. 342; Risley, pp. 96, 97; Boyd's Wheaton, § 4111; 152, 155; Hall, p. 540; Snow, pp. III Phillimore, p. 184.