GENERAL PRINCIPLES.

10. The object of war. The object of war is to bring about the complete submission of the enemy as soon as possible by means of regulated violence.1

1 G. O. 100, 1863, art. 20. "Public war is a state of armed hostility between sovereign nations or governments. It is a law and requisite of civilized existence that men live in political, continuous societies, forming organized units called States or nations, whose constituents bear, enjoy, and suffer, advance and retrograde together, in peace and in

war,

Von Moltke said: "The greatest kindness in war is to bring it to a speedy conclusion. It should be allowable, with that view, to employ all methods save those which are absolutely objectionable. I can by no means profess agreement with the Declaration of St. Petersburg, when it asserts that the weakening of the military forces of the enemy is the only lawful procedure in war. No; you must attack all the resources of the enemy's government-its finances, its railways, its stores, and even its prestige." Letter to Professor Bluntschli, Dec, 11, 1880, cited Holland, War on Land, p. 12.

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11. Military necessity.-Military necessity justifies a resort to all the measures which are indispensable for securing this object and which are not forbidden by the modern laws and customs of war..

12. What military necessity admits of.-Military necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contests of war; it allows of the capturing of every armed enemy, and of every enemy of importance to the hostile government, or of peculiar danger to the captor; it allows of all destruction of property, and obstruction of ways and channels of traffic, travel, or communication, and of all withholding of sustenance or means of life from the enemy; of the appropriation of whatever the enemy's country affords that is necessary for the subsistence and safety of the army, and of such deception as does not involve the breaking of good faith, either positively pledged, regarding agreements entered into during the war, or supposed by the modern law of war to exist." 1 G. O. 100, 1863, art. 15.

13. What military necessity does not admit of.-Military necessity does not admit of cruelty-that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions. It does not admit of the use of poison in any way, nor of the wanton devastation of a district. It admits of deception, but disclaims acts of perfidy; and, in general, military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult.1

1 G. O. 100, 1863, art. 16.

14. Martial law. Martial law is simply military authority exercised in accordance with the laws and usages of war.1

1 G. O. 100, 1863, art. 4.

In the case of ex parte Milligan (4 Wall., 2), Chief Justice Chase, in a dissenting opinion, which did not affect the merits of the case under consideration, drew a distinction in military jurisdiction as follows: There are under the Constitution three kinds of military jurisdiction-one to be exercised in both peace and war; another to be exercised in time of foreign war without the boundaries of the United States, or in time of rebellion or civil war within States or districts occupied by rebels treated as belligerents; and, third, to be exercised in time of invasion or insurrection within the limits of the United States, or during rebellion within the limits of States maintaining adhesion to the National Government, when the public danger requires its exercise. The first of these may be called jurisdiction under military law, and is found in acts of Congress prescribing rules and articles of war, or otherwise providing for the government of the national forces; the second may be distinguished as military government, superseding, as far as may be deemed expedient, the local law, and exercised by the military commander under the direction of the President, with the express or implied sanction of Congress; while the third may be denominated martial law proper, and is called into action by Congress, or temporarily, when the action of Congress can not be invited, and in the case of justifying or excusing peril, by the President, in times of insurrection or invasion, or of civil or foreign war, within districts or localities where ordinary law no longer adequately secures public safety and private rights." This distinction has never since been sustained by the Supreme Court, although military writers have made use of the term "military government" to designate the jurisdiction exercised over enemy territory by the military, regarding enemy territory' to include that of a foreign state and also that part of the belligerent state that has been accorded recognition of belligerency, and "martial law" to designate the jurisdiction exercised by the military power over parts of the dominant state that is in rebellion or insurrection without being recognized as belligerents, or, in a word, treating "martial law " as a domestic fact. (Vide Military government and Martial law, Birkhimer, p. 21, 2d ed.)

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The term martial law" as defined in the text conforms with that given in Great Britain, where the same distinction is made between "military law," "martial law," and "martial law in the home territory." (Vide Law of War on Land, Holland. pp. 14-17; vide also Jour. Mil. Ser. Inst., Vol. XV, article by Carbaugh.)

15. Extends to property and persons.-Martial law extends to property and to all persons in the occupied territory, whether they are subjects of the enemy or aliens to that government.1

1 G. O. 100, 1863, art. 7. Vide also infra Chaps. VIII and IX. 16. Military jurisdiction.—Military jurisdiction is of two kinds: First, that which is conferred and defined by statute; second, that which is derived from the common law of war. Military offenses under the statute law must be tried in the manner therein directed, but military offenses which do not come within the statute must be tried and punished under the common law of war. The character of the courts which exercise these jurisdictions depends upon the local laws of each particular country. In the armies of the United States the first is exercised by courts-martial, while cases which do not come within the Rules and Articles of War, or the jurisdiction con

ferred by statute on courts-martial, are tried by military commissions.1

1 Vide Justification of Martial Law, by G. Norman Lieber, p. 3, who says:

"Military jurisdiction is of four kinds, viz:

"1. Military law, which is the legal system that regulates the government of the military establishment. Military law is a branch of municipal law, and in the United States derives its existence from special constitutional grants.

2. The law of hostile occupation, or military government, as it is sometimes called; that is, military power exercised by a belligerent over the inhabitants and property of an enemy's territory, occupied by him. This belongs to the law of war, and, therefore, to the law of na

tions.

"3. Martial law applied to the army; that is, military power extended in time of war, insurrection, or rebellion over persons in the military service, as to obligations arising out of such emergency, and not falling within the domain of military law, nor otherwise regulated by law. It is an application of the doctrine of necessity, founded on the right of national self-preservation.

4. Martial law at home, or as a domestic fact; by which is meant military power exercised in time of war, insurrection, or rebellion, in parts of the country retaining allegiance, and over persons and things not ordinarily subjected to it."

17. In cases of individual offenders.-Whenever feasible, martial law is carried out in cases of individual offenders by military courts; but sentences of death shall be executed only with the approval of the Chief Executive, provided the urgency of the case does not require a speedier execution, and then only with the approval of the commander of the occupying forces.1 1 G. O. 100, 1863, art. 12.

18. Cruelty, bad faith, extortion, revenge, etc., prohibited.The law of war not only disclaims all cruelty and bad faith concerning engagements concluded with the enemy during the war, but also the breaking of treaty obligations entered into by belligerents in time of peace and avowedly intended to remain in force in case of war between the contracting powers. It disclaims all extortion and other transactions for individual gain; all acts of private revenge, or connivance at such acts. Offenses to the contrary shall be severely punished, and especially so if committed by officers.1

1 G. O. 100, 1863, art. 11.

19. Declaration of war required.-H. Con. III, Art. 1. The contracting parties recognize that hostilities between themselves must not commence without previous and explicit warning in the form either of a reasoned declaration of war or of an ultimatum accompanied by a conditional declaration of war.1

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1 The framers of the Hague Rules were agreed to one rule, namely, that "an attack which nothing foreshadowed would be infamous." gross violation of international law would be committed by the commencement of hostilities in time of peace without a previous controversy and negotiations with a view to a peaceful settlement. (Vide Hague Peace Conferences, Higgins, p. 203.)

20. Surprise still possible.-Nothing in the foregoing rule requires that any time shall elapse between the actual declaration of war and the commencement of hostilities. It is still possible, therefore, to make a sudden and unexpected declaration of war and thus surprise an unprepared enemy.1

1The French proposal to The Hague Peace Conference of 1907, based substantially on resolutions of the Inst. Int. Law at Ghent in September, 1906, consisted of three articles, The first two were embodied substantially as in the text above, while the third, Hostilities should not begin till after the expiry of a delay sufficient to insure that the rule of previous and unequivocal notice may not be considered as evaded," was rejected.

The ex

21. Notification to neutrals.-H. Con. III, Art. II, istence of a state of war must be notified to the neutral powers without delay, but shall not take effect in regard to them until after the receipt of a notification, which may, however, be given by telegraph. Neutral powers, nevertheless, can not rely on the absence of notification if it is clearly established that they were in fact aware of the existence of a state of war.1

1 See Chap. XI on "The rights and duties of neutral powers," infra, p. 135, par. 389.

22. It is binding between parties.-H. Con. III, Art. III. Article I of the present convention shall take effect in case of war between two or more of the contracting powers. Article II is binding as between a belligerent power which is a party to the convention and neutral powers which are also parties to the convention.

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23. Importance, both legal and commercial. This convention is important from both the legal and commercial point of view since it requires belligerents themselves to publicly announce a definite date for the commencement of hostilities, from which date they become entitled to exercise the rights of belligerency, and are themselves required to comply with and to exact from neutrals the obligations of neutrality.

TREATMENT OF RESIDENT ENEMY SUBJECTS.

24. Legal status.-" Public war is a state of armed hostility between sovereign nations or governments." 1 So that the first effect of war between two states is to cause every subject of the one to become an enemy of every subject of the other, since it is impossible to sever the subjects from their state."

1 G. O. 100, 1863, art. 20.

2 G. O. 100, 1863, art. 21. "The citizen or native of a hostile country is thus an enemy, as one of the constituents of the hostile state or nation, and as such is subjected to the hardships of the war.' The foregoing is both the American and English view. (Vide Land Warfare, Opp., p. 15.)..

25. Right of control.-Every belligerent state possesses the inherent right to take such steps as it may deem necessary for the control of all persons whose conduct or presence appears dangerous to its safety. In strict law enemy subjects located or resident in hostile territory may be detained, interned in designated localities, or expelled from the country."

1 Int. Law Dig. Moore, sec. 1116. "Various measures have been adopted by governments in relation to alien enemies residing within their territory. Such persons may, says Rivier, be detained, especially those subject to military service; or they may be interned in determinate. places, or yet may be expelled, a brief delay being allowed them to settle up their affairs. But such measures, although justified by the right of self-preservation, are less and less practiced, and are often criticized as not being in harmony with the spirit of modern war.'

2 Act July 6, 1798; 1 Stat., 577; R. S., sec. 4067. Whenever there is a declared war between, the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government, and the President makes public proclamation of the event, all male natives, citizens, denizens, or subjects of the hostile nation or government, who are 14 years old and upward, and who are not actually naturalized, may be liable for re moval as allen enemies; and the President is authorized to direct the conduct to be observed, on the part of the United States toward aliens who are liable to removal, the manner and degree of restraint to which they may be subjected, and the security upon which their residence may be permitted." Sec. 4069: The courts of the United States having criminal jurisdiction are authorized to enforce such proclamations,

The President need not call in the judiciary to enforce these provisions. (Lockington v. Smith, Pet. C. C., 466.)

The Government may prescribe the conditions under which its executive officers are to deal with its alien enemies." (C. & O. R. R. v. U. S., 20, C. Cls., 49,) 0716

26. Modern practice as to status. It is now universally recognized that hostilities are restricted to the armed forces of bel