were not punished by the belligerent they would go unpunished, a most undesirable event from every point of view. Crimes, at such a time, are of more frequent occurrence, and are usually of greater enormity, than during a state of peace. The ordinary restraints of law are removed or suspended, and the criminal class soon asserts itself as it finds that opportunity, temptation, and apparent immunity go hand in hand.' The very presence of a hostile force upon the soil of a country seems to breed a special criminal class. This class is recruited by deserters from both armies, who, operating singly or in small bands, commit depredations of all kinds, accompanying their criminal acts with the most barbarous atrocities. It is to the suppression of this kind of brigandage that every belligerent finds himself obliged to devote considerable time and attention, and, not infrequently, a large amount of military force. No repressive measures are too severe which effect any reduction in this kind of crime. The criminals themselves are outlaws, beyond the protection of all law, civil or martial, and may be hunted down like wild beasts."

Collective Responsibility of Communities for Acts of Individuals. Where offences against the laws of war are committed by residents of a particular locality, under such circumstances as to render the detection of the individual offenders difficult or impossible, the town, district, or other organized community, in which the offences are being committed, may be held collectively responsible for their commission; in this way making the community responsible for the misdeeds of its individual members. To justify a resort to

'Instances have occurred in which prisons and jails have been emptied upon the approach of an invading army.

2

Hall, pp. 413-416; III Phill. p. 156; Instructions for the Armies of the U.S. par. 44. Such offences, when committed in the theatre of operations of an army of the United States, in time of war, are, by the terms of the 58th Article of War, made triable by a general court

martial, subject, however, to the requirement that "the punishment in any such case shall not be less than the punishment provided, for the like offence, by the laws of the state. territory, or district in which such offence may have been committed."

58th Article of War, § 1342 Revised Statutes of the United States. 'Paragraphs 44, 84, American Instructions; Bluntschli, §§ 641-643; II Halleck, pp. 113, 114.

this procedure, however, the local authorities must be in a position to act, by way of prevention, and the unlawful acts alleged to have been committed must be within the power of such authority to control, by an exercise of reasonable diligence, in respect to the measures of prevention resorted to with a view to the prevention or repression of the conduct complained of.' The methods resorted to in dealing with such a community will depend upon the circumstances of the particular case. Privileges may be withheld, individual rights may be suspended, or denied, trade may be curtailed, or subjected to unusual impositions, punitive damages may be assessed and collected, or hostages may be taken as security for the good behavior of the inhabitants of the disturbed district.

Retaliation. In the cases already described, the offence has been committed by an individual, or by a number of individuals, acting singly, or as conspirators, or joint offenders; and the observance of the laws of war is secured by the punishment of the particular offenders by the reference of their cases to an appropriate military tribunal. It happens not infrequently, however, that the real offender is, not the individual, but the government of the belligerent state, or the commanding general of its armies in a particular theatre of military operations; and the offence consists in the violation of a particular rule of war by the troops under such general's command, or in a failure on his part to conduct certain military operations in accordance with the rules of war as understood and applied by the general usage of nations. In such cases, as it is obviously impossible to apprehend, try, and punish either the offending government, or its military commander in the field, they are effectively coerced into obedience to the rules of war by an application of a principle, presently to be described, called retaliation.

As the laws of war are equally obligatory upon the belligerent states and their allies, and upon the generals who control

'Hall, pp. 413-415; II Halleck, p. 109; Dana's Wheaton, §§ 347349; VII Pradier-Fodéré, §§ 2982

2989; Bluntschli, § 643 bis; Lawrence, Int. Law, pp. 377, 378; III F. De Martens, § 119.

and direct their military operations in the field, it follows that the duty of observing those laws is reciprocal, and bears equally upon both belligerents. If either of them violates a rule of war, or fails to conduct his operations in strict accordance with the accepted usages of civilized warfare, he cannot complain of similar conduct on the part of his enemy; on the contrary, he must expect it. The power of compelling an enemy to observe the rules of war, or to refrain from violating any particular one of them, is called the right of retaliation. A general who suffers a wrong at the hands of an enemy, or who finds that his enemy has violated any of the accepted usages of war, addresses him a communication setting forth the facts which constitute his ground of complaint. If no explanation or apology is attempted, or if the enemy assumes the responsibility of the act, he is justified in resorting to measures of retaliation. In choosing a means of retaliation, revenge cannot enter into the consideration or decision of the question. His sole purpose must be to constrain his adversary to discontinue the irregular acts complained of. Unless the enemy's act be in gross violation of the dictates of humanity, he must retaliate by resorting to the same or similar acts in his military operations. States which find themselves compelled in time of peace to resort to retorsion, as a means of obtaining justice, are permitted to make use of equivalent wrongs. Generals who are obliged to have recourse to retaliatory measures, however, must confine themselves to the same or similar acts. This because of the difficulty of balancing wrongs, and because the enemy, not appreciating the justice of the remedy adopted, may feel himself justified in still further departing from the accepted usages, and may ultimately decline to be bound by any of the rules of civilized warfare.'

'Hall, § 135; Boyd's Wheaton, $347; Snow, p. 97; Woolsey, § 132; II Ferguson, § 196; Risley, p. 126; Creasy, p. 401; III Phillimore, p. 156; Bluntschli, § 567; Walker, Science of Int. Law, p. 349; Vattel,

liv. iii. chap. viii. § 141; liv. iv. chap. vii. § 102.

2

Woolsey, § 132; Risley, p. 126; Field, International Code, §§ 758, 759.

The law of war can no more

MILITARY OCCUPATION

Temporary Occupation. When an invading force has taken secure possession of a portion of the territory of the enemy, such territory is said to be occupied, and the invader is permitted to exercise there all the rights of military occupation. The former sovereign has been displaced by an application of military force, but the allegiance of the inhabitants to their former government, although displaced, or suspended, by the existence of war and the fact of hostile occupation, has not been destroyed. Their obedience to the authority of the invader is constrained and involuntary, and can be retained by him only so long as the occupying force is maintained at such strength, throughout the extent of the occupied territory, as to effectively compel such obedience.'

History of the Different Views of Occupation. The theory of the Roman law, upon the subject of occupation, was that territory, or other property, lost by the state or by a Roman citizen, as a result of war, became the property of a captor who was sufficiently powerful to occupy and retain it; it also provided that, during such transient occupancy, all the rights of sovereignty and ownership were vested, for the time, in the owner or captor. The allegiance of the inhabitants to their former sovereign was legally dissolved and was, by the

wholly dispense with retaliation than can the law of nations, of which it is a branch. Yet civilized nations acknowledge retaliation as the sternest feature of war. A reckless enemy often leaves to his opponent no other means of securing himself against the repetition of barbarous outrage.-Par. 27 Inst. for Armies of the U. S. Retaliation will, therefore, never be resorted to as a measure of mere revenge, but only as a means of protective retribution, and, moreover, cautiously and unavoidably; that is to say, retaliation shall only be resorted to after careful inquiry into

the real occurrence, and the character of the misdeeds that may demand retribution. Unjust or inconsiderate retaliation removes the belligerents fartherand farther from the mitigating rules of a regular war, and by rapid steps leads them nearer to the internecine wars of savages. Par. 28 Ibid.

'Boyd's Wheaton, § 346c; U. S. vs. Percheman, 7 Peters, 86, 87; Leitendorfer vs. Webb, 20 Howard, 176; U. S. vs. Moreno, 1 Wallace, 400; II Halleck, pp. 462-465; Risley, pp. 135-139; Hall, pp. 462, 463; Creasy, pp. 496, 497.

very fact of such hostile occupation, transferred to the new sovereign. This view was maintained, in practice, until after the middle of the eighteenth century.

Towards the close of the last century, however, and as a consequence of the frequent cases of occupation during the wars that followed the French Revolution, a different view began to prevail. The doctrine of a complete transfer of allegiance and sovereignty was generally abandoned, and was replaced by a theory of temporary substitution of sovereignty, involving a temporary transfer of allegiance on the part of the inhabitants of the occupied territory. This view may be stated as follows: "The power to protect is the foundation of the duty of allegiance; when, therefore, a state ceases to be able to protect a portion of its subjects, it loses its claim upon their allegiance, and they either directly pass under a temporary or qualified allegiance to the conqueror, or, as it is also put, being able, in their state of freedom, to enter into a compact with the invader, they tacitly agree to acknowledge his sovereignty in consideration of the relinquishment by him of the extreme rights of war which he holds over their lives and property.""

Difference of Opinion as to the Meaning of the Term Occupation. The precise meaning of the term occupation has given rise to much difference of opinion. A definition was adopted by The Hague Conference, in 1899; in accordance with which territory is regarded as occupied "when it finds itself placed in fact under the authority of the hostile army. The occupation only extends to those territories where this authority is established and in a position to be exercised."' As the conclusions of the Peace Conference were expressed in the form of a treaty, it follows that the principle above set

'Grotius, liv. iii. chap. viii. § 4; Albericus Gentilis, De Jure Belli, liv. iii. chap. v.; Hall, pp. 462, 463; De Martens, Précis, § 280; Heffter, $132; Creasy, pp. 496-502; Lawrence, Int. Law, § 200.

2

'Hall, p. 467; Klüber, § 256; De

Martens, Précis, § 280; Shanks vs. Dupont, 3 Peters, 246; II Halleck, pp. 462-464; IV Calvo, § 2166.

Article Hague Conference; Creasy, pp. 496-504; Lawrence, Int. Law, §§ 200, 201; IV Calvo. §§ 2166

2192.