1. WHAT MILITARY GOVERNMENT IS.—a. Definition.Military government is that dominion or form of military jurisdiction exercised in war, or pursuant to war, by a belligerent over enemy territory occupied by his military forces, and over the inhabitants and property thereof. b. Distinguished from martial law.―The British really make no distinction today between military government and martial law. Their exercise of military government in MILITARY GOVERNMENT 55 occupied Germany after the World War they denominated martial law. In the United States, the terms have taken on different meanings since Chief Justice Chase pronounced his dissenting opinion in the Milligan case (4 Wallace, 141) in 1867, so it is necessary that we understand the distinction. c. Military government is a real government exercised for a more or less extended period by a military commander, in time of or pursuant to a foreign war, over occupied foreign enemy territory, or, in time of or pursuant to rebellion and civil war, within occupied districts of the home country taken from rebels treated as belligerents. d. Martial law, on the other hand, is merely military authority called into action otherwise than as prescribed by the law of the land, when and to the extent that the public danger requires it, in localities or districts of the home country which still maintain adhesion to the general government. e. The subjects of military government are the belligerent or other inhabitants of enemy territory invaded and occupied in war, foreign or civil; those of martial law are own immediate fellow citizens or inhabitants who, though perhaps disaffected or in sympathy with the public enemy, are not themselves belligerents or legally enemies. f. The occasion for military government is war; that for martial law is simply public exigency which, though more commonly growing out of pending war, may nevertheless present itself in time of peace. g. The field of military government is enemy territory, whether our own or foreign soil; that of martial law is such portion of our own country as may be involved in the exigency. h. Use of the term.-The term military government is practically unknown and unused abroad. The British sometimes speak of the government of occupied territory and of military occupation but, as stated above, the technical term used by them in that sense is martial law. The French employ the term military authority over the enemy state. Our own civil writers generally speak of military, government 56 MILITARY AID TO THE CIVIL POWER as the government of occupied territory, or as the law of hostile occupation. The term military government is used in our Army almost to the exclusion of all other terms of the same meaning, and the reason for it is that the military man understands, perhaps better than anyone else, what military government actually is. He understands that it is a real government and that it is just as complete in every sense as a civil government, the only fundamental difference being that it is exercised by military authority. i. Sources of information.-On the subject of military government, textbooks have proved to be of little practical value. They state the general law correctly, which is simple and composed of but few principles, but they do not indicate the scope of the subject nor the details of its practical exercise. Strange to say, Halleck, the eminent American writer on international law whose work has gone through several European editions, hardly devotes a single page to assist us in this respect, although he had as much to do as any other American in connection with the establishment and administration of military government in a practical way. j. The decisions of courts, especially of our own Supreme Court, are of incalculable value as settling the law relating to military government. The compilation of cases which was made by the Army Staff College class of 19101911 is excellent in every respect and saves the reader from going over a great amount of unnecessary matter in the court reports. k. The War Department publication, Rules of Land Warfare, contains all the law on the subject that, up to the date of its issue, 1914, had been agreed to by the nations. 1. On the practical side, however, the reports of our military governors are the very best source of information as to the practical operation of military government that can be obtained. General Davis' report on the military government exercised in Porto Rico, General Wood's report on Cuba, and General McArthur's report of government in the Philippines are especially valuable, and to these may now MILITARY GOVERNMENT 57 be added the official report on the military government of occupied Germany. ✔m. Development.-Military government has been developed almost entirely within the past two centuries. Its development has been along with, or as a part of, the amelioration of the conduct of war generally. As it is now understood, military government was unknown to ancient and medieval peoples. The Romans, wherever they went, governed the territory that they occupied under the theory that by occupying it they had permanently incorporated it into the Roman state. In medieval times territory was frequently ceded back at the end of the war, but so long as it was held by military forces it was regarded as in every way a part of the territory of the conquering state. This, as has already been pointed out, is no longer the correct view. 2. EXERCISE OF MILITARY GOVERNMENT.- -a. As an exercise of sovereignty.—As stated by Manning in his Commentaries on the Law of Nations (p. 135), "A victorious State takes the place of the sovereign of the vanquished.” Whether the place of the prior sovereign is taken permanently or temporarily will depend upon the disposition of the occupied territory at the peace table. International law recognizes that, having overthrown the pre-existing government and deprived the people of the protection which that government afforded, it becomes not only the right but the duty of the invader to give the vanquished people a new government adequate to the protection of their personal and property rights. b. It is decidedly to the military advantage of the invader to establish a strong and just government, such as will preserve order and, as far as possible, pacify the inhabitants. c. The former government having been dispelled, the supremacy of the government substituted by the conqueror is absolute and is legal in the highest sense. Its acts are just as lawful as if they were the acts of a sovereign in time of peace. The Hague rules, original in French, also both the American and British translations, speak of the former government as the legal or legitimate government, but this 58 MILITARY AID TO THE CIVIL POWER does not signify that there is any lack of legitimacy or legality in the military government of the conqueror. d. The military government, being supreme, can lawfully demand the absolute obedience of the inhabitants of the area over which it is exercised. The relation of these inhabitants to the military government was formerly, and apparently still is, spoken of as allegiance, but this is not a proper term. They do not owe allegience, they owe obedience. e. By whom exercised.-Military government may be said to be exercised by the military commander, under the direction of the President, with the express or implied sanction of Congress. Congress having, under its Constitutional powers, declared or otherwise initiated the state of war and made proper provision for carrying it on, the prosecution of hostilities devolves upon the President as the constitutional commander-in-chief of our military and naval forces. In this capacity, unless and until Congress shall specifically provide otherwise, it becomes his right and duty to exercise military government over such enemy territory as may pass into the possession of our forces. f. In exercising such a government, the President represents the sovereignty of the nation. He cannot, of course, personally administer all the details, so he is regarded as having delegated to the commander of the occupying forces the requisite authority for the purpose. Such commander may legally do whatever the President might himself do if personally present, and in his proceedings and orders is presumed to act by the President's direction or sanction. g. Extent and limitations of the power.-The power thus vested in the President and his military subordinates is a large and extraordinary one. As expressed by the Supreme Court of the United States in 20 Wallace, 394, the governing authority "may do anything necessary to strengthen itself and weaken the enemy. There is no limit to the powers that may be exerted in such cases save those which are found in the laws and usages of war." This is true in all cases where military government is being exercised over foreign territory. There the military com |