acts, under such circumstances, are not enemies, legitimately in arms, who can plead the laws of war in their justification, they are robbers and murderers, and, as such, may be punished."

Pillaging consists in the forcible taking of property in an enemy's country, without authority, or in disobedience of orders. It has been seen that the laws of war prescribe a method in strict accordance with which certain kinds of property may be taken in war. If it be taken in any other way such taking constitutes pillage, and is punishable accordingly. There can be no higher test of discipline in a command than is shown by the manner in which the private property of an enemy is treated within its sphere of operations. If such property is respected, if acts of pillage are strictly repressed and severely punished, the discipline is good. If property and life are unsafe in its vicinity, if irregular seizures are permitted, if orchards and fields are devastated, discipline worthy of the name cannot be said to exist."

The punishment of pillage varies with the nature of the offence. The extreme penalty is death.

Crimes of Violence. Certain crimes of violence, such as murder, robbery, mayhem, rape, burglary, assault and battery, and assaults with intent to commit crime, when committed by, or against, residents or individuals of the invading army, are punishable by military commissions, or other tribunals of like jurisdiction. The punishment inflicted is usually more severe than that awarded by the law of the place where the offence is committed. This course is made necessary by the fact that, in the immediate theatre of war, all civil authority is suspended, the local courts being prevented, by the fact of war, from exercising their ordinary functions. If such crimes

'II Halleck, p. 7. General Halleck includes guerillas and partisans under the same designation. In this matter it is rather the service in which these persons are engaged, than their name, by which their status is regulated.

2

Hall, pp. 423, 424; Boyd's Whea

ton, 346a; Klüber, § 263; Snow, pp.99, 100; Article 31 Brussels Conference; Woolsey, § 138; II Halleck, pp. 113, 114; IV Calvo, §§ 2223-2225; Guelle, pp. 158 – 164; Bluntschli, §§ 661-663; Articles 23 and 28 Convention of The Hague, 1899.

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. 3 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.'

1 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. Retaliafor Armies of the U. S.

tion 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