The coursehoweverto be adopted in such a case is at the discretion ofthe invaderHe may abrogate any law in the countryand substitute otherrules for itHe may create special tribunalsor he may leave the nativetribunals to exercise their usual jurisdictionThe special tribunals createdby an invader for carrying into effect the rule of military occupation inthe case of individual offenders are usually military courtsframed on themodel and carrying on their proceedings after the manner of courts-martial;but of coursetechnicallycourts so established by an English General wouldnot be courts-martial within the meaning of our Army ActsThe courts wouldbe regulated only by the will of the GeneralThe most important power exercisedby an invader occupying a territory is that of punishingin such manneras he thinks expedientthe inhabitants guilty of breaking the rules laiddown by him for securing the safety of the armyThe right of inflictingsuch punishment in case of necessity is undoubtedbut the interest of theinvader no less than the dictates of humanity demand that inhabitants whohave been guilty of an act which is only a crime in consequence of its beinginjurious to the enemyshould be treated with the greatest leniency consistentwith the safety and well-being of the invading army.
The American rules on the subject of the government of armies in the fieldsayMartial lawor in other words the law of military occupationshouldbe less stringent in places and countries fully occupied and fairly conquered.
Greater severity may be exercised in places or regions where actual hostilitiesexistor are expected and must be prepared forIts most complete sway isallowed even in the commander's own country when face to face with an enemy,because of the absolute necessities of the case and of the paramount dutyof defending the country against invasionTo save the country is of courseparamount to all other considerations.
In conclusionit must be borne in mind that an invader cannotaccordingto the customs of warcall on the inhabitants to enlist as soldiers or toengage actively in military operations against their own countryThe theoryin its full sway is thisIn a country militarily occupied all executiveand legislative power passes to the invaderIt does not follow that he exercisesthese powersbut theoretically they belong to himThe Duke of Wellingtonmade some observations in the English Parliament which are recognized asauthoritative in all the modern Manuals'Martial law,he said'is neithermore nor less than the will of the General who commands the armyin fact,martial law means no law at allTherefore the General who declares martiallaw and commands that it shall be carried into execution is bound to laydown distinctly the regulations and rules according to which his will isto be carried outNowI have in no country carried out martial lawthatis to sayI have not governed a large proportion of a country by my ownwillBut then what did I doI declared that the country should be governedaccording to its own national lawand I carried into execution my so declaredwill.Comparing this state of the law with that from which we starteditis evident that the ancient practice and theory of occupation have much changed.
They have not now any connection with Roman Lawnor would any one nowadaysthink of borrowing the Roman Law for their rulesThe modern practice rests,in factupon military necessityand is circumscribed by the military necessity.
An invading General can do certain things becauseby the hypothesisthereis no one else to do themIn England the legal rule is the same in peaceas in warThe soldiery can always be employed in our own country when sufficientnecessity can be shown for using them through the temporary or local abeyanceof civil authority.
This state of things comes to an end with the cessation of warWars donot in our day linger onas did the old wars of succession and the old warsof religionThere is always within some moderate time a treaty of peace.
Indeedthe modern difficulty in closing a war issometimesto find anauthority capable of making peaceThis difficulty was much felt by the Germansafter they had proceeded a great length in their conquest of France in thelast warThey made up their minds that the only authority which could makea treaty on the part of France which Frenchmen would respect was a NationalAssemblyand therefore before making peace they insisted that such an Assemblyshould be elected.
I think it may be useful to say a few words on the treaties of peace bywhich war is nowadays brought to an endIn modern times a peace is alwayspreceded by an armisticeand an armistice by a suspension of armswhichis only a shorter armisticeThe rule laid down by the international lawyersis that a state of war is brought to an end by a treaty of peace or by ageneral truceA treaty of peace puts an end to the war and absolutely abolishesthe subject of ita general truce puts an end to the warbut leaves undecidedthe question which gave occasion to itIn modern times these general truceshave fallen out of useThey were common enough in the Middle Agesespeciallybetween the Turks and their Christian enemiesbecause the religion of neitherparty permitted the combatants to conclude a definite treaty of peaceIthas always been laid down that treaties and general truces can only be concludedby the sovereign power of a stateand not that of any other authorityAnarmistice is defined as a partial truceThe power to conclude an armisticeis essential to the fulfilment by the commanding officer of his officialdutiesand therefore he is presumed to have such power delegated to himby his sovereign without any special commandThis presumption of authorityis held to be so strong that it cannot be rebutted by any act of the sovereign.
