I. GOVERNMENT OF HOSTILE OCCUPATION

Government of Hostile Occupation comes into existence as an incident of, or as a result of, a state of belligerency. It presupposes a hostile invasion, as a result of which the invader has rendered the invaded state incapable of publicly exercising its authority, and the invader is in a position to substitute and has substituted his own authority for that of the legitimate government of the territory invaded. It is essentially a government of force, imposed by the arbitrary power of a military commander, without regard to the will of the people upon whom it is imposed. It draws its authority from its possession on the spot of the physical force to make its commands effective. It recognizes no interests paramount to the furtherance of the military aim of the state which has, for the time being, brought the occupied territory under its control. It acknowledges neither personal nor property rights of the inhabitants of the occupied territory when such acknowledgment is opposed to its supreme function of contributing in every possible way to the success of the arms of the state which it represents. It is an instrument of warfare, used to promote the objects of invasion by weakening the enemy and strengthening the invader, and as such its powers are practically unrestricted. The Duke of Wellington, in a speech delivered before the House of Lords in 1851 with reference to the Ceylon Rebellion, accurately described the true character of such government when he said that it "is neither more nor less than the will of the general who commands the army."

The arbitrary nature and wide power of government of hostile occupation do not signify, however, that the exercise of its authority is without regard to the principles of right and justice, as defined by the loose code of international law. For while the authority of the military commander is supreme and absolute for the moment, his acts are subject to the review of his own state government and may be repudiated by it, and their perpetrator punished, if these acts are so at variance with

established usage as to rouse international public opinion against the military government which is responsible for them. Therefore, in a limited sense, the general features of military government are determined by precedent and its functions are exercised in accordance with the accepted rules of international law.

Purpose. The primary purpose of a government of hostile occupation is to provide for the security of the invading army and contribute to its support and efficiency. This it accomplishes by exercising supervision over an unfriendly population and preventing non-combatants from engaging in hostilities, inciting insurrection, and giving aid to the enemy. In pursuance of the same objective it may appropriate property, requisition supplies, levy contributions, compel forced labor, and restrain commerce. During the course of active operations against a hostile army in the vicinity, the harshest measures and the most summary action may be justified. With the advance of the field army well beyond the boundary of the occupied district and in places fully occupied and fairly submissive, the stern character of the military government is usually relaxed and under favorable circumstances the administration may follow closely the form of the civil government which existed prior to occupation.

Military government begins when an invading army becomes the dominating power over the district occupied. The presence of the hostile army in a position to exercise its authority proclaims its military government. No formal proclamation of the military commander is necessary although such proclamations have usually been issued. On account of the special relations between the inhabitants of the occupied territory and the invading army, the fact of military occupation with the extent of territory affected should be made known. In the absence of a proclamation or similar notice, the time of the establishment of the military government is fixed by the presence of the invading army in sufficient strength to overcome local resistance to its authority and enforce submission

on the part of the inhabitants of the district. The presence of an enemy fort or defended area within the occupied district does not render the military government of the remainder of the district ineffective nor do the operations of guerrilla bands detract from its authority.

Character of Government.-In its early stage a government of hostile occupation is essentially a military autocracy in which the military commander occupies the position of autocrat. For the time being all power, executive, legislative, and judicial is vested in his person. He delegates the exercise of these powers to his military subordinates, to civilian appointees, or to the government officials of the occupied district, as best suits his purpose.

With the pressing demands of the military situation satisfied and with order seemingly reëstablished within the occupied territory, the government of hostile occupation assumes the outward form which the home government determines upon from consideration of policy. Ordinarily this more formal government of hostile occupation does not differ materially from the autocracy set up by the army commander as an incident of invasion. A qualified officer, who, by virtue of his military rank is also the commander of troops assigned for duty in the occupied territory, is appointed military governor. He exercises his authority subject only to such restrictions as his home government may deem it advisable to make.

Modified Forms.-This normal form of government of hostile occupation is frequently modified to fit some special policy of the home government of the occupant. The character of these modifications is usually determined by the occupying government's intentions as to the ultimate disposition of the seized territory. If annexation be contemplated the course of action is usually designed to ween the inhabitants from their former allegiance and allay hostile feeling toward the conqueror. In such a case, the endeavor is made to relax the harsher measures of military government as soon as possible. Thus, in New Mexico in 1846, a so-called civil government

was instituted within one month of the entry of the United States forces into the capital of the territory. A civilian governor and several civilian administrative and judicial officials were appointed by the government at Washington and promptly assumed their duties. Needless to state, the government was civil in name only for its authority rested solely upon the presence of superior military power within the territory. It was in fact a government of hostile occupation administered by civilian officials.

Another modification of the normal government of hostile occupation is exemplified by the appointment of civilian "military" governors over Tennessee, South Carolina, and Louisiana during the War of the Rebellion. These appointees were given military rank and authorized to exercise the powers, duties, and functions of the office of military governor, including the power to establish ali necessary offices and tribunals. Here, as in the case of New Mexico mentioned above, the authority of the military governor rested solely upon the presence of superior military power to enforce his decrees.

The institution of civil government over occupied territory is an anomaly. Likewise, the organization of a military government which is designed to function as a separate mechanism but which depends for its authority on the military forces present within the territory, and which must of necessity subordinate its powers to the demands of the military situation, results in a confusion of duties and responsibilities. As a matter of fact, the civilian and quasi military governments mentioned, with their array of subordinate officials, principally civilian, complicate matters in districts at a period when the undisputed military sway is of the utmost importance. As long as hostile territory is the base for, or may become the theatre of, military operations, the establishment of such separate military governments would seem to be inexpedient.

In connection with the variation of form which the government establishes over occupied enemy territory, it may be observed that it is immaterial whether the government be

called civil or military. Its character is the same in either case and the source of its authority is the same. It is a government of force and the legality of its acts is based upon the laws of war.

Officials. Usually it is to the advantage of the occupant and to the best interests of the inhabitants of occupied territory that at least some of the civil officials of the former government remain in office to assist in the administration of the government of hostile occupation. This policy is particularly advisable in the case of municipal officials, including judges, magistrates, sanitary and police officers. Political officials such as governors, cabinet officers, members of legislative bodies, etc., are removed. Government employees in the railway, telegraph, and telephone services are usually replaced by soldiers of the army of occupation or nationals of the invading state, and such replacement may also extend to the more important officials of the postal service. In general, those officials of the former government are retained whose services will be useful to the military government. Those whose services are not required, and those officials, great and small, who are in a favorable position to injure the invader, are removed.

Officials of the former government who remain in office may be required to take an oath of temporary allegiance or temporary fidelity to the military government which has been established over the territory, and those who refuse to take such oath may be expelled. Such oath would ordinarily take the form of a pledge to perform the duties of the office conscientiously and without prejudice to the occupant. Such oath is not essential, however, for the officials who continue in office owe strict obedience to the occupant and can be punished under the law of war for acts hostile to his interests. The oath should not be insisted upon, especially when the form of the oath implies allegiance which pertains to sovereignty.

The salaries of civil officials of the former government who remain in office under the government of hostile occupation are paid from the public revenues of the invaded territory.