justifiable. In all these cases, however, the person acting under the pressure of necessity, real or supposed, acts at his peril. The correctness of his conclusion must be judged by courts and juries, whenever the acts and the alleged necessity are drawn in question. Argument in the Milligan Case, Washington Reporter, May 7, 1866.

A declaration of martial law, even in one's own country, is the mere announcement, and not the creation of the fact. See Halleck, Int. Law and Laws of War, p. 372, § 24; and opinions of Sir John Campbell and Sir R. M. Rolfe, in Cases and Opinions in Constitutional Law by Forsyth, p. 198.

1 See the Milligan Case, 4 Wallace's U. S. Supr. Ct. Rep., 1.

Consuls.

726. Consuls are subject to martial rule in the same cases, and to the same extent, as other persons. Lieber's Instructions, ¶ 8.

Duty of magistrates and civil officers.

727. It is the duty of the civil officers and other residents of an invaded country to yield obedience to martial rule, within the limits of the provisions of this Book, so long as the military possession continues, under pain of expulsion; but oaths of allegiance cannot be required.'

1 By the rules heretofore existing, the commander of a hostile force may require the magistrates and civil officers of the enemy's country within his occupation, to take an oath to yield allegiance to his nation, so long as its occupation continues. Lieber's Instructions, ¶ 26. But it is submitted that the multiplication of oaths is needless, and the object is better attained by a positive requirement of law.

The obligations imposed on the non-combatant inhabitants of a section of country passed over by an invading army, cease when the military occupation ceases; and any pledge or parole given by such persons, in regard to future service, is void. General Orders of U. S. War Departiment, 1863, v. 2, p. 237, No. 207, § 4.

CHAPTER LVI.

MILITARY OCCUPATION.

The provisions of this Chapter relate to possession under martial rule pending hostilities. The rules applicable to cases of completed conquest rest upon different principles, and are stated in Part IX., upon THE TERMINATION OF WAR.

ARTICLE 728. "Military occupation" defined.

729. Allegiance suspended by military occupation.

730. Limit of power of belligerent.

731. Civil and criminal law within military occupation. 732. Persons held to service or labor.

733. Effect of reconquest on civil and political rights.

"Military occupation" defined.

728. Military or belligerent occupation, as used in this Book, is a possession by the military power of a belligerent, sufficiently firm to enable such belligerent to execute its will within the limits of the occupation, either by force, or by acquiescence of the people, for an indefinite future, subject only to the chances of war.1

But the modification of such occupation, resulting from an armistice, or other compact with the enemy, does not affect the power of the belligerent over persons and property within such limits, further than is provided by this Book, or by the compact itself."

1 Dana's Wheaton, Elem. of Intern. Law, § 347, note 169, p 436; Hal leck, Intern. Law and Laws of War, p. 778, &c., and authorities cited. ? See Article 778, as to the effect of armistice or truce.

Allegiance suspended by military occupation. 729. The allegiance of the members of a belligerent nation resident within the limits of the military occu

pation of the enemy, is suspended, so far as it is inconsistent with the lawful authority of the enemy.

Dona's Wheaton, Elem. of Intern. Law, note 169; Halleck, Intern. Law and Laws of War, p. 791, and authorities cited.

Limit of power of belligerent.

730. Except as otherwise provided in this Book, the authority of a belligerent, occupying the territory of the enemy, extends no further and no longer than his actual power extends.

Dana's Wheaton, Elem. of Intern. Law, note 169.

Even the retroaction of completed conquest only goes so far as to give permanency to the acts of the conquerer, done during military occupation. Halleck, Intern. Law and Laws of War, p. 815.

See Part IX., on THE TERMINATION OF War.

Civil and criminal law within military occupation. 731. The civil law of the people of a territory which is held by a hostile military occupation, remains unchanged, until modified in accordance with the organic law, or by a treaty of peace; but the hostile nation may introduce its own criminal law, within the limits of its occupation.

Suggested by Twiss, Law of Nations, Part II., p. 128.

Persons held to service or labor.

732. The status of persons, and the obligations of service or labor, are not affected by the presence of a belligerent, who may nevertheless for military purposes suspend such relations during the continuance of the military occupation.

Lieber, (Instructions, ¶¶ 42, 43) says that slavery is abolished by the invasion of a free army; but this is not sustained by the authorities, o. the principles of international law.

In barbarous times, the laws of war authorized the reduction to slavery of a conquered people. These laws have been softened under the influ ences of Christianity and civilization, till now it is the settled public law of the Christian and civilized world that the conquest of a nation by another makes no change in the property or the personal rights and relations of the conquered people. The people change their allegiance,' says Chief justice Marshall, (7 Pet., 87, U. S. v. Churchman ;) their relations to

their ancient sovereign are dissolved, but their relations to each other and their rights of property remain undisturbed.' One change only is effected, and that is, that one sovereign takes the place of the other. In a civil war sovereigns are not changed, unless the rebellion is successful." Argument in McCardle Case, Forsyth's Cases and Opinions in Constitutional Law, pp. 491, 519.

Effect of reconquest on civil and political rights.

733. When a belligerent regains and maintains possession of territory taken from his control during

war:

1. All the acts of political administration done by order of the invader, and all modifications made in the constitution and the political relations of the people, unless made by the will and consent of the nation, cease to be in force ;'

2

2. All executed transactions, whether transfers of property, judgments rendered, or other acts, if consistent with the organic law of the nation, and lawful at the time when they took place, remain valid.

1 Fioré Nouveau Droit International, v. 2, p. 352.

Fioré says, these transactions are not valid by law, but ought to be confirmed by the sovereign. Ib. And see Bluntschli, Droit Intern. Codifié, § 731.

The exception in case of an expulsion of the enemy by a third power, in which case the authority of such power is held to some extent paramount, is not here recognized. See Bluntschli, § 729.

As to acts of courts of an insurgent power, see Hickman v. Jones, 9 Wallace's U. 8. Supr. Ct. Rep., 197.

CHAPTER

TITLE XXXIII.

HOSTILITIES.

LVII. Who may wage hostilities.

LVIII. Against whom hostilities may be waged.
LIX. The instruments and modes of hostilities.
LX. Truce and armistice.

CHAPTER

LXIV. Hostilities against property.
LXV. Contraband of war.

LXVI. Visitation, search and capture.

LXVII

LXVIII.

Blockade.
Prize.

LXIX. Effect of a state of war on obligations of na

tions and their members.

LXX. Effect of a state of war upon intercourse.

LXXI. Effect of a state of war upon the administration of justice.

CHAPTER LVII.

WHO MAY WAGE HOSTILITIES.

ARTICLE 734, 735. Authority to commit hostilities.

736. Persons impressed with military character.
737. Temporary want of authority.

738. Compulsory service.

739. Savage allies.

740. Defensive bostilities.

741. Privateering abolished.

742. Punishment of privateering.

743. Pirates and brigands.

Authority to commit hostilities.

734. All acts of hostility are unlawful,' except when committed under authority of a belligerent,' or in selfdefense.

1 Talbot v. Jansen, 3 Dallas, U. S. Supr. Ct. Rep., 133, 160.

An alien, a native of a State at peace with Great Britain, and not in the service of ary State at war with that government, who levies war against it within its dominions, is deemed guilty of treason, although he enters it in a hostile manner. Forsyth's Cases and Opinions in Constitutional Law, p. 199.

The authority is usually that of the nation of which the individual is a member; but the principle includes the authority of any nation, as in the case of mercenaries, or persons of one nation, enlisting in the military service of another, against a third.

War should be regarded as subsisting between nations, not individuals. Bluntschli, Droit Intern. Codifié, § 530, &c.

Puffendorf, (bk. 8, ch. 6, § 21,) observes that it is "a part of the war to appoint what persons are to act in a hostile manner against the enemy,