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THE LAW OF WAR"

-MILITARY OCCUPATION. 2112. Spain relinquishes all claim of sovereignty over ment of soverthe island of Cuba, and as the island is, upon its evacua- jantyover Cuku tion by Spain, to be occupied by the United States, the tary occupation.

The law of war.— The law of war is, in brief, the law of military government and authority as exercised in time of war, foreign or civil. Its usual field is the territory of a conquered country in the occupation of a hostile army; it is sometimes extended, however, though generally in a milder form, to localities under “martial law.” It is properly a part of the law of nations, though its application may be materially varied by the circumstances of the country or the people brought under its sway. Dig. Opin. J. A. G., par. 1567.

Rule of nonintercourse. It is a fundamental principle of the law of war that during a state of war all commercial intercourse between the belligerents is interdicted and made illegal except when and where it may be expressly authorized by the Government. During the late civil war, which, as respects the application in general of the laws and usages of war, was assimilated to a foreign war, (a) all trade and intercourse with the enemy, except so far as permitted by the President under authority from Congress (or in rare cases by a commanding general in the field representing the President), was necessarily suspended. (6)

As to the principal forms of violation of the law of nonintercourse and other violations of the laws of war, made the subject of trial by military commission during the late war, see the title “Military Commissions” in the chapter entitled MILITARY TRIBUNALS.

Held (January, 1865) that a system of correspondence which had been concerted and maintained between Northern and Southern newspapers by means of an interchange of published communications entitled “Personals,” was an evasion of the rule interdicting intercourse with the enemy in time of war, and, not being within the regulations established for correspondence by letter between the lines by flag of truce, should not, however innocent might be many or most of the communications, be sanctioned by the Government, but that the proprietors of the Northern newspapers concerned should be notified that unless ths practice was discontinued they would be liable to be proceeded against for promoting correspondence with the enemy in violation of the laws of war or of the special act of February 25, 1863. (c) — (12 Stat. L., 696.) Dig. Opin. J. A. G., par. 1574.

Offenses against the law of nonintercourse between the belligerents in time of war are no less such when committed by foreigners than when committed by citizens. Thus where certain persons made their way early in the late war from Scotland to South Carolina, engaged for a considerable period in the manufacture of treasury notes for the Confederate authorities, and at the end of their employment came secretly and without authority into our lines with the design of returning to their homes, held that, though British subjects, they had identified themselves with the cause of the enemy, and were properly amenable to trial for the offense of penetrating our military lines in violation of the laws of war. (d) Ibid., par. 1570.

Newspapers.—There can be no doubt as to the authority of the commander of an a See Prize Cases, 2 Black, 666-669; Dow 1'. Johnson, 10 Otto, 164; Brown 1. Hiatt, 1 Dillon, 372; Phillips v. Hatch, ibid., 571; Sanderson v. Morgan, 39 X. Y., 231; Perkins v. Rogers, 35 Ind., 124; Leathers v. Com. Ins. Co., 2 Bush, 639; Hedges v. Price, 2 W. Va., 192.

o The Ouachita Cotton, 6 Wallace, 521; Cappell v. Hill, 7 ibid., 512, 554; McKee v. United States, 8 ibid., 163; United States v. Grossmayer, 9 ibid., 72; Montgomery ?'. United States, 15 ibid., 395; Hamilton v. Dillin, 21 ibid,, 73; Mitchell v. United States, ibid., 359; Matthews v. Mestea, 1 Otto, 7; Dow 1. Johnson, 10 ibid., 164; Kershaw 1'. Kelsey, 100 Mass., 561; Lieber's Instructions, G.O., 100, War Dept., 1863, par. 86. Besides the suspension incident to the state of war, a suspension of commercial intercourse with the enemy was specially directed by act of Congress of July 13, 1861, and proclaimed by the President on August 16, 1861. By authority conferred by the same statute general regulations, concerning commercial intercourse with and in the States declared in insurrection, were approved by the President, January 26, 1864, and published in G. 0., 53, Department of the Gulf, of April 29, 1864.

cSee General Orders, No. 10, Department of the East. 1865.

d Where a party arrested in attempting without authority to cross the Potomac for the purpose of holding cominunication with persons in the enemy's country was ordered by the department commander-his offense having been committed in a district in military occupation-to be placed under military surveillance and to furnish a bond with sufficient sureties, obliging him not to attempt again during the war to join or hold intercourse with the enemy, held that such proceeding was warranted by the laws and customs of war. Dig. Opin. J. A. G., par. 1571.

Two soldiers of the United States Army having been seized and delivered across the lines to the enemy, by a party of civilians, in a portion of one of the insurrectionary States in the occupation of the Federal forces, an equal number of the citizens of the district were ordered by the commanding general to be arrested and held till the offenders, who meanwhile had taken refuge with the enemy, should be surrendered for trial, Held that such an act of retaliation was warranted by the laws and usages of war. Ibid., par. 1572,

Treaty with United States will, so long as such occupation shall last, 1898, v. 30. 1754. assume and discharge the obligations that may, under inter

national law, result from the fact of its occupation for the

army, in occupation and government of the enemy's country, to suppress a newspaper or other publication deemed by him to be injurious to the public interests in exciting opposition to the dominant authority or encouraging the support of the enemy's cause on the part of the inhabitants. A newspaper may be a powerful agent for such a purpose, and when it is so it may, under the laws of war, as legally be silenced as may a fort or battery of the enemy in the field. Ibid., par. 1573.

Contributions.—Contributions of money exacted from the enemy by competent military authority, being justified by the law of war and conquest, (a) held that a tax of five dollars per bale, levied (in 1864) by the military commander at New Orleans, General Canby, upon cotton brought into that city and applied to hospital, sanitary, and charitable purposes, was authorized under the discretionary power with which such a commander was properly invested in time of war.(b) Ibid., par. 1575.

Military occupation. It is a principle of the law of war that the municipal laws of a conquered country continue in force during the military occupation by the conqueror, except in so far as th same may necessarily be suspended or their operation be affected by his acts.(c) So where a testator had executed in Vicksburg, Miss., after its capture and during its occupation by our forces, a will devising real estate, but such will, in not being attested by the required number of witnesses, was invalid under the State law held, that, as this law was in no respect modified upon the capture, the devisee under the will, however loyal, could not properly be invested by military authority with the legal title to such estate against the heirs at law. Dig. Opin. N. A. G., par. 1576.

Courts in occupied territory.-- It is authorized by the laws of war for a military officer commanding in time of war in a region in military occupation, and where the ordinary courts are closed by the exigencies of the war, to appoint a special court or judge for the determination of cases not properly cognizable by the ordinary military tribunals. In the civil war such courts were not unfrequently constituted and were commonly designated provost courts. Such courts had no jurisdiction of purely military offenses (i. e., offenses which the Articles of War make cognizable by courtmartial), and were therefore not properly authorized to impose forfeitures of pay or other strictly military punishments upon officers or soldiers of the Army. These courts were in general resorted to as substitutes for the ordinary police courts of cities, and their jurisdiction was in general confined to cases of breaches of the peace and of violation of such civil ordinances or military regulations as might be in force for the government of the locality. Some of these courts, however, took cognizance, in the course of their existence, of cases of very considerable importance, civil as well as criminal.(d) Ibid., par. 1577.

a Lewis v. McGuire, 3 Bush, 202; Clark v. Dick, 1 Dillon, 8. And see Major-General Scott's order (G. 0., 395, Hdqrs. of Army, 1847) levying assessments upon Mexican communities for the support of the military government and occupation.

bSee Hamilton v. Dillin, 21 Wallace, 73. The taking possession, by the order of the commander of the military department at New Orleans, for the use of the military service in the prosecution of the war, of moneys belonging to the enemies on deposit in the banks of that city, while occupied (in 1863) by our Army, held an act justified by the strict law of war. Dig. Opin. J. A. G., par. 1675. See New Orleans v. Steamboat Co., 20 Wallace, 391; Witherspoon v. Farmers' Bk., 2 Duvall, 497. But in Plant. ers' Bk. v. Union Bk., 16 Wallace, 483, this particular order was held to have been an exceeding of authority, not because unauthorized by the law of war, but for the reason thata previous commanderGeneral Butler-by his proclamation on first occupying the city, of May 1, 1862, had pledged the Gov. ernment to the holding inviolate of all rights of property. And see The Venice, 2 Wallace, 258.

C“By the well-recognized principles of international law the mere military occupation of a country by a belligerent power or a conqueror does not ipso facto displace the municipal laws. Such conqueror or belligerent occupier may suspend or supersede them for the time being, but in the absence of orders to that effect they remain in force." Wingfield v. Crosby, 5 Cold., 246. "Supreme military authority in a city is not incompatible with the existence and authority of courts of civil jurisdiction and procedure." Pepin v. Lachenmeyer, 45 N. Y., 27. And see Kimball v. Taylor, 2 Woods, 37; Rutledge v. Fogg, 3 Cold., 554; Hefferman v. Porter, 6 ibid., 391; Murrell v. Jones, 40 Miss., 566; Dow f. Johnson, post. But where the courts of a hostile country are left open by the conqueror it is only the citizens of such country that are subject to their jurisdiction; the officers and soldiers of the occups. ing army are in no manner amenable to the same. This principle has recently been illustrated by the Supreme Court in the cases of Coleman v. Tennessee, 7 Otto, 509: Dow v. Johnson, 10 Otto, 158, 16h.

d While the majority of these special tribunals were confined to the exercise of such functions as are commonly devolved upon police or justices' courts, their authority, when empowered for the purpose by a competent military commander, to take cognizance of important civil actions has been affirmed by the Supreme Court of the United States in the case of Mechs. and Traders' Bk. t. Union Bk., 22 Wallace, 276, in which a "provost court," established at New Orleans by an order of the department commander, of May 1, 1862, was held to be a lawful tribunal, and a judgment rendered by it in action for the recovery of $130,000, money borrowed by one bank from another, was recognized

protection of life and property. Article I, Treaty with Spain of December 10, 1898 (30 Stat. L. 1754).

as legal. [See this case also in 25 La. An., 387.) (For orders establishing such tribunals, see Dig. Opin. J. A. G., par. 1577, note 1.).

So, the authority of the provisional court of Louisiana” (which succeeded the “provost court last indicated and was established by the President in an Executive order of Oct. 20, 1862) to determine a cause in admiralty was affirmed by the United States Supreme Court in The Grapeshot, 9 Wallace, 129, and later its jurisdiction in a civil action on a mortgage debt was recognized by that tribunal in Burke v. Miltenberger, 19 Wallace, 519. (And see the same case, as Burke v. Tregree, in 22 La. An., 629.] The authority of the same conrt to take cognizance of a case of murder and one of areon (as also of civil controversies) was maintained in an elaborate opinion of its judge, Hon. C. A. Peabody (in 1865), in the cases of the United States v. Reiter & Louis, reported in 13 Am. Law Reg., 534.

The civil jurisdiction of a similar war court-the "commission" established by the department commander in Memphis, in 1863—was similarly recognized in Hefferman v. Porter, 6 Cold., 391. And as to the full authority of this tribunal as a substitute for the ordinary civil courts of the locality, see also State v. Stillman, 7 Cold., 341. (But see, contra, Walsh v. Porter, 12 Heisk., 401.)

In the cases thus sustaining the action of special tribunals during the late war the courts in general refer to the earlier and leading case of Leitensdorfer v. Webb, 20 Howard, 176, in which was affirmed the authority of the courts established in 1846 in New Mexico as a part of the system of civil government instituted by General Kearney, the military commandant. (With this case consult also United States v. Rice, 4 Wheaton, 254; Cross v. Harrison, 16 Howard, 164.)

The reasoning upon which the above-cited later rulings is based is: That the authority to create courts with a civil as well as a criminal jurisdiction in a conquered country in military occupation attaches to the dominant power by the law of war and of nations as an incident to the power to establish a military government; that it is not only the right, but the duty, of the conqueror to insti: tute such courts for the security of persons and property and for the administration of justice;" and that, when during the late war such courts were created by commanding generals-such as the commanders of separate departments or armies—the order of the commander was to be presumed to be the order and act of the President.

CHAPTER XL.

PENSIONS.

Par.

Par.

2113-2115. The Commissioner of Pen- 2202. Removal of limitation. sions; duties.

2203–2211. Attorneys' fees. 2116–2136. The general pension law. 2212-2231. Payment of pensions. 2137-2147. Widows and children. · 2232-2234. Accrued and unclaimed pen2148–2150. Dependent relatives.

sions. 2151-2154. Dependent pension law. 2235–2236. Assignments. 2155-2156. Pensions to army nurses. 2237–2246. Examining boards. 2157-2166. Mexican war pensions. 2247. Inspection of agencies. 2167–2174. Pensions for Indian wars, 2248. Suspension of pensions; restriction 1832-1842.

on; pensions a vested right. 2175-2177. Pensions under special acts. 2249–2252. Investigations. 2178–2185. Commencement of pensions; 2253–2256. Criminal offenses. arrears of pension.

2257–2262. Miscellaneous provisions. 2186-2188. Increase of pensions. 2189–2201. Declaration and evidence in

pension cases.

THE COMMISSIONER OF PENSIONS.

Par.

Par. 2113. The Commissioner of Pensions. 2114. Duties of the Commissioner.

2115. The Deputy Commissioner of Pen

sions.

Commissioner of Pensions,

Duties of the

2113. There shall be in the Department of the Interior Sec. 470, R. S. a Commissioner of Pensions, who shall be appointed by

the President, hy and with the advice and consent of the Senate, and shall be entitled to receive a salary of four thousand dollars a year.

2114. The Commissioner of Pensions shall perform, . Sec. 431, k. s. under the direction of the Secretary of the Interior, such

duties in the execution of the various pension and bounty

land laws as may be prescribed by the President. Deputy Commissioner.

2115. There shall be in the Department of the Interior 231, 1.2.17, a Deputy Commissioner of Pensions, who shall be apSec. 472, k. s. pointed by the President, hy and with the advice and con

sent of the Senate, who shall be charged with such duties in the Pension Bureau as may be prescribed by the Secretary of the Interior, or may be required by law, and in

case of death, resignation, absence, or sickness of the Commissioner, his duties shall devolve upon the Deputy Commissioner, until a successor is appointed or such absence or sickness ceases. The Deputy Commissioner shall be entitled to receive an annual salary of twenty-five hundred dollars.

THE GENERAL PENSION LAW.

Par.

Par. 2116. Who entitled.

2126. Total blindness. 2117. Classes enumerated.

2127. Increase of pension. 2118. Pensions to be for wounds, injuries, 2128. Loss of leg at hip joint.

etc., received in line of duty. 2129. Loss of arm at shoulder joint. 2119. Rates of pension.

2130. Loss of arm or leg; increase. 2120. Pensions according to rank.

2131. Loss of hand or foot. 2121. Pensions for permanent specific 2132. Total or partial deafness.

disabilities prior to June 4, 1872. 2133. Loss of both hands; increase. 2122. The same, subsequent to June 4, 2134. Rate for incapacity requiring con1872.

stant attendance. 2123. Loss of both hands, feet, or eyes. 2135. Rate for incapacity requiring fre2124. Loss of one hand and one foot.

quent attendance. 2125. Loss of both hands, feet, or eyes. 2136. Division of eighteen-dollar rate.

234, s. 1, v. 17, pp.

2116. Every person specified in the several classes enu- Who may have

pensions. merated in the following section, who has been, since the Mar. 3, 1873, c. fourth day of March, eighteen hundred and sixty-one, or 566, 567

Sec. 4692, R.S. who is hereafter disabled under the conditions therein stated, shall, upon making due proof of the fact, according to such forms and regulations as are or may be provided in pursuance of law, be placed on the list of invalid pensioners of the United States, and be entitled to receive, for a total disability, or a permanent specific disability, such pension as is hereinafter provided in such cases; and for an inferior disability, except in cases of permanent specific disability, for which the rate of pension is expressly provided, an amount proportionate to that provided for total disability; and such pension shall commence as hereinafter provided, and continue during the existence of the disability.

2117. The persons entitled as beneficiaries under the preceding section are as follows:

First. Any officer of the Army, including regulars, vol. Officers of unteers, and militia, or any officer in the Navy or Marine and enlisted Corps, or any enlisted man, however employed, in the mili- Ibid. tary or naval service of the United States, or in its Marine

Classes enumerated.

Sec. 4693, R.S.

1 The act of March 3, 1883, 23 Stat. L., 362, contains the requirements that “all applicants for pension shall be presumed to have had no disability at the time of enlistment, but such presumption may be rebutted.”

H. Doc. 545-53

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