JAMES WILFORD GARNER, Professor of Political Science, University of Illinois.
LAW, Criminal. See CRIMINAL LAW. LAW, Customary. See CUSTOMARY LAW. LAW, International. See INTERNATIONAL LAW.
LAW, Maritime. See MARITIME LAW.
LAW, Military, a term, which, in its more restricted sense, describes the legal system that regulates the organization and government of the military establishment of a state and the discipline of its armed forces. It applies to the conduct of civilians in a very limited num ber of cases. Even military persons are, ordinarily and in time of peace, amenable to military law for military offenses only— for instance, desertion, mutiny, insubordination, neglect of duty, unbecoming conduct, frauds upon the government, etc. Though officers and men may be further disciplined in ac cordance with military law (by degradation, dismissal from service and other like penalties) for infractions of the law of the land, they are answerable in time of peace for such infrac tions, in the first instance, to the civil authori ties and triable in the ordinary courts of law. An interesting controversy on this subject arose while the Pershing expedition was in Mexico on its hunt for the bandit Villa. Several men were accused of violations of the local law, and the question was whether they should be delivered to the civil authorities for trial in the Mexican courts, or whether they should be judged by their own proper military tribunals. The United States were not at war with the Mexican government and, out of re spect for Mexican punctilio, the authorities at Washington had disavowed any interpretation of its intervention as purposin an occupa tion. The conditions under ch military penalties are usually applied to civil offenses, therefore, did not exist. It was finally de cided that when an armed force enters foreign territory to carry out orders of its own sovereign superior, it cannot be assumed to submit itself to the civil jurisdiction of the country thus entered; that a condition simulat ing war exists and that martial law prevails in the zone of operations and so far as the mem bers of the expedition are concerned. The obscurities on this point have since been re moved by the amended Articles of War, adopted by Congress in 1916.
The greatest part of the law of the United States is statutory and its most important provisions are contained in the Articles of War. These statutes, like other enactments of Congress, are subject to interpre tation by the higher civil courts, and judicial decisions interpreting the law in cases as they arise are of equal authority with the statutes themselves. Among other forms of written
military law may be mentioned the decisions of the President and Secretary of War; the opinions of the Attorney-General and Judge Advocate-General; the Army Regulations and the General Orders of the War Department. The latter include the famous °General Order No. 100 (of 1863) for the Conduct of Ameri can Armies in the Field." There is also a body of well-established usages, known among military men as the "law of war,° which corresponds to the common law in binding force. A distinction is made between military and martial law; but martial law, with respect to the army, is merely military law under war conditions. In a state of war the penalties for offenses of a military charactergreatly . in crease in severity. Desertion and. insubordina tion are, and neglect of duty may be, punished with death. A sentinel found asleep at his post "shall suffer death, or such other penalty as a court martial may direct.° Persons in the military service who, in time of war, com mit larceny, robbery, burglary, arson, mayhem, manslaughter, murder, rape or assault and battery with intent to kill or to accomplish a rape, are not punishable by the civil courts but the sentence of a general court-martial. The military courts may also take cognizance of other offenses than those enumerated when committed by military persons in time of war. The sentence of a court-martial shall not be less than the penalty provided for by the civil law of the place. When a crime is committed by an American soldier in a hostile country against the inhabitants thereof, it is not only punishable as at home, but, in all cases in which the death penalty is not ordinarily inflicted, the severer penalty shall be preferred. This last-mentioned rule is really a part of the un written law of war and, specifically, of the "law of hostile occupation" or ((military gov ernment.° It is difficult, however, to distin guish between the various kinds of military law as applied to individuals. Both the statutory law of the United States (which is national) and the common law of war (which is inter national), provide penalties for wrongs done to the inhabitants of occupied territory. For in stance, it is declared in the Articles of War that, an officer or soldier who does violence to a person bringing provisions to a camp in foreign parts may, and one who forces a safe guard shall, suffer death.