With respect to civilians the ordinary civil and criminal laws are not, ipso-facto, suspended when a nation is at war, though in a zone of actual operations military rule may be estab lished and martial law enforced. But in hostile territory occupied by an invading army the functions of civil government cease, or continue only with the sanction and, if deemed necessary, the participation of the occupier. The latter may, and will, continue in force the territorial law, to be administered as between the civilian population and, as far as prac ticable, by the local magistracy, when to do so is not in conflict with provisions for the security, maintenance and efficiency of the occupying army or the success of its operations. But the government of occupied territory is of neces sity military and any violation of the law of war by a civilian comes under the jurisdiction of the military tribunals of the occupier. Re lieving the enemy with money, food or am munition; harboring or protecting an enemy; aiding war prisoners to escape, or destroying railroads, bridges, telegraphs, etc., are war crimes. Any secret or unauthorized communi cation with the enemy is considered treasonable by the law of war. Foreign residents in oc cupied territory, or foreign visitors in the same, can claim no immunity from this law. They may communicate with foreign parts so far as the military commander permits and no further. A war crime is always severely punished. The penalty for war treason is death, when the offense consists in the betrayal to the enemy of anything concerning the condition, safety, operations or plans of the troops holding or occupying the place or district. The law of war, like the criminal law, takes no account of sex, concerning the spy, the war traitor or the war rebel. (General Order No. 100, Art. 102). Most of the offenses indicated above as crimes under the common law of war are also defined as crimes in the statutory law of the United States. They are punishable in accord ance with the latter law. whether or not com mitted within zones of operation or in hostile occupied territory. Martial law at home is a mere euphemism for military government as a domestic fact. It is an extension of military power over persons and things not ordinarily subject to it, and such power may be exercised in time of war, insurrection or rebellion in parts of the country retaining allegiance. Whenever feasible, martial law is carried out in cases of individual offenders by military tribunals. (General Order No. 100, Art. 12).
Courts-martial are tribunals created by the order of a proper convening authority and are empowered to try accusations, reach findings of guilt or innocence and to impose appro priate sentences. Their sentences, however, have no legal validity of themselves, being in the nature of recommendations merely. until they have received the approval of a military commander, designated by law for this purpose, who is called the reviewing authority. Only with such approval or confirmation do the sentences of these tribunals become operative and acquire the same sanction as the sentences of civil courts having criminal jurisdiction. Courts-martial differ from civil tribunals not only in the nature and extent of their jurisdic tion but also in the manner of their creation. Civil courts are created by statutes which define their composition and endow them with appropriate powers, and which make them permanent institutions of the State. Courts martial, on the other hand, though authorized by statute, are created in every instance by military orders issued by the commander-in chief or other officers empowered by the Articles of War to call them into being. When the case, or cases, referred to a court-martial for trial have been disposed of, the tribunal is dissolved by the authority that created it and ceases to exist.
Courts-martial may be composed only of commissioned officers and are of three grades — general courts-martial, special and summary courts-martial. Special and summary courts martial are tribunals of limited powers, ap pointed by the commandants of garrisons, forts, camps or other places where troops are on duty, for the enforcement of discipline among the rank and file of their commands. They have no jurisdiction over commissioned officers nor over the more serious military offenses. Special or summary courts-martial can impose no penalties more severe than imprisonment and loss of pay for six or three months, re spectively. Non-commissioned officers cannot
be tried by a summary court, if they object, without authority of a superior officer who would be competent in law to bring them to trial before a general court. Neither may a summary court try a soldier holding the privileges of a certificate of eligibility to pro motion to commissioned rank. Special courts martial are composed of three officers of the regiment, corps or other detachment, or of the camp or garrison, for which they are ap pointed. A summary court for a detachment or post in which there is but one commissioned officer may consist of that officer alone; but its judgments, in that event, cannot be carried out without the special approval of a superior au thority if they involve penalties greater than one• month's imprisonment and forfeiture of pay. As its name implies, the procedure of this court is summary. The officer constituting the court is not sworn, but performs his duty under sanction of his oath of office. When the accused party in arrainged, if his plea be guilty, he is given an opportunity to make a statement and to introduce testimony in respect to char acter. If the plea be not guilty, the trial pro ceeds in the usual manner, but the evidence is not recorded. The commanding officers who are empowered by law to approve the sentences of inferior courts-martial have power, also, to remit or mitigate the same.
General courts-martial may be appointed by the President, the commanding officer of any territorial division or military department, the commanding officer of an army, a field army, an army corps, a division or a separate brigade. Also, whenever necessary, and when empowered by the President, by the commanding officer of any district or of any force or body of troops. When any commander is the accuser or prosecutor the court shall be appointed by a superior competent authority. No officer shall be eligible to sit as a member of such court when he is the accuser or a witness for the prosecution. General courts-martial have the most extensive jurisdiction of all military tribunals, both in respect to persons and cases. They are empowered to try any military per son, whatever his rank, for any act made pun ishable by the Articles of War; also any other person, civilian or military, who, by the statutes of the United States or the common law of war, is subject to trial by a military tribunal. General courts-martial have the power to im pose the death penalty, which special and summary courts have not. General courts martial may consist of any number of officers from 5 to 13. They shall consist of the larger number when that many officers can be convened without manifest injury to the serv ice. But the judicial functions of general courts-martial may be exercised only by prop erly constituted tribunals of at least five mem bers. A less number is without power to enter upon the trial of a case, to proceed with a trial already begun or to perform any act of a judicial character. The number of officers who shall compose a particular court is determined in conformity with the statute by the conven ing authority, and his conclusion in that re gard is final. No officer or soldier put in arrest shall be continued in confinement more than eight days or until such time as a court martial can be assembled. The procedure of courts-martial is substantially the same as that of civil courts having criminal jurisdiction. The accused may challenge any member of the court for cause, but peremptory challenges are not allowed. The court and judge-advocate are sworn and witnesses are put to their oath. The allegations against the accused are embodied in charges and specifications which correspond with the indictment and counts in ordmary criminal actions. When arraigned, the ac cused may plead to the jurisdiction, in bar of the trial, or in abatement of the action. When these pleas are exhausted, or if none of them is resorted to and a plea to the general issue is made, the case goes to trial on its merits. The rules of evidence are those which regulate the admission of testimony in criminal cases in the courts of the Unitel States. See HABEAS CORPUS ; HIGH TREASON ; MILITARY COURTS MARTIAL; and consult 'Regulations of the Army of the United States' (Washington, Government Printing Office, 1916, containing the revised Articles of War) ; 'Rules of Land Warfare' (issued by the War Department — Office of the Chief of Staff, Washington 1914).