U.S. Marine Corps - Small Wars Manual (1940 Edition)

Chapter XIII. MILITARY GOVERNMENT.

SECTION I
GENERAL

						Par.	

General						13-1
Definitions					13-2
Authority for exercise of military government	13-3
Functions of military government in general	13-4
By whom exercised				13-5
How proclaimed					13-6

13--1. Scope of chapter.-a. The features of the subject of military government herein discussed relate to the powers, duties, and needs of an officer detailed to command a force on a mission involving intervention into the affairs ofa foreign country under conditions which are deemed to warrant the establishment of complete military control over the area occupied by the intervening force. While the form of military control known as military government is designed principally to meet the conditions arising during a state of war, it has been resorted to, by the United States in numerous instances, where the inhabitants of the country were not characterized as enemies and where war was neither declared nor contemplated,

b. Military government being founded on the laws of war, many questions arise with regard to the method to be used in the application of these laws in situations equiring the establishment of such a government where no state of war exists. It is the purpose of this chapter to outline the general principles involved in the exercise of authority and functions of military government and to indicate how those principles are applied in the various situations with which the marine or naval officer may be confronted.

13-2. Definitions.-a. Military government. MIlitary government is the exercise of military jurisdiction by a military commander, under the direction of the President, with the express or implied sanction of Congress, superseding as far as may be deemed expedient, the local law. This form of jurisdiction ordinarily exists only in time of war, and not only applies to the occupied territory of a foreign enemy but likewise to the territory of the United States in cases of insurrection or rebellion of such magnitude that the rebels are treated as belligerents.

b. Martial law.-Martial law is that form of military rule called into action by Congress, or temporarily by the President when the action of Congress cannot be invited, in the case of justifying or excusing peril, in time of insurrection or invasion, or of civil or foreign war, within districts or localities whose ordinary law no longer adequately secures public safety and private rights

c. Distincions.-The most important distinction between military government and martial law is, that the former is a real government exercised for a more or less extended period by a military commander over the belligerents or other inhabitants of an enemy's country in war, foreign or civil; martial law, on the other hand, is military authority called into action, when and to the extent that public danger requires it, in localities or districts of the home country which still maintain adhesion to the general government. The subjects of military government are the belligerents or other inhabitants of occupied territory, those of martial law are the inhabitants of our own territory who, though perhaps disaffected or in sympathy with a public enemy, are not themselves belligerents or enemies. The occasion for military government is usually war; that for martial law is simply public exigency which, though more commonly growing out of pending war, may nevertheleds be invoked in time of peace in great calamities such as earthquakes and mob uprisings at home.

13-3. Authority for exercise of military government.-Military government usually applies to territory over which the Constitution and laws of the United States have no operation. Its exercise is sanctioned because the powers of sovereignty have passed into the hands of the commander of the occupying forces and the local authority is unable to maintain order and protect life and property in the immediate theater of military operations. The duty of such protection passes to the occupying forces, they having deprived the people of the protection which the former government afforded. It is decidedly to the military advantage of the occupying forces to establish a strong and just government, such as will preserve order and, as far as possible, pacify the inhabitants.

13-4. Functions of military government in general.-As to its function, military government founded on actual occupation is an exercise of sovereignty, and as such dominates the country which is its theater in all branches of administration whether administered by officers of the occupying forces or by civilians left in office. It is the government of and for all the inhabitants, native or foreign, wholly superseding the local law and civil authority except insofar as the same may be permitted to exist. Civil functionaries who are retained will be protected in the performance of their duties. The local laws and ordinances may be left in force, and in general should be subject, however, to their being in whole or in part suspended and others substituted in their stead, in the discretion of the governing authority.

13-5. By whom exercised.-military government may be said to be exercised by the military commnander , under the direction of the President, with the express or implicit sanction of Congress. The President cannot, of course, personally administer all the detiails, so he is regarded as having delegated to the commander of the occupying forces the requisite authority. Such commander may legally do whatever the President might do if he were personally present. It follows that the commander of the occupying force is the representative of his country and should be guided in his actions by its foreign policy, the sense of justice inherent in its people, and the principles of justice as recognized by civilized nations. A single misuse of power, even in a matter that seems of little importance, may injure his country and its citizens. Foreign, official, commercial, and social relations depend in a great measure upon the friendliness of other countries and their people. Acts of injustice by a force commander jeopardize this friendliness, especially in neighboring countries, or in those whose people have racial or other ties in common with the people of the occupied country.

13-6. How proclaimed.-In a strict legal sense no proclamation of military occupation is necessary. Military government proclaims itself; a formal proclamation, although not required, is invariably issued and is essential in a practical way as announcing to the people that military government has been established and advising them in general as to the conduct that is expected of them. It should be remembered that the inhabitants do not owe the military government allegiance; but they do owe it obedience. A sample form for a proclamation may be found in the current issue of Naval Courts and Boards.