Cyclopædia of Political Science, Political Economy, and the Political History of the United States
OCCUPATION. I. Of the different meanings of this word, that which has the longest exercised the ingenuity of publicists relates to the manner of acquiring lands which up to the time of acquisition had no owner. The occupation of such lands, that is, the taking of effective possession of them, is one of the means of obtaining the right of property in them. The individual who discovers an uninhabited island, which constitutes no part of an established state, may appropriate it, cultivate it and dispose of it, and the more labor he expends upon it the less contestable is his title thereto. If the island forms part of a state, he can not acquire the ownership of it, unless the laws recognize the rights of the first occupant, or he can acquire these rights only on the conditions provided by the laws of the country. Thus, in the United States, the land which belongs to no one in particular forms part of the domain of the Union; it is not, strictly speaking, without an owner; and hence the first occupant has only a limited right, the right of pre-emption of such land. But to proceed with the hypothesis of a desert island. A European, let us suppose, discovers such an island in the Pacific ocean, and takes effective possession of it. It does not suffice for this purpose to erect a post, and nail a board to it, with a notice of the taking of possession, and do nothing further; the occupation and exploitation of the land are absolutely necessary. Our European is assuredly the proprietor of this island by private title, or from the standpoint of the civil law, but is he also its political lord? He can only be so in one case; if he has previously freed himself from the bonds which attach him to his own country. As long as he remains a Frenchman, a German or an Englishman, his status follows him, his country retains its rights over him, he nationalizes or naturalizes the objects which become his property, for, in many respects, property, at least movable property, is an accessory of the man. The power of a citizen, however, to cause an accession of land in favor of his country is not unlimited, for the power of his country is not unlimited. Just as his personal status follows him wherever he goes, while his real status (immovable property) necessarily remains subject to the territorial laws of his country; so his right of extending the boundaries of the nation to which he belongs may be contested. In other words, the right of an individual to take possession of land in the name of his government may be questioned. The law on this point is not well settled, for the reason that the facts in cases of this kind have not greatly varied. An individual might live on an island, lost in the ocean, and enjoy sovereignty, because no one cares to disturb him. He might also feel the need of protection, and ask it of his native country; but the latter is the judge of what he may with propriety do. It can grant or refuse its protection. It will never grant that an individual can bind it without a commission to do so, and it is free not to ratify the taking of possession; but if it wishes to accord its protection, if it consents to cover with its flag the domain which has come to it by accession, it must do so by a formal or express act; it is for the government to take possession. The official occupation of land without an owner, by the agents of a government, constitutes a mode of acquisition fully recognized by international law. This mode of acquisition has been used and abused, but in proportion as the earth becomes peopled, there is less occasion to have recourse to it.
—II. Up to this point there has only been in question the occupation of a territory without an owner, but there is also such a thing as the occupation of an inhabited country. A victorious army, which invades a country, occupies it in part or in whole, and sometimes during a long period. We shall not stop to discuss an occupation which lasts days or weeks, and the near end of which may be foreseen. The invader should be humane, should demand only those things which he needs for his support, and should destroy nothing, except to defend himself or as an act of war. He should not destroy simply for the sake of destruction. If the occupation is a lengthy one, matters become complicated, and a great number of questions arise. In such case evidently the power which occupies a country has become its master; it exercises there the rights of sovereignty, levies taxes, makes the necessary laws, and, if need be, administers justice; but it possesses only sovereignty de facto, and not sovereignty de jure. Thus, the inhabitants do not lose their nationality, the civil relations between the citizens of the country occupied remain intact, and the laws continue in force, save those which the conqueror has expressly repealed, modified or suspended. A crime committed during the occupation is punishable by the tribunals of the country, even after the conclusion of peace. An alien, even if he belongs to the nationality of the conqueror, but is not a part of the army, remains subject to the laws of the invaded country, and he may, if the statutes of limitation do not prevent it, be arrested after the declaration of peace, for the crimes he may have committed at a time when the courts perhaps were not in a condition strictly to enforce the law.
—Unless the commander of the invading army decides to the contrary, the administrative authorities may remain at their posts, and maintain their governmental order. The courts may continue to administer justice, and it is even their duty to do so as long as there are no serious moral or material obstacles in the way. They administer justice in the name of their sovereign. In the Franco-German war a very peculiar difficulty arose. During the war, the revolution of the 4th of September having changed the form of the French government, and the Germans not having yet recognized the republic, they thought that they could not permit justice to be administered in their presence, in the name of the republic, without seeming to recognize it; they therefore requested that the court of Nancy and several other courts should sit in the name of the "occupying governments," which these courts rightly refused to do. The Germans were doubly mistaken: first, in asking that justice should be administered in their name; and secondly, in supposing that the administration of justice in the name of the republic implied on their part a recognition of its government. They were supposed, or might have been supposed, to ignore the proceedings of the courts, as long as the magistrates had nothing to do with the war, and their judgments and decrees affected only private interests.
—III. We have again the occupation of a country by way of pledge, as for instance, for the payment of a war indemnity. In cases of this kind the details of the mode of occupation are generally regulated by treaty. However, as a state of peace has here succeeded that of war, all public services are resumed and directed by the national government, and the commander of the army of occupation has no power but such as is necessary for the security of his troops. He can not levy taxes, nor demand any contributions except those stipulated for in the treaty; but if the local authorities are unable to preserve his safety, he has the right to protect himself. The inhabitants of the occupied country should have the patriotism to avoid giving him any serious ground of complaint. A calm dignity is always more noble than daring but ill-judged annoyance. Occupation may also be a mode of coercion, of compelling the fulfillment of a contract. For example, if one of the German countries did not submit to some one of the provisions of the federal constitution, the emperor might send troops of occupation into such country, which would act as a sort of bailiff at the expense of the country occupied. But the state of peace would not necessarily be interrupted, and the civil authorities would continue to discharge their functions as usual. These two kinds of occupation may be considered as legal measures, but history has also recorded, and much too frequently, occupations more or less well (we should say illy) justified by policy. These occupations being made outside of the provisions of international law, publicists can scarcely think of laying down rules for them.
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