ditions for acts committed against his authority 72 by persons not belonging to the armed forces of the enemy and may punish the community by fines or otherwise for such acts. This right, however, is not unlimited. It is subject to certain well-recognized limitations and restrictions, and can not be exercised arbitrarily at the will of the commander. Article 50 of the Hague Convention declares that "no general penalty (peine), pecuniary or otherwise, shall be inflicted upon the population on account of acts of individuals for which they can not be regarded as jointly and severally responsible" (solidairement responsables). Unfortunately the convention does not undertake to define the elements of responsibility, and military commanders therefore are left to judge for themselves in each specific case whether the act is or is not one for which the community could be properly held responsible. But the determination of the question of responsibility is obviously governed by certain well-established principles, one of which, it would seem, is that the community is not really responsible unless the population as a whole is a party to the offense, either actively or passively. If the act has been committed by isolated individuals in remote parts of the community without the knowledge or approval of the public authorities, or of the population, and which therefore the authorities could not have prevented, it would seem unreasonable and contrary to one of the oldest rules of the criminal law to impute guilt or responsibility to the whole population.74 Likewise, if the authorities have

72 There is a difference of opinion as to whether the right of punishment is limited to offenses in violation of the laws and customs of war. Bordwell (p. 316) thinks it is so limited, but Spaight (p. 408) holds otherwise and affirms that it extends to all acts forbidden by the occupying authorities, whether they are infractions of war law or not.

73 The word amende, employed in the Brussels Declaration, was rejected by the Hague Conference for the term peine, on the ground that the use of the former term involved a confusion of ideas of the criminal law with those of international law. See Albert Zorn, op. cit., p. 240, and Meurer, op. cit., p. 287. The change, however, has been criticized by some writers because the word amende, it is said, has a clear and definite meaning in international law. Compare Pont, Les Réquisitions, p. 92, and Merignhac, Les Lois et Coutumes de la Guerre sur Terre, p. 290.

74 Commenting on Article 50, Lawrence (Principles of International Law, p. 447) remarks that it allows inferentially pecuniary penalties upon communities when the responsibility can be brought home. "If a detachment occupying a village,' he says, "were slaughtered in the night while asleep, few would argue that the com

exercised reasonable diligence to prevent the act and if they have exerted themselves to discover and punish the actual perpertators, it hardly seems reasonable or just to say that the community is really responsible. To so hold is to insist that the public authorities are obliged to guarantee the perfect enforcement of the law, something which no community has ever in fact been able to do.

Nys remarks that collective responsibility exists only when the offense is imputable to all the inhabitants, as in the case of public injuries to the occupying force, manifestations of revolt and the like, or when the population by its attitude and will opposes an investigation.75 Nys even contends that community fines may not be justly levied for the acts of a few isolated individuals. Such fines, he says, may be imposed only where the whole population is guilty and this guilt must be proven by the military authorities. He repudiates Loening's view that no obligation rests upon the military authorities to establish the guilt of the inhabitants, and also the doctrine of Loening, Leuder and others that the effectiveness of pecuniary punishment in preventing a repetition of the acts is a sufficient justification for the resort to collective penalties.76 The purpose of Article 50, as Spaight

munity had no collective responsibility if a conspiracy of silence should baffle all attempts to discover the real perpetrators. On the other hand, if a train were derailed in the night while passing through a wild ravine far from human habitation, it would be wrong to hold that the population for miles around could have known of the deed and have assisted in it directly or indirectly."

75 Le Droit International, Vol. III, p. 429. Compare also Brenet, La France et Allemagne devant le Droit International pendant leurs Operations de la Guerre 1870–71, p. 197, and Westlake (op. cit., Vol. II, p. 106), who remarks that no fine is justifiable except where the responsibility can "justly be imputed to the inhabitants." Compare also Rolin's report on the subject at the First Hague Conference, where it was said: "that strictly individual acts could never be followed by collective repression in the form of a special war levy, and it becomes necessary that any repression, directed against the community, should be founded upon the more or less passive responsibility of that community. . . . The rule holds good not only in respect of fines, but for all penalties, pecuniary or otherwise, which it may be proposed to inflict upon the population as a whole."

76 See his article on Contributions et Réquisitions in the Revue de Droit Int. et de Lég. Comp., Vol. 38 (1906), p. 430. Compare also Merignhac (op. cit., p. 282), who contends that contributions under the form of fines can be levied only on offenders and their accomplices, and that they are illegal when they fall upon innocent persons, whatever the motive for which they are levied.

remarks, was to confine collective punishment to such offenses as the community has either committed or has allowed to be committed." Bonfils interprets the meaning of the article in a similar sense. A fine, he says, must be in its quantum proportionate to the gravity of the offense; it must bear only upon the offender and his accomplices; it is iniquitous when it falls upon the innocent who were not able to foresee the act, nor to prevent it nor to discover the offender.78

If, in the main, the principles thus laid down regarding the nature and limits of collective responsibility be admitted as sound, it is difficult to justify many of the impositions levied by German military commanders during the present war. Again and again they have imposed fines which would seem to be out of proportion to the gravity of the offenses alleged, and in some cases quite beyond the ability of the impoverished inhabitants to pay. It has been asserted that this was true of the levy of 60,000,000 francs on Liège (it matters little whether it was technically a contribution or a fine) a sum which amounted to about 300 francs per capita of the population; of the levy of 50,000,000 francs on Craiova, a town of only 52,000 inhabitants; of the fine of 10,000,000 francs on Courtrai; of the 100,000 franc fine on Mons; of the fine of 3,000,000 francs on Tournai; of the fine of 3,000,000 francs on the village of Wavre; and various others. In a number of instances it must also be remembered that these impositions were in addition to other heavy exactions in the form of requisitions, contributions and tax levies. Sometimes the offenses alleged were inconsequential acts committed by isolated individuals and involving no military injury or evidence of organized hostility to the authority of the occupying forces. Some of them, indeed, were so obviously mere pretexts that the exactions imposed were, as has been said, nothing more than contributions under the guise of fines. Some writers hold, and very properly, that such impositions do not differ from pillage, except in name, and are therefore forbidden by international law.79

77 Op. cit., p. 408.

78 Op. cit., sec. 1218. To the same effect see also Despagnet, op. cit., secs. 587588; Feraud-Giraud, op. cit., p. 17, and Bordwell, op. cit., p. 317, who remarks that collective punishment is permissible only when the community could and should have prevented the act.

79 Compare Latifi, Effects of War on Property, p. 34, and Bluntschli, Droit Int. Cod., sec. 654.

In other cases the fines imposed can be justified only on a theory of collective responsibility which is rejected by the great majority of writers and which hardly seems in accord with reason or justice. Such a case was the fine of 5,000,000 francs on Brussels for the act of a police constable. The affair was one of which the population had no knowledge; they were neither active nor passive accomplices; nor was the act one which the authorities could have prevented, because they could not have foreseen it. It was an isolated individual offense and the offender was promptly arrested by the German authorities and punished by a term of imprisonment. It is difficult to understand the process of reasoning by which responsibility for an act of this kind could be imputed to the whole population. The fine was therefore nothing more than a contribution in disguise and involved no question of community responsibility.

Likewise, it is difficult to justify the second fine of 5,000,000 francs imposed on Brussels for the destruction of a Zeppelin. If the act was committed by a person belonging to the Belgian military forces, it was a lawful belligerent act for which the community was not liable to punishment; if it was done by a civilian, responsibility could not be imputed to the whole population, unless it was established that they were accomplices, which was probably not the case. In any event, the amount of the fine in both cases would seem to have been out of proportion to the gravity of the offense. The legality of the third fine of 5,000,000 francs laid on Brussels in consequence of the popular demonstration on the national holiday has been denied by the Belgian writers on the ground that a military occupant has no lawful right to repress by huge fines the manifestation by the inhabitants of their patriotic sentiments. It can hardly be contended, however, that if acts of this kind amount in fact to open manifestations of hostility toward the occupying Power, or if they are accompanied by public disorders, they may not be repressed or punished by means of fines. On the other hand, if as the Belgians allege to have been true in this case, the demonstrations were peaceable, and consisted merely of processions and the carrying of flags and that no manifestations of hostility took place, the imposition of the fine is less defensible, if it can be defended at all. Certainly, the imposition of a heavy fine on the town of Lierre for the

hoisting of the Belgian flag on a tree, if as the Belgians allege, the act was unaccompanied by manifestations of hostility or the spirit of revolt, strikes one as being a species of petty tyranny of the same kind as the act of the Federal commander who at Natchez in 1864 banished a local preacher for refusing to pray for the President of the United States.80 The same judgment may be passed upon the act of the German commander who fined the city of Lille for the demonstrations of sympathy by some of the inhabitants for their unhappy fellow countrymen who were being escorted as prisoners through the streets. No acts of hostility were charged, no disorders appear to have been committed and no injury was done to the authority of the occupying forces.

The 500,000 franc fine levied on Brussels in consequence of the crime of murder by an unknown person in the suburb of Schaerbeek

this on the assumption that the weapon used had been procured in Brussels where the possession of firearms by the inhabitants had been forbidden by the military authorities- certainly involved a wide extension of the theory of collective responsibility. The local civil authorities had issued a proclamation urging the people to bring in their firearms and deposit them at the city hall and warning them of the severe penalties to which they were liable in case of non-compliance with the orders of the military authorities. If the civil authorities did all in their power to insure compliance with the German military regulations and also exerted themselves to discover the offender, as they claim to have done, it may be seriously doubted whether under any reasonable or just interpretation of the rule as to collective responsibility either guilt or responsibility could be imputed to the whole population. In any case, one is tempted to inquire why the responsibility for enforcing the orders of a military occupant should be placed on the civil authorities. The Hague Convention in fact imposes upon the occupying authority the duty of maintaining order; his authority in the occupied district is supreme; he has full control of the local administrative and judicial machinery; he may alter the criminal law and increase its severity in order to repress acts against his authority; he may establish special tribunals to enforce the law; and he has at his disposal his own armed forces. In view of these facts, it is a fair question to

80 As to the facts of this case see Garner, Reconstruction in Mississippi, p. 37.