The treatment of alien enemies

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THE TREATMENT OF ALIEN ENEMIES

BY

Chapter I Introduction

The law and practice in respect to the treatment of alien enemies has been subject to a rapid and revolutionary change since the commencement of the hostilities which are now in progress. The present war has demonstrated, if demonstration were necessary, that in respect to alien enemies as well as to non-combatants in general, the theory of warfare as laid down by Rousseau is not recognised. War has never been, and surely since 1914 has not been, merely a relation between states, a conflict between armed forces. The tendency of modern practice, however, was to apply this doctrine. The treatment accorded to civilian aliens of enemy nationality in the wars of the latter half of the nineteenth century was remarkably lenient. In many cases practically no disabilities whatsoever were placed upon them. The events which have taken place since 1914 have completely reversed the direction of this development and of the present conflict it has been said that "this is not a war between armies but a war between nations and that every individual whether civilian or not has got to throw his weight into the scale.'

1 From a speech by Mr. Bonar Law in the House of Commons May 13, 1915 upon the government plans for the detention of alien enemies. See below p. for a more complete quotation.

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The problem of the treatment of alien enemies is not a new one. Nevertheless, for a number of reasons it has assumed an importance in the present war unknown in the wars of the past. Perhaps the most fundamental reason for the increased importance of this question is to be found in the changed relations between peoples of j different countries which has come about in the last few decades. It is a matter of common knowledge that enormous strides have been taken in the development of international relations since the middle of the nineteenth century. Improvements in transportation have greatly increased travel in foreign countries. The same improvements have given a great stimulus to international trade. Developments in the means of intercommunication, the use of the telegraph, cable, international news service, the standardization of the monetary systems of the different sovereign powers have tended to make the world a unit and thereby encourage foreign trade, foreign investments and the establishment of branch concerns in foreign lands. Again the rising standards of living throughout the world have caused a corresponding demand for the exchange of commodities to be found or produced only in one quarter of the world. Thus it was that in August, 1914 international intercourse had reached a high stage of development and because so many persons of foreign nationality were to be found in the various warring countries and such extensive investments of foreign capital had been made, the sudden outbreak of war found large numbers of persons in enemy countries and affected them with the status of alien enemies.

The subjects of Germany and her allies were to be found in the largest numbers in enemy territory. In a letter of November 9, 1914 to Mr. Page, the American ambassador at London, Sir Edward Grey estimated that there were over 50,000 German subjects residing in the United Kingdom. There were also a considerable number of Austrians and Hungarians to be found in the British Isles. The problem with respect to alien enemy persons, however, was more acute in France than in any of the other belligerent countries. It was estimated by an official of the American embassy in Prance that there

were some 30,000 Germans and Austro-Hungarians in Paris and its environs at the outbreak of war. According to the French census of 4

March 1911 there were at that time 1,160,00 alien persons or 2.96^ of the entire population of France, within French borders. The proportion of alien persons was even greater in Paris where 194,000 or 6,8% of the population of the city owed allegiance to some other power. The alien population of Paris was, in fact, much greater than that of any of the other large European cities. In proportion to the total population there were three times as many foreigners in Paris as in London and twice as many as in Berlin, Vienna or Petro-

grad. There were at this time approxiraatly 165,500 subjects of countries with which France is now at war. The number of alien per-

2 House of Commons Sessional Papers. Misc. #8 (1915) cd. 7857 p. 15

3 Wood, Notebook of an Attache' p. 5-6

* These statistics may be found in the Bulletin du Ilinistre du

Travail. Jan. -Feb. (1916) pp.55 ff. and June (1916) pp. 834 ff. 5

This is exclusive of Bulgaria, for which country I was unable to secure statistics.

sons in Germany was very much smaller than in England and France. It was estimated that there were only about 5,300 British subjects within the German Empire and a considerably smaller number of French persons than German persons in France. The entrance of Italy into the war found about 30,000 Italian persons in Germany and 50,000 German subjects in Italy. Many of these persons thus found on enemy soil had established permanent residences there, had lived the greater portion to their lives in a foreign countries, had established businesses, had married native persons and had reared families. To these classes of persons therefore the operation of the laws with respect to alien enemies has been particularly severe.

The amount of property owned by alien enemies was also large, especially that owned by subjects of Germany. Several of the large banks in London were largely owned and operated by German persons. Mr. Runoiman, the British I minister of Trade stated that the value of property owned by Germans in England amounted to

$ 480,000,000 and that the value of German securities held in enemy countries was approximatly $145,000,000. Dr. Vittoria Racca of

the University of Rome estimated that German investments in Italy

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amounted to not less than $3,000,000,000. From these large investments of alien persons in enemy territory and from the large

£ ii l l

From an unpublished manuscript by Professor J. W. Garner.

^ Journal du Droit International (hereafter referred to as "Clunet") 1915 p. 286

8 London Times. March 26, 1916. Compare an unpublished manuscript by Professo~ J. W. Garner.

numbers of such persons found there, it is evident that the problem of the treatment of alien enemies is one of considerable significance.

The third complicating feature of the problem was the extensive and effective system of espionage which the German government was credited with having set up in foreign countries. Treitschke says that "in the national wars of the present day every honest subject is a spy and therefore the banishment of 80,000 Germans from France in 1870 was not in itself a violation of the law but was only indefensible because it was carried out with a certain

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brutality." This was accepted in France and England to represent the German belief and practice and consequently every German subject was regarded as an actual or potential spy. It was said by the British court in the case of ex parte Liebmann10 "there are a large number of German subjects in this country. This war is not being carried on by naval and military forces only. Reports, rumors, intrigues, play a large part. Methods of communicating with the enemy have been entirely altered and largly used. I need only to refer to wireless telegraphy, signalling by lights and the employment on a scale hitherto unkown of carrier pigeons. Spying has become the hall mark of German'kultur ♦ . In these circumstances a German civilian in this country may be a danger in promoting unrest, suspicion, doubts of victory, in communicating intelligence,

Politics, Vol. II p. 610. 113 L.T.R. 971 in assisting in the movements of submarines and Zeppelins, a far greater danger indeed than a German soldier or sailor." The possibility of effective espionage was further increased by the character of alien persons in enemy countries. The majority of foreigners in France, for example, belonged to different professions and might thus be expected to be capable of inflicting greater injury upon the state than those belonging to more humble classes. ^

It may be accepted as a guiding principle that no country is under obligation to further the casue of its enemy by granting to them the means of their own opposition and possible destruction, and on this ground the taking into custody of private property of alien enemies might easily be justified. As applied to the persons of alien enemies in the present war, however, this principle is of particular significance and contributes, to the importance of the problem of the treatment of alien enemies. Compulsory military training and service, so widely employed by the various warring nations, has been responsible to no small degree for the rigorous treatment to which alien enemies have been subjected, for obviously no country would be justified in releasing trained reservists of military age, who would upon reaching their native land devote themselves to the prosecution of war against the country in which they were a short time before permanently or temporarily resident. Furthermore, alien enemies in returning to their native lands are made

1 Bulletin du Ministre du Travail. June (1916) p. 234 ff. 12

Bonfils, Droit International Public, p. 591.

doubly valuable for military purposes by reason of their knowledge of the topography of the enemy territory and a possible, even though unpremeditated, knowledge of enemy resources and preparation.

Finally, the suddenness with which the war broke out made it impossible for many of such persons to return to their native countries. In most of the warring countries only a short time was allowed within which persons of enemy nationality, usually those not of military age, might leave and because of the congestion of traffic, occasioned by the attempted escape of all alien persons from the scenes of activity and the mobilization of armies, together with the lack of funds due to the suspension of payment on paper drawn on enemy banks, many were caught in enemy territory and thereby made alien enemies.

Before proceeding further it may be well to inquire into

the meaning of the term "alien enemy. M Upon first thought the

problem of defining the term seems simple enough. Obviously an

* alien' is one who owes allegiance to some sovereign other than the

one who regards him as an alien, and an'alien enemy* is an alien

whose "sovereign or State is at war with His Majesty the King* to

accept the definition given by the Order in Council of the British government on August 5, 1914. It is important that the distinction between an 'alien enemy' and an 'enemy' be kept clearly in mind. The British law for example, declares anyone in enemy territory and

\ 3

Aliens Restriction Order. This order may be found in Pulling's Manual of Emergency Legislation.

carrying on "business there to "be an enemy. The test of enemy character, therefore, is domicile rather than nationality. Thus a person, even though a British subject, today voluntarily dwelling and carrying on business in the German Empire is, insofar as trade and intercourse with that person is concerned, regarded by Great Britain as an enemy. As Hall has stated it. "a foreigner living and established within the territory of a State is to a large extent under its control; he cannot be made to serve it personally in war, but he contributes by way of payment of ordinary taxes to its support and his property is liable like that of subjects, to such extraordinary subsidies as the prosecution of a war may demand. His property thus being an element of strength to the state, it may reasonably be treated as hostile by an enemy."14 Such a person as viewed from the standpoint of the state to which he owes allegiance would be an enemy, but would be an alien enemy from the standpoint of the state in whose territory he was resident, inasmuch as he was the subject of a hostile power. In many cases, therefore^ whether a person is an alien enemy or merely an enemy depends upon the standpoint from which he is considered.

Although the French theory of enemy character has differed from that of Great Britain in that they have accepted nationality rather than domicile as the test for enemy character, nevertheless the terms of the French decree of September 27, 1914 bring about this same anomalous situation, a citizen subject to treatment as an

L

Principles of International Law. 5th. Ed. p. 497.

enemy. A8 has been said, "only the subjects of the Empires of Germany and Austria-Hungary and the persons who reside in the territories of these Empires are able legally to be the objects of measures of sequestration in virtue of the decree of September 27, 1914. r The effect of this decree was, therefore, to make the French property of a French national residing in Germany subject to the same regulations as applied to property of German subjects in France. In this capacity he would be treated as an enemy rather than an alien enemy. Consideration will, however, be limited to a person's

standing as an alien enemy as distinguished from his status as an 16

enemy.

Having distinguished between enemies and alien enemies, it would seem that the definition already given as to who are alien xo Reulos, Manual des Sequestres, p. 251. The Tribunal of the Seine made this decision in the case of a German who had become naturalized in France more than six years before the war broke out but had quitted France upon outbreak of war and had resumed his domicile in Germany. Although his denaturalization had not been pronounced, his goods were subject to sequestration as German goods| in France. Such a dispostion, in Reulos 'opinion, would not be made in case the French citizen were detained in Germany as a prisoner.

It will not be possible to adhere strictly to this method of treatment. When discussing the matter of the treatment of the property of alien enemies, property of enemies of whatsoever character has been included, inasmuch as the treatment in the two cases has been identical. In view of the French decree of September 27, 1914 it has been necessary to include in some cases even property of French citizens dwelling in the German Empire. Strictly applied, the English law would operate in the same manner. Because of the rigorous treatment of British and French persons in Germany, although their property in England and France legally would be subject to treatment in the same manner as the property of alien enemies, there is no evidence that their property has been so dealt with. Many phases of this question bear a close relation to the other questions of the law of war and it has often been difficult to determine where distinctions should be made. Trading with the alien enemies would suffice. Accepting this definition (that an alien enemy is an alien whose state is an enemy state) the entire problem of citizenship recurs. It is not intended here to go into the matter of citizenship in detail, yet it is worth while to note the general practice and opinions of the nations now at war as to what constitutes citizenship for the purpose of determining the status of alien persons.

Great Britain has strictly held to the view that naturalization as a British subject even though formerly owing allegiance to a nation now an enemy, confers all the rights, privileges and obligations of a native born citizen. The certificates of naturalization state that naturalized persons are entitled to "all political and other rights, powers and privileges and subject to all obligations which a natural-born British subject is entitled or subject to in the United Kingdom." Similarly, a British subject having been naturalized in some other country is recognised as having lost his British nationality. In France the law has been practically the same save that by a law of April 7, 1915 the government was authorized to denationalize persons formerly of German nationality

who had become French citizens through naturalization subsequent to

January 1, 1913. The effect of this law was to make alien en-

enemy bears a close relation to the treatment of alien enemy property, the treatment of prisoners to the status of alien enemies in respect to their persons. Many cases of apparent omissions are therefore rnorely indicative that they have been considered as outside the strict limits of this problem. 17

Dalloz, Guerre de 1914. Tome4 p. 114 - 5.

_ emies of some persons who "before the outbreak of hostilities had "been recognized as French citizens.

The German Imperial and State Citizenship law of July 22, 191318 has been the most disconcerting feature of the question of citizenship. The application of this law has caused no little difficulty to alleged Germans found in foreign countries, particularly in England, at the outbreak of war. Among other provisions it is stated in section 25 of this law "citizenship is not lost by anyone, who, before acquiring foreign citizenship, has secured on application the written consent of the competent authorities of his home State to retain his citizenship." Again, section 26 enumerates two classes of German persons residing abroad who lose German nationality. First, a German liable to military service, having neither residence nor permanent abode in Germany, loses citizenship upon the completion of the thirty-first year unless he had made some satisfactory disposition of his liability to military service. The1 second class is that of a deserter from the German army not living in Germany, who loses his citizenship two years after the proclamation of the decision declaring him to be a deserter. The last paragraph of this section is the one of importance, for it is provided that whoever has lost his citizenship on either of these grounds may be naturalized by a Federal state "only after a hearing by the military authorities" and "if he proves that no guilt attaches, naturalization may not be denied him by the Federal state to which

18 See the American Journal of International Law, Supplement, pp. 217-27 for an English translation of this law.

he formerly belonged.1* The important thing to note is that this last paragraph carries with it the possibility of one's being reinstated as a German citizen, after having been denaturalized on the former grounds, without even returning to German territory. Finally, by section 13 "a former German who has not taken up his residence in Germany may on application be naturalized by the State of which he was formerly a citizen," provided that he is legally competent or application is being make by one who is legally competent and provided he has led a "blameless life." This provision is even extended to apply to one who is descended from a former German or has been adopted as a child of such. These provisions mark a considerable change from the theories of citizenship which formerly obtained and should be examined more minutely as to their effect.

The effect of section 25 seems to be to push the theory of dual nationality further than ever before, and to recognise that a person may owe allegiance to more than one nation at the sajne time. It would seem that the attempt made has been to conserve to the German state the services of the large number of Germans who migrate to other lands, as well as the service and loyalty of their descendants. In other words, as has been said "the performance of services to the

state rather than domicile within its territory appears to be made the basis of German nationality." * In explaining the purpose and import of section 13 Delius has said: "Section 13 aims to facilitate as far as possible the reinstatement of lost members of our

19 R. W. Flournoy-Ameri can Journal of International Law 1914 p. 477-86

population as citizens again. The Federal State may, not must, accordingly naturalize its former citizens, their descendants etc., who have not resumed their residence in Germany, In contrast to the citizens of other countries, Germans are not in the habit, after they have established themselves abroad, of returning permanently to their homes. Reference is made especially to representatives of commerce, to members of the German communities in Palestine, to misionaries and in general to persons who by being especially active in fostering Germandom abroad, for example in German societies and particularly by maintaining German schools and churches, do a worthy service.

"The possibility of reinstatement as citizens extends not only to persons who have no citizenship but also to such former Germans and their descendants as having acquired a foreign citizenship. M

Now it will be at once apparent that this law, affecting

as it does the nationality of persons of German descent abroad,

even though having acquired another nationality, is of tremenduous

importance, particularly in view of the fact that so many persons

of German origin or lineage were to be found abroad. Several cases

were tried in England early in the war in which reference was made

to the German citizenship law. There were two cases, almost identical both in fact and in import, ex parte Weber* and Rex v

A report of this case may be found in the Law Times Reports V. 113; 968ff. For a digest see Mew's Digest of English Case Law. (1911-1915) p. 9 nr:

Superintendent of Vine St. Police Station or ex parte Liebmann J which are particularly worthy of note. Both cases were decided with particular reference to section 26 of the German law. Weber was a person of German origin who had been absent from Germany for fourteen year3 and had failed to comply with the German laws of 1870 and 1913 with respect to length of foreign residence and loss of German nationality at the end of the thirty- first year. Although he had resided in England many years and had established a business there, at the outbreak of the war he was arrested and imprisoned as an alien enemy. Weber thereupon applied for a writ of habeas corpus and asked to be released on the ground that he had no nationality, never having become a British citizen and was to use the German term, "staatlos", having been discharged from German nationality by long residence abroad. The court held that by the terms of

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the German citizenship law of 1913 he had not lost his German citizenship for "if he proves that no blame attaches to him, the Federal state to which he formerly belonged may not refuse to naturalize him." In conclusion Lord Justice Reading said "we are not satisfied that it deprives him of all his rights as a German subject and we certainly are not satisfied that if he returned to Germany at the present moment he would not be bound to serve in the German army as a person of German birth notwithstanding that he has been absent since 1898 and notwithstanding also these two laws by which he has lost the right of the protection of the German Empire."

See the Law Times Reports (ibid) p. 971 for a report of this case.

The decision in the case of ex parte Liebmann was even more unusual. Liebmann was a former German who had been discharged from his German citizenship and had lived in England since 1889. though never having become a British subject. Having been imprisoned in the same way and for the same cause as Weber in the former case, he sought his release. The decision of the court was, however, the same as that in ex parte Weber. Because of the law of 1913 amending the law of 1870 "a former German" it was said, "can recover full German nationality without even going back to Germany at all. It is clear therefor that this applicant has not become entirely divested of the rights belonging to a natural born German and therefore.... The applicant is an alien enemy." The German Imerial and State Citizenship Law has been evoked in this manner to saddle upon seeming innocent civilians the character and burdens pertaining the^reto, of alien enemies and to extend this character and the disabilities attached, to a wide range of persons.

Thus far however we have considered the problem purely

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from the standpoint of the individual. When considering the treatment of the property of alien enemies reference will necessarily be made to corporations composed of alien enemy stockholders, although registered as native companies, mixed trading companies and branch houses.23 One of the early rules issued in England as a part of

23 As we have indicated above, it has been necessary to depart from strict adherence to the problem of alien enemies at this point and to discuss the treatment of such concerns although the principals involved are not strictly alien enemies but rather enemy subjects in their native lands. The entire problem might perhaps better be treated under the caption 'Trading with the Enemy', yet for purposes of this discussion it must also be noted.

the emergency legislation in defining "subjects of any state at war with hi3 Majesty" which embraces alien enemies said "the term..,, will be taken to include (a) a firm which by reason of its constitution may be considered as managed or controlled by such subjects, j or the business whereof is wholly or mainly carried on behalf of such subjects; (b) a company which has received its constitution in an enemy's state; (c) a company registered in His Majesty's dominions, the business whereof is managed or controlled by such subjects, or is carried on wholly or mainly on behalf of such subject It is clear then that the British law regards such joint concerns as enemy in character notwithstanding the fact that they may be registered as British companies. This matter was the subject of a

significant controversy in the case of the Continental Tyre and

Rubber Co. v. Daimler. The plaintiff was an English company incorporated under the Companies Act3, having a capital of 25,000 pounds at 1 pound per share. All the shares, with the exception of' one, were held either by the parent German corporation or by German subjects in Germany, one share being held by a British citizen. The question raised here was as to the character of the corporations Did the fact that the bulk of the shares belonged to the enemy make it an enemy company? Would payment to or trading with such a company be regarded as prohibited under the 'Trading with the Enemy

Notice, dated August 21, 1914, as to procedure to be followed under Rules 2 and 3 of the Patents, Designs, and Trade Marks (Temorary) Rules, 1914, dated August 21, 1914. Pulling's Manual of Emergency Legislation p. 229.

Act' of 1914? Does such a company have access to the courts to sue for the payment of its claims?

These questions were answered by Lord Reading, C.J. in handing down the judgement in the case in which he said that notwithstanding the fact that all the stockholders in the company mightj be enemy subjects, the company was an English corporation, registered under the Companies Act and was not changed because of a state of war. He said. "It remains an English company regardless of the residence of its shareholders or directors either before or after the declaration of war." A company, he declared, is a separare entity from the persons who compose it. "It cannot be technically an English company and substantially a German company, except by the use of inaccurate and misleading language. Once it is validly constituted as an English company, it is an artificial creation of the legislature and retains its existence for all intents and purposes. It is a living thing with a separate existence which cannot be swept

aside as a technicality In determining whether a company is

an English or foreign corporation no inquiry is made into the share register for the purpose of ascertaining whether the members of the company are English or foreign. Once a corporation has been created in accordance with the requirements of the law, it is an English company, notwithstanding that all its shareholders may be foreign." The court went on to say however in the course of the opinion that the foregoing does not mean that payment to shareholders resident or carrying on business in Germany would not be acting in defiance of the law, because acting in the name of the company.

To this decision Lord Justice Buckley filed a vigorous dissenting opinion, in which he stood alone. "The artificial legal person, called a corporation," he said, "has no physical existence. It exists only in contemplation of law. It has neither "body parts nor passions. It cannot hear weapons nor serve in the wars. It can he neither loyal nor disloyal. It cannot compass treason. It can he neither friend nor enemy. Apart from its corporators it can have neither thoughts, wishes nor intentions, for it has no mind other than the minds of the corporators." In concluding his argument, Justice Buckley said, "I am of the opinion that the Continental Tyre Company stand for the present in the position of alien enemies, for that, to use the language of the Bank of the United States v. Deveaux, the action is "by "aliens suing hy corporate name."

The decision which was thus made was received unfavorably by the general public and particularly by the press which was hostile to the concerns affected. The majority were inclined to accept Justice Buckley's dissenting opinion and subsequently, on June 30 1916, four months after the first trial of the case the House of

Lords reversed the decision and declared a company, the shares of which were owned usualy by enemies, to be a hostile concern.