article 23 (h) was in its judgment to be read "as forbidding any declaration by the military commander of a belligerent force in the occupation of the enemy's territory which will prevent the inhabitants of that territory from using their Courts of Law in order to assert or to protect their civil rights." The Court admitted that article 23 (h) had given rise to difference of opinion in regard to its interpretation, but considered that the English rule and the probability of its enforcement in the present war had been made public to the world, and that it was perfectly well understood by the German Government (to which nationality the alien enemies in the cases under discussion belonged). In support of this belief the Court referred to a published letter of March 27, 1911, from the Foreign Office (answering an inquiry from Professor Oppenheim) which contained "a powerfully reasoned exposition of the view that this paragraph has no concern with the municipal law, but relates to the conduct of those who are in command of an army in occupation of the territory of the enemy." The court further referred to an incident of a diplomatic character namely: "On the eve of the outbreak of the present war the German Ambassador in London addressed a communication to our Foreign Office to this effect: 'In view of the rule of English law the German Government will suspend the enforcement of any British demands against Germans unless the Imperial [German] Government receives within 24 hours an undertaking as to the continued enforceability of German demands against Englishmen. No arrangement was arrived at." Accordingly the Court reiterated its opinion that Article 23 (h) "has not the extended meaning claimed for it, and does not affect the ancient rule of the English Common Law that an alien enemy to such regulations as could be issued by the War Department to the British army. The Court also argued that the article by its very terms was inoperative in regard to Great Britain, since it prohibits the government from making a "declaration," whereas by the existing law of Great Britain "the mere fact of war operates ipso facto to suspend any rights of action which at the time of the outbreak of the war any alien enemy may possess." The court found support for its opinion in the views expressed by Professor Sieveking, "an eminent German jurist," in regard to this particular point. unless with special license or authorization of the Crown has no right to sue in our Courts during the war." In conformity with the principles of the Common Law held to be in force, the Court further stated that an alien enemy might be sued or proceeded against during the war. As a consequence of this liability to suit it followed that he could appear and be heard in his defense, and might take all such steps as might be deemed necessary for the proper presentment of his defense, and that equally the appellate courts were open to him as much as any other defendant if judgment proceed against him. In the case of an alien enemy, who before the outbreak of the war was a plaintiff in a suit, and then who by virtue of his residence or place of business became an alien enemy, the Court held that he could not proceed with his action during the war. If judgment had been pronounced against him before the war in the suit in which he was plaintiff, the Court held that he could not present an appeal to the appellate courts, since they saw no reason to distinguish in principle between the case of an alien enemy seeking the assistance of the King to enforce a civil suit in the court of the first instance and an alien enemy seeking to enforce such right by recourse to the appellate courts. (Prepared from the decision in the cases as reported in the London Times, January 20, 1915; see also Times Law Reports, vol. XXXI, pp. 162–71.) TRADING WITH THE ENEMY (EXTENSION OF POWERS) ACT (1915) Ambassador W. H. Page to the Secretary of State [Telegram] AMERICAN EMBASSY, LONDON, January 19, 1916. TRADING with the enemy (extension of powers) act 1915. An act to provide for the extension of the restrictions relating to trading with the enemy to persons to whom, though not resident or carrying on business in enemy territory, it is by reason of their enemy nationality or enemy associations expedient to extend such restrictions (23d December, 1915). Be it enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal and Commons in this present Parliament assembled, and by the authority of the same, as follows: 1. (1) His Majesty may by proclamation prohibit all persons or bodies of persons, incorporated or unincorporated, resident carrying on business or being in the United Kingdom, from trading with any persons or bodies of persons not resident or carrying on business in enemy territory or in territory in the occupation of the enemy (other than persons or bodies of persons, incorporated or unincorporated, residing or carrying on business solely within His Majesty's dominions), wherever by reason of the enemy nationality or enemy association of such persons or bodies of persons, incorporated or unincorporated, it appears to His Majesty expedient so to do; and if any person acts in contravention of any such proclamation he shall be guilty of a misdemeanour, triable and punishable in like manner as the offence of trading with the enemy; (2) any list of persons and bodies of persons, incorporated or unincorporated, with whom such trading is prohibited by a proclamation under this act, may be varied or added to by an order made by the Lords of the Council on the recommendation of a Secretary of State; (3) the provisions of the trading with the enemy acts, 1914 and 1915, and of the customs (war powers) (Number 2) act, 1915, and all other enactments relating to trading with the enemy shall, subject to such exceptions and adaptations as may be prescribed by Order in Council, apply in respect of such persons and bodies of persons as aforesaid, as if for references therein to trading with the enemy there were substituted references to trading with such persons and bodies of persons as aforesaid, and for references to enemies there were substituted references to such persons and bodies of persons as aforesaid, and for references to offences under the trading with the enemy acts. 1914 and 1915, or any of those acts there were substituted references to offences under this act; (4) for the purpose of this act a person shall be deemed to have traded with a person or body of persons to whom a proclamation issued under this act applies if he enters into any transaction or does any act with, to, on behalf of, or for the benefit of such a person or body of persons, which, if entered into or done with, to, on behalf of, or for the benefit of an enemy, would be trading with the enemy. 2. This act may be cited as the trading with the enemy (extension of powers) act 1915. PAGE. (White Paper communicated by the Department of State.) GERMAN MERCHANTS IN JAPAN (1915) THE special correspondent of the New York Sun, writing from Tokio January 5, reports that: "When Japan sent her ultimatum to Germany the Foreign Minister, Baron Kato, publicly invited German merchants in Japan to remain in the country and carry on their business as before. At the same time he asked individual Japanese to show no hostility to individual Germans. Mr. Ozaki, the Minister of Justice, stated that German residents might rely on full protection of person and property, and the head of the police department issued the necessary instructions to all prefectural governments to secure the safety of Germans throughout the empire. Finally, the Premier and Minister for Home Affairs, Count Okumo, issued a message to the provincial governors, ending with the words: "It is the desire of the Government to afford every possible protection to German subjects, in view of the friendship which has existed between Japan and Germany, unless their actions bring them into conflict with the law. All Japanese should keep the spirit of these injunctions in mind and act with good grace and liberality toward German subjects resident in Japan.' "In the utterances of the three Ministers is evidence that the Government has deliberately adopted a policy toward Germans within the Japanese Empire. That policy has been consistently and thoroughly carried out. German firms are carrying on their business in Tokio and the ports exactly as before the war, except of course for the handicap that they cannot obtain goods from Germany. "The law courts are open to them. Last week a German firm successfully sued a Japanese concern for an unpaid bill. In the first week of the war, however, a Japanese merchant, sued for money owing, by a German in Tokio, put forward the plea that the war absolved him from paying money to an enemy subject. Bench and bar laughed at the idea and the case went on in the ordinary course. Germans are not required to report themselves to the police and are under no special restrictions as to residence or movements. Only one German has been expelled. He was the editor of a German owned evening newspaper and of a German telegraphic news agency."1 (Extract from the New York Sun, January 31, 1915.) § 9. PRIVATE PROPERTY MANY of the most interesting cases concerning private property arise in relation to the rights of neutrals, since neutrals are generally in an advantageous position to appeal to the rules of international law in as far as they afford protection. A selection of cases of this nature will be found in Part II, under Chapter XI. Still other cases are given under §§ 10 and 11. THE SEQUESTRATION ACT OF THE CONFED- NOVEMBER 18, 1861, Lord Lyons, British Minister to the United States, forwarded to Lord Russell, British Minister for 1 It is interesting to compare the action of Japan in the present war with the course pursued in 1904-05. Professor Takahashi, in his valuable work, The RussoJapanese War (chap. v, pp. 82-88), gives an interesting discussion of the two opposed systems in regard to trading with the enemy. After weighing the arguments on both sides he considers (p. 88) that "it must be practically imprudent for Japan to insist on trading freedom in view of the English prohibition policy." Because of the English Alliance and the probability of complication "in case England and Japan come some day to fight against a common enemy," he concludes that “our [Japanese] maritime trade should be regulated by the same prohibition policy as the English; limiting our [Japanese] subjects' trading with the enemy to certain places, articles, and persons." |