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United States and Americans in Germany, it was proposed, should be free to leave the country of their residence, taking with them their personal property, including money, valuables, and bank accounts, within times and by routes to be specified. Resident enemy aliens were to be protected in person and property, without restrictions as to private rights, upon a plane of equality with resident neutral aliens. Patent rights were not to be void, or their exercise impeded; contracts between Germans and Americans were not to be canceled, avoided, or suspended, except as such action might be had with reference to neutrals. A specific recognition of the Sixth Hague Convention with reference to the treatment of enemy merchant ships at the outbreak of hostilities was also requested.

This plan had been suggested to Ambassador Gerard before he left Berlin, and his unwillingness to acquiesce in it gave rise to embarrassment and serious interference with his ambassadorial rights and functions. In declining to consider the proposition of the German Government, forwarded through the Swiss Minister, Mr. Lansing rehearsed the repeated and gross violations of the treaties while the United States was a neutral, and called attention to the fact that since the severance of relations between the two countries, American citizens had been prevented from removing freely from Germany. "While this is not a violation of the terms of the treaties mentioned," wrote Secretary Lansing, “it is a disregard of the reciprocal liberty of intercourse between the two countries in time of peace, and cannot be taken otherwise than as an indication of a purpose on the part of the German Government to disregard in the event of war the similar liberty of action provided for in Article 23 of the Treaty of 1799 — the very article which it is now proposed to interpret and supplement almost wholly in the interest of the large number of German subjects residing in the United States and enjoying in their persons or property the protection of the United States Government."

Franklin's favorite article, looking toward the humane treatment of prisoners of war, was not referred to in the German proposition. As yet but few opportunities have been offered for the purpose of testing this provision. In no sense, if we may believe the reports made upon the treatment of Allied prisoners in German prison camps, has the

spirit of Franklin's article been maintained toward the unfortunate French, British, and Russian prisoners of war; and there is no reason to believe from the reports which have been made of the treatment of the few Americans already in German camps that a new standard would be set up for Americans.

To the extent that Articles 23 and 24 are declaratory of international law, no one suggests that their provisions will be departed from by the United States, unless by way of reprisal. Nevertheless, the treaty as a whole is at an end. Conceived in the spirit of eighteenthcentury enlightenment, phrased by Franklin and Adams "according to the laws of Nature and of Nature's God,” the Prussian treaties have been diametrically opposed to the doctrines of an infallible State which justifies its policy under the guise of necessity. When the German armies invaded Belgium, they did so at the behest of a government which claimed that state policy was supreme over treaty faith. Until that policy is overthrown, treaties with such a state cannot exist. The statement of Kohler that “an international law based upon international treaties can no longer be,” is a statement of Prussian policy against which the United States and the Allies are fighting: for the vindication of the doctrine that international society based upon international law and international treaties is the only international society worthy of the name. The general principles of Franklin's treaty have, in the main, remained unchanged. It is Germany that has changed. The treaty has fallen to the ground because of the Prussian doctrine that not even the most sacred treaties may stand in the way of the policy of the Prussian State.



(Being Part XIII of Some Questions of International Law in the European War, continued from previous numbers of the JOURNAL.)

The theory of collective responsibility for offenses committed by the civil population of occupied districts against the authority of the occupying belligerent has been interpreted in a wider sense and applied on a more extensive scale by German military commanders during the present war than was ever done in any war of the past. The punishments imposed in the application of the theory have been unprecedented in number, sometimes novel in form and often excessive in character. They have consisted of pecuniary fines, either direct or under the guise of contributions, the seizure and shooting of hostages, the burning of towns and villages, the destruction of private houses, the deportation of the civil population, the commercial isolation of refractory towns, the interdiction of public charitable relief to the unemployed, the confinement of the inhabitants within doors for certain periods, and the like. It is the main purpose of this paper to review German theory and practice in respect to the first mentioned of these punitive expedients.

As a general principle, the right of a military occupant to impose, under certain conditions, pecuniary and other punishments upon occupied districts, for acts committed by the civil population against his authority, has long been recognized and acted upon in practice. Among the earlier instances of a resort to such a measure was the action of Napoleon, who, during his occupation of Lombardy in 1796, announced that any district under his occupation, in which firearms were found in possession of the inhabitants, should be liable to a fine equal to onethird its revenue (presumably the annual revenue). A like penalty

1 Some instances in which the three last mentioned expedients have been resorted to by the Germans in the present war were considered in my article on "Contributions, Requisitions and Compulsory Service in occupied Territory” in the January number, 1917, of this JOURNAL, especially pp. 104 ff. ? Hall, International Law, 4th ed., p. 492.

was threatened against any village in which a French soldier had been killed, unless the individual perpetrator of the crime was arrested and delivered up to the local authorities.

It was not until the Franco-German War of 1870–71, however, that the theory of collective responsibility was applied on an extensive scale and interpreted to cover offenses for which the population punished could not have been justly held responsible. In August, 1870, a general order was issued by the Prussian military authorities decreeing that French communes in which hostile acts were committed against their authority by persons not belonging to the French army should be liable to a fine equal to the amount of the local land tax, and that those communes from which individual offenders came should be liable to the same punishment. In October of the same year it was announced that communes in which damage was done to railways, bridges, canals and telegraph lines, even when the mischief was wrought by others than the local inhabitants and without their knowledge and connivance, should be held responsible for such acts.5

These announcements turned out to be more than empty threats, for in fact huge fines were imposed and collected in many instances. Thus Lorraine, in addition to other penalties, was fined 10,000,000 francs for the destruction of a bridge with the alleged connivance of the inhabitants. In June, 1871, the village of Bray was fined 37,500 francs and hostages were taken to insure the payment of the fine.? Combles was required to pay 325,000 francs for an offense not mentioned in the accounts, and Driencourt was assessed 1000 francs because a stranger was found in the village. The commune of Launois

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Hall, International Law, 4th ed. p. 491.

* Concerning this order see Bonfils, Droit International, sec. 1219; Calvo, Droit International, sec. 2236; Spaight, War Rights on Land, pp. 408-409; Merignhac, Lois et Coutumes de la Guerre sur Terre, sec. 106; Nys, Droit International, Vol. III, p. 429; Despagnet, Cours de Droit International, sec. 589; Bluntschli, Droit Int. Cod., sec. 643 bis. The text of the above mentioned order may be found in the Revue de Droit International et de Lég. Comp., Vol. II, p. 666; see the defense of this order, by Loening, ibid., Vol. V, p. 77.

6 Edwards, The Germans in France, pp. 76, 211.

6 Edmonds and Oppenheim, The Laws and Usages of War in the British Manual of Military Law (ed. of 1914), p. 305. 7 Pradier-Fodéré, Traité de Droit Int., Vol. VII, p. 281.


8 Ibid., p.

was forced to pay 10,000 francs to the families of two Prussian dragoons who were alleged to have been killed by francs-tireurs.' Châtillon was fined 1,000,000 francs for the destruction of a bridge 10; Etamps, 40,000 francs for the cutting of a telegraph wire 11; Orleans, 600,000 francs on account of the killing of a Prussian soldier by an unknown person during an altercation between himself and the soldier.12 St. Germain was given the option of paying a fine of 100,000 francs or of being burned because three German dragoons had disappeared from the community.

In some instances impositions were levied which in form and pretext were fines, but which in reality were contributions in disguise. The enormity of the amounts and their disproportion to the offenses alleged would seem to leave no doubt as to this.13 Thus, the Department of the Seine was assessed 24,000,000 francs and Rouen was required to raise 6,500,000 francs within five days.14 The Departments of Aisne, Ardennes and Aube were compelled to pay 3,000,000 francs as a punishment for the action of the French in taking as prisoners of war the crews of captured German merchant vessels and for expelling Germans from France. The Departments of Meurthe, Meuse and Seine-et-Marne were assessed 2,755,253 francs on the same account.15 A contribution, which was intended as a punitive measure, was the levy in December, 1870, of 25 francs per capita on the inhabitants of all the occupied districts of France with the avowed purpose of breaking the resistance of the French people and of inducing them to sue for peace.16

, Spaight, op. cit., p. 409.

10 Bonfils, op. cit., sec. 1219; Ferrand, Des Réquisitions, p. 239, and Guelle, Précis des Lois de la Guerre, Vol. II, p. 221. Guelle states that the village of Ham was fined 25,000 francs because the fortress was retaken from the Germans by a detachment of regular French troops. See also Latifi, Effects of War on Private Property, p. 34, and Rouard de Card, La Guerre Continentale, p. 178.

11 Guelle, p. 221. 12 Bonfils, op. cit., sec. 1219, and Depambour, L'Occupation en Temps de Guerre, 13 Compare Guelle, Vol. II, p.

221. 14 Depambour, p. 119, and Rouard de Card, p. 178.

15 Calvo, op. cit., Vol. IV, sec. 2236. Bismarck considered the action of the French to be a violation of international law, but as the law then stood, the crews of merchant vessels were liable to be treated as prisoners. Compare Edmonds and Oppenheim, in the British Manual, sec. 459, note b.

16 Bonfils, sec. 1222, and Ferrand, Des Requisitions en Matière de Droit Int., p. 221. Other instances of fines imposed are mentioned by Andler in his brochure,

p. 119.

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