Suchergebnisse

The English Custodian. The outbreak of the war found in nearly every belligerent country vast amounts of property, both real and personal, owned by persons of enemy nationality or domicile. Likewise, enemy persons were the owners or shareholders in many business and industrial enterprises, corporations, partnerships, etc. With a view to preventing such property from being used or such business from being conducted in a manner prejudicial to the national defense or for the benefit of the enemy, the governments of all the belligerent countries very early adopted measures for placing enemy-owned property and enemy business enterprises under the control or supervision of the public authorities.

Writers on international law are now in substantial agreement that a belligerent ought not to detain enemy subjects, confiscate their property, or subject them to any disabilities, further than such as the protection of the national security and defense may require. Vattel, in 1758, appears to have been the first writer to adopt the view that had come to be generally held by publicists at the time the present war broke out. "The sovereign," he said, "who declares war has not the right to detain the subjects of the enemy who are found within his state, nor their effects. They have come to his country in public faith; in permitting them to enter and live in the territory, he has tacitly promised them all liberty and surety for their return. A suitable time should be given them to withdraw with their goods; and if they stay beyond the time prescribed, it is lawful that they should be treated as enemies, though as disarmed enemies." Alexander Hamilton, in defending the Jay Treaty of 1794, declared that the right of holding property in a country always implies a duty on the part of its government to protect that property and to secure to the owner full enjoyment of it. "Whenever, therefore," he added, "a government grants permission to foreigners to acquire property within its territories, or to bring and deposit it there, it tacitly promises protection and security — the property of a foreigner placed in another country, by permission of its laws, may be justly regarded as a deposit of which the society is the trustee." Westlake, in 1907, adverting to the numerous treaty stipulations on the subject, remarked that they might be deemed to amount to "a general agreement, on the part of governments, that modern international law forbids making prisoners the persons of enemy subjects in the territory at the outbreak of war, or, saving the right of expulsion in case of apprehended danger to the state, refusing them the right of continuous residence during good behavior." Referring to the right of expulsion, Ullmann, a respectable German authority, remarks that expulsion can be resorted to against the subjects of the enemy state, but only after a suitable delay has been offered in order to enable those affected to wind up their affairs.

The policy of the United States Government in permitting the exportation of arms, munitions, and other war supplies for the use of belligerents during the present war has been the subject of much discussion in Congress and in the press and has provoked diplomatic remonstrances from the Governments of Germany and Austria-Hungary. As a general proposition, it has been admitted by those who complain of the extensive traffic which has gone on between American manufacturers and certain of the belligerents, that neutral governments are not by the existing rules of international law bound to prevent their nationals from engaging in such traffic; but it has been argued that special circumstances to which the present war has given rise give a "new conception to the aspect of neutrality" and that an abnormal and unprecedented situation has been created which makes the continued furnishing of arms and munitions to the belligerents on one side, when their adversaries are unable to avail themselves of the American markets, a violation of the spirit of strict neutrality.

The outbreak of the European War found hundreds of merchant vessels of belligerent nationality in enemy ports or on the high seas bound to or from such ports in ignorance of the existence of hostilities, having left their last port of departure before the outbreak of war. The short period antedating the outbreak of the war, during which hostilities may be said to have been imminent, and the suddenness with which the war burst out afforded little opportunity to such vessels to escape, and consequently large numbers were caught either in enemy ports or on the high seas proceeding innocently thereto or therefrom.

The history of the naval operations of the present war is quite without parallel, not only on account of the large number of enemy merchant vessels that have been destroyed without warning and the consequent loss of life of both neutral and non-combatant persons, but also because of the destruction on a large scale of ships of neutral Powers. According to the press dispatches, about one hundred and fifty neutral merchantmen, American, Danish, Dutch, Greek, Italian, Norwegian, Portuguese, and Swedish, have already been sunk by one or another belligerent—in most cases by German cruisers and submarines. The merchant marines of Denmark, Holland, Norway, and Sweden have been the heaviest sufferers. In a few cases the destruction was the resuit of error due to the alleged inability of the captor to distinguish the markings of the vessel, but in the majority of cases the reason alleged was that the ships were carrying contraband of war. In view of the extensive and unprecedented scale upon which this practice has been resorted to during the present War, the conditions under which the destruction by belligerents of neutral merchant vessels is permissible, if at all, well merit consideration in the light of international law and practice. Mr. Thomas Baty, an English authority of high standing, writing in 1911, thus states the practice of the past:
It is surely very remarkable, that in all the history of war up to the twentieth century not a single instance can be adduced of a neutral ship's being destroyed on the high seas. Surely it is most significant that despite the utmost temptations and the fiercest stress of conflict, belligerents uniformly and scrupulously abstained from the least interference with neutral vessels, beyond ascertaining their characters and bringing them into port. French, Americans, Spaniards, Dutch, Danes—strict navy men and lax privateers—polished admirals and rough desperadoes—none of them dared send to the bottom a ship wearing the flag of a neutral state.

In recent years there has been an interesting and very remarkable extension of judicial control over the acts of the administrative authorities in France. The doctrine of recourse in annulment for excess of power, in particular, has undergone such an extraordinary development that it is probably safe to say that there is now no other country where private rights are better protected against arbitrary and illegal acts of public officers. It is an interesting fact also that this protection has not been created by legislation but is mainly the work of the council of state, and, to a less degree, of the court of cassation, the two supreme judicial tribunals of France.The solicitude which the council of state, especially, has shown for the protection of individual rights and the independence which it has exhibited as over against the government by whom the councillors of state are appointed and by whom they may be removed at pleasure is a sufficient answer to the criticism of those English and American writers who assert that the French administrative courts are the docile and servile instruments of the government, and that in controversies between the administration and private individuals their decisions are generally in favor of the administration.