quilly with the great subjects that concern all nations alike, Mr. Root speaks, out of his world-wisdom, to his fellowmen.

Mr. Robert Bacon and Dr. James Brown Scott are to be congratulated upon the service that they have rendered to readers and thinkers by the collection and publication of these addresses.

CHARLEMAGNE TOWER.

TREATMENT OF ENEMY ALIENS

MEASURES IN RESPECT TO PERSONAL LIBERTY

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

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." 2 Westlake, in 1907, adverting to the nu

1 Droit des Gens, Liv. III, Ch. IV, sec. 63. Vattel adds that in his time it was the practice to allow enemy subjects a period in which to withdraw with their effects. 2 Letters of Camillus, No. XIX.

merous 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.*

5

Owing, however, to the recent introduction of compulsory military service on the continent of Europe, there has been a growing disposition to recognize the right of belligerents to detain males liable to such service, in order to prevent them from returning home and enlisting in the enemy's army. On account of their residence in the enemy country and the opportunity thus afforded of acquiring more or less familiarity with its topography and the location of military forts, arsenals, munitions depots, the extent of its resources, and the like, their service would be of special value to their own country. We find, therefore, in the sixth edition of Hall, who, in an earlier edition of his work, had condemned the right of detention and had characterized the expulsion. of the Germans from the Seine in 1870 as "harsh," a statement by Atlay that now, since "the liability of the whole male population to military service has become the almost universal rule on the continent of Europe," the rule in respect to detention "has assumed a new aspect." The discussions at the Second Hague Conference make it quite clear that it was considered inadmissible to imprison enemy subjects at the outbreak of war, but it should be remarked that those discussions did not touch upon the question of the treatment of such persons who were reservists and who, if allowed to depart, would join the forces of the * International Law, Part II, p. 42. 4 Völkerrecht (1908), p. 474.

5 Cf. Bonfils, sec. 1053.

• International Law, 6th ed., p. 386. Other writers who defend the right to detain such persons are Calvo, Droit Int. Pub., Vol. IV, p. 54; Bonfils, Manuel, p. 590; Lawrence, op. cit., p. 390; Twiss, Law of Nations, Vol. II, sec. 50; Rivier, op. cit., Vol. II, p. 230, and Liszt, Das Völkerrecht, sec. 39.

enemy. While, however, as stated above, there is now a good deal of authority for the view that it is permissible to detain males of military age who are liable to service, there are writers who do not sympathize with the exception which it has been proposed to make to the general rule. 8

When the present war broke out, the status of enemy aliens had not been dealt with by any of the great international conventions, further than the much controverted Article 23 h of the Hague Convention of 1907 concerning the laws and customs of war on land, which, according to some authorities, makes it obligatory upon belligerents to allow such persons access to their courts. The treatment which must be accorded to them, therefore, rests upon the customary law of nations and particular treaty stipulations. The departures which have been made from custom, practice, and the opinions of the text writers, as summarized above, will appear from the following pages.

THE ENEMY ALIEN PROBLEM OF THE PRESENT WAR

If the practice during the present war has been less liberal than that of recent wars, it may be explained in part by the extreme bitterness of passion which has seemed to dominate all the peoples involved, and in part by the changed conditions resulting from the presence of unexampled numbers of enemy aliens, many of whom were reservists, in the territories of the various belligerents at the outbreak of the war. This latter circumstance caused the problem of dealing with such persons to assume an importance never before known in any previous war, and greatly increased the difficulty of handling it with due regard to both the national defense and the heretofore recognized rights of the enemy alien population.

At the outbreak of hostilities there were more than 50,000 German subjects residing in the United Kingdom,' besides about 8000 natural

• Compare Oppenheim in Roxburgh, The Prisoners of War Information Bureau in London, p. vii.

Compare Sir Ernest Satow in the Publications of the Grotius Society, Vol. II, p. 7; and Phillipson, International Law and the Great War, p. 30.

• Sir Edward Grey to Mr. Page, Nov. 9, 1914, House of Commons Sess. Papers, Misc. No. 8 (1915), [Cd. 7857], p. 15.

ized British subjects of German origin, the latter of whom English public opinion scarcely differentiated from the former class. Besides, there was a considerable number of Austrians, Hungarians, and Ottoman subjects. In France the enemy alien population was much larger. According to Professor Valery, of Montpellier, the total number of foreigners in that country was approximately one and a half million, a large number of whom were enemy subjects.10 The enemy alien population of Paris was especially large, being much greater than that of any other European capital." The problem was less serious in Germany, where there were only about 5300 British subjects in the country. The number of persons of French nationality residing there was somewhat larger, although greatly inferior to the number of Germans in France. The outbreak of the war between Italy and Germany found about 30,000 Italian subjects in Germany and about 50,000 Germans in Italy. There were also large numbers of Germans and a considerable number of Austro-Hungarians in Belgium.

The situation in the United States was, by reason of the very large number of German subjects in the country, quite different from that in the countries of Europe, although, owing to the geographical remoteness of the United States from the theater of hostilities and its separation from the enemy country by the Atlantic Ocean, the danger from the presence of so large an enemy population was less serious.12 On the other hand, the number of American citizens who remained in Germany after the outbreak of the war was very small, the number being less than one thousand.13 In every belligerent country large

10 Revue Générale de Droit Int. Pub., 1916, p. 353. Compare the returns of the French census of 1911, Bulletin du Ministère du Travail, Jan.-Feb., 1916, pp. 55 ff., and June, 1916, pp. 234 ff.

11 According to estimates published in Clunet's Journal de Droit International (1916, p. 157), there were in Paris at the outbreak of the war almost 400,000 foreigners. 12 The total number of aliens registered in the United States on June 5, 1917, in pursuance of the terms of the draft law, was 1,239,179. Of these 111,933 were German subjects (Cong. Record, July 13, 1917, p. 5554). This number, of course, embraced only males between the ages of 21 and 30 years.

13 According to a census taken by the American Association of Commerce in Berlin, there were approximately 1200 Americans in Germany at the outbreak of war between the two countries. Many of these left shortly after the declaration of war, so that in September, 1917, there were hardly more than 700 American citizens in the Empire. New York Times, Sept. 13, 1917.