The doctrine of Vattel has, in fact, become less plausible than it was before universal liability to military service had become the rule in most Continental countries. The peaceably engaged foreign resident is now in all probability a trained soldier, and liable to be recalled to the flag of a possible enemy.
There may, of course, be considerable practical difficulties in the way of ascertaining the nationality of any given foreigner, and whether he has completed, or evaded, the military training required by the laws of his country. It may also be a question of high policy whether resident enemies would not be a greater danger to this country if they were compelled to remain here, than if they were allowed, or compelled, to depart, possibly to return as invaders.
I am only concerned to maintain that, as far as inter[047]national law is concerned, England has a free hand either to expel resident enemies or to prevent them from leaving the country, as may seem most conducive to her own safety.
I am, Sir, your obedient servant,
T. E. HOLLAND
Oxford, February 25 (1909).
Civil Disabilities of Alien Enemies
THE NAVAL PRIZE BILL
CIVIL DISABILITIES OF ENEMY SUBJECTS
Sir,—The Naval Prize Bill has sins enough of its own to answer for. The question dealt with under that heading in Mr. Arthur Cohen's letter of this morning has, however, nothing to do with naval matters, but arises under The Hague Convention of 1907 as to warfare on land, which was ratified by our Government two years ago; unfortunately without any reserve as to the extraordinary provision contained in Art. 28 (h) of that Convention.
I lose not a moment in asking to be allowed to state that my view of the question is, and always has been, the reverse of that attributed to me by my friend Mr. Cohen. No less than three views are entertained as to the meaning of Art. 28 (h). (1) Continental writers, e.g., MM. Fauchille, Kohler, and Ullmann, with the German Whitebook, assert, in the most unqualified manner, that Great Britain and the United States have under this clause abandoned their long-established doctrine as to the suspension of the private rights and remedies of enemy subjects; (2) Our own Government, in a non-confidential reply to an inquiry from Professor Oppenheim, asserts categorically, as does General Davis in the United States, that the clause relates only to the action of a commander in a territory of which he is in occupation; while (3) most English and American writers look upon the meaning of the clause as doubtful. If Mr. Cohen will look at p. 44 of my Laws of War on Land,[048] 1909, he will find that I carry this sceptical attitude so far as to include the clause in question in brackets as "apocryphal," with the comment that "it can hardly, till its policy has been seriously discussed, be treated as a rule of international law." I have accordingly maintained, in correspondence with my Continental colleagues, that the clause should be treated as "non avenue," as "un non sens," on the ground that, while, torn from their context, its words would seem ("ont faux air") to bear the Continental interpretation, its position as part of a "Règlement," in conformity with which the Powers are to "issue instructions to their armed land forces," conclusively negatives this interpretation. I will not to-day trouble you in detail with the very curious history of the clause; which, as originally proposed by Germany, merely prohibited (a commander?) from announcing that the private claims ("réclamations") of enemy subjects would be unenforceable. It is astonishing that no objection was raised by the British or by the American delegates to the subsequent transformation of this innocent clause into something very different, first by the insertion of the words "en justice," and later by the substitution of "droits et actions" for "réclamations." The quiescence of the delegates is the more surprising, as, at the first meeting of the sub-committee, General de Gundel, in the plainest language, foreshadowed what was aimed at by the clause.