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.4 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. Cf. Bonfils, sec. 1053. 4 Völkerrecht (1908), p. 474. • 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. 7 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 7 9 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. numbers of the enemy population consisted of persons who had been residents for many years. Many of them had married natives and had families; many were engaged in business or in the practice of professions; and many had acquired large property interests. The presence of enemy subjects in such large numbers, especially in England and France, constituted a serious problem, the danger of which was accentuated by the fact that a large proportion of such persons were reservists who had had military training and who, if they had been allowed to depart, would have returned home to serve the armed forces of the enemy. The problem of dealing with them justly was further complicated by the existence in both countries, as in others where Germans resided in large numbers, of a highly organized and extensive system of espionage, for the Germans generally have acted in accordance with Treitschke's view that "in the national wars of the present day every honest subject is a spy." Under these circumstances, the countries situated in close proximity to Germany felt that the national security would be dangerously compromised by allowing the enemy alien population the same degree of freedom that had been generally accorded in the more recent wars of the past. BRITISH POLICY On the 3d of August, 1914, the day following the outbreak of war between Germany and Great Britain, Parliament passed the Aliens Restriction Act, authorizing the government to impose by Order in Council certain restrictions on aliens residing within the United Kingdom, without distinction between those who were subjects of an enemy state and those who were subjects of friendly Powers. The measures which the government was empowered to take included prohibiting aliens to land or embark in the United Kingdom; their deportation; requiring them to reside in certain designated areas; compelling them to register, and any other measures "which appear necessary or expedient, with a view to the safety of the realm." The Act prescribed appropriate penalties for violation of any Order in Council issued in conformity with the law, and gave the courts summary jurisdiction Text in Pulling's Manual of Emergency Legislation, pp. 6-8, and in Baty and Morgan, War: its Conduct and Legal Results, pp. 470-2. of cases involving such violations. The Act further declared that the onus of proving that a person was not an alien should lie upon him, thus reversing the old English rule that the burden of proof rests upon the party charging the disability.15 On the same day an Order in Council entitled "The Aliens Restriction Order" was issued in pursuance of the authority thus conferred, and it was followed by other supplementary and amendatory orders from time to time, while instructions and directions were frequently issued by the Secretary of State for Home Affairs. Portions of the order applied to all aliens, friendly and enemy alike, but its main purpose was to restrict the liberty of those of enemy nationality only. The order designated certain "approved" places in England, Scotland, and Ireland at which aliens of friendly Powers were permitted to land and from which they were allowed to depart, but enemy aliens were forbidden to land at or depart from such ports without the permission of a secretary of state. The Secretary of State for Home Affairs was authorized to deport any alien (whether an enemy subject or the subject of a friendly Power) whenever in his judgment it was deemed advisable. Enemy aliens were prohibited without a permit from entering or residing temporarily in certain designated areas, several hundred in number, some of which embraced whole counties and many boroughs, parishes, and districts, especially on the seacoast.16 Enemy aliens residing anywhere in the United Kingdom, and all aliens, whether friends or enemies, residing in prohibited areas, were required to register with a local registration official, and in case of a contemplated change of residence they were required to furnish the registration officer full particulars in regard to the date of the proposed change and of the place to which it was proposed to remove.17 No enemy alien was allowed to travel 15 Bentwich in this JOURNAL for July, 1915 (Vol. 9), p. 644. 16 Permits to reside in the prohibited areas appear to have been granted rather freely. In December, 1916, 4294 enemy aliens were reported as residing in these Solicitors Journal and Weekly Reporter, Dec. 30, 1916, p. 162. areas. 17 Many complaints were made of the hardships which the registration requirement entailed in particular cases, e.g., in the case of English women married to Germans. One case was reported of an English woman whose German husband had deserted her twenty years before, but who was required to register and report |