STATUS OF GERMANS IN ITALY Legally, Germans in Italy and Italians in Germany were in a situation different from that of enemy aliens in any other country at the outbreak of war. This was due to the fact that on May 21, 1915, three days before Italy declared war against Germany, the two governments, in the full expectation of the early outbreak of hostilities, concluded a special agreement concerning the treatment which each engaged to accord the subjects of the other who should be found in its territories in the event of war.60 The treaty provided for a mutual guarantee in respect to the persons and property of the subjects of each party in the territory of the other. They were to be allowed to continue their residence without molestation, except that they might be required to reside in designated localities and subjected to police measures in case the public safety and order should require. The right of departure from the country was allowed; they were to be subject to no restrictions different from those imposed on neutral persons sojourning in the country; there was to be no sequestration of property, no confiscation of patent or other rights of this character, and no abrogation or suspension of contracts or debts. No such treaty having been entered into between Italy and AustriaHungary, a somewhat anomalous situation was thus created. The Italian Government had adopted rather stringent measures in its treatment of Austro-Hungarian subjects, but in virtue of the abovementioned agreement it could not apply the same measures to German subjects.61 The favored treatment thus enjoyed by Germans as compared with that to which Austrians and Hungarians were subjected was the subject of considerable criticism, and the Bar of Milan adopted a resolution expressing the opinion that no distinction should be made between Germans and Austro-Hungarians in respect to their treatment. This view was strengthened by the alleged violation by the German Government of the Italo-Germanic agreement. It was alleged that while the Italian courts were open to Germans, the German decree of * Text in Clunet, 1916, pp. 407-408. 61 Valery, Condition des Allemands en Italie Postérieurement à la Déclaration de Guerre à l'Autriche, Clunet, 1916, pp. 405-415. August 7, 1914, closing the German courts to enemy aliens domiciled outside Germany, applied to all enemy aliens, no exception being made in the case of Italians, as the spirit of the treaty required. Moreover, it was alleged that bankers of Berlin refused to make payments to Italian creditors, and by a decree of July, 1916, Governor General Von Bissing of Belgium subjected Italians in that country to a régime of surveillance. Finally, the German Government refused to pay pensions due to Italian laborers under the German workingmen's pension laws, notwithstanding the stipulations in the treaty of May 21 that contracts would not be impaired or abrogated.62 In short, Germany had treated the agreement of May 21 as a "scrap of paper." Notwithstanding the popular opposition to the special régime which the treaty established in behalf of the Germans. in Italy and the alleged refusal of the German Government to abide by its stipulations, it does not appear that the Italian Government yielded to the popular demand by placing Germans and Austro-Hungarians on the same footing.63 THE PORTUGUESE MEASURE OF EXPULSION Portugal appears to have been the only country which resorted to the policy of wholesale expulsion. By a decree of April 20, 1916, all German subjects of both sexes, except males between the ages of sixteen and forty-five years, were ordered to leave the country within fifteen days. The latter were interned in a concentration camp on the Island of Terceira. Persons born in Portugal of German fathers were also treated as enemy subjects. Violation of the decree of expulsion was punishable by three years' imprisonment in a fortress in case of men, and two years' correctional imprisonment in case of women.64 62 Valery, La Condition Juridique des Allemands en Italie depuis la Déclaration de Guerre à l'Autriche jusqu'à la Déclaration de Guerre à l'Allemagne et postérieurement à celle-ci, Clunet, 1917, pp. 69 ff. 63 In consequence of the alleged refusal of the German Government to allow Italians access to the German courts, the Bar of Milan addressed a circular to the Bar of the rest of Italy expressing the opinion that it was the duty of all Italian lawyers to refrain from taking cases in which Germans were plaintiffs. Text of the circular in Clunet, 1916, pp. 413 ff. 64 Text of the decree in Clunet, 1916, pp. 1424 ff.; see also ibid., pp. 1074 and 1468. JAPANESE POLICY The Japanese treatment of enemy aliens is said to have been exceptionally liberal. Although all Japanese subjects in Germany were arrested at the outbreak of war between the two countries and were treated with great indignity, the Japanese Government did not resort to such measures, but treated Germans as it did foreigners of neutral nationality. There were no outbreaks against Germans and no manifestations of hostility. Not even German teachers or tutors were discharged. No restrictions were placed upon their freedom of movement, and even German reservists were allowed to return to Germany on Japanese ships. German business men continued their business as before the war, without molestation or restriction, and agents of German houses regularly furnished their Japanese customers with goods. 65 Clunet, 1916, pp. 1712 ff. JAMES W. GARNER. English and French subjects in Japan are said to have protested against the exceptional liberality with which the Germans were treated, but the Japanese Government does not appear to have modified its policy. JUS GENTIUM AND INTERNATIONAL LAW AT the present moment, when the very existence of international law as a practical element in the conduct of human affairs is doubted or derided by many and when such precepts as are claimed to be fundamental in that law itself are daily set at nought by belligerents in the world conflict, it has been thought that a brief outline of the earliest conceptions characterizing international jurisprudence will prove neither useless nor unwelcome. The term "International Law" has, in the usage of our day, quite superseded the earlier expression "law of nations," long since adopted as a translation of the Latin phrase jus gentium. The expression "International Law," however, so familiar to us, properly denotes a wholly variant conception. In modern days it is used by the celebrated D'Aguesseau and occurs in Volume II of his works, page 337 in the edition of 1773; it is shortly afterward employed by Bentham in his "Principles of Morals and Legislation" (XVII, 326, n. 1), and has since his time come into general use. D'Aguesseau's expression (droit entre les gens) is doubtless, in its turn, an adaptation from Zouche, Professor of Civil Law at Oxford, who uses, about 1650, the term jus inter gentes in harmony with the thought of Grotius as expressed in the opening paragraph of the Prolegomena to his De Jure Belli Ac Pacis, where Grotius explains at the outset the intended subject of his great treatise, at jus illud quod inter populos plures aut populorum rectores intercedit, sire ab ipsa natura profectum, aut divinis constitutum legibus, sine moribus et pacto tacito introductum, attigerunt pauci, universim ac certo ordine tractavit hactenus nemo; cum tamen id fieri intersit humani generis. - We note here, to return to the point later, that Grotius' mind is fixed on a jus inter populos plures rather than a jus gentium, - a law valid between nations, not a law of nations. Hence where speaking in a subsequent passage (1, 1, 14) of law in its various aspects, he tells us, after characterizing the civil law of a state, latius autem patens est jus gentium; id est quod gentium omnium aut multarum voluntate vim obligandi accepit, multarum addidi, quia vix ullum reperitur extra jus naturale, quod ipsum quoque gentium dici solet, omnibus gentibus commune. (Cf. sections X-XVI with the quotations.) In these important passages Grotius accurately distinguishes jus civile, jus gentium, and jus naturale, that is to say, civil law, a law of nations, and a natural law, and he declares, too, that jus gentium is evidenced in the same manner as jus non scriptum civile (customary law): probatur autem hoc jus gentium pari modo quo jus non scriptum civile, usu continuo et testimonio peritorum (1, 1, XIV 2). What then is the historical development of jus gentium? The term seems first to occur in European literature in Cicero's writings and to have been adopted by him from purely speculative aspects of Greek philosophic thought, which had developed long prior to his time the conception of a law eternal and controlling, existing independently of human permission or enactment. It is the unwritten law evidenced by custom or the conscience of mankind; the law common to all men clearly distinguished by Aristotle (Ethics, 8, 13, 5) as justice unwritten, aypapos. In his treatise on the laws, Cicero, accordingly, declares: Est enim unum ius, quo devincta est hominum societas et quod lex constituit una. Quae lex est recta ratio imperandi atque prohibendi (De Legg. I, xv, 42): and in his treatise on the commonwealth he says: Unde enim pietas? aut a quibus religio? unde ius aut gentium, aut hoc ipsum civile quod dicitur? unde justitia, fides, aequitas? (De Republica, 1, 2.) Similarly, in the Oratorical Partitions (XXXVII), he speaks of the law, written and unwritten, again referring to the jus gentium: quae sine litteris aut gentium jure aut maiorum more retinentur. In these two latter passages, however, Cicero, familiar in actual practice at the Roman Bar with practical legal thought and usage as well as with the philosophic speculations so dear to his own leisure, is probably speaking of something quite different from the Greek law of nature. He is referring rather to a system of praetorian jurisprudence which had slowly grown up, doubtless through many centuries, as a consequence of the actual necessities of Roman legal life, in whose |