Art. 7.-THE TREATMENT OF ENEMY ALIENS. WAR, which until a year ago had shown a tendency towards the diminution of savagery, as compared with what had been customary during the period ending with the downfall of Napoleon I, seems to have reverted to its earlier character. To put to the sword the garrison of a town taken by assault and to deliver the civilian inhabitants to pillage and outrage, which were permitted by the code of both Napoleon and Wellington, was no longer held to be justified. The Geneva Convention had laid down rules for the merciful treatment of the wounded. The Declaration of St Petersburg had prohibited the use of explosive bullets, and formulated the principle that arms which uselessly aggravate the sufferings of disabled men or render their death inevitable ought not to be employed. In 1899 an elaborate set of regulations for the conduct of war on land was adopted, and was reaffirmed in 1907. Projectiles, the sole object of which is the diffusion of asphyxiating or deleterious gases, were prohibited by a resolution passed in 1899; likewise bullets which expand or flatten easily in the human body, and the discharge of projectiles and explosives from balloons. The bombardment by naval forces of undefended ports, towns, villages, dwellings or buildings was forbidden in 1907; and this prohibition was extended to the attack or bombardment of such places by any means whatever. There was every reason, consequently, to expect that, when the war for which the Continental Powers had been preparing, either offensively or defensively, for years past should at last break out, it would be conducted with due observance of the dictates of humanity and of international agreements. Yet, in no war of former times has the world witnessed such indefensible innovations in the practice of a civilised nation. The indiscriminate sowing of mines, both anchored and drifting, on the high seas, without warning to neutrals of their position; the sinking of merchant ships without notice by submarines and without distinction of belligerent or neutral; the bombardment of undefended coast towns, the wilful destruction of ancient architectural monuments, the killing of civilians of both sexes and of all ages, the use of dirigible balloons and aeroplanes for dropping bombs on open towns, the discharge of asphyxiating and torture-inflicting gases against the enemy troops, and other violations not only of international law but even of international compacts almost before the ink with which they were written was dryall these things are quite new. Our memories are short, and familiarity with past history is the privilege of a small minority. Few are probably aware that the refusal to allow enemy aliens to withdraw to their own country on the outbreak of hostilities, the treatment as prisoners of war of foreigners living peaceably and pursuing their ordinary callings without reason to apprehend risk to their persons or property, are contrary to the principles consecrated by an endless succession of treaties beginning more than two and a half centuries ago, and opposed to the doctrines hitherto taught by writers on International Law. If the doctrine of the nation in arms' is to be regarded as justifying such a measure, then it cannot but be lamented that a theory of patriotic duty should unconsciously have caused mankind to revert to a condition approximating to barbarism, which cannot but have a prejudicial effect on the ordinary intercourse of nations when peace is restored, and justify the ancient law of communities which refused to hold any relations whatever with the peoples outside their own borders. The writer does not propose to go back to the times before the birth of International Law, but limits himself to the provisions of such treaties bearing on the position of enemy aliens on the outbreak of war as are accessible at the moment. The earliest of these is the treaty of the Pyrenees between France and Spain of November 7, 1659, Art. XXIV of which runs as follows: 'In order better to assure for the future commerce and friendship between the subjects of the said Kings, for the greater advantage and convenience of their kingdoms, it has been agreed that should any rupture hereafter occur between the two crowns (which God forbid) six months' time shall always be given to the subjects of both parties to withdraw and transport their property and persons withsoever they may think fit; which they shall be permitted to do with all liberty, without its being permitted to cause them any hindrance, nor to proceed during the said time to any seizure of the said property, still less to the arrest of their persons.' An almost identical article was inserted in the treaty of friendship, alliance, commerce and navigation between France and Holland of April 27, 1662,† and again in the treaty of peace and commerce of May, 1667, between Great Britain and Spain. In Art. XXXVI of the latter we read that: 'If hereafter, which God forbid! any rupture should occur between the said allies [i.e. Great Britain and Spain] six months will be given to the subjects of both parties to withdraw their merchandise and effects, without its being allowed to inconvenience or disturb them by any arrestation (arrêt) of their persons or property during the said period.' ‡ The treaty of peace between France and Holland signed at Nymegen August 10, 1678,§ which has the same provision, seems to come next in order of time. At the Congress of Ryswyk in 1697, in the Dutch treaty of peace, the days of grace were extended to nine months. But Art. XII of the treaty with England ¶ stipulates that, if war should break out between the contracting parties, the ships, merchandise and all kinds of movable goods of either party, which shall be found in the dominions of the adverse party, shall not be confiscated or brought under any inconveniency, but six months shall be allowed to the subjects of both Kings to carry away the aforesaid goods and anything else that is theirs, without any molestation.** This clearly implies freedom to remain for six months without personal molestation. Art. XXVI of the treaty with Spain †† also stipulates for six months, and distinctly exempts subjects of both parties from personal arrest. The commercial treaty of Utrecht, April 11, 1713, Art. II, of similar tenor, is more explicit, as it expressly says that it shall not be permitted to arrest or seize * Vast., 'Grand Traités du règne de Louis XIV,' i, 104, 105. Lambert, viii, 455. A free translation in Jenkinson, ii, 104. § Vast., op. cit., ii, 59. || Ibid., 195. **Abbreviated from Jenkinson, i, 303. ¶ Ibid., 210. tt Vast., ii, 224. their persons ('sans qu'il soit permis d'arrêter, ni de saisir leurs personnes'). The commercial treaty between France and Holland of the same date, Art. XLI, allows nine months' freedom from arrest, while the treaty of peace between Great Britain and Spain of July, 1713, accords six months' grace. Nevertheless, by the Spanish declaration of war against Great Britain in 1739 all British subjects, not naturalised, in public employ or engaged in mechanical callings, were ordered to quit Spain immediately, and all their property was to be seizeda manifest violation of the existing treaty. Passing over three commercial treaties made by Great Britain with Morocco in 1721, and with Tripoli and Tunis in 1751, we find in 1766 a commercial treaty between Great Britain and Russia, by Art. XII of which a year is granted: 'les personnes, les vaisseaux et les marchandises ne seront pas détenues ni confisquées.'* This was repeated word for word in Art. XII of the treaty of commerce of !¦ Feb. 1797.† 9 Art. XX of the treaty of Feb. 6, 1778, between the French King and the United States, gives six months to merchants to collect and transport their merchandise. Art. XXXV of the treaty of Oct. 1782, between Russia and Denmark, provides that on n'arretera point les personnes, ni ne confisquera les navires et les biens des sujets,' but that they shall have at least a year to dispose of their property, and for this purpose may betake themselves whithersoever they think fit. A similar article in the treaty between the United States and Sweden, dated April 3, 1783, allows nine months; 'nor shall any one seize their effects, and much less their persons, during the said nine months.' § Art. XXVII of the manifesto of Catherine II of Sept. 1785, and Art. XXIX of the manifesto of Joseph II of Nov. 1785, forming together the treaty of commerce between the two Empires, exempt subjects from arrest, and grant a year for the disposal of their property, and freedom to depart whithersoever they may desire; and this provision is to extend *F. de Martens, Recueil des Traités,' etc., ix (x), p. 251; Jenkinson, iii, 229, English translation. † Ibid., 399. Jenkinson, lii, 295-6; English translation, p. 281. F. de Martens, 'Recueil,' ii, 167, 183. § Ibid., iii, 326. to persons in the naval or military service of the other party. Art. XLV of the commercial treaty of Dec. 31, 1786 (Jan. 11, 1787), between Russia and France contains the same stipulations, except that the words 'naval and military' are omitted before 'service.' * The most explicit form of such an article is Art. XXVI of the treaty of Nov. 19, 1794, between the United States and Great Britain (amity, commerce and navigation), ratified by President Washington Aug. 14, 1795, which was repeated in Art. XX of a similar treaty between those Powers signed in London Dec. 31, 1806. Although this treaty was not ratified, the article may be cited as an example of what was considered at the time to be right and proper. The principal portion (British and Foreign State Papers, i. 1201) runs as follows: 'If at any time a rupture should take place (which God forbid) between His Majesty and the United States, the Merchants and others of the two nations, residing in the Dominions of the other, shall have the privilege of remaining and continuing their trade, so long as they do it peaceably and commit no offence against the laws; and in case their conduct should render them suspected, and the respective governments should think proper to order them to remove, the term of twelve months from the publication of the Order shall be allowed them for that purpose, to remove with their families, effects and property; but this favour shall not be extended to those who shall act contrary to the established laws.' In Hall's International Law,' 4th edition, a list † was given of such treaties, including nineteen more concluded between 1801 and 1890. Among the signatories we find the United States, Germany, Great Britain, Italy, France and Russia. It may, however, be observed that none of these treaties were concluded between Great Powers on both sides. On the whole it may be inferred that down to five-and-twenty years ago governments contemplated treating enemy aliens with forbearance and even generosity during good behaviour, neither expelling them from the territory nor treating them as prisoners of war. The solitary exception to what had come to be * F. de Martens, 'Recueil,' xiii, 232. This list was omitted from the fifth and sixth editions of Hall. ހ |