through resort to the courts. It therefore overruled the doctrine of the English and American courts that contracts with alien enemies are generally suspended or terminated by the outbreak of war and that enemy subjects have no rights of action in the courts except under the peculiar circumstances mentioned by Sir William Scott and Judge Story referred to above."

English and American Interpretation of Article 23 (h).-English and American authorities have, however, placed a different interpretation on the meaning of Article 23 (h) and the matter has been the subject of much controversy. According to their view the purpose of the article in question was merely to prohibit commanding generals and their subordinates in the field from suspending or extinguishing the legal rights of the inhabitants and did not contemplate a restriction on the right of the state through its legislative, executive, or judicial organs to exclude generally enemy subjects from bringing actions in its courts.10 In favor of this view it is argued that the position of Article 23 (h) clearly shows that it was intended merely as a limitation on the powers of military commanders in the actual theater of hostilities. It is a part of a chapter entitled "Means of injuring the enemy; sieges and bombardments," which is in turn a subdivision. of a general heading entitled "hostilities," all the provisions of which relate to the conduct of operations by military commanders. This view is strengthened by the declaration contained in Article I, that "the high contracting parties will issue to their armed land forces, instructions which shall be in conformity with the 'regulations re

9 This interpretation is that adopted by the German Government in its official Weissbuch, Über die Ergebnisse der im Jahre 1907 in Haag Abgehalten Friedenskonferenz, p. 7.

10 This is the view expressed by General Geo. B. Davis in his Elements of International Law, p. 578; see also an article by him entitled "Amelioration of the Laws of War on Land," American Journal of International Law, Vol. II, p. 70. See also Trotter, Effect of War on Contracts During War, supp. 1915, p. 20, who remarks that the provision in question does not affect the ancient rule of the common law, that an alien enemy, unless with special license or authorization of the Crown, has no right to sue in the King's courts during war. See also Higgins' Hague Peace Conferences, p. 235; Cobbett's Cases on International Law, Part II, pp. 85-86; Holland, Law Quarterly Review, Vol. 28, p. 94; Huberich, op. cit., p. 45; and Picciotto, Yale Law Journal, 27:170 (1917).

specting the laws and customs of war on land' annexed to the present convention." The logical inference, therefore, is that Article 23(h) is one of the "regulations respecting the laws and customs of war on land," and not a general rule of conduct for states in respect to the administration of justice.

The view of the British Government regarding the meaning of the clause was expressed by the Foreign Office in a letter of March 27, 1911, to Professor Oppenheim in response to an inquiry addressed by him on February 23 to the British Secretary of State for Foreign Affairs. Professor Oppenheim in his letter of inquiry called the attention of Sir Edward Grey to the fact that the interpretation which had been placed upon the clause by continental writers generally and even by some English and American authorities, a number of whom he cited, was in conflict with the old English rule. It was unfortunate, he added, that neither the English blue book relative to the Second Hague Conference12 nor the official procés verbale of the conference indicated what was the purpose or intent of the provision. In its reply the Foreign Office, arguing mainly from the position which the article occupies in the text of the Convention, rejected the Continental interpretation and maintained that the article had no effect on the old English rule regarding the incapacity of enemy aliens to sue.13

11 Professor Holland in commenting on this article (Law Quarterly Review, Vol. 28, pp. 94 ff.), remarks that "if this clause is intended only for the guidance of an invading commander it needs careful redrafting; if, as would rather appear, it is of general application, besides being quite out of place where it stands, it is so revolutionary of the doctrine which denies to an enemy any persona standi in judicio that although it is included in the ratification of the Convention by the United States on March 10, 1908, and the signature of the same on June 29, 1908, by Great Britain, it can hardly, till its policy has been seriously discussed, be treated as rule of international law." In his Laws of War on Land, p. 5, Professor Holland cites this paragraph as an instance of the inconvenience of intermixing rules relating to the duties of belligerent Governments at home with those intended to serve for the guidance of armies in the field.

12 Parliamentary Papers, Misc. No. 4, 1907.

13 Professor Oppenheim's letter and the reply of the British Foreign Office are printed in French in an article by M. Politis in the Revue Gén, de Droit Int. Pub., 1911, pp. 250 ff. See also Trotter, Effect of War on Contracts During War, supp., p. 14, and Spaight, War Rights on Land, pp. 140-141. The Foreign Office,

Views of Continental Publicists.-Continental writers, however, almost without exception hold the contrary view. Among those who have so expressed themselves or who apparently assume that the German interpretation referred to above is the correct one may be mentioned Bonfils,14 Ullman, 15 Wehberg, 16 de Visscher, 17 Sieveking, 18 Politis, 19 Despagnet,20 Kohler,21 Strupp,22 Noldeke,23 and Théry,2 Dr. Sieveking, a German jurist, discussing the force of Article 23(h) before the International Law Association at its meeting in 1913, said:

I think there can be no doubt whatever as to the meaning of this Article: an alien enemy shall henceforth have a persona in judicio standi in the courts of the other belligerent for all his claims, whether they originated before or during the war; his claim shall henceforth no longer be dismissed or suspended on account of his being an alien enemy; he shall be entitled to a judgment on the merits of the case, and this judgment shall be immediately enforceable. It has been argued that this article merely conveys instructions to officers commanding in the field and in no way touches the dealings of the Home Government and the law at home. If this were so it would mean that the German delegates proposed an article devoid of any meaning. An article might just as well have been inserted saying that officers in the field are not allowed to contract alliances or to declare in its reply to Professor Oppenheim's inquiry, stated that the English rule works automatically at the outbreak of war; "no declaration," it said, "is needed in order to make commercial intercourse with alien enemies illegal and to withdraw from them the protection of the courts. The outbreak of war, ipso facto, without any proclamation, abolishes, suspends, and makes inadmissible the rights of the subjects of the hostile party to institute legal proceedings."

14 Manuel de Droit Int. Pub., p. 651.

15 Völkerrecht, 2d ed., p. 474.

16 Capture in War on Land and Sea, p. 8; also Rev. de Droit Int. et de Lég. Comp. 1913, p. 197.

17 Du caractère ennemie et de la condition des Personnes ennemies quant à l'exercise de leurs droits civils, Law Quarterly Review, July, 1915, pp. 289 ff. 18 International Law Association Reports, 1913, pp. 175-178.

19 L'Article 23(h) du Réglement de la Haye, Rev. Gén. de Droit Int. Pub., vol. 18 (1914), pp. 249 ff.

20 Cours de Droit Int. Pub., p. 825.

21 Zeitschrift für Völkerrecht, 1911, p. 384.

22 Ibid., vol. 8, pp. 56 ff.

23 Deutsche Juristen Zeitung, April 1, 1917, p. 374, French translation by M. Dreyfus, 44 Clunet, pp. 1354 ff.

24 Recevabilité des Sujets Ennemis à Ester en Justice en France, 44 Clunet, pp. 480 ff.

war. Officers commanding in the field have nothing whatever to do with courts of justice, except an officer in command of an occupied district. But the rules as to the rights and duties of the army and the non-combatants in occupied territories and the administration of such territories are laid down in Articles 42 to 56 (Articles 43 and 48 in particular); and this would be saying the same thing twice over. No, this article was meant as a blow at the rule of the British law, and this intention could not have been more clearly expressed than it has been in Article 23 (h).

Nevertheless, as Dr. Sieveking points out, the prohibition established by Article 23 (h) relates only to land warfare and inasmuch as the great majority of cases likely to come before the British courts originate in maritime transactions the article could have only a very limited application in a war between Great Britain and some other power, even if the German view as to its meaning were admitted.

M. Politis, professor of international law in the University of Paris, in a report made to the Institute of International Law at its session in 1910, likewise expressed the view that the effect of Article 23(h) is to prohibit belligerents from interfering with the execution of contracts made before the outbreak of war and to condemn the old rule in respect to the incapacity of enemy aliens to sue in the courts of the adversary. It forbids, he says, all legislative or other measures tending to invalidate or to prevent the execution of private obligations.25 In an article published in the Revue Générale de Droit International Public in 1911,26 M. Politis reviewed at length the opinions of the text writers, all of whom, with the exception of General Davis of the United States, he says, adopt the view stated above. The only argument of any weight in favor of the view of the English Government is, he adds, that drawn from the position of clause 23(h) in the text of the convention-"an argument which is not only contrary to the plain language of the provision itself as well as the declaration of Herr Göppert in the committee, but is contrary to the whole spirit of the Hague convention which was to ameliorate the old usages of which the English rule in respect to the judicial incapacity of alien enemies is one of the most rigorous and indefensi

25 Annuaire de l'Institut de Droit International, T. 23, p. 268.

26 Vol. 18, pp. 249 ff.

ble." It is also true, as M. Politis points out, that the official English interpretation has been condemned by a number of the leading English authorities.27

English Interpretation of Article 23 (h) During the Recent War.The English Government, however, during the recent war proceeded in accordance with the interpretation adopted by the Foreign Office in 1911 and the English courts followed this interpretation. The question was first presented to a British court in the case of Porter v. Freudenberg in 1915.28 Adverting to the divergence of views among jurists as to the meaning of the clause Lord Reading said the court was clearly of the opinion that the effect was not to abrogate the old English rule.

Our view, he said, is that Article 23(h), read with the governing Article 1 of the Convention, has a very different and a very important effect, and that the paragraph, if so understood, is quite properly placed as it is placed in a group of prohibitions relating to the conduct of an army and its commander in the field. It is to be read, in our judgment, as forbidding any declaration by the military commander of a belligerent force in the occupation of the enemy's territory which will prevent the inhabitants of that territory from using their courts of law in order to assert or to protect their civil rights. For example, if the commander-in-chief of the German forces which are at the present moment in military occupation of part of Belgium were to declare that Belgian subjects should not have the right to sue in the courts of Belgium, he would be acting in contravention of the terms of this paragraph of the article. If such a declaration were made, it would be doing that which this

27 Phillipson, Effect of War on Contracts, p. 46; Higgins, op. cit., p. 263; Lawrence, Principles, p. 358 (who says there can be little doubt that it was intended to have a different and far wider application); and Whittuck, International Documents, p. xxviii. Holland also apparently takes this view, for he remarks that the clause "seems to require the signatories to legislate for the abolition of an enemy's disability, to sustain a persona standi in judicio. Laws of War on Land, p. 5. Some American writers also adopt the Continental interpretation, e.g., Bordwell, Law of War, p. 210; Gregory, Am. Jour. of Int. Law, Vol. II, p. 788; and Hershey, Essentials of Int. Pub. Law, p. 395, note 56. 28 Law Times, Vol. 12, p. 313, 1 K. B. 857. President Monier, of the Tribunal of the Seine, in a decision of May 18, 1916 (Wilmoth v. Daude), without discussing the meaning of the clause declared that it was not binding on the French courts, because “an international convention cannot prevail over the contrary provisions of a municipal statute," and because the clause had been violated by Germany. See text of the decision in 43 Clunet, pp. 1303 ff.