1 that foreigners must share the fate of the population living on enemy territory, and Bynkershoek 1 distinctly teaches that foreigners residing in enemy country bear enemy character. English 2 and American practice assert, therefore, that foreigners, whether subjects of the belligerents or of neutral States, acquire enemy character by being domiciled (i.e. resident) in enemy country, because they have thereby identified themselves with the enemy population, and contribute, by paying taxes and the like, to the support of the enemy Government. For this reason, all measures which may legitimately be taken against the civil population of the enemy territory, may likewise be taken against them, unless they withdraw from the country, or are expelled therefrom. It must, however, be remembered that they acquire enemy character in a sense and to a certain degree only; their enemy character is not as intensive as that of enemy subjects resident on enemy territory. Such of them as are subjects of neutral States do not, therefore, lose the protection of their home State against arbitrary treatment inconsistent with the laws of war; and such of them as are subjects of the other belligerent are handed over to the protection of the embassy of a neutral Power. However that may be, they are not exempt from requisitions and contributions; from the restrictions which an occupant imposes upon the population in the interest of the safety of his troops and his military operations; from punishments for hostile acts committed against the occupant; or from being taken into captivity, if exceptionally necessary. This treatment of foreigners resident on occupied enemy territory is generally recognised as legitimate 1 Quaestiones Juris publici, i. c. 3 in fine. 2 See The Harmony, (1800) 2 C. Rob. 322; The Johanna Emilie, otherwise Emilia, (1854) Spinks 12; The Baltica, (1857) 11 Moore P.C. 141, by theory and practice. The proposal of Germany, made at the Second Hague Conference, to agree upon rules which would have stipulated a more favourable treatment for subjects of neutral States resident on occupied enemy territory was, therefore, rejected. Not even France supported the German proposals, although, according to the French conception then prevailing,2 foreigners residing in enemy country did not acquire enemy character, and the German proposals were only a logical consequence of it.3 (3) Since enemy subjects who reside in neutral countries, or are allowed to remain resident on the territory of the other belligerent, have to a great extent identified themselves with the local population and are not under the territorial supremacy of the enemy, they lost their enemy character according to the English and American practice which prevailed before the World War, although according to French practice they did not, a difference which bore upon many points, especially upon the character of goods.5 During the World War, however, Great Britain abandoned her former practice in many respects. As regards enemy subjects resident in neutral States, the 1 See Albrecht, Requisitionen von neutralem Privateigenthum, etc. (1912), pp. 13-15, and Hirsch, Die rechtliche Stellung der Angehörigen neutraler Staaten (1914), pp. 80-84. See also below, § 170. * See Garner, i. § 144, who points out that during the World War French trading with the enemy legislation abandoned this conception. 3 This French conception of enemy character dated from the judgment of the Conseil des Prises in the case of Le Hardy contre La Voltigeante (1802)-see 1 Pistoye et Duverdy, 321-which laid down the rule that neutral subjects residing in enemy country do not lose their neutral character, and enemy subjects re siding in neutral countries do not lose their enemy character. But this conception of enemy character had developed, not with regard to the treatment of foreigners whom an occupant finds resident on occupied enemy territory, but with regard to the exercise of the right of capture of enemy vessels and goods in warfare at sea. France did not attempt to follow out its logical consequences by meting out to foreigners resident on occupied territory treatment different from that of enemy subjects resident there. • See The Postilion, (1779) Hay and Marriot 245; The Danous, (1802) 4 C. Rob. 255 n.; The Venus, (1814) 8 Cranch 253. See below, § 90. Trading with the Enemy (Extension of Powers) Act, 1915,1 authorised His Majesty by proclamation to prohibit all persons in the United Kingdom from trading with any persons in foreign countries whose enemy nationality or enemy association made such prohibition expedient, and constituted such trading trading with the enemy. Statutory lists (so-called 'black lists') were issued under this Act, which proscribed a large number of persons and firms in various States then neutral.2 But trade with enemy subjects resident in neutral States whose names were not on these lists was not illegal. When the United States entered the war, she also adopted a policy similar to the new British policy. As regards enemy subjects resident in Great Britain, orders made under the Aliens Restriction Act, 1914,4 placed them under special restrictions; the Trading with the Enemy (Amendment) Act, 1916,5 and later acts, singled out their property for exceptionally disadvantageous treatment with a view to eliminating their commercial influence; and the Aliens Restriction (Amendment) Act, 1919, saddled them with disabilities not limited to the duration of the war. American legislation was not dissimilar.8 At the end of the war the victorious Powers reserved the general right to retain and liquidate all property of enemy subjects then within their territory.9 § 88a. There are no rules of International Law to determine whether a corporation possesses enemy porations. character, and the question was much debated at the outbreak of the World War. The rapid development Enemy Character of Cor 1 5 & 6 Geo. v. c. 98. 2 As to the resulting controversy with the United States, see Parl. Papers, Misc., No. 11 (1916), Cd. 8225, and No. 36 (1916), Cd. 8353, and Garner, i. §§ 156-160. 3 See the American Trading with the Enemy Act of 1917, § 2(c), in A.J., xii. (1918), Supplement, p. 27; Garner, i. §§ 144, 161. 4 4 & 5 Geo. v. c. 12. For details see M'Nair, Legal See, for example, Treaty of Peace with Germany, Article 297. of joint stock enterprise had taken little account of warlike conditions, and the principle of company law, that a corporation is an entity distinct from its members, had not yet come into serious conflict with them. British opinion was generally agreed, on the authority of Janson v. Driefontein Consolidated Mines,1 that a corporation incorporated in an enemy country had enemy character. But it was doubtful whether a corporation carrying on business in an enemy country, but not incorporated there, also possessed enemy character, and, further, whether a corporation neither incorporated nor carrying on business in an enemy country could under any circumstances acquire that character. The first of these questions at once arose in connection with trading with the enemy,2 and early proclamations, after some confusion of thought, settled down to the view that enemy character attached to companies wherever incorporated, carrying on business in an enemy country.' The second question was carried to the House of Lords in the Daimler case, where it was laid down that a company assumes enemy character' if its agents or the persons in de facto control of its affairs are resident in an enemy country, or, wherever resident, are adhering to the enemy or taking instructions from or acting under the control of enemies. . . . The character of individual shareholders cannot of itself affect the character of the company." 5 The French courts, confronted with the same difficulty, held that, in order to determine enemy character, 1 [1902] A. C. 484, at p. 497. 2 See below, § 101. 3 See M'Nair, Legal Effects of War (1920), p. 122, and the Proclamation of September 14, 1914. 4 Daimler Co. Ltd. v. Continental Tyre and Rubber (Great Britain) Co. Ltd., [1916] 2 A. C. 307. 5 At p. 345. In The Poona, (1915) 1 B, and C. P. C. 275, the Prize Court had reached a different conclusion. But that decision was prior to the decision of the House of Lords in the Daimler case. For a detailed discussion of the nationality of corporations, see M'Nair, op. cit., Schuster in the Grotius Society, ii. pp. 57-85, and the other literature cited above, vol. i. § 293 n. See also The Polzeath, [1916] P. 117. Enemy they had the right to go to the bottom of things and ascertain whether the company was a French company in reality or such only in appearance.' 1 American practice, on the other hand, while also attaching enemy character to companies incorporated, or carrying on business, in an enemy country,2 did not attribute such character to a company neither incorporated nor doing business there. Its courts are entirely wedded to the doctrine that the corporators of a corporation are conclusively presumed to be citizens of the same State as the corporation.' 3 § 89. The general rule before the World War with of Vessels. regard to vessels was that their character is determined by their flag. This is still the test in the case of a vessel sailing under the enemy flag. Whatever may be the nationality of her owner-whether a subject of a neutral State, or of either belligerent-she bears enemy character. But the converse, namely that an enemyowned vessel which sails under a neutral flag no more bears enemy character than the vessel of the subject of a neutral State sailing under the flag of another neutral State, did not secure acceptance during the World War by the Prize Courts of belligerents. Even before the World War, the flag of a neutral State was the deciding factor only when the vessel was legitimately sailing under it. Should it be found that a vessel sailing under the flag of a certain neutral State had, according to the Municipal Law of such State, no right to fly the flag she 1 Société Conserve Lenzbourg, cited by Garner, i. § 153. Journal du Droit international (Clunet), xlii. (1915), p. 1164. 2 See § 2a of the American Trading with the Enemy Act, 1917. Fritz-Schultz Co. v. Raimes Co., (1917) 164 N.Y.S. 454, cited by Garner, i. § 154. See also Stumpf v. Scheiber Brewing Co., (1917) 242 Fed. 80, also cited by Garner. 4 It makes no difference that the owner be the subject of a neutral non-littoral State without a maritime flag, and that the vessel is, therefore, compelled to fly the flag of a maritime State: if the flag the vessel flies be the enemy flag, she bears enemy character. Nor, if a vessel flies an enemy flag, will she escape condemnation by being mortgaged to subjects of a non-enemy State. See The Marie Glæser, (1914) 1 B. and C. P. C. 38; [1914] P. 218. The Prize Court disregards mortgages and liens on enemy vessels, |