The modern practice is thus stated by a recent authority, Coleman Phillipson, in his International Law and the Great War (pages 83-85):

Though there is no definitive international law on the subject, it has become a modern customary rule that enemy aliens may not be arrested, nor their property confiscated, but should be allowed a reasonable time for withdrawal. No aliens of any kind, even friendly and neutral, may claim, as a right, to remain within the jurisdiction; every State, in virtue of its sovereign power, is entitled, if it sees fit, to expel en masse all enemy subjects, even if they are established bona fide and have acquired a domicile. If they are not called upon to leave, and are allowed to continue their residence, they should be treated, subject to special restrictions of the municipal law and of government orders, with moderation, if not on terms of perfect equality with subjects. So long as they remain inoffensive, carefully respect the law, and fulfill other requirements demanded by the interests of public security, they ought not to be treated as enemies or even as though they were prisoners of

war.

Whether an exception to the rule of free withdrawal is to be made in the case of such enemy aliens as are liable to military service is a question depending on considerations of public policy, military necessity, and reciprocal treatment by the hostile government. .

Immediately upon the outbreak of the present war it became evident that France and Germany at least had no intention of permitting the departure of enemy aliens of military age to swell the ranks of the opposing belligerent armies. As the war continued, an ever-increasing number of enemy civilians have been interned in these countries. In Germany we know that these have not merely been held as prisoners, but have often been treated in the most cruel and ignominious fashion. Several hundreds of thousands of civilians or noncombatants have even been deported into Germany from the occupied districts of Belgium and northern France and reduced to a condition of slavery of the most fearful sort.

"Owing to the extensive diffusion of German subjects, the existence of large numbers in this country [England], and the extraordinarily elaborate net of espionage spread everywhere by their [the German] authorities," the British Parliament, on August 5, 1914, passed a very drastic Aliens Restriction Act. "This Act empowered the King in Council to impose on aliens whatever restrictions might be deemed necessary to prohibit them from landing on our [British] shores, to provide measures for deporting alien residents in the United Kingdom, or to require such aliens as were permitted to remain and comply with

any regulations that might be made with regard to registration, place of abode, traveling, or otherwise." 1

The British Aliens Restriction Act was soon supplemented by an Aliens Restriction Order, which prescribed more definite and detailed restrictions on the freedom of enemy aliens resident in the United Kingdom.

In the United States it is provided by Statute (sect. 4067 of the Revised Statutes):

Whenever there is declared a war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed, as alien enemies. The President is authorized, in any such event, by his proclamation thereof, or other public act, to direct the conduct to be observed, on the part of the United States, toward the aliens who become so liable; the manner and degree of the restraint to which they shall be subject, and in what cases, and upon what security their residence shall be permitted, and to provide for the removal of those who, not being permitted to reside within the United States, refuse or neglect to depart therefrom; and to establish any other regulations which are found necessary in the premises and for the public safety.

In pursuance of this authority vested in him by an Act of Congress, President Wilson, immediately upon our declaration of war against Germany on April 6, 1917, issued the following declaration:

All alien enemies are enjoined to preserve the peace towards the United States and to refrain from crime against the public safety, and from violating the laws of the United States and of the States and Territories thereof, and to refrain from actual hostility or giving information, aid or comfort to the enemies of the United States, and to comply strictly with the regulations which are hereby or which may be from time to time promulgated by the President; and so long as they shall conduct themselves in accordance with law, they shall be undisturbed in the peaceful pursuit of their lives and occupations and be accorded the consideration due to all peaceful and law-abiding persons, except so far as restrictions may be necessary for their own protection and for the safety of the United States; and towards such alien enemies as conduct themselves in accordance with law, all citizens of the United States are enjoined to preserve the peace and to treat them with all such friendliness as may be compatible with loyalty and allegiance to the United States;

1 The above citations are from Coleman Phillipson, op. cit., pp. 85 and 86.

2 For the texts of this Act and this Order, see the Appendices to Baty and Morgan, War: Its Conduct and Legal Results.

And all alien enemies who fail to conduct themselves as so enjoined, in addition to all other penalties prescribed by law, shall be liable to restraint, or to give security, or to remove and depart from the United States in the manner prescribed by Sections four thousand and sixty-nine and four thousand and seventy of the Revised Statutes, and as prescribed in the regulations duly promulgated by the President.

The President also declared and established the following regulations:

(1) An alien enemy shall not have in his possession, at any time or place, any firearm, weapon, or implement of war, or component part thereof, ammunition, maxim or other silencer, bomb or explosive or material used in the manufacture of explosives;

(2) An alien enemy shall not have in his possession at any time or place, or use or operate any aircraft or wireless apparatus, or any form of signaling device, or any form of cipher code, or any paper, document or book written or printed in cipher or in which there may be invisible writing;

(3) All property found in the possession of an alien enemy in violation of the foregoing regulations shall be subject to seizure by the United States;

(4) An alien enemy shall not approach or be found within one-half of a mile of any Federal or State fort, camp, arsenal, aircraft station, Government, or naval vessel, navy yard, factory, or workshop for the manufacture of munitions of war or of any products for the use of the army or navy;

(5) An alien enemy shall not write, print, or publish any attack or threats against the Government or Congress of the United States, or either branch thereof, or against the measures or policy of the United States, or against the person or property of any person in the military, naval, or civil service of the United States, or of the States or Territories, or of the District of Columbia, or of the municipal governments therein;

(6) An alien enemy shall not commit or abet any hostile act against the United States, or give information, aid, or comfort to its enemies;

(7) An alien enemy shall not reside in or continue to reside in, to remain in, or enter any locality which the President may from time to time designate by Executive Order as a prohibited area in which residence by an alien enemy shall be found by him to constitute a danger to the public peace and safety of the United States, except by permit from the President and except under such limitations or restrictions as the President may prescribe;

(8) An alien enemy whom the President shall have reasonable cause to believe to be aiding or about to aid the enemy, or to be at large to the danger of the public peace or safety of the United States, or to have violated or to be about to violate any of these regulations, shall remove to any location designated by the President by the Executive Order, and shall not remove therefrom without a permit, or shall depart from the United States if so required by the President;

(9) No alien enemy shall depart from the United States, until he shall have received such permit as the President shall prescribe, or except under order of a court, judge, or justice, under Sections 4069 and 4070 of the Revised Statutes;

(10) No alien enemy shall land in or enter the United States, except under such restrictions and at such places as the President may prescribe;

(11) If necessary to prevent violations of these regulations, all alien enemies will be obliged to register;

(12) An alien enemy whom there may be reasonable cause to believe to be aiding or about to aid the enemy, or who may be at large to the danger of the public peace or safety, or who violates or attempts to violate, or of whom there is reasonable ground to believe that he is about to violate, any regulation duly promulgated by the President, or any criminal law of the United States, or of the States or Territories thereof, will be subject to summary arrest by the United States Marshal, or his deputy, or such other officer as the President shall designate, and to confinement in such penitentiary, prison, jail, military camp, or other place of detention as may be directed by the President.

It may thus be seen that there is vested in the President and executive officers of the United States ample authority for dealing with the dangerous and pernicious activities of enemy aliens in this country to whom the law of treason and other statutes like the Espionage Act are also applicable. So long as they conduct themselves properly they are not to be disturbed in the "peaceful pursuit of their lives and occupations." They are even to be "accorded the consideration due to all peaceful and law-abiding persons, except so far as restrictions may be necessary for their own protection and the safety of the United States." But if they do not conduct themselves in accordance with the law they are "liable to be apprehended, restrained, secured, and removed."

It is estimated that there are nearly a million German enemy aliens in this country owing a temporary allegiance to the Government of the United States. It is believed that the great majority of these are of a peaceable and law-abiding disposition. But it is to be feared that among them there are many thousands of persons who are not well disposed toward our government and people. We know that Germany has covered neutral as well as belligerent countries with a perfect network of espionage, and it is not likely that we have escaped the toils of this monstrous system. Indeed, we know that we have not escaped, for there is plenty of evidence of the secret work of German spies in the numerous strikes, many so-called peace activities, the frequent destruction of property of various kinds, the acts of arson constantly being committed, and numerous other crimes of which we read and hear daily.

It is reported that some hundreds of "German suspects" have already been interned. Their number will doubtless increase greatly as the character of their pernicious activities becomes more and more manifest. In this, as in most matters, an ounce of prevention is worth

a pound of cure, and more drastic measures than those already taken seem necessary. One preventive measure which might well be considered is the removal to a considerable distance inland, or to places remote from the coast, munition factories, large cities, etc., of all aliens who cannot be trusted.

There should be a national registry of all enemy aliens, in which their age, sex, occupation, residence, etc., should be accurately noted. Suspects should be watched, and their activities made the subject of careful reports to a central office or bureau. It might also be considered whether the naturalization papers of enemy aliens granted within recent years should not be revoked or reconsidered in the light of these reports; and also whether naturalization should in any case be granted to the subjects of a country, like Germany, which permits its citizens who acquire a foreign nationality to retain their allegiance to the German Emperor.

And we should not forget that among our naturalized citizens there are many who are American in name only; who remain alien and even enemy at heart or in real purpose. It would be well perhaps for Congress also to consider whether the writ of habeas corpus might not be suspended so as to enable the Federal authorities to deal with these cases. It is surely not in the interest of the public welfare that efforts to prevent and check the anti-patriotic and pro-German activities, even of American citizens, should be hampered by the ordinary processes of law which prevail in times of peace.

WAR AND LAW

AMOS S. HERSHEY.

Since the outbreak of this war the disciples of the Austinian school of jurisprudence have been inclined more than ever to deride international law. Blissfully content with their scientific prepossession that nothing is law which has not the sanction of physical force, they claim that the law of nations has proved its utter futility.

To these scoffers must be added also those who have given but little thought to the subject and who naturally ask: "What is the use of a law which cannot prevent war or regulate its methods once it has begun?" Such critics have apparently gained the impression that international law is a negligible factor in times of peace, and that its main raison d'être is to regulate the conduct of war. This is not at all strange when one considers the extent to which the law of war has