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with subjects of the German or Austro-Hungarian Empires or with persons residing therein. Article 3 prohibited and declared to be null as contrary to public policy, the execution for the benefit of the subjects of the said empires or persons residing therein, of pecuniary or other obligations resulting from every act or contract done or entered into in French territory by every person prior to August 4, in the case of German subjects and prior to August 13 in case of AustroHungarian subjects. By a decree of November 7, 1915, the terms of the decree of September 27 were extended to apply to relations with the subjects of Bulgaria and persons residing therein. Denial of the Right to Sue.—The above-mentioned prohibition in respect to contracts with enemy subjects, it was argued by the adversaries of the right to sue, applied not only to relations of a pecuniary or commercial character but also to civil contracts and relations such as are necessarily implied in judicial proceedings between Frenchmen and enemy subjects. It followed therefore that enemy subjects were prohibited from instituting or prosecuting actions in the courts of France. This was the view adopted by a number of French jurists” and by the French courts in several cases” one of the most reactionary decisions in which the right to sue was denied
78 For example by Professor Valéry in the articles cited above; by M. Reulos, Manuel des Séquestres, p. 12, n. 1, and p. 214; by M. Courtois, in Clunet's Journal, T. 42, p. 509; by M. Troimaux, Séquestres et Séquestrés, pp. 163 ff., and by M. Théry in Clunet, T. 44, pp. 480 ft. Professor Valéry affirms that the judicial disability of enemy aliens was a rule of the Roman law and is equally the established doctrine of French public law. Rousseau's theory that war is a contest merely between armed forces, may, he says, have been true before 1914, but the refusal of the Germans to act in harmony with it destroyed whatever force it had acquired. He quotes Portalis and Leuder (Holtzendorff's Handbuch, IV, p. 358) in support of the view which he maintains. Valéry, however, appears to have admitted that an enemy subject might defend an action against him.
74 Among the French courts which refused to admit enemy aliens to sue were the tribunal of Marseilles (June 22, 1915); the tribunal of Commerce of Marseilles (January 5, 1917); of Phillippeville (April 15, 1915) and the tribunal of the Seine (référé) May 18, 1916. Nevertheless sequestrators of enemy property could sue for the purpose of protecting the property in their custody. Actions by French creditors for the recovery of debts against sequestrated property could also be brought against the sequestrator, in which case the latter could defend the action.
was that of May 18, 1916, by President Monier of the Tribunal of the Seine (référé) 75 who interpreted the prohibition in the decree of September 27 in respect to actes and contrats with enemy subjects to embrace “judicial” acts such as are involved in retaining counsel and bringing actions in the courts.
Adverting to the contention that under Article 23(h) of the fourth Hague Convention of 1907 enemy subjects are entitled to sue in the courts of France, M. Monier asserted that "an international convention cannot prevail against a subsequently enacted municipal law which modifies its provisions and respect for which is rigorously imposed on every inhabitant of French territory,” 76 the “speculative theories of the law of nations” to the contrary notwithstanding. Furthermore, the above-mentioned provision of the Hague Convention was not binding on France because it had been violated by the German decree of August 7, 1914, which excluded French subjects from suing in the courts of Germany." Not only this, but M. Monier added, the Germans had “cynically and deliberately violated all the rules imposed on belligerents by the various conventions of the Hague”; consequently the subjects of Germany were not entitled to the benefit of the law, of nations in general and of the Hague Conventions in particular.78 Every reason and consideration of law and fact, he concluded, was opposed to opening the courts to Germans; such liberty was in flagrant contradiction with the tendencies of opinion; it would lead in practice to serious inconveniences, possible collusions and fraud and even irreparable injury to the country.
75 The case of Wilmoth, Sequestrator v. Daude, Text in Phily, Jurisprudence Speciale et Législation de la Guerre, Pt. III, pp. 225 ff., also in Clunet, T. 43, pp. 1303 ff.; see also the case of Wilmoth, Sequestrator, v. Société Gén. Immobiliére, December 21, 1915. Text in Reulos, pp. 355 fl.
76 Professor Barthélemy (43 Clunet, 1484) remarks that this doctrine is "calculated to move the hearts of international publicists." M. Barthélemy properly adds that international conventions which have been ratified by France are binding upon all French judges.
77 But as M. Barthélemy remarks the German prohibition applied only to French citizens domiciled outside the Empire and not at all to those resident therein. See also 42 Clunet, 567, and 43 Clunet, p. 1131, on this point.
78 Compare on this point the more liberal views of Judge Cator, of the British prize court at Alexandria in the case of the Gutenfels, quoted above.
That enemy aliens had no persona standi in judicio was also the view of the council of the Order of Advocates of the Court of Paris 79 and of the Chamber of Solicitors (Avoués) of the tribunal of the Seine.80
79 Resolution adopted November 30, 1915, Text in 43 Clunet, pp. 12 ff.
80 Reulos, p. 215. One of the arguments advanced in support of the view that enemy aliens have no capacity to bring actions in the courts was that the employment of an attorney would involve the entering into contractual relations between the attorney and the enemy client, which was in effect forbidden by the decree of September 27. Compare Courtois and Valéry in 42 Clunet, pp. 511 and 1009. The resolution of the Council of the Order of Advocates referred to above declared that inasmuch as Germany had prohibited "all relations" with enemy subjects, it was the duty of the French bar to set an example of patriotism by refusing to take the cases of German suitors. No advocate of the Court of Paris, it was said, could advise or defend a subject of an enemy power, unless he had been authorized by the batonnier to do so, and this was the view of the tribunals of the Seine and of Marseilles in the cases referred to above. The contention that taking the case of an enemy client was a "contract" forbidden by the decree of September 27, was, however, vigorously attacked by Prof. Barthélemy (L'Accés des Sujets Ennemis aux Tribunaux Français, 43 Clunet, p. 1487) and by M. Clunet (Concours professionnelle des advocats aus Sujets Ennemis et le Barreau de Paris, 43 Clunet, pp. 14-18). Such an interpretation, says Barthélemy, is "purely literary, pharisaic, judaic, contrary to the intention of the legislature and in effect leads to the infliction of a sort of civil death upon enemy subjects by depriving them of their judicial personality.” M. Clunet adds that enemy subjects have a right under international law and the municipal law of France to retain the services of members of the bar. He cites a number of cases in which the courts had upheld the right of enemy subjects to employ counsel and the right was affirmed by the fourth chamber of the Court of Appeal of Paris on April 20, 1916. The Court of Cassation (November 19, 1914) appears also to have admitted the right. President Monier of the tribunal of the Seine in the case referred to above, however, took occasion to say that "it was to the honor of the Paris solicitors that no one had claimed the right to defend a German" (43 Clunet, 1308). This tribunal, as well as those of Marseilles (44 Clunet, 241) and Besançon (ibid., p. 248), held that the decree of September 27 prohibited all juridical as well as commercial relations with enemy subjects and that the latter could not therefore retain an attorney. A German writer, Dr. Haber, in the Juristische Wochenschrift of April 15, 1916 (Fr, trans. in 44 Clunet, 448 ff.) contrasting the German and French practice, remarks that if the decree of September 27 prohibited a German from hiring a French lawyer, it prohibited him from buying food or clothes from a Frenchman. M. Valéry (42 Clunet, 1009 ff.) suggested that one way out of the difficulty would be to allow enemy subjects to choose a curator ad hoc to represent them before the courts. The matter not having been determined by legislation it was left to the courts to deal with the question whenever it arose, each according to its own individual opinion.
The Right to Sue Defended by High French Authority.—The decision of the tribunal of the Seine and the doctrine of Valéry, Courtois, and others, that enemy subjects have no standing in the courts was vigorously attacked by a number of French jurists, among whom were Renault, Weiss, Clunet and Barthélemy. Professor Barthélemy in an able discussion of the question 81 asserts that the old doctrine enunciated by the Parlement of Douai in 1704 is not in accord with modern French law or practice. Modern French law, on the contrary, he says, is in favor of the right of enemy subjects to sue in the courts of France and in fact this right was recognized throughout the nineteenth century. 82
The modern theory, he argues, is that war is a contest between the armed forces of states and not a struggle between peoples. Noncombatant subjects of the contesting powers are not at war with one another and, he adds, it is the duty of the French courts “to preserve in the midst of the present storm the small flame which still burns at the end of the taper of international law."88 No argument, he says, can be drawn today from the principle of the civil code, which was hostile to the rights of foreigners; its doctrine is out of date, the principle of modern law being that enemy subjects must be treated as ordinary aliens are treated, subject to the precautions necessary to protect the state against injury. The state may prohibit its own nationals from entering into new juridical relations with enemy subjects and it may modify old rules whenever those relations would have the effect of increasing the resources or strength of the enemy, but to close the courts to enemy subjects and deny them the protection of the law is not justified by considerations of national defense. The purpose of judicial actions is merely to determine juridical situations; if the result of a suit in a particular case is a judgment in favor of an enemy subject and if the payment of the sum recovered would be prejudicial to the national interests, the govern
81 L'Accés des Sujets Ennemis aux Tribunaux Français in Clunet's Journal, T. 43, pp. 1473-1504.
82 In support of this statement M. Barthélemy cites Merlin, Répertoire, Sub Verbo, Guerre; Massé, Le Droit Commerciale, Vol. I, p. 128 and Nys, Le Droit Int., Vol. III, p. 69.
83 Ibid., p. 1480.
ment has only to suspend the execution of the judgment and thus protect the country against possible injury.84 That is permissible but there is no sound reason for refusing to an enemy subject the privilege of having his legal rights adjudicated and determined by the courts. The power of the courts, he adds, to suspend or extinguish the legal rights of enemy subjects was forbidden by clause 23h of the fourth Hague Convention of 1907 to which France was a party, and while Germany had not strictly conformed her conduct to its provisions, she had not, as many Frenchmen seem to have assumed, closed her courts to French nationals residing in the German Empire but only to those domiciled outside German territory, and even these were allowed to sue with the permission of the Chancellor. Moreover the German courts were open for actions arising in connection with enemy branch houses and establishments, when the principal establishments were situated in Germany.
President Monier's contention that the prohibition laid down in clause 23h was not binding upon the French tribunals since it had been overridden by the terms of the decree of September 27 was extraordinary and unwarranted. The prohibitions of the decree of September 27 had not in fact modified the rule laid down in clause 23h nor had there been any intention so to do. That decree had reference only to commercial agreements or acts, and not to such relations as are involved in the bringing of judicial actions, including the employment of solicitors for the purpose of prosecuting a suit or defending an action. If the right of defense were allowed to an enemy subject who had committed a crime against a Frenchman, as it had in fact been done, and yet an innocent and unoffending German were denied the right to appear as a plaintiff against one who had committed a wrong against him, or to resort to the courts for the purpose of enforcing the terms of an unobjectionable contract, it would, as M. Barthélemy remarks, be a strange contradiction indeed. Finally, he pointed out that English practice was less rigorous than that followed
84 M. Reulos (Manuel des Séquestres, p. 216) remarks, however, that the theory that an enemy alien shall be permitted to maintain an action in the court, but in case he obtains a favorable judgment, its execution may be sus. pended, rests on a subtle distinction and that in practice the right would be of no value to the enemy litigant.