Imágenes de páginas
PDF
EPUB

or held or managed for or on behalf of any enemy, whenever they were satisfied that such disposition was expedient. All such property was declared to be exempt from attachment or seizure in execution of a judgment, although the custodian was allowed to pay debts due British subjects from the income thereof, if so ordered by the courts.2 Subject to this exception, the custodian was to hold all property placed in his custody until the end of the war, for the benefit of its owners, provided their own governments accorded reciprocity of treatment to British subjects. The custodian was further empowered to place on deposit with any bank, or to invest in any securities approved by the Treasury, any moneys paid over to or received by him in pursuance of the Act, and any dividends or interest received on account of such deposits or investments were to be dealt with in such manner as the Treasury might direct. Any sum which, had a state of war not supervened, would have been payable to or for the benefit of an enemy, subject in the form of dividends, interest or profits, was to be paid to the custodian and not to the enemy claimant. All holders of enemy property and all managers of companies in which enemy aliens held an interest were required to furnish the custodian within one month full particulars concerning all shares, stocks, and interests held by enemy aliens in such property or companies. Creditors of enemy aliens and persons entitled to recover damages against an enemy alien were authorized to make application to the High Court for an order empowering the custodian to sell or otherwise dispose of the property of any enemy alien against which a British subject might have such a claim. The transfer by an enemy alien of any securities, debts, bills, notes or obligations, after the outbreak of war, was declared to be illegal, unless they were bona fide transactions and made for value received before November 19th.3

2 In the case of Krupp Aktien Gesellschaft (1916 W. N. 234), Mr. Justice Younger held that British creditors of enemy aliens were not entitled to interest on such debts. Thereupon the rules issued in pursuance of the Act were promptly amended so as to allow interest in such cases. Solicitors' Journal, Vol. 60, p. 534; Law Times, July 1, 1916, pp. 150-151.

3 Text of the Act in Pulling's Manual of Emergency Legislation, Supp. II, pp. 19-27, and Baty and Morgan, War, Its Conduct and Legal Results, pp. 512

523.

1

4

The Controller. With a view to insuring the carrying on of enemy enterprises whenever the public interest so required, the Trading with the Enemy Act of September 18, 1914, authorized the Board of Trade, whenever it had reason to believe that the management of any business by an enemy alien or company was likely to be so affected by the war as to prejudice its continuance, but the carrying on of which was demanded by the public interest, to apply to the courts for the appointment of a controller of the firm or company, the said controller to have the power of a receiver or manager, subject to such restrictions as the court might think fit. By an act of January 27, 1916, the powers of the controller were extended to those of a liquidator, including the power to pay debts, distribute assets, etc., and the Board of Trade was empowered, whenever it appeared that the business of any person, firm or company was by reason of its enemy nationality or the nationality of its members being carried on wholly or mainly for the benefit of or was under the control of enemy subjects, to prohibit or wind up such business.5 Already by a proclamation of August 10, 1914, enemy aliens had been prohibited from engaging in the business of banking, except with the written permission of a Secretary of State and subject to such conditions and restrictions as he might prescribe. The proclamation further prohibited enemy alien banks from parting with any money or securities, but required them to deposit the same in such custody as they might be directed. The power conferred on the Board of Trade by the Act of January 27, 1916, was freely exercised and hundreds of enemy companies and business enterprises were closed and large quantities of German-owned property also appear to have been sold at auction by the public trustee.

4 His powers were judicially interpreted in the case of Hazelberg Aktien Gesellschaft, W. N. (1916), and are analyzed in the Law Times of November 4, 1916, pp. 141-142.

5 It will be noted that no application to the courts for an order to wind up such business was required. This feature of the law is criticized by the Solici tors' Journal and Weekly Reporter, Vol. 60, p. 216. See also the Law Quarterly Review, Vol. 32, p. 249.

B. IN FRANCE

Basis of French Policy. French policy in respect to enemy property and business enterprises was similar in principle to that of the British Government. The decree of September 27, 1914, which corresponds to the British Trading with the Enemy Act, made no provision for placing enemy property under the control of a public custodian nor for putting the management of enemy business enterprises in the hands of a controller. Nevertheless, it was assumed at the outset that the government must exercise control over all such property and enterprises in the interest of both the national defense and the maintenance of the economic life of the nation. Moreover, such a policy was justified as a legitimate measure of retaliation against Germany for having closed her courts to French citizens and for having placed certain French houses in Germany under sequestration. In France, proceedings against enemy property and business enterprises were initiated, not by Parliament, but by the courts in the exercise of their common law jurisdiction, although regulations were issued by the government from time to time for the guidance of the courts and the parquets in exercising their powers of control.9

8

6

6 Compare Valéry, "De la Condition en France des Ressortissants des Puissances Ennemis," Revune Général de Droit International Public, 1916, pp. 374 ff., and Clunet, Journal du Droit International, 1916, p. 7.

7 See Valéry, article cited, who emphasizes the character of the French measures as a legitimate act of reprisal for the German pillage and confiscation of private property in France; also Fauchille, Les Attentats Allemands contre les Biens et contre les Personnes en Belgique et en France, ibid., 1915, pp. 257 ff., and Reulos, Manuel des Séquestres, p. 2. In fact, however, the German Government had only excluded from access to its courts enemy subjects domiciled outside the Empire. Frenchmen domiciled within the Empire were free to sue in the German courts.

8 The Germans complained that the policy of sequestration adopted by the French courts was illegal, but Reulos (Les Séquestres et la Gestion des Biens des Sujets Ennemis en France, Clunet, 1917, pp. 24 ff.), shows that this policy was entirely in accord with the established practice of the French courts in dealing with abandoned property or property held by persons who for reasons of public policy should not be left in control of it.

> The various circulars and decrees relating to the matter may be found in Reulos, Manuel des Séquestres; Dalloz, Guerre de 1917; and a collection entitled Législation de la Guerre de 1914 (Librairie de Soc. du Recueil Sirey). See also Signorel, Le Statut des Sujets Ennemis (1916), pp. 128 ff.

Appointment of Sequestrators. With the departure from France of a considerable number of German and Austro-Hungarian subjects at the outbreak of the war and the abandonment of their property, French creditors applied to the courts for the appointment of administrateurs-séquestrateurs of the property thus abandoned with a view to insuring its conservation and the ultimate recovery therefrom of the sums due them. Likewise the parquets took the initiative in applying to the courts for writs of attachment of goods and merchandise belonging to enemy houses of trade, irrespective of whether the owners were in France or had departed. The first court to act upon such applications was the Civil Tribunal at Havre, which on October 2, 1914, issued an order for the seizure of the merchandise belonging to a German house in that city,10 this partly for the purpose of preventing it from finding its way to the enemy and partly upon grounds of general public policy." This mode of procedure in respect to enemy property commended itself to the Minister of Justice, and on October 8th he communicated the text of the decision of the Tribunal of Havre to the various parquets with the suggestion that, as it seemed to be of such a nature as to "constitute jurisprudence," it be brought to the attention of the presidents of the tribunals and the procurators of their districts.12 By a circular of October 13th, M. Briand, then Minister of Justice, went further and "invited" the presidents of the Court of Appeal and the procurators-general thereof to proceed to seize and to put under sequestration all goods and merchandise, all funds (deniers), and generally all movable and immovable property belonging to or held by or for any German or Austro-Hungarian houses of trade, industry or agriculture in France, whether those houses had ceased or not their operations since the outbreak of the war.' 13 They were admonished not to allow any such

10 Text in Reulos, pp. 42-43, and Clunet, 1915, pp. 419 ff.

11 Troimaux, Séquestres et Séquestrés, p. 3.

12 Text in Reulos, pp. 41-42.

18 The law of January 22, 1916, provided that French holders or managers of enemy property should upon their request be considered as sequestrators of the property in their possession, and such property should be regarded as under their care. They were "sequestrators by law" as contra-distinguished from “judicial sequestrators" who were appointed by the courts.

house to escape, and to that end they were urged to seek all information possible from the prefects, municipal authorities and commissioners of police, as well as chambers of commerce and other public or quasi-public bodies. At the same time they were admonished not to forget that they were acting in the name and as the representative of the public interest, the safe-guarding of which must be their first consideration.14 Other circulars were addressed to the prefects directing them to give their full co-operation to the judicial authorities, and especially to furnish them with information regarding enemy establishments in their departments, 15 and to the procurators directing them to take the initiative in requesting the courts to appoint administrateurs-séquestrateurs of property and houses of trade belonging to German and Austro-Hungarian subjects.16

For certain reasons of public policy, natives of Alsace-Lorraine, Poles and Czechs were often in fact exempted from the operation of the sequestration measures.17 The whole matter of the treatment of persons belonging to these races was left to the discretion of the courts. In each case an effort was made to distinguish between the "desirables" and the "undesirables," the former being exempted.18 The possession of a permis de séjour was usually accepted as a presumption that the holder belonged to the first category. Likewise, the policy of sequestration does not appear to have been rigorously enforced against the property of certain Ottoman subjects, notably Syrians. As the sequestration measures applied to the property of all persons residing or domiciled in Germany and Austria-Hungary, it happened that property in France owned by a Frenchman residing in Germany was subject to sequestration. The Tribunal of the Seine also held that the property of naturalized Frenchmen of German origin who had left France and returned to Germany at the outbreak of the war was subject to sequestration even before their denaturalization by the French Government had been pronounced.19

14 Text in Reulos, pp. 44-45.

15 Ibid., p. 46.

16 Text in Reulos, pp. 47-48.

17 See a circular of the Minister of Justice of October 14, 1914.

18 See Troimaux, pp. 87 ff. and 105 ff.

19 Reulos, p. 231.

« AnteriorContinuar »