C RI TI C A L STUD Y
E M E RGE N C Y L E G I S L A TI O N
WA RRI N G NA T I O N S
I ts E ffe ct
Upon
Ufion
th e
S o v e r e i g n ty
P r iv a te I nte r n a ti o n a l
,
L aw
LE C T URE S
BY
.
PRO FE S S O R E S TA N I S L AO S ZE BA L L OS
.
D el iver e d J ul y 23 - 26 , 1 9 1 6 , in th
U n ive r eity
'
of
e
L a w S ch
Bu e n os A ir e s
T ia n sl a te d fr om
th e or i gi n a l s te n
m in ted
og r a ph ic
re
por t
b y T h e P e n top P r e ss C o
a t C l e ve l a n d , O h i o
.
ool of th e
A C R I T I C AL S T UD Y
“
O F T HE
E M E RG E N C Y L E G I S L A T I O N
OF
W A R RI NG N A T I O N S
“
"
/
f
I
I ts E ffe c t U po ir tlie S ov e r e i g n ty a n d
C o m m e r c e o f N e u tr a l N a ti o n s, a n d
z‘
‘
‘
‘
-
"
U po n P r i v a te I n te r n a ti o n a l
LE C T URE S
BY
P RO FE S S O R E S TA N I S L AO S ZE BA LL OS
.
D e l i v e r e d J u l y 23 - 26 ,
in th
Un ive r sity
th e
of
e
L a w S ch
B u e n os Air e s
Tr a n sl a te d fr om
or i g i n a l s te n og r a ph i c
re
por t
a?
P i
"
r n te d
a
by T h
P e n ton P r e s s C o
e
t C l e ve l
N
ove m
a n d O h io
,
be r . 1 9 1 6
.
ool
of th e
T A BL E
S ECTI ON
I
II
III
V
VI
V II
V II I
X
XI
X III
O F C O NTENT S
E U TR AL IT Y AND I M PA RTI AL IT Y
I N FL U E N CE or T H E W A ON PRI V ATE I N TER NATI ONAL L A w
E MER G E N C Y LE GI SLATI O N
D O M I C I L E AND N ATI O NAL I T Y
S E Q U E S TR ATI ON O F PRO PERT Y O F C ITI Z E N S 0 F H OSTI L E C OU NT R I E S
S EQ U E ST RATI ON I N GERM ANY
S EQ U E ST R ATIO N I N F R AN CE
S EQ U E S T R ATI ON I N E N GLAND
M A R ITI ME P RO PERT Y
C O N T R A CT S D U R I N G T H E W A
H AV E T H E C ITI Z E N S O F A H OS TI L E C OU N T R Y ANY S T A N D I N G I N C O U RT
I NDU S TR I AL PRO PERT Y
I N SU R AN CE
C ON FERE NC E O F T H E A LL I E S ON Q U E S TI ON S 0 F P RI V AT E
N A TI ONAL IT Y AND N A TU R AL I A TI ON
SPEC ULATI ON AND M ONO P OLY
M ET HODS O F E ERC I S I N G M ONO POLY
REG ULATI ON O F TR ADE
N
R
’
R
Z
XV II
XV II I
X
A I LS
S U PERV I S I ON O F T H E TELE GR A P H
F RE IG H T S
XX II
T H E D I S C HA R GE 0 F C O M MERC I AL E M PLOY EE S
XX II I
T H E B LA C K L I S T
T H E B LA C K L I S T I N S OU T H A MER I C A
XX IV
O PER ATI ON O F T H E B LA C K L I S T I N A RG E N TI N A
RE SUL T S
XXV I I
T H E B AS I S O F T H E S E R E SUL T S
XXV I I I T H E LE GI SLATI ON 0 F I T ALY
XX I X
PROH I BITI V E REG ULA TI ON O F TR ADE I N F RAN CE
A TTIT UDE O F T H E FRE N C H C HA M BER O F C O M MERCE I N B U E NOS A I R E S
T H E O NLY F RE N C H L A w ON T H I S S U BJ ECT
XXX II
I N TER PR ET ATI ON S O F T H E F RE N C H JU R I S T S
XXX III S T AT U T OR Y TR AD E PR OH I B ITI ON I N GRE AT B RIT AI N
XXX I V O C C U RRE N CE S I N B U E NOS A I RE S
XXXV
T H E N E w B R ITI S H OR DER S
XXXV I W HAT D o W E M E AN B Y AN E N EM Y O F GRE AT B R IT A I N
XXXV II T H E B R ITI S H B LAC K LI S T
XXXV I II M E ASU RE S T o PROT EC T A RG E N TI N E TR ADE
XXX I X ATTIT UDE O F T H E N ATI ONAL A U T HORITI E S
XL
T H E A MER I C AN P R O T E S T
LEG AL DEFE N S E S A RGE N TI N E LEGI SLATI ON
XLI I
R E S PON S I B I L IT Y O F T H E C ON SUL
X LII I
T H E D U TI E S O F I M P A RTI AL IT Y I N T H E U N IT E D S T AT E S AND T H E
A RGE N TI N E RE P U BL I C
X LI V
D U TI E S O F H OS PIT AL IT Y I N T H E A RG E N TI N E
T
HE
M
-
-
-
-
.
A C R I T I C AL S T U D Y
O F T HE
EM ERG EN CY
LE G ISLA T IO N
OF
W AR R I N G N AT I O N S
ON
N E UT R A L
IT S
E FFE C
T
UP
;
S O V E R E I G NTY A N D C O M M E R C E
N A TI ONS
A N D UP O N P R I V A T E
T HE
OF
.
I N T E RN A T I O N A L
LAW
.
L E C T U R E S
BY
PR O FE SS O R
D E L IV E R E D
NE
STA N I S LA O S Z E BA LL O S
.
N I V E R S IT Y
O F BU E
UT R A LI T Y
,
L A W S C HO O L O F T H E
23 - 26 . 1 9 1 6 . I N T H E
JU L Y
U
E
NO S
A IR E S
(1 )
.
I M P A R T I A LI T Y
A ND
“
War imposes political duties upon non participating nations
The body o f such duties is designated as the system o f neutrality
A ccording to the strictly public cha racter o f this institution it is
solely applicable to the relations between sovereign states V iola
tions O f neutrality a ffect the private rights o f individuals whether
belligerent or neutral in many incidental ways A s a general rule
the en forcement o f neutrality is ent rusted to special tribunals o f
varied j urisdiction and character and with admini strative political
and j udicial functions combined which are organized by the warrin g
states for the period o f hostilities These matters constitute a
distin ct branch o f private international law
What should be the moral and legal attitude o f the individuals
o f a neutral country toward those of a belligerent country ? There
are so many personal duties growing out o f a state of political
neutrality th a t th e y constitute a system o f social li fe as a guarantee
o f publ ic peace and civil liberty a system which may be appropriately
”
called that o f impartiality
War is not made upon private persons nor upon private
property nor do private persons war between themselves A n attack
upon either may be a necessary military recourse o f de fense or o f
attack but in any case such action is only exercised by the public
authorities and by organized forces The unarmed inhabitants o f
one country do not fight with the unarmed citizens o f a hostile nation
M r B J L oder counsellor o f the H igh Court o f Justice o f
The N etherlands published in the J our n a l d e D r oit I n te r n a tion a l
-
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”
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'
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,
,
1
a n sl a tio
Tr
C l e v e l n d,
a
O h io
n
.
,
and
,
a m pl ifi a tio
c
n
of
E
n
g l is h
a ti o
ci t
n s,
by
N
or ton
T
.
H or r ,
B
.
fl
“
The
P a ris in 1 9 14 an article entitled
I n uence
P rivate Contracts in which he calls attention to the
the prohibitions established by A rticle 23 of the
The H ague P eace Con ference o f 1 907 relative to
,
,
”
.
,
"
,
land warfare is found the followi ng
“
I n addition
,
o f W a r U pon
fact that among
Convention o f
the customs o f
the prohibitions provided by special
Conventions it is especially fo rbidden
( h ) to
declare abolished suspended or inadmissible in a court
o f law the rights and remedies o f nationals o f the
”
”
hostile country
( M alloy Treaties etc
to
.
,
“
,
.
,
,
.
,
This principle accordingly reco gnizes the validity o f contracts
and the authority o f courts in harmony wit h the following words o f
the prominent E nglish student o f international law M r W estlake
“
I t is
,
"
.
nece ssary to conclude that a state o f war
must be limited to the tw o governments which are at
war and to those o f their respective subj ects w h o in
each instance are forced to participate in the obj ects
that it
o f the war through military organization ; but
”
does not exist between individuals as such
,
,
,
.
These rules , applicable to the relations o f the inhabitants o f
belligerent nations acquire a very extensi ve and peculiar character
in their application to the relations o f the inhabitants o f neutral
E ach act o f the
c ountries with citizens o f the belligerent nations
inhabitants o f a neutral country which a ffects the tranquility the
well being the social economy the ri ghts or the interests o f a
is an abuse o f thei r moral and legal
c itizen o f any belligerent state
o bligations and is a perversion o f the state o f impartiality which i s
I mpartiality does
imposed upon the individuals o f neutral countries
not at all signi fy indi fference for that is an impossibility in view
The inhabitants o f
o f the natural fellowship o f the human spirit
neutral countries entertain sympathies and antipathies towards the
belli gerent countries and their citizens but the manifestation of such
sentiment in the exercise o f the universal right o f liberty o f thought
and speech m ust recognize those limits which are universally
imposed upon hum a n actions by social decency culture tolerance
and the respect which is owed to the rights o f others
A ny excess in such mani festations is an abuse and may degen
e ra te into a w r ong when it results in duress o r unlaw ful restraint
upon the mind the rights or the material interests o f other residents
o f the neutral country
S uch excess may even acquire a character
o f political transgression when it results in a general atmosphere o f
hostility to particular social groups and when such hostility mi ght
be interpreted by the country to whom those g roups belon g as evi
dence o f hostility to it particularly i f the public authorities who are
entrusted with the duty of p reserving the public peace make no
,
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2
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e ffort to restrict such conduct Fo r example the local French press
interpreted the remarks recently made in this school by the illustrious
ambassador o f B razil a l th oug h pr iv a te l y and not in a n y o fficial
capacity concerning the E uropean war as an o fficial expression o f
the sentiment o f the government of Brazil in favor o f the allied
powers The government o f B razil made haste to protest that the
ambassador s remarks were strictly o f a personal and private char
acter and that the B razilian nation is strictly conserving its
neutrality
The duties of impartiality then require that liberty o f thought
can only be followed by such liberty o f expression as conforms to
the susceptibility o f all opinio n s o f all nationalities and o f all
interests in those civilized countries whose education and institutions
guarantee th e sanctity of private rights
.
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’
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II
I NF
L UE
NCE
O F T HE W A R O N
P R I V AT E
IN
TE
R N AT I O N A L
LAW
A ll the teachers and the writers o f international law discuss
the influence o f war The A rgentine school maintains that private
.
international law is independent o f public international law not
withstanding the many bonds o f relationship which exist between
them as between all branches o f legal science the Obj ect o f which
is the good o f mankind Consequently it is not a part o f my task
to examine the problems present ed by the abrogation o f many o f
the principles o f public intern a tional law some o f them centuries
old or to speculate upon their possible or probable e fficient re estab
l ish m e n t in the future
P rivate international law considers and
solves questi ons o f private interest divorcing them from the influence
and interests o f public policy so far as possible I t protects one
man against another and against the state domestic or foreign
d uring times o f peace as well as o f war
L et us now consider what has been the fate o f international
p rivate law in the present universal catastrophe H"as it and the
?
a
rotection
o
f
its
principles
dis
ppeared
I t has unquestionably
p
su ff ered serious consequences in the universal disaster but fortunately
to only a limited extent W hile we deplore the direct and indirect
disregard o f the rules o f public international law those o f private
international law s ubsist and are still applied maintaining the
integrity o f its pri n ciples and o f its results in most cases in an
atmosphere heated it is true by the military bonfi res b ut clarified
by that sentiment o f j ustice which never ceases to influence humanity
even though it be distracted by the din o f battle
is
a
great
consolation
to
examine
the
testimonials
to the high
It
"
mo ral e l evation preserved by the magistrates o f belli gerent nations
,
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'
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3
‘
h
o f t e i n n oce n t ;
in their protection o f the rights
achievement o f private international law
better days for public international law
is
‘
and this g lorious
portent o f hope fo r
a
.
III
E M E
R GE
L E G I S L AT I O N
NCY
E mergency le g islation enacted by states at war interests humanity
because it a ff ects the most i mp
ortant achievements o f mankind and
p rinciples o f international law o f both local and general application
I t encroaches the domain o f public international law as well as that
o f private rights and for that reason its study falls well wi thin
the scope o f our Curriculum
A lthough more o r less directly
a ffected the rules o f p rivate international l aw have not been abro
gated They have simply been made to su ff er limitations imposed
by circumstances but which do not amount to the suppression o f
civic liberty or o f its guaranties E ven in those cases where the
administration o f private law has been a ff ected by the provisions
o f emergency legislation litigants have enj oyed those double guar
a n te e s o f individual freedom a j udge and an advocate
or the ir day
”
in court
T rue the de fense which the German now enj oys in
E ngland a n d an E nglishman in G e rm a n y is not ideal as compared
with that enj oyed under normal C ircumstances Without in any
way casting aspersions upon the German French and British j udges
( I use the order o f ceremonial diplomacy ) parties to suits will
look with distrust upon magistrates o f a nationality hostile to their
own ; and under certain circumstances the j udges themselves by
a very natural psychological p rocess will frequently be influenced
by a certain involuntary patriotic partiality N everth eless it is
ce rtain that the administration of j ustice in these un fortunate times
exhibits in every belligerent country irrep roachable indepen dence and
moral elevation
We may conclude from the foregoing that the limitations
imposed by emergency legislation upon private rights is moderate
and exceptional ; that notwithstanding the rigid and o ften e xa gg e r
ated precautions o f a state o f war the field o f its action remains
open and protected by those sentiments o f j ustice and pity which
war has strengthened in the noble spi rits o f every civilized com m u
n ity
This security o f our law appears to me complete quit e
“
di ff erent from that which may result from the application o f policy
to the domain o f international law the recovery o f which will be
subordinated to the man ner in which the war ends and to the spirit
o f the treaties o f peace which may and should be very comprehensive
and broad and not mere stepping stones to new military ca ta Str oph ie s
.
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4
IV
D O M IC I L E
AND
N
AT I O N A L I T Y
I was honored with a call to this U niversity as
pro fessor o f international private law I foun ded that which I
called the A rgentine S chool o f P rivate I nternational L aw the funda
W hen in 1 892
,
,
mental principles oi which are expounded in my various publications
and to which I now refer for lack o f ti m e to make any pertinent
quotations o f that material A t that time I asserted that the A rgen
tine Constitution which had its origin in the p rovisional statute o f
1 8 1 5 and a s it w a s revised in 1 85 3 together with the civil and
commercial legislation based upon it prod uced a syste m o f la w
which was not only a novelty in j urisprudence but which is also a
guaranty of the future development o f this country whose pop a la
tion is so largely the p roduct o f immigration A t that time as w ell
as later in studyin g the tw o chief principles which influence pri vate
rights nationality and domicile I initiated my propaganda in favor
o f the latter system as the best means o f assuring future develop
ment This system o f nationality in its final form was fi rst adopted
as a means to political ends ; namely in o rder to make the unity o f
I taly possible and to permit the reconstruction o f its nationality
which had been so shattered by feudalism and domestic dissension
The system o f domicile had been inherited by us from the R omans
They had adopted it when they founded their world empire which
is so comparable to the modern empi re o f the British and w hich
covered the entire world known to the ancients A S they came in
contact with the s y stems o f law o f conquered subj ect purchased
o r allied peoples th e R omans in later days so faith fully imitated by
E nglish and A merican statesmen created that wonderful S ystem o f
conquest w hich Cicero characterizes in one of his letters to A ttikus
w hen he say s
,
,
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"
“
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_
W e make the Greeks and conquered O rientals be
lie v e that they are free beca use we pe rmit them to
re gulate t heir private a ffairs according to their ow n
systems of law and in that way they forget that they
”
are our slaves
,
I
,
.
This political system o f permitting all the existing f orms of
law to continu e side by side within the territo ry o f the empire
forms the foundation o f the system o f pri vate la w based upon that
maj or
of the domicile ; the individual is competent or incompetent
or minor married or single divorced or not divorced his marria g e
is v alid or invalid his o ff spring is legitimate or bastard all accordin g
to the law o f the land which the person in question has chosen o f
his own free will as his domicile
The system o f domicile is there fore the hi ghest guaranty o f
,
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5
the freedom o f the individual who can select fo r himsel f the locality
in which he prefers to establish a family to acquire property and
permanently to reside because he finds there the greatest degree of
freedom the greatest opportunity for labor the greatest tolerance
th e greatest legal protection the climate which pleases him the best
adequate nourishment social institutions to his liking—in short all
those moral and physical conditions w h ich are necessary to his well
bei ng and to enable him to contribute on his part to the progress
and prosperity o f the community which he has voluntarily j oined
O ut of this system o f the domicile follows the right o f volu m
ta r il y relinquishing one s former nationality ; that is the right freely
to emigrate and immigrate to give up the fatherland o f one s birth
and to b ecome a member o f a new one
N ationality as a political bond ties the in diVidua l to his father
”
land
O nce a subj ect always a subj ect
was a maxim of the
feudal and B ritish law I f we were to apply that legal doctr ine
which has been somewhat weakened by the maj ority o f E uropean
nat ions in thei r definitions of the law o f th e person the I talians
for example who settled in the A rgentine R epublic in the days o f
R osas those heroic soldiers who came to us with Garibaldi
and others o f whom some died in our midst as generals and
admirals although they had severed the actual bonds which tied them
to thei r E uropean fatherlands although they had acqui red property
here purchased burial places and comm itt ed the remains of their
dear ones to our earth would have been obliged in spite o f all that
to marry devise their property and inherit according to the civil law
o f I taly the law o f a country under whose j urisdiction they n o
longer lived with whi ch they were no longer acquainted and to
which they were only bound by a moral sen timent o f friendli n ess
O ur intelligence rej ects such legal consequences for they run
counter to the human conception o f freedom There are in the
A rgentine R epublic tw o and one half million strangers o f whom
without doubt eight hundred thousand have lost their original
E uropean citizenship by Operation o f our la w s
I t is a principle
established by E uropean legislation that he wh o abandons his native
land without intention o f returnin g sine animo reve rtendi ” mani
fests a desire to break his national ties with his native country and
to create for himsel f a legal and social standing in some other
country and i f the country o f his choice is advised o f his inte n tion
and admits him to its citizenship a s the U nited S tates has done th e n
the immigrant in the exercise of hi s civil liberty has bec ome an
integral part o f a new fatherland based upon his domicile which
acco rding to the doctrine o f the wise S avi gny is nothing else than
the right to freely c h oose the sovereign ty the law and the country
under whose gove rnment he desires to live
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6
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The doctrine of domicile governed the world until the end of
the nineteenth century The countries which adopted that doctrine
among the chief o f whom were the B ritish E mpire the U nite d
S tates Germany and the A rgentine R epublic held in their hand s
the dominion o f navigation the maj or portion o f the tonnage which
transported merchandise fr om on e continent to another ; they con
trolled the clothing Of th e world as producers o f the maj o r portion
o f its cotton and wool ; t h ey controlled the maj or portion o f th e
and the maj or portion of th e
c e r e a l s upon which humanity subsists
fuel which prepares our food warms us and furnishes the motiv e
powe r for our industries ; in a word they dominated three fourth s
o f the economical factors o f civilization
Germany in whose separate states before the imperial consolida
tion distinct systems o f law existed chiefly the traditional German
law the Roman law and the Code N apoleon introduced at the time
o f his conquest after long and di fficult labor succeeded in the creation
o f its civil code and thereby abandoned the doctrine o f domicile
which had been introduced into its system by the R oman law and
by that o f the Kingdom o f P russia adopting the doctrine o f nation
ality which was incorporated in the Code N apoleon in 1 804 and
perfected in the I talian code o f 1 86 5 I t would be foolh a r dy to
attempt a critical analysis o f the wo rk o f the civil code o f Germany
in a S outh A merican U niversity by pro fessors who are themselve s
no mo re than students a code formulated by the learned men o f
that country a fter a quarter o f a century o f discussion and e xpe r i
ment N evertheless fulfilling my duty and as an admirer o f the
A rgent ine constitution a nd its doctrines as well as a satisfied cham
pion o f the correctness of our own theory o f the private rights o f
man I permit myself to point out the error which in my j udgment
Germany committed when it gave up its old legal doctrine of
domicile which had been the best guaranty for the development o f
”
its international p rogress and o f its Weltpolitik and substituted
fo r it that o f nationality which is only a means o f car rying upon
its list o f soldiers individuals who will not serve Germany as soldiers
because they have been born in other portions o f the world T h e
present war confi rms the j ustice o f my criticism and the correctness
o f the A rgentinian theo ry German commerce is today severed
from all its foreign relations and is persecuted in the entire world
on the theory o f the legal doctrine o f nationality which is now
applied against it to define and fix the ownership and character o f
p roperty and transactions as either neutral or hostile
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Germany had retained the doctrine o f the domicile th e
emigrated Germans would have been protected by the laws o f neutral
countries by their own laws and by the E nglish doctrine o f domicile
and they would have been able to de fend themselves against the
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persecution directed against them on account o f the ir nationality by
an appeal to the rights o f their domicile which as I will dem on
strate is recognized by the B ritish courts even in those cases where
they are brought into question by the applicati on o f B ritish emergency
legislation
I have dwelt upon this important question o f domicile and
nationality so long because out O f the distinction between these two
doctrines follow many serious impairme nts o f equal rights which
we will have to consider when we take up the various l e gal questions
which have arise n as con se que n ce s o f the war
We will then observe a remarkable development in the practice
o f the law o f the B ritish E mpire whose civilization is based upon
the principle o f the domicile and which has always been the most
pertinacious supporter O f this principle both within and without
its territorial j urisdiction N ow forced by the annoying exigencies
imposed upon it by war new points o f view have developed in the
B ritish E mpire which may be divided into two leading tendencies
I n public law it abandons the System o f domicile and adopts that o f
nationality at least in its prize tribunals ; in the field o f private law
the superior E nglish j udges commenced fortunately by sustaining
and ended by adj udging that it is not the nationality o f the indi
vidual but his domicile which determines his legal status and that
o f his property The E nglish seized the steamer P R E S I D E N T M I TR E
because a part o f the shares o f stock in the Company which owned
it belonged to Germans ignoring the principle o f domicile r e pr e
sented by its A rgentine flag ; in private cases however the E nglish
j udges hold that Germans domiciled in L ondon enj oy the protection
o f the B ritish law
For further considerations directing mysel f pa rticularly to the
students o f the law school who have the greatest interest and duty
to pursue these subj ects further I re fer to my published wo rk in
which I have treated questions o f domicile and o f nationality with
relation to the German civil code and to the codification o f private
international law by the H ague Convention
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V
S E Q U E ST R AT I O N
O F
P R O PE RTY
CO
O F
C
UNT RI E S
I TIZ E NS
OF
HO
ST I L E
H aving established these general principles o f law I may now
,
proceed to apply them to a discussion of one of the fi rst cases in
which war emergency legislation came in conflict with private indi
vidual rights The nations of E urope by tacit consent have fixed
the fourth o f A ugust 1 9 1 4 as the day o f ori gin of the new political
and legal relations ari sing from the war Judicial proceedings may
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8
be separated into two g roups according as they were instituted
be fore or a fter that date This d ivision is important for the legal
consequences which ensue there from The first measure adopted
by the w a r r in g pow e rs in respect to private righ ts was the se questra
tion of the p roperty o f citizens o f the hostile countries P lease
observe car e l l y that in the legal language o f the theorist there can
be no such thing as 'German enemie s o f the E nglish nor as E nglish
enemies o f the Germans because we have e sta bl ish e d th a t g r is
not pursued between individuals but solely between states W e Can
only spea k o f the individuals as citizens o f belligerent countries
S equestration o f property is accomplished by authority o f
executive decrees or by laws L et us examine with the brevity
required by the limited time at our disposal the varying points o f
view o f the laws o f the di fferent countries in that respect I will
not re fer to all o f the numerous belligerents but will cite the most
important only because the others have followed their example
The emergency laws o f Germany France Great B ritain and
I taly fill volumes which contain general local and international
economical and political laws and those governing private rights
which are to be applicable during the continuance o f the war ; they
are laws o f exception which in some respects conserve existing
p rinciples but which in the most part establish transitory rules which
will be abandoned when peace i s again established
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VI
S E Q U E ST R AT I O N
IN
GE R M A N Y
The emergency laws o f Germany fill three volumes which have
been translated and annotated in a luminous manner by the secretary
o f the A rgentine legation in Berlin M r E duardo L abougle and
transmitted by him with a full report to our government O ur
govern m ent has considered it p rudent to withhold this report from
th e public as it seems to me needlessly because as we will see
later these foreign laws have been translated and published either
wholly o r pa r tially both in France and in E ngland The publica
tion o f the S panish translation the first with which I am acquainted
would be very opportu n e and would be a stimulant to the few
members o f the diplomatic corps who are seriously w o rking in the
interest o f thei r country
O n S eptember 4 1 9 1 4 the federal council o f Germany author
"
arl iament to enact from time to time such
iz e d by the law o f p
measures a s were demanded by military and political necessity
en a cted the fi rst E uropean law o f sequestration one which a ff ected
all enterp ri se s establish ed in German territory either by main home
o ffices or by branches which were administered or finance d from a
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hostil e country or o f which the profits either wholly or in part
would be trans ferred to a hostile country ; it included banks in sur
ance companies and industrial corporations established in Germany
and having their central directorate either in L ondon or in P aris
by which they are controlled or to which go their earnin g s
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What is the character o f this se questration ? D id Germany
appropriate the commercial pro perty o f its enemies ?
law is praiseworthy in the cl arity a n d the precision O f its termin
ology which is adequate to obviate any future disputes S e questra
tion is a measure o f vigilance and o f military and political pr e ca u
tionf jf h aS I 6; its Obj ect the prevention o f any prej udice to military
SE CU r ity o r to the economical interests o f Germ any
which might
arise from the conduct o f enterprises di rected o r owned by foreign
ers This vigilance is exercised by high functionaries o f the
government designated by the government and known as receivers
who are limited to the direction in a g e fiéf El Wa y
with out going into details o f the business o f such establis h ments
and who are empowered to adopt such measures as will save the
se q ue ste re d e n te r p
r ise s from paralysis
o r failure to accomplish the
obj ects o f their existence
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We d o not owe this provision to any sentiments o f gallantry or
o f humanity but to a common sense policy in favor o f German
a
ital
sts
because
every
foreign
undertaking
est
a
blished
in
the
cp i
country is in such a degree linked to its business system that its
disaster would be a national disaster S uppose for a moment that
Great B ritain Should attack the A rgentine Bank o f L ondon and
The damage which its th ori sa n d s o f depositors
R io with violence
o f varying sums would suff er would be very great and these
depositors are part o f our own business system ; they are ourselves
For that reason the Germans with wise fo resi ght have protected
fo reign enterprises instead o f showing hostility to them and in so
doing they have protected all their own closely connected interests
This law provides that in case o f liquidation o f a forei gn enterprise
its assets shall be converted into money which must be applied first
to the payment o f German creditors and o f which the balance must
be deposited in the I mperial Bank to be claimed by those to whom
it belongs a fte r the end o f the war W hen the war ends forei g n
owners of the net p roceeds will appear and demand payment The
German attachment o f the property does n ot indi cate its acquisition
but only the superintendence o f its manage ment so that the orderly
cour se o f busin ess an d an adequa te li q uidation of assets m a
y be
se emCd I n cas e th e managers or superintendents o f such e n te r
pr ises do not perform their duty or make mistakes they are replaced
by receivers appointed by the government on motion of the a uth or i
ties The receivers have no ri ght to change the personnel o f the
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such manner as best to p reserve the interests o f the owners Because
in F rance the civil courts have no attendant officers re p
resenting
the public interests the circular directed the p residing j udge of each
civil court to initiate the sequestration O f the assets of foreign busi
ness houses The circular says
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This
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measure is purely of a conservatory char
acter and the receivers are empowered to take all
necessary steps to collect all accounts receivable and
use the proceeds to pay the accounts payable Legally
y ou cannot go any further ; but a s a rule b us ine ss
houses und er sequestration must cease their fo rmer
act ivit ie s; Th i s continuation of the conduct o f their
is compatible with sequestration and since
complete and immediate closing o f their business would
be o f inj ury to French interests proper regard for
those interests will permit the continuation o f the
business in a provisional and limited way for the
purposes indicated
German and A ustro H ungarian
factories the products o f which are used to meet the
requirements o f our army must be ke pt in operation
in o rder to satis fy this public necessity ; and businesses
o f that kind will be continued pursuant to an under
standing reached with the military or naval authorities
I t is also possi
on direct application or by requisition
ble that it will be advisable in some cases to opera te
”
in the interests o f French employees and creditors
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The a im g fflth e F rench regu la tio ns is there fore the liquidation
o f the sequestered businesses whereas the German law cont emplates
their maintenance
h e fo urth o f N ovember finally the M inister o f Justice
On t
issued special instructions concerning the legal obligations o f the
receivers This is the most important edict on this subj ect which
was issued from Bordeau
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The
presidents and other members of the court
must watch over every step taken by the receivers in
sequestration cases They must n ot only see to it that
these receivers perform their duties in a re gular and
faith ful manner but they must also watch to see that
they conduct their work as industriously as possible
Furthermore they must take care that the business
a ff airs o f the receivers are conducted as prudently a s
possible that all unnecessary expenses and all un n e c
essary formalities are avoided the costs of which w ill
constitute a needless expenditure To this end the
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receivers are required to personally perform those
duties which in other cases would be perfo rmed by
their subordinates by public officers or other private
employees and unless necessary assistance is not per
E very
m itte d in order to keep dow n the expense
Off ense against this provision must be inquired into
and in case o f necessity severely punished The presi
dent is given the privilege o f employing a deputy for
the receipt and examination o f the periodica l reports
which must be made to him by rece ivers and the j udge
named for each case for that purpose must countersign
the reports
The foregoing directions are limited to the deter
mination along general lines o f the methods to be
”
observed in handling sequestration cases
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furthe r circular was issued on the 14th o f N ovember 1 9 1 4
by the M inister o f Justice to the same authorities and provided that
the receiver o f sequestered property had nothing to do with it
except to preserve it and could not deal with it any further than
was necessary to collect the accounts receivable and to pay the
accounts payable This circular reads in part
A
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M oreover
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it should not be forg otten that th e a ppoin t
ment o f receivers for the property o f German A ustrian
or A ustro —
H ung arian subj ects is not intended nor has
it be e n so e xe rcised as to rob these people o f their
Y ou are not dealing with an act o f con fisca
p rop
e r ty
"
tiO I ff a n d v e r y fa r f r Om depriving th e o w n e r o f his
p roperty either directly or indirectly the sequestration
proceeding according to the view o f the governme nt
must be limited to the sa fe custody o f the property as
The regulations from their
I have rep eatedl y de clared
very nature will tend to hinder German and A ustro
H ungarian business houses engage ? in industry trade
o f agriculture in France from permitting hostile nations
“
to d f § w ari y advantag e from their operations during th e
war or out o f the industrial activity o f France U nder
no excuse shall the sequestration serve any ith ?
Th? di rections given are limited there fore
osition o f the assets o f German or A ustro
tO th e disp
H ungarian business houses through the ordinary course
I t i s superfluous to remark that the same
o f trade
end may indi rectly be reached through the exercise o f
the right o f requisition which cannot be de feated
because o f pending sequestration proceedings I n such
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a case the law regulating mili tary re q uisitions sh all be
applied w ithout prej udice to the payment of indemnity
e qual to the value o f the advancements accomplished
”
by such re qui sitions ?
S uch is the circular wh ich defines with the best precision the
character oi the remedy A nother circular o f D ecember S 19 1 4
e stablishes the essenti a l principles which ought to be observed in
the organization and exercise o f the mana gement which the p resi
dents of the civil tribunals are required to e xercise w ith the
assistance of the public prosecutors o f all p roperty se questered
from Germans Austrians and H ungarians A furthe r ministerial
decree fi xes the manner o f remuneratin g the recei v ers
Y ou w ill observ e that the ministerial circulars omit any re fer
“
ence to fundamental questi on s of the right of the former owner to
have th e proceeds of the sequestration returned to him after the
end of th e w ar E ven in view o f the fact that these re gulations
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are only o f a provisional character still their text entrusts the liqui
dation of the prope r ty in question to a gencies o f the sta te There
arise there fore tria n y questions for discussion with which the
F re nch newspapers have busied themsel v es such as th e following
W hat w ill be decided in France about the final right o f p roperty
in s uch cases ? A t the end o f the war w ill the net proceeds be
recognized as the property o f the former owner ? W ill th e liquida
tion be carried out in the form provided for by the German law ?
H av e the proprietors o f sequestered property the ri ght to the income
o f their property w hile prisoners o f war or inte rned in F rance or
while they li v e in neutral countries ? The se a r e que stion s wh ic h
arise from the lack of clearness in the provisions of the Fr e n ch
r e gul atiOns on
Subj ect but they should all be ans w ered in the
affi rmative
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N ot w ithsta nding I know
deci sions in the ne gati v e There
was the case o f s e questered real esta te o f Germans o r A ustro H un
g a r ia n s which was used by the F rench government for barracks for
t roops The question was asked whether the customary indemnity
was to be paid to the owners O n A pril 29 1 9 1 6 acc ordin g to the
s this questio n was put to the F rench go v
repo rt by the L e T e m p
e rn m e n t and it is said to have given the follo w in g ans w er
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This q estion must be
ans w ered in the ne gative
N o indemnity of a n y kind will be paid for the occ up a
tion of the r e al estate in question A nd in case the
recei v ers of th e prope rty have already recei v ed from
the gov ernment a n y indemnity for this p roperty it
must be immediately repaid to the public treas ury ”
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A nother interestin g lawsuit is that o f a French woman
wh o
was married to a man without a country a German by birth but
who had left his native land forty years be fore without eve r return
ing and wh o resides in France where he owns property H e was
interned because they considered him a German H is wi fe demanded
that the government pay her a provision for her temporary sup
port
and ther e was granted to her a tempo rary pension o f three hundred
francs per month H er husband Frederic D urr p rotested that he
was not a German because he had lost his German citizenship under
the German law o f 1 870 which provides for that result i f a German
citizen resides ten years in a foreign country without making a
declaration that he intends to retain his citizenship The man was
”
heimatlos without a fatherland and according to the spirit o f
the French law he came ne a rer to being a French citizen I n spite
o f the legal soundness of his argument the French government
refused him the thousand francs which he demanded for his support
out o f his own sequestered property and declared simply that it
considered him a German — ( L e T e m p
s
O ctober 1 4
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V III
S E Q U E ST R AT I O N
IN
GL A N D
E N
—
wHCF E fi l
The decrees about se rfii m
g a n d has issued di ff e r
in thei r fundamental character from the German laws but are still
very much more definite than the French measure E ng la n d ta ke s
away from the German or A ustro H ungarian the possession o f his
property and entrusts it to its own administrators but it k ee ps "th e
proceeds for final liquidation after the war
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IX
M
ARI TIM
P R O PE R TY
E
A mong the impo rtant subj ects covered by the emergency laws
is that o f p roperty o f ships and their cargoes A s I have mentioned
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its a ll ifi s bé i fi five lq p
olicy imp
ose d by it upon "
the E nglish
e d to
p
"
th é ESiiii Of diSz iiIOw in g the ancient rule o f the domicile in d e te r m
in
ing th e oW ne rsh ip o f vessels S hips like persons have a d omicile
a n d th e i r d omicil e establishes the law applicable to them even thou gh
their ownership be German or indeterminate as is the case when
ever ships are owned by stock companies ; for c ertific ates o f stock
have no nationality and they change hands daily in the stock
exchanges in s uch a way that they may belong to an E n glishman
to a Ge rm an to an A rg entinian or to a R ussian all in the course
o f one day
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S hips whatever may be the ownership
of
the shares o f stock
which represent their value are domiciled according to the rules
and according to the re gulations imposed upon
o f admi ralty law
them by the country o f their registry and flag The domicile of “ a
j ust as a
s hip is that o f its o rigin or o f its adoption by registry
e r son w h o comes into our country a n d v uir e s a domicile
f or eign p
the foundation o f a family
c haracterized by permanent residence
the acquisition o f property the pursuit of a ff airs and his final
acceptance as a citizen But E ngland sig cg the war h a s h eld that the
h
a
s
and
f
s car o is that Of ifS C W n e r
n a tion a l it
h ipfla nfl
p
i
t
g
d
; H
ie l aw of its a g
d omicil e as fixed B3
and
ev e n
the present war unti l O ctober
From that dat e E ngland h a s mi iiqii ish e d the legal prin
20 1 9 1 5
ci p
lE Of th e domicile in marine law in order to better en force the
blockade o f German ports
S till it may be that this chang e o f
doctrine is only provisional and I am satisfied that at the end o f
the war E ngla nd will return to the doctrine o f domicile for then
h e r trade will return to that free and unhindered competition in the
e xercise o f which the theory o f
domicile o ffers advantage to all
n ations reached by the fl eets o f trade
E ven th ough maritime property in E ngland is treated provision
ally according to th e pr in cipl e s o f nationality it remains in neutral
lands now as formerly subj ect to the principles o f the law o f
domicile ; and it was this last principle which controlled th e decision
in the case o f the seizure o f the P R E S I D E N T M I T R E
That ship was
given back to us because E ngland did not dare to expose itsel f to
the deci sion o f an impartial court for an impartial court would have
returned us the ship and would have given us a large indemnity
besides on the authority o f E ngla n d s own law which has been
fo llowed persistently fo r centuries that domicile controls not only
the rights o f the individual but those o f navigation
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CON
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T R A C TS D U R I N G
T HE
W AR
This is another o f the main topics o f private international law
which has been a ffected by emergency measures and which presents
cases o f interest to the tribunals o f every country A ll contracts
ente red into before A ugust
and which by thei r terms were
to be executed in an enemy country enj oy a period o f grace o r
m or i tor ium fix e d by the warring governments in o rder that legal
obligations contracted in good faith be fore the outbreak o f war
could be performed without prej udice to the interests o f either
contracting party
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But what is the e ffect upon the legal rights o f parties to con
tracts entered into sin ce the 4th o f A ugust 1 9 1 4 and wh ich were
i ntended to be performed in f oreig n countries ? The emergency
laws o f Germany France and Great B ritain ( I taly occupies in
respect to Ge rmany a special position which I will discuss later )
I t is prohibited to the
have
contracts void
citizens o f each country to con tract with the citizens o f the enemy
country within the respective national territory and contracts which
violate this prohibition are void and constitute misdemeanors for
which penalties are provided This is a rule o f military a nd legal
precaution well within r eason The obj ect o f war is apparently to
dominate th e military forces o f the enemy ; but modern public policy
and war alike are industrial ; formerly people went to battle in the
flush o f courage because people were romantic Later they fought
for territorial extension for the vanity o f the reigning houses ; but
now they fight to the death for th e commerce o f the world for the
domination o f our industries for the absorption of our capital F or
that reason one o f the recognized methods o f hostility is to prevent
the Frenchman who has a ff airs in Germany from removing his
profits to France and to thereb y strengthen its powers o f resistanc e
j ust as it is legitimate that France should prevent the German with
a ffairs in France from a similar p rocedure favo rable to his country
H owever this is not the only point of view which is presented
N ot only contracts may not be consummated between nationals o f
belligerent countries th ey may not be consummated between
na tiO r
Tal s O f h e l lig e r e n t countries and inhabitants o f neutral coun
i
f
i
it
is
th e intention to execute them in the former
That is
g
g
g
t
a matter o f g reat commercia l importance which has been the obj ect
o f special regulation as we will see later
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XI
H
AV E
T HE
C
I T I Z E N S O F A H O ST I L E
STA N D I N G I N C O U R T ?
C
O U N T RY
ANY
The validity or nullity o f contracts entered into since the 4th
o f A ugust 1 91 4 is intimately linked with the consideration o f this
impo rtant question H ave the citizens o f a belligerent country any
standing in court in the enemy country ? H as a German a right o f
access to the French and E nglish tribunals for his personal pro
,
,
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te ction ?
(a )
Th
e
A ttitud e
"
of
G e rm a n y
The German S upreme Court on O ctober 26 1 9 1 4 rendered the
following decision
The German code does not recognize the provi
sions o f certain foreign codes which a re prej udicial to
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the citi z ens o f foreign states I t recognizes the theory
that w a r is only waged between hostile governments as
such and between their respective arm ies a n d that
citizens of hostile states in the eye o f the civil law
occupy the same position as our own citizens in war
time as in peace and that this principle will be applied
in all cases save thos e regulated by some contrary and
”
express provision o f the statute
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reme Court volume
( D ecrees o f the Civil B ranch o f the S up
page
,
85
,
This j udgment acknowledges the right o f a C itizen o f a hostile
state to appear before a German court as a pa rty during the war
whether he be plainti ff or defendant This rule is applied without
restriction to natural as well as artificial persons o f hostile lands
who are residents o f Germany I f a subj ect o f a hostile country is
unable to appear personally in court he has the right to be r e pre
sented by counsel I f s uch a person is the owner o f a business
e nterprise in Germany the person conducting such business may
ap
pear in court in the name o f his p rincipal in spite o f the super
vision being exercised by the state O ver its a ff airs I n discu ssion
o f this j udgment
the S wiss author A Curti has published an
interesting article in the J our n a l d e D r oit I n te r n a tion a l page 785
anno 1 9 1 5 under the title L a condition des suj ets ennemis selon la
”
loi ct la j urisprudence al lemandes
H e says
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follows
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clearly that the subj ects o f a country
which is at war with Germany may en force their
rights during the war in its courts M or e ov e r w ith a
view to the protection o f that right o f the foreigner
the highe st P russian court has held that the trial o f
an action may be postponed i f the party to it who is
a citizen o f a hostile country is not in a position to
”
appear personally in de fense o f his rights
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another j udgment published in the D e u ts ch e Jur is te n z e itun g
on M ay 1 1 9 1 5 ( page
the postponement o f a p
roceeding was
o rdered on the ground that the plainti ff who was an E nglish subje ct
and a prisoner o f war was interned in R uh e l e be n
A rticle 247 o f the German code o f civil procedure provides
as follows
In
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When one o f the parties to an action is serving
in the army during war or is in a place where he is
unable to attend the S itt ing o f the court whether be
cause of the o rders o f the authorities or in consequence
o f any other un foreseen circumstance resulting from
,
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18
’
“
thick head
”
from ca boch e wh ich m e a n s
and ex p ressed the opini on
that it was com monly con fused with the w ord a l boch e H e expre ssed
the opinion that subj ecti v ely the w ord boch e implied an insult but
that used obj ectively it was not ins ultin g and that it all depended
upon the ci rcumstances unde r which it w as used
P ro fesso r Kie ssm a n n of D essau expressed the O pinion that
boch e i s deri ve d from the word ca boch e and that th e common people
in France w ere using thi s w ord durin g the war in an insulting sense
Basin g its j udgment oh these opinions the court then decided
that the youn g lady in question M iss Ba rthel had insulted the
German troops and it sentenced her to five months in prison
deductin g from the sentence the two months o f imprisonment which
she had already served
(b) I n F ra n ce
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What is the legal status o f contracts o f citizens o f hostile
countries in F rench territory ? H a v e they a ri ght there to the
protection o f the courts ?
The F ren ch criminal court o f P ont l E v e que in the first instance
and the Co urt o f A ppeals at Caen in the second instance On appeal
decided in the year 1 9 1 5 a damage suit brought by Julius R uth e m
burg German by birth but a naturalized Frenchman against the
publishers o f L e P r og r es a newspaper of the city o f D ines which
had called this gentleman a boch e A ft er a very lon g and tedious
trial involvin g many irrelevant matters in which the attit ude o f the
j udge seems to have been somewhat dis turbed by his war time
prej udice j ud gment was rendered that that word used concernin g
a German even though he be naturalize d constitutes n o insult ; but
h e sentenced the newspaper publishers to a fine o f si xteen f rancs
because it had cast aspersions upon the method by which the plainti ff
had ac quired his property This j ud gment seems to be tempered
w ith patriotic mercy but there w a s n o appeal I t is on e of the cases
in which the court was imp roperly influenced by the ex istence of a
state o f war and to which I have al ready re ferred
There were howeve r m uch more important actions in France
to which Germans were parties and in which the hi gh principles o f
j ustice and natural hono r were conserv ed ; for in my O pinion a
country which does not extend j ustice to the stran ge r w
hether in
peace o r in war is on e o f in ferio r civilization
But in important cases the French court s ha v e taken a higher
attit ude I n the R uth e m burg case it w ould seem as thou gh the
j udge really meant to say don t bother the court ; y ou r quarrel is
”
not worth w hile
A mong the many I will cite only on e of the leadin g cases on e
reported in the J ourn a l o f C l un e t pa ge 669 anno 1 9 1 5 B ranch
number 1 0 o f th e criminal court o f the D epartment o f the S eine
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rendered a j udgment on January 9 1 9 1 5 in a case brought by Gey
a German against the C om p
o f P aris
a g n ie G en e r a l e d e V oitur e s
for dama ges resulting f rom an inj u ry inflicted by one o f the
de fendant s automobiles The defendant insisted that the plainti ff
being a hostile German could not prosecute such an action in a
French court The court held
A rticle three o f the decree o f S eptember 27
1
1 9 1 4 which forbids the consummation o f any contracts
entered into befo re the be ginning o f the war A ugust 4
1 9 1 4 in favor o f subj ects o f G ermany or A ustro
H ungary applies to contracts o f a civil or commercial
character
I t has however no application when the con
2
summation o f such a transaction o r contract does not
conflict with the interests of our national defense
The act in question does not interfere in any
3
way with the authority given by a German to his
attorney be fore the 4th o f A ugust to represent him as
a party in a damage suit which might result in a j udg
ment fo r damages and costs against the de fendant
4
S uch employment has the exclusive purpose
of protecting the interests o f the plainti ff and to make
it possible to prosecute the action without the plainti ff s
personal appearance be fore the court
5
M oreover to annul such an employment
would be a direct attack upon the right o f de f ense
For all these reasons the court will entertain the
petition filed by B runet in the name o f and as attorney
for the plainti ff Gey but will postpone any further
proceedings until the close o f the war The case is
continued until the day afte r the close o f the war and
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n o order is now made as to costs
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The postponement was based upon the theory that the presence
o f Gey was necessary in order to substantiate his complaint T his
j udgment started a wide discussion among the lawyers and j udges
o f France who are not in accord in their opinions
The court o f the fi rst instance in Bayonne actually decided that
th e receivers o f sequestered property were not personal representa
tiv e s o f the German and A ustro H ungarian owners but were simply
custodians and for that reason they had no right to appear in court
in the name o f the owners either to prosecute complaints or to de fend
against them
Civil court o f Bayonne D ecember 4 1 9 1 4 as
reported in the J ourn a l d e D r oit I n te rn a tion a l 1 9 1 5 page
A j ud gment of the civil court o f M arsei l les held th at a German
has no right to employ an attorney in a civil s uit in whic h he is the
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21
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defendant and that the receiver o f his se questered property may not
appear in the court as his representative even though he has
already been appointed by th e court as a representative a d lite m
— ( Civil Court o f M arseilles January 22 1 9 1 5 as reported in the
G a z e tte d es T r ibun a ux M ay 28
O n the other hand the civil court in Philippeville on A pril 28
1 9 1 5 decided that execution may not issue against a German for a
debt owed to a Frenchman but that it might issue against the
receiver o f his sequestered property and that the latter may appea r
for and represent h im in" that connectio n — (J our n a l d e D r oit I n te r
n a ti on a l
July 29
The S uperior Court o f A lgiers decided on June 22 1 9 1 5 that
the prohibition o fa article two o f the decree o f S eptember 27 1 9 1 4
must be construed to in cl ud e j udicial proceedings and that a German
had no right during the war to appe ar in that court But at the
same time this c ourt held that the German could not be condemned
in his absence ; and that h e might be represented by the receiver o f
his sequestered property if the latter had been appointed by the
court to serve a d l a w n — (J our n a l d e D r oit I n te r n a tion a l 1 9 1 5
1
page
M r Gaston Courtois a P arisian la wyer , w rites concerning these
j udgments as follows
I t is not easy to deduce a reliable rule or to r e ach
a general conclusion from these contra dictory d ecisiOn s
but the questions involved and which have been decided
in so many ways are o f importance and are presented
frequently in our courts I t is there fore int eresting
to seek the solution which ought to be given I am
inclined to believe that the prohibition o f appearance
in court by de fendants o f a hostile nationality is general
in France and is applicable both to the c omplaint and
to the de fense This is the solution to which the com
bin e d provisions of the decree o f S eptember 27 1 9 14
lead s — ( J our n a l d e D r oit I n te r n a tion a l 1 9 1 5 pp 5 1 0
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A s to the temporizing attitude o f the court o f M arseilles and
o f the S upreme Court o f A lgiers the same author is o f the opinion
,
th a t their conclusion was a happy thought but one not yet j ustified
by the law ; because i f it be once conceded that exe cution may issue
against an absent German it is necessary to extend to him all the
other legal consequences o f his absence N evertheless it appe ars
to me from the numerous French decisions and from the commentary
quoted that there is a tendency in France to give the German
standing in its courts a course which would be honorable for the
French h a tion to pursue
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22
,
Courtois maintains that the French law o f seque stra
tion is ob scure and that the function s o f the receiver in case s where
he is entrusted with the custody o f the property o f subj ects o f
hostile countries are badly defined H e believe s that its provisions
must be more sharply con strued and extended to permit a French
man to collect by j udicial proces s a debt owed to him by a German
Still M r Courtois is in favor o f the po stponement o f execution
until the debtor of hostile nationality has an opportunity to defend
himself Concerning thi s he use s the following language which
s omewhat moderate s the apparently narrow point
o f view o f his
statement s above quoted
\ ttor n e y
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No
better reason could be given fo r the correct
ne ss o f the j udgment o f the tribunal o f Philippeville
than the nece ss ity o f protecting the intere st s o f French
creditor s for they should not be forced to await the
end o f ho stilitie s in order to obtain a recognition o f
their right s and a final decree But i f we claim that
the court is re spon sible for the correctne ss of its j udg
ment s it follow s that the court should have for its
guidance in formulating its j udgment all the in forma
tion which it can procure The foreign debtor when
he le ft France probably took with him his books o f
account his corre spondence and other documents
which would enable him to prove perhap s that he
owed nothing and that the complaint again st him w a s
un founded In s uch ca se the receiver o f h is property
would have no mean s o f de fen se and could not suc
ce s s ful l y c onte st the claim s o f the alleged creditor
and
the court might ea sily be led into an unj ust decision
Any so re sulting inj u stice based upon that cause
would certainly be voluntary and intentional and might
re sult in expo s ing the receiver himsel f to suspicions
o f culpable collu sion with the creditor It is there fore
o f the greate st importance that the French courts be
not exposed to the charge o f abetting robbery or o f
accompli shing reprisals under the gui se o f legal form
Fo r this rea son it appears to us necessary that the
court should a scertain whether the receiver w ould be
in a position to intelligently de fend the cau se be fore
it appoints a receiver o f sequestered prope rty as its
representative a d lite m ; yes it even ought to ascertain
whether the complain is intrinsically a j ust one so
that the receiver a s a de fender o f the suit need only
”
play a passive role
d e D r oit I n te r n a tion a l
1 9 1 5 page
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23
The decisions and the theories concerning the right o f foreign "
ers to standing in court are a s w e have seen contradictory in
France ; but I am inclined to believe that the leading j urists entertain
the doctrine o f the criminal court o f the D epartment o f the Seine
according to which a subj ect o f a hostile count ry mu st be protected
in h is private righ ts in the French tribunals I ba se my belie f in
that respect upon a peculiar circumsta n ce The French lawyers have
“
a sked them selve s can we a s representatives and protectors o f the
law ; we w h o are bound by an obligation to exempli fy by our own
conduct subservience to the law ; can we permit our selve s to be
influenced by those motive s o f patriotism which seem to forbid
intercourse o f any kind with the subj ects o f a hostile country ? I s
the strict ob servance o f the letter o f the law consistent with the
fulfillment o f our duty a n d with the oath which we took to de fend
”
?
j ustice in an honorable manner
The lawyer s o f Fra nce fo und themselves in a di fficult p sycho
logical position For that reason they had a meeting and cho s e
attorney Millerand ex minister o f war to decide what attitude they
s hould take toward th e denial o f any right to have dealing s with
the enemy M r Millerand composed a very remarkable report
publi shed in the J our n a l d e D r oit I n te rn a tion a l 1 9 1 6 page 1 2 in
which he maintain s that the lawyers are obliged to follow this reg
ul a tion enacted for the national defense but that they must at the
s ame time take care that n o one in France is deprived o f the right
o f being represented by counsel in the court s leaving to them to
reconcile in some manner the legal prescription s with the duties
implied by their oath o f o ffice as lawyers
H e advi sed the French lawyer s that they could undertake the
defen se o f subj ects o f h o stile countries i f be fore doing so th ey
had sought and received the permis sion and approval o f the presiden t
o f the French ba r It goe s without saying that this o fficial will
alway s g ive such permi ss ion
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( c)
I
G
n
reat
B rita in
The mo st noteworthy B ritish j udgment which I can cit e one
which di scloses a high regard for humanity and in which the
Engli sh j udge s demonstrate that they know how to divorce them
is that handed
selves from the exaggeration s o f political sentiment
down by Judge Younger in L ondon in a ca se against a German and
which was affirmed by the Court of Appeal s N ovembe r 26 1 9 1 5
‘
S ch a fie n i n s v s G ol d be r g 140 L aw Times Report s
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Judge Y ounger s deci sion is reviewed a n d f vora bly commented upon a t length by
the editor of the L a w T ime who m a y be con s idered to v oice the entiment of the L o
don b in the following l ngu a ge
T he chi ef c u se for
ti s f a ction i n a c a se of thi s
kind is to be found in the r e ction th a t notwith s t a nding the n a tur l prejudice s whi ch a
engender s Briti sh ju sti ce continue s a n d will a lw a y s on ti n ue to be a dmin
s t a te of w
ccording to the high prin ciple s o f B riti sh l a w
iste r e d in B riti h court
( T ra n s )
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s
a
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24
Judge Younger s decision w a s rendered Sep
te m
ber 23 1 9 1 5 in
a case in which the validity o f a contract between a German and
an English Company was involved
Judge Younger based his deci sion upon the con struction o f the
court that the de fendant Wa s not an enemy in a legal sen s e because
o f h is interment as a German H e says that internment doe s not
deprive him in any way o f capacity to make permi ssible contracts ;
that because o f his imprisonment he cannot leave B ritish territory
and must there fore a for tior i be con sidered as a re sident o f
England and entitled to the protection o f the king even though he
be treated as a prisoner o f war Thi s learned and impartial j udge
ba ses his conclusion specifically upon earlier deci sion s o f the Briti sh
court s H e cites the case o f M a r y D uch e ss of S u th e r l a n d in which
J udge Warringt on decided that a str a nger o f hostile nationality may
institute an action in England, even though he doe s not live in the
country provided however that he I S not engaged in bu siness with
a hostile country ; as would be the case for in stance i f he resided
in an allied or ne utral state and were to conduct trade tran saction s
f rom the place o f h is re sidence through the mediation o f citizens
o f such ho stile countrie s Judge Warrington says that i f a stranger
o f ho stile nationality who lives in a neutral country may bring an
action in the English court s it must follow that one who live s in
England and who is interned there may do the same H e says
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In fact
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we must always remember that it is the
place where he is conducting his transaction s that is
his domicile which is o f controlling importance in the
d eci s ion o f this question and not the na tionality o f th e
plainti ff In a case like this in which the plainti ff is
phy sically prevented f rom leaving England we find no
element o f public or governmental interest which should
militate again st the full application o f thi s principle
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J udger Younger examines other analogous ca ses bith in Great
B ritain and in the United State s among other s the ca se o f C h a r l e s
vs M or e y in o rder to prove that strangers living in England under
the sanction o f the la w enj oy the protection o f the king Judge
Younger close s his decision with the following word s
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P i
r
ma
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fa cie all person s living in England have a
right to appear before the English court ; but a for
eigner even though he be o f ho stile nationality who
i s a resident o f England mu st alway s prove that he
resides in the country either with the expres s or with
the implied consent o f the king be fore he can be
reco g n ized in the English court s in times o f war as a
plainti ff Even under the se conditions as is shown
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25
by the decision o f Judge S a rg a n t in the case of
T a xis vs M ofiitt L R 1 Ch D iv
P r ice s s of T urn
( 1 9 1 5 ) page 58 the regi stration o f the plainti ff as a
resident in England under
s ubj ect o f a ho stile nation
th e Aliens Re striction O rder o f 1 9 1 4 is su fficient proo f
o f such permission It is possible that the expression
that he is unde r the protection o f the king signifies
than the consequence which follows
something more
the permi ssion to remain in England I f the se words
do signi fy anything more it mu st be something ex
pre ssly establi shed by law ; for instance that a pri soner
o f war in England enj oys the protection o f the king
B a n n a ty n e
a r e n bur g h vs
a s is held in the ca s e o f S p
P 163
I conclude there fore
1 B0 5
that the contract conclu de d b etween the plainti ff and
the de fendant is not in any way invalidated by the
circum stance that th e plainti ff is temporarily interned
in England a s a civil pri soner o f w ar and that the
plainti ff is entitled to pur sue his remedy in every
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m anner
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The decree j u st cited j u stifies my earlier statement It is a
con solation for humanity that our science o f law has protected all
the legal principle s which sa feguard private rights in all the court s
o f belligerent s f rom the danger of falling with the collapse o f the
principle s o f public international law
Gentlemen thi s strictly legal analysis of the subj ect matter o f
emergency laws will
tru st leave in your minds a satis fying and
comfortable feeling in view o f the pas sionate and very o ften venial
new spaper article s which stimulate international hatred and which
al so serve to conceal from the view o f the wo rld all the great and
beauti ful example s in the province o f j u stice a ff orded by the conduct
o f a ll o f the belligerent nation s in forcing them selve s to recognize
and honor not only their own law but that o f the enemy
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( C O N TI N UATI O N
O F L ECTURE
26
JU LY
,
19 16 )
I would like to remark that thi s so far as I know is the fi rst
time that emergency law s enacted by reason o f the war and which
either suspend or limit the common law have been the subj ect o f
study o r consideration in any Univer s ity I desire for this reason
that my treatment o f the subj ect may be both complete and logi cal
but in view o f the enormou s extent o f material I must limit m y sel f
severely in the consideration o f that portion o f the topic which h a s
to do with patents trade mark s and insurance
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26
by mutual consent o f the parties Becau se it would be impo ssible
to continu e the payment o f a sse ssments o r periodical premiums to
Engli sh companie s as it is impos sible fo r such companie s to meet
”
their fo reign obligations under their policie s the Reichstag decided
to su spend the making o f all such payments to the enemy until th e
return o f normal conditions A large part o f the damage which
war would normally cause to German holder s o f foreign policies is
avoided through the establishment in Germany several years ago o f
a Bureau o f supervision o f private insurance companies which is
charged with the duty o f protecting German policy owners against
foreign companie s operating in Ge rmany A s a con sequence o f that
legislation twenty two English companie s and two French co mpanies
had deposited be fore the war more than three billion marks as
security for their German engagement s Seven companies closed up
thei r bu siness and withdrew from the count r y O ther s made arrange
ment s with reputable German compa nie s to take over their obliga
tions and continue the insurance In France by the decree o f
September 27 1 9 1 4 the privilege o f doi n g busines s in that country
w a s wi thdrawn f rom the German and Au stro H ungarian insuranc e
companies who were writing workmen s compensation and life in sur
ance policie s in France and they were erased from the list The
manager s o f the local o ffice were deprived o f their authority and
super s eded by receivers nominated by the Minister o f L abo r T h e
receivers o f the se in surance companie s are required to attend to the
carrying out o f exi sting contracts and to the orderly continuance o f
existing a ff air s The provision s o f the decree are however not quit e
clear for it make s no provisions for the liquidation which will
eventually be necessary nor fo r any accounting or re stitution a fter
the close o f the war
In E ngland thi s subj ect is controlled by the Proclamatio n
O ct ober 8 1 9 14 which notifie s B ritish subj ects
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N ot to make or enter into any new marine
(6 )
li fe fi re o r other policy o r contract o f insurance
( including r e insurance ) with or for the benefit o f an
enemy ; no r to accept or give e ff ect to any insurance
o f any risk arising under any policy o r contract o f
insurance ( including r e insurance ) made o r entered
into with o r for the benefit o f an enemy be fore the
outbreak o f war ; and in particular a s regards treatie s
o r contracts o f r e insurance current at the outbreak o f
war to which an
is a party or in which an
enemy i s interested not to cede to the enemy o r to
accept from the enemy under any such treaty or con
tract any risk arising under any p ol icy or contract o f
insurance ( including re —
insurance ) made or entered int o
,
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,
,
'
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'
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28
,
after the outbreak o f war or any share in any such
”
risk
,
.
In some ca ses English j udge s have decided that English in sur
ance companies are relieved t rom all obligations to pay to their
German policy holder s the present value o f the cancelled insurance
policies wherea s other j udges have decided that the insurance con
tracts were only suspended during the life o f the Royal
Proclamation
A l ittle later I will have something to sa y about a case which
occurred in Buenos Aires where the local o ffice o f an English
company received instructions to comply with the B ritish
Proclamation
,
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’
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XIV
C O N F ERE N C E O F T HE
A L LIE S O N Q U E S T I O N S O F
P RI V A T E L A W
A con ference which h a s been called to meet in Pari s is give n
the task o f harmonizing the laws and interests o f the con ferring
nation s on the following s ubj ect s o f importance to the commerc e
o f the world
,
"
,
.
Prohibition o f trading with the enemy
Performance o f existing contracts
Collection o f debt s in hostile territo r y
S equestration o f property o f the enemy
Q ue stion s concerning patents and trade marks
Prohibition o f import and export
The o rganization o f commercial competition after the war
including tari ff combination s the contro l o f naturaliza
tion etc
T
.
N
.
N
S
.
P
.
‘
P
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'
Q
.
N
,
,
.
,
Independently o f the progres s o f thi s interparliamentary con
ference the delegates o f all the countrie s o f the entente will meet
in Pari s in D ecembe r to consider the fundamental principle s o f an
agreement concerning que stions o f maritime trade
The interests o f th e allies are for the gre ater portion o f the
subj ect matter o f the con ference inconsi stent ; so that it will be
di fficult i f not in fact impossible to arrive at any general agree
ment In any case such an arrangement would only be o f tem
por a r y character for in such question s the principal neutral market s
particularly those o f the new world will have to be consulted It is
impos sible that a temporary arrangement made to meet the purposes
o f the war would be j u st to the permanent interests o f neutral
countries
,
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29
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XV
N A T IO N A LI T Y A ND N A T U R A LI Z A T IO N
I will n ot linger to con sider the deep and material moral a n d
legal conflict which was created by the war a n d which led to a
revision o f the entire legal fabric s o f France Great B ritain a nd Italy
I have treated the s e subj ects thoroughly with citations o f many
”
authoritie s in the third volume o f my work L a N a tion a l ite which
is now on the way from E urope for distribution here Y ou will
there fin d the remarks and propo sals which I have made a s a result
o f the events which have occurred in our Republic dur ing the war ;
the mobilization o f soldiers at the command o f consuls ; their
as sembly in the country ; their medical examination ; and more
important than all the moral and in dustrial pre s sure which has
been exerci sed by the diplomats the con sul s the chambers o f trade
and other foreign institution s in o rder to forc e the European fathers
to permit their son s o f Argentinian birth to serve them in th e
European war
,
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XVI
S P E C U L A T IO N A ND M O NO P O L Y
I come now to the con sideration o f other circumstances o f a
legal character which have occurred particula rly in the year 1 9 16
and which have decidedly harmed the commerce and the internal
economy o f the Argentine nation I can summarize the se circum
stances
by sta ting that in our country organized monopoly and
mercantile speculation has been aimed a t an enhancement o f price
o f all kinds o f export goods which has led to a large shrinkage o f
consumption and to a decided increa se in the co st o f living The se
mi sdeed s have been covered with the radiance o f patriotism and
their j ustification has been ba sed upon the alleged de s ire s o f Europea n
government s which a s I can prove f rom the reading o f their own
laws have never authorized such a course of conduct nor woul d
ever have dared to do so
What i s the aim o f thi s spe cul a tiOn ? A s a lecturer speaking
authoritatively I must limit myself to o fficial document s in the
consideration o f question s o f thi s kind so I will re frain from maki n g
any guesses as to the origin o f the mercantile tran saction s which I
condemn I will seek their motive in o fficial documents and I fin d
in this connection ; fi rst an adverti sement o f the B ritish Consulate
which appeared in the paper s o f Buenos Aires in May 1 9 1 6 a n d
which reads as follows
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The
,
Consul General o f H is B ritish Maj esty in
Bueno s Aires wishes to bring to the attention of the
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30
,
trade that since the black li st was published by its gov
e r n m e n t it has l earned that fi rms whose names appear
in this list have received pe rmission from certain
persons to use their names in order to cover up their
mercantile transaction s This conduct is to be depre
aside f rom the danger which those persons
ca te d and
run o f having thei r names added to the black list they
are acting against their own interest s The black li st
is directed exclusively again st fi rm s wh ich are hostile
to the allied nations and its purpose which we hope
will be succe s s ful is to divert the trade which tho se
fi rm s are now enj oying to fi rms o f allied and neutral
nations The latter in view o f the fact that their
rivals o f ho stile nationality cannot conduct any com
merce with fi rms o f allied natio nality will be acting
there fore in their own intere st i f they —refrain f rom
lending their name s to conceal the commercial tr a n sa c
tion s o f fi rm s now on the black li st or which may be
”
added to it
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,
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,
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Speculation for a monopoly is intended in the Argentine
Republic to suppre s s mercantile competition and to put the e n tire
subj ect under the control o f B riti sh fi rm s an d tho se o f their allies
Since thi s o fficial but not very di screet declaration h a s been
published in B ueno s Aires we mu st consider a s establi shed that
the B riti sh government protect s thi s monopoli stic enterpri se The
s cope o f the B ritish trade
particularly on the ocean is so large
th at it is b e yond que stion that its allies will enj oy only a very
o r tion o f the advant a
ge to be derived f rom such a monopoly
sm a l l p
in compari s on to that derived by Great B ritain her sel f
.
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XVII
M E T H O D S O F E X ER C I S I N G M O NO P O L Y
In order to carry out the se o fficially acknowledged intentions
mean s are used which may be classifi ed under the following head
ing s The passage o f special regulations for the trade o f neutral s
operating under a neutral flag ; examination o f corre spondence
abstracted from the po st office and from neutral ships on the high
seas for that purpose ; cen so rship o f the use o f the telegraph ; the
"
,
-
de cl r a tion of the B riti sh Con sul is ffi rmed by the s peech of th e Briti h
M ini s ter M
R egin ld T owe r of A ugu s t 9 1 9 1 6 before the Briti sh Ch mb er of Com
me rce of Bueno s A i re s S e
l o a pre ss telegra m under d a te of L ondon A ugu s t 1 1
1 91 6
W orthington E v n s of the foreign offi ce
quoting to the sa me effect M
Si
E dwa rd G r ey d ecl a red re cently in a n wer to a com p l a int by the A rgentine government
of the bl a ck li s t th a t it h a s for its obj ect o fa a p o s ible to hinder the commerci l
d fin a n ci a l a ctivity of indi v idu a l
of enemy origin a n d to fa v or the tra n sfe r of their
tr de to B riti sh firm s
( N ote by the G erm a n Ch a mb e r of Commerce t B u e o A ire s )
1
T hi s
,
a
r
a
a
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,
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e
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a s
a
"
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s
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an
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r
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a
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s
“
s
a
r
s
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r
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s
a
s
a
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n
s
l
31
.
“
monopoly o f freight carrying ; the discharge o f commercial em
The se actions whi ch are harmoniously
pl oy e e s and the black list
interlocking form such a br oad basis o f mono p
oly that all neutral
But even
s tate s are damag ed by them and protest against them
England s allie s who are obliged by the force o f circumstances to
comply with them su ff er equally with neutrals In Bueno s Aires
fo r example English hou ses buy grain and food stuffs fo r Italy
without permitting any o f the large It alian fi rms to participate in
any way in th e profits o f that business ; and the sam e re sult is
experienced by the other allies o f Eng land
”
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XVII I
RE G U L A T IO N O F T R A DE
The restr ictions which the B rit ish government has imposed
up
on th e trade o f neutral s were promulgated in the form of com
m un ica tion s to governments or to the public through Chambers o f
Commerce concerning the manner o f shipment and th e procedure
to be followed by neutral ships in order that they should not be
annoyed by English crui ser s
A s a re sult neutral nations today are obliged to observe un favo r
able B ritish regulation s o f shipping which are appropriate to its
commercial a nd military intere st s
'
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T HE M A IL S
I
O ur second heading
is
conce rned with the restriction o f free
intercour se by mail
Great B ritain was naturally interested in examining postal
matter destined fo r the north o f Europe and fo r the countries
bor dering Germany such as Sweden N orway H olland and D e n
mark becau s e thi s postal matt e r could be ea s ily forwarded to hostile
territ ory It is certain that G ermany did receive in this manner
under cover of postal package s money rubber copper and other
article s neces sar y to her in the war The suppre ssion o f this course
of conduct was well within the rights o f a belligerent nation in so
far a s it pertained to contr a band o f war The same statement
applies to o fficial let ters But between this p ower o f control and
the seizu r e o f letters u sed only a s a means o f in te r co ur se be tw e e n
private persons there is a fundamental di fference Go ods were
alway s considered a s subj ect to confiscation L etter s were alway s
and everywhere i mmune
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32
f B ritain not only
tops letter s from the United States
which h a s given rise to complaints which have not yet been satisfied
but it stops neutral ships on the high se a removes thei r mail bags
not only those which are destined for Germany Au stro H ungary
and Turkey but the entire mail including that destined for countries
outside o f the war zone According to telegrams which were pub
lish e d in Buenos Aires an English cruiser seized postal matter car
ried by a neutral steamer off the Chilean Coast and which was in
transit fr om Bue n os Aires to the United State s Thi s violation o f
the po stal service answered no military purpo se for common sense
tells us that a letter which takes three month s to go f rom Buenos
Aire s acros s the Pacific to Germany could have no military sigmi
fica n ce by the tirrie it arrived there even i f it d id speak o f the war
L etters which are sent f rom Germany to Bueno s Aires have j ust as
little miliary significance and yet they too are seized although
there are no kind o f hostilities under way in the Argentine Republi c
against the allies no r are the Central Powers favored in any such
a way here as could have any influence whatever upon their
military operation s S uch a s eizure o f the mail s can only have a
commercial aim in the fi r st place that o f learning what enemies in
the neutral countrie s are im cor r e spon de n ce with European or Amer
ican hou se s in order to put them on the black list and in the second
place a more weighty matter , becau se it concern s speculation and
monopoly a s a mean s o f meeting competition they wi sh to know
in England the prices and the condition s o f pending bu s ines s in
order to either avo id them or to supplant them with others more
convenien t to the individuals intere sted in the monopoly
G
re a
s
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XX
S U PE RV I S I O N O F
T HE T ELE G R AP H
The third mean s o f serving thi s monopoly is the supervision
o f the telegraph The improvidence o f some o f the countries and
unavoidable lack o f money in others is accountable for the fact that
telegraphic correspondence by cable for many years has been almost
entirely in the hand s o f Great B ritain In the Argentine Republic
a s you know a se r ious m ista k e was committed by giving a monopoly
o f the telegraph to the We stern L ine and for this reason our entire
co rre spondence with the external world by wire during the war mu st
be conducted over the English cable which is operat ed f rom L ondon
D uring my term o f service a s M inister o f Foreign A ffairs in
the year 1 907 the German Ambassador w a s very much interested
in the laying o f a German cable from E urope to the B razilian Coast
in order thereby to introduce an element o f competition in our cable
service That was a very worthy plan for it would have re sulted
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33
in greater expedition o f tran smi s sion and in a l owe ring o f the tari ff s
but the main di fficulty wa s the lack o f a point o f support in the
ocean which could serve the cable as a relay station
The use o f the I sland o f Fernando de N o ronha w a s already
covered by English concession s Investig ations were made which
di sclosed that it was impossi ble to establish a telegraph station on
any o f the other oceanic islet s and the undertaking was thu s b affled
by the B ritish cable monopoly
This monopoly controlled our telegraphic connectio n with other
countrie s as well as those of all other countries between themselve s
to such an extent that w e were unable to s e nd a ea bl e g r a m f rom
th e City o f Bueno s Aires without subj ecting ourselves to the cen sor
Several month s ago I sent a telegram to the
ship
o f England
Tenin in Paris in which I sked them to ha sten
publishers Larose
L a N a tion a lite
The
th e printing o f the third volume o f my wo rk
telegram was written in French wit h the customary abbreviation s
The B riti sh censor at the telegraph bureau o f thi s city returned the
mes sage and demanded that I word it in a form satis factory to
him but which w a s quite di fferent from my own compo s ition The
”
word N a tion a l ite had aroused the cen sor s su spicion O f course
I w a s obliged to accept the form dictate d by him which cost me
added expen se
This sho ws how far the se attacks upon our national supremacy
go ; because in our Republic accordin g to a rticles 1 2 7 and
and other s o f the General Telegraph L aw o f 1 875 no line s can be
operated which are not under the inspection and supervi sion o f the
Argentine government ; yet in spite o f that so far a s I know the
Argentine authorities are entirely deprived o f this fundamental and
rea sonable right over the cable companies , and we a r e consequently
entirely deprived o f that freedom o f intercour se in our private a ff airs
to which we are entitled and the security o f our S tate s is threatened
Thi s English censor should be forthwith remo ved by the order
and intervention o f the In spector General o f Telegraphs o f the
Argentine Republic under sanction o f the Minister o f the Interior
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XX I
F REI G H T S
Freight charges form another aid to th e monopoly in question
In thi s field monopoly is sti l l greater than in that o f the tel egraph
for Great B ritain controls the most powerful fleet o f freighters
which now use s the ocean A fter the dispersion and partial d e str uc
tion o f the German trade fleet which had been actively competing
with the English on every sea there remain only two great trade
fleets that o f Great B ritain which occupies the first rank and
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34
The Argentine Republic which on the average is twenty days
d i stant f rom Europe by freight ship has much more di fficulty in
s ecuring tonnage than the Un ited States which is only seven days
Moreover the enormous extent
d istant from the European port s
f
and the tremendous influenc e o f the great national pro sperity o
ing to its ports The
th e United States tend s to draw f r ee ship p
Argentine Republic in this resp e ct ca n be more easily subj ec ted to
To state it simply the
th e evil s of monopoly and speculation
increa se o f freight rates has produced an enormou s fall in the
v alue o f Argentinian products
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XX I I
T H E DI S C H A R G E O F C O MMER C I A L EM P LO Y EE S
Among the re source s o f monop oly and speculation which I am
n ow discus s ing
I already mention e d the discharge of those com
The
m e r cia l employees who are o f the nationality o f ho stile land s
m anagers o f firms and companies owned by the allies have been
forced to di scharge such em ployees To do them j u stice I must
a cknowledge that s ome o f the manager s o f some o f the fi rm s obeyed
th e order s unwillingly ; primarily b ec au se it concerned individual s
who had been for many year s connected with the business ;
s econdly , becau se they lo st thereby the ben e fit o f services which they
w ould have pre ferred to retain a s valuable to their bu s ines s and to
its prosperity ; and thirdly
because every man , whatever his
s ympathies in thi s war
ente r tains regard for his fellowman and
would naturally be de e ply moved to pity by the m isery th reat e ned
to so many fa m ilie s t h rough such unde s erved discharge
In Buenos
Aires alone there are s everal thousand families doomed to poverty
by such loss of employment a n d this in itsel f is an o ff ense against
th e pro sperity and th e public peace o f the Republic
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XX II I
T HE B L A C K LI S T
-
Finally come s the black list I do n ot know the origin o f thi s
a ppellation
I d o not know whether it came f rom Eur ope or was
invented by the Argentinian ne wspaper s for the English law doe s
”
u
s
e the term
not
black list but speak s o f the Statutory L ists ”
”
which are contained in their statutes
as the laws o f England
are called
In 1 9 14 and 1 9 1 5 Great B ritain had not yet thought o f a
b lack li st
It was exercising its commercial hostility to Germany
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36
“
very energetically through the use o f every known re source o f its
ocean police and concerning which particulars are disclosed in my
di scourse concerning the seizure o f the steamer P R E S IDEN T M I TR E
to which I re fer for further particulars In the year 1 9 1 6 th e
demand s o f the desperate war situation the g reat pre ssure which
was being exercised upon B ritish finance s by the increasing cost o f
the war particularly since England w a s al so acting a s banker to
its allies too forced the B ritish government to the publication o f
”
its Statutory L ist
What do these li st s signi fy ? They are in
eff ect a command that B riti s h subj ect s shall not have any de a li n gs
with suppo rter s o f the coun tr ie s h ostil e to Great B ritain within its
territory What are the mean s which they adopt to carry out thi s
command and what is its extent ? Shall the interdiction be limited
to B riti sh territory or shall such dealings be forbidden in neutral
land s a s well ? These are questions which I will now p
roceed to
conside r and to which an expo sition o f the English laws will a fford
a complete an s wer
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XXIV
T HE B L A C K LI S T I N
S O U T H A MERI C A
-
We might study the s e regulation s in B razil where numerou s
trading fi rm s have been forced to su spend their bu sines s and to
liqui date and where for that rea son the pas sage o f a law h a s
been advocated similar to that proposed in our C h amber o f D eputie s
by D octor A v e ll a n e da
'
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l
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We might study them in Chile whose ac tive representative in
L ondon so well endowed both with intellect and with money has
succeeded in securing the lowering of freight rate s and other favor s
We might stud y them in Uruguay where the eloquent D eputy
L ui s Alberto de H errera has denounced in such a compr e hensive
yet prudent manner the ca ses o f s eriou s violation o f U r ug ua ia n
Sovereignty such as for example the closing o f its refrigerating
plant whereby two thou sand workmen were deprived o f thei r
bread ; and we might tell o f the di splea sure vi sited upon thi s eloquen t
advocate when it became necessary for him to conclude a transaction
in excha n ge with a German But it would lead u s too far to
di s cus s all the se facts here while similar facts are happening in
Argentina every day and in much greater volume be ca use th is is the
greate s t an d mo st important produce market o f Europe ; y e s
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Di sp a tche s from R io of A ugu st 7 1 9 1 6 a dvi se s u s tha t the p ropo ed p s ge of
b a ndoned by the p ro p o s er in o
such a l a w by the Ch a mber of Deputie s h a s been
of the prote s t s m a de by intere t friendly to the llie
e
( N ote by the G erm n
q ue
Ch a mb er of C om m ce a t Bueno s A ire s )
1
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s
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a
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s s
n c
er
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37
s
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a
sa
c
n se
a
S ta te s, h a s
because Argentina t ogethe with the United
to provide
for the nourishment and clothing o f a large part o f the world
r
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XXV
O P ER A T IO N O F T HE B L A C K
-
L I ST
.
A R G EN T IN A
IN
After a study o i the o fficial documents o f the Embassy and
Consulate o f th e semi —
officia l documents o f the Boards of Trade
for they are o fficially in spired ; o f the news printed in the news
papers and o f s ome o f the nu m erou s contract s which have been
made in thi s city for grain meat and other products o f the country
I can draw the following drastic picture o f the oppression which
which is in fact an attack
our country h a s been obliged to su ff er
upon our con stitution al guarantie s and a violation of several o f our
law s and which has re sulted in a ruinous decrea s e o f the market
price s o f our products I read from my manuscript
Merchant s and broker s were notified that i f they dealt
l st
with fi rm s on the black li st or had any business relation s with them
they would not be permitted to deal with the allied house s Case s
are known in which th e individual s to whom this demand was
addres sed were oblige d to sign statements promi sing to have no
transaction s o f any c h aracter with the firm s on the black list I
have in my po sse ss ion copie s o f several documents originals o f
which can be found in the file s of the Grain Exchange a nd which
completely prove the exi stence o f this boycott
2n d
An attache o f one o f the Embassies , being a sked by
a trader whether he mig ht purchase goods f rom one o f the fi rm s
on the black list upon which he had made advances under a contract
therefor made be fore the publication o f the Engli sh decree replied
in th e negative and added that it was necessary to make the
farmer s and merchant s o f the Republic feel the error which they had
committed in dealing with houses on the black list stating that the
Argentinian producers should have s een two or three months
be forehand that the Engli sh government would put those fi rms on a
bl ack list
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3r d
There is in circulation a private and local black list on
which appear the names o f all the local broker s who have not
submitted to the B ritish conditions
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L
"of
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Bueno s A i re s under d a te of A ugu st 6 1 9 1 6 p p e r the fol
low i ng d i sp a tch from L im a the ca p itol of P eru
O n a ccount of the commerci a l per e
ut o
whi ch s ome of the b elli gere nt power in the E urope a n w
s eeking to e x erci s e
a d
wh i ch ha ve s p o ok e d so much prote st there w a ubmitted to the loca l courts a c e
i wh i ch the re tri ct i on s i m p o s ed upon tr de were a lleged to b e a foreign inv s ion of the
i nter
i
or a ff i r of the country T he S u p re me Court decided in s ub t nce tha t the bl a ck
l i st could not b e ple a d a s
e x cu e for c a ncelling
contr ct of sa le m a de in P e ru
( N ote by the G erm n Ch a mber of Commerce a t Bueno A ire s )
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38
.
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4th
Broker s who are subj ects o f the Ce n tral Powers
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or
who have any dealings with subj ects o f the Central P owers ca n
sell nothing and th ey are not even permitted to enter the offices
o f B ritish or allied fi rms
5 th
A fi rm in Rosario demanded o f a merchant that he
should discharge h is German employees and threatened that none
o f the allied hou ses would have any dealings with him i f he did
not obey The brokers o f Rosario called a meeting to determine
the attitude which they should adopt in view o f thi s demand
but be fore the meeting was held the firm withdrew its demand
6 th
N umerou s co n tracts for future delivery of grain were
cancelled be ca use d the employees o f the purcha sers feared that the
grain then in storage might be connected in some way with some
o f the fi rm s on the black list
7th
The employees o f certain railroads whic h nominally at
least are s ubj ect to the conditions o f their Argentine charters and
to th e law o f th e land but which in fact are operated by B ritish
agents gave in formation to the commis sioners who were appointed
for the purpo s e 'o f preventing trade wit h fi rms on the black list
a n d these commissioners advised the allied houses which stores o f
grain they sho u
ld not buy because originally the pr operty o f hou ses
O n the black li st or o f s ubj ect s o f the Central Power s
D ealers working for the monopoly purchas e d grain by
8th
wire s ubj ect to specifically stated condition s o f quantity quality
and price Such purchasers a fterwards presented to the seller s
contract s containing a further condition proh ibiting deliv ery of
grain o f ho stile origin and when the purchasers protested again st
this additional condition and remarked that the contract had been
made without them they received the an s wer that s uch a condition
must be understood as a pa r t o f the custom 9 f t h e place
In some cases merchants dr e w e xc hange in favor o f third
9 th
per son s upon allied fi rms T h e payees endorsed the exchange to
houses which appeared on the black list The allied house s refused
to honor these dra fts because the owners presenting them were o n
the black list R a th e f than have their paper go to prote st the
endorsees paid the drafts
Employees an d repre s entatives o f tho se allied fi rms
l 0th
conducting busi n ess in the inter ior o f the country have been
strictly admonished to bo yc ott every per son employed by fi rm s on
the black li s t and for th at rea son a great number o f country
merchants growers producers o f wool etc have experienced great
di fficulty in marketing their products
1 1 th
The allied fi rm s have n otified their broker s that they
mu st n ot o ff er them any grain which has been harvested by a
grower o f Argentine citizenship but who is the descendant o f a
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39
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subj ect o f the Central Powers ; and the merchant s and br oker s
thereby a ffected are unable to protect their r ig hts either in court
or through the trade as s ociations for even i f the d e cision w a s
favorable to them they would earn the hostility o f the allied
fi rms which for the present monopolize the market They must
either submit or cea s e doing business
Merchants in Rosario wh o have bu s iness with German
1 2th
houses complain that t h ey have been called in by the o fficers o f an
English bank and told that the bank would cease its relation s with
them i f they had anything further to do with such houses This
bank owes its right to do bu sine ss a s an artificial person to the
Argentine law but in this resp e ct it only obeys the foreig n ma n date
The prominent lawyers Ald o Campos
del Valle filed
1 3th
a formal brie f on April 28 1 9 1 6 with the Minister o f Foreig n
Relations in defense o f the
Compania Argentina H idr a ulico
”
Agricola which is o n the black li st Thi s company is domiciled
in Argentina is in corporated under the Argentinian law and
employ s four hundred workmen who are engaged in the construction
o f hydraulic w orks in pr ogres s o f con struction in the development
of the province o f Entre Rios in the vicinity o f Ibicuy The fi rst
is sue o f capital o f the company w a s two million pesos in share s
of stock which were issued in this country and of which a large
part in a value o f
is owned by Mr Rafael Escrina a
re sident o f Bueno s Aires This company was seriou sly hindered in
the comp
letion o f important Argentine public works because a fter
their name appeared in the black list they were no longer able to
pr ocure the nece ssary machiner y cement o r other building material
An English firm at Buenos Aire s refu sed to deliver to it extra parts
for the machines which they owned and which had been purcha s ed
from that hou se excusing itsel f by referring to the command o f
th e B riti sh Consul
1 4th
Ship p
ing agent s o f the line s operating between the
United States a n d Bueno s Aire s chartered steamers o f neutral
countrie s N orway Sweden D enmark H olland Greece and others
They were visited in Buenos Aire s and thr eatened with a boycott
i f they should continue to use such neutral ship s for tran sporting
cargoes in which merchants who appeared upon the black list in
Argentina or in the United State s had any interest Because t h e se
threats had no e ffe ct in Bue n os Aires at fi rst pressure was brought
to bear upon the large shipping agencies in N e w York which
chartered ships there for trade with the whole world and they were
categorically told that i f they should have any dealings with any
one o f the tho usands o f A merican fi rm s which appeared upon
the black list or with any o f the Argentine houses on the black list
they would not be permitted in the future to charter any English
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40
steamers and that every B ritish coaling station in the world would
be instructed to re fu s e to sell coal to neutral steamers so chartered
Fearing that thei r whole business wo uld be crippled the American
agents submitted under protest and in the expectation that the
government o f their country would give them relie f ; but in the
meantime Argentina i s h e a r in g the b runt o f thi s prohibition for the
of its trade and the freedom o f its c ommunication with
sc ope
N orth American port s is seriously l imited its freight rates have
been increa sed and the export and import o f goods upon which
it is so dependent have been lessened
N umerou s fi rms of Buenos Ai res , which are owned here
1 5 th
or abroad could not get goods which were neces sary for our local
consumption and which they had purcha sed in the United States
The shipping agencie s of the United States hesitated to accept such
ca rgo because representa tives o f England had threatened them that
British cruisers would seize any suc h goods presumably belonging
to hostile owners “D i ffi cultie s were made even for the Argentine
Republic itsel f over the delivery o f coal purchased by it for its own
navy
1 6 th
All these things seriously hinder disturb and cripple
trade between the United States and Argentina at a time in which
the former is our principal source o f supply M oreover the cost
o f living in Argentina is thereby increased and the price o f local
product s decreased bec a use purchasers pre fer to buy them in the
For example wool is at the present time
A merican market
threatened by a very serious c ri s is because o f the pres sure which
has hindered and partly suppres sed transportatio n between Buenos
Aires and N ew York
This list o f the measures which Great B ritain h a s adopted to
in s ure its monopoly could easily be further extended for no one
per s on can possibly review all o f the conditions o f that character
which have developed in our trade
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XXVI
RE SU L T S
What are then the results o f the exercise o f monopoly and
?
The fi rst result is tha t
speculation on the value o f our product s
a pound o f Argentinian meat which was bringing in the markets
gradually increasing prices be fore the publication of the bl a ck li st
has s u ffered a material loss o f value so great a loss that the
breeder o f beeves for the market must sell his animals o f first quality
for about $200 00 less than t h ey would appear to be worth
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N OT E
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T he A rgentini a n
doll a r
is
the eq uiva len t of
41
44
cent s gold
’
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by the quotation s o f the markets o f the world Wheat which w a s
is now sacrificed
and even
s old before the war for
for between
and
which prices do not even cover the
co st of production and interest on the capital employed so that the
p r oducer is actually losing money This price reduction extends
also to corn which is now being sold between
and
This h a s cau sed th e actual ruin o f the larger part o f the farmers
because the s e peopl e s owed their crop s with the expectation o f
selling their corn for at lea st
and they are now only able to
get less than hal f price although they are obliged to pay the debt s
in full which they incurred in the expectation o f a normal disposition
This mean s that a fter the sale o f their crop s they
o f their crop s
will be hopelessly in debt and will have no means o f procuring
seed or labor for the planting o f a new one
The Argentine Republic would s wi m in pro sperity it would
be the riche s t land in the world i f it were not for the idle wealth
tied up in sinking fund s and banks and which is withdrawn from
circulation and wh ich is of a s little practical use a s the gold and
coal of the mountain s o f the moon Argentina would have had to
s ell all of its harve st and products for at least three times their
actual price s in order to enj oy such prosperity such ea sy credit
and such a liberal supply o f money a s are now being enj oyed by
other neutral countrie s o f much in ferior economical power
O ur wheat is really worth in the markets o f the world
O ur fatted steers are really worth
( animal s o f in feri or
quality are now selling for more than that in N orth America ) ; in
a word Argentina lo s e s in consequence o f the B riti sh mea sure s o f
‘
Oppre ss ion
four hundred and fi fty to six h un d re d million pesos
yearly which represents the loss in value of its products which have
been so arduou sly produced by its own citizens
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XXVII
T H E B AS I S O F T H E S E R E
SU L T S
What are the causes o f this condition ? Are there any legal
reason s for its j ustification ? I f there were legal grounds for it we
would be obliged to hold our peace for there is no protest against the
ma j
e sty of the law but thi s h a s all occurred in Buenos Aires through
the c o operation o f diplomats Consuls Chambers of Commerce and
followers of the various countrie s on the a ssumed authority of
European law s which do not exist and pretended o fficial mandates o f
the allie s to re frain from dealing with the subj ects o f hostile lands
when in fact no such o fficial mandates have ever been issued by any
government
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proper authorities but under observation and under
f rom
such restrictions and police regulations a s may
time to time be promulgated in the interest s o f the
security of the state o f the public peace or o f the
personal security o f the individuals a ffected They
are on the other hand permitted to leave either
country within such time and in such manner as may
be prescribed by the proper authorities as appropriate
to the circumstances O fficers in active s ervice and on
leave o f absence are excluded from this right as are
also all individuals who have been convicted o f
o ff enses again st the common law or who are fugitiv es
from j ustice Persons leaving the country are entitled
to take with them all their movable property excepting
s uch article s a s are prohibited by law to be exported
Article 3 In the exercise of their private right s
in so far as thei r enforcement in the courts are con
cerned Germans in Italy and Italian s in Germany shall
be subj ected to any restriction s beyond those
n ot
impo s ed upon all neutrals resident in the country
Private property shall in no way be expo sed to c on fisca
tion or liquidation except in ca se s provided for by
exi sting law s ; and furthe r owner s m a y not be required
to sell their real e state Patents and other rights for
the protection o f industrial property whic h belong to
Ge r man s in Italy or to Italians in Germany shall not
be annulled N o one shall be hindered in the exercise
o f such ri ght s ; and no trans fer thereo f without the
con s ent o f the owner shall be permitted except in
case o f the application of regulat ion s for the exclusive
interest of the state Contracts which have been con
cluded between Germans and Italians either be fore
or after the beginning of the war as well a s all exist
ing obligation s o f every kind between German s and
Italians shall not be annulled o r su spended except for
causes recognized by general law
D a mages which
may be awarded for the breach of contract according
to the legal rules now in force may not exceed those
actually s u ff ered The advantages which the subj ects
o f either country enj oy in the other through the civil
laws controlling workmen s compensation shall remain
in force The enj oyment o f the aforesaid rights shall
not be di sturbed in any way
Article 4 The provisions o f the sixth H ague
Convention concerning the treatment o f hostile mer
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shipping at the beginning of hostilities shall be
applicable to German merchant ships in Italian ports
and to Italian ships in German ports and to thei r
cargoes Such ships cannot be forced to leave port
except under a guarantee of safe conduct recogn ized
by hostile sea powers to a port of their own country
or from that o f one country to another or from one
Italian or German port to another The provisions o f
C hapter Three of the eleventh H ague Convention
which embody certain restriction s upon the j urisdiction
of prize courts shall be applicable to the o fficers and
crews o f such merchant vessels as well a s o f those
which may be seized during the course of the war
Article 5 This treaty shall be operative through
out any territory which the military authorities o f either
s tate may occupy as well as throughout their colonies
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and posses s ions
( Signed at Berlin May 25
ca n til e
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My honored f riend the Italian Minister Conde C obia n ch i to
whom I appli ed for the late s t developments on thi s subj ect has
been kind enough to s en d me a copy o f a telegram which I
receiv ed on the 20th o f thi s month ( July
and according
to which the Italian government for the first time has pa ssed any
regulation o f trade between Italy and hostile foreigners It is a
decree o f the regent of the kingdom July 1 8 1 9 1 6 to take e ff e ct
on the 20th o f that month The telegram is addre ssed to the
Italian Emba ssy and reads a s follows
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Every
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transfer of property or right s in real
e state within the kingdom and its col onie s by natural
or artificial s ubj ects o f h ostile sta tes or allies o f hostile
states duri ng the continuance o f the war is annulle d
The granting o f mercantile credit s is likewise forbidden
The same decree empowers the royal government on
the principle o f reciprocity or reprisal to provide that
the subj ect s o f hostile states or o f their allies shall be
excluded f rom the benefit s o f legal procedure in civil
trade or criminal courts throughout the kingdom and
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its colonies
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For the fi rst time Italy has laid down a rule which might
operate to exclude it f rom trade with Germany but it does so
lanation that these rules shall have no
u nder the categorical exp
authority out s ide o f the kingdom and its colonies This limitation
is dictated by a healthy human understanding N either the king
o f Italy no r the Parliament in Rome can make any laws en force
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45
able in foreign land s unle ss by a n d with the approval o f the local
au thorities l e g e s n on v a l e n t e x tr a te r r itor ium
Thi s is the doc
trine o f the introduction to our own civil code which is entitled
to high admiration from the viewpoint o f private law becau se it
clearly settles question s o f public order which in other co un tr i e s
are con fu sed by a labyrinth o f theories and o ften by wholly
inconsistent and contradictory opinions
It follows that Italy could not forbid its subj ects re siding in
neutral c ountries nor h a s it forbidden them from contracting and
dealing with subj ect s of Germany or Austro H ungary
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XX IX
P RO HI B I T I V E RE G U L A T IO N O F
T R A DE IN
FRA N C E
What w a s the attitude o f France ? It fi r st i ssued a decree
on September 27 1 9 1 4 A careful study o f French emergency
legi sl ation di sclo se s that in the beginning that country did not
entertain any sharply defined policy on that subj ect It s eemed
to have no specific aim It proceeded in an experimental matter
to meet emergencie s as they aro se The decree in que stion w a s
intended to forbid commercial relations be tween the French and
their ene m ie s exclu s ively in France The decree is particularly
intere sting to us becau s e it led to most arbi trary construction in
Buenos Ai re s It read s a s follow s
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Article
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In view of the exi sting state o f war
and in the intere st o f the national de fense all trade
with subj ect s O f the German Empire and o f Au stro
H ungary or with individuals residing in those coun
trie s is prohibited Subj ect s oi tho se countrie s are
forbidden to trade in French territory or in that o f
French protectorate s either directly or through the
mediation o f thi rd person s
Article 2 —Every tran saction or contract which
ma y have been concluded in French territory or in a
French protectorate by anybody or in any other place
by Frenchmen or the subj ects of French protectorate s
with subj ects o f the German Empire or Austro H ungary
or with persons domiciled in those countries will be
con s idered a s absolutely void and as though never con
cluded a s contrary to the public wel fare Such nullity
shall date from the 4th
o f Augu st 1 9 1 4 in the case
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to pre s di sp a tche s of A ugu t 5 the I t li n government h a s i sued a
ew
decree wh i ch proh i bit s tr a d e between its subject
A
d tho e of foreign l nd
d ecl a r t i on of w by I t a ly a g a i n t G erm ny then followed which ch a nged the condition s
s t a ted by the lecturer
( N ote by G erm a n Ch mber of Commerce )
1
A ccordin g
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46
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o f the German E mpire and f rom the 1 3th o f August
1 9 1 4 in the ca s e of Au stro H ungary and sh al l remain
in e f ect during the continuance o f hostilities and until
some date to be fixed thereafter
Article 3 D uring that period every demand for
money or other benefit o f any character arising from
any transaction or contract in any place in French t e rri
tory or that o f its protectorates before the dates named
in the preceding article or in any other territory against
Frenchmen or citizens o f French protectorates in favor
o f subj ects o f the German Empire o r Austro—
H ungary
or individuals domiciled therein i s prohibited as con
tr a r y to the public wel fare and shall be held to be null
and void
In ca se s where the execution of such transactions
or contracts shall not ha ve been commenced at the date
o f this decree by delivery o f goods or pa yments o f
money their nullity shall be declared by the President
o f the Civil Court on petition o f the interested parties
O nly Frenchmen and those under French protection
their allies or citizens o f neutral land s are entitled to
petition for such n ull ifica tion
Article 4 The provi sions o f the two preceding
articles o f thi s decree shall also be applicable to cases
where the transaction or contract shall have been nego
tia te d through a third party
Article 5 A special decree will be made later
concerning patents for inventions and trade mark s in
which subj ects o f the enemy countrie s are interested
as well as concerning such corporation s engaged in the
bu s i ness of writing li fe and employers liability in sur
ance as have their home o ffices in either o f said host ile
countries
Article 6 The provision o f this decree wi l l be
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submitted to the Chamber o f D eputies for its approval
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P lease
notice that the decree has to do exclusively with the
perfo rmance o f contracts and o f other valid obligation s with in the
territory o f France its colonies and its protectorates and has nothing
to do with either the conclusion or the perform ance o f such contracts
in n eutral countrie s Furthermore the n ull ifica tion o f such trans
actions mu st be submitted to the French courts ; which according
to the provi sions o f Article Three of the decree will decide whe ther
any question o f the violation o f the publ ic wel fare o f France is
It
involved or n ot that is wh ether the contract is valid or void
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47
would be ab surd to as sume that the French court s woul d enter
decrees o f nullity which would be opposed to the public wel fare either
o f Argentina or any other neutral country These rules o f inter
pr e ta tion are essential and conclusive
The decree al s o emb odies the same limitations found in the
Italian law becau s e it forbid s transactions with subj ects of ho stile
countrie s o nly w ith in French territory
But Article Three o f the decree has been very strangely
construed in Buenos Aires L et us read it again in order to clearly
understand its text It declares with absolute and inco n testible
certainty that contract s made in any part o f the world ( e n tous
l ie ux ) shall be null and void i f they are made to be performed in
France and are between subj ect s or dependant s o f France and those
o f ho stile coun tries
Such a provi sion is legally warranted in time s of peace a s well
They a r e dealing with the performance o f contract s within
a s war
French territory whi ch are detrimental to local public wel fare ; the
government o f France h a s a s overeign right to prevent or limit
the performance o f contracts which are in fact detrimental to its
national interest In the same manner for example our civil code
forbids the execution in Argentina o f a contract made in Montevideo
for smuggling on our coa st and it forbi d s the execution o f any
kind o f a contract in thi s country which in fact violate s our laws
or which is detrimental to our public wel fare The French decree
is aimed solely at the per formance o f such con tract s within French
territory a s plainly appear s from the language u sed Such con
tracts whether they are made in France Vienna Berlin N ew York
or Bu e no s Aire s cannot be performed in France but they may be
performed in any neutral place o f contract There is ab solutely
nothing more in the whole decree
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XXX
A TT I T U DE O F
T HE F REN C H C H A M B ER O F C O MMER C E
I N B U EN O S A IRE S
The French Chamber o f Commerce in Bueno s Aires has never
th e l e ss con strued thi s decree a s prohibitive o f and vitiating all
contracts made in the Argentine Republic bet w een Frenchmen and
subj ects o f s uch hostile countrie s
even though intended to be per
formed in our country or in some other ne utral state basing its
,
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following telegr m wa s received from P a ri s on A ugu s t 6 1 91 6 “
T he O ffi cia l
Journ a l h a s j u s t publi hed a bl a ck li st of bu ine s hou s e whi ch a e to be cons i dered a s
of ho s tile ch a r a cter d which a enga ged in neutr a l countrie s a s middlemen for enemy
firm
T here i n o doubt th t thi s decree rel te only to tr a n a ction s which a r e to be
con umm a ted in F r a n ce
( N ote by G erm a n Ch a mber of Commerce a t Bueno s Ai re s )
1
T he
I
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s
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s
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48
construction upon the wholly erroneous interpretation o f the words
en
tou x l ie ux
That C h amber o f Commerce has extended to the
decree a scope which never rested in the intention o f the French
government and which does not correspond to its language for the
decree doe s not forbid the doing o f busine ss with Germa ns and
Austro H ungarians in neutral lands It declares only that such
contract s made in any country of the world to be p
e r for m e d in
F r a n ce or in its territorie s shall not be carried out
Such correct con struct i on casts upon the local French Chamber
o f Commerce the duty o f recognizing that the French residents o f
Bueno s Aires are not in any way prohibited from trading with
German s or Au stro H ungarians nor are they obliged to su ff er any
o f the pecuniary damage which would re sult from the termination
o f such trade relations
It may be that such tran sactions might s eem to them contrary
to their patriotic moral sentiments but that is a que stion o f con
s cience
which cannot be a sserted publicly in derogation o f the
Argentine law Th ere is no legal prohibition and there could be
none because the French faw s have enacted none and have no right
to enact any applicable in foreign sovereign states
In spite o f that the local French Chamber of Commerce
published the following announcement in the C our ie r d e L a P l a ta on
N ovember 2 1
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L a t July the French Chamber o f Commerce wrote
,
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to the M inister o f Commerce in Pari s through M
Jul l e m ie r the Mini ster of France in Bueno s Aires a
lette r o f inquiry containing several question s concerning
the application o f the law which prohibits all commerce
with subj ects o f hostile nations in foreign countries
e specially in the Argentine Republic and requested
enlightenment on that subj ect The Chamber o f Com
merce h a s not received any reply from the department
“
but f rom later in formation emanating from the orders
received from the French government and which have
been communicated to it by the French Consul con
cerning the scope and the interpretation o f the French
decree it believes it to be its duty to communicate to
French merchants its exact text ( The full text is
given ) It is thereby formally prohibited to trade with
the subj ect o f a hostile country in any place We hope
that the French colony which has given so many evi
deuces o f abnegation and sacrifice will submit patriot
ica ll y to the duties impo s ed upon it by the superior
”
intere st s o f national defense
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F REN C H
T HE O N L Y
‘
LAW
O N T H I S SU B JE C T
The French government could not have answered the communi
cation addressed to it otherwise than negatively and it is highly
improbable that it issu ed any orders to its Consul to try to en force
Fren ch laws in Buenos Aire s N o it is certain that his attitude is
erroneous
,
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,
.
M oreover it is astonishing that the French Chamber o f Com
merce and the French Consul in Bueno s Aires could have interpreted
the decree o f September 27 1 9 14 and the statute o f April 4 1 9 1 5
as applicable to trad e between F r e n ch m e n a n d the subj ects o f hostile
countrie s in forei gn countries or especially in the Argentine
”
Republic for that decree and that statute contain no word subj ect
to that interpretation It is inexplicable that any on e should speak
o f the necessitie s o f the national defense o f France a s applicable
to the li fe o f the Argentin e R e public It seems as though the Consul
and the French merchants unwitti n gly h ave forgotten the rights
and the dign ity of the Argentine Republic
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The decree above quoted was laid before the French N ational
As s embly which amended it on April 4 1 9 1 5 in such a way as to
fully co n firm my con struction It read s as follows
,
,
'
“
Article
.
Whoever violates the prohibition s
which have been enacted or which may be enacted in
the future and either directly or through a middleman
carries out any mercantile transaction o r other agree
ment or attempts so to do either with the subj ect o f
a ho stile power or with any individual residing in
ho stile territory or with a n y agent o f such a person
shall be punishable by imprisonment of f rom one to five
years and by a fine o f f rom five hundred to twenty
thou sand franc s or either All persons will be con sid
ered as criminal confederates who shall have partici
pated as attorney s brokers commi s sioners insurers
transporters w h a r fe r s or oth e r w ise h a v in g knowledge
o f the origin and de s tination o f the goods or other
articles o f value utilized in the execution o f such
forbidden tran saction or who is connected in any wa y
for the account o f the contracting parties with th e
forbidden transaction In case o f conviction the courts
may order confiscation o f the goods or other articles o f
value or o f their proceeds or o f the horses wagons
ships or other vehicles used for their tra n sportation
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50
and they would commit a misdemeanor against the publi c
peace and dignity o f our nation i f they were to invoke the provi sion s
or proclaim their obedience to foreign laws We come to the
of
then that some o f the leading individuals o f the French
c onclusion
which
c olony in Buenos Aire s have committed a fundamental e rror
I would gladly interpret a s unintentional ; and that they have shown
a lack o f consideration for the Argentine R epublic for its laws
and for the guarantie s extended by its con stitution equally to all
s tranger s who come to live upon our soil
e r e ig n ty
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XXX II
IN T ER P RE T A T IO N S O F T HE F REN C H JU RI S T S
All these question s have been discussed in France as well as here
I n the J our n a l de D r oit I n te r n ation a l 1 9 1 5 page 1 048 the editor
c on s ider s in details seven ca ses which were ba s ed upon the enforce
ment o f the decree o f September 1 9 1 4 and upon the law o f 1 9 1 5
and which were decided in harmony The law was held to be a
prohibition again st the conduct o f trade of Fr e nchmen with persons
resi ding within the territory of Germany or Austro H ungary The
s ixth case specifically involved the construction o f the words e n tous
l ie ux a n d reaches the c on c l usion th a t the prohibition is only appliable
to s uch transactions as are intended to be carried out w ith in F r e n ch
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te rr itor y
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The decree the law and its interpretation by French j urists all
prove that the French are not forbidden to live in a foreign country
and to deal at will with subj ects o f that country who live there unless
their dealings are to be con summated in French territory In a
word the French law h a s respected the authority the neutrality
th e freedom o f trade and the sovereignty o f those states which are
not involved in the war Should those Frenchmen who live in
A rgentina go further than their own government beyond the letter
a s well as beyo n d the spirit o f the law o f their
fatherland and
forget all the respec t which we entertain for them and which they
should have for us ?
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T he P re sident of the French Ch a mber
Bueno s A ires of the hou s e of Dreyfu s
Co
of Commerce M
m a n a ger
L ng W ill r
in
honored me with a cord ia l vi sit in order
to cc m m un ica t to me the te xt of a leg a l O pinion which he wi shed to publi h s tending
to d i p rove my t tement T he letter beg a n I n view of our friendly rel a tion a n d con
i ce d of the s in cerity of your
ertion th a t s
lecturer you do not spe a k with a n y
prejudices in fa vor of the l l i s I limit my s elf to a re p ly to the leg a l conclu sion s which
you h ve re ched by q uoting to you etc
I
n wered M L a ng W ill a r in the following
word
I w s very ple a s ed with the two S p ont a neou s vi it s which you m de
d which
a d
I th a nk you for them
indi ca tion of the reg rd which they
s an
y ou will rec ll
a s well a s be c a u e
s ignify for me
they g ve me
opportunity to ssure you of the
non p rt is n hip of my te chin g a ctivity in the U ni v er ity Y our courte s y is re spon s ive
to the word s which I u sed in my le cture a s e x cu ing the con duct a d i ntentio n of the
F rench Ch mbe r of Commerce of whi ch y ou were the pre sident a d of whi ch me n tion
As f
w a s m a de in my lecture
the opinion s of the l a wyer a r e con cerned w h ich you
were so kind s to end me but which he p refer s to h ve con sider e d a nonymou s I
gre a tly regret th t I m un a ble to give them a n y con ider a tion A ccording to the ethi ca l
rule of the U niver ity it requires profe s or of l a w to a sume publi c re pon sibility for
t heir doctrine s
( N ote by the lecturer )
1
e
v n
s a
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as
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52
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XX XII I
S T A T U T O R Y T R A D E P RO H I B I T I O N
L et us now
G RE A T B RI T A IN
IN
e xa m in e
the statutes o f Great B ritain on this subj ect
legislation which has been fo rced upon its allie s a s may well be
un d e r stood a n d which has been utilized in Buenos Aire s s
o as to
h
restrain the f reedom o f our trade ; so as to rob the Argentinian
farmers sons o f Germans Austrian s Turk s Bulgarian s etc o f their
j ust rewards and to prevent or disturb the orderly sale o f the fruits
o f their labor ; and so as to strike a heavy blow at the prosperit y
o f Patagonia where the greatest part o f the trade in and productio n
o f wool is in the hand s o f German houses which have there e stab
l ish e d great ranche s and expended many million s o f capital such a s
the firms L a h use n Meyer Spangenberg now Kurt Frese
C o and
other s
H as the B ritish government authorized such a con spiracy against
the g e n e r a l prosperity the trade the dignity the con stitu tion and
the laws o f the Argentine Republic ? To be upright I must sa y that
it h a s not I base my opinion upon the following ground s The
fi rst Proclamat ion which prohibited B ritish subj ects from trading
”
with Germans ( the Trading with Enemies act ) was passed August
5 1 9 14
I translate literally the introduction which contains the
purpo rt o f this proclamation quoting from the M a n n a l of E m e r g e n cy
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L e g isl a tion ,
or d e rs, e tc ,
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com
r isin g
p
pa ss e d
and
a ll
th e
m a d e in
Published by authority
a cts
f
o
P a r lia m e n t,
Vol
,
f th e w a r ( 1 9 1 4
It reads as follows
con s e qu e n ce
4
pr ocl a m a tion s
o
.
to
“
N ow and hereafter we consider it appropriate with
,
.
and by authority o f the approval o f our privy council
to issue thi s our Imperial Edict and therefore we
command all persons who reside within our possessions
o r who are there engaged in trade or who live there
not to enter into any new contracts or commercial
obligations o f financial or other character with or to the
advantage o f any person who re sides or is engaged in
trad e in the Empire aforesaid
,
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XXXIV
O CC U RREN C E S
IN
B U ENO
S
AI RE S
I promised you before to gi ve an example o f the attempt s
which have been made in this country to enforce the foregoing
proclamation against insurance business M r L a h use n Jr son o f a
German was in Germany when war broke out an d w a s require d
to serve in the army A prominent insurance company which h a s
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53
,
a branch in Buenos Aire s and which I have the honor o f advi s ing
had made a contract with this young ma n for life i n surance The
home o ffice o f the company in England directed the local branch
to refuse to accept pa yment o f L a h use n s premium claiming that
the contract w a s terminated by virtue o f the Royal Proclamation
The local manager sought my advice immediately I explained to
him that th e text o f the Proclama tion is clear and plainly say s that it
h a s no application to the Argentine Republic or other neutral coun
tries but is only of force in B ritish posse s sions I added that the
contract o f insurance mu st be respected becau se its provisions con
stitute a legal obligation and that in case o f b reach an action would
lie again st the company which it would lo se with costs ; a n d I
further said that in such an action I could not represent the company
becau s e that would be the defen se o f conduct which is contrary
to the public policy o f Argentina My answer was transmitted to the
D irectorate of the home o ffice which decided to follow my advice
Just about the same time the British steamer J R T H O M P S O N
arrived in Buenos Aires with a car go o f coal for a German company
which had already sold the coal for future delivery to the Argen
tinian g un factory at Puerto Borghi and to oth e r indust rial fi rms
o f Bueno s Aire s An agent of the B ritish Emba ssy ordered the
Captain of the steamer not to deliver his cargo becau se it belonged
to Germa ny The interested parties honored me with the duty o f
investigating th e ca se and I discovered the following peculiar facts
In O ctober a fter the war h a d been in progre s s more than two
month s a B riti sh firm in Cardi ff telegraphed to the German firm in
que stion in Bueno s Aire s and o ffered to sell it this coal and in " so
doing it w a s fully within its right becau se s uch a contract would not
be executed in th e B ritish Empire but in Bueno s Aire s
The
German company accepted the o ff er and after the coal arrived in
thi s port the B ritish order appeared I dictated a complaint against
the unlaw ful interfere nce ascribed to the B r iti sh Em bassy Prom
in e n ce was given in the newspapers to the incident and to the
contemplated lawsuit This publicity was sufficient to induce the
Captain to deliver the coal to the German company
What is now the moral o f these two case s ? That always
when the law and dignity o f a country is defended with a j ust and
fi rm hand its abuse will in stantly cease
L et us not forget gentlemen that whatever may be our sym
pathi cs with one or the other o f the countrie s at war we are be fore
all Argentinians and we should comply and en force compliance
with our law
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,
T HE
O n the
B RI T I S H O RDER S
N E W
1 2th
"
o f August 1 9 1 4 the B ri tish government issued
another order on the same subj ect which provided a s follows
“
Article
,
,
,
1
In order to define the c ommercial
operation s which are permitted with foreign firm s the
important point is to con sider where the foreign
merchant has his domicile and is engaged in commerce
an d not his nationality
Article 2 Con sequently there is a s a general
rule no obj ection to th e transaction o f bu sine s s by
B riti s h firm s with German or Au strian firm s e stablished
in neutral territory
Article 3 I f a fi rm who s e principal o ffice is in
a ho stile territory maintains a branch in neutral or in
B r itish territory commerce with such branch is per
m itte d alway s provided that it be exercised in good
faith and saving any special prohibition s o f the law
and always provided that no busine ss is done with the
”
main o ffice o f the firm
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Thi s confi rm s the statement I made that the Briti sh government
in its prize tribunals and in political cases uphold s the principle s o f
nationality ; although in matter s o f private right it continues to
ob s erve our doctrine o f domicile which is a safeguard o f human
liberty
The second a rticle o f th e order is conclu sive and merits special
attention in the face of the abu se s which have occurred in our
country through mi s interpretation o f this emergency legislation
The proclamation o f August 22 1 9 1 4 authorizes in e ff ect every
B riti sh hou s e in our country to deal with subj ects o f the central
governments and with their allies
What ba si s is there then for the prohibition which is so
pers istent in Buenos Aires ? O nly that which is given to it arbitrarily
by those intere sted in speculation and monopoly those concealed
di rectors who o ff end our national di g nity who se official and social
inertia is an insult to our industry
It is a sserted that the B riti sh Embassy in Buenos Aire s exerci s es
control o f or interference with the private business o f trade and
shipping and threatens to take mea s ures against those who trade in
Argentine territory with national s o f the boycotted countries This
mu st be an exaggeration circulated in the heat o f the pas s ions
now in vogue It is not reasonable to ascribe such a course o f
conduct to the plenipotentiary of a foreign country ; and for my part
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I am inclined to think that the s e accusations are not a ccurate because
such conduct would be an abuse o f the diplomatic function and
an attack upon our constituti on and laws I f such acts o f oppression
have been committed it mu st have been by B ritish agents who
hold n o o fficial respon sibility and who act only in their individual
capa city
,
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,
.
XXXVI
H AT D O
W
W E
ME A N B Y A N EN E M Y O F G RE A T B RI T A I N ?
Finally on September 9 1 9 1 5 the English government proceed
ing with equal clearne ss define s an enemy o f Great B ritain in the
following language
,
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,
“
Article
‘
’
The word enemy herein used is
intended to signi fy any person whatsoever or body o f
persons whatever may be their nationality wh o are
domiciled or do business in the hostile country ; but
does not include persons o f hostile nationality who are
not domiciled or who do not do bu s iness in a ho stile
country Those artificial persons only may be considered
”
a s enemies who are created in a ho stile country
3
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l
"
This proclamation was confi rmed by another o f N ovember
1 9 1 4 in which new provisions were made as follows
“
Considering
,
27
,
that it is convenient to establish
new regulations to prevent the payment o f money to
person s or bodies o f persons domiciled within or who
have bu siness within any country with which H is
”
Maj e sty is within an actual state of war etc
.
,
“
"
The Court o f Appeal s in L ondon in a case decided January
1 9 1 9 1 5 a sked the following question
What is under stood by the
”
P
term A lien Enemy
The court decided that the criterion was
not that o f nationality but that o f he domicile T h e T im e s o f L on
don January 2 1 9 1 5 says that according to this j udicial definition
it is possi ble that an Engli shman might be con s idered as a ho stile
forei gn er while the subj ect o f a hostile state would be treated as a
subj ect o f the B ritish C r own
A foreigner registered according to
”
the provisions o f the Aliens Act of 1 9 14 and residing in England
by consent o f the king is entitled to standing in the English courts
but unless he has authority to reside in England the subj e ct o f a
hostile country cannot appear in an English court as a party plainti ff
O n the other hand there is no seriou s reason for depriving him o f
the duty to pay his debts in England because o f his character a s
an enemy
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For that reason the Appellate Court decided that execution may
issue against a foreigner ; that i f he ca n be brought into court it
follows that he may voluntarily appear there and defend himsel f
again st a pending complaint The court say s to que stion thi s right
would be th e equivalent o f denying him j u stice a result which is
contrary to the principles which contr ol the courts o f the Kingdom
”
in their administration o f the law
Thi s deci sion was made in the ca se of the C on tin e n ta l T ir e (9'
R u bbe r C
and w a s decided by a unanimous bench The decision
w a s followed by the H ouse o f L ord s in a ca s e involving the rights
”
o f an artificial per son The O ne Man Co
In spite of the fact
that these decisions were unanimou sly rendered L ord Buckley and
L ord L indley decided in another case th a t u n de r no circum stance s
could a natural or artificial per s on belonging to ho stile countrie s
appear be fore B riti sh courts Fortunately the opinion o f the se
di ssenting j udge s doe s not control the admin istration o f j u stice in
England during the war
According to the B ritish law and to the deci s ion cited foreigner s
be they Germans o r other allies who are domiciled or who live
tran s iently in a neutral country are not enemies o f England and
their right to trade is j u st a s free a s before the war The permission
granted by the Proclamation o f King George V on Augu s t 22 is
in no re spect nece s sary to the exercise o f such right s in the Argentine
Republic and I have quoted the matter only to satis fy you by a
s uper fluity o f proo f o f the inj ustice o f the monopoly in our country
which speculators have conducted to our impoverishment
I f a German or Au stro H ungarian concludes a tran saction in Great
B ritain wh ic h is to be carried out in Germany or in Austro H ungary
it would be contrary not only to the emergency laws and to the
Proclamation but to common sense ; but i f he is dealing in a neutral
country under the protection o f its laws the King o f England
declares that his conduct is entirely permissible because not under
B riti sh j urisdiction
They who in Buenos Ai re s seek to defend them selve s on the
allege d exi stence o f an Engli sh law which in fact does not exi st
in the form asserted are abusing our ho spitality and when they
organize and seek to profit by monopoly and artificial speculation in
our country on such an excuse they are treading the Argentine
con stitution under foot
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XXXVII
T HE B RI T I S H B L A C K L I S T
"
-
We have now come to the most di fficult point o f consideration
I have already said that England a dopted the black list as an
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57
extreme mea sure for the fi r st time in 1 9 1 6 The proclamation o f
King George V w a s only made a few month s ago being dated
February 29 1 9 1 6 It is still little known in Buenos Aires and its
text is not yet available to the public although it has been kindly
furni shed to me by the M inister o f Foreign A ff airs Wh o received
it from our Embassy in L ondon It forbids trade with certain
”
persons of ho stile nationality and uses the word enemy in the same
sen s e given to it by the former Proclamation o f the King and by
j udicial decisions in England It is necessary to keep that definition
in mind in con struing the pr oh ibitic ms o f the Proclamation
The proclamation repeats the greater portion o f the former
order s and declares that they are applicable to individuals who are
domiciled in th e United Kingdom who trade there or who tem
Paragraph ( b ) is plainly a limitation upon the
po ra r ily re side there
operation o f B ritish enterprises in neutral lands ; for example the
Southern Railway or the Company o f the Port o f Buenos Aire s
although the decree doe s not actually refer to mercantile transaction s
or to contract s made in neutral land s such as the Argentine Republic
but only to those concluded by Boards o f D irector s in the United
Kingdom for current supplies for such forei g nly located enterprises
The directorate o f the Southern Railway in L ondon could accord
in g l y make no contract with German firms or with fi rms o f German
allies for the delivery o f articles for its railroad in the Argentine
Republic but the local management o f the railroad in the Argentine
Republic may make contract s to provide the railroad with its n e ce s
sary s upplie s , either with Germans or with their allies
either here
or in th e United States or in any other neutral country for supplies
not obtainable in England Such contract s would be perfectly legal
anyway becau se B ritish Proclamations have no authority outside o f
B ritish territory
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XXXVI II
ME A SU RE S T O P RO T E C T A R G EN T IN E T R A DE
A fter this very convincing expo s ition o f the English laws we
may confidently as sert that an unbearable misuse i s being made in
the Argentine Republic o f the provi sions o f laws which do not
contain the language claimed and which are being misinterpreted by
selfish interest or by indi ff erence
Consequently the Grain Exchange
the A ssociation o f Produce Merchants the Argentine Museo Social ”
the Industrial Union o f Argentine and other insti tutions o f the
capital and o f the city o f Rosario have taken measures for the pro
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of the O rder in Coun cil in que stion q uoted by the lecturer e omit
ted b ec a u e not e ssent i l to the thre a d of h is a rgument s bec u e su p er ede d by subse
q uent order a n d on ccount of the n a ture of the reply j u s t m de by the B riti sh govern
ment to the A mer i ca n prote s t ( T r n s )
1
T he portion s
ar
_
s
a
s.
,
a
a
a
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a
58
s
s
"
the English government is said to have made the following reply
to the government at Washington
“
The
1
blac k list doe s not imply a ny attack on
trade It is only made to prevent the u se o f B riti sh
product s and B riti sh capital to the advantage o f Ger
many in foreign lands
2
In general the black list doe s not a ff ect in
any way existing treaties
Great B ritain will entertain petitions for
3
removal from the black list in so far as B ritish trade
is concerned whenever the petitioners show that they
”
are not supporting Germany in any way
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In what way might I ask could a farmer in South D akota
or in Bu enos Aires an American or an Argentinian o f German
descent who wishes to sell h is wheat lend any political support to
Germany ? There could be no more indefinite interpretation o f the
black list i f this be authenti c none more in sulting to the soverei g nty
o f the United States England mean s to say that the United States
and the Argentine Republic s hould be content to ha v e their citizens
o f German or Austro —
H ungarian descent knock at the door o f
England for permission before they are permitted to sell their goods
in the United States or in the Argentine Republic
Moreove r who is going to define such an indefinite expres sion
”
who give any support to Germany ? What
a s the closing s entence
sort o f a support are they talking about ?
The United States mu s t certainly rej ect this insinuation and in
a determined way protect its s overeignty and the merchants within
The United States mu st view as we do the applica
its territory
tion o f the black list to transactions within their territory as an
attack upon their national sovereignty
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X LI
LE GA L
L et
D E FE N
S E S—A R G EN T INE LE G I S L A T IO N
see what the Argentine law s sa y what means they
contribute to the preservation o f our national honor to the protection
o f our trade and to the maintenance of the personal rights o f
the inhabitants o f our country The procedure o f the French and
B ritish Consuls in Buenos Aires was very exceptional ; for in
addition to the D eclaration signed by them which I have already
read to you I might exhibit to you a copy o f an original document
which is signed by one o f our prominent mercantile houses in Buenos
Aires but whose identity I will not disclose It is dated March 28
1 9 1 6 and explains to us why French houses o f Buenos Aires
us
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60
,
"
hesitate to deal with German houses and why they feel forced to do
so ; for even they regret such necessity The document says in part
“
As
.
to the order with which you have today
honored us we regret to be obliged to noti fy you that
we have received s trong representations from the
French Consulate which forbid us during the period o f
the war to enter into trade relation s with German
fi rms For this rea son because your re spected hou s e
falls within that category and because we do not feel
that we dare oppose thi s demand we must regretfully
decline your valued order until conditions have
”
changed
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X LI I
RE S P O N S I B ILI T Y O F T HE C O N SU L
These foreign Consul s have not shown proper re spect for the
Argentine law O ur Federal Court decided ( Volume 3 second
s erie s page 484
)
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,
“
Foreign
,
con s uls have no legal control o f any
character over the in h a bita n s o f a foreign land not even
tho se o f their own nationality unles s it be extended
to them by the express terms o f a tre aty ”
,
,
.
It is pos sible that the con suls in question have been lax in
performing the dutie s impo sed upon th em by their own government
but at any rate they have committed act s which fall within the
prohibition o f our l a w i a n d for which penalties are provided Because
they are acting in their o fficial capacity we are not permi tted to
punish them for our Supreme Court has decided that forei g n Con sul s
"
may only be brought be fore Argentine court s in que stion s arising
out o f their private a ff airs and that when acting in their o fficial
capacity they are only responsible to their own g overnments That
court held that foreign consul s may only be called to account for
thei r o fficial transactions in the courts o f their own country ( Vol
ume 3 second series pp 387 484 Volume 1 3 id e m page
The political administrative control which the con sul s are e x e r
cising for the purpo s e of l eading their dependents astray has no
j u stification under our con stitution and law and in its e ffect amounts
to a mi s demeanor ; but becau s e our court s are not open to their
punishment the Fren ch and B ritish governments ought to interfere
i f they wi sh thei r repre sentatives to maintain a correct attitude
and ought to prevent them from commit ting o ffen se s in our country
under the mantle o f E uropean law s The Argentine Republic o ught
immediately to return thei r credentials to these Consuls who are
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no longer p
e rs on a g r a ta and to demand proper reparation from their
respective governments
,
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As far as the propaganda and the proceedings o f the French
I would be glad
a n d English Chambers o f Commerce a r e concerned
to be able to j u sti fy the prominent individuals who control tho s e
in stitutions in their course o f con duct if it were possible They are
blinded by their patriotism and when we enter the domain o f
patriotism we must be respectful ; we must be prudent ; for it is not
easy to decide where excu sable s entiment cease s and intentional
wrongdoing begin s We mu st ask these individuals to mode rate their
conduct and to cease their violations o f our common law We mu st
remind them that th e y are subj ect to be cal led to j udgment be fore
our court s according to our exi sting laws both civil and criminal
They should all pay heed to the deci sion of our Supreme Court
( Volume 1 4 second series page 1 02 ) that
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The
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freedom o f contract h a s its bounds Con
tracts contrary to tho se prohibited by the law are
”
always null and void whatever their form
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,
But I have contract s o f that kind here before me They are
current locally and more publicity should be given to th e m I will
not give the names o f the bu s ine ss house s implicated although
I am dealing with written documents which have been transmitted
to their customers by the mo st important fi rms dealing here in
cereals meat and other agricultural products T hey are the ones
who are speculating seeking monopoly and forcing prices down
The se fi rms have forced their customers to recognize alleged local
custom s which according to the decisions o f the Federal Court
a re null and void
as I will demonstrate The language in question
is s ubstantially as follows
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Type
S
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—N o or ders for good s will be accepted
except from houses who s e owners belong to neutral
countries or to tho se of countries allied with England
nor will credi t be extended in favor of any other firms
than those indicated
Type B —The under s igned agree that in the
execution o f the foregoing sale the seller shall not
deliver any goods obtained directly or indirectly from
commercial houses or individuals whose name s appear
upon the English black list o r obtained f rom fi rms or
subj ects o f countries hostile to England and her allies
or which are actually located in the warehouses or
depots o f such fi rms Arrangements for delivery and
”
payment are subj ect to the same conditi ons
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62
ch
su
provisio ns
clauses as these are only a sample o f the numerous
which appear in contracts o f this kind We have to do
with a mercantile system o f boycott organized in thi s way by private
fi rms by Chambers o f Commerce and by the foreign Consuls which
is contrary to our law and which according to our j udicial decisions
is null and void These are contracts again s t which recourse to the
courts is open ; and I am convinced that our courts will hold such
contracts void under the principles o f law already enunciated I f
such dealings are not inspired by Consuls but are solely between
private persons they constitute a mi sdemeanor against the common
law ; again st which provision is made by our criminal code which
may be punished and upon which independent civil complaint s for
d amages might be based
N othing is easier than to demonstrate that
there is a boycott here against certain firms a boycott conducted
by prominent houses by Consuls and by Chamber s o f Commerce
and I have given you its language It is not only proven by the
contracts themselves but by the public pre ssure which is brought
to bear upon our stock markets our produce markets our r e fr ig e r a t
ing industry and our agriculture by the wholesalers who belong
to the pool aided by their con sular authoritie s and thei r Chamber s
o f Commerce
The law reads
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—
Constitution )
All
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inhabitant s
( Article 1 4 o f the
o f the nation enj oy the following rights according to
the laws which re g ulate their exercise
to
work to practice every permissible industry to follow
”
trade by se a and land
Article 20 Forei g ners shall enj oy in the national
territorie s the same civil rights as citizens them
selves
and may engage in indu stry trade
”
and other callings
Article 28
The principles guaranties and right s
which are recognized in th e f oregoing Article s cannot
”
be restricted by laws which regulate thei r exercise
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I f the Argentine l a w cannot change these con stitutional pro
visions is it pos sible that they may be amended by merchants
Consuls and foreign Chambers o f Commerce who are within our
borders ? Article 31 o f the constitution says
"
,
“
This
,
Constitution the laws o f the nation which
may be enacted by Congress subj ect to its provision s
an d treatie s with foreign powers constitute the supreme
law o f the land ; and the authorities o f every province
are obliged to observe it disregarding any contrary
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63
r
provi sion which may be found in the c on stitution s
”
laws o f the province
o
.
I f even the provi nces of our union are not permitted to modi fy
the se constitutional g uarantie s may it be done by foreign Con suls
and Chamber s o f Commerce ? More over Article 5 o f the law o f
September 1 4 1 863 provides a s follow s
Whoever executes any decrees bull s brie f s or
orders o f the Papal See or whoever commands their
execution without the special authority o f the gov
”
e r n m e n t etc
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The puni shment for violation o f thi s law is banishment o f
four to eight years Thi s law makes no mention o f foreign statute s
becau se they are already covered by Article 1 4 o f the civil code
which provide s that a foreign statute shall have no application
unless permitted by the local law ; so that an o ff en s e of thi s character
would be one committed under aggravating circum stance s Article
7 of the same law is explicit and quite applicable to o ff ense s com
m itte d by dome stic or foreign subj ect s
It reads as follows
Article 7 Whoever by h ostile acts without the
approval o f the government expo se s citizens to a ny
burden s or repri sal s o f per son or property shall be
s entenced to giv e public satis faction and shall be pun
ish e d by hard labor o f from one to three years
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The criminal code contain s provision s against extor tion and
conduct o f that character in our commercial life covered by the
following prohibition
Article l 68
Whoever thr ough force or
intimidation forces another to deliver surrender sub
to his damage or to that o f a third
s cribe or de stroy
per son any document upon which any legal right may
be based shall be punished by impri sonment from
three to six years
The same pun sh m en t shall be visited upon
any one who forces a n oth e r th r ough threats or the
simulation of public authority to send deposit or other
wi s e use a r tic l e s money or any probative document for
”
the benefit o f the accu sed or o f third person
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I have demon strated the exi stence of a boycott Its existence
i s universally known ; and innumerable wri tte n documents and other
evidences prove it O ur law penali z es a boycott in the following
language
Article 25 Whoever through insult s threats o r
force seeks to induce any person to participate in a
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64
,
strike or boycott shall be punished by impri sonment o f
from one to three years provided the offense com
m itte d does not include some other crime for whic h a
greater punishment has already been imposed ”
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,
.
The civil code contains the fol l owing a dmonition to Consuls
and Chambers of Commerce who exhibit disobedience to the Argen
tinian law or who incite others to obey foreign emergency legis
lation
Article 1 4 Foreign laws have no application
when such application would be contrary to the law
”
o f the land
"“
.
.
Finally j udicial deci sions have fixed the principle that neither
use cust om nor practice creates rights unless the law o f the land
specifically recognizes such an e ff ect
( J udgm ents o f the Supreme Court Volume 4 second serie s
page
In Volume 6 id e m second series page 204 there is another
decision which enunciates the following principle
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Foreigners
as well as other inhabitants o f the
count ry are bound to recognize the customs and laws of
”
the Republic and to regulate their conduct accordingly
fl
.
The state and private individuals as well have at hand
therefore legal remedies in supe r uity to de fend themselve s against
that monopoly and trade speculation which has raised its head
in our country and which under the protection o f that f reedom
from puni shment which its originators have hereto fore enj oyed is
depriving our citizens o f the fruits o f their labor to the value of
many millions
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X L I II
T H E D U T IE S O F IM PA R T I A LI T Y IN T HE U N I T E D S T A TE S
T HE A R G EN T I NE RE PU B LI C
AN D
The duties o f impartiality and the limitations which the indi
vidual should place upon the free expression o f h is opinions o f the
warring nation s are particularly weighty in those cou n tries which
like the United States o f N orth America and the Argentine Republic
have been largely built up by immigration Becau se these countrie s
have accepted this foreign immigration they have thereby a ssumed
a solemn obligation to civilization to protect the moral and the
ma terial prosperity o f such immigrants to assure to them that j ustice
and happiness which they seek here and which is so happily
expressed by the American law which declares their right to v ol un
ta r il y surrender thei r European citizenship
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65
In the United States where immigration is so enormous where
out o f a population o f perhaps one hundred and ten million thirty
million are either German and Austrian born or descended and
where some twenty—
fiv e million more came from other parts of
Europe or are descendants o f such immigrants the duties o f impar
tia lity h ave been par ticularly violated by the passions engendered
by the war Prominent statesmen like Roosevelt Wilson Taft
B ryan and H ughes have raised their voices in vain against the
tendency o f born and n aturalized Americans to forget their character
as citizens o f the union a n d to express their opinion s o f the war
as though they were still dependents o f the warring nations
This policy o f hostility between one man and another within
the territory o f the union is an insult to American nationality
becau se it ignores the humane character of its provisi on s disturbs
the public peace and creates public friction ; it is not consistent with
the gua ranties o f the Constitution ; and finally because the passions
so enge ndered lead even to crime Exhibitions o f such hostility have
been exem plified by overt acts in th e United States for example
the blowing up of bridges the burning o f factories and the conceal
ment o f explosives in ship cargoes
I f s uch attacks "and crimes had been committed within the
territory o f the United States only by subj ects o f the warring nation s
they would not be surprising nor worthy o f special mention
be ca use th e y would only be violations o f local law to be expiated by
the punishment provided by that law
But these demonstrations have been accompanied by the a g g r a
v a tin g circumstances that their originators were themselves citizens
o f the United States and such conduct might therefore well lead
an ob server to question the actual impartiality o f that nation towards
those involved in the war
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X L IV
D U T IE S O F H O S P I T A LI T Y IN T HE A R G EN T INE
‘
The Argentine Republic is more fortunate in this respect
\N e have made the mi stake o f failing to naturalize those strangers
to whom we should have extended our citizenship as a tribute
to thei r culture and to their long residence in our country But
we have not bound them to the recognition o f Argentinian nation
ality in that manner ; we have le ft them per fectly free to continue
their adherence to their foreign nationality The number o f such
foreigners is so great in the larger cities like Buenos Aires and
Ro sario that the war has caused very unusual demonstrations
both individually and collectively and to which man y citizens who
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66
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o f their own people without violating either the rights or the
prosperity of thei r opponents
This attitude is so universal in our cou n try and reflects such
an honorable light upon our adherence to law that the excesses
and the inj ustice o f the pur sui t o f monopoly which I have been
considering may be considered only as mistakes whic h might be
committed through the weakness o f humanity in any place in
peace as well as war ; but such excesses must end not only to
preserve the honor o f our country but so that respect for Argentina
in th e civilized world and particularly in warring Europe may
increase ; so that they may recall thankfully the prosperity which
their children have found here as well as the fin ancial s upport
which has been given to their populace by their subj ects in thi s
country ; and finally in order to ameliorate the deva stations o f that
catastrophe which has be fallen their fam ilies upon the field o f
battle The high social and financial circles o f the O ld World
will further recognize that the Argentine Republic is the only rich
and great country which has su ffered incalculabl e losses through the
war while other countries have prospered inordinately thereby
thanks to the exercis e o f statesmanship which I will not now
con sider in detail ; but that in spite o f that we h ave punctually paid
the interest upon our foreign debt and have thereby h e lped to
strength en the industria l li fe o f the European countries have helped
to les sen their misery and to assuage their grie f
These facts in my opinion constitute our fin e st tribute our
finest contribution to the celebration o f the first century of oui
independence ; and I turn to you as j urists and sch olars and invite
you to faith fully protect that j ustice a n d impartiality which so
redoun d to the praise o f the Argentine Republic in the emergency
which thi s world is now experiencing
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I thank you for your attention
“ d el
1
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”
eitung ” or “
R evi t a F in ncier a y Commerci a l
of Bueno ire
ct 7 1 9 1 6 spe a king editori lly report th t the A rgentini n lower hou e
ed
mended by the commi ttee on new l a w to
h a s ju t referred Dr A e l l
s bill
peci l committee of fi e deputie s with in struction s” to collect det a iled inform a tion of d m
p plic a tion oi the st tutory li st
d re p ort to the ne x t e ion of the
a g e in icted by
hou se T he editor y
T hi s a ction of the hou s e i to be regretted
I n view of the
m a ny concrete c e cited by D r A vell ned a i n Congre s
d to which a ttention h a d b een
ca lled by Dr Z eb a llo s s ever l month s a g o in h i lectures whi ch a ttr a cted so much ttention
ction t a ken by the mo s t im p ort a nt of the loc l commerci l hou s e s there
a d in view of the
h
se r iou ly di sturbed the intern a l econ omy of the
is no doubt th a t thi s commerci l w
D r I ri goyen who will begin h is new term a s p re sident within a few d a y s w a s
R epublic
elected upon a p l a tform in which he promi s ed to enforce our Con s ti tution H now h s a
p lendid opportunity to c rry out h is p romi se T he forei gn con ul r a uthoriti e s in eeking
to en force forei gn P rocl a m a tion s a e a ttem p t i n g to give E urope a n l w s oper a tion in
lthough by the very la ngu a ge of tho s e P rocl a m a tion s they a
s overei gn neutr a l country
only a pp lica ble within the territorie s of t h e countr i e p rticip a ting in the w ; a d they a e
d m a ging import nt a gri cultur l i ntere t s in thi s country a s well a s tho se of
seriou sly
forei gn tra de T heir conduct is ruthless viol a tion of our n a tion a l Con s titution a n d wholly
unju s ti fied by their home government s whi ch h ve not undert a ken openly or form a lly to
W
ti
viol a te our overeig n ty or our C o stitution a l G u
mu st p tiently a w a i t ome
e x pre s ion of the ttitude which the new a dm i n i tr a t i on will t a ke in thi s import a n t m a tter
A n y p ss ive a ttitude of our dmini s tr a tion will lowe r the
O ur n a tion a l dignity i s a t s t ke
t nding of our country in the e stim a tion of thes e fore i gn government s ; a n d if interpreted
indi c tion of n a tion l we a kne ss might in the future be followe d by mo s t di sa strou s
as a
con sequence
fl
l
Note ) —T he
( T r a n sl a to r s
s A
s, O
’
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s
s
a
v
v
a
sa
as
s-Z
s
a
,
,
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Han
.
s
an
“
"
a
’
“
,
as
a
a
an
s
s
a
an
s
a
a
.
a
a
a
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ss
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s
a
n
ar
,
,
s
as
,
,
a
s
.
a
,
.
r
,
,
a
s
a
_
re
a
s
a
a
a
a
e
.
s
a
s,
s
.
s
a
a
a
s
.
s
,
a
a
ar
r
n
s
a
.
a
,
a ra n
n
s
es
.
e
a
s
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s
a
s
a
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a
.
a
.
"
s a
‘
n
a
s
,
a
,
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68