« PreviousContinue »
Annexation. The anomalous position which has so long existed in Egypt is certainly put an end to by the emancipation of that country, along with Cyprus, from their nominal Turkish suzerainty. One is obliged, however, to question very strongly whether such an emancipation is a proper method of warfare. Formerly it used to be considered perfectly proper to possess oneself in war-time of an enemy's territories. The invader, by the theory of substituted sovereignty, became the owner. Thus Frederic II, when Silesia and Saxony were invaded, treated the population as his subjects, and forced them into his armies. That this is not possible to-day in Belgium results from a change which is universally admitted to have come over the character of an invasion. It cannot ripen into a change of sovereignty until the dispossessed sovereign has recognised the invader as owner (i.e., has ceded the occupied provinces)-or until there is no longer any possibility that he will ever be able to regain them. This modern principle was, unfortunately, set aside in the South African war-which set a good many bad precedents on a small scale—but that was not a war between independent States, and cannot contradict the trend of modern opinion.
Does, then, this accepted doctrine, that it is unlawful to treat an “occupied " territory as one's own, extend to the displacement during war, of suzerainty and vassalage ? Needless to say, the incidents of the suzerainty may be suppressed by the conqueror, where the suzerain is his enemy. Egyptian or Cypriote tribute to Stamboul may clearly be cut off. But is it possible to treat the Ottoman sovereignty as displaced, and Cypriotes or Egyptians as compellable to fight against Turkey ? The question has a double aspect. Cypriotes were Ottoman subjects. Egyptians were primarily of Egyptian nationality. In the former case, we are inclined to think that the ordinary rule holds : that the fact that a British force was already present on the spot does not alter the ordinary rule, that military occupation does not and cannot change the allegiance of the people. Of course, it is competent to the British Govern. ment to confer the rights of British nationality on any particular class of its enemies. But it cannot impose on them the duties of British subjects, pendente bello : and none the more because it has been administering the territory during peace. Indeed, it would seem that the reservation of suzerainty and tribute to Turkey was directed to this very object—the preservation of the essentially Ottoman character of the island in all circumstances.
Egypt is in a different position. It has a decided, though
a an anomalous, international status. Its government, though almost entirely under British control, entertained diplomatic international relations. Consequently, it is possible that the inhabitants may find their international relations determined, not by their individual circumstances, but en bloc by the action of their government. Had the Khedive Abbas revolted from the Turkish suzerainty, it is impossible to say that an enemy of this over-lord would have been infringing any canon of war by recognising his independence, and the absolution of all his subjects from their Turkish allegiance. But nothing of the kind happened: and it is exceedingly difficult to distinguish from annexation the deposition of the suzerain's vassal and the establishment of a more complaisant one. If Brabant were, through a Germanised governor, to tender its allegiance to the Emperor William, no international validity could attach to the transaction. The position of Egypt is doubtless very different: but to strike at the bonds of allegiance in time of war is dangerously inconsistent with sound doctrine, and might have inconvenient results for ourselves.
The particular course adopted—viz., the taking of Egypt into British protection, instead of frank annexation-is a matter of mere form. Protection, coupled with entire control, amounts to annexation in International law. Napoleon's vassal kingdoms, such as Westphalia, were never considered as having an existence apart from France. It has repeatedly been urged in these notes that power and responsibility go together; and that where the influence of the British Crown is supreme, the maintenance of a puppet throne ought not to blind even the Courts to the facts. Such kingdoms are in truth and in fact annexed, and their people ought to be treated as what in fact they are, namely British subjects. Internationally, there is no doubt that they are such. International law is not much troubled by fictions. And to alter the allegiance of a people by changing its constitutional relations with its suzerain is a cause of war if done in peace, and it would seem an improper exercise of hostilities in war. Practically, the only cause for complaint would arise if the Egyptian army and population were compelled to assist the British against Turkey. Such a step would be so impolitic that it is not likely to be taken. But the invasion of Egypt by a Turkish force would produce a situation of very great difficulty. Theoretically, one is obliged to say that it would be internationally wrong to force Egyptian troops to repel them. The best justification would be to represent the recent action as a revolt, carried out by the Egyptian cabinet, and recognised by Britain. It is rather a wiredrawn argument. Possibly the Crown really relies, as in 1901, on the right of conquest. As we have seen, that is now-a-days inadmissible. And it would be very bad for Belgium to admit it. It need not be added that these remarks are not directed to questions of policy, but simply to state what is conceived to be the law.
It may be policy to break the law. And then the question becomes one of ethics.
The “Míramachí"-Pre-war Shipments.
The proper course was taken in this case of applying the principles of ordinary Commercial law to a question of property, where the shipment was made before the outbreak of war and not in contemplation of it. To other shipments the stringent doctrines of Prize law could be applicable, which decline to be satisfied with the usual presumption that property vests in the purchaser on shipment in cases where the shipper is an enemy; and which will scarcely admit of proof to the contrary, in cases where an enemy is the purchaser (though the accustomed course of trade varying the common rule may probably be invoked to save a cargo in such circumstances).
The “Odessa "--Neutral Liens.
In The Tobago, Sir W. Scott laid it down that liens which
private ” (by which he seems to have meant nonapparent), such as bottomree bonds, could not be recognised on an enemy ship. Conversely, in The Ariel (, 11 Moo. P. C. 119), the Privy Council declined to take any notice of an enemy's lien on a neutral ship. The application of the same principle to cargo was suggested as the proper course in these Notes last November. It has now been formally applied in The Odessa (December 21st 1914). The case is by no means covered by The Ida ([1854), Spinks, 26). There, Russians, who had no credit in Brazil, and wished to import coffee from thence, got a Hamburg firm of bankers to provide them with funds to pay with, and the bills of lading were made out in duplicate, one set (on board) being in blank, as on a voyage to Elsinore, in Denmark, for orders; the other set, forwarded to the bankers and indorsed to their order, was made out as on a voyage to Helsingfors, in Russia. War had not begun, but was contemplated : and this duplication of papers was amply sufficient to condemn the cargo. Dr. Lushington went further, and held that the neutral bankers' asserted lien would be disregarded ; but the obvious fraud which pervaded the whole shipment weakens the force of the case as an authority. (“The whole transaction is a disgraceful fraud "— per Harding, Q.A.) The case of the Odessa, however, raises the issue neatly of the effect, in the absence of all fraud, to be given to liens, and is no doubt right in denying any (The Frances, 8 Cranch, 418).
Decisions have been rendered in various quarters which proceed upon the principle that an enemy who is not expelled from the country, but is subjected to internment or registration, is here by licence, and is entitled to all the privileges of a British subject. This is completely contradictory to Alciator v. Smith ([1812), 3 Camp.), and Alsenius v. Nygren (, 4 El. and Bl. 217; 3 W. R. 25). In both of these cases, a suit by an alien enemy failed. The former of them is especially noteworthy, for the plaintiff had been subjected to a system of certificated registration not unlike that which exists to-day. It was held that she was not here by licence or safe-conduct. The fons et origo of the recent decisions appears to be an ancient and ill-reported case of Wells v. Williams (1 L. Raym. 282), which was taken up, without a full knowledge of the circumstances, by Kent, C.J., in Clarke v. Morey (1813. 10 Johns. Am. 69). The fact is, that in Wells v. Williams, King William III
, had published a Declaration of War, in which French sub. jects were specially invited to remain, and promised every protection. No such intimation has been issued on the present occasion. The mistake of relying on the case as deciding a general principle, in the face of such recent