The Law relating to Trading with the Enemy together with a Consideration of the Civil Rights andDisabilities of Alien Enemies and of the Effect of War on Contracts with Alien Enemies

The Law relating to Trading with the Enemy together with a Consideration of the Civil Rights andDisabilities of Alien Enemies and of the Effect of War on Contracts with Alien Enemies

Bibliographic Details

New York: Baker, Voorhis & Company. 1918

Book Review

When the United States entered the war in April, 1917, the general principles of law relating to the status of alien enemies and to trade with the enemy were already well settled by the decisions of the courts of this country in the early part of the nineteenth century and during the Civil War, as well as by the decisions of the English courts prior to and during the present war.

Introduction to The Law relating to Trading with the Enemy together with a Consideration of the Civil Rights andDisabilities of Alien Enemies and of the Effect of War on Contracts with Alien Enemies

There was, however, no existing statute under which criminal penalties could be imposed for illegal trading. Moreover, legislation was imperatively necessary on the subject of enemy trade, in order to meet the new conditions of modern economic life and of modern warfare. The enemy had allies whom it became necessary to treat in law as enemies of the United States even though we were not then at war with these allies. It was also evident that the term “enemy” must be extended beyond its common-law sense; neutral countries were filled with German subjects, naturalized Germans, and German sympathizers, whose business activities in aid of Germany must be curbed so far as their connection with our own citizens was concerned.

Context of The Law relating to Trading with the Enemy together with a Consideration of the Civil Rights andDisabilities of Alien Enemies and of the Effect of War on Contracts with Alien Enemies

The common law did not in this respect meet the necessities of the case; and legis-lation was needed to amplify the scope of the classes of persons who, for the purposes of the Act, might be treated as “enemies” by the United States. The term “trade” as used in the Napoleonic Wars, the War of 1812, and even the Civil War, was not sufficiently broad to cover all the actions which it was desirable to prohibit during the present war.

Thesis Statement

The complexity and development of modern business demanded greater stringency in certain directions than the old judicial decisions provided for. In former days, trade consisted almost wholly in the actual sale and transfer of commodities; today the building up of assets, funds, and credits in this country and their transfer by letter, cable, or wireless demanded rigorous supervision and prevention. A new method of dealing with the large German property interests in this country was proposed, which required legislation, viz., the taking over of such property by the government and the investment of its proceeds in government bondsthus conscripting the enemy's property and fighting him with his own money, while at the same time conserving his money in the safest investment.

More about The Law relating to Trading with the Enemy together with a Consideration of the Civil Rights andDisabilities of Alien Enemies and of the Effect of War on Contracts with Alien Enemies

The Trading with the Enemy Act, of October 6, 1917, was drafted, therefore, with a view to deal with these new conditions of modern warfare. It was intended to supplement the previous law as developed by judicial decision; in some directions it was designed to change the previous law; but it was not designed to codify the whole law upon the subject, and it specifically provided that the common law should govern in all matters not within the scope of its enactment. It left, therefore, many important topics to be determined very largely by the common law or by State laws then in force topics like the effect of war upon contracts; interest on debts due to enemies; devises and bequests to enemies; suspension of statutes of limitations; termination of agency, etc., etc. Because of the fact that the statute was not intended as a codification of the whole law of enemy trade, the volume now under review is of great importance, presenting as it does, not merely a commentary on the statute, but also a very complete statement of the law as it existed prior to the statute's enactment.

Analysis of the Text

Indeed, a work of this kind is almost indispensable to every business man, as well as to every lawyer, since never before in history have the commercial transactions of this country been so largely regulated by legislation, or been so extended in foreign trade. It is fortunate that the preparation of this book has been undertakenby so competent an author. Mr. Huberich is not only a lawyer of New York whose practice has been intimately concerned with the topic treated by him, but a former professor of law at Leland Stanford Jr. University. His book is not a mere hasty compilation of authorities put forth to meet a sudden demand for a book on a subject little known to lawyers of today.

Other Aspects

It shows throughout long and careful study and a thorough acquaintance with the underlying principles, not only of the general law of the subject, but also of the particular statute in question and of similar legislation in other countries. The author does not content himself merely with a statement of the law, but offers helpful comments and suggestions as to the construction, the omissions, and the inclusions of the statute. The citation of cases appears to be unusually full; on some few topics, however, further cases might be found, notably on the question of the effect of war upon the statutes of limitations, as to which the able article by Professor Charles Noble Gregory in the Harvard Law Review, Vol. XXVIII (May, 1915), might have been consulted with advantage. (In fact, in this book, as in many modern law books, it would be of great assistance to the reader if authors would cite the many important articles in leading American and English law reviews on the subjects treated; such articles on the law of trading with the enemy having been particularly valuable and numerous since 1914.) The scope of Mr. Huberich's book is satisfactory; it start with a brief summary of legislation in France, Italy, Russia, Japan, Germany and Austria-Hungary, Turkey, and the British Empire (the British Statutes and Orders in Council, 1914-1916, being given in full in the appendix); it then treats of the legislative history and general purposes of the Act of October 6, 1917.

More on this Book Review

It then takes up the statute, section by section, and sentence by sentence, discussing the scope and intent of each, and stating with considerable fullness the decisions of the American and English courts on the particular phase of the subject of the legislation. The preface of the book is dated February 1, 1918. The intent of those who drafted, those who approved, and those who enacted the statute in question was to conform to the more enlightened and modern view of warfare, namely, that the rigors of war should not fall on private persons or property of the enemy any more than was necessary for the safety of the State. As long ago as 1814, Chief Justice Marshall declared in Brown v. United States (8 Cranch, 110, 122) that while the power of Congress over enemy persons andproperty was plenary, nevertheless the consensus of modern Christian nations was opposed to confiscation or undue harshness of treatment.

More Aspects of the Book

The great change in conditions of warfare today, whereby war has become, not a conflict of armed troops, but a conflict into which all the industrial and commercial forces and resources of the opposing nations are thrown, may now require a reversion to the older and more rigorous treatment accorded to enemy property. The statute, as drawn, leaves it open to its administrators to adopt such a more rigorous policy if conditions or necessity of retaliation for acts of Germany, so require. The statute leaves to Congress the final disposition of enemy property taken over by the Alien Property Custodian. It provides for a large extension of the term “enemy” by the President whenever he shall deem that conditions demands such extension (and he has made such extensions since the date of writing of this book).


It is entirely possible that conditions ascertained since its passage may also render necessary certain amendments in order to perfect the de Germanization of so many American businesses which, we now discover, have been absorbed by German capital and German interests, and in order to avoid the accumulation of profits for the benefit of Germans after the war. But even if the statute shall be so amended, Mr. Huberich's book will still remain, because of its thorough statement of the general principle of the law, a necessary guide to all who desire to know how far their commercial operations will or will not be valid.

Book Review Details

This legal book review was published in:

The American Journal of International Law,Vol. 12, No. 3 (Jul., 1918), pp. 676-679

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