COUNSEL: Romer K.C., B. A. Cohen K.C. and W. Frampton for the plaintiff.

Sir Ernest Pollock S.-G. and Gavin Simonds for the defendants.

 

SOLICITORS: Cruesemann & Rouse; Solicitor to the Board of Trade.

 

JUDGE: Russell J.

 

DATES: 1921 April 14, 19, 28.

 

[*70]  April 28. RUSSELL J. The plaintiff sues the Public Trustee and the Attorney-General for a declaration that he was not on January 10, 1920 (the date when the Treaty of Peace with Germany came into force), and is not, a German national within the meaning of the Treaty of Peace Order, 1919, or the Treaty of Peace; and he also asks for other relief. The object of his action is to ascertain whether certain property in this country – namely, (i.) a sum of 2722l. 11s. 6d.; (ii.) a balance at the bank of 172l. 9s. 4d.; and (iii.) some furniture in store – are subject to the charge created by s. 1, sub-s. XVI., of the Treaty of Peace Order, and whether he can deal with such property without incurring the pains and penalties prescribed by sub-s. XVII. of the same section. The Treaty of Peace Order provides that ss. III., IV., V., VI. and VII. of Part X. of the Treaty of Peace shall have full force and effect as law. By virtue of the Treaty of Peace Act, 1919, the Treaty of Peace Order has effect as if enacted in that Act. [*71]

 

In the result, therefore, the Treaty of Peace Order and the above-mentioned sections of the Treaty of Peace form part of the municipal law of this country. I mention this at the outset, because a suggestion was made by the Solicitor-General that the Court should be reluctant to construe, and indeed should in the exercise of some discretion refrain from construing, an international document such as the Treaty of Peace, executed between high contracting parties and capable of alteration or interpretation at their hands. I do not appreciate this contention. I apprehend it is the right of a litigant to assert before the Courts of this country, and the duty of those Courts to adjudicate upon, claims founded upon a consideration of the municipal law of this country, and not the less so because the law involved has been derived from, and has been enacted for the purpose of giving effect to, certain provisions of a document of an international character.

        

The relevant personal history of the plaintiff is as follows: He was born in 1872 at Kreuznach in Rhenish Prussia. In October, 1895, he left Prussia and went to reside in Belgium. On June 26, 1896, he obtained his discharge from Prussian nationality. He never subsequently applied for, or obtained, the nationality of any German state. In November, 1896, he came to England, and made this country his permanent home. He was never naturalized here. In May, 1916, he was interned. In 1918 he was deported to Holland; thence he went to Germany and has resided there ever since. He was the owner of 3600 shares in a limited company, and in regard to those shares the Board of Trade proposed in 1916 to make a vesting order. He objected on the ground that he was not an enemy subject within the Trading with the Enemy Amendment Act, 1916. The matter was compromised by an agreement under which the shares were to be transferred to the Public Trustee as trustee for him; they were to be sold and the proceeds paid to his banking account in London. They were sold, but before the proceeds (2722l. 11s. 6d.) had been paid to the bank he had been sent to Holland and had gone to live in Germany. He thereby became an enemy within the Trading with the Enemy Amendment Act, 1916, and [*72] accordingly an order was made, and properly made, under that Act by the Board of Trade vesting the proceeds of sale in the Public Trustee as custodian. So far as this sum of 2722l. 11s. 6d. is concerned this action must fail, because (as was conceded at the trial) that sum is now held by the custodian subject, and subject only, to the provisions of s. 5, sub-s. 1, of the Trading with the Enemy Amendment Act, 1914. There remain, however, the bank balance and the furniture which are the plaintiff’s property, subject or not (as the case may be) to the charge created by the Treaty of Peace Order.

        

I will now consider the material provisions of the Treaty of Peace and the Treaty of Peace Order. By Part X., s. IV., art. 297, para. b, of the Treaty of Peace, the Allied and Associated Powers reserve the right to retain and liquidate all property belonging at the date of the coming into force of the Treaty to German nationals within their territories. By para. h, sub-para. 1, the net proceeds of sales of enemy property, and in general all cash assets of enemies, are (as regards Powers adopting s. III. and the Annex thereto) to be credited to the Power of which the owner is a national, through the clearing office established thereunder; any credit balance in favour of Germany resulting therefrom being reckoned as a credit to Germany in respect of her reparation obligations (art. 243 (a)). By para. i Germany undertakes to compensate her nationals in respect of the sale or retention of their property in Allied or Associated States. By clause 4 of the Annex to s. IV. it is provided that the property of German nationals within the territory of any Allied or Associated Power and the net proceeds of their sale may be charged by that Power with payment (amongst other things) of amounts due in respect of claims by the nationals of that Power.

        

By the Treaty of Peace Order, ss. III. to VII. of Part X. of the Treaty of Peace are given full force and effect as law, and the clearing office in the United Kingdom is established. The charge authorized and contemplated by the Treaty of Peace is created and made effective by (amongst [*73] others) the following provisions of the Treaty of Peace Order: Sect. 1, sub-s. XVI.: "All property, rights and interests within His Majesty’s Dominions or Protectorates belonging to German nationals at the date when the Treaty comes into force (not being property, rights or interests acquired under any general licence issued by or on behalf of His Majesty), and the net proceeds of their sale, liquidation or other dealings therewith, are hereby charged – (a) in the first place, with payment of the amounts due in respect of claims by British nationals with regard to their property, rights and interests, including companies and associations in which they are interested in German territory, or debts owing to them by German nationals, and with payment of any compensation awarded by the Mixed Arbitral Tribunal, or by an arbitrator appointed by that Tribunal in pursuance of para. (e) of art. 297, and with payment of claims growing out of acts committed by the German Government or by German authorities since the thirty-first day of July, and before the fourth day of August, nineteen hundred and fourteen; and (b) secondly, with payment of the amounts due in respect of claims by British nationals with regard to their property, rights and interests in the territories of Austria-Hungary, Bulgaria and Turkey, in so far as those claims are not otherwise satisfied. Provided that any particular property, rights or interests so charged may at any time, if His Majesty thinks fit, be released from the charge so created." Sub-s. XVII.: "With a view to making effective and enforcing such charge as aforesaid – (a) no person shall, without the consent of the custodian, transfer, part with or otherwise deal in any property, right or interest subject to the charge, and if he does so he shall be liable on summary conviction to a fine not exceeding one hundred pounds or to imprisonment for a term not exceeding three months or to both such imprisonment and fine."

        

The relevant question affecting the plaintiff is this: Is his property here property belonging to a German national and, therefore, property which is charged by the Treaty of Peace Order, and which he may not deal with except with the consent of the custodian or at the risk of fine and imprisonment? [*74] In other words, was the plaintiff on January 10, 1920, a German national?

        

The plaintiff alleges and contends, first, that he has ever since 1896 been completely divested of Prussian nationality and German nationality; secondly, that he has never acquired any other nationality; thirdly, that he is in the condition of a stateless person; fourthly, that he was not on January 10, 1920, a German national; and, fifthly, that his property here is, therefore, not subject to the charge created by the Treaty of Peace Order. The defendant alleges and contends, first, that notwithstanding the plaintiff’s discharge in 1896, he either retained some remnant or shred of Prussian or German nationality, or had not lost such nationality for all purposes; secondly, that the condition of a stateless person is one not recognized by law, international or municipal; thirdly, that the words "German national" in the Treaty of Peace, and incorporated therefrom into the Treaty of Peace Order, mean or include a German national according to English law; fourthly, that, English law not recognizing the condition of a stateless person, the plaintiff would be a German national according to English law; fifthly, that he was such a German national on January 10, 1920; and sixthly, that his property here is, therefore, subject to the charge created by the Treaty of Peace Order.

        

I was referred to two authorities: Ex parte Weber (1) and Ex parte Liebmann. (2) In each of those cases the person in question, who had apparently been interned as an alien enemy in exercise of the Crown’s prerogative, claimed not to be an alien enemy by reason of the fact that he had lost his German nationality; and he applied for a rule nisi for a writ of habeas corpus. In Weber’s Case (3) the Court of Appeal (on appeal from the Divisional Court) refused the rule on the ground that the applicant had failed to satisfy the Court that he had lost his German nationality for all purposes, and that he had consequently failed to establish that he was not an alien enemy. This decision was affirmed by the House

        

 

(1) [1916] 1 K. B. 280n.; [1916] 1 A. C. 421.

        

(2) [1916] 1 K. B. 268.

        

(3) [1916] 1 K. B. 280n. [*75]

 

of Lords on the same grounds. The loss of nationality was alleged to have occurred (a) by reason of continuous residence out of Germany for ten years under ss. 13 and 21 of a statute of 1870 or (b) under s. 26 of a statute of 1913. The Court of Appeal came to the conclusion that the applicant had failed to prove loss of German nationality for all purposes for two reasons. The first was, because a person losing nationality under s. 26 of the statute of 1913 has a right in certain circumstances on returning to Germany to naturalization. Sect. 26 has, however, no application to the present plaintiff. The second reason was that in certain cases a person who has lost his German nationality by ten years’ absence, even if he has acquired a foreign domicil, may without returning to Germany recover his German nationality. This may be a reference to s. 21 of the Act of 1870. If it is, I would point out that that section has no application to the present plaintiff. If it is a reference to s. 13 of the Act of 1913, the privilege there given to a former German is equally given to persons who never were Germans. This operation of s. 13 was proved by proper evidence before me. I do not know what translation of s. 13 was before the Court of Appeal. It may have been, and very probably was, an official paper presented to both Houses of Parliament by command of His Majesty in March, 1914. That paper contains a translation of the law of 1913 and a memorandum therein by His Majesty’s Embassy at Berlin; but it contains a mistranslation of s. 13. That section (and this is also true of s. 33) applies not to the "child" of a former German, as stated in the official paper, but to any descendant, "wer von einem solchen abstammt." The result of this is to establish that whatever privileges are conferred by those sections are equally conferred upon former Germans and upon persons who never possessed German nationality at all. The House of Lords decided Weber’s Case (1) on substantially the same grounds as the Court of Appeal; but, in addition, great stress was laid upon the fact that as a former German, if he returned to Germany, he would be liable to serve in the German Army by virtue of the Military Act of 1874. It was proved

        

 

(1) [1916] 1 A. C. 421. [*76]

 

before me by proper evidence that in point of fact that Act had been repealed and replaced by an Act of 1913 which imposed that obligation upon all "stateless persons" – namely, persons residing in Germany "die keinem Staate angehšren." It would appear, therefore, that none of the elements upon which reliance was placed by those who decided the case of Ex parte Weber (1) exist in the case of the present plaintiff. Ex parte Liebmann (2) carries the matter no further upon the point material here. It merely followed Ex parte Weber. (1)

        

The question for me to decide in this connection is whether the plaintiff on the evidence before me has satisfied me that he has lost his German nationality for all purposes. Two German lawyers were called before me, Dr. Goldschmidt and Dr. Baerwald; and I will now read their evidence upon this point. No evidence was called by the defendants. Dr. Goldschmidt said, "I am familiar with German law. I have seen a copy of the plaintiff’s discharge of June 26, 1896. By this document Stoeck has absolutely lost his German nationality. He is discharged from his Prussian nationality and thereby he loses his imperial nationality. According to German law, having lost his German nationality and not having acquired any other, he would be regarded as stateless. On the handing out of the document of discharge Stoeck lost his German nationality for all purposes. He would then owe no duty or obligation to the German government or the German nation. I now produce the text of the Military Law of 1913. Sect. 1 (which amends the old s. 11) provides that persons who belong to no state but reside in Germany or in a protectorate may be called on for military service in the same way as Germans. I know of no right which persons formerly of German nationality possess; I know of no privilege which they possess except those conferred by ss. 13 and 33 of the Act of 1913. Those privileges apply both to former Germans who have acquired a fresh nationality and to those who have not. They apply also to descendants of a former German. The German word is ‘abstammen,’ that is, a descendant; child is ‘kind.’

        

(1) [1916] 1 K. B. 280n.; [1916] 1 A. C. 421.

        

(2) [1916] 1 K. B. 268. [*77]

 

There is no foundation in German law for the suggestion that a former German retains any German nationality or retains it for any purpose. Stoeck is not a German national for any purpose according to German law"; and that evidence is corroborated by Dr. Baerwald.

        

This evidence satisfies me that the plaintiff has lost his German nationality for all purposes. It is not suggested that he has acquired any other nationality. If then such a condition is possible in law the plaintiff is a person of no nationality; he is a stateless person. Is such a condition possible in law? So far as international law is concerned, opinions appear to differ. Hall in his treatise on International Law, 7th ed., p. 256, deals with the matter as follows: "¶ 74. In a certain number of cases it is possible for persons to be destitute of any national character. In Austria, for example, anyone emigrating without permission of the state loses his nationality by the act of emigrating, and is consequently without nationality until or unless he is formally received into another state community; in the Argentine Confederation, a foreign woman does not acquire the nationality of her husband on marrying an Argentine citizen, although she may have lost her nationality of origin by marrying a subject of another state; and the illegitimate son of an Englishwoman born in Russia, though British in the eye of Russian law, is of no nationality elsewhere, since by English law he is not British, and by Russian law he is not Russian. It is evident that the existence of numerous persons in like condition would be embarrassing; and it appears that much inconvenience was in fact caused until lately both in Germany and Switzerland by the presence of individuals who either had no nationality, or whose nationality it was impossible to determine. It was ultimately settled by convention as between the Swiss Cantons and as between German States that anyone found to be in either of these positions should be considered to be a subject of the state in which he was living." Oppenheim in his International Law, 2nd ed., vol. i., pp. 387-9, devotes a portion of Ch. 3 in Pt. 2 to the subject of "Double and Absent Nationality." He says: "¶ 311. An individual may be [*78] destitute of nationality knowingly or unknowingly, intentionally or through no fault of his own. Even by birth a person may be stateless. Thus, an illegitimate child born in Germany of an English mother is actually destitute of nationality because according to German law he does not acquire German nationality, and according to British law he does not acquire British nationality. Thus, further, all children born in Germany of parents who are destitute of nationality are themselves, according to German law, stateless. But statelessness may take place after birth. All individuals who have lost their original nationality without having acquired another are in fact destitute of nationality." And, again, he states: "¶ 313. Double as well as absent nationality of individuals has from time to time created many difficulties for the States concerned. As regards the remedy for such difficulties, it is comparatively easy to meet those created by absent nationality. If the number of stateless individuals increases much within a certain State, the latter can require them to apply for naturalisation or to leave the country; it can even naturalise them by Municipal Law against their will, as no other State will, or has a right to, interfere, and as, further, the very fact of the existence of individuals destitute of nationality is a blemish in Municipal as well as in International Law." Holtzendorff on the other hand takes a different view. After all the question of what state a person belongs to must ultimately be decided by the municipal law of the state to which he claims to belong or to which it is alleged that he belongs; and, if no state exists according to the municipal law of which a given individual is its national, it is difficult to see to what state he can belong, how he can be other than a stateless person, or why an international lawyer or any one else should close his eyes to such a possibility.

        

How does the matter stand as regards German municipal law? It is clear on the evidence before me that German municipal law recognizes the condition of a stateless person. Sect. 1 of the Military Law of 1913 (in substituting a new s. 11 under the old law) specifically imposes the burden of military service on stateless persons who reside in Germany [*79] or a protectorate. A treaty between Germany and Denmark was referred to where the expression "staatenlos" appears. In Germany stateless persons must give security for costs in litigation because no country signed on their behalf a certain Hague Convention of 1896. The position of a stateless person is recognized in art. 29 of the German Introductory Statute, 1896. Finally the plaintiff produced an official paper of identity relating to himself and issued by the German police, in which he is described as "staatenlos" or "stateless."

        

How does the matter stand in regard to English municipal law? No authority dealing with the matter was produced to me, beyond the following passage in the judgment of Phillimore L.J. in Ex parte Weber (1): "I have not been able to find nor have we been furnished with any decision as to the case of a man who says that he is of no nationality. Modern national legislation has allowed persons to procure nationality in countries which are not the countries of their nationality of origin; but it is going a step further to say that any country has recognized that a man can shake off his position as a national of the country in which he was born without acquiring the duties and responsibilities of a national of some other country. This applicant might long ago have procured nationalization in this country. He has not done so, and, as at present advised, I think that he must be taken, as far as this country is concerned, to be still retaining his nationality of origin." It will be observed that Phillimore L.J. gives no authority for his statement. In the House of Lords the point was specifically kept open. I lay no stress on the fact that an official publication like the London Gazette describes persons as of no nationality; but s. 4 of the Naturalization Act, 1870, and s. 14 of the British Nationality and Status of Aliens Act, 1914, deserve attention. The latter Act repeals the former, and s. 4 of the 1870 Act is replaced by s. 14 of the 1914 Act. It is only necessary to refer to the latter section. It is in the following terms: "(1.) Any person who by reason of his having been born within His Majesty’s dominions and allegiance or on board a British

        

 

(1) [1916] 1 K. B. 283. [*80]

 

ship is a natural-born British subject, but who at his birth or during his minority became under the law of any foreign state a subject also of that state, and is still such a subject, may, if of full age and not under disability, make a declaration of alienage, and on making the declaration shall cease to be a British subject." Sub-s. 2 provides: "Any person who though born out of His Majesty’s dominions is a natural-born British subject may, if of full age and not under disability, make a declaration of alienage, and on making the declaration shall cease to be a British subject." It will be seen that sub-s. 1 only enables a person of the class mentioned to cease to be a British subject, who at the time of cesser is a subject of some foreign state. On the other hand under sub-s. 2, a person of the class there mentioned can cease to be a British subject even though at the time of cesser he is not a subject of some foreign state. Thus the son born in Germany of a British subject who was born in England is certainly not a German by German law. He is by English law a natural-born British subject. He may on attaining twenty-one (even though he is not a subject of any foreign state) cease to be a British subject. He will thereby no doubt become an alien. He will not thereby become a German. I confess I cannot see what he is, if he is not stateless. Take again the case of an illegitimate child born in Germany of an English mother. The child by German law is not of German nationality, and by English law is not of English nationality. The child must, it seems to me, be stateless. Reference was made by the defendants to s. 1 of the British Nationality and Status of Aliens Act, 1918, which substitutes new ss. 7 and 7a for s. 7 of the Act of 1914. By the new s. 7a, sub-s. 3, it is provided that "where a certificate of naturalization is revoked the former holder thereof shall be regarded as an alien and as a subject of the state to which he belonged at the time the certificate was granted." It was argued that that presupposed that every one must have a state to which he belongs; I do not agree. The provision is not inconsistent with the idea of "statelessness," and is only applicable if the grantee of the [*81] certificate was at the date of the grant a subject of another state. If he were not such a subject, the effect of the revocation would be merely to cause him to be regarded as an alien. Reliance was also placed on s. 2, sub-s. 1, of the Aliens Restriction (Amendment) Act, 1919, as showing that the statute recognizes the advisability of ascribing nationality to aliens whose nationality may be in doubt. This may well be so more particularly where the object of the legislation is to enable restrictions to be imposed on aliens; but the sub-section does not appear to throw any light upon the point under consideration. The Act, however, does afford another instance in which the statute law of this country appears to entertain the possibility of a person being stateless. Sect. 1, sub-s. 2, empowers His Majesty by order in council to make regulations requiring information to be given as to the property of "former aliens" and this with a view to enforce the provisions of any Treaty of Peace concluded or to be concluded with any Power with which His Majesty was at war in the year 1918. The date of the Act is December 23, 1919. The Treaty of Peace with Germany had then been signed, although neither it nor the Treaty of Peace Order had come into force. Sect. 15 of the Act defines the expression "former enemy alien," and in that definition are included both (a) a person who is a subject or citizen of the German Empire or any component state thereof, or of Austria, Hungary, Bulgaria or Turkey; and (b) a person who (having at any time been such subject or citizen) has not changed his allegiance as therein mentioned or been naturalized in any other foreign state or in any British Possession as therein mentioned, and does not retain according to the law of his state of origin the nationality of that state. The definition appears to contemplate, or at all events it will include, the case of a denationalized German who has not acquired any other nationality. The dearth of direct authority in English law upon this point is not to be wondered at. In truth the question of statelessness can have seldom arisen as an important or practical question. The division into subjects and aliens is clear and sufficient for the ordinary purposes of the common [*82] law; and the stateless person would be one of the aliens. But the present case has raised the question, and, upon consideration of the arguments addressed to me and the statutory enactments before referred to, I hold that the condition of a stateless person is not a condition unrecognized by the municipal law of this country.

        

There remains for consideration the contention that the words "German national" in the Treaty of Peace Order, and s. IV. of Part X. of the Treaty of Peace, mean or include a German national according to English law. I confess I have difficulty in following this. Whether a person is a national of a country must be determined by the municipal law of that country. Upon this I think all text writers are agreed. It would be strange were it otherwise. How could the municipal law of England determine that a person is a national of Germany? It might determine that for the purposes of English municipal law a person shall be deemed to be a national of Germany, or shall be treated as if he were a national of Germany; but that would not constitute him a national of Germany, if he were not such according to the municipal law of Germany. In truth there is not and cannot be such an individual as a German national according to English law; and there could be no justification for interpreting or expanding the words "German national" in the manner suggested.

        

In the result the plaintiff is entitled to the following declaration which I make accordingly: Declare that the plaintiff was not on January 10, 1920, a German national within the meaning of the Treaty of Peace Order, 1919, or within the meaning of s. IV. of Part X. of the Treaty of Peace therein mentioned which is set out in the Schedule thereto, and as to which it is thereby ordered that it shall have full force and effect as law.