paragraph was intended to make particularly forbidden by the solemn contract of all the States which ratified the Hague Convention of 1907. According to eminent jurists, the occupying military power is forbidden, as a general rule, to vary or suspend laws affecting property and private personal relations.29 This article 23 (h) has now enacted that, whatever else the occupying military power may order in the territory of the enemy which it domiciles, it shall not henceforth declare that the right of the subjects of the enemy to institute legal proceedings in the courts of that territory is abolished, suspended, or inadmissible. If this be its true force, the enactment as an international compact is not only of high value, but it has been inserted quite naturally and appositively in the position in the section and chapter of the Annex to the convention which it occupies.

The court then referred to the fact that

On the eve of the outbreak of the war, the German Ambassador in London addressed a communication to the Foreign Office to this effect: "In view of the rule of English law, the German Government will suspend the enforcement of any British demands against Germans unless the Imperial Government receives within twentyfour hours an undertaking as to the continued enforceability of German demands against Englishmen." No arrangement, said the court, was arrived at. We refer to these two incidents not because either of them can affect our judgment on the question of the interpretation of Article 23 (h), but because it is right that it should be made quite clear to everyone that as early as the spring of 1911 the view of the British Government as to its true interpretation was made public to the world, and that the situation was perfectly well understood by the German Government.30

Right to Sue as Plaintiffs Affirmed. The decision in Porter v. Freudenberg, however, involved only the interpretation of a clause in the Hague convention. It did not affirm that the British courts were in fact closed to enemy aliens under all circumstances. There were at the time three classes of such persons in England: (1) prisoners of war in the strict sense of the term; (2) prisoners of war in a wider sense including those who were residents or who were temporarily sojourning there at the beginning of the war and who had been imprisoned for one reason or another, and (3) interned

29 Here he quoted Hall, International Law, 6th ed., p. 465.

30 A South African Court adopted the same view of the meaning of the article. Labuschagne v. Maarburger, So. Afr. L. R. (1915), Cape 423.

civilians. The Home Secretary stated in the House of Commons on November 26, 1914, that although all three classes were prisoners of war, the third class were in a different position from those belonging to the other two classes.31 They were voluntarily in England by license of the Crown and were entitled to the protection of the law even though they were prisoners of war. They belonged to the category of persons referred to in the case of Wells v. Williams as being under the protection of the Crown and were therefore entitled to bring actions in the courts. On the basis of this distinction the Chancery Division in October, 1914, ruled that a Hungarian princess residing in England during the war and having properly registered in accordance with the aliens restrictions act was, although an enemy subject, entitled to bring an action for an injunction to restrain the defendant from continuing to publish certain libelous matter against her.

After adverting to the fact that there appeared to be a general impression that enemy aliens were not entitled to any relief at law in the courts of the country, Mr. Justice Sargent stated that the effect of registration was equivalent to a license to remain in the country; in fact it was a command to remain there. The law, he declared, had been correctly stated by Hall,32 who says:

When persons are allowed to remain either for a specified time after the commencement of the war or during good behavior they are exonerated from the liabilities of enemies for such time as they, in fact stay as they are placed in the same position as other foreigners, except that they cannot carry on a direct trade in their own country or other enemy vessels with the enemy country.

Inasmuch, therefore, as the plaintiff is coming to insist on a right which is individual to herself, she has, in my opinion, by virtue of her registration and by virtue of the permission thereby granted her to reside in this country a clear right to enforce that right in the courts of this country, notwithstanding the existence of the state. of war.3 33

31 Interned Alien Enemies, Law Quarterly Review, April, 1915, p. 162. 32 International Law, 6th ed., p. 388.

33 Princess Thurn and Taxis v. Moffitt, 1 ch. 58 (1915). The Irish and Scotch Courts adopted this view in several cases. See Trotter, op. cit., pp. 122124. So did the courts of Canada. See especially the case of Viola v. McKenzie, Mann & Co. (1915), 24 Quebec B. R. 31; others are cited by Borchard in Yale Law Journal, 27:107, and by Huberich, op. cit., p. 200.

In the above-mentioned case the plaintiff was not an interned prisoner of war. Her position was therefore somewhat different from that of the plaintiff in the case of Schaffenius v. Goldbergs where the plaintiff was an interned civilian prisoner who had long resided in England and who had duly registered under the Aliens Restriction Act. In the latter case the question was presented to the Chancery Division whether the internment as a prisoner, of an enemy alien, operated to revoke the license to remain in the country-such license being implied by registration under the Aliens Restriction Act-and therefore to deprive him of the protection of the Crown. The court held that internment had no such effect, but on the contrary, rather strengthened the license; consequently the plaintiff was entitled to bring an action to enforce a contract entered into between him and a British subject after the internment of the plaintiff.35 After adverting to the recent decision in the case of the Duchess of Sutherland36 where it was held that an enemy alien resident in an allied or neutral country could sue in a British court the Court of Appeal said it followed, a fortiori, that such a person, if resident in England, and especially if interned, could equally maintain an action. "In a case like the present," the Court said, "where the plaintiff is effectually prevented from leaving this country, there is no reason of state or public policy why the principle just alluded to should not be given full effect. The case would be quite different if the plaintiff were to remove to enemy territory. He would then become an enemy in the full sense, no longer able for the duration of the war to enforce his civil rights, or sue, or proceed in the civil courts of the realm. ''37

The argument advanced by the defendant that internment was equivalent to the revocation of the license to remain, which was implied by the requirement of registration, Mr. Justice Younger held

34 1 K. B. 284 (1916), and Solicitors Journal and Weekly Reporter, 60:8. 35 Compare the case of Nordman v. Rayner, 33 T. L. R. 87 (1916), which was also a case of "innocent" internment.

36 31 L. T. R. 248.

37 The case would also probably have been different if it had not been a case of "innocent" internment, that is, if the plaintiff had been interned on account of some overt hostile act. Compare McNair, Alien Enemy Litigants, 34 Law Quarterly Review, 135.

to be inadmissible. He then referred to the decision in the case of the Princess Thurn and Taxis v. Moffitt where it was said that the permission to remain really amounted to a command not to depart without special leave, from which it was clear more than ever that internment was merely a further security that the command would be obeyed. In that case the plaintiff was not interned as a prisoner of war, though she was registered. If she was allowed to bring an action there was no reason for denying the privilege to an interned enemy alien. In short, internment did not alter the position of a registered alien. The danger of allowing an enemy alien to sue would, if anything, be less when he was interned than if left at large.

It is true in a very real sense, said the court, that the plaintiff is a prisoner of war,38 but it would indeed be strange if that circumstance, without more, should have the extraordinary effect upon his rights attributed to it. It is common knowledge amongst us that the internment of a civilian enemy does not necessarily connote any overt hostile attitude on his part.3

39

Effect of the Decision.-The decision in Schaffenius v. Goldberg marked a very important relaxation from the rigor of the old rule and was strongly approved by fair-minded persons in England. It was in accord with the most elementary notions of justice and humanity. So long as enemy subjects were allowed to remain in England it was necessary to allow them legal means of enforcing the payment of debts due them, to say nothing of other contracts. When they were interned in concentration camps and their property and business placed in the hands of custodians and controllers it would have been a gross hardship to deprive them of the legal remedy of obtaining the necessary means of subsistence. In consequence of the internment of practically the entire enemy alien population the effect of the decision was to open the English courts to the great mass

38 The Divisional Court in the Case of Rex v. Liebmann had held that the internment of a civilian of enemy nationality made him a prisoner of war.

39 Upon appeal the view and reasoning of the Divisional Court were affirmed by the Court of Appeals.

40 See, e.g., the London Solicitors Journal and Weekly Reporter, Vol. 59, p. 761. See also the favorable comment by a French writer, in 43 Clunet, pp. 435 ff.

of enemy subjects left in England. The rule thus laid down was followed by the courts in other similar cases.11 With a few exceptions the only enemy aliens to whom the courts were closed were those residing in enemy territory.12 The Court of Appeal even held that a company registered in England, even if all its shareholders except one were enemy subjects resident in enemy territory, could maintain an action in an English court, but this holding was overruled by the House of Lords.48

Nevertheless, the right of action thus recognized was contested by high legal authority. It was asserted, for example, that the case of Wells v. Williams, upon which the recent decisions were mainly based, was not strictly an analogous case. That case involved the right of a French subject who came into England during the war between England and France without a safe conduct. Yet he came with the permission of the King and with the promise of his protection, whereas in the recent cases the plaintiffs had not been invited to come and no express promise of protection had been made. If there was any such promise it existed only by the broadest implication.

It was also pointed out that the decisions were not in accord with the later cases of Alciator v. Smith (1812) and of Alcinous v. Nigreu (1854) in both of which enemy aliens were denied the right to sue in British courts. At the outbreak of the wars of 1812 and 1854 there

41 For example, in the case of Gow & Co. v. The Bank of Scotland. See the Law Times of October 2, 1915. Other cases are cited in Huberich, p. 209. In the case of Schaffenius v. Goldberg the contract in question was entered into after the outbreak of the war. In the case of Mayer v. Finksibler it was held that a contract entered into between two parties before the outbreak of the war, one of whom was subsequently interned as an enemy alien, was unaffected, and the latter's right to sue for its enforcement remained. Picciotto, article cited, p. 169.

42 Persons voluntarily residing in enemy territory were not allowed to bring actions in the English courts. See the case of Scotland v. South African Territories, Ltd., Law Times, 142:366 (1917).

43 Continental Tyre & Rubber Co. v. Daimler. 1 K. B. 893 and 2 A. C. 307 (1916). The High Court of Australia held, in the case of Welsbach Light Co. v. Commonwealth, 22 Com. L. R. 268 (1916), that domestic corporations controlled by enemy directors or shareholders were enemies and could not therefore sue; but in Amorduct Mfg. Co. v. Defries & Co., 31 T. L. R. 69 (1914), it was held that a company registered in England might sue, although nearly all of the shares were held by enemy aliens.