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That enemy aliens had no persona standi in judicio was also the view of the council of the Order of Advocates of the Court of Paris 79 and of the Chamber of Solicitors (Avoués) of the tribunal of the Seine.80

79 Resolution adopted November 30, 1915, Text in 43 Clunet, pp. 12 ff.

80 Reulos, p. 215. One of the arguments advanced in support of the view that enemy aliens have no capacity to bring actions in the courts was that the employment of an attorney would involve the entering into contractual relations between the attorney and the enemy client, which was in effect forbidden by the decree of September 27. Compare Courtois and Valéry in 42 Clunet, pp. 511 and 1009. The resolution of the Council of the Order of Advocates referred to above declared that inasmuch as Germany had prohibited "all relations" with enemy subjects, it was the duty of the French bar to set an example of patriotism by refusing to take the cases of German suitors. No advocate of the Court of Paris, it was said, could advise or defend a subject of an enemy power, unless he had been authorized by the batonnier to do so, and this was the view of the tribunals of the Seine and of Marseilles in the cases referred to above. The contention that taking the case of an enemy client was a "contract" forbidden by the decree of September 27, was, however, vigorously attacked by Prof. Barthélemy (L'Accés des Sujets Ennemis aux Tribunaux Français, 43 Clunet, p. 1487) and by M. Clunet (Concours professionnelle des advocats aux Sujets Ennemis et le Barreau de Paris, 43 Clunet, pp. 14-18). Such an interpretation, says Barthélemy, is "purely literary, pharisaic, judaic, contrary to the intention of the legislature and in effect leads to the infliction of a sort of civil death upon enemy subjects by depriving them of their judicial personality." M. Clunet adds that enemy subjects have a right under international law and the municipal law of France to retain the services of members of the bar. He cites a number of cases in which the courts had upheld the right of enemy subjects to employ counsel and the right was affirmed by the fourth chamber of the Court of Appeal of Paris on April 20, 1916. The Court of Cassation (November 19, 1914) appears also to have admitted the right. President Monier of the tribunal of the Seine in the case referred to above, however, took occasion to say that "it was to the honor of the Paris solicitors that no one had claimed the right to defend a German" (43 Clunet, 1308). This tribunal, as well as those of Marseilles (44 Clunet, 241) and Besançon (ibid., p. 248), held that the decree of September 27 prohibited all juridical as well as commercial relations with enemy subjects and that the latter could not therefore retain an attorney. A German writer, Dr. Haber, in the Juristische Wochenschrift of April 15, 1916 (Fr. trans. in 44 Clunet, 448 ff.) contrasting the German and French practice, remarks that if the decree of September 27 prohibited a German from hiring a French lawyer, it prohibited him from buying food or clothes from a Frenchman. M. Valéry (42 Clunet, 1009 ff.) suggested that one way out of the difficulty would be to allow enemy subjects to choose a curator ad hoc to represent them before the courts. The matter not having been determined by legislation it was left to the courts to deal with the question whenever it arose, each according to its own individual opinion.

The Right to Sue Defended by High French Authority.-The decision of the tribunal of the Seine and the doctrine of Valéry, Courtois, and others, that enemy subjects have no standing in the courts was vigorously attacked by a number of French jurists, among whom were Renault, Weiss, Clunet and Barthélemy. Professor Barthélemy in an able discussion of the question81 asserts that the old doctrine enunciated by the Parlement of Douai in 1704 is not in accord with modern French law or practice. Modern French law, on the contrary, he says, is in favor of the right of enemy subjects to sue in the courts of France and in fact this right was recognized throughout the nineteenth century.8

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The modern theory, he argues, is that war is a contest between the armed forces of states and not a struggle between peoples. Noncombatant subjects of the contesting powers are not at war with one another and, he adds, it is the duty of the French courts "to preserve in the midst of the present storm the small flame which still burns at the end of the taper of international law.' No argument, he says, can be drawn today from the principle of the civil code, which was hostile to the rights of foreigners; its doctrine is out of date, the principle of modern law being that enemy subjects must be treated as ordinary aliens are treated, subject to the precautions necessary to protect the state against injury. The state may prohibit its own nationals from entering into new juridical relations with enemy subjects and it may modify old rules whenever those relations would have the effect of increasing the resources or strength of the enemy, but to close the courts to enemy subjects and deny them the protection of the law is not justified by considerations of national defense. The purpose of judicial actions is merely to determine juridical situations; if the result of a suit in a particular case is a judgment in favor of an enemy subject and if the payment of the sum recovered would be prejudicial to the national interests, the govern

81 L'Accés des Sujets Ennemis aux Tribunaux Français in Clunet's Journal, T. 43, pp. 1473-1504.

82 In support of this statement M. Barthélemy cites Merlin, Répertoire, Sub Verbo, Guerre; Massé, Le Droit Commerciale, Vol. I, p. 128 and Nys, Le Droit Int., Vol. III, p. 69.

83 Ibid., p. 1480.

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ment has only to suspend the execution of the judgment and thus protect the country against possible injury. That is permissible but there is no sound reason for refusing to an enemy subject the privilege of having his legal rights adjudicated and determined by the courts. The power of the courts, he adds, to suspend or extinguish the legal rights of enemy subjects was forbidden by clause 23h of the fourth Hague Convention of 1907 to which France was a party, and while Germany had not strictly conformed her conduct to its provisions, she had not, as many Frenchmen seem to have assumed, closed her courts to French nationals residing in the German Empire but only to those domiciled outside German territory, and even these were allowed to sue with the permission of the Chancellor. Moreover the German courts were open for actions arising in connection with enemy branch houses and establishments, when the principal establishments were situated in Germany.

President Monier's contention that the prohibition laid down in clause 23h was not binding upon the French tribunals since it had been overridden by the terms of the decree of September 27 was extraordinary and unwarranted. The prohibitions of the decree of September 27 had not in fact modified the rule laid down in clause 23h nor had there been any intention so to do. That decree had reference only to commercial agreements or acts, and not to such relations as are involved in the bringing of judicial actions, including the employment of solicitors for the purpose of prosecuting a suit or defending an action. If the right of defense were allowed to an enemy subject who had committed a crime against a Frenchman, as it had in fact been done, and yet an innocent and unoffending German were denied the right to appear as a plaintiff against one who had committed a wrong against him, or to resort to the courts for the purpose of enforcing the terms of an unobjectionable contract, it would, as M. Barthélemy remarks, be a strange contradiction indeed. Finally, he pointed out that English practice was less rigorous than that followed

84 M. Reulos (Manuel des Séquestres, p. 216) remarks, however, that the theory that an enemy alien shall be permitted to maintain an action in the court, but in case he obtains a favorable judgment, its execution may be suspended, rests on a subtle distinction and that in practice the right would be of no value to the enemy litigant.

by some of the French courts, for in England interned enemy subjects -and this included practically the whole enemy population-were allowed access to the courts both as plaintiffs and defendants.85

This liberal and enlightened view, highly creditable to the distinguished jurist who enunciated it, was adopted by M. Edouard Clunet, the learned editor of the Journal du Droit International Privé.86 M. Clunet, like M. Barthélemy, attacked the old doctrine laid down by the Parlement of Douai as being contrary to the fundamental theory of modern law. He admits that the right of enemy subjects to sue might be abrogated by statute, yet it had never been done by France during any of the wars of the nineteenth century to which she was a party87 and it was not the intention of the decree of September 27, 1914, to do so. Like M. Barthélemy, he holds that the right to sue was guaranteed by clause 23h of the Fourth Hague Convention of 1907, and without answering the question which he himself raises as to whether the French legislature could modify the rule embodied in the Hague Conference, he was firmly of the opinion that it had not in fact done so. Finally, he pointed out that no danger to the national interests would result from the opening of the courts to alien enemies, because the government was still free to suspend the execution of any judgment or the enforcement of any decision the execution or enforcement of which would be detrimental or dangerous to the country.88

The Right to Sue Affirmed by Some French Courts.-In a number of cases-in fact in the majority of those in which the question was raised-the French tribunals and courts upheld the right of

85 The French courts, which closed their doors to German subjects sometimes, however, showed more consideration for enemy aliens of other races. Thus a Bulgarian who had a permis de séjour was allowed to bring an action (Trib. of Seine, March 13, 1917, 44 Clunet, 1481), and so was an Alsatian of French origin who was provided with a tricolor card (ibid., T. 44, p. 1071).

86 See his article entitled Les Sujets Ennemis Devant les Tribunaux Français Jour. du Dr. Int., T. 43, pp. 1089-94.

87 As authority on this point he quotes Massé Le Droit Commerciale, Vol.. I, p. 128.

88 For a German criticism of the French doctrine and practice, see an article by Dr. Karl Hirschland in the Juristische Wochenschrift, September 15, 1916. French text in 44 Clunet, pp. 87 ff. See also an article by Dr. Haber of Leipzig, in the same publication, April 15, 1916 (French trans. in 44 Clunet, pp. 448 ff.).

enemy subjects to sue both as plaintiffs and defendants.89 The Council of Prizes also allowed enemy claimants to appear and defend their claims to ships and goods which were the object of prize proceedings. These decisions, so favorable to the rights of enemy aliens, however, provoked considerable criticism in France and the question was taken to the Court of Appeal of Paris, the 4th Chamber of which on April 20, 1916, rendered a notable decision upholding the right of enemy aliens to sue in the courts of France.90 "This right," said the Court of Appeal, "must be considered to be one of the natural rights which foreigners enjoy in France, so long as there is no express provision to the contrary in the municipal law or international conventions." It was a right that had been secured to enemy aliens by Article 23(h) of the Fourth Hague Convention and it had not been abrogated by any law or decree of the French Government.

The decree of September 27, 1914, as every exceptional law which

89 See especially the decision of the 10th Chamber of the Tribunal of the Seine in the case of Gieb Cie. Gén, des Voitures, January 9, 1915 (42 Clunet, pp. 62 ff. and 509 ff.); the decision of the same tribunal in the case of Doyen, Orenstein and Kuppel (43 Clunet, p. 974); and the decision of the Court of Appeal of Rouen, May 17, 1915 (ibid., p. 1095); of the tribunal of Alger, July 22, 1915 (ibid., p. 903); of the tribunal of Epinal, August 27, 1915 (ibid., p. 262); of the tribunal of Nice, April 20, 1916 (ibid., p. 1311); and the Court of Appeal of Aix, October 6, 1916 (44 Clunet, p. 717). The Court of Appeal of Alger in the important case of the Vulcan Coal Company decided on July 22, 1915, declared that "according to a principle of the law of nations, belligerent states alone are enemies, not the citizens thereof; consequently, the nationals of each such state have free access to the courts of the enemy country." (Text in Clunet, T. 42, pp. 903 ff.)

As to decisions affirming the right to sue, see the article of M. Clunet, Les Sujets Ennemis, etc., Clunet's Journal, T. 43, pp. 1089 ff., and the article of Barthélemy, cited above, 43 Clunet, pp. 147 ff.

90 Campagnie Bulgaria v. Olivier. Text in Phily. Jurisprudence Speciale, Pt. III, pp. 749 ff.; 43 Clunet, pp. 380 ff., and Troimaux, pp. 186 ff. See also 43 Clunet, p. 1001. A history of this interesting case may be found in Troimaux, Séquestres et Séquestrés, pp. 163 ff. The case involved the right of an enemy insurance company to appeal from the decision of a tribunal to the Cour d'Appel. The Avocat Général, M. Godefroy, made a strong argument in favor of the right of enemy aliens to plead in the French courts, on grounds of justice and French precedents. There could be no danger, he contended, in allowing enemy subjects to exercise this right, for if they obtained a judgment the execution of which would in any way prejudice the national defense the government had the right to suspend execution.

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