standi in Persona § 100a. Formerly the rule prevailed everywhere that judicio on an enemy subject had no persona standi in judicio, and Enemy was, therefore, ipso facto by the outbreak of war, preTerritory. vented from either taking, or defending, proceedings in the courts. This rule dated from the time when war was considered such a condition between belligerents as justified hostilities by all the subjects of one belligerent against all the subjects of the other, the killing of all enemy subjects irrespective of sex and age, and, at any rate, the confiscation of all private enemy property. War in those times used to put enemy subjects entirely ex lege, and it was only a logical consequence from this principle that enemy subjects could not sustain persona standi in judicio. Since the rule that enemy subjects are entirely ex lege has everywhere vanished, the rule that they might not take or defend proceedings in the courts had in many countries, such as Austria-Hungary, Germany, Holland, and Italy, likewise vanished before the World War. But in Great Britain and the United States of America 1 enemy subjects were still prevented from taking legal proceedings, although there were exceptions to the general rule. 1 Publicists, however, were debating whether these two States had not incurred an obligation to alter their Municipal Law in consequence of Article 23(h) of the Hague Regulations, by which it is forbidden' to declare extinguished, suspended, or unenforceable in a court of law the rights and rights of action of the nationals of the adverse party.' Great Britain officially repudiated such an interpretation of this article, pointing out that neither the actual words used, nor their position among regulations for the operations of armies in the field, nor the circumstances of their origin, would justify such a construction.3 1 In strict law also in France. 2 The leading case was The Hoop, (1799) 1 C. Rob. 196. 3 See above, vol. i. § 554 (11). The repudiation was contained in a letter addressed to the author and So the question stood until the eve of the World War, when the German Government made it known that ' in view of the rule of English law' it would suspend 'the enforcement of any British demands against Germans' until reciprocity was granted.1 No arrangement was made; Great Britain followed her earlier practice; 2 and it is very doubtful whether alien enemies in many other belligerent States enjoyed greater procedural capacity than those in the United Kingdom.3 In fact, the exceptions to the English rule were, or became, such, that the disability to sue attached practically to non-resident alien enemies alone, and not even to them in all cases. For, in the first place, an enemy subject resident in an allied or neutral country, or having a licence, 5 was not debarred from suing; and such a licence was implied, in the case of an enemy subject resident in the United Kingdom, from mere compliance with the obligatory registration order, and was not lost through internment in pursuance of general policy as a civilian prisoner of war. Secondly, an enemy alien, wherever resident, was permitted to appear in the Prize Court as a claimant whenever he believed himself entitled to any protection, privilege, or relief under any of the Hague Conventions of 1907.' at once made public by him. See 1 See [1915] 1 K.B. at p. 879. And there were other 2 See Porter v. Freudenberg, [1915] 1 K.B. 857, and M'Nair, Legal Effects of War (1920), pp. 26-58. 3 See a discussion of the practice of the United States of America, France, and Germany in Garner, i. $$ 91-98. 4 This seems correct in view of In re Mary, Duchess of Sutherland, (1915) 31 T.L. R. 394. The Hoop, (1799) 1 C. Rob. 196, at p. 201. Princess Thurn und Taxis v. Moffit, [1915] 1 Ch. 58. 'Schaffenius v. Goldberg, [1916] 1 K.B. 284. 8 The Möwe, [1915] P. 1, at p. 15. exceptions. Even where an enemy subject does fall under a disability to sue during war, his right of action is not extinguished, but will revive with the return of peace; and even if the Treaty of Peace does not so expressly provide, the statute of limitations probably does not run against him during the war.3 Moreover, an alien enemy, whether or not he can be plaintiff, can always be made defendant, and by the Legal Proceedings against Enemies Act, 1915,5 Parliament provided a special means for serving a writ on an alien enemy outside the jurisdiction in a certain class of proceedings. § 101. Before the World War, following Bynkershoek, most British and American writers and cases, 1 Thus a non-resident alien enemy could be joined as a nominal plaintiff for the purpose of pleading (Rodriguez v. Speyer Bros., [1919] A.C. 59), and probably an enemy soldier or sailor who had been captured and made a prisoner of war could sue, on the authority of the old case of Maria v. Hall, (1800) 2 B. and P. 236, on a contract for wages. It was stated in the last edition of this book, on the authority of Shepeler v. Durant, (1854) 14 C.B. 582, that if a defendant obtained an opportunity to plead, and if subsequently war broke out with the country of the plaintiff, the defendant may not plead that the plaintiff is prevented from suing; but see now Hellfeld v. Rechnitzer, (1914) The Times, December 11, 1914. It was also stated, on the authority of Ex parte Boussmaker, (1806) 13 Ves. 71, that an alien enemy could prove for a debt in bankruptcy; but this is no longer the law, unless he is relieved from his disability on other grounds; Re Wilson, (1915) 84 L.J.K.B. 1893. It was also said, on the authority of Janson v. Driefontein Consolidated Mines Limited, [1902] A.C. 484, that a defendant might waive the plea of an alien enemy. But it is probable that this would no longer be allowed. See the dictum of Bailhache J. in Robin son and Co. v. Continental Insurance Co., [1915] 1 K.B. 155 at p. 159. 2 By the Treaties of Peace at the end of the World War it is stipulated that all periods of prescription, or limitation of right of action. shall be treated in so far as regards relations between enemies, as having been suspended for the duration of the War. They shall begin to run again at earliest three months after the coming into force of the treaty.' See Treaty of Peace with Germany, Article 300. 3 The point is not settled, for the obiter dictum in De Wahl v. Braune, (1856) 25 L.J. (N.S.) Ex. 343, is not decisive, although Anson, Principles of the English Law of Contract (11th ed. 1906), p. 122, and other writers accept it as decisive. For cases arising out of the World War, the above-mentioned provision of the Treaties of Peace has received statutory force. See also the American case of Hanger v. Abbot, (1867) 6 Wall. 532, and Gregory, The Effect of War on the Operation of Statutes of Limitation (1915). 4 Robinson and Co. v. Continental Insurance Co., [1915] 1 K.B. 155. 55 Geo. v. c. 36. • Quaestiones Juris publici, i. c. 3: 'quamvis autem nulla specialis sit commerciorum prohibitio ipso tamen jure belli commercia esse vetita,' 1 course, between of Belli and also some French 1 and German 2 writers, asserted Interthe existence of a rule of International Law that all especially intercourse, and especially trading, was ipso facto by Trading, the outbreak of war prohibited between the subjects of Subjects the belligerents, unless it was permitted under the custom gerents. of war (as, for instance, ransom bills), or was allowed under special licences, and that all contracts concluded between the subjects of the belligerents before the outbreak of war become extinct or suspended. On the other hand, most German, French, and Italian writers denied the existence of such a rule, but asserted the existence of another, according to which belligerents were empowered to prohibit by special orders all trade between their own and enemy subjects. These assertions were remnants of the time when the distinction between International and Municipal Law was not, or was not clearly, drawn. International Law, being a law for the conduct of States only and exclusively, has nothing to do directly with the conduct of private individuals, and both assertions are, therefore, nowadays untenable. Their place must be taken by the statement that, States being sovereign, and the outbreak of war bringing the peaceful relations between belligerents to an end, it is within the competence of every State to enact by its Municipal Law such rules as it pleases concerning intercourse, and especially trading, between its own and enemy subjects. And if we look at the Municipal Laws of the several countries, as they stood before the World War, we find 1 For instance, Pillet, p. 74, and Mérignhac, iiia. p. 107. * For instance, Geffcken in his note 4 to Heffter, p. 265. * See above, vol. i. § 20. But in spite of everything that speaks against it, Sir S. Evans, in The Panariellos, (1915) 1 B. and C. P. C. 195, again pronounced that it is a rule of International Law that ipso facto by the outbreak of war all that they have to be divided into two groups. To the one group belonged those States-such as AustriaHungary, Germany, Holland, and Italy-whose Governments were empowered by their Municipal Laws to prohibit by special order all trading with enemy subjects at the outbreak of war. In these countries trade with enemy subjects was permitted to continue after the outbreak of war unless special prohibitive orders were issued. To the other group belonged those Statessuch as Great Britain, the United States of America, and France—whose Municipal Laws declared trade and intercourse with enemy subjects ipso facto by the outbreak of war prohibited, but empowered the Governments to allow by special licence all or certain kinds of such trade. In Great Britain 1 and the United States of America, it had been, since the end of the eighteenth century, an absolutely settled 2 rule of the Common Law that, certain cases excepted, all intercourse,3 and especially trading, with alien enemies became ipso facto by the outbreak of war illegal, unless allowed by special licence. 1 When the World War came, the belligerents by statute or decree supplemented or varied their Municipal Law 1 See Porter v. Freudenberg, [1915] 1 K.B. 857, and besides the textbooks quoted above at the commencement of § 97, Pennant, Chadwick, and Gregory in the Law Quarterly Review, xviii. (1902), pp. 289-296, xx. (1904), pp. 167-185, xxv. (1909), pp. 297-316; Bentwich, The Law of Private Property in War (1907), pp. 47-61; Phillipson, The Effect of War on Contracts (1909); Latifi, Effects of War on Property (1909), pp. 5058; Markovitch, Des Effets de la guerre sur les Contrats entre Particuliers (1912); Schuster and Strupp in Z.I., xxiii. (1913), pt. ii. pp. 21, 118; Scott in the Law Quarterly Review, xxx. (1914), pp. 77-90, and xxxi. (1915), pp. 30-49; M'Nair, Legal Effects of War (1920), pp. 99106. 2 Whereas the Admiralty Court did at all times, the Common Law Courts did not during the eighteenth century hold trading with enemy subjects to be illegal, at any rate not in so far as insurance of enemy vessels and goods against capture on the part of English cruisers was concerned; see Henkle v. London Exchange Assurance Co., (1749) 1 Ves. 320; Planche v. Fletcher, (1779) 1 Dougl. 251; Lavabre v. Wilson, (1779) 1 Dougl. 284; Gist v. Mason, (1786) 1 T. R. 84. 3 That a British subject who, after the outbreak of war, becomes naturalised in the enemy country commits an act of treason was decided in R. v. Lynch, [1903] 1 K.B. 444. See above, vol. i. § 306. |