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.

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."0 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.41 With a few exceptions the only enemy aliens to whom the courts were closed were those residing in enemy territory.2 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.43

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.

had been no invitation to enemy aliens to remain as there had been in 1696 upon the outbreak of the war with France. Nevertheless in the Alciator case the plaintiff had been under a régime of registration similar to that of the recent war. But the court held that the fact of registration was not to be regarded as a license."

46

Writ of Habeas Corpus Denied to Interned Enemy Aliens.-The question whether a writ of habeas corpus could issue to an interned German civilian was raised by the case of Rex v. Supt. of Vine Street Police Station ex parte Liebmann.15 The Crown contended that the applicant being a prisoner of war the writ could not issue. The court held, on the authority of ex parte Weber, that he was an enemy alien, and having regard to the fact that spying had become the hall. mark of German kultur, a person of German origin who had obtained a discharge from his German nationality but resident in the United Kingdom, who in the opinion of the executive is a person hostile thereto and is on that account interned may properly be described as a prisoner and not therefore entitled to the writ.

Turning to the question as to whether the applicant was in the position of a prisoner of war, Mr. Justice Bailhache said:

It is at first sight somewhat startling to be told that a civilian resident of this country, interned by the police on the instructions of the Home Secretary, can be accurately described as a prisoner of war. One generally understands by a prisoner of war a person captured during warlike operations by the naval or military forces of the Crown, or, perhaps, a civilian arrested as a spy. I think, however, that the courts are entitled to take judicial notice of certain notorious facts which may be summarized thus: There are a large number of German subjects in this country. This war is not

44 Compare an editorial in the Law Magazine and Review, for July, 1915, pp. 215 ff., where the recent decisions that an enemy alien who has not been expelled but is subject to internment or registration is in England by license and therefore entitled to the privilege of suing, is severely criticised. See also Baty & Morgan, War; Its Conduct and Legal Results, pp. 254, 269.

451 K. B. 268 (1916).

46 1 K. B. 280 (1916). In this case an application for a writ of habeas corpus by a German residing in England who claimed that he had lost his German nationality by long absence and who was not therefore an enemy alien, was denied on the ground that he had not produced sufficient proof of his loss of nationality. This decision was affirmed by the Court of Appeal and later by the House of Lords, 1 A. C. 421 (1916).

being carried on by naval and military forces only. Reports, rumors, intrigues, play a large part. Methods of communication with the enemy have been entirely altered and largely used. I need only to refer to wireless telegraphy, signalling by lights, and the employment, on a scale hitherto unknown, of carrier pigeons. Spying has become the hall mark of German kultur. In these circumstances a German civilian in this country may be a danger in promoting unrest, suspicion, reports of victory, in communicating intelligence, in assisting the movement of submarines and Zeppelins, a far greater danger, indeed, than a German soldier or sailor.

In a contest with people who consider that the acceptance of hospitality connotes no obligation and that no blow can be foul, it would, I think, be idle to expect the executive to wait for proof of an overt act or for evidence of an evil intent. In my opinion this court is entitled to take judicial cognizance of these matters, and in a question so greatly involving the security of the realm to say that where the Crown in the exercise of its undoubted right and duty to guard the safety of all represents to this court that it has become necessary to restrain the liberty of an alien enemy within the kingdom, and accordingly within the terms of the notice served in this case, to intern such alien enemy as a prisoner of war, he must be regarded for the purpose of a writ of habeas corpus as a prisoner of war.

Inasmuch as practically the entire enemy alien population was interned the effect of this decision was to deprive all enemy aliens with a few exceptions of the benefit of the writ.

Right of a Firm Domiciled in Germany to Sue Denied.-In the case of Re Mehelin Hemcoth, Limited, a firm composed of three partners, all Germans resident and domiciled in Germany and having its principal place of business in Germany, but having a branch house in Manchester, the question was raised as to the right of an enemy company to bring an action in a British court to recover for goods sold and delivered to British subjects. The plaintiffs pleaded that since their Manchester business was a branch house they were entitled, under the proclamation of September 9, 1914, to bring the action. even though they were enemy subjects. Without deciding whether a license issued to an enemy branch house to trade included the right to sue, the court held that there was nothing in the proclamation which enabled the plaintiffs to recover, where otherwise as alien enemies they could not do so. The proclamation, it was said, did not enable an alien enemy to sue in respect of obligations incurred be

fore the war and they were not suing in respect of any transactions authorized by the proclamation."

Right of Enemy Aliens to Defend Actions Against Them.-Regarding the right of an enemy subject to appear and defend an action brought against him by a British subject, there appears to have been little or no judicial authority before the recent war.18 The right of an enemy to defend an action had, however, been affirmed by the United States Supreme Court in the McVeigh case. The question was first raised and disposed of during the recent war in the case of Robinson & Company v. Continental Insurance Company of Mannheim, decided in 1915.50 The pleadings in the suit had been concluded before the outbreak of the war and after the beginning of hostilities it was contended on behalf of the defendants that under the common law all actions between British subjects and enemy aliens were suspended by the outbreak of war and that consequently an enemy alien could not be heard as a defendant. Mr. Justice Bailhache affirmed, however, that this contention was at variance with the decision of Lord Erskine in ex parte Boussmaker 51 where it was held that an enemy alien could appear in bankruptcy proceedings to protect his right to a dividend. There was abundant authority, he said, for the view that an enemy alien could not appear as a plaintiff if objection was made by the defendant, but it did not follow that the converse was true. There were good reasons, he went on to say,

47 Law Times, May 8, 1915, p. 25.

48 Schuster, Effect of War and Moratorium on Commercial Transactions, p. 13. In actions against enemy aliens by British subjects for the enforcement of contracts the defense of alienage on the part of the defendant has long been regarded with disfavor by the English courts even when the suit involved intercourse with the enemy. Lord Kenyon pronounced it an "odious plea" and declared that whoever sets it up must produce the clearest evidence that the defendant is by nationality or domicile an enemy. A case involving this question during the recent war was that of Schmitz v. van der Veen (K. B. Div. 112, T. L. R. 99, 1915), where the court overruled the plea of the defendant that being an enemy alien he could not be made the object of a suit at the instance of a British subject. The plaintiff, it was held, was entitled to recover on a contract made before the war, and there was no common law rule which suspended such contracts. So in the case of Halsey v. Lowenfeld, the King's Bench Division held in 1916 that an action might be maintained against an enemy subject for arrears of rent accruing after the outbreak of war. 1 K. B. 143 (1916). 49 11 Wall. 259. 501 K. B. 155 (1915). 51 13 Ves. 71 (1806).