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why an enemy alien might be denied the right to appear as a plaintiff to enforce rights which but for the war he would be entitled to enforce for his own advantage and to the detriment of English subjects, but “to hold that a (British) subject's right of suit is suspended against an enemy alien would defeat the object and reason of the suspending rule; in short, the effect would be to convert that which during war is a disability, imposed upon an enemy alien because of his hostile character, into a relief from the discharge of his liabilities to British subjects. To allow an action against an enemy alien and to refuse to allow him to appear and defend himself would be opposed to the fundamental principles of justice. 52
Justice Bailhache said:
Prima facie there seems no possible reason why our law should decree an immunity during hostilities to the alien enemy against the payment of just debts or demands due to British or neutral subjects. The rule of law suspending the alien enemy's right of action is based upon public policy, but no considerations of public policy are apparent which would justify preventing the enforcement by a British or neutral subject of a right against the enemy.
Once the conclusion is reached that the alien enemy can be sued, it follows that he can appear and be heard in his defense and may take all such steps as may be deemed necessary for the proper presentment of his defense. If he is brought at the suit of a party before a court of justice he must have the right of submitting his answer to the court. To deny him that right would be to deny him justice and would be quite contrary to the basic principles guiding the King's courts in the administration of justice.
Turning then to the question as to whether an enemy alien who in a lower court may appeal to a higher tribunal, Mr. Justice Bailhache said:
Equally it seems to result that, when sued, if judgment proceed against him, the appellate courts are as much open to him as to any other defendant. It is true that he is the person who may be said in one sense to initiate the proceedings in the appellate court by
52 There is no rule of common law, said the London Solicitors Journal and Weekly Reporter (October 23, 1914, p. 7), which suspends an action in which an alien is a defendant and no rule of common law which prohibits him from appearing and conducting his defense. “Whatever may be the extent of the disability of an alien enemy to sue in the courts of a hostile country,” said the London Times of October 17, 1914, "it is clear that he is liable to be sued, and this carries with it the right to use all means and appliances of defense."
giving the notice of appeal, which is the first necessary step to bring the case before the court, but he is entitled to have his case decided according to law, and if the judge in one of the King's courts has erroneously adjudicated upon it, he is entitled to have recourse to another and an appellate court to have the error rectified. Once he is cited to appear he is entitled to the same opportunities of challenging the correctness of the decision of the judge of first instance or other tribunal as any other defendant.53
The right of an alien enemy to appear as a defendant was affirmed by the court of appeal in the case of Porter v. Freudenberg.54 This was a case in which a British subject brought an action against a German subject to recover rent due on a lease made in 1903. The defendant resided in Berlin but had a branch house in London. “To allow an alien enemy to sue or proceed during war in the civil courts of the King,” said the court, “would be, as we have seen, to give to the enemy the advantage of enforcing his rights by the assistance of the King with whom he is at war. But to allow the alien enemy to be sued or proceeded against during the war is to permit subjects of the King or alien friends to enforce their rights with the assistance of the King against the enemy.” 55
63 Compare also the case of Ingle v. Mannheim Ins. Co., 1 K. B. 227 (1915), and the comment in the Solicitors Journal and Weekly Reporter, November 7, 1914. In this case the King's Bench Division held that the Trading with the Enemy proclamation of October 8, 1914, did not prevent a British subject from receiving money from or suing an enemy alien where the right to be paid or to sue had accrued before the defendant had acquired the status of an enemy alien.
54 Times Law Rep., Vol. 112, p. 313; 1 K. B. 857 (1915) and Solicitors Journal and Weekly Reporter, January 23, 1915, p. 216.
55 Schuster (Effect of War and Moratorium on Commercial Transactions, p. 3) calls attention to one possible practical difficulty which enemy defendants had to face in England, namely the difficulty of obtaining the services of solicitors owing to the fact that there was some doubt as to whether an English solicitor might lawfully defend the case of an enemy alien. The suggestion was made during the prize court hearing in the case of the Möwe that perhaps solicitors were debarred by the Trading with the Enemy Act from defending enemy aliens. Clause 5 of the Act of 1914 forbade British subjects from entering into any commercial, financial or other contracts or obligations with an enemy alien. But the Solicitors Journal and Weekly Reporter of November 7, 1914 (p. 35), expressed the view that the prohibition in question was not in. tended to apply to professional relationships and therefore the hiring of solicitors was no more illegal than the employment of a physician. “We have by this time,” said the editor, "advanced too far to say that an alien enemy is entirely without rights unless that is laid down absolutely, unless, that is, we relapse The rule laid down in the above-mentioned cases that an enemy alien who was sued by a British subject was entitled to appear and defend the action was, however, the subject of criticism by high English authority, on the ground that it was inconsistent with the old doctrine of the suspension and cancellation of contracts, as well as contrary to the reason on which non-intercourse with the enemy is forbidden.” But it appears to be based on good sense and is in harmony with elementary notions of justice.”
into the ea lege doctrine. Aliens must be entitled to legal assistance and we incline to think that the legal profession would fail of its boasted traditions if it refused assistance.” In fact, the difficulty appears not to have been serious, for members of the English bar freely gave advice to enemy aliens. A more serious practical difficulty in suing an enemy was the problem of serving process on him. The English courts met the difficulty to some extent by allowing substituted service of notices on agents in England or Holland where there was reason to believe that knowledge of the proceedings would be transmitted to the principal. Lord Justice Scrutton in 34 Law Quarterly Review, 124. 56 For example, by Baty and Morgan, War: Its Conduct and Legal Results, p. 288. These authors as well as others contend that the authority of the U. S. Supreme Court in the McVeigh case is not applicable in an international war. Moreover, they add, the opinion of the court in that case, so far as it related to the right of an enemy alien to be sued, was obiter dicta, since the defendant was not in fact an enemy alien, the parties being enemies only in a technical sense. Both were in fact citizens of the United States and could not be “kept out of the courts of the United States.” The London Solicitors Journal and Weekly Reporter of January 23, 1915 (p. 212), criticised the decision in Robinson v. Continental Insurance Co. of Mannheim as being “a singular mixture of ancient law and modern ideas” because it held that an enemy alien cannot sue unless he is resident in England and registered or interned or unless he turns himself into an English company, although he may be sued and subject to an exception, may take an appeal to a higher court. Mr. E. G. Roscoe in a letter of October 27, 1914, to the editor of the Solicitors Journal (59:23) ventured the opinion that the ruling in this case was inconsistent with the opinion of Sir William Scott in the case of the Hoop. “I do not say,” Mr. Roscoe adds, “that the principles laid down by Mr. Justice Bailhache are not eminently desirable, but are they actually in accordance with the principles of English law as hitherto laid down?” To this communication the editor replied that Sir William Scott was dealing with the right of an enemy alien to sue as a plaintiff and not as a defendant, and therefore his remarks regarding the incapacity to sue could not be interpreted as denying the right of defense (Ibid., October 31, 1914, p. 20). 57 Compare the Views of Picciotto, article cited, p. 173, and of Lord Justice Scrutton, The War and the Law, 34 Law Quarterly Review, 123.
Practice of the Prize Court in Respect to Enemy Claimants.The question as to the right of a non-resident enemy subject to appear as a claimant in prize proceedings and to defend his claim was passed upon by the President of the British prize court in the case of the Möwe decided on November 9, 1914.” Sir Samuel Evans held that although no legal right to appear and defend existed, he would, in the exercise of the power which belonged to the court to adopt rules of practice, allow enemy claimants to appear and defend any right claimed under the Hague Convention respecting the treatment of enemy merchant vessels found in port at the outbreak of the war. Counsel for the claimants argued that they were not plaintiffs claiming the restitution of the ship, but defendants seeking to avoid condemnation and they cited numerous authorities, English and American, in support of the right of an enemy subject to appear in court as a defendant.” Sir Samuel Evans reviewed at length the practice and jurisprudence during the Crimean, Spanish-American and Russo-Japanese wars, in all of which enemy claimants were allowed to appear in prize proceedings but only because there were special circumstances which pro hac vice suspended their enemy character for the purpose of suing.” In the present case, however, there was no coming pro hac 58 Trehern, British and Colonial Prize Cases, Vol. I, pp. 60 fs. The question had already been raised in the cases of the Chili and the Marie Glaeser, but a ruling on the merits of the question was not necessary to the judgment. 59 Among others, the English cases of Janson v. Dreifontein Consolidated Mines Company (1902), Robinson v. Continental Insurance Company of Mannheim (1914), and the American case of McVeigh v. the United States, 11 Wall. 259. In the argument in the Mönce case, both counsel for the claimant and the Attorney General argued in favor of the right of an enemy alien claimant to appear and defend his claim. The Attorney General even went to the length of suggesting that in case the existing law did not allow such a right, the Government would be prepared to issue an order in council expressly authorizing it. 60 Among the American cases cited in which enemy persons were allowed to appear in prize courts and assert their claims were the Pedro, 157 U. S. 354 (1899), the Guido, 175 U. S. 382 (1899), the Buena Ventura, 175 U. S. 384 (1899), the Panama, 176 U. S. 535 (1900), and the Paquette Habana, 175 U. S. 677
(1900). Among the Japanese cases were the Tetartos, 1909, Hurst & Bray, Russian and Japanese prize cases (Vol. I, p. 166), the Ekaterinoslav, 1905
vice within the King's peace, no suspension of the hostile character and he was satisfied that neither Lord Stowell nor Dr. Lushington would have allowed an enemy owner to appear to assert a claim in a case similar to this.
Nevertheless, permission to an enemy to sue was not a matter of international law but of court practice and he thought the prize court had the inherent power to regulate its own practice unless prohibited by law. Lord Stowell did so from time to time and his right was not questioned.
“A merchant,” said Sir Samuel, “who is a citizen of an enemy country would not unnaturally expect that when the state to which he belongs, and other states with which it may unhappily be at war, have bound themselves by formal and solemn conventions dealing with a state of war, like those formulated at the Hague in 1907, he should have the benefit of the provisions of such international compacts. He might also naturally expect that he would be heard, in cases where his property or interests were affected, as to the effect and results of such compacts upon his individual position."
In view of these considerations and in order “to induce and justify a conviction of fairness, as well as to promote just and right decisions," Sir Samuel announced that he would direct that whenever an enemy subject conceived that he was entitled to any protection, privilege or relief under any of the Hague Conventions of 1907 he would be allowed to appear as a claimant and argue his claim before the court.61
(ibid., II, 1), the Mukden, 1905 (II, 12), the Rossia, 1905 (II, 39), the Argun, 1905 (II, 46), the Manchuria (II, 52), the Lesnik (II, 92), the Kobik (II, 95), the Thalia (II, 116), and the Oriel (II, 534).
61 The British prize court in Egypt adopted the same rule in the case of the Gutenfels (Trehern's Cases I, 102). Judge Cator in his opinion declared the old rule to be a "barbarous one which runs counter to all sense of natural justice and it seems strange that it should be found embodied in the practice of any English prize court. If it is right that we should insist upon hearing a man in his own defense in those courts where the parties of one nation, and the judge may be expected to be quite indifferent as to which suitor should succeed, it seems to me to be still more important that the enemy party should be heard in a prize court when the crown claims condemnation of his ship and the judge's sympathies must be supposed to be in favor of his own country. It is much to be regretted that this question did not occupy the attention of