It will be seen that the doctrine here laid down by the British prize courts is theoretically in accord with the old rule, for it denies the legal right of an enemy subject to appear as a claimant and defend his claim to property in the custody of the prize court. The concession here granted was in fact limited to those only who claimed rights under the Hague Conventions, and even it was accorded as an act of grace on the part of the court and might be withdrawn at any time in the discretion of the judge. The decision therefore did not go to the length to which the King's Bench division and the Court of Appeal went in the cases referred to above. It is submitted that the prize court might have gone further, overruled the ancient doctrine and laid down the broad principle that enemy subjects have a right to be heard not only when they assert claims under the Hague Convention but also for any other reason.

62

Legislation and Practice in the United States.-Section 7, paragraph b, of the Trading with the Enemy Act of October 6, 1917, declared that nothing in the said Act should be deemed to authorize the prosecution of any suit or action at law or in equity in any court "within the United States" by an enemy or an ally of an enemy prior to the end of the war, provided that such person if licensed to do business under the act might prosecute any suit arising solely out of such business transacted in the United States and any enemy or ally of an enemy might defend by counsel any suit or action brought against him. Receipt of notice from the President to the effect that he had reasonable ground to believe that any person was an enemy or an ally of an enemy should be prima facia defense to any one re

the Hague Conference. I have little doubt what the opinion of the Conference would have been, and feel sure that most of the delegates would have been surprised that in a British Prize Court the owner of captured property has no right to present his case against the Crown if he be an alien enemy."

Speaking of the old practice Judge Cator said: "The fact is, the rule is a bad rule, much more to be honored in the breach than in the observance; and if we must acknowledge ourselves to be so far fettered by the dead hand of outworn precedent as to recognize its continued existence, I am, at any rate, determined to permit all such breaches of it as my sense of equity and fair dealing towards the enemy may demand."

62 It is refreshing to find the London Solicitors Journal and Weekly Reporter advocating this view. See the issue of November 14, 1914.

ceiving the same, in any suit or action brought by such person and based on failure to complete or perform since the beginning any contract or other obligation. By section 10, paragraph g, enemy subjects were empowered to bring and prosecute suits in equity against any person other than licensees to enjoin infringements of patents, trade marks, prints, labels and copyrights in the United States, owned or controlled by such persons, provided that no final judgment or decree might be entered in their favor except after thirty days notice to the alien property custodian. The full import of Section 7, paragraph b, is not quite clear. It conferred upon enemy subjects who had licenses to do business in the United States the right to sue in respect to issues arising out of such business but it conferred no such right upon other enemy persons, although it did not expressly prohibit them from suing. Nevertheless, as they are prohibited by a common law rule from bringing actions, express authority to do so would probably be necessary. The section referred to speaks of "any court within the United States," but it may be doubted whether Congress may prohibit an enemy alien from suing in a state court. Two points, however, are clear, namely, that enemy subjects might defend actions brought against them but that they could not bring actions in respect to unperformed contracts against any one in the United States. Several cases involving the right of Germans to sue in the state courts arose in 1917. In the case of Posselt v. D'Espard3 a court of Chancery in New Jersey declined to stay a suit brought by a person erroneously assumed to be a German subject, resident in the United States, and the manager of a corporation, a majority of the stock of which was owned by a German corporation for the preservation of the rights of the complainants as stockholders in a New Jersey Corporation.64

63 100 Atlantic Reporter, 893 (1917).

64 The court said, inter alia, "The solution of the problem now before me, I think, is found in the President's message to Congress, which in view of the nature of its reception by Congress and the action of Congress under it has become the voice of the country; and the President's proclamation declaring a state of war and defining rights of residents, an official act under authority of Congress. German residents who comply with needful regulations and who properly conduct themselves are assured that they will be undisturbed in the

The New York Supreme Court declined to follow the decision of the English House of Lords in the Continental Tyre & Rubber case and held that a New Jersey corporation, a large majority of the shares of which were owned by a German corporation and a German subject resident in Germany, was an entity separate and distinct from its stockholders and was therefore entitled to maintain an action. After reviewing the American cases at length the court reached the conclusion that the decisions were practically unanimous in regarding a corporation as a thing apart from its corporators and that the rule laid down by the House of Lords was not in accord with American precedents. Therefore, a corporation, created under the laws of any one of the States could not be deprived of access to the courts for the protection of its legal rights, notwithstanding the fact that a large majority of the individual stockholders were enemy subjects resident in enemy territory.65

In a suit brought by German subjects resident in Germany to recover money due them by an American firm, before the declaration of war, however, a United States District Court directed the proceedings to be suspended rather than dismissed, until the restoration of peace.

A motion to dismiss a complaint filed by a resident enemy or to stay proceedings was denied by the Supreme Court of New York. There was nothing in the Trading with the Enemy Act, said the Court, which was applicable to the case and there was no evidence that it was the intention of Congress or the President to deny to the plaintiff the exercise of the same civil rights enjoyed by neutral aliens. The Court added:

With only a few exceptions the nations of all the earth both advocate and practice many ameliorations of the acerbities of war. In that endeavor this nation is not backward. No limitation is peaceful pursuit of their lives and occupations and be accorded the consideration due all peaceful and law-abiding persons, except so far as restrictions may be necessary for their own protection and for the safety of the United States. To shut the door of the court in the face of an alien enemy resident here would be a distinct violation of not only the spirit but the letter of this proclamation." 65 Fritz Schultz, Jr., v. Raimes & Co. (1917) 166 N. Y. supp. 567. The leading Federal case upon which the court relied was Bank of U. S. v. Deveaux, 5 Cranch U. S. 61.

66 Plettenberg, Holthaus & Company, v. Kalmon & Company, 241 Fed. Rep. 605.

placed upon the freedom of resident subjects of a foreign State with which we are at war, unless that limitation is deemed necessary to withhold from that enemy the aid or comfort which may advance his cause. Mere technical or arbitrary rules are neither enacted, nor, when found in ancient usage, enforced. How could our own plans be served or those of Germany defeated or impaired by closing against the plaintiff the doors of our courts? While I should be inclined to hold that the plaintiff is entitled to maintain her action. on the ground that within the purview of the Trading with the Enemy Act she is not an alien enemy engaged in trade subject to suspension by the Federal Government, I prefer to deny the motion on the broad ground that the resident subjects of an enemy nation are entitled to invoke the process of our courts so long as they are guilty of no act inconsistent with the temporary allegiance which they hold for this Government.67

There is a large amount of American case law relative to the right of enemy aliens to sue and this may be briefly summarized as follows:68 An enemy subject cannot bring an action in an American court during the continuance of war nor prosecute one instituted before its commencement, but this disability applies only to a non-resident enemy and not to those who are permitted to enter or remain in the United States during the war. "A lawful residence implies protection and a capacity to sue and be sued. ''69 Some state courts have held that where an action has been commenced before the outbreak of war the proceedings are only suspended, whereas a suit commenced after the outbreak of war will be dismissed; others have held that where the plaintiffs become enemy aliens subsequent to the institution of the suit the action should be dismissed without prejudice. The American courts have uniformly held that enemy aliens may be made defendants at the instance of American citizens who are seek

67 Arndt-Ober v. Metropolitan Opera Co., 58 N. Y. Law Jour. 1347 (1918). See also the case of Speidel v. N. Barstow Co., 243 N. Y., 621 (1917).

68 This summary is made mainly from an article entitled "Alien Enemies as Litigants," published in Case and Comment for June, 1917, pp. 93 ff. This article appears to contain an exhaustive examination of the cases decided by the American courts. See also Borchard, Right of Alien Enemies to Sue, Yale Law Journal, 27:105; Huberich, On Trading with the Enemy, pp. 188 ff., and 194 ff., and Mitchell, in the Maine Law Review, November, 1917.

69 Clarke v. Morey, 10 Johns, 69 (1813); and Norddeutsche Ins. Co. v. Dudley, N. Y. Law Jour., January 11, 1918.

ing to protect their property and enforce their rights but where an enemy alien is sued he is entitled to appear by attorney and be heard in his defense.70 But a non-resident enemy alien cannot prosecute a counter claim."1

FRENCH LAW AND PRACTICE.

Early Opinion and Practice.-As to the right of enemy subjects to sue either as plaintiffs or defendants in the courts of France there appears to have been little judicial authority or positive legislation prior to the recent war. There was, however, a decision of the parlement of Douai in 1704 to the effect that a subject of an enemy power could not sue a subject of the King of France, when the latter had by decrees prohibited all relations between his subjects and those of the enemy country. There also appears to have been an "act of government" in 1803 and a decision of the Court of Cassation in 1806 affirming this principle.72

French Legislation of 1914 and 1915.-During the recent war no legislation expressly denying the right to sue was enacted by the French parliament or proclaimed by decree of the government, but those who adopt the view that the right to sue does not exist, either rely upon the legislation and jurisprudence of the first Empire, referred to above, which they say has never been repealed, or upon the terms of the decree of September 27, 1914, prohibiting commercial relations with the enemy and the act of parliament of April 4, 1915, which prescribes penalties for violation of the decree. Article 2 of the decree referred to declared null and void as being contrary to public policy (l'ordre public), every act or contract performed or entered into either in French territory or in a French protectorate,

70 As was pointed out above this rule was adopted by the United States Supreme Court in the case of McVeigh v. the United States, 11 Wall. 259 (1870), and it has been followed by the State courts in many cases. See the cases cited in an article in 3 Va. Law Register, 1917, p. 102, n. 45.

71 This was also the decision of the King's Bench Division in the case of Robinson v. Continental Ins. Co., 31 Times Law Reports 20 (1915) referred to above.

72 On the French practice and doctrine, see two valuable articles by Professor Jules Valéry, of Montpellier, in the Rev. Gén, de Droit Int. Pub., 1916, pp. 379 ff. and in Clunet's Journal de Droit Int. Privé, 1915, pp. 1009 ff.