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.

introduces new principles, must, said the court, be strictly interpreted and in the light of existing laws and general principles. It was, as clearly appeared from the report on which it was based, designed to prohibit only commercial relations with the enemy and was not intended to interdict so-called civil agreements or acts. A distinction was made by the court between the enjoyment and the exercise of a right; an enemy alien might therefore be permitted to have his rights determined judicially even when, for reasons of public policy, he might be temporarily refused the benefit of the judgment recovered."1 There were no considerations of public order or national defense why the legal rights of enemy subjects should not be determined by the courts even if it were deemed expedient to suspend during the war the enforcement of them. This decision was undoubtedly in harmony with the spirit of modern law and liberal practice and it was strongly approved by jurists like Renault, Weiss, Barthélemy and Clunet.92 It was, however, the object of much criticism in and out of parliament and a bill was promptly introduced in the Chamber of Deputies, the purpose of which was to overrule the decision. The bill passed the Chamber but it appears never to have received the approval of the Senate. The right of enemy subjects to sue therefore remained to be determined by the courts in each particular case as it arose. Some have followed one rule, some another. As yet the Court of Cassation

91 President Monier, of the Tribunal of the Seine, in his decision of May 18, 1916, referred to above, asserted that the distinction between the enjoyment and the exercise of a right and that the former might be preserved while the latter was suspended, was illogical. Such a distinction, he said, was not authorized but, on the contrary, was repudiated by the texts and rested on a confusion of ideas. Barthélemy and Clunet while supporting the right to sue nevertheless criticise the distinction (Clunet, T. 43, p. 1094).

92 Clunet remarks that it was "irreproachable."

93 See, for example, the criticism of Troimaux, op. cit., pp. 171 ff., who pronounced it "detestable," contrary to French precedent and doctrine, in violation of the decree of September 27, and unjustified in view of German practice in respect to the right of French nationals to sue in German courts. See also Théry, Recevabilité des Sujets Ennemis à Ester en Justice en France (44 Clunet, pp. 480 ff.), who ridicules the proposition that the privilege of access to the courts is a "natural right."

94 It appears that in some instances the courts hesitated to open their doors to enemy litigants for fear of exposing themselves to insults and attacks from the populace and the press. Others, embarrassed by the difficulty of reaching

has not passed on the question. It was unfortunate that the matter was never definitely settled by an Act of Parliament in the interest of certainty and uniformity of practice. It was a question of public policy which should have been dealt with by legislation and not left to the discretion of the courts with their conflicting opinions.

GERMAN, AUSTRIAN AND ITALIAN PRACTICE

The German Ordinance of August 7, 1914.-By an ordinance of the Bundesrath of August 7, 1914, issued in pursuance of authority granted by an act of the German parliament of August 4, the right of all persons who had their domicile (wohnsitz) abroad,95 and all corporations (juristische personen) which had their seat in foreign countries to maintain actions in the German courts for the recovery of debts or either patrimonial claims (Vermogensrechtlichen ansprüche) occurring before July 31, 1914, was suspended until October 31, 1914. Actions instituted prior to the taking effect of the ordinance were likewise suspended until the latter date. The Chancellor was, however, authorized to make exceptions in individual cases to the rule thus laid down, but it is not probable that any exemptions were ever granted to enemy aliens. He was also authorized to extend the application of the provisions of the ordinance to branch establishments of enemy nationality-without regard to their domicile or situs.96 The a decision because of the vagueness of the decree of September 27, refrained from pronouncing judgments, this notwithstanding the fact that Article 4 of the code civil enacts that "the judge who refuses to decide a case under the pretext of silence, obscurity or insufficiency of the law shall be prosecuted for denial of justice." In still other cases the judges suspended decision pending the action of parliament.

95 Presumably without destinction as to whether they were domiciled in neutral or enemy territory. But by an ordinance of June 25, 1915, persons domiciled in Switzerland, if not enemy subjects, were allowed to sue in the German courts. 43 Clunet, p. 1166.

96 Text of the ordinance in Die Kriegsnotgesetze für das Reich und Preussen, Bd. I, S. 64; French translation of the text in Reulos, Manuel des Séquestres, p. 478. See also an analysis in the London Solicitors Journal of November 7,

1914.

By a German ordinance of December 2, 1916, enemy subjects, companies and associations domiciled in enemy country were prohibited from bringing suits in Belgian courts for the enforcement of pecuniary claims. Int. Law Notes, January, 1917, p. 15.

duration of the decree appears to have been extended from time to time, so that whereas it was ostensibly intended at first to be only a temporary measure it was in fact made permanent.

Its Weight and Effect. It will be seen from an examination of the ordinance that the test of enemy character, so far as judicial capacity was concerned, was domicile rather than nationality. Under the terms of the ordinance enemy subjects domiciled or resident in the Empire were free to maintain actions in the German courts without restriction, both as plaintiffs and defendants, and apparently without regard to whether the litigant was interned in a concentration camp or not. The same liberty was accorded to the local branches of houses whose main establishments were situated in foreign countries. Even as to enemy subjects domiciled abroad the right to maintain actions in respect to property rights accruing after July 31, 1914, remained in effect. Likewise actions other than those for the recovery of debts and the enforcement of property rights, such as those relating to civil status, guardianship, etc., could be maintained by enemy subjects residing outside the Empire. Finally, enemy subjects even when residing in enemy territory were allowed the right of defense in actions brought against them in the German courts.

97

In theory, therefore, apparently the only persons to whom the German courts were closed were those domiciled outside the Empire and establishments whose head offices were situated in foreign countries. Local branch houses were free to maintain actions, as were persons domiciled in the Empire. It would seem therefore that the impression which appears to have gained currency in France that Frenchmen residing in Germany had no persona standi in judicio was without foundation.98 There is little available information now as to the

97 Huberich remarks that non-residents were exposed to one practical difficulty in maintaining actions in the German courts, in that they were required to give security for costs and no appearance could be entered without a written power of attorney. Ignorance of this rule caused many defendants resident in England and who were cited by substitute service but who failed to appear, to be judged by default and execution levied on their property. Note in the Jour. of the Soc. of Comp. Leg., January, 1915, p. 54.

98 This was pointed out by Barthélemy and Clunet in the articles cited above. Compare also Huberich "German Emergency Legislation Affecting Commercial