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.**

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.5 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,46 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.

45 1 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.*7

48

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. 50 1 K. B. 155 (1915). 51 13 Ves. 71 (1806).

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.5 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

53 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 intended 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