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the forfeiture of immunity by a government owned vessel employed for commercial purposes.

The experience of judicial and administrative authorities in the United States during the last few years, when navigators of requisitioned vessels and government owned vessels have frequently been involved in litigation in courts in this country, and when large quantities of various kinds of property have been purchased here in behalf of foreign governments, suggests the unfortunate consequences of a general rule that courts of the United States are without jurisdiction to entertain a suit against the property of a foreign government within the jurisdiction of this country. If the theory of such an immunity is carried to its logical conclusion, it would seem to follow that not only may persons be deprived of the right to institute proceedings involving government owned property in tort and in contract but governmental authorities may be debarred from imposing equitable taxation on such property and from subjecting it to laws generally applicable to similar privately owned property. To the objection that the taking of jurisdiction by the courts in cases of this character is derogatory to the sovereignty of the government to which the property belongs, it seems a sufficient answer that it is equally and indeed considerably more derogatory to the sovereignty of the country in which the property is found to be shorn of vital attributes of sovereignty, exercised through administrative and judicial authorities, in order that such immunity may be granted.

It is interesting to observe in connection with this question of immunity of government owned vessels that the Act of Congress of September 7, 1916,23 contains the following provision with regard to the operation of vessels purchased, chartered or leased from the United States Shipping Board:

Such vessels while employed solely as merchant vessels shall be subject to all laws, regulations and liabilities governing merchant vessels, whether the United States be interested therein as owner, in whole, or in part, or hold any mortgage, lien or other interest therein.

The importance of harmonious practice among nations with re

23 39 Stat. L. 728.

gard to questions such as those roughly sketched in this article is obvious. Considering the difficulties in the way of progress in attaining this object, it is unfortunately true that much time and effort will be required in making any appreciable headway in dealing with the numerous and various problems requiring solution.

FRED K. NIELSEN.

TREATMENT OF ENEMY ALIENS

(Being Part XVI of Some Questions of International Law in the European War. Continued from previous numbers of the JOURNAL.)

RIGHT OF ACCESS TO THE COURTS

English and American Doctrine and Practice. The question of the right of enemy subjects to sue in the courts of an adversary can hardly be said to be regulated by international law, unless the muchcontroverted Article 23(h) of the Hague Convention of 1907 respecting the laws and customs of war on land, is interpreted to apply to the actions of the judicial authorities. Certainly it is not true, as is sometimes asserted, that it is a principle of international law that they have no right of access to the courts of the adverse power. Like the practice in respect to trading with the enemy the matter is determined by the municipal law of each belligerent and is based upon considerations of public policy. The early English common law rule was that an action could not be brought in an English court by or on behalf of an enemy alien except by virtue of a statute, order in council, proclamation or license from the Crown, or unless he came into the country under a flag of truce, or cartel, or in pursuance of some other act of public authority which put him in the King's peace pro hac vice. As long ago as 1454 Mr. Justice Ashton said that "an alien enemy who came here under the King's license or a safe conduct could maintain an action for trespass." In the leading early case on the subject, Wells v. Williams, decided in 1698, and many times. cited by the English courts during the recent war, it was held that, although an enemy alien was in England without a safe conduct, yet if he continued to reside there by the King's leave and protection and without molesting the government and without being molested by

1 Compare Huberich, Trading with the Enemy, p. 191; also the recent Canadian case of Korzwiski v. Harris Construction Co. (1916), 18 Que. P. R. 97. 21 Salk. 45, quoted by the Court of Appeal in Porter v. Freudenberg (1915), 112 L. T. R. 313.

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it, he could sue in the King's courts, for the exercise of such a right was a consequence of the protection offered him. This rule was followed by Sir William Scott a hundred years later in the case of the Hoop where he said:

In the law of almost every country the character of alien enemy carries with it a disability to sue or sustain, in the language of the civilians, a persona standi judicio. The peculiar law of our own country applies this principle with great rigor. The same principle is received in our courts of the law of nations. They are so far British courts that no man can sue who is an enemy, unless under the particular circumstances that pro hac vice discharge him from the character of an enemy, such as the circumstances mentioned above.5

The rigor of this ancient rule which virtually treated enemy aliens as ex lege and without the right of access to the courts has recently been criticized as "a relic of barbarous days when the lives and property of all enemies were forfeit to the victor; nevertheless it left open a loophole by which the English courts have in fact been able to open their doors to enemy aliens while at the same time respecting the general principle of the old doctrine. In practice, whenever an enemy subject resident in England has been able to show that he was there with an express or implied license of the King he has been allowed to appear in the courts either as a plaintiff or a defendant. The onus

31 Ld. Raym. 282. Some question was raised by Mr. Justice Younger, in the case of Schaffenius v. Goldberg (1915) as to the authenticity of the phrase quoted above "without being molested by the government," which does not appear in several reports of the case. The matter was discussed at some length by counsel.

41 C. Rob. 196, 201 (1799). The case law of England and the United States is reveiwed by Huberich in his work on Trading with the Enemy, pp. 191 ff.

5 Mr. Justice Story, in his Notes on the Principles and Procedure of Prize Courts (p. 21), adopted the same principle.

6 Such is the opinion expressed by the London Solicitor's Journal and Weekly Reporter of January 23, 1915. See also the criticism by Dr. Sieveking, International Law Association Reports, 1913, p. 169, who remarks that "there is no earthly reason why a subject of one of the belligerent powers should not be allowed to appear in the courts of the other nation and obtain a judgment, provided execution, unless out of funds in the enemy's country, be stayed until the termination of the war. The idea of his being an alien enemy and therefore having no persona standi judicio is too old to be seriously considered."

of showing this has not been difficult, for enemy aliens who are allowed to remain in the country after the outbreak of the war have generally been assumed to be there by an implied license under the protection of the Crown. This follows as a logical consequence of registration, internment and other similar measures. It amounts to this, therefore, that under this rule practically the only enemy persons to whom the courts were closed during the late war were those resident in the enemy country or who, though resident in England, were not regarded as being under the protection of the Crown."

Article 23 (h) of the Hague Convention No. IV, of 1907.-Until 1907 there was no doubt that belligerents were free to close their courts to enemy subjects at will, that is to say, the question was one solely of municipal law; but it is not quite clear whether that liberty of action was not surrendered by the adoption of Article 23 (h) of the Hague Convention of 1907 respecting the laws and customs of war on land. This provision declares that it is especially forbidden "de déclarer éteints, suspendus ou non-recevables en justice, les droits et actions des nationaux de la partie adverse." The prohibition which it establishes was added at the suggestion of two German delegates, Herr Göppert and General von Gründell, the latter of whom in explaining its purpose in the committee said its object was not limited to protecting corporeal property from confiscation but that it had in view "the whole domain of obligations, by prohibiting all legislative measures which, in time of war, would place the subject of an enemy state in a position of being unable to enforce the execution of a contract by resort to the courts of the adverse party. In other words, its object was to prohibit belligerents from depriving enemy subjects by legislation or otherwise of the means of enforcing their legal rights

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7 Compare Picciotto, "Alien Enemy Persons, Firms and Corporations in English Law," Yale Law Journal, 27:172 (1917). A classification of the holdings of the English courts in respect to the right of enemy aliens to sue may be found in the brief of the Attorney General in the case of Re Merten's Patents (1915), 112 L. T. R. 315. The decisions are grouped under three heads: (1) those upholding the right to sue; (2) those denying the right; and (3) those which deny the right to sue as plaintiffs but uphold the right to sue as defendants.

8 Deuxième Conférence International de la Paix, Actes et Documents, Tome III, p. 103.

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