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.56 But it appears to be based on good sense and is in harmony with elementary notions of justice.57

into the ex 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, 1914.58 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.5

59

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

60

58 Trehern, British and Colonial Prize Cases, Vol. I, pp. 60 ff. 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 Möwe 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

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'Espardes 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