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.91 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 parliament9 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 diffi culty 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

manner in which the German ordinance was carried out, but French writers admit that instances are not lacking in which Frenchmen were allowed to maintain actions and appear as defendants." Nevertheless, the practical difficulties encountered in exercising the privilege granted appear to have been insurmountable in many cases.100

The Reichsgericht rendered a decision on July 8, 1915, in which it upheld the right of English subjects domiciled in the Empire to sue in the German courts for the recovery of money due them on contracts, notwithstanding the English prohibition in respect to payments due German subjects. 101 German writers in fact assert that no restrictions were placed upon the right of enemy subjects domiciled in the Empire to bring actions in the courts, that no question was ever raised as to the right of German attorneys to take the cases of such persons and that there were no instances in which members of the German bar refused to defend enemy persons against whom suits were instituted.1

102

Austrian Policy.-The Austrian Government appears to have pursued a liberal policy. By an ordinance of October 7, 1915, enemy enterprises were allowed to bring actions with the consent of the

Matters," in Law Notes for June, 1915, p. 48, and the Jour. of the Soc. of Comp. Leg., January, 1915, p. 55, which thus described German policy:

"Suffice it to say that the emergency provisions, taken as a whole, are creditable to Germany and its jurisprudence. They exhibit no spirit of vindictiveness. If there is retaliation, it is only resorted to where the rights conceded by Germany are refused by us. The disabilities and prohibitions, in a word,

are no more that the reasonable safeguards which a belligerent may exact in the presence of that hideous anomaly-War."

99 See Barthélemy in 43 Clunet, p. 1446, and Clunet, ibid., T. 42, p. 567, and T. 43, p. 1131. See also an article by Dr. Arthur Curti, a Swiss jurist, entitled De la Condition des Sujets Ennemis Selon la Législation et la Jurisprudence Allemandes, 42 Clunet, pp. 785 ff.

100 G. F. in an article entitled Accés des Sujets Ennemis aux Tribunaux Allemands, in 44 Clunet, pp. 48 ff., calls attention to various other difficulties which made recourse to the German courts by enemy subjects, either as plaintiffs or defendants, even where the right was accorded by law, a practical impossibility. 101 Soergel, Kriegsrechtsprechung und Kriegsrechtlehre, pp. 99, 111.

102 See an article dealing with the right of enemy aliens to sue in German courts and to employ attorneys, by Dr. Haber, of Leipzig, in the Juristische Wochenschrift of April 15, 1916, reprinted in French in 44 Clunet's Journal, pp. 448 ff.

surveillant. In the case of Attenbach v. Kornfeld, a French haberdasher of Vienna, who returned to France at the outbreak of the war, was allowed to hire an attorney and bring an action against an Austrian for the recovery of a debt incurred before the war. The State was interested, said the court, in seeing that Austrian debtors performed the stipulations of their contracts with enemy houses. Judgment was decreed in favor of the Frenchman although the amount decreed was placed in the hands of the surveillant to be held by him until the end of the war.103

Italian Policy.-By a decree of June 24, 1915, the Italian Government prohibited the bringing of suits in the Courts of Italy by persons of Austrian or Hungarian nationality or persons resident in Austria or Hungary. All pending suits were suspended during the duration of the war and the statutes of limitation were likewise suspended. By a decree of July 18, 1916, the provisions of the abovementioned decree were extended to all persons who were the subjects of any state at war with Italy, to all persons resident in such a state and to all persons who were subjects of or resident in the territory of the ally of an enemy."

104

JAMES W. GARNER.

103 Communication by Professor Basdevant of Grenoble, in 44 Clunet, pp. 114 ff.

104 Huberich, Trading with the Enemy, p. 12.