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.

² 1 Salk. 45, quoted by the Court of Appeal in Porter v. Fretidenberg (1915), 112 L. T. R. 313.

³ 1 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.

⁴ 1 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.”

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. E. 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.

⁹ This interpretation is that adopted by the German Government in its official Weissbuch, Über die Ergebnisse der im Jahre 1907 in Haag Abgehalien Friedenskonferenx, p. 7.

¹⁰ This is the view expressed by General Geo. B. Davis in his Elements of International Law, p. 578; see also an article by him entitled “Amelioration of the Laws of War on Land,” American Journal of International Law, Vol. II, p. 70. See also Trotter, Effect of War on Contracts During War, supp. 1915, p. 20, who remarks that the provision in question does not affect the ancient rule of the common law, that an alien enemy, unless with special license or authorization of the Crown, has no right to sue in the King’s courts during war. See also Higgins’ Hague Peace Conferences, p. 235; Cobbett’s Cases on International Law, Part II, pp. 85–86; Holland, haw Quarterly Review, Vol. 28, p. 94; Huberich, op. cit., p. 45; and Picciotto, Yale Law Journal, 27:170 (1917).

¹¹ Professor Holland in commenting on this article (Law Quarterly Review, Vol. 28, pp. 94 ff.), remarks that “if this clause is intended only for the guidance of an invading commander it needs careful redrafting; if, as would rather appear, it is of general application, besides being c|iiite out of place where it stands, it is so revolutionary of the doctrine which denies to an enemy any persona standi in judicio that although it is included in the ratification of the Convention by the United States on March 10, 1908, and the signature of the same on June 29, 1908, by Great Britain, it can hardly, till its policy has been seriously discussed, be treated as rule of international law.” In his Laws of War on Land, p. 5, Professor Holland cites this paragraph as an instance of the inconvenience of intermixing rules relating to the duties of belligerent Governments at home with those intended to serve for the guidance of armies in the field.

¹² Parliamentary Papers, Misc. No. 4, 1907.

¹³ Professor Oppenheim’s letter and the reply of the British Foreign Office are printed in French in an article by M. Politis in the Revue Gén. de Droit Int. Pub., 1911, pp. 250 ff. See also Trotter, Effect of War on Contracts During War, supp., p. 14, and Spaight, War Rights on Land, pp. 140–141. The Foreign Office, in its reply to Professor Oppenheim’s inquiry, stated that the English rule works automatically at the outbreak of war; “no declaration,” it said, “is needed in order to make commercial intercourse with alien enemies illegal and to withdraw from them the protection of the courts. The outbreak of war, ipso facto, without any proclamation, abolishes, suspends, and makes inadmissible the rights of the subjects of the hostile party to institute legal proceedings.”

¹⁴ Manuel de Droit Int. Pub., p. 651.

¹⁵ Völkerrecht, 2d ed., p. 474.

¹⁶ Capture in War on Land and Sea, p. 8; also Rev. de Droit Int. et de Lég. Comp. 1913, p. 197.

¹⁷ Du caractère ennemie et de la condition des Personnes ennemies quant lexercise de leurs droits civils, Law Quarterly Review, July, 1915, pp. 289 ff.

¹⁸ International Law Association Reports, 1913, pp. 175–178.

¹⁹ L’Article 23(h) du Réglement de la Haye, Rev. Gén. de Droit Int. Pub., vol. 18 (1914), pp. 249 ff.

²⁰ Cours de Droit Int. Pub., p. 825.

²¹ Zeitschrift für Völkerrecht, 1911, p. 384.

²² Ibid., vol. 8, p p . 56 ff.

²³ Deutsche Juristen Zeitung, April 1, 1917, p. 374, French translation by M. Dreyfus, 44 Clunet, pp. 1354 ff.

²⁴ Recevabilité des Sujets Ennemis à Ester en Justice en France, 44 Clunet, pp. 480 ff.

²⁵ Annuaire de l’Institut de Droit International, T. 23, p. 268.

²⁶ Vol. 18, pp. 249 ff.

²⁷ Phillipson, Effect of War on Contracts, p. 46; Higgins, op. cit., p. 263; Lawrence, Principles, p. 358 (who says there can be little doubt that it was intended to have a different and far wider application) ; and Whittuck, International Documents, p. xxviii. Holland also apparently takes this view, for he remarks that the clause “seems to require the signatories to legislate for the abolition of an enemy’s disability, to sustain a persona standi in judicio. Laws of War on Land, p. 5. Some American writers also adopt the Continental interpretation, e.g., Bordwell, Law of War, p. 210; Gregory, Am. Jour, of Int. Law, Vol. II, p. 788; and Hershey, Essentials of Int. Pub. Law, p. 395, note 56.

²⁸ Law Times, Vol. 12, p. 313, 1 K. B. 857. President Monier, of the Tribunal of the Seine, in a decision of May 18, 1916 (Wilmoth v. Daude), without discussing the meaning of the clause declared that it was not binding on the French courts, because “an international convention cannot prevail over the contrary provisions of a municipal statute,” and because the clause had been violated by Germany. See text of the decision in 43 Clunet, pp. 1303 ff.

²⁹ Here he quoted Hall, International Law. fith ed., p. 465.

³⁰ A South African Court adopted the same view of the meaning of the article. Labuschagne v. Maarburger, So. Afr. L. R. (1915), Cape 423.

³¹ Interned Alien Enemies, Law Quarterly Review, April, 1015, p. 162.

³² International Law, 6th ed., p. 388.

³³ Princess Thurn and Taxis v. Moffitt, 1 ch. 58 (1915). The Irish and Scotch Courts adopted this view in several cases. See Trotter, op. cit., pp. 122–124. So did the courts of Canada. See especially the case of Viola v. McKenzie, Mann & Co. (1915), 24 Quebec B. E. 31; others are cited by Borchard in Yale Law Journal, 27:107, and by Huberieh, op. cit., p. 200.

³⁴ 1 K. B. 184 (1916), and Solicitors Journal and Weekly Reporter, 60:8.

³⁵ Compare the case of Nordman v. Rayner, 33 T. L. R. 87 (1916), which was also a case of “innocent” internment.

³⁶ 31 L. T. R. 248.

³⁷ The case would also probably have been different if it had not been a case of “innocent” internment, that is, if the plaintiff had been interned on account of some overt hostile act. Compare McNair, Alien Enemy Litigants, 34 Law Quarterly Review, 135.

³⁸ The Divisional Court in the Case of Rex v. Liebmann had held that the internment of a civilian of enemy nationality made him a prisoner of war.

³⁹ Upon appeal the view and reasoning of the Divisional Court were affirmed by the Court of Appeals.

⁴⁰ See, e.g., the London Solicitors Journal and Weekly Reporter, Vol. 59, p. 761. See also the favorable comment by a French writer, in 43 Clunet, pp. 435 ff.

⁴¹ For example, in the ease of Gow & Co. v. The Bank of Scotland. See the Law Times of October 2, 1915. Other cases are cited in Huberich, p. 209. In the case of Schaffenius v. Goldberg the contract in question was entered into after the outbreak of the war. In the case of Mayer v. Finksibler it was held that a contract entered into between two parties before the outbreak of the war, one of whom was subsequently interned as an enemy alien, was unaffected, and the latter’s right to sue for its enforcement remained. Picciotto, article cited, p. 169.

⁴² Persons voluntarily residing in enemy territory were not allowed to brine; actions in the English courts. See the case of Scotland v. South African Territories, Ltd., Law Times, 142:366 (1917).

⁴³ Continental Tyre & Rubber Co. v. Daimler. 1 K. B. 893 and 2 A. C. 307 (1916). The High Court of Australia held, in the case of Welsbach Light Co. v. Commonwealth, 22 Com. L. R. 268 (1916), that domestic corporations controlled by enemy directors or shareholders were enemies and could not therefore sue; but in Amorduct Mfg. Co. v. Defries & Co., 31 T. L. R. 69 (1914), it was held that a company registered in England might sue, although nearly all of the shares were held by enemy aliens.

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 l 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).

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 l K. B. 155 (1915).

⁵¹ 13 Ves. 71 (1806).

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.”

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. 8S7 (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 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.

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 Möxe 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 (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 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.

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 peaceful pursuit of their lives and occupations and be accorded the consideration due all peaceful and law-abiding persons, except so far as restrictions may be necessary for their own protection and for the safety of the United States. To shut the door of the, court in the face of an alien enemy resident here would be a distinct violation of not only the spirit but the letter of this proclamation.”

⁶⁵ Fritz Schultz, Jr., v. Raimes & Co. (1917) 166 N. Y. supp. 567. The leading Federal case upon which the court relied was Bank of U. 8. v. Deveaux, 5 Cranch U. S. 61.

⁶⁶ Plettenberg, Holthaus & Company, v. Kalmon & Company, 241 Fed. Rep. 605.

⁶⁷ Arndt-Ober v. Metropolitan Opera Co., 58 N. Y. Law Jour. 1347 (1918). See also the case of Speitiel v. N. Barstow Co., 243 N. Y., 621 (1917).

⁶⁸ This summary is made mainly from an article entitled “Alien Enemies as Litigants,” published in Case and Comment for June, 1917, pp. 93 ff. This article appears to contain an exhaustive examination of the cases decided by the American courts. See also Borchard, Right of Alien Enemies to Sue, Yale Law Journal, 27:105; Huberieh, On Trading with the Enemy, pp. 188 ff., and 194 ff., and Mitchell, in the Maine Law Review, November, 1917.

⁶⁹ Clarke v. Morey, 10 Johns, 69 (1813); and Norddeutsche Ins. Co. v. Dudley, N. Y. Law Jour., January 11, 1918.

⁷⁰ As was pointed out above this rule was adopted by the United States Supreme Court in the case of McVeigh v. the United States, 11 Wall. 259 (1870), and it has been followed by the State courts in many cases. See the. cases cited in an article in 3 Va. Law Register, 1917, p. 102, n. 45.

⁷¹ This was also the decision of the King’s Bench Division in the case of Robinson v. Continental Ins. Co., 31 Times Law Reports 20 (1915) referred to above.

⁷² On the French practice and doctrine, see two valuable articles by Professor Jules Valéry, of Montpellier, in the Rev. Gén. de Droit Int. Pub., 1916, pp. 379 ff. and in Clunet’s Journal de Droit Int. Privé, 1915, pp. 1009 ff.

⁷³ For example by Professor Valéry in the articles cited above; by M. Eeulos, Manuel des Séquestres, p. 12, n. 1, and p. 214; by M. Courtois, in Clunet’s Journal, T. 42, p. 509; by M. Troimaux, Séquestres et Séquestrés, pp. 163 ff., and by M. Théry in Clunet, T. 44, pp. 480 ff. Professor Valéry affirms that the judicial disability of enemy aliens was a rule of the Roman law and is equally the established doctrine of French public law. Rousseau’s theory that war is a contest merely between armed forces, may, he says, have been true before 1914, but the refusal of the Germans to act in harmony with it destroyed whatever force it had acquired. He quotes Portalis and Lender (Holtzendorff’s Handbuch, IV, p. 358) in support of the view which he maintains. Valéry, however, appears to have admitted that an enemy subject might defend an action against him.

⁷⁴ Among the French courts which refused to admit enemy aliens to sue were the tribunal of Marseilles (June 22, 1915) ; the tribunal of Commerce of Marseilles (January 5, 1917) ; of Phillippeville (April 15, 1915) and the tribunal of the Seine (référé) May 18, 1916. Nevertheless sequestrators of enemy property could sue for the purpose of protecting the property in their custody. Actions by French creditors for the recovery of debts against sequestrated property could also be brought against the sequestrator, in which case the latter could defend the action.

⁷⁵ The case of Wilmoth, Sequestrator v. Daude, Text in Phily, Jurisprudence Speciale et Législation de la Guerre, Pt. III, pp. 225 ff., also in Clunet, T. 43, pp. 1303 ff.; see also the case of Wilmoth, Sequestrator, v. Société Gén. Immobiliére, December 21, 1915. Text in Reulos, pp. 355 ff.

⁷⁶ Professor Barthélemy (43 Clunet, 1484) remarks that this doctrine is “calculated to move the hearts of international publicists.” M. Barthelemy properly adds that international conventions which have been ratified by France are binding upon all French judges.

⁷⁷ But as M. Barthélemy remarks the German prohibition applied only to French citizens domiciled outside the Empire and not at all to those resident therein. See also 42 Clunet, 567, and 43 Clunet, p. 1131, on this point.

⁷⁸ Compare on this point the more liberal views of Judge Cator, of the British prize court at Alexandria in the case of the Gutenfels, quoted above.

⁷⁹ Resolution adopted November 30, 1915, Text in 43 Clunet, pp. 12 ff.

⁸⁰ Reulos, p. 215. One of the arguments advanced in support of the view that enemy aliens have no capacity to bring actions in the courts was that the employment of an attorney would involve the entering into contractual relations between the attorney and the enemy client, which was in effect forbidden by the decree of September 27. Compare Courtois and Valéry in 42 Clunet, pp. 511 and 1009. The resolution of the Council of the Order of Advocates referred to above declared that inasmuch as Germany had prohibited “all relations” with enemy subjects, it was the duty of the French bar to set an example of patriotism by refusing to take the cases of German suitors. No advocate of the Court of Paris, it was said, could advise or defend a subject of an enemy power, unless he had been authorized by the baionnier to do so, and this was the view of the tribunals of the Seine and of Marséilles in the cases referred to above. The contention that taking the case of an enemy client was a “contract” forbidden by the decree of September 27, was, however, vigorously attacked by Prof. Bartheélemy (L’Acces des Sujets Ennemis aux Tribunaux Francais, 43 Clunet, p. 1418) and by M. Clunet (Concours professionnelle des advocate aux Sujets Ennemis et le Barreau de Paris, 43 Clunet, pp. 14–18). Such an interpretation, says Barthelemy, is “purely literary, pharisaic, judaic, contrary to the intention of the legislature and in effect leads to the infliction of a sort of civil death upon enemy subjects by depriving them of their judicial personality.” M. Clunet adds that enemy subjects have a right under international law and the municipal law of France to retain the services of members of the bar. He cites a number of cases in which the courts had upheld the right of enemy subjects to employ counsel and the right was affirmed by the fourth chamber of the Court of Appeal of Paris on April 20, 1916. The Court of Cassation (November 19, 1914) appears also to have admitted the right. President Monier of the tribunal of the Seine in the case referred to above, however, took occasion to say that “it was to the honor of the Paris solicitors that no one had claimed the right to defend a German” (43 Clunet, 1308). This tribunal, as well as those of Marseilles (44 Clunet, 241) and Besancon (ibid., p. 248), held that the decree of September 27 prohibited all juridical as well as commercial relations with enemy subjects and that the latter could not therefore retain an attorney. A German writer, Dr. Haber, in the Juristische Wochenschrift of April 15, 1916 (Fr. trans, in 44 Clunet, 448 ff.) contrasting the German and French practice, remarks that if the decree of September 27 prohibited a German from hiring a French lawyer, it prohibited him from buying food or clothes from a Frenchman. M. Valéry (42 Clunet, 1009 ff.) suggested that one way out of the difficulty would be to allow enemy subjects to choose a curator ad hoc to represent them before the courts. The matter not having been determined by legislation it was left to the courts to deal with the question whenever it arose, each according to its own individual opinion.

⁸¹ L’Accés des Sujets Ennemis aux Tribunaux Francais in Clunet’s Journal, T. 43, pp. 1473–1504.

⁸² In support of this statement M. Barthélemy cites Merlin, Répertoire, Sub Yerbo, Guerre; Massg, he Droit Commerciale, Vol. I, p. 128 and Nys, Le Droit Int., Vol. III, p. 69.

⁸³ Ibid., p. 1480.

⁸⁴ M. Reuloa (Manuel des Séquestres, p. 216) remarks, however, that the theory that an enemy alien shall be permitted to maintain an action in the court, but in case he obtains a favorable judgment, its execution may be suspended, rests on a subtle distinction and that in practice the right would be of no value to the enemy litigant.

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 Francois 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.).

⁸⁹ See especially the decision of the 10th Chamber of the Tribunnl 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’A ppel. 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.

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 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.

⁹⁷ Huberich remarks that non-residenta 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 thia rule caused many defendanta 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 Barthelemy and Clunet in the articles cited above. Compare also Huberich “German Emergency Legislation Affecting Commercial 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 Barthelemy 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 Legislation 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.

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

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