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left that country about the age of fifteen for South America. After living there two or three years he came to England, where he had lived since 1901. He had thus ipso facto lost his German nationality under the Law of 1870 by ten years' residence abroad, and but for the Act of 1913 apparently would have been a person of no nationality, and, not having acquired British nationality, an alien though not an alien enemy. The Divisional Court, the Court of Appeal, and the House of Lords held that, having regard to the Law of 1913, he had not lost his German nationality for all purposes whatsoever, for both under section 13 and section 26 he could recover his German nationality more easily than a pure foreigner could acquire it; he could therefore be properly interned as an alien enemy.

Liebmann's case1 is stronger. Born in Germany in 1868, he came to England in 1889, and in 1890 obtained from the authorities of his particular State a document purporting to discharge him from German nationality. He had resided here since, but had never become naturalized. Under the 1870 Law he would have had no special facilities for re-acquisition of German nationality, and he could not have re-acquired it unless, as in the case of a pure foreigner, he had established a residence in Germany. The effect, however, of the Law of 1913 in making it easier for him to re-acquire, than for a pure foreigner to acquire, German nationality made it clear that he had not entirely lost the rights belonging to a natural-born German, and the Divisional Court held him to be an alien enemy. In Weber's case nationality was lost by long residence abroad; in Liebmann's a formal discharge of nationality had been obtained, but the Court did not regard this as a difference in principle.

The effect of these decisions is to draw a distinction between nationality which a person can lose, and the rights of a naturalborn subject which, in the case of a German-born subject, he can never lose. The Law of 1913 ties these rights round his neck for life, and by its retrospective effect radically altered

1 [1916] 1 K. B. 268. See also pp. 52–54, of this book for remarks on the habeas corpus point in this case.

the status of many former German subjects. The rights belong to a former German who has divested himself of his German nationality1 and by naturalization become a British subject. Supposing his naturalization to be revoked, he does not become a mere alien with no nationality, but an alien having certain of the rights belonging to a German-born subject.

We have thus seen that there can be persons of no nationality, and extraordinarily troublesome they can be to diplomatists and lawyers. An alien may have lost his nationality of origin by the law of his native country, and not have acquired British nationality by naturalization. What is his status? He is certainly an alien, but if we are at war with his native country, is he an alien enemy? The Delbrück Law of 1913, in the desire to extend the arm of the fatherland over its erring subjects, has answered the question in the case of Germany. Such persons were recently alien enemies. But in a case where no such law exists, he is a bold man who would assert that such a person is not merely an alien, but is an alien impressed with the national character of his country of origin.

ALIEN STATUS.

So much for the questions who is a British subject and who is an alien2. In what respect does the latter differ in status from the former? It is natural and convenient to regard the former's status as complete, and to describe the latter's by way of deductions from it. The alien has full proprietary capacity (except

1 But on and after January 1, 1914, when the Delbrück Law came into operation, a German on becoming naturalized abroad does not lose his German nationality if, before acquiring the new one, he has obtained the permission of the German authorities to retain his German nationality (section 25)—a provision which, if not sinister in intention, at any rate produces a most unsatisfactory state of affairs in practice.

2 A denizen is only partially a British subject. Denization is a process by which the Crown used in former times to (and presumably still might) confer by grant of letters patent a certain measure of nationality, and the royal prerogative has been preserved by section 25 of the Act of 1914. A few denizens may still exist, but so few that their exact status need not detain us.

that he may not be the owner of a British ship1), full contractual, testamentary, and procedural capacity, but no parliamentary, municipal, or other franchise, and no qualification for any public office2. He owes local allegiance while within the realm, even when the British Empire is at war with his own country, and thus may be convicted of treason for assisting his own country while remaining in the British Empire. The alien has no right at common law or by statute to be admitted into the King's dominions3, and the Aliens Act, 1905, contains provisions for the exclusion and expulsion of undesirable aliens. These are, however, it is believed, purely declaratory, and the Crown can exclude or expel an alien at will. A British subject can neither be excluded nor expelled; and statutory authority was required for the compulsory transportation of convicted criminals from the United Kingdom, although their destination was within the British Empire1.

Lord Atkinson in a Canadian appeal to the Privy Council states that

'one of the rights possessed by the supreme power in every State is the right to refuse to permit an alien to enter that State, to annex what conditions it pleases to the permission to enter it, and to expel or deport from the State, at pleasure, even a friendly alien, especially if it considers his presence in the State opposed to its peace, order, and good government, or to its social or material interests.'

The Aliens Act, 1905, regulates (inter alia) both the exclusion and the expulsion of aliens. With regard to expulsion or deportation-the latter term is said to connote some control over the destination-questions have sometimes arisen upon the claim, amounting almost to a necessity, of the Crown in the exercise of this right to impose a certain measure of extra

1 But see R. v. Arnaud (1846) 9 Q. B. 806, from which it appears that a registered company whose shareholders are all aliens may nevertheless own a British vessel. This is now subject to the British Ships (Transfer Restriction) Acts, 1915 and 1916, until three years from the termination of the recent war have elapsed.

2 British Nationality and Status of Aliens Act, 1914, ss. 17, 18.

3 Musgrave v. Chung Teeong Toy [1891] A. C. 272.

4 Blackstone's Commentaries, I. 137.

A.-G. for Canada v. Cain [1906] A. C. 542.

MeN.

territorial restraint upon the enemy. Blackstone1 says that aliens are 'liable to be sent home whenever the King sees occasion,' and both in A.-G. for Canada v. Cain2 and Rex v. Home Secretary, ex parte Duke of Château Thierry3, arising upon statutes and regulations thereunder, the Privy Council in the former case, and the Court of Appeal in the latter, in effect justified extra-territorial constraint. The constraint was direct in the former case and indirect in the latter, where the Home Secretary was permitted to select the ship (and incidentally control the alien's destination), place the alien on board so that

'he remains in legal custody until the ship finally leaves the United Kingdom, and then the custody of and right to detain the alien ceases. It is quite possible that the result of action under this provision may be that the deportee from the force of circumstances may be compelled to disembark in the country to which the Government wish him to go1.'

One of the few disabilities of an alien is that, at any rate unless resident in the King's dominions and so under his temporary protection, he cannot sue in an English court in respect of any injurious act or omission which has been authorized or ratified by the Crown5. If he is resident in England, Sir Frederick Pollock is of opinion that this defence, called 'Act of State,' would be no more available against him than against a British subject.

WAR.

Before we apply ourselves to the effect which the outbreak of war has upon aliens, we must consider what we mean by warwhat in the eye of the law constitutes the condition of affairs commonly known as war. We are not concerned with the point of view of international law; what we want to ascertain is the view of our own municipal law. What guidance will our own law reports give us? War is a question of fact, and, being within the prerogative of the Crown, we are entitled to look 2 A.-G. for Canada v. Cain [1906] A. C. 542. Ibid., at p. 934.

1 Commentaries, I. 260.

3 [1917] 1 K. B. 922 (C. A.).
5 Buron v. Denman (1848) 2 Exch. 167.
• Law of Torts, 10th ed., p. 117.

to the executive to inform us-either by deed or proclamation— when a state of war exists1. That is obviously the best evidence, and in modern times is generally available. In the present case we have the Proclamations of August 5, 1914, relating to Germany, and of August 12, 1914, relating to Austria-Hungary, and Foreign Office notifications of November 5, 1914, relating to Turkey, and of October 15, 1915, relating to Bulgaria. Our own legal authority is remarkably consistent on this point. In the year 1480 (Y.B. Hil. 19 Edw. IV. f. 6, a case of debt on obligation where a plea of alien enemy is raised by the defennt) Brian C.J. said:

'It seems to me that you ought to show how the league was broken, for that is matter of record; for if at one time there was a league between the king of this country and the king of Denmark, notwithstanding that all persons in England wanted to make war with those in Denmark, if our lord the king would not assent to it, it would not be called war; but if there be no hostilities in fact, but the peace is broken between the king of Denmark and our lord the king, as by ambassadors or otherwise, in that case where the peace and the league are broken [there is war].'

Again, in the year 1811 in the case of Muller v. Thompson2, we find Lord Ellenborough saying in answer to the plea by an insurer that the policy was illegal in that it gave leave to the ship to proceed to Königsberg:

'We are placed in a strange anomalous situation with regard to that country (Prussia) and others on the continent, but it is not that of war. We have published no declaration of war against Prussia; we have not issued letters of marque and reprisals; we have not done any act of hostility. Therefore, though the relations are not very strong between us, yet we are not at war with Prussia.'

1 A Declaration of War, either specifically in that form or in the form of a conditional ultimatum, was not required by International Law, though now becoming increasingly usual, and since 1907 required by Hague Convention III, which was signed by all the States enumerated in the Final Act except China and Nicaragua (Pearce Higgins' Hague Peace Conferences, p. 205). In the case of the Russo-Japanese War, having regard to the rupture of diplomatic relations between the two nations, Japan was probably legally justified in her sudden attack on Port Arthur the day before she issued a Declaration of War, which even then was only addressed to her own subjects. See Pitt Cobbett's Leading Cases and Opinions on International Law (3rd ed.), Vol. II. p. 1, for a discussion of this controversy.

2 (1811) 2 Campbell at p. 610.

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