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territorial restraint upon the enemy. Blackstonel 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 go4.'

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 Crown. 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 6.

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

1 Commentaries, I. 260. ? A.-G. for Canada v. Cain (1906] A. C. 542. 3 [1917] 1 K. B. 922 (C. A.).

Ibid., at p. 934. 5 Buron v. Denman (1848) 2 Exch. 167. 6 Law of Torts, roth ed., p. 117.

to the executive to inform us either by deed or proclamationwhen a state of war exists. 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 defenint) 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. Thompsona, 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. I, for a discussion of this controversy. 2 (1811) 2 Campbell at p. 610.

And in Janson v. Driefontein Consolidated Mines, Ltd. 1 Lord Macnaghten says:

“The law recognizes a state of peace and a state of war, knows nothing of an intermediate state which is neither the one thing nor the other. In every community it must be for the supreme power, whatever it is, to determine the policy of the community in regard to peace and war.'

War does not mean merely 'strained relations 2.'


What then is the effect of the existence of this state of affairs on aliens ?

First of all, it divides them into (1) Alien Enemies, and (2) Alien Friends, with sometimes, as in the recent war, a further subdivision of Alien Friends into (a) Allies and (6) Neutrals. As to Alien Friends, whether Neutrals or Allies, when resident in their own countries, our law has little concern except-as the decisions of our Prize Court show-in so far as war affects them in their trading relations. As residents in our midst and litigants in our courts, war does not-apart from special statutes-affect them except in the same way that it affects our own citizens. One of these special statutes is the Aliens Restriction Act, 19143. It appears to be a permanent statute, and arms the executive with wide powers, in the event of war or an occasion of imminent national danger or great emergency,' to regulate aliens—enemies or friends—as to landing, embarking, deportation, residence in certain districts, registration, change of abode, travelling, &c.; and such regulations may be made to relate to any particular class of aliens. A very drastic provision is made by sect. 1 (4) which provides that a man is deemed to be an alien or an alien of a particular class until and unless he disproves it, so that if the police or the military authorities arrest any one of us and charge him with being an unregistered alien enemy, the burden of proof lies upon him to show that he is a British subject. Existing powers with respect to the expulsion and exclusion of aliens are preserved.

1 [1902] A. C. at p. 497.

2 See also The Eliza Ann (1813) 1 Dods. 244 and Pitt Cobbett, op. cit., Vol. II. p. 8, and The Teutonia (1870) L. R. 4 P. C. 171.

3 At the present moment 'a Bill to continue and extend the provisions of the Aliens Restriction Act, 1914,' is before the House of Commons.

POSITION OF ALIEN ENEMIES. Let us now consider the position of alien enemies who happen to be in this country at the date of the outbreak of war. In ancient times the rule was that their persons could be seized and their goods confiscated by any one; they had no rights. The practice of making treaties stipulating for a right of exit to their own country has led to what is now almost a rule of international law permitting the departure within a reasonable time of all alien enemies who are not combatants, either active or reservists, in the enemy forces. Thus on August 5, 1914, the Home Office, in pursuance of an Order in Council under the Aliens Restriction Act, issued the following statement:

‘Under the Aliens Restriction Act passed to-day, an Order in Council has been made for the purpose of restricting the movements of alien enemies from, to, and in, the United Kingdom.

'1. After August 10, 1914, alien enemies will not be allowed to leave the United Kingdom at any port without special permit. Until that date they may leave by the following ports: Aberdeen


West Hartlepool




Rosslare Falmouth 2. After to-day alien enemies will not be allowed to land in the United Kingdom except with special permit, and then only at the above-mentioned ports.

'3. Alien enemies must register themselves with the police, and will be subject to special regulations as to the areas in which they may reside.'

Reservists and other combatants were, however, detained as prisoners of war. It is believed that the German Government followed a more severe course, detaining all men whom they considered to be of military age. However, there is no rule which requires a belligerent to allow enemy subjects to remain in his territory, and he is entitled to expel them if he chooses. If he allows them to remain, he is entitled to make restrictions upon their freedom such as were made under the Aliens Restriction Act, 1914. Numerous restrictions were made under this Act by Orders in Council, partly as to all aliens, and partly as to alien enemies only, particularly as to registration and residence, and as to the possession by alien enemies of certain articles, ranging from fire-arms to pigeons and cipher codes. Another Order appearing in the Gazette of October 8, 1914, prohibited alien enemies from changing their names after October 12, 1914. Further, the Registration of Business Names Act, 1916, provides for the registration of all firms and persons carrying on business (including a profession) in the United Kingdom under any name other than the true and (apart from the change of a woman's name by marriage) original names of the partners or individual.

Having regard to the Aliens Restriction Act, 1914, and the comprehensive powers which it confers on the executive, it is perhaps somewhat academic to consider what is the common law position. It is, however, interesting to notice an enlightened anticipation of subsequent practice (cf. Hague Convention VI for a similar idea) contained in cap. 41 of Magna Carta, dating from days before the idea of International Law in the present sense had been conceived:

‘Merchant strangers in this realm... And if they be of a land making war against us and be found in our realms at the beginning of wars, they shall be attached without harm of body or goods until it be known to us or our Chief Justice how our merchants be intreated there in the land making war against us, and if our merchants be well intreated then theirs shall be likewise with us?.'

1 Upon this Blackstone quotes the remark of Montesquieu that 'the English have made the protection of foreign merchants one of the articles of their national liberty. Commentaries, 1. 260.

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