Sivut kuvina
PDF
ePub

are relevant. These tests and purposes are reflected in the series of Trading with the Enemy Acts and Proclamations. It is broadly true to say that the main purpose of the earlier Acts—two in 1914 and one in July 1915—is to prevent intercourse with the enemy across the line of war; while the main purpose of the later Acts—one in December 1915, one in 1916, and one in 1918—is to stamp out enemy commercial influence and operations in this country and elsewhere. Accordingly, in the earlier Acts the test is territorial: in the later ones it is national.

The position of corporations in point of the national character to be attributed to them in time of war has received much consideration during the present war. The effect of war upon the procedural status of enemies has already been discussed by the present writer

1 Daimler Co. v. Continental Tyre and Rubber Co. [1916] 2 A. C. 307; see Re Hilckes, ex parte Muhesa Rubber Plantations, Limited (1917] 1 K. B. 48 (C. A.); Elders and Fyffes v. Hamburg-Amerikanische Packetfahrt (1918) 34 T. L. R. 275. See also ‘The Personal Character of a Corporation,' by Mr J. E. Hogg, L.Q. R. XXXIII. 76 (January 1917).

2 L. Q. R. XXXI. 154 (April 1915); L. Q. R. XXXIV. 134 (April 1918); Chapters II and III of this book.

CHAPTER II

PROCEDURAL CAPACITY OF ALIEN ENEMIES

Reprinted from Law Quarterly Review, XXXI. 154 (April, 1915).

ALTHOUGH this topic has been so exhaustively discussed in the recent argument before the full Court of Appeal and in their lordships' judgment, the following remarks are perhaps not out of place. It is proposed (1) to review the principal landmarks in the growth of the plea of alien enemy until comparatively recent times; (2) to consider the more modern law; (3) to raise a few questions still admitting of doubt; and (4) to endeavour to frame a concise summary of the law as it stands to-day, or such part of it as seems fairly well settled.

A. Historical. From the Norman Conquest onwards a stream of foreigners poured into this country, but so vast were the dominions within which a man could be born and yet be a subject of the English king that the question of alien status was not very likely to arisel. It is not until the kings of England begin to lose their continental dominions and English nationality becomes more limited in its sphere and more clearly defined that the law is forced to deal with these problems.

Magna Carta (c. 41) confers certain privileges and protection upon alien merchants, praeterquam in tempore gwerrae, et si sint de terra contra nos gwerrina, though even these are merely to be detained upon the outbreak of war sine dampno corporum et rerum until information be received of the satisfactory treatment of English merchants in the enemy country, in which case the enemy merchants salvi sint in terra nostra, and presumably allowed to remain.

Here at any rate is a suggestion, though not for procedural 1 Pollock and Maitland, History of English Law (2nd ed.), Vol. I. 460.

purposes, of the difference between an alien enemy and an alien friend.

A similar notion of reciprocity occurs in a case in the year 1220 where in answer to a claim of dower the defendant pleads, successfully, that he need not answer, because the plaintiff is de potestate Regis Francie et residens in Francia, et provisum est a consilio domini Regis quod nullus de potestate Regis Francie respondeat in Anglia, antequam Anglici respondeantur de iure suo in terra Regis Francie et ipsa nullam mananciam habet in partibus istis!,' which is more than a mere plea of alien nee. It has been pointed out that throughout the whole of the first half of the thirteenth century 'a permanent relation of warfare' existed between England and France despite occasional truces. It can hardly be claimed that this is a clear instance of the plea of alien enemy. If that were so, there would be no question of reciprocity. Further, it is not clear whether the order of the consilium domini Regis was ad hoc or declaratory. Nevertheless, it shows that (1) the law is prepared to allow some sort of exceptio to defeat the claims of an alien enemy, and (2) a distinction exists in point of procedural capacity between the alien enemy and the alien friend, a fact which makes it more difficult to understand the temporary eclipse of that distinction which is about to follow. Pollock and Maitland attribute this eclipse to the growth of a national sentiment and a general detestation of foreigners caused by a plague of royal favourites from the Continent. Whatever the cause may be, it seems probable, despite the existence of statutes giving aliens the right to a jury de medietate linguaes, that until the middle half of the fifteenth century there was little need to make any distinction for forensic purposes between alien friends and enemies. The status of the former was quite precarious enough. Littleton's treatise makes this clear4.

1 Bracton's Note Book, case 110. See also cases 730 and 1396. 2 Pollock and Maitland, op. cit., Vol. 1. 461. 3 See note, p. 94, Thayer's Evidence at the Common Law. 4 Litt. 198; Co. Litt. 129 a and b.

It is interesting to note the context of Littleton's passage upon aliens. He tells us that there are ‘six manner of men who if they sue, judgment may be demanded if they shall answer.' The first is the villein suing his lord, the second the outlaw, the fourth is the man against whom judgment has been given in a praemunire, the fifth one who‘is entred and professed in religion,' the sixth one who is excommunicated by the law of Holy Church.

"The third is an Alien which is born out of the ligeance of our Sovereign Lord the King; if such Alien will sue an action real or personal, the Tenant or Defendant may say, that he was born in such a country which is out of the King's Allegiance, and ask Judgment if he shall be answered.'

Coke's comment may be interpolated here:

Real or personal. In this case the law doth distinguish between an Alien that is a Subject to one that is an Enemy to the King, and one that is Subject to one that is in League with the King: And here it is, that an alien Enemy shall maintain neither real nor personal Action, Donec terrae fuer, communes, that is, until both Nations be in Peace; but an Alien that is in League shall maintain personal actions; for an Alien may trade and traffick, buy and sell, and therefore of Necessity he must be of Ability to have personal Actions, but he cannot maintain either real or mixt Actions...'

And later he says:

'Et demaund judgment sil serra respondue. So as the Tenant or Defendant shall neither plead Alien nee to the Writ or to the Action but in Disability of the Person, as in case of Villenage or Outlawry before. And Littleton is to be intended of an Alien in League; for if he be an alien Enemy, the Defendant may conclude to the Action.'

Meanwhile, before Littleton wrote, the distinction between alien friend and alien enemy has reappeared, and in the year 1453 we find a defendant in an action of trespass to the house of an alien pleading 'that the plaintiff is and was on the day of the purchase of the writ an alien born in the said town of L. under the allegiance of the King of Denmark who is enemy to' the King of England.

1 See note on this expression, Pollock and Maitland, op. cit., Vol. I. 462. 1 Y. B. Hil. 32 Hen. VI. f. 23.

“Trespass fuit port vs. un J. ds mān debruse. Wangford. Nous dioms que le plaintife est alien nees a L. hor del legiance le roy et demand judgement de brief. Littleton. Le plee va al accion et il conclud. al brief. Wangford. Dites que vous voilles. Littleton. Al plee pled par le maner. Ashton. Si un alien come Lumbard, Galiman, ou tiel marchant qui vient icy per licence et safe conduit et prent cy en Londres ou ailours un meason pur le temps si ascun debruse le meason et prent les biens il av accion de trespass, mes sil soit enemy le roy et viet eins sans licence ou safe conduite auter est. Et puis a auter jour le def. dit que le plaintife est et fuit jour d. brief purchase un alien nees en le dit ville de L. de south le legiaunce le Roy de Denmarke que est enemy a etc et demand judgement si accion?'

(In view of Littleton's statement quoted above, it is curious to note that he was counsel in this case.)

Again, in 1480 there is a case which may be regarded as the foundation of the statements in the Abridgements. A large part of the discussion turns upon whether a state of war is a question of fact or depends upon a formal declaration, but it is agreed that an action of Dette sur Obligacioun will not lie at the suit of an alien born under the allegiance of an enemy of the king. “Si un que est south lobediens le enemy le roy ad un obligacioun fait a luy, ceo est ousterment void.' Upon the question of what will happen to the obligation there is no agreement, but Brian thinks the king will have it.

Brooke quotes this case in several passages, and is followed by later abridgers. For instance, Rolle (1. 195, Alien Enemies) puts it in the form of three propositions. 'If a man is bound to an Alien Enemy, it is void against the person bound. So if a man is bound to an Alien Amie who afterwards becomes an Enemie, it is void against him. But in both cases the King will have it' [i.e. the bond] ‘sed quaere.'

Dyer, reporting a case in 1514, says: 'And notwithstanding he is an alien, yet he shall be received in all personal actions, if there be no war between this realm and the

2 Y. B. Hil. 19 Edw. IV. f. 6. 3 Dette, 219; Denizen and Alien, 16, 20; Obligation, 54; Travers, 307. 4 Vol. 1. 2 b. 6 Hen. VIII.

« EdellinenJatka »