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The attitude of the common law is illustrated by Sylvester's casel.

'If an alien enemy come into England without the Queen's protection, he shall be seized and imprisoned by the law of England, · and he shall have no advantage of the law of England, nor for any wrong done to him here?; but if he has a general or special protection, it ought to come of his side in pleading.'

It does not appear what the action was for, but'alien enemy' was held a good plea in abatement.

DEFINITIONS OF ALIEN ENEMY. Any definition of an 'alien enemy,' if it is to be of any use at all, should state clearly the point of view from which the matter is approached. Broadly speaking, there are two main tests (the national and the territorial) and two main points of view from which, or purposes for which, a test is necessary. If we desire to ascertain a man's personal rights and liabilities, for instance, whether he is liable to be interned, whether he is entitled to a writ of habeas corpus, whether he may live in a prohibited area, or whether he comes under some particular clause of the Aliens Restriction Act, then nationality is the main test. Of which country is he a subject? To which Government does he owe permanent allegiance? But if our object is to ascertain his position as a contractor, as a trader, as a litigant, as one desiring to have intercourse with others at home and abroad, then our main test becomes his locality in some form or another. Sometimes this test takes the form of 'voluntary residence,' sometimes the place where he carries on business,' sometimes merely the place where he happens to be. If he is voluntarily resident, or carrying on business, or perhaps merely is, without a residence or a business, in enemy territory, then, whatever his nationality may be, enemy, neutral, allied, or British, he is an alien enemy for purposes of litigation and intercourse in the widest sense. The territorial

1 (1702) 7 Mod. Rep. 150. See also Dyer 2 b.

2 This has been greatly modified by cases decided during the present war-see L. Q. R. xxxiv. 134 (April 1918) and Rodriguez v. Speyer Brothers (1919] A. C. 59. See Chapter III of this book.

test is stated in the opening paragraph of the head-note to Porter v. Freudenbergas follows:

“The test of a person being an alien enemy is not his nationality but the place in which he resides or carries on business. A person voluntarily resident in, or who is carrying on business in, an enemy's country is an alien enemy.'

The emergency legislation already referred to enables us to classify alien enemies in the personal sense as (1) those who have registered themselves under the Aliens Restriction Act and Orders thereunder, and are at large; (2) those who have not so registered themselves but are nevertheless at large; and (3) those who are interned. Internment merely curtails personal liberty, and does not destroy procedural capacity, and probably not contractual, proprietary, or testamentary capacity2. In addition to the definition or description of the alien enemy in the territorial sense given in Porter v. Freudenberg?, the emergency legislation has provided us with an elaborate ad hoc definition which should be noted. This territorial definition, after much emergency legislation, may be summarized in its main features as follows: ‘Enemy' means any person or body of persons of whatever nationality (even British) (and, if incorporated, wherever incorporated) resident or carrying on business in the enemy country or in territory in hostile occupation, and any person or body of persons of enemy nationality resident or carrying on business (and, if incorporated, wherever incorporated) in China, Siam, Persia, Morocco, Liberia, or Portuguese East Africa, but not if resident or carrying on business elsewhere including enemy territory in friendly occupation3.

We have referred above to the two main tests to be applied to the elucidation of the term 'enemy,' the national and the territorial, and the two main purposes for which these tests

1 (1915) 1 K. B. 857 (C. A.).
2 Schaffenius v. Goldberg (1916] 1 K. B. 284 (C. A.).

8 See also the Trading with the Enemy (Enemy Subjects interned in Neutral Countries) Proclamation of November 27, 1917, and the Trading with the Enemy (Extension of Powers) Act, 1915, and Statutory Lists issued thereunder.

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. I. 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.

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