« EdellinenJatka »
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. “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
1 Y. B. Hil. 32 Hen. VI. f. 23.
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.
kingdom to which the alien belongs, &c., for then he is an enemy of our lord the king, in which case he shall have no benefit from his laws.
The plea is now becoming well recognized, for Brooke (Nonabilitie 62) tells us that in 1547 (in trespass) 'fuit dit que alien nee nest plee sil ne dit ouster que le plaintiff est de allegeance dun tiel enemy le roy in transgressione, car nest plee in actio personal vers alien que est de allegeance de tiel prince que est de amity de roy1.' What has happened to Littleton's doctrine now?
In 1552, so we are told by Benloe (61), it was 'the opinion of the Justices of the Common Bench that an alien who is not an enemy of the King can have goods and leases in England and can make a will of them although he is not a denizen ; and in 1589 we find the plea of alien enemy successful in defeating in an action of debt an alien enemy administratrix, ‘for the Court will not suffer that any enemy shall take advantage of our law?.'
It seems, therefore, that we can state that by the end of the sixteenth century it was clearly recognized that the plea of alien enemy was good in personal actions. In real actions it was not necessary3.
The next phase will show that the law recognizes alien enemies and alien enemies. They are not all tarred with the same brush, or rather some are more heavily tarred than others. In the celebrated Calvin's case4 we are told that ‘if this alien becomes an enemy (as all alien friends may) then he is utterly disabled to maintain any action or get any thing within this realm. And this is to be understood of a temporary alien, that being an alien may be a friend, or becoming a friend may be an enemy.' In other words, enemy status may come and go. But there is another distinction, of importance for the future:
1 Brooke's New Cases, 375, 38 Hen. VIII. 317, presumably refers to the same case, though the Abridgement cites i Edw. VI.
2 Owen, 45. Also reported Cro. Eliz., Vol. 1. part ii. 684. The case of Watford v. Masham, Sir F. Moore's Rep., p. 431, n. 605, Hil., 38 Eliz., can only be explained by supposing the omission of a negative.
3 See Co. Litt. 129 b, and his apologies for Littleton. 4 (1608) 7 Rep. 18 a.
“The third kind of enemy is inimicus permissus, an enemy that cometh into the realm by the King's safe conduct, of which you may read in the Register, fol. 25, Book of Entries Ejectione primae, 17, 32 Hen. 6, 23 b, &c.'
B. Modern Law. (1) Plaintiffs. The modern law may fairly be said to begin with the case of Wells v. Williams (1697)'. We have reached the point at which the plea of alien enemy is sufficient to prevent an alien enemy from suing, though, in spite of one or two indications, it is not yet clearly established whether the disability admits of any exceptions, and, if so, what they are. In Wells v. Williams (an action on a bond given, presumably, in time of peace) Chief Justice Treby held that an alien enemy living here by the King's licence and under his protection may sue although he may have come here since the war without a safe-conduct.
'If he has continued here by the king's leave and protection without molesting the Government or being molested by it, he may be allowed to sue, for that is consequent on his being in protection ...but an enemy abiding in his own country cannot sue here.'
Four years later, in Sylvester's case we are told:
'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.'
The nature of the action does not appear, but alien enemy was held a good plea in abatement.
In George v. Powel (1717)3 (a case of Indebitatus Assumpsit for money lent) there was a discussion as to how the plea of alien enemy should be pleaded, when in bar and when in abatement, and a replication that 'the Plaintiff was at the time of the Promises, and now remains in this Kingdom, by Licence and Protection of the King,' was held good.
1 1 Ld. Raym. 282; 1 Salk. 46; 1 Lutw. 34. Dr Baty has expressed the view that this case was decided on the ground of the indulgence accorded to the resident Protestant subjects of Louis XIV. 2 (1702) 7 Mod. Rep. 150.
3 Fortescue, 221.
The rule of disability received an extension in the year 1794 in the case of Brandon v. Nesbitti. There the plaintiff was a British subject who had effected an insurance policy as agent for an alien enemy principal. The principal was indebted to the agent in a sum which exceeded the amount claimed on the policy, so that 'the money...when recovered will not go out of the kingdom (as was supposed) to strengthen the hands of the enemy, but will be retained here by the plaintiff by way of set off.' Lord Kenyon C.J. held, however, that an action will not lie either by or in favour of an alien enemy.' The proceeds of a judgment, though lawfully intercepted by the British agent, would nevertheless enure to the benefit of the enemy principal. But, it is stated in Villa v. Dimocka, an alien enemy suing in auter droit, e.g. as an executor, is not prevented from recovering.
In 1799, so firmly established is the disability of the alien enemy that Sir William Scott, in The Hoop3, actually bases the prohibition of trading with the enemy (inter alia) on the procedural disability of the alien enemy:
Another principle of law...forbids this sort of communication as fundamentally inconsistent with the relation at that time existing between the two countries; and that is, the total inability to sustain any contract by an appeal to the tribunals of the one country on the part of the subjects of the other. In the law of almost every country, the character of alien enemy carries with it a disability to sue or to sustain in the language of the civilians a persona standi in judicio. The peculiar law of our own country applies this principle with great vigour. The same principle is received in our courts of the law of nations; they are so far British courts, that no man can sue who is a subject of the enemy, unless under particular circumstances that pro hac vice discharge him from the character of an enemy; such as his coming under a flag of truce, a cartel, a pass, or some other act of public authority that puts him in the King's peace pro hac vice; But otherwise he is totally ex lex.'
1 6 T. R. 23. 8 1 C. Rob. 196 at p. 201.
2 (1692) Skinner, 370.