Sivut kuvina

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)(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

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. (1702) 7 Mod. Rep. 150.

3 Fortescue, 221.


[ocr errors]

Promises, and now remains in this Kingdom, by Licence and Protection of the King,' was held good.

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.

I C. Rob. 196 at p. 201.

2 (1692) Skinner, 370.


Later he quotes Bynkershoek to the effect that 'legality of commerce and the mutual use of Courts of Justice are inseparable. It is doubtful whether the learned judge is right in basing the prohibition of intercourse upon the procedural disability, for the prohibition is certainly as old as the thirteenth year of Edward II's reign (2 Rolle's Abridgement 173, Guerre), when the enemy was Scotland.

The reports during the Napoleonic wars afford instances of the operation of the plea of alien enemy both against alien enemies and against persons suing on their behalf. In one case, however, R. v. De Manneville-, a writ of habeas corpus was granted to an alien enemy to recover his daughter aged eight months from the hands of the mother.

To come to more recent times, the new3 factor is the system of registration created by the Orders in Council made under the Aliens Restriction Act, 1914. What is the effect of registration? Does it confer any privilege, or does it merely impose restrictions ? Mr Leslie Scott discusses this question on pp. 19–23 of the first edition of The Effect of War on Contracts. It fell to the lot of Sargant J. in Princess Thurn and Taxis v. Moffitto to give the first High Court decision upon the point, and his judgment has since received the approval of the full Court of Appeal. In that case the action was pending at the outbreak of war, and the plaintiff is stated (pp. 59 and 61) to have resided in the United Kingdom. She had complied with the Orders in Council, and the defendant's application to stay all proceedings on the ground that she was an alien enemy was refused. Had she a domicile in this country or was she merely temporarily in the country at the outbreak of war? Her husband, a subject of Austria-Hungary, was ‘abroad and probably engaged in fighting against this country. From the passage in Hall's International Law (6th ed., p. 388) which Sargant J. quotes with approval, it would seem that, in the opinion of the learned judge, registration removes the procedural disability, not merely in the case of a plaintiff having a civil or commercial domicile, but also in the case of an alien enemy who merely happens to be here at the outbreak of war and is ‘allowed to remain... during good behaviour. It will be noticed that a married woman can acquire this ‘registration status' independently of any act on the part of her husband.

1 See, on the question of residence, Boulton v. Dobree (1808) 2 Camp. 163, and Alciator v. Smith (1812) 3 Camp. 144, in neither of which does Wells v. Williams (supra) appear to have been cited. 2 (1804) 5 East, 221. 3 See, however, 43 Geo. III. c. 155, S. 22.: [1915] 1 Ch. 58.

It seems to be safe to state that the effect of the new system of compulsory registration is that, without complying with it, civil or commercial domicile in this country will have no effect in removing the disability of an alien.

(1) Plaintiff in action pending at the date of the outbreak of war. Is such a plaintiff in any better position than one who issues his writ during time of war? Oppenheim? states that 'if during time of peace a defendant obtains an opportunity to plead, and if subsequently war breaks out with the country of the plaintiff, the defendant may not plead that the plaintiff is prevented from suing,' citing Shepeler v. Durant, but it is submitted that this statement is not borne out by the cases.

In Le Bret v. Papillons, an action on a French judgment, the plaintiff had exhibited his bill against the defendant, when subsequently war broke out between their respective countries. The defendant pleaded (inter alia) that the plaintiff was now an alien enemy, to which the latter replied that that did not matter, as he was not an alien enemy when he exhibited his bill. The Court held that the plaintiff was 'barred from further having or maintaining his action. But in Venbryen v. Wilson4 a motion to stay judgment and execution, on the ground that the plaintiffs had become enemies since the verdict, was refused.

In Shepeler v. Durant (supra) the plaintiff, a subject of, or resident in, Russia, suing in the Court of Common Pleas upon a contract for the sale of goods, delivered his declaration on

1 International Law (2nd ed.), Vol. II. p. 133.
? (1854) 14 C. B. 582.
3 (1804) 4 East, 502.

(1808) 9 East, 321.

[ocr errors]
« EdellinenJatka »