the 15th March, and on the 23rd the defendant obtained an order to plead. On the 28th war was declared against Russia, and the defendant took out a summons to stay proceedings on the ground that the plaintiff had become an alien enemy, or, in the alternative, for leave to plead such a plea in abatement. In April the summons was refused on the ground that the defendant, by the terms on which he had obtained on the 23rd March an order for time to plead, namely, to plead issuably, was by the rules of pleading then in force precluded from entering such a plea as that of alien enemy. No authorities whatever are cited in the report, and it is submitted that the case turns purely on an obsolete rule of pleading, and is of no authority at the present day.

In November of the same year, in the Queen's Bench, the defendant in the case of Alcinous v. Nigreu1 pleaded that the plaintiff, a Russian, was an alien enemy, was residing in the kingdom without the licence, safe-conduct, or permission of the Queen, and 'has become such enemy as aforesaid since the last pleading in the action.' On demurrer the Court (Lord Campbell C.J., Coleridge, Wightman, and Erle JJ.) upheld the sufficiency of the plea. No cases are cited, and the plaintiff's counsel is not reported to have argued the point taken successfully in Shepeler v. Durant (supra).

Alcinous v. Nigreu (supra) may not be very clear as to the circumstances of the plaintiff's residence here, but it certainly follows Le Bret v. Papillon (supra), and casts doubt upon Shepeler v. Durant (supra). In the cases reported since the outbreak of the present war it does not even seem to have been suggested that an alien enemy plaintiff who has delivered a statement of claim in time of peace may-for that reasoncontinue his action during the war, and Von Hellfeld v. Rechnitzer 2, where the pleadings were closed on July 31, 1914, and the plaintiff, an alien enemy, was not allowed to proceed with his action, is direct authority to the contrary. It is submitted, therefore, that the fact that the writ was issued or the pleadings closed before the outbreak of war, does not enable 1 (1854) 4 E. and B. 217. 2 The Times Newspaper, December 11, 1914.

an alien enemy plaintiff to continue his action during the war. The outbreak of war after verdict and before judgment, despite Venbryen v. Wilson (supra), must also, it is submitted, put a stop to further proceedings1.

(2) Defendants. English authority on the position of a defendant alien enemy is scarce, and the Attorney-General's recent argument before the full Court of Appeal turned largely on the position of felons, outlaws, and attainted persons as declared in a series of decisions which he cited. Bacon's Abridgement, 7th ed., vol. 1. at p. 183, and Albrecht v. Sussmann2, give some authority for saying that an alien enemy could bring a bill of discovery to assist him in his defence, and therefore that he could not repel an action by pleading that he was an alien enemy. Bailhache J. in Robinson v. Continental Insurance Co. of Mannheim3 pointed out that to allow an alien enemy defendant to set up such a plea was 'to injure a British subject and to favour an alien enemy, and to defeat the object and reason of the suspensory rule. It is to turn disability into a relief.' He refused the defendant's summons to stay all proceedings, fortifying his judgment by the passage from Bacon's Abridgement referred to above and by certain American decisions, and his judgment has since received the approval of the full Court of Appeal.

C. Some Doubtful Points.

(1) Interned Alien Enemies. It does not seem necessary to give any separate consideration to the case of (1) Prisoners of war in the narrowest sense, i.e. members of the armed forces (including reservists) of the enemy captured on the field of battle or at sea, nor to the case of (2) Prisoners of war in a somewhat wider sense, i.e. members of the armed forces of the enemy (including reservists) who were resident or temporarily in this country at the outbreak of war and were then interned. The question of their procedural status is not likely to give much difficulty, and some light is shed upon it by the

1 Petersdorff's Abridgement (sub tit. Abatement and Alien Enemy) contains a number of cases on Pleadings. See also infra.

2 (1813) 2 V. and B. 323.

3 [1915] I K. B. at p. 159.

cases we are about to cite. There is, however, another class of alien enemy prisoners which requires detailed consideration, i.e. (3) interned civilians.

Class (2) can fairly be described as prisoners of war. Class (3) are being so described, and it seems probable that they are correctly so described. The Home Secretary stated in the House of Commons on November 26, 1914, that he was advised that they are prisoners of war. The Douglas (Isle of Man) coroner, in opening the inquests upon the German prisoners shot in the course of a riot there, also referred to them as prisoners of war1.

That being so, what help can be obtained from the law reports as to the procedural status of the persons in class (3) during time of war? Let us take two typical cases. (i) A, an alien enemy merchant, registered himself in the first week of August, 1914, in accordance with the Aliens Restriction Act, and continued to carry on business until he was arrested and interned in October, not in respect of an offence but in accordance with the general policy of the Executive at that time. At the time of his arrest a customer, B, owed him £500. A's business is now being carried on by his managing clerk in frequent consultation by correspondence with A. Can A sue B to-day for £500?

(ii) X, an alien enemy hairdresser, similarly registered himself and continued to carry on his business until he was similarly arrested and interned in October. A few days before, some foolish youths display their patriotism by smashing up X's shop and doing damage to the extent of £50. Can X sue his aggressors to-day for £50?

Neither of these cases is at all fanciful. Similar circumstances are almost certain to occur. Now let us consider the authorities. There seem to be several ways of approaching the question.

(a) We may make a start by saying that A and X were residing here per licentiam et sub protectione regis when the causes of action accrued to them, and that therefore they get the benefit of the doctrine expressed in Wells v. Williams (supra)

1 The Times Newspaper, November 26, 1914.

and are allowed to sue, unless anything has happened subsequently to suspend the right of action. Now it will be noticed in Lord Raymond's report of Wells v. Williams that Serjeant Wright takes the point that the plaintiff in that case 'came here sine salvo conductu.' He admitted that an alien enemy who comes here with 'safe-conduct may maintain an action.' But unless there is a safe-conduct, though it be per licentiam et protectionem, he cannot maintain an action.' 'For by the same reason a captive or prisoner of war may maintain an action.' His contention upon the absence of a safe-conduct was overruled, but we may note his argument, which may be expressed thus: 'Unless you make a safe-conduct an essential, there is nothing to prevent even a prisoner of war from bringing an action.'

Too much stress cannot be laid upon the precise words used, but there is an expression in the judgment in the same case which should be noted: 'If he has continued here by the king's leave and protection...without molesting it or being molested by it, he may be allowed to sue, for that is consequent on his being in protection.' Certainly a hostile act by A or X would suspend his right of action. Can the arrest and internment be called a molestation by the Government? It is difficult to see what acts of molestation Chief Justice Treby had in his mind. Possibly he was thinking of reprisals in the event of English subjects being badly treated in the enemy country.

(b) Again, it may be argued on the ground of necessity that interned civilians should be under no procedural disability. They were allowed to remain and to carry on their business, and the law impliedly gave them those means of protecting their persons and property which are open to all persons living within the protection of the King. As Coke says in the passage before quoted: 'For an Alien' (i.e. that is in league) 'may trade and traffick, buy and sell, and therefore of Necessity he must be of Ability to have personal Actions.'

(c) On the other hand, we may ignore their status at the time of the arrest and internment, and treat them as ordinary prisoners of war. What then would be their position?

In 1779, in the case of Three Spanish Sailors1, a motion was made for a writ of habeas corpus to be directed to the commander of a sloop of war to bring up three Spanish seamen, alleged to be wrongfully detained as prisoners of war. The Court (Gould, Blackstone, and Nares, JJ.) refused the writ, saying

'these men upon their own shewing are alien enemies and prisoners of war, and therefore not entitled to any of the privileges of Englishmen; much less to be set at liberty on a habeas corpus. The story as related by them is not much to the credit of Captain L.; but we can give them no redress.'

Upon this case it was argued in Maria v. Hall (infra) that

'the writ of habeas corpus is only a summary mode of obtaining the same remedy which might otherwise be had by an action of trespass; and if a prisoner of war cannot maintain trespass, there is no reason why he should maintain any other action.'

Maria v. Hall was a case brought in 1800 against the master of a ship by a Spanish sailor, upon a contract for wages for working the ship home to this country. It appears that he was captured abroad and then put on board the ship to be conveyed to England. The defendant pleaded that the plaintiff was an alien enemy, born in foreign parts, &c. The case is reported in 2 Bos. and P. 236 merely on a motion for security for costs, but in R. v. Depardo2 a report of the argument in Maria v. Hall is appended in the form of a note. Heath J. says that the Court of Common Pleas was divided in opinion in Maria v. Hall.

In 1797, in the case of Sparenburgh v. Bannatyne1, a prisoner of war at St Helena had entered into a contract with the defendant, the captain of the ship Caledonia, with the consent of the commanding officer at St Helena, to serve as a seaman and work the ship home to London. On arrival in London he was taken into custody as a prisoner of war, and now sued to recover his wages. He was met by the plea of alien enemy. The Court (Eyre C.J., Heath and Rooke JJ.) gave judgment in his favour, the first mainly on the ground that, being originally