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And in Janson v. Driefontein Consolidated Mines, Ltd. 1 Lord Macnaghten says:
“The law recognizes a state of peace and a state of war, but...it knows nothing of an intermediate state which is neither the one thing nor the other. In every community it must be for the supreme power, whatever it is, to determine the policy of the community in regard to peace and war.'
War does not mean merely 'strained relations 2.'
EFFECT OF OUTBREAK OF WAR UPON ALIENS.
What then is the effect of the existence of this state of affairs on aliens ?
First of all, it divides them into (1) Alien Enemies, and (2) Alien Friends, with sometimes, as in the recent war, a further subdivision of Alien Friends into (a) Allies and (6) Neutrals. As to Alien Friends, whether Neutrals or Allies, when resident in their own countries, our law has little concern except-as the decisions of our Prize Court show-in so far as war affects them in their trading relations. As residents in our midst and litigants in our courts, war does not-apart from special statutes-affect them except in the same way that it affects our own citizens. One of these special statutes is the Aliens Restriction Act, 19143. It appears to be a permanent statute, and arms the executive with wide powers, in the event of war or an occasion of imminent national danger or great emergency,' to regulate aliens—enemies or friends—as to landing, embarking, deportation, residence in certain districts, registration, change of abode, travelling, &c.; and such regulations may be made to relate to any particular class of aliens. A very drastic provision is made by sect. 1 (4) which provides that a man is deemed to be an alien or an alien of a particular class until and unless he disproves it, so that if the police or the military authorities arrest any one of us and charge him with being an unregistered alien enemy, the burden of proof lies upon him to show that he is a British subject. Existing powers with respect to the expulsion and exclusion of aliens are preserved.
1  A. C. at p. 497.
2 See also The Eliza Ann (1813) 1 Dods. 244 and Pitt Cobbett, op. cit., Vol. II. p. 8, and The Teutonia (1870) L. R. 4 P. C. 171.
3 At the present moment 'a Bill to continue and extend the provisions of the Aliens Restriction Act, 1914,' is before the House of Commons.
POSITION OF ALIEN ENEMIES. Let us now consider the position of alien enemies who happen to be in this country at the date of the outbreak of war. In ancient times the rule was that their persons could be seized and their goods confiscated by any one; they had no rights. The practice of making treaties stipulating for a right of exit to their own country has led to what is now almost a rule of international law permitting the departure within a reasonable time of all alien enemies who are not combatants, either active or reservists, in the enemy forces. Thus on August 5, 1914, the Home Office, in pursuance of an Order in Council under the Aliens Restriction Act, issued the following statement:
‘Under the Aliens Restriction Act passed to-day, an Order in Council has been made for the purpose of restricting the movements of alien enemies from, to, and in, the United Kingdom.
'1. After August 10, 1914, alien enemies will not be allowed to leave the United Kingdom at any port without special permit. Until that date they may leave by the following ports: Aberdeen
Rosslare Falmouth 2. After to-day alien enemies will not be allowed to land in the United Kingdom except with special permit, and then only at the above-mentioned ports.
'3. Alien enemies must register themselves with the police, and will be subject to special regulations as to the areas in which they may reside.'
Reservists and other combatants were, however, detained as prisoners of war. It is believed that the German Government followed a more severe course, detaining all men whom they considered to be of military age. However, there is no rule which requires a belligerent to allow enemy subjects to remain in his territory, and he is entitled to expel them if he chooses. If he allows them to remain, he is entitled to make restrictions upon their freedom such as were made under the Aliens Restriction Act, 1914. Numerous restrictions were made under this Act by Orders in Council, partly as to all aliens, and partly as to alien enemies only, particularly as to registration and residence, and as to the possession by alien enemies of certain articles, ranging from fire-arms to pigeons and cipher codes. Another Order appearing in the Gazette of October 8, 1914, prohibited alien enemies from changing their names after October 12, 1914. Further, the Registration of Business Names Act, 1916, provides for the registration of all firms and persons carrying on business (including a profession) in the United Kingdom under any name other than the true and (apart from the change of a woman's name by marriage) original names of the partners or individual.
Having regard to the Aliens Restriction Act, 1914, and the comprehensive powers which it confers on the executive, it is perhaps somewhat academic to consider what is the common law position. It is, however, interesting to notice an enlightened anticipation of subsequent practice (cf. Hague Convention VI for a similar idea) contained in cap. 41 of Magna Carta, dating from days before the idea of International Law in the present sense had been conceived:
Merchant strangers in this realm... And if they be of a land making war against us and be found in our realms at the beginning of wars, they shall be attached without harm of body or goods until it be known to us or our Chief Justice how our merchants be intreated there in the land making war against us, and if our merchants be well intreated then theirs shall be likewise with us.'
1 Upon this Blackstone quotes the remark of Montesquieu that 'the English have made the protection of foreign merchants one of the articles of their national liberty.' Commentaries, 1. 260.
The attitude of the common law is illustrated by Sylvester's case 1
'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 test is stated in the opening paragraph of the head-note to Porter v. Freudenbergas follows:
+ (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.
“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.).
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.