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which is denied to an alien enemy when interned, namely, the writ of habeas corpus.

In Weber's case', an interned alien enemy applied for a writ of habeas corpus, and the argument turned on the question of nationality. The Divisional Court, the Court of Appeal, and the House of Lords held that Weber had not ceased to be of German nationality, and the writ was refused. The point that he was a prisoner of war, and for that reason not entitled to a writ of habeas corpus, was not taken. Meanwhile, in the course of Weber's litigation, Liebmann's case was decided by a Divisional Court consisting of Bailhache and Low JJ.2 Liebmann was served with a document entitled 'notice of intended internment of an alien enemy,' informing him that it is intended to intern you as a prisoner of war.' He applied without success to the Home Office Advisory Committee to exempt him from internment, was interned, and now applied for a writ of habeas corpus on the ground (not material for present purposes) that by reason of his discharge from German nationality he was not an alien enemy, though admittedly not a British subject. The Crown took the preliminary point that Liebmann was a prisoner of war, and that therefore the Court had no jurisdiction to grant a writ of habeas corpus to him, and upon the authority of the Three Spanish Sailors, previously discussed”, and other two cases—all three being cases where the prisoners of war were men who had been taken in arms fighting against this country—the objection was upheld, having regard to the methods of warfare now in vogue. The reasoning by which this result was reached is obscure. It is not denied that an alien enemy at large is entitled to a writ of habeas corpus, but once interned, it is argued, he became a prisoner of war and disentitled to the writ. Internment, however, was the very act for which redress was claimed, and the legality of which was challenged. The Crown, therefore, by doing the act which came into question ipso facto put that act out of question.. There may be a way out, but it must be confessed that to us the reasoning underlying the judgment on this point looks uncommonly like a petitio principii. The Aliens' Restriction Act, 1914, and Orders thereunder, contained no express power to intern and, in the event of the failure of the preliminary objection, the Crown was thrown back upon common law prerogativel.

i (1916) 1 K. B. 280, n.; (1916) 1 A. C. 421. See pp. 14-16 of this book for further remarks upon Weber's and Liebmann's cases. 2 (1916) 1 K. B. 268.

3 L. Q. R. XXXI. 164; p. 39 of this book.

On the whole, the development of the law regulating alien enemies as litigants during the past three years reflects credit upon the vigour and flexibility of the English common law and its ability to rise to the occasion' and adapt old principles to meet new needs. The help of the legislature was invoked in the Legal Proceedings against Enemies Act, 1915, to obviate, in cases where a British subject desires to obtain from the Court a declaration as to his rights and liabilities upon a pre-war contract (of which there is written evidence) with an enemy, certain difficulties in the way of serving the writ of summons and of obtaining the best evidence of a material document.

Summary. We are now in a position to repeat the summary appearing in Law Quarterly Review, XXXI. pp. 167-9, in April 1915, and make the necessary amendments and additions, citing only the new references:

(A) As plaintiff, or person in the position of plaintiff, an alien enemy cannot during the war institute proceedings in an English court or carry on proceedings pending at the outbreak of war,

(i) unless he is in the United Kingdom, whether domiciled or not, and has duly complied with the Aliens' Restriction Act, 1914, and the Orders thereunder, even though he may be in internment, at any rate if the internment is merely in pursuance of general policy?; or

(ii) (probably) unless he is resident in a neutral or allied country3; or

i See also Forman's case (1917) 34 T. L. R. 4. 2 Schaffenius v. Goldberg (1916) 1 K. B. 284 (C. A.). 3 In re Mary, Duchess of Sutherland (1915) 31 T. L. R. 394 (C. A.).

(iii) unless he is suing in connexion with a commercial transaction in respect of which either he or his correspondent in this country holds a licence to trade from His Majesty's Government; or

(iv) unless he has come to this country'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; or

(v) unless he is merely a nominal co-plaintiff with a British subject or other person who is not disqualified as a plaintiff and whɔ is the real plaintiff, and the only one substantially interested.

But an interned alien enemy is not entitled to a writ of habeas corpus to try the cause of his internment.

(B) As defendant, an alien enemy, whether in this country or not, can be sued during war in proceedings commenced before or after the outbreak of war, and is entitled to be represented by solicitor and counsel and to have all the ordinary privileges, and be subject to all the ordinary liabilities, of a defendant; except that

(i) he cannot counterclaim, but may plead his claim pro tanto as a set off”;

(ii) he cannot take third-party proceedings:; (iii) he cannot execute a judgment for costs during the war;

(iv) he cannot claim the benefit of the Courts (Emergency Powers) Act, 1914 (see s. 1 (7)).

(v) In cases to which the Legal Proceedings against Enemies Act, 1915, applies, the rules of substituted or other service of a writ of summons and the rules of evidence may at the discretion of the Court be relaxed in favour of a British subject as plaintiff who would otherwise be inconvenienced or prejudiced by the absence of the alien enemy from the jurisdiction.

(C) As appellant. An alien enemy plaintiff (unless coming within the privileged exceptions) cannot appeal, and, if notice of appeal has been lodged before the outbreak of war, the hearing of the appeal will be suspended until the termination

1 Liebmann's case (1916] 1 K. B. 268. 2 Re Stahlwerk, etc. [1917] 2 Ch. 272.

8 Halsey & another v. Löwenfeld (Leigh & Curzon Third Parties) (1916) 2 K. B. 707 (C. A.).

of the war. On the other hand, an alien enemy defendant has the same right of appeal as any other defendant, whether he is sued under the Legal Proceedings against Enemies Act or otherwise.

(D) Bankruptcy. (i) As creditor, an alien enemy cannot petition or prove for a debt, unless he comes within the privileged exceptions mentioned at (A) above.

(ii) As debtor, he may be made bankrupt and may apply for and obtain his discharge.

ADDENDUM

The past eighteen months have produced very little requiring to be added to the foregoing remarks.

Porter v. Freudenberg”, and the two other cases heard together with it, had stopped short at a full Court of Appeal, and the House of Lords had had no occasion for an investigation of the procedural capacity of enemies. In the Daimler Co.'s case there were other fish to fry. At last in June 1918 that House got their opportunity and took it 3. The wealth of authorities examined, the length of the report (eighty-five pages in the Incorporated Council's report), and the amount of research involved (compared with which the point actually decided was small) would in a by-gone age have earned for the case the title of "The Case of the Enemy Partner' instead of the prosaic Rodriguez v. Speyer Brothers. Before the war the plaintiffs were a firm carrying on business as bankers in London and consisting of six partners, of whom four were British subjects, a fifth a subject of the United States of America and the sixth a German subject resident in Germany. (It must be assumed that the last was the only one resident in enemy territory.) Upon the outbreak of war the sixth became an 'enemy resident<,' and in consequence the partnership was ipso facto dissolved. It then became necessary to get in the assets, and in the course of doing so a writ was issued against the defendant in the name of the plaintiff firm 'which had the same effect as if the names of the individual partners had been set out.' In reply to an application by the defendant to set aside upon a plea of alien enemy a judgment which had been obtained in default of appearance, the plaintiffs contended inter alia that the disabling effect of the plea only operated where the enemy was a substantial plaintiff, suing in his own right, and did not apply, e.g. to a plaintiff who was merely joined for the sake of conformity or who was suing en autre droit. The House by a majority (Lord Finlay L.C., Viscount Haldane and Lord Parmoor; Lord Atkinson and Lord Sumner dissenting) accepted this contention and refused to give effect to the plea of alien enemy when the result 'would be to inflict hardship not on the enemy but on British and neutral partners.' This raised the wider question of the true nature of the plea. Is it a rule of public policy capable of modification when its application would militate against the public interest? The majority in the House of Lords answered this question in the affirmative, but the two dissentients preferred to regard the character of alien enemy as implying an inherent personal disability, firmly rooted in precedent and to be 'applied without consideration of its effects.' Their lordships' examination of the authorities, medieval and modern, presents a most instructive record of the development of the plea.

1 In re Wilson; Ex parte Marum (1915) 84 L. J. (K. B.) 1893. In re Hilckes (supra) where the Court of Appeal found it unnecessary to say anything about Ex parte Boussmaker (1806) 13 Ves. 71. 2 (1915] 1 K. B. 857 (C. A.).

3 (1919) A. C. 59. See p. 60 of this book.

We saw in the case of In re Mary, Duchess of Sutherland on p. 49 above that there was a strong inclination to treat an enemy subject resident in a neutral country as exempt from the disabilities of the alien enemy litigant. This view now receives some confirmation from the judgment of Eve, J. in the cases of In re Grimthorpe's Settlement: Lord Islington v. Countess Czernin, and Beckett v. Countess Czernin?, where the learned judge directed certain income to be paid to the Countess, an enemy subject, then resident in Rome, so long as she resided in allied, neutral, or British, territory. Her husband

1 [1918] W. N. 16.

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