NOTE. There is no rule of international law as to the rights and privileges accorded to an alien enemy in the tribunal of a belligerent. This is purely a question of municipal law and is to be determined by each country in accordance with its own views as to the requirement of national policy. In England it has apparently always been the rule that the courts were closed to an alien enemy abiding in his own country, but as early as 1454 it was held that if an alien enemy came into England under license and safe conduct he could maintain an action against any one who broke into his house and took away his goods, 32 Y. B. Henry VI, fol. 23, b 5, cited by Hyde, II, 216. Likewise in Wells v. Williams (1697), 1 Lord Raymond, 282, the court said:

If an alien enemy comes hither sub salvo conductu, he may maintain an action; if an alien enemy come hither in time of peace, per licentiam domini regis as the French Protestants did, and lives here sub protectione, and a war afterwards begins between the two nations, he may maintain an action; for suing is but a consequential right of protection; and therefore an alien enemy that is here in peace under protection, may sue a bond; aliter of one commorant in his own country.

A century later, Lord Stowell in The Hoop (1799), 1 C. Robinson, 196, declared:

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. peculiar law of our own country applies this principle with great rigour.

The

He indicated however that there might be circumstances which would relieve the alien of his enemy character, "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". Shortly afterward Chancellor Kent gave emphatic utterance to the governing principle when he said in Clarke v. Morey (1813), 10 Johnson (N. Y.), 69:

A lawful residence implies protection and a capacity to sue and be sued. A contrary doctrine would be repugnant to sound policy no less than to justice and humanity.

The English courts, however, did not adopt Kent's view that if an alien was lawfully residing in the kingdom he had capacity to sue. This was denied in Alciator v. Smith (1812), 3 Campbell, 245, and in Alcinous v. Nigreu (1854), 4 E. & B. 217. But the effect of these decisions has been largely nullified by the recent cases in which it has been held that registration according to law carries with it the protection of the government, Princess of Thurn und Taxis v. Moffitt (1914), L. R. [1915] 1 Ch. 58, and is evidence of license to remain, Porter v. Freudenberg (1915), L. R. [1915] 1 K. B. 857. The

same rule has been applied in Scotland, Schulze, Gow & Co. v. Bank of Scotland (1914), 2 S. L. T. 455; in Ireland, Vokl v. Governors of Rotunda Hospital (1914), L. R. [1914] 2 I. R. 543; in Quebec, Viola v. MacKenzie, Mann & Co. (1915), 24 Que. K. B. 31; in Manitoba, Peskovitch v. Western Canada Flour Mills Co. Ltd. (1914), 24 Manitoba, 763; in South Africa, Stern & Co. v. De Waal (1915), So. Af. L. R. [1915] Transvaal, 60; and apparently in India, Husseine v. Weichers (1914), 7 Sind Law Rep. 329. For a good discussion of the early cases see the opinion of Justice Story in Society for the Propagation of the Gospel v. Wheeler (1814), 2 Gallison, 105.

The rule laid down by Chancellor Kent in Clarke v. Morey (1813), 10 Johnson (N. Y.), 69, has generally been followed in the United States. A suit brought before the outbreak of war by alien enemies resident in Germany but which was pending when hostilities began was not dismissed but proceedings were suspended until the return of peace, Plettenburg, Holthaus & Co. v. Kalmon (1917), 241 Fed. 605. The libel brought against a ship by an alien enemy for wages was not dismissed, but was continued until the end of the war, The Oropa (1919), 255 Fed. 132. See also Stumpf v. Schreiber Brewing Co. (1917), 242 Fed. 80; Speidel v. N. Barstow Co. (1917), 243 Fed. 621; Estate of Henrichs (1919), 180 Cal. 175; Heiler v. Goodman's Motor Express Van and Storage Co. (1918), 92 N. J. Law, 415.

In Birge-Forbes Company v. Heye (1920), 251 U. S. 317, 323, Mr. Justice Holmes said:

The plaintiff had got his judgment before war was declared, and the defendant, the petitioner, had delayed the collection of it by taking the case up. Such a case was disposed of without discussion by Chief Justice Marshall speaking for the Court in Owens v. Hannay, 9 Cranch, 180. Kershaw v. Kelsey, 100 Massachusetts, 561, 564. There is nothing "mysteriously noxious". (Coolidge v. Ingles, 13 Massachusetts, 26, 37) in a judgment for an alien enemy. Objection to it in these days goes only so far as it would give aid and comfort to the other side. Hanger v. Abbott, 6 Wall. 532, 536. M'Connell v. Hector, 3 B. & P. 113, 114. Such aid and comfort were prevented by the provision that the sum recovered should be paid over to the Alien Property Custodian, and the judgment in this respect was correct. When the alien enemy is defendant justice to him may require the suspension of the case. Watts, Watts & Co. v. Unione Austriaca di Navigazione, 248 U. S. 9, 22. The exclusion of an enemy claimant from appearance before a prize court in proceedings in which his property rights are being adjudicated seems to be confined to Anglo-American jurisdictions, Nys, Le Droit International, III, 150, and has met with much criticism. In The Gutenfels (Egypt, 1915), 1 Br. & Col. P. C. 102, an indignant judge said:

The fact is that the rule is a bad rule, much more to be honoured in the breach than in the observance; and if we

must acknowledge ourselves to be so far fettered by the dead hand of outworn precedent as to recognize its continued existence, I am, at any rate, determined to permit all such breaches of it as my sense of equity and fair dealing towards the enemy may demand.

In The Möwe (1914), L. R. [1915] P. 1, Sir Samuel Evans declared that whether an enemy claimant should be allowed to appear was purely a question of practice, and in ordering that any enemy claimant who conceives that he is entitled to any privilege or relief under any Hague Convention should be allowed to appear and present his claim, his Lordship used these words:

Practice should conform to sound ideas of what is fair and just. When a sea of passions rises and rages as a natural result of such a calamitous series of wars as the present, it behooves a Court of justice to preserve a calm and equable attitude in all controversies which come before it for decision, not only where they concern neutrals, but also where they may affect enemy subjects. In times of peace the Admiralty Courts of this realm are appealed to by people of all nationalities who engage in commerce upon the sea, with a confidence that right will be done. So in the unhappy and dire times of war the Court of Prize as a Court of justice will, it is hoped, show that it holds evenly the scales between friend, neutral, and foe.

It is not doubted that alien enemies may be sued. Some jurists however have argued that such suits would be unjust to the enemy since he could not be allowed for reasons of public policy to make an adequate defense. This consideration has either been ignored or has been met by a suspension of proceedings until the return of peace. In the older cases the point of view of the court has been like that expressed in Hastings v. Blake (1596), Noy, 1, where it was said:

Men attaint or outlawed shall be put to answer in any action against them, because it is to their prejudice. But in an action brought by them they shall not be answered, because it is to their benefit.

For further discussion of suits against alien enemies see Hall v. Trussell (1603), Moore, 753; Ramdsen v. Macdonald (1748), 1 Wilson, 217; Daubigny v. Davallon (1794), 2 Anstruther, 462; Ex parte Boussmaker (1806), 13 Vesey, 71; Albrecht v. Sussman (1813), 2 V. & B. 323; Barrick v. Buba (1857), 2 C. B. (N. S.) 563; Dorsey v. Kyle (1869), 30 Maryland, 512; McVeigh v. United States (1870), 11 Wallace, 259; Masterson v. Howard (1873), 18 Wallace, 99; De Jarnette v. De Giverville (1874), 56 Missouri, 440; Ex parte Savage (1914). South Africa L. R. [1914], C. P. D. Part I, 827; Robinson & Co. v. Continental Insurance Co. of Mannheim (1914) L. R. [1915] 1 K. B. 155; Halsey v. Lowenfeld (1915), L. R. [1916] 1 K. B. 143; In re

Stahlwerk Becker Aktiengesellschaft's Patent (1917), L. R. [1917] 2 Ch. 272.

In accord with Hanger v. Abbott (1868), 6 Wallace, 532 as to the effect of war on the Statute of Limitations are Hoare v. Allen (1789), 2 Dallas (Penn.), 102; United States v. Wiley (1871), 11 Wallace, 508; The Protector (1872), 12 Ib., 700; Semmes v. Hartford Insurance Co. (1872), 13 Ib. 158; Brown v. Hiatts (1873), 15 Ib. 177. Whether Hanger v. Abbott would be followed in Great Britain is doubtful. Westlake (II, 49), Pollock (Contracts, 86), and Phillipson (Effect of War on Contracts, 76) support it, but there is a dictum to the contrary in De Wahl v. Braune (1856), 1 H. & N. 178, which is adopted by Anson (Contracts, 129) and Lord Lindley (Company Law, I, 53). Parliament however has recognized the principle involved, and in 6 & 7 Geo. v. ch. 18, sec. 3 it is provided that where a person is prevented from building on a site because of circumstances of the war or by public authority, the courts, if there is danger that adjacent owners may acquire a right to light by prescription, may suspend the running of the period of prescription, and such period of suspension is excluded in computing the period required for the acquisition of a right to light by prescription. See In re City of London Real Property Co., Lt., [1917] W. N. 183.

Analogous to the effect of war on the running of the Statute of Limitations is the effect of war on the running of interest on debts during the period in which the debtor and creditor, subjects of enemy states, are forbidden to have intercourse, and hence the payment of interest from one to the other is unlawful. Authority is divided, but seems to favor the rule that interest does not run when the debtor and creditor are separated by the line of war. See Du Belloix v. Lord Waterpark (1822), 1 Dowling and Ryland, 16; Brown v. Hiatts (1873), 15 Wallace, 177; Padgett v. Chothia (1916), 18 Bombay L. R. 190; In re Fried Krupp Actien-Gesellschaft (1917), L. R. [1917] 2 Ch. 188. The subject is fully treated by C. N. Gregory, "Interest on Debts where Intercourse between Debtor and Creditor is forbidden by a State of War," Law Quar. Rev., XXV, 297.

On the effect of war on judicial remedies see a note by E. M. Borchard in Yale Law Journal, XXVII, 104; notes in Harvard Law Review, XXXI, 470, XXXII, 737; Pellizi, "Les Sujets Ennemis devant les Tribunaux en Itale," Clunet, XLVI, 80, 659; McNair, Essays and Lectures upon Some Legal Effects of War; Page, War and Alien Enemies; Baty and Morgan, War: its Conduct and Legal Results; Garner, International Law and the World War; Hyde, II, 216; Moore, Digest, VII, 244.

CHAPTER XIV.

WAR RIGHTS AS TO PRIVATE PROPERTY.

SECTION 1. PRIVATE PROPERTY ON LAND.

ARMITZ BROWN v. THE UNITED STATES.

SUPREME COURT OF THE UNITED STATES. 1814.
8 Cranch, 110.

[The Emulous, owned by citizens of the United States, was chartered to a British company to carry a cargo from Savannah, Georgia, to Plymouth, England. Having been detained in port by the embargo of April 4, 1812, the vessel proceeded to New Bedford, Massachusetts. War was declared in June, 1812, and some months later the cargo was unloaded, and in November, 1812, part of it was sold to the claimant, who was an American citizen. In April, 1813, the attorney of the United States, apparently on his own motion, seized and libeled that part of the cargo which had been sold to the claimant. The District Court dismissed the libel, but the Circuit Court, Justice Story presiding, reversed the sentence, and the claimant appealed.]

MARSHALL, Ch. J., delivered the opinion of the Court.

The material question made at bar is this. Can the pine timber, even admitting the property not to be changed by the sale in November, be condemned as prize of war?

The cargo of the Emulous having been legally acquired and put on board the vessel, having been detained by an embargo not intended to act on foreign property, the vessel having sailed before the war, from Savannah, under a stipulation to re-land the cargo in some port of the United States, the re-loading having been made with respect to the residue of the cargo, and the pine timber having been floated into shallow water, where it was secured and in the custody of the owner of the ship, an American citizen, the Court cannot perceive any solid distinc