ENEMY DEFENDANTS 291 in rebellion. "The defendants were within the Confederate lines, and it was unlawful for them to cross those lines. A notice directed to them and published in a newspaper was a mere idle form. They could not lawfully see and obey it. As to them, the proceedings were wholly void and inoperative."1 "The proceedings," says Sir W. Follett in Don v. Lippmann," were altogether such as neither the Scots nor the English law would recognise. They were taken in the absence of Sir Alexander Don in the courts of a country where he was at the time an alien enemy, where he would not have been permitted by the law of that country to appear and claim any civil rights, and where he had neither property to be attached, nor an appointed agent to be answerable for him. "All the cases in which the decrees of foreign courts have been treated as prima facie evidence of the existence of a debt, have been those where the party did appear, or had full opportunity of appearing . . . or where they had property situate or agents residing within the jurisdiction" (Goddard v. Swinton,3 Edwards v. Parcott Sinclair v. Fraser).5 case. It will be noted that he speaks of property which could be attached, and of the representation by an agent, as elements which might have weakened the But to have an agent with whom one cannot communicate and over whom one can exercise no control is not very helpful. Nor is the process of attachment meant to do more than to secure the appearance of a defendant. If he cannot appear, it is devoid of purpose. 1 Per Bradley, J. 3 Morr. 4533. 4 Ibid. 4535. 2 (1837) 5 Cl. & F. 6. Albrecht v. Sussman1 is the common case of a neutral domiciled and trading in hostile territory. Of course he was held to be an enemy. The only peculiarity of the case was that the consular character did not save him. The illegitimacy of arguing that, conversely, an alien enemy resident and domiciled in a neutral country must be considered as a neutral, is well shown by Dana in his notes to Wheaton. It was, however, alleged in the plaintiff's bill that the defendant had attached goods of theirs in the city of London: and on this circumstance an argument has been founded in support of process against enemies. But the plausibility of the argument vanishes when it is noted that the goods were sent to London under license. Quoad hoc, the aliens were not enemies. The American decisions, in the absence of much authority on those points, are tempting precedents. But the temptation to regard them as applicable to a case of international war must be resisted. It is singular that Prof. Bentwich, regarding it as possible (mainly on this American authority) to sue an alien enemy, nevertheless also approves of the American rule suspending the operation during war of the Statute of Limitations. It is difficult to see why the creditor should have it both ways-why the statute should be suspended whilst the creditor is able to sue.1 1 (1813) 2 V. & B. 323 (Plumer and Eldon). 2 The same was decided in the Baltica, (1854) Spink 264, and Coppell v. Hall, (1868) 7 Wall. 542. 3 Cf. now the Alien Enemy Cases, Times, 20th Jan. 1914. 4 In De Wahl v. Braune, (1856) 25 L.J., N.S. Ex. 343, the mere fact that the statute would bar the remedy was considered by Bramwell insufficient to enable a British subject, who could not sue without joining an alien enemy (her husband) to do so. It is unsatisfactory to undertake, with Bailhache, J., and the Court of Appeal1 the protection of the absent enemy's interests. The safe course is to adhere the principle that he has no locus standi. Any other decision would deprive the Crown of its inchoate right to the enemy's property, by leaving it to be appropriated by the private creditor. In Ludlow v. Ramsays this contingency actually occurred, but the government's claim was abandoned, Prescription Period.-According to Brown v. Hiatt, (1870) 2 Dillon 372, the period of limitation is suspended during the currency of the war, even if it has already begun to run. And so in Levy v. Stewart, (1870) II Wall. 244.* Confiscation for Subjects' Benefit.-The Crown had power to confiscate debts due to an enemy, and formerly regularly did so; but the practice has for many years been discontinued. Probably it can confiscate other choses in action as well and in this case the contract would not be cancelled or suspended, if capable of performance in favour of the Crown. It was suggested (in De Wahl v. Braune, p. 277 supra) that when a wife, prior to 1871, was a subject married to an enemy, the Crown might well seize the husband's rights under her contracts and enforce them for her benefit. The marriage subsisted, for "An alien enemy is perfectly alive though subjected to disabilities."7 1 Alien Enemy Cases, Times, 20th Jan. 1914. 2 See Part IV., Chap. I., infra. 3 (1870) 11 Wall. 581. 4 Cf. p. 277 supra and Troplong, t. ii., De le Préscription, pp. 258 sq. 5 A. G. v. Weedon, Parker 267. • Per Pollock, C.B. 344. 7 Per Martin, B. CHAPTER III TRADING WITH THE ENEMY Origin and Nature of Prohibition - Traffic, not Contract, struck at Bynkershoek — Kent-Scott-Story — Non contractual Traffic-Increasing Importance attached to Financial Bearing-Penalty-Is Withdrawal Trade?Continuous Voyage-Allies-Enemy Character. Origin of Prohibition.-It is scarcely to be doubted that the origin of the rule prohibiting trade with the enemy was neither the abstract notion of the impossibility of any jural relation between enemies, nor the modern notion of the injury which can be inflicted upon a country by declining to trade with it. Examination of the cases discloses the fact that the origin of the rule lay in the danger of permitting unauthorised communication with the enemy. Besides the obvious danger of facilitating sheer treason, there is the further danger of leakage of information and honest unwariness. When dealing with business intimates, political caution takes a second place, and is relaxed. According to the Black Book of the Admiralty, direction is made that "inquisition be taken of all those who intercommunicate, buy, or sell, with any of the enemies of the lord king, without special license of the king or of his admiral." Traffic not Contract.-This doctrine of prohibiting trade with the enemy is quite distinct from the rule BYNKERSHOEK 295 which dissolves or suspends contracts with the enemy,1 and appears to be more modern. We have a clear intimation of it from Bynkershoek (Quæstiones Juris Publici, 1709, I. iii.). Of course in the sixteenth and earlier centuries, an attempt at total prohibition of trade with the enemy had frequently been made. Thus, Queen Elizabeth, in 1586, proclaimed an absolute veto2 against trade with the Dutch on the part of any nation-what would now be called a "paper blockade." Such pretensions subsided during the seventeenth century into the qualified institutions of blockade and contraband. Neutrals would not submit to the wholesale interruption of their commerce with a customer. But as regards the subjects of belligerents, they had to submit to the ordinances of their own sovereigns. And it became generally recognised that trade between belligerent countries was impossible. Bynkershoek gives as the principal reason the great danger and difficulty which foreign merchants ran in a hostile country. "Quid valebunt commercia, si, ut constat, bona hostium, quæ apud nos inveniuntur, vel ad nos adferuntur, fisco cedunt? et an quis, quamdiu jus occidendi hostis obtinuit, cum mercibus ad hostem accesserit, et inter commercia hostis eum trucidaverit ? id diceres recte factum? sed omnino cessant commercia" (Bynkershoek, Q. J. P., I. iii.). In the cases decided by the great masters of prize 1 Cf. the Rapid, 8 Cranch, p. 163. * A proclamation by Lord Leicester in April 1586 denounced the penalty of confiscation against all who traded with Spain: Bynkershoek, (1709) Q. J. P., I. iii., exteri vero tantum navium erciumque publicatione. |