64 The Court stated, inter alia: “The solution to the problem now before me is, in my view, to be found in the President`s Message to Congress which, given the nature of his admission by Congress and the actions of Congress under it, has become the voice of the country; and the Presidential Proclamation declaring a state of war and defining the rights of residents, an official act under the authority of Congress. German residents who comply with the necessary regulations and behave properly can rest assured that they are not disturbed in the peaceful exercise of their life and profession and receive consideration from all peaceful and law-abiding persons, unless restrictions are necessary for their own protection and for the safety of the United States. To close the door of judgment in the face of a foreign enemy who lives here would be a clear violation not only of the spirit, but also of the letter of this proclamation. 68 That summary comes mainly from an article entitled `Alien Enemies as Litigants`, published in Case and Comment for June, 1917, p. 93 et seq. This article appears to contain a comprehensive review of the cases decided by the U.S. courts. See also Borchard, Right of Alien Enemies to Sue, Yale Law Journal, 27:105; Huberieh, On Trading with the Enemy, pp. 188 et seq., and 194 et seq., and Mitchell, in the Maine Law Review, November 1917. A more serious practical difficulty in pursuing an enemy was the problem of the service process on him. The English courts have resolved the difficulty to some extent by allowing substitution service of notices on agents in England or Holland if there were reasons to believe that knowledge of the procedure would be communicated to the principal. Lord Justice Scrutton in 34 Law Quarterly Review, page 124-7. A promise made without the intention of keeping it amounts to – 61 The British jury in Egypt adopted the same rule in the case of the Gutenfels (Trehern`s Cases I, 102).
Judge Cator, in his opinion, stated that the old rule was “barbaric and contrary to any sense of natural justice, and it seems strange that it is embodied in the practice of an English jury. While it is true that we insist on hearing a man in his own defence in court, where the parties of a nation and the judge may be quite indifferent to the suitor who should succeed, it seems to me even more important that the enemy party be heard before a jury when the Crown demands the condemnation of its ship and the sympathy of the judge. should be for his own country. It is very regrettable that this issue did not receive the attention of the Hague Conference. I have little doubt about the opinion of the conference, and I am sure most delegates would have been surprised if the owner of a captured property did not have the right to bring his case against the Crown before a British jury if he is a foreign enemy. “enter into or enter into new marine, life, fire or other insurance policies, contracts or policies with or for the benefit of an enemy; or to accept or implement insurance policies arising from an insurance policy or contract (including reinsurance) taken out or entered into before the outbreak of war with or for the benefit of an enemy. 60 Among the U.S. cases cited in which hostile persons were allowed to appear before the courts and assert their claims were Pedro, 157 U.S. 354 (1899), Guido, 175 U.S.
382 (1899), Buena Ventura, 175 U.S. 384 (1899), Panama, 176 U.S. 535 (1900) and Paquette Habana, 175 U. P. 677 (1900). Japanese cases included the Tetartos Cases, 1909, and Bray, The Russian and Japanese Price Cases (Vol. I, P. 166), Yekaterinoslav, 1905 (ibid., II, 1), Mukden, 1905 (II, 12), Rossia, 1905 (II, 39), Argun, 1905 (II, 46), Manchuria (II, 52), Lesnik (II, 92), Kobik (II, 95), Thalia (II, 116) and Oriel (II, 534). 11 Commenting on this article (Law Quarterly Review, vol.
28, p. 94 et seq.), Professor Holland observes: “If this clause is intended only for the direction of an invading commander, it requires careful overhaul; if, as it seems, it is of general application, it is not| only so misplaced, but also so revolutionary in the face of the doctrine that denies an enemy any persona standi in judicio that it was included in the ratification of the Convention by the United States on 10 March 1908 and its signature on 29 March 1908. In June 1908, by Britain, it could hardly be treated as the state of international law until its policies had been seriously discussed. In his Martial Law on Earth, p. 5, Professor Holland cites this paragraph as an example of the disadvantage of mixing the rules concerning the duties of bellicose governments within the country with those intended to lead armies on the ground. 53 See also Ingle v Mannheim Ins. Co., 1 K.B. 227 (1915) and commentary in the Solicitors Journal and Weekly Reporter, November 7, 1914.
In this case, the King`s Bench Division concluded that the Proclamation of Trade with the Enemy of 8 October 1914 did not prevent a British subject from receiving money from an enemy alien or suing him if the right to payment or action arose before the defendant had acquired the status of enemy alien. 42 persons who voluntarily stayed in enemy territory were not allowed to salt; Actions before the English courts. See Scotland v. South African Territories, Ltd., Law Times, 142:366 (1917). 38 The Kammergericht in Rex/. Liebmann had kept the internment of a civilian of hostile nationality for himself in captivity. 90 Campagnie Bulgaria vs Olivier. Text in Phily. Jurisprudence Speciale, Pt.
III, p. 749 et seq.; 43 Clunet, p. 380 et seq., and Troimaux, p. 186 et seq. See also 43 Clunet, p. 1001. A history of this interesting case can be found in Troimaux, Séquestres et Séquestrés, p. 163 et seq.
The case concerned the right of a hostile insurance company to appeal a court`s decision to the Court of A ppel. The Advocate General, Mr. Godefroy, pleaded insistently for the right of hostile foreigners to plead before the French courts for reasons of justice and previous French. There can be no danger in allowing hostile subjects to exercise this right, for if they obtain a judgment the execution of which would in any way affect national defence, the Government would have the right to suspend the execution. 84 M. Reuloa (Manual of the Sequestrations, p. 216) points out, however, that the theory that an enemy alien is allowed to take legal action but that, in the event of a favourable judgment, his execution may be suspended, is based on a fine distinction and that, in practice, the law has no value for the enemy adversary. It is impossible for traders to know what rights they have in relation to contracts that are still being executed with a foreign enemy, whether they are in fact completely suspended or only suspended for wartime. The Prime Minister replied to me that, under normal circumstances, he could not consider such a proposal, but under the current conditions, although there were serious practical difficulties in adopting it, the matter would be carefully considered. That same afternoon, I raised the matter with the honourable right-wing Attorney General and asked him if he would consider looking into it, and he said that the matter was under consideration. I have privately informed the Attorney General that I intend to raise this point this afternoon, and I dare to respectfully propose to the government that it will really do a great deal of good to the business community if Crown enforcement officers go beyond the normal scope of their duties – because I agree with what the Prime Minister has said, completely too.
that, under normal circumstances, it would be impossible for Crown law enforcement officers to say what the law is – and to give an answer to what I am asking. It is impossible for a businessman to be currently clogged in a German law firm to know what his rights are and what his position is. That is why, on behalf of the large business communities in this country, I propose that we at least have the right to have the best opinion that judicial officials can give on the law on this very difficult issue. 44 Compare an editorial in the July 1915 magazine and law magazine, p. 215 et seq., in which recent decisions that an enemy alien who has not been expelled but is interned or registered is in England by licence and is therefore entitled to trial privilege are strongly criticized. See also Baty & Morgan, War; Its Conduct and Legal Results, pp. 254, 269. Alien enemy: “Alien” refers to a person who is not a citizen of India. Foreign enemies, foreign states, companies and corporations (disqualified for ultra vire transactions, insolvent, convicted.
ONTINGENT ONTRA T(§ 30 Characteristics:1. Teaching and practice English and American. The issue of the right of hostile subjects to sue in the courts of an adversary can hardly be described as regulated by international law unless the controversial Article 23(h) of the 1907 Hague Convention on the Law and Customs of War on Land is interpreted as applying to the actions of judicial authorities. .