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he discusses the immunity of fishing vessels from capture. By the Hague Convention XI., 1907, vessels employed exclusively in coast fisheries or small boats employed in local trade are exempt provided they take no part in hostilities, but Sir S. T. EVANS has refused, and rightly so, to extend this exemption so as to cover deep-sea fishing vessels engaged in a mercial enterprise forming part of the trade of the enemy country. The experience of the last few months. has shown what would be the effect of extending this immunity to vessels used by the enemy for military purposes, but still preserving their peaceful appearance. The vessel in question before the Prize Court was taken some 100 miles from the English coast and about 500 niles from her home port, and for her "coast fishing vessel" is hardly an appropriate description.
Civilians and Invasion.
CONSIDERABLE prominence has been given by the Press to various suggestions as to what should be done by civilians in case of invasion by the enemy. One thing is clear-namely, that individual civilians have no right to take up arms, and in such cases belligerents will visit such persons with the extreme penalty. As to a rising of the population en masse to repel invasion, the matter was considered by the Hague Conference in 1907, and the result was embodied in one of the conventions. By that it is provided by art. 2:—
The population of a territory which has not been occupied, who, on the enemy's approach, spontaneously take up arms to resist the invading troops without having time to organise themselves in accordance with art. 1, shall be regarded as belligerents if they carry arms openly, and if they observe the laws and customs of war.
And art. 1 provides :
The laws, rights, and obligations of war apply not only to armies, but also to militia and volunteer corps, fulfilling the following conditions:—
1. Being commanded by a person responsible for his subordinates.
2. Having a fixed distinctive emblem recognisable at a distance.
3. Carrying arms openly; and
4. Conforming in their operations to the laws and customs of
It can hardly be supposed that enemy commanders in the present war would treat the convention save as a "scrap of paper," and would hold acts done in accordance with art. 2 to be individual acts of hostility. To our mind, the only and effective way of combating our present enemy would be by organised bodies trained and equipped beforehand, for any other method of resistance is bound to be useless.
FRAUD OF SERVANTS AND AGENTS.
It was for a long time taken to be the law that a master was not liable for the fraud of his servant unless the fraud was committed by the servant in the course of his employment and for the master's benefit. The object of this article is to examine this position with special reference to the words "and for the master's benefit." That those words were thought to express a very important condition is clear from the two cases of Barwick v. English Joint Stock Bank (1867, 16 L. T. Rep. 461; L. Rep. 2 Ex. 259) and British Mutual Banking Company v. Charnwood Forest Railway Company (1887, 57 L. T. Rep. 833; 18 Q. B. Div. 714). In the former case the manager of a bank, acting within the scope of his employment, made a fraudulent misrepresentation to the plaintiff in the supposed interest of the bank. It was held that the bank was liable for the fraud. In the second case
the secretary of a company, acting, as the jury found, within the scope of his employment, made a fraudulent misrepresenta tion to the plaintiff not for the benefit of the company but for his own private ends. It was held that the company was not liable for the fraud. This was a decision of the Court of Appeal. It had support in the House of Lords from the judgment of Lord Brampton in George Whitechurch Limited v. Cavanagh (85 L. T. Rep. 349; (1902) A. C. 117) and of Lord Davey in Ruben v. Great Fingall Consolidated (95 L. T. Rep. 214; (1906) A. C. 439), and yet there can be little doubt that, if the secretary of the company was acting within the scope of his employment, the company ought to have been held liable, and the question for whose benefit the secretary acted was an immaterial and irrelevant question.
To test this position let us take a plain, simple case: Suppose the board of directors had passed a resolution expressly authorising the secretary to make the representation to the plaintiff; that the secretary made the representation, and that the plaintiff acted upon it and suffered loss. Can there be any doubt that the company would be liable? The benefit or prejudice to the company is beside the mark. He has acted with the authority of the company, and that fact decides the question of the company's liability. If a solicitor deputes his managing clerk to receive the purchase money for an estate, the receipt by the clerk is a receipt by the solicitor none the less because the clerk intends to misappropriate the money as soon as he gets it. If it were the law that a principal, having given his agent express authority to do an act, is liable or not liable for the consequences of the act according as the agent acts with a view to his principal's interest or his own, the result would be that a jury would have to search the conscience of every agent whose act, authorised by his principal, was alleged to have injured a third person. This is just that inconvenience which Chief Justice Brian had in mind when he said that the thought of a man is not triable, "L'entent d'un home ne serr trie" (see the Year Book 17 Edw. 4, folio 2, pl. 2). If the agent were an irresolute "This way and that dividing the swift mind "---could his principal be at one time immune and at another time liable, according as the agent fluctuates between resisting and vielding to a temptation to defraud him? Clearly not. In short, where a principal has given to his agent express authority to do an act, the principal is liable for the consequences of the act, although the agent in doing the act does it in his own interests and not in those of his principal. If any authority is required to establish this, it will be found in Hambro v. Burnand (90 L. T. Rep. 803; (1904) 2 K. B. 10).
There is no reason why a different rule should prevail where the authority is not express, but has to be inferred from facts admitted or proved. In both cases the question is the same namely, was the act done with the principal's authority? The only difference between the cases is that in the former, that of express authority, the question is more easily answered. In the case of an authority to be implied from conduct or other facts the question is often an extremely difficult one to answer; but it is the same question-namely, whether the act of the agent was done with the authority of the principal. If the answer is yes, it can make no difference in the liability of the principal whether the authority given by him was an express or an implied authority. His authorisation express or implied of the act is what makes him liable.
When a judge puts to himself or to a jury the question whether a certain act by an agent was within the scope of his employment, he is searching for an answer to the question whether the principal authorised the act. If the answer is that the act of the agent was in the particular instance within the scope of the agent's employment, why, in order to fix the principal with liability for the act, should it be necessary to inquire further whether the act was done for the principal's benefit? Or, rather, why should such a further inquiry ever have been supposed necessary or relevant? Fortunately we are able to trace the whole history of this fallacy, even as a French author traced the history of the Prince of Darkness, which he did under the following headings:-"Le Diable: (1) Son Origine; (2) Sa Grandeur; (3) Sa Décadence."
The fallacy originates in the ninth year of King William III. It does not appear then as a fallacy, rather it indicates a praiseworthy attempt on the part of a great judge, Chief Justice Holt, to solve the difficult question mentioned above-namely, when an act of an agent, not expressly authorised, may be said to be authorised by implication. In Tuberville v. Stampe (1 Ld. Raym. 264) the Chief Justice said: "If a stranger set fire to my house, and it burns my neighbour's house, no action will lie against me. But
if my servant throws dirt into the highway, I am indictable. So in this case if the defendant's servant kindled the fire in the way of husbandry and proper for his employment, though he had no express command of his master, yet his master shall be liable to an action for damage done to another by the fire; for it shall be intended that the servant had authority from his master, it being for his master's benefit." That is to say, when considering whether the act of one man was done by the authority of another, the fact that it was done for the benefit of the latter is not to be disregarded.
The next event in the career of this doctrine was the case of Huzzey v. Field (1835, 2 C. M. & R. 432). In that case the plaintiff was the owner of a ferry. The defendant was the owner of a boat accustomed to ply for hire and to carry passengers across a haven. He employed a servant for that purpose. On one occasion the servant took a passenger on board the boat and carried him across the haven in such a way as to be an alleged infringement of the plaintiff's right of ferry, and, having received the fare, paid it over to his master, the defendant. Several important and difficult questions were raised in this case. The judgment was delivered by Lord Abinger, C.B., but was prepared by Baron Parke (see per Mr. Justice Willes in Limpus v. London General Omnibus Company (1862, 7 L. T. Rep. Ñ. S. 641; 1 H. & C. 526). Baron Parke said: "Upon the first point there is no difficulty. The servant was acting at the time in the course of his master's service and for his master's benefit, and his act was that of the defendant, although no express command or privity of his master was proved: (Tuberville v. Stampe)." In other words, where there is no command or authority, an authority may be inferred where, as in the case under discussion, the servant is on his master's business and acting for his master's benefit. That is not the same thing as saying that the act is not done with the master's authority unless it is done for the master's ber efit.
We come now to the growth of the fallacy. In Limpus v. London General Omnibus Company (7 L. T. Rep. N. S. 641; 1 H. & C. 526) an action was brought against the company for the negligence of their servant, who, in driving an omnibus of the defendants' in competition and rivalry with an omnibus of the plaintiff, collided with and injured the plaintiff's vehicle. Baron Martin told the jury that if the act of the defendants' driver in driving across the road to obstruct the plaintiff's omnibus, although a reckless driving on his part, was nevertheless an act done by him in the course of his service, and to do that which he thought best to suit the interest of his employers, and so to interfere with the trade and business of the other omnibus, the defendants were responsible, but that if the true character of the act of the defendants' servant was that it was an act of his own, and in order to effect a purpose of his own, the defendants were not responsible. This summing up was questioned on a bill of exceptions, but was approved by the Court of Exchequer Chamber, consisting of Justices Wightman, Williams, Crompton, Willes, Byles, and Blackburn. Mr. Justice Willes in the course of his judgment said: "It appears to me that the summing up is in accordance with the principle that a master is liable for acts done by his servant in the course of his employment. It is also consistent with authority. I need only refer to the authority of Lord Holt in Tuberville v. Stampe, and of Lord Wensleydale in Huzzey That learned person there laid down that proper question is whether the servant was acting at the time in the course of his master's service, and for his master's benefit; if so, his act was that of his master, although no express command or privity of his master was proved. It seems to me that in so laying down the law he was strictly accurate." From what has been
said above, the reader can judge for himself whether this was an accurate representation of what Baron Parke (or Lord Wensleydale as he was afterwards) really said. Now Mr. Justice Willes was a judge whose lightest word had a specific gravity of its own due to his love of legal principles and to his great learning. Moreover, it fell to his lot to deliver the judgment of the Court of Exchequer Chamber in Barwick v. English Joint Stock Bank (ubi sup.). In doing so he used these words: "With respect to the question whether a principal is answerable for the act of his agent in the course of his master's business, and for his master's benefit, no sensible distinction can be drawn between the case of fraud and the case of any other wrong. The general rule is that the master is answerable for every such wrong of the servant or agent as is committed in the course of the service and for the master's benefit, though no express command or privity of the master be proved." It is to be observed that the learned judge states this to be "the general rule," and not merely a rule applicable to the particular case where the act of the agent was in fact done for the master's benefit, as was the case in Huzzey v. Field (ubi sup.).
This view of the general principle twice presented by such an artist as Mr. Justice Willes was accepted as law by his successors, among whom Lord Justice Bowen was eminent. As stated above, the question for whose benefit the act was done was taken as the deciding test in British Mutual Banking Company v. Charnwood Forest Railway Company (ubi sup.). Here the doctrine reached its full growth. It was accepted for law by the leading text-books (see Pollock on Torts, 9th edit., p. 98; Smith's Leading Cases, 11th edit., vol. 2, p. 91, notes to Pasley v. Freeman), although it is fair to say that a mild protest was entered in Addison on Torts, 8th edit., p. 128. The analytical mind of the late Lord Collins could not approve the decision, and in a case to be mentioned presently Lord Macnaghten discovered reasons for supposing that Lord Selborne was not satisfied with the doctrine. But by the Profession at large it was received without question for five-and-twenty years.
In July 1912 the decision in British Mutual Banking Company v. Charnwood Forest Railway Company (ubi sup) was overruled by the House of Lords in Lloyd v. Grace Smith and Co. (107 L. T. Rep. 531; (1912) A. Č. 716). In that case a widow, who owned two cottages and a sum of money secured on a mortgage, being dissatisfied with the income derived therefrom, consulted a firm of solicitors as to her investments. She saw their managing clerk who conducted the conveyancing business of the firm without supervision. Acting as the representative of the firm, he induced her to give him instructions to sell the cottages and call in the mortgage debt, and for that purpose to hand him her deeds, for which he gave her a receipt in the name of the firmi. He also induced her to sign two documents which were neither read over nor explained to her, and which she believed she had to sign in order to effect the sale of the cottages. These documents were in fact a conveyance to him of the cottages and a transfer to him of the mortgage. Having thus got the property into his own hands he disposed of it for his own benefit. It was held that the firm were responsible for the fraud committed by their representative in the course of his employment, although he was acting, not for their benefit, but for his own ends. This decision brings into harmony and consistency the law touching the liability of principals for the torts of their agents acting within the scope of their authority, whether the authority be conferred by express terms or inferred from facts and circumstances. The question for whose benefit the act was done belongs to the earlier stages of the discussion; in cases where the authority is not express, but has to be inferred, that question is a stage on the way to deciding whether the act was done by the authority of another. Once the authority is established, further consideration of the question of benefit is irrelevant. If the servant or agent is about his master's business the master will be liable no matter whose benefit is intended. If, on the other hand, he is, in the words of Baron Parke, "going on a frolic of his own, without being at all on his master's business," the master will not be liable: (Joel v. Morison, 1834, 6 C. & P. 501). W. H. G.
CONTRACTS AND THE WAR.-VII.
WE shall proceed with the summary of the effect of the observations in the six preceding articles of this series. In our last article we summarised these observations as regards contracts between British subjects. We have now to summarise our previous observations as regards contracts made between British subjects and German and Austrian subjects in this country, and as regards contracts made between British subjects in this country and alien enemies in the enemy's country.
Now, as regards contracts between British subjects and an alien enemy: as war imposes a prohibition against trading with an enemy, the contract, if entered into before the war commenced, may or may not be binding, according to circumstances. Foremost amongst these circumstances is the status of the alien enemy. If he is a licensed person, licensed to trade in this country, the contract primâ facie will be enforceable. If he is not so licensed, and the performance of the contract, if it is to be performed at all, would infringe the rules of law against trading with the enemy, then, inasmuch as the law against trading with the enemy must not be infringed, the contract must not be performed. What, then, is the position of the parties? On this we submitted in our third article that the position was the same as where the consideration has failed-namely, that the parties are left where they stood when impossibility of performance supervened. We now do not hesitate to advise the reader that this is indeed the true position. The unlicensed alien enemy cannot sue in our courts while the state of war continues. That is the only difference. When the war is over, the quondam alien enemy will be entitled to enforce the rights which he may have had under the undischarged part of the contract.
In our view this is one of the most important points connected with our subject. Contracts, unperformed at the commencement of the war, and rendered impossible of full performance because of the war, may at the end of the war give quondam alien enemies a right to sue in respect of the undischarged portion of the contract. As the late Master of the Rolls explained in the case of Chandler v. Webster (90 L. T. Rep. 217; (1904) 1 K. B. 493), under the doctrine of the discharge of a contract by the subvention of the impossibility of performance, the law treats the contract as a good and subsisting contract with regard to things done and rights accrued in accordance with the contract up to the time of discharge, although as the basis of the contract bas failed, the law excuses the parties from further responsibility under it.
Where a contract has been entered into prior to the commencent of the war between a British subject and a person who afterwards becomes an alien enemy on the outbreak of the war, it may be that the contract, although continuing and unperformed when war commenced, may nevertheless continue enforceable in toto notwithstanding that the alien enemy is unlicensed. This will be the case where performance remains possible after the war has ended. Thus, suppose a German firm to have agreed to make and deliver in England at some point of time subsequent to the actual termination of the war (whenever that may be) certain articles which, after the war has ended, are in fact duly delivered in England in accordance with the contract. It would appear to be clear that in such a case the contract would not necessarily have been discharged on the outbreak of war. This again appears to be an important point, for there seems to be a general belief at present that British subjects are absolved from all responsibility in connection with unperformed contracts with alien enemies.
Where a contract was entered into prior to the commencement of the war between a British subject and a subject of the German or Austrian Empire and remained unperformed or partly performed when war broke out, then, if the alien has been expressly licensed to remain and trade in this country, or has been impliedly so licensed by virtue of the Aliens Restriction Act, the rights of the parties apparently are the same as if the contract had been made between British parties. This does not, of course, mean that the contract must necessarily continue on foot. As we have shown, contracts even between British subjects may be discharged as a result of the war.
[Nov. 7, 1914.
Here we may mention that the courts have upheld the view expressed in our second article that a subject of the German or Austrian Empire who has complied with all the requirements of the Aliens Restriction Act is to be treated for the purposes of suing and being sued in our courts during the currency of the war as a person expressly licensed by the Crown to remain and trade in this country. In the case of Princess Thurn and Taxis v. Moffitt (noted 137 L. T. Jour. 564; (1914) W. N. 379) Mr Justice Sargant refused an application to dismiss an action commenced by a lady alleged to be the wife of an alien enemy. The application was based on the ground that an alien enemy could not sue during the continuance of the war. The lady in question had, however, fulfilled the requirements under the Act and proclamations made thereunder. His Lordship laid stress on the fact that the Act and proclamations not only permitted such a person to reside here, but commanded her to stay in this country and remain within a particular area.
Now, with regard to contracts made between a British subject and an alien enemy since the war commenced, unless that alien enemy be expressly or impliedly licensed, it is abundantly clear that such a contract would primâ facie be void ab initio. We have dealt exhaustively with the wide prohibitions against trading with an enemy, or, at any rate, as exhaustively as the chaotic state of the law at the present time allows. These prohibitions leave one loophole for a contract between such parties. They allow dealings by means of "branch establishments. But as it is understood that steps are being taken for closing this loophole, the matter does not call for further mention.
We are fully aware of the fact that some of the propositions put forward above do not appear to harmonise with some of the reported dicta in the authorities, or with some of the statements contained in certain text-books. But what is of importance is that the foregoing propositions harmonise with actual decisions. We have ventured to go behind some of these text-book statements and to search and examine the authorities upon which such statements are purported to have been based. We have had, at any rate, the satisfaction of finding that the views expressed in these articles coincide with actual decisions in cases decided after those views were expressed.
We have ventured to doubt the soundness of the distinction between executed and executory contracts in relation to our subject. This distinction is often put forward, with the two correlative propositions-first, that contracts executed prior to the outbreak of the war remain valid notwithstanding the state of war, and, secondly, that the effect of the war on executory contracts is to discharge them. The ill-fated Treasury memorandum issued last August on the subject of trading with the enemy was clearly based on this distinction. It was even stated in that memorandum that payments might be made to alien enemies in respect of executed contracts. This statement was obviously at fault. Payment to an alien enemy during the currency of the war is precisely the sort of dealing that runs counter to the whole principle and object of our law which prevents trading with the enemy. It is well known," said Sir William Scott in the case of The Neptune (6 Rob. 405), “that a declaration of hostilities naturally carries with it an interdiction of all commercial intercourse; it leaves the belligerent countries in a state that is inconsistent with the relations of commerce."
The Treasury memorandum of August has, of course, since been annulled. But there are still many outstanding state ments, based on the supposed importance of this distinction between executed and executory contracts, which would appear to confuse rather than to elucidate the law. We believe that dicta to the effect that executory contracts are discharged, or, as it is sometimes boldly stated, avoided on the outbreak of war, are most misleading. Such dicta will be found in many cases. In what is otherwise an able and learned note on the subject appended to the report of the case of Clemontson v. Blessig (1855, 11 Ex. 135, at p. 141 et seq.) it is stated that the declaration of war renders unexecuted contracts void, although the learned author of that note admitted that there was then little authority on the point.
The view that we have put forward on this subject is this: A
The reader is advised, when dealing with any question con-
In the preceding articles of this series we have dealt with
Secondly, we dealt with the obscure doctrine of the forfeiture to the Crown of the rights and property of an alien enemy. We pointed out that it was very doubtful whether the doctrine would be upheld at the present day. The right of forfeiture apparently has not been exercised since the early eighteenth century. That it may still be effectual was clearly the opinion of Chief Baron Pollock in Wahl v. Braune (1856, 35 L. J. 343, Ex.). There his Lordship spoke of the rights of the alien enemy being forfeited to the Crown, and his Lordship said that it might be the duty of the Crown to enforce its rights by inquisition. In our fourth article we warned the reader not to assume, too readily that he could obtain judgment against an alien enemy and enforce that judg
ment against the property of that enemy in this country during the continuance of the war.
This difficult point has now been dealt with by Mr. Justice Bailhache in the recent case of Robinson and Co. v. Continental Insurance Company of Mannheim (noted 137 L. T. Jour. 565; (1914) W. N. .393). That was an action by an English firm against a German insurance company to recover a loss under a policy of marine assurance. A summons was taken out on behalf of the defendants to stay all proceedings during the present war. The contract had been made before the war commenced and the loss insured against had happened while the two countries were at peace. The action itself had been commenced before the declaration of war and divers steps in the action had in fact been taken before that time. His Lordship reserved judgment.
It will be observed that the question involved was whether a British subject can effectively sue an alien enemy during war. Mr. Justice Bailhache decided that he can, at any rate, sue. As his Lordship put it, to hold otherwise would be virtually to convert a disability into a form of relief. His Lordship was clearly of opinion that an alien enemy could not sue as a plaintiff during the war. There is, of course, as we have pointed out, a number of unimpeachable decisions holding that such a plaintiff cannot be heard in our courts during the continuance of the war. The reason which his Lordship gave for this rule is that it was contrary to public policy for the courts of this country to render any assistance to an alien enemy to enforce rights which but for the war he would be entitled to enforce to his own advantage and to the detriment of a subject of this country. But, as his Lordship pointed out, to hold that a British subject's right of suit was suspended because of that rule of public policy would be to injure a British subject and to favour an alien enemy, and thus the object and reason of the suspensory rule would be defeated. His Lordship therefore held that the war did not suspend an action against a defendant alien enemy.
This decision involved two further points: First, whether a defendant alien enemy could appear by counsel and be heard in our courts during the war. Secondly, what was to happen as regards costs if the defence was successful? On the first point his Lordship pointed out that no state of war could demand or justify the condemnation by a civil court of a man unheard. The learned judge had found no rule of common law which prevented an alien enemy appearing and conducting his defence. difficulties of the second question were such that his Lordship reserved the point, and stated that if it arose thereafter it would probably be sufficiently met by suspending the defendant's right to issue execution.
The decision of Mr. Justice Bailhache has done much to clear away the doubts which existed on the question of the position of an alien enemy defendant. Apparently his Lordship did not feel any difficulty about the possible rights of the Crown in the matter. It may be, in subsequent cases, that this right of the Crown will be either expressly negatived or recognised. Until it is there still appears to be a substantial difficulty to be got over. Unless the Crown puts in a claim under the doctrine of forfeiture and that claim be denied, it cannot be said to have been decided that the doctrine of forfeiture has been relegated to the limbo of the past.
There are some other points of importance which ought to be mentioned before closing this series of articles. These will be briefly disposed of in our next and concluding article. Correspondents have also from time to time raised some interesting points in connection with the subject-matter of these articles. In our concluding article it is hoped to touch, at any rate, on such of these latter points as may be of general interest. (To be concluded.)
ALIENS AND NATURALISATION.
A PERSON of German nationality (in the first instance) may have taken various steps before or after the outbreak of war to put himself right with the British authorities.
He may have been naturalised in this country or he may have been naturalised in one of the British dominions, or the Crown
may have given him letters of denization or he may have acquired a licence to trade, or he may simply have registered himself under the Aliens Restriction Act 1914.
We think that it will be useful to consider each of these positions and the consequences which result therefrom.
In the first case he is entitled in the United Kingdom to all political and other rights, powers, and privileges and is subject to all obligations to which a natural-born British subject is entitled or subject in the United Kingdom, with this qualification, that he is not, when within the limits of the foreign State of which he was a subject previously to obtaining his certificate of naturalisation, deemed to be a British subject unless he has ceased to be a subject of that State in pursuance of the laws thereof or in pursuance of a treaty to that effect.
Next as to naturalisation within the dominions. The British Nationality and Status of Aliens Act 1914 does not come into operation till the 1st Jan. of next year. Sect. 8 of that Act gives power to the Governments of British possessions (who will haye adopted the Act) to grant certificates of naturalisation. The Act saves the rights (by sect. 26) of the Governments of British possessions, and repeats the provision that all laws, &c., made by the Legislature of a British possession "for imparting to any person any of the privileges of naturalisation to be enjoyed by him within the limits of that possession shall, within those limits, have the authority of law." This is the same as the provision of sect. 16 of the Naturalisation Act of 1870 (33 Vict. c. 14), where the words are "to be enjoyed within the limits of such possession." This latter enactment is now the law of the land.
The Australian Naturalisation Act 1903 provides that a person to whom a certificate of naturalisation is granted shall "in the Commonwealth be entitled to all rights to which a natural-born British subject is entitled in the Commonwealth.”
The authority of the Australian Parliament is derived from the Constitution Act of 1900, an Imperial statute giving the Commonwealth Parliament power to make laws "for the peace, order, and good government of the Commonwealth in respect of (inter alia) naturalisation and aliens."
In a case which recently arose at chambers, and which the Government of Australia would have probably taken to the House of Lords but for that occurrence so often regretted by the lawyer who is academically interested in the elucidation of nice points of law-the amicable settlement of the dispute between the contending parties-an exceedingly important argu. ment was raised.
The argument was that power is given to the Commonwealth Parliament to naturalise, and that it is therefore a matter for the interpretation of the Australian Naturalisation Act to find out the effect of the naturalisation. The Colonial Act in this case, it was said, is just as limited-no more and no less-than the English Act. Naturalisation, however—so ran the argument -means, both in Australia and here, the renouncing of the previous allegiance and the swearing of the oath of allegiance to His Majesty King George V., his heirs and successors. A definite change of status, it was contended, therefore takes place; and in a case of status the general rule is that the existence of a status existing under the law of the person's domicil is recognised by the English courts: (see Professor Dicey's Conflict of Laws, 2nd edit., p. 463).
Is it credible, it was asked, that an individual who has sworn allegiance to His Majesty, and whose oath of allegiance has been accepted by the King's representative, should be treated as an alien and, when his Sovereign is at war with ours, as an alien enemy in this country, from which the authority to take and accept the oath of allegiance has been derived? A person may, indeed, be a bankrupt in one country and not a bankrupt in another, and nationality can certainly differ in different countries A person can be, it was admitted, a German according to German law and a Frenchman from the French point of view. But can he be at one and the same time a subject and not a subject within the limits of one and the same sovereignty? It must be remembered, it was said, that, unless the view contended for prevails, an individual of alien nationality could not possibly get by naturalisation the benefit of British protection in foreign countries, no matter how long he may reside in the British
dominion outside the United Kingdom. The way out of the difficulty which was accordingly suggested was the application of the rule as to the "status of the individual according to his domicil."
Now, all this would be very well if the statute were ambiguous; but where it is expressed, in the words of the Legislature, that the benefit is to be conferred" within those limits" and is to have the authority of law "within those limits," we do not think such farreaching consequences beyond those limits can safely be implied.
But an "alien enemy is for most practical purposes one who dwells or carries on business within the limits of an alien country whose Sovereign is at war with His Majesty. What naturalisation of an alien-here or in the dominions-for most practical purposes does is to decide how such a one is to be regarded by the Imperial courts or those of the dominion respectively. Therefore the hardship suggested-viz., that a person naturalised in the dominions is treated here as an enemy-will comparatively seldom arise.
We shall return later to the position of "alien enemies pure and simple, but first let us glance at the other measures which may be taken by Germans to put themselves right with this country.
Letters of denization have the same effect as naturalisation, but are not now in frequent use. The other measures have a smaller effect.
There is, first, the "licence to trade." There are some cases in which it is inconvenient or inexpedient to this country that certain businesses carried on by Germans should come to an end. Such persons receive a "licence to trade," and the principles on which such licences are granted should be very closely safeguarded. If a German has such a licence, he is, of course-for the purposes of the trade in question-in as good a position as a British subject. The licence should never be granted except in the interests of this country.
Next comes 66
registration" under the Restriction of Aliens Act 1914. At first sight this has nothing to do with the subject before us. Theoretically, if an alien is not registered, he is only liable to imprisonment or penalties; and theoretically again, if he is registered, it is no merit, no franchise or privilege-it merely saves him from imprisonment or fine. But in practice it is something more than this.
The Royal Proclamation of the 9th Sept. 1914 defines an enemy as a person or body of persons of whatever nationality resident or carrying on business in the enemy country," and for many purposes the common law is much the same.
If a British subject voluntarily (the qualification should be noted) resides in an enemy country, he is regarded as subject to the disqualification of alien enemies.
If a German subject resides in this country or in a neutra country, he is, for commercial purposes, not to be regarded as an alien enemy.
This is the doctrine of "commercial status," and we think that strictly it is confined to commercial considerations. Professor Dicey, in his Conflict of Laws (2nd edit.), p. 740 and following, makes this position quite clear: "Speaking generally," he says,
a person domiciled in a neutral country is to be regarded as, for commercial purposes, a neutral, even though he be in fact a British subject or the subject of a State at war with England." He refers to The Danous (4 C. Rob. 255, note). This case was decided by the House of Lords on the 17th March 1802, and the important words used were, so as not to render his trade an illegal trade."
In Pitt-Cobbett's Leading Cases on International Law,. vol. 2, War (3rd edit.), p. 24, the (same authority and others are cited for the following statement: "All persons domiciled in neutral or British or allied territory are regarded as having a neutral or friendly character, as the case may be, so long as such domicil continues; and the same rule will apply where enemy subjects are domiciled in British territory if they are allowed to remain" (Cf. Janson v. Driefontein Mines Limited, 87 L. T. Rep. 372; (1902) A. C. 484).
In the Australian case before referred to, it was therefore argued and this was the strongest part of the