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he discusses the immunity of fishing vessels from the secretary of a company, acting, as the jury found, within capture. By the Hague Convention XT., 1907, vessels the scope of his employment, made a fraudulent misrepresenta employed exclusively in coast fisheries or small boats

tion to the plaintiff not for the benefit of the company but for employed in local trade are exempt provided they take

his own private ends. It was held that the company was not

liable for the fraud. This was a decision of the Court of 10 part in hostilities, but Sir S. T. EVANS has refused, and rightly so, to extend this exemption so as

Appeal. It had support in the House of Lords from the

judgment of Lord Brampton in George Whitechurch Limited to cover deep-sea fishing vessels engaged in a v. Cavanagh (85 L. T. Rep. 349 ; (1902) A. C. 117) and of mercial enterprise forming part of the trade of the

Lord Davey in Ruben v. Great Fingall Consolidated (95 L. T. enemy country. The experience of the last few months

Rep. 214 ; (1906) A. C. 439), and yet there can be little doubt has shown what would be the effect of extending this that, if the secretary of the company was acting within the immunity to vessels used by the enemy for military scope of his employment, the company ought to have been held purposes, but still preserving their peaceful appearance. liable, and the question for whose benefit the secretary acted The vessel in question before the Prize Court was taken

was an immaterial and irrelevant question, some 100 miles from the English coast and about 500

To test this position let us take a plain, simple case: Suppose iniles from her home port, and for her “coast fishing

the board of directors had passed a resolution expressly vessel ” is hardly an appropriate description.

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 Civilians and Invasion.

be any doubt that the company would be liable ? The CONSIDERABLE prominence has been given by the benefit or prejudice to the company is beside the mark. He Press to various suggestions as to what should be done has acted with the authority of the company, and that fact by civilians in case of invasion by the enemy. One decides the question of the company's liability. If a solicitor thing is clear-namely, that individual civilians have no deputes his managing clerk to receive the purchase money for right to take up arms, and in such cases belligerents will

an estate, the receipt by the clerk is a receipt by the solicitor

none the less because the clerk intends to misappropriate the visit such persons with the extreme penalty. As to a

money as soon as he gets it. If it were the law that a rising of the population en masse to repel invasion, the

principal, having given his agent express authority to matter was considered by the Hague Conference in do an act, is liable or not liable for the consequences of 1907, and the result was embodied in one of the con- the act according as the agent acts with a view to his ventions. By that it is provided by art. 2:

principal's interest or his own, the result would be that The population of a territory which has not been occupied,

à jury would have to search the conscience of every who, on the enemy's approach, spontaneously take up arms

agent whose act, authorised

authorised by his principal, was to resist the invading troops without having time to organise

alleged to have injured a third person. This is just that themselves in accordance with art. 1, shall be regarded as

inconvenience which Chief Justice Brian had in mind belligerents if they carry arms openly, and if they observe the

when he said that the thought of a man is not triable, laws and customs of war.

"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 And art. 1 provides :

This way and that dividing the swift mind”-could The laws, rights, and obligations of war apply not only to his principal be at one time immune and at another time armies, but also to militia and volunteer corps, fulfilling the liable, according as the agent fluctuates between resisting and following conditions :

vielding to a temptation to defraud him ? Clearly not. In 1. Being commanded by a person responsible for his subor- short, where a principal has given to his agent express dinates.

authority to do an act, the principal is liable for the 2. Having a fixed distinctive emblem recognisable at a

consequences of the act, although the agent in doing the act distance.

does it in his own interests and not in those of his principal. 3. Carrying arms openly; and

If any authority is required to establish this, it will be

found in Hambro v. Burnand (90 L. T. Rep. 803 ; (1904) 4. Conforming in their operations to the laws and customs of

2 K. B. 10).

There is no reason why a different rule should prevail where It can hardly be supposed that enemy commanders in the authority is not express, but has to be inferred from facts the present war would treat the convention save as a admitted or proved. In both cases the question is the “scrap of paper,” and would hold acts done in accord- same--namely, was the act done with the principal's authority ? ance with art. 2 to be individual acts of hostility. To The only difference between the cases is that in the former, our mind, the only and effective way of combating our that of express authority, the question is more easily answered. present enemy would be by organised bodies trained and In the case of an authority to be implied from conduct or equipped beforehand, for any other method of resistance

other facts the question is often an extremely difficult one to is bound to be useless.

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 FRAUD OF SERVANTS AND AGENTS.

express or an implied authority. His authorisation express

or implied of the act is what makes him liable. It was for a long time taken to be the law that a master was When a judge puts to himself or to a jury the question not liable for the fraud of his servant unless the fraud was whether a certain act by an agent was within the scope of his committed by the servant in the course of his employment employment, he is searching for an answer to the question and for the master's benefit. The object of this article is to whether the principal authorised the act. If the answer is examine this position with special reference to the words that the act of the agent was in the particular instance within “and for the master's benefit." That those words were the scope of the agent's employment, why, in order to fix the thought to express a very important condition is clear from principal with liability for the act, should it be necessary to the two cases of Barwick v. English Joint Stock Bank (1867, inquire further whether the act was done for the principal's 16.L. T. Rep. 461 ; L. Rep. 2 Ex. 259) and British Mutual benefit? Or, rather, why should such a further inquiry ever Banking Company v. Charnwood Forest Railway Company have been supposed necessary or relevant? Fortunately we (1387,57 L. T. Rep. 833 ; 18 Q. B. Div. 714). In the former are able to trace the whole history of this fallacy, even case the manager of a bank, acting within the scope of his a French author traced the history of the Prince of employment, made a fraudulent misrepresentation to the Darkness, which he did under the following headings :plaintiff in the supposed interest of the bank. It was held

" Le Diable: (1) Son Origine ; (2) Sa Grandeur ; (5) Sa that the bank was liable for the fraud. In the second case Décadence.”

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The fallacy originates in the ninth year of King said above, tle reader can judge for himself whether William III.' It does not appear then as a fallacy, rather it this was an accurate representation of what Baron Parke indicates a praiseworthy attempt on the part of a great judge, (or Lord Wensleydale as he was afterwards) really suid. Chief Justice Holt, to solve the difficult question mentioned Now Mr. Justice Willes was a judge whose lightest word had above-namely, when an act of an agent, not expressly a specific gravity of its own due to his love of legal principles authorised, may be said to be authorised by implication. In and to his great learning. Moreover, it fell to his lot to Tuberville v. Stampe (1 Ld. Raym. 264) the Chief Justice deliver the judgment of the Court of Exchequer Chamber in said: “If a stranger set fire to my house, and it burns my Barwick v. English Joint Stock Bank (ubi svp.). In doing so le neighbour's house, no action will lie against me. ... But used these words : “ With respect to the question whether a if my servant throws dirt into the highway, I am indictable. principal is answerable for the act of his agent in the course So in this case if the defendant's servant kindled the fire in of his master's business, and for his master's benefit, no the

way of husbandry and proper for his employment, though sensible distinction can be drawn between the case of fraud he had no express command of his master, vet his master shall and the case of any other wrong. The general rule is that be liable to an action for damage done to another by the fire ; the master is answerable for every such wrong of the servant or fyr it shall be intended that the servant had authority from agent as is committed in the course of the service and for the his master, it being for his master's benefit.'

That is to say,

master's benefit, though no express command or privity of the when considering .whether the act of one man was done by master be proved." It is to be observed that the learned the authority of another, the fact that it was done for the judge states this to be “ the general rule," and not merely a benefit of the latter is not to be disregarded.

rule applicable to the particular case where the act of ihe The next event in the career of this doctrine was the case agent was in fact done for the master's benefit, as was the of Huzzey v. Field (1835, 2 C. M. & R. 432). In that case case in Huzzey v. Field (ubi sup.). the plaintiff was the owner of a ferry. The defendant was This view of the general principle twice presented by such the owner of a boat accustomed to ply for hire and to carry an artist as Mr. Justice Willes was accepted as law by his passengers across a haven. He employed a servant for that successors, among whcm Lord Justice Bowen was eminent. purpose.

On one occasion the servant took a passenger on As stated above, the question for whose benefit the act was board the boat and carried him across the haven in such a done was taken as the deciding test in British Mutual Banking way as to be an alleged infringement of the plaintiff's right Company v. Charnwocd Forest Railway Company (ubi sup.). of ferry, and, having received the fare, paid it over to his Here the doctrine reached its full growth. It was accepted master, the defendant. Several important and difficult for law by the leading text-books (see Pollock on Torts, questions were raised in this case. The judgment was 9th edit., p. 98 ; Smith's Leading Cases, 11th edit., vol. 2, delivered by Lord Abinger, C.B., but was prepared by Baron p. 91, notes to Pasley v. Freeman), although it is fair to say Parke (see per Mr. Justice Willes in Limpus v. London that a mild protest was entered in Addison on Torts, 8th edit., Genral Omnibus Company (1862, 7 L. T. Rep. N. S. 641; 1 H. p. 128. The analytical mind of the late Lord Collins could & C. 526). Baron Parke said : “Upon the first point there not approve the decision, and in a case to be mentioned is no difficulty. The servant was acting at the time in the presently Lord Macnaghten discovered reasons for supposing course of his master's service and for his master's benefit, and that Lord Selborne was not satisfied with the doctrine. But his act was that of the defendant, although no express by the Profession at large it was received without question for command or privity of his master was proved : (Tuberville v. five-and-twenty years. Stampe).In other words, where there is no express In July 1912 the decision in British Mutual Banking command or authority, an authority may be inferred where, Company v. Charnwood Forest Railway Company (ubi sup) as in the case under discussion, the servant is on his master's was overruled by the House of Lords in Lloyd v. Grace business and acting for his master's benefit. That is not Smith and Co. (107 L. T. Rep. 531 ; (1912) A. Č. 716). In the same thing as saying that the act is not done that case a widow, who owned two cottages and a sum of with the master's autło:ity unless it is done for the money secured on a mortgage, being dissatisfied with the master's ber efit.

income derived therefrom, consulted a firm of solicitors as to We come now to the growth of the fallacy. In Limpus v.

her investments.

She saw

their managing clerk who London General Omnibus Company (7 L. T. Rep. N. S. 641; 1 H. conducted the conveyancing business of the firm without & C. 526) an action was brought against the company for the supervision. Acting as the representative of the firm, he negligence of their servant, who, in driving an omnibus of the induced her to give him instructions to sell the defendants' in competition and rivalry with an omnibus of the cottages and call in the mortgage debt, and for that plaintiff, collided with and injured the plaintiff's vehicle. purpose to hand him ber deeds, for which he gave her Baron Martin told the jury that if the act of the defendants' a receipt in the name of the firmi. He also induced driver in driving across the road to obstruct the plaintiff's her to sign two documents which

neither omnibus, although a reckless driving on his part, was never- read over nor explained to her, and which she believed theless an act done by him in the course of his service, and she had to sign in order to effect the sale of the cottages. to do that which he thought best to suit the interest of his These documents were in fact a conveyance to him of the employers, and so to interfere with the trade and business of cottages and a transfer to him of the mortgage. Having the other omnibus, the defendants were responsible, but thus got the property into his own hands he disposed of that if the true character of the act of the defendants' it for his own benefit. It was held that the firm were servant was that it was an act of his own, and in order to responsible for the fraud committed by their representative effect a purpose of his own, the defendants were not respon- in the course of his employment, although he was acting, not sible. This summing up was questioned on a bill of exceptions, for their benefit, but for his own ends. This decision brings but was approved by the Court of Exchequer Chamber, into harmony and consistency the law touching the liability consisting of Justices Wightman, Williams, Crompton, of principals for the torts of their agents acting within the Willes, Byles, and Blackburn. Mr. Justice Willes in the scope of their authority, whether the authority be conferred by course of his judgment said : • It appears to me that the express terms or inferred from facts and circumstances. The summing up is in accordance with the principle that question for whose benefit the act was done belongs to the a master is liable for acts done by his servant in the earlier stages of the discussion; in cases where the authority course of his employment.

It is also consistent with is not express, but has to be inferred, that question is a authority. I need only refer to the authority of Lord Holt stage on the way to deciding whether the act was done by the in Tuberrille v. Stampe, and of Lord Wensleydale in Huzzey authority of another. Once the authority is established, v. Field.

That learned person there laid down that further consideration of the question of benefit is irrelevant. the

proper question is whether the servant was acting at the If the servant or agent is a bout his master's business the time in the course of his master's service, and for his master will be liable no matter whose benefit is intended. I master's benefit; if so, his act was that of his master, on the other hand, he is, in the words of Baron Parke, “going although no express command or privity of his master was on a frolie of his own, without being at all on his master's proved. It seems to me that in ső laying down the business,” the master will not be liable : (Joel v. Morison, law he was strictly accurate." From what has been 1834, 6 C. & P. 501).

W. H. G.

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CONTRACTS AND THE WAR.–VII.

Here we may mention that the courts have upheld the view We shall proceed with the summary of the effect of the observa

expressed in our second article that a subject of the German or tions in the six preceding articles of this series. In our last

Austrian Empire who has complied with all the requirements of article we summarised these observations as regards contracts

the Aliens Restriction Act is to be treated for the purposes of between British subjects. We have now to summarise our

suing and being sued in our courts during the currency of the previous observations as regards contracts made between British

war as a person expressly licensed by the Crown to remain and subjects and German and Austrian subjects in this country, and

trade in this country. In the case of Princess Thurn and Taxis as regards contracts made between British subjects in this

v. Moffitt (noted 137 L. T. Jour. 564; (1914) W. N. 379) Mr country and alien enemies in the enemy's country.

Justice Sargant refused an application to dismiss an action Now, as regards contracts between British subjects and an

commenced by a lady alleged to be the wife of an alien enemy. alien enemy: as war imposes a prohibition against trading with

The application was based on the ground that an alien enemy an enemy, the contract, if entered into before the war commenced,

could not sue during the continuance of the war. The lady in may or may not be binding, according to circumstances. Fore. question had, however, fulfilled the requirements under the Act most amongst these circumstances is the status of the alien

and proclamations made thereunder. His Lordship laid stress enemy. If he is a licensed person, licensed to trade in this

on the fact that the Act and proclamations not only permitted country, the contract primâ facie will be enforceable. If he is such a person to reside here, but commanded her to stay in this not so licensed, and the performance of the contract, if it is

country and remain within a particular area. to be performed at all, would infringe the rules of law against Now, with regard to contracts made between a British subject trading with the enemy, then, inasmuch as the law against trading and an alien enemy since the war commenced, unless that alien with the enemy must not be infringed, the contract must not be enemy be expressly or impliedly licensed, it is abundantly clear performed. What, ther, is the position of the parties ? On this that such a contract would primâ facie be void ab initio. We have we submitted in our third article that the position was the same dealt exhaustively with the wide prohibitions against trading with as where the consideration has failed-namely, that the parties an enemy, or, at any rate, as exhaustively as the chaotic state of are left where they stood when impossibility of performance the law at the present time allows. These prohibitions leave one supervened. We now do not hesitate to advise the reader loophole for a contract between such parties. They allow that this is indeed the true position. The unlicensed alien dealings by means of " branch establishments. But as it is enemy cannot sue in our courts while the state of war continues. understood that steps are being taken for closing this loophole, the That is the only difference. When the war is over, the matter does not call for further mention. quondam alien enemy will be entitled to enforce the rights We are fully aware of the fact that some of the propositions put which he may have had under the undischarged part of the forward above do not appear to harmonise with some of the contract.

reported dicta in the authorities, or with some of the statements In our view this is one of the most important points connected contained in certain text-books. But what is of importance is that with our subject. Contracts, unperformed at the commencement the foregoing propositions harmonise with actual decisions. We of the war, and rendered impossible of full performance because have ventured to go behind some of these text-book statements and of the war, may at the end of the war give quondam alien enemies to search and examine the authorities upon which such statements a right to sue in respect of the undischarged portion of the are purported to have been based. We have had, at any rate, the contract. As the late Master of the Rolls explained in the case satisfaction of finding that the views expressed in these articles of Chandler v. Webster (90 L. T. Rep. 217; (1904) 1 K. B. 493), coincide with actual decisions in cases decided after those views under the doctrine of the discharge of a contract by the sub

were expressed. vention of the impossibility of performance, the law treats the

We have ventured to doubt the soundness of the distinction contract as a gocd and subsisting contract with regard to things

between executed and executory contracts in relatie done and rights accrued in accordance with the contract up to

subject. This distinction is often put forward, with the two the time of discharge, although as the basis of the contract bas

correlative propositions—first, that contracts executed prior to failed, the law excuses tbe parties from further responsibility

the outbreak of the war remain valid notwithstanding the state inder it.

of war, and, secondly, that the effect of the war on executory Where a contract has been entered into prior to the com

contracts is to discharge them. The ill-fated Treasury memomencent of the war between a British subject and a person

randum issued last August on the subject of trading with the who afterwards becomes an alien enemy on the outbreak of the

enemy was clearly based on this distinction. It was even stated war, it may be that the contract, although continuing and

in that memorandum that payments might be made to alien unperformed when war commenced, may nevertheless continue

enemies in respect of executed contracts. This statement was enforceable in toto notwithstanding that the alien enemy is

obviously at fault. Payment to an alien enemy during the unlicensed. This will be the case where performance remains

currency of the war is precisely the sort of dealing that runs possible after the war has ended. Thus, suppose a German firm

counter to the whole principle and object of our law which to have agreed to make and deliver in England at some point of

prevents trading with the enemy. * It is well known," said Sir time subsequent to the actual termination of the war (whenever

William Scott in the case of The Neptune (6 Rob. 405), “ that that may be) certain articles which, after the war has ended, are

a declaration of hostilities naturally carries with it an inter. 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

diction of all commercial intercourse; it leaves the belligerent

countries in a state that is inconsistent with the relations of not necessarily have been discharged on the outbreak of war.

commerce." This again appears to be an important point, for there seems to be a general belief at present that British subjects are absolved

The Treasury memorandum of August has, of course, since from all responsibility in connection with unperformed contracts

been annulled. But there are still many outstanding state with alien enemies.

ments, based on the supposed importance of this distinction Where a contract was entered into prior to the commencement

between executed and executory contracte, which would appear of the war between a British subject and a subject of the

to confuse rather than to elucidate the law. We believe that German or Austrian Empire and remained unperformed or

dicta to the effect that executory contracts are discharged, or, as partly performed when war broke out, then, if the alien has been it is sometimes boldly stated, avoided on the outbreak of expressly licensed to remain and trade in this country, or bas

war, are most misleading. Such dicta will be found in many been impliedly 90 licensed by virtue of the Aliens Restriction

In what is otherwise an able and learned note on the Act, the rights of the parties apparently are the same as if

subject appended to the report of the case of Clemontson v. the contract had been made between British parties. This does Blessig (1855, 11 Ex. 135, at p. 141 et seq.) it is stated that the not, of course, mean that the contract must necessarily continue declaration of war renders unexecuted contracts void, although on foot. As we have shown, contracts even between British the learned author of that note admitted that there was then subjects may be discharged as a result of the war.

little authority on the point.

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The view that we have put forward on this subject is this : A ment against the property of that enemy in this country during contract executory at the time of the outbreak of the war may

the continuance of the war. or may not be discharged as a result of the declaration, according This difficult point has now been dealt with by Mr. Justice to circumstances. It will certainly be discharged if its perform- Bailhache in the recent case of Robinson and Co. v. Continental ance would necessarily contravene the new state of law brought Insurance Company of Mannheim (noted 137 L. T. Jour. 565; about by the warmthat is to say, if its performance would involve (1914) W. N. 393). That was an action by an English firm an infringement of the law against trading with the enemy. against a German insurance company to recover a loss under a Again, although performance might not necessarily involve an policy of marine assurance. A summons was taken out on infringement of the law against trading with the enemy, war behalf of the defendants to stay all proceedings during the might have the effect of discharging the contract on the ground present war. The contract had been made before the war of failure of consideration. But all this is based on the impossi- commenced and the loss insured against had happened while the bility of performance, not on the fact that the contract happens two countries were at peace. The action itself had been to be executory. As we have pointed out, there are very good commenced before the declaration of war and divers steps in grounds for believing that an executory contract may be abso- the action had in fact been taken before that time. His Lordlutely unaffected by the war, except, of course, that the alien ship reserved judgment. enemy cannot sue during the continuance of the war. In support It will be observed that the question involved was whether of our view we may cite the dictum of Lord Lindley in the case a British subject can effectively sue an alien enemy during war. of Janson v. Driefontein Consolidated Mines Limited (87 L. T. Mr. Justice Bailhache decided that he can, at any rate, sue. As Rep. 372; (1902) A. C. 484, at p. 509). War," said his Lordship, his Lordship put it, to hold otherwise would be virtually to "produces a state of things giving rise to well-known special convert a disability into a form of relief. His Lordship was rules. It prohibits all trading with the enemy except with royal clearly of opinion that an alien enemy could not sue as a plaintiff licence, and dissolves all contracts which involves such trading." during the war. There is, of course, as we have pointed out, a The last few words of this dictum are very significant.

number of unimpeachable decisions holding that such a plaintiff The reader is advised, when dealing with any question con- cannot be heard in our courts during the continuance of the war. cerning the effect of the war on contractual relationships, to The reason which his Lordship gave for this rule is that it was keep in mind the distinctions between-first, avoidance of a con- contrary to public policy for the courts of this country to render tract ab initio ; secondly, the discharge of a contract as from 'any assistance to an alien enemy to enforce rights which but for some point of time after it has been partly performed, leaving the war he would be entitled to enforce to his own advantage and part of the contract unperformed ; and, thirdly, the unenforce- to the detriment of a subject of this country. But, as his Lordability of a contract. During the war no contract is enforceable ship pointed out, to hold that a British subject's right of suit by an alien enemy, although the contract may remain a binding was suspended because of that rule of public policy would be contract notwithstanding the war. When the war is over, the to injure a British subject and to favour an alien enemy, and quondam alien enemy may enforce the contract. He may also thus the object and reason of the suspensory rule would be then enforce rights accrued to him under a contract which the defeated. His Lordship therefore held that the war did not war has discharged where those rights accrued to him in respect suspend an action against a defendant alien enemy. of the contract prior to discharge. As to cases void ab initio by This decision involved two further points : First, whether a reason of the war, an instance of such a purported contract defendant alien enemy could appear by counsel and be heard in would be furnished where a British subject, in defiance of the law our courts during the war. Secondly, what was to happen as against trading with the enemy, deliberately entered into a regards costs if the defence was successful ? On the first point contract with an alien enemy in Germany or Austria.

his Lordship pointed out that no state of war could demand or In the preceding articles of this series we have dealt with justify the condemnation by a civil court of a man unheard. The certain more or less isolated points touching our main subject.

learned judge had found no rule of common law which prevented Of such points the following ought to be specially mentioned : an alien enemy appearing and conducting his defence. The First, there is according to the law of this country no halfway

difficulties of the second question were such that his Lordship state between the state of peace and the state of war. As the reserved the point, and stated that if it arose thereafter it late Lord Macnaghten pointed out in the case of Janson v. would probably be sufficiently met by suspending the defendant's Driefontein Consolidated Mines Limited (sup) the law recognises a right to issue execution. state of peace and a state of war, but it knows nothing of an.

The decision of Mr. Justice Bailhache has done much to clear intermediate state which is neither the one thing nor the other away the doubts which existed on the question of the position of neither peace nor war. “However critical may be the conditions an alien enemy defendant. Apparently his Lordship did not of affairs,” said his Lordship, “ however imminent war may be, if feel any difficulty about the possible rights of the Crown in the and so long as the Government of the State abstains from matter. It may be, in subsequent cases, that this right of the declaring or making war or accepting a hostile challenge there is Crown will be either expressly negatived or recognised. Until it peace-peace with all its attendant circumstances--for all its is there still appears to be a substantial difficulty to be got over. subjects.” Having regard to the suddenness with which this Unless the Crown puts in a claim under the doctrine of forfeiture country was plunged into war, the number of contracts actually

and that claim be denied, it cannot be said to have been decided made while peace and war hung in the balance was, no doubt,

that the doctrine of forfeiture has been relegated to the limbo of not very great. But the point thus eloquently enunciated by

the past. Lord Macnaghten ought not to be lost sight of by persons con

There are some other points of importance which ought to be sidering the effect of the war on the rights of parties to a

mentioned before closing this series of articles. These will be contract made during the first two or three days of August

briefly 'disposed of in our next and concluding article. Correlast.

spondents have also from time to time raised some interesting Secondly, we dealt with the obscure doctrine of the forfeiture

points in cornection with the subject-matter of these articles. to the Crown of the rights and property of an alien enemy. We

In our concluding article it is hoped to touch, at any rate, on pointed out that it was very doubtful whether the doctrine would

such of these latter points as may be of general interest.

(To be concluded.) be upheld at the present day. The right of forfeiture apparently has not been exercised since the early eighteenth century. Tbat it may still be effectual was clearly the opinion of Chief Baron Pollock in Wahl v. Braune (1836, 35 L. J. 343, Ex.). There his

ALIENS AND NATURALISATION, Lordship spoke of the rights of the alien enemy being forfeited to · A PERSON of German nationality (in the first instance) may have the Crown, and his Lordship said that it might be the duty of the

taken various steps before or after the outbreak of war to put Crown to enforce its rights by inquisition. In our fourth article himself right with the British authorities. we warned the reader not to assume, too readily that he could He may have been naturalised in this country or he may have obtain judgment against an alien enemy and enforce that judg. been naturalised in one of the British dominions, or the Crown

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may have given him letters of denization or he may have acquired dominion outside the United Kingdom. The way out of the a licence to trade, or he may simply have registered himself difficulty which was accordingly suggested was the application under the Aliens Restriction Act 1914.

of the rule as to the “ status of the individual according to his We think that it will be useful to consider each of these domicil.” positions and the consequences which result therefrom.

Now, all this would be very well if the statute were ambiguous ; In the first case he is entitled in the United Kingdom to all but where it is expressed, in the words of the Legislature, that the political and other rights, powers, and privileges and is subject benefit is to be conferred “within those limits " and is to have tho to all obligations to which a natural-born British subject is authority of law " within those limits,” we do not think such farentitled or subject in the United Kingdom, with this qualification, reaching consequences beyond those limits can safely be that he is not, when within the limits of the foreign State of which implied. he was

a subject previously to obtaining his certificate of But an “alien enemy” is for most practical purposes one who naturalisation, deemed to be a British subject unless he has dwells or carries on business within the limits of an alien country ceased to be a subject of that State in pursuance of the laws whose Sovereign is at war with His Majesty. What naturalisathereof or in pursuance of a treaty to that effect.

tion of an alien-here or in the dominions—for most practical Next as to naturalisation within the dominions. The British purposes does is to decide how such a one is to be regarded by Nationality and Status of Aliens Act 1914 does not come into the Imperial courts or those of the dominion respectively. operation till the 1st Jan. of next year. Sect. 8 of that Act gives Therefore the hardship suggested—viz., that a person naturalised power to the Governments of British possessions (who will haye in the dominions is treated here as an enemy-will comparatively adopted the Act) to grant certificates of naturalisation. The seldom arise. Act saves the rights (by sect. 26) of the Governments of British We shall return later to the position of “alien enemies " pure possessions, and repeats the provision that all laws, &c., made by and simple, but first let us glaïce at the other measures whicb the Legislature of a British possession "for imparting to any may be taken by Germans to put themselves right with this person any of the privileges of naturalisation to be enjoyed by

country. him within the limits of that possession shall, within those limite,

Letters of denization have the same effect as naturalisation, have the authority of law.” This is the same as the provision

but are not now in frequent use. The other measures have a of sect. 16 of the Naturalisation Act of 1870 (33 Vict. c. 14),

smaller effect. where the words are "to be enjoyed within the limits of such

There is, first, the “licence to trade.” There are some cases possession." This latter enactment is now the law of the land.

in which it is inconvenient or inexpedient to this country that The Australian Naturalisation Act 1903 provides that a person

certain businesses carried on by Germans should come to an end. to whom a certificate of naturalisation is granted sball “in the

Such persons receive a licence to trade,” and the principles on Commonwealth be entitled to all rights to which a natural born

which such licences are granted should be very closely safeBritish subject is entitled in the Commonwealth.”

guarded. If a German has such a licence, he is, of course for The authorityiof the Australian Parliament is derived from the the purposes of the trade in question-in as good a position as a Constitution Act of 1900, an Imperial statute giving the Common

British subject. The licence should never be granted except in wealth Parliament power to make laws “for the peace, order, and

the interests of this country. good government of the Commonwealth in respect of (inter alia)

Next comes registration ” under the Restriction of Aliens naturalisation and aliens."

Act 1914. At first sight this has nothing to do with the subject In a case which recently arose at chambers, and which the

before us. Theoretically, if an alien is not registered, he is only Government of Australia would have probably taken to the

liable to imprisonment or penalties ; and theoretically again, if he House of Lords but for that occurrence so often regretted by

is registered, it is no merit, no franchise or privilege--it merely the lawyer who is academically interested in the elucidation of saves him from imprisonment or fine. But in practice it is nicə points of law-the amicable settlement of the dispute

something more than this. between the contending parties—an exceedingly important argu.

The Royal Proclamation of the 9th Sept. 1914 defines an ment was raised.

enemy as a person or body of persons of whatever nationality The argument was that power is given to the Commonwealth resident or carrying on business in the enemy country,” and for Parliament to naturalise, and that it is therefore a matter for many purposes the common law is much the same. the interpretation of the Australian Naturalisation Act to find If a British subject voluntarily (the qualification should be out the effect of the naturalisation. The Colonial Act in this noted) resides in an enemy country, he is regarded as subject to case, it was said, is just as limited-no more and no less than the disqualification of alien enemies. the English Act. Naturalisation, however so ran the argument If a German subject resides in this country or in a neutrar —means, both in Australia and here, the renouncing of the country, he is, for commercial purposes, not to be regarded as an previous allegiance and the swearing of the oath of allegiance to His Majesty King George V., his heirs and successors. A This is the doctrine of " commercial status,” and we think that definite change of status, it was contended, therefore takes place; strictly it is confined to commercial considerations. Professor and in a case of status the general rule is that the existence of a Dicey, in his Conflict of Laws (2nd edit.), p. 740 and following, status existing under the law of the person's domicil is recog. makes this position quite clear : "Speaking generally,” he says, nised by the English courts : (see Professor Dicey's Conflict of a person domiciled in a neutral country is to be regarded as, Laws, 2nd edit., p. 463).

for commercial purposes, a neutral, even though he be in fact a Is it credible, it was asked, that an individual who has sworn British subject or the subject of a State at war with England." allegiance to His Majesty, and whose oath of allegiance has been He referg to The Danous (4 C. Rob. 255, note). This case was accepted by the King's representative, should be treated as an decided by the House of Lords on the 17th March 1802, and the alien and, when his Sovereign is at war with ours, as an alien important words used were, 80 as not to render his trade an enemy in this country, from which the authority to take and illegal trade.” accept the oath of allegiance has been derived ? A person may, In Pitt-Cobbett's Leading Cases International Law, indeed, be a bankrupt in one country and not a bankrupt in vol. 2, War (3rd edit.), p. 24, the same authority and others another, and nationality can certainly differ in different countries are cited for the following statement: “ All persons domiciled in A person can be, it was admitted, a German according to German neutral or British or allied territory are regarded as having a law and a Frenchman from the French point of view. But can he neutral or friendly character, as the case may be, so long as such be at one and the eame time a subject and not a subject within domicil continues; and the same rule will apply where enemy the limits of one and the same sovereignty ? It must be remem- subjects are domiciled in British territory if they are allowed to bered, it was said, that, unless the view contended for prevails, remain”: (Cf. Janson v. Driefontein Mines Limited, 87 L. T. Rep. an individual of alien nationality could not possibly get by 372 ; (1902) A. C. 484). naturalisation the benest of British protection in foreign In the Australian

before referred to, it countries, no matter how long he may reside in the British therefore argued — and this was the strongest part of the

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