such policy-holder or insurance company, not an enemy or ally of enemy, having any claim to or upon money or other property of the enemy or ally of enemy insurance or reinsurance company in the custody or control of the Alien Property Custodian, hereinafter provided for, or of the Treasurer of the United States, may make application for the payment thereof and may institute suit as provided in section nine hereof.

"If no license is applied for."

A failure to apply for license or a refusal to grant same, imposes an absolute prohibition on the enemy company or other person of doing business here. It does not prevent such enemy or any other person from receiving a license under section 3 or other sections of the Act. Certain acts, enumerated in the proviso, may be done. As to suits against such enemy persons see section 9, and notes thereto.

"If a license shall be refused."

From the moment of such refusal all of the provisions of the Act relating to trading and communications become operative. Strictly speaking even purely ministerial acts for the preservation of the property cannot be performed, except under license.

Change of name by individuals or partnerships.

(b) That, during the present war, no enemy, or ally of enemy, and no partnership of which he is a member or was a member at the beginning of the war, shall for any purpose assume or use any name other than that by which such enemy or partnership was ordinarily known at the beginning of the war, except under license from the President.

"No enemy or ally of enemy . . . shall assume any name, etc."

This applies only to persons who are "enemies" or "allies of enemy" under section 2. It does not include an individual, even of enemy nationality, resident within the United States, unless the President extends the meaning of the term "enemy" under the powers conferred by section 2. The provision of the Act covers the case of a change of a partnership name where a partner of any nationality (even American) is resident within enemy or ally of enemy territory, or is an "enemy" by reason of

other circumstances. If such partner, regardless of nationality, is resident in enemy territory (but not if resident in territory of a country with which the United States is not at war, even though it be an ally of such enemy country) the prevailing opinion is that the partnership is dissolved by the outbreak of war. For a consideration of this topic, see infra, p. 278. If we adopt this view, there can, therefore, be no question as to a partnership of which he is a member, and the partnership of which he was a member ceased to exist when he ceased to be a member of the firm by operation of law. Any new partnership thereafter formed may assume a new firm name.

If the partnership agreement expressly provides for a continuance in spite of the fact that one of the partners becomes an alien enemy [cp. Armitage v. Borgmann (1915), 59 Sol. Jour. 219], the name cannot be changed without a license. Quare, whether the same rule applies where the business and good will are acquired by the remaining partners.

"Under license."

The competent authority to grant licenses under this section is the War Trade Board. Executive Order, October 12, 1917, section 6.

The President may suspend the operations of the Act so far as they apply to an ally of enemy. Section 5 (a). But while he may grant licenses to allies of enemy under sections 3, 4 (a) and 10 (b), his power to license under section 4 (b) is given only under this section. But such license may be given generally to all persons affected thereby or specially to designated classes or individuals.

Power to prohibit foreign insurance companies from doing business.

Whenever, during the present war, in the opinion of the President the public safety or public interest requires, the President may prohibit any or all foreign insurance companies from doing business in the United States, or the President may license such company or companies to do business upon such terms as he may deem proper.

"Any or all foreign insurance companies."

For provisions regarding enemy and ally of enemy insurance companies see section 4 (a).

There is no power at common law or under the Act to abrogate con

tracts with foreign insurance companies as distinguished from enemy insurance companies. The power to prohibit extends only to foreign insurance companies not to companies doing other kinds of business in the United States, nor does it extend to foreign partnerships or individuals carrying on an insurance business within this country.

No action has been taken under this provision up to January 15, 1918.

Suspension of provisions applicable to an ally of enemy. Licenses.

SEC. 5. (a) That the President, if he shall find it compatible with the safety of the United States and with the successful prosecution of the war, may, by proclamation, suspend the provisions of this Act so far as they apply to an ally of enemy, and he may revoke or renew such suspension from time to time; and the President may grant licenses, special or general, temporary or otherwise, and for such period of time and containing such provisions and conditions as he shall prescribe, to any person or class of persons to do business as provided in subsection (a) of section four hereof, and to perform any act made unlawful without such license in section three hereof, and to file and prosecute applications under subsection (b) of section ten hereof; and he may revoke or renew such licenses from time to time, if he shall be of opinion that such grant or revocation or renewal shall be compatible with the safety of the United States and with the successful prosecution of the war; and he may make such rules and regulations, not inconsistent with law, as may be necessary and proper to carry out the provisions of this Act; and the President may exercise any power or authority conferred by this Act through such officer or officers as he shall direct.

Up to January 15, 1918, no such suspension has taken place.

"President may grant licenses.”

"A state of war may exist and yet commercial intercourse be lawful. They are not necessarily inconsistent with each other. Trading with a public enemy may be authorized by a sovereign, and even to a limited extent by a military commander. Such permissions or licenses are partial suspensions of the laws of war, but not of the war itself. In modern times they are very common. Bynkershoek, in his Quaest. Jur. Pub., lib. 1 c. 3, while asserting as a universal principle of law that an immediate consequence of the commencement of war is the interdiction of all commercial intercourse between the subjects of the states at war, remarks—'The utility, however, of merchants, and the mutual wants of nations, have almost got the better of the laws of war as to commerce. Hence it is alternatively permitted and forbidden in time of war, as princes think it most for the interests of their subjects. A commercial nation is anxious to trade, and accommodates the laws of war to the greater or lesser want that it may be in of the goods of others. Thus sometimes a mutual commerce is permitted generally; sometimes as to certain merchandise only, while others are prohibited; and sometimes it is prohibited altogether."" Matthews v. M'Stea (1875), 91 U. S. 7, 23 L. ed. 188.

Halleck, Treatise on the Laws of War, pp. 676 et seq., discusses this subject at considerable length, and remarks "That branch of the government to which, from the form of its constitution, the power of declaring or making war is entrusted, has an undoubted right to regulate and modify, in its discretion, the hostilities which it sanctions."

At common law the Crown has power to license trade with the enemy, and such licenses may be given to a British subject, a neutral or an enemy. The Hoop (1799), 1 C. Rob. 196, 1 Roscoe P. C. 104; Vandyck v. Whitmore (1801), 1 East, 475; Usparicha v. Noble (1811), 13 East, 332. Within the limits of his particular command, a military or naval officer may grant a special license. The Hope (1813), 1 Dod. 226. In the United States, as a general rule, licenses are issued under the authority of an act of Congress; but in special cases and for purposes immediately connected with the prosecution of the war, they may be granted by the authority of the President, as commander-in-chief of the military and naval forces of the United States. Matthews v. M'Stea (1875), 91 U. S. 7, 23 L. ed. 188. The proclamations of the President relating to German insurance companies (supra, p. 159) were not authorized by an act of Congress.

Under the Act, only the President and such officers as may be vested with authority by the President have the power to grant licenses. The military and naval authorities have no such power. The Reform (1864), 3 Wall. 617, 18 L. ed. 105; The Sea Lion (1866), 5 Wall. 630, 18 L. ed. 618;

The Ouachita Cotton (1867), 6 Wall. 521, 18 L. ed. 935. Nor is a diplomatic or consular officer of the United States as such vested with power to grant a license. "The claimant asserted, and the consul denied, that protection to the voyage was extended by the latter. But we do not go at length into this matter because we think that no engagement with the United States nor any particular service to the United States was made out in that connection, and, so far as appears, the vessel was captured in the ordinary course of cruising duty at a time and under circumstances when her liability was not to be denied. Moreover, a United States consul has no authority by virtue of his official station, to grant any license or permit the exemption of a vessel of an enemy from capture and confiscation. This was so held by Judge McCaleb in Rogers v. The Amado, Newberry, Adm. 400, in which he quotes the language of Sir William Scott in The Hope, 1 Dod. Adm. 226, 229: 'To exempt the property of enemies from the effect of hostilities, is a very high act of sovereign authority; if at any time delegated to persons in a subordinate situation, it must be exercised either by those who have a special commission granted to them for the particular business, and who, in legal language, are termed mandatories, or by persons in whom such a power is vested in virtue of any official situation to which it may be considered incidental. It is quite clear that no consul in any country, particularly in an enemy's country, is vested with any such power in virtue of his station. "Ei rei non præponitur;" and therefore his acts relating to it are not binding.' In The Joseph, 8 Cranch, 451, the vessel was condemned for trading with the enemy, and it was held that she was not excused by the necessity of obtaining funds to pay the expenses of the ship, nor by the opinion of an American minister expressed to the master, that by undertaking the voyage he would violate no law of the United States. The court said that these considerations, 'if founded in truth, present a case of peculiar hardship, yet they afford no legal excuse which it is competent to this court to admit as the basis of its decision."" Per Fuller, C. J., in The Benito Estenger (1899), 176 U. S. 568, 44 L. ed. 592. But a license by an officer de facto entrusted with the power to grant licenses is sufficient. Donohoe v. Schroder and Kubatz (High Court, 1916), 22 Com. L. R. 362. The War Trade Board is vested with the powers under this section. During the present war a general license has been given to all persons residing or carrying on business in the British Dominions to pay fees relating to patents, designs, or trade-marks, in an enemy country and to pay on behalf of an enemy, fees for these purposes, in Great Britain. London Gazette, November 6, 1914. Furthermore, British owners of cargoes on board an enemy's ship in a neutral port, are allowed to pay