traffic with the enemy is prohibited, and contracts made during the war, are void, and therefore attorneys of this court cannot be employed to appear for such a defendant. This is true as a general principle, and is applicable to all commercial relations, without the express permission of the government. There are, however, exceptions to this rigorous rule arising out of a public necessity created by the war itself. Antoine v. Morshead, 6 Taunt. 237. We do not think the appearance of attorney in this case is a commercial transaction or one within the policy and meaning of the restriction. It would be revolting to the rules of justice which govern a court, to drag therein a party, and then say to him, although you are properly before the court, you are an alien enemy and shall not be heard, yet judgment shall be rendered against you. We are of the opinion that an alien enemy may be made a party defendant to a suit in our courts, and that when made a party, may be heard by attorney in his defense."

So also in Buford v. Speed (1875), 11 Bush (Ky.) 338, per Cofer, J.: "Having a right to make defense, it follows that Buford had a right to employ counsel, for without counsel no defense could be made. In order to secure counsel he must have had a right to contract with attorneys residing within the enemy's country where the court was sitting in which the counsel was to appear, and to pay them for their services, otherwise the established right to make defense is a delusion and a mockery." To the same effect, McVeigh v. United States (1870), 11 Wall. 259, 20 L. ed. 80; McNair v. Foler (1875), 21 Minn. 175. No question appears ever to have arisen in England regarding the right of a defendant to be represented by counsel, and to make the necessary contracts with his solicitor.

"Receipt of notice . . . any contract or other obligation."

Such notice from the President constitutes a prima facie defense to any suit or action brought or maintained by an enemy or ally of enemy. Such notice is furthermore a defense to any right or set-off or recoupment asserted by such enemy or ally of enemy, provided that such right or setoff or recoupment is based on a failure to complete or perform since the beginning of the war, any contract or other obligation. It does not refer to rights or set-off, or recoupment set up by such person and based on failure to complete or perform any contract or obligation where the failure to complete or perform occurred prior to April 6, 1917.

Mere suspicion that the amount sued for may, if received be paid to an enemy does not justify an order to stay proceedings until the termination of the war. White v. T. Eaton Co. (1916), 30 Dom. L. R. 459. See also supra, p. 173, as to President's power to suspend.

"In any prosecution under section 16 hereof, etc." See section 3 and notes, supra, p. 133.

Surrender of enemy property.

(c) If the President shall so require, any money or other property owing or belonging to or held for, by, on account of, or on behalf of, or for the benefit of an enemy or ally of enemy not holding a license granted by the President hereunder, which the President after investigation shall determine is so owing or so belongs or is so held, shall be conveyed, transferred, assigned, delivered, or paid over to the Alien Property Custodian.

"If the President shall so require. . . shall be conveyed or paid over."

The property is received in trust to be dealt with in accordance with section 12. The Act in all its provisions, looks to the conservation, not the confiscation of enemy property. As to abrogation of certain classes of contracts, see infra, p. 259. As to abrogation of insurance contracts, see supra, p. 161.

Right of confiscation of enemy property.

The security of the persons and property of domiciled alien merchants, was guaranteed on condition of reciprocity, by Magna Charta, art. 42: "If they (merchants) be of the land at war against us, and if such shall be found in our land at the beginning of war, they shall be attached without loss of person or property, until it be known by us or our chief justiciary how the merchants of our land are treated who are found then in the land at war with us; and if ours be safe there the others shall be safe here." And this security was extended to resident alien merchants by the Statute of Staples, 27 Edw. 3, St. 2. For a review of the authorities, see the opinion of Chancellor Kent, in Clarke v. Morey (1813), 10 John. (N. Y.) 69.

The right to confiscate enemy property on land has frequently been asserted by the English and American courts. Hale, 1 Pleas of the Crown, 95, says that "by the law of England debts and goods found in this realm belonging to alien enemies belong to the king and may be seized by him.” "But," says Lord Ellenborough in Wolff v. Oxholm (1817), 6 M. & S. 92, "the books referred to do not furnish an instance of the seizure of debts or a decided case in support of the legality of the seizure." See also Lord

Reading, in Porter v. Freudenberg [1915] 1 K. B. 857, citing AttorneyGeneral v. Wheeden (1699), Parker, 267; Antoine v. Morshead (1815), 6 Taunt. 237. Lord Reading adds: "the right of confiscation is only of importance to trace the history and foundation of our common law, since there is manifestly no question of exercising this right." Lord Mansfield, in Cornu v. Blackburn (1781), 2 Doug. 640, said that "it is sound policy as well as good morality to keep faith with an enemy in time of war."

In the United States the abstract right to confiscate has been asserted, but such confiscation requires an act of Congress, and does not arise as a consequence of the declaration of war. See Ware v. Hylton (1796), 3 Dall. 199, 1 L. ed. 568.

In Brown v. United States (1814), 8 Cr. 110, 3 L. ed. 504, Marshall, C. J., says: "That war gives to the sovereign full right to take the persons and confiscate the property of the enemy wherever found, is conceded. The mitigations of this rigid rule, which the humane and wise policy of modern times has introduced into practice, will more or less affect the exercise of this right, but cannot impair the right itself. That remains undiminished, and when the sovereign authority shall choose to bring it into operation, the judicial department must give effect to its will. But until that will shall be expressed, no power of condemnation can exist in the court. The questions to be decided by the court are: 1st. May enemy's property, found on land at the commencement of hostilities, be seized and condemned as a necessary consequence of the declaration of war? 2nd. Is there any legislative act which authorizes such seizure and condemnation? Since, in this country, from the structure of our government, proceedings to condemn the property of an enemy found within our territory at the declaration of war, can be sustained only upon the principle that they are instituted in execution of some existing law, we are led to ask, Is the declaration of war such a law? Does that declaration, by its own operation, so vest the property of the enemy in the government, as to support proceedings for its seizure and confiscation; or does it vest only a right, the assertion of which depends on the will of the sovereign power? The universal practice of forbearing to seize and confiscate debts and credits, the principle universally received, that the right to them revives on the restoration of peace, would seem to prove that war is not all absolute confiscation of this property, but simply confers the right of confiscation. Between debts contracted under the faith of laws, and property acquired in the course of trade on the faith of the same laws, reason draws no distinction; and although, in practice, vessels with their cargoes, found in port at the declaration of war, may have been seized, it is not believed that modern usage would sanction the seizure of the goods of an enemy on land, which

...

were acquired in peace in the course of trade. Such a proceeding is rare, and would be deemed a harsh exercise of the rights of war. But although the practice in this respect may not be uniform, that circumstance does not essentially affect the question. The inquiry is, whether such property vests in the sovereign by the mere declaration of war, or remains subject to a right of confiscation, the exercise of which depends on the national will: and the rule which applies to one case, so far as respects the operation of a declaration of war on the thing itself, must apply to all others over which war gives an equal right. The right of the sovereign to confiscate debts being precisely the same with the right to confiscate other property found in the country, the operation of a declaration of war on debts and on other property found within the country must be the same. . . . The modern rule then would seem to be, that tangible property belonging to an enemy and found in the country at the commencement of war, ought not to be immediately confiscated. . . . Commercial nations, in the situation of the United States, have always a considerable quantity of property in the possession of their neighbours. When war breaks out, the question, what shall be done with enemy property in our country, is a question rather of policy than of law. The rule which we apply to the property of our enemy will be applied by him to the property of our citizens. Like all other questions of policy it is proper for the consideration of a department which can modify it at will; not for the consideration of a department which can pursue only the law as it is written. It is proper for the consideration of the legislature, not of the executive or judiciary. It appears to the court, that the power of confiscating enemy property is in the legislature, and that the legislature has not yet declared its will to confiscate property which was within our territory at the declaration of war."

While the power to confiscate enemy property may be conceded, it has not been exercised by the United States since the Revolutionary War, when some of the States passed such laws against the Tories. The Confiscation Acts of the Civil War were directed not alone against enemy property as such but had also in view the punishment of the owner for participation in a rebellion. Cp. Miller v. United States (1870), 11 Wall. 268, 20 L. ed. 135; Planters Bank v. Union Bank (1872), 16 Wall. 483, 21 L. ed. 473; Risley v. Phenix Bank (1881), 83 N. Y. 318. The Confederate States passed an Act in August, 1861, declaring that "property of whatever nature, except public stocks," held by an alien enemy since a designated date were to be sequestrated and appropriated. This action was reprobated by European opinion, and Lord Russell protested against it on behalf of British subjects domiciled in the Northern States. Bentwich,

War and Private Property, 9. And Clifford, J., in Hanger v. Abbott (1867), 6 Wall. 532, 18 L. ed. 935, says that "there is no exigency in war which requires that belligerents should confiscate or annul debts."

Sequestration, and confiscation of property, shares, and debts was expressly forbidden in treaties between the United States and France (1800), and between the United States and England (1795). The provision in the latter treaty appears not to have been abrogated by the War of 1812. Dana's Wheaton, International Law, section 275 (3), and note. See also treaty between the United States and Peru (1851).

Page, War and Alien Enemies, 2d ed. 34-36, upholds the right to confiscate property and bar debts: "It would be unlawful for a State according to international law to bar the remedy of the creditors of alien enemies, and to compel payment of the debts of alien enemies for the use of the public. Whether it is prudent for a belligerent to confiscate the property of alien enemies in its territory is a matter rather of policy than of law. It may in some cases be both common sense and simple justice to do so, for the confiscation of debts and other choses in action 'as well as that of property of any kind, may serve as an indemnity for the expenses of war, and as a security against future aggression. That such confiscations have fallen into disuse, has resulted not from the duty which one nation, independent of treaties, owes to another, but from commercial policy which European nations have found a common and indeed a strong interest in supporting (per Elsworth, C. J., in Hamilton v. Eaton (1791), N. C. Cases 79)."

He considers that even the rights of protection to property are limited. "The court would probably interfere, in the exercise of its criminal jurisdiction, to prevent the property of such persons from being appropriated, destroyed, or injured by private individuals. But it is submitted that, even after the war, alien enemies, not resident during the war in this country per licentiam et sub protectione regis, would not be entitled to any redress by way of civil process in respect of injuries inflicted upon their persons or their property during the war; for example, assault or trespass to property. It might be contended that, so long as the Crown did not confiscate the property of alien enemies in this country, the court would infer that the Crown had by implication permitted and licensed alien enemy owners to hold such property during the war, and that therefore, quâ owners of such property, they must be deemed to be alien friends; but it is submitted that such a contention ought not to prevail, as being inconsistent with the wellestablished rule that alien enemies, not resident here per licentiam regis, are not entitled to any rights or privileges (see also Brooke's Abridg. p. 167; and Daubigny v. Davallon, 2 Anst. 462. The decision in this case supports the general proposition laid down, and any expressions of Macdonald,