“ In the law, *’ he says, “ of almost every country, the characterof alien enemy carries with it a disability to sue, or to sutain, inthe language of the civilians, a persona standi, in judicio. Thepeculiar law of our own country appliesthis principle with great
rigour. The same principle is received inour Courts of the law of
nations. They are so far British Courts that no man can sue thereinwho is a subject of the enemy, unless under particular circumstancesthat pm hdc vice discharge him from the character of an enemy,such as his coming under a flag of truce, a cartel, a pass, or some otheract of public authority that puts him in the King's peace pro hdcvice. But otherwise he is totally ex lege. Even in the case ofransoms, which were contracts, but contracts arising ex jure belli,and tolerated as such, the enemy was not permitted to sue in hisown proper person for the payment of the ransom bill, bulT thepayment was enforced by an action brought by the imprisonedhostage in the Courts of his own country for the recovery of hisfreedom. M
The authority of this rule of law has been invariably upheld bythe Gourts. The fact—and here I come to deal in detail withMr. Drieberg’s argument—that in modern times, partly by inter-national engagements, such as The Hague Convention, and partlyby concessions made by one belligerent ,to the subjects of another,the rigours of war have been somewhat abated does not warrant theconclusion that the position of alien enemies has been modified inmatters with which such international engagements and concessionsdo not deal, but rather .the reverse. The provision in Order HI., r. 5,of the new Prize Buies that “ an alien shall, before entering anappearance, file in the registry an affidavit stating the grounds ofhis claim, M presents no difficulty when the subject is consideredfrom the historical point of view. Mr. Drieberg, of course, did notargue that the rule just mentioned, even if it bore the constructionwhich he sought to put upon it, would be a binding authority, inas-much as this Court has decided that all pending Prize causes shallbe concluded under the old rules. But he invited me to regard itas throwing light upon the modem policy of the law with respectto the position of alien enemies in legal proceedings, and he urgedin particular that the words “ grounds of his claim M showed thatthe alien enemy was now no longer to be required to prove a locusstandi, but that he had a right to have the claim itself dealt with
1 (1902) Appeal Cases 484.
( 485 )
oon the merits. The recent decision of Sir Samuel Evans in thefLMarie Glaeser is a direct authority against Mr. Drieberg's contentionoon this point. But the matter is conclusively disposed by the judg-xment of Dr. Lushington in an older case, The Panaja Drapaniotisa,1^which came before the English Prize Court during the Crimean war.
“ Now, speaking, ” says Dr. Lushington, “ to the best of myt recollection, and so far as I have been able to refresh my convictionfby search as to matters with which I* have not been directly con*r versant for so many years, and which involve only questions of[practice and not principle, and consequently take less hold of ther memory, with respect to the claim offered in .this pase, and thej affidavit in support thereof, I have caused a search to be made as tor the practice both in the former and present war, and X am glad totfind that the principle and the practice, with a few unimportantt exceptions, entirely concur.
“ The principle is this, that to support a claim in the Prize Court* the individual asserting his claim must first show that he is entitledto a locus standi. No person to whom the character of enemyattaches can have such claim, save by the express authority of theCrown; therefore, to prevent deception which might arise fromthe use of ambiguous terms, and to stop claims which might bepreferred in one sense by the subjects of friendly or neutral Statesresident in the enemy's country and carrying on a trade there, ithas always been deemed necessary that the claimant should describe,both affirmatively and negatively, the character in which he claims. ’*The learned Judge proceeded to hold that the claimant in hisaffidavit must describe the place to which he belonged, and negativeall enemy’s interests “in a form specially framed for that purpose,and intended to apply ……… to any person resident within the
territories of the enemy, to whatever country he may owe allegiance. M
Then comes the passage applicable to aliens:“The excepted,
cases are where an enemy merchant claims under an Order incouncil, or license, and then of necessity the form is altered and theground of the special claim inserted. ’’ The case of the Phoenix?- is to the same effect, and incidentally shows the meaning to beattached to the provision in Order IH., r. 5, of the new Prize Buiesas to the grounds of an alien’s claim. The Phoenix, a Bussianvessel, was captured soon after the outbreak of the Crimean warand 6ent to London for condemnation. A claim to the ship wasmade on behalf of the owners, who were Bussian -subjects. TheQueen’s Advocate took a preliminary objection to the form of theaffidavit of claim, inasmuch as it contained no statement of ** theground ” on which the claim was made, and added-that, while hecould not speak from any experience of his own, he had been inform-ed by the Advocate of the Admiralty (Dr. Phillimore) “ that when
1 {1857) 2 Roscoe English Prize Cases 560.
* {1854) 2 Roscoe ’* English Prize Cases 238.
Renton G.J,and P.
In Prizess. “Reichen-
fds n
( 436 )
1014. a claim was made by an enemy, it was always necessary to set forthWood oq w^at ground the claim was made, whether under a license, underR$kton C.J. an Order in Council, or on what other ground.” Dr. Lushingtonand disposed of the case on the main issue involved in it without callingIn Prize for a further affidavit. But he recorded his opinion on the Queen’s*8. “Reiohm. Advocate’s preliminary objection as follows:“ In the last war
3the principle and the practice was that in the case of enemy claim-
ants it was always necessary to state something to show that theyhad a locus standi; the same course must be followed in the presentwar. ”
It clearly results from these citations that, even under the oldpractice, provision was made for claims by aliens; that such claimshad to be supported by affidavit; and that where the alien was alsoan enemy, his claim could be entertained only where he could showa “ ground ” for it, or, in other words, where he could bring himselfunder one of the excepted categories. Order III., r. 5, is merely arule of procedure, and does not, in my opinion, place alien enemiesin a position different from, or more favourable than, that whichthey have hitherto occupied in regard to their locus standi in theCourts. An alien may show, if he can, that although an alien,he is not an enemy, or that, although an enemy, his locus standi hasin some way been recognized by the Sovereign. It is in such casesas these, and in such cases alone, that under the new procedure, asunder the old, he can put forward before the Court the 14 groundsof his claim. ” It is not suggested that the Deutsches KohlenDepot is in a position to set up any claim of this description. Thefact that the company has been served with notice of the motionunder rule 93 for appraisement and sale of the cargo cannot giveto it any right to intervene in these proceedings. Such notices ares.erved in conformity with the express requirement of rule 93 of theold procedure. The owner is not called upon to appear in Courtand show cause against the motion, and no right to do so is conferredupon him.
I dismiss the application.
Application dismissed.