Lord Reading C.J. pointed out in Porter v. Freudenberg,1 these principles are

grounded upon public policy which forbids the doing of acts that are or may be to the advantage of the enemy State by increasing its capacity for prolonging hostilities in addition to the credit, money or goods, or other resources available to individuals in the enemy State. Trading with a British subject, or the subject of a neutral carrying on business in the hostile territory, is as much assistance to the alien enemy as if it were with a subject of enemy nationality carrying on business in the enemy State and, therefore, for the purpose of the enforcement of civil rights, they are equally treated as alien enemies."

These arguments would apply with equal force to territory in the occupation and under the control of the enemy even though not legally falling under enemy sovereignty. Considerations of space make it impossible to do more than mention the application of the principle of commercial domicile to incorporated companies: 3 Lord Parker, of Waddington, expounded the prevailing English view on the subject when he declared in The Daimler Company, Ltd. v. The Continental Tyre and Rubber Company, that the place of incorporation does not fix the enemy character of a corporation. The analogy to residence or commercial domicile is to be found in control. Enemy character is to be attributed to a company if the person who in fact controls its affairs reside or carry on business in enemy territory.

The American courts have on several occasions expressly refused to follow the decision of the House of Lords in The Daimler Company v. The Continental Tyre and Rubber Company, and to attribute enemy character to corporations incorporated and registered in the United States but controlled by enemy subjects. In Fritz-Schultz Company v. Raimes Company,5 the American view was thus stated by Justice Lehman :

"The courts have indicated practically unanimously that they regard a corporation as an entity separate and apart from its corporators; that its domicile is as a matter of law within the State of its creation; and the courts

1 (1915) 1 K.B. 857 at p. 868.

2 The British Trading with the Enemy (Occupied Territory) Proclamation of February 16, 1915, provided that Proclamations for the time being in force relating to trading with the enemy should apply to territory in hostile occupation as they applied to an cnemy country.

3 The subject is dealt with in this volume at p. 44.-ED.

4 (1916) 2 A.C. 307 at pp. 339–340. For a learned discussion of this question see Schuster: Nationality and Domicile of Trading Corporations, Grotius Society Publications, Vol. II. pp. 57 ff. An account of the French attitude is given in Garner: International Law and the World War, Vol. I. para. 153.

5 100 Misc. (N.Y.) 697 (1917), cited in Garner, op. cit., Vol. I. p. 227.

F

will not regard it merely as an association of individuals or regard the domicile or character of the corporators as affecting the domicile or character of the corporation."

VI.

During the World War the adherents of both doctrinesnationality and commercial domicile-were compelled to modify their respective positions.

In France, where nationality had been the decisive factor in determining enemy character, the decree of September 27, 1914, prohibiting trading with enemies, included in the category of "enemies" not only "sujets des empires d'Allemagne ou d'Autriche-Hongrie," but also " personnes qui sans être sujets de ces empires y résident," 1 thus combining the principle of nationality with that of domicile.

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In Great Britain the courts, as we have seen, adhered rigidly to the principle of domicile, but experience showed that the principle could not "provide a sufficient basis under modern commercial conditions intended to deprive the enemy of all assistance direct or indirect from national sources." 2 Accordingly, Parliament stepped in, and the Trading with the Enemy (Extension of Powers) Act, 1915,3 authorised His Majesty by proclamation to prohibit all persons in the United Kingdom from trading with enemy persons in foreign countries whose enemy nationality or enemy association made such prohibition expedient. In accordance with this Act, the so-called "Black Lists were issued from time to time containing the names of such enemy persons. A similar policy was adopted by the United States on her entry into the war as a belligerent.4

Moreover, statutes such as the Aliens Restriction Act 1914 with the amending Act of 1918, and the Trading with the Enemy Amendment Acts of 1916 and 1918, dealt with persons of enemy nationality resident in Great Britain, and also with corporations incorporated according to the laws of an enemy State but carrying on business with this country; such individuals and corporations were placed under special disabilities.5

1 Reulos: Manuel des Sequestres, p. 231.

2 Sir Edward Grey's letter to Mr. Page, Parl. Papers, Misc. No. 11, 1916 (Cmd. 8225). 3 5 and 6 George V. c. 98.

4 See Garner, op. cit., Vol. I. para. 144 and pp. 155–161.

5 For a detailed account of British legislation on this subject see Roxburgh: Journal of Comparative Legislation, 1920, pp. 269-283; McNair : Essays and Lectures upon some Legal Effects of War.

All these statutes represent a new attitude on the part of Great Britain to the question of enemy character. Just as a rigid adherence to the principle of nationality was found by the French to allow too wide a scope to hostile financial, commercial and economic activity, so also the principle of domicile proved itself inadequate as a means of depriving the enemy of assistance from national sources. In the words of Sir Edward Grey :

"The Anglo-American doctrine crystallised at a time when means of transport and communication were less developed than now, and when, in consequence, the action of persons established in a distant country could have but little effect upon a struggle. To-day the position is very different. The actions of enemy subjects are ubiquitous, and under modern conditions it is easy for them, wherever resident, to remit money to any place where it may be required for the use of their own Government, or to act in other ways calculated to assist its purposes and to damage the Powers with whom it is at war. In fact it would be no exaggeration to say that German houses abroad have, in a large number of cases, been used as an integral part of an organisation deliberately concerned and planned . . . for the furtherance of German political and military ambitions." 1

It is safe to predict that if the world is unfortunate enough to see another war of the dimensions of the last, the belligerents will not be contented to rely solely on one or other of the two alternative principles of nationality and domicile, but would combine the two in some proportion. The path now seems clear for the conclusion of an international convention defining enemy character. Combining the two principles in their widest application the general effect of such a convention would be as follows:

Enemy character attaches to all enemy subjects wherever resident or carrying on business. It also attaches to all persons resident or carrying on business in enemy territory and territory under enemy occupation. In respect of corporations, enemy character attaches to

(a) corporations incorporated in enemy territory;

(b) corporations incorporated elsewhere, if enemy subjects constitute the majority of the directing body, or hold the majority of the shares or voting power themselves or by nominees, or control the corporation by any means whatsoever; and

(c) corporations carrying on business in enemy territory.

1 Parl. Papers, Misc. No. 36, 1916 (Cmd. 8353).

PRIZE CASE NOTES IN THE DAYS OF STOWELL

By C. J. B. GASKOIN, M.A.,

Professor of History and Economics at Queen's College, London.

THE Revolutionary and Napoleonic Wars belong to a now distant past. Our present hope is that wars henceforth may cease. For both these reasons the international lawyer, beset with urgent problems of his own day, may be tempted to think the story of the definition and development of prize law in the days of Stowell a relatively unimportant, though no doubt an interesting, department of his subject. But it would be rash indeed to count war already dead. The significance of Stowell's work far transcends the narrow bounds of his immediate province. The Great War taught us that no problem of the past-not even the questions of joint capture which bulked so largely in Admiralty judgments a hundred years ago-can be safely dismissed as wholly irrelevant to modern conditions and, moreover, that available prize records of Stowell's time are often insufficient to show clearly by what arguments and precedents the rules of law were gradually established.

The historian of international relations is even less able than the lawyer to scorn the study of past controversies, however unrelated their issues may seem to present politics. For he is concerned with every question, legal not less than economic or political, that has led to international debate: more especially, perhaps, if he deals with relations between Great Britain and America, he knows the immense significance of controversies which, whatever their political, commercial, or sentimental content, were in form at least disputes over questions of law. Such controversies have more than once threatened, and once actually caused, war between the two nations, and they have, moreover, done much to create that historical tradition which, broadcast through countless popular text-books, has mainly determined the typical American conception of Great Britain.

Among these controversies none have been more acute or

more fruitful in mischief than those which in 1812 precipitated a useless, injurious war and even a century later, in the early stages of the struggle with Germany, predisposed an unforgetful people to jealous watchfulness lest American interests or American honour should suffer infringement by the British fleets. In investigating recently a topic connected with these quarrels— the legal and diplomatic history of the case of the Essex (Orne), and its bearing on the Doctrine of Continuous Voyage in 1793 to 1815-I have had painful occasion to realise how insufficient for such inquiries are both the published records of prize judgments and the unpublished "printed papers of cases stored in the Public Record Office, which after 1800 lack even an index of ships and at all times anything approaching to a conspectus of the main issues in question. But, searching diligently for other sources of information, I have been lucky enough to gain no little help from fifteen bundles of the "Miscellaneous documents of the High Court of Admiralty in the Record Office,1 which, catalogued under the general title "Notes of Cases, circa 1790-1830,” have apparently been undisturbed by readers since their arrival in Chancery Lane. Though I have not yet had leisure for more than a very cursory survey of their contents, even within the. limited sphere of my own inquiries, I gladly avail myself of the opportunity kindly offered by the Editors of The British Year Book of International Law to place my discovery of the real nature of these records at the service of other students. For, with all their defects, the documents seem to deserve the serious attention of both historians and lawyers. They provide the historian of the disputes which preceded the war of 1812 with a mass of information not otherwise accessible in any convenient form, if at all. They provide the lawyer with a like fund of detailed evidence as to the evolution of prize law, doing thereby not a little towards supplying two wants lately emphasised by the learned Registrar of the Admiralty Court: the lack of "material for a consideration of the civilian lawyers and "of their skill in maritime and prize matters" before Sir William Scott became Admiralty Judge in 1798; and the lack of collected records of prize appeals during the French wars other than those in Acton's Reports for 1809-1811.3

1 H.C.A. Misc., 464–478.

2 Law Quarterly Review, January 1923, p. 135.

3 E. S. Roscoe: Lord Stowell: His Life and the Development of English Prize Law, pp. 30-31.