authority as Alsenius v. Nygren, has produced a great deal of confusion and uncertainty. Sargant, J., purported to rely on it when deciding that Princess Thurn and Taxis might sue on a libel (Oct. 16th 1914); and Lord Hunter supposed he was following him when in Schulze, Gow & Co. v. Bank of Scotland ([1914], 2 Sc. L. T. 455) he allowed a suit by an enemy for an account. The former decision might be justified, on the ground that a hostile alien who is merely permitted to remain must enjoy elementary protection for his person, property, and reputation, and may therefore bring actions of tort. The latter case certainly cannot be justified on any English principle. It has, however, been followed by the Court of Appeal in England (Alien Enemy Cases, Jan. 20th 1915).

The capacity of alien enemies to be sued was admitted in Robinson v. Continental Iron Co. of Mannheim, by Bailhache, J.; Story (Equity Pleadings, sect. 53) is strongly against such a possibility. It seems unfair that a person should be sued who has no means of communication with the country. The learned judge undertook to see that he sustained no injustice; but, with respect, that is scarcely sufficient. The only authority of any weight which was cited for the plaintiff was the decision of Swayne, C.J., in McVeigh v. U.S. (11 Wall. 259). But that was a decision in a Civil War case, where the parties were both in theory subject to the same allegiance, though one was temporarily resident in an area which for some purposes was being treated as at war with the Government. Lord Davey's third rule, in Janson (L. R. [1902], A. C. 499), was brushed aside as inconsiderate. In view of Story's strong doubts, and Lord Davey's unqualified words, it is far more probable that the enemy has no persona standi in judicio, and cannot be a defendant. The Court of Appeal, nevertheless, affirmed the decision.

A different question arises when the plaintiff is a corporation formed in the United Kingdom, but composed largely or entirely of enemy aliens. Lush, J., has decided. in Continental Tyre &c. Co. Ltd. v. Thomas Tilling Ltd. (Nov. 23rd 1914) that such a company can sue. For the arguments contrà, reference may be made to a leading article in the Law Times of Oct. 24th. The fictitious personality of a company cannot alter the fact that, in dealing with them, one is actually dealing with enemies (Cƒ. S. P. G. v. Wheeler [1814], 8 Cranch, 133). Subsequently to the decision very stringent powers were taken by the Government with respect to such companies. It was affirmed by the Court of Appeal, but Lord Justice Buckley, who is most familiar with the working of Company law, dissented.

The American Note.

The Note presented to the British Government by that of the United States is dealt with in full elsewhere in this

number by an abler pen. But the present writer cannot refrain from recording a firm opinion that the Note shows how far the true principles of Prize law have become obscured. The Ambassador complains of a multiplicity of seizures on suspicion. But the idea of seizure on suspicion is a distinctively American notion. It is laid down in the celebrated Report of Lee, Paul, Ryde & Murray (Mansfield), made in 1753, that it was the practice, even then immemorial, of Europe, to condemn or investigate only in cases where the ship's papers and depositions are imperfect or contradictory. This immemorial practice was the common practice of all maritime countries. It was communicated as such by Stowell to Jay and Story in America, in 1794, and never departed from by the American Supreme Court until 1865.

That Court then, attending to extraneous matter, affected to determine that voyages were contraband according to the assumed ulterior destination of the cargoes. It thus introduced a régime of suspicion which was well summed up by Sir T. Twiss in a remarkable paper in this Magazine (Vol. III, 1877-8, p. 1-see also L. M. & R., 1870, p. 85), as calculated to extend the evils of war to every sea. The theoretical support which the novel doctrine receives from Calvo and Halleck is based upon a dictum of Story's, to the effect that cargoes which are "destined" for the use of the enemy's armed forces are always contraband (The Commercen [1816], 1 Wheat. 382). Read with the context, this only means that a voyage to a country occupied by the enemy's forces is a voyage to an enemy country. It does not affect the principle, that contraband can only be captured in the direct prosecution of a voyage to a hostile port-i.e., that a plain fact and not a disputable intention, must be the foundation of interference with a neutral ship. If the new doctrine of the American cases be admittedif the ancient Prize principles are discarded, and vessels are tried (as Phillimore and Twiss agree they should not be tried) on Common-law principles, delay for the investigation of suspicions, and for the getting-up of cases, becomes proper and necessary, and Americans should be the last to protest against it.

There are, of course, cases in which the very nature of the cargo is not conclusively established either way by the ship's papers and in such cases it is right and proper that they should be brought in for examination. For example, a cargo described as hemp, may be fit for naval use, or mere cordilla of poor quality. Such a cargo needs skilled examination (The Jonge Hermanus, 4 C. R. 95 n.). But that is a very different thing from bringing the ship in to look for something which captors suspect is there.

The "Roumanian "-Seizure on Land.

During the Crimean War, the public became familiar with an odd phenomenon, of which no single instance. had occurred in the French Wars, namely, the capture of ships by Custom-house officers. It may be conjectured that the forcible seizure of the merchantman of earlier days was too hazardous an enterprise to be so tamely accomplished. The only precedent which could be furnished to Dr. Lushington for seizure by anyone unconnected with the Navy, was a case of a capture effected by an officer in the Fife Light Dragoons. Nevertheless, in the days of the Crimea, the system of capture by Customs officials became frequent and regular. It does not appear, however, that they ever effected captures on land; and the question whether such a capture on land is cognisable by a Prize Court, came before the Prize Judge the other day (Times, Nov. 7, 1914) in the case of The Roumanian.

"Whatever is the property of the enemy," say the authors of the celebrated Report on Admiralty Jurisdiction of 18th January 1753, "may be acquired by capture at sea.” Prize is normally made of property afloat. Only one exception seems to exist, property captured on shore by the direct interposition of naval force. If property on a quay-side or wharf was also properly to be included, there is no doubt that some record of the fact would be found in the reports. Stowell's definition of prize is absolutely on all-fours with Wheaton's. "I know no other definition of prize-goods than that they are goods taken on the high seas, jure belli, out of the hands of the enemy. Such goods, when they come on shore, may be followed by the process of the Court" (The Two Friends [1799], 1 C. R. 282). The curious exception of goods taken on land by naval force rests on the authority of Lindo v. Rodney (2 Douglas, 614-note to Le Caux v. Eden). In that case, Lord Mansfield showed himself

impressed by the material advantages of entrusting the determination of the question to a tribunal accustomed to deal with such matters, and conceded the jurisdiction to the Prize Court. (Of course, the Admiralty may be entrusted with the determination of the way in which the Crown shall distribute its favours: as in the Banda & Kirwee Booty Case). In Brown & Burton v. Franklin, K.P. (10 Will. III, Carthew, 474), the plaintiffs, masters of two East Indiamen, had made an expedition to attack a French ship (the Francis) outside the King's dominions. They found her a wreck, and plundered her, and then took from the crew, on land, 6,000 sequins. The other booty comprised "200 elephants' teeth, 300 pieces of muslin, 300 pieces of calico, etc." The King's Proctor obtained a sentence of condemnation as droits of Admiralty (the scene of action not being on the high seas), and proceeded to press the plaintiffs for an account. They moved for a prohibition. It was denied. The question of "Prize or No Prize" was one for the Admiralty. Here, the capture was by direct naval force (East Indiamen) and was outside the King's dominions. In Key & Hubbard v. Pearce ([1742], Dougl. 606), the capture was within the dominions, but the ship was afloat. The Canary Merchant was seized by H.M.S. Hamburg as Spanish property "within the body of the [British] city of New York." It was urged that a ship taken in that situation was not taken "on the sea."

But

it was held that the jurisdiction of the Admiralty Court was not excluded: the case being one of "Prize or No Prize." Lee, C.J., observed :—“The jurisdiction of a Court of Admiralty is generally limited to matters arising super altum mare. Yet I do not take it to be so in cases of prize for the jurisdiction does not depend on locality, but on the nature of the question, which is such as not to be tried by any rules of the Common law, but by a more general law, which is the Law of Nations."