penalised what no one could have supposed to be so highly criminal. No precedent of a conviction or indictment for trading in innocent articles with the enemy's country can be produced, although dicta as to its criminality are forthcoming both for and against, and are quite inconclusive. In De La Motte (2 How. St. Tr. 770) nothing is said as to the criminality of any but contraband trade with the enemy and even that is represented as venial. One can understand such trading being made criminal; but scarcely its being made so retrospectively.

The result is, that a principle which was thought to be somewhat harsh and sweeping in its original application— which took the form of the confiscation of tangible goods going to or coming from the enemy's country—is applied far beyond the narrow limits of that original scope, and in an ex post facto manner which, in less dangerous times, would be very difficult to imitate. In the result, substantial justice is done, but by the scarcely satisfactory process of visiting a grave offence with the novel and perhaps too sweeping penalties of a retrospective Statute.

Enemy Shareholders.

It has been decided by the Court of Appeal in Robson v. Premier Oil and Pipe Line Co., Ltd.,' that an enemy shareholder may not vote at a meeting of shareholders in a British company. The consequence follows that a British company, by its British shareholders and managers can, uncontrolled, play ducks and drakes with the money of their enemy colleagues. Unless we are in favour of the confiscation of private enemy property (which is another question, and might well be considered a practical one), the inequality of this is patent. Why should foreign shareholders, any more than foreign partners, be bound by the acts of

1 L. R. [1915], 2 Ch. 124.

persons whom they can no longer control? In cases where the shares are not fully paid up, or where the enemy holding is deferred security, the injustice is still more glaring. Either we should candidly admit that enemy property can be confiscated, or we ought to remove it from the possibility of informal private confiscation. The right course would be to reconstruct. The holding of the enemy ought to be put beyond the risk of fluctuation. If that is thought too heroic a remedy-and no doubt Mr. Registrar Manson's Court would find its resources severely taxed-then the Crown should pro forma confiscate the shares, and should appoint some neutral person (not the Official Controller of Companies, whose duty it is to regard primarily the national interests), such as a Swiss or American bank of high standing, to take them over for the protection of the dispossessed enemies. In The Poona (Cargo ex) Case (3rd May, 1915) the President of the Admiralty Division declined to regard a British registered company as anything but British, though composed of alien enemies. He followed the much-canvassed decision in Continental Tyre Co. v. Daimler, which Lord Halsbury has (acting on a suggestion of our leading company lawyers, Lords Lindley and Wrenbury) introduced a bill to over-rule.

Combatants and Non-Combatants.

As the civil population, however, becomes more and more involved in the direct conduct of the war, it seems much more likely that the tendency will be to confiscate private property belonging to the enemy. Under the latest system, whereby private individuals are detained and not permitted to leave the country, even for neutral destinations, and under which the receipt of dividends by persons in enemy countries is firmly controlled, we have something very like a temporary confiscation of enemy property. And

no war-confiscation can be other than temporary; because permanent confiscations will always form the subject of discussion when the terms of peace are negotiated.

Both at sea and on land the dividing line between the combatant and the non-combatant is becoming blurred. Every citizen is an actual or a potential member of the Army Ordnance Corps. Every merchantman is an actual or potential scout or ram. The protection promised to the invaded populace, on condition of their remaining quiet, has proved illusory. The peaceful dweller at the seaside finds the proximity of a signal station or a railway line draws down on his villa a rain of naval shells. It seems really probable that the theoretical immunity of private property from confiscation, which in Napoleon's time Lord Ellenborough thought so unassailable (in Wolff v. Oxholm), will not much longer be maintained.

But it is curious to reflect that, for all that, the nation in arms is nothing new. Revolutionary and Imperial France was a nation in arms. The Germany of 1814 was a nation. in arms; and if ever there was a nation in arms at all, it was the Spain of 1808. Yet that was the very era in which the principle laid down by Franklin and Rousseau was adopted, that war is a struggle between armed forces, which ought not to involve civilians.

The British attempt to intercept provisions destined for France in 1793, on the ground that France could only be brought to terms by creating distress among its civil population, was resisted not only by America, but by Denmark. Under Jay's Treaty of 1794, Great Britain paid damages for the seizures of American goods made in the prosecution of the attempt.1 Woolsey's remark has always seemed sensible, that a nation which arms the bulk of its population—as the British asserted France had done-would be reduced to famine by the operation of the laws of political economy,

De Martens, Causes Cèlebres, v.

without the need for any special interference on the part of its enemy. In fact, the quasi siege warfare of modern days must result in the strain on civil supply being too great. The swollen armies in the trenches must sooner or later be depleted for the service of the factories and the fields. And in such a prolonged contest, that nation will be likely to succeed which has the most perfect and reliable civil basis at home for its operations at the front. When this is recognised, it will be difficult to maintain the immunities of civilians in their entirety.

Fi. Fa. stopped by Licence.

The Disconto-Gesellschaft is a German bank with a head office in Berlin and an office in London. When war broke out Messrs. Leader, solicitors in London, had a balance of £247 at the Berlin headquarters. They commenced proceedings in England to recover it, and served the bank through its head office in London under the ordinary rules. The bank was then licensed to carry on business in London, but to a very strictly limited extent. It was held in Leader v. Disconto-Gesellschaft (3rd June, 1915), reversing Ridley, J., that the payment of Messrs. Leader's debt did not come within these limits, and that consequently they could not enforce execution against the bank's assets.

The original transaction of deposit had nothing whatever to do with the London agency of the Gesellschaft, and the licence was limited to carrying through "transactions which in ordinary course would have been carried out through or with the London establishment."

It seems to be going too far to hold that the restricted terms of the licence prevented execution. The London agents of the bank might not lawfully apply the bank's assets in particular ways—but it is extremely difficult to see how this could prevent British subjects (unless and until

its property had been forfeited to the Crown) from proceeding to exercise their Common-law rights against those assets. Surely it is not "trading with the enemy" to levy execution upon him!

Requisition pendente lite-The Zamora.

The bewildering rapidity with which statutory rules and orders are from time to time altered is exemplified in the instance of the requisitioning of goods brought within the prize jurisdiction. The practice of pre-emption is well known to students of International law as a relaxation of the strict rule of confiscation in cases of contraband, where there were circumstances calling for a lenient course. Articles of naval equipment, destined for a naval port, were often thus bought in, where they were the raw produce of the neutral's country, such as tar and hemp. It was thought that, in fairness to neutrals, they must be marketed somewhere, and that it was harsh to confiscate them without payment merely because of their presumed hostile use.

But pre-emption of the appraised value in the captor's country of goods which are presumably innocent, merely because they happen to be forcibly within the jurisdiction, is a very different thing. If such a course could be sustained, a belligerent could cut off neutral trade entirely, simply by bringing in whatever cargoes she chose and buying them pendente lite at her own price. No such course has, needless to say, ever been adopted in the past. There are, indeed, two decisions of District Judge Betts (The Memphis and The Ella Warley1), delivered in the American Civil War, in which he asserted the power. But he could adduce no authority beyond his own idea of what the Court "preferred," and he was constrained to admit that the Court in Pennsylvania had declined to do anything of

1 Blatchf., Pr. Ca. 202, 207.