In most states the question is novel because before the war most bankers' credits were issued in the great financial centers of Europe. Will their validity depend on the ancient doctrine of consideration, on the law of trusts, or will it rest on the basis of estoppel or will they be given currency by an extension of the law merchant as instruments executed in the course of business with the intention and purpose that they should be relied upon? Has the vast expansion of the powers of government in the exercise of its war powers changed our established notion of the relations of government to the individual? Will the police power be expanded in the general social interests or will there be a reaction in favor of the rights of the individual? Has our experience of government control of public carriers changed our views of the principles of regulation and control of public service corporations? And so one might go on almost indefinitely suggesting new questions in every field of human endeavor which will in the future require re-examination by lawyers. As law students, as law teachers, as practicing lawyers, as judges, we should be constantly questioners of the validity and sufficiency of legal doctrine. For the questioner, as John Stuart Mill said, "need not be an enemy;" indeed, he who questions in the light of experience, intelligently and with an open mind, is the true friend of human progress and best makes his contribution to human well-being. As I see our profession today it is better prepared than at any time for at least sixty years to meet and solve the problems of the adaptation of law to changing conditions The established practice of the better law schools of searching for the underlying reason for legal rules; the constant habit of examining legal doctrine in the light of what Burke held to be the "two and only two fundamentals of the law -equity and utility" has given to the bar an increasing number of lawyers whose respect for the law is not any the less because it is intelligent and discriminating. Their influence is undoubtedly increasing in the profession. The bar as a whole in its association, in its participation, in the efforts for better legislative methods, in its effort to discipline its unworthy members, is displaying greater activity and a high sense of corporate responsibility. For all this the profession is to be congratulated; not for what has been accomplished but for what has been promised. The lawyer's problem still is, as in Cotton Mather's day, how to become a better neighbor. He will solve it by making his skill a blessing to his neighborhood. That will be accomplished in increasing measure when lawyers as a class are adequately trained; when with unfailing devotion to liberty and justice they examine their new problems in the light of experience with tolerant and inquiring minds. The Cornell Law Quarterly Published in November, January, March and May by the faculty and students of the Cornell University College of Law, Ithaca, New York This number 75 cents Subscription price $1 a year EDITORS AND MANAGERS CHARLES KELLOG BURDICK, Faculty Editor LOUIS WELTON DAWSON, New Jersey, Student Editor-in-Chief STUDENT ASSOCIATE EDITORS RICHARD H. BROWN, New York LANSING S. HOSKINS, New York BENJAMIN PEPPER, New York Dean Harlan F. Stone, of the Columbia University Law School, delivered the address for 1919 on the Frank Irvine Foundation, established by the Conkling chapter of Phi Delta Phi. The address, the subject of which was "The Lawyer and His Neighbor," appears in this issue of THE QUARTERLY. Dean Stone was the guest of THE LAW QUARTERLY at its annual banquet, on the evening of May 16. The speakers, in addition to the guest of the evening, were Dean E. H. Woodruff, Mr. Mynders Van Cleef, Chairman of the Committee on Administration of the Board of Trustees of Cornell University, Professor C. K. Burdick and L. W. Dawson, '19. The Boardman Scholarship for the year 1918-1919 has been awarded to Louis W. Dawson. The first and second Fraser Scholarships have been awarded to Malcolm B. Carroll and Richard H. Brown. The following members of the Senior Class have been elected to membership in the Order of the Coif: Richard H. Brown, Malcolm B. Carroll, and Louis W. Dawson. Notes and Comment Alien Enemy: Status of alien enemy as litigant: Partnership containing alien enemy as plaintiff. The recent case of Rodriguez v. Speyer Brothers, [1919] A. C. (Eng.) 59, presents a very interesting development in the common law of England with reference to the rights of an alien enemy litigant. In that case the plaintiffs were members of a partnership composed of two British subjects, two American citizens, and a citizen of Germany there residing. Upon the outbreak of war between Great Britain and Germany the firm of Speyer Brothers was ipso facto dissolved.1 Speyer Brothers thereupon commenced to wind up its affairs and instituted this action to collect a debt due to the partnership. The defendant set up as a defense the fact that one of the partners was an enemy alien then residing in Germany. The House of Lords held, by a majority of one, that the rule that an alien enemy, resident in the enemy's country, cannot bring an action during the continuance of the war, is not unqualified and will not be applied in a class of cases manifestly not within the mischief at which the rule was aimed, or where to prevent an alien enemy to become a party to an action as plaintiff would do much more harm to British subjects, or to friendly neutrals than to the enemy. In thus applying a rule of reason, the court relied upon two decisions which had already made incursions into the general rule. In the first of these cases the plaintiffs were an English company and a German company, and the action was brought for the infringement of a patent of which they were the joint owners. Under an agreement made before the outbreak of the war, the English company was to have the sole right of bringing actions for the protection of patent rights. It was held that to deny the English company the right to prosecute this action would be to deny the right to a British subject to bring an action for his own benefit. In the language of the court: "To hold that the doctrine of disability applies to a case in which an enemy alien cannot during the war reap any benefit from the action and where the action is really for the benefit of the other partners, would, I think, involve a misconception of the principle and extent of the rule, and before the Trading with the Enemy Amendment Act, 1916, might have inflicted very serious loss upon British subjects. In these cases the substance of the matter must be looked at." In the second of these cases,3 the action was brought by the The outbreak of war ipso facto dissolves all partnerships of which a non-resident alien enemy is a member. The attitude in which partners become placed as antagonist enemies not only renders impossible such amicable communication as is necessary to the carrying on of partnership business, but is obviously inconsistent with it, the objects and ends of partnerships being generally the joint application of the skill, labor, and enterprise of all the partners as well as their funds. McAdams v. Hawes, 9 Bush (Ky.) 15 (1872); Small v. Lumpkin, 28 Grat. (Va.) 832 (1877). Mercedes Daimler Motor Co. and Daimler Motoren Gesellschaft v. Mausdlay Motor Co., 31 Times L. R. (Eng.) 178 (1915). Rombach v. Gent, 31 Times L. R. (Eng.) 492 (1915). receiver of a partnership, one of the members of which was a nonresident enemy alien. The court said: "The receiver brought the action under the protection of the court. It was true that he had to join his two partners, but it was the receiver's action in substance and it was impossible to say that it was brought for the benefit of a firm, one of whom was an alien enemy.' In the United States there is no doubt that, as a general rule, an alien enemy cannot bring an action as plaintiff, though he may, of course, be made a defendant. But it should be borne in mind that this disability applies only to non-resident alien enemies. The test of the right to sue which has universally been adopted is residence, and not nationality, where the alien is, and not what he is. In Clark v. Morey a case which has been widely cited in support of this proposition, Chief Justice Kent said: "Aliens resident in the United States at the time of war breaking out between their own country and the United States, or who came to reside in the United States after the breaking out of such war, under an express or implied permission, may sue and be sued, as in time of peace; and it is not necessary, for that purpose, that such alien should have letters of safe conduct, or actual license to remain in the United States, but a license and protection will be implied, from their being suffered to remain, without being ordered out of the United States by the executive." This distinction is expressly incorporated in section 2 of The Trading with the Enemy Act.7 Whether the 3d paragraph of subsection b of section 7 of The Trading with the Enemy Acts is a reaffirmation of the general rule of com "Speidel v. Barstow Co., 243 Fed. 621 (1917); Hungarian General Credit Bank v. Titus, 182 App. Div. (N. Y.) 826 (1918); Panne v. Soler, 167 N. Y. Supp. 901 (1917); Bell v. Chapman, 10 Johns. (N. Y.) 182 (1813); Crawford v. The William Penn, 1 Pet. C. C. (Eng.) 106 (1815); Mumford v. Mumford, 1 Gall. (U. S.) 366 (1812); Hanger v. Abbott, 6 Wall. (U. S.) 532 (1867); Caperton v. Bowyer, 14 Wall, (U. S.) 216 (1871); Levy v. Stewart, II Wall (U. S.) 244 (1870). "Speidel v. Barstow, supra, note 4; Tortoriello v. Seghorn, 103 Atl. (N. J.) 393 (1918); Clarke v. Morey, 10 Johns. (N. Y.) 70 (1813); Krachanake v. Acme Mfg. Co., 95 S. E. (N. C.) 851 (1918); State ex rel. Constanti v. Darwin, 173 Pac. (Wash.) 29 (1918). A recent case which shows that this principle is still being misapplied is Ozbolt v. Lumberman's Exchange, 204 S. W. (Tex.) 252 (1918). It appeared that the plaintiff resided in Hungary. The Court said: "The mere fact that the plaintiffs reside within the borders of a hostile government does not show that they are alien enemies. The term residence is not synonom ous with citizenship." "Clarke v. Morey, supra, note 5. 740 U. S. State. at Large 411, which reads as follows: "That the word 'enemy' as used herein shall be deemed to mean, for the purposes of such trading and of this act (a) Any individual, partnership, or other body of individuals of any nationality resident within the territory (including that occupied by the military and naval forces) of any nation with which the United States is at war, or resident outside the United States and doing business within such territory and any corporation incorporated within such territory of any nation with which the United States is at war or incorporated within any country other than the United States and doing business within such territory." 8"Nothing in this act shall be deemed to authorize the prosecution of any suit or action at law or in equity in any court within the United States by an enemy or ally of enemy prior to the end of the war except as provided in section ten hereof * mon law is a moot question. The courts have generally ignored it, and as the signing of a peace treaty is now imminent, such a question must now be regarded as practically academic. However, in any future struggles, we would, before Congress took any action defining our relation with the enemy, be once more dependent upon the principles of common law, and legislation would probably follow the common law. Upon this view, a determination of what the attitude of our courts would be upon a problem of the kind presented in the principal case is important. The rule is founded in public policy and seems to have its origin in two considerations: Firstly, that the subject of a country at war with us is in this country, unless he be here with the express or implied permission of the executive, ex lege, and that he cannot come into the courts of our country to sue any more than could an outlaw come into the courts of England to sue: and secondly, that the courts of this country will give no assistance to proceedings which, if successful, would be to the advantage of the enemy state by increasing its capacity for prolonging hostilities in adding to the credit, money, goods, or other resources available to individuals in the enemy state. The answer to our problem must turn on a broad issue of principle. Is the rule which prevents an enemy alien from suing in our courts a fixed rule of law, or merely the expression of a public policy which does not apply to a particular instance if that instance discloses no mischief from the point of view of public policy? The following language is a persuasive argument for the latter proposition:" "A series of decisions based upon grounds of public policy, however eminent the judges. by whom they were delivered, can not possess the same binding authority as decisions which deal with and formulate principles which are purely legal. In England, at least, it is beyond the jurisdiction of her tribunals to mould stereotype national policy. Their function is not necessarily to accept what was held to have been the rule of policy a hundred and fifty years ago, but to ascertain, with as near an approach to accuracy as circumstances permit, what is the rule of public policy for the then present time." * * * * * Does public policy demand that we deny access to our courts to a partnership, most of the members of which are legal citizens, but one of whom is a non-resident alien enemy? We think not. It must be remembered that, when a debt due to the firm is collected, no partner has any definite share of interest in that debt; his right is merely to have the money so received applied, together with the other assets, in discharging the liabilities of the firm and to receive his share of any surplus there may be when liquidation has been completed. Under these conditions, it i entirely possible that, when the debts of the partnership are paid, there will be no surplus remaining to be divided among the partners. But should the existence of a surplus make a difference in the result? Again the answer must be no. If the contention is made that to permit alien enemies resident abroad to sue in our courts, would be to lend aid and comfort to the enemy, the answer is that either the court or the government, through the alien enemy Nordenfelt v. Maxim-Nordenfelt Guns and Ammunition Co., (1894) A. C. (Eng.) 535, 553. |