or temporary allegiance to a power at war with us. When the allegiance determines, the character determines. He can have no fixed character of alien enemy who owes no fixed allegiance to our enemy, and has ceased to be in hostility against us, it being only in respect of his being in a state of actual hostility that he was even for a time an enemy at all. As a prisoner of war how does he differ from any other individual who is in custody for an offence which he has committed, and for which he is answerable? Captain Vaughan (5 State Trials, p. 17, No. 162) was not an alien enemy, but being a natural-born subject of this realm, he became a traitor; for that he was put in prison, for that he answered, and with his life. But it was for that act of hostility merely. With regard to his character of a subject, he remained, till the moment of his execution, as if that act had never been committed. There is very little light to be procured from our books to assist us in our inquiry, how far a neutral joining in an act of hostility is to be considered as having acquired the character of alien enemy. The subject was indirectly discussed in the case of Captain Vaughan, to which I have alluded. He was charged in the indictment (see 6 State Trials, Appendix) with adhering to the King's enemies by cruising cum subditis Gallicis; the fact was, that many of his crew were not natural-born subjects of the French King, but Hollanders. It was made a question whether the Hollanders could be called subditi Gallici; and, though the point was not authoritatively decided, because some of the crew were certainly French, which was sufficient to support the indictment, yet it was held by Holt, Ch. J., and agreed to by the rest of the Court, that the Hollanders by accepting a commission from the French King became subditi Gallici, and so remained during the continuance of their service in a state of qualified subjection, arising out of the service and determining with it. This, had it been the very point in judgment. would have gone a great way towards deciding the present question. The commission under which the plaintiff, being a German, acted was put an end to by the capture of the frigate in which he was. After that time he had no opportunity of continuing in the service of the State of Holland; and his temporary character of alien enemy ceased and determined with the authority under which he acted. Captain Vaughan's case, as far as it goes, draws a line, and fairly marks out when that character begins and when it shall end. I am of opinion that it is determined by the very nature of the subject, and, being so determined, why should we desire to enlarge the disability of the plaintiff or continue it until the war is concluded? Why, but in order to let in one of the harshest, one of the most im politic, nay, immoral defences that ever was set up in a Court of justice? This man, whether he was under a safe conduct or not, did

his duty faithfully, and was duly approved of by the officer of the 'Caledonia.' That ship was in such distress that she was, as it appeared at the trial, under the necessity of taking in more hands at Lisbon, and probably would have been lost without such assistance as was afforded by the plaintiff. He now only asks for a moderate reward, and is paid with a plea of alien enemy. This is certainly one of the hardest cases I ever knew, and I think we ought to lean against it."

Trotter, pp. 112-115.

NATIONALITY OF CORPORATIONS.

The legal incapacities and disabilities imposed by a state of War, both upon the alien individual enemy and the alien corporation of the enemy, underwent a profound discussion in the case, The Society for the Propagation of the Gospel, &c. v. Wheeler, in which Mr. Justice Story delivered the judgment.1

LXXXIII. "In this respect" (the learned judge continued) "a corporation, authorized by its charter to carry on a trade, and established in the hostile country, such as the East India Company, would undoubtedly be held, as to its property, within the same rule, even admitting its members possessed a neutral domicile. In general an aggregate corporation is not in law deemed to have any commorancy, although the corporators have 2; yet there are exceptions to this principle, and where a corporation is established in a foreign country by a foreign Government, it is undoubtedly an alien corporation, be its members what they may; and if the country become hostile, it may, for some purposes at least, be clothed with the same character.

"If the reason of the rule of the disability of an alien enemy be, as is sometimes supposed, that the party may not recover effects, which, by being carried hence, may enrich his country, that reason applies as well to the case of a corporation as of an individual in the hostile country. If the reason be, as Lord Chief Justice Eyre, in Sparrenburg v. Bannatine asserts it to be, that a man professing himself hostile to our country, and in a state of War with it, cannot be heard, if he sue for the benefit and protection of our laws, in the Courts of our country, that reason is not less significant in the case of a foreign corporation, than of a foreign individual, taking advantage of the protection, resources, and benefits of the enemy's country. In point of law, they stand upon the same footing." The learned judge afterwards proceeded as follows:

"Let us now advert to the second objection, which is, that the members of the corporation are all alien enemies. In the writ, it is expressly alleged, that all the members are aliens and subjects of the King of the United Kingdom of Great Britain and Ireland. It does not, however, hence necessarily follow that they are alien

12 Gallison's (Amer.) Rep. Judgment of Story, J., October Term, 1814, p. 127.

2 Inhabitants of Lincoln County v. Prince, 2 Massachusetts Amer. Rep. 544. & Bosanquet & Puller's Rep. p. 163.

enemies. This averment in the writ was proper, if not indeed indispensable, in order to sustain the jurisdiction of this Court; for the corporation, as such, might perhaps have no authority whatsoever to maintain an action here, under the limited jurisdiction confided by the constitution of the United States to their own Courts. But in the character of its members, as aliens, we have incontestable authority to enforce the corporate rights; and it has been solemnly settled by the Supreme Court, that, for this purpose, the Court will go behind the corporate name, and see who are the parties really interested. And if, for this purpose, the Court will ascertain who the corporators are, it seems to follow, that the character of the corporators may be averred, not only to sustain, but also to bar, an action brought in the name of the corporation. It might therefore have been pleaded in this case, even if the corporation had been established in a neutral country, that all its members were alien enemies; and upon such a plea, with proper averments, it would have deserved great consideration, whether it was not, pendente bello, an effectual bar. Where the corporation is established in the enemy's country, the plea would à fortiori apply. But although the corporation itself, and the members also, may be liable to the imputation of being alien enemies, yet that character does not necessarily or unavailably attach to either. For aught that appears upon the face of the record, every member of the corporation may be now domiciled in the United States, under the safe conduct or license of Government. In such a predicament, it is clear that, though aliens, they would not be enemies, but might sue and be sued in our Courts.2 And in respect to the corporation itself, although established in Great Britain, it may have the safe conduct or license of the Government of the United States for its property and the maintenance of its corporate rights. It is clearly competent for the Government, under the general rights of War, to grant letters of protection, and thereby to suspend the hostile character of any person; and when he has such protection, wherever he may be domiciled, he is to be considered, quoad hoc, a neutral.3

"Nor is there, in this respect, any difference between acorporation and an individual. And it would be highly injurious to humanity, as well as public policy, if institutions established in a foreign country for religious, literary, or charitable purposes, might not, during War, obtain protection and patronage for their laudable exertions to soften private misery and diffuse private virtue. To support the motion in arrest of judgment, it is necessary for the Court to nega

1 Bank of United States v. Deveaux, 5 Cranch's (Amer.) Rep. 61.

2 Bynk, Q. J. P. c. xxv. c. 8. Wells v. Williams, 1 Lord Raymond's Rep., 282.

3 Bynk, Q. J. P. c. vii. Usparicha v. Noble, 13 East's Rep. 332.

tive every presumption that could arise of a safe conduct or license, either to the members or to the corporation itself. This cannot be done in the present case consistently with the principles of law. The suit was commenced in a time of peace, and every presumption, which can, ought to be made, to support it. It is sufficient, however, that by possibility the demandants, in their corporate capacity, and the capacity of their members, may have a persona standi in judicio, to entitle them to judgment.

"There is another consideration also, which may properly weigh in this case. The suit was commenced during peace, and on the declaration of War it was competent for the defendants to plead the hostile alienage of the demandmants, it it existed, in bar to the further prosecution of the suit, in the nature of a plea puis darrein continnance, as it was pleaded in Le Bret v. Papillon. They did not so plead, and thereby have affirmed the ability of the demandants to prosecute the suit to judgment. Upon this ground, where the disability of alien enemy occurred before judgment, and on a scire facias on the judgment the disability was pleaded, the plea has been held bad.2

"Upon the whole the motion in arrest of judgment must be overruled."

The same doctrine, namely, that the plea of alien enemy is one which the Court will not favour, has been holden by the English Courts of Common Law.3 Nevertheless, under the relaxation of belligerent rights introduced by the Orders in Council of the War in 1854-5, the English Prize Court held that the affidavit of the claimant, being an enemy, must state matter showing that he has a persona standi in judicio; such a persona will not be presumed. but must be proved.'

LXXXIV. The national character of corporations, as well as of individuals, frequently undergoes discussion in Treaties of Peace which award compensation for losses unjustly sustained before or during War.

It has been held in England, by the judicial Committee of the Privy Council, that a Corporation of British Subjects in a foreign country, under the control of a foreign Government, must be considered as a Foreign Corporation, and is not therefore entitled to claim compensation for the loss of its property, under a Treaty giving the right of doing so to British subjects."

Phillimore, vol. 3, pp. 134, 137-141.

14 East's Rep. 502.

2 West v. Sutton, 2 Lord Raymond's Rep. 853.

Schepeler v. Durant, 2 Common Law & Equity Reports (Finlason), 729.

The Troija, 1 Spinks Eccles. & Adm. Rep. pp. 342-3.

Long v. Commissioners for Claims on France, 2 Knapp's Privy Council Rep. p. 51.