69

Opinion of the Court.

imagined to exist in the old rule, and held that enemy aliens in England under license from the Crown might proceed in the courts. As applied ever since, alien enemies residing in England have been permitted to maintain actions, while those in the land of the enemy were not; and this modern, humane principle has been applied even when the alien was interned, as is petitioner here. Schaffenius v. Goldberg, [1916] 1 K. B. 284.

The original English common law rule, long ago abandoned there, was, from the beginning, objectionable here. The policy of severity toward alien enemies was clearly impossible for a country whose lifeblood came from an immigrant stream. In the war of 1812, for example, many persons born in England fought on the American side.* Harshness toward immigrants was inconsistent with that national knowledge, present then as now, of the contributions made in peace and war by the millions of immigrants who have learned to love the country of their adoption more than the country of their birth. Hence in 1813

text." 1 History of English Law, 2d ed., 459. The early law treated all aliens as a group. See the sub-titles of Pollock and Maitland's chapter, "The Sorts and Conditions of Men," some of which are: The Knights, The Unfree, The Clergy, Aliens, The Jews, Women, etc. Ibid., Chap. II. For a summary of English views now largely obsolete on alien standing in court, see Hansard, Law Relating to Aliens, chap. 7 (1844). For a survey of the common law on inheritance of land by aliens, see Techt v. Hughes, 229 N. Y. 222, 128 N. E. 185 (Cardozo, J.).

3 Petitioner was interned some months after the court had abated his action. The Government has filed a supplemental brief stating that it does not consider that this circumstance alters the position of petitioner in respect to his privilege of access to the courts.

• One writer estimates that half of the 400 men on board the Constitution when it captured the Guerriere were seamen who had deserted the British, and the ship United States was reported by its captain to have no men on board who had not served with British warships. Bradley, The United Empire Loyalists, 192; and see 3 McMaster, History of the United States, 242.

Opinion of the Court.

5

317 U.S.

Chief Justice Kent, in Clarke v. Morey, 10 Johns. 69, 72, set the legal pattern which, with sporadic exceptions, has since been followed. The core of that decision he put in these words: "A lawful residence implies protection, and a capacity to sue and be sued. A contrary doctrine would be repugnant to sound policy, no less than to justice and humanity." Thus the courts aligned their policy with that enjoined upon the President by Congress in 1812, when it directed him to administer the laws controlling aliens in a manner that would be "consistent with the public safety, and according to the dictates of humanity and national hospitality." 50 U. S. C. § 22.

In asking that the rights of resident aliens be abrogated in their behalf, private litigants in effect seek to stand in the position of government. But only the Government, and not the private individual, is vested with the power to protect all the people, including loyal aliens, from possible injury by disloyal aliens. If the public welfare demands that this alien shall not receive compensation for his work or payment for his injuries received in the course of his employment, the Government can make the decision without allowing a windfall to these claimants. Even if petitioner were a non-resident enemy alien, it might be more appropriate to release the amount of his claim to the

5 For collection of cases, see 30 Georgetown L. J. 421; 28 Virginia L. R. 429; 27 Yale L. J. 105; Huberich, Trading With The Enemy, 188 et seq.; Daimler Co. v. Continental Tyre Co., Anno. Cas. 1917 C, 170, 204; Petition of Bernheimer, 130 F. 2d 396; and for English cases, McNair, Legal Effects of War.

6 Story was one of the few commentators to approve any part of the early common law rule. He accepted so much of that doctrine as required enemy aliens entitled to relief in the courts to have entered the country under safe conduct or license. Story on Civil Pleadings, p. 10; Story's Equity Pleadings, § 51-54, and particularly § 724. This requirement was reduced to legal fiction in Clarke v. Morey, supra, at 72, when Chief Justice Kent held that "The license is implied by law and the usage of nations."

Alien Property Custodian rather than to the claimants; and this is precisely what was done in Birge-Forbes Co. v. Heye, 251 U. S. 317, 323, in which this Court said that the sole objection to giving judgment for an alien enemy "goes only so far as it would give aid and comfort to the other side." The ancient rule against suits by resident alien enemies has survived only so far as necessary to prevent use of the courts to accomplish a purpose which might hamper our own war efforts or give aid to the enemy. This may be taken as the sound principle of the common law today.

It is argued that the petitioner is barred from the courts by the Trading with the Enemy Act, 50 U. S. C. Appendix. The particular clause relied on is § 7: "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 10 hereof [which relates to patents]; . . . Analysis of its terms makes clear that this section was not meant to apply to petitioner, and an examination of its legislative history makes this doubly certain. Section 7 bars from the courts only an "enemy or ally of enemy." Section 2 of the Act defines the "alien enemy" to which the Act applies as those residing within the territory owned or occupied by the enemy; the enemy government or its officers; or citizens

7

* Some possible confusion on the part of the court below and of other courts may have developed from our per curiam opinion in Ex parte Colonna, 314 U. S. 510, in which leave to file a petition for writs of prohibition and mandamus in connection with a proceeding brought in behalf of the Italian government was denied on the basis of the Trading with the Enemy Act. That opinion emphasized that an enemy government was included within the definition of the classification “enemy" as used in that act, and that such enemy plaintiffs had no right to prosecute actions in our courts. The decision has no bearing on the rights of resident enemy aliens. The Colonna decision was momen

Opinion of the Court.

317 U.S.

of an enemy nation, wherever residing, as the President by proclamation may include within the definition. Since the President has not under this Act made any declaration as to enemy aliens, the Act does not bar petitioner from maintaining his suit.

This interpretation, compelled by the words of the Act, is wholly in accord with its general scope, for the Trading with the Enemy Act was never intended, without Presidential proclamation, to affect resident aliens at all. Prior to the passage of the Act, the courts had consistently held that, during a state of war, commercial intercourse between our nationals and non-resident alien enemies, unless specifically authorized by Congress and the Executive, was absolutely prohibited, and that contracts made in such intercourse were void and unenforceable. This strict barrier could be relaxed only by Congressional direction, and therefore the Act was passed with its declared purpose "to mitigate the rules of law which prohibit all intercourse between the citizens of warring nations, and to permit, under careful safeguards and restrictions, certain kinds of business to be carried on." 10 Thus Congress expressly recognized by the passage of the Act that "the more enlightened views of the present day as to treat

tarily misapplied in Kaufman v. Eisenberg, 177 N. Y. Misc. 939, 32 N. Y. S. 2d 450, but the trial judge corrected a stay in proceedings he had previously allowed, upon his further consideration of the fact that the plaintiff was a resident alien.

8 The President has issued a Proclamation taking certain steps with reference to alien enemies under the Alien Enemy Act of 1798 as amended, 50 U. S. C. § 21, but this Proclamation has no bearing on the power of the President under the Trading with the Enemy Act. Report of the Senate Committee on Commerce, Report No. 111, 65th Cong., 1st Sess., pages 15-22. Coppell v. Hall, 7 Wall. 542, 554, 557, 558.

9

10 Report of the Senate Committee on Commerce, Report No. 111, 65th Cong., 1st Sess., 1.

ment of enemies makes possible certain relaxations in the old law." 11

Since the purpose of the bill was to permit certain relations with non-resident alien enemies, there is no frustration of its purpose in permitting resident aliens to sue in our courts. Statements made on the floor of the House of Representatives by the sponsor of the bill make this interpretation conclusive.12

Not only has the President not seen fit to use the authority possessed by him under the Trading with the Enemy Act to exclude resident aliens from the courts, but his administration has adopted precisely the opposite program. The Attorney General is primarily responsible for the administration of alien affairs. He has construed the existing statutes and proclamations as not barring this petitioner from our courts, and this stand is em

13

11 Report of the Senate Committee on Commerce, Report No. 111, 65th Cong., 1st Sess., 2.

12 "Mr. Montague: A German resident in the United States is not an enemy under the terms of the bill, unless he should be so declared subsequently by the proclamation of the President, in which case he would have no standing in court." ...

"Mr. Stafford: Do I understand that this bill confers upon the President any authority to grant to an alien subject doing business in this country the right to sue in the courts to enforce his contract?

"Mr. Montague: If he is a resident of this country, he has that right under this bill without the proclamation of the President. "Mr. Stafford: If so, where is that authority?

"Mr. Montague: In the very terms of the bill defining an enemy, whereby German residents in the United States have all rights in this respect of native-born citizens, unless these rights be recalled by the proclamation of the President for hostile conduct on the part of the Germans resident in the United States." 55 Cong. Rec. 4842, 4843 (1917).

13 "No native, citizen, or subject of any nation with which the United States is at war and who is resident in the United States is prevented by federal statute or regulation from suing in federal or state courts." Dept. of Justice press release, Jan. 31, 1942.