against them for goods sold and delivered by a company which had a large enemy interest. (Amorduct Manufacturing Co. v. Defries & Co.) The company had its office in London and its factory at Birmingham, but a large part of its shares were held by alien enemies living in Germany and the remainder by a naturalized German living in England. It was urged that the plaintiffs were precluded from maintaining the action, by reason of the nationality of a majority of the shareholders, and the Judge of the City of London Court upheld this plea and declared it would be against public policy to allow the company to receive money from an English firm. The High Court, however, overruled the decision on the ground that the company was a different entity from its shareholders and could both trade and sue in England as an English person. The Court of Appeal laid down the same principle in the case of the Continental Tyre Company v. Tilling, when a company registered in England but composed almost entirely of German shareholders sued an English firm on a bill of exchange accepted by it on account of goods supplied before the war. Buckley, L. J., dissented from the judgment on grounds of public policy, being of opinion that the law in such cases should look to the substance and not to the form of the character of the company.

The branch in English territory of an enemy firm was likewise held liable to sue and be sued as an English person during the war. A pretty question of the kind was decided by the court on a claim brought by an English firm of solicitors against the branch of a German bank which was licensed to carry on business in England. (Plunkett and Leader v. Disconto-Gesellschaft.) The plaintiffs had an account with the principal German house at Berlin and on August 1st applied for payment of the balance standing to their credit. The bank refused payment, and when war supervened it became, of course, impossible to enforce it by action in Germany. They therefore brought a suit for the amount due against the defendant branch, who entered an appearance, but pleaded that they were not liable (1) because of the moratorium proclamation and (2) because the debt was due from the head office and they were unable to get any instructions from the head office. The court held that the branch was properly sued and that the moratorium proclamation did not apply because the payment due was in respect of a debt, incurred outside the

kingdom, for a firm whose principal place of business was outside the British Isles. By the proclamation of August 6th, the postponement of payment was expressly not extended to such debts; and, though the branch was not the party primarily responsible, its funds were liable to satisfy English creditors of the principal house when they could not obtain their rights otherwise. In a subsequent case, the court held that the London branch of the Dresdner Bank was not liable to pay the amount of a credit of an English firm at the Berlin head office, distinguishing the earlier decision on the ground that there a request for payment had been made to the German house. (Clare & Company v. Dresdner Bank.)

While the English common law courts refused to abrogate the old practice of our common law which deprived the alien enemy of the right of suit, the Prize Court upheld on grounds of broad justice the enemy's right to appear for the purpose of urging considerations in defense of his property under an alleged rule of international law which would protect it from confiscation in prize proceedings. Under the old English prize law the alien enemy was generally not allowed to appear in the court to argue his case. He was deemed, as Lord Stowell put it in a famous case (The Hoop) to be ex lex, outside the protection of the law, unless particular circumstances discharged him for the nonce, or, as the lawyers say, pro hac vice from the enemy character, such as his coming under a flag of truce, a cartel, a pass, or some other act of public authority which puts him in the King's peace. But when this principle was laid down there were scarcely any circumstances other than those mentioned in which the property of the alien enemy taken at sea was not liable to confiscation; whereas today, in virtue of a number of international conventions, the belligerent's right of capture has been considerably restricted. He may no longer seize the enemy's goods on neutral vessels, or capture small fishing boats, or confiscate enemy vessels lying in his own ports at the outbreak of war. In all these cases, therefore, the enemy owner might desire to set up a legal plea before the court, if proceedings were taken against his property in the Prize Court, and the practice of other nations, including that of the United States of America during the Spanish-American War and of Japan and Russia during the Russo-Japanese War, has tended toward relaxing the old international

rule of excluding enemy subjects from the courts. Accordingly, in an important prize case (The Möwe), decided early in this war, the President of the court, in order, as he said, to justify a conviction of fairness as well as to promote just and right decisions, made a rule of practice that whenever an alien enemy conceives that he is entitled to any protection, privilege or relief under any international convention, he shall be entitled to appear as a claimant and to argue his claims before the court. The attitude of the British Prize Court to the enemy which, it is submitted, will likewise be the attitude of every British court, was admirably stated in the course of the judgment, in words which form a fitting conclusion to the consideration of the enemy subject's rights in England, when the strain of war weighs upon the even balance of justice:

The practice should conform to sound ideas of what is fair and just. When a sea of passions rises and rages as a natural result of such a calamitous series of wars as the present, it behooves a court of justice to preserve a calm and equable attitude in all controversies which come before it for decision, not only where they concern neutrals, but also where they may affect enemy subjects. In times of peace the Admiralty Courts of this realm are appealed to by people of all nationalities who engage in commerce upon the seas, with a confidence that right will be done. So in the unhappy and dire times of war the Court of Prize as a court of justice will, it is hoped, show that it holds evenly the scales between friend, neutral, and foe.

It is doubtful whether the old common law rule excluding alien enemies from suing in the King's courts during the war might not be completely abrogated in our day without any injury to the public weal. The change would require legislation, but it is submitted that legislation with this aim would bring our law into more complete accord with the progressive ideas of international law. There may be circumstances in which the denial of the right of action involves loss of property, and the spirit of the modern law of war is that the proprietary rights of enemies in the belligerent country are to be preserved during the war. What the interests of the belligerent state demand is that no wealth should be sent from any person in its territory to any person in the enemy territory, and it would therefore be necessary to require any sum awarded by a judgment to an alien enemy to be paid into court. But it would be possible to secure this condition while leaving the courts open in war as in peace to do justice between all persons who have rights to assert or defend. NORMAN BENTWICH.

BOARD OF EDITORS OF THE AMERICAN JOURNAL

OF INTERNATIONAL LAW

CHANDLER P. ANDERSON, New York, N. Y.
CHARLES NOBLE GREGORY, Washington, D. C.
AMOS S. HERSHEY, Indiana University.

CHARLES CHENEY HYDE, Northwestern University.
GEORGE W. KIRCHWEY, Columbia University.
ROBERT LANSING, Washington, D. C.

JOHN BASSETT MOORE, Columbia University.
GEORGE G. WILSON, Harvard University.
THEODORE S. WOOLSEY, Yale University.

Editor in Chief

JAMES BROWN SCOTT, Carnegie Endowment for International Peace, Washington, D. C.

Secretary of the Board of Editors and Business Manager of the Journal GEORGE A. FINCH, 2 Jackson Place, Washington, D. C.

EDITORIAL COMMENT

THE RESIGNATION OF MR. BRYAN AS SECRETARY OF STATE

On June 8, 1915, the Honorable William Jennings Bryan resigned the Secretaryship of State of the United States, owing to a disagreement with the President and the Administration as to the attitude which the United States should take with Germany in the discussion and settlement of the case of the Lusitania, a British passenger and mail steamer which was on May 7, 1915, on its way from New York to Liverpool, torpedoed and sunk off the coast of Ireland, causing the loss of over one thousand persons, including therein more than one hundred American citizens, of the two thousand persons on board at the time of the destruction of the vessel.

Mr. Bryan's letter of resignation, dated Washington, June 8, 1915, is as follows:

My dear Mr. President:

It is with sincere regret that I have reached the conclusion that I should return to you the commission of Secretary of State, with which you honored me at the beginning of your Administration.

Obedient to your sense of duty and actuated by the highest motives, you have prepared for transmission to the German Government a note in which I cannot join without violating what I deem to be an obligation to my country, and the issue involved is of such moment that to remain a member of the Cabinet would be as unfair to you as it would be to the cause which is nearest my heart, namely, the prevention of war.

I, therefore, respectfully tender my resignation, to take effect when the note is sent, unless you prefer an earlier hour.

Alike desirous of reaching a peaceful solution of the problems, arising out of the use of submarines against merchantmen, we find ourselves differing irreconcilably as to the methods which should be employed.

It falls to your lot to speak officially for the nation; I consider it to be none the less my duty to endeavor as a private citizen to promote the end which you have in view by means which you do not feel at liberty to use.

In severing the intimate and pleasant relations, which have existed between us during the past two years, permit me to acknowledge the profound satisfaction which it has given me to be associated with you in the important work which has come before the State Department, and to thank you for the courtesies extended. With the heartiest good wishes for your personal welfare and for the success of your Administration, I am, etc., etc.

To this letter of Mr. Bryan, President Wilson thus replied under date of June 8, 1915:

My dear Mr. Bryan:

I accept your resignation only because you insist upon its acceptance; and I accept it with much more than deep regret, with a feeling of personal sorrow.

Our two years of close association have been very delightful to me. Our judgments have accorded in practically every matter of official duty and of public policy until now; your support of the work and purposes of the Administration has been generous and loyal beyond praise; your devotion to the duties of your great office and your eagerness to take advantage of every great opportunity for service it offered have been an example to the rest of us; you have earned our affectionate admiration and friendship. Even now we are not separated in the object we seek, but only in the method by which we seek it.

It is for these reasons my feeling about your retirement from the Secretaryship of State goes so much deeper than regret. I sincerely deplore it.

Our objects are the same and we ought to pursue them together. I yield to your desire only because I must and wish to bid you Godspeed in the parting. We shall continue to work for the same causes even when we do not work in the same way. With affectionate regard, etc., etc.