§ 100a. Formerly the rule prevailed everywhere that an enemy subject has no persona standi in judicio and is, therefore, ipso facto by the outbreak of war, prevented from either taking or defending proceedings in the Courts. This rule dates from the time when war was considered such a condition between belligerents as justified the committing of hostilities on the part of all subjects of the one belligerent against all subjects of the other, and, further, the killing of all enemy subjects irrespective of sex and age, and, at any rate, the confiscation of all private enemy property. War in those times used to put enemy subjects entirely ex lege, and it was only a logical consequence from this principle that enemy subjects could not sustain persona standi in judicio. Since the rule that enemy subjects are entirely ex lege has everywhere vanished, the rule that they may not take or defend proceedings in the Courts has in many countries, such as Austria-Hungary, Germany, Holland, and Italy, likewise vanished. But in Great Britain and the United States of America[194] enemy subjects are still prevented from taking and defending legal proceedings,[195] although there are six exceptions to the general rule. Firstly, enemy subjects who do not bear enemy character because they are resident in neutral country or have a licence to trade or are allowed[196] to remain in the country of a belligerent, are therefore permitted to sue and be sued in British and American Courts. Secondly, if during time of peace a defendant obtains an opportunity to plead, and if subsequently war breaks out with the country of the plaintiff, the defendant may not plead that the plaintiff is prevented from suing.[197] Thirdly, if a contract was entered into and executed before the war, and if an absent enemy subject has property within the boundaries of a belligerent, he may be sued.[198] Fourthly, a prisoner of war[199] may sue during war on a contract for wages. Fifthly, if the parties, being desirous to obtain a decision on the merits of the case, waive the objection, enemy subjects may sue and be sued.[200] Lastly, a petition on the part of a creditor who is an enemy subject, to prove a debt under a commission of bankruptcy must be admitted[201] although the dividend will not be paid till after the conclusion of peace.
[194] In strict law also in France.
[195] The leading case is the Hoop (1799), 1 C. Rob. 196.
[196] Wells v. Williams (1698), 1 Lord Raymond, 282.
[197] Shepeler v. Durand (1854), 14 P.C. 582.
[198] Dorsey v. Kyle (1869), 3 Maryland, 512. It would seem that the American Courts are inclined to drop the rule that an enemy subject cannot be sued; see De Jarnett v. De Giversville (1874), 56 Missouri, 440.
[199] Maria v. Hall (1800), 2 B. & P. 236.
[200] Driefontein Consolidated Gold Mines Co. v. Janson (1910), 2 Q.B. 419; App. Cas. (1902), 484.
[201] Ex parte Boussmaker (1806), 13 Vesey Jun. 71.
It is asserted that, in consequence of article 23 (h) of the Hague Regulations concerning land warfare enacting the injunction "to declare extinguished, suspended, or unenforceable in a Court of Law the rights and rights of action of the nationals of the adverse party," Great Britain and the United States are compelled to abolish their rule that enemy subjects may not sue. But the interpretation of article 23 (h) is controversial, Great Britain and the United States of America—in contradistinction to Germany and France—maintaining that the article has nothing to do with their Municipal Law but concerns the conduct of armies in occupied enemy territory.[202]