^* 317 U. S. 69 (Preliminary print).

¹ Petitioner argues that his case is covered by Article 23 h of the Annex to the IVth Hague Convention of 1907: “It is especially prohibited… to declare abolished, suspended, or inadmissible in a court of law the rights and action of the nationals of the hostile party. “This clause, which was added to the Convention of 1899 without substantial discussion either by the delegates in General Assembly or by the committee and subcommittee which dealt with it, III Proceedings of the Hague Convention of 1907, 12, 107, 136, 240; and I ibid. 83, was construed by an English court to apply solely in enemy areas occupied by a belligerent. Porter v. Freudenberg, [1915] 1 K. B. 857. The question has not been raised in the courts in this country, but the English interpretation was repeated with approval by Representative Montague of the Interstate Commerce Committee in his address to the House when he presented to it the Trading With the Enemy Act. 55 Cong. Rec. 4842 (1917).

² According to Littleton, an alien might not sue in either a real or personal action; but this rule was modified by Coke to bar such actions only by alien enemies and to permit personal actions by alien friends. See Coke on Littleton, 129 b. Pollock and Maitland suggest that this modification by Coke was “a bold treatment of a carefully worded text.” 1 History of English Law, 2d ed., 459. The early law treated all aliens as a group. See the subtitles 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 (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.

⁴ 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 war ships. Bradley, The United Empire Loyalists, 192; and see 3 McMaster, History of the United States, 242.

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 v. Continental Tyre Co., Anno. Cas. 1917 C, 170, 204; In the Matter of Bernbeimer, C. C. A. 3rd,—F. 2d—; 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, Sec. 51-54, and particularly Sec. 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.”

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 [this Journal, Vol. 36 (1942), p. 489], 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 momentarily misapplied in Kaufman v. Eisenberg, 177 N. Y. Misc. 939, 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.

⁹ 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.

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

¹¹ Ibid., 2.

¹² “Mr. Montague: A German resident in the United States is not an enemy under 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 the 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 (Jerman 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.

¹⁴ The determination by Congress and the Executive not to interfere with the rights of resident enemy aliens to proceed in the courts marks a choice of remedies rather than a waiver of protection. The government has an elaborate protective program. Under the Alien Enemy Act, 50 U. S. C. § 21, the President has ordered the internment of aliens, has instituted a system of identification, and has regulated travel. Under the First War Powers Act, 50 U. S. C. Supp. 1, 1940 ed. Appendix, Sec. 5 (b), and various executive orders he has controlled the funds of resident enemy aliens. Many other statutes make a composite pattern which Congress has apparently thought adequate for the control of this problem. See, e.g., the controls on alien ownership of land in the territories, 8 U. S. C. Chap. 5.