The Status of Germany and of German Internees
| DOI | http://doi.org/10.1111/j.1468-2230.1947.tb00061.x |
| Date | 01 October 1947 |
| Published date | 01 October 1947 |
| Author | Clive Parry |
THE
STATUS
OF
GERMANY AND
OF’
GEHMAN INTERNEES
THAT
an interned alien enemy is not in
a
position to apply for
a
writ
of
habeas corpus was not disputed in
R.
v.
Home
Secretary, ex
p.
L.,
[1945]
K.B.
7,
noted in
8
M0d.L.R.
78
and
61
L.Q.R.
126.
The point did not precisely arise in
Netz
v.
Chuter Ede,
[1946]
1
All
E.R.
628,
which was a procedure
summons asking for the striking out of
a
statement
of
claim
under R.S.C., Ord.
25,
r.
4,
as disclosing no reasonable cause
of
action. The statement of claim in question recited that
the plaintiff was
a
German national, resident in the United
Kingdom since
1931,
interned since
1940,
and in
1945
notified
of
his imminent compulsory repatriation. The relief sought
was
an injunction to restrain the Home Secretary, his servants
or
agents, from deporting the plaintiff. Wynn-Parry,
J.,
held
that upon the plaintiff’s own pleadings, behind which the court
could not go, the conclusion was inescapable that he was
originally a German national, and still such at the outbreak of
war and
so
remained. The learned judge further concluded
that the acts
of
the defendant were Acts of State, and that
it
was on the basis that internment of an alien was an Act of State
that
it
had been decided in
R.
v.
Supt.
of
Vine Street Police
Station, ex
p.
Liebmann,
[1916] 1
K.B.
268,
and in
R.
v.
Commandant
of
Knockaloe
Camp,
ex
p.
Forman,
117
L.T.
627,
that an alien enemy internee cannot apply
for
a
habeas
corpus. Accepting the proposition that the court is both
entitled and bound to inquire into the question whether
or
not
an alleged act
of
State is within the prerogative, Wynn-
Parry,
J.,
proceeded to ask himself whether, bearing in mind
that as the pleadings stood the plaintiff had to be treated as an
alien enemy, the particular act complained of by him was
permitted by the prerogative. The answer
was
in the
affirmative, because an alien enemy who is within the realm is
there by licence which the Crown may at any time withdraw.
Whilst permitted to remain, he may, indeed, sue a subject
of
the Crown to protect his property and, as was held in
Schaoenius
v.
Goldberg,
[1916]
1
K.B.
284,
internment is not
per se
a
revocation
of
the Crown‘s licence. But the power
of
revocation remains, and its exercise is possibly a lesser exercise
of
sovereign power than internment. In the light
of
these
403
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