be suggested,21 but it would be an unhappy ordeal and of uncertain outcome.22

Probably this attack would not have to be faced if our German behaved himself. But the United States declares war against Germany. He is drafted, goes to France, and is captured in battle; the stone wall and the firing squad may well be his fate. To Germany, under the "principle of public law," he is still a German and emphatically a traitor. He has no clever American lawyer to defend him before the military tribunal. He has not even the cold comfort of expecting to be revenged. How can the United States enter upon reprisals for an act which it would have done itself had the situation been reversed?

Or, to close the question with a less painful although serious possibility, imagine that our friend returns to Germany for a visit after peace is declared. Will he not taste of durance vile? And, again, can the United States effectively protest the application of its own "principle of public law" which was indeed "vital to the interests of Germany"?

It is now appropriate to turn from the first element of naturalization and consider briefly that aspect of the second which deals with the acceptance of the applicant by the new sovereign of his choice. When war was declared against Germany in April of 1917 alien enemies, and indeed every alien who was a "native citizen or subject, or a denizen" of the German Empire,23 automatically became barred from naturalization. In December of the same year Austro-Hungarians were likewise barred. But on May 9, 1918, the naturalization law was radically amended.24

21 As, for instance, that the United States naturalizes in entire disregard of foreign law, as it certainly has a right to do; that the Bancroft treaties cover the case, and § 36 of the Delbrück Law continues treaties in effect; that one needs no "discharge" to lose Germanic nationality by foreign naturalization, the questions of discharges and naturalization abroad being treated in entirely different sections of the Delbrück Law. 22 It may be remarked that the powers arrayed against Germany, and even neutral nations, would probably have treated our friend as still a German. During the war between France and England at the end of the eighteenth century a Frenchman emigrated to the United States and became naturalized. While the war was still on, he shipped a cargo to some foreign port, warranting the goods neutral. The British captured and condemned them as belligerent. Held, that he cannot recover the insurance because there was a breach of warranty. The covenant of neutrality was drawn in contemplation of international law and it is a rule of international law that a man may not expatriate himself flagrante bello. Duguet v. Rhinelander, 1 Johns. Cas. (N. Y.) 360 (1800); Jackson v. New York Insurance Co., 2 Johns. Cas. 191 (1801) acc. The former case was reversed and the latter overruled by a divided court. 2 Johns. Cas. 476; 1 Caines Cas. XXV gives the majority opinion only. The reasoning which ruled the upper court is not very persuasive. It appears to have been disapproved by contemporary jurists. 1 KENT COM., 3 ed., 76 (star paging); I PHILLIPS ON INSURANCE, 5 ed., § 166; I DUER ON INSURANCE, 521; I ARNOULD ON MARINE INS., 9 ed., 895. The lower court's rule seems also to be accepted by The Dos Hermanos, 2 Wheat. 98 (U. S.) (1817).

23 U.S. REV. STAT., § 2171, Act April 14, 1802, c. 28, § 1, 2 Stat. 153. There seems to be a mistake in the punctuation of the first dozen words. The new act referred to in note 24 cured this mistake. "Alien enemy" may not sound rhetorically correct, but in our statute law it is a phrase of art and just now is particularly dear to those engaged in counter espionage activities. U. S. REV. STAT., § 4067; Act July 6, 1798, c. 66, § 1, I Stat. 577. The definition of the term was extended to women by an amendatory act of Congress, and the President by proclamation put this act into effective operation. The act is dated April 16, 1918, the proclamation, April 19, 1918.

24 By Pub. No. 144, 65th Cong., H. R. 3132. The amendatory act is frequently referred to as "The Raker Act."

Two portions of the amendment, being its subdivisions numbered seventh and eleventh, are of interest. The latter provides that no alien enemy may become a citizen unless he can conform to certain conditions with respect to the date of his declaration of intention, etc.; or, failing that, unless the President by an act of special grace "upon investigation and report by the Department of Justice fully establishing the loyalty" of the applicant, excepts him from the classification of an alien enemy. From a purely practical, non-legal standpoint these are most remarkable provisions. The other opponents of the Central Powers have bent every effort toward squeezing Germans and Austro-Hungarians out of citizenship rather than toward admitting them into citizenship. Certain considerations of policy, particularly concerning the subject races of Austria-Hungary, may well overbalance this consideration and also the apparent inadvisability of casting the labor of thousands of new investigations upon a Department already bearing the brunt of the war work.

When one turns to the legal points, however, difficulties multiply. If a native of Germany naturalized here when the country was neutral might reasonably expect harsh treatment from his former compatriots, he will surely be doubly damned if he attempts to become an American while war is on between the two nations. Should he be captured in military operations, his fate is certain unless considerations of policy stay the execution. There is a British case squarely in point.25 One would not expect more mercy of the Hun.

Subdivision seventh of the amendatory act is an overwhelmingly complex and ill-drawn paragraph dealing with everything from a Filipino to an alien seaman, but especially providing for the expeditious naturalization during the war of aliens in the military and naval service. This object is thoroughly laudable and it is a pleasure to know that a landoffice naturalization business was done in the army camps. 26 The trouble is that a very substantial number of alien enemies have been admitted under this section. It was believed that their admission would save them from treatment as traitors if captured, a risk which they naturally did not care to face. The foregoing discussion leads to the conclusion that such a belief is thoroughly unsound. The grim possibilities of the mistake, if it is one, are obvious. Fortunately they appear not to have been realized in fact. But there is another difficulty. Subdivision seventh purports to cover "any alien serving in the military or naval service." It must be remembered, however, that for over a century the naturalization of alien enemies has been forbidden and that this restriction is continued with certain specified relaxations by a subsequent subdivision of this very act. It appears not unlikely that Germans and Austro-Hungarians dealt with under subdivision seventh have ac

25 Rex v. Lynch, 1 K. B. (1903) 444. The court simply slashed its way through an absolutely unqualified expatriation statute, saying that naturalization itself under the circumstances was an act of treason. During the War of 1812 the same point came up, and executions of captives were avoided by a hair's breadth. COCKBURN, supra, 70.

26 On the other hand, there appear to have been few if any naturalizations under subdivision eleventh as late as November 1, 1918.

quired naturalization which is a "scrap of paper" here, just as it is in their native countries.27

The reader will have remarked that all the lines of this brief discussion converge on a common point. Even if the arguments advanced above are mistaken and can be successfully rebutted, it appears that the United States has, since the commencement of the war in 1914, received or purported to receive as citizens numbers of foreign born individuals. whose status is somewhat doubtful here and decidedly doubtful abroad. If we grant that the nations cobelligerent with us are likely in courtesy and good feeling to waive any rights concerning their nationals, our opponents still remain to be considered. Embarrassment amounting to a dilemma is clearly possible. It is hard to see how we can refuse to protect even in Germany a German native naturalized here between August 3, 1914, and the end of the war. Our own statute law requires the executive to tender such protection.28 Yet if we do so, we shall be denying Germany a right which the United States has recognized and asserted for itself. To put the point in another way, no persons have exceeded Americans in denunciation of those provisions of the Delbrück Law which encourage the conscious creation of dual allegiance. Can we continue this denunciation with much justice if our courts and our Congress have been making decisions and passing laws which tend toward precisely the same end? 29 JOHN M. MAGUIRE.

THE THEORY OF THE PLEADINGS. It might be thought that if a defendant has had ample notice of the claim against him and an opportunity to defend, and the facts have been fully presented on both sides, and a judgment has finally been recovered against him, he ought to pay. Even more clearly it would seem that when the defendant in his answer has expressly admitted a right of action in the plaintiff, the plaintiff should be entitled to recover on that right of action. In New York according to a recent decision of the Court of Appeals this is not the case. One Jackson brought suit against one Strong alleging that they had entered into a contract to prosecute an undertaking for their joint benefit, sharing equally as partners in the expenses and in the receipts; and the plaintiff asked for an accounting and for a recovery of the amount due. The defendant denied the agreement to share equally but alleged that he had agreed to employ the plaintiff as his assistant and to pay him the reasonable value of his services. The case was tried before a referee who reported that there was no agreement to share but that the defendant had agreed to pay the plaintiff the reasonable value of his services. Judgment was given for the plaintiff for the reasonable value of his services. After several years the Court of Appeals has at length decided that the judgment should be reversed. And why? Not because the

27 If this doubt turns out to be really substantial, the air should be cleared by a remedial act.

28 U. S. REV. STAT., § 2000.

29 The whole tangled situation should be straightened out by explicit provisions of the final treaty of peace. Otherwise we have stored up squabbles for the next fifty years.

1 Jackson v. Strong, 222 N. Y. 149. See RECENT CASES, page 179.

plaintiff did not have a right to recover the amount awarded him in the judgment the defendant in his answer had expressly admitted that the plaintiff had a right to recover such an amount - but because in his complaint he had proceeded on the theory of a partnership and his complaint was in the nature of a bill in equity, whereas the judgment was based upon a contract and was in the nature of a judgment at law. The language of the court might have appealed to a special pleader of the seventeenth century. The court says:

"The inherent and fundamental difference between actions at law and suits in equity cannot be ignored. As has often been said: 'Pleadings and a distinct issue are essential to every system of jurisprudence, and there can be no orderly administration of justice without them. If a party can allege one cause of action and then recover upon another, his complaint would serve no useful purpose.' And further: 'The rule that judgment should be rendered in conformity with the allegations and proofs of the parties, secundum allegata et probata, is fundamental in the administration of justice. Any substantial departure from this rule is sure to produce surprise, confusion, and injustice.""

This is a striking example of the technical doctrines governing pleadings at common law, and an illustration of the miscarriages of justice which the codes were intended to prevent.3 The only real difficulty in the case would be that there was no trial by jury. But a perfect answer is that, owing to the defendant's admission that he had made a contract with the plaintiff and had broken it, there was no question on this point for the jury to try.

the

There has been a similar difficulty in New York in abolishing the forms of action in actions at law. In an earlier New York case plaintiff alleged that the defendant had by fraud induced the plaintiff to enter into a contract with him, and that the defendant had broken the contract. The defendant denied the fraud but did not deny the making and breaking of the contract. The court refused to give judgment for the plaintiff on the contract because his complaint was based on the theory of fraud and not of contract. In a somewhat similar case there is a striking dissenting opinion by Peckham, J., who expressed himself in the following plain and convincing words:

7

"The merits of the cause have been fully tried, without surprise to either party. . . . The defendant understood the complaint; no pre

2 Cf. Marsh v. Bulteel, 5 B. & Ald. 507 (1822), in which the plaintiff who declared on one breach of contract was not allowed to recover on another which was expressly admitted by the defendant in his plea.

3 See N. Y. CODE CIV. PROC., § 3339, abolishing the distinction between actions at law and suits in equity, and the forms of those actions and suits; and § 723, providing for the liberal allowance of amendments, and providing that in every stage of the action the court must disregard an error or defect in the pleadings or other proceedings, which does not affect the substantial rights of the adverse party.

4 See 31 HARV. L. REV. 669, 675-678.

Barnes v. Quigley, 59 N. Y. 265 (1874). But see Connor v. Philo, 117 N. Y. App. Div. 349, 102 N. Y. S. 427 (1907).

* For another recent case committing New York to the reactionary view, see Walrath v. Hanover Fire Ins. Co., 216 N. Y. 220 (1915). Indiana clings to the same view. See City of Union City v. Murphy, 176 Ind. 597, 96 N. E. 584 (1911).

Degraw v. Elmore, 50 N. Y. 1 (1872).

tense that he was misled by it. This variance, between the pleading and the proof, the court had full authority to amend or to disregard under the Code. This question of pleading has been a terror to suitors for many years before the Code. Legislatures have sought in vain to give relief, and now if this decision be sustained, I think our movement is backward much more than half a century. . . . Probably in not one case in ten thousand has injustice been done from the ignorance of a suitor as to the matters to be tried. But the cases of loss and damage to suitors by some defect of pleading have been innumerable."

8

The whole tendency in modern times is away from the technical view of the New York court; and the view of Peckham, J., is becoming more and more widely accepted. It cannot be said that the modern view has actually resulted in the surprise or confusion so dreaded by the court in Jackson v. Strong; and certainly, as Peckham, J., observed, it is the technical view rather than the modern view which results in injustice. The New York decisions emphasize the necessity of bringing about those changes in procedural law which are now being so strongly urged by the practical and intelligent members of the bar of that state.

INCOME TAX ON NONRESIDENTS. — All taxation is based upon protection furnished by the sovereign levying the tax to person, property or business. The income tax, like all other taxes, must be supported upon this principle, and it has therefore been held that income received by a nonresident from property situated beyond the state is not within the taxing power of the state. So where a Wisconsin decedent left personal property to a nonresident trustee in trust for a nonresident, and the trustee removed the property from the state, it was held that income thereafter accruing was not taxable in Wisconsin.3

The right to tax the domiciled resident upon all his income, from whatever source, seems to be clear, since the sovereign is exercising thereby his jurisdiction over the person taxed. Most jurisdictions impose the tax upon all domiciled residents. What effect the decision of the Supreme Court in Union Refrigerator Transit Co. v. Kentucky 5 may have upon the American acts is not altogether clear. The courts will probably allow the taxation of all income, even that derived from chattels situated elsewhere, at the state of the domicile, on the ground that the permission and protection of that state enables the owner to receive and enjoy the income; just as they allow the state of domicile of a decedent to tax the inheritance of chattels situated in other states.6

8 See Knapp v. Walker, 73 Conn. 459, 47 Atl. 655 (1900); Bruheim v. Stratton, 145 Wis. 271, 129 N. W. 1092 (1911); Cockrell v. Henderson, 81 Kan. 335, 105 P. 443 (1909); 50 L. R. A. (N. S.) 1. See also 24 HARV. L. REV. 480.

1 Union Refrigerator Transit Co. v. Kentucky, 199 U. S. 194, 26 Sup. Ct. Rep. 36 (1905).

2 State v. Wisconsin Tax Commission, 161 Wis. 111, 152 N. W. 848 (1915).

3 Bayfield County v. Pishon, 162 Wis. 466, 156 N. W. 463 (1916).

4 British Tax Act of 1853, § 2, Sched. C. D.; U. S. Tax Act of October 3, 1917, Wisconsin Income Tax Act, § 1087 m, § 2.

199 U. S. 194, 26 Sup. Ct. Rep. 36 (1905).

• Bullen v. Wisconsin, 240 U. S. 625 (1916).