The Secretary, Department of External Affairs, has forwarded the following letter from Messrs McLachlan and Murray, Solicitors, Orange, for advice:

We have the honour to inform you that we have been consulted by Mrs A.B. the wife of C.B. of East Orange, New South Wales, storekeeper, with reference to a property transaction of hers and have been instructed to apply to you as representing the Crown for licence and permission for her to reside in the country during the continuance of the war with Turkey, and for licence for her to trade in this country during that period.

The facts of the case are: A.B. came to Australia from the town of Zahleh in the district of Mount Lebanon, Palestine, in or about the year 1889 when she was of the age of five years. Her husband C.B. came to Australia when he was eight years of age in or about the year 1886 with his parents from the town of Tripolis in Syria.

The applicant and her husband have five children all of whom were born within the Commonwealth of Australia. The applicant has resided within the Commonwealth for the past 26 years. As the towns of Zahleh and Tripolis appear to be under the dominion of the Sultan of Turkey it would further appear that the applicant Mrs B. has since the declaration of war with Turkey become an alien enemy. The applicant sometime since applied to be naturalized but her application was refused, she being an Asiatic.

The applicant a little over two years ago purchased a property in the town of Orange on time-payment and has now paid off the majority of purchase money and wishes to pay off the balance of the purchase money and obtain her title deeds. The vendor declines to give her a title or further deal with her until she has obtained a licence to reside in this country and trade as applied for herein.

In support of this application we desire to say that evidence in support of the application will be produced on declaration if desired containing the above facts and ample evidence to show that the applicant and her husband are peaceable law-abiding people. We also desire to submit that this is an application that should in common fairness to the applicant be granted seeing that both the applicant and her husband under the old law existing before Federation would have been entitled, had they applied before Federation, to have become naturalized subjects of the King; now however, this right has been taken away from them by the statutory exceptions of the Commonwealth legislation namely, that an Asiatic cannot be naturalized. Further, both the applicant and her husband have lived practically all their lives in this country and have been suffered by the Crown to remain in this country and have five children who are subjects of the King. Had the applicant been a European alien enemy instead of an Asiatic alien enemy, then doubtless on declaration of war, she would have been naturalized without demur and thereby enabled to acquire and deal with property without any disability arising from the war. Seeing however, that the Crown is disabled from naturalizing the applicant on account of her Asiatic origin, then we submit that the Crown should in fairness endeavour to place the applicant as nearly as possible in the same position as a naturalized subject of the King which can be done by granting this application.

For a short statement of the law covering the position of an alien friend who on declaration of war becomes an alien enemy, we refer to pages 103, 437 and 438 of Addison's Treatise on the Law of Contracts 11th edn and particularly to the cases of Flindt v. Waters 15 East 260, Ex parte Boussmaker 13 Ves. 71 and to Wells v. Williams 1 Lord Raymond 282 and Casseres v. Bell 8 T.R. 166.

As this matter is one of some urgency, we have the honour to request that this application may receive immediate attention.

The statements made by Messrs McLachlan & Murray with regard to the position of alien enemies in this country are undoubtedly correct statements of the law with regard to alien enemies (see Halsbury's Laws of England, Vol. 1, pp. 311 and 312).

But the question arises whether Mrs B. is an alien enemy, as regards civil rights and liabilities.

The question of the position of enemy subjects in Great Britain was exhaustively dealt with by the English Court of Appeal in the recent case of Porter v. Freudenberg [1915] 1 K.B. 857.

In that case Lord Reading C.J., in delivering the unanimous judgment of the Full Bench which sat, said at p. 867:

It is necessary at the outset to keep clearly in mind the meaning of the term 'alien enemy' when used in reference to civil rights and liabilities. Its natural meaning indicates a subject of enemy nationality, that is, of a State at war with the King, and would not in any circumstances indicate a subject of a neutral State or of the British Crown, but that is not the sense in which the term is used in reference to civil rights. Ever since the great case of The Hoop 1 C.Rob. 196 the law has been firmly established as pronounced in the judgment of Lord Stowell (then Sir William Scott) that one of the consequences of war was the absolute interdiction of all commercial intercourse or correspondence by a British subject with the inhabitants of the hostile country except by permission of the Sovereign . . . Trading with a British subject or the subject of a neutral State carrying on business in the hostile territory is as much assistance to the alien enemy as if it were with a subject of enemy nationality carrying on business in the enemy State, and, therefore, for the purpose of the enforcement of civil rights, they are equally treated as alien enemies. It is clear law that the test for this purpose is not nationality but the place of carrying on the business: Wells v. Williams 1 Ld. Raym. 282; McConnell v. Hector 3 Bos. & P.l 13 per Lord Alvanley C.J.; Janson v. Driefontein Consolidated Mines [1902] A.C. per Lord Lindley at p. 505. When considering the enforcement of civil rights a person may be treated as the subject of an enemy State, notwithstanding that he is in fact a subject of the British Crown or of a neutral State. Conversely a person may be treated as a subject of the Crown notwithstanding that he is in fact the subject of an enemy State. As Lord Lindley said in Janson v. Driefontein Consolidated Mines: 'When considering questions arising with an alien enemy it is not the nationality of a person but his place of business during war that is important. An Englishman carrying on business in an enemy's country is treated as an alien enemy in considering the validity or invalidity of his commercial contracts. Again the subject of a State at war with this country but who is carrying on business here or in a foreign neutral country is not treated as an alien enemy; the validity of his contracts does not depend on his nationality nor even on what is his real domicile but on the place or places in which he carries on his business or businesses.'

From this judgment delivered by Lord Reading, I think that it is clear that, as regards civil rights and liabilities, Mrs B. is not an alien enemy, and consequently, in my opinion, there is no necessity for the issue of a licence as suggested by Messrs McLachlan and Murray.

It does not appear to me that the vendor is acting within his rights in refusing to have further dealings with Mrs B.. Mrs B. is not an alien enemy as regards civil matters, nor would the vendor, in my opinion, be liable to punishment under the Trading with the Enemy Acts or Proclamations in respect of any dealings with Mrs B. as she is not an enemy within the meaning of these Acts or Proclamations.

[Vol. 14, p. 91]