EX PARTE DON ASCANIO COLONNA
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The Court held that an enemy alien cannot prosecute a suit in U.S. courts during wartime, except as provided by statute.
The Italian Ambassador sought leave to file a petition for writs of prohibition and mandamus concerning a vessel and cargo claimed to be Italian Gover…
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Per Curiam:
Petitioner, the Royal Italian Ambassador, seeks leave to file in this Court a petition for writs of prohibition and mandamus, directed to the United States District Court for the District of New Jersey. The basis of this application is petitioner’s allegation that a vessel and its cargo of oil, the subject of litigation in the District Court and now in its possession, are the property of the Italian Government and are entitled to the benefit of Italy’s sovereign immunity from suit.
After the motion was filed, there occurred on December 11, 1941, the declaration that the United States is at war with Italy. Section 2 (b) of the Trading with the Enemy Act, 40 Stat. 411, defines “enemy” to include the government of any nation with which the United States is at war. Section 7 (b) contains the following provision, 40 Stat. at 417:
“Nothing in this Act shall be deemed to authorize the prosecution of any suit or action at law or in equity in any court within the United States by an enemy or ally of enemy prior to the end of the war, except as provided in section ten hereof” [which relates to patent, trademark and copyright suits] “. . . And -provided further, That an enemy or ally of enemy may defend by counsel any suit in equity or action at law which may be brought against him.”
This provision was inserted in the Act in the light of the principle, recognized by Congress and by this Court, that war suspends the right of enemy plaintiffs to prosecute actions in our courts. See S. Repts. Nos. 111 and 113, pp. 21, 24, 65th Cong., 1st Sess.; Caperton v. Bowyer, 14 Wall. 216, 236; Hanger v. Abbott, 6 Wall. 532, 536-37, 539; Masterson v. Howard, 18 Wall. 99, 105; Porter v. Freudenberg, 1 K. B. 857, 866-80. In view of the statute and the opinions in the cases cited, the application will not be entertained. Cf. Rothbarth v. Herzfeld, 179 App. Div. 865, 867-69, 167 N. Y. S. 199, affirmed 223 N. Y. 578, 119 N. E. 1075.
Motion for leave to file denied.
Mr. Justice Roberts took no part in the decision of this application.
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Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (U.S. 1964)…some recent lower court cases which have questioned the right of instrumentalities of the Cuban Government to sue in our courts,10 the privilege of suit has been denied only to governments at war with the United States, Ex parte Don Ascanio Colonna, 314 U. S. 510; see § 7 of the Trading with the Enemy Act, 40 Stat. 416, 417, 50 U. S. C. App. § 7; cf. Hanger v. Abbott, 6 Wall. 532; Caperton v. Bowyer, 14 Wall. 216, 236, or to those not recognized by this country, The Penza, 277 F. 91; Russian Republic v. Cib…
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Ex parte Republic of Peru, 318 U.S. 578 (U.S. 1943)…have been granted. Only in rare instances has their denial been the occasion for an opinion dealing with questions of public importance. See, e. g., Los Angeles Brush Corp. v. James, 272 U. S. 701; Ex parte Baldwin, 291 U. S. 610; Ex parte Colonna, 314 U. S. 510; cf. Mooney v. Holohan, 294 U. S. 103. And whatever the scope of the jurisdiction of this Court, in no case does it decline to examine an application in order to determine whether it has jurisdiction.…
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Johnson v. Eisentrager, 339 U.S. 763 (U.S. 1950)…183; Jackson v. Decker, 11 [*777] Johns. (N. Y.) 418; Clarke v. Morey, 10 Johns. (N. Y.) 70, 74-75. This Court has recognized that rule, Caperton v. Bowyer, 14 Wall. 216, 236; Masterson v. Howard, 18 Wall. 99,105, and followed it, Ex parte Colonna, 314 U. S. 510, and it continues to be the law throughout this country and in England.8 II. The foregoing demonstrates how much further we must go if we are to invest these enemy aliens, resident, captured and imprisoned abroad, with standing to demand access to…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hanger v. Abbott, 6 Wall. 532 (U.S. 1867)
- Caperton v. Bowyer, 14 Wall. 216 (U.S. 1871)
- Masterson v. Howard, 18 Wall. 99 (U.S. 1873)