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Council sufficiently establish the existence of such breaches of law on the part of the German Government as justify retaliatory measures on the part of his Majesty, and, if so, the only question open to the neutral claimant for the purpose of invalidating the order is whether or not it subjects neutrals to more inconvenience or prejudice than is reasonably necessary under the circumstances.
Their Lordships think that such a rule is sound, and, indeed, inevitable. From the nature of the case the party who knows best whether or not there has been misconduct calling such a principle into operation, is a party who is not before the court, namely, the enemy himself. The neutral claimant can hardly have much information about it, and certainly cannot be expected to prove or disprove it. His Majesty's Government, also well aware of the facts, has already by the fact as well as by the recitals of the Order in Council solemnly declared the substance and effect of that knowledge, and an independent inquiry into the course of contemporary events, both naval and military, is one which a Court of Prize is but illqualified to undertake for itself.
Still less would it be proper for such a Court to inquire into the reasons of policy, military or other, which have been the cause and are to be the justification for resorting to retaliation for that misconduct. Its function is, in protection of the rights of neutrals, to weigh on a proper occasion the measures of retaliation which have been adopted in fact, and to inquire whether they are in their nature or extent other than commensurate with the prior wrong done, and whether they inflict on neutrals, when they are looked at as a whole, inconvenience greater than is reasonable under all the circumstances. It follows that a Court of Prize, while bound to ascertain, from the terms of the order itself, the origin and the occasion of the retaliatory measures for the purpose of weighing those measures with justice as they affect neutrals, nevertheless ought not to question, still less dispute, that the warrant for passing the order, which is set out in its recitals, has in truth arisen in the manner therein stated.
Although the scope of this inquiry is thus limited in law, in fact their Lordships cannot be blind to what is notorious to all the world and is in the recollection of all men, the outrage, namely, committed by the enemy upon law, humanity and the rights alike of belligerents and neutrals, which led to, and, indeed, compelled the adoption of some such policy as is embodied in this Order in Council. In considering whether more inconvenience is inflicted upon neutrals than the circumstances involve, the frequency and the enormity of the original wrongs are alike material, for the more gross and universal those wrongs are, the more are all nations concerned in their repression, and bound for their part to submit to such sacrifices as that repression involves. ,
It is right to recall that, as neutral commerce suffered and was doomed to suffer gross prejudice from the illegal policy proclaimed and acted on by the German Government, so it profited by and obtained relief from retaliatory measures if effective to restrain, to punish and to bring to an end such injurious conduct. Neutrals, whose principles or policy lead them to refrain from punitory repressive action of their own, may well be called on to bear a passive part in the necessary suppression of courses which are fatal to the freedom of all who use the seas.
The argument principally urged at the Bar ignored these considerations and assumed an absolute right in neutral trade to proceed without interference or restriction, unless by the application of the rules heretofore established as to contraband traffic, unneutral service, and blockade. The assumption was that a neutral, too pacific or too impotent to resent the aggressions and lawlessness of one belligerent, can require the other to refrain from his most effective or his only defence against it, by the assertion of an absolute inviolability for his own neutral trade, which would thereby become engaged in a passive complicity with the original offender.
For this contention no authority at all was forthcoming. Reference was made to the Orders in Council of 1806 to 1812, which were framed by way of retaliation for the Berlin and Milan decrees. There has been much discussion of these celebrated instruments on one side or the other, though singularly little in decided cases or in treaties of repute, and, according to their nationality or their partisanship, writers have denounced the one policy or the other, or have asserted their own superiority by an impartial censure of both. The present order, however, does not involve for its justification a defence of the very terms of those Orders in Council. It must be judged on its merits, and, if the principle is advanced against it that such retaliation is wrong in kind, no foundation in authority has been found on which to rest it.
Nor is the principle itself sound. The seas are the highway of all, and it is incidental to the very nature of maritime war that neutrals, in using that highway, may suffer inconvenience from the exercise of their concurrent rights by those who have to wage war upon it. Of this fundamental fact the right of blockade is only an example. It is true that contraband, blockade, and unneutral service are branches of International Law which have their own history, their own illustrations, and their own development. Their growth has been unsystematic, and the assertion of right under these different heads has not been closely connected or simultaneous. Nevertheless, it would be illogical to regard them as being in themselves disconnected topics, or as being the subject of rights and liabilities which have no common connection. They may also be treated, as in fact they are, as illustrations of the broad rule that belligerency and neutrality are states so related to one another that the latter must accept some abatement of the full benefits of peace in order that the former may not be thwarted in war in the assertion and defence of what is the most precious of all the right of nations, the right to security and independence. The categories of such cases are not closed. To deny to the belligerent, under the head of retaliation, any right to interfere with the trade of neutrals beyond that which, quite apart from circumstances which warrant retaliation, he enjoys already under the head of contraband, blockade and unneutral service, would be to take away with one hand that which has formally been conceded by the other. As between belligerents acts of retaliation are either the return of blow for blow in the course of combat, or are the questions of the laws of war not immediately falling under the cognizance of a Court of Prize. Little of this subject is left to Prize Law beyond its effect on neutrals, and on the rights of belligerents against neutrals, and to say that retaliation is invalid as against neutrals, except within the old limits of blockade, contraband and unneutral service, is to reduce retaliation to a mere simulacrum, the title of an admitted right without practical application or effect.
Apart from the Zamora, the decided cases on this subject, if not many, are at least not ambiguous. Of the Leonora (1918, p. 182), decided on the later Order in Council, their Lordships say nothing now, since they are informed that it is under appeal to their Lordships' Board, and they desire on the present occasion to say no more, which might affect the determination of that case, than is indispensable to the disposal of the present one.
Sir William Scott's decisions on the retaliatory Orders in Council were many, and many of them were affirmed on appeal. He repeatedly and in reasoned terms declared the nature of the right of retaliation and its entire consistency with the principles of International Law. Since then discussion has turned on the measures by which effect was then given to that right, not on the foundation of the principle itself, and their Lordships regard it as being now too firmly established to be open to doubt.
Turning to the question which was little argued, if at all, though it is the real question in the case, whether the Order in Council of March 11, 1915, inflicts hardship excessive either in kind or in degree upon neutral commerce, their Lordships think that no such hardship was shown. It might well be said that neutral commerce under this order is treated with all practicable tenderness, but it is enough to negative the contention that there is avoidable hardship. Of the later Order in Council they say nothing now. If the neutral shipowner is paid a proper price for the service rendered by his ship, and the neutral cargo-owner a proper price according to the value of his goods, substantial cause of complaint can only arise if considerations are put forward which go beyond the ordinary motives of commerce and partake of a political character, from a desire either to embarrass the one belligerent or to support the other.
In the present case the agreement of the parties as to the amount to be allowed for freight disposes of all question as to the claimant's rights to compensation for mere inconvenience caused by enforcing the Order in Council. Presumably, that sum took into account the actual course and duration of the voyage, and constituted a proper recompense alike for carrying and for discharging the cargo under the actual circumstances of that service. The further claims are in the nature of claims for damages for unlawful interference with the performance of the Rotterdam charter-party. They can be maintained only by supposing that a wrong was done to the claimants, because they were prevented from performing it, for in their nature these claims assume that the shipowners are to be put in the same position as if they had completed the voyage under that contract, and are not merely to be remunerated on proper terms for the performance of the voyage, which was in fact accomplished. In other words, they are a claim for damages, as for wrong done by the mere fact of putting in force the Order in Council. Such a claim cannot be sustained. Their Lordships will humbly advise his Majesty that the appeal should be dismissed, with costs.
The Commonwealth at War. By A. F. Pollard. London: Longmans,
Green & Co. 1917. pp. vi, 256. $2.25 net. It is not often that brilliancy goes hand in hand with learning and wisdom so continuously as it does along the pages of this volume. The book consists of a collection of essays, lectures, and newspaper articles by the Professor of History in the University of London, delivered or printed from time to time during the past four years. They are arranged for the most part in chronological order, and one gets the impression as to most if not all of them that they were evoked by the more or less critical conditions of public feeling and opinion that presented themselves from time to time during the course of the war. They have for this reason a vividness and vitality that are not too frequently characteristic of the work of profound and scholarly historians. It would not be possible for Professor Pollard to write any. thing that would be uninteresting, but the special interest of this volume is that, because of the circumstance referred to, it enables one to gain a particularly vivid conception of the realized as well as the frustrated hopes, the groundless as well as the justifiable fears, the true as well as the false judgments, amid which the people of England struggled through to the final victory for which they endured hardness as good soldiers for so many long and weary years.
The table of contents is certainly alluring, with its array of no less than nineteen titles. The author begins with a clear and powerful presentment of the causes of the war, laying particular emphasis upon the moral issues at stake. His second essay is a humorous but not the less philosophical treatment of the sometimes diverting and sometimes distracting rumors spread abroad in the earlier stages of the war, one of which will instantly be recalled, of the legendary Russian forces that embarked at Archangel and reached the western front by way of Leith and Southampton. Another, not so well-known, may be said to have deceived the very elect, as it appeared “not in a half-penny newspaper, but set out in the dignity and circumstance" of the Fortnightly Review, "over a familiar but pseudonymous signature."