then by his own authority empowers and directs the court of prize to enforce it. It is the Law of Nations, in its application to maritime warfare, which, at the same time, recognizes the right, of which the belligerent can avail himself sub modo, and makes violation of that right, when so availed of, an offence, and is the foundation and authority for the right and duty of the court of prize to condemn, if it finds the capture justified, unless that right has been reduced by statute or otherwise, or that duty has been limited by the waiver of his rights on the part of the sovereign of the captors.

It is equally inadmissible to describe such an Order in Council as this as an executive measure of police on the part of the Crown to prevent an inconvenient trade, or as an authority to a court of prize to punish neutrals for the enjoyment of their liberties and the exercise of their rights. Both descriptions, as is the way with descriptions arguendo, beg the question. Undoubtedly, the right of retaliation exists. It is described in the Zamora (32 The Times L. R., 436; [1916] 2 A. C., 77); it is decided in the Stigstad (supra), as it has so often been decided by Sir William Scott over a century ago. It would be disastrous for the neutral if this right were a mere executive right not subject to review in a prize court; it would be a denial of the belligerents' right, if it could be exercised only subject to a paramount and absolute right of neutrals to be free to carry on their trade without interference or inconvenience. This latter contention has already been negatived in the Stigstad (supra). The argument in favor of the former, drawn from the decisions of Sir William Scott, seems to their Lordships to be no less unacceptable.

With the terms of the proclamations and orders in council from 1806 to 1812 their Lordships are not now concerned. They were such that the decisions on them in many cases involved not merely the use of the term "blockade" but discussion of, or at least allusion to, the nature of that right. It is, however, in their opinion a mistake to argue, as has been argued before them, that in those decisions. the right to condemn was deemed to arise from the fact that the cases were cases of blockade, although the occasion for the blockade was the passing of a retaliatory order. In their opinion Sir William Scott's doctrine consistently was that retaliation is a branch of the rights which the law of nations recognizes as belonging to belligerents, and that it is as much enforceable by courts of prize as is the right of blockade. They find no warrant or authority for holding that it

is only enforceable by them when it chances to be exercised under the form or the conditions of a valid blockade. When once it is established that the conduct of the enemy gave occasion for the exercise of the right of retaliation, the real question is whether the mode in which it has been exercised is such as to be invalid by reason of the burden which it imposes on neutrals, a question preeminently one of fact and of degree.

The onslaught on shipping generally, which the German Government announced and carried out at the beginning of 1917, is now a matter of history. Proof of its formidable character is to be found in a comparison between the Retaliation Orders in Council of 1915 and 1917, and their Lordships take the recitals of the latter order as sufficiently establishing the necessity for further invoking the right of retaliation. They address themselves accordingly to what is the real question in the present appeal-namely, the character and the degree of the danger and inconvenience to which the trade of neutrals was in fact subjected by the enforcement of that order. They do not think it necessary to criticize theoretic applications of the language of the order to distant seas, where the enemy had neither trade nor shipping, a criterion which was argued for, but which they deem inapplicable. Nor have they been unmindful of the fact that, to some extent, a retaliatory order visits on neutrals the consequences of others' wrongdoing, always disputed though in the present case hardly disputable, and that the other belligerent, in his turn and also under the name of retaliation, may impose upon them fresh restrictions, but it seems to them that these disadvantages are inherent in the nature of this established right, are unavoidable under a system which is a historic growth and not a theoretic model of perfection, and are relevant in truth only to the question of degree. Accordingly they have taken the facts as they affected the trade in which the Leonora was engaged, and they have sincerely endeavored to view those facts as they would have appeared to fair-minded and reasonable neutrals, and to dismiss the righteous indignation which might well become those who recall only the crises of a desperate and terrible struggle.

Compliance with the requirements of the Order in Council would have involved the Leonora in difficulties, partly of a commercial and partly of a military character. Her voyage, and with it the ordinary expenses of her voyage, would have been enlarged and the loss of

time and possibly the length of the voyage might have been added to by the fact that no port or class of ports of call had been appointed for the purpose of the order. Inconvenience of this character seems to be inevitable in the circumstances. So far as it is measurable entirely in terms of money, the extra expense is such as could be passed on to the parties liable to pay freight, and, neither by itself nor in other and more serious matters, should this kind of inconvenience be rated high.

The order does not forbid the carriage of the goods altogether. The neutral vessel may carry them at her peril, and that peril, so far as condemnation is concerned, may be averted if she calls at an appointed port. The shipowner no doubt would say that, if his ship is to make the call, he will never be able to ship the cargo, for its chance of escape would be but small, and that if he is to get the cargo he must risk his ship and undertake to proceed direct to her destination. This contention is less formidable than it appears to be on the surface. Their Lordships know well, and the late President with his experience knew incomparably better, with what ingenuity and artifice the origin of a cargo and every other damaging circumstance about it have been disguised and concealed, where the prize of success was high and the parties concerned were unfettered by scruples and inspired by no disinterested motives. They think that the chance of escape in a British port of call must be measured against the enormous economic advantage to the enemy of carrying on this export trade for the support of his foreign exchange and the benefit of his much-needed imports, and they are convinced that the chance might well be sufficient to induce the promoters of the trade both to pay, and, indeed, to prepay whatever freight the shipowner might require to cover extra insurance and the costs of a protracted voyage, and to give to the actual shipper such favorable terms of purchase, insurance or otherwise, as would lead him to expose his cargo to the risk of detection of its origin. They are far from thinking that compliance with the order would exclude neutrals from all the advantage of the trade. If the voyages were fewer they would tend to be more profitable singly, and in any case this particular traffic is but a very small part of the employment open, and legitimately so, to neutral traders, and the risk of its loss need not be regarded as of great moment.

There is also some evidence that Dutch municipal law forbade,

under heavy penalties, that such a deviation, as would be required by a call at a British port, should be made by a Dutch ship which had cleared for Sweden. If, however, the Order in Council is in other respects valid, their Lordships fail to see how the rights of his Majesty under it can be diminished or the authority of an international court can be curtailed by local rules, which forbid particular nationals to comply with the order. If the neutral is inconvenienced by such a conflict of duty, the cause lies in the prescriptions of his own country's law, and does not involve any invalidity in the order.

Further, it is pointed out that, with the exception of France, the other Allied Powers did not find it necessary to resort to a similar act of retaliation, and it is contended that, on a comparison with the Order of 1915 also, the consequences involved in a disregard of the Order of 1917 were of unnecessary severity and were unjustifiable. The first point appears to be covered by the rule that on a question of policy-and the question whether the time and occasion have arisen for resort to a further exercise of the right of retaliation is essentially a question of policy-a court of prize ought to accept as sufficient proof the public declarations of the responsible executive, but in any case the special maritime position of his Majesty in relation to that of his Allies affords abundant ground for refusing to regard a different course pursued by those Allies as a reason for invalidating the Order of 1917. If the second point involves the contention that a belligerent must retaliate on his enemy, so far as neutrals are concerned, only on the terms of compensating them for inconvenience, if any is suffered, and of making it worth their while to comply with an order, which they do not find to be advantageous to their particular interests, it is inconsistent with the whole theory on which the right of retaliation is exercised. The right of retaliation is a right of the belligerent, not a concession by the neutral. It is enjoyed by law and not on sufferance; and doubly so when, as in the present case, the outrageous conduct of the enemy might have been treated as acts of war by all mankind.

Accordingly, the most material question in this case is the degree of risk to which the deviation required would subject a neutral vessel which sought to comply with the order. It is said, and with truth, that the German plan was by mine and by submarine to deny the North Sea to trade; that the danger, prospective and actual, which that plan involved must be deemed to have been real and

great, or else the justification of the order itself would fail; and that the deviation which the Leonora must have undertaken would have involved crossing and recrossing the area of peril. Their Lordships recall and apply what was said in the Stigstad (supra), that in estimating the burden of the retaliation account must be taken of the gravity of the original offence which provoked it, and that it is material to consider not only the burden which the neutral is called upon to bear, but the peril from which, at the price of that burden, it may be expected that belligerent retaliation will deliver him. It may be let us pray that it may be so-that an order of this severity may never be needed and, therefore, may never be justified again, for the right of retaliation is one to be sparingly exercised and to be strictly reviewed. Still, the facts must be faced. Can there be a doubt that the original provocation here was as grave as any recorded in history; that it menaced and outraged neutrals as well as belligerents; and that neutrals had no escape from the peril except by the successful and stringent employment of unusual measures or by an inglorious assent to the enslavement of their trade? Their Lordships have none.

On the evidence of attacks on vessels of all kinds and flags, hospital ships not excepted, which this record contains, it is plain that measures of retaliation and repression would be fully justified in the interest of the common good, even at the cost of very considerable risk and inconvenience to neutrals in particular cases. Such a conclusion having been established, their Lordships think that the burden of proof shifts, and that it was for the appellants to show, if they desired, that the risk and inconvenience were in fact excessive, for, the matter being one of degree, it is not reasonable to require that the Crown, having proved so much affirmatively, should further proceed to prove a negative and to show that the risk and inconvenience in any particular class of cases were not excessive. Much is made in the appellants' evidence of the fact that calling at a British port would have taken the Leonora across a German mine-field, but it is very noticeable that throughout the case the very numerous instances of losses by German action are cases of losses by the action of submarines and not by mines. The appellants filed a series of affidavits, stating in identical terms that in proceeding to a British port of call vessels would incur very great risk of attack by submarines, especially if unaccompanied by an armed escort. Of the possibility of obtain