LORD SUMNER pointed out that ships were merely required to go along a lane.

SIR JOHN SIMON replied that what they were required to do was in the highest degree dangerous, and thus the only terms on which a neutral could escape condemnation were terms of extreme severity. LORD WRENBURY said that it would be possible to get to a British port in safety by passing along the lane.

SIR JOHN SIMON said that he thought not. The only safe way was for the ship to put herself under the protection of a patrol boat. LORD SUMNER. The dangers to which vessels were exposed in crossing the North Sea arose from the illegal acts of the enemy, and therefore the neutral must not say that the retaliatory order, which followed from the illegal acts of the enemy, was directed against the neutral.

SIR JOHN SIMON.-The reasonable thing would have been to indicate to the neutral vessel the course which she could safely take.

LORD SUMNER asked whether counsel said that because the course to the port was dangerous, the right of search ceased.

SIR JOHN SIMON replied that the right of search should not entail upon the vessel additional risks.

LORD SUMNER said that the wrongful acts of the enemy did not take away the undoubted right of search.

SIR JOHN SIMON.-The right was to visit and search, but not to compel a vessel to go to be searched.

LORD SUMNER said there was no order to go and be searched. The order merely said what the Navy would do if a vessel were encountered at sea with a cargo of enemy origin, and added, for the protection of the vessel, that, if she went to a British port, then there would be no condemnation.

SIR JOHN SIMON, continuing, said that, after the Leonora had been condemned, and while she was in the service of the British, she was torpedoed and sunk by the enemy. The physical danger and commercial risks were elements which must be taken into consideration when judging of the reasonableness of the order. There was no failure on the part of the Leonora to fulfil the order, because there was no appointed port at which she was to call.

The goods on board were not of enemy origin. The coal was Belgian coal, and was bought from Belgian colliery owners. The Germans at the time were only in temporary occupation of Belgium, and had never claimed to exercise sovereignty over it; they had not annexed it; indeed, they most deliberately disclaimed any idea of annexation. One could not properly describe the coal as of enemy origin unless one showed what could not be shown here, either that it was coal which came from Germany or belonged to Germans, or that the natural meaning of the words "enemy origin" had been extended

so as to cover occupied territory. Goods which came from occupied territory could not be of enemy origin.

MR. LESLIE SCOTT, on the part of the owners of the cargo, contended that "enemy origin" in the order in council meant enemy country, and therefore the coal from Belgian collieries could not be condemned. The right of retaliation was limited by the rights of neutrals. Supposing no question of retaliation had arisen at all, to call upon all neutral vessels to go out of their voyage and come to this country to be searched would be an exercise of sovereignty over the subjects of other states for which there was no justification in international law. If, apart from retaliation, there was no right to call upon all neutral vessels to come to this country, then there was no authority for saying that by way of retaliation that could be done, and if this were the effect of the order it was going far beyond any legal right which could possibly be read into the doctrine of retaliation.

SIR ARTHUR CHANNELL.-The Germans say, "Down you go," but we say, "In you come.

LORD SUMNER asked whether counsel agreed that it would be right if a cruiser encountered a vessel at sea to order her to come in.

MR. SCOTT replied that he was prepared to concede that when a vessel had been visited the cruiser might ask her to come into port for an effective search.

SIR ARTHUR CHANNELL.-If vessels never were encountered at sea, could any conceivable harm be done by requiring them to come in to be searched? If you don't catch them you cannot enforce it.

MR. SCOTT said that as to the right of visit and search he would argue that a request to a vessel to come in to be searched, if there was justifiable occasion for search, was not illegal. He conceded that that would be justifiable if there were reasonable grounds for suspicion, provided that the ship was guided across the minefield in safety.

LORD SUMNER.-Provided that she was convoyed in safety? MR. SCOTT.-Yes. But in this case the vessel was brought in because they were trying to enforce this order against her, and not for any other reason.

LORD SUMNER said that courts of prize endeavored to find a compromise between the right of retaliation and the claim of neutrals not to be the victims of retaliation, and that compromise, however unsatisfactory, was at least better than war.

MR. SCOTT said that there were certain limits to belligerent and neutral rights which were always recognized, and the function of prize courts was to find out what were the generally recognized limits of those rights. There was no authority for the proposition that the belligerent in exercising his right of retaliation could alter the legal rights of neutrals. The belligerent, as an executive act, might interfere with the rights of neutrals, but there was no authority for taking

the neutral's property without compensation. There was no principle of retaliation which could cover an Order in Council condemning a neutral ship and cargo. The right of retaliation was based on belligerent necessity, and when neutral goods were seized they must either be restored or paid for as the French provided by their order. LORD SUMNER said that merely to seize goods and then restore them would be a very ineffective way of dealing with the difficulty aimed at, as the goods would then reach the destination originally intended.

MR. SCOTT replied that for all practical purposes it was found as in the case of the French order, to be quite sufficient to let neutrals know that any goods of enemy origin or destination would be stopped in their voyage.

The SOLICITOR-GENERAL was proceeding to argue the case for the respondent, when LORD SUMNER said that it had been contended that the interference imposed on neutral rights was illegitimate in kind. Their Lordships did not think that the Solicitor-General need trouble to deal with that, nor need they trouble him to discuss the Stigstad case (supra) in the sense to which that case had been sought to be reduced. They thought that that case bound them to the view that neutrals had not an indefeasible right to trade without any restriction, and that retaliation and blockade were illustrations of a common principle as therein stated. On the question whether there had been a greater degree of interference with the rights of neutrals than was reasonable, their Lordships wished to hear him and also on the question of enemy origin.

The SOLICITOR-GENERAL contended on the question of enemy origin that the coal was under German control. The German control was not merely control of output, but it extended also to the selection of the customer in Sweden.

LORD PARMOOR.-Was not the whole transaction in the nature of an ordinary controlled transaction in war time?

The SOLICITOR-GENERAL replied that he thought it went far beyond that. No control that we knew of extended to another country. In support of his contention that the coal was of enemy origin he pointed out that at the time Belgium was in the military occupation of Germany, who used the country for the military objects of the war. For the purpose of the Order in Council Belgium was at the time an enemy country.

It was important to remember the circumstances when the second. retaliatory order was promulgated. At that time nearly all vessels called by agreement at our ports for the examination of their cargoes. There were a certain number which tried to avoid doing so, and these had prize crews put on board and were brought in.

LORD PARMOOR asked what was the meaning of the words in the order, "appointed British or Allied port."

The

The SOLICITOR-GENERAL replied that two things were being done -either by agreement or by means of capture. We were insisting on an examination in English ports. Directions were constantly being issued by the Admiralty to give indications to vessels what would be a safe course. The order said to neutrals: "If you will ascertain what port is open at the time then you can come in.” SOLICITOR-GENERAL argued that there was no ground for the contention that the order was inoperative because no port was appointed by it. It would be absurd to announce that any particular port was definitely appointed, because under the constantly changing conditions there was no port that could be open for more than 48 hours at a time. If vessels intended to call at a port they were expected to find out what port was open, and it would have been folly on the part of neutrals to ask for a definitely appointed port.

LORD PARMOOR.-That means that the neutral had to ascertain what was the port.

The SOLICITOR-GENERAL.-The other side say that is a high-handed action on the part of the Government, but it is nothing of the sort. We simply said, "For the further safety of neutrals there is a port appointed if they will ascertain which it is," and it is not right to treat that as high-handed conduct on the part of the Government.

LORD PARMOOR asked what was the method by which the captain of a vessel could ascertain the port.

The SOLICITOR-GENERAL replied that the Admiralty control was so great that if the vessel had passed out of her port any ship could have told her what was the port of call and the safe course.

LORD SUMNER said that if a vessel started in the direction of the most convenient port, and then inquired what was the appointed port, the inconvenience would consist merely in the deviation from her ordinary course, and that would not be an excessive interference with the rights of the neutral. The order did not say, "a previously appointed port," but a "port that is appointed."

The SOLICITOR-GENERAL said that the British cruisers were everywhere and ready to give all the information that was needed. As soon as one established the proposition that it was not excessive retaliation to declare the seizure and, in certain events, the condemnation of ships and cargoes, the proviso as to calling at a British or Allied port did not raise any difficulty. If he showed that the order was justified, then it was unnecessary to argue as to the effectiveness of the proviso. In the Stigstad case (supra) the Board said:—

.. 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.

The necessity for the order was shown by the number of neutral ships torpedoed by the Germans, and consequently it was easy to settle the point whether the reprisal was commensurate with the prior wrong done by the enemy. The neutral had no inherent right to continue trading without interference, and could not come and say that the order was bad because it put too great a burden upon him. MR. GREER, K. C., followed.

SIR ERLE RICHARDS, K. C., in replying on behalf of the appellants, said that "enemy origin" meant goods originating in Germany. The origin of coal was the mine from which it came. Enemy origin was the country from which the goods came. In this case the coal originated in Belgian collieries and was therefore, he submitted, of Belgian origin. Even though Germans controlled the output, that did not make the coal of enemy origin.

LORD SUMNER, in delivering their Lordships' considered judgment, said: The Leonora, a Dutch steamship bound from Rotterdam to Stockholm direct, was stopped on August 16, 1917, by his Majesty's torpedo-boat F 77, outside territorial waters shortly after passing Ymuiden. She was taken into Harwich. Her cargo of coal, which was neutral-owned, was the produce of collieries in Belgium. It was not intended that she should call at any British or Allied port, nor had any application been made on her behalf for the appointment of a British port for the examination of her cargo. Both ship and cargo were condemned, pursuant to the Order in Council dated February 16, 1917, and both the shipowners and the cargo owners appeal.

Their Lordships are satisfied that the cargo was "of enemy origin" within the meaning of paragraphs 2 and 3 of that order. The term had been used in the order of March 11, 1915, paragraph 4, and, owing to doubts about the effect of the word "enemy" therein, a further order was made on January 10, 1917, which applied the term "enemy origin," as used in that paragraph, to goods "originating in any enemy country." In the present case the question is one of the interpretation of the third order, that of February 16, 1917, which, beyond saying that it is supplemental to the orders mentioned above, makes no further express reference to them, but from the recital as to the recent proceedings of the German Government it is plain that the order of 1917 dealt with a wider mischief and was intended to have a wider scope than the previous order. It is therefore necessary to have regard to the system of exploitation then in force in Belgium for the advancement of German interests to appreciate the full effect.