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assertion of unlimited belligerent rights over neutral commerce within the whole European area, and an almost unqualified denial of the sovereign rights of the nations then at peace. "A nation's sovereignty over its own ships and citizens under its own flag on the high seas," unlimited in time of peace, was said by the Secretary of State to suffer no diminution in time of war, except in so far as the practice and consent of civilized nations had limited it by the recognition of certain clearly determined rights, which it was conceded that a belligerent might exercise, such as the rights of visit and search, and capture, and from this position the United States has never receded. The novelty of the practices of the Allies which have been described will appear very readily if it be attempted to bring them within the established rights of belligerents at international law with respect to the appropriation of neutral goods.

Many seizures by the Allies were made without any reasonable ground for a presumption that the property taken was of an unneutral character. The seizures cannot be said to have been made in the exercise of the old and more or less obsolete right of angary (jus angariae) which has never been held to apply to neutral shipping except when the vessels appropriated by a belligerent to its uses were in the territorial waters of the belligerent at the time they were impressed. Even according to those authorities which hold that the right of angary still exists as a belligerent right, the neutral property that is liable to seizure thereunder, either for use or destruction, must be temporarily at least within the territory of one of the belligerents, and the use or destruction thereof must be impelled by necessity.

In 1863 an Act of Congress provided that the Secretary of the Navy and the Secretary of War might requisition any captured neutral vessel, arms, or munitions of war or other material for the use of the Government, before adjudication by a prize court, or afterwards. Great Britain protested against the provisions of this act at the time it was passed, and the Attorney General of the United States held that there was no warrant for it in international law. In The Zamora, the Judiciary Committee of the Privy Council of Great Britain also condemned the act of 1863, and held that the right to requisition neutral ships and their cargoes only exists when they have been captured and brought into a prize court for adjudication, and when the property to be taken is urgently required for use in connection with the defense of the realm, the prosecution of the war or other matters involving national security. Furthermore, it was expressly declared that it was for the court, and not the executive of the belligerent state to decide whether the right can be lawfully exercised in a particular case, and that in the absence of a real or bona fide question in prize no application for the requisition of neutral goods before condemnation would be entertained by the court else seizures known to be unwarrantable by law and, therefore, not captures at all, would be encouraged as a means by which a belligerent might obtain useful property.

By reason of the fact that the novel practices described, and many others, $ 4 Lloyd's Prize Cases, 62 (1916).

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were adopted by the belligerents during the late war, one often hears it said by members of the legal profession as well as by laymen that today there is no international law. If this statement be analyzed it will be seen to be about the equivalent of a statement that because certain elements of a frontier population invariably are able during the early period of settlement to run things pretty much their own way in the absence of representatives of the law in sufficient force to control them, there is no municipal law. But, after the centuries of toil and suffering which the ever-enlightening mind of mankind has devoted to the establishment of order, are we to admit that whenever, by reason of local conditions it becomes possible and advantageous to ignore the law as it has existed, we may do so with impunity?

The question answers itself. But while it is absurd to contend that violations of law do away with the law, whether a law will continue to be enforced is another question. As a general proposition it may be stated that no law that is not based upon reason will long continue to be respected, and when not held in respect its enforcement or attempted enforcement will lead to its repeal.

The situation today is that the law is well established but it is being ignored, and in its present form will probably continue to be ignored.

Although for political reasons full reparation may be made for every violation of the law of which England and France were guilty during the late war, in view of their experiences, and especially those of Great Britain, it is not likely that they will ever again observe the old rules. This being so, it is a matter of grave concern to amend the existing law in such way as to render the same acceptable to all the powers who must be relied upon to enforce the law of nations. Else in fact there will be no international law worthy of the name. Nothing is more essential to the sanctity of any code of law than that dead letters be removed from the statute book. If it be that merchant vessels cannot be searched effectively on the high seas let the fact be admitted and the law be amended accordingly.

The right of visit and search as it now exists is in no sense exercisable in diminishment of the sovereignty of neutral states whose merchant vessels on the high seas are subject to visit, search and capture, but is derived from the sovereignty of the belligerent state exercising the right. In other words, while the right of exclusive jurisdiction over its merchant vessels on the high seas and the persons thereon, is a sovereign right in a neutral state, it is also a sovereign right in a belligerent state to determine whether a merchant vessel on the high seas is within the exclusive jurisdiction of the neutral state whose protection is claimed by the vessel to be searched. Thus, it is seen that in submitting to the visitation and search of its merchant vessels on the high seas a neutral cannot be said to yield anything out of its own sovereignty to the belligerent. Why then, if conditions have so changed as to make it impracticable to exercise these rights in the old way, should they not be exercised in some practical new way?

The exclusive jurisdiction of a neutral state extends to its merchant vessels on the high seas as well as to the land and waters within its territorial limits. Heretofore search has only been lawful on the high seas, or in one part of the jurisdiction of a neutral state. If when made on the high seas it was not in derogation of the neutral's right of exclusive jurisdiction, why should the search be deemed to be in derogation of the neutral's jurisdiction if made within the other part of the neutral's jurisdiction?

Surely, the prejudice of narrow nationalism should not be permitted to reduce the code of international law to a state of obsolescence. If it can be revivified by amendment so as to regain for it the universal obedience of the sisterhood of nations it should be amended. Nothing is more fatal to the spirit of respect for law than the tolerated abuse of law.

Would not the inspection of neutral vessels at the port of departure by agents of the belligerents through whose cordons the vessels were to pass, and the granting to them upon reasonable conditions of belligerent licenses, accomplish every object which search on the high seas may accomplish? Undoubtedly such a system would save all parties great annoyance and much expense in delays in transit. It would be no more subversive of neutral rights and dignity than the boarding and search of neutral ships on the high seasless so than the herding and detention of them in belligerent ports.

In addition there might be required of vessels destined to certain prescribed neutral ports certificates of innocent character from the state whose flag they fly. The necessary examination for the granting of a belligerent license could be made in conjunction with that upon which the certificate of innocence would be based, so that the exercise of the belligerent right of search would be thoroughly regulated and controlled by the neutral state. This, too, would tend to relieve visit and search of its present vexatious characteristics, and to overcome the lingering prejudices against the exercise of the right.

Under such a system unlicensed and uncertified neutral vessels, destined to proscribed ports, would by reason of the lack of the required credentials be subject to capture, and no licensed and certified vessel proceeding to those ports would be subject to visit and search, or capture on the high seas, unless its conduct after leaving port were of such a character as to justify the revocation of the belligerent license. The question of what neutral ports might be proscribed would be one for diplomatic adjustment between the neutral and belligerent states, and would thus be done away with as a question of dispute between neutral nationals and belligerent states in the prize courts of the latter.

As to the appropriation of neutral goods seized on the high seas the law does not require to be amended. If an unlicensed and uncertified vessel destined to a proscribed port were seized, the seizure would be a capture which is presently lawful, and the vessel and its cargo would merely be liable to condemnation as prize by the adjudication of a belligerent prize court. On the other hand, if a neutral vessel not destined to a proscribed port, or a duly

licensed and certified vessel were detained for search, or seized, or interfered with in any way except for the purpose of examining its credentials, the interference would be an out and out invasion of neutral rights for which the belligerent offender would be answerable at international law.

While the law as to the unwarranted seizure of neutral property by a belligerent is well settled, the theory of liability upon which damages are assessed therefor requires to be revised.

At common law the same act may constitute a crime against the state and a tort. For the first the state exacts a penalty. For the second the persons whose private rights have been invaded may recover damages. And so, the same act might constitute a dual offense at international law. For instance, the wrongful seizure of neutral property by a belligerent might be held to constitute a public international offense, analogous to a crime, for which satisfaction of the neutral sovereignty would be due, and an international tort for which the belligerent offender would be liable in damages as a tort-feasor to the private owners of the property.

It is only the form-the name of this proposal that is novel. The underlying principle has already been adopted by several of the leading belligerents in the late war. It was adopted by Great Britain in the celebrated case of The Wilhelmina, and by the United States in the case of The Rijndam; in both of these cases neutral property that had not been condemned was appropriated by a belligerent. In both compensation was based upon the principle of full indemnification, which is the same principle from which is derived the measure of damages in tort. In both the belligerent made full satisfaction to the state who claimed the allegiance of the owners of the property seized.

It may be difficult to work out the details of the necessary amendments to the laws of nations as they exist today, but it is a task by no means too difficult for the enlightened international mind if it be recalled and frankly admitted that only the law of change is changeless.

ORDERS IN COUNCIL AND THE LAW OF THE SEA

BY GORDON E. SHERMAN

Lately Assistant Professor of International Law, Yale University

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In a maritime war the formal announcements of national executives concerning principles of intended action possess an interest frequently transcending the occasion calling them into being since they may originate important modifications in the imprescriptible system of the law of nations and thus become touched with that universality of which the sea itself offers so constant and striking a suggestion. In the conflicts of the French revolution and the First Empire, as well as in the great war of our own day, we find produced on the part of the opposing governments a series of declarations (orders in council, arrêts) which have a permanent interest for the student of international law since they practically extend over the whole field of naval warfare and reach every aspect of belligerent action upon the high seas, while they may also become a cause oftentimes of strained relations between belligerent and neutral Powers arising through widely varying views touching the application of prize law to marine captures. The modern law of nations recognized, moreover, essential divergences between principles which should govern the treatment of property falling into belligerent power upon land or those controlling its seizure on the ocean or in belligerent territorial waters, and the subject may easily become highly complicated when a severe measure of repression, aimed in the first instance at an enemy, strikes a neutral and subjects persons or goods not primarily or properly identified with the struggle to every peril of combatant fate.1

Accordingly, when on February 1, 1793, war broke out between France and England, the ocean became at once a conspicuous theatre of hostilities. The destruction of enemy commerce furnished in its legal aspects a far-reaching and inexhaustible topic of discussion touching maritime rights or duties as coming within the scope of the jus gentium and continued to supply material for acrimonious or actually war-making difference during twenty years and until peace had suspended for a time at least the agitations of attempted world conquest. Scarcely, however, had the contest between British and French arms fairly begun when the merchants of leading neutrals, -conspicuously Holland and the United States,-determined upon the practical exploitation of opportunities likely to be offered by a war in which

1 See Appendix, paragraph 1, page 410.

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