1811, the constitutional validity of certain orders and their relation to the law of nations became the subject of notable arguments in prize proceedings with the result that the entire subject received an exhaustive discussion and resulted in expositions of international law which would seem for the present age at least to be final.18

The principal orders in council coming within our view of the subject are those of August 20, 1914, March 11, 1915, March 30, 1916, July 7, 1916, January 10, 1917, and February 16, 1917. The order of March 11, 1915, prohibits commercial access to any German port and provides that vessels sailing from a German port must discharge their goods in a British or allied port and that "Every merchant vessel which sailed from a port other than a German port after the 1st of March, 1915, having on board goods which are of enemy origin or are enemy property may be required to discharge such goods in a British or allied port. Goods so discharged in a British port shall be placed in the custody of the marshal of the Prize Court, and, if not requisitioned for the use of His Majesty, shall be detained or sold under the direction of the Prize Court. The proceeds of goods so sold shall be paid into court and dealt with in such manner as the court may in the circumstances deem to be just."

The order of July 7, 1916 provides:

a. The hostile destination required for the condemnation of contraband articles shall be presumed to exist, until the contrary is shown, if the goods are consigned to or for an enemy authority, or an agent of the enemy state, or to or for a person who, during the present hostilities, has forwarded contraband goods to an enemy authority, or an agent of the enemy state, or to or for a person in territory belonging to or occupied by the enemy, or if the goods are consigned "to order," or if the ship's papers do not show who is the real consignee of the goods.

b. The principle of continuous voyage or ultimate destination shall be applicable both in cases of contraband and of blockade.

c. A neutral vessel carrying contraband with papers indicating a neutral destination, which, notwithstanding the destination shown in the papers, proceeds to an enemy port, shall be liable to capture and condemnation if she is encountered before the end of her next voyage. d. A vessel carrying contraband shall be liable to capture and condemnation if the contraband, reckoned either by value, weight, volume, or freight forms more than half the cargo.

13 Cf. "Correspondence between His Majesty's Government and the United States Government Respecting the Rights of Belligerents," collected in the 1st supplement, Copies of Proclamations, Orders in Council and Documents relating to the European War. (Ottawa, 1915). The orders in council of 1914-1917 are published in the volumes of British emergency legislation and are conveniently collected by the Canadian Dominion Government in the series above named, as well as published by the British Government in the series of Statutory Rules and Orders.

The correspondence and orders are printed, from official texts furnished by the Department of State of the United States, in the SPECIAL SUPPLEMENTS to this JOURNAL issued in July, 1915, October, 1916, and October, 1917.

And it is hereby further ordered as follows:

1. Nothing herein shall be deemed to affect the Order in Council of the 11th of March, 1915, for restricting further the commerce of the enemy or any of His Majesty's proclamations declaring articles to be contraband of war during the present hostilities.

The order of January 10, 1917, announces retaliation as the basic principle justifying the compulsory discharge "in a British or Allied port of goods which were of enemy origin or of enemy destination or which were enemy property irrespective of the enemy country from or to which such goods were going or of the enemy country in which was domiciled the person whose property they were"; and on the 16th of February following an order was issued briefly summarizing the chief new courses to be observed:

1. A vessel which is encountered at sea on her way to or from a port in any neutral country affording means of access to the enemy territory without calling at a port in British or Allied territory shall, until the contrary is established, be deemed to be carrying goods with an enemy destination, or of enemy origin, and shall be brought in for examination, and, if necessary, for adjudication before the Prize Court.

2. Any vessel carrying goods with an enemy destination, or of enemy origin, shall be liable to capture and condemnation in respect of the carriage of such goods; provided that, in the case of any vessel which calls at an appointed British or Allied port for the examination of her cargo, no sentence of condemnation shall be pronounced in respect only of the carriage of goods of enemy origin or destination, and no such presumption as is laid down in Article 1 shall arise.

3. Goods which are found on the examination of any vessel to be goods of enemy origin or of enemy destination shall be liable to condemnation.

4. Nothing in this order shall be deemed to affect the liability of any vessel or goods to capture or condemnation independently of this order.

The leading cases in exposition of the principles of maritime action announced in these orders are those of the Zamora, determined by the Privy Council April 7, 1916, and the Leonora and other vessels, decided in the Probate, Divorce and Admiralty Division, April 15, 1918.

The Zamora1 was a Swedish steamship, seized April 8, 1915, on its way from New York to Stockholm, with a cargo of 400 tons of copper. The vessel was taken by a British cruiser to Kirkwall to be searched, and on April 19th condemnation of the ship and cargo was claimed on the ground that the cargo was as to more than one-half contraband of war and that both were in any event confiscable under the reprisals order of March 11, 1915, the ship having sailed from a port other than a German port after March 1 carrying a cargo with enemy destination or which was enemy property. The court ordered the release of the copper and its delivery to the Crown under Order XXIX, rule I, of the Prize Court Rules of 1914 as amended by order in 14 Text of decision printed in this JOURNAL, April, 1916 (Vol. 10), p. 422.

council of April 29, 1915. In the opinion of the presiding judge, the order could be made under inherent powers of the Prize Court without infringing the law of nations as well as under the powers conferred by orders in council. But the Privy Council thought that order XXIX, rule I, "construed as an imperative direction to the court, was not binding; and that as the judge had no satisfactory evidence before him that the copper was urgently required, the order must be set aside." The determination of the Lords of Appeal rests upon the consideration that "the Crown has no power by order in council to prescribe or alter the law which prize courts have to administer;" hence an order is to be regarded as a rule of administrative action only and not as an announcement of law in a tribunal expounding the law of nations. Moreover "the dictum of Lord Stowell in the case of the Fox (Edwards' Reports, 312) to the effect that the King in council possesses the legislative rights over a Prize Court analogous to those possessed by Parliament over the courts of common law" cannot be maintained.

In the case at bar the right to requisition exists, but there must be an ascertained basis for judicial action before such a right becomes exercisable. In the case of the Leonora the President of the Probate, Divorce and Admiralty Division, Sir Samuel Evans, held that "The Reprisals Order in Council of February 16th, 1917, which authorizes the capture and condemnation of vessels carrying cargoes to or from countries contiguous to Germany, if such vessels have not first called at a British or Allied port for examination, was, in the circumstances existing at the date of the Order, justified by the recognized principles of international law, and the consequential results to neutrals give them no right to complain or to claim compensation." This important decision comprises a valuable review of orders in council in their historical development 15 and constitutes a permanent landmark in legal science.

Principles, indeed, do not and cannot change, but while in themselves permanent, their applications must be recognized as capable of indefinite expansion as new world needs arise and imperiously demand adjustment amid new conditions. It is in the spirit of such conditions and needs that the orders in council of both periods at which we have glanced must be studied, and if rightly grasped, cannot but aid every genuine effort to promote the unfolding and growth of the law of nations in both its substantive and procedural aspects.

15 The decision in the case of the Leonora was affirmed by the Judicial Committee of the Privy Council on July 31, 1919. See text in this JOURNAL for October, 1919 (Vol. 13, p. 814).

APPENDIX

(1) AT THE COURT OF THE QUEEN'S PALACE, the 11th of November, 1807. Present, the King's most Excellent Majesty in council:

Whereas certain orders, establishing an unprecedented system of warfare against this kingdom, and aimed especially at the destruction of its commerce and resources, were, some time since, issued by the Government of France, by which "the British islands were declared to be in a state of blockade" thereby subjecting to capture and condemnation all vessels, with their cargoes, which should continue to trade with His Majesty's dominions:

And whereas, by the same order "all trading in English merchandise is prohibited, and every article of merchandise belonging to England, or coming from her colonies, or of her manufacture, is declared lawful prize."

And whereas the nations in alliance with France, and under her control, were required to give, and have given, and do give, effect to such orders: And whereas His Majesty's order of the 7th of January last has not answered the desired purpose, either of compelling the enemy to recall those orders, or of inducing neutral nations to interpose, with effect, to obtain their revocation, but, on the contrary, the same have been recently enforced with increased rigor:

And whereas His Majesty, under these circumstances finds himself compelled to take further measures for asserting and vindicating his just rights, and for supporting that maritime power which the exertions and valor of his people have, under the blessing of Providence, enabled him to establish and maintain; and that the maintenance of which is not more essential to the safety and prosperity of His Majesty's dominions, than it is to the protection of such states as still retain their independence, and to the general intercourse and happiness of mankind:

His Majesty is therefore pleased, by and with the advice of his privy council, to order, and it is hereby ordered, that all the ports and places of France and her allies, or of any other country at war with His Majesty, and all other ports or places in Europe, from which, although not at war with His Majesty, the British flag is excluded, and all ports or places in the colonies belonging to His Majesty's enemies, shall from henceforth, be subject to the same restrictions in point of trade and navigation, with the exceptions hereinafter mentioned, as if the same were actually blockaded by His Majesty's naval forces, in the most strict and rigorous manner. And it is hereby further ordered and declared, that all trade in articles which are of the produce or manufacture of the said countries or colonies, shall be deemed and considered to be unlawful; and that every vessel trading from or to the said countries or colonies, together with all goods and merchandise on board, and all articles of the produce or manufacture of the said countries or colonies, shall be captured and condemned as prize to the captors.

But although His Majesty would be fully justified, by the circumstances

and considerations above recited, in establishing such system of restrictions with respect to all the countries and colonies of his enemies, without exception or qualification, yet His Majesty being, nevertheless, desirous not to subject neutrals to any greater inconvenience than is absolutely inseparable from the carrying into effect His Majesty's just determination to counteract the designs of his enemies, and to retort upon his enemies themselves the consequences of their own violence and injustice; and being yet willing to hope that it may be possible (consistently with that object) still to allow neutrals the opportunity of furnishing themselves with colonial produce for their own consumption and supply, and even to leave open, for the present, such trade with His Majesty's enemies as shall be carried on directly with the ports of His Majesty's dominions, or of his allies, in the manner hereinafter mentioned:

His Majesty is, therefore, pleased further to order, and it is hereby ordered, that nothing herein contained shall extend to subject to capture or condemnation any vessel, or the cargo of any vessel, belonging to any country not declared by this order to be subjected to the restrictions incident to a state of blockade, which shall have cleared out with such cargo from one port or place of the country to which she belongs, either in Europe or America, or from some free port in His Majesty's colonies, under circumstances in which such trade, from such free ports, is permitted, direct to some port or place in the colonies of His Majesty's enemies, or from those colonies direct to the country to which such vessel belongs, or to some free port in His Majesty's colonies, in such cases, and such articles, as it may be lawful to import into such free port; nor to any vessel, or the cargo of any vessel, belonging to any country not at war with His Majesty, which shall have cleared out under such regulations as His Majesty may think fit to prescribe, and shall be proceeding direct from some port or place in this kingdom, or from Gibraltar, or Malta, or from any port belonging to His Majesty's allies, to the port specified in her clearance; nor to any vessel, or the cargo of any vessel, belonging to any country not at war with His Majesty, which shall be coming from any port or place in Europe which is declared by this order to be subject to the restrictions incident to a state of blockade, destined to some port or place in Europe belonging to His Majesty, and which shall be on her voyage direct thereto; but these instructions are not to be understood as exempting from capture or confiscation any vessel or goods which shall be liable thereto in respect of having entered or departed from any port or place actually blockaded by His Majesty's squadrons or ships of war, or for being enemy's property, or for any other cause than the contravention of this present order.

And the commanders of His Majesty's ships of war and privateers, and other vessels acting under His Majesty's commission, shall be, and are hereby, instructed to warn every vessel which shall have commenced her voyage prior to any notice of this order, and shall be destined to any port of