the sort. And so little did his Government rely on his decisions that they forthwith proceeded to pass a piece of emergency legislation empowering Prize Courts, at the demand of the Government, to effect such requisitions.1 Lord Lyons, the British Ambassador, at once protested. The U. S. Government referred the matter to the investigation of the Attorney-General (Bates). While not considering that the Act was unconstitutional, he thought it fortunate that it was not imperative. And he plainly judged it wise to abstain from putting it into force, for, he observes, "I am not aware of any settled doctrine of the Law of Nations to the effect that the belligerent nation whose cruiser has captured a vessel as prize of war, has the right, at its own pleasure and convenience, to appropriate the prize to its own use before condemnation." In the face of this, the original O. XXIX, r. 1, of the new (1914) Prize Court Rules went to the very limit of what was appropriate. "If in a cause for the condemnation of a ship"-pause to reflect that, in the language of the Rules, "ship" includes "goods "—" in respect of which no final decree has been made, it is made to appear on motion that the Lords of the Admiralty desire to requisition the 'ship,' and that there is no reason to believe that the ship' is entitled to be released "-the ship may be appraised and delivered to the Admiralty. Under this rule, as we saw last May, the copper laden on board the s.s. Antares was not so released to the Admiralty, as the Court could not say that there was no reason to believe that the goods were not entitled to be released to their owners. Consequently, the rule was re-drafted. On 30th Sept. and 28th Nov., 1915, the protection afforded by 1 Prize Act, 3rd March, 1863. 2 10 Opinions of Attorneys-General (U. S. A.), p. 519. the requisition having to be made on motion in Court was withdrawn, and it was allowed to be asked for by summons in chambers. A new rule of 29th April, 1915 (O. XXIX, r. 3), provided that whenever the Crown signifies a desire to have the goods, the judge "shall" release them to the Crown accordingly, after due appraisement. If read literally, this goes beyond the old U. S. Act of Congress, and bars the judge from the discretion which Attorney-General Bates plainly indicated he had better exercise, if international complications are to be avoided. It was, therefore, urged in The Zamora (June 14th and 21st, 1915) that the meaning of the new rule must be simply to enable the judge to hand over to the Crown property which is lawfully requisitioned in accordance with the custom of nations. Enemy property might be so requisitioned property of British subjects might be property concerned in British or Allied trade with the enemy might. Thus to read the rule would give it a reasonable and by no means a forced interpretation. To read it otherwise would be improperly to impute to His Majesty a design to violate the rights of neutrals-whose goods are not to be taken from them, on payment or not, without due trial. In The Minerva,1 Sir J. Mackintosh read "colonial trade" as meaning "unlawful colonial trade" in order to avoid giving Crown instructions a signification contrary to International law. Municipal Practice in Prize Courts. Sir S. Evans rejected this contention. The order of pre-emption was, in his view, pure machinery, like an order for sale. As such, it was-again in his Lordship's view-a matter entirely for municipal regulation, and one with which neutrals had no concern. He relied on the 1 3 Phill., I. L. analogy of sale, which he regarded as resting in the arbitrary discretion of the Court, and as applicable in many other cases besides that of perishable goods. As to this analogy of sale, it ought to be remembered that, although Story is careful to include other cases of equally pressing urgency along with that of the perishable nature of the goods, yet these other cases are clearly contemplated by him as being ejusdem generis with that. Sale is ordered in such cases because, if the goods were not sold, there would be little or nothing to litigate about: the substratum of the process would be gone. Natural law dictates the propriety of sale in such cases; it does not dictate the propriety of a sale for the convenience of the captor. Moreover, the analogy of sale fails, for a dissentient party to the order can buy the goods in and make what use he pleases of them. Effect of Orders in Council. Construing the order literally, the learned judge considered himself bound "fully and humbly" to follow Lord Stowell's course in The Fox, and to carry out its literal dictates, without regard to whether they were in accordance with International law or not. But The Fox has been severely criticised. Duer, the great American authority on Marine Insurance, says1: "The exercise of belligerent right, by its obstruction of a commerce otherwise lawful, frequently operates as a serious grievance; but the grievance is one to which neutral governments and their subjects are bound to submit. Still, the right is severe in its nature, and it is more especially in such cases that a Court of Admiralty is bound to ascertain that the rules of war have been strictly observed, and that the rights of war have. not been exceeded. It is bound to watch the exercise of a right, that in its most legitimate form is an oppressive restraint upon neutral commerce, with a peculiar jealousy, and should never 1 I, Marine Insurance, 644. permit its necessary evils to be aggravated by a lax indulgence of construction. I have stated these principles nearly in the language of Sir W. Scott-but it is painful to confess that, evidently sound and just as they are, they were not always remembered and followed by that eminent judge in his subsequent decisions. "I refer to the sanction that he gave to the celebrated Orders in Council of April, 1809, which he defended on the sole ground that they were retaliatory (The Fox). The principle that a belligerent power has a right to retaliate upon the enemy by following his example in trampling upon the rights of neutrals is, in its essence, irrational, immoral, and unjust." And every Continental authority has regarded it as irreconcilable with Stowell's magnificent language in the earlier case of The Maria, which we need not quote, as his firm assertion that Prize Courts are "their [the neutrals'] Courts as well as ours " is so well-known. At any rate, one would have expected that the Court would have looked anxiously for a construction of the rule which would have obviated the necessity of subjecting neutrals to a new and invidious exaction. What will be the position of our merchants, when neutral, if a belligerent can bring them in and take their cargoes at his own valuation? As to the contention that interlocutory procedure is a matter with which neutrals have no concern, it is sufficiently refuted by a reference to the Lee-Murray Memorandum of 1753.1 That is wholly concerned with procedure, avowedly as a matter in which neutrals have the closest interest; and its authority, as expressive of the practice of every maritime nation, has constantly been received both here and in America. What is a "Branch"? The effect of the Orders in Council regarding trade with the enemy is to exempt from penal consequences certain 1 See Prize Law and Continuous Voyage. London (Stevens & Haynes), 1915. transactions, one class of which is transactions with particular "branches." As a "branch" is a conception unknown to the law, this phraseology is somewhat unfortunate. It is uncertain whether any and every agency is a "branch," or whether it must have a certain measure of independence -and, if so, how much. It is also, perhaps, uncertain whether the permission to trade with such branches does more than exempt the trader from penal consequences; it may not confer on the enemy a right of suit in respect of such transactions. On the assumption that it did (in harmony with the suggestion of Lord Skerrington in Orenstein1), the case of Wolf & Sons v. Orr, Parker & Co. Ltd. (29th Apr., 1915) was decided on appeal from Lawrence, J. The partners in the plaintiff firm were three domiciled Wurtemburg subjects named Wolf, carrying on business in Stuttgardt. They had what they called a "branch" at Manchester-they are cotton-waste dealers—and they brought the action against Manchester spinners to recover damages under a contract of sale. The Court of Appeal avoided a decision on the thorny question of defining a "branch" by the somewhat unexpected determination that the Proclamations were not in point. No "transactions" had taken place with the branch since the war. Therefore, there was nothing for the Proclamations to operate on. In short, the Proclamations, though they tolerate new "transactions," do not uphold existing "transactions"-and it is very doubtful, therefore, whether new transactions are valid which assume pre-war transactions as their substratum-e. g., payments under prebellum contracts. Commercial Impossibility. In Associated Portland Cement Manufacturers (1900) Ltd. v. W. Cory & Son Ltd.,2 Rowlett, J., held that a commercial contract, in spite of the Coronation Cases, was not dissolved 1 [1914], 2 S. L. T. 293. 2 14th May, 1915. |