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proper to say that the juncture reached in the case of the Sussex was an inevitable consequence of the ground taken by the Imperial German Government, and was as certain at the beginning of its practice as it became in the end. The only fundamental question throughout the entire prolonged negotiations on that subject was just when the ultimatum would have to be delivered. From the first it was evident either that the German policy must give way or that international law would continue to be disregarded and American lives imperilled.
The attitude taken in reply to the American demands completely establishes this assertion. While unwilling to admit in explicit terms that the sinking of noncombatant ships without warning and without making provision for the safety of noncombatants on such ships is illegal, the Imperial German Government practically admits that it is so. The practice is defended in the note of May 4th, in reply to the American note of April 18th, not as a legal form of warfare but as a form of reprisal. The German Government has never asserted its legal right to destroy the lives of noncombatants at sea. It knows that it has no such right. In the note just referred to it is stated: “The German submarine forces have had, in fact, orders to conduct submarine warfare in accord with the general principles of visit and search and destruction of merchant vessels as recognized by international law." But this, it is explained, was never promised and never intended to apply, except outside “the war zone surrounding Great Britain.” Within that zone, it is contended, "in self-defence against the illegal conduct of British warfare, while fighting a bitter struggle for her national existence, Germany had to resort to the hard but effective weapon of submarine warfare.” It is necessity, not law, it is alleged, that has inspired her conduct. “As the German Government has repeatedly declared," says the note of May 4th, "it cannot dispense with the use of the submarine weapon in the conduct of warfare against enemy trade.” The situation thus created was, in effect, the complete abolition of international law in an important area of travel and commerce as far as the rights of noncombatants, including neutrals, were concerned. For them it ceased to afford the slightest means of protection against sudden death.
It is hardly within the scope of these comments to express opinions regarding the question of reprisals, either as to who was the belligerent responsible for resorting to them or the degree of equity with which they have been carried out. But one thing is clear. Whatever the merits of this question may be, there is no just ground for the position
taken by the Imperial German Government, that it may resort to reprisals without regard to their effect upon the lives of the citizens of neutral Powers with which it desires to be at peace. There are other necessities besides those of a single Power, even though fighting for its existence; and not to respect them is not only an illegal, it is an unfriendly act.
The Imperial German Government fully comprehends this, and declares its willingness to make a "further concession;" that is, a nearer approach to the recognized requirements of international law. "In accordance with the general principles of visit and search and destruction of merchant vessels recognized by international law,” runs this new concession, "such vessels, both within and without the area declared as a naval war zone, shall not be sunk without warning and without saving human lives, unless these ships attempt to escape or offer resistance.”
It is somewhat surprising, after the faith imposed in the formal pledge previously given, that “liners will not be sunk by our submarines without warning and without safety of the lives of noncombatants, provided that the liners do not try to escape or offer resistance," to find the new formula described as a “further concession.” In the words last quoted no exception is made of a “war zone." This pledge is as absolute and as unrestricted as to locality as the later one. In truth, the new assurance is less satisfactory than the old one, for it not only justifies Germany's course by a complaint that the Government of the United States has not used its power to restrain the conduct of Great Britain, that it has not shown sympathy with Germany's extremity, and that it has even supplied her enemies with all kinds of war material; but reserves “complete liberty of decision," in case steps proposed to be taken by the Government of the United States should not attain the result of removing the occasion for Germany's reprisals. In brief, “It will be understood," runs the note, "that the appeal made by the Government of the United States to the sentiments of humanity and to the principles of international law can not, under the circumstances, meet with the same hearty response from the German people which such an appeal is otherwise always certain to find here."
How far the controversy regarding the Lusitania and the Sussex really is from a definitive settlement is evident from the reply to the last German note on this subject by the American Secretary of State. “The Government of the United States," he says, “notifies the Imperial
Government that it can not for a moment entertain, much less discuss, a suggestion that respect by German naval authorities for the rights of citizens of the United States upon the high seas should in any way or in the slightest degree be made contingent upon the conduct of any other Government affecting the rights of neutrals and noncombatants. Responsibility in such matters is single, not joint; absolute, not relative."
So far, therefore, as the correspondence is concerned, the attitude of both Governments remains essentially unchanged, and none of the questions involved has received a final solution.
DAVID JAYNE HILL.
BRITISH ORDERS IN COUNCIL AND INTERNATIONAL LAW
From time to time the press informs the public that on such and such a date a British Order in Council has been issued affecting the rights of neutrals, and the question is debated whether or not the Order in Council, contrary to international law, is binding upon neutrals and whether, indeed, the Order contrary to international law is binding upon prize courts in which the question of capture of neutral property is to be contested. It is therefore of interest to consider the nature of an Order in Council, its relation to an act of Parliament, its effect upon the rights of neutrals, and its authority in British prize courts.
Sir William Anson says, in The Law and Custom of the Constitution, that "an Order in Council is practically a resolution passed by the King in Council, communicated by publication or otherwise to those whom it may concern.” After this brief definition, the learned author gives
' the following as an example of the wording of such an order: At the Court at the 1st day of June, 1907.
Present, The King's most excellent Majesty in Council. His Majesty, by and with the advice of his Privy Council, doth order and it is hereby ordered. After contrasting the Cabinet and Privy Council, of which latter body the Cabinet are members, the same learned author says:
The Cabinet considers and determines how the King's Government may best be carried on in all its important departments; the Privy Council meets to carry into
1 Anson's Law and Custom of the Constitution, Vol. II, 3d ed., Part 1, p. 50.
effect advice given to the King by the Cabinet or by a Minister, or to discharge duties cast upon it by custom or statute.
He concludes this part of the subject with the statement that "the Privy Council is essentially an executive, the Cabinet a deliberative body. The policy settled in the Cabinet is carried out by Orders in Council, or by action taken in the various departments of government."'2
If, as Sir William Anson says, the Privy Council is essentially an executive body, it follows that the King in Council issues orders of an executive nature. He may do so in each of two cases, the first of which is in accordance with custom and to give effect to the prerogatives of the Crown; the second is in pursuance of an act of Parliament, vesting the King in Council with authority to do a specific act. In the first case the jurisdiction of the King in Council is limited, as it could not be successfully claimed to-day that the King in Council, even though the members of the Cabinet be present and should so advise, could legislate, as Parliament is the legislative body of Great Britain. In the second case, the King in Council acts pursuant to parliamentary and statutory authority, and to the extent of the statutory authority the Orders have the force of law.
They are, however, only in form Orders in Council; in fact they are acts of Parliament, as they are authorized by Parliament and therefore, if within the statute, are equivalent to a statute. Mr. Jenks, in his Short History of English Law, thus states the reason and the effect of the Order in Council made in pursuance of an act of Parliament:
Owing partly to the necessity for leaving the application of discretionary legislation to the Executive, but still more to the impossibility of discussing details in an overworked Parliament, it has become increasingly common for Parliament to delegate, either to the Crown (i. e., the Executive as a whole) or even to the Minister at the head of the department charged with carrying out the Act, the power of making Rules or Orders under it. These Rules and Orders are, in effect, so long as they keep within the authority prescribed by their respective Acts, themselves Parliamentary statutes, and are enforced by the Courts as such. It is, of course, in theory, possible to raise against any of them the plea of ultra vires; but they are usually drawn with sufficient skill to render such an attack hopeless.
The difference between Orders made by the Crown in Council and those made by a single Minister, is more apparent than real. For, in the former case, as in the latter, the form and
? Anson's Law and Custom of the Constitution, Vol. II, Part 1, p. 98.
contents are virtually settled by the departments concerned; the approval by the Privy Council is a pure formality.3
But whether the Order in Council be in virtue of a custom or of the King's prerogative—which cannot, however, be contrary to a statute of Parliament-or whether it be in pursuance of parliamentary authority and is thus to be considered as an aet of Parliament, it would seem to be too clear for argument that an Order in Council, if it be considered a statute, is municipal; that if it be legislative it is domestic legislation, and while it may affect persons within British jurisdiction it cannot properly be extended, any more than a statute can properly be extended, beyond the jurisdiction of Great Britain so as to affect the rights of foreign countries, their subjects or citizens.
For this statement, it does not seem necessary to cite authority, and yet, in view of the fact that Orders in Council have been issued during the wars of the French Revolution and the Empire which seriously affected the rights of neutrals beyond British jurisdiction, and in view of the further fact that some of the Orders in Council issued since the outbreak of the great war affect neutral rights, it seems advisable to quote an authority distinctly negativing the claim of any country to legislate for other than its own subjects or citizens, which claim, if allowed, would violate the perfect equality of states upon which the society of nations is predicated and without which it could not exist. In the case of The Antelope (10 Wheaton 66, 122), decided in 1825, Chief Justice Marshall, speaking for the Supreme Court of the United States, said:
No principle of general law is more universally acknowledged, than the perfect equality of nations. Russia and Geneva have equal rights. It results from this equality, that no one can rightfully impose a rule on another. Each legislates for itself, but its legislation can operate on itself alone.
A few years before, Sir William Scott so held in the case of The Louis (2 Dodson, pp. 210, 243–44), which it is important to quote in this connection in order that it may appear clear, beyond the possibility of misconception, that the courts of Great Britain as well as the courts of the United States recognize the equality and independence of states and the right of states as such freely to navigate the ocean without let or hindrance by legal statute, whether that statute be termed an Order
3 Jenks, A Short History of English Law, 1912, p. 188.