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§ 329.


des auteurs comme directement contraires au droit des gens et comme de simples abus. Néanmoins, le juge anglais fait semblant de leur attribuer une grande force convaincante.]

I now leave the first of the three main questions, with the expression of my view, that, if it is permissible in the circumstances of the present war, and in view of the enemy's conduct, to allow by way of retahation any extension of the powers of a belligerent at sea for the restriction of the commerce of the enemy, it does not appear to me that the Order in Council proceeds upon any principles inconsistent with or essentially contrary to those already embodied in the law of nations. —

The second and third general questions, which can be taken together, were: Are there any précédents or décisions, or any authority apart from actual décision, or precedent, in support of or against the validity of this Order ?

There is no décision against it. It was contended that no authority in support of it could be adduced from any of the early writers on international law. In my opinion, no help is given on the subject by Grotius, Bynkershoek, Pufendorf, Vattel, or any of the great jurists of early days. I accordingly refrain from references to them .... I leave also aside the various decrees issued by States at war, particularly in the sixteenth and seventeenth centuries, directed to prevent any trade between their enemies and any neutrals, and the treaties made between States from time to time with the same object, because they do not appear to exist in the deterrnination of the questions now in dispute.

The précédents relied upon in favour of the present Order are the Orders in Council of January 7 and November n, 1807, and April 26, 1809, promulgated during the Napoleonic War in answer to Napoleon's celebrated Berlin and Müan Decrees of November at, 1806, and December 17, 1807 ; reliance is also placed on some décisions relating to those Orders.

The conditions prevailing at sea in those years as between this country and France, and the other territories controlled by or under the influence of Napoleon, were peculiarly like those which now exist between this country and its enemies, with the exception - the serious exception — of the submarine weapons used in this war by the Central Powers. The trading vessels of France had been swept of f the open seas, as the trading vessels of Germany and the enemy countries have been during the present war. In 1805 it was stated, and truly stated, that, with the exception of a few coasters, „not a single merchant ship under a flag inimical to Great Britain now crosses the Equator, or traverses the Atlantic Ocean.

Similarly in 1917 it might be truly said that not a single merchant

ship under a German or other enemy flag saüed on any open sea .... [suit un exposé de la portée des „Orders in Councü" de 1807—1809]

The validity in law and the public pohcy of the Order in Council were muchdebatedinParh^mentanddiscussedbyconmierdalauthoriti . . . |smvent quelques extraits de discours prononcés en 1808 dans le Parlement britannique par Sir William Grant, Sir John Nichoü, Sir Wüham