The British Prize Court disclaimed any intention of following this decision, which it characterized as "a shocking example." Nevertheless, there seems to be very little if any substantial difference distinguishing the two decisions, and it is difficult to perceive wherein the court has not followed this "shocking example" in spite of the best intentions to the contrary.

In addition to the objections above pointed out against the international authority of the Orders-in-Council cited in the decision of the Prize Court, the further objection was urged that these Orders-inCouncil were of doubtful authority even as municipal law.

While the settlement negotiations were in progress in the Packers cases, the question of the authority and legal effect generally of Ordersin-Council in relation to prize court proceedings came on for argument on appeal before the Privy Council in the Zamora case, and the decision of that court, which was rendered contemporaneously with the close of these negotiations, is of particular interest for that reason.

In the Zamora case it appeared that specific powers had been conferred upon the King in Council by an act of Parliament authorizing the making of rules as to the procedure and practice in prize courts. But the specific orders which were under review went further than that and undertook to deal with substantial rights of neutrals, as to which no authority had been conferred upon the King in Council by any act of parliament. In that respect the Orders-in-Council in the Zamora case and in the Packers cases stood on the same footing. The Prize Court in both cases construed and followed these Orders-inCouncil as an imperative direction binding upon the court on the theory that the King in Council was authorized to exercise such powers by virtue of the Royal prerogative.

On this appeal the Privy Council held that the Prize Court was not bound by executive orders of the King in Council unauthorized by acts of Parliament, for the reasons set out in its decision, from which the following extracts are taken:

The idea that the King in Council, or indeed any branch of the Executive, has power to prescribe or alter the law to be administered by Courts of law in this country is out of harmony with the principles of our Constitution. It is true that under a number of modern

statutes various branches of the Executive have power to make rules having the force of statutes; but all such rules derive their validity from the statute which creates the power, and not from the executive body by which they are made. No one would contend that the prerogative involves any power to prescribe or alter the law administered in Courts of common law or equity. It is, however, suggested that the manner in which Prize Courts in this country are appointed and the nature of their jurisdiction differentiate them in this respect from other Courts.

In the first place all those matters upon which the Court is authorized to proceed are, or arise out of, acts done by the sovereign Power in right of war. It follows that the King must, directly or indirectly, be a party to all proceedings in a Court of Prize. In such a Court his position is in fact the same as in the ordinary Courts of the realm upon a petition of right which has been duly fiated. Rights based on sovereignty are waived and the Crown for most purposes accepts the position of an ordinary litigant. A Prize Court must of course deal judicially with all questions which come before it for determination, and it would be impossible for it to act judicially if it were bound to take its orders from one of the parties to the proceedings.

In the second place, the law which the Prize Court is to administer is not the national or, as it is sometimes called, the municipal law, but the law of nations in other words, international law.

It cannot of course be disputed that a Prize Court, like any other Court, is bound by the legislative enactments of its own sovereign State. A British Prize Court would certainly be bound by Acts of the Imperial Legislature. But it is none the less true that if the Imperial Legislature passed an Act, the provisions of which were inconsistent with the law of nations, the Prize Court, in giving effect to such provisions, would no longer be administering international law. It would in the field covered by such provisions be deprived of its proper function as a Prize Court. The fact, however, that the Prize Courts in this country would be bound by Acts of the Imperial Legislature affords no ground for arguing that they are bound by the Executive Orders of the King in Council.

....

On July 7, 1916, three months after the decision of the Privy Council in the Zamora case, the Order-in-Council relied upon in the decision by the Prize Court in the Kim case, and all other Orders-in-Council then in force relating to the Declaration of London, were withdrawn by a new Order-in-Council. This order recites that this was done because "the issue of these successive Orders-in-Council may have given rise to some doubt as to the intention of His Majesty, and also as to that

of his allies, to act in strict accordance with the law of nations," and declares that it is and always has been their intention to exercise their rights in accordance with the laws of nations; and then it sets out a series of rules which are ordered to be observed, pointing out that this is done because, on account of the changed conditions of commerce and diversity of practice, doubts might have arisen as to the rules which they regard as being in conformity with the law of nations.

This Order-in-Council, like the previous ones, is not based on the authority of any specific powers conferred by act of Parliament upon the King in Council, and the rules set out in this order do not differ materially from the rules embodied in the previous orders, except that the new order does not refer to the Declaration of London. The new order does differ radically from the old orders, however, in its application to neutral rights, because it was adopted after the Privy Council decision in the Zamora case, and therefore must be read in the light of that decision, and also because the reason embodied in it, as above noted, explaining why it was adopted, shows that it has an entirely different purpose from that of the previous orders. As was recognized by the Privy Council in the Zamora case, if the rules adopted in an Order-in-Council conform to the law of nations, the order is quite unnecessary to give them effect, and if they conflict with the law of nations, the order cannot make them binding upon a prize court, so far as the rights of neutrals are concerned. This was not recognized by the British Government when the earlier orders were adopted. The Zamora decision made it clear, however, and so in this later order a special reason for its adoption was stated, namely, that the issue of the previous orders had given rise to doubts as to the intention of the British Government and their allies to act in strict accordance with the law of nations, and it was accordingly explained in the order that the rules which were then adopted were regarded by the British Government and their allies as being in conformity with that law. In the circumstances this amounts to a distinct recognition that these rules depend for their enforcement in the Prize Court, not upon their adoption by an Order-in-Council, but upon their conformity with the law of nations.

It is clear, therefore, that in accordance with the settled rule followed by the Privy Council in the Zamora case, this Order-in-Council

cannot detract from the established rights of neutrals under the law of nations, and in so far as the rules adopted by it are found to be in conflict with the law of nations, they will not be binding upon the Prize Court, and if followed by the Prize Court, the Government of the United States, as announced in its communication above quoted of July 14, 1915, "will not recognize the validity of prize court proceedings taken under restraints imposed by British municipal law in derogation of the rights of American citizens under international law."

It should be said in closing that in the negotiations for a settlement of the Packers cases, the British Government demonstrated their desire to deal justly and reasonably with questions of difference of a legal nature arising out of their interference with neutral trade under these Orders-in-Council, and when this last Order-in-Council was communicated to the Government of the United States, it was accompanied by a Foreign Office memorandum which closes with the following reassuring declaration:

These successive modifications may perhaps have exposed the purpose of the allies to misconstruction; they have therefore come to the conclusion that they must confine themselves simply to applying the historic and admitted rules of the law of nations.

The allies solemnly and unreservedly declare that the action of their warships, no less than the judgments of their prize courts, will continue to conform to these principles; that they will faithfully fulfill their engagements, and in particular will observe the terms of all international conventions regarding the laws of war; that mindful of the dictates of humanity, they repudiate utterly all thought of threatening the lives of non-combatants; that they will not without cause interfere with neutral property; and that if they should, by the action of their fleets, cause damage to the interests of any merchant acting in good faith, they will always be ready to consider his claims and to grant him such redress as may be due.

Taking into consideration the settlement of the Packers cases, and the decision of the Privy Council in the Zamora case, and the subsequent action taken by the British Government in regard to the Ordersin-Council relied upon in those cases, it would seem that the decision of the Prize Court in the Packers cases, although standing unreversed of record, can not fairly be taken as a basis, sanctioned by the British Government for the treatment of neutral commerce.

CHANDLER P. ANDERSON.

THE CASE OF THE "APPAM" AND THE LAW

OF NATIONS 1

At the time when the Emden and all other German ships had ended their careers on the high seas, and England thought herself safe from the inroads of German cruisers on the ocean, about the middle of January, 1916, the Liverpool liner Appam disappeared on a voyage from Dakar, West Africa, to Plymouth, England. This ship had left its port of departure on January 11th and was expected in Plymouth the 21st of that month. After four days, wireless communication with the vessel ceased suddenly, and as nothing was heard of the ship during the following days, it was given up for lost. It was admitted that it had either gone down in a severe storm which had been raging on the West African coast, or had been sunk by a German submarine which had extended its radius of action. These assumptions were confirmed by the British steamer Tregantle, which on the 16th of January passed a damaged life-boat having on its stern the name Appam. The risks on the Appam rose to 75% in London, and no hopes were had as to the fate of the passengers, among whom were the Governor of the British colony of Sierra Leone and his wife.

On the first of February, 1916, a ship entered the harbor of Norfolk, Virginia, which flew from its masthead the German battle flag. It was the Appam, now a German prize with a German prize crew on board. A German auxiliary cruiser, the Moewe, disguised as a tramp liner, sailed through the North Sea and on the very lanes of travel of English ships until she reached the high seas, where, unknown to the enemy, she preyed upon British merchant ships. Six larger vessels had been taken near the northwest African coast between the 11th and 13th of January, when the Appam appeared on the 15th of that month. The Moewe, disguised as a tramp, approached the British vessel, and when within range, the German battle flag rose on the Moewe, and the guns stood in position. The Appam, which possessed 1 Translated from the German by Carlyle Reginald Barnett, of New York City.