go there, and an officer and three men were put on each steamer to see. that they went. The captains remonstrated on the ground that they would have to go through the danger zone, but they were told that it did not make much difference, as there were German submarines about outside the zone as well as within it, and that they sank vessels wherever they met them, so that ships were nearly as likely to be torpedoed outside the zone as in it. On this point the learned President, although he did not think it material, found that there was greater danger on the route by which the ships were directed to go than on that which they had intended to take, and their Lordships would not be inclined, and indeed have not been asked, to differ from the learned President on this point. The vessels did when within the zone encounter a German submarine, which fired on them without previous warning and sank the Elve by one torpedo and seriously damaged the Bernisse by another. Fortunately a British cruiser appeared, which took on board the crews of the vessels, who had taken to their boats, and towed the Bernisse in her damaged condition into Kirkwall. The Bernisse was temporarily repaired, and ultimately was allowed to proceed on her voyage to Rotterdam, and it is in evidence that her cargo was never examined, although in the course of the repairs it probably became evident that there was no contraband on board. On these facts the learned President has held that there was no ground in fact for detaining the vessels and sending them into Kirkwall, and, further, that there was no such reasonable ground for thinking that there was as to relieve the Crown from paying the damages arising from sending them in, and it is on the latter point that the appeal has been brought.

It is necessary first to consider the construction of the Order in Council. It has been held by this board that the order is binding on neutrals (The Stigstad, 35 The Times L. R., 176; [1919] A. C., 279; see also The Leonora, 35 The Times L. R., 719 [1919] A. C., 974), and the order expressly directs that vessels which come within the first clause shall be brought in for examination. The order is not very happily worded, but these vessels having started from an Allied port, do not come within the order at all unless the words "without calling at" imposed on a vessel the obligation of a subsequent call even although her cargo had been duly examined and passed at the British or the Allied port from which she started. This is an impossible construction. Having regard to the fact that the object of requiring a call is to ensure that there shall be an opportunity of examining the cargo, it seems clear that "calling at" must include "having been at" a British or Allied port when the port was the original port of departure on the voyage; and as regards the want of a green clearance that would only be given at a British port, and it really is quite clear that throughout the order an Allied port is put on the same footing as a British port. The President so held and their Lordships agree with him.

As there was in this case no ground whatever proved on which either ships or cargo could have been condemned as prize any more than any ground for detaining them under the Order in Council, the question remaining is merely that of reasonable ground for the action taken. To show such ground the Crown rely on two points. First they say that the detention was a legitimate exercise of the right of search. In this war it has been agreed that search at sea has been practically impossible and sending in to port for search has been almost universal. In this case further there was evidence that the search at sea for contraband hidden under the ground-nuts would have been impossible. The President, however, has disposed of this point by saying that even if the officers might have suspected that something contraband was hidden under the groundnuts, in fact they did not do so and have never said that they did. They really only sent the vessels in because there was no green clearance. This seems a sufficient answer, and it is unnecessary to go further, but counsel for the respondents do further argue that even for a search reasonable ground of suspicion must be shown, and that where everything is in order on the papers, and there is no circumstance suggesting hidden contraband, even a search on the spot would be unjustifiable. In strictness this is of course correct, but so little suspicion is required to justify a search that their Lordships are not prepared to say that if a boarding officer were to state that finding a cargo to be in bulk he thought something might be hidden under it, and therefore directed a search, his conduct would be so unreasonable as to subject the Crown to a liability for damages. That case must be considered if it should arise. Here it does not appear to arise.

The second point on which the Crown rely is really the only one which gives rise to any difficulty. It is that there was a bona fide doubt on the part of the officers who gave the order for detention as to the true construction of the Order in Council. The question as to what is sufficient to relieve a captor from paying damages in respect of a capture which is afterwards decided to be in fact wrongful was very fully considered in the case of The Oostzee (9 Moore, P. C., 150). It was there held that to exempt captors from costs and damages there must be some circumstances connected with the ship or cargo affording reasonable ground for belief that the ship or cargo might prove a lawful prize. That case arose during the Crimean War, and the cases down to that date were very fully dealt with. The only case which at all supports the contention put forward by the Crown in the present case is The Luna (Edwards, 190). There a neutral vessel proceeding to San Sebastian, in Spain, which had at the time been for two years in the occupation of the French, was seized for alleged breach of blockade by British captors who were in bona fide doubt whether or not an Order in Council of April 26, 1809, declaring a blockade of "ports and places under the government of France" extended

to San Sebastian so temporarily in French occupation. Sir William Scott held that it did not so extend, and decreed simple restitution, and he not only refused the claimants costs and damages, but gave the captors their expenses. In giving judgment he said:

It is impossible for the court to throw out of its consideration that when these Orders in Council are issued it is the duty of the officers of His Majesty's Navy to carry them into effect, and although they may be of a nature to require a great deal of attentive consideration, gentlemen of the Navy are called upon to act with promptitude and to construe them as well as they can under the circumstances of cases suddenly arising. With every wish, therefore, to make the greatest allowance for the difficulties which are at present imposed on the commerce of the world, I cannot in this instance refuse the captors their expenses, but in no future case arising on the same state of facts will the court grant that indulgence.

In The Acteon (2 Dodson 48), five years later, Sir William Scott, without referring to his former decision in The Luna (supra), which does not appear to have been quoted to him, laid down what seems to be a different rule. He says at p. 52:

Neither does it make any difference whether the party inflicting the injury has acted from improper motives or otherwise. If the captor has been guilty of no wilful misconduct, but has acted from error and mistake only, the suffering party is still entitled to full compensation, provided, as I have before observed, he has not by any conduct of his own contributed to the loss. The destruction of the property by the captor may have been a meritorious act towards his own Government, but still the person to whom the property belongs must not be a sufferer.

These cases are reviewed at length in The Oostzee (supra) and it is said in the judgment that in The Luna (supra) Lord Stowell must have felt that he was going to the very verge of the law. The headnote to the report of The Oostzee (supra) in Moore's report states as part of the decision and not as a dictum that an honest mistake occasioned by an act of government will not relieve captors from liability to compensate a neutral; but it should be noted that towards the end of the judgment delivered by Lord Kingsdown he points out that in the case then before the board there was no point of law. In strictness, therefore, what was said as to the insufficiency of a mistake in point of law might be considered as obiter. Their Lordships, however, consider that the judgment in The Oostzee (supra) must be looked at as a whole, and that it really does decide the point stated in the headnote. It is not necessary to say that in order to relieve the captors from paying damages the neutral owner must be in some way in fault; it may be only his misfortune; but there must be something "connected with the ship or cargo" in order to give rise to the suspicion which will relieve. Here the doubt which certainly was honestly entertained was not a doubt as to anything so connected, but merely a doubt as to the meaning of an Order in Council issued by the British Government. If the decision in The Luna (supra) proceeded entirely on

the ground stated in the judgment as reported, it is contrary not only to The Oostzee (supra), but to the judgment of Lord Stowell himself in The Actæon (supra), and it cannot now be followed. It may well be that in addition to the point which is stated in the judgment in The Luna (supra) as reported, and which is, as Lord Stowell truly said, a point which ought not to be left out of consideration, there were also in the facts of that case circumstances connected with the ship which were in Lord Stowell's mind. It is clear on the face of the report that the whole judgment is not reported. Even if San Sebastian was not in strictness a blockaded port under the Order in Council, nevertheless a ship going there was obviously taking goods to the enemy, who were in actual occupation of it, and on that or some other ground, in addition to what appears in the judgment, the decision may have been justified. It has, however, been treated as a decision that the facts referred to in the judgment as matters to be taken into consideration would in themselves be sufficient, and so understood it is contrary to at least one decision binding on this board. Their Lordships will therefore humbly advise his Majesty that this appeal should be dismissed with costs.

BOOK REVIEWS

Contemporary French Politics. By Raymond Leslie Buell. With an introduction by Carlton J. H. Hayes. New York: D. Appleton and Co. 1920. pp. xxviii, 524.

The author of this book is a studious young American, who, having served his country in arms, lingered on foreign soil long enough, and worked diligently enough, to gather a remarkable mass of information concerning the political attitudes, methods, and tendencies of the French people; and he has brought this information together in a very readable book. He deals mainly with domestic politics-party alignments, woman suffrage, proportional representation, syndicalism, the regionalist movement, the press and the censorship, and constitutional reform. Three chapters, however, are devoted to matters that may fairly be termed international. One explains what the French peace terms might have been; a second discusses the French conception of a league of nations; the third tells us what France thought of American "idealism."

Reviewing the demands of various extremer French elements-the total dismemberment of Germany, or the annexation of the left bank of the Rhine, or the creation of a cis-Rhenish republic, or the annexation of at least the valley of the Saar (coupled with the total reduction of German armament and the establishment of a permanent alliance among the existing Allies)-the author shows that such a peace would merely have followed the lines of the old diplomacy and, although having much to justify it in morals, would probably have proved as ineffectual as settlements of the old diplomacy have commonly proved hitherto. He shows how, starting from an attitude of incredulity, French opinion gradually swung to the support of the League of Nations idea as an alternative plan of settlement, only to be grievously disappointed with the character of the League as established. Only a League vastly stronger than that which actually came into being could have compensated, in the French view, for the safeguards which the old diplomacy would have secured; and "responsibility for the failure to provide the League of Nations with the security upon which France justly insisted was largely due to the American Peace Delegation." This suggests an analysis of the French attitude toward the United States during and after the peace negotiations; and Mr. Buell's final chapter is devoted to a singularly clear exposition of this *The JOURNAL assumes no responsibility for the views expressed in signed book reviews.-ED.