already proved himself a competent, if not a particularly distinguished, judge, when the outbreak of the European War in 1914 brought him a great and unexpected opportunity.
Evans’s reputation as a judge of the first rank will always rest on the series of judgments in prize which he delivered during the War. For the first time in England since the Crimean War a prize court began to sit, under his presidency, on 4 September 1914. The law which it found itself called on to administer consisted, with the exception of a few decisions of the period of the Crimean War, almost entirely of the principles which Lord Stowell [q.v.] had laid down to meet the relatively simple conditions of international commerce and maritime warfare during the Napoleonic wars. It was not possible, nor would it have been just to the naval belligerents, to apply those principles without at the same time adapting them to the vastly more complicated conditions of modern warfare. Yet it was certain that the process of adaptation must adversely affect the interests of neutral traders; and it was highly probable that diplomatic controversies would ensue. Hence it was important that the judge presiding over the prize court should be bold enough to develop the law to meet the new conditions, while preserving an even balance between the interests of his own country and those of neutrals, and at the same time should be able to express the reasons for his decisions in a form which, if it did not convince a disappointed litigant, would at least demonstrate to the world the determination of the English courts to render impartial justice.
Evans’s task was, therefore, difficult and delicate, and even his friends had hardly foreseen that he possessed just that combination of qualities—courage, industry, acuteness, tact—which was needed for success in it. A more timid and conventional judge might have been content to shelter himself under the great prestige of Stowell; but Evans wisely relied on the principle that in international law ‘there is room for the extension of old doctrines or the development of new principles, where there is, or is even likely to be, a general acceptance of such by civilized nations. Precedents handed down from earlier days should be treated as guides to lead and not as shackles to bind. But the guides must not be lightly deserted’ (case of the Odessa). ‘He brought to the work no special acquaintance with the laws of naval warfare; yet in a remarkably short time he was delivering judgments which were not only models of lucid and cogent reasoning, but notable for the admirable way in which they marshalled the results of exhaustive research into the relevant authorities. No cases illustrate this combination of qualities better than (i) the case of the Kim, in which Evans applied, for the first time in an English court, and basing himself mainly on the precedents of the American Civil War, the doctrine of ‘continuous voyage’ to the carriage of contraband goods; he held that although the immediate and ostensible destination of such goods may be neutral, they will none the less be liable to condemnation if they have an ultimate destination to the enemy; and (ii) that of the Leonora, in which he held that the so-called ‘reprisals’ Order in Council of 16 February 1917 was not inconsistent with established principles of international law. These two cases raised fundamental questions affecting the legality of almost the whole of the naval policy of the allies, and illustrate the magnitude of the political issues which were at stake in the cases that came before Evans for decision. Yet his judgment in the Kim case has already met with general acceptance; and, if his decision in the Leonora case is still sometimes controverted, it will not be easy to refute the arguments by which he demonstrated the inevitable legality of reprisals in naval warfare within such limits as his judgment laid down.
Other notable decisions of Evans were those given in the cases of the Möwe, in which he greatly relaxed the traditional rule denying to an enemy subject the right to appear and argue his claim before the court; of the Roumanian, in which he had occasion to consider the extent of the jurisdiction of a court of prize; of the Hamborn, in which he held that the national character of a ship for prize purposes is not necessarily that of the flag which she is entitled to fly, nor that of the country in which the owning company is incorporated, but rather that of the country from which the effective control over the ship’s movements is exercised; and of the Zamora, in which he considered the obligation of an English prize court to follow an Order in Council. The last is one of the few cases in which his judgment was reversed on appeal; but it is probable that his opinion, which was that the court cannot declare an order of the king in council to be repugnant to international law and therefore not binding-on itself, is, historically at least,
178
