But here Mr. Bullard has a very cunning point to make. It has been made
also by Professor Liszt. He knows and admits that the Declaration was
never ratified and had no legal force. But he points out that, both in
inviting the other nations to the conference and in recommending the
Declaration when it had been framed, authoritative persons explained
that the purpose of the whole proceeding was "not to legislate but to
codify." "We obtained recognition of the fact," says Lord Desart, "that,
as a body, these rules do amount practically to a statement of what is
the essence of the law of nations."
Consequently, argues Mr. Bullard, to repudiate the Declaration, even if
it was never ratified, is to repudiate the essence of the law of
nations.
A clever piece of trick argument. What is the answer to it?
(1) A very simple point. Mr. Bullard, following Professor Liszt, does
not give the whole of Lord Desart's sentence, but stops in the middle of
a phrase, where there is not even a comma! The whole phrase is, "amount
practically to a statement of what is the essence of the law of nations
properly applicable to the questions at issue under present-day
conditions of international commerce and warfare." That is, (_a_) it is
admitted that the existing rules do not cover the questions at issue
under present-day conditions; and therefore (_b_) the Conference has
done its best to apply the essence of the law of nations to the solution
of these new questions. Lord Desart thought the attempt was successful,
and that the Conference really had produced what was "practically" a
statement of the essence of the old law as applied to the new problems.
This view was not accepted by the British Parliament, nor apparently by
any other, since they did not ratify the Declaration.
(2) Codification without alteration is really an impossible achievement.
Every person of experience knows that you cannot codify a large mass of
floating customs and divergent laws without, by that very fact,
introducing changes. I doubt if there has ever been any large work of
codification accomplished, which was not both recommended to its
admirers as being a great reform, and defended against its opponents on
the ground that it was a mere registration of existing practice. Every
great codification creates new law.
(3) The Declaration is specially recommended by its authors as being a
compromise. The claims and customs of different nations conflict; each
one yields here and is recompensed there. The best statement perhaps of
the work of the Conference is contained in the General Report of its
Drafting Committee.
"The solutions have been extracted from the various views or practices
which prevail, and represent what may be called the _media sententia_.
They are not always in absolute agreement with the views peculiar to
each country, but they shock the essential ideas of none. They must not
be examined separately but as a whole, otherwise there is a risk of the
most serious misunderstandings. In fact, if one or more isolated rules
are examined, either from the belligerent or the neutral point of view,
the reader may find that the interests with which he is especially
concerned are jeopardized by the adoption of these rules. But they have
another side. The work is one of compromise and mutual concessions. Is
it as a whole a good one?"
Thus the Declaration is not a mere declaration of the existing law of
nations. It is a compromise in which different parties make concessions,
in response to other concessions which are made to them. And Mr. Bullard
expects Great Britain, when suddenly involved in war with the most
terrible enemy known to history, to make gratuitously all the
concessions contained in the proposed compromise, and leave it to
chance, or to the mercy of the Germans, whether she should get any of
the compensations! And concessions, too, which her Parliament had
considered excessive in peace time, even with the compensations
guaranteed!