_Privateering_
The three letters which immediately follow were written to
point out that neither belligerent in the war of 1898 was under
any obligation not to employ privateers. Within, however, a few
days after the date of the second of these letters, both the
United States and Spain, though both still to be reckoned among
the few powers which had not acceded to the Declaration of
Paris, announced their intention to conduct the war in
accordance with the rules laid down by the Declaration.
Art. 3 of the Spanish Royal Decree of April 23 was to the
effect that "notwithstanding that Spain is not bound by the
Declaration signed in Paris on April 16, 1856, as she expressly
stated her wish not to adhere to it, my Government, guided by
the principles of international law, intends to observe, and
hereby orders that the following regulations for maritime law
be observed," viz. Arts. 2, 3, and 4 of the Declaration,
after setting out which, the Decree proceeds to state that the
Government, while maintaining "their right to issue letters of
marque, ... will organise, for the present, a service of
auxiliary cruisers ... subject to the statutes and jurisdiction
of the Navy."
The Proclamation of the President of the United States of April
26 recited the desirability of the war being "conducted upon
principles in harmony with the present views of nations, and
sanctioned by their recent practice," and that it "has already
been announced that the policy of the Government will not be to
resort to privateering, but to adhere to the rules of the
Declaration of Paris," and goes on to adopt rules 2, 3, and 4
of the Declaration.
Ten years afterwards, viz. on January 18, 1908, Spain
signified "her entire and definitive adhesion to the four
clauses contained in the Declaration," undertaking scrupulously
to conduct herself accordingly. Mexico followed suit on
February 13, 1909. The United States are therefore now the only
important Power which has not formally bound itself not to
employ privateers. It seems unlikely that privateers, in the
old sense of the term, will be much heard of in the future,
though many questions may arise as to "volunteer navies" and
subsidised liners, such as those touched upon in the last
section, with reference to captures made by the _Malacca_;
possibly also as to ships "converted" on the High Seas.
OUR MERCANTILE MARINE IN WAR TIME
Sir,--There can be no doubt that serious loss would be occasioned to
British commerce by a war between the United States and Spain in which
either of those Powers should exercise its right of employing privateers
or of confiscating enemy goods in neutral bottoms.
Before, however, adopting the measures recommended, with a view to the
prevention of this loss, by Sir George Baden-Powell in your issue of
this morning, it would be desirable to enquire how far they would be in
accordance with international law, and what would be the net amount of
the relief which they would afford.
It is hardly necessary to say that non-compliance with the provisions of
the Declaration of Paris by a non-signatory carries with it none of the
consequences of a breach of the law of nations. The framers of that
somewhat hastily conceived attempt to engraft a paper amendment upon the
slowly matured product of oecumenical opinion, far from professing to
make general law, expressly state that the Declaration "shall not be
binding except upon those Powers who have acceded, or shall accede, to
it." As regards Spain and the United States the Declaration is _res
inter alios acta_.
It follows that, in recommending that any action taken by privateers
against British vessels should be treated as an act of piracy, Sir
George Baden-Powell is advocating an inadmissible atrocity, which
derives no countenance from the view theoretically maintained by the
United States, at the outset of the Civil War, of the illegality of
commissions granted by the Southern Confederation. His recommendation
that our ports should be "closed" to privateers is not very
intelligible. Privateers would, of course, be placed under the
restrictions which were imposed in 1870, in accordance with Lord
Granville's instructions, even on the men-of-war of belligerents. They
would be forbidden to bring in prizes, to stay more than twenty-four
hours, to leave within twenty-four hours of the start of a ship of the
other belligerent, to take more coal than enough to carry them to the
nearest home port, and to take any further supply of coal within three
months. We might, no doubt, carry discouragement of privateers by so
much further as to make refusal of coal absolute in their case, but
hardly so far as to deny entry to them under stress of weather.
The difficulties in the way of accepting Sir G. Baden-Powell's other
suggestion are of a different order. Although we could not complain of
the confiscation by either of the supposed belligerents of enemy
property found in British vessels, as being a violation of international
duty, we might, at our own proper peril, announce that we should treat
such confiscation as "an act of war." International law has long
abandoned the attempt to define a "just cause of war." That must be left
to the appreciation of the nations concerned. So to announce would be,
in effect, to say: "Although by acting as you propose you would violate
no rule, yet the consequences would be so injurious to me that I should
throw my sword into the opposite scale." We should be acting in the
spirit of the "Armed Neutralities" of 1780 and 1800. The expediency of
so doing depends, first, upon the extent to which the success of our
action would obviate the mischief against which it would be directed;
and, secondly, upon the likelihood that the benefit which could be
obtained only by imposing a new rule of international law _in invitos_
would counterbalance the odium incurred by its imposition. On the former
question it may be worth while to remind the mercantile community that,
even under the Declaration of Paris, neutral trade must inevitably be
put to much inconvenience. Any merchant vessel may be stopped with a
view to the verification of her national character, of which the flag is
no conclusive evidence. She is further liable to be visited and searched
on suspicion of being engaged in the carriage of contraband, or of enemy
military persons, or of despatches, or in running a blockade. Should the
commander of the visiting cruiser "have probable cause" for suspecting
any of these things, though the vessel is in fact innocent of them, he
is justified in putting a prize crew on board and sending her into port,
with a view to the institution of proceedings against her in a prize
Court. A non-signatory of the Declaration of Paris may investigate and
penalise, in addition to the above-mentioned list of offences, the
carriage of enemy goods. This is, no doubt, by far the most important
branch of the trade which is carried on for belligerents by neutrals,
but it must not be forgotten that even were this branch of trade
universally indulged, in accordance with the Declaration of Paris
neutral commerce would still remain liable to infinite annoyance from
visit and search, with its possible sequel in a prize Court.
The question of the balance between benefit to be gained and odium to be
incurred by insisting upon freedom to carry the goods of belligerents I
leave to the politicians.
I am, Sir, your obedient servant,
T. E. HOLLAND.
The Athenæum, April 16 (1898).
OUR MERCANTILE MARINE IN WAR TIME
Sir,--To-day's debate should throw some light upon the views of the
Government, both as to existing rules of international law and as to the
policy demanded by the interests of British trade. It is, however,
possible that the Government may decline to anticipate the terms of the
Declaration of Neutrality which they may too probably find themselves
obliged to issue in the course of the next few days, and it is not
unlikely that the law officers may decline to advise shipowners upon
questions to which authoritative replies can be given only with
reference to concrete cases by a prize Court.
You may perhaps, therefore, allow me in the meantime to supplement my
former letter by a few remarks, partly suggested by what has since been
written upon the subject.
It is really too clear for argument that privateers are not, and cannot
be treated as, pirates.
Sir George Baden-Powell still fails to see that the Declaration of Paris
was not a piece of legislation, but a contract, producing no effect upon
the rights and duties of nations which were not parties to it. We did
not thereby, as he supposes, "decline to recognise private vessels of
war as competent to use force on neutral merchantmen." We merely bound
ourselves not to use such vessels for such a purpose. Sir George is
still unable to discover for privateers any other category than the
"_status_ of pirate." He admits that it would not be necessary for their
benefit to resort to "the universal use of the fore-yard-arm." Let me
assure him that the bearer of a United States private commission of war
would run no risk even of being hanged at Newgate. President Lincoln, it
is true, at the outset of the Civil War, threatened to treat as pirates
vessels operating under the "pretended authority" of the rebel States;
but he was speedily instructed by his own law Courts--e.g. in the
_Savannah_ and in the _Golden Rocket_ (insurance) cases--that even such
vessels were not pirates _iure gentium_. It is also tolerably
self-evident that we cannot absolutely "close" our ports to any class of
vessels. There is no inconsistency here between my friend Sir Sherston
Baker and myself. We can discourage access, and of course, by refusal of
coal, render egress impossible for privateers. Mr. Coltman would
apparently be inclined to carry this policy so far that he would disarm
and intern even belligerent ships of war which should visit our ports: a
somewhat hazardous innovation, one would think.
It is quite possible that the question of privateering may not become a
practical one during the approaching war. Both parties may expressly
renounce the practice, or they may follow the example of Prussia in
1870, and Russia at a later date, in commissioning fast liners under the
command of naval officers--a practice, by the by, which is not, as Sir
George seems to think, "right in the teeth of the Declaration of Paris."
See Lord Granville's despatch in 1870.
On Sir George's proposals with reference to the carriage of enemy goods,
little more need be said, except to deprecate arguments founded upon the
metaphorical statement that "a vessel is part of the territory covered
by her flag," a statement which Lord Stowell found it necessary to meet
by the assertion that a ship is a "mere movable." There can be no
possible doubt of the right, under international law, of Spain and the
United States to visit and search neutral ships carrying enemy's goods,
and to confiscate such goods when found. They may also visit and search
on many other grounds, and the question (one of policy) is whether,
rather than permit this addition to the list, we choose to take a step
which would practically make us belligerent. This question also, it may
be hoped, will not press for solution.
In any case, let me express my cordial concurrence with your hope that,
when hostilities are over, some really universal and lasting agreement
may be arrived at with reference to the matters dealt with, as I venture
to think prematurely, by the Declaration of Paris. A reform of maritime
law to which the United States are not a party is of little worth. That
search for contraband of war can ever be suppressed I do not believe,
and fear that it may be many years before divergent national interests
can be so far reconciled as to secure an agreement as to the list of
contraband articles. In the meantime this country is unfortunately a
party to that astonishing piece of draftsmanship, the "three rules" of
the Treaty of Washington, to which less reference than might have been
expected has been made in recent discussions. The ambiguities of this
document, which have prevented it from ever being, as was intended,
brought to the notice of the other Powers, with a view to their
acceptance of it, are such that, its redrafting, or, better still, its
cancellation, should be the first care of both contracting parties when
the wished for congress shall take place.
May I add that no serious student of international law is likely either
to overrate the authority which it most beneficially exercises, or to
conceive of it as an unalterable body of theory.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Brighton, April 21 (1898).
OUR MERCANTILE MARINE IN WAR
Sir,--Let me assure Sir George Baden-Powell that if, as he seems to
think, I have been unsuccessful in grasping the meaning of his very
interesting letters, it has not been from neglect to study them with the
attention which is due to anything which he may write. How privateering,
previously innocent, can have become piratical, _i.e._ an offence,
everywhere justiciable, against the Law of Nations, if the Declaration
of Paris was not in the nature of a piece of legislation, I confess
myself unable to understand; but have no wish to repeat the remarks
which you have already allowed me to make upon the subject.
I shall, however, be glad at once to remove the impression suggested by
Sir George's letter of this morning, that Art. 7 of the Spanish Decree
of April 24 has any bearing upon the legitimacy of privateering
generally. The article in question (following, by the by, the very
questionable precedent of a notification issued by Admiral Baudin,
during the war between France and Mexico in 1889) merely threatens with
punishment neutrals who may accept letters of marque from a belligerent
Government.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, April 27 (1898).
THE DECLARATION OF PARIS
Sir,--There is really no question at issue between your two
correspondents Mr. Gibson Bowles and "Anglo-Saxon" as to the attitude of
the United States towards the Declaration of Paris.
Mr. Bowles rightly maintains that the United States has not acceded to
the Declaration as a whole, or to its second article, which exempts from
capture enemy property in neutral ships. He means, of course, that
neither the whole nor any part of that Declaration has been ratified by
the President with the advice and consent of the Senate. The whole
contains, indeed, an article on privateering, to which, as it stands,
the United States have always objected, and no part of the Declaration
can be accepted separately.
"Anglo-Saxon," on the other hand, is equally justified in asserting that
the "officially-recorded policy" of the States, _i.e._ of the Executive,
is in accordance with Art. 2 of the Declaration. This policy has been
consistently followed for more than half a century. Its strongest
expression is perhaps to be found in the President's Proclamation of
April 26, 1898, in which, after reciting that it being desirable that
the war with Spain "should be conducted upon principles in harmony with
the present views of nations and sanctioned by their recent practice, it
has already been announced that the policy of the Government will not be
to resort to privateering, but to adhere to the rules for the
Declaration of Paris," he goes on to "declare and proclaim" the three
other articles of the Declaration. The rule of Art. 2, as to exemption
of enemy goods in neutral ships, was embodied in Art. 19 of the Naval
War Code of 1900 (withdrawn in 1904, for reasons not affecting the
article in question), and reappears in Art. 17, amended only by the
addition of a few words relating to "hostile assistance" in the draft
Code which the United States delegates to the Conferences of 1907 and
1908 were instructed to bring forward "with the suggested changes, and
such further changes as may be made necessary by other agreements
reached at the Conference, as a tentative formulation of the rules which
should be considered." (My quotation is from the instructions as
originally issued in English.) Such changes as have been made in the
Code are due to discussions which have taken place between high naval
and legal authorities at the Naval War College. I do not know whether
the annual reports of these discussions, with which I am kindly
supplied, are generally accessible, but would refer, especially with
reference to the Declaration of Paris, to the volumes for 1904 and 1906.
It can hardly be necessary to add that no acts of the Executive, such as
the Proclamation of 1898, the order putting in force the Code of 1900,
or the instructions to delegates in 1907 and 1909, amount to anything
like a ratification of the Declaration in the manner prescribed by the
Constitution of the United States.
I have the honour to be, Sir,
Your obedient servant,
T. E. HOLLAND.
Oxford, January 4 (1911).
THE DECLARATION OF PARIS
Sir,--Mr. Gibson Bowles resuscitates this morning his crusade against
the Declaration of 1856. It is really superfluous to argue in support of
rules which have met with general acceptance for nearly sixty years
past, to all of which Spain and Mexico, who were not originally parties
to the Declaration, announced their formal adhesion in 1907, while the
United States, which for well-known reasons declined to accede to the
Declaration, described, in 1898, all the articles except that dealing
with privateering as "recognised rules of International Law."
It may, however, be worth while to point out why it was that no
provision was made for the ratification of the Declaration of 1856, or
for that of 1868 relating to the use of explosive bullets. At those
dates, when the first steps were being taken towards the general
adoption of written rules for the conduct of warfare, it was, curiously
enough, supposed that agreement upon such rules might be sufficiently
recorded without the solemnity of a treaty. This was, in my opinion, a
mistake, which has been avoided in more recent times, in which the
written law of war has been developed with such marvellous rapidity. Not
only have codes of such rules been promulgated in regular "Conventions,"
made in 1899, 1906, and 1907, but the so-called "Declarations," dealing
with the same topic, of 1899, 1907, and 1909 have been as fully equipped
as were those Conventions with provisions for ratification. The
distinction between a "Convention" and a "Declaration" is therefore now
one without a difference, and should no longer be drawn. Nothing in the
nature of rules for the conduct of warfare can prevent their expression
in Conventions, and the reason which seems to have promoted the
misdescription of the work of the London Conference of 1908-9 as a
"Declaration"--viz. an imaginary difference between rules for the
application of accepted principles and wholly new rules--is founded in
error. Much of the contents of The Hague "Conventions" is as old as the
hills while much of the "Declaration" of London is revolutionary.
This by the way. It is not very clear whether Mr. Gibson Bowles, in
exhorting us to denounce the Declaration, relies upon its original lack
of ratification, or upon some alleged "privateering" on the part of the
Germans. Nothing of the kind has been reported. The commissioning of
warships on the high seas is a different thing, which may possibly be
regarded as an offence of a graver nature. Great Britain is not going to
imitate the cynical contempt for treaties, evidenced by the action of
Germany in Belgium and Luxemburg, in disregard not only of the
well-known treaties of 1889 and 1867, but of a quite recent solemn
undertaking, to which I have not noticed any reference. Art. 2 of The
Hague Convention No. v. of 1907, ratified by her in 1909, is to the
following effect:--
"Belligerents are forbidden to move across the territory of a
neutral Power troops or convoys, whether of munitions or of
supplies."
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, August 12 (1914).
The true ground for objecting to the legality of the purchase by Turkey
of the German warships which have been forced to take refuge in her
waters is no doubt that stated by Sir William Scott in the _Minerva_, 6
C. Rob. at p. 400--viz. that it would enable the belligerent to whom
the ships belong "so far to rescue himself from the disadvantage into
which he has fallen as to have the value at least restored to him by a
neutral purchaser." The point is not touched upon in the (draft)
Declaration of London.
Even supposing the purchase to be unobjectionable, the duty of Turkey to
remove all belligerents from the ships would be unquestionable.
_Cf._ on the Declaration of Paris, _passim_, see Index; on the
misuse of Declarations, _infra_, p. 92; on privateering,
_supra_, pp. 80-84.
THE DECLARATION OF PARIS
Sir,--The resuscitation, a few days ago, in the House of Commons of an
old controversy reminds one of the mistaken procedure which made such a
controversy possible. It can hardly now be doubted that the rules set
forth in the Declaration of Paris of 1856, except possibly the
prohibition of privateering, have by general acceptance during sixty
years, strengthened by express accessions on the part of so many
Governments, become a portion of international law, and are thus binding
upon Great Britain, notwithstanding her omission to ratify the
Declaration. This omission is now seen to have been a mistake. So also
was the description of the document as a "declaration." Both mistakes
were repeated in 1868 with reference to the "Declaration" of St.
Petersburg (as to explosive bullets).
In those early attempts at legislation for the conduct of warfare it
seems to have been thought sufficient that the conclusions arrived at by
authorised delegates should be announced without being embodied in a
treaty. Surely, however, what purported to be international agreements
upon vastly important topics ought to have been accompanied by all the
formalities required for "conventions," and should have been so
entitled. In later times this has become the general rule for the
increasingly numerous agreements which bear upon the conduct of
hostilities. Thus we have The Hague "conventions" of 1899 and 1907, and
the Geneva "convention" of 1906, all duly equipped with provisions for
ratification. Such provisions are also inserted in certain other recent
agreements dealing with aerial bombardments, gases, and expanding
bullets, which it has nevertheless pleased their contrivers to
misdescribe as "declarations." Equally so misdescribed was the deceased
Declaration of London, with a view, apparently, to suggesting, as was
far from being the case, that it was a mere orderly statement of
universally accepted principles, creating no new obligations.
Is it not to be desired that all future attempts for the international
regulation of warfare should not only be specifically made subject to
ratification, but should also, in accordance with fact, be described as
"conventions"?
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, August 13 (1916).
THE DECLARATION OF PARIS
Sir,--If Mr. Gibson Bowles, whose courteous letter I have just been
reading, will look again at my letter of the 18th, I think he will see
that I there carefully distinguished between the Declaration of Paris,
which, as is notorious, must be accepted as a whole or not at all, and
the rules set forth in it, "except, possibly, the prohibition of
privateering," which I thought, for the reasons which I stated, might be
taken to have become a portion of International Law.
I must be excused from following Mr. Bowles into a discussion of the
bearing of those rules upon the Order in Council of March 11, 1915--a
large and delicate topic, which must be studied in elaborate dispatches
exchanged between this country and the United States.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, August 17 (1916).
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