Sir,--The neutral Powers have serious ground of complaint as to the mode

in which Russia is conducting operations at sea. It may, however, be

doubted whether public opinion is sufficiently well informed to be

capable of estimating the comparative gravity of the acts which are just

now attracting attention. Putting aside for the moment questions arising

out of the Straits Convention of 1856, as belonging to a somewhat

different order of ideas, we may take it that the topics most needing

careful consideration relate to removal of contraband from the ship that

is carrying it without taking her in for adjudication; interference with

mail steamers and their mail bags; perversely wrong decisions of Prize

Courts; confiscation of ships as well as of their contraband cargo;

destruction of prizes at sea; the list of contraband. Of these topics,

the two last mentioned are probably the most important, and on each of

these I will ask you to allow me to say a few words.

1. There is no doubt that by the Russian regulations of 1895, Art. 21;

and instructions of 1901, Art. 40, officers are empowered to destroy

their prizes at sea, no distinction being drawn between neutral and

enemy property, under such exceptional circumstances as the bad

condition or small value of the prize, risk of recapture, distance from

a Russian port, danger to the Imperial cruiser or to the success of her

operations. The instructions of 1901, it may be added, explain that an

officer "incurs no responsibility whatever" for so acting if the

captured vessel is really liable to confiscation and the special

circumstances imperatively demand her destruction. It is fair to say

that not dissimilar, though less stringent, instructions were issued by

France in 1870 and by the United States in 1898; also that, although the

French instructions expressly contemplate "l'établissement des

indemnités à attribuer aux neutres," a French prize Court in 1870

refused compensation to neutral owners for the loss of their property on

board of enemy ships burnt at sea.

The question, however, remains whether such regulations are in

accordance with the rules of international law. The statement of these

rules by Lord Stowell, who speaks of them as "clear in principle and

established in practice," may, I think, be summarised as follows: An

enemy's ship, after her crew has been placed in safety, may be

destroyed. Where there is any ground for believing that the ship, or any

part of her cargo, is neutral property, such action is justifiable only

in cases of "the gravest importance to the captor's own State," after

securing the ship's papers and subject to the right of neutral owners to

receive fall compensation (_Actaeon_, 2 Dods. 48; _Felicity, ib._ 381;

substantially followed by Dr. Lushington in the _Leucade_, Spinks, 221).

It is not the case, as is alleged by the _Novoe Vremya_, that any

British regulations "contain the same provisions as the Russian" on this

subject. On the contrary, the Admiralty Manual of 1888 allows

destruction of enemy vessels only; and goes so far in the direction of

liberality as to order the release, without ransom, of a neutral prize

which either from its condition, or from lack of a prize crew, cannot be

sent in for adjudication. The Japanese instructions of 1894 permit the

destruction of only enemy vessels; and Art. 50 of the carefully debated

"Code des prises" of the Institut de Droit International is to the same

effect. It may be worth while to add that the eminent Russian jurist, M.

de Martens, in his book on international law, published some twenty

years ago, in mentioning that the distance of her ports from the scenes

of naval operations often obliges Russia to sink her prizes, so that "ce

qui les lois maritimes de tous les états considèrent comme un moyen

auquel il n'y a lieu de recourir qu'à la dernière extrémité, se

transformera nécessairement pour nous en règle normale," foresaw that

"cette mesure d'un caractère général soulévera indubitablement contre

notre pays un mécontentement universel."

2. A far more important question is, I venture to think, raised by the

Russian list of contraband, sweeping, as it does, into the category of

"absolutely contraband" articles things such as provisions and coal, to

which a contraband character, in any sense of the term, has usually been

denied on the Continent, while Great Britain and the United States have

admitted them into the category of "conditional" contraband, only when

shown to be suitable and destined for the armed forces of the enemy, or

for the relief of a place besieged. Still more unwarrantable is the

Russian claim to interfere with the trade in raw cotton. Her prohibition

of this trade is wholly unprecedented, for the treatment of cotton

during the American Civil War will be found on examination to have no

bearing on the question under consideration. I touch to-day upon this

large subject only to express a hope that our Government, in concert, if

possible, with other neutral Governments, has communicated to that of

Russia, with reference to its list of prohibited articles, a protest in

language as unmistakable as that employed by our Foreign Office in 1885;

"I regret to have to inform you, M. l'Ambassadeur," wrote Lord

Granville, "that Her Majesty's Government feel compelled to take

exception to the proposed measure, as they cannot admit that,

consistently with the law and practice of nations, and with the rights

of neutrals, provisions in general can be treated as contraband of war."

A timely warning that a claim is inadmissible is surely preferable to

waiting till bad feeling has been aroused by the concrete application of

an objectionable doctrine.

I am, Sir, your obedient servant,

T. E. HOLLAND.

Oxford, August I (1904).

RUSSIAN PRIZE LAW

Sir,--From this hilltop I observe that, in the debate of Thursday last,

Mr. Gibson Bowles, alluding to a letter of mine which appeared in your

issue of August 6, complained that I "had not given the proper

reference" to Lord Stowell's judgments. Mr. Bowles seems to be unaware

that in referring to a decided case the page mentioned is, in the

absence of any indication to the contrary, invariably that on which the

report of the case commences. I may perhaps also be allowed to say that

he, in my opinion, misapprehends the effect of the passage quoted by him

from the _Felicity_, which decides only that, whatever may be the

justification for the destruction of a neutral prize, the neutral owner

is entitled, as against the captor, to full compensation for the loss

thereby sustained.

I am, Sir, your obedient servant,

T. E. HOLLAND.

Eggishorn, Valais, Suisse, August 14 (1904).

RUSSIAN PRIZE LAW

Sir,--Mr. Gibson Bowles has, I find, addressed to you a letter in which

he attempts to controvert two statements of mine by the simple expedient

of omitting essential portions of each of them.

1. Mr. Bowles having revealed himself as unaware that the mode in which

I had cited a group of cases upon destruction of prizes was the correct

mode, I thought it well to provide him with the rudimentary information

that, "in referring to a decided case, the page, mentioned is, _in the

absence of any indication to the contrary_, invariably that on which the

report of the case commences." He replies that he has found appended to

a citation of a passage in a judgment the page in which this passage

occurs. May I refer him, for an explanation of this phenomenon, to the

words (now italicised) omitted in his quotation of my statement? It is,

of course, common enough, when the reference is obviously not to the

case as a whole but to an extract from it, thus to give a clue to the

extract, the formula then employed being frequently "_at_ page

so-and-so."

2. I had summarised the effect, as I conceive it, of the group of cases

above mentioned in the following terms: "Such action is justifiable only

in cases of the gravest importance to the captor's own State, _after

securing the ship's papers, and subject to the right of the neutral

owners to receive full compensation_." Here, again, while purporting to

quote me, Mr. Bowles omits the all-important words now italicised. I am,

however, maltreated in good company. Mr. Bowles represents Lord Stowell

as holding that destruction of neutral property cannot be justified,

even in cases of the gravest importance to the captor's own State. What

Lord Stowell actually says, in the very passage quoted by Mr. Bowles, is

that "to the neutral can only be justified, under any such

circumstances, by a full restitution in value." I would, suggest that

Mr. Bowles should find an opportunity for reading _in extenso_ the

reports of the _Actaeon_ (2 Dods. 48), and the _Felicity_ (_ib._ 881),

as also for re-reading the passage which occurs at p. 386 of the latter

case, before venturing further into the somewhat intricate

technicalities of prize law.

I am, Sir, your obedient servant,

T. E. HOLLAND.

Eggishorn, Suisse, August 26 (1904).

THE SINKING OF NEUTRAL PRIZES

Sir,--In your St. Petersburg correspondence of yesterday I see that some

reference is made to what I have had occasion to say from time to time

upon the vexed question of the sinking of neutral vessels, and your

Correspondent thinks it "would be decidedly interesting" to know whether

I have really changed my opinion on the subject. Perhaps, therefore, I

may be allowed to state that my opinion on the subject has suffered no

change, and may be summarised as follows:--

1. There is no established rule of international law which absolutely

forbids, under any circumstances, the sinking of a neutral prize. A

_consensus gentium_ to this effect will hardly be alleged by those who

are aware that such sinking is permitted by the most recent prize

regulations of France, Russia, Japan, and the United States.

2. It is much to be desired that the practice should be, by future

international agreement, absolutely forbidden--- that the lenity of

British practice in this respect should become internationally

obligatory.

3. In the meantime, to adopt the language of the French instructions,

"On ne doit user de ce droit de destruction qu'avec plus la grande

réserve"; and it may well be that any given set of instructions (e.g.

the Russian) leaves on this point so large a discretion to commanders of

cruisers as to constitute an intolerable grievance.

4. In any case, the owner of neutral property, not proved to be good

prize, is entitled to the fullest compensation for his loss. In the

language of Lord Stowell:--

"The destruction of the property may have been a meritorious

act towards his own Government; but still the person to whom

the property belongs must not be a sufferer ... if the captor

has by the act of destruction conferred a benefit upon the

public, he must look to his own Government for his

indemnity."

It may be worth while to add that the published statements on the

subject for which I am responsible are contained in the _Admiralty

Manual of Prize Law_ of 1888 (where section 808 sets out the lenient

British instructions to commanders, without any implication that

instructions of a severer kind would have been inconsistent with

international law); in letters which appeared in your columns on August

6, 17, and 30, 1904; and in a paper on "Neutral Duties in a Maritime

War, as illustrated by recent events," read before the British Academy

in April last, a French translation of which is in circulation on the

Continent.

I am, Sir, your obedient servant,

T. E. HOLLAND.

Temple, June 29 (1905).

The Russian circular of April 3, 1906, inviting the Powers to a

second Peace Conference, included amongst the topics for

discussion: "Destruction par force majeure des bâtiments de

commerce neutres arrêtés comme prises," and the British

delegates were instructed to urge the acceptance of what their

Government had maintained to be the existing rule on the

subject. The Conference of 1907 declined, however, to define

existing law, holding that its business was solely to consider

what should be the law in future. After long discussions, in

the course of which frequent reference was made to views

expressed by the present writer (see _Actes et Documents_, t.

iii. pp. 991-993, 1010, 1016, 1018, 1048, 1171), the Conference

failed to arrive at any conclusion as to the desirability of

prohibiting the destruction of neutral prizes, and confined

itself to the expression of a wish (_voeu_) that this, and

other unsettled points in the law of naval warfare, should be

dealt with by a subsequent Conference.

This question was, accordingly, one of those submitted to a

Conference of ten maritime Powers, which was convoked by Great

Britain in 1908, for reasons upon which something will be said

in the next section.

The question of sinking was fully debated in this Conference,

with the assistance of memoranda, in which the several Powers

represented explained their divergent views upon it, and of

reports prepared by committees specially appointed for the

purpose. It soon became apparent that the British proposal for

an absolute prohibition of the destruction of neutral prizes

had no chance of being accepted; while, on the other hand, it

was generally agreed that the practice is permissible only in

exceptional cases. (See _Parl. Paper, Miscell._ No. 5 (1909),

pp. 2-63, 99-102, 120, 189, 205, 215, 223, 248, 268-278, 323,

365.) Arts. 48-54 of the Declaration, signed by the delegates

to the Conference on February 26, 1909, but not ratified by

Great Britain, related to this question. After laying down, in

Art. 48, the general principle that "a neutral prize cannot be

destroyed by the captor, but should be taken into such port as

is proper for the legal decision of the rightfulness of the

capture" the Declaration proceeded, in Art. 49, to qualify this

principle by providing that "exceptionally, a neutral vessel

captured by a belligerent warship, which would be liable to

confiscation, may be destroyed, if obedience to Art. 48 might

compromise the safety of the warship, or the success of the

operations in which she is actually engaged."

* * * * *

SECTION 8

_An International Prize Court_

The forecast, incidentally attempted in the following letters,

of the general results likely to be arrived at by the second

Peace Conference, has been justified by the event. As much may

be claimed for the views maintained upon the topic with which

these letters were more specifically concerned. Instead of

letting loose the judges of the proposed International prize

Court to "make law," in accordance with what might happen to be

their notions of "the general principles of justice and

equity," a serious attempt has been made to supply them with a

Code of the law which they would be expected to administer.

Some account will be given at the end of this section of the

movement towards the establishment of an International Court of

Appeal in oases of prize.

AN INTERNATIONAL PRIZE COURT

SIR--The idea suggested by the question addressed on February 19 to the

Government by Mr. A. Herbert--viz. that the appeal in prize cases

should lie, not to a Court belonging to the belligerent from whose Court

of first instance the appeal is brought, but to an international

tribunal, has a plausible appearance of fairness, but involves many

preliminary questions which must not be lost sight of.

Prize Courts are, at present, Courts of enquiry, to which a belligerent

Government entrusts the duty of ascertaining whether the captures made

by its officers have been properly made, according to the views of

international law entertained by that Government. There exists, no

doubt, among Continental jurists, a considerable body of opinion in

favour of giving to Courts of Appeal, at any rate, in prize cases a

wholly different character. This opinion found its expression in Arts.

100-109 of the _Code des Prises maritimes_, finally adopted at its

Heidelberg meeting, in 1887, by the Institut de Droit International.

Art. 100 runs as follows:--

"Au début de chaque guerre, chacune des parties belligérantes

constitue un tribunal international d'appel en matière de

prises maritimes. Chacun de ces tribunaux est composé de cinq

membres, designés comme suit: L'état belligérant nommera

lui-même le président et un des membres. Il désignera en

outre trois états neutres, qui choisiront chacun un des trois

autres membres."

In the abstract, and supposing that a tribunal perfectly satisfactory

both to belligerents and neutrals could be constituted, whether

antecedently or _ad hoc_, there might be much to be said for the

proposal; subject, however, to one condition--viz. that an agreement

had been previously arrived at as to the law which the Court is to

apply. At the present time there exists, on many vital questions of

prize law, no such agreement. It will be sufficient to mention those

relating to the list of contraband, the distinction between "absolute"

and "conditional" contraband, the doctrine of "continuous voyages," the

right of sinking a neutral prize, the moment from which a vessel becomes

liable for breach of blockade.

Just as the _Alabama_ arbitration would have been impossible had not an

agreement been arrived at upon the principles in accordance with which

neutral duties as to the exit of ships of war were to be construed, so,

also, before an international Court can be empowered to decide questions

of prize, whether in the first instance or on appeal, it is

indispensable that the law to be applied on the points above mentioned,

and many others, should have been clearly defined and accepted, if not

generally, at least by all parties concerned. The moral which I would

venture to draw is, therefore, that although questions of fact, arising

out of capture of a prize, might sometimes be submitted to a tribunal of

arbitration, no case, involving rules of law as to which nations take

different views, could possibly be so submitted. One is glad, therefore,

to notice that the Prime Minister's reply to Mr. A. Herbert was of the

most guarded character. The settlement of the law of prize must

necessarily precede any general resort to an international prize Court;

and if the coming Hague Conference does no more than settle some of the

most pressing of these questions, it will have done much to promote the

cause of peace.

I am, your obedient servant,

T. E. HOLLAND.

Oxford, February 20 (1907).

A NEW PRIZE LAW

Sir,--The leading articles which you have recently published upon the

doings of the Peace Conference, as also the weighty letter addressed to

you by my eminent colleague, Professor Westlake, will have been welcomed

by many of your readers who are anxious that the vital importance of

some of the questions under discussion at The Hague should not be lost

sight of.

The Conference may now be congratulated upon having already given a

_quietus_ to several proposals for which, whether or not they may be

rightly described as Utopian, the time is admittedly not yet ripe. Such

has been the fate of the suggestions for the limitation of armaments,

and the exemption from capture of private property at sea. Such also,

there is every reason to hope, is the destiny which awaits the still

more objectionable proposals for rendering obligatory the resort to

arbitration, which by the Convention of 1899 was wisely left optional.

Should the labours of the delegates succeed in placing some restrictions

upon the employment of submarine mines, the bombardment of open coast

towns, and the conversion of merchant vessels into ships of war; in

making some slight improvements in each of the three Conventions of

1899; and in solving some of the more pressing questions as to the

rights and duties of neutrals, especially with reference to the

reception in their ports of belligerent warships, it will have more than

justified the hopes for its success which have been entertained by

persons conversant with the difficulty and complexity of the problems

involved.

But what shall we say of certain proposals for revolutionising the law

of prize, which still remain for consideration, notably for the

establishment of an international Court of Appeal, and for the abolition

of contraband? It can hardly be supposed that either suggestion will win

its way to acceptance.

1. The British scheme for an international Court of Appeal in prize

cases is, indeed, far preferable to the German; but the objections to

anything of the kind would seem to be, for the present, insuperable,

were it only for the reason which you allowed me to point out, some

months ago, _à propos_ of a question put in the House of Commons by Mr.

Arnold Herbert. As long as nations hold widely different views on many

points of prize law, it cannot be expected that they should agree

beforehand that, when belligerent, they will leave it to a board of

arbitrators to say which of several competing rules shall be applied to

any given case of capture, or to evolve out of their inner consciousness

a new rule, hitherto unknown to any national prize Court. It would seem

that the German advocates of the innovation claim in its favour the

authority of the Institut de Droit International. Permit me, therefore,

as one who has taken part in all the discussions of the Institut upon

the subject, to state that when it was first handled, at Zurich, in

1878, the difficulties in the way of an international Court were

insisted on by such men as Asser, Bernard, Bluntschli, Bulmerincq, and

Neumann, and the vote of a majority in its favour was coupled with one

which demanded the acceptance by treaty of a universally applicable

system of prize law. The drafting of such a system was accordingly the

main object of the _Code des Prises maritimes_, which, after occupying

several sessions of the Institut, was finally adopted by it, at

Heidelberg, in 1887. Only ten of the 122 sections of this Code deal with

an international Court of Appeal. A complete body of law, by which

States have agreed to be bound, must, one would think, necessarily

precede the establishment of a mixed Court by which that law is to be

interpreted.

2. While the several delegations are vying with one another in devising

new definitions of contraband, there would seem to be little likelihood

that the British proposal for its total abandonment will be seriously

entertained. Such a step could be justified, if at all, from the point

of view of national interest, only on the ground that it might possibly

throw increased difficulties in the way of an enemy desirous, even by

straining the existing law, of interfering with the supply of foodstuffs

to the British Islands. I propose, for the present, only to call

attention to the concluding paragraph of the British notice of motion on

this point, which would seem to imply much more than the abandonment of

contraband. The words in question, if indeed they are authentically

reported, are as follows: "Le droit de visite ne serait exercé que pour

constater le caractère neutre du bâtiment de commerce." Does this mean

that the visiting officer, as soon as he has ascertained from the ship's

papers that she is neutral property, is to make his bow and return to

the cruiser whence he came? If so, what has become of our existing right

to detain any vessel which has sailed for a blockaded port, or is

carrying, as a commercial venture, or even ignorantly, hostile troops or

despatches? No such definition as is proposed of an "auxiliary

ship-of-war" would safeguard the right in question, since a ship, to

come within that definition, must, it appears, be under the orders of a

belligerent fleet.

I would venture to suggest that the motto of a reformer of prize law

should be _festina lente._ The existing system is the fruit of practical

experience extending over several centuries, and, though it may need,

here and there, some readjustment to new conditions, brought about by

the substitution of steam for sails, is not one which can safely be

pulled to pieces in a couple of months. Let us leave something for

future Hague Conferences.

I am, Sir, your obedient servant,

T. E. HOLLAND.

Oxford, July 24 (1907).

A NEW PRIZE LAW

Sir,--In a letter under the above heading, for which you were so good as

to find room in July last, I returned to the thesis which I had ventured

to maintain some months previously, _à propos_ of a question put in the

House of Commons. My contention was that the establishment of an

international prize Court, assuming it to be under any circumstances

desirable, should follow, not precede, a general international agreement

as to the law which the Court is to administer.

It would appear, from such imperfect information as intermittently

reaches Swiss mountain hotels, that a conviction of the truth of this

proposition is at length making way among the delegates to The Hague

Conference and among observers of its doings. In a recent number of the

_Courrier de la Conférence_, a publication which cannot be accused of

lukewarmness in the advocacy of proposals for the peaceful settlement of

international differences, I find an article entitled "Pas de Code

Naval, pas de Cour des Prises," to the effect that "l'acceptation de la

Cour des Prises est strictement conditionnelle à la rédaction du Code,

qu'elle aura à interpréter." Its decisions must otherwise be founded

upon the opinions of its Judges, "the majority of whom will belong to a

school which has never accepted what Great Britain looks upon as the

fundamental principles of naval warfare." One learns also from other

sources, that efforts are being made to arrive, by a series of

compromises, at some common understanding upon the points as to which

the differences of view between the Powers are most pronounced. It may,

however, be safely predicted that many years must elapse before any such

result will be achieved.

In the meantime, a very different solution of the difficulty has

commended itself to the partisans of the proposed Court. M. Renault, the

accomplished Reporter of the committee which deals in the first instance

with the subject, after stating that "sur beaucoup de points le droit de

la guerre maritime est encore incertain, et chaque État le formule au

gré de ses idées et de ses intérêts," lays down that, in accordance with

strict juridical reasoning, when international law is silent an

international Court should apply the law of the captor. He is,

nevertheless, prepared to recommend, as the spokesman of the committee,

that in such cases the Judges should decide "d'après les principes[C]

généraux de la justice et de l'équité"--a process which I had, less

complimentarily, described as "evolving new rules out of their inner

consciousness." The Court, in pursuance of this confessedly "hardie

solution," would be called upon to "faire le droit."

One may be permitted to hope that this proposal will not be accepted.

The beneficent action of English Judges in developing the common law of

England may possibly be cited in its favour; but the analogy is

delusive. The Courts of a given country in evolving new rules of law are

almost certain to do so in accordance with the views of public policy

generally entertained in that country. Should they act otherwise their

error can be promptly corrected by the national Legislature. Far

different would be the effect of the decision of an international Court,

in which, though it might run directly counter to British theory and

practice, Great Britain would have bound herself beforehand to

acquiesce. The only quasi-legislative body by which the _ratio

decidendi_ of such a decision could be disallowed would be an

international gathering in which British views might find scanty

support. The development of a system of national law by national Judges

offers no analogy to the working of an international Court, empowered,

at its free will and pleasure, to disregard the views of a sovereign

Power as to the proper rule to be applied in cases as to which

international law gives no guidance. In such cases the ultimate

adjustment of differences of view is the appropriate work, not of a law

Court, but of diplomacy.

It is hardly necessary to combat the notion that there already exists,

_in nubibus_, a complete system of prize law, which is in some

mysterious way accessible to Judges, and reveals to them the rule

applicable to each new case as it arises. This notion, so far as it is

prevalent, seems to have arisen from a mistaken reading of certain

_dicta_ of Lord Stowell, in which that great Judge, in his finest

eighteenth-century manner, insists that the law which it was his duty to

administer "has no locality" and "belongs to other nations as well as

our own." He was, of course, thinking of the rules of prize law upon

which the nations are agreed, not of the numerous questions upon which

no agreement exists, and was dealing with the difficult position of a

Judge who has to choose (as in the recent _Moray Firth_ case) between

obedience to such rules and obedience to the legislative, or

quasi-legislative, acts of his own Government.

I am, Sir, your obedient servant,

T. E. HOLLAND.

Eggishorn, Suisse, September 16 (1907).

A NEW PRIZE LAW

Sir,--The speech of the Prime Minister at the Guildhall contains a

paragraph which will be read with a sense of relief by those who, like

myself, have all along viewed with surprise and apprehension The Hague

proposals for an international prize Court.

Sir H. Campbell-Bannerman admits that "it is desirable, and it may be

essential, that, before legislation can be undertaken to make such a

Court effective, the leading maritime nations should come to an

agreement as to the rules regarding some of the more important subjects

of warfare which are to be administered by the Court"; and his

subsequent eulogy of the Court presupposes that it is provided with "a

body of rules which has received the sanction of the great maritime

Powers." What is said as to the necessary postponement of any

legislation in the sense of The Hague Convention must, of course, apply

_a fortiori_ to the ratification of the Convention.

We have here, for the first time, an authoritative repudiation of the

notion that fifteen gentlemen of mixed nationality composing an

international prize Court, are to be let loose to "make law," in

accordance with what may happen to be their conceptions of "justice and

equity." It seems at last to be recognised that such a Court cannot be

set to work unless, and until, the great maritime Powers shall have come

to an agreement upon the rules of law which the Court is to administer.

I may add that it is surely too much to expect that the rules in

question will be discussed by the Powers, to use Sir H.

Campbell-Bannerman's phrase, "without any political _arrière pensêe._"

Compromise between opposing political interests must ever remain one of

the most important factors in the development of the law of nations.

I am, Sir, your obedient servant,

T. E. HOLLAND.

Oxford, November 11 (1907).

Although the establishment of an International Prize Court of

Appeal was not one of the topics included in the programme of

the Russian invitation; to a second Peace Conference, no

objection was made to its being taken into consideration, when

proposals to that effect were made by the British and American

delegates to the Conference. The idea seems first to have been

suggested by Hübner, who proposed to confer jurisdiction in

cases of neutral prize on Courts composed of ministers or

consuls, accredited by neutrals to the belligerents, together

with commissioners appointed by the Sovereign of the captors or

of the country to which the prize has been brought, as also,

perhaps, "des personnes pleines de probité et de connaissances

dans tout ce qui concerne les Loix des Nations et les Traités

des Puissances modernes." The Court is to decide in accordance

with treaties, "ou, à leur défaut, la loi universelle des

nations." _De la Saisie des Bâtiments neutres_ (1759), ii. pp.

45-61. The Institut de Droit International, after discussions

extending over several years, accepted the principle of an

International Court of Appeal, though only in combination with

a complete scheme of prize law, in its _Code des Prises

maritimes_, completed in 1887, section 100.

At the Conference of 1907, the work of several committees, and

a masterly report by Professor Renault, _Parl. Papers_, No. iv.

(1908), p. 9, resulted in The Hague Convention, No. xii. of

that year, providing for the establishment of a mixed Court of

Appeal from national prize Courts.

According to Art. 7 of this Convention, in default of any

relevant treaty between the Governments of the litigant

parties, and of generally recognised rules of international law

bearing upon the question at issue, the Court is to decide "in

accordance with the general principles of justice and equity."

It seems, however, to have been soon perceived that the

proposal to institute a Court, unprovided with any fixed system

of law by which to decide the cases which might be brought

before it, could not well be entertained, and the Final Act of

the Conference accordingly expresses a wish that "the

preparation of a _Règlement_, relative to the laws and customs

of maritime war, may be mentioned in the programme of the next

Conference."

Thereupon, without waiting for the meeting of a third Hague

Conference, the British Government on February 27, 1908,

addressed a circular to the great maritime Powers, which, after

alluding to the impression gained "that the establishment of

the International Prize Court would not meet with general

acceptance so long as vagueness and uncertainty exist as to the

principles which the Court, in dealing with appeals brought

before it, would apply to questions of far-reaching importance,

affecting naval policy and practice," went on to propose that

another Conference should meet in London, in the autumn of the

same year, "with the object of arriving at an agreement as to

what are the generally recognised principles of international

law within the meaning of paragraph 2 of Article 7 of the

Convention, as to those matters wherein the practice of nations

has varied, and of then formulating the rules which, in the

absence of special treaty provisions applicable to a particular

case, the Court should observe in dealing with appeals brought

before it for decision.... It would be difficult, if not

impossible, for H.M. Government to carry the legislation

necessary to give effect to the Convention, unless they could

assure both Houses of the British Parliament that some more

definite understanding had been reached as to the rules by

which the new Tribunal should be governed."

In response to this invitation, delegates from ten principal

maritime States assembled at the Foreign Office on December 4,

1908, and after discussing the topics to which their attention

was directed, viz.: (1) Contraband; (2) Blockade; (3)

Continuous voyage; (4) Destruction of neutral prizes; (5)

Unneutral service; (6) Conversion of merchant vessels into

warships on the high seas; (7) Transfer to a neutral flag; (8)

Nationality or domicil, as the test of enemy property; signed

on February 26, 1909, the Declaration of London.

The Convention No. xii. of 1907 and the Declaration of London

of 1909 have alike failed to obtain ratification. _Cf._ now the

two immediately following sections, 9 and 10.

An ultimate Court of Appeal in cases of Prize seems now likely

to be provided by the "Permanent Court of International

Justice," proposed by the League of Nations in pursuance of

Art. 14 of the Treaty of Versailles. See also Art. 24 of the

Treaty. _Cf. supra_, p. 2.

* * * * *

SECTION 9

_The Naval Prize Bill_

The first two letters in this section contain the criticisms of

the Bill to which allusion is made in the first lines of a

letter of later date, q.v. _supra_, p. 36. On the rejection of

the Bill, see _ib._, note 1.

THE NAVAL PRIZE BILL

Sir--A paternal interest in the Naval Prize Bill may perhaps be thought

a sufficient excuse for the few remarks which I am about to make upon

it. The Bill owes its existence to a suggestion made by me, just ten

years ago, while engaged in bringing up to date for the Admiralty my

_Manual of Naval Prise Law_ of 1888. It was drafted by me, after

prolonged communications with Judges, Law Officers, and the Government

Departments concerned, so as not only to reproduce the provisions of

several "cross and cuffing" statutes dealing with the subject, but also

to exhibit them in a more logical order than is always to be met with in

Acts of Parliament.

The Bill was thought of sufficient importance to be mentioned on two

occasions in the King's Speech, and has been several times passed, after

careful consideration, by the House of Lords; but pressure of other

business has hitherto impeded its passage through the House of Commons.

It has now been reintroduced, this time in the Lower House, with an

imposing backing of Government support; primarily, no doubt, with a view

to facilitating the ratification of The Hague Convention for the

establishment of an International Prize Court of Appeal. For this

purpose, several pieces of new cloth have been sewn into the old

garment, and I may perhaps be allowed to call attention to three or four

points in which, on a first reading, the new clauses strike one as

needing reconsideration.

Tactical reasons have, no doubt, operated to induce the Government to

include in the Consolidation Bill the provisions for which statutory

authority must be obtained before it will be possible to ratify the

Convention; instead of first introducing a Bill having this sole object

in view, and afterwards, should this be passed, inserting the new law in

a reintroduced Consolidation Bill.

The course adopted necessitates an otherwise unnecessary preamble, and

the qualification of the new Part III. by the words "in the event of an

International Prize Court being established" (Clause 23). The reference,

by the by, in this clause to "the said Convention" is somewhat awkward,

no mention of any Convention having occurred previously, except in the

preamble of the Bill. Is not also the statutory approval given by this

clause, not only to the Convention of 1907 but also to "any Convention

amending the same," somewhat startling, as tending to exclude

Parliamentary criticism of such an amending Convention before its

ratification?

By Clause 9, the members of the Judicial Committee who are to be

nominated to act as the British Court of Appeal in cases of prize are to

be described by the novel title of "the Supreme Prize Court." Is not the

use made of the term "Supreme" in the Judicature Acts, as covering both

the High Court and the Court of Appeal, already sufficiently

unsatisfactory?

But the question which, of all others _saute aux yeux_, in reading the

new Part III., is whether the Convention is to be approved as it stands,

irrespectively of a general acceptance of the new Code of Prize Law

contained in the Declaration of London of 1909. The objections to Art. 7

of the Contention, providing that, in the absence of rules of

International Law generally recognised (and on many points of Prize Law

there are no such rules), the Court is to decide in accordance with

(what it may be pleased to consider) "the general principles of law and

equity," are well known. The purpose of the Declaration of London

(itself the subject of much difference of opinion) was to curtail this

licence of decision, by providing the Court with so much ascertained

Prize Law as to render action under the too-elastic phrase above quoted

almost inconceivable.

Is it too much of a counsel of perfection to suggest that the debatable

questions arising under the Convention of 1907 and the Declaration of

1909 should first be threshed out in discussions on a Bill dealing with

those questions only; and that the decision, if any, thus arrived at

should be subsequently inserted, freed from hypothesis, in the

Consolidation Bill which has so long awaited the leisure of the House of

Commons?

I am, Sir, your obedient servant,

T. E. HOLLAND.

Oxford, July 10 (1910).

THE NAVAL PRIZE BILL

Sir,--The Government has so far yielded to the representations of the

Opposition as to have refrained from forcing on Friday night a division

upon the Naval Prize Bill. Is it too much to hope that the Government

may even now withdraw altogether a measure so ill adapted to place

fairly before Parliament the question of the desirability of ratifying

two documents held by a large body of competent opinion to be certain,

if ratified, seriously to endanger the vital interests of the country?

The Bill, as I have already pointed out, as originally drawn, was a

careful consolidation of the law and procedure governing British Courts

of Prize. Into this has now been incongruously thrust a set of clauses

intended to give effect to a novel and highly controversial proposal for

the creation of an International Prize Court. About the Declaration of

London, alleged to contain a body of law which would adequately equip

such a Court for the performance of its duties, not a word is said in

the Bill; yet, should approval of the Bill be snatched by a purely party

majority, the intention of the Government is to proceed straightway to

the ratification both of the Prize Court Convention and the Declaration.

Whether they intend also to endeavour to obtain the ratification, as an

auxiliary Convention, of the lengthy covering commentary upon the

Declaration, supplied by the committee by which the Declaration was

drafted, does not yet appear. Of such a step I have already written that

it "would be calamitous should a practice be introduced of attempting to

cure the imperfect expression of a treaty by tacking on to it an equally

authoritative reasoned commentary. The result would be _obscurum per

obscurius_, a remedy worse than the disease."

The alternatives before Parliament on Monday next will be either, by

reading the Naval Prize Bill a second time, to bring about, in the teeth

of protests from those best qualified to express an independent opinion

upon the subject, the immediate ratification of the Convention and the

Declaration, or to ask that before, this momentous step is taken the

infinitely complex and delicate questions involved should be examined

and passed upon by a Commission of representative experts. Which shall

it be?

Your obedient servant,

T. E. HOLLAND.

Oxford, July I (1911).

_Cf._ a letter of July 7, 1911, _supra_, p. 36.

NAVAL PRIZE MONEY

Sir,--The existing enactments as to prize bounty are, it seems,

unsuitable to present conditions of naval warfare, and are accordingly

to be varied by a bill shortly to be introduced.

May I venture to recommend that the Bill should contain merely the

half-dozen clauses needed for this purpose, leaving untouched for

subsequent uncontroversial passage, the Naval Prize Consolidation with

Amendments Bill? This Bill, suggested and drafted by myself, in the

spacious times of peace, in consultation with the Admiralty and other

Government Departments, as also with the Judge of the Admiralty Division

and the Law Officers (including the present Lord Chancellor), was twice

mentioned in the King's Speech, and several times, after careful

consideration, passed by the House of Lords, but still awaits the

leisure of the Lower House. It deserved a better fate than to have been

used, in 1911, as a corpus vile for facilitating the ratification of the

Convention for an International Prize Court and of the Declaration of

London; receiving, most fortunately, as so perverted, its _coup de

grâce_ from the Lords. It should be passed as an artistic whole, apart

from any contentious matter, account having, of course, been taken of

recent legislation by which it may have been, here and there, affected.

I am, Sir, your obedient servant,

T. E. HOLLAND.

Oxford, May 23 (1918).

* * * * *

SECTION 10

The Declaration of London

For incidental mentions of the Declaration in earlier sections

see _supra_, pp. 22, 36, 39, 55, 58, 80, 90, 92, 148, 149, 154,

155, 156, 158, 163, 164, 174, 181, 191, 193, 194, 195, 196.

See also my paper upon _Proposed Changes in the Law of Naval

Prize_, read to the British Academy on May 31, 1911,

_Transactions_, vol. v., of which a translation appeared in the

_Revue de Droit International_, N.S., t. xiii, pp. 336-355.

THE DECLARATION OF LONDON

Sir,--The questions put last night by Mr. M'Arthur need, perhaps, more

fully considered answers than they received from Mr. McKinnon Wood.

With reference to the first answer, it may be worth while to point out

that, in Art. 66 of the Declaration, the Powers undertake not only, as

in the passage quoted, "to give the necessary instructions to their

authorities and armed forces," but also "to take the measures which may

be proper for guaranteeing the application of the rules Contained in the

Declaration by their Courts, and, in particular, by their Courts of

Prize." The "authentic commentary" upon the article in M. Renault's

"Report" explains that the measures in question "may vary in different

countries, and may or may not require the intervention of the

Legislature."

The second answer lays down broadly that "the decisions of the British

Prize Courts are founded on International Law, and not on municipal

enactments." Our Prize Courts have, no doubt, on most points, decided in

accordance with International Law, in the sense of the principles

generally followed by civilised nations; but, on not a few points, in

accordance with the British view of what is, or ought to be,

International Law, in opposition to views persistently maintained by

other countries--e.g. with reference to the moment from which a

blockade-runner becomes liable to capture. The fact is that, whatever

grandiloquent language may have been judicially employed by Lord Stowell

in a contrary sense, it will now hardly be denied that a Prize Court

sits by national, not international, authority, and is bound to take the

view of International Law which, if any, is prescribed to it by the

constitutionally expressed will of its own Government.

The Declaration of London is in many ways a great achievement; but one

is glad to learn from Mr. McKinnon Wood's third answer that opportunity

will be given for discussing all important points in connexion with its

rules.

I am, Sir, your obedient servant,

T. E. HOLLAND.

Oxford, March 30 (1909).

THE DECLARATION OF LONDON

Sir,--Both the Prize Court Convention of 1907 and its complement, the

London Declaration of 1909, stand greatly in need of full and

well-informed discussion before receiving the Parliamentary approval

which ought to be a condition precedent to the ratification of either of

them. It is well, therefore, that many Chambers of Commerce have called

the attention of Government to the detriment to British interest which

may in their opinion result from these agreements if ratified, although

the representations thus made exhibit, in some cases, so little

technical knowledge as to have been readily disposed of by the Foreign

Secretary. For the same reason, I welcome the letter from Mr. Gibson

Bowles, which appeared in _The Times_ of yesterday, although it contains

some statements the inaccuracy of which it may be desirable at once to

point out.

1. The Declaration of Paris is neither implicitly nor explicitly adopted

by the Declaration of London, "as a part of the common law of nations

which can no longer be disputed." The later makes no mention of the

earlier one, and M. Benault's _rapport_ (as to the interpretative

authority of which opinions may well differ) applies the words quoted,

not to the Paris Declaration as a whole, but to one only of its

articles. Mr. Bowles's statement that "the Declaration of London, if

adopted, would reaffirm, and its ratification would in effect, for the

first time ratify, the Declaration of Paris" cannot be supported.

2. Mr. Bowles asserts it to be "an unquestioned doctrine of the Law of

Nations that war abrogates and annuls treaty obligations between

belligerents." One would have supposed it to be common knowledge that

large classes of treaties are wholly unaffected by war. Such are, for

instance, what are called conventions _transitoires_, because their

effect is produced once for all, as in the case of cessions of

territory; and, notably, treaties entered into for the regulation of the

conduct of war, such as the Geneva Convention, many of The Hague

Conventions of 1907, and the Declaration of Paris itself, which Mr.

Bowles appears to think would _ipso facto_ cease to be obligatory

between its signatories on their becoming belligerent.

It is a pleasure to be able to agree with Mr. Bowles in his wish that

the Naval Prize Bill, if reintroduced, should be rejected, though I

would rather say "withdrawn." You have already allowed me (on July 10)

to point out that if the Convention and Declaration are to be

effectively discussed in Parliament they should be disentangled from

that Bill, into which the Convention, and, by implication, the

Declaration, have been incongruously thrust. This practically

non-contentious Consolidation Bill, after several times securing the

approval of the House of Lords, has hitherto for several years awaited

the leisure of the House of Commons, but was suddenly reintroduced last

Session, apparently as an unobtrusive vehicle for the new and highly

debatable matter contained in the two above-mentioned documents. May I

now repeat my suggestion that "the debatable questions arising under the

Convention of 1907 and the Declaration of 1909 should first be threshed

out in discussions on a Bill dealing with these questions only; and that

the decision, if any, thus arrived at should be subsequently inserted,

freed from hypothesis, in the Consolidation Bill"?

I am, Sir, your obedient servant,

T. E. HOLLAND.

Oxford, December 28 (1910).

THE DECLARATION OF LONDON

Sir,--I have read Professor Westlake's letters upon the Declaration of

London with the attention due to anything written by my very learned

friend, but, although myself opposed to the ratification alike of the

Prize Court Convention and of its complement, the Declaration, do not at

present wish to enter upon the demerits of either instrument.

There is, however, a preliminary question upon which, with your

permission, I should like to say a few words. My friend justly observes

that in dealing with the Declaration "the first necessity is to know

what it is that we have before us"; and he devotes his letter of January

31 to maintaining that the Declaration must be read as interpreted by

the explanations of it given to the full Conference by the Drafting

Committee, of which M. Renault was president. Professor Westlake

supports his opinion by a quotation from the reply of the Foreign Office

in November last to the Edinburgh Chamber of Commerce (_Miscell._ 1910,

No. 4, p. 21). I may mention that a similar reply had been given, a year

previously, by Mr. McKinnon Wood to a question in the House of Commons.

The source of these replies is doubtless to be found in a paragraph of

the Report, addressed on March 1, 1909, to Sir Edward Grey, of the

British Delegates to the London Conference, which runs as follows:--

"It should be borne in mind that, in accordance with the

principles and practice of Continental jurisprudence, such a

Report is considered an authoritative statement of the

meaning and intention of the instrument which it explains,

and that consequently foreign Governments and Courts, and no

doubt also the International Prize Court, will construe and

interpret the provisions of the Declaration by the light of

the Commentary given in the Report." (_Miscell._ 1909, No. 4,

p. 94.)

It is desirable to know upon what authority this statement rests. I am

aware of none. The nearest approach to an assertion of anything like it

occurred at The Hague Conference of 1899, when the "approval" accorded

to "the work of the Second Committee, as embodied in the articles voted

and in the interpretative Report which accompanies them" was alleged by

M. de Martens to amount to an acceptance of the Report "comme un

commentaire interprétatif authentique des articles votés." (_Miscell._

1899, No. 1, p. 165.) The drafting Report presented to the Geneva

Conference of 1906 is merely said to have been "adopted" (Actes, p.

286); and M. Renault's Report to the Conference of London was similarly

merely "accepted," although he presented it as containing

"Un commentaire précis, dégagé de tout controverse, qui,

devenu commentaire officiel par l'approbation de la

Conférence, soit de nature à guider les autorités diverses,

administratives, militaires, judiciaires, qui pourront avoir

à l'appliquer." (_Miscell._ 1909, No. 5, p. 344.)

It would seem that in each of these cases the adoption of the Report,

and even a suggestion or two for a change in its phraseology, amounted

to nothing more than an expression of opinion on the part of the

Delegates to the Conference that the Report contained explanations which

had satisfied themselves, and might satisfy their Governments, that the

Convention which they were about to forward to those Governments might

safely be accepted.

So far as Governments are concerned, the adoption of a Report by their

Delegates is _res inter alios acta_. An "authentic interpretation" of a

contract can be given only by the parties to it, who, in the case of a

treaty, are the States concerned. If these States desire to give to the

report of a drafting committee the force of an authentic interpretation

of their contract, they can surely do so only by something amounting to

a supplementary convention. Writers upon international law naturally

throw but little light upon questions to which the somewhat novel

practice of argumentative drafting Reports has given rise; but I may

cite Professor Ullmann, of Vienna, as saying:--

"Eine authentische Interpretation kann nur die durch

Kontrahenten selbst, in einem gemeinschaftlichen, ihren

Willen ausser Zweifel setzenden Acte (einem Nachtrags-oder

Erlauterungsvertrage), erfolgen" (Volkerrecht, p. 282);

and Professor Fiore, of Naples, to the effect that what is called

"authentic interpretation" is not

"interpretazione propriamente detta, ma una dichiarazione di

quello che fu gia concordato, o un nuovo trattato" (Diritto

Internazionale, ss. 1, 118);

and that

"il trattato non può essere interpretato che dalle stesse

Parti (_i.e._ Stati) contrahenti; e per la validità dell'

atto è indispensabile che la relativa convenzione di

interpretazione abbia gli stessi requisiti ... di ogni altra

convenzione tra Stato e Stato" (Il Dir. Int. Codif., § 816).

I would submit that such a Report as that which accompanies the

Declaration of London has no claim to the sort of interpretative

authority which has been attributed to it; nor is it desirable that the

requisite steps should be taken for giving it that authority. It would

be calamitous should a practice be introduced of attempting to cure the

imperfect expression of a treaty by tacking on to it an equally

authoritative reasoned commentary, likely, as in the present case, to be

enormously longer than the test to which it relates.

It is a wholly different question whether Governments or Courts would be

inclined to take notice of such a Report, among other facts antecedent

to a Convention, or Declaration, which they might be called upon to

construe. A British Court would not, I conceive, be so inclined. On the

probable inclinations of Continental Courts, and of an International

Prize Court, should one be instituted, further expert information would

seem to be called for.

The fact is that the vitally important questions of theory and practice

raised by the Convention and the Declaration need calmer and better

instructed discussion than they have yet received. Ought they not to be

referred to a Royal Commission, on which should be placed

representatives of the Navy and Merchant Service, of the corn trade, and

of the Colonies, together with international lawyers, in touch with the

views of their Continental colleagues?

I am, Sir, your obedient servant,

T. E. HOLLAND.

Oxford, February 16 (1911).

THE DECLARATION OF LONDON

Sir,--Professor Westlake, replying in _The Times_ of to-day to the

arguments by which I had endeavoured to show that the Report made to the

Conference of London has no pretensions to be treated as an authentic

interpretation of the Declaration prepared by the Conference, still

maintains that "the essential question will be, what the agreement was

that the Conference arrived at." I had maintained, on the contrary, that

the essential question will be, What is the agreement entered into by

the Powers, as evidenced by their ratifications? anything outside of the

ratified agreement being _res inter alios acta_. I should not be

justified in asking you to allow me to repeat the contents of my letter

of Monday last in support of this view. The pleadings are, I think,

exhausted. "Therefore let a jury come."

I should like, however, to point out that I did not, as my friend seems

to think, attribute the acceptance of the Report to the delegates

"singly." It was, no doubt accepted by all present without protest. My

colleague will, I am sure, pardon me if I add that I cannot concur in

his exegesis of my citations from Ullmann and Fiore.

I am, Sir, your obedient servant,

T. E. HOLLAND.

Oxford, February 25 (1911).

THE DECLARATION OF LONDON

Sir,--It is satisfactory that so high an authority as Mr. Arthur Cohen

distinctly accedes to the view that the Declaration of London ought not

to be ratified as it stands. I should, however, be sorry were his

suggestion accepted that the Declaration and the argumentative report

which accompanies it might be ratified together. The result would be

_obscurum per obscurius_, a remedy worse than the disease.

I shall ask leave to add that, if Mr. Cohen will take the trouble to

look again at my letters of February 10 and 25, he will cease to suppose

it possible that in writing "the pleadings are, I think, exhausted,

&c.," I meant to convey that no further discussion of the merits or

demerits of the Declaration was required. On the contrary I expressly

limited myself to a consideration of the preliminary question, whether

interpretative authority would rightly be attributed to the report in

question, stating that, while opposed to the ratification alike of the

Prize Court Convention and of the Declaration, I did not, for the

present, wish to enter upon the demerits of either instrument; and ended

my first letter by suggesting the reference to a Royal Commission of

"the vitally important questions of theory and practice raised by the

Convention and the Declaration," as needing "calmer and better

instructed discussion than they have yet received."

I am, Sir, your obedient servant,

T. E. HOLLAND.

Oxford, March 1 (1911).

THE DECLARATION OF LONDON

Sir,--After Tuesday's debate in the House of Lords it may be hoped that

not even "the man in the street" will suppose the Declaration of London

to be anything more than an objectionable draft, by which no country has

consented to be bound. Every day of the war makes more apparent our debt

to the House of Lords for having, four years ago, prevented the British

Government from ratifying either the International Prize Court

Convention or this Declaration, which, while misleadingly professing

that its provisions "correspond in substance with the generally

recognised principles of international law," contains, interspersed with

truisms familiar to all concerned with such matters, a good many

undesirable novelties.

This being so, it was surely unfortunate that our Government, with a

view apparently to saving time and trouble, decided, in the early days

of the war, to adopt the Declaration _en bloc_ as a statement of prize

law "during the present hostilities," subject, however, to "certain

additions and modifications"; to which it, of course, retained the power

of making additions. This power has been so freely exercised, and large

portions of the Declaration, not thereby affected, have proved to be so

inapplicable to modern conditions, as disclosed by the war, that the

document, so far from providing reliable guidance, is now a mere source

of hopeless confusion.

To put an end to this confusion, I venture to suggest that, in concert

with our Allies, the Declaration should be finally consigned to

oblivion. Either let its place be taken by some clear and simple

statement of unquestioned prize law, for the use of commanders and

officials (something like a confidential document in the drafting of

which I had a hand some years ago, but, of course, brought up to date),

or let established principles take care of themselves, certain doubtful

points only being dealt with, from time to time, by Orders in Council.

While heartily concurring in Lord Portsmouth's description of the

unratified "Declaration" as "rubbish," I regret that he seems to

relegate to the same category even those generally ratified "Hague

Conventions" which, as far as they go, mark a real advance upon

previously accepted rules. Still less acceptable is his advice to "sweep

away juridical niceties" in the conduct of hostilities. Did he intend

thus to describe the whole fabric of the rules by which international

law has endeavoured, with considerable success, to restrain barbarity in

warfare?

I must mention that this letter was written before seeing this morning

the letter of Mr. Gibson Bowles, my worthy ally in attacks upon the

Declaration.

I am, Sir, your obedient servant,

T. E. HOLLAND.

Oxford, December 3 (1915).

THE DECLARATION OF LONDON

Sir,--You have allowed me, in a good many letters, to criticise the

Declaration of London, both in its original inception and in its

subsequent applications. Thanks to the House of Lords, the Declaration,

which erroneously professed to "correspond in substance with the

generally recognised principles of International Law," has remained

unratified, and therefore diplomatically of no effect.

Its admirers have, however, too long preserved it, perhaps _sub spe

rati_, in a state of suspended animation, using it by way of, as they

supposed, a convenient handbook of maritime law for the purposes of the

present war, though subject to such variations as might from time to

time be found convenient by the Allies. The mistake thus made soon

became apparent. The elaborate classification of contraband had to be at

once thrown overboard, and most of the remaining provisions of the

Declaration proved to be inapplicable to modern warfare.

In December last I accordingly wrote as follows:--

"To put an end to this confusion, I venture to suggest that,

in concert with our Allies, the Declaration should be finally

consigned to oblivion. Either let its place be taken by some

clear and simple statement of unquestioned prize law, for the

use of commanders and Officials, ... or established

principles take care of themselves, certain doubtful points

only being dealt with from time to time by Orders in

Council."

I need hardly say that to anyone holding the views thus expressed,

yesterday's Order in Council must be most satisfactory; getting rid, as

it does for good and all, of the unfortunate Declaration, leaving the

application of established principles to those acquainted with them and

promulgating authoritative guidance on specific novel questions.

I may perhaps add a word or two on the undesirability of describing as

"Declarations" documents which, being equipped with provisions for

ratification, although they may profess to set out old law, differ in no

respect from other conventions. Also, as to the need for greater caution

on the part of our representatives than has been shown by their

acceptance of various craftily suggested anti-British suggestions, such

as were several embodied in the Declaration in question, and notably

that of the notorious cl. 23 (_h_) of The Hague Convention iv., the

interpretation of which has exercised the ingenuity of the Foreign

Office and, more recently, of the Court of Appeal.

I am, Sir, your obedient servant,

T. E. HOLLAND.

Brighton, July 9 (1916).

On July 7, 1916, an Order in Council was made, revoking all

Orders by which the provisions of the Declaration had been

adopted, or modified, for the duration of the war; stating the

intention of the Allies to exercise their belligerent rights at

sea in strict accordance with the law of nations; but dealing

specifically with certain doubtful points. The Order was

accompanied by a memorandum, drawn up by the British and French

Governments, explaining how their expectation that in the

Declaration they would find "a suitable digest of principles

and compendium of working rules" had not been realised. See

also Lord Robert Cecil in the House of Commons on August 23,

with reference to the Zamora case, [1916] 2 Ch. c. 77.

On misuses of the term "Declaration" _cf. supra_, pp. 90, 91,

92.

GERMANY WRONG AGAIN

Sir,--The new German Note handed on Thursday last to the representatives

of the neutral Powers supports its allegation that the four Allied

Powers "have trampled upon right and torn up the treaties on which it

was based" by the following statement:--

"Already in the first weeks of the war England had renounced

the Declaration of London, the contents of which her own

delegates had recognised as binding in international law."

It is surely notorious that the delegates of a Power, by agreeing to the

draft of a treaty, give to it no international validity, which results

only when the treaty has been ratified by their Government. The

Declaration of London has, most fortunately, never been ratified by the

Government of Great Britain.

I am, Sir, your obedient servant,

T. E. HOLLAND.

Oxford, January 13 (1917).

INDEX

Absolute contraband. _See_ Contraband

Abstention, 129

Acquiescence, State duty of, 129, 130, 133, 136

_Actæon_, the, 176, 179

Acts of Parliament, 61, 63

Admiralty Manual of Prize Law, 156, 159, 192

Aerial warfare, 61

Air, opposite views as to rights over, 64, 65

Aircraft in war, 69

_Alabama_, the, 131, 183

_Alexander, Mrs., the cotton of_, 153

Alien enemies, civil disabilities of, 47, 49, 205

_Allanton_, the, 158, 161, 162, 163

_Ancipitis usus_, articles, 148

_Angarie, Droit d'_, 170

_Appam_, the, 146

_Arabia_, the, 152

Arbitration, 1-6, 184

treaties, general, 6, 7

treaties, limited, _ib._

cases fit for, 5

the Hague tribunal of, 5

Armaments, limitation of, 184

Armed civilians, 77

Neutralities, the, 83

Army, duties of, 77

Article 23 (h), 47, 49, 206, 207

restricting application, 146

Aspirations, 99

Assassination, 93

_Asturias_, the, 60

Asylum to belligerent warships, 129, 143

_Atalanta_, the, 160

Aube, Admiral, 116

Authentic interpretation, 107, 196, 199, 201, 205

Baden-Powell, Sir G., 81, 85, 87

Baker, Sir Sherston, 85

Balfour, Mr. A.J., 13, 15, 73, 74, 173

Balloons, projectiles from, 30, 62

Base of operations, neutral duty as to, 129, 134, 144, 145

Baty, Dr. T., 161

Bays, 166, 167

Belligerents, lawful, 73, 75, 76, 77, 78, 79

Beresford, Lord Charles, 118

_Bermuda_, the, 160

Bills criticised, 36-40, 47, 192

Birkenhead, Lord, 135

Bismarck, Prince, 170

Bliss, Sir H., 150

Blockade,

belligerent, 29, 83, 156

fictitious, 57, 59

pacific, 9-14, 17

Bluntschli's reply to Von Moltke, 26

Bombardment, 62

of open coast towns, 30, 62

from the air, 112, 123

Bondholders, foreign, vindication of rights of, 15

Bowles, Mr. Gibson, 54, 87, 89, 90, 92, 141, 173, 177, 178, 198

Brandschatz, 117

Brassard, effect of a, 79

Bright, Sir Charles, 171, 172

British Academy, author's paper at, 174

British Manual of Military Law, 74

Handbooks on War on Land, 75, 76

Brodrick, Mr., 75

_Brown_ v. _United States_, 45

Brusa, Prof., 130

Brussels Conference, the, of 1874, 68, 74, 77, 114, 172

Bullets,

expanding, 22, 94, 96

explosive, 22, 94, 95

in savage warfare, 94

_Bundesrath_, the, 29, 157, 160

Butler, General B.F., 153

Bynkershoek, 45, 71, 165, 166

Cable-cutting, 30, 168-173

Cables, submarine, 168

Campbell-Bannerman, Sir H., 189

Captors, unqualified, 71, 73, 162, 163

Carson, Sir Edward, 127

Cavell, Miss, case of, 79

_Calchas_, the, 151, 152, 153

Cecil, Lord Robert, 8, 207

Channel tunnel, 42

_Chavasse, ex parte_, 137

Civilians armed, position of, 77, 78, 79

Churchill, Mr. Winston, 106

Claims, competitive, 17

Clarke, Sir Edward, 124

Clode, Mr., 112

Closed localities, 50

Clothing, use of enemy, 75

Coal, 176

conditional contraband, 149

for belligerent fleet, 131, 134

Coast fishing vessels, 30

Codification of laws of war, 22, 23

Cohen, Mr. Arthur, 47, 203

Coltman, Mr., 85

Commencement of war, 41

_Commercen_, the, 159

Commissioning on the High Seas, 90

Commissions of enquiry, 4

Compromise, the, between belligerent and neutral rights, 133, 136, 164,

169

Conditional contraband. _See_ Contraband

Conduct of warfare between belligerents, 50

Conflict of Laws, 34, 35

Continuous voyages, 29, 157, 162, 183

"Contraband, a happy little," 153

Contraband of war,

what it is, 130, 134, 159, 175

absolute and conditional, 147, 151, 152, 154, 158

British proposal to abolish doctrine of, 163, 184, 185

coal, how far, 132, 134, 149, 176

cotton, how far, 151, 152, 177

food-stuffs, how far, 176, 185

Japanese rules as to, 149, 155, 156

misuse of the term, 134

no neutral duty to prohibit export of, 113, 140

Russian rules as to, 154, 176

the Declaration of London as to, 164

the two constituents of, 159

Contractual debts, 21

Contributions, 102, 118

Conventions. _See_ Geneva, Hague, &c.

and Legislation, 36

"transitoires," 198

Conversion. _See_ Transformation

Convoy, 31

Cotton, 177

as contraband, 149, 151, 152

Court of International Justice, a permanent, 2, 191

Criticism of Bills, 36-40, 192

Customs Consolidation Act, 1853, 132

Danger zone, a, 59

Dardanelles, closing of, 55, 58, 80, 90, 92

"Declaration," misuse of the term, 90, 92, 206

Declaration, the, of London, 22, 36, 39, 80, 92, 147, 149, 154, 155,

158, 161, 163, 164, 181, 191, 193-207

provisional adoption of, as modified, 154, 204

rejection of, 206, 207

Declaration, the, of Paris, 22, 26, 57, 59, 80, 81, 82, 83, 87, 89, 156,

198

accession to, of Spain and Mexico, 81, 86, 87, 88, 89, 91

Declaration, the, of St. Petersburg, 22, 27, 91, 95, 96, 97

von Moltke upon, 25

Declaration of war, 10, 41, 43

Declarations,

mistaken view as to their not needing ratification, 90, 91

the three, of the Hague in 1899. _See_ Hague

De Horsey, Admiral, 118, 164

De Joinville, Prince, 117

De Martens, Prof., 162, 166, 176, 200

Deposit of delict, 158

Despatches, enemy, 156, 158, 160

Destination, 8, 155, 156

Destruction of neutral prizes, 22, 173-181

Dickenson, Mr. Lowes, 125

_Direct U.S. Cable Co._ v. _Anglo-American Tel. Co._, 166

Disguise, 75, 76

Distinctive marks, 77, 79

_Doelwijk_, the, 161

Drago doctrine, the, 20

_Droit d'angarie_, the, 170

Dum-dum bullet. _See_ Bullets

_Durward_, the, 60

Embargo, 11

Enemy,

who is an ?, 401[E]

disabilities of, 47, 49, 206

goods in neutral bottoms, 83

in occupied territory, 102

merchant vessels at outbreak, 45, 49

property on land, 102

property at sea, 29, 104, 184

resident at outbreak, 44

service, 157, 158, 186

"Englishman's Home, An," the play, 77

Enquiry, international Commissions of, 1, 3, 4, 6

Evans, Sir Samuel, 70

False colours, 30, 43, 76

Fauchille, M., 47, 64, 65

_Felicity_, the, 164, 166, 167, 175, 177, 179

Fiore, Prof., 201

Fishing vessels, 31

Flag of truce, 76

Food-stuffs, 148, 174

how far contraband, 148, 176, 185

Food, Royal Commission on, 148, 174, 177

Foreign Enlistment Acts, the, 131, 134, 138, 139, 141, 143

Foreign Enlistment Bills, new, 39

Foreign soldiers, 45

Forster, Arnold-, Mr., 45

_Fox_, the, 176, 177

_Fram_, the, 137

_Francs-tireurs_, 79

"Freedom of the seas," 51, 97

French Government Manual for Land Warfare, 117

Friendly methods of settlement, 1

Gases, harmful, whether employment of, legitimate, 22, 96, 97

Geffken, Prof., 13

General principles of justice and equity, the, 187, 189, 190, 193

Geneva Convention Bill, 36

Geneva Conventions, the, 22, 34, 67, 98, 100

application of, to maritime warfare, 30, 98

Gentili, A., 170

Germany. _Cf._ Hague Conventions

proclamation by, of a danger zone, 59

wrong as to Declaration of London, 207

Giffen, Sir R., 13

Gladstone, Mr., 134

_Goeben_ and _Breslau_, the, 91

_Golden Rocket_, the, 85

Good offices, 1, 2, 3

Government authority, as a protection, 72

Government Bills and International Conventions, 36-40, 192, 195, 204

Granville, Lord, 82, 85, 131, 170, 177

Greek coast, blockade of, 13

Guerilla warfare, 73

Gundel, General de, 48

Grotius, 45, 148, 155, 166, 168, 169

_Haabet_, the, 160

Hague Conventions, the,

of 1889, 1, 2, 3, 6, 30, 61, 74, 75, 94, 102, 105, 107, 120, 184

of 1907, 1, 6

applicable only between contracting Powers, 69

No. i., 2, 3, 6

No. ii., 21, 22

No. iii., 22, 36, 44

No. iv., 22, 45, 60, 61, 67, 75, 76, 77, 96, 105, 107, 122, 168, 206

No. v., 22, 68, 75, 80, 90, 135, 168

No. vi., 22, 45, 70

No. vii., 22, 162

No. viii., 22, 45, 164

No. ix., 22, 68, 122

No. x., 22, 100, 130

No. xi., 22, 158

No. xii., 22, 36, 190, 194, 195, 197, 204

No. xiii., 22, 129, 143, 146

Hague Declarations, the, 22, 30, 61, 62, 63, 64, 96

Hague _Règlements_, the, as to war on land, 75, 76, 78, 93, 95, 100

Hague Tribunal, the, 5

reference to, not obligatory, 25

Haldane, Mr. R.B., 45

Hall, Mr. W.E., on pacific blockade, 13

Harcourt, Sir W., 74

Hardinge, Sir C., 152

Herbert, Mr. Arnold, 182, 184

Holland, Sir T.E., references to writings of, 8, 9, 20, 23, 35, 44, 47,

50, 52, 66, 75, 97, 113, 122, 164, 168, 180, 192, 196

Honour and vital interests clause, the, 4, 5, 6

Horses, wounded, 98, 100

Horsey, Adml., 118, 164, 166

Hostile assistance, 88, 157, 160, 186

Hübner, 190

_Ikaria_, the, 60

_Imina_, the, 160

Immediate effects of outbreak of war, the, 45

Institut de Droit International, the, 11, 12, 16, 23, 24, 30, 43, 44,

48, 63, 64, 65, 66, 68, 104, 105, 108, 121, 130, 162, 163, 164,

167, 168, 172, 174, 176, 182, 185, 190

its _Manuel des lois de la guerre maritime_, 163

its _Manuel des lois de la guerre sur terre_, 23, 24, 25, 27, 108

Instructions, national,

on laws of war on land, 75, 76

on laws of war at sea:

British, 156, 180

French, 179

Japanese, 148, 149, 150, 155, 156, 157, 173

Russian, 154, 173, 174, 176, 177, 179

United States, 179

_International_, the, 169

International Court of Appeal, an, 184

International Justice, a Permanent Court of, 2

International Law, the nature and authority of, 66, 67, 77, 86, 114,

115, 116, 119, 127, 169, 188

International Prize Court, proposal for an, 23, 181-191

Jackson, Colonel, 66, 68

James, Captain, 114

Jenks, Mr., 106, 108, 110

_Jonge Margaretha_, the, 159

Just cause of war, 83

"Justice and equity, general principles of," 187, 189, 190, 193

Kent, Chancellor, 45

Kleen, Mr., 130, 133

_Knight-Commander_, the, 173, 174

Kohler, Mr., 47

_Kowshing_, the case of the, 41, 43

"Kriegsbrauch," the, 68, 80

Lambermont, Baron, 77

Lammasch, Prof., 125

Lansdowne, Marquess of, 58, 133, 136, 149, 169, 173

Lawful belligerents, 69, 78

League of Nations, the, 1, 2, 7, 9, 191

Lehr, Prof., 102

_Leucade_, the, 176

Lincoln, President, 74

Lieber's Instructions, 74, 75

Localities closed to hostilities, 52

London, Conference of, 181, 190, 191

London, Declaration of, 22, 55, 58, 92, 181, 191, 193, 194, 195, 196-207

Lyons, Lord, 169

MacDonell, Prof., 172

McKenna, Mr., 78

Mahan, Admiral, 97

Mail steamers and bags, 30

_Malacca_, the case of the, 81, 162, 163

Mandates, 8

Manning, Mr., 45

Manual of military law, the British, 107

Manuals of warfare

on land, 105

at sea, 105

Manuel des Lois de la guerre maritime, the, of Institut, 23

Manual des Lois de la guerre sur terre, 23, 24, 174

_Marais, ex parte_, 106

Martens, de, Prof., 126

Martial law, 105-112

Maurice, Colonel, 42

_Mcomini and others_ v. _Governor &c. of Natal_, 107

Means of injuring, 94

Measures short of war, 1-21

Mediation. _See_ Good offices

Menam, blockade of the, 10

Mercantile Marine in war, 81, 84, 87

Merchant ships, visit of, 60

Militia, 77

_Minerva_, the, 91

Mines, 164

Moltke, von, on conduct of war, 24

Monroe doctrine, the, 17, 20

_Moray Firth_, the, 189

Morley, Lord, 58, 74

"Most favoured nation" clause, 17

_Möwe_, the, 70

"Murder," 70, 71, 72, 84

Mutiny Acts, the, 109

National Instructions, 75, 76

Naval bombardments of open coast towns, 30, 112, 123

Naval manoeuvres of 1888, the, 113, 123

Naval war code, a British, 30, 31, 32

Naval warfare, 22

Naval Prize (Consolidation) Bill, the, 36, 191-196, 198

object of, 194,195

rejection of, 196

Naval Prize money, 195

Neutral conduct, the criterion of, 125

Neutral duties, as classified by the author, 129

Neutral hospitality, 143

Neutral States and individuals, their liabilities distinguished, 129-135

Neutral territory, passage through, 90

Neutral trade, the four inconveniences, to, 159

Neutralisation, the term, 53, 54

Neutrality,

correlative to belligerency, 10, 16, 19

British proclamations of, 130, 135-143

Neutrals, methods of warfare affecting, 164-181

Non-combatants, 72, 74

_Novoe Vremya_, the, 176

Occupied territory,

right of the invader in, 80, 100

not yet occupied, 77

Oppenheim, Prof., 47

_Orozembo_, the, 160

"Ottoman Empire, ancient rule of the," 56

Pacific blockade, 10

Palmerston, Lord, 12

Panama Canal, the, 50

_Paquete Habana_, the, 30

Paris. _See_ Declaration of

Paris, Treaty of, 53, 54, 56, 81, 87, 89, 155

"Pas de Code Naval, pas de Cour des Prises," 187

Passage, 64, 90

Peace talk, 125

Peaceful settlement of disputes, the Conventions for,

of 1899, 2, 3, 6

of 1907, 2, 6

are non-obligatory, 173

Perels, Prof., 16

Permanent Court of International Justice, a, 191

_Peterburg_, the, 162

_Peterhoff_, the, 20, 149, 160

Petition of Right, the, 106, 108, 109

Pike, Mr., 98, 100

"Piracy," 70, 71, 84

Poison, 96

Pope's Note, the, 51

Port, enemy ships in, 49

_Porter_ v. _Freudenberg_, 49

Portsmouth, Lord, 205

Pourtugael, den Beer, Prof., 68

Pre-emption, 148

Prevention, State duties of, 129, 131

Prisoners of war, 45, 106, 107

liabilities of, 106

Private International Law, 34

Privateers, 81, 84

restrictions on, 82

commissioned liners are not, 70

Private property at sea, 184

Prize Court,

the Russian, 163

an international Court of Appeal, 23, 170-182

a settled prize law, must precede, 181, 183, 185, 190, 191, 193

a supreme, 181

Prize Law Consolidation Bill, 193, 194, 199

"Probable cause," 83

Proclamations of neutrality, the British, criticised, 135-143

"Professors," 119

Projectiles,

from balloons, 22, 30, 62

for diffusion of gases, 22, 96, 97

"Quasi-enemy," 12

Radiotelegraphic stations, 168

Rae, Mr., 162

Ratification, 203

Receipts, 102

_Règlements_, the Hague. _See_ Hague

Renault, Prof., 172, 187, 190, 196, 198, 199

Report of the force of (_see_ Authentic Interpretation)

Reprisals,

advantages of, 14, 19

how differing from war, 9, 12, 14, 19

opposite views as to, 16

species of, 12, 15, 19

United States, instructions as to, 29

belligerent, 97, 123

Requisitions, 102, 117

Restrictive clause, the, 69, 146

Retaliation, 97

Reward for, dead or alive, 93

_R._ v. _Eyre_, 110

Ridley, Sir E., 77

Roman Law terminology, 102

Roosevelt, Pres., 146

Rosebery, Lord, 158

Ross, Sir R., 78

Russian Prize Law, 162, 174, 176

Salisbury, Lord, 3, 15, 52, 54, 157

_Santissima Trinidad_, the, 137

Savage warfare, 94

_Savannah_, the, 85

Scott, Sir Walter, 77, 91

Scott, Sir William, 91

Search. _See_ Visit and Search

Second Peace Conference Conventions Bill, 37, 38, 39

Seely, Col., 63

Ship, a "mere moveable," 85

Shucking, Prof., 125

Siam, 10

Sinking. _See_ Destruction

Smith (Lord Birkenhead) and Sibley, on International Law in the

Russo-Japanese War, 135

_Spider_, the, 113, 117

Spies, 72

_Springbok_, the, 29

Stephen, Sir Herbert, 124

Stewart, Mr. C., 104

Story, J., 159

Stowell, Lord, 85, 159, 160, 161, 166, 175, 177, 178, 180, 197

Straits, 52, 56

Submarine cables, 168, 169, 171, 188

Submarines, 69

Suez Canal, the, 50, 51, 52, 54

Superfluous injury, 94, 95

Suyematsu, Baron, 149

Swettenham, Sir James, 79

Sydenham, Lord, 104

Takahashi, Prof., 43

Terminology, 33

Territorial waters, 165, 166, 167

Tindal, le Chevalier, 122

Tirpitz, Admiral von, 70

_Tocumaro_, the, 60[D]

Torpedoes, 164

Transformation into ships of war, 162

Treaties,

who are the parties to, 202, 207

effect of war on, 18, 198

Treaty, the Hay-Pauncefote, 50

Twenty-three (h) clause, the, 47, 206

Twenty-four hours rule, the, 127, 144, 145

Ullmann, Prof., 47, 106, 201

Unarmed merchantmen, 72, 73

Undefended towns, 30, 67, 68

Uniform, 75

United States

instructions for war on land, 23, 73, 107

naval war code, 23, 30, 31, 88

Naval War College, 8

ratification of Conventions, 75

views of, compared with British, 29, 31

Unqualified captors, 72, 73

Unratified Conventions, effect of, 40

Usufruct, 101

Vattel, 46, 119

Venezuela, 13, 18

Visit and search, 72, 83, 84, 159, 186

"Violations of law of nations," term misapplied, 140, 142

Voeux, 5, 99, 121, 122, 167, 180, 190

Volunteers, 77

War. _See_ Reprisals

Declaration of, 10, 41

legitimate object of, 25, 95

_sub modo_, 20, 55

written law of, 22

Washington, the Three Rules of, 86

Wellington, Duke of, 117

Westbury, Lord, 137

Westlake, Prof., 18, 41, 65, 183, 199, 202

Wilson, Pres., 72, 97, 127

Wolf, Mr., 58

Wood, Mackinnon, Mr., 196, 197, 200

Wounded and Sick. _See_ Geneva Conventions

horses, 98, 100

_Yangtsze Insurance Association_ v. _Indemnity Mutual Marine Company_,

157

Younge, Mr., 118

_Zamora_, the, 207

Zone, a danger, 59

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[Transcriber's Note: The spelling and usage of non-English words and

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[Note A: Printed _s'entiendrait_ in original.]

[Note B: Printed _ressasi_ in original.]

[Note C: Printed _principles_ in original.]

[Note D: Spelled _Tokomaru_ where it appears in the text.]

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Letters to "The Times" upon War and Neutrality (1881-1920) · 第 17 / 17 章