Chapter VII · (continued 2)

The Knight Commander was condemned by the Prize Court at Vladivostok on August 16, 1904, and the sentence was confirmed on December 5, 1905, by the Court of Appeal at St. Petersburg, which found it "impossible to agree that the destruction of a neutral vessel is contrary to the principles of international law." The Russian Government remained firm on the point, and in 1908 declined to submit the case to arbitration.

The Institut de Droit International in its Code des Prises maritimes, voted in 1887, Art. 50 (not, be it observed, professing to state the law as it is, but as it should be), had taken a view in accordance with that maintained by the British Government (Annuaire for 1888, t. ix. p. 228; cf. ib. pp. 200, 201). (The Manuel des lois de la guerre maritime, voted at Oxford in 1913, dealing exclusively with "les rapports entre les belligérants," does not deal with the topic in question.) It was, however, the opinion of the present writer, as will appear from the following letters, that no rule of international law, by which the sinking of even neutral prizes was absolutely prohibited, could be shown to exist. He had previously touched upon this question in his evidence before the Royal Commission on the Supply of Food, &c., in Time of War, on November, 4, 1903, and returned to it later in his paper upon "The Duties of Neutrals," read to the British Academy on April 12, 1905, Transactions, ii. p. 66. It was reproduced in French, German, Belgian, and Spanish periodicals, and was cited in the judgment of the St. Petersburg Court of Appeal in the case of the Knight Commander.

The subsequent history of the question, and, in particular, of the rules suggested in Arts. 48-54 of the unratified Declaration of London, may be claimed in favour of the correctness of the opinion maintained in the letters.

RUSSIAN PRIZE LAW

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; [175]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 [176]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 [177]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 [178]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 [179]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 [180]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 (vœu) that this, and other un[181]settled 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.[182]

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 [183]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.[184]

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 [185]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:[186] "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 con[187]viction 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 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."[188]

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 [189]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 [190]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 [191]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.[192]

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.[193]

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[194] 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, [195]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 [196]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, 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 [197]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[198] 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 [199]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 presi[200]dent. 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 [201]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 [202]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 [203]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[204] "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 [205]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, [206]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

[207]

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).

[208]

[209]