SECTION 7. _privateering_

Privateering

The three letters which immediately follow were written to point out that neither belligerent in the war of 1898 was under any obligation not to employ privateers. Within, however, a few days after the date of the second of these letters, both the United States and Spain, though both still to be reckoned among the few powers which had not acceded to the Declaration of Paris, announced their intention to conduct the war in accordance with the rules laid down by the Declaration.

Art. 3 of the Spanish Royal Decree of April 23 was to the effect that "notwithstanding that Spain is not bound by the Declaration signed in Paris on April 16, 1856, as she expressly stated her wish not to adhere to it, my Government, guided by the principles of international law, intends to observe, and hereby orders that the following regulations for maritime law be observed," viz. Arts. 2, 3, and 4 of the Declaration, after setting out which, the Decree proceeds to state that the Government, while maintaining "their right to issue letters of marque, ... will organise, for the present, a service of auxiliary cruisers ... subject to the statutes and jurisdiction of the Navy."

The Proclamation of the President of the United States of April 26 recited the desirability of the war being "conducted upon principles in harmony with the present views of nations, and sanctioned by their recent practice," and that it "has already been announced that the policy of the Government will not be to resort to privateering, but to adhere to the rules of the Declaration of Paris," and goes on to adopt rules 2, 3, and 4 of the Declaration.

Ten years afterwards, viz. on January 18, 1908, Spain signified "her entire and definitive adhesion to the four clauses contained in the Declaration," undertaking scrupulously to conduct herself accordingly. Mexico followed suit on February 13, 1909. The United States are therefore now the only important Power which has not formally bound itself not to employ privateers. It seems unlikely that privateers, in the old sense of the term, will be much heard of in the future, though many questions may arise as to "volunteer navies" and subsidised liners, such as those touched upon in the last section, with reference to captures made by the Malacca; possibly also as to ships "converted" on the High Seas.

OUR MERCANTILE MARINE IN WAR TIME

Sir,--There can be no doubt that serious loss would be occasioned to British commerce by a war between the United States and Spain in which either of those Powers should exercise its right of employing privateers or of confiscating enemy goods in neutral bottoms.

Before, however, adopting the measures recommended, with a view to the prevention of this loss, by Sir George Baden-Powell in your issue of this morning, it would be desirable to enquire how far they would be in accordance with international law, and what would be the net amount of the relief which they would afford.

It is hardly necessary to say that non-compliance with the provisions of the Declaration of Paris by a non-signatory carries with it none of the consequences of a breach of the law of nations. The framers of that somewhat hastily conceived attempt to engraft a paper amendment upon the slowly matured product of oecumenical opinion, far from professing to make general law, expressly state that the Declaration "shall not be binding except upon those Powers who have acceded, or shall accede, to it." As regards Spain and the United States the Declaration is res inter alios acta.

It follows that, in recommending that any action taken by privateers against British vessels should be treated as an act of piracy, Sir George Baden-Powell is advocating an inadmissible atrocity, which derives no countenance from the view theoretically maintained by the United States, at the outset of the Civil War, of the illegality of commissions granted by the Southern Confederation. His recommendation that our ports should be "closed" to privateers is not very intelligible. Privateers would, of course, be placed under the restrictions which were imposed in 1870, in accordance with Lord Granville's instructions, even on the men-of-war of belligerents. They would be forbidden to bring in prizes, to stay more than twenty-four hours, to leave within twenty-four hours of the start of a ship of the other belligerent, to take more coal than enough to carry them to the nearest home port, and to take any further supply of coal within three months. We might, no doubt, carry discouragement of privateers by so much further as to make refusal of coal absolute in their case, but hardly so far as to deny entry to them under stress of weather.

The difficulties in the way of accepting Sir G. Baden-Powell's other suggestion are of a different order. Although we could not complain of the confiscation by either of the supposed belligerents of enemy property found in British vessels, as being a violation of international duty, we might, at our own proper peril, announce that we should treat such confiscation as "an act of war." International law has long abandoned the attempt to define a "just cause of war." That must be left to the appreciation of the nations concerned. So to announce would be, in effect, to say: "Although by acting as you propose you would violate no rule, yet the consequences would be so injurious to me that I should throw my sword into the opposite scale." We should be acting in the spirit of the "Armed Neutralities" of 1780 and 1800. The expediency of so doing depends, first, upon the extent to which the success of our action would obviate the mischief against which it would be directed; and, secondly, upon the likelihood that the benefit which could be obtained only by imposing a new rule of international law in invitos would counterbalance the odium incurred by its imposition. On the former question it may be worth while to remind the mercantile community that, even under the Declaration of Paris, neutral trade must inevitably be put to much inconvenience. Any merchant vessel may be stopped with a view to the verification of her national character, of which the flag is no conclusive evidence. She is further liable to be visited and searched on suspicion of being engaged in the carriage of contraband, or of enemy military persons, or of despatches, or in running a blockade. Should the commander of the visiting cruiser "have probable cause" for suspecting any of these things, though the vessel is in fact innocent of them, he is justified in putting a prize crew on board and sending her into port, with a view to the institution of proceedings against her in a prize Court. A non-signatory of the Declaration of Paris may investigate and penalise, in addition to the above-mentioned list of offences, the carriage of enemy goods. This is, no doubt, by far the most important branch of the trade which is carried on for belligerents by neutrals, but it must not be forgotten that even were this branch of trade universally indulged, in accordance with the Declaration of Paris neutral commerce would still remain liable to infinite annoyance from visit and search, with its possible sequel in a prize Court.

The question of the balance between benefit to be gained and odium to be incurred by insisting upon freedom to carry the goods of belligerents I leave to the politicians.

I am, Sir, your obedient servant, T. E. HOLLAND. The Athenæum, April 16 (1898).

OUR MERCANTILE MARINE IN WAR TIME

Sir,--To-day's debate should throw some light upon the views of the Government, both as to existing rules of international law and as to the policy demanded by the interests of British trade. It is, however, possible that the Government may decline to anticipate the terms of the Declaration of Neutrality which they may too probably find themselves obliged to issue in the course of the next few days, and it is not unlikely that the law officers may decline to advise shipowners upon questions to which authoritative replies can be given only with reference to concrete cases by a prize Court.

You may perhaps, therefore, allow me in the meantime to supplement my former letter by a few remarks, partly suggested by what has since been written upon the subject.

It is really too clear for argument that privateers are not, and cannot be treated as, pirates.

Sir George Baden-Powell still fails to see that the Declaration of Paris was not a piece of legislation, but a contract, producing no effect upon the rights and duties of nations which were not parties to it. We did not thereby, as he supposes, "decline to recognise private vessels of war as competent to use force on neutral merchantmen." We merely bound ourselves not to use such vessels for such a purpose. Sir George is still unable to discover for privateers any other category than the "status of pirate." He admits that it would not be necessary for their benefit to resort to "the universal use of the fore-yard-arm." Let me assure him that the bearer of a United States private commission of war would run no risk even of being hanged at Newgate. President Lincoln, it is true, at the outset of the Civil War, threatened to treat as pirates vessels operating under the "pretended authority" of the rebel States; but he was speedily instructed by his own law Courts--e.g. in the Savannah and in the Golden Rocket (insurance) cases--that even such vessels were not pirates iure gentium. It is also tolerably self-evident that we cannot absolutely "close" our ports to any class of vessels. There is no inconsistency here between my friend Sir Sherston Baker and myself. We can discourage access, and of course, by refusal of coal, render egress impossible for privateers. Mr. Coltman would apparently be inclined to carry this policy so far that he would disarm and intern even belligerent ships of war which should visit our ports: a somewhat hazardous innovation, one would think.

It is quite possible that the question of privateering may not become a practical one during the approaching war. Both parties may expressly renounce the practice, or they may follow the example of Prussia in 1870, and Russia at a later date, in commissioning fast liners under the command of naval officers--a practice, by the by, which is not, as Sir George seems to think, "right in the teeth of the Declaration of Paris." See Lord Granville's despatch in 1870.

On Sir George's proposals with reference to the carriage of enemy goods, little more need be said, except to deprecate arguments founded upon the metaphorical statement that "a vessel is part of the territory covered by her flag," a statement which Lord Stowell found it necessary to meet by the assertion that a ship is a "mere movable." There can be no possible doubt of the right, under international law, of Spain and the United States to visit and search neutral ships carrying enemy's goods, and to confiscate such goods when found. They may also visit and search on many other grounds, and the question (one of policy) is whether, rather than permit this addition to the list, we choose to take a step which would practically make us belligerent. This question also, it may be hoped, will not press for solution.

In any case, let me express my cordial concurrence with your hope that, when hostilities are over, some really universal and lasting agreement may be arrived at with reference to the matters dealt with, as I venture to think prematurely, by the Declaration of Paris. A reform of maritime law to which the United States are not a party is of little worth. That search for contraband of war can ever be suppressed I do not believe, and fear that it may be many years before divergent national interests can be so far reconciled as to secure an agreement as to the list of contraband articles. In the meantime this country is unfortunately a party to that astonishing piece of draftsmanship, the "three rules" of the Treaty of Washington, to which less reference than might have been expected has been made in recent discussions. The ambiguities of this document, which have prevented it from ever being, as was intended, brought to the notice of the other Powers, with a view to their acceptance of it, are such that, its redrafting, or, better still, its cancellation, should be the first care of both contracting parties when the wished for congress shall take place.

May I add that no serious student of international law is likely either to overrate the authority which it most beneficially exercises, or to conceive of it as an unalterable body of theory.

I am, Sir, your obedient servant, T. E. HOLLAND. Brighton, April 21 (1898).

OUR MERCANTILE MARINE IN WAR

Sir,--Let me assure Sir George Baden-Powell that if, as he seems to think, I have been unsuccessful in grasping the meaning of his very interesting letters, it has not been from neglect to study them with the attention which is due to anything which he may write. How privateering, previously innocent, can have become piratical, i.e. an offence, everywhere justiciable, against the Law of Nations, if the Declaration of Paris was not in the nature of a piece of legislation, I confess myself unable to understand; but have no wish to repeat the remarks which you have already allowed me to make upon the subject.

I shall, however, be glad at once to remove the impression suggested by Sir George's letter of this morning, that Art. 7 of the Spanish Decree of April 24 has any bearing upon the legitimacy of privateering generally. The article in question (following, by the by, the very questionable precedent of a notification issued by Admiral Baudin, during the war between France and Mexico in 1889) merely threatens with punishment neutrals who may accept letters of marque from a belligerent Government.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, April 27 (1898).

THE DECLARATION OF PARIS

Sir,--There is really no question at issue between your two correspondents Mr. Gibson Bowles and "Anglo-Saxon" as to the attitude of the United States towards the Declaration of Paris.

Mr. Bowles rightly maintains that the United States has not acceded to the Declaration as a whole, or to its second article, which exempts from capture enemy property in neutral ships. He means, of course, that neither the whole nor any part of that Declaration has been ratified by the President with the advice and consent of the Senate. The whole contains, indeed, an article on privateering, to which, as it stands, the United States have always objected, and no part of the Declaration can be accepted separately.

"Anglo-Saxon," on the other hand, is equally justified in asserting that the "officially-recorded policy" of the States, i.e. of the Executive, is in accordance with Art. 2 of the Declaration. This policy has been consistently followed for more than half a century. Its strongest expression is perhaps to be found in the President's Proclamation of April 26, 1898, in which, after reciting that it being desirable that the war with Spain "should be conducted upon principles in harmony with the present views of nations and sanctioned by their recent practice, it has already been announced that the policy of the Government will not be to resort to privateering, but to adhere to the rules for the Declaration of Paris," he goes on to "declare and proclaim" the three other articles of the Declaration. The rule of Art. 2, as to exemption of enemy goods in neutral ships, was embodied in Art. 19 of the Naval War Code of 1900 (withdrawn in 1904, for reasons not affecting the article in question), and reappears in Art. 17, amended only by the addition of a few words relating to "hostile assistance" in the draft Code which the United States delegates to the Conferences of 1907 and 1908 were instructed to bring forward "with the suggested changes, and such further changes as may be made necessary by other agreements reached at the Conference, as a tentative formulation of the rules which should be considered." (My quotation is from the instructions as originally issued in English.) Such changes as have been made in the Code are due to discussions which have taken place between high naval and legal authorities at the Naval War College. I do not know whether the annual reports of these discussions, with which I am kindly supplied, are generally accessible, but would refer, especially with reference to the Declaration of Paris, to the volumes for 1904 and 1906.

It can hardly be necessary to add that no acts of the Executive, such as the Proclamation of 1898, the order putting in force the Code of 1900, or the instructions to delegates in 1907 and 1909, amount to anything like a ratification of the Declaration in the manner prescribed by the Constitution of the United States.

I have the honour to be, Sir, Your obedient servant, T. E. HOLLAND. Oxford, January 4 (1911).

THE DECLARATION OF PARIS

Sir,--Mr. Gibson Bowles resuscitates this morning his crusade against the Declaration of 1856. It is really superfluous to argue in support of rules which have met with general acceptance for nearly sixty years past, to all of which Spain and Mexico, who were not originally parties to the Declaration, announced their formal adhesion in 1907, while the United States, which for well-known reasons declined to accede to the Declaration, described, in 1898, all the articles except that dealing with privateering as "recognised rules of International Law."

It may, however, be worth while to point out why it was that no provision was made for the ratification of the Declaration of 1856, or for that of 1868 relating to the use of explosive bullets. At those dates, when the first steps were being taken towards the general adoption of written rules for the conduct of warfare, it was, curiously enough, supposed that agreement upon such rules might be sufficiently recorded without the solemnity of a treaty. This was, in my opinion, a mistake, which has been avoided in more recent times, in which the written law of war has been developed with such marvellous rapidity. Not only have codes of such rules been promulgated in regular "Conventions," made in 1899, 1906, and 1907, but the so-called "Declarations," dealing with the same topic, of 1899, 1907, and 1909 have been as fully equipped as were those Conventions with provisions for ratification. The distinction between a "Convention" and a "Declaration" is therefore now one without a difference, and should no longer be drawn. Nothing in the nature of rules for the conduct of warfare can prevent their expression in Conventions, and the reason which seems to have promoted the misdescription of the work of the London Conference of 1908-9 as a "Declaration"--viz. an imaginary difference between rules for the application of accepted principles and wholly new rules--is founded in error. Much of the contents of The Hague "Conventions" is as old as the hills while much of the "Declaration" of London is revolutionary.

This by the way. It is not very clear whether Mr. Gibson Bowles, in exhorting us to denounce the Declaration, relies upon its original lack of ratification, or upon some alleged "privateering" on the part of the Germans. Nothing of the kind has been reported. The commissioning of warships on the high seas is a different thing, which may possibly be regarded as an offence of a graver nature. Great Britain is not going to imitate the cynical contempt for treaties, evidenced by the action of Germany in Belgium and Luxemburg, in disregard not only of the well-known treaties of 1889 and 1867, but of a quite recent solemn undertaking, to which I have not noticed any reference. Art. 2 of The Hague Convention No. v. of 1907, ratified by her in 1909, is to the following effect:--

"Belligerents are forbidden to move across the territory of a neutral Power troops or convoys, whether of munitions or of supplies."

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, August 12 (1914).

The true ground for objecting to the legality of the purchase by Turkey of the German warships which have been forced to take refuge in her waters is no doubt that stated by Sir William Scott in the Minerva, 6 C. Rob. at p. 400--viz. that it would enable the belligerent to whom the ships belong "so far to rescue himself from the disadvantage into which he has fallen as to have the value at least restored to him by a neutral purchaser." The point is not touched upon in the (draft) Declaration of London.

Even supposing the purchase to be unobjectionable, the duty of Turkey to remove all belligerents from the ships would be unquestionable.

Cf. on the Declaration of Paris, passim, see Index; on the misuse of Declarations, infra, p. 92; on privateering, supra, pp. 80-84.

THE DECLARATION OF PARIS

Sir,--The resuscitation, a few days ago, in the House of Commons of an old controversy reminds one of the mistaken procedure which made such a controversy possible. It can hardly now be doubted that the rules set forth in the Declaration of Paris of 1856, except possibly the prohibition of privateering, have by general acceptance during sixty years, strengthened by express accessions on the part of so many Governments, become a portion of international law, and are thus binding upon Great Britain, notwithstanding her omission to ratify the Declaration. This omission is now seen to have been a mistake. So also was the description of the document as a "declaration." Both mistakes were repeated in 1868 with reference to the "Declaration" of St. Petersburg (as to explosive bullets).

In those early attempts at legislation for the conduct of warfare it seems to have been thought sufficient that the conclusions arrived at by authorised delegates should be announced without being embodied in a treaty. Surely, however, what purported to be international agreements upon vastly important topics ought to have been accompanied by all the formalities required for "conventions," and should have been so entitled. In later times this has become the general rule for the increasingly numerous agreements which bear upon the conduct of hostilities. Thus we have The Hague "conventions" of 1899 and 1907, and the Geneva "convention" of 1906, all duly equipped with provisions for ratification. Such provisions are also inserted in certain other recent agreements dealing with aerial bombardments, gases, and expanding bullets, which it has nevertheless pleased their contrivers to misdescribe as "declarations." Equally so misdescribed was the deceased Declaration of London, with a view, apparently, to suggesting, as was far from being the case, that it was a mere orderly statement of universally accepted principles, creating no new obligations.

Is it not to be desired that all future attempts for the international regulation of warfare should not only be specifically made subject to ratification, but should also, in accordance with fact, be described as "conventions"?

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, August 13 (1916).

THE DECLARATION OF PARIS

Sir,--If Mr. Gibson Bowles, whose courteous letter I have just been reading, will look again at my letter of the 18th, I think he will see that I there carefully distinguished between the Declaration of Paris, which, as is notorious, must be accepted as a whole or not at all, and the rules set forth in it, "except, possibly, the prohibition of privateering," which I thought, for the reasons which I stated, might be taken to have become a portion of International Law.

I must be excused from following Mr. Bowles into a discussion of the bearing of those rules upon the Order in Council of March 11, 1915--a large and delicate topic, which must be studied in elaborate dispatches exchanged between this country and the United States.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, August 17 (1916).

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