(2) Codification without alteration is really an impossible achievement. Every person of experience knows that you cannot codify a large mass of floating customs and divergent laws without, by that very fact, introducing changes. I doubt if there has ever been any large work of codification accomplished, which was not both recommended to its admirers as being a great reform, and defended against its opponents on the ground that it was a mere registration of existing practice. Every great codification creates new law.
(3) The Declaration is specially recommended by its authors as being a compromise. The claims and customs of different nations conflict; each one yields here and is recompensed there. The best statement perhaps of the work of the Conference is contained in the General Report of its Drafting Committee.
"The solutions have been extracted from the various views or practices which prevail, and represent what may be called the media sententia. They are not always in absolute agreement with the views peculiar to each country, but they shock the essential ideas of none. They must not be examined separately but as a whole, otherwise there is a risk of the most serious misunderstandings. In fact, if one or more isolated rules are examined, either from the belligerent or the neutral point of view, the reader may find that the interests with which he is especially concerned are jeopardized by the adoption of these rules. But they have another side. The work is one of compromise and mutual concessions. Is it as a whole a good one?"
Thus the Declaration is not a mere declaration of the existing law of nations. It is a compromise in which different parties make concessions, in response to other concessions which are made to them. And Mr. Bullard expects Great Britain, when suddenly involved in war with the most terrible enemy known to history, to make gratuitously all the concessions contained in the proposed compromise, and leave it to chance, or to the mercy of the Germans, whether she should get any of the compensations! And concessions, too, which her Parliament had considered excessive in peace time, even with the compensations guaranteed!
IV.
What then is left if the Declaration of London is not accepted? Is there to be no law of the sea at all? What is left is exactly all that there was before the sittings of that Conference, plus a certain extra lucidity in places due to its reports. The British courts simply continue to administer international law on the basis of precedent adapted to new conditions, exactly as all powers in the world have done. This offends Mr. Bullard, but I find it difficult to make out what other course he would recommend.
To establish an international court ad hoc, in the middle of the war, and ask it to settle the new questions as they arise? To submit all cases to the neutral powers, with all the small European neutrals terrified of offending their big military neighbours? Refer all questions to the United States alone? Call another conference to revise the Declaration of London, and keep all prizes waiting till it reported? I doubt if any of these courses would please many people. There may be some course which would have been better than the normal one, but it certainly is not obvious to the ordinary eye. And it seems a little hard to denounce the British Government as lawless tyrants, justly hated by the world, because they do not pursue a better method of settling prize cases than any one has yet practised, or perhaps even devised.