Oxford, February 20 (1907).
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,