A ship is regarded by international law as "piratical"[071] only if, upon the high seas, she either attacks other vessels, without being commissioned by any State so to do (nullius Principis auctoritate, as Bynkershoek puts it), or wrongfully displaces the authority of her own commander. The essence of the offence is absence of authority, although certain countries, for their own purposes, have, by treaty or legislation, given a wider meaning to the term, e.g., by applying it to the slave-trade. "Murder" is such slaying as is forbidden by the national law of the country which takes cognizance of it.
In ordering the conduct of which we complain, Germany commits an atrocious crime against humanity and public law; but those who, being duly commissioned, carry out her orders, are neither pirates nor murderers. The question of the treatment appropriate to such persons, when they fall into our hands, is a new one, needing careful consideration. In any case, it is not for us to rival the barbarism of their Government by allowing them to drown.
I am, Sir, your obedient servant,
T. E. HOLLAND
Oxford, March 13 (1915)
Sir,—My letter in The Times of March 15 with reference to the conduct of certain of the German submarines has been followed by a good many other letters upon the same subject. Some of your correspondents have travelled far from the question at issue into the general question of permissible reprisals, into which I have no intention of following them. But others, by exhibiting what I may venture to describe as an ignoratio elenchi, have made it desirable to recall attention to the specific purport of my former letter. It was to the effect—(1) that the acts of those who, in pursuance of a Government commission, sink merchant vessels without warning are not "piracy," the essence of that offence at international law being that it [072]is committed under no recognised authority; and that neither is it "murder" under English law; (2) that the question of the treatment appropriate to the perpetrators of such acts, even under the orders of their Government, is a new one, needing careful consideration. I was, of course, far from stating, as a general rule, that Government authority exempts all who act under it from penal consequences. The long-established treatment of spies is sufficient proof to the contrary.
I am, Sir, your obedient servant,
T. E. HOLLAND
Oxford, March 22 (1915).