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 [085]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 [086]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).