Thomas Erskine Holland

“ The analogy between treaty-making and legislation is striking when a congress agrees upon general principles which are afterwards accepted by a large number of states, as, for instance, in the case of the Geneva conventions for improving the treatment of the wounded. Many political treaties containing “transitory conventions,” with reference to recognition, boundary or cession, become, as it were, the title-deeds of the nations to which they relate. [2] But the closest analogy of a treaty is to a contract in private law. ”

“ 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. ”

“ The London protocol of 1871, with a view to prevent such abuses, lays down, perhaps a little too broadly, " that it is an essential principle of the law of nations that no power can liberate itself from the engagements of a treaty, nor modify the stipulations thereof, unless with the consent of the contracting powers, by means of an amicable arrangement." Treaties are in most cases suspended, if not terminated, by the outbreak of a war between the contracting parties, and are therefore usually revived in express terms in the treaty of peace. ”

“ S’il y a absence de sécurité à l’égard de la fortune, tout le monde reste froid à la voix du prince et de la patrie ; personne ne s’occcupe du progrès de la fortune publique, absorbé que l’on est par ses propres inquiétudes. Si, au contraire, le citoyen possède avec confiance ses propriétés de toute nature, alors, plein d’ardeur pour ses affaires, dont il cherche à élargir le cercle, afin d’étendre celui de ses jouissances, il sent chaque jour redoubler en son cœur l’amour du prince et de la patrie, le dévouement à son pays. ”

“ The logical and historical methods can, however, seldom be combined without confusion; and it is perhaps fortunate that Bentham devoted his long life to showing how much may be done by pursuing the former method exclusively. His writings have been and remain a storehouse of instruction for statesmen, an armoury for legal reformers. “Pillé par tout le monde,” as Talleyrand said of him, “il est toujours riche.” To trace the results of his teaching in England alone would be to write a history of the legislation of half a century. ”

“ You have been so good as to forward to me the manual published by the Institut de Droit International, and you hope for my approval of it. In the first place I fully appreciate the philanthropic effort to soften the evils which result from war. Perpetual peace is a dream, and it is not even a beautiful dream. War is an element in the order of the world ordained by God. In it the noblest virtues of mankind are developed ”

“ TREATIES. A treaty is a contract between two or more states; The Latin term “tractatus,” and its derivatives, though of occasional occurrence in this sense from the 13th century onwards, only began to be commonly so employed, in lieu of the older technical terms “convention publica,” or “foedus,” from the end of the 17th century. In the language of modern diplomacy the term “treaty” is restricted to the more important international agreements, especially to those which are the work of a congress ”

“ 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. ”

“ One would have supposed it to be common knowledge that large classes of treaties are wholly unaffected by war. Such are, for instance, what are called conventions transitoires, because their effect is produced once for all, as in the case of cessions of territory; and, notably, treaties entered into for the regulation of the conduct of war, such as the Geneva Convention, many of The Hague Conventions of 1907, and the Declaration of Paris itself, which Mr. Bowles appears to think would ipso facto cease to be obligatory between its signatories on their becoming belligerent. ”

“ What neutral States would ever take up arms for the sole reason that, two Powers being at war, the 'laws of war' had been violated by one or both of the belligerents? For offences of that sort there is no earthly judge. Success can come only from the religious moral education of individuals and from the feeling of honour and sense of justice of commanders who enforce the law and conform to it so far as the exceptional circumstances of war permit. ”

“ A "pacific blockade" is one of the various methods—generically described as "reprisals," such as "embargo," or seizure of ships on the high seas—by which, without resort to war, pressure, topographically or otherwise limited in extent, may be put upon an offending State. The need for pressure of any kind is, of course, regrettable, the only question being whether such limited pressure be not more humane to the nation which experiences it, and less distasteful to the nation which exercises it, than is the letting loose of the limitless calamities of war. ”

“ Admiral von Tirpitz was perhaps not serious when he intimated to the representative of the United Press of America that German submarines might be instructed to torpedo all trading vessels of the Allies which approach the British coasts. The first duty of a ship of war which proposes to sink an enemy vessel is admittedly, before so doing, to provide for the safety of all its occupants, which (except in certain rare eventualities) can only be secured by their being taken on board of the warship. A submarine has obviously no space to spare for such an addition to its own staff. ”

“ 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. ”

“ I, for my part, am convinced that the error, which has been handed down to us from antiquity, according to which all law is suspended during war, and everything is allowable against the enemy nation—that this abominable error can but increase the unavoidable sufferings and evils of war without necessity, and without utility from the point of view of that energetic way of making war which I also think is the right way. ”

“ It is satisfactory to know, on the highest authority, that the "Monroe doctrine" is not intended to shield American States against the consequences of their wrongdoing; since the cordial approval of the doctrine which has just been expressed by our own Government can only be supposed to extend to it so far as it is reasonably defined and applied. Great Britain, for one, has no desire for an acre of new territory on the American continent. ”

“ We have here, for the first time, an authoritative repudiation of the notion that fifteen gentlemen of mixed nationality composing an international prize Court, are to be let loose to "make law," in accordance with what may happen to be their conceptions of "justice and equity." It seems at last to be recognised that such a Court cannot be set to work unless, and until, the great maritime Powers shall have come to an agreement upon the rules of law which the Court is to administer. ”

“ Sad experience teaches us that in every war there are numerous violations of law which must unavoidably remain unpunished, but this will not cause the jurist to abandon the authoritative principle which has been violated. Quite the reverse. If, for instance, a flag of truce has been fired upon, in contravention of the law of nations, the jurist will uphold and proclaim more strongly than ever the rule that a flag of truce is inviolable. ”

“ Sir,—The Cologne Gazette rightly treats as incredible the rumour, mentioned by your Sofia Correspondent, that a trainload of munitions of war had been despatched by the German Government for the use of Turkey, while admitting that such a consignment may very likely have been forwarded from private German workshops.
It has long been settled international law that a neutral Government, while, on the one hand, it is precluded from itself supplying munitions to a belligerent, is, on the other hand, not bound to prevent private individuals from so acting. ”

“ Is France at war with Siam? This may well be the case, according to modern practice, without any formal declaration of war; and it is, for international purposes, immaterial whether the French Cabinet, if it has commenced a war without the sanction of the Chambers, has or has not thereby violated the French Constitution. If there is a war, and if the blockade, being effective, has been duly notified to the neutral Powers, the vessels of those Powers are, of course, liable to be visited, and, if found to be engaged in breach of the blockade, to be dealt with by the French Prize Courts. ”

“ There is accordingly no doubt that in land warfare a belligerent may not only interrupt communications by road, railway, post, or telegraph without giving any ground of complaint to neutrals who may be thereby inconvenienced, but may also lay hands on such neutral property—shipping, railway carriages, or telegraphic plant—as may be essential to the conduct of his operations, making use of and even destroying it, subject only to a duty to compensate the owners. ”

“ States differ so widely in offensive power and vulnerability that it would be hardly advisable thus to fetter the liberty of action of a State which considers itself to have been injured.
2. Ought it to be made obligatory that acts of reprisal should be preceded, or accompanied, by a notification to the State against which they are exercised that they are reprisals and not operations of war?—This would seem to be highly desirable; unless indeed it can be assumed that, in pursuance of The Hague Convention of 1907, no war will henceforth be commenced without declaration. ”

“ This pleasing and cheering circumstance is one which constantly meets us in the Institut de Droit International. We see a general legal persuasion ever in process of more and more distinct formation uniting all civilised peoples. Men of nations readily disunited and opposed—Germans and French, English and Russians, Spaniards and Dutchmen, Italians and Austrians—are, as a rule, all of one mind as to the principles of international law. ”

“ If in our own day a law recognised by the civilised world forbids, in a general way, the soldier to make booty in warfare on land, we have here a great advance in civilisation, and the jurists have had their share in bringing it about. Since compulsory service has turned standing armies into national armies, war has also become national. ”

“ Reprisals may be exercised in many ways; from such a high-handed act as the occupation of the Principalities by Russia in 1853, to such a mere seizure of two or three merchant vessels as occurred in the course of our controversy with Brazil in 1861. In modern practice, these measures imply a temporary sequestration, as opposed to confiscation or destruction, of the property taken. In the belief that reprisals only were being resorted to against Venezuela one was therefore glad to hear that the sinking of gunboats by the Germans had been explained as rendered necessary by their unseaworthiness. ”

“ In time of peace, the territorial Power is bound by modern usage to allow "innocent passage," under reasonable conditions as to tolls and the like, not only to the merchant vessels, but also, probably, to the ships of war, of all nations. In time of war, the territorial Power, if belligerent, may of course carry on, and is exposed to, hostilities in the strait as elsewhere, and the entrances to the strait are liable to a blockade. ”

“ If, however, we are at war with Venezuela (as will, no doubt, be the case if we proclaim a belligerent blockade of the coast, and may at any moment occur, should Venezuela choose to treat our acts, even if intended only by way of reprisals, as acts of war) , the situation is changed in two respects: (1) the hostilities which may be carried on by the allies are no longer localised, or otherwise limited, except by the dictates of humanity; (2) third States become ipso facto "neutrals," and, as such, subject to obligations to which up to that moment they had not been liable. ”

“ Is it too much of a counsel of perfection to suggest that the debatable questions arising under the Convention of [194] 1907 and the Declaration of 1909 should first be threshed out in discussions on a Bill dealing with those questions only; and that the decision, if any, thus arrived at should be subsequently inserted, freed from hypothesis, in the Consolidation Bill which has so long awaited the leisure of the House of Commons? ”

“ Every day of the war makes more apparent our debt to the House of Lords for having, four years ago, prevented the British Government from ratifying either the International Prize Court Convention or this Declaration, which, while misleadingly professing that its provisions "correspond in substance with the generally recognised principles of international law," contains, interspersed with truisms familiar to all concerned with such matters, a good many undesirable novelties. ”

“ The only quasi-legislative body by which the ratio decidendi of such a decision could be disallowed would be an international gathering in which British views might find scanty support. The development of a system of national law by national Judges offers no analogy to the working of an international Court, empowered, at its free will and pleasure, to disregard the views of a sovereign Power as to the proper rule to be applied in cases as to which international law gives no guidance. ”