Chapter III

But here Mr. Bullard has a very cunning point to make. It has been made also by Professor Liszt. He knows and admits that the Declaration was never ratified and had no legal force. But he points out that, both in inviting the other nations to the conference and in recommending the Declaration when it had been framed, authoritative persons explained that the purpose of the whole proceeding was "not to legislate but to codify." "We obtained recognition of the fact," says Lord Desart, "that, as a body, these rules do amount practically to a statement of what is the essence of the law of nations."

Consequently, argues Mr. Bullard, to repudiate the Declaration, even if it was never ratified, is to repudiate the essence of the law of nations.

A clever piece of trick argument. What is the answer to it?

(1) A very simple point. Mr. Bullard, following Professor Liszt, does not give the whole of Lord Desart's sentence, but stops in the middle of a phrase, where there is not even a comma! The whole phrase is, "amount practically to a statement of what is the essence of the law of nations properly applicable to the questions at issue under present-day conditions of international commerce and warfare." That is, (_a_) it is admitted that the existing rules do not cover the questions at issue under present-day conditions; and therefore (_b_) the Conference has done its best to apply the essence of the law of nations to the solution of these new questions. Lord Desart thought the attempt was successful, and that the Conference really had produced what was "practically" a statement of the essence of the old law as applied to the new problems. This view was not accepted by the British Parliament, nor apparently by any other, since they did not ratify the Declaration.

(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!