Letters to "The Times" upon War and Neutrality (1881-1920)Holland, Thomas Erskine
History
Letters to "The Times" upon War and Neutrality (1881-1920)
Holland, Thomas Erskine
Neutrality; War (International law)
One may be permitted to hope that this proposal will not be accepted.
The beneficent action of English Judges in developing the common law of
England may possibly be cited in its favour; but the analogy is
delusive. The Courts of a given country in evolving new rules of law are
almost certain to do so in accordance with the views of public policy
generally entertained in that country. Should they act otherwise their
error can be promptly corrected by the national Legislature. Far
different would be the effect of the decision of an international Court,
in which, though it might run directly counter to British theory and
practice, Great Britain would have bound herself beforehand to
acquiesce. 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. In such cases the ultimate
adjustment of differences of view is the appropriate work, not of a law
Court, but of diplomacy.
It is hardly necessary to combat the notion that there already exists,
_in nubibus_, a complete system of prize law, which is in some
mysterious way accessible to Judges, and reveals to them the rule
applicable to each new case as it arises. This notion, so far as it is
prevalent, seems to have arisen from a mistaken reading of certain
_dicta_ of Lord Stowell, in which that great Judge, in his finest
eighteenth-century manner, insists that the law which it was his duty to
administer "has no locality" and "belongs to other nations as well as
our own." He was, of course, thinking of the rules of prize law upon
which the nations are agreed, not of the numerous questions upon which
no agreement exists, and was dealing with the difficult position of a
Judge who has to choose (as in the recent _Moray Firth_ case) between
obedience to such rules and obedience to the legislative, or
quasi-legislative, acts of his own Government.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Eggishorn, Suisse, September 16 (1907).
A NEW PRIZE LAW
Sir,--The speech of the Prime Minister at the Guildhall contains a
paragraph which will be read with a sense of relief by those who, like
myself, have all along viewed with surprise and apprehension The Hague
proposals for an international prize Court.
Public-domain text, read in full here on John Shaqi.
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