Great Britain's Sea Policy by Gilbert Murray

So much for general principles; let us now consider whether in detailed practice the claims of the British Government or the practice of the British courts have been particularly reprehensible. The two questions are of course distinct; and my own impression, given merely for what it may be worth, is that the decisions of the courts will bear the severest scrutiny, while the claims of the Government are closely analogous to the claims advanced by all governments in a similar situation. They will compare not unfavourably, for instance, with the claims of the United States in the Civil War. It should also be noticed that Great Britain does not act alone; and as compared with the precedents laid down by various nations in previous wars, a policy agreed upon by six of the most important maritime powers in the world has at least a slightly higher claim to validity than one laid down by a single power. Mr. Bullard in one extremely high-principled passage explains that the United States could not in conscience join the Allies in this war because that would be fighting in order "to make British convenience the rule of the seas." But here his moral feelings have evidently intoxicated him. It is obvious that, if the United States had cared to come in, -- which I am not for a moment urging, -- the law of the seas would, at the very worst, have been interpreted, not for the convenience of Great Britain alone but for the convenience of Great Britain, France, Italy, Russia, Portugal, Japan and the United States.

But let us consider the particular enormities which England is supposed to have committed. And let us be clear about the issue. I do not contend that we have never stretched in our favour the vague body of unwritten rules, based on conflicting precedents and unenforced by normal sanctions, which is called international law. Every belligerent in every war hitherto has done so; and that not always from national selfishness alone. International law, apart from the fundamental misfortune of having at present no sanction behind it, suffers from two great weaknesses. It is not for the most part framed on clear principles, and certainly has not been built up in times of peace by "calm thought and discussion"; it has mostly been built up by precedents and protests and compromises based on immediate pressure. In the second place, the body of precedents is very scanty compared with the importance of the interests involved. It is not like the English common law, so rich in recorded precedents that almost any conceivable new complication between litigant interests can be solved by analogy with some past judgment. Every new war gives birth to new problems and complications which are not covered by any precedents in previous wars, and have to be settled by very imperfect analogies or by the violent stretching of some previous rule. But the present war differs from all its predecessors to a quite unusual degree, both because of its own vast scale and the new methods of warfare it has introduced, and because the whole structure of the world has been transformed since the last great body of available precedents. What would be the condition of private commercial law at the present day if it had nothing to go upon but one or two precedents in 1870, a few more from the time of the American Civil War, and a good number between 1790 and 1815?