LETTERS TO THE EDITOR.
[Letters of the length of one of our leading paragraphs are often more read, and therefore more effective, than those which fill treble the space.]
HOW OUGHT WE TO DEAL WITH THE KAISER
(To THS EDITOR OP THE "SPECTAT011."1 Sia,-1 ask leave to make a few observations in reply to your leading article of last week. I do too for the following reasons. No one has made any sort of reply in the Times to the propositions contained in my letter. The very many personal communications on the subject that I have received, both orally and in writing, since the appearance of that letter have been entirely in agree- ment with what I said, with the exception of one which, though not expressing disagreement, was in some measure critical. The Prime Minister has announced in public that the Law Officers were requested not to advise the Government, but to consult some " jurists," and that the jurists have (I think unanimously) ex- pressed the opinion that the Kaiser has committed an indictable offence (or offences). I do not know whether the Law Officers agree with the jurists; I. do not know who the jurists were; I do not know what the Prime Minister means by the phrase "indictable offence "; and I am not at all sure that the Prime Minister knows what I mean by it and understand it to mean. Your article is therefore the only expression that I have met with of disagreement with the substance of the views which I propounded. Those views are that the Kaiser cannot be tried unless the laws he is to be charged with disobeying, the. Tribunalwhich is to try him, and the punishment which may be inflicted upon film are all invented after the commission of the acts constituting the alleged offences; that such a trial is a mock trial; and that an act of war, such as his punishment would be, is much wiser and more satis- factory in its results if it is not preceded and disguised by a mock trial. You observe incidentally : " Sir Herbert Stephen thinks that we should seize the Kaiser as a matter of right." I have never said I thought so, and I do not now say whether I think so or not. You agree with me, if I understand you rightly, that there is not now a Court in existence by which the Kaiser can be tried, but you hold that " to form a new Tribunal to try admitted crimes is not Open to the objections of an ex post facto oreation of new crimes." To my mind it is open to exactly the same objection. The widest definition of a crime is an act which is punishable by law. No act is punishable by law unless the law provides the means for its punishment, and the first off the essen- tial parts of such means is a Court by which it can be determined whether or not the accused acted as alleged.
Your article makes no distinction between an act which Is for. bidden by law and an act which is made punishable by law. This distinction is all-important both in practice and in theory. Here is a practical illustration. The Children Act, 1908, provides that a. man who ill-treats a child is guilty of an offence, and that if he does so he may be tried, and if found guilty may be punished. It also provides that a child under fourteen (or under sixteen, / sen for the moment not sure which) may not be present in a Criminal Court, but it says not a word about what is to happen if he is. Suppose a child under fourteen goes into a Criminal Court and stays there for a shorter or longer time. He has not committed an offence. Neither the Judge, nor any officer of the Court, nor any other person, has committed an offence in not turning him out. No Court has any power to try any one on such a charge. The prohibition in the statute would protect a person who turned the child out from liability for as assault, but as regards criminal offences it is a mere announcement of the opinion of the Legisla- ture that the presence of children in Criminal Courts ia undesirable.
The various clauses in the Hague Conventions saying that various things, alleged by you to have been done or permitted by the Kaiser, "are prohibited" amount to such an announcement of opinion and to nothing more. The "prohibited" acts are not offences, for the precise reason that there is no Court in. whick persons can be tried for them, and no punishment which can be inflicted on persons guilty of them. Not only so, but there is at least one of those acts which is nowadays considered extremely laudable, whatever opinion about it may have been entertained by the amiable persons who assembled at the Hague and made futile Conventions intended to regulate matters of which they had no experience. "The launching of projectiles "—I quote from your article—" or explosives from balloons or by other similar new methods is prohibited." We defeated the Germans when we did, and not later, largely because of the superiority of our airmen in launching projectiles and explosives by similar new methods other than balloons, on submarines, railways, factories, transport, ammunition stores, and troops. If every one who did so, or ordered or permitted others to do so, is to be tried and punished for an offence, because he disregarded the prohibition of the Hague Convention, the advantage will be greatly on the side of the Germane.
You suggest that the trial, which I maintain to be a mock trial, of the Kaiser, for offences which I maintain have not yet been made offences, should take place before the Supreme Court of the United States. I am not an American lawyer, but I hazard the suggestion that the Judges of the Supreme Court would consult the statutes of the United States to see whether they had a right to conduct such a trial, and if they had not would decline to do "so unless the duty was imposed upon them by an. Act of Congress. I have no knowledge whatever of American politics, and will hazard no suggestion whatever as to what Congress would de if asked to pass such an Act. I feel sure, however, that no criminal proceedings before the Supreme Court, or before five Judges of it, would produce in the mind of the Kaiser the impression that be had had anything better than a mock trial.—I am, Sir, Sic.,
HERBERT STEPHEN.
[We have discussed the legal position of the Kaiser in our "News of the Week."—ED. Spectator.]
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