Lord Henry Thring’s Chapter Fourteen in the Manual of Military Law and Holland’s Handbook, The Laws and Customs of War on Land

Prior to Holland's appointment, the entirety of the War Office's regulations on the laws of war had been contained in Chapter fourteen of the Manual of Military Law. Preparations for this manual were first made by the Office of Parliamentary Counsel in 1879, following the Army Discipline and Regulation Act, though the first manual was not issued until after the publication of the Army Act (1881).^{[1385] [1386] [1387] The text was amended and reissued five times before 1907, to incorporate legal developments such as the decision to apply the 1898 Criminal Evidence Act to military court martials.}

Despite increasing international efforts to create a codified body of the laws of war on land in the late-nineteenth century, the British Foreign Office, through varying administrations, had demonstrated a constant reluctance to commit to this evolving progress of legislation. This position was reflected in the instructions supplied to delegates at international conferences, who were often advised against committing to new legislative measures.^{[1388] [1389] [1390] Holland noted that during negotiations on the 1874 Brussels Declaration, Lord Derby had sent a despatch to the War Office indicating his refusal to participate in discussions due to disagreement with the proposed principles^7 Before the 1899 Hague Conference, the instructions provided to the British delegation from the For­eign Office under Lord Lansdowne had advised that the proposals to reduce army sizes and restrict armaments through international conventions were against British interests^8 This reticence towards the effectiveness of existing legislation is evident throughout Thring's Manual. Although by 1899 Britain was a signatory to the St. Petersburg Declaration and the Geneva Convention, Thring used his introduction to emphasise the lack of binding force behind these conventions. As a result, he argued that the phrase �customs of war' would be used throughout the manual instead of �laws of war' to avoid confusion in the minds of his readers. Outlining his reasoning for this, Thring explained:}

A law, to the mind of an Englishman, conveys the idea of a defined and rigid rule, which must be obeyed in all circumstances and at all risks, and the infraction of which involves a crime punishable by a legally consti­tuted tribunal.^[1391]

By contrast Thring argued that the existing customs of war were not �precisely defined', consisting instead of principles whose enforcement �must vary con­siderably, according to circumstances'.^[1392] In complete contrast from Holland, his manual relied on a division between such international customs, as �elastic rules' which constituted the practice of civilised nations, and laws, which re­ferred solely to the military law contained in the Army Act (1881).

Thring's introduction to the 1899 Manual of Military Law distinguished three distinct branches of law during wartime: military law, the law relating to riot and insurrection, and the customs of war.

During his Whewell Lectures at Cambridge, Henry Sumner Maine laid praise on an early, and at that point unpublished, edition of Thring's text. He described it as �one of the best' of the new European military manuals which had been written after the 1874 Brussels Declaration. Maine also noted that Thring had visibly taken �all that he could take from the humaner doctrines of the publicists', particularly Emer de Vattel, yet commended the practicality and accessibility of his manual^[1394] In compiling his section, Thring had indeed drawn from a wide range of intellectual sources on international law. He cited the work of the Grotian natural-law advocate Sir Robert Philimore as his prin­cipal English source alongside European theorists, notably Vattel and his Le Droit des Gens (1758 and English translation, 1834), and A.G. Heffter, Le Droit International de LEurope (1866 and translated by Jules Bergson, 1873).^[1395] In his references Thring cited two other English lawyers, William Edward Hall and Henry Wheaton. His chapter also heavily referenced North American writings on international law, including the �Instructions for the Guidance of the Ar­mies of the United States in the Field', more commonly known as the Lieber Code (1863) and James Kent's Commentaries on American Law (1848, sixth edition)^[1396] By 1899 Union Army General Henry Halleck's International Law, as rewritten by Sir Sherston Baker, was the most cited work in the text, surpassing even reference to Vattel.

Writing just five years later, Holland's approach to the sources of the laws of war could not have been more different. �The law of war is now no longer a mat­ter of customary tradition, or to be gathered from the, in many respects, obso­lete treaties of Vattel and subsequent writers of text-books', declared Holland in his draft chapter. �It rests largely upon the authority of express international convention'^{[1397] [1398] Eschewing mention of any commentaries or existing intellectu­al arguments, Holland approached existing international treaties as the pri­mary source of international law, which he complemented with his own notes. Holland had from the outset advocated the inclusion of the St. Petersburg Dec­laration and the 1864 Geneva Convention in Chapter fourteen of the manual, though this was not required by the terms of Article I of the 1899 Hague Con- vention.66 His work also relied on customary law, which depended for author­ity on �the unwritten consent of Nations'. However, he argued that such cus­tomary rules should not be derived from the �often inapplicable dicta of Vattel and his followers' but instead from diplomatic correspondence, historical prec­edence, the protocols of non-binding conferences, and the instructions pro­vided to national armies[1399] Holland may well have viewed his contribution to the manual as the model exemplar of this latter source of international law. Turning firmly away from the academy, his writing elevated the transactions and instruments of modern diplomacy and politics to a position of primacy as sources for international law.}

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