of the Seas

FREEDOM OF THE SEAS

HISTORICAL

I

INTRODUCTORY

THE appropriation of the formula, the "Freedom of the Seas," by our late enemy necessitates an historical examination of its use by the enemies of Great Britain, and a renewed assertion of its true meaning. The enemy has adopted it as a comprehensive term, to deny the right of a belligerent to interfere with his free use of the sea in time of war.

For a belligerent to claim free navigation and commerce at the hands of his enemy, to assert that he is entitled to use the sea as freely in war as in peace, is to ignore the circumstances of war and practically to deny the right to fight upon the sea.

But when the neutral makes this claim, the question assumes a very different and a more serious aspect; for his assertion appears at first sight to be unanswerable. He is unconcerned with the war; a priori, therefore, he should not be affected by it, and should be allowed to continue in peaceful exercise of his rights of free navigation and commerce upon the sea. this also ignores the circumstances and conditions of war; for, obviously, free navigation and free commerce would carry with it free intercourse with the enemy and raise the question how far this is consistent with neutrality.

Yet

In the historic disputes in which England's attitude at sea has been challenged, the neutral has put forward his claim in this simple fashion; he has hardly disguised the fact that his aim has been to maintain free

intercourse with the enemy. The only exceptions he has been willing to admit are trade in contraband and with blockaded ports. The issue is therefore very clearly defined, and it has not varied from the time it was first raised to the present day.

It must be obvious that it lies only with the neutrals to put forward this claim of free navigation. If the enemy has any right to claim it, it can only be (in the absence of a treaty) as a derivative from the neutral's right. The historical examination of the question will amply demonstrate the accuracy of this statement.

Our enemy sought at the outset to cloud the issue by confusing the Laws of War with what is popularly called "International Law," and did so with some success. It is suggested that the only sound way of treating the subject is to say that the relations of belligerent and belligerent are governed by the Laws of War; that "International Law properly applies to the relations between belligerent and neutral States; and that the questions which commonly arise in connection with the "Freedom of the Seas," can only be accurately defined as the relations of belligerents and neutral merchants.

The point need not be laboured, but must be noticed in order to emphasize the importance of preserving an accurate nomenclature in the discussion. Confusion of meaning in the terms used has prevailed since the question was first debated, and the enemy has always availed himself of that confusion.

To make my meaning clear. The question whether it is legitimate in war to destroy the commerce of the enemy can only depend on the Laws of War; the point being whether the effect of this belligerent action does not so affect the civil population as to remove such action from legitimate warfare. The destruction of the enemy's trade with himself-his coasting trade, for example could not be condemned on any other ground. But when we come to the enemy's trade with the neutrals another factor is introduced into the discussion; the question passes

from the sphere of the Laws of War, because other parties the neutral merchants are affected, who are unconcerned with the war. The issue then takes this form: whether those parties have commercial rights which are paramount to the right of the belligerent to annihilate his enemy. It is not easy to disentangle the two questions-Whether the neutral merchant has a right to trade with the enemy? Whether the enemy has a right to trade with the neutral merchant? The discussion of the principle "free ships free goods is infected with this difficulty. But, war being what it is, in the absence of any support from the Laws of War, it is obvious that, if the enemy has any such right, it must be derived (in the absence of a treaty) from the right, if any, of the neutral merchant, and from the impossibility of severing the rights of the two parties to the contracts of which all commerce is composed.

The argument in favour of the enemy cannot be put higher than this: that his commerce cannot be interfered with, because the right of the neutral merchant would also be interfered with. And this argument is no stronger than its converse-the neutral merchant can have no right to trade with the enemy, because any rights which the enemy has are at the mercy of the belligerent.

The solution of the difficulty either way must depend on some sounder process of reasoning.

1

The position assumed by England may be stated very simply. Interference with neutral trade is justified whenever the premiss on which the neutral claim rests ---unconcern with the war-is negatived by the facts. When the neutral has established relations with the enemy his claim of absolute right is vitiated. To this fundamental principle England's action has been at all times referable. It was not until the pressure of her power upon the sea became so great as practically to annihilate those those relations that the neutrals had recourse to the formula " Freedom of the Seas" to destroy it. The enemy followed his lead. In

this sense and for this purpose the formula came into common use on the Continent from 1776 to 1782, at the time of the American War of Independence and the First Armed Neutrality. In this sense and for this purpose Bonaparte at the time of the Second Armed Neutrality, in 1800, adopted it as his own. This combination of neutral and enemy, their resentment at the action of the Power which used her supremacy at sea to interfere with their trading relations, led to her being called the " Tyrant of the Seas,' an epithet based solely on the assumption that the use of the sea in peace continues unaltered in war.

of

There

Now, in the first place, war upon the sea must interfere with its free use. The quarrels maritime nations are fought out upon the sea. will be fighting wherever enemy ships are found (except in neutral territorial waters); and free navigation on the trade routes will be interrupted. Thus indirectly war diminishes the Freedom of the Seas.

War also prejudices it directly; and, quite apart from the familiar questions of blockade and contraband, free commerce is curtailed. This point must at the outset be made clear: that except indirectly, as just indicated, neutral trade with neutral is not interfered with, but remains "free." But it is obvious that neutral commerce alters its character directly an ultimate destination of the cargoes to the enemy is intended, and loses it altogether when it is commerce with the enemy. A new element has been introduced which entitles the belligerent to revise his admission that neutral commerce is free. This is invariably overlooked in all the statements of the case against England; interference with neutral trade with the enemy is treated as being in the same category as interference with purely neutral trade with neutral. The former might be completely destroyed, and yet genuine neutral commerce remain intact. It follows, therefore, that the measure of belligerent interference with the trade of the neutrals is the nature and extent of the

relations which the neutrals themselves establish with the enemy.

Those relations have compelled the assertion by belligerents of a right to visit and search neutral merchantmen in all circumstances, and of a correlative duty in the neutrals to submit to visit and search whenever it is claimed. There is in this a very direct interference with the Freedom of the Seas. Round this question all the historic disputes have centred, for the neutrals denied the duty and resisted the exercise of this right.

The wars in which these disputes arose were those in which a yet larger issue was involved, a struggle for world-dominion. Of such wars England inevitably became the pivot. For, if one country hold the command of the sea, so great is its influence that, even with little strength on land, it interposes an effective bar to the achievement of the ambition.

Such was the position of England. By the development of sea-power, the natural resource of an island kingdom, she created from the surrounding seas the barrier of her safety. Hence the later struggles for world-dominion have involved an attempt to wrest from England the supremacy of the seas.

It must be conceded that the rules of sea warfare cannot be framed to suit the exigencies of one country's position in the world. But the point involved is this: that an analysis of the history of these conflicts condemns the principles which enemy and neutral sought to force on England, because it reveals the true motive underlying them, and shows very clearly that the principles which the neutrals proclaimed did in fact · very largely concern and benefit the enemy.

Not the least of these important facts is that the most vehement assertions of these principles by the neutrals have coincided with projects for the invasion of England. The foundations of the dispute were laid in the time of the Armada; it grew in strength in 1756, was further developed in 1783, and reached its zenith in 1805. History has lately repeated itself.

An analysis of the principles themselves leads to the