"It need not be difficult either to define or to secure the freedom of
the seas if the governments of the world sincerely desire to come to an
agreement concerning it." At first thought, the most striking
characteristic of these words of President Wilson in his address to the
Senate last January is their optimism. Freedom of the seas, according to
German authorities, is to be secured by various agencies, including the
unrestricted use of the submarine and an independent Ireland. Primarily
it is to be secured by the destruction of British naval predominance.
Now British authorities have an inconvenient habit of stating that
freedom of the seas was won long ago by means of the British navy, that
it exists today in time of peace, and that its continuance depends upon
Britannia ruling the waves. Our correspondence with Germany before we
entered the war contains polite references to our cooeperation with that
country to secure freedom of the seas through recognition by treaties
and international agreement of principles such as that of the immunity
of private property, not contraband, from capture at sea. But Germany no
longer thinks it possible to secure the freedom of the seas by the
medium of scraps of paper, and other nations show an unflattering
unanimity on this point, with regard to any scraps of paper to which the
present German government might be a party. As to the submarine as a
means of securing freedom of the seas, our entrance into the war is
perhaps a sufficient indication of our estimate of it. The usefulness of
an independent Ireland toward this end would seem even more likely to be
limited. There remains the British navy, and it promises to remain.
And how are we to define the freedom of the seas? The term has been used
in the past, and examination of our diplomatic correspondence will show
that it has been used in this war, in three different ways. It has been
used in protest against the appropriation by a single nation of definite
areas of the high seas for exclusive uses. The sowing of mines and the
proclamation of danger areas have led to its revival in this sense. It
has been believed to mean the right of private citizens to continue
sea-borne commerce in war time with a minimum of interruption. Our
preoccupation with this usage of the term during the first years of the
war won us a good deal of unpopularity with our present co-belligerents.
It has been used with reference to the safety of human life on the sea.
We are fighting Germany today upon this issue.
Is the problem one of war times only, or is there anything in the
contention that the potential pressure of sea power operates in times of
peace in restraint of commercial development? The question is not a
simple one, and perhaps it will aid us in understanding the seeming
optimism of our historian-president if we try to understand how this
matter has been dealt with in the past. The sailing ship has given way
to the turbine propeller, the galleon to the dreadnaught, the pinnace to
the submarine, but is the freedom of the seas which is being fought for
to-day of a kind different from that which was fought for in the days of
Drake? And is it to be secured by the same or by different means?
* * * * *
We need not dwell upon the recognition by Roman law of the principle of
the right of all to use the seas as a highway, nor upon the claims of
various city-states, notably Venice, to dominate portions of the
Mediterranean. In view of recent pronouncements from the Vatican, it is
interesting to remember that the claim of Venice, picturesquely
symbolized by the annual ceremony of wedding the Adriatic, was based in
part upon the gift of a ring accompanying an alleged papal grant, and
that the struggle for the freedom of the ocean seas began as a challenge
of two actual papal grants of wider significance. In 1454 Nicholas V
rewarded the pertinacity of the Portuguese in pushing their discoveries
southward along the coast of Africa, by granting to the crown of
Portugal exclusive rights of navigation and trade south of Capes Bojador
and Non. In 1493, Alexander VI rewarded the crown of Castile for the
exploit of Columbus, by giving Spain rights similarly exclusive beyond
the meridian one hundred degrees west of the Azores. The details of
these arrangements were later modified by mutual agreement of the powers
concerned, the final understanding being that Portugal had exclusive
rights of trade and navigation by the eastern approach to the Indies,
and Spain in the waters of what was supposed to be the western route
thither.
Both powers stood ready to defend the privileges which the highest
international authority of the period had granted them. They proceeded
to deal summarily with all foreign vessels found in their preserves.
Although the medieval maritime code, the _Consolato del Mare_, provided
for sparing the lives of the crew of a captured vessel, the
humanitarianism of the king of Portugal took a different form. John II
issued orders to his captains to seize all vessels encountered in the
barred zone, and instructed them to cast the crews into the sea, "In
order that they may die a natural death."
* * * * *
It was the mariners of France who most frequently braved this earlier
form of "spurlos versenkt." They persisted in navigating the waters
claimed by Portugal, and established a lucrative trade in Brazil. Their
sovereign, Francis I, seems to have been the earliest champion among
rulers of the freedom of the ocean seas. To the expostulations of the
king of Portugal he maintained, "The act of traffic and exchange of
goods is of all rights one of the most natural and best grounded." To
the remonstrances of the Spanish ruler, the Emperor Charles V, he
replied, "The sun shines for me as well as for others. I should like to
see the clause of Adam's will which excludes me from the partition of
the world." The tales of the exploits of Jean Ango, merchant of Dieppe,
who sank his enormous fortune in his ventures; of his captains, Fleury,
Verrazano, the brothers Parmentier, is an absorbing one. Seeking
fortunes for themselves and revenge for comrades fallen into the hands
of the enemy and treated as pirates; justifying their acts on the
principle that the paths of the sea are free to all; they dared and
suffered, and explored new lands, and brought glory to the maritime
annals of France. They laid the foundations of her overseas commerce and
colonies, but owing to the religious wars at home the superstructure was
not built until a later age.
The exploits of the French sailors against the Spanish monopoly were
succeeded by those of Hawkins and Drake. Elizabeth's dictum that the sea
and the air were common to all was as emphatic as Francis I's utterances
on the subject, and Elizabeth's was the better maintained. The victories
of Drake in the Caribbean Sea in 1586 meant the death blow to Spain's
hopes of effectually barring the western seas. She was felt to be within
her rights, however, in establishing a monopoly of trade with her
colonies in the new world. The English, in their efforts to obtain
trading concessions, or at least a recognition of their right to trade
in regions not actually occupied by Spain, following French precedent,
sedulously avoided making any agreement that might seem to acknowledge
Spain's right to prevent the vessels of other nations from sailing the
American seas.
While England was combating Spain's claims in western waters, a new
maritime power, the Netherlands, was breaking down the monopoly of
Portugal in the east. The ships of the Dutch East India Company won
their way against the Portuguese and made prize of their vessels. It was
apparently to set at rest the consciences of members of the company who
hesitated to pocket profits that had not been won in peaceful trade,
that the Dutchman Grotius wrote his treatise on the law of prize, one
chapter of which, under the title _Mare Liberum_, was published as an
independent work. The book claimed the seas as a free highway for the
ships of all nations, and freedom of trade for all nations on every sea.
That age was not ready to accept either claim in its entirety. Two
Englishmen, Welwod and Selden, wrote books to vindicate England's
traditional sovereignty over the British seas, the limits of which no
one was quite certain about. Even the British admirals who were supposed
to defend British authority there, could never get the Crown lawyers to
pronounce exactly on the point, some holding that British seas extended
to the English settlements in America, others being satisfied with a
line drawn from Norway to Cape Finisterre. Charles I set out, with his
ship money fleets, to supplement the discourses of his subjects by "the
louder language of a powerful navy." But it was left for his great
successor, Cromwell, to use this latter language effectively, and to
wring from the Dutch the concession that their ships should strike flag
and topsail in the narrow seas. They always insisted, however, that this
was done in courtesy, not as a recognition of British sovereignty over
any part of the high seas. International incidents arising from the
refusal of French captains to salute occurred until England relinquished
her claim during the Napoleonic wars.
* * * * *
As to freedom of trade, the English Navigation Laws stood as a witness
that Spain's policy of monopolizing colonial trade was considered worthy
of emulation. Such monopolies were carefully guarded, as in Elizabeth's
day, and as in her day efforts were made to break them down. To
Cromwell's request that Englishmen be allowed liberty of conscience and
of trade in the West Indies, the Spanish ambassador replied that it was
to ask his master's two eyes. Thereupon Cromwell stopped asking, but
despatched a fleet to the West Indies to seize a post which might become
a centre of British trade.
This action of Cromwell links his day to ours. That the keynote of
modern diplomacy and its accompaniment of wars is to be found in rivalry
for the possession of land and markets in the extra-European world, has
been fully pointed out by historians. It is a fact which cannot be
emphasized too strongly. Its significance increases with the study of
the whole modern period.[1] One has only to dip into the pamphlet
literature of the eighteenth and late seventeenth centuries, or to read
a few pages of parliamentary debates, to realize the importance of trade
in the eyes of all men. It becomes apparent that the aim of each
progressive nation was to increase its overseas commerce at the expense
of other nations, and that every new enterprise of foreigners loomed as
a menace to national prosperity. Sea-borne trade was the nursery of
seamen, and commerce must be restricted to nationals by navigation acts,
while commercial ventures of rival states were not alone a menace
because they meant diverting profits to the benefit of a rival, but
dangerous as the possible foundation for hostile naval power. Since
commerce was carried on most successfully by trading companies, it was
good policy to give them governmental countenance, and although
occasional voices were raised in criticism of their monopolies and the
high prices for which they were felt to be responsible, their shares
were popular forms of investment, and many of their shareholders sat in
the seats of the mighty. The English and Dutch East India Companies were
among the first to carry on overseas commerce on a large scale, and much
international history is written between the lines of their annals.
[1] And its illusions were set forth in "The Expansionist
Fallacy," No. 5 of this REVIEW.--ED.
"And you, Belgians, courage, courage! Continue to defend intrepidly your
rights and your freedom, and with them the freedom of the human race!"
It was not in August of 1914 that these words were spoken. They occur in
a pamphlet published in 1727, and the struggle in which they urge the
Belgians to persist was a struggle for the freedom of the seas. The
ruler of the Belgians in those days was popularly called the German
emperor, and though not a Hohenzollern, he was a Hapsburg. The Emperor
Charles VI was pursuing a project which bade fair to give the Hapsburg
lands something they have not attained to this day: importance as a
maritime power. He had issued a charter to a group of Belgian merchants
who were already carrying on a lucrative trade with the far east from
the port of Ostend. The Dutch and English East India companies, seeing
their monopolies endangered, complained to their respective governments,
which immediately set in motion machinery for the suppression of the
Ostend Company. Diplomatic agents busied themselves at Charles' court,
and a flood of pamphlets, in those days of limited newspaper publicity,
did what they could in the manufacturing of public opinion. The Belgian
pamphlets maintained the principle that "the right to trade in any part
of the globe is inherent in all sovereign peoples." The Dutch pamphlets
opposed the company on the ground of alleged infringement of treaty
rights and agreements. The English pamphlets, wisely refraining from
much comment on documents based on papal grants whose authority England
had never recognized, argued that English pocketbooks would suffer if
the Ostend Company continued to do business. Pitt many years later
stated in Parliament that the English government had no right to demand
the suppression of the company. But, as the British ambassador said to
the Emperor, in language strikingly reminiscent of that of the Spanish
ambassador of Cromwell's day, "In attacking our commerce, you fly in the
eyes of the English nation." In the complicated diplomacy of five years,
the question of the Ostend Company held its own, but in 1731 Charles VI
abandoned it, as he had abandoned many other things of value, to obtain
one more ratification of the Pragmatic Sanction.
Eight years later it was England that was carrying on a struggle for the
principle of freedom of the seas. Modern research has established beyond
any reasonable doubt that the immortal Jenkins did actually have an ear
sliced off by a Spaniard who was searching his ship for smuggled goods,
and that the tale was not a fabrication of the Opposition that desired
to force Walpole to plunge England into war. The Opposition certainly
recognized the recruiting value of the incident. "The tale of Jenkins'
ear will raise us troops enough!" exclaimed one member on the floor of
the House of Commons. Whether or not Jenkins commended his soul to God
and his cause to his country, his country embraced his cause as that of
the freedom of British commerce from search by Spaniards in time of
peace. The British vessels searched were usually smugglers, but the
British public was not interested in the right of Spain to safeguard her
monopoly of trade with her colonies; they objected to search and to the
contention that British ships must not be found in American waters
outside the straight path between England and her colonies, and they
besieged the doors of Parliament with the slogan: "A free sea or war!"
And so was fought the war of Jenkins' Ear, which might have been avoided
had it not been for the powerful influence, both with the people and
with Parliament, of the South Sea Company; and which did nothing toward
settling the point in controversy.
Thus far the principle of freedom of the seas had been invoked in
connection with efforts to preserve for the benefit of a whole nation or
of favored groups of nationals, all access to the trade and resources of
certain regions. During the wars for colonies and commerce which arose
from these efforts, the principle was brought forward against
interruption of commerce in time of war. In the days when privateering
was a recognized adjunct of maritime, warfare, commerce-destroying was
reduced to a science that only the last three years have rivalled. The
seizure as contraband of anything which might help the enemy to prolong
the struggle, and the confiscation of cargoes of neutral ships, on the
ground that part of the cargo belonged to the enemy, caused endless
international complications. Treaties of peace began to contain
provisions designed to render less burdensome these rights claimed by
belligerents. The first step toward anything like international
agreement was taken in the treaties of Utrecht in 1713. By these
treaties contraband was limited to articles directly useful in war,
exclusive of foodstuffs; enemy goods on neutral ships were protected on
the principle later reduced to a formula, as "free ships, free goods";
and the method of visit and search was regulated. These arrangements did
not outlast the peace, but many later treaties renewed, and some
developed more fully, these restrictions, which were naturally more
popular with neutral powers and with powers possessing small navies,
than with the power which possessed the command of the sea. As that
enviable position was held practically without interruption by Great
Britain, and as in time of war she used unsparingly the advantages her
position gave her, she gained in the eyes of opponent and neutral the
reputation of being the enemy of freedom of the seas.
At the beginning of the Seven Years' War France, realizing that she
would not be able to control the trade with her colonies, threw it open
to neutrals. Great Britain thereupon laid down her famous "Rule of 1756"
that commerce illegal in time of peace was not legal in time of war, and
attacked neutral ships found trading with French colonies. The answer of
Denmark and Sweden to this policy was the formation of the first league
of neutrals to protect neutral commerce. The French, hoping that the
contrast of their policy with that of Great Britain would help their
cause with neutral powers, were careful not to authorize interference
with neutral trade. It is interesting to find the doctrine of which we
have heard so much of late, of the menace of British "navalism,"
formulated in the eighteenth century by the minister of a state which,
like England's opponent in the twentieth, was stronger on land than on
the sea. It was a French diplomat who expressed the hope that some day a
union of nations would be able to cope with England and "establish
firmly after the peace, or even during the war, a balance of commerce:
for without it no other people will ever enjoy any but a precarious
navigation, which will last only as long as it is to the interest of the
English government not to destroy it." This statement owes its
significance to the fact that it voiced the attitude of a government
which, under stress of circumstances, indeed, and not because it saw a
light, was departing from the prevailing practice of mercantilism, the
reservation for nationals of the benefits of colonial trade.
* * * * *
A British statesman has recently made the assertion that the United
States owes its existence to the struggle for the freedom of the seas.
He was referring to the Elizabethan struggle against Spain's policy of
exclusion, but is not the statement true also in another sense? In so
far as the restrictions laid upon the development of the colonies by the
trade and navigation laws contributed in bringing about the American
Revolution, that movement was a protest against the mercantile system,
under which no freedom of the seas was possible.
The United States early ranged herself, also, on the side of the nations
that championed freedom of the seas for commerce in time of war. Her
treaty with France regulated the right of search, limited contraband to
munitions of war, and proclaimed the principle, "free ships, free
goods." The treaty which Franklin later negotiated with Prussia
established American advocacy of the immunity of private property from
capture at sea. In the meantime, Great Britain's refusal to limit
herself in any interference with commerce which might hinder her victory
over her revolted colonies and France, gave umbrage to the Scandinavian
powers and to Russia, and in 1780 Catherine II proclaimed the Armed
Neutrality of the North. To the principle of "free flag, free goods,"
and the limitation of contraband to actual munitions of war, the Armed
Neutrality joined the principle that a blockade to be binding must be
effectively maintained. Although Catherine jested with the British
ambassador about her armed neutrality, calling it an armed nullity, she
told him that Russian trade and Russian ships were her children, and
that she was determined to protect them. France had favored the
formation of the Armed Neutrality, and Louis XVI improved the occasion
by explaining that his only motive in participating in the war was his
attachment to the principle of the freedom of the seas.
It is difficult for us today to preserve the proper attitude of respect
for the word of a king in this connection, but it is not so difficult
for us to understand what was the real attitude of France. England had
won from France the greater part of her colonies, and with them a
lucrative commerce, and her remaining commerce was being crippled by the
war policy of the mistress of the seas. Behind the England which refused
to limit her power as a belligerent by accepting a revision of maritime
law, stood the England which was the successful commercial rival of
France.
The French Republic inherited this much of the view point of Louis XVI.
The remedy for the situation France saw in an imitation of England's
policy. It enacted a navigation law copied after those of Great Britain,
and while declaring that its war against England was a war to free the
seas, it proclaimed that as a war measure it was abandoning the
principle, "free ships, free goods." Napoleon took up the convenient
formula, writing to the Royal Society on paper decorated by a vignette
representing Liberty sailing in a shell, and bearing the motto, _Liberte
de Mer_. Years later he read the same meaning into the formula;
outlining to Narbonne his idea that England should be attacked through
the Orient; he said that the same blow which destroyed her mercantile
greatness in India, would win independence for the west, and the freedom
of the sea. England's attitude toward sea law gave him a convenient
weapon, and he induced his admirer the Czar to form a new Armed
Neutrality, announcing that France would not make peace until neutral
flags were properly respected, "and until England shall have
acknowledged that the sea belongs to all nations." Whether the device of
a league of neutrals could really be an effective force in protecting
commerce in wartime was not proved in 1800, for after the assassination
of the Czar Paul the coalition went to a pieces. As in the present war,
both belligerents used their naval forces to cut off supplies from the
territories controlled by the enemy, and to ruin her commerce. Napoleon
in his attempt to close the markets of Europe to Great Britain
maintained that he was defending the freedom of the seas against Great
Britain's refusal "to recognize international law as observed by other
nations," while England defended her "paper blockades" and policy toward
neutrals, as necessary, since she must preserve her command of the seas
as an "essential to the protection of independent states, and for the
prosperity and good of the human race."
The damage done to American commerce in the pursuit of these
high-sounding aims precipitated the war of 1812, which was indubitably a
war for the freedom of the seas for neutral commerce in time of war, and
which would probably have been fought with France instead of with Great
Britain had it not been for the question of impressment, and the popular
prejudices which had survived the American Revolution. Our championship
of rules limiting belligerent rights against sea borne commerce, and our
activities in the suppression of the Barbary pirates, have led us into a
rather complacent attitude with regard to our position as to freedom of
the seas. It is salutary therefore for us to remember the Bering Sea
controversy. When, in 1821, Russia claimed sovereignty over Bering Sea,
both the United States and Great Britain protested, and Russia withdrew
her claim. But when in 1886 our activities in connection with pelagic
sealing caused friction with Great Britain, our defense was based in
part upon a claim to have inherited from Russia rights which in 1821 we
had refused to admit that she possessed. And when the case was heard
before an international court, one of our advocates even justified visit
and search in time of peace, regardless of our traditional position on
that subject. However, after a certain amount of journalistic jubilation
when the award went against us, our cousins overseas charitably allowed
the memory of our peccadillo to accumulate dust. That the question of
the right of a nation to protect fisheries in adjacent waters is not a
closed one, was shown by Russia's claim in the White Sea put forward in
1911. That question, as well as the whole matter of the three-mile
limit, is bound to demand further consideration in the near future.
* * * * *
What has been the attitude of Great Britain since 1815, and how far does
it foreshadow her future policy? It must not be forgotten that in the
long struggle to safeguard human life as well as property upon the seas,
the chief burden has been borne by her. In the old days of her proud
claim to a salute in the narrow seas, she felt her responsibility to
police those seas, and this sense of responsibility has widened with the
extension of her commerce, so that she has put the whole world in her
debt by rendering the seven seas a safe highway in time of peace. Her
adoption of the principle of free trade was probably the greatest single
step that has been taken in modern times toward freedom of the seas, in
the sense of breaking down the barriers of trade restriction which
supposed national interest had erected. On the other hand, in the race
for markets and raw materials, she has not escaped the tendency toward
that return to the mercantilistic policy of exclusion in favor of
nationals which is so marked in the whole movement today, and which is
the crux of the problem. In the aspect of the question which has to do
with limitation of belligerent right, she has shown herself responsive
to the tendency, so noticeable from 1815 to 1914, to regard war as
something to be limited so far as possible to the armed forces of the
belligerents. Her substantial concessions in 1856, many of her statesmen
have never ceased to deprecate, and it was the growing feeling that she
could not afford to part with any more of the advantages her command of
the sea gave her, that prevented the ratification of the Declaration of
London. The events of the present war make very vital the question how
far rules of this sort contribute toward the solution of the problem.
The attitude of the English press toward Lord Lansdowne's suggestion
that Great Britain declare her willingness to discuss the problems
connected with the freedom of the seas reflects the shades of British
opinion at present. Certain papers see the problem as one of war times
only, and point out, what American opinion will not fail to echo, that
the submarine question will have to be dealt with first and foremost.
Two writers face the problem squarely as one of commercial policy in
time of peace, and offer solutions according to their creeds. The
_Saturday Review_ expresses the belief that "so far from examining with
other Powers the question of the freedom of the seas, we must re-enact,
without delay, the Navigation Laws, which we foolishly repealed in
1849." On the other hand, the _London Nation_ sees the impartial
distribution of the world's raw materials as one aspect of the real
freedom of the seas, and agrees with the French Socialists that the
mistress of the seas that must secure this freedom for all nations
willing to live by the rule of peace, must be, not Great Britain, but
the future League of Nations. The harmonizing of these two view-points
does not promise to be an easy task, and we may be sure that the whole
question will have full and free discussion in England and throughout
her empire in the months to come. American citizens do not have to
consider the problem of resigning to the keeping of a League of Nations
a proud and long-cherished tradition of wardenship of the seas. But we
are one of the great commercial nations, and no voice will have a more
respectful hearing than ours at the peace settlement. Barere,
phrase-maker of the French Revolution, summed up the foreign policy of
France in 1798 by saying that she had inscribed upon her flags, "Freedom
of the seas, peace to the world, equal rights to all nations." We have
seen how the first of these phrases has been used again and again in the
past to cloak jealousies of the commercial dominance of a rival nation.
We know that one thing that it means today is that never again must the
history of the world be stained by the wanton destruction of the lives
of peaceful travelers upon the world's highway. If it has a meaning also
in relation to the world's commerce, in peace or in war, we must see
that it is a different meaning from that of the past. For we, too, have
inscribed _Freedom of the seas_ upon our battle flags, and it behooves
us to be certain just where our army belongs in the long procession of
armies with banners--just what is the direction in which our standards
point.