*

Akin to the last-mentioned proposal and (lik unbefittingly affiliated to the assertion of Freedo e the Seas,' is a proposal to secure by international arr ment a uniform and high standard of safety and h and comfort on board ship for the mercantile ma of the world. If this matter continued to be left, present, to national legislation, it might be that countries, less exacting than others, might obtai undeserved advantage in the international compe for sea-trade; the fear of this might, moreover, any given country from legislation otherwise desi in itself. The attitude which all Englishmen v instinctively adopt towards this proposal is that, acceptance would improve the lot of the British merc seaman, it is more welcome than any proposal might be made with verbal exactitude in the na the freedom of the seas.

We now turn to the consideration of the Fre of the Seas in time of war, a topic which in itsel apart from the questions so acutely raised durin last four years, is far less important than that a freedom of the sea in time of peace. In its wildes widest form a demand for the freedom of the s war-time would, if conceded, mean that hostilities only take place in the territorial waters of the be rents, and that merchant-ships should be as free time of peace to carry all cargoes to all destina Treating this as outside serious discussion, we find selves confronted by two main questions: (1) How I if anything, of the freedom of the seas (as hitl understood by us in this article) is left to a bellige (2) How much is taken away from a neutral? We deal with these questions in the order indicated.

into Germany. A Board of Trade Committee, presided over by Sir Booth, has reported on the ways in which they were perverted purposes of unfair competition. See the Report, already ment pp. 8-10, 16, and 96. The Committee recommends (p. 113) that th transit of German and Austrian vessels through the Inter-Oceanic ( (Suez, Panama, etc.) should be made conditional on the free pass persons across the territory of the Central Powers, and vice versa.

The Report of the Departmental Committee just mentioned (p. 114) some of the fraudulent ways in which the ships of one country if so minded, defeat the measures taken by another country in this dire

War destroys the freedom of the seas for each belligerent so far as his enemy is concerned. This is unquestionable with regard to public vessels. Subject to some minor exceptions-e.g. vessels engaged in coastisheries and hospital-ships-it is true of private-owned ships; but one of the urgent questions of the hour is whether that shall continue to be the case. A demand or the immunity of private property from capture at sea has been made for over a century in the name of the freedom of the seas. Let us first look at the matter in the light of principle. F What is the object of maritime war? M. Dupuis gives an admirable answer in his 'Le Droit de la Guerre maritime d'après les doctrines anglaises Contemporaines Paris, 1899). He asserts that it is the suffering, actual or prospective, of the peaceful population of a belligerent State which determines the end of a war; the destruction of armies is only a preliminary operation. Imagine the army of a country to have been utterly beaten and finally put out of action by an enemy whose army, evertheless, halts at the frontier; why should the Vanquished State yield to the will of the victor? The factor which decides it to yield is not the military defeat but the use which the enemy can make of that defeat-the occupation of its territory, the disorganisation of its national life, the interruption of the social and economic relations of its citizens, the mposition on them of intolerable restraints, the appliation to them of such cumulative pressure that they ust ultimately comply with the conqueror's demands. and-war only attains its ends by the burdens which it asts, or which it is in the power of a conqueror to cast, the mass of the population.

3:

The destruction of

The same holds good of sea-war. fleet is, by itself and apart from its ulterior conseences, only the issue of a naval tournament. So long s the losing sovereign's land remains intact and he coninues to exercise his authority in his territory, assuring is subjects a secure existence and the continuance of heir home and foreign trade, the loss of his fleet need ot trouble him. It may, of course, open the way the debarcation on his territory of enemy troops nd military stores, and he may at the same time find

himself unable to augment or equip his armies from ov seas. But, if these are the sole results of a naval defe sea-war becomes merely an auxiliary of, or a prel to, land-war. Naval superiority loses a large part of own peculiar effectiveness if it may not, like milit superiority on land, strike a direct blow at the ene where alone he is, in the last resort, effectively vuln able, namely, by creating or threatening to create, bearable individual distress.

'Ce n'est donc point,' says Dupuis (p. 45), 'par contradicti mais par analogie avec la guerre continentale, que la gue maritime peut chercher à troubler le commerce, à interrom les relations économiques de la population ennemie. Puis la pression sur le gouvernement et sur la masse de la nat est l'élément qui décide, en fin de cause, à la guerre, il s'agit terre de priver gouvernement et peuple de l'usage du te toire; sur mer, de les priver de l'usage des routes maritir Priver l'adversaire de l'usage de la mer, tel est le vérito objet de la guerre maritime proprement dite.'

In land-war a victorious belligerent proceeds to occ the territory of the enemy, and is thus enabled to enfo his will on the vanquished, if needful, by measures wh cause insupportable distress to the individuals of wh the community consists. But a belligerent can o effect a relative occupation of the sea; he can at l only occupy it as against his enemy. He effects 1 relative occupation to the extent that he destroys enemy's lines of maritime communication, renders use of the sea impossible to him, and drives off the his shipping of all kinds. Like military occupation conquered land, this occupation of the sea is only means to an end; it is designed to bring the enemy terms by causing him, or menacing him with, collect and individual distress. Theory thus justifies pract as regards the capture of an enemy's merchant-shippi and other private property at sea.

The movement in favour of exempting private ene property from liability to capture on the sea is, and lo has been, notoriously strong in the United States. Bigelow prints in his 'Life of Benjamin Franklin' (4th ed ii, 508), a letter written by Franklin from Passy in Ju

1780, in which, after referring to the movement which resulted in the First Armed Neutrality, he adds:

'England does not like this confederacy. I wish they [i.e. Russia and other Powers] would extend it still further and ordain that unarmed trading-ships, as well as fishermen and farmers, should be respected, as working for the common benefit of mankind, and never be interrupted in their operations, even by national enemies; but let those only fight with one another, whose trade it is and who are armed and paid for the purpose.'

In 1785, five years after it had been, though somewhat vaguely, advocated by the First Armed Neutrality, the principle in question was embodied in a treaty between the United States and Prussia; and, although in the later treaties between these countries this stipulation did not re-appear, the United States championed the reform during the whole of the 19th century, notably in 1856 and at the Hague Conference of 1899, as also in that of 1907. A treaty of 1871 between the United States and Italy provided, in the event of war between the two countries, for the immunity of sea-borne private property other than contraband; and in the middle of the 19th century the same provision was inserted in treaties between various American Powers. In one war only, the brief war of 1866 between Prussia (in alliance with Italy) and Austria, has this immunity been recognised by the combatants, although a proposal to adopt the principle was, unsuccessfully, made by Prussia to France in the war of 1870, and by China to Japan in the war of 1894.

Van Calker shows (pp. 20, 21) that both Bismarck and Caprivi, as Chancellors of the German Empire, expressed themselves in the Reichstag as opponents of the abolition of a belligerent's right to capture at sea the private property of his enemy. At The Hague, in 1907, thirty-two States voted in Committee on the proposal of the United States to abolish this right; twenty-one Powers were in favour of the proposal, but the minority was so strong that nothing came of it. Germany, moreover, who voted in the majority, qualified her assent by a condition that the law of Contraband and Blockade should first be adequately settled. Recent German Vol. 231.-No. 458.

20

writers, writing in the light of the events of the lat war, go further and insist on the retention of the righ of capture so long as Contraband and Blockade ar recognised institutes of International Law. Thus Triepe writes (op. cit., pp. 15, 35), avowedly from the standpoin of German interests alone:

'The entire abrogation of the right of capture without th simultaneous abolition of Contraband and Blockade woul hot only be as futile as a blow struck at water but woul also be a harmful innovation for Germany. For the right of Capture, of Contraband-seizure and of Blockade are thre fetters of sea-trade so cunningly interwoven that the momen one of them is loosened or destroyed the others grip all th tighter. These institutes compose, as Niemeyer says, a unholy and indivisible trinity. . . . Contraband-seizure could if necessary, be abandoned, provided Blockade remained Blockade and the right of capture might go if Contraband seizure was left. We are driven to the conclusion that renunciation of the right of Capture is only possible if bot Blockade and Contraband-seizure are abolished withou leaving any trace or any substitute. Now I see no way i which this can be obtained. One of the two, so far as huma foresight goes, will always remain.'

Mr Cababé, in his admirable monograph, points ou that the right of Contraband-seizure-provided the lis of contraband were drawn up with special reference t the circumstances of each particular war and not, a in the ill-fated Declaration of London of 1909, drawn u beforehand once and for all-is by far the most poten weapon of a naval belligerent in his war on the enemy' trade; and that in the present war the Allies could have obtained by the enforcement of this right alone practically all the advantages gained by the more dubious method of the Embargo. Even without a 'blockade' of Ger many, not many German merchant-ships with a destination to a European port would have avoided being sent into port on suspicion, if (as happened) our contrabandlist had developed side by side with the developments of German ingenuity and technical skill, and if we applied the doctrine of Continuous Voyage to all forms of Contraband.

Van Calker (pp. 22-3) and Stier Somlo (p. 103) agree with Triepel as regards the necessity of the retention by