Akin to the last-mentioned proposal and (like it) unbefittingly affiliated to the assertion of Freedom of the Seas,' is a proposal to secure by international arrangement a uniform and high standard of safety and health and comfort on board ship for the mercantile marines of the world. If this matter continued to be left, as at present, to national legislation,* it might be that some countries, less exacting than others, might obtain an undeserved advantage in the international competition for sea-trade; the fear of this might, moreover, deter any given country from legislation otherwise desirable in itself. The attitude which all Englishmen would instinctively adopt towards this proposal is that, if its acceptance would improve the lot of the British merchantseaman, it is more welcome than any proposal which might be made with verbal exactitude in the name of the freedom of the seas.

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

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

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

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 coastfisheries 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 for 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.

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, nevertheless, 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 imposition on them of intolerable restraints, the application to them of such cumulative pressure that they must ultimately comply with the conqueror's demands. Land-war only attains its ends by the burdens which it casts, or which it is in the power of a conqueror to cast, on the mass of the population.

The same holds good of sea-war. The destruction of a fleet is, by itself and apart from its ulterior consequences, only the issue of a naval tournament. So long as the losing sovereign's land remains intact and he continues to exercise his authority in his territory, assuring his subjects a secure existence and the continuance of their home and foreign trade, the loss of his fleet need not trouble him. It may, of course, open the way to the debarcation on his territory of enemy troops and military stores, and he may at the same time find

himself unable to augment or equip his armies from overseas. But, if these are the sole results of a naval defeat, sea-war becomes merely an auxiliary of, or a prelude to, land-war. Naval superiority loses a large part of its own peculiar effectiveness if it may not, like military superiority on land, strike a direct blow at the enemy where alone he is, in the last resort, effectively vulnerable, namely, by creating or threatening to create, unbearable individual distress.

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

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

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

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.

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

'The entire abrogation of the right of capture without the simultaneous abolition of Contraband and Blockade would not only be as futile as a blow struck at water but would also be a harmful innovation for Germany. For the rights of Capture, of Contraband-seizure and of Blockade are three fetters of sea-trade so cunningly interwoven that the moment one of them is loosened or destroyed the others grip all the tighter. These institutes compose, as Niemeyer says, an unholy and indivisible trinity. . . . Contraband-seizure could, if necessary, be abandoned, provided Blockade remained; Blockade and the right of capture might go if Contrabandseizure was left. . . . We are driven to the conclusion that a renunciation of the right of Capture is only possible if both Blockade and Contraband-seizure are abolished without leaving any trace or any substitute. Now I see no way in which this can be obtained. One of the two, so far as human foresight goes, will always remain.'

...

Mr Cababé, in his admirable monograph, points out that the right of Contraband-seizure-provided the list of contraband were drawn up with special reference to the circumstances of each particular war and not, as in the ill-fated Declaration of London of 1909, drawn up beforehand once and for all-is by far the most potent weapon of a naval belligerent in his war on the enemy's 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 Germany, 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