The Freedom of the Seas

President Spence introduced Dr. Munro who spoke as follows: Let me first thank you for the honour of the invitation to address you a second time. I think it is about two years ago that I had the pleasure of speaking to you on "Canada and World Politics". When I was asked to address you this winter I noticed that the date of the invitation coincided with the coming Naval Disarmament Conference, and, as the crux of any Disarmament in Naval matters is really the question known as the Freedom of the Seas, I thought possibly it would be in order to give a few remarks on that very important subject. I understand that it is not coming up as such, but it really hovers in the background.

On the day the Conference opened, a newspaper despatch reported that in the British House of Commons a question was put as to whether any, and if so what, steps were being taken to consider how far Great Britain could accept the Freedom of the Seas, and Premier Ramsay MacDonald stated that his Government was not in communication with the United States on the subject; they had not the question under consideration. Asked further if the question of the Freedom of the Seas had been raised at the Naval Conference, Mr. MacDonald replied in the negative. Possibly it may not be on the agenda, but before any large- installments of disarmament can be secured, certainly before world peace can be established, the age-long question of the Freedom of the Seas must be settled as between Great Britain and the United States. While this is my main topic today, I may be permitted briefly to discuss the origin of the present Naval Conference, and inquire why it has come up at this particular time.

You will recollect that when the League of Nations was founded a great burst of idealism swept over the world. The war was fought to end war. Everybody felt that all we had to do was to meet in solemn assembly and duly pass a motion that there should be no more war, and wars would thereupon cease. However, something had to be devised as a substitute for settling international disputes, and of course the watchword was Arbitration; for the first two years after the war we sought to devise instrumentalities for Arbitration. The League of Nations, especially the Council, was set up to settle disputes as they might arise. It was not water-tight, however; there are certain situations in which war might eventuate even after the Council of the League has tried to settle disputes. Then there were various items of arbitral treaties between states, arbitral tribunals; but the greatest effort was to establish the Court of International Justice. The nations, however, have not yet agreed to refer all their disputes to the Court of International Justice.

Now, with all this idealism running high, with those various situations settled by arbitration, why was it we just fell short of abolishing war? Another principle was in men's minds-the question of Security. We did not move along the path of arbitration long without coming up "bump" against the question of security. Nations are not yet prepared to arbitrate their differences until they are assured of their national integrity; so that about twenty-four of the nations began to explore that question. Then followed in rapid succession a series of arrangements, treaties, pacts, etc. We had, first, the Treaty of Mutual Assistance; and, a year or two later, we had the famous Geneva Protocol. Both fell by the board because they tried to get a large blanket agreement to cover all the nations of the world. It was found that the general guarantee differed, and the time was lost. So they started on another tack and began to draw up particular treaties of guarantee, the most important one of which today is the Locarno Pact, which guarantees the integrity of the nations in the vicinity of the Rhine. Then came the Kellogg Pact, and all this time, having these pieces and half-pieces of arbitration, these pacts of security, the world was ready to discuss, not total disarmament, but an installment of disarmament. Hence today the five great Powers are meeting in London to discuss some measure of Naval Disarmament.

Two years ago a Commission, appointed by the League of Nations, met at Geneva to explore the question of Disarmament, and they did not get along very far in their investigation before they saw that World Disarmament depends to a large extent on Naval Disarmament, because one of the fundamental principles of diplomacy, of world politics, is that sea power is world power. If you take a long view of history, you find that all the great conflicts that have established world empires and world powers are largely based on sea power.

But I wish to point out something that is not always pointed out by writers on world politics--that world dominion, world empire, depends on a union of military and naval powers. The most thoroughgoing example of that in history was Rome. The real reason why she persisted for centuries as a world power was that she joined supreme military power with naval power, and ever since the days of Rome the world--subconsciously, it is true--has insisted that naval power and military power shall not rest in the same hands. Hence in European history for the past four or five hundred years, from the point of view of world politics, there is a continued struggle between great military powers and great naval powers. The real menace to the national integrity of all states in the recent war was the imminent danger that Germany would unite supreme military power to supreme naval power. If that had been done, probably Germany would have had a history like that of ancient Rome, and for centuries, as far as we can predict, Germany would have been the supreme world power.

Now, the principal function of naval power during the past four hundred years has been to strike down those military powers that have threatened world domination; and the sea power that has done that repeatedly is the sea power of Great Britain. She struck down the Armada, the power of Louis XIV, the power of Napoleon, and finally the power of Germany; and, when the British Navy comes into port for the last time, she can look back on a record of work well done (Applause)-probably the greatest single contribution to modern world liberty as we would have it, to democracy, and to the integrity of nations. These have been brought about by the British Navy.

The real problem in this Conference, as in all conferences, is to find a formula. That is the real function of the diplomat. He has to face a certain situation. He tries it at first with a certain formula, which does not work. Other diplomats are in the same position, so they get together and finally agree on another formula, very often the reverse formula. They finally find a formula that will work, and a certain measure of success will be secured. Booker Washington used to tell of an old darky who wanted a turkey for Thanksgiving; so he prayed very long and fervently, "0 Lord, send a turkey to dis nigger." Day after day passed, but no turkey. Finally, on the night before Thanksgiving, Sambo put on his thinking cap, and thought long and wisely, and finally decided to vary his formula, and then he prayed, "0 Lord, send dis nigger to a turkey." He found him that very night. (Laughter.) It will be interesting to watch this Naval Conference to see how, day after day, after discussing global tonnage and naval tonnage, etc., the Council may agree on a formula which will solve in a general way the question of Disarmament.

However, that is not the immediate topic that I wish to discuss, but rather the question of the Freedom of the Seas. It is a big subject, but I propose to discuss it rather from the strict legal point of view; to try to show in a few words what has been the real issue between Great Britain and the United States in naval matters for over a century. The question was placed fairly before the world by Mr. Hoover in his Armistice Day address last year, when he discussed the whole question of naval matters very fully. He said, "There is another of those age-long controversies which stirs men's minds and their fears; that is, the so-called Freedom of the Seas. In reality it is simply the right of private citizens to trade in time of war, for there is today a complete Freedom of the Seas in times of peace."

Now, let us come back to the fundamental principles for one moment. In world politics there are a few fundamental principles, which every student of history can trace if he takes the long point of view. For instance, the principle that explains the history of France for the last six hundred years has been that of Natural Frontier. France has endeavoured to get to the frontiers dictated to her by nature-the Pyrenees, the Alps, and the Rhine. She has gone to the two mountain ranges, but never succeeded in getting to the Rhine; hence the effort she is making in European affairs, of expansion to the Rhine.

What has been the fundamental principle of Great Britain? Simply Sea Power. There are other objects of that power at different times, but her first aim is to command the seas, for her purpose is to exhaust and fulfill her function as a power. Sea power, with Britain, not only means world power, but it is the very life of Great Britain. Ramsay MacDonald said the other day, "The Navy is Us." There has been some discussion on the question whether he was using correct English, but the Navy is Us, and he spoke a very fundamental truth there.

In fact, Great Britain feels that she must command the seas. More than ever now she must command the seas, because she cannot feed herself more than a month. She must bring home her foodstuffs and cargoes, and her life is by the sea; she rises and falls by the tide. Sea power was brought home to me as a youngster studying the classics. I was reading the account of the war between Athens and Sparta, known as the Peloponnesian War. Athens was very much like Great Britain; her Empire was based on the seas; she depended on the sea; she was a mere city there, but she had a great colonial empire, and her commerce was sea-borne. Sparta was a land power, and they went out and fought for twenty years. The navy of Athens was caught napping one day, and she fell, and then the news of the defeat of the Athenian Navy reached Athens, and the historian Xenophon said, "No one in Athens slept that night"-one of the most forceful statements in the history of mankind. When we received the first report of the Battle of Jutland (you remember that it was an incorrect report), the British Admiralty did not tell us all the facts, but they recorded the losses of the British Navy in that battle; don't you remember that you did not sleep very well that night? Because we knew, subconsciously, that the jig was up if we failed in our sea power; and Germany and Russia felt that. The Americans can exist without sea power, but we cannot. Our Empire is based on the sea.

Now, what is the fundamental principle of the United States? What has been the great contribution of the United States to International Law? It is the doctrine and principle of Neutrality. When the United States was founded they said, "We want nothing to do with the European system, the system of Triple Alliances, and Pacts, and all that sort of thing. We are in a new world, we have new ideas. We have left the old world behind. We are inclined to be neutral in time of peace, and in time of war we will trade with everybody." Here we have the two principles in opposition, especially in war-time. Great Britain feels she must control the sea; the United States, being a trading nation, not aspiring to be a great military or naval power, says, "We want to be able to trade with everybody." The opposition of those two principles really constitutes the question known as the Freedom of the Seas.

Now, a few words on the legal situation as it has developed in the last century or two. When commerce began to pick up after its long sleep in the Middle Ages--because commerce in the Middle Ages was really piracy when it began to regulate intercourse between nations it had to face wars pretty often; the normal condition of Europe was war. How was commerce treated in time of war? Well, there was one fundamental rule--that enemy private property is liable to capture. That is still the practice m time of war. Many publicists from time to time have advocated the immunity of private property from capture at sea, but so far that rule has not been adopted. But what about neutral property in time of war? There are two main situations in which neutrals can get mixed up with belligerents as far as property is concerned. One is the case where enemy property is placed on a neutral vessel, and the other is the case where neutral goods are placed on an enemy vessel. How are we going to treat those two cases?

Great Britain and France, then two great naval rivals, treated those questions differently. With respect to enemy property placed on neutral vessels, France was inclined to be liberal-I say inclined to be, because in practice she followed Great Britain-she was inclined to be liberal, and reasoned that because the goods were on a neutral vessel, on a free vessel, therefore the goods should be free. In other words, she stood for the principle of free ships, free goods. Free ships could give immunity to any goods on those ships. Great Britain was opposed to that; she did not adhere to the doctrine of free ships, free goods.

What about the other situation, where neutral goods were placed in enemy vessels? Here England was inclined to be liberal, and France to be strict. England was inclined to say, "We will capture the vessel, but we will let the goods, if neutral, go free, at any rate." France was inclined to say that, because the goods were on an enemy vessel, they were enemy; therefore she enforcd the other rule.

That, at any rate, ruled during the centuries, but in the Crimean War France and England were allies for the first time in many centuries. When the question arose as to which principle they should adopt, England gave up her practice in regard to the free ships and free goods, and France gave up, "enemy ships, enemy goods". This was made known in the Declaration of Paris, which was drawn up at the time of the Peace Treaty that settled the Crimean War. It is a declaration that did four things--abolished privateering, defined blockades as something that must be located and confined to actual ports, not paper blockades; but it adopted the rule, "free ships, free goods", and opposed the rule, "enemy ships, enemy goods". That is now part of the International Law of today, and there is no further question raised as to that. However, the United States did not adhere to that Declaration of Paris, though most other nations of the world adhered, because the United States wished to go further and abolish the capture of private property altogether at that time. You can see why. The United States at that time was a great trading nation, but not a strong naval power, and naturally she wished the more liberal rule.

The rule in International Law, therefore, generally, is that neutral property must not be seized if it is not contraband, or if it is not going to break a blockade. There's the rub. Contraband articles going to the enemy of course are not permitted by the opposing belligerent to reach the other belligerent, and when there is a blockade raiders must keep away. But these two rules have enabled belligerents to get around those other principles that are established. It is that particular question that defines the question of the Freedom of the Seas.

The only way to understand world politics is from history, and I need not apologize for making these political excursions. It was the Seven Years' War that gave Britain her Empire--gave Canada and India and other parts to Great Britain. As usual, that war was not very old when Great Britain got command of the seas, and France could not bring home her cargoes from her colonies, especially from the West Indies. That trade was a closed or coastal trade. France did not let any other nation come in and trade between herself and her colonies, but when she could not keep her seas she threw the trade open to the neutral shipping, and the Dutch and Swedish boats were carrying home the cargoes to France. Naturally they ran into the British cruisers, which did not seem inclined to let those cargoes go to France, but took them to England and put them into prize ports. The rule of 1756 to this effect--that trade that is ordinarily closed in times of peace to neutrals cannot be thrown open to them in time of war; otherwise their vessels will be subject to capture--was put into effect, so they were captured and condemned.

The next war was the Napoleonic War, and by this time the United States was in existence, and was a great trading nation. Again France could not put to sea. Again she had to throw her colonial trade open to neutrals, and the Americans, by this time, shared in that carrying trade. The shrewd Yankee skippers had no intention of sailing direct from the French West Indies to France. They knew the rule of 1756 was against them, but what they did was to come up from the French West Indies to New York or Boston or Salem, sometimes unload their cargoes and put them on again, and then sail across. Then if they met a British warship they said to the commander, "Oh, this is not violating the rule of 1756; this is a voyage from an American port to France, and we have the right to say, 'free ships, free goods."' The British commander would say, "No, not on your life; we will put you in prize port."

At that time there was a very famous judge in Admiralty, who practically made all modern prize law--Lord Stowell. He was thirty years in Admiralty, all through the period of the Napoleonic War, and he devised the new doctrine, really based on the old rule of 1745, known as "Continuous Voyage". He said to the Yankee skipper, "No, you don't; that is not a continuous voyage from New York to France; you really intended that the goods got to France; this is only a blind. The voyage, in effect, was continuous from the West Indies to France, and the little stopping places you imposed in the meantime." This famous doctrine of Continuous Voyage helped Britain to win the war. The Americans protested, but they did not have a large navy, although they did fight in the war of 1812. The Americans have been in two great world wars for exactly the same reason--their rights at sea. They fought Britain in 1812 for the same reason--the right to trade in time of peace.

The next great war that involved naval operations on a large scale was the Civil War in the United States, and this time the United States was the belligerent. You remember that the United States instituted a blockade that was iron-clad, just as rigid as any blockade that ever existed. Ultimately, they starved the South out. That was a case where the war was won on the sea again. The South could not live, and could not send her cotton out, so a line of blockaders sprang up, coming from Nova Scotia and elsewhere, and they tried to break the blockade to the South. They, too, were not such fools as to think they could sail direct to the South with their cargo, so they sailed to Nassau or Bermuda, and other places which constantly supplied Liverpool, that great entrepot of commerce. They bumped into the American cruisers, too. The boot was on the other foot now. What did .the American cruisers do? They said, "Continuous voyage, if you please; we will just apply the rule of Lord Stowell; you had no intention of bringing these goods simply to Nassau; you intended them for the South, which would be the ultimate destination." So the Americans put a sort of refinement on the doctrine of Continuous Voyage, which was known as the doctrine of "Ultimate Destination". Those goods from St. John or Boston were sometimes stopped at Nassau, sometimes at Bermuda, but ultimately destined for the South, and the papers, if honestly examined, showed that. Therefore the United States Supreme Court and Prize Courts condemned those British ships on the doctrine of Ultimate Destination.

But I want to show you where they stopped. They did not condemn the cargo that was sent out on speculation to take a chance market. A man in England said, "There is a great demand in Nassau; I will send a cargo out there for speculation; perhaps Southern buyers will come and buy it." It was not destined for the South; ultimately it was going to be consumed in the South, evidently, but the American Prize Court did not condemn on the ground of consumption; they did condemn on "Ultimate Destination", and stopped at that.

There were hundreds of seizures during the American War, but there was one that became important, and it helped us to win the war. There was a vessel called the Springbok that was seized about 150 miles east of Nassau, a British barque laden with goods that were not contraband, to speak of. The vessel clearly was only going to Nassau, but the Supreme Court condemned her on the ground that her cargo was destined for the South. The owners protested, and wanted the British Government to take the case up, but there seems to have been some wise old owl in the British Admiralty then who noted the value of this decision to Great Britain. We know nothing of the opinion of the British Foreign Office then, in 1863, but in 1900, when the Boer War was on, Great Britain seized some German vessels coming to the Boers -the Boers had no boats-and the Germans, in their correspondence with Great Britain said, "Oh, you protested against the Springbok decision in 1863, and this is exactly like it" Great Britain then published a White Paper showing that, so far from protesting against the Springbok decision, she supported it. Then what happened? When the Great War broke out there was a great deal of shipping, a great many cargoes sent from the United States to different countries, and if they were for Germans the British began to seize them. Of course, the American State Department protested, and Sir Edward Grey would elevate his eyebrows and say, "Oh, the Springbok!" and Mr. Lansing would put his tongue in his cheek, and say, "Oh, yes, the Springbok", and that is all there was to it. The Springbok was worth a whole fleet of cruisers to them; it helped them to win the war. Great Britain did not stop short of "Ultimate Destination".

I am trying to show the development of all that is legally, theoretically, known as the Freedom of the Seas. We first had the rule of 1756; then "Continuous Voyage"; then, "Ultimate Destination"; then Great Britain took the last step and adopted the principle of "Ultimate Consumption". What was the situation when the war broke out? Neutral countries like Holland developed a surprising commerce, and those goods were not destined to Germany. Probably they were bought in good faith to be consumed in Holland and Sweden, but they exported more to Germany than to those neutral countries. Great Britain said, "Here, this must stop", and they did not let them go, because they were either going to the enemy or really intended for the enemy; so they were put on ration principles.

These are some of the outstanding legal points affecting the question of the Freedom of the Seas. You might ask, "Where were the Germans any worse than the British, because they, too, violated the Freedom of the Seas?" You see just this difference: Great Britain commanded the sea, and therefore she enforced the ordinary laws of humanity, the right of search; she could send all her captures into prize ports; she did not need to sink a ship or destroy a life or violate her principles. But Germany did not have the Freedom of the Seas, yet she acted as though she did, and violated every law; she studded the sea with mines, exercised a paper blockade, and the right to search could not be exercised; and that is the only distinction between restricted limitations and war (Applause). Great Britain was completely in luck because she had the command of the sea. Germany could not expect to lose the command of the sea and yet get all the profit that came from it. Nothwithstanding that, they did break some of the rules of International Law.

There the matter stands. Sooner or later the United States and Great Britain will have settled this fundamental question of the Freedom of the Seas. In the next warwhich we hope will never come-if Great Britain is a belligerent she will naturally feel that she depends for her success on bringing home her cargoes, and preventing her enemy from getting her cargoes brought home. The United States will perhaps feel, as she always felt, that she will have to maintain neutral rights. But let us hope that, before that time should come, Great Britain and the United States will realize that they together hold the situation in the hollow of their hands. They can have understandings and agreements, not necessarily alliances, and so arrange and devise naval law that this clash will not come, if they understand each other and translate each other's thoughts correctly. The case is like that of a friend of mine, who was correspondent for a New York paper in the Russo-Japanese War. After the capture of Port Arthur he sent what he considered his very best despatch home to the New York paper, in which he praised the bravery of the Japanese and especially of the Japanese General, saying that "General Toya led his own men up the heights of Port Arthur like a brick." A few hours after he had filed his despatch he was called before the Japanese Censor and given a dressing down. "What do you mean by insulting our General, by saying that he led his men up the heights of Port Arthur like a lump of mud?" (Laughter.) A mis-translation; that is the whole difficulty. It is very difficult for one nation today, with all its different history behind it, to explain itself to its neighbour. I suppose it is more difficult the more closely we are related. You know that the further you go in linguistic study the finer the distinctions become between the synonyms. Possibly the United States, for that reason, would find it more difficult to settle this question, which is largely a question of law; but let us hope that both these nations will realize that disarmament, which depends so much on naval disarmament, is in their power, and that they can confer this indescribable boon upon the world. (Loud applause.)

President Spence expressed the thanks of the Club for the extremely scholarly and informative address, which had made even law interesting!