treaty between nations should be considered binding unless it is published when it is made. No negotiations affecting the destinies of peoples should be conducted without their knowledge of the fact and of the obligations to which they are to be committed. No war should be begun without a public statement of the reasons for it and an opportunity for public mediation between the disputants, which should never be considered an offense. No territory occupied in war should be claimed by right of conquest without a public hearing of all who are affected by it.

The attempt to state these, or any, definite principles, illustrates how inadequate a strictly documentary form of engagement of necessity must be. It is, however, the spirit, not the form, that must be depended upon for the security which a formal treaty of alliance or an understanding can afford. The whole structure of international peace and justice rests upon the character of the peoples who form the Society of Nations. The Great War has subjected the combatants to a fiery test. It cannot well be doubted that the Entente of Free Nations will stand also the test of peace. A solidarity that has been only strengthened by the dangers of battle will certainly not be broken in the attempt to revise the Law of Nations, to make it the basis of clearer understandings, and to increase the confidence with which the co-partners in victory will bring before the judgment bar of reason the differences that may tend to divide them. But the perfection of this understanding is a matter of growth and of gradual adjustment. What cannot be accomplished by a stroke of the pen at a given moment of time may prove an easy task if the spirit of the Entente, and especially the sense of freedom which brought it into being, can be retained and matured. But this can be done only by a renunciation of the desire to force any favorite plan to an issue within the Entente. For a considerable time, unless new dangers are to be incurred, armies and navies will be necessary to guard the peace that is to be signed at Versailles. It will be wise to maintain the supremacy of the forces that will have made it possible. For this the responsibility rests upon all, according to their strength. And because they are strong they may, by the constancy, justice, and unselfishness of their conduct, prove to all mankind that really free nations alone can preserve the peace of the world.

DAVID JAYNE HILL.

THE FREEDOM OF THE SEAS

BY EDWARD S. CORWIN

Professor of Politics, Princeton University

THE term Freedom of the Seas well illustrates what Professor James meant by " power-giving words,"-it is a phrase to conjure with. When Dr. Dernburg arrived in this country in the autumn of 1914 to instruct us in the German version of the war, he pounced upon this phrase with great avidity. We were told that the war was at bottom a war for the Freedom of the Seas and against "British Navalism," which was as bad as if not worse than militarism. Indeed, if Americans were alive to their interests they must prefer the success of Germany, whose army could never assail the United States, while American overseas commerce must always be subject in war time to British attack. Thereupon, Dr. Dernburg made a proposal: the sea was to be neutralized; navies were not to be abolished precisely, but they were to be retained only for purposes of coast defense, and were not to leave their own territorial waters. If they did, a casus belli was the result.

Coming from the representative of the nation whose armies had just overrun Belgium the suggestion sounded somewhat humorous. Nor could the oily doctor's aspersions on British navalism be taken over-seriously by those who recalled Germany's scornful rejection of Mr. Winston Churchill's "Naval Holiday " scheme a few years earlier. The fact is, of course, that since the late nineties Germany has done her utmost to treat the world to a double dose of militarism and navalism, while the British Navy has never until the present war had a considerable army back of it. Moreover, many of us felt that if it was really desirable to repeat the experiment of neutralization-at any rate, until the invasion of Belgium was successfully avenged-the air rather than the sea should be the region thus immunized from the terrors of warfare. But that was a subject regarding which

Dr. Dernburg had nothing to say. Presumably he was fearful of intruding upon Count Zeppelin's department.

Today Freedom of the Seas is up for discussion under very different auspices. In his "peace without victory" address to the Senate of January 22, 1917, President Wilson said:

The paths of the sea must alike in law and in fact be free. The Freedom of the Seas is the sine qua non of peace, equality, and cooperation. No doubt a somewhat radical reconsideration of many of the rules of international practice may be necessary in order to make the seas indeed free and common in practically all circumstances for the use of mankind. . .

The free, constant, unthreatened intercourse of nations is an essential part of the process of peace and development . . . . it is a problem closely connected with the limitation of naval armaments and the co-operation of the navies of the world in keeping the seas at once free and safe.

And the question of limiting naval armaments opens the wider and perhaps more difficult question of the limitation of armies and of all programmes of military preparation.

Here, in other words, we find Freedom of the Seas presented as one item of a general scheme of world peace; and it is the same in the President's Fourteen Points of last January, which we shall have occasion to consider later on in this paper. Even in this connection the phrase has met with sharp challenge from an important quarter. In his note to the German Government of November 5, Secretary Lansing quotes from "A Memorandum of Observations" of the Allied Governments as follows:

They (the Allied Governments) must point out that. clause 2, relating to what is usually described as the Freedom of the Seas, is open to various interpretations, some of which they could not accept. They must, therefore, reserve to themselves complete freedom on this subject when they enter the Peace Conference. In what sense Freedom of the Seas is to appear as a part of the new order of things growing out of the war is clearly a question of moment.

Freedom of the Seas in time of peace-which strictly speaking is the only Freedom of the Seas there is-has a fairly definite connotation. It means the denial of the right of any state to assert jurisdiction over the vessels of other states outside its own territorial waters. This meaning of the phrase derives from Grotius's celebrated pamphlet on the Mare Liberum, which appeared in 1609. During the Middle

Ages the small portions of the sea which were known and navigated did, in fact, fall for the most part to the jurisdiction of particular states, which were thus charged with the duty of mapping their coast lines, of charting their shoals, and keeping them free of pirates. On the whole, therefore, it was to the advantage of everybody that Freedom of the Seas did not exist,—indeed, the idea had not yet dawned.

Nor did the discovery of America at first shatter the old notions. When, accordingly, in 1493, Pope Alexander VI drew a line through the Atlantic and assigned to Spain the exclusive right to trade, explore, and colonize to the westward of it, and to Portugal a like monopoly to the eastward, his action was hardly challenged. On the contrary, the other two principal maritime states of the day, France and England, set promptly about plotting spheres of influence on the face of the Atlantic for themselves, and as an incident of this enterprise John Cabot began in 1497 that age-long search for a northwest passage to the Indies which was ended only the other day by the Norwegian Amundsen.

The spell of acquiescence was first clearly broken by the Dutch, who demanded the right to voyage to the East Indies in defiance of the Portuguese pretentions, and it was for his countrymen that Grotius spoke. His argument was twofold: First, that as a matter of fact no state could effectively appropriate so vast an area of water as the Ocean-for it was to the High Seas that he confined his argument—and secondly, even if a state could appropriate the Ocean no legitimate good could accrue to it from doing so, the Ocean being susceptible of unlimited use without diminution of value to any user of it. In short, the sea was like the air, a res communis, a res publica, “designed for the use of all.”

Grotius's pamphlet was a vast success. His follower Bynkershoek reiterated his contentions, and fortified them with the today generally accepted doctrine of the Marine League, that littoral states may assert jurisdiction over the sea for one marine league out from shore, provided they accord the peaceful merchant vessels of other states a right of passage through such waters. Later writers have extended Grotius's principle to the great arms of the Sea, the so-called "Narrow Seas," till one by one the exclusive pretentions of states over these too have disappeared. One of the latest episodes of this phase of the struggle for Freedom of the Seas was the abolition by Denmark of the tolls which she had for

merly levied upon vessels passing to and from the Baltic. This was brought about in 1857 largely in consequence of the vigorous attitude of the United States. And meantime, the United States had also taken a hand in uprooting two other venerable institutions which stood in the way of the unhampered use of the seas for the purposes of peaceable trade, namely, the pretended right of the Barbary States to prey upon the vessels of any nation refusing them tribute, and the right of search which was claimed by various European States even in peace times. The Barbary Pirates were forced to yield their pretentions, so far as American vessels were concerned, by Commodore Decatur in 1815. The same year witnessed the end of the war of 1812, which had been fought over the impressment question; and while the Treaty of Ghent was silent on this vital topic, American vessels have never since then been subjected to search except in time of war and for the purpose of enforcing well-recognized belligerent rights.

We may say, therefore, that for those States which have natural access to the sea or one of its principal branches, Freedom of the Seas today exists in very complete measure in time of peace. What, however, of those States which are not so favorably situated? Their disadvantage is of course due in the first instance to geographical accident, but that does not signify that it may not be removed by law and treaty. On this point President Wilson has said:

So far as practicable. . . . every great people now struggling toward a full development of its resources and of its powers should be assured a direct outlet to the great highways of the sea. Where this cannot be done by the cession of territory it can no doubt be done by the neutralization of direct rights of ways under the general guarantee which will assure the peace itself. With a right of comity of arrangement no nation need be shut away from free access to the open paths of the world's commerce.

He apparently had Poland especially in mind, but since the above words were written Czecho-Slovakia has been erected into a State and Hungary has been reconstituted, and both these countries are land-locked. The same, moreover, would be the case with South Germany if it should secede from the former Empire. The Peace Conference will not improbably have its initial tussel with the problem of the Freedom of the Seas in providing for such communities.

We turn now to the much more complex questions raised