Freedom of the Seas - Affirming freedom of the seas in the early national period

A challenge to the principle of freedom of the seas arose soon after the conclusion of the revolutionary war. In 1784 American commercial shipping in the Mediterranean, lacking the protection of the British navy, came under attack from the North African kingdoms along what was known as the Barbary Coast. In 1794, Congress, tired of paying tribute to the Barbary pirates and urged on by New England merchants devastated by ship seizures, passed the Naval Act of 1794, reestablishing the U.S. Navy and authorizing the construction of six frigates to defend American interests in the Mediterranean. President Thomas Jefferson, without seeking congressional approval, dispatched several naval campaigns against the North African kingdoms culminating in the conquest of Tripoli in 1805. In 1815 a U.S. naval squadron bombarded Algiers into agreeing to end its attacks on American shipping. Thus was the principle of freedom of the seas successfully asserted by force.

The wars of the French revolutionary and Napoleonic eras posed an even greater challenge to the principle of freedom of the seas. When war erupted between France and Great Britain in 1793, the United States at once declared neutrality and soon became the chief neutral supplier of belligerent needs. France was legally bound by the terms of the Treaty of 1778 to treat American commerce according to the principles of 1776. Britain, having entered into no agreement with the United States on neutral and belligerent rights, was free to halt, by all means possible, trade between France and America. Unwilling to fight the war at so serious a disadvantage, French warships soon violated the provisions of the 1778 treaty and treated American commerce as the British did. When England and the United States signed a convention in 1794 (Jay's Treaty) that specifically included naval stores on the contraband list and stated that enemy goods were not protected by the neutral flag, France was furious that American diplomats had not forced Britain to accept the principles of 1776. The result was an intensification of French depredations upon American neutral commerce that led in 1798 to an undeclared Franco-American maritime war. Known as the Quasi-War, it lasted until 1800.

France and England made peace in 1802, but war broke out again in the following year. This second phase of the great struggle was marked by intense efforts by each belligerent to prevent neutrals from trading with its enemy. As the chief neutral suppliers and carriers, American citizens suffered severe restrictions on their trade. In 1812 the United States went to war, in part to defend its citizens' neutral rights.

It was true, of course, that the war was fought only against Britain, but not because France's conduct was less reprehensible. Congress, in fact, gave serious consideration to declaring war against both nations. In the end, however, a war against two enemies was unthinkable and Britain was chosen over France for the very good reason that its navy, not France's, dominated the seas and committed the largest number of violations of American neutrality. The point to remember is that the nation risked its lives, its treasure, even its continued existence, in order to defend the rights of its citizens to travel and trade unmolested on the high seas in wartime.

President James Madison, when touching upon maritime reasons for requesting hostilities, referred specifically only to "mock blockades" and to "violations of our coasts" as evidence of Britain's perfidious conduct. More generally, he spoke of Britain "laying waste our neutral trade" and plundering "our commerce … in every sea." He surely had in mind three British practices, all contrary to the principles of 1776. One was the interdiction of American trade between ports of the enemy, which England justified on the basis of the Rule of the War of 1756. That rule, established during the French and Indian War of 1754–1763, declared that a trade closed in peacetime could not be opened in wartime. In conformity with mercantilist doctrine, France, as well as every other European nation, prohibited foreigners from engaging in the trade between ports. In wartime, however, when the superior British navy made it unsafe for French vessels to carry the traffic, it was thrown open to non-French bottoms. Thus, the rule deprived American merchants of a lucrative trade. When they sought to evade it by touching at a neutral port (most often in the United States) en route between the two enemy ports, the British were not fooled. Their cruisers picked up the American vessels and their prize courts condemned them on the grounds that the ultimate destination was, in fact, an enemy port and that the voyage between the two enemy ports was "a continuous voyage only ostensibly broken at a neutral port." The two other British practices were the inclusion of naval stores and foodstuffs on the contraband list and the confiscation of enemy goods found in neutral ships.

Now a belligerent, the United States made every effort "to pay the strictest regard to the rights of neutral powers." Naval commanders were instructed "to give them [neutrals] as little molestation or interruption as will consist with the right of ascertaining their neutral character," and the orders were carried out. Neutral rights were respected. Insofar as the war was fought in defense of American neutral rights it proved futile, for the treaty ending the war made no mention of the subject.

Between the end of the war with Britain and the opening of the Civil War, the United States continued to push for the acceptance of the principles of 1776 and the provision on blockade in the Treaty Plan of 1784. To some observers it seemed anomalous that the United States, on the threshold of becoming a significant naval power, should continue to support liberal maritime principles. A clue to the riddle was provided by Secretary of State Henry Clay, who noted in 1828 that the United States did not expect to become involved in maritime wars because its "prosperity is so evidently connected with the preservation of peace." And, he implied, even if the country should become involved in a war—and as a bignavy belligerent—it would value "the general cause of humanity and civilization [which] will be promoted by the adoption of these maritime principles [above] pecuniary interest." Thus, between 1824 and 1850 the United States concluded treaties with ten Latin American republics and one with Prussia incorporating the liberal maritime principles. Efforts to commit Great Britain to the principles remained unsuccessful.

The War with Mexico (1846–1848) provided the United States with the occasion to practice what it preached. Its policy toward neutrals was governed by the instruction of the secretary of the navy to commanding officers of U.S. naval forces in the Pacific, issued on 24 December 1846: "The President has desired to subject neutral commerce to the least possible inconvenience or obstruction compatible with the exercise of the belligerent right necessary to the success of our military operations." One year later, explaining the U.S. position to the newly appointed commander in the Pacific, the secretary wrote: "No present advantage … should induce us to depart from that liberal interpretation of the laws of nations which we have always contended for as protecting the interests of neutrals against the violent claims of belligerents." Indeed, in the matter of blockade, contraband, and enemy goods on neutral ships, the United States adhered strictly to the principles of 1776 and 1784.

Six years after the end of the Mexican conflict, the Crimean War broke out and the United States again found itself a neutral—but with two important differences from the period of 1793 to 1812. This time Great Britain and France were on the same side, fighting Russia, and they made clear their intention to pursue a liberal course toward neutral commerce insofar as neutral goods on enemy ships and enemy goods on neutral ships were concerned. In both instances the goods, except for contraband, were to be free from seizure. Russia adopted the same principles and incorporated them in a convention signed with the United States in July 1854.

Encouraged by the action of the three belligerents, especially by that of Great Britain, and recognizing that for Britain and France the policies on neutral rights covered the duration of the war only, the U.S. government sought to incorporate the rules in a multilateral treaty and make them a principle of international law. Secretary of State William L. Marcy, in instructions sent to the American ministers in Paris, London, and St. Petersburg in 1854, enclosed a draft treaty, noting: "The United States are desirous to unite with other powers in a declaration that … [the rules] be observed by each hereafter, as a rule of international law." In his annual message to Congress in December of the same year, President Franklin Pierce voiced the same hope.

The three belligerents did, in fact, "unite with other powers in a declaration" on maritime law at the peace conference that met in Paris in the winter and spring of 1856. Four principles constituted the Declaration of Paris, signed on 16 April 1856 by representatives of Austria, France, Great Britain, Prussia, Russia, Sardinia, and Turkey: first, privateering is, and remains, abolished; second, the neutral flag covers enemy goods, except for contraband; third, neutral goods, except for contraband, are not liable to capture under the enemy flag; and fourth, blockades, in order to be binding, must be effective.

The Declaration of Paris proved highly gratifying to the United States. The liberal view on neutral rights that it had so vigorously championed for more than half a century had at last been written, if only in part, into international law. Particularly welcome was the end of British opposition. Still, the United States found itself in the curious situation of refusing to become a party to the declaration. The reason lay in the article on privateering. As Secretary of State Marcy pointed out in a lengthy note to the French minister in Washington, the strong-navy powers could afford to renounce privateering because they could effectively prey upon enemy commerce with their public armed vessels; small-navy states, like the United States, lacking an adequate number of warships, had to rely upon private armed vessels to destroy the enemy's goods. Only if the words "and that the private property of the subjects or citizens of a belligerent on the high seas shall be exempted from seizure by public armed vessels of the other belligerent, except it be contraband" were added to the first article would the United States sign the declaration.

That principle—the complete immunity of (noncontraband) private property—had been advanced by the United States for many years. It was a logical extension of the liberal position on neutral rights. First suggested by Benjamin Franklin in 1780 and again in 1782 for inclusion in the peace treaty ending the War of Independence, it was included in the Treaty Plan of 1784 and incorporated into the Treaty of Amity and Commerce of 1785 with Prussia.

The signatories of the declaration did not summarily reject the American amendment. They deferred action pending a careful examination of the problem and the opportunity to consult among themselves. By March 1857, when President James Buchanan assumed office, no action had been taken and the new secretary of state, Lewis Cass, told the American ministers to suspend negotiations on the subject until the president had time to study "the questions involved." The president, preoccupied with problems closer to home, never did get around to the matter; thus, the United States lost the opportunity to incorporate into a multilateral treaty its historic and traditional position. Because the four principles of the declaration were considered indivisible by the signatories, the United States could not adhere to numbers two, three, and four while rejecting the first.

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