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civilians and armed forces, questions of continuous voyage and ultimate consumption, merely cause confusion and different interpretations which threaten to and do involve neutrals. Commercial blockades involve some of these difficulties. There can be no certainty while such doctrines remain in the law. To permit capture but condemn destruction of enemy merchant vessels is likewise illogical, and is a law that will never be observed. The two must be taken together. Either the law must allow both or neither, and neutrals must act accordingly; but if the law is either way, it is neither illogical nor uncertain. So long as there is certainty of rule and the same principle is applicable to either method of interference, the greatest danger — that of uncertainty — will be avoided.
Freedom means certainty of clear rights. The demand for the freedom of the seas means that international law must be made logical, that the cobwebs must be swept away, that legal quibbles must be avoided. As Mr. Root said in his instructions to the American Delegation at the First Hague Conference: “Misunderstandings regarding the rights and duties of neutrals constantly tend to involve them in controversy with one or the other belligerent.”
The historical American doctrine of immunity of private property at sea (including enemy vessels, but excepting contraband) is, on analysis, not only involved but will not avoid the present equivocations. Everything will be called contraband, and whether intended for neutrals or for belligerents, a doctrine of ultimate consumption, supported not by fact but by inference, will be applied. The Declaration of Paris will have no force. Enemy ships themselves will be called contraband, and they or their contents captured, and reprisals will lead to destruction.
So that what we mean by the freedom of the seas does not do away with the real difficulty of confusion. The abolition of the doctrine of contraband heretofore supported by the British but not by the American Government; the abolition of commercial blockade, now presumably a doctrine of the American Government though not of the British; and the American doctrine of immunity of enemy merchant ships would all seem to be necessary before there can be said to be freedom of the seas. Such freedom must be based upon definite legal
and logical principles, rather than upon compromises not founded in reason which profess to grant that which no belligerent would ever concede.
Of course, this means that a merchant ship loaded to the gunwale with guns and ammunition would be allowed to pass by an enemy cruiser. “Preposterous,” you say. “Even on land contraband may be requisitioned and held.” The thought is astounding only because it is new. The fact that private property of a neutral in a neutral country is inviolable may well interfere with the operations of a belligerent, but it has been a concept so universally accepted that no one would question it. For instance, Holland might have an ammunition factory within a hundred feet of the German border and might from that factory supply the Allies. If the Germans invaded Dutch territory to seize that factory a state of war would necessarily arise. We should all howl with indignation at the violation of Dutch territory. That is because no one would for a moment question the inviolability of private property on land in a neutral state. Of course, the sea does not belong to a neutral nation, but neither does it belong to a belligerent nation.
Does the proposal for freedom of the seas necessarily depend upon the closely related propositions of limitation of armament and a league of nations to enforce the law? English opinion would make such propositions contingent. The Wilson suggestion includes them all, but rather as interrelated than as mutually conditional. The Germans seem to profess to be unable to see any connection whatever. But the struggle for the freedom of the seas in war time finds its support in inherent justice and in the fact that, irrespective of other considerations, no power owns the ocean. A league of nations would undoubtedly make the observance of the law more probable, yet the law and its enforcement are two different things. There is little doubt that in the absence of superior force, whether moral or physical, any agreement would be violated if that were to the vital interest of a belligerent; but after all even civil law, with all our vast machinery of government and our ability to punish violation, is rarely specifically enforced. The law merely fixes a measure of damage, to which a violator must respond.
There are few world wars, however. Where they do exist, they ordinarily develop out of conflicts among a few nations and others are entangled because of shifting interpretations of what the law is. Unless practically all great nations are engaged, those involved would not dare to violate a definitely fixed body of law. If the rights of neutral nations were clear – if the principles were on a logical foundation based upon sound reasoning, it would seldom be to the military interest of a belligerent to rouse the world over depredations which could have no possible justification or explanation. One thing seems clear: either we must accept the doctrine of immunity, or the rights of belligerents under the law must be so extended as to be of some practical benefit to them. The latter would mean rivalry in development of naval armament, because heretofore nations in regarding the value of control of the seas have had in mind only the limited rights of belligerents and the protection by law of the most considerable portion of foreign trade. Neutrals would vigorously oppose any extension of belligerent rights. The present law, based upon an illogical series of compromises, merely leads to an immoderate extension when it suits the purposes of the belligerent. The only alternative would seem to be the inviolability of private property at sea, including even contraband and enemy merchant ships.
The law must be logical and definite. It must be based upon the principle that belligerent rights do not extend beyond the territory controlled or occupied. It must be founded upon the sovereign rights of nations to travel freely over the oceans, which are owned by none; on a recognition that law is as potent an instrument of protection as might.
ARTHUR GARFIELD Hays.
AN EARLY DIPLOMATIC CONTROVERSY BETWEEN
THE UNITED STATES AND BRAZIL
It was two years after the United States formally declared for the recognition of the new Latin-American states and after several SpanishAmerican states had been recognized before the question of recognizing Brazil arose. When, in April, 1824, Rebello presented himself in Washington as the Brazilian chargé, a difference of opinion arose in Monroe's cabinet, because Brazil was a monarchy, while all of the other American governments were republics, and some hoped that monarchy might have no foothold on the continent. Others, however, advocated the recognition of Brazil the more strongly because it was a monarchy in order to show the world that it was the fact of independence which actuated the United States rather than the form of government.
The opposition to recognition was strengthened by recent news of a formidable separatist movement in the north, with Pernambuco as a center, the purpose of which was to establish an independent republic under the name of the Federation of the Equator. This raised a serious doubt whether the government at Rio de Janeiro were really in effective control. It was reported, too, that the assistance of French naval vessels had been accepted in order to repress the Pernambuco revolt. This conjured up the specter of the so-called Holy Alliance, for the exclusion of which from America Monroe's famous message of the preceding December had declared. There was also a strong suspicion, supported by persistent rumors, that Dom Pedro (who had allowed himself to be made Emperor when in 1822 Brazilian independence from Portugal was declared, who had summoned a constituent assembly and then quarreled with it and finally forcibly dismissed it because it proved too liberal to suit his ideas of prerogative, and who had appointed a council that had drawn up a fairly liberal constitution in harmony with his wishes which he had not yet taken the oath to observe) really wished to restore Portuguese sovereignty and rule Brazil as a vassal of his father, the King of Portugal. About the middle of May, however, word came that in the preceding March the Emperor had taken the oath to the constitution of the independent Brazilian Empire. After Rebello had given assurances concerning the suppression of the slave trade and the observance of treaties that had been negotiated with Portugal, he was formally received by President Monroe as Brazilian chargé on May 26, 1824. He expressed his gratitude that “the Government of the United States has been the first to acknowledge the independence of Brazil.” 1
This was the beginning of what for a time promised to be very cordial relations between the two Powers. On the occasion of his presentation Rebello had suggested a "concert of American Powers to sustain the general system of American independence." In January of the next year, before the mother country had yet recognized the independence of Brazil, he proposed formally that the United States should enter into an alliance with Brazil to sustain the latter's independence in case Portugal should be assisted by any other Power in an attempt to restore her former sway over Brazil. He suggested that in certain contingencies the Spanish-American countries might be invited to adhere to the proposed alliance to protect them against a similar danger. This very early proposal of a Pan-American league is interesting and the United States reply to it is significant as being an early interpretation of the Monroe Doctrine. The proposal was made only a few weeks before the close of the Monroe administration and was not answered until shortly after the Adams administration had taken control, when Henry Clay, the Secretary of State, an enthusiastic advocate of the cause of South American independence, replied that, while the President adhered to the principles set forth in the message of his predecessor of December 2, 1823, the prospect of a speedy peace between Portugal and Brazil seemed to make such an alliance unnecessary; but, he said, if there should be a renewal of
1 Adams, C. F., Memoirs of John Quincy Adams, VI, 280, 281, 283, 285, 308, 311, 314, 317, 328, 354, 358.
; Ibid., 358, 475.