^ \r 1^. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 ut Uii 12.2 I.I 111.25 Photographic Sciences Corporation 4fj 13 WHT MAIN tTRHT tMIMTm.N.Y. 14SM (7U)l7a.4M3 .*S *^^ i\ ^ <^Ariaur gauche, de geuche * droite, et de haut en bea, en prenent le nombre d'imegea nAceaaaire. Lea diagrammea suivanta llluatrent le mAthode. by errata led to int ina pelure, aqon * 1 2 3 32X 1 2 3 4 5 6 DISCOURSE ON THE CONDUCT «r THi GOVERNMENT of GREAT BRITAIN m KEIVECT TO NEUTRAL Nations, A NEW EDITION. By CHARLES LORD HAWKESBURY. LONDON: ft'iaXtd for J. DEBRETT, oppoiite Bv Piccadilly. «794» 'w^m csp ■ k ADVERTISEMENT. T^HE following difcourfe was written in 1757 by Charles Jenkinson, Efq. now Lord Hawkesbury. Great Britain was at that time engaged in war with France, and the Republic of Holland refufcd to conform to thofe treaties of dc« fenfive alliance, by which (he was then bound to aflifl Great Britain, and fuffered her fubjeds not only to trade with France, but to afford protection to the property of the enemy ; to fupply him with na- val and military ftores, and to bring to the French ports in Europe the produce of the French Weft India iilands. The Britilh go- vernment ordered all Dutch iliips, laden with the property of the enemy, or with naval or military ftorcs, or with the produce of the French IV ADVERTISEMENT. French Weft India iflands, to be feized, and to be brought into port for legal adjudica- tion. The merchants of Holland remon- flrated againft this meafure, which deprived them of a moft lucrative trade ; but the Bri- tifti government perfevered . This Discourse was written in fupport of the principles on which the British Government at that time adled. It was tranflated and re-printed in almoft every language of Europe ; and it is now re-publifhed, from the beft edition, at the defire of feveral noblemen and gentlemen, who think, that in the prefent ciifcumftance^ it may be equally ufeful. ■A ■n riccadilly, Jan. 27, 1794* A DIS- 1 I France endeavoured again to obviate this flroke by her policy. She took off the tax of 50 fous per ton, which fhe always chufes to keep on foreign freightage : fhe opened even her American ports, and admitted other countries into that choice part of her commerce, which, by her maritime regulations, {he hath at other times fo ftridly referved to herfelf. Neutral nations feized at once on the advan- tage, and opened to the enemy new channels for I *f I to fupport now in her their inde- ared not in t all the et- her naval :ndered the )lving never er was fhe objedt re- nd that was , and to in- it to her do- this would ould ftop at night in the ly to confent ON NEUTRAL NATIONS. 5 for the conveyance of thofe riches, by which the war was to be nurfed and protradlcd : under the banner of friendlhip they thus fcrved the caufe of the advcrfarjs whofe wealth fccured by that protedlion would have pafled fafe and unmoleiled through our fleet ; if Britain, again railing her Ipirit, had not refolvcd, that by this means her naval power fliould not be rendered ufelefs, and feized on the enemy's property, which fhe found on board neutral Ihips. — It is well known, how- ever, that her condu(ft in this refpedl: hath not been univerfally approved, and that fomc jieutral nations think they "have a right to' carry in their veflels unmolcftcd the property of our adverfaries. — As I here differ with them in fentiment, this is the point, on which I intend to difcourfe. obviate this c off the tax Iways chufes Ihe opened Imitted other ;r commerce, ons, fhe hath ed to herfelf . m the advan- new channels for Great and wife governments have always been jealous of national glory : it is an active principle which, properly cultivated, operates in virtuous ad: ions through every member of the flate ; to preferve this therefore in its pu- rity is the duty of every one who loves hit country. — Can it then be wondered, that the native of a kingdom, always celebrated for its public fpirit, and its upright faith, at a Jimc when thcfe are called in doubt, fliould inte- Mii^m'^ ! I ' 1 « 1 'i I li i 6 LORD HAWKESBURY intercil himfelf in its defence ? No indecent charges fhall here be urged againft other countries, it is meant only to vindicate the honour of our own. It is to be lamented, that the nccefTity of affairs fhould at fuch a feafon have given occafion to this dif- pute, particularly with that ancient ally of England, who hath fo often fought with her under the fame banner, in fupport of the juft rights and privileges of mankind : the zeal of any government to encourage the induftry of its people, is what a Britifh pen can never difapprove : the principle is noble, and me- rits even our applaufe ; 1 only mean to Ihcw, that the prefcnt objedl of it is not juft. I Ihall therefore examine the right, which neutral powers claim in this refpcdl ; lirft, according to the law of nations, that is, ac- cording to thofe principles of natural law, which are relative to the condud of nations, fuch as are approved by the ablcft writers, and pradifcd by ftates the moft refined. — I (hall then confider the alterations, which have been made in this right by thofe treaties, which have be^n fuperadded to the law of nations, and which communities, for their mutual benefit, have cftablilhed among them^ ielves. The X>N NEUTRAL NATXOUS. ) indecent nft other iicate the lamented. Id at fuch this dif- nt ally of t with her of the juft : the zeal le induftry 1 can never , and me- n to (hew, ft. ;ht, which )c6t; firft, hat is, ac- tural law, )f nations, ft writers, cfined. — I vhich have *e treaties, the law of for their ong them- The The right of protcdion then muft have its foundation in fome law, and, when conli- dered in relation to any particular cafe, it muft be founded on that law, by which the intcrefts of the parties concerned are generally determined, and i\hich hatli force in tliat place, where the right of protcdiion is claimed. Thus in the prelent cafe, if neu- tral nations have any right to prote(ft the pro- perty of the enemy, it muft take its rife from thofe laws, which are the cftabhiheJ rules of condud: between nations, and par- ticularly on that element, where this right is fuppofcd to be exerted. No civil or muni- cipal inftitutions, and much lefs the privi- leges ariling from them, can here take place ; they have no force but under the dominion of thofe who agreed to their eftablilhment. The queftion then is— How far, according to the law of nations, doth this right of protection extend ? — To anfvvcr this clearly, we muft obferve, that governments can have fucceedcd to no other rights, but futh as their refpedivc members enjoyed in a ftate of individuality ; and that one nation is now to another, as it were in a ftate of nature, that is, in the fame condition in which man was to man before they entered into fociety ; the right therefore of protedion, which mdividuals would have enjoyed i -I I tORD HAWKESBURY enjoyed in fuch a fituation, is the famcwhicft government can claim at prcfcnt :— An 'ndi- vidual then in a rtate of nature, wou, have had an undoubted right to protect his own perfon and property againft any attack ; — but if I am engaged in contention with ano- ther, would he then have had a right to pro- ted: him againft me ? — moft certainly not j— fince he thereby would deprive me of a right, which the law of nature, for my own fecu- rity, would in fuch a cafe give me, of feizing the property of this my env^my, and deftroy- ing his perfon : if he thought my condu<5t tnanifeftly injurious^ fo as to call for general lefentment, he would, on that account, be- come my enemy himfelf ; but as long as he calls himfelf a neuter, to ad in this manner againft me would be no lefs abfurd than un- juft : — fuch therefore, and no more, is the right of protedion, which governments enjoy at prcfent in thofe places, to which their own dominions do not extend ; they have fuc- cecded to the rights only of their refpedive members, and by confcquence thefe alone they can proted. But it will be afked, — From whence then arifes the right, which governments alway enjoy, of proteding the property of the enemy within • • fame whicti — Ar 'ndi- wou. have ;dt his own attack ;— n with ano- ight to pro- inly not ; — c of a right, y own fecu- c, of fcizing and dcftroy- my conduft 11 for general account, be- as long as he I this manner furd than un- morc, is the nmcnts enjoy ich their own ^y have fuc- leir refpcdivc icfc alone they n whence then nmcnts alway ^ of the enemy within 051 S'F.UTRAL NATIOUS. ^ tvithln the prccindls of their own country ? -i-It is a confcqucncc of the right of do- minion ; unlefs, therefore, their dominion extends over the ocean, the right of pro- tedron cannot there take place : dominion gives a right of enadting laws, of cftablilhing new jurifdi(5lions, and of making all (whe- ther its own fubjcds or thofe of other coun- tries^ fubmit to thcfe, who come within the pale of its power. Here then the 'trial, w liich tbe law of nations gives, is, as it were, fu- perfeded ; and any proceedings upon it would oi courfe be unjufl ; but a^oon as you are out of the verge of this particular jurifdidtijn, the laws thereof and the privileges which at- K-nd them ccafe at once, and tlic general laws of nations again have their force : here the pro- perty even of an ally hath no other protection than what thcfe laws allow it : being joined, therefore, to the goods of an enemy, it cannot communicate its protedion to thefe, dr^cx the lame law which gives fecurity to the firft, al- lows you to fcize and deftroy the latter. Thefe reafonings are exemplified by a common fa(5l ; -^within the precitids of the dominion of any government, you are not at liberty to fcarch the Ihips of any country- ; but is not this li- berty univerfally and immcmorially pradifcd over all ©n the main fea ? and wherefore is C this ^' • * ■li li 10 tORD HAWKESBURY this fearch made, but that, according to the law of nations, all are here anfwcrablc for what they may convey ? ,^: There is fomething analogous to this in moft: civil governments. Few countries arc \vithout fome places which enjoy a right of protecflion from the general laws of the flate, I'uch as palaces, houfes of religion, and the like ; and this right generally arifes from fome pretence to an exclulive jurifdidtion ; as long, therefore, as any particular property remains within the vei|£ of thefe, however juftly it may be the objedl of the law, it is not lubjedl to the power of it; but fuppofe it conveyed from hence into the public roads, beyond the precinds of this particular palace, or convent, the protec^tion it received would vanilh at once, and the general laws of the community would fully then have force upon it. Thus the protedion which governments can give within their dominions extends not to the fea ; the ocean is the public road of the univerfe; the law of which is the law of na- tions, and all that pafs thereon » are fubjc(!:t td it without either privilege or exemption. If this manner of reafoning Ihould.not clearly cflablilh my point, I can appeal in **^ fup. -4^ orJing fo the fwcrablc for s to this ii) countries arc oy a right of of the ftate, rion, and the es from fome on ; as Iong» )erty remains vvever juftly w, it is not It fuppofe it public roads, icular palace, ceived would I laws of the ^e force upon governments s extends not ic road of the ic law of na- are fubjc the queftion. To the teflimony of Grotius I fliall add that of Bynkerfhoek, a native alfo of Hol-i land, and whofe fentiments, in point; of ma-f ritune jurifprudence, Barbeyrac often prefer? even to thofc of the former ; and what makes even his opinion at this time of great import tance, is, that he wrote principally for the life of the courts and flates of the United Pro- vinces, and generally confirms what he ad- vances by their judgements and refolutions. 1 Ic fpeaks exprefsly in favour of tny point : 4 ♦ Giqtius de Jure Belli ac Piicis, lib. iii. cap. i. *' Ra. %^ ON NEUTRAL NATIONS. >3 •* Ratione confulta/* fays he,**' non fum qui ** videam, cur non liceret capcre res hoflilcs •' quamvis in navi arnica repcrtas, id cnini *' capio, quod hodium ci\, quoJqiic jure belli *• viclori cedit." lie then afligns this reafon alfo for his opinion, that as it is law lul to flop on the ocean any vcilcl, tliough Ihe carry the colours of a neutral nation, and to examine by her papers to wliom Ihe really belongs, and in cafe Ihe appear to be the property of an enemy, to feize her as a lawful prize ; i'o he can fee no caufe why this rule (hould not extend to the cftci^s which any Ihip may Ijave on board ; and if the goods of an enemy Ihould lie there concealed, why they alfo, by the right of war, fliculd not be taken and condemned : he even declares it fo be his opi- nion, that the owner of the neutral vellcl fliould, in fuch a cafe, lofe the price of the freight ; a feverity which the Englilh courts of admiralty never pradlife, where fome par- ticular circun^flunce doth not require it. I (haUadd to thefe the opinion of Albericus Gentilis,-t"eflecmed the ablcft writer on national jurifprudence till Grotius bore the palm from s8. Bynkerflioek, QycTtionum Juris Publici, lib. i. cap. 14, f Albericus Gcntilis cic AiivocatiuiicHilpamca, lib. i.ciip. hi m; .[ "!l i j » Al H LORD HAWKESBUHT him ; and his fame in this R'^j-od was fd great, that Phihp the Third of Spain appointed him perpetual advocate for his fuhjccls in all taiifcs, which they might have depending in the courts of England. This author ftates a cafe, where the Tufcans had taken the cffeds of the Turks, at that time their enemies, which they found on board fome Englilli Ihips ; and he determines, that the Turkilli ^oods are legal prize, but that the captor mufc pay the freight to the Englilh. <• Tranf- •* eunt res," fays he, ** cum fu^ caus^, yidior ** fuccedit in locum vicfki, tenetur etrufcus ** pro toro naulo.*' The property of the enemy paflcth to the captor, but all its confe- quenccs attend it ; the goods juflly belong to^ him, but he muft pay to the freighter all which the enemy would have paid, to whofe righ^ he liath in every refped: fuccceded. To enter particularly into the fentimenfs of any more writers on this fubjcd would be equally tedious and unnccclTary ; it will be li.'llicient to mention the names alone of fuch others as are in favour of the queftion. — '• Among the. J I find Heineccius,* no lefs famed for his know ledge of laws, than for his •* Heiroccitis de Navibus oh Veduram de Vctitarum Mer* ciiiiu coniiiul'us cap. 2. learn- ON NLLfRAL N'ATIt;N?. t w.is f(i iippointed :cls in all ending in or ftates a the cfieds enemies, : Englilli e Turkilh he captor <• Tranf- ^s^, vidor r etrufcus ty of the its confc- belong to r all which ^hofe right; itimcnts of would be it will be nc of fuch jucftion. — '• * no Icfs than for his rciitarum Mer< Icarn- n * ■I learning in what are the bell expofitors of laws, the antiquities of governments. —^ Zouch,* who for many years prefided in the courts of admiralty of tbis kingdom. — Vcet,-!- Zuarius,Jand Loccenius,§ all of them writers of reputation, and whofe opinions are uni- verlally relied on by all who treat on public jurifprudence. I might indeed have wholly omitted the fenti- mentsof thefe learned individuals, lince wefliall find, that great communities themfclves have confirmed our opinion both by their laws and by their pradice. — It wi41 not be proper on this occafion to look far back into the early annals of the European liates ; when the govern- ments of thefe were yet in their infancy, the advantages of commerce were but little un- derftood, and of ccurfe the rights of it were not fuliicicntly regarded ; war was then too much the fcafon of rapine, and they who en- tered into it meant lefs to conquer than to plunder. As foon, however, as fome better order began to be introduced into thefe affairs, it then bccaiw-^ ifual for each party at the com- * Zouch dc Jud.. o inter Gentes, pars a. t Voti de Jure Militari, cap. 5. • X Zuarius de Ulfu Maris, Confil. ii. § Lod the rights t equal to the the Fair of ar with the admiral took the (liips of (cveral neutral n:Uions, which were palling ''trough the Britilh Channel into the ports oi i'Janders : great complaints were made on this head, and commiflioncrs were appointed to examine into the condudt of the admiral ; a libel was there prefented againrt: him by almoft every trading nation of Europe ; the record * of this is Aill remain- ing ; and if neutral nations had at that time pretended to enjoy the right of protedtirjg the properly of the enemy, and that the ef- fects which they carried on board their Ihips, could in no calc, except in that of contra- band, be made lawful prize, we might well cxpedl, that this right would here have been claimed and afferted : fear could not, in this cafe, have prevented it ; for all the world, except France, was on one fide of the quef- tion ; but the record contains no fuch claim : the injured demand their right on a different principle, becaufe their (hips were taken on thofe feas, ** where the kings of England ** (faith the record) have time out of mind * * been in peaceable poffeflion of the fovereign ** lordfhip, with power of appointing laws, ** of prohibiting the ufe of arms, of giving ** protedion as occalion Ihould require, and * Sir Ed. Coke's Fourth Inft. chap. 22. D 7. ap. t I. I 20 LORD HAWKESBIRY ** appointing all things ncccfHiry for the main- ** taining peace, juftite, and equity among ** all, as well foreigners as natives, who na- ** vigatc thofe feas.*'* Here then the right of prote(5lion is placed on tliat bafis, on which alone it can properly be founded, the right of dominion ; no other pretence is offered ; and if I may be allowed to fum up the evidence, as their names arc written in the record, ** Genue, Cateloignc, Efpaigne, Alemaine, ** Stland, Hoyland, Frifc, Denmarch, Nor- ** way, & plufours aultres lieux del Empier,** all join here in alTerting the principles on which I fir ft eftablilhed my argument. The annals of Edward III. afford ftill other fadls in favour of my opinion : this prince added to his military accomplilhments, great fagacity in the fcience of law s, and uncom- mon attention to the commercial interefts of his kingdom ; in the fecond year of his reign he confirmed the Charter of Privileges, which fome of his predecefl'ors had before granted to foreign ipcrchants, and particularly to thofe of the lIanfe-tovvns,-f* who were at that time the grcatcit freighters of the VVeftern parts of Europe : this inllrument may well be conli- * ?ec all this more fully Uatccl in ilie record. •J Kj iiicr'i Fcctltn, lou). 4. p. 361. •« ■'W' dered ON NEUTRAL NATIONS. 31 )r the main- iiity among les, who na- thc right ot s, on which the right of ffered j and he evidence, the record , , Alemainc, larch, Nor- iel Empier,** Principles on ment. )rd ftill other : this prince ments, great and uncom- il interefls of of his reign ileges, which re granted to arly to thofc : at that time ftcrn parts of ell be confi- dered as a fort of nuritinie regulation, hy which England meant to ilirecl her convluct at that time in .»ltairs ol this nature : in this, liberty of navigation is tully confirmed ; lo- reign merchants are allow ed tocarr} thcirgoods, whether purchafed within the kingvloin or without, *' Quocunque voluerint ;" but with this exception, ** prtrterquam ad Terras no- *• toriorun\ 6c manifeiloriim hollium ivcgni ** noftri ;"* and fome olfences being after- wards committed againil this charter in the lucceeding wars, it was again renewed in the fame manner in the 6th year of this reign ; in both thefe inftances the exception is txprcfs, that no trade whatfoever Ihould be perniifteJ w ith the enemy ; but this good king, perluips through a principle of jullice, and his ardent love to commerce, feems to have praciikd this right with more moderation, that js in much the i'ame manner in which the govern- ment of England claims it at prefent ; for in his wars with Scotland, Ibme Ihips of Ciaat Yarmouth having taken feveral vtll'els belong- ing to the burgelles of the town of 13ru^\cs, ** Pnutendentes liona in iifdern exillentia *• fuiffe hominum dc Scotia,** he directed his precepts to the Sheriff of Norfolk, 't* com- rd. dercd * Rynicr's Fceilcra, torn. iv. j). ^i6. mnndini: I i^ 2t LCRD HAWJCESBURY nianding him to fct at liberty, and to caufc tull reftitution to be made of the Ihips, and ot fuch of the goods as belonged to the mer- chants of Bruges, an i that he Ihould detain only that part of the cargo which was the pro- perty of the Scotch, ins enemies. We find alfo, that when Q^ticen Elizabeth was en- gaged in war with Spain, (he feizcd feveral vtllelb of the Hanle-Towns, which were entering into the port of Lifbon ; and Ihc urged, among other arguments, the charter above mentioiied in defence of her conducft : ihc was in this reiped fo fatisfied of the juflicc of her caufe, that the threats of the German Kmpire, and other neutral powers, could not oblige her to rclinc|uilh her right ; and though llie might perhaps, on this occafion give too great extent to this riglit, yet it is remarkable th:it Monlieur de Thou, who was himfelfa great lawyer, and had long fat in the Urd court of judicature in France, even when he blames the conduct of the Queen in this affair, paf- feth his cenfure upon it, not as defctlivc in jullicc, hut only in policy : ** In tam alieno ** tempore," fays he,* ** Rerum prudentiorcs ** exillimabant, imprudentcr factum ciil a ** Regina ab Anglis." Thuanus, lib. 96. Wc i and to can fc le Ihips, and to the mer- liould detain was tlie pro- 's. We hnd cth was cn- bizcd feveral which were on ; and ihc the charter ler condud: : of the jufticc the German rs, could not and though ion give too remarkable as himfelf a he firfl: court ?n he blames ; affair, pal- defedlive in 1 tarn alien© prudentiorcs ;tum elK a ON NEUTRAL KATZOKS. 2^ We have as yet mentioned the conduct alone of thofe Englilli primes, who knew how to aficrt their rights, and who ruled their people with glory ; but wc Ihall find th.it even under a weaker government, and in a latter period, this right of feizing the property of tlic enemy found on board neutral ihips hath been fully claimed and pradlifcd : when Villicrs, Duke of Buckingham, prcfided over the naval aftairs of England, and to gratify his own private refentmcnts, had engaged his country in a war againft Spain, the Britifli fleet under Pennington took feveral French veffcls, to the number of between thirty and forty, which had Spanifli effedls on board ; they were brought into the ports of England, and our courts of admiralty condemned the goods of the Spaniards as legal prize, but or- dered the veflels of the French to be rcleafed, and the freightage to be paid to them. This condudl was avowed by the Court of Eng- land, and a full reprefentation of it tranfmit- ted by the Lord High Admiral to the adminif- tration of France : about 1 5 years after this, when the French themfslves were at war with Spain, the navy of France took a great many Englilh ihips which were laden with the pro- perty of Spaniards; and their courts of ad- miralty condemned not only the enemy's cffcdts. Wc -4 LORD HAWKESBURY cffcds, but the Englifli fliips which conveyed them : the Earl of Lcitcfter, then ambafTador in France, made great complaints on this head; he wasanfvvered, that the Englifli always ad:- cd in this manner j and this anfwer being tranfmitted to the Earl of Nonhumberland, at that time Lord High Admiral, he confult- cd upon it Sir Henry Martin, the befl: Englifli civilian of that age, and the n^ofb vcrfed in maritime jurifuict ion ; and by his advice he returned to Lord Leicefler the following an- fwer, \\ Inch at the fame time proves the con- fcant opinion, and iliews the moderation of the Britifh Aumiralr, on this point : *' that,** fays he,* ** which is alledged by the French *' to be praclifed in our courts of admiralty ** is abfolutely denied; and that neither the •* law nor practice hath ever been here to •' connfcate the goods of friends for having ** enemies goods among them : we are fo far *• from doing any fuch adl of injuftice, as *' when in time of war wc have met with ** any fuch prizes, the freight hath always ** been paid by the taker for thofe enemies *' goods that he took, and thofe that belonged ** unto friends were duly rellored to them.** * The Sidney Papers, Algernon Earl of Northumber- land to Robert, Earl of Leiccfter, Nov. 5, 1640. Thus h conveyed ambafTador 1 this head; always ad:- fwcr being Limberland, he con fu It- eft Englifh : vcrfed in advice he lowing an- es the con- iciation of : : *' that,'* the French admiralty leither the n here to for having I are fo far ijuftice, as met with ith always e enemies t belonged o them.** Northumber^ D* Thus OK NEUTRAL NATIONS. 'M m: Thus much may fuffice to Ihcw the con- dud oi the people of England : — hiftory will alfo prove to us, that Holland hath always fxerted the fame right :-^At the beginning almoft of that war which the United Pro- vinces fuftained in fupport of their liberties, and even before their fovereignty was as yet fully eftablifhed, the people of Zealand fcru- pled not to carry into their ports all fuch neu- tral veflels * as were conveying the effedts of the enemy, under pretended names, from Flanders into Spajn ; and the courts of ad- miralty of that province adjudged the Spanifli property to be legal prize ; and though they releafed the neutral fhips, they made them no compenfation for their freightage : among ihefe there were fome Englilh vefTcls, and Queen Elizabeth, angry that fo young a ftatc, and one which had placed itfelf under her protection, fhould in any degree interrupt the commerce of her people, at firft Ihewed the eifedls of her refentment, by feizing their fhips, and imprifoning their merchants ; the Zealanders upon this made reprifals ; feveral Englilh veflels were detained, and their com- manders put under confinement : to cndea- * Hifturia Belgica Metereni, lib. 5. Camden, annu 1575. Zoiich df Judicio inter Gcntcs, pars 2. E vour I • f 16 lOtLD HAW'ICESBURV vour at fome fettlcmcnt of this affair, tlii* Queen fent over to Holland Mr. Robert Beal, her fecrctary ; and for the fame purpofe the Prince of Orange difpatched a minifter to London ; by thefe means the difpute at laf^ tvas compromifed : the fliips and the prifon- crs were on both (ides releafed ; but the Queen never obtained rcftitution of the ene- mies goods which were taken on board the veflels of her fubjedts ; this fadt is worthy of obfervatton, not only as it relates to the con- duit: of Holland, but as it fhews how far a Princefs thought herfelf obliged in equity to yield, whom hiilorians have always defcribed as pofitive in her temper, and, whenever her light was concerned, of a very tenacious dif- pofition. Hollartd, whenever fhe was engaged in war, alrnoft conftantly purfued the fame condu(^ ; Ihe fomctimes even prohibited the commerce of neutral nations beyond all juftice and mo- deration. In the year 1599,* when the go- vernment of Spain firft prohibited the fub- jcdts of the United Provinces from trading to the ports of that kingdom, a liberty which had unaccountably been allowed them, from * Grotii Hift. lib. 8. the OH NEUTRAL NATIONS. 27 lis affair, tli* bus faventes vice hoftium futuros." This placart they publicly notified to all kings and nations, for this reafon, as the hiftorian ex- prefles it, ** ne quis infcitiam excufaret." The confequences of this notification de- fcrve alfo our attention; the hillorian con- tinues: ** Paruit Rex Gallia?, ac fi quis fuo- '* rum fex intra menfes in Hifpaniam navi- ** gat, profefifus eft privatum periculum fore." Henry the Fourth, at that time king of France, though delivered then from all his diftrelfes, and arrived at the fummit of all his power, fcrupled not to fubmit to this placart, and gave up the interefts of all his fubjeds, who fhould attempt within ii:i months to tranfgrefs it; the hiftorian concludes, ** Cae- ** teri (reges) filentio tranfmilcre;** the other powers of Europe made no clamorous com- plaaits againft this meafure of the States ; in E 2 filcncc the 2S LORD IIAWKESRURY filcncc they paflcd it over: How unlike was this conduct to that of Holland at prefent ! — Charles the Second, in a letter to the States General, ofOdobcr4, 1666, charges them with a remarkable violence of this nature ; being at war with fomc Afiatic Princes in the Eaffc Indies, they feized all the ihips and goods , of the Englifti merchants which were trading to thofe countries ; and the Dutch governors fcrupled not only to pro- fefs in their declarations, ** Qu* ayant depuis ** peu annonce la guerre aux Princes, avec qui ** lis avoient deflein de trafiquer, cette guerre *' dcvoit par confequent leur interdire tout • * commerce ?.vec les dits Princes.*'* I( !'■ I omit citing many other inftances of their condud: in this particular, left I IhouM appear tedious, efpecially as one fac^ ftill remains, which is alone fufficient to evince the opinion of Holland on this point; and the which I rather chufe to mention, as it happened even after the Dutch had by their negociations en- deavoured to cftablilli, as a general maxim among nations, that the goods of an enemy under a neutral banner Ihould pafs unmolef- tcd. — At the commencement of that war '-I * Charles the Second's Letter to the States General, Odo-? bcr 4, 1666. which ON NEUTRAL NATIONS. 29 D\v unlike was md at prefent ! letter to the 1666, charges )lence of this fome Afiatic feizcd all the li(h merchants :ountrics ; and 3t only to pro- 1* ayant depuis inces, avec qui r, cette guerre interdire tout ces. »* (lances of their I fhouM appear I ftill remains, nee the opinion d the which I happened even legociations en- general maxim is of an enemy i pafs unmolef- of that war States General, Odo- which which hroke out immediately after the revo- lution, when the firft grand alliance was formed againfl France, Holland entered into a convention* ^"'th England to prohibit totally the commerce of neutral powers with the enemy : in the preamble of this, they afllgn publicly their rcafons for it ; they fay, ** that * having declared war againft the Moll Chrif- * tian King, it behoves them to do as much ' damage as poilible to the common enemy, * in order to bring him to agree to fuch con- ' ditions as may reftore the repofe of Chrif- * tendom : and that for this end it was nccef- * (iiry to interrupt all trade and commerce * with the fubjeds of the faid king ; and * that to efFedl this, they had ordered their * fleets to block up all the ports and havens * of France j" and afterwards, in the fecond and third articles of this convention, itisagreed, * that they would take any veflel, whatever * king or ftate it may belong to, that fhall * be found failing into or out of the ports of * France, and condemn both veflel and mer- ' chandife as legal prize ; and that this refo- * lution fliould be notified to all neutral * ftates.'* Such therefore was at this time • Convention concluded at London, Aug. 2z, 1689. the ' 30 LORD HAWKESBURT tlic avowed opinion of Holland, and Eng-p Jand was induced to join with her in this convention, exceeding thereby thofc boundi qt" equity and moderation, which Ihc had al- molt always praiflifed in this point before, and which ihe will, I hope, moft faithfully obitrvc for the future, The Northern Crowns, who were particularly affedled by this prohibition, contended very vehemently againll: it : in anfwcr to their obje(5lions were luged, the circumflanccs of affairs, the danger of Europe, and th^ mighty ftrength of that am- bitious powe^: ; which, if fome extraordinary effort was not made, would bring mankind iiniler its fubjedtion. }t is remarkable, that Fuftendorf,* who owed his fortune and em- ployments to one of thofe Northern Crowns, was of opinion in this cafe againft them, and thought that the convention might be juftified. It is not me^nt here at prcfent either to cenfure or commend ir : circurnftances may fometimes make a thing to be lawful, which conlidercd by itfcif, would be unjuft; but fuch times arc tr>ily unhappy, when n^ceflity muft be pleaded in fupport of a right. * See a Litter of Puffendorf in Jno. Groningii Eibliotheca Uifiivcilalis Libiorum Juridicorum, p. 105. I It O? KF. L'TtAL NATIONS. j^ ions were ii Bibliotheca It remains ^.at I n v inq -r into (ic coil- dudt of France; my proots * i\ thi^ ^ad v\ .1 be clear; they arc indeed 4h\v^ Ts than the public laws of that knigdom. Ivy ibme very old French ordinances it is declared, not only that the enemies goods (hall be adjudged to be lawful prize, but that the neutral vellcl which carries them, or the pro^XTty of any ally which Iball be joined with them, Ihall be joined alfo in the condemnation. It has always been a maxim of the courts of maritime jurif- dicSion of France, ** Que la robe d*am con- *' fifque celle d'enemie;" and fo clear were they in this opinion, that the laws which clla- blilhed it were repeatedly enadied in the reigns of two of their kings, Francis I. and Henry IlI.-^That the pradice of the French marine hath in this particular been conforma- ble to their laws, may be proved by a thou- fand inftances: I Ihall fele(5t one upon the authority of a Minifter of Holland, which will fhew what their conduct was in tliat Spanilh war which preceded the Pyrenean treaty. In a letter of Monfieur Borecl from Paris to Monfieur de Wit, December 26th, 1653 ** On tient ici," lays he, '' pour * See the Ordinancci of France, Francis I. 1543. c. 4. 2<\ Hi-nrj- in. 1584.. c. 69, ** niaxi- II Ji lORD HAWKESBLRY " niaximc favorable a Icurs intcrefls, cjutf •* leurs enemies nc doivcnt recevoir ni dcfcnfc *' ni fcrvice dcs fubjeds de leiir H. H. P. P< •* en tranfportant dc chez eux quclques mer- ** chaiiuiles ou commodites ou d'autres, qui •* feroicnt pour le compte de Tencmie, lous *• peine, au cas qu*ils les trouvent dans le8 ** batiments Hollandois, qu*ils feront de bonne *' prife, & qu'on les puifle enlever les dits ba- ** timcnts & les confifquer.** But it is not the old laws of France alone^ that thus determine this point, their more mo- dern regulations confirm it : one of the lall and greatell fcrvices which Colbert perform- ed to his country, was the eftablifliment of a fyftem of naval laws, the wifcft and bcfl di-* gefted which the fpirit of legiflation hath ever yet produced j it is obfervable, that although the ordinance which contained thefe laws was rcgillered in 1681, feveral years fubfequcnt to thofc treaties, by which France agreed that neutral velFels fhould proted: the property of the enemy, yet it pays no attention to them, and eftablilhes the contrary dodirine. This proves how little regard France always (hew- ed to that article. The words of the ordi- nance exprefsly condemn not only the ene- mies OK NEUTRAL NATIONS. 33 fts, <\ue li dcfcnfc [\. P. P. lies mer-« itres, qui nie, loiis dans les de bonne s dits ba- icc alone, Tiore mo- f the laft perform- i^ient of a d bcft di- hath ever although laws was fequent to greed that operty of I to them, ne. This ays Ihew- ■ the ordi- the ene- mies mics goods, but the neutral fliip which car- ries them . •* All (hips (faith the law*) which *• have goods on board that belong to the cne- •* my, Ihall be good prize." Thefe laws continue ftill to be obfcrved in France : at the commencement even of the prcfent war, the French government delivered to Monf. Berkenrode, the Dutch miniflcr at Paris, a memorial, ** Contenant les Precau- ** tions," (as the title expreffes it) ** quo ** doivent prendre les negociants Holla ** conforment a Pordinance de la muf:r.^ ** aux reglements de la France, pour ^ -^ ** que leurs navires foient declares de ^o*ine ** pri(e." In the preamble of this, the words of the above-mentioned law are repeated, and the fame rule of condemnation is declared to be ftill in force : And the feventh article of the memorial lays even a greater reftridtion on neutral commerce, than the ordinance of i68i feems to have intended; it is there faid. Si les navires Hollandois tranfportoient des mercl:andifes du cru ou fabriques des ene- *' mies de la France, ces merchandifes feroient ** de bonne prife, mais le corps du navire fe- ** roit relache.*' — By this memorial, there- * Naval Ordinance of i68i, Title ix. Art. 7. F fore. 4t it 34 LORD jr/.\VKt58URY I J I )! ' i fore, every thing which is cither of the growtfi or manufacture of the cnemy*s country, when found on board the fhips of Holland, though the property docs not appear to belong to the enemy, is declared to be good prize. The fame reftridion evidently extends to all ofher neutral traders.* Is not this almoft a totall prohibition to neutral powers, of any com* merce with the enemies of France ? Let us now look back on what has been faid : the dedudion which 1 have made hath, I fear, been tedious; but the importance of the fubje(ft by force led me into it : — I flatter myfclf, however, it has appeared, that reafon, authority, and pradice, all join to fupport the caufc I defend : — by reafon, I have endeavour- ed to trace out thole principles on which this right of capture is grounded ; and to give that weight to my own fentiments which of thcmlelves they would, not dellrve, I have added the authorities of the ablell writers on this fubjermed into lyllems by able doctors of their councils, have com- pofcd that fcience, which the world hath called politics ; a Science ot fraud and deceit, by which kingdoms are taught to be governed on principles, which individuals would be afhamed to profefs ; as if there could be no morality among nations, and that mankind being formed into civil focieties, and collec-^ tively conlldered, were fet free from all rules of honour and virtue : maxims like thefe 1 mean to avoid ; to follow them would bring dif honour on my country. It mufl then be allowed, that there are arti* ties in fome of our maritime treaties with other nations, which have flipulated, that, ** All which fhall be found on board the *' veflels belonging to the fubjeds of thofc ** countries, fliall be accounted clear and free, * * although the whole lading or any part thereof •* fliall, by juft title of property, belong to •* the enemies of Great Britain ;" fuch an article is inferted in thofc maritime treaties, which Great Britain hath made with France * • Treaty between Great Britain and France, a4thFcb. 1677, and 40 LORD HAWKESBURY . -" 1 Holland :* it has indeed by fome been fu^pofed, that the fubjedls of the crown of fipain have a right to enjoy a privilege of the fame nature ; certain, however^ it is, that no fuch article as that above mentioned, can be found in the maritime treaties between that country and Great Britain, and particularly in that of Madrid of 1667, ^^^^i^h is the princi- ple maritime treaty at prefcnt in force between the two kingdoms ; but as a miftake in this refped may poflibly have arifen from a flilfe interpretation of two articles in the treaty of Madrid, which declare in general,* that ** the •* fubjeds of the two crowns rcfpedtively •* fliall have liberty to traffic throughout all ** countries, cultivating peace, amity, or ncu- •* trality with cither of them, and that the ** faid liberty lliall in no wife be interrupted •• by any hindrance or diilurbancewhatfocver, •* by rcafon of any hoflility which may be •* between either of the faid crowns and any •* other kingdoms:" and as the liberty here flipuiated, may be by fome erroneoufly ima- gined to extend fo far, as to grant a right to carrv freely the effcdts of the enemy ; it wiH be proper here to remove this error, and to • TiCaty between Great Britain and Holland, ift Dec. 1764. f Treaty oi' Madrid, 1677, ' * flop CN KEL'TRAL NATIONS. 4» ilop a little to llicw the true dcfign and mean- ing oi thcfe articles. This explanation is at prefcnt more nccelTary, as it vvil'i tend to il- lullrate the true fenfe of other ftipulations of precifely the fame purport, which may be found in feveral of our commercial treaties, and particularly in the firft and fecond articles of that with Holland of Dec. ii, 1674: a wrong interpretation of which hath already given occafion to grtat confufion and much falfe reafoning upon the prefent queflion. (lop It cannot, I think, be doubted, that accord* ing to thofe principles of natural equity, which conftitute the law of nations, the peo- ple of every country muft always have a right to trade in general, to the ports of any ftate, though it may happen to be engaged in war with another, provided it be with their own merchandife, or on their own account ; and that under this pretence, they do not attempt to fcreen from one party the effcds of the other ; and on condition alfo, that they carry not to either of them any implements of war, or whatever elfe, according to the nature of their refpedtive iituations, or the circum- ftances of the cafe, may be ncceflary to them for their defence. As clear as this point may be, it has fufficicntly appeared by the facts de- , G (iaccd 4* lOlHD HAWKE'JBrRY m'' i »i_. <■ duced above, that amid the regularities of war, the rules of equity in this refpedt were not always enough regarded ; and that many govermnents in time of war have often moft licentiouily difturbed, and fometimes pro- hibited totally, the commerce of neutral na- tions with their enemies : about the middle therefore of the laft century, when the com- mercial regulations, which at prefent fubiifl between the European powers, firft began to be formed, it became abfolutely neceffary to call back the attention of ^governments to thofe principles of natural n'^lit, from whence they had ftrayed ; and to fix and determine what Was the law of nations, by the articles of their refped:ive treaties : for this purpofe, the negociators of that age infcrted in their commercial regulations, articles * to the fame purport as thofe above-mentioned, allerting, in general, a right to trade unmolefted with the enemies of each other ; and thefe they ufually placed among thofe articles of generaF import, which are commonly firll laid down in treaties, as the bade on which the fubfe- * Treaty of Commerce between France and Holland, i66». — Treaty of Commerce between England and Holland, Feb. 17, 1668,— Treaty of Commerce between England and Holland, Dec. i, 1674.— Treaty of Comnierce between Eng- L-vpd and France, Feb. a4, 1677. quent OM KEUTRAL NATIONS. 45 <|uent ilipulations are founded: the rule there- fore of equity in this cafe being thus defined^ they came afterwards to ere<5t upon it fudi privileges as that rule alone would not have allowed them ; and among the rei^, fome na- tions, . as their intereil prompted them, granted mutually to each other, by new and expreis articles, the right of carrying freely ^e property of their refpedtive enemies* Thefe laft articles therefore mufl be con^ dered as wholly diftin I pro- jdof with re fet ioned fcftly n fa- other ply a emy; leceC- Thc aty of :a the tatn is lained yvn of ng on '* or othef- itions, never of ail e this in her »lland ; le pre- I now lulated and,! pro- OS KEUTRAL KATIONS. 47' pTopbfc to (hew that here alfo it is cxtindl. — But to give a fuller view of my I'ubjedt, and to (hew the origin and intention of this pri- vilege^ it will be neccffary to enter a little into the hiftory of it, and to relate the manner in which the article that grants it was firft ad- mitted into treaties. When the United Provinces had put an end by the treaty of Munfter, tcr'that long war, which they had fo nobly maintained in fup- port of their liberties, and had happily crowned their labours by obtaining a full acknowledge- ment of their fovcreignty ; delivered from the cares of war, they wifely turned their thoughts towards the arts of peace : after long contentions among themfelves, their com- mercial provinces had at length obtained the greateft lead in the ftatc ; the intcreft of trade was of courfe the principal object of their council ; their armies were reduced ; all who favoured war were no longer in credit ; and the views of their minifters terminated chiefly in giving permanence to that extenfive traffic, which had fupported them through all their diftrefles, and to the effedts of which they principally attributed all their power and free- dom. » .. They 48 LORD HAWKESnURY They were, indeed, at this time fo fully mafters of almoll all the commerce of thtf world, that they had little elfe to do but to prefcrvc the poUeflion of it : the public was, on this occalion, amufed with a new fpecies of policy, the offspring rather of avarice than ambition, defirous of keeping the reft of man- kind in indolence, that it might more fully reap the fruits of its own induftry : where wealth was at leaft the firft objedl in view, though in the end it might be accompanied by its ufual attendant, power : the arts which they pradifed to preferve their filheries, and to fecure to themfelves alone the trade of the Afiatic fpices, are well known, and not at prefent to our purpofe ; they urged loudly ♦he freedom of navigation, till they had made it free indeed for themfelves ; but they have been charged with pracflifing a different dodrine on the other fuie of the line to what they profeficd on this ; and with fceking to cfta- blilh an exclufive trade on thofe very feas, whofe freedom from papal grants and Spanifli prctcnfions the pen ot their Grotius had fo ably defended . ■ ' There was, however, another fpecies of commerce which demanded their attention even more than either of the former; as it was ON NtrTRAL NATIONS. 49 'W'as not only a profitable brancii of trafFc in itfelf, but as it greatly tended to the fecurity of the reft, by being the principal bads of their naval power : this was the trade of freightage, or the carr)'ing trade, the iubjccfl of our prefent difcourfe. — To undcrftand their views in this refpeerce, and the little attention which they paid to the interells of it, gave fuch advantages for fome time to the Dutch, that more veflels of that country were feen in the ports of our colo- nics than even of our own ; the fhipping of England, from the reign of Elizabeth, had been in a conftant decline ; we fliould hardly have believed, that in the reign of Charles I. England could not have furniihed more than three mcrcliant veiTds of 300 tons, if Sir Jofiah Child had not affirmed it : the time at length arrived, when we were to be put in this refped on an equality with our neigh- bours, and to vindicate (as it were) the ad- vantages of our own induftry and produce to ourfclves ; m 1651, the Parlian^ent of Eng- 1 into an ordinance that noble ftrain cial policy, called fmce, the ad of j Mr. St. John returning about this P 01 nav conimci ation ON NKUTRAL KATIONS. 55 le ad- Lice to Eng- ftrain ad of about this this time from his cmbalTy at the Hague, be- came the happy inilrument, which Providence made life of, to accomphlh this great work;* refcnting highly the refufal, which had there been given to liis propofals, and the infuhs which had been offered to his perfon, he warmly fohcited, and at length induced the council of fbxtc, to move the parliament to pafs it ; the committee fat five days in form- ing it ; and it was at lafl: publiflied by order of the houfe with great pomp and ceremony at the Royal Exchange ; the Dutch were io fenfible of its confequences, that it was tlie . principal caufe of the enfuing war: they called it in a manifefto,*f publilhed foon after, ** A vile adt and order." At the negociations for that peace which put an end to the war, De Witt laboured with his ufual induftry and acutenefs to procure the abolition of it ; his efforts were happily in vain ; they who made the law attended with vigour the execution of it ; the effedts of it were immedialy apparent. This adt of policy alone hath fortunately out- weighed all our other follies and extrava- gancies ; though condemned by fome of our hiftorians, and unnoticed by others, it hath proved the fertile fource of all our naval ■♦ Ludlow's Memoirs, vol. i. p. 34$. f Tim manifefto of Holland, 1652. power : 5l6 lORD HAWKESBURY power: it hath operated infenfibly to ourprc- fervation, and hath been the fpring from whence liiith flowed the wealth and greatnefs of Engl aid. Our anceftors, with equal conflancy, for fomc lime withftood the other maxim of Dutch policy, and would not permit their veflels, as neuters, to protc^ the eflfe^s of the ene- my. By a very ancient and remarkable treaty, made when the dukes of Burgundy were fo- vcreigns of the Low Countries, the contrary opinion had long been eftablifhed ; in that it was determined, •* Quod fubditi Unius Prin- '* cipum Praediiftorum,'* (that is, Henry VIJ. King of England, and PhiUp, Duke of Bur- gundy) ** non adducent aut adduci facient •* per marc, fmudulofe, vel quocunque co- •* lore, aliqua bona feu merchandizas inimi- •* corum alterius eorundem principum." And it farther ftipulated, that in cafe the mafter of the neutral veffel (hall endeavour, by a ialfe report, to defraud the captor of any of his enemy's efleds, he Ihall be obliged to make good the lofs fuftained thereby, by the forfeiture of as much of his own. Frequent applications w«re made before the reftoration, both to the parliament and to the protedor, o alter the courfe of proceeding in this re- fped; ON NEUTRAL NATIOS'S. ^-j fpc^ ; but thofe heads which formed the acft of navigation were too wife to confent to this ; a particular occafion, however, at lafl induced England to make the concelTiOn ; by the treaty of commerce made at the Hap^iie, 17th of February, 1668, this point was fully fettled to the fatisfadion of Holland ; by the 1 0th article* of which it was fully flipulated, that the (hipping of each countiy fliould carry freely the goods of the enemies of the otlicr. The circumftances of the time, and the iituation of aftairs when this article was framed, account for its admiiTion into this treaty, and very flrongly apologife for the* authors of it ; Lewis the XlVth had then juft comrr enced the firfl career of his ambi- tion, and England refolved with fpirit to threw herfelf in his way. Holland was then engaged in a ftiong defenfive alliance with France, from whom it was neceflliry to feparate her, and to make her join with Eng-* land to fupport the independency of Europe. The Dutch minifters feized this fortunate opportunity of obtaining from England the fame advantages which they had already ac- quired by their treaties w^th France. It hath 'been the policy of moft republics never to * Intcrcurfus Magnus in Rymer's Fcedcra, vol. xii. p. 585. I enter 58 LORD HAWKESBl'RY enter into any allianrc where fame bent-fit cloth not accrue to tl.cmfelves ; and Holland could not he expected to deviate from this maxim on the prefent occafion, in compli- ment to the king ot England, who had al- ways llicwn hut little afledion to the States ; the war alfo w ith that monarch was but lately ended, and the wound but weakly healed : the French treaty of 1662, befides its defen- five ftipulations, contained alfo feveral com- mercial regulations, the favourite objcd: of Holland ; thefe had been provifionally refer- red to a few months before at Breda, with a defign to prevent any intermediate difputcs between England and Holland, until a treaty of commerce, which was then under delibe- ration, was concluded ; but unlefs thefe were perpetuated on the prefent occafion, and formed into a permament national treaty, to which England was averfe,* the States were refolved not to join in the alliance propofed : Monf. De Witt exprefsly told Sir William Temple,*!* ** That the treaty of defenfive al- ** liance muft, for a bafis, have at the fame ** time an adjuflment of matters of com- merce;" and unlefs this could be obtained. (( * Sir William Temple to Lord Arlington, Feb. 12, i668. f lb. Jan. 24, 1668. ■ it putcs treaty blibe- were and , to were fed: lliam e al- fame om- ned, 1 1 668. it ON NEUTRAL NATIONS. 59 it was the avowed opinion of tliat great pen- fionary not to conclude. Intluenccd \>y tlic fentiments of their miniftcr, tlic States per- lifted in the fame relbhition ; thty forced, at laft, Sir WiHiam Temple to yield the point ; apprchenfivc of the leall delay, and of the uncertainties which would ncceflarily follow from it, he ventured to comply with their defires, though he exceeded thereby his in- /lru* Til cy p made wi rem th ife ali o. to defend and preforve each otlicr in the *' porteflion of all towns or fortreflbs, which ** did at that timehelonc:, or Ihall for the fu- «i ture hcl u ng, to either of th em i» an dfor this purpofe it is determined, that ** when ** either nation is attacked or molcded, the •* other fliall immediately fuccoiir it with a ** certain number of troops and men of war, *' and Ihall be obh'ged to break with the ag- •* grefTor in two months, immediately after •* the party that is already at war fhall re- •* quire it ; and that they fliall then adt con- ** jointly with all their forces, to bring the ** common enemy to a rcafonablc accommo- ** dation." That Holland hath not complied with the terms of this guaranty is evident ; — Minorca, ** a pofl'eflion of the crown of Great Britain, ** and which fhc acquired by treaty,** hath been attacked : this is one cafe of the gua- ranty ; by that attack, ** a treaty that was ** made in common concert,** the treaty of Utrecht hath been broken ; this is a lecond cafe of the guaranty ; and by thefe means •• England hath been deprived of a polleilion •* which of right belonged to her :'* this is a 4 third << with ; alio, n the which liC fu- ind for when d, the with a if war, the ag- y after lall re- tl con- ing the ommo- ith the norca, Britain, » hath \c gua- lat was caty of Itcond means •ireilion his is a third ON NEDTRAL NATIONS. 6^ third cafe of the guaranty ; and notwithiland- ing all this, Holland hath not as yet granted the fuccours ftipulated ; and many more than two months have palled without her having entered into war conjointly with England, a^ the treaty requires. The fecond fpccles of dcfcnfive alliancd which fublilts between Great Britain and Holland, is that which was firft agreed to, in tl ic treaty of barrier and fuccelllon of October the 29th, 1709, and again more particularly (lipulated in another treaty to the fame pur- pole of January 29th, 1 7 1 3 : the defign of this treaty is the guaranty of the Dutch bar- rier on one part, and the guaranty of the firmeft barrier of Britilh liberty, the Pro- teftant fucceflion, on the other: the ftipula- tions are»* ** that in cafe either fliould be at- ** tacked, the other fhould furnifh at the re- ** quifition of the party injured, but at his •* own expence, certain fuccours there ex- *' preffed ; and if the danger Ihould be fuch ** as to require a greater force, that he fliall be *' obliged to augment his fuccours, and ulti- ** mately to ad with all his power in open *' war againll the aggreflbr." I pretend not * Arrlrle xiv. of the treaty of Barrier and Succeffion of Janu«i> 19, '7 '3- „ 66 LORD HAWKESBURY to make any ufc of this treaty in tlie prcfent cafc; and only mention it to give a fuller view of the alliances which fubfift between us. Here, however, I will indulge a wilh, that the cafe of this guaranty, as far as it re- lates to the right uf tlic crown of Great Britain, may never again cxilh I always read with forrow, that there ever was a time when the unfortunate difl'enlions of our people, in a point where the whole of their happinefs was concerned, fhould have made it neceflary to add any other fandlion to our own laws, than fuch as our own power can afford them. Thcfe days, however, of Ihame now, I hope, are pafled ; more than forty years experience of the mildell government mufl have won the moft obdurate heart to confefs the prcfent fe- licity, and blefs the hand which beftows it. When, forgetting ancient errors, we are thus united in defence, the afFedlions of his Ma- jefty*s fubjeds are the happieft guaranty of his right. ♦ f I come now to the lafl fpecies of defcndve alliance which fub fills between Great Britain and Holland. This was concluded at the Hague the 4th of January, 1717. To this treaty France was a party. The intention or view of it was, ** the prefervation of each ^ *• other ON NEUTRAL NATION'S. ipulations arc, •* to '* defend all and each of the articles of the * * faid treaty, as far as they relate to the con- ** trading parties rcfped:ivcly, or each of •* them in particular; and they guaranty all ** the kingdoms, provinces, ftates, rights, and advantages, which each of the parties at the figning of that treaty polTeflcd ;" and in a feparate article all this is confined to •* Europe only." The fuccours ftipulated in fupport of this guaranty, are much the fame as thofe mentioned above ; firft, ** interpofi- ** tion of good offices," — then, ** a certain ** number of forces,'* — and laftly, *' decla- ** ration of war." This treaty was renewed by the quadruple alliance of 171 8, and again by the acceflion of Holland to the treaty of Hanover of 1 726, and laft of all by the 3d ar- ticle of the treaty of Aix-la-Chapelle, 1748. Holland hath by no means t> xuted the terms of this guaranty, — Minorca, ** a pof- •• feflion of the crown of England in Europe, ** which fhe enjoyed at the figning of this •* treaty," hath been attacked ; this is one cafe of the guaranty. By this attack, ** the *' article of the treaty of Utrecht, by which K 2 ♦♦ that 68 LORD HAWKESBURY ** that poffeiTion was ceded to England," hath been broken ; this is another cafe of guaranty. I need not again obicrve, that Holland, in confequcnce of this, hath neither granted the fucconrs, nor declared war, as this treaty n\( > rt. qui ret. It will, however, pcilu-ps be objecfled, *' that *• Great Eritain was the nggrefTor in the prc- ** fcnt war, and unlefs (he had been firft at- •* ticked, the cafe or the guaranties doth not *' exii^." Trut > is, that the treaties which contain thcic guaranties, are called defenfive treaties only ; but the words of them, and particularly of that of 1678, which is the bafls of all the reft, by no means exprefs the point clearly in the fcnfe of the objedtion ; they guaranty in general ** all the rights and •* poffefTions" of both parties, againft ** all •* kings, princes, republics, and ftates ;" fo that if either ** Ihall be attacked" or *' mo- •* lefted," whether it be *' by hoftile adt or ^* ^ en war," or '* in any other manner •* whatlbcver, difturbed in the pofleflion of •* his eftates, territories, rights, immuni- ** ties, and freedom pf commerce;" it then declares what fhall be done in defence of thefe objeds of the guaranty, by the ally, who is ppt at war; but it is no where nicntioned, as necdfary cafe of e, that neither as this I,** that the prc- firft at- loth not s which efenfive ;m, and 1 is the )refs the edtion ; hts and I *• all " fo mo- a(5t or anncr ion of niuni- it then f thefe ho is ed, as celfary 0!« NEUTRAL NATIONS. 69 nccefTlir\', that the attack of thcfc fhould be the Hrll injury or attack. Nor doth this loolc manner ot exprellion appear to have bceri an omiflion or inaccuracy. I'hcy \vho have frame<.1 thefe guaranties, certainly chofe to leave this queRion without any farther expla- nation, to that good faith which nuift ulti- mately decide upon the execution of all con- trat^ts made between fovereign ftates. It is not prefumed they hereby meant, that either party lliould be obliged to fupport every adt of violence or injuiUce which his ally might be prompted to commit through views of intereft or ambition. But, on the other hand, they were cautious of affording too fre- quent opportunities to pretend, that the cafe of the guaranties did not exift, and of eluding thereby the principal intention of the alliance; both thefe inconveniencies were equally to be avoided; and they wifely thought fit to guard againft the latter of thefe, no lefs than the former. They knew that in every war be- tween civilized nations, each piirty always endeavours to throw upon the other, the odi- um and guilt of the firfl act of provocation and aggrellion, and that the worli of caufes was never without its excufe. They forefaw that this alone would unavoidably give fuffi- t'icnt occafion to endlefs cavils and difputes, whenever 4t 7.3 LORD HAWKESBURY whenever the innik-lity of an ally inclined him to avail himfclf of them. To have con- fined therefore the cafe of the guaranty, by a more minute defcrlption of it, and under clofer rellridions of form, would have fub- jcdled to flill greater uncertainty, a point, which, from the nature of the thing itfclf, was already too liable to doubt ; they were fenfihle, that the cafes would be infinitely various, that the motives to felf-defencc, though evidently juft, might not always be univerfally apparent ; that an artful enemy might difgiiife the moli alarming preparations^ and that an injured nation mig it be nece{Iita= ted to commit even a preventive hoftility, be- fore the danger which caufed it could be pub- licly know^n. Upon fuch confiderations thefe negociators wifely thought proper to give the greatefl latitude to this qurftion, and to leave it open to a fair and liberal conftrucition ; fuch as might be expeded from friends, whofe in- terells thefe treaties were fuppofed to have for ever united, and fuch on the prefent occafion Great Britain hath a right to demand. If, however, we fhould, for the prefent, wave this interpretation, and allow the trea- ties to have all the meaning, which they who make this objedion rec^uirc, the evidence of 4 / OS NEUTRAL KATIOKS. [ent, Irea- |hcy mce Qf of fads will fufficicntly prove, that France was the a^grcfibr in tlic preicnt war. If wc look to Amcric I, the prclcnt war there is little more than a continuation of the lull; repeated ufurpations of the poirclllons of Great Britain have been there the conilant employment of France, almoft from the hour in which the treaty of Aix was figncii ; and thefe were at laft followed by an avowed military attack upon a fort belonging to the crown of CrcAt Britain, by regular troops, ad:ing under a commiilion from the court of France. If we con{id?r America as having no concern in the prefent queflion, the fame ambitious power will alfo be found to have been the aggrelTor in the European war; France early manifeilci herhoftile intentions in Europe ; in 1753, in diredt oppolition to the exprefs llipulations * of three folemn treaties flie began to rellore tlie port of Dunkirk ; and Holland then confi- dered this adlion in fuch a light as induced her, in conjunction with the Britilh govern- ment, to prefent a memorial againft it. France alfo gave another proof of her holtilc in- tentions by her deligRto invade Great Britain, avowed by her minifters in every court in Eu- * Ninth article of the treaty of Utrecht ; fourth article of the treaty of the Hague, 1 7 1 7 ; and feveDteeoth article of tha treaty of Aix-ia-Chapelle. 4 rope. 72 LORD IIAWKESni T. V ropc^ and fufficicntly maniftltcJ by the pre- parations which llic publicly made for it. And thcfc were Hkcwii'c followed by an open attack upon an European ifland belonging to Great Britain, an attack upon the illand of Minorca. It iecms, indeed, allowed, by the opinion of the parties concerned, that by the attack of Minorca, the European war was firft completely opened ; notwithilanding all which had pafled elfewhere, propofals lor an accommodation of the American diiputcs were never difcontip.ucd, nor the war confidered as univcrfal, till that illand was abfolutcly inva- ded. As for the captures at fea, the avowed cauie upon which thefe were taken, fuffici- cntly evince that they undoubtedly belong to the American w ar j they were made in confe- quence of the hoililities firft commenced in America, and were feized as reprifals, for the injuries there committed upon the property of the people of England ; as fuch they were always declared to be taken by the minifters of that kingdom, and the value of them to be on that account retained ;* and upon applica- tion made to parliament foon a/^r the feizure of them, the legillature exprelsly refufed to diftributc them among the captors, as they ♦ See the BrItiiU declaration of war. have ON NEUTRAL NATIONS. ^J have done in rcfpe<5l to all other prizes, which have been made fincc the war of Europe be- gan. But even if this dirtindtion, which puts the queflion out of all doubt, had not been made by the minifters of England, thefe cap- tures furcly can never be looked upon but as a part of the American war j it will not cer- tainly be denied, that fuch a war may extend itfelf to the ocean, without having changed cither its nature or denomination ; what but captures at fea have been the great conftituent part of every American war before the pre- fent ; as a war upon the American continent muft always be fupported by fuccours fent from Europe, it is abfurd to fuppofe that cither party in this cafe would not endea- vour, as far as he was able, to take or deftroy entirely the Ihipping of his enemy, by which alone thofe fuccours could be conveyed. Countries which have very little internal force within themfelves, cannot be defended but by fuch troops as are thrown into them; to defeat, therefore, the only means by which this re- lief can be effeft^d, muft be efteemed as ma- terial a part of fuch a war, as the means to invert a fortrefs are a material part of a liege. But after all, thefe captures were fubfequent to the reftoratioo of the port of Dunkirk, or L the lave 74 LORD HAWKESBL'RY llic * preparations to invade Great Britain ; and tlicfc can never l)e confidcrcd but as un- doubted adb >t' nggrcliion ; it is not the firll military adion alone, but hoilile preparations, where the defign is apparent,-!* the ufurpation of another's rights, or the denial of juftice, which in the opinion of the ableft writers de- nominate the aggrcllor. The objed; of the dcfcnlive treaties arc ** rights, immunities, •* and liberties," no lefs than ** towns or '* territories," and ** the diflurbance" or '* molcllation" of the former, as well as ** the ** attack" of the latter, nre exprefsly declared to be cafes within the guarantees. CI ( i ( I I i A more fubtle obj ed ion will ftill perhaps be made to wliat has been laid. It will be urged, *• that though France was theaggeflbr ** in Etirope, yet that it was only in confe- *' cjuencc of the hoitilities commenced before * Umlouhted intelligence was received of this before the 27th Auguft, 1 7 55, when general orders were given to bring iji French vellels ; the Lys and the Alcide were taken on the coaft of Anieiica, and are therefore in every light a part of that war. f Quanquam et aliquando favor defenfionis ad illius par- tibus ftat, qui prior arnia akeri infert, ut fiquis hoftem inva- (ronc« jam cenum, per celcritatem oppreflerit, dum ille adhuc in adparando bcUo eft occiipatus. Putfendorf de Jure Nat. &c. Lib. 8. cap. 6. kc. 3. (( <( in tain ; s un- tions, pation iftice, Ts (ie- )F the nities, ,'ns or :e" or 5 ** the eclared lerhaps vill be geflbr confe- before :fore the to bring on the part of |lius par- °ni inva- lle adhuc fat. iic. (( in ON NEUTRAL NATIONS. 75 ** in America; with whicli it is dctcrminrd *' by treiUics, that Holland is to have no con- ** cern, a!\d that the rights contcih-d at pre- ** lent are not contained in the guaranties. " — If the rcafoning on which this ohjc<:^.lion is founded was admitted, it would alone be fulH- cient to deftroy the efFeds of everv guiiranty, and to extinguiih that confidence which na- tions mutually place in each other on the faith of defenfive alliances : it points out to the enemy a certain method of avoiding the inconvenience of fuch an alliance : it Ihews him where he ought to begin his attack ; let only the firft effort be made upon fome place not included in the guaranty, and after that he may purfue his views againfl the very ob- ject without any apprehenlions of the confe- quence ; let France firffc attack fome little fpot belonging to Holland in America, and her barrier would be no longer guaranteed ; To argue in this manner would be to trifle with the mofl folemn engagements. The pro- per object of guarantees is the prefervation of fome particular country in the pofTelTion of fome particular powen The treaties above- mentioned promife the defence of the domi- nions of each party in Europe, fimply and abfolutely, whenever they are ** attacked" or •• molelled." If in the prefent war the firft L 2 attack 76 LOID HAWKISBCRY attack was made out of Europe, it is manifeil that long ago an attack hath alfo been made in Europe : and that is beyond a doubt the cafe of thefe guarantees. Let us try, however, if we cannot difcover what hath once been the opinion of Holland on a point of this nature. — It hath already been obferved, that the defenfive alliance be- tween England and Holland of 1678 is but a copy of the twelve firft articles of the French treaty of 1662 ; foon after Holland had con- cluded this laft alliance with France fhe be- came engaged in a war with England ; the attack then firft began, as in the prefent cafe, out of Europe, on the coaft of Guinea ; and the caufe of the war was alfo the fame, a dif- puted right to certain pofleflior.s out of the bounds of Europe, fome in Africa, and others in the Eaft Indies : Hoftilitics having conti- nued for fome time in thole par's, they after- wards commenced alfo in Europe ; immedi- ately upon this Holland declared, that the cafe of that guaranty did cxift, and demanded the fuccours uhich were llipulated. I need not produce the memorials of their minifters to prove this j liiilory f utHeientiy informs us, that France acknowle^lged the claim, granted the fuccours, and entered even into open war in ON KEUTRAL NATIONS. 77 in the defence of her ally : Here then wc have the fentimcnts of Holland on the lame article in a cafe minutely parallel ; France alio pleads in favour of the lame opinion, though her concefTion in this refped checked at that time her youthful monarch in the firll clFay of his ambition, delayed for fcveral months his en- trance into tlie Spanilh provinces, and brought on him the enmity of England. If any doubt can yet remain about the meaning and intent of this article, it may far- ther be proved from the opinion of the Mi- nifter who made it ; — Immediately after Hol- land was engaged in the war above-mention- ed, (he fent to the Court of France Monfieur Van Beuningen to prefs the execution of that guaranty, which he liad himfclf concluded. It is remarkable, that in his converditions on this fubjedt with Monfieur de Lionne, the fame objedtion was debated againft which I now contend: Van Beunin^cn treated it with great contempt j he alkcJ Monfieur de Lionne,* if the pretence of the European war being only a continuation of that of Africa, was what the Englilh alone ailedged to deprive ♦ Lettre de M» Van Beuningen k M. Dc Witt. December s6| 1664. thcni ! ^ LORD HAWKESBCJUY them of the fuccours of Frmce, or whether the French Miniller laid any llrcfs upon it as un argument at ail to be fupported. Dc Lioqne at firil gave liim to underlland that he thought it oi fome weight, *' A quoi, je rcpondis,'* fays Van Bcuningen, *' que je ne croyis pas, *' que tette objedlion tut rcneufe, puis qu* ll *' dit alors, que celui, qui a commence la •* guerre en Guinnee, 6c de la en Europe, ** n'a pas commence de guerre en Europe; *' 6c ne pouvoit palTer pour troublcr la paix *' 6c le commerce en Europe, parce qu' il *' Tavoit trouble aillcurs auparavant:" and then he ac! is, ** Ce, que j'ajoutai a ce raifon- ** ncment pour refuter cette obje(5tion, refta *• fans rcplique.** Tliis was the lame Mon- ficur Van Beuningen wlio negotiated our de- fenfivc treaty of 167S ; he made the terms of both thefe guaranties precifely aiii^e ; and wc before Uicwcd that our common calc at prc- llnt is exadly tlic fame as tliis on which his opinion iuuii been produced. If, however, tlie words of tliefe treaties had been againll tlie interpretation wliich liath been given tliem, I miglu jullly iiave appeal- ed to the fpirit of tliem, as alone a fulHcient foundation oi\ which to build my opinion : The wliolc delign of all thefe our alliances with •^^ V K ON NEUTRAL NATIONS. 79 with Holland is to form a barrier againll the power of thole mighty kingdoms, whole am- bition migiit otherwile induce them to dellroy the mdtpendency of Europe : They are, in fad, a regular continuation of that policy which gave birth to the Triple Alliance, wlica the dangerous fpirit of the French councils firll began to appear. To anfwer this great end, they guaranty the polTcflions of thole two maritime countries, who, from their wealth, their internal ftrength, and their incapacity of having any ambitious views themlclves, arc the beft fecurity againft the deligns of others: But as the obligations of thefe guaranties are too confiderable to be made ufe ot on trifling occafions, for this purpofe the contrading parties have made one exception : I'he rights of the European kingdoms in the diflant parts of the world, and particularly in America, are very uncertain, aiid the caufe of frequent diflei.'iOns, and it is well known that wars have there fublifted for many years between the trading fubjeds and commercial compa- nies of the feveral nations, while the mother countries have lived, if not in friendfhip, at Icaft in peace ; this then is the cafe particu- larly excepted from the guaranty ; but this exception mu^ always be lo interpreted as to be made conliilent with the principal inten- 3 tion 8o LORD HAWKESBURT tion o{ the alliance : — If fomc great country out of Europe Ihould become of fo much im- portance, that for the interell of Europe it ought to remain in the hands of the prcfcnt portclfors ; if the fame great dillurber of man- kind, after many fruiticfs attempts in his own neighbourhood, ihould now turn his thoughts another way, and fhould endeavour, by dif- tant divcrlions, to enfeeble that power on whofe confideration the fafety of the public very much depends, and to deprive her of the fources of her weukh, which (he hath always fo largely expended in fupport of the com- mon caule, would a generous friend, who at- tends to the fpirit of his engagements, fay, that the cafe of the guaranty did not then exift ? and, when the reafon of the exception is va- nilhcd, would he urge the pretence of it as an excufe for giving up the principal point on which the alliance was conftrudled ?— But if to this diilant attempt the enemy (hould add an open and avowed war in Europe, Ihould threaten the mother country with in- vafion, attack her fortrelfes, and take occafion from thence to fpread his armies over the con- tinent, ihali this pretended exception fliU be urged, when the literal cafe of guaranty is now become apparent ? On this weak foun- dation (hall a wile people, under fuch obliga- tions, tion but full man fortf conti vvhii The the fricn from give ]ier € AJefcrj OS NF-I/TRAL HATIO^^S. Si tions» not only refufc to grant their aifi^Wct^ but not permit their forfhkcn ally to make a full life of his power? holding back in this manner his arm, when they will not itretdh forth their own, and claiming from the very contrads they have broken tlut privilege which they turn to the delhucflion of her ally. The ab/urdit) is (hocking; fuch, however, is the pre lent caie of England : Unhappy in her fricndlhips ! She hath neither that alliftance from allies which they are bound by treaty to give her, neither ^s Ihe allowed to exsrt even Jher own force, though abandoned to bcr own defci^ce. In this ii'5HP^r>er tl\e point might be deter- mined on a gjenend view of thefe treaties ^ ai>d this alone would be fufficicnt ;i*-but it fUfiy be further proved that the article on which Holland founds her right of protec^ting the pj^operty of the enemy, .is far as it relates to tlie prcient call*, hath been particularly re- pealed long ago. The treaty in which this article was laft inferted was concluded the ift of J)ct:ember, 1674 : Four years after this, 4^1 167^, was palt thai d^fcnlive alliance, in which it wa.s itipulated between Holland and Kngkind, *' that if either j.'arty Hiould be at- ♦* tacked in Europe, the other ihould declare M t ( war 82 LORD HAWKF-SBCRY " war again ft the aggrcflbr t\vo months after " he is required:" By this treaty, therefore, two months after England is attacked by France in Europe, Holland muft become the enemy of the latter as well as England ; and to be the enemy of another means certainly to diftrefs his trade and feize his property, not to preferve the former and proted: the latter. If this therefore is the right interpretation of the word enemy, this article diredliyand pofj- tively declares, that two months after France has attacked the European pofleflions of Eng- land, the fliips of Holland Ihall not have a right to protcd: the effcifts of the French t this therefore is derogatory 'o the 8th article of the marine treaty of 1678, and as being poftcrior to it, abfolutely reptals it. In all laws (and fuch arc treaties in refpedt to na- tions) the laft enadled always lets afide the former, lb flir as they difagree. Cicero * lays, it ought to be conlidered, ** Utra Lex " pofterius lit ^ata^ nam poltrema quaeque •* gravillima." ' ^'' "^"* But this maxim is not ncccffaiv on the pre- fcnt occafion, fivxG the i^mc nrticlc is again rcp^aicd by two lubfcqucnt ticatico in words * Cicero de Inveqtionc. as IS after creforc, kcd by )me the d ; and ainly to rty, not e latter, ation of tid pofi- ' France of Eng- t have a French : h article being In all fc to na- fide the 'icero * tra Lex qiiaeque the p re- is again :> words > as ON NEUTRAL NATION^. 8^ las pofitive as can be ufed; for in tlut treaty,* by which all the old alliances be- tween the maritime powers were renewed im- mediately after the revolution ; and alfo in that of February 6, 1716, by which they were again renewed upon the acceilion of the prefcnt family to the throne, the treaties of 1674 and 1678 are exprefsly mentioned, and made of both a part; and it is there declared, that * * they fliall have the fame force and ef- ** fed, as if they had been infcrtcd in thefc ** treaties verbatim ; that is to fay, fo far as ** they do not differ, or are contrary to one V another ; yet fo as wliatever hath been ella- ** blilhed by any later treaty fliall be undcr- ** flood and performed in the fenfc therein ** expreffed, without any regard had to any ** former treaty ;" Can it then be doubted that the articles above mentioned are ** con- ** trary to one another," as much as peace and war, as much as friend (hip and enmity ? Is not tlie defenfive alliance of 1678, ** a ** later treaty" than the marine regulation of i 674 ? and ought not therefore, according to the words of '.he renewal, * * the article of the ** latter to be performed in the fenfe therein * Treaty of fricndHiip and alliance between England and Holland, Auguil, 1689. Ma ** cxprel- i ^4 LORD I(hfcrU'ife juft, the foundation bcinc;; thus i!c- Ofoycd, whatever is built upon if muil nc- ceflarily fall with it. But this ftipulation of equal favour, from the very nature of it, crtn relate to nothing elfe but fuch advantages as may be graiTted to foreign traders by the mu- nicipal kws ot" ordinances of each country ; fuch as equality of cuftoms, exemption front the rigotrf of ancient laws, which would af- fed: them as aliens, and the privileges cf judges-confervators and confuls ; thtfc are tlie proper objedls of favour, and bccaifi'c the whole detail of thefe could not etifily be fpc- cified in a treaty, for this reafon they are thus comprehended in a general article, h the rights conceded by treaties were the ob- jeds of this ftipuhition, to what purpofe were any other articles added, fince this would contain them all, and would alone include every privilege which paft or future treaties could afford them ? and can it be fiippofed, that any nation mentioned in tliis manner to preclude itfelf from the power of exchanging, by treaty, with fome particular country, any great right of its own in return for an equal advantage? or that this right fhould, in fircli cafe, be univerfally forfeited to the peopleT of every other nation, who would thus reap th(? benefit without having been parties to tht bar- gain ? 86 LORD HAWKESBURY gain ? But tliis point is made clear beyond A doubt, fronn the words of die treaties thcm- felves, where this general cq^uahty is ilipu- lated* , on 1 i M ) ! Mrrl rjo' In the tn at) of commerce between Great Britain and Sweden, of the 2 1 ft of Odlobef, 1 66 1, (the principal one at prefent in force between die two countries) the fourth article, which contains this ftipulation, plainly niakes it refer to fuch favours only, as may be en- joyed in matters of trafiic within their re- fpcdlive dominions. The treatment which the contracting parties Ihall lliere give to the fubjeCls of each other is the principal purport of the article; it.fpecifies many particulars, and among the reft it ftipulatcs, that the people of both countries Ihall have ** liberty to im- ** port and export their goods at difcretion, ** the due cuftoms being always paid, and *' the laws and ordinances of both kingdoms ** univerfally obferved;** and then, manifeftly connecting this with what follows, it adds, *' which things heingpre-fuppofed, they fliall ** hold fuch ample privileges, exemptions, ** liberties, and immunities, as any foreigner *' whatfoever doth or ftiail enjoy ;" the gene- ral equality therefore here ftipulated, plainly rclatej to thofe places alone where the cul- X toms ON JfErXHAL NATIONS. 87 toms of thcfe kingdoms are to be duly paid, and the laws and ordinances of them arc in force, and that is only within their rci'pcdtive dominions. The privileges here conceded cannot pofTibly have any larger extent j and to confine the fenfe of the article ftill more ftrongly to the explanation which hath now been given of it, the words, ** in the domi- ' nions and kingdoms of each oihc ," arc ire repeated, to determine ilcarly where iradc mult be carried on, to which this lav our is meant only to be granted ; if, how- ever, any doubt could yet remain in refpecft to this interpretation, they who made the treaty have given the ftrongeft proof, that under this article they never intended to im- ply a right of carrying the property of an enemy, (ince, by the 1 2th article of this fame treaty, an attempt of that nature is pronounced to be ** a heinous crime,** and the flrongcll provifions are made to prevent it. In the treaty of commerce between Great Bri- tain and RufTia, of the 2d of December, 1 734, this ftipulation of equal favour is in- ferted in feveral articles ; but it appears in every one of them, to relate to nothing elfe, but to the particular privileges which the fubjedls of each were to enjoy while they were traditig within the dominions of the I ^, IMAGE EVALUATION TEST TARGET (MT-3) ^% ^ P> 1.0 iilM «.,. I 25 2.2 I.I I u U6 £ ■:£ 12.0 u ||!:25||||,.4|||^ < 6" ► Fhotogra]:^ Sdeices Corporalion 13 WIST MAIN STRUT WltSTM.N.V. USM (71«)l7a-4ft03 88 LORD HAWKESBURY tlic Other. In the fccond article tfiis equality IS txpicfsly faid to be granted *' throughout •* the dominions ol the contradiing parties ** in Europe." In the third it relates only to ** tlic favourabk reception of the fubjecis of ♦* e^ch other in the ports of their rcfped:iyc ** countries.** In the 141th it grants only an jL'qual freedom to import ** fiich merckandji^ ♦• into each other's dominions as is allbvved • ' to the fubjc(fts of any other country ;" and in the zSth it refers only to the *♦ refpe;dl and *•* treatment which is to be given to the fub- ** jeds pf one party who come intoche do- *♦ minions of the other/* In the treaty of commerce between Great Britain and Pen- ^nark, of the nth of July, J670, the lateft- jit prcfent in force between the two countries, ite lUpulation of equal favour i$ infefljcd in tlxe 4Cth article; it is there faid, '* U" the *' Hollanders, or jmy other nation, hath, or »• Ihall obtain from his Majefty of Great ** J^ritain, any better articles, agreements, *• exemptions, or privilege^, thati what ane *• contained in this treaty, the fame and lil^e *' privileges ihall be granted to the king of *• Denmark and his fubjeds alfo, in moft full *' and eficdual manner.** That thefc privi- leges relate only to cuftoms and other adv?in- ti^ges of the fiUTie kind, might be proved from ON HEOTRAL NAtlONS. 89 from the whole tenor of this treaty ; but it will be fufficient to fliew that the right of carrying the property of the enemy cannot poffibly be intended by it. Holland had ob- tained this right in 1668, two years before the DaniHi treaty was concluded ; if therefore the (lipulation of equal favour contained in the 40lh article could extend to an advantage of that nature, the merchants of Denmark would have been immediately entitled to it from the hour the treaty was figned : the mi- niflers of that kingdom could not be ignorant of this i and yet in the 20th article they have pofitively forbid the exertion of any fuch right. They have even expreffed the greatefl apprehenfion, left any liberty conceded by this treaty ihould be interpreted to that pur- pofc J •♦ left fuch freedom of navigation/* fays the article, " or pafTage of the one ally» and ** his fubjedls and people during the war, ** which the other may have by fea or land ** with any otlicr country, may be to the ** prejudice of the other ally, and that goods *' and merchandifes belonging to the enemy ** tray be fraudulently concealed under the ** colour of being in amity; for preventing ** fraud, and taking away all fufpicion^ it is ** thoi^ght fit the (hips, goods, and men, be- longing to the other ally, in theic paifage N ••and 4 1 fti 90 LORD HAWKESBURT ** and voyage be furniftied with letters of •* palTport ;** and in the paflport the king of Denmark hath bound himfelf to declare that the lliip and goods with which it is laden, **' belong to his fiibjeifts, or to others having •* an intercft therein, who are the fubjec^ls of ** neutral powers ;** and that '* they do not '* apjxM^ain to either of the parties now en- ** ft'*^^^^ '^ war." Nothing more, I hope, need be lliid, to refute this weakcft pretence to a riglit of carrying treely the property of the enemies of Great Britain, . '-T (• , • ■ . .'I'M" >r't '.) , -^ As there is no article, therefore, which grants a right of this nature at prefcnt in force in any of thcfc commercial treaties, it is un- neceflkr}' to (licw that moll of the captures which England hath made of the veflels of neutral nations, ought not properly to be rc- fcireu to it, but may be juftified by another part of the faid treaties, where it is declared,* ** that all goods are contral , which are *' carried to places blockaded or invefted.' » r. r j^ Tlie debate here v.ould turn on the real ex- iftence of the blockade. To evince tliis, I i • Art.lxi. Treaty of 1674, between Great Britain and Holland. The fame article is fo\md in every other conuner« cial treaty, '^ J onjj /f f>» bat^a . ia>.''no jo-.?,mfKK: • ' might OK NEUTRAL NATIONS. 9« i> ight might (hew what opinion the Dutch had of & naval bk)ckade in 1630,* when they pre- tended to have blocked up all the coall of Flanders, and openly avowed that they would take and condemn all neutral ihips which hud the mod diiUnt appearance of being bound to the ports of that country. I might alio ihew their opinion of the fame in 1689, when they declared -f* publicly to the neutral nations, that they deligned to block up all the ports of France. I might obferve, that ^s the poiTef- fion of the principal avenues to a town confti- tutes a blockade by land ; and that it is not neceflary, for this purpofe, to have made a complete line of circumvallation ; fo by keep, ing great fquadrons of (hips of war cruidng conltantly before the ports of an enemy, by deftroying in this manner totally his trade, and preventing his fleets of war from ever venturing out, except now and then a (hip or two by ilealth, a blockade, ought certainly to be con(idered as completely edablilhcd by fea. I might farther prove the caufe from its ef- fects, and (hQW th^t the American i (lands at lead liave experienced all the conlequences of fuch a (ituation ; where want of communica* tion with the mother country, didrefs, and * Convention between England and Holland, 1689. ^ f PUort of June 16, 1630. ' i' 1 N 2 ' famine 9* LORD HAWKESBVRT famine, fully declare that they have been in- veiled. But as this topic may not perhaps re- late to the cafe of every capture, and depends on the particular ftate of a variety of fads, I ihall not dwell any longer upon it at prefent. The queftion hath here, I hope, fufiiciently been argued on principles which are plain and comprehend ve, on thofe equitable regulations which nature hath eflablifhed among nations, and on thofe particular contrads with which communities have bound themfelves. And as I before endeavoured to prove, that neutral nations had no right by the former of thefe obligations, to protedl the property of the enemy ; fo now it hath been (hewn by what policy the Dutch firft obtained this privilege ; by what treaties it hath iince been taken from them ; and by what condudt they have lately forfeited whatever might remain of this right. It hath alfo, I flatter myfelf, appeared with how little reafon other neutral powers, under colour of any article in their treaties of com- merce, have claimed the enjoyment of fuch a right. Upon the whole, therefore, I will now beg permiflion to conclude, that the naval power of England hath been conduced, during the prefent war, with no Icfs jufticc than fpirit ; that the faith of our fovereign is as fpbtlefs as his courage j apd tlvit the ho- nour of the country is unblemiihed. The OM WBUTRAL HATIOHS. 93 The The hdfis of juft complaint being thus rc« snoved, thofe idle clamours which have been founded upon it, by no means merit our at- tention ; to charge England with ambition, muft appear fo abfurd to all who underfland the nature of her government, that at the bar of reafon it ought to be treated rather as ca- lumny thaii accufation. PoiTeiled of eveiy bieding which civil government can pro- duce, (he is open to no temptation with which ambition might feduce her ; purfuits of that kind might poilibly operate to the deflrudtion of her conilitution, and her fyflem of happinefs might be fubverted by the aug- mentation of her power. It mud always be the interefl of England to protedt the jufl rights of commerce^ and to fupport thofe principles which promote the labours of man- kind, lince (he herfelf can only be great from the virtuous induftiy of her people. To ob- tain the largefl extent from the exertion of this, is the point to which all her policy (hould tend ; aiid if forfaking thefe maxims, (he (hould feek to enlarge her power by any adts of ambitious injuflice, may (he then, ■■ for the welfare of the human race, ceafe to be any longer great and powerful I Her courts of maritime jurifdidtion are more wifely cal- culated to pi^rve the freedom of navigation, S .' . than 94 CORD HAWKBSBURT than thofe of any other country ; as they are not fubje6l to the controul of her executive power, thepaflions of her princes or minillers can uever influence the decifions of them j and foreign, traders have in fevour of their property all the fccurity which the nature of the thing will adniit, the confciences of wife men de- termining upon matters of right, whom the threats of power cannot sifkCt, and who arc fet free^ as far as poflible, from all bias and partiality;;: and to the honour of the learned perfons whoat prefentperfide in thofe courts, one impartial teflimony ftiall here be produced in their favour. Though treaties have ex-- prefsly pointed out to all who may there think themfelves injured, a regular method of re- ' drefs before a fuperior tribunal, the mei-- ; chants and freighters of Holland have never , ventured as yet to bring to a hearing, or even to put into a way of trial anyone of the appeals which they have made from the determina- tions of thefe judges, giving thereby caufe to ' prellime that they made them vv'ith no other intention but to delay the execution of the ' Icntences.; and confcious of the invalidity of their rights, they ibave in this manner plainly ^ confefled the real* equity of thofe decifions which have been pafled upon them. That ^ amid tlw jconfulions-of i/rar, fdme irregularis. . -. ties ON NEUTRAL NATIONS. 95 even )peals lina- ife to other ){ the lity of lainly lifiohs That lulari* ties ties may be committed, is • a misfortune too true to be denied, but which tthe circum- ftances of the cafe render impoflible to be wholly prevented. They are the confe- quenccs of ^11 warg, not alone of the prefent. To dcftroy the trade of the enemy, it is he- ceffary to employ privateers, which cannot always be kept under thofe ftrii^ rules to which a more regular force is fubje^ ; thcfe maritime hulTars may fometimes exceed their cpmmiflions, and be guilty of diforders, the authors of which cannot always be punilhed, becaufe the jiature of the fadt renders the dif- coyery of them difficult. But can the criines of thefe bci imputed to.minifters, whofecars are always open to complaints, and wh6 la- bour, as much as pofTible, to redrefs them ? The privateers of England are already made fubjedl to every reftraint, which naval policy hath as yet invented to force them to conform to their duty. If, however, thefe ar found infufficient, and if any more fuccefsful means can be difcovered to prevent every unjufl de- predatipn, by which the evils of war may be diminifhed, confident I am» that Great Bri- tain will be the iirft to adopt them j let them be coi^iiflent only with the ufc of her naval power, and conformable to juilice, the Bri« tilh legiiluture ^yill ena^ fuch into a law, and the w ^^. ■V.,: t • tORD SAWKESBtTRT ^ the Britifh minidiy will ^ffehil ttioH fleadily to the execution of them. ^^■.^' ««J n Ml ^^^m ■ i -'-'But after all, the wifeft regulations on oc-» caiions like this cannot be expedied to rnfwer fully the end propofed ; the fyftem of huma- nity is no where perfed, but in itffpedt to na-» tions its weaknefs is moft apparent; the foft^ ties of natural afle^tioti among thefe hstvt little effe^, and no coercive bands of powef exifl to regulate and controul their paffions ; it is the virtue of government alone, on which the general profperity depends, and V treaties have no better fandion than what that ! virtue can gire them. Thefe were the prin-^ ' eipks from which I firft commenced my dif* ^ courfe ; by thefe the rulers of communities are inftru€led to amend, as far as poflible, by * their prudence, what nature hath left imper- fect Amtbition or avarice will augmemt the evil; moderation may prevent it. EverJ^ little inconvenience mvi9i be patiently ftifiered where a fuperior right makes it neceflary. The Ibve of our country Should never induce ■tts to- a€l contrary to that love which we ^^ought fo bear to mankind, fince the interei^s -of both, if they are rightly purfued^ will 1 'tlways be found confiiknt with each other. ,. ■■■ ■Iw-'^' ■ ^'^■' ■X.'V^f^y^^^"* F I NI wJ...< S. ^\^^ i^:k leadily '■i on 0C-* jfnfwcr huma» ; tona-* B Mm I hatvt ' power ilions; ie» oA s, and lat that te pruh* ny dii^ lunities ble, by imper- ugmeAlt Every RifFcred ceflary, induce ich we nteref)^ h wai >thcr..l' ••'■V. ■ \ n