THE SILESIAN LOAN AND FREDERICK THE GREAT BY THE RT. HON. SIR ERNEST SATOW G.C.M.G, LL.D., D.C.L. OXFORD AT THE CLARENDON PRESS 1915 OXFORD UNIVERSITY PRESS LONDON EDINBURGH GLASGOW NEW YORK TORONTO MELBOURNE BOMBAY HUMPHREY MILFORD M.A. PUBLISHER TO THE UNIVERSITY IDT) PREFACE IN the latter part of the War of the Austrian Succession a dispute arose between Frederick the Great and the British Government respecting the laws of war at sea, particularly those which govern the definition of contra- band and the right of capturing enemy goods in neutral ships. Neither party being willing to give way, Frederick at last announced, and acted on, his intention of retain- ing the final instalment of a debt due from him to English bondholders, in order to provide compensation for the owners of Prussian ships and cargoes, who he alleged had been unjustly treated by the English prize courts. He presented a long memorial embodying his views, to which the English Government replied, stating the law of nations on these subjects, and justifying their pro- cedure. They maintained also that Frederick had no right to withhold a debt due from him to private persons, by way of reprisals on the British Government. The debt, known as the Silesian Loan, had been originally contracted by the Emperor Charles VI, who paid neither the interest nor the instalments of principal stipulated in the contract. When Maria Theresa was induced by the British Government to make peace with Frederick and cede to him the province of Silesia which he had seized, he undertook to discharge the debt. For several years he paid little or nothing, and made repeated attempts to escape from his obligation. Finally, when it became evident to both parties that a close alliance between them was necessary, in order to preserve Germany as a whole and Hanover in particular from invasion by 2089G.1 iv PREFACE France, they entered into the Treaty of Westminster of January 1756, a few months before the commence- ment of the Seven Years' War. On this occasion the British Government, as an entirely separate transaction, agreed to pay Frederick a sum equal to about two-thirds of what he had claimed, on condition that he first removed the sequestration of the amount due to the bondholders. The affair aroused widespread interest at the time. The British Government communicated the documents to friendly Powers, and invited their intervention or assistance. France declined to put pressure on Frederick, and affected to take his side of the argument, although French prize-law was antagonistic to his pretensions. Holland tried to get something for herself out of the dispute. Austria replied that she was not on terms with Frederick, and wandered off into recriminations about the Barrier Treaty. Russia was willing to lend troops against Frederick, if the necessity arose, but demanded an exorbitant price for her services. The Russian Vice-Chancellor hoped incidentally to fill his pockets. Spain declared herself in sympathy with England, but expressed no opinion as to the merits of the controversy. This cause celebre du droit des gens is mentioned in various historical works and treatises on international law, but the whole facts have never been correctly stated. The Gentleman's Magazine started off with several inaccuracies, which were repeated by a succession of authors, until Carlyle took in hand to misrepresent them altogether. Opportunity has been taken in the following narrative to give some account of Legge's mission to Berlin in 1748 to propose a treaty of alliance, a transaction hardly mentioned by Carlyle. PREFACE v The documents which have been placed together in the Appendices have, with but one exception, never been printed before. They show how closely inter- national politics and international law are connected with each other. I take advantage of this occasion to acknowledge my indebtedness to Dr. Fruin and Mr. H. T. Colenbrander, of the Rijksarchief at the Hague, for valuable assistance in procuring copies of documents which were not other- wise available ; to Dr. Oppenheim, Whewell Professor of International Law at Cambridge, for the loan of books and helpful suggestions ; and to the Rev. Professor T. J. Lawrence, formerly lecturer on International Law at the Naval War College, to Mr. Hubert Hall and Mr. H. E. Headlam of the Public Record Office, and to the authorities of the MSS. department of the British Museum, for facilitating my access to papers in their charge ; to Miss E. Mees of the Hague, Mr. W. H. Powell, and Miss Alice J. Mayes for the care with which they have made transcripts for me ; to my friend Mr. A. Allan Shand, and lastly to Mr. Percy S. Allen for kindly undertaking to read the proofs of this volume. CONTENTS CHAP. PAGE I. ORIGIN OF THE SILESIAN DEBT i II. THE SILESIAN DEBT TAKEN OVER BY FREDERICK THE GREAT ....... 4 III. PRUSSIAN COMPLAINTS OF DEPREDATIONS COMMITTED BY ENGLISH PRIVATEERS . . . .12 IV. LEGGE'S MISSION TO BERLIN IN 1748, AND HIS UN- FAVOURABLE OPINION OF THE ENGLISH PRIVA- TEERS. SIR CHARLES HANBURY WILLIAMS'S MISSION IN 1750 ...... 24 V. KLINGGRAFF'S MISSION TO LONDON. SUBSEQUENT REPRESENTATIONS MADE THROUGH MICHELL . 34 VI. THE PRUSSIAN SECRETARY PRESENTS A PRO- MEMORIA ....... 43 VII. EXPOSITION DES MOTIFS FONDES SUR LE DROIT DES GENS UNIVERSELLEMENT RE9U, QUI ONT DETER- MINE LE Roi DE PRUSSE, SUR LES INSTANCES REITEREES DE SES SUJETS COMMERCANTS, ETC. . 47 VIII. NEWCASTLE'S REPLY TO MICHELL 73 IX. REPORT OF THE LAW OFFICERS OF THE CROWN . 77 X. SOME COMMENTS . . . . . .107 XI. PRIZE LAW IN THE FIRST HALF OF THE EIGHTEENTH CENTURY . . . . . . .112 XII. CAUSES OF ILL-FEELING BETWEEN GEORGE II AND FREDERICK THE GREAT. RESULT OF NEGOTIA- TIONS WITH SPAIN, AUSTRIA, AND RUSSIA FOLLOWING ON PRESENTATION OF THE PAPERS IN THE PRUSSIAN-ENGLISH CONTROVERSY XIII. NEGOTIATIONS WITH HOLLAND viii CONTENTS CHAP. PAGE XIV. ENGLISH APPLICATION TO THE COURT OF FRANCE FOR ' BONS OFFICES '. ATTEMPT OF FRENCH GOVERNMENT TO ASSUME THE PART OF AN ARBITRATOR. SUBSEQUENT ENDEAVOURS OF FREDERICK THE GREAT TO COME TO A DIRECT ARRANGEMENT WITH ENGLAND . . -153 XV. RECONCILIATION OF GEORGE II AND FREDERICK THE GREAT. NEGOTIATIONS THROUGH THE DUKE OF BRUNSWICK, AND THEN THROUGH MICHELL . 179 XVI. NEGOTIATIONS OF THE TREATY OF WESTMINSTER OF JANUARY 16, 1756, AND FINAL ARRANGEMENTS FOR PAYING OFF THE SlLESIAN LOAN AND COM- PENSATION TO PRUSSIA . . . .191 APPENDICES PAGE 1 . Licence to Count Kinsky ..... 200 2. A State of the Case of the Proprietors of the Silesia Loan ........ 201 3. Extract of the Contract for the Silesia Loan, dated January 7, 1734 [o.s.] ..... 202 4. Hyndford to Harrington, Breslau, November 12, N.S., 1741 . . 203 5. Preliminaries of Breslau, June n, 1742. Extract . 204 6. Treaty of Berlin, July 28, 1742. Extract . . 204 7. King of Prussia's Ratification. Extract . . . 205 8. Frederick's Acceptance of George II's Guarantee, October 13, 1746 ...... 205 9. Michell to Chesterfield, December 28/January 8, 1747/8 ........ 208 IOA. Andrie to Frederick, May 2 9/ June 9, 1744 . .211 i OB. Michell to Newcastle, March 247 April 4, 1747/8 . 212 11. Instructions to Legge, February 12, 1747/8 . -213 12. Additional and Secret Instructions to the same, same date . . . . . . . .215 13. Legge to Newcastle, Berlin, July 1/12, 1748 . .219 14. Bedford to Legge, Whitehall, June 24 . . .221 15. Legge to Bedford, Berlin, August 8/19 . . .221 1 6. Bedford to Legge, Whitehall, August 26 . . . 222 17. Bedford to Legge, Whitehall, September 2 . . 223 18. Legge to Newcastle, Berlin, September 3/14 . . 224 19. Legge to Newcastle, Berlin, September 17/28 . . 225 20. Bedford to Legge, Whitehall, September 27 . . 229 21. Legge to Bedford, Berlin, October 12/23 22 9 22. Bedford to Legge, Whitehall, October 11/22 . . 230 23. Legge to Bedford, Berlin, October 28/November 8 . 233 24. Newcastle to Legge, Hanover, October 16/27 2 35 Minutes of the Lord Justices, October 6 . . 236 25. Legge to Newcastle, Berlin, November 1/12 . . 237 26. Bedford to Legge, Whitehall, November 15 . . 238 27. Klinggraff, Proposition, September i, 1749 . . 239 28. Klinggraff, Eclaircissements, October 25 . . . 240 29. Proprietors to Newcastle, November i 242 x APPENDICES PAGE 30. Holdernesse to Albemarle, December 12, 1751 . . 243 31. Conversation between Newcastle and Michell, March ii, 1752 .... 32. Written reply given to Michell, March 1 1 . 33. ' Sentence ' of the Prussian Commission, i er juillet 34. Specification des Vaisseaux Prussiens pris 35. Specification des Vaisseaux Neutres pris . 36. Projet de Reponse au Me"moire remis par M. Michell . 37. Council at Newcastle House, February 6, 1753 . 38. Newcastle to Keith, Whitehall, February 13 39. Keith to Newcastle, Vienna, March i 40. Keith to Newcastle, Vienna, March 9 ... 41. Newcastle to Keith, Whitehall, March 9 . 42. Newcastle to Keith, Whitehall, March 30 . 43. Keith to Newcastle, Vienna, May 25 44. Newcastle to Keith, Whitehall, October 22 45. Newcastle to Guy Dickens, Whitehall, March 9 46. Newcastle to Guy Dickens (Very Secret), Whitehall, March 9 ........ 47. Guy Dickens to Newcastle, Moscow, July 1/12 . 48. Newcastle to Guy Dickens, Whitehall, August 24 49. Newcastle to Yorke, Whitehall, January 19 50. Yorke to Newcastle, Hague, January 23 . 51. Newcastle to Yorke, Whitehall, February 13 52. Yorke to Newcastle, Hague, February 20 . 53. Newcastle to Yorke, Whitehall, March 6 . 54. Newcastle to Yorke, Whitehall, April 17 . 55. Yorke to Newcastle, Hague, May 8 .... 56. Yorke to Newcastle, Hague, May 1 1 57. Newcastle to Yorke, Whitehall, May 18 . 58. Newcastle to Yorke, Whitehall, May 22 . 59. Yorke to Newcastle, Hague, May 29 ... 60. Newcastle to Yorke, Whitehall, June i . 61. Yorke to Newcastle, Hague, June 5 . 62. Newcastle to Yorke, Whitehall, June 8 . 63. Yorke to Newcastle, Hague, June 12 64. Holdernesse to Albemarle, Whitehall, February 8 65. Holdernesse to Albemarle, Whitehall, February 15 66. Albemarle to Holdernesse, Paris, February 21 . 67. Albemarle to Holdernesse, Paris, February 28 . 68. Holdernesse to Albemarle, Whitehall, March i . 69. Holdernesse to Albemarle, Whitehall, March 14 . 70. Mirepoix's Note Verbale .... APPENDICES xi PAGE 71. Holdernesse to Albemarle, Whitehall, April 2, 1753 . 332 72. Albemarle to Holdernesse, Paris, April 4 . . -337 73. Albemarle to Holdernesse, Paris, April 1 1 . -337 74. Albemarle to Holdernesse, Paris, April 18 . . 341 75. Me'moire concernant les Prises sur mer, 20 avril . 342 76. Holdernesse to Albemarle, Arlington Street, April 21 367 77. Albemarle to Holdernesse, Paris, April 25 . . . 368 78. Holdernesse to Albemarle, Whitehall, April 26 . . 369 79. Holdernesse to Albemarle, Whitehall, May 3 . . 370 80. Albemarle to Holdernesse, Paris, May 9 . .372 81. Albemarle to Holdernesse, Paris, May 1 6 . . . 374 82. Holdernesse to Keene, Whitehall, May 26 . . 374 83. Holdernesse to Albemarle, Whitehall, May 24 . . 376 84. Albemarle to Holdernesse, Paris, May 30 . . . 377 85. Albemarle to Holdernesse, Paris, June 6 . . . 378 86. Holdernesse to Albemarle, Whitehall, June 7 . . 379 87. Albemarle to Holdernesse, Paris, June 13 . . . 380 88. Holdernesse to Albemarle, Whitehall, June 21 . . 382 89. Albemarle to Holdernesse, Paris, June 27 . . . 383 90. Newcastle to Albemarle, Whitehall, July 5 . . 384 91. Newcastle to Albemarle, Whitehall, July 5 . . 387 92. Albemarle to Newcastle, Paris, July n . . . 388 93. Newcastle to Albemarle, Whitehall, July 1 2 . . 389 94. Albemarle to Newcastle, Compidgne, July 18 . . 390 95. Albemarle to Newcastle, Compiegne, July 21 . 392 96. Holdernesse to Albemarle, Whitehall, July 26 . . 393 97. Newcastle's Note Verbale for Mirepoix, July 26 . . 394 98. Holdernesse to Albemarle, Whitehall, August 2 . . 395 99. Instruction (in French) for Albemarle, August 2 . 396 100. Albemarle to Holdernesse, Paris, August 15 . . 398 101. Michell to Frederick, Londres, 10 aout . . . 400 1 02. Holdernesse to Albemarle, Whitehall, August 24 .401 Enclosure : Proposition faite par Mirepoix, 1 5 aout 402 103. Albemarle to Holdernesse, Paris, August 29 . . 402 104. Holdernesse to Albemarle, Whitehall, September 6 . 404 105. Albemarle to Holdernesse, Paris, September 12 . . 405 106. Albemarle to Holdernesse, Fontainebleau, November 13 406 107. Holdernesse to Albemarle, Whitehall, November 29 . 407 1 08. Albemarle to Holdernesse, Paris, December 5 . . 407 109. Michell to Frederick, P.S., September 19, 1755 . . 408 no. Frederick to Michell, Berlin, 23 decembre . . 409 in. Newcastle to Miinchhausen, December 23 . . . 409 112. Miinchhausen to Newcastle, December 30 . . .410 xii APPENDICES PAGE 113. Munchhausen to Newcastle, December 30, 1755. . 411 114. Holdernesse to Hanbury Williams, Whitehall, Decem- ber 26 . . . . . . . . .412 115. Convention of Westminster, January 16, 1756 . . 416 116. Declaration, January 16 . . . . . . 418 117. Gazette de Leyde, January 27 ..... 419 1 1 8. Inadequate or erroneous accounts by various writers . 420 INDEX . 431 PRINTED AUTHORITIES QUOTED BYNKERSHOEK, Quaestionum Publici Juris Libri Duo. Lugd. Bat., 1737- COXE, WM. Memoirs of the Administration of Henry Pelham. London, 1826. JENKINSON, HON. CHAS. A Collection of all the Treaties, &-c. 3 vols. London, 1785. KOSER, R. Preussische Staatsschriften, vol. ii. Berlin. CH. DE MARTENS. Causes celebres du Droit des Gens, redigees par le Baron Charles de Martens. Leipzig, 1827, vol. ii. F. DE MARTENS. Recueil des Traites et Conventions conclus par la Russie avec les Puissances Etrangeres. T. ix (x), St. Petersbourg, 1892. MOLLOY, De Jure Maritime et Navali. 3rd edition. By Charles Molloy, 1682. NYS. Le Droit international. Brussels and Paris, 1904-5-6. Politische Correspondenz Friedrichs des Grossen, vols. i-xiii. PRATT, Law of Contraband of War. By Frederic Thomas Pratt, 1856. REDDIE. Researches, Historical arid Critical, in Maritime Inter- national Law. By James Reddie, Esq., 1844. VALIN. Nouveau commentaire sur I'ordonnance de la marine du mois d'aout 1681. La Rochelle, 1766. WADDINGTON. Louis XV et le renversement des alliances. Paris, 1896. WARD, ROBT. A Treatise of the Relative Rights and Duties of Belligerent and Neutral Powers in Maritime Affairs. London, 1801. CHAPTER I ORIGIN OF THE SILESIAN DEBT DURING the war of the Polish Succession waged by France against Austria, October 1733 to October 1735, the Emperor Charles VI, finding himself short of money for the payment of his troops, applied to George II for permission to borrow 300,000 from British subjects. Licence to that effect was accordingly granted, August 6, Licence I 734 to Count Kinsky, 1 the Emperor's Ambassador to U p TC Great Britain. The sum eventually borrowed was 300,000. 250,000, at seven per cent interest, upon a mortgage of Condi- the Emperor's revenues in the Duchy of Silesia, 2 secured tLTioan. further by the Emperor's bond together with the security of the Estates of Silesia for the repayment of the principal sum. A contract 3 was signed on January 7/18, 1734/5, between Count Kinsky on the one side, and Horatio Townsend, Sir Theodore Janssen, Sir John Heathcote, Samuel Holden, and Thomas Gibson on the other, for the loan of 250,000, interest at the rate of seven per cent, payable half-yearly, beginning at the end of six months from the day on which the subscription should be opened, which date was January 10, 1734, o. s. In the year 1740/1 repayment of the principal was to begin, i. e. with Repay- the payment of interest due on January 10, 1740/1, ten E per cent of the principal was to be paid off, and the like amount in 1741 and 1742 ; in 1743 and 1744 respectively twenty per cent was to be paid off, and the remaining thirty per cent in 1745. These dates are all of them Old Style. Thus the whole debt was to be repaid by January 10, 1746, N. s. It appears also that the Trustees for the bondholders were entitled to a commission of one per cent one per cent. 1 App. i. 2 App. 2. 3 App. 3. 1783 B 2 ORIGIN OF THE SILESIAN DEBT on the principal. 1 No interest was ever paid during the lifetime of the Emperor, who died October 20, 1740, some months before the first instalment of principal became due. NOTE It will be convenient to show what were the payments made by Frederick at various times : Principal. Interest, 1743 70,000 14,700 1749 nil 37,800* 1750 nil 88, 200 f 1751 July 90,000 12,600 J 1751 December 45,000 2,625 [Koser, Preussische Staatsschriften, ii. 496] leaving ^45,000 still due, on which, in 1752, he placed an embargo pending the settlement of his dispute with England respecting the Prussian ships and cargoes captured between the French declaration of war in March 1744, and the peace of Aix-la-Chapelle in 1748. * Making with the amount paid in 1743 three years' interest on ^250,000. t Seven years' interest on ^180,000. J One year's interest on ^180,000. This amounts to five months' interest. Six months' interest on ^90,000 would have been ^3,150. PAYMENTS OF PRINCIPAL AND INTEREST WHICH SHOULD HAVE BEEN MADE ACCORDING TO THE CONTRACT ENTERED INTO BY COUNT KlNSKY ON BEHALF OF THE EMPEROR CHARLES VI. Principal. Interest (dates N.S.). July io, 1735 8,750 January io, 1736 8,750 July io, 1736 8,750 January io, 1737 8,750 July io, 1737 8,750 January io, 1738 8,750 July io, 1738 8,750 January io, 1739 8,750 July io, 1739 8,750 January io, 1740 8,750 July io, 1740 8,750 January io, 1741 25,000 January io, 1741 8,750 July io, 1741 7,875 1 Politische Correspondenz Friedrichs des Grossen, xii. 266. ORIGIN OF THE SILESIAN DEBT Principal. Interest (dates N. s.). I January 10, 1742 25,000 January 10, 1742 7.875 July 10, 1742 7,000 January 10, 1743 25,000 January 10, 1743 7,000 July 10, 1743 6,125 January 10, 1744 50,000 January 10, 1744 6,125 July io, 1744 4,375 January io, 1745 50,000 January 10, 1745 4,375 July io, 1745 2,625 January io, 1746 75,000 January io, 1746 2,625; B2 CHAPTER II THE SILESIAN DEBT TAKEN OVER BY FREDERICK THE GREAT Hynd- AFTER Frederick had invaded Silesia and made himself mission master of Breslau, George II sent Lord Hyndford on to Frede- a mission to him, the object of which was to bring about an 1741. accommodation between him and the Queen of Hungary. On May 7, 1741, 1 he had an audience of Frederick at the camp of Mollwitz to present his credentials. Hyndford had no doubt been instructed to mention the interests of the bondholders of the Silesian loan, but his report to Harrington dated May 13 contains no reference to this subject. In the course of the conversation which took Frede- place Frederick said he remembered to have promised miseAo" to P rov ide for the capital and interest of the debt charged pay prin- on Silesia, but it would be reasonable that the burden interest? should be shared by the House of Austria, the latter bearing so much of the debt as would be in proportion to the portion of Silesia which Austria retained. 2 Draft On October 9 an agreement was signed by Hyndford contain- a * Klein-Schnellendorf in Frederick's presence, recording ing article the terms secretly agreed upon for the cession of Lower taking Silesia, including the town of Neisse, 3 and on November 12, t. e rt n for N>s -> 4 Hyndford reports the receipt from Robinson at the debt. Pressburg of a draft treaty between Maria Theresa and Frederick, consisting mainly of the articles of Klein- Schnellendorf, with the addition of articles concerning Frederick's engagements for the debts on Silesia, the maintenance of the Roman Catholic religion, &c. Frederick In March or April of I742, 5 in a memorandum on the desires to shirk. ' Hyndford to Harrington, May 13, N.S., 1741, Record Office, S.P. For., Prussia, vol. 50. 2 Pol. Cor. i. 239. Precis de 1'Audience, drawn up by Podewils. 3 Ibid. i. 371. * App. 4. Record Office, S. P. For., Prussia, vol. 51. 8 Pol. Cor. ii. 99. reasons which would impel him to remain allied with France, rather than to make peace with Maria Theresa (on the pretext that Austria by divulging the articles of Klein-Schnellendorf had broken faith, he had renewed the war), Frederick notes that in the former case he would not have to pay to the Dutch and English the sums they had advanced to the deceased Emperor on the security of Silesia. A dispatch from Carteret to Hyndford of March 30, 1742, speaks of sending him ' the paper you desired from the proprietors of the Silesian loan, whose interests the King has recommended to you, and I should be extremely glad to hear that it has been in your power to do them an d the English counter-declaration followed on France March 31. Frederick lost no time in instructing Andrie England, on April 14 to inquire of the English ministry what precisely passed with them for contraband of war, and whether grain, timber, planks, hemp, linseed, textiles, &c., were included, in order that he might warn his subjects and give them the necessary instructions as to the manner in which they should carry on their trade. 1 Carteret's Andrie replied in a dispatch of May 20,/June 9, 1744, as^con- th at besides what he had said in the postscript of April 29, traband, he had seen Carteret again that morning, who had reiter- treat^ Ua ated to him that the articles mentioned in Frederick's mentpf instructions, such as timber and other materials serving shipping, for the construction of ships, cordage, sails, hemp, flax [liri], tar, were not regarded as contraband. 2 That the vessels of Prussian subjects and the Prussian flag would be carefully respected on the part of England, and that there was no intention of troubling them in any way in their trade, provided they were not found to be carrying to the enemies of England the munitions of war specified in all the treaties between the maritime Powers, 3 or provisions to a place which might be besieged or blockaded by the English, that in other respects (d'ailleurs) the freedom of trade for neutral Powers was the same and on the same footing as in time of peace, that he had explained 1 Preussische Staatsschriften, ii. 452. " 5. P. For., Foreign Ministers in England, vol. 48 ; App. 10. Copy enclosed in Michell's note of March 24/April 4, 1747/8, to Newcastle in the same volume. Text differs from that quoted in Preuss. Staats- schriften, ii. 435. 3 This phrase commonly meant England and Holland. PRUSSIAN COMPLAINTS OF PRIVATEERS 13 himself in this way to the other neutral maritime Powers, such as Sweden and Denmark, and he repeated it again, requesting the King of Prussia to be convinced that it would never be the intention of England to trouble the trade of Prussian subjects in any manner whatsoever ; he hoped that, as it was not the usage in England under such circumstances to give declarations in writing to a neutral Power, Frederick would be satisfied with what declaration he had just made by word of mouth in the name of the King, his master. In forwarding this document to the Duke of Newcastle in April 1748, Michell calls it ' copie d'une Declaration que Milord Granville 1 a donnee a Mr. Andrie de la part de Sa Majeste le Roy de la Grande-Bretagne, au com- mencement de la presente guerre avec la France '. Neither the instructions to Andrie nor his reports of May 18/29, nor the preceding document are given in the Politische Correspondenz. The Exposition des motifs of December 1752 2 states that on the first-mentioned occa- sion Carteret said that the Prussian flag would be equally respected with that of the other Powers 3 allied with England, with the sole exception of vessels which carried munitions of war to the enemies of the British nation. There is no document at the Record Office to show what Carteret said to Andrie. As the discussion was viva voce it is extremely unlikely that any note was taken by Carteret or by a private secretary. No doubt can be raised as to Andrie's having exactly understood what was said to him by Carteret, who was an accomplished linguist, and spoke German fluently. At the Record Office is preserved a series of written c p m - . _ . . . , . plaints of complaints formulated by the Prussian diplomatic repre- illegal sentatives in London, but it is incomplete, for it contains Prussian 1 Carteret became Lord Granville October 18, 1744. P ^y ^ 2 Preussische Staatsschriften, ii. 453. See also Chap. VII. priva- 3 Puissances allites would be more exactly rendered by ' friendly teers. Powers '. 14 PRUSSIAN COMPLAINTS OF DEPREDATIONS only sixteen cases out of the whole number put forward later, in I752. 1 No. i. The first of these, dated January 13/24, 1745/6, hgkeit. concerns a cargo of planks, loaded on board the Dutch ship Heerligkeit, of Kuinder, taken on her voyage from Stettin to Lorient nearly two months earlier, by a priva- teer. It appears from a later letter of May 27, from Andrie" to Lord Harrington, that it had been decided to treat this cargo as conditional contraband and to buy the planks for the Admiralty, and that was accepted as a settlement of the case. The No. 2. The Dorothee Sophie of Stettin. Complaint dated February 25/March 8, 1745/6. Andrie calls it ' un second navire appartenant aux Habitants de la Ville de Stettin ', but there is no trace in any document of a first prize under the Prussian flag. He states that she had carried timber to Bordeaux, and at the time of her capture was on her way to Rotterdam, to load a cargo for the Baltic. From his observation that ' these circumstances sufficiently denote that there was no intention of entering any French port, whether Dunkirk, Calais, or elsewhere, as the English privateer owners perhaps desired to impute ', it appears that the prohibition against carrying on coast- ing trade between the enemy's ports, afterwards known as the ' rule of the war of 1756 ' was a recognized thing. [This case is No. 14 in the list of claims in respect of Prussian ships, appended to the Memorial of November 23, 1752 (see Chapter VI), and damages were claimed for her detention from December 10, 1745, till August 12, 1746. The list of Prussian ships appended to the Report of the Law Officers enclosed in Newcastle's reply of February 8, I 753. to Michell shows that this ship was restored with freight, according to the Bills of Lading, for goods which were found to be the property of the enemy, and con- demned as prize. As the capture was justified by the 1 S. P. For., Foreign Ministers in England, vol. 48. COMMITTED BY ENGLISH PRIVATEERS 15 fact that she was carrying enemy goods, damages for detention were not due.] No. 3. Complaint, dated December 3/14, 1746, regarding The the Demoiselle Elisabeth of Wolgast, from Bordeaux, 2//7'~ anchored at the Downs in stress of weather, and proceed- Elisabeth. ing to sea again, was boarded on August 21 by an English privateer, which carried off two hogsheads of wine belong- ing to the cargo, two half-ankers of brandy, one and a half ankers of wine, an anker of vinegar, several utensils belonging to the ship, and even clothing of the crew. It had been found impossible to ascertain the name of the owner of the privateer (armateur), but information was furnished by which he could have been identified. No further mention of this case is to be found, and it is not included in either of the lists referred to. No. 4. Complaint, dated December 3/14, 1746, the Anne The Anne Elisabeth of Hamburg, master Henry Christian Man, cargo Ehsabeth - Silesian cloth, captured and carried into Dover by a privateer, name and date not mentioned. [This is No. 5 of the list of neutral ships appended to the Prussian memorial. The English answer states that part of the cargo was condemned for want of affidavits as to the property.] No. 5. Complaint, dated December 3/14, 1746, respecting The the ship Frederick II of Konigsberg, captured November 5/16, on a voyage from Konigsberg to Bordeaux, by the privateer Eagle, Captain Bazely, and carried into Dover, cargo consisting of hemp and staves. [This is No. 10 of the list of Prussian ships, claim for detention from Novem- ber 16, 1746, till July 17, 1747. In the Law Officers' list she comes under the heading of cargo, or part of it, con- demned as contraband, and not alleged to have been Prussian property, and therefore certainly prize of war. Case similar to No. 2.] No. 6. Complaint, dated July 6, 1747, respecting the Dutch Dutch ship Les Deux Sceurs, master Lammert Gosser, skipj.es loaded at Riigenwalde in Pomerania, with planks and Samrs. 16 PRUSSIAN COMPLAINTS OF DEPREDATIONS staves for the account of Greffe of Stettin, a Prussian subject, captured May 12, 1747, by the sloop of war Otter, Captain Cust, on a voyage to Lorient. [No further men- tion of this case in either of the lists referred to.] The Twee No. 7. Complaint, dated August 15/26, 1747, respecting %ers e ~ t ^ ie P russ i an ship Twee Gebroeders of Embden, master Augustinus Augustinus, chartered to Willem van Brienen . of Amsterdam, and loaded with free goods. [This is No. 15 of the Prussian list, claim for detention from July 26, 1747, till January 27, 1748. The Law Officers' list shows that she was restored with freight for goods found to be the property of the enemy, and condemned as prize ; similar case to No. 2.] TheEen- No. 8. Complaint, dated August 15/26, 1747, Prussian ship Eendragt of Embden, loaded at Amsterdam for Bor- deaux, with goods declared not to include any contraband, captured off Calais, July 24, by the man-of-war Grey- hound, Captain Noel, and taken into Dover. The manifest having been carried off, no details of the cargo could be given. [No further mention of this case in either of the lists referred to.] The No. 9. Complaint, respecting the Prussian ship Goude A rend (or Aigle d'Or], master Onne Arends, of the Island of Juist, off Oost Frieslande, loaded in June at Rotterdam with free goods for Dunkirk, captured July 24, off Blanken- berghe in Flanders, by the privateer Prince of Orange, and taken into Dover. [No. n of the Prussian list. She was restored with freight for such goods as were found to be the property of the enemy, and condemned as prize. See Law Officers' list.] The No. 10. Complaint, dated September 14/25, 1747, ' Prussian ship Les Jumeaux (The Twins], master Kruth, captured and detained at Plymouth ; this complaint had originally been laid August 8/19, the ship's name .being erroneously given as the Rosina. [In the Prussian list she figures as No. 2, on a voyage from Stettin to Lorient or Brest, and the claim was for ten months' COMMITTED BY ENGLISH PRIVATEERS 17 detention, from August 12, 1747. In the Law Officers' list she is classified as a case where the cargo, or part of it, was condemned as contraband, and not now alleged to have been Prussian property, and therefore certainly prize of war : a similar case to No. 5.] No. ii. Complaint, dated February 1747/8, respecting The the Prussian ship Soleil dore (or d'Or), master Jacob s d ^ Redder (Ridder), loaded with rye for Bordeaux, sailed from Konigsberg October 11/22, 1747, put into Ramsgate in stress of weather, where she was boarded by the crew of the privateer Sackville, Captain Peter Wood, who took the master and quarter-master with the ship's papers to Deal and Dover, where they were examined. [No. 8 of the Prussian list, captured on her way from Konigsberg to Bordeaux, and detained five months, from December 27. In the Law Officers' list she is placed in the same category with case No. 5.] No. 12. Complaint, presented at the same time as the The Drie foregoing, in respect of a Dutch ship, the Drie Gesusters, of Lemmer in Friesland, chartered at Amsterdam in September 1746 for the account of Greffe of Stettin, a Prussian subject, to proceed to Riigenwalde in Pomerania, to load timber for Brest or Lorient. May 26, 1747, she was taken off Ushant by the war-ship Otter, Captain Cust. The ship was released. On behalf of the cargo it was alleged that by Article 4 of the treaty of 1674, timber such as this cargo consisted of could be conveyed by the subjects of Their High Mightinesses even to enemy ports; that the ship had not on board any of the goods enumer- ated in Article 3, where it was declared that those alone should be regarded as contraband, and by Article 8 of the said treaty it was expressly declared that everything found on board of ships of the subjects of Their High Mightinesses (excepting only what was declared to be contraband by Article 3) should be held to be free. Even if the cargo had belonged to enemies, it would be free according to that treaty. It must be so all the more as 1783 C i8 PRUSSIAN COMPLAINTS OF DEPREDATIONS it belonged to a Prussian subject. The judge, however, had condemned the cargo, on the following grounds : although it is permitted by the treaty of 1674 to a Dutch ship to carry such a cargo from a Dutch port to an enemy port, a Dutch ship is not at liberty to go and take such a cargo in a Prussian port to carry it on Prussian account into a French port, and as a Prussian vessel loaded with timber for Brest or Lorient would have been subject to confiscation, because it did not enjoy the privilege of a Dutch ship, in the same way a Dutch ship could not im- part privilege to a cargo like that, which by His Majesty's instructions is declared contraband as being destined for the enemy, for if that were permitted and could be done, all the other neutral Powers who cannot furnish munitions of war, &c., to the enemy by their own ships, would be able to make use of Dutch ships to carry on a trade useful to the enemy and prejudicial to England, and for these reasons and divers others, and not finding that this case was within the treaty, nor accorded with the spirit and intention of the said treaty, he concludes that these goods are liable to confiscation, and consequently he con- demns them as good prize, &c. He dispensed the captor from paying the freight which the owners of the ship had lost, besides the considerable costs to which they had been put. They have strongly murmured, but have not considered it advisable to appeal, because the object was not considerable enough to bear the exorbitant costs which must be incurred in the appeal, but they flatter themselves that if the cargo is restored, the captor will also be condemned to pay the freight and the costs he has occasioned. Greffe has appealed to the superior court of commissioners appointed to examine and decide in last resort the prize cases appealed, and he asks that he may be paid for his cargo of wood at the price for which he had sold it for delivery at Lorient, in accordance with the invoice (facture), and that he will be repaid the costs of his claim in the Admiralty Court and those he is obliged COMMITTED BY ENGLISH PRIVATEERS 19 to incur in the superior court. [There is no further men- tion of this case in either list.] No. 13. Complaint, laid February 25, 1747/8, respecting The Anne the Anne and Elizabeth of Stettin, loaded with wine on ? h Ehza ' Dutch account, from Bordeaux to Amsterdam, taken by the privateer Salamander, and taken into Rye. [This is No. 3 of the Prussian list. The Law Officers' list shows that the ship and goods were restored, with all costs and damages attending the capture, amounting to 2,801 I2s. id.] No. 14. Complaint, laid the same date, in respect of the The Fran Frau Juliana of Stettin, loaded with wine on Dutch J liliana - account, from Bordeaux to Amsterdam, taken by the privateer Prince of Orange, and taken into Dover. [No. 5 of the Prussian list. The claim was for five months' detention of the ship. The Law Officers' list reports that the order of the Court was to restore ship and cargo, paying costs. It was one of five cases in which it either appeared that the ship had not the usual evidence of pro- perty, according to the custom of the sea ; or from the ship's papers or examination of the crew there appeared just reason to presume the cargo to belong to the enemy, and the neutral claimant declined proving his property by strict legal evidence ; but obtained restitution on the faith of his own affidavit ; and in these cases Courts of Admiralty had always made the like decrees.] It is not surprising that Frederick felt he had reason to Chester- be dissatisfied with the treatment of Prussian ships and cargoes by the navy and privateers of Great Britain, and as to that he instructed Andrie, and afterwards the secretary ment O f Michell, who took over charge of the Prussian Legation P russ ? an shipping. on August 18, 1747, to remind the British Government of the promises given by Carteret at the beginning of the war. Chesterfield renewed that verbal undertaking, 1 to the effect that Prussian subjects could carry into France non-contraband goods as defined by commercial treaties, provided they did this on their own account, and not for 1 Preussische Staatsschriften, ii. 437. Pol. Cor. v. 547. C2 20 PRUSSIAN COMPLAINTS OF DEPREDATIONS that of French traders. Not content, however, with this, Frederick instructed Michell to ask for a declaration in writing. 1 Micheii's Accordingly, Michell addressed a Note to Chesterfield Chester on December 28/January 7, I747/8, 2 stating that after the field. verbal assurances given by H.B.M. Minister (Carteret) at the commencement of the war, the King of Prussia had hoped that his flag would be respected, and that he would not find himself obliged to take other steps to this end, as long as the ships of his subjects were not loaded except with goods allowed by the treaties of navigation. But notwithstanding the assurances so often reiterated, and although his subjects had never departed from the rules of lawful commerce for neutral nations, the English marine had not desisted from unjustly seizing Prussian ships, of which several were still detained in ports of the kingdom. In order to obviate these inconveniences, to bridle the licence of the privateers, and to prevent them from committing outrages against the subjects of a neutral Power, the King had ordered him to make proper remon- strances, so that orders might be given, under pain of severe penalties, to the commanders of English armed ships to respect his flag, and to leave navigation free to the ships of his subjects, without troubling or molesting them under the pretext of visit, and to content themselves with the simple exhibition of the passes and other papers which the custom of the sea authorizes the commanders of vessels of war and privateers to have shown to them. In order to better reassure the trading subjects of the King against the fears with which past experience must naturally inspire them, that it may please his Majesty the King of Great Britain to declare formally and in writing that it is not his intention to hinder nor interrupt the navigation of Prussian subjects to French or Spanish ports, but that they will be permitted to carry on their trade 1 Pol, Cor. v. 555. 2 S. P. For., Foreign Ministers in England, vol. 48, App. 9. COMMITTED BY ENGLISH PRIVATEERS 21 thither on the same footing on which the law of nations and the customs of the sea authorize neutral nations to exercise it ; that in order to ascertain the state of their cargo, the distinction between goods be observed exactly which was established by Articles 19 and 20 of the com- mercial treaty concluded in April 1713, between England and France, and by Articles 15, 16, and 17 of the com- mercial treaty of 1739, between France and Holland, 1 and that only those goods be reputed contraband which are expressly declared to be such by the Articles above mentioned. So that as soon as the captains and masters of ships flying his Majesty's flag and provided with his passes cause it to appear by their papers that they are not loaded with such goods, they may continue their voyage without any hindrance whatsoever, and without forcing them to turn aside or carrying them into English ports, or obliging them to anchor there on the pretext of further visit or other proceeding of that kind. As what has now been represented to his lordship on the part of the King his master is in exact conformity with the law of nations and with the privileges to which the subjects of neutral and friendly nations are entitled, his Majesty expects that Great Britain will not refuse to him a written declaration based on grounds so just as those above de- tailed ; and further that prompt redress will be accorded to the just complaints of his Majesty's subjects respecting the outrages which have been inflicted on them by the English marine, by procuring for them equitable compen- sation for the losses, expenses, and damages which the unjust detention or confiscation of their ships and goods may have caused. Chesterfield's reply of January 5, 1747, 2 o. s. (January Chester - 1 See text of these articles in a foot-note to App. 9. reply. 2 Preussische Staatsschriften, 11.438, foot-note. Full text in The Duke of Newcastle's Letter, &c., London, Owen, 1753, 4to, p. 30; 8vo. p. 21, English translation. Collectanea Jwidica, Lond. 1791, vol. i, p. 129. Cabinet Library of Scarce and Celebrated Tracts, vol. i, International Law, 1837, P- 68. See also p. 91 . 22 PRUSSIAN COMPLAINTS OF DEPREDATIONS 16, 1748, N. s.), contained a passage reminding Frederick that no treaty had ever existed between England and Prussia, regulating the manner in which their commerce was to be carried on, such as actually subsisted between Great Britain and certain neutral States, but this fact had never prevented Prussian subjects being favoured by England in regard to their navigation as much as other neutral nations, and that being the case, it could not be supposed that Frederick had an idea of demanding dis- tinctions, much less preferences, in favour of his subjects. ^kis was considered ' extremely vague and unsatisfac- dissatis- tory '/ and Frederick gave instructions to reply that he on ' could not allow any wider definition of contraband than powder, arms, cannon and cannon-balls, 2 and to let Chesterfield clearly understand that recourse would be had to the balance due on the Silesian loan. 3 Michell spoke to Chesterfield, 4 who seems to have expressed a hope that the forthcoming pro-memorid would be framed in such a tone as to be acceptable, but on February 6, o. s., he left office, and was succeeded by Newcastle. 5 Frederick then gave orders to refrain from its presentation, until he should learn what Legge, who had been appointed envoy and minister to the Court of Berlin, might have to say to Kiing- him on the subject. In the meantime, he resolved to send be sent to Klinggraff to England on a special mission with a four- England. f^d object ; first, of getting the interest on the loan reduced ; second, to maintain the right of Prussian subjects to navigate freely, unhindered by English priva- teers ; third, if, as he suspected, George II aimed at the secularization and acquisition of the bishoprics of Osna- briick and Hildesheim, to get him in return to take the payment of the Silesian loan on himself ; fourth, if the 1 Pol. Cor. vi. 22. 2 Ibid. 21, 25. 3 See above, p. 2. 4 Pol. Cor. vi. 53. 5 Letters, ed. Lord Mahon, iii. 251. Newcastle handed over the Secretaryship of State for the Southern Department to Bedford, taking the Northern Department himself. COMMITTED BY ENGLISH PRIVATEERS 23 English ministry proposed to conclude a close alliance with him as soon as the war with France came to an end, to reply that he would enter into such an alliance with much pleasure. 1 Klinggraff was in the first place sent to Hanover at the end of May or beginning of June, as George II was expected there, specially to ascertain what prospect there was of an alliance. Newcastle got there about June 25. When it finally proved that the influence of the Hanoverian ministers had interposed an insur- mountable obstacle to the realization of this idea, Kling- graff was instructed to continue his journey to London, where he seems to have arrived between November 22 and December 5. Michell, who had been left in charge in London when Andrie came away, was instructed from time to time to press the demand for justice to Prussian ship-owners and merchants. 2 He reported November 22, Bedford's I748, 3 that Bedford (in charge of the Northern Depart- to^atti- ment as well as his own, during Newcastle's absence in tude. Hanover with the King) had deferred the discussion of the question until Newcastle's return, but had added that if the matter depended on him alone, he would be willing tha,t the British Government should pay the losses of Prussian subjects rather than oblige Frederick to put his resolve into execution, but he was afraid that the King and Newcastle were not of the same opinion, because then the other neutral Powers would make the same demand in virtue of their treaties with the English crown ; whereas Frederick had only a [verbal] declaration of the King and his ministers to go upon, which according to the constitution was not enough. Frederick ordered instruc- tions to be sent to Klinggraff to the effect that no one could blame him for compensating his subjects, who had suffered at the hands of private individuals, at the cost of other English subjects. 1 Pol. Cor. vi. 58. * Ibid. 64, 78, 187, 194, 245, 285. 3 Ibid. 305. CHAPTER IV Legge's instruc- tions to propose an alliance. To urge payment of the Silesian debt. LEGGE'S MISSION TO BERLIN IN 1748, AND HIS UNFAVOUR- ABLE OPINION OF THE ENGLISH PRIVATEERS. SIR CHARLES HANBURY WILLIAMS'S MISSION IN 1750 As noted in the last chapter, Legge had been appointed envoy extraordinary and minister plenipotentiary to Berlin, where he arrived on April 27. His instructions, dated February 12, I747/8, 1 were in essence to assure Frederick the Great that as King George had ' nothing more sincerely at heart than to cultivate the most sincere and intimate union with him for the reciprocal advantage of our two Royal Familys and for the general good of Europe, and that of the Protestant Cause in particular, so We are desirous to enter with Him into the closest Concert of Measures, for the obtaining the desireable Ends abovementioned '. This subject was further deve- loped in the secret instructions to Legge of the same date. 2 Frederick, as we have seen, was very willing to conclude an alliance with England. In vol. vi of the Politische Correspondenz 3 there are numerous references to this subject, and there is an interesting report from Legge to Newcastle 4 of July 1/12 which throws a sidelight on the King of Prussia's inclinations. The discussions seem to have gone on satisfactorily for some months, until Legge went to Hanover for a few days at the end of July, and after his return the negotiations were silently dropped. The other important point in his written instructions was the repayment of the Silesian loan, which had suffered interruption since 1743. He probably had also received verbal instructions to discuss the question of the captured Prussian ships, for in the course of a long report to New- 1 App. ii. o App. 12. 3 pp. 100, 104, 108, 112, 113, 122, 126, 130, 138, 149, 162, 170, 186, 193- 4 App. 13. LEGGE'S MISSION TO BERLIN 25 castle of April 30 he says : ' I had almost forgotten to acquaint your Grace that in all the opportunity I had of talking with the King of Prussia, he never once men- tioned the taking and detaining of his ships ; tho' I was told by his ministers here, that a great part of the conver- sation would turn upon that subject ; and I am apt to think great pains have been taken by them and their friends in France to make the matter, if possible, a cause of quarrel between Great Britain and Prussia. . . . Before I set out for Potsdam Mons r Mardefeld told me he had the King's orders to assure me that the Silesia debt should be paid with the utmost exactness.' x Frederick had given these instructions to Mardefeld on May 5, N. s. 2 In a ciphered dispatch to Newcastle of June 11/22 3 Anti- Legge reverts to the alarm of the Prussian ministers and business men at the strong symptoms of an approaching union between Prussia and the Maritime Powers. Their plan of operations was to procure the presentation of a petition to the King of Prussia, complaining of the depre- dations of the English privateers, and stating the amount of their losses. This they expected would stimulate Frederick's resentment, and they held that if the claims were not satisfied on demand they ought to be recovered from the Silesian loan. Legge, however, was of opinion that even if the petition reached his Prussian Majesty's ears, it would have no effect, as he believed Frederick would not surfer the loan to be touched, since the latter Payment knew that its payment was the condition sine qua non of the guarantee of Silesia for which he acknowledged condition himself to be indebted to Great Britain. ' At the same g uar an- time I cannot help declaring to your Grace that I believe * ee . of Sl ~ in some instances our Privateers have in general trans- gressed the bounds of fair war, and degenerated into Miscon- something nighly related to Pyracy.' He then enclosed p^vl. copies of papers relating to some recent cases (n and 13 teers. 1 5. P. For., Prussia, vol. 64. 2 Pol. Cor. vi. 94. 3 Record Office, S. P. For., Prussia, vol. 64. 26 LEGGE'S MISSION TO BERLIN of those presented by Michell, and No. 18 of the list of Prussian ships attached to the Exposition des Motifs), and suggested that if some speedy relief could be given in these instances, it would have a good effect towards appeasing the merchants, ' and take out of our enemies' hands the only weapon they have to make use of against us. ' Legge had expressed himself in the same conciliatory sense to Mardefeld, as appears from a letter of Frederick of June J.6. 1 In a further dispatch of June 14/25 Legge adds : ' And tho' perhaps all the proceedings of our privateers would not bear a very scrupulous examina- tion . . .' In answer to Legge's dispatch of June 11/22 Bedford wrote on June 24, o. s., 2 that he had received the King's orders to accelerate the cases referred to as much as possible. It was intended to make an addition to the number of judges for trying prize cases. On August 8/19 3 Legge wrote again about the case of the Petit David (No. 18), in which two privateers appear to have behaved disgracefully. The first stopped the Prussian ship, and carried off her papers. Another captured her and took her into Liverpool. The unfortunate captain was thus deprived of the documents on which he would rely to set up his defence to the claim of the privateers. He pointed out that if the allegations made proved to be true, and no remedy could be had, ' Your Grace plainly sees to what a length piracy is carried, and that our Privateers would have nothing to do, but by hunting in couples, to make, and in consequence to prove every ship upon the Ocean a lawfull prize.' His representations produced a certain amount of effect on Bedford, who replied (August 26) 4 that the papers having now arrived, he would immediately recommend the case to the judge of the High Court of Admiralty. 5 He added, rather sarcastically, that Michell advocated the causes recommended to him 1 Pol. Cor. vi. 141. 2 App. 14. 3 App. 15. 4 App. 16. 6 The Petit David was released September 27, 1748. LEGGE'S MISSION TO BERLIN 27 by the Court of Berlin with as much assiduity as if he were the owner of the ships concerned, and that he could not admit that the Court of Admiralty was to blame for the delays. On September 2 x Bedford wrote again to Compen- him recounting a conversation with Michell relative to expected the compensation expected by the King of Prussia for byFrede- those of his subjects whose property had been condemned by the Prize Courts, in derogation of the verbal declara- tion made by Carteret to Andrie at the outbreak of the war. He had denied that this claim was in any way justly founded, but at any rate it could not be considered until the cases had been finally decided, when the whole demands might be presented together. Legge wrote on September 3/14 2 to Newcastle, who was still at Hanover, about the unjustifiable conduct of English privateers, in which matter he had found that Newcastle's sentiments agreed with his own. ' I believe in some instances what they have done has fallen little short of downright piracy.' He stated that the French sympathizers at Berlin had been diligently stirring up the merchants and forwarding their complaints to the King of Prussia, so that, according to information he had received, orders would be sent very soon (if they had not already gone) to recall all Prussian subjects who had prize-court cases pending in England. On their return the King would erect a commission 3 to examine and establish their respective losses. In a further letter to Newcastle, of September 17/28, 4 enclosing papers that had been communicated to him by Podewils respecting the case of the Petit David, Legge said : ' The outrages committed by our privateers, who upon the apprehension of an aproaching [sic] peace have degenerated into mere pirates, are I am afraid undeniable, and the delays in point of form necessarily attending a cause before the 1 App. 17. 2 App. 18. 3 This Commission was not set up till November 1751. 4 App. 19. 28 LEGGE'S MISSION TO BERLIN Threat of applying balance of debt to Prussian Case of Enemy m ship. Admiralty Court are such as may very possibly wear out the patience of a foreigner ; especially if he thinks his ship has been unjustly taken.' Podewils' memorandum on ^{5 ca se demands not only full compensation for the . J r owners (who were Frederick's bankers) , but also the punishment of the offenders ; in default of this the King would cause this case, and the others complained of, to be tried by his own courts, and would compensate them out of the money due on the Silesian debt. Legge, in his covering letter, reports that he had protested to Podewils against touching ' so sacred a fund, so secured by treaty, and so much the condition of every Guaranty His Majesty had given '. Bedford, on September 27, l had sent him an extract of a letter from Sir Henry Penrice, 2 alleging that the Petit David had made two previous voyages, one from Stettin to Lorient with ship-timber, then to Bordeaux with goods on account of French merchants, and that the voyage on which she was taken was for Dunkirk with French goods on account of French subjects. In reply to this letter, Legge wrote on October 12/23 3 that the case differed greatly from what it had been represented to be by the proprietors, namely that there was nothing con- traband on board, but that the cargo was Prussian pro- perty. He points out that when the vessel was taken she had no contraband on board, and that she could not be condemned on the ground of having carried contraband on a previous voyage. As to the ownership of the cargo, that question would have to be determined by legal proof. The Prussians, he said, seemed to admit the doctrine t ^ lat enem y' s property on board a neutral ship was lawful prize, as they rested their case on the denial of all French property in the cargo. He had decided, he said, to leave the matter untouched until he received further orders. 1 App. 20. 2 A judge of the Admiralty Court. Dictionary of National Biography. His name does not occur in the 3 App. 21. LEGGE'S MISSION TO BERLIN 29 The ship was released, as above noted, on September 27, x but it would appear from the list A of Prussian ships in Appendix 34 that the Prussian ownership of the cargo was always maintained ; improbable as it must have seemed that wine and brandy transported from one French port to another were the property of a Prussian. Bedford wrote to Legge on October n, o.s., 2 relating another conversation with Michell, and enclosing corre- spondence with the Admiralty Court about the case of the Petit David, to show that no avoidable delay had taken place in giving judgement. He further enclosed copy Carteret's of Andrie's dispatch to Frederick of May 29, 1744, con- ^ces'of taining a precis of the conversation between Andrie and 1744 Carteret, on which the Prussian demand for compensation jfy or mainly rested. He had replied to Michell that he knew Bedford, nothing of any such verbal declaration ; which was said to have been given before the writer became Secretary of State. He imagined, however, that there must have been some mistake on Andrie's part, as he did not appre- hend that a Judge of the Court of Admiralty could take any cognizance of such a verbal declaration, the judge being obliged to conform himself to the Law of Nations, as being the only rule the Court had to guide itself by, except with relations to Powers with whom marine treaties subsisted. Bedford continued by suggesting that any complaints of illegal captures should be carefully investigated by the Prussian authorities before they were sent over to England, adding : ' I do not pretend to disculpate the Proceedings of our Privateers, I believe in many cases they have been highly blameable, but I can venture to affirm on the other Hand, that Complaints are too easily received at the Court of Berlin, upon the bare Allegations of those Merchants, who have carried on during the War an illicit Trade, and have lent their names to cover the Effects of his Majesty's Enemies from being seized by his Ships of War and Privateers.' Lastly, with 1 p. 26 n. 2 App. 22. 30 LEGGE'S MISSION TO BERLIN reference to Podewils' pro-memorid given to Legge, he had told Michell that he was excessively surprised to find that the King of Prussia proposed to indemnify his sub- jects out of the Silesian loan, and that he could take upon himself to say that the King would always look on the fulfilment^ the Prussian King's engagements in regard to that loan as the condition upon which that Duchy was guaranteed to him, and that the violation of the con- dition would of course annul the guarantee. This letter was forwarded under flying seal to Newcastle. Legge Bedford's attempt to repudiate the assurance given by wTtl 8 Bed- ^ s predecessor in 1744 drew from Legge a vigorous remon- ford's strance. In a letter of October 28/November 8 1 he ob- the W ' serves that no declaration of a Minister of State could be matter, regarded as sufficient authority on which to found a doc- taryof trine of No search (which was what Frederick appears to word' 8 nave understood by Carteret's assurances in 1744 2 ], that binds his such a declaration could never have the force of a treaty merit ^ commerce, much less of an Act of Parliament, and could not be taken cognizance of by the Judge of the Admiralty Court. Having admitted so much, he pro- ceeds to suggest that a foreign diplomatist is not supposed to understand the English constitution, and must take it for granted that a Declaration of a Secretary of State is conformable to law ; for if the contrary is supposed, there is an end of all confidence, and consequently of all intercourse between the King's ministers and the repre- sentatives of foreign Powers. If we were to plead at any foreign Court the insufficiency (according to the laws of England) of a declaration made by the Secretary of State, the answer would be that this is a domestic matter, and that if they have been led into error by a declaration which had no validity, the person who made it ought to pay the damage, and not those who acted upon it. After reading Andrie's letter very attentively, if his report of the conversation is fairly given, it is evident that Prussian 1 App. 23. * See App. 10. LEGGE'S MISSION TO BERLIN 31 subjects were put by it on the same footing as the Dutch by the treaty of 1674. He adds : ' That our privateers have been guilty of illegal practices, I am strongly of opinion with your Grace/ and he suggests that when ships laden with perishable commodities have been taken and detained for many months before the case is heard, and if in the end judgement is given against the captor, full compensation for damage to the cargo, the ship's expenses, and their law costs ought to be awarded to the owners. A portion of this dispatch is devoted to reporting his King action with regard to a minute of the Lords Justices x of October 6, of which he had been instructed to hand a copy of Silesia: to the Prussian ministers. This was to the effect that thTixfrds the King's guarantee of Silesia, given to Frederick the Justices. Great, entirely depended on his Prussian Majesty's ful- filling his engagements with regard to the Silesian loan. Podewils had told him that orders had been sent to Michell to declare Frederick's intention of fulfilling those engagements with the utmost punctuality, but that he flattered himself on the other hand that equity would be shown in compensating the unjust losses of his subjects. Frederick, on receiving the report from Podewils and Frederick Mardefeld of the communication made by Legge, 2 made the denie s r 11 T-I -11 T the con- lollowing comment : That s all right. I will religiously nexion observe all the engagements I have made to England, But the declaration I have had made with regard to of the justice and compensation due to my merchants, has theguar- nothing to do with our other engagements, but I owe antee. the same protection to my subjects that they give to theirs, who have claims on Silesia. It is quite clear that in spite of all my solicitations, my subjects who have been insulted by English privateers have been neither helped nor compensated. I can find no other means of helping them to their own than the Silesian mortgage, if I am obliged to have recourse to such-like. If they would only 1 App. 24. 2 Pol. Cor. vi. 280. 32 LEGGE'S MISSION TO BERLIN do justice to my poor subjects, all this wrangle would be needless, and I would fulfil every engagement I have made to the English. Count Podewils should say this politely to Legge, and also send suitable instructions to Michell.' Podewils' Legge reported in a dispatch of November 1/12 1 that lesTpS 6 he had received Frederick's message through Podewils, emptory. who somewhat exceeded his instructions by limiting the demand for indemnification to such Prussian merchants as had neither carried contraband nor lent their names to cover French property ; but it was asked for to cover the expenses to which they had been put and the losses they had suffered in respect to their cargoes by long detention in England, and that Frederick was the more authorized to expect this, because he had received the most positive assurances that the trade of his subjects should not be molested, provided they did not deal in contraband. Podewils also added, as from himself, that the strictest orders had been given by Frederick to all merchants to refrain from dealing in merchandise on French account, and that if any of the goods now in dispute were proved to be French property, it was not expected that they should be restored. Heerlig. Podewils had mentioned a case in which, as he said, Kuindtr, 8o compensation had been given to a Prussian mer- again chant in regard to a cargo, which was seized and after- tioned. wards acquitted as not being found to be contraband. Bedford replied (November 15) giving the correct version of the case in question. 2 It was that of the ship Heerlig- keit, of Kuinder (Case No. i, p. 14), where a lading of planks was brought in for pre-emption, as being naval stores ; but as the ship turned out to be Dutch and the lading Prussian, this could not be done, because the navigation laws prohibited the importation in foreign ships of produce of any other country than their own, and as no right of seizure was attempted to be proved, 1 App. 25. * App. 26. HANBURY WILLIAMS AT BERLIN 33 the sum of 766 was awarded for demurrage and damages. The correspondence closes with a letter from New- castle to Legge of November 6/17 acquainting him that the King much approved the manner in which he had executed his Majesty's orders relating to the ' guaranty of Silesia and Glatz which is the reciprocal performance of His Prussian Majesty's Engagement relating to the Silesian loan '. Legge took leave towards the end of December, and Legge the post of envoy at Berlin was left vacant until Sir succeede d Charles Hanbury Williams, a famous wit and writer of vers de soctite, was appointed in 1750. The instructions he received regarding the payment of the Silesian loan were word for word the same as those given to Legge. . He did not remain long at Berlin. Having arrived there offensiv e about the middle of July, he almost immediately had rick."* orders to proceed to Warsaw on a mission to the King of Poland, Elector of Saxony, and did not return till some time in October. He appears to have lost no opportunity of rendering himself disagreeable to Frederick, who in November wrote to Michell to complain to Newcastle of the indecent language indulged by him in public regarding the sovereign to whom he was accredited. These repre- sentations led to Williams's recall in February 1751,! and he went back, after his farewell audience of March' 4, to his former post at Dresden ' full of venom and rage '. No further appointment to Berlin took place until Andrew Mitchell was accredited to the King of Prussia in 1756, after the signature of the Convention of Westminster/ 1 Pol. Cor. viii. 286. 1783 I) CHAPTER V Frederick changes his mind, but doubts wisdom of paying away so much money in present circum- stances. KLINGGRAFF'S MISSION TO LONDON. SUBSEQUENT REPRESENTATIONS MADE THROUGH MICHELL BUT Frederick now changed his mind. 1 It had been reported by his minister at Paris that since the peace the policy of the French Government was to establish an entente with England, and, knowing the weakness of the French Court, he was convinced that this desire would induce them to push their complaisance so far that before another year elapsed the English would dominate Euro- pean politics, and it would be necessary to humour them. He therefore desired Klinggraff to abstain from employing the threats he had been instructed to make use of, and to give wherever necessary the most positive assurances that he would unfailingly repay both the principal and interest stipulated. 2 The only doubt he had in his mind was whether it would be prudent to pay off the debt at a moment when storms were threatening from all sides. The storm he feared was a war declared by Russia with the aid of Austria against Sweden, with which he had an alliance. 3 He asked Klinggraff whether, on his conscience and honour, he could advise him to deprive himself of such a large sum (200,000 thalers, which he had ready to pay) at such a critical moment. 4 Klinggraff seems to have advised him to pay and be done with it, for he writes again (March i, 1749) and says that he would try to pay off the whole by the following year. 5 The trustees for the bondholders then approached Klinggraff, with some sort of statement of claim, as it would appear, in reply to which Frederick said he might promise them 100,000 1 Pol. Cor. vi. 326. 3 Ibid. 445. 4 Ibid. 369. Ibid. 352. Ibid. 397. KLINGGRAFF'S MISSION TO LONDON 35 thalers by the beginning of June, an equal amount at the end of July, and the balance of the debt in two years' time. 1 Later on he promised 200,000 thalers at the middle of July, 300,000 more in July 1750, 500,000 in July 1751, and the balance in July 1752. 2 In July 1749 Klinggraff began to act on his instruc- Kiing- tions to procure an abatement of the rate of interest, and proposed to the trustees to pay off in September the for re- arrears of interest at seven per cent, on condition of their O f the accepting four per cent for the future. 3 Frederick ^ a j: eof t approved of this, although he was reluctant to part with such a large sum of money, as the state of northern politics still caused him anxiety. All the same, he en- couraged his agent to proceed with the negotiation, and Klinggraff forwarded to the trustees on September i a definite written proposal, 4 offering to pay off the arrears, i. e. nine years of interest, by July 10, 1750, if they would agree to the rate being diminished to three and a half per cent from July 1749 (which, as he observed, was the interest paid on the English Funds), and promising that the principal should be all paid off by July 1753. The Case of bondholders asked for further explanations, which were afforded to them on October 25. 5 The inducements offered were not such as disposed them to accept, and they appealed to Newcastle to press on Frederick the necessity of fulfilling the original contract. 6 They pointed out that according to its terms the whole principal ought to have been paid off by January 10, 1745 [o. s. = January 21, 1746, N. s.], from which date they were of opinion that the arrears ought also to bear interest. In a ' state of the case of the proprietors of the Silesian loan ' 7 pre- sented at the same time, they maintained that the whole principal of 250,000, plus nine years' interest = 157,5 up to July 10, 1749, was still due to them. In this state- ment they ignored the 84,700 said to have been paid 1 Ibid. vi. 429. 2 Ibid. 563. 3 Ibid. vii. 12, 1 App. 27. 5 App. 28. 6 App. 29. 7 App. 2. D2 36 KLINGGRAFF'S MISSION TO LONDON to them in 1743. In the accompanying letter addressed to Newcastle, they said there was enough money already in England to pay three years' interest, and that had been pressed on them as an inducement to enter into a new agreement by which the bondholders would sacrifice about 17,000 a year. They therefore asked Newcastle to insist on the payment of the three years' interest, and that the remainder be not delayed. Failure On November 29 and again on December 7 Frederick ordered the three years' interest to be paid. 1 Klinggraff negotia- early in December reported that there was no prospect of coming to an arrangement regarding either the debt or his political negotiations, 2 and this led Frederick to intimate that he would be recalled and a secretary of embassy left in charge. If the English should then desire to make proposals regarding the debt, it would be their turn to Hyndford speak. In January 1750 Hyndford passed through facilitate Berlin on his way back from his embassy to St. Petersburg, payment and Frederick took the opportunity of informing him that pens" ne na -d made provision for paying off the debt within ti n - a period of not more than three years, but as Prussian subjects still had considerable claims against the British Admiralty, for the ' piracies ' committed by English privateers, he felt convinced that Hyndford would do all in his power to ensure redress for their losses, all the more that he, Frederick, would greatly regret being obliged to indemnify them himself by deducting the sum required from the payments due on account of the loan. 3 In writing to Klinggraff on February 17 he says that it had never been his intention to deduct this amount until the time came for the payment of the last instalment. 4 Alto- gether, Frederick's activity in corresponding on this subject during the last six or seven months of Klinggraff s stay in London is remarkable. In a letter of January 27 he had charged his minister with negligence in regard to 1 Pol. Cor. vii. 177, 89. " Ibid. 197. 3 Ibid. 219. 4 Ibid. 256. KLINGGRAFF'S MISSION TO LONDON 37 these claims. 1 Klinggraff replied that he found they had been decided by the courts, with the exception of one case which was before the appeal court, and that he could get no other answer. Frederick consequently, on February 26, ordered that a detailed statement should be sent to him, and this is the first mention of a liquidation that occurs in the correspondence. Seeing that the last of the Prussian ships had been released before the end of 1748 (some of them so far back as 1746 and 1747), and judge- ment in regard to the cargoes captured on board of neutral ships had also been given before that time, it is strange that no specific claims had been previously advanced, although they had frequently been made the ground of complaint to the British Government. As will be seen later on, their amounts had not yet been ascertained. The conclusion to which we are led is that Frederick wished to get rid of his obligation in whole, or in part at least, and as long as success seemed possible he refrained from using the threat to deduct the claims of the Prussian ship-owners and merchants ; when it turned out that the bondholders would not consent to a reduction of the rate of interest, which after all would not have made such a large difference to the Prussian treasury, he began again to threaten. George II went over to Hanover in the summer of 1750, Remit- Klinggraff being instructed to follow him there, and it was j^ ^ decided that at the end of the King's stay, his mission thalers, should be terminated by the usual leave-taking. While he newed'as- was still at Hanover, he was informed that 477,000 thalers surances had just (i.e. before August 21) been remitted to the Frederick. Bank of England for the necessary payments, and he was directed to acquaint Newcastle that Frederick would religiously perform his engagements respecting the debt, in the manner he had promised. 2 Michell, who had again been placed in charge of the Prussian Legation in London, was instructed in November 1 Ibid. 269. 2 Ibid. viii. 54. 20896.1. 38 MICHELL LEFT IN CHARGE Micheli 1750 to remind the British Ministry of the Prussian ships tecUc> C ~ unjustly captured, and to ask for fitting redress, with the press the addition that Frederick hoped justice would be done, so claim!*' as to avoid its becoming necessary to provide for their indemnification himself. 1 He reported on December 18 that he had addressed himself to Newcastle. 2 Frederick replied (January 2, 1751) that he should renew his repre- sentations from time to time ; that the amounts destined for the discharge of the debt during the current year would be paid, but he would reserve to himself to deduct from the final instalment the sum required to make good to his subjects what was unjustly denied to them. 3 In instruc May 1751, orders were given to Podewils to get together, tions to quite unostentatiously, exact information as to the losses detailed a suffered, so as to enable the King to make use of the same state- on the occasion of the final payment in the following year. 4 given by In the meantime Micheli was to be reminded to recall the Frederick. ma tter to the remembrance of the English ministers on every suitable occasion, lest they should imagine that it had been lost sight of. Podewils and Finckenstein were eventually instructed in November that in December, when another instalment was paid, Micheli must again apply to the English Ministry for complete indemnifica- tion, and also declare that as all Frederick's representa- tions had proved ineffectual, he could no longer refrain from deducting the amount required to indemnify his Appoint- subjects from the last instalment due. 5 For that purpose ment of a it W as his resolve to appoint a special commission to commis- examine the claims and ascertain the exact total. In doing this he would be proceeding just as England had rick, and done. If English laws demanded that Prussian subjects sent sn uld be cited before English courts to have their claims to decided, so did Prussian law require him to set up similar Micheli. 1 Pol. Cor. viii. 170. 2 Ibid. 210. 3 go,o(x> of principal and ^12,600 for interest were paid in July of the year 1751, and ^45,000 with five months' interest, ^2,625, in Decem- ber, leaving only ^45,000 of principal to clear off the whole debt. 4 Pol. Cor. viii. 365. * Ibid. 536. FREDERICK SETS UP A COMMISSION 39 courts to examine their claims, and deliver judgements to which he would have to give effect, in accordance with what a jus retorsionis founded on the Law of Nature and of Nations involved. Frederick also ordered them to submit for his approval a scheme for the establishment of such a court, and to acquaint Earl Marischal, his minister in Paris, with the whole history of the affair, from first to last, in order that he might be able to com- municate the facts to the French Ministry, and so place them in a position to reply, should representations be made to them on the part of England. Cocceji, Frederick's celebrated Grand Chancellor, was directed to co-operate to this end with the Department of Foreign Affairs. 1 The draft instructions for Michell and Earl Marischal Attempt were laid before Frederick by his ministers three days f . J Prussian later, accompanied by a remonstrance, in which they Ministers urged, first, that England would never recognize the com- ^^~ petence of the proposed court to inquire into the legality Frederick. of the captures made by the English marine ; second, nor that private persons could be made to suffer reprisals on account of this dispute ; third, that the proceeding would be a manifest infraction of the peace of Berlin, and conse- quently annulled the British guarantee for his possession of Silesia. Frederick was not moved by these arguments, nor by British others which we pass over, not of a legal nature. As he m nt r pre- had anticipated, the British Government prepared to put pares the their view of the case before the French Government if the O f the necessity ultimately arose, and on December 12, the day F ren ch after Michell had executed his instructions, addressed a ' very secret ' dispatch to Albemarle, 2 giving an account of the declaration made verbally by Michell, and enclosing ' an account of what has passed hitherto upon this subject '. The dispatch adds : ' If that Prince should ultimately persist in defalking any Part of the Debt, due upon the Silesian Loan, there can be no doubt, but that 1 Ibid. 541. 2 App. 30.; 5. P. For., France, vol. 242. 40 NEWCASTLE'S ANSWER TO MICHELL His Majesty's Guaranty of Silesia, will be entirely null and void ; as the satisfaction of the sums raised for the security of that Dutchy, was an express condition, of It.' Michell had inquired whether he should give a written note to Newcastle, embodying his announcement of December n, and was told to say that he had no further declaration to make. 1 On January 7, 1752, Frederick further ordered that when the commission had completed their inquiry into the losses, a detailed statement should be prepared. 2 New- Early in March Newcastle sent for Michell 3 and told him answer to that the King, having caused the points stated by him in Michell. December to be carefully examined by the Privy Council and the Law Officers, had come to the conclusion that nothing illegitimate or unjust had been done to Prussian subjects, and that they had been treated like all other nations, and the King flattered himself that after mature reflection Frederick would not carry out his declaration ; but he had orders to declare that if, contrary to all expec- tation, he persisted in such pretensions in opposition to engagements so precise as those of the complete pay- ment of the Silesian debt, H. B. Majesty would consider himself freed from the reciprocity attached to those engagements, which, however, he would always fulfil with exactness, provided Frederick did as much on his side. The written reply delivered by Newcastle to Michell differs somewhat from this account of it ; after reciting what he regarded as the substance of Michell 's declaration of December n, Newcastle proceeded to say that having reported the said declaration to the King, his Majesty had directed him to give the following reply, and to avoid all mistake, had permitted him to give it in writing : 4 1 Pol. Cor. ix. 3. 2 Ibid. 86. 3 App. 31 and 32 ; S. P. For., Foreign Ministers in England, vol. 48. 4 The original is in French. NEWCASTLE'S ANSWER TO MICHELL 41 That the judgements complained of had been pronounced by a sovereign court established from the earliest times, which had always decided cases of this nature. That its jurisdiction had been recognized by all the nations of Europe, without having ever been called in question, and could not be disputed with the slightest shadow of reason or justice. That the commission to be set up by his Prussian Majesty, and the intention of claiming a juris- diction belonging incontestably to another sovereign State was an unheard of innovation, which could not be submitted to. That the defalcation in question would be a novelty as unheard of as the other. That the Silesian debt was based on an express article not only of the pre- liminaries of Breslau but also of the treaty of Berlin, of which the King was a guarantor, and was the only article in which Great Britain was directly interested. That by diverting any portion whatsoever of the amounts promised by this article to any other purpose than the satisfaction of the creditors the said treaties would be manifestly violated, and that in that case the King would hold him- self ipso facto freed from any obligation in respect of the guarantee that his Majesty had given thereof. A memorandum in English, 1 dated March n, 1752, 2 drawn up doubtless for the information of the King and his ministers, gives the same account as Michell's report ; it records that Michell said he had represented the matter in that light to Frederick ; he appeared to admit that nothing had been done in the case of Prussian subjects but what was the rule with respect to all other foreign Powers, and he seemed to think that nothing more would be heard of the affair. Michell sent home a copy of Newcastle's written memorandum 3 (together with another relating to a Prus- sian claim to be admitted to trade at Indian ports). He 1 App. 31. 2 By the Act 24 Geo. II, c. 23, the year 1752 was made to begin on January i. 3 Pol. Cor. ix. 87. 42 REPORT OF THE PRUSSIAN COMMISSION had, like Podewils, deprecated the step Frederick threat- ened to take, but his representations failed equally of effect. 1 Frederick immediately gave instructions to direct Earl Marischal to inform the French Government confidentially of the various matters in respect of which the English Court now and for some time past had acted towards him in an unfriendly manner, amongst which was the well-known affair of the depredations on Prussian commerce. 2 Report of The commission reported on July 22 that the total of Special * ne recognized claims was 189,770 reichsthalers, exclu- Com- s ive of current interest. 3 Their detailed statement of the case was also approved and ordered to be translated into French. 4 In August, orders were given by Frederick to set apart, out of the 45,000 remaining to be paid on account of capital, a sum of 199,159 th. 9 gr. 6 pf., to be applied in payment of the Prussian claims whenever the dispute was disposed of, and the balance to be kept in hand until it was known whether the bondholders would accept it in full payment of what was due to them. He then recast the pro-memorid with his own hand, 5 and returned it to the Foreign Department for transmission to Michell, who delivered it to Newcastle on November 23. At the same time he put in a copy of the judgement of the special commission, 6 together with a list of the claimants and the sums awarded to each, including interest up to the end of December 1751 : principal 156,486 th. 20 gr. 4 pf., plus interest 33,283 th. 8 gr. i pf., total 189,770 th. 4 gr. 5 pf. The detailed statement of the case was presented in December. 1 Pol. Cor. ix. 29. 2 Ibid. 86. 3 Ibid. 176. 4 Ibid. 199. 5 Pol. Cor. ix. 225. Preuss. Staatsschr. ii. 447. An English translation in Magens, An Essay on Insurances, &c., 2 vols., London, 1755, in Cabinet Library of Scarce and Celebrated Tracts, vol. I, International Law. The second mentioned is the exact text of the pro-memorid delivered by Michell. The English version alone prints the lists of captures of Prussian and neutral vessels. 6 App. 33. CHAPTER VI THE PRUSSIAN SECRETARY PRESENTS A PRO-MEMORIA THE Prussian pro-memorid complains in general terms Analysis of the capture of vessels owned by Prussian subjects, of the confiscation of property of some merchants and of the Case, detention of that of others, and that these proceedings were adopted in spite of the fact that the Prussian sub- jects concerned were not engaged in a contraband trade ; that justice had not been obtained from the English courts nor from the Government ; and that even where no pretext could be found for condemning the ships and cargoes, the owners had been cast in damages for the expenses of the captors : That it had not been concealed from the English Warning ministers that in case redress were refused, the King of ^en^ 11 Prussia would find himself obliged to seize the capital English secured on the duchy of Silesia as he could not otherwise indemnify his subjects : that he had nevertheless con- tinued to pay off the debt up to the final instalment, and Pay- it was only when he saw that neither the justice of his ^f^ebt demands, the lapse of time, reiterated reasons nor impor- continued tunity produced any effect, that he thought himself obliged fmaHn- to have recourse to the only means that remained, of stalment - deducting from the money due to the English bondholders the amount which his subjects asked as compensation : That the law which obliges us to pay our debts author- Right to izes us to demand the same thing from our debtors : debt as a the King owed the last instalment he kept it back and set-off to after having warned the British Government on every possible occasion, he set up a commission to try with impartiality and strictness the claims of the Prussian merchants. The commission having concluded its work, 44 THE PRUSSIAN SECRETARY the writer had the honour to deliver to their Excellencies a copy of the decisions arrived at on the separate claims, the result being that of 239,840 thalers claimed, the com- mission had allowed only 156,486 thalers 20 groschen of principal and 33,283 thalers interest at six per cent ; Offer to Although his Majesty had every reason to be persuaded peaT ap ~ tnat the commission had proceeded according to the forms against o f the most impartial justice, he had nevertheless in- of the structed the writer to declare that he was disposed to Special have the facts in dispute examined afresh by the com- mission, mission, in case any naval officers or privateers who believed themselves wronged considered it pertinent to intervene and cause the judgement to be varied, should the pleas of the other party prove to be valid : The King fixed three months from the date of this declaration as the limit of time within which these pleas might be exhibited : As the list of the different captures annexed to the pro-memorid l contained the names of those who effected them, his Majesty left it to the British Govern- ment to decide how it would inform the parties concerned, in order that they might appeal. If the period elapsed without any person undertaking to justify himself, his Majesty would abide by the decree of his Council, and would in consequence deduct the amount adjudged to his subjects including interest up to July 10, 1752 that is, he would deduct from what was due to the bondholders Z 94>7 2 5 2 Brandenburg th. 4 gr. and 5 pf. to compensate Balance the Prussian merchants. At the same time, he was reac ty to arran g e for remitting to the commissioners (commissaires) of the loan the remainder of what he still owed for principal and interest up to July 10, on the receipt in understanding that they furnished receipts for the whole sum due to them for principal and interest (le residu de cc qu'elle doit encore a ce litre, tant pour le capital que pour les interets a 7 pour cent ecoules le 10 de juillet de la 1 Not quite exact. The lists were annexed to the Exposition dcs Motifs, delivered December 13. - Seems a miscalculation. PRESENTS A PRO-MEMORlA 45 presente annee, bien attendu que lesdils commissaires fournissent dcs quittances valables du capital et des inter ets}. In case this equitable arrangement was refused, he (Michell) was to declare that the King would cause this amount to be handed over to the Chamber of Justice at Berlin, to be deposited there until such time as the bond- holders should be pleased to withdraw it by furnishing a discharge in full, and as interest would naturally cease to run after this step was taken, the King protested that he would not be accountable thereafter, and in virtue of his protest, he regarded the debt secured on Silesia to be entirely extinguished and the duchy to be completely discharged of all obligation on this account. The judgement annexed to this pro-memorid, signed von Fiirst, Behmer, and Kuhn, and dated July i, 1752, l lays it down : First, That Prussian and other neutral ships could not Enemy rightfully be taken on the high seas on the sole ground, may not whether going to or coming from an enemy port, that the be taken in neutral cargo or any part of it was enemy property. ships. Second, That contraband was concisely determined by What is treaties of navigation and by the formal declaration ' made by the British Ministry to the Sieur Andrie, and that war - neither free and permissible goods belonging to enemies, nor in general, timber, rye, or other goods not being munitions of war, could be included in this denomination. Third, That the English courts had evidently acted illegal contrary to law in declaring such goods as were not contra- i^nts of band subject to confiscation, and the Fourth, That their decisions and proceedings could not in the case in hand, nor in general, constitute any right or courts. prejudice between two Sovereign Powers. That consequently all Prussian subjects were entitled prize- to compensation, whether for the unjust capture and detention of Prussian ships, both for the ship itself and siveasbe- the cargo, or for goods loaded upon other neutral ships, Govern- ments. 1 App. 33. 46 A PRO-MEMORlA PRESENTED which had similarly been taken and detained, or for goods confiscated which were loaded, whether on Prussian or other neutral ships, or for the unjust costs, delays, and proceedings to which they had been subjected by the English courts. In consequence of these principles, set forth in a parti- cular statement of the case (Deduction), they had examined with exactness the claims of all the Prussian subjects presented to them, verified with the required precision the proofs adduced by them, and the damages caused to them, and had not allowed anything that could not be justified on received principles, adding thereto nothing but the interest due as a natural consequence. They concluded, in conformity with their oath, that there ought to be allowed by way of principal and interest up to the last day of December 1751, apart from interest further accruing up to the day of payment, to the above- mentioned Prussian subjects, the sums stated in the sixty-six annexed judgements of liquidation. Then follows a list of the claimants and of the sums allowed to each (without any indication of the subject- matter of the claim, nor how it arose). And finally, a list is given of twelve claimants, whose claims had been rejected, either because they could not prove that their loss had been caused by English privateers, or because they had loaded their goods on enemy ships, 1 or because, the losses had been caused by the English army on the Rhine, which were not in question, or because the claimants had not produced any documentary proofs of their claims during the time that the commission had lasted. The total of the claims thus rejected amounted to 4,029 thalers n groschen. 1 According to the principle of ' enemy ships, enemy goods '. CHAPTER VII 1 EXPOSITION des motifs fondes sur le droit des gens universellement 16911, qui ont determine le Roi de Prusse, sur les instances reiterees de ses sujets commer9ants par mer, a mettre arret sur les capitaux que Sa Majeste avoit promis de rembourser aux sujets de la Grande- Bretagne en vertu des traites de paix de Breslau et de Dresde, et a procurer sur lesdits capitaux a ses sujets susmentionnes le dedommagement des pertes que leur ont causees les depredations et les violences des armateurs anglois exercees contre eux en pleine mer. Berlin, 1752 i. La guerre s'etant allumee en 1744 entre la nation instruc- angloise d'une part, et les rois de France et d'Espagne de to^Andri! 1'autre, le Roi, pour mettre en surete le commerce de ses p 1744 to sujets, prit la precaution d'adresser au sieur Andrie, son o^dafiy ministre a Londres. un ordre en date du 14 avril 1744, what was , ! ., 1 t- the En ~ par lequel il le charge : lish list of de s'informer du ministere anglois, de ce que precise- ment chez eux passoit pour contrebande, et si les grains, le bois de charpente, les planches, le chanvre, la graine de lin, les toiles, etc., y etoient compris, pour que le Roi put en avertir ses sujets, et leur donner les instructions necessaires sur la maniere dont ils devoient continuer leur commerce. 2. La declaration que le lord Carteret fit au sieur Carteret's Andrie, au nom de Sa Majeste le roi de la Grande-Bretagne, 1 Preussische Staatsschriften, ii. 452 ; Ch. de Martens, Causes celebres du droit des Gens, 1827, ii. 12. The author of the Preuss. Staatsschr. calls the latter ' ein vielfach ungenauer Abdruck', but the differences are not numerous, and are merely verbal. The printed copy delivered by Michell is at the Record Office. There is an English version in the Cabinet Library above cited, p. 42 n. 48 THE PRUSSIAN CASE et dont il donna avis dans sa depeche du 18 mai 1744, porte : que le pavilion du roi seroit respecte a I'egal de celui des autres puissances alliees de I'Angleterre, a I' exception des seuls vaisseaux qui porteroient des munitions de guerre aux ennemis de la nation britannique. Carteret's 3. Le Roi ayant exige une declaration plus precise repiy d sur tous ^ es bjets contenus dans le memoire que son ministre avoit presente la-dessus, le susdit sieur Andrie dans sa depeche du 29 mai/9 juin manda : que le lord Carteret, secretaire d'etat, lui avoit reitere et assure au nom du roi de la Grande-Bretagne, QU'AUCUN DES OBJETS contenus dans 1'ordre donne au susdit sieur Andrie, comme les bois et autres materiaux de construction pour les vaisseaux, non plus que les cordages, les voiles, le chanvre, la graine de lin, etc. n'etoient reputes contrebande ; que la nation angloise respecteroit avec soin le pavilion et les sujets du Roi, qu'on ne troubleroit en rien le commerce de ces derniers, pourvu qu'ils s' abstinssent de ne porter aucune MUNITION DE GUERRE aux ennemis de la Grande-Bretagne (muni- tions specifiees dans tous les traites de commerce entre les puissances maritimes} ni aucunes MUNITIONS DE BOUCHE aux places assiegees ou bloqiiees par ladite nation. Qu'au surplus le commerce demeuroit libre aux puis- sances neutrcs, sur le meme pied qu'il 1'etoit en temps de paix. Carteret's 4. II convient de remarquer ici que lorsque le sieur put his t0 Andrie exigea la-dessus une declaration par ecrit du reply in lord Carteret, celui-ci lui repondit toutes les deux fois qu'il lui en parla, que ce n'etoit pas 1'usage en Angleterre. Anglo- 5- Le lord Carteret s'etant specialement rapporte, Dutch q u ant a ce qui se nomme contrebande, aux traites conclus treaty of i 1674 on entre les puissances maritimes, le Roi par surabondance banc[ a " ft* exammer I GS traites conclus en 1674 entre I'Angleterre et la Hollande, ct Ton y trouva que tous les objets que lord Carteret avoit declares au sieur Andrie etre de THE PRUSSIAN CASE 49 contrebande ou non de contrebande y etoient enonces mot a mot ; car dans 1'article III du susdit traite on y nomme contrebande : les armes, les bombes, et tout ce qui y appartient, la poudre, les armes a feu, les mortiers, les boulets, les sabres, les lances, les petards, les arquebuses, les grenades, le salpetre, les cuirasses et autre attirail de guerre, de meme que les soldats, les chevaux, les selles, etc. et par contre 1'article IV met au nombre de ce qui n'est point de contrebande : les draps, la laine, le lin, les habits, les chemises, I'etain, le plomb, les charbons de terre, toutes sortes de grains, le tabac, les epiceries, la viande salee, le frontage, le beurre, le vin, le sel, et toute sorte de vivres ; les mats, les planches, la charpente et autres bois propres a con- struire et reparer les vaisseaux, et en general toutes les marchandises qui ne sont pas comprises dans 1'article precedent, de sorte quil y est permis aux allies de trans- porter de ces dernieres marchandises aux places enne- mies, a I' exception seulement de celles qui se trouveroient assiegees ou bloquees. II est constant que dans les precedentes guerres la nation angloise n'a repute pour contrebande que les choses uniquement qui etoient d'usage a la guerre. Voyez 34. 6. Eii consequence de cette declaration, dont le Roi fit faire part a ses sujets, il les fit avertir, qu'a 1'exception des MUNITIONS DE GUERRE, ils pouvoient librement com- mercer comme en temps de paix. 7. Les armateurs anglois respecterent pendant plus d'un an le pavilion prussien, et laisserent passer sans empechement tous les vaisseaux de cette nation, ceux memes qui etoient charges de planches. Ce ne fut qu'en octobre 1745 qu'on s'avisa pour la in premiere fois d'arreter des vaisseaux charges de planches c pour la France, et qu'on ne voulut point laisser passer les English cruisers bois ; mais la depredation alia ensuite si loin, que les began to 1783 E 50 THE PRUSSIAN CASE seize armateurs, bien que les susdits vaisseaux ne fussent loaded charges que de marchandises visiblement libres, et que with free i eurs capitaines les en assurassent, par la production de leurs lettres de mer, connoissements et certificats, non contents de les arreter, leur enleverent tout ce qui se trouvoit a leur bienseance et les conduisirent avec violence a leurs ports. II arriva, entre autres, qu'un armateur ayant pris un vaisseau d'Embden, charge de sel, non content de lui enlever sa cargaison et les habits des gens de 1'equipage, les maltraita encore indignement a coups de baton. Prussia 8. Le Roi, sollicite par les plaintes reiterees de ses m ^ d re " sujets, ayant fait faire a cette occasion nombre de repre- represen- sentations, tant par le sieur Andrie, que par le Sieur Chester* Michell, son secretaire d'ambassade, le lord Chesterfield, field ; the a lors secretaire d'etat, repondit par ecrit le 5/16 ianvier written reply re- 174 : ceived. q ue j e R O J fi e j a Grande-Bretagne, pour n'omettre aucune occasion de faire eclater toute 1'attention qu'il avoit pour le roi de Prusse, ne faisoit aucune difficulte de declarer qu'il ne porteroit aucun empechement a la navigation des sujets prussiens, aussi longtemps que ceux-ci excerceroient [sic] leur commerce d'une maniere permise, et se conformeroient aux anciens usages etaUis et re$us entre puissances neutres. Subse- 9- Et lorsq'e a 1'occasion de la prise d'un vaisseau quent de- hollandois, nomme Les Trois Sceurs, le secretaire Michell claration . . by nt de nouvelles representations, et en demanda satis- fieid Ster " faction au l or d Chesterfield, celui-ci lui declara le 11/22 septembre 1747 : que 1 'intention de la Grande-Bretagne etait NB., de s'en tenir a la declaration du lord Carteret, faite NB. NB. au nom de Sa Majeste Britannique au susdit sieur Andrie au commencement de la guerre. No satis- 10. Les choses cependant en demeurerent a ces ever're- s i m pl es declarations, sans qu'on eut jamais donne la ceived. moindre satisfaction, soit des premiers dommages et des THE PRUSSIAN CASE 51 insolences des armateurs, soit des depredations, qui allerent toujours en augmentant les annees 1747 et 1748, bien que le Roi eut fait declarer a diverses reprises, qu'il s'en prendroit aux capitaux des Anglois qu'il s'etoit engage de leur payer a 1'acquit de la Silesie, par les traites de paix de Breslau et de Dresde, et qu'il indemniseroit la-dessus ses sujets. ii. C'est enfin ce qui a contraint le Roi a ceder aux King of instances pressantes et aux sollicitations reiterees de ses sujets, a prendre reellement fait et cause en leur faveur, a to indem- se servir a cette fin des moyens dictes tant par la raison que subjects par le droit des gens, a dedommager en un mot ses sujets ut f the sur les capitaux des Anglois qui se trouvent entre ses mains, debt. 12. Mais arm que tout 1'univers puisse etre pleinement Questions convaincu du precede insoutenable et injuste des arma- teurs anglois, on examinera ici les questions suivantes, cases. qui sont relatives aux griefs des sujets prussiens et qui serviront a les mettre dans tout leur jour, savoir : I. Si les armateurs anglois ont etc en droit d'arreter en pleine mer les vaisseaux prussiens, de les visiter, et, malgre 1'exhibition de leurs lettres de mer et connoisse- ments, par lesquels ils prouvoient qu'il n'y avoit aucune contrebande sur leur bord, de les conduire avec violence dans les ports d'Angleterre ? II. Si lesdits armateurs anglois ont ete fondes d'arreter en pleine mer des vaisseaux prussiens, sous le pretext e qu'il s'y trouvoit des marchandises qui appartenoient aux ennemis de la nation britannique ? S'ils ont ete en droit de les conduire dans leurs ports et retarder par la le cours de leur navigation ? III. Si lesdits armateurs ont ete en droit d'arreter en pleine mer d'autres vaisseaux neutres, comme etoient ceux de Suede, de Hollande, de Danemark, de Ham- bourg, etc., fretes en tout ou en partie par des siijets prussiens, de les conduire en Angleterre, de les y detenir des annees entieres et de troubler de cette maniere le commerce des sujets prussiens ? E2 THE PRUSSIAN CASE i . As to right of capturing Prussian vessels which had no contra- band on board . The sea free to every- body. IV. Si les marchandises chargees, soit sur des vais- seaux prussiens soit sur des vaisseaux neutres, par les sujets du Roi, et qui leur ont etc confisquees en vertu des injustes sentences rendues par les tribunaux anglois, etoient effectivement de contrebande ? V. Si le ministere anglois a ete en droit de renvoyer a un tribunal de marine etabli en Angleterre, la decision des differends de la nature de ceux qu'on a examines dans les questions precedentes et qui s'agitent entre deux puissances libres, et de vouloir obliger la puissance lesee qui demande satisfaction, a s'en tenir a ses deci- sions ? VI. Si, au contraire, le Roi n'est pas pleinement fonde de deferer a 1'arret que ses sujets 1'ont supplie de mettre sur les capitaux anglois, stipules par les paix de Breslau et de Dresde, qui se trouvent entre ses mains, pour procurer a ses sujets les dedommagements et la reparation convenables des violences exercees contre eux par les armateurs anglois, en depit du droit des gens, et malgre les declarations formelles reiterees par le ministere anglois ; et si le Roi n'est pas en droit d'indemniser ses sujets sur ces capitaux, puisqu'on leur a si longtemps denie toute la justice qu'ils etoient fondes de demander ? EXAMEN DE LA PREMIERE QUESTION Si les armateurs anglois ont ete en droit d'arreter en pleine mer les vaisseaux prussiens, de les visiter, et, malgre I' exhibition de leurs lettres de mer et connoisse- ments, par lesquels Us prouvoient qu'il n'y avoit aucune contrebande sur leur bord, de les conduire avec violence dans les ports d' Angleterre ? 13. II paroit par la piece ci-jointe, cotee A, que 18 vaisseaux prussiens ont ete arretes par les armateurs anglois d'une fa$on aussi insoutenable qu'injuste, et qu'on les a conduits avec violence en Angleterre. Ce precede est visiblement contraire au droit de la nature et des THE PRUSSIAN CASE 53 gens, selon lequel c'est un principe universellement re- connu par tous les peuples raisonnables, que la mer est au nombre des choses appelees res nullius, ou desquelles 1'homme ne peut se rendre le maitre. 5 Inst. de rer. divis. Si done personne ne peut s'attribuer la souve- rainete et la propriete de la mer, il s'ensuit naturellement que 1'usage en est commun a tous les hommes, et que personne n'est en droit de 1'interdire aux autres. L. 2, I ff. de rer. divis. ; I Inst. cod. ; L. 13, fin. ff. de injur. ; L. 3, i. ne quid, in loco fiubl. ; L. 13, ff. Comm. praed. Selon ces principes fondes dans la raison, toutes les puissances ont un droit egal de naviguer et de commercer sur mer. L. 4, I ff. de rer. divis. ; i, Inst. cod. D. i. 13 fin. ; L. i, i, de acquir. rerum dominio ; L. 2, 9, ff. ne quid in loco publico ; L. 13, ff. commun. praed. 14. On seroit en etat, sans recourir meme aux juris- consultes romains (auxquels le droit de la nature et des gens etoit parfaitement connu), de soutenir cette these par une infinite d'autorites et d'exemples. Vid. Grot, in tractatu de mari liber o. Mais cela seroit superflu, puisque la nation angloise Queen elle-meme s'en est pre value dans di verses circonstances. ^^' Lorsque 1'envoye d'Espagne, Mendoza, se plaignit a la answer to reine Elisabeth de ce que les vaisseaux anglois s'avisoient ^ m on de naviguer sur la mer des Indes, la Reine lui repondit : subject. Qu'elle ne voyoit point de raison qui put I'cxclure, die et d' autres nations, de la navigation aux Indes ; puis- qu'elle ne reconnoissoit d I'Espagne aucune prerogative d cet egard, et bien moins encore le droit de prescrire des lois d ceux qui ne lui etoient tenus d aucune obeissance, ou de leur inter dire le commerce; que les Anglois navi- guoient sur I'ocean, dont 1'usage, tout comme celui de I' air, etoit commun d tous les hommes, et qui par sa nature meme ne pouvoit tomber en la possession et sous la pro- priete de personne. Cambden in vita Elis. ad ann. 1580, p. m. 328 seqq. 15. En consequence de ce principe, fonde dans le 54 THE PRUSSIAN CASE English view of right of neutrals to trade to a belli gerent's ports. England disputes Spanish right of search. droit de la nature et des gens, la nation angloise a proteste avec chaleur, dans diverses conjonctures oii on lui a arrete, visite et pris des vaisseaux, et a taxe de pareils precedes de violation manifeste du droit des gens. On ne doute pas que la nation angloise ne se rappelle encore les grands mouvements qu'elle se donna, quand le roi de Suede, dans la guerre centre la Russie, fit arreter . tous les vaisseaux anglois qui etoient destines pour les ports de Livonie, et porta par la un grand prejudice a leur commerce. Us en appeloient alors hautement au droit des gens : Selon lequel ils soutenoient, qu'il etoit permis aux sujets de 1'Angleterre de commercer avec tous les tats qui a leur egard etoient neutres, bien qu'ils fussent impliques dans une guerre avec d'autres puissances pareillement neutres a leur egard, de me'me que les Anglois permettoient aux sujets suedois de naviguer et de commercer avec tous les tats et a tous les ports neutres par rapport a la Suede, bien qu'impliques dans la guerre avec 1'Angleterre ; ce qui etoit evident par cela meme qu'ils permettoient alors aux sujets suedois de commercer librement avec la France et 1'Espagne, qui etoient dans ce temps-la en guerre ouverte avec TAngleterre. Get exemple est d'autant plus favorable aux sujets prussiens, que ces vaisseaux suedois etoient pour la plupart charges de contrebande, et qu'on poussoit les choses jusqu'a conduire des vaisseaux de guerre meme aux ennemis. 16. Quelle longue, sanglante et couteuse guerre n'a pas soutenue 1'Angleterre contre 1'Espagne, pour defendre la liberte de son commerce et de la navigation, parceque les Espagnols visitoient leurs vaisseaux dans les mers d'Amerique, pour empecher la contrebande. Dans la declaration de guerre du 30 octobre 1739, 1'Angleterre, apres y avoir deduit ses griefs contre 1'Es- pagne, s'explique ainsi : THE PRUSSIAN CASE 55 Que tous ces griefs venoient de ce que 1'Espagne s'at- tribuoit, centre toute raison, le droit d'arreter et de visi- ter les vaisseaux anglois, pretention contraire au droit de navigation qui appartenoit aux Anglois aussi bienqu'aux Espagnols, et par consequent contraire au droit des gens. Sur ce fondement, 1'Angleterre, dans la susdite declara- tion de guerre, taxe cette pretention de mal fondee, d'injuste, de dangereuse et qui interessoit toutes les puissances de 1'Europe, et Ton soutient dans les memoires suivants qui ont paru de sa part, que 1'Espagne devoit se contenter de la simple presentation que les vaisseaux anglois feroient de leurs lettres de mer et de leurs connoissements ; et c'est la-dessus que roulent encore jusqu'a cette heure les plaintes de la nation britannique centre les garde- cotes d'Espagne. 17. Ces principes constatent evidemment le droit des sujets prussiens, et portent avec d'autant plus de force centre les armateurs anglois, que 1'Angleterre avoit les bras lies vis-a-vis de 1'Espagne par divers traites de paix et de commerce avec cette couronne, au lieu que n'y ayant aucun traite pareil entre la Prusse et 1'Angle- terre, cette affaire ne peut ni ne doit etre discutee que selon le droit des gens. 18. Tout ce qu'on pourroit accorder a la nation angloise, seroit, de permettre a ses armateurs de s' informer des vaisseaux neutres quils rencontreroient en mer, et qui faisoient voile pour 1'Espagne ou la France, s'ils n'avoient point de contrebande, etc. Mais il n'etoit nullement besoin de visiter ces vaisseaux, encore moins, de les conduire de force dans les ports d'Angleterre et de les y detenir des annees entieres ; les armateurs n'avoient d'autre droit que de se faire exhiber leurs lettres de mer, connoisse- ments, ou certificats, pour decouvrir s'il s'y rencontroit de la contrebande. On s'appuie ici, par rapport a cet usage, sur les principes que la Grande-Bretagne a etablis elle-meme dans son differend avec 1'Espagne et en consequence desquels elle 56 THE PRUSSIAN CASE soutient que 1'Espagne auroit du se contenter qu'on cut produit a ses armateurs les lettres de mer et les certificats. Voyez 16. 19. Et comme le droit des gens se verifie principale- ment par les exemples et les traites des puissances man- times, on en appelle ici aux plus celebres traites conclus entre lesdites puissances, et ou Ton est convenu de part et Anglo- d'autre d'en agir de cette fa9on. C'est ainsf qu'en parlent Dutch j es traites conclus entre 1'Angleterre et la Hollande de cited. Tan 1667 et 1668, art. 10 Du Mont, Corps diplom., t. vii et le traite de commerce de 1674, dans 1'art. 5, s'exprime ainsi : Lorsqu'un vaisseau hollandois, destine pour un port ennemi, rencontrera en pleine mer des vaisseaux anglois, celui-ci s'arretera a une certaine distance, et le vaisseau anglois lui depechera sa chaloupe, de laquelle deux ou trois hommes se rendront sur son bord et se feront produire par son capitaine ou patron ses lettres de mer et de certi- ficat, pour se convaincre s'il y a de la contrebande. 20. La saine raison dicte suffisamment que sans cette precaution, et s'il etoit permis aux armateurs d'attaquer un vaisseau neutre a force ouverte, d'en rompre et briser les caisses et les coffres, de les trainer avec violence dans les ports d'Angleterre, non obstant que par leurs certificats ils prouvassent n' avoir point de contrebande, etc., on ne sauroit se faire aucune idee d'un commerce libre. Quelle nation neutre en effet se hasarderoit de commercer, si elle prevoyoit qu'apres avoir recouvre la relaxation de son vaisseau, elle n'auroit aucune reparation a attendre des dommages, des fraix, ni des insolences qu'elle auroit es- suyees, et verroit encore ses vaisseaux neutres condamnes a payer aux armateurs les fraix de leur capture, etc. ; peut-on nommer cela un commerce libre ? Si les nego- ciants prussiens avoient du negocier sur ce pied-la, la perte eut toujours a coup sur surpasse le gain, et si la guerre avoit dure plus longtemps, ils eussent perdu le sens com- mun de continuer un commerce aussi ruineux. THE PRUSSIAN CASE 57 21. Le ministere d'Angleterre a declare expressement English que la liberte" de commerce a 1'egard des vaisseaux neutres had'de^ devoit subsister sur le meme pied qu'en temps de paix, a clared ., , . . r T? . j that neu- 1 exception des munitions de guerre. En temps de paix trais were on n'arrete point les vaisseaux dans leurs cours, loin de r trade as les trainer dans les ports d'Angleterre. in time of 22. Les consequences naturelles qu'on peut tirer de P eace - tout ce que dessus, c'est qu'on n'a nullement laisse aux sujets prussiens le commerce libre comme en temps de paix, malgre les lois du droit naturel et 1'assurance positive qu'en avoit donne le ministere anglois ; mais qu'au con- traire par la le commerce desdits sujets a ete mine, et que par consequent les armateurs anglois sont tenus a la reparation des dommages qu'ils ont causes aux sujets du Roi. 23. L'Angleterre ne sauroit s'inscrire en faux contre cette consequence, vu qu'elle a traite elle-meme de vio- lation du droit des gens, comme on 1'a deja remarque ci-dessus, le precede des Espagnols, quand ceux-ci, non contents de la production des lettres de mer et des certifi- cats, se sont mis en devoir de visiter les vaisseaux memes. Voyez 16. QUESTION II Si lesdits armateurs anglois ont ete fondes d'arreter whether , 7 7 7 , i, , there was en pleine mer des vaisseaux prussiens, sous Le pretexte ar i g htof qu'il s'y trouvoit des marchandises qui appartenoient aux capturing ennemis de la nation britannique ? s'ils ont ete en droit g0 ods in de les conduire dans leurs ports et retarder par la le cours neutral de leur navigation ? 24. L'un des plus forts griefs des sujets prussiens Capture consiste en ce que leurs vaisseaux charges en France, se p russ i an sont vus arretes en pleine mer, lorsqu'ils retournoient vessels chez eux, et conduits par les armateurs anglois dans les French ports d'Angleterre ; qu'apres y avoir ete detenus un certain temps, on les a relaches, a la verite, mais qu'on en a confisque les marchandises de France, ou qu'au moins 58 THE PRUSSIAN CASE on a exige de 1'equipage qu'il prouvat que lesdites mar- chandises appartenoient en propre a des sujets prussiens, qu'elles ne leur etoient point donnees en commission par des marchands fran9ois, et que ceux-ci ne s'etoient point charges des risques, etc. Contrary 25. Cette conduite est non seulement contraire au law^f droit des gens, mais aussi a tous les traites qui jamais nations furent conclus entre des puissances maritimes. treaties' 1 ^ ar s * W comme on ne peut en douter, il etoit libre aux sujets prussiens, tant selon le droit des gens, que selon 1'aveu formel du ministere anglois, de commercer avec 1'Espagne et la France, il s'ensuit de la necessairement que ledit commerce devoit etre general et pouvoit se faire, soit par achat, soit par echange, soit en prenant des mar- chandises frangoises en commission, etc. Or par un commerce de cette nature (2) on ne faisoit aucun tort a la nation angloise, puisqu'a 1'egard de ces vaisseaux de retour, destines pour des ports neutres, il ne pouvoit etre raisonnablement question de contrebande, qui est la seule exception qui puisse avoir lieu ici, et selon le droit des gens et suivant la declaration du ministere anglois. II est de plus incontestable (3) que les ennemis, selon la raison et le droit des gens meme, sont en surete, Fun A neutral a 1'egard de 1'autre, quand ils se rencontrent dans un lieu neutral neu tre, et que par consequent un ennemi ne peut attaquer 'place', son ennemi dans un lieu semblable, ni se saisir d'aucun de ses effets. Or les vaisseaux prussiens, quand ils auroient ete charges des effets appartenant aux ennemis de 1'Angleterre, etoient un lieu neutre, d'oii il s'ensuit qu'il est tout un d'enlever ces effets desdits vaisseaux neutres, ou de les enlever sur un territoire neutre. Cette loi du droit des gens se trouve confirmee par cette maxime notable, expressement etablie dans les traites entre 1'Angleterre et la Hollande et entre 1'Angleterre et la France, que les vaisseaux libres rendent les marchandises libres. THE PRUSSIAN CASE 59 A quoi il faut aj outer (4) que, selon la declaration du lord Carteret, le commerce des sujets prussiens devoit etre aussi libre qu'en temps de paix ; or personne ne doute qu'en temps de paix il ne soit permis a tout le monde de negocier par echange, par commission, etc. (5) Tous les traites conclus entre les puissances mari- Treaties times sont en ceci parfaitement d'accord avec le droit des c lte( i : gens. Cela se trouve clairement stipule a 1' article 8 du Holland, traite de 1667 entre T Angleterre et la Suede Du Mont, France - Corps diplom., t. vii., p. 37 et dans 1'art. 8 du traite de 1674 cite ci-dessus il y est expressement decide : Que les effets de 1'ennemi qui sont sur un vaisseau neutre ne doivent point etre confisques. La meme clause se trouve mot a mot repetee dans le traite de commerce de 1713 entre 1'Angleterre et la Hol- lande et dans celui entre la Hollande et la France. Du Mont, t. viii., p. 345, 17 et p. 377, 17. et on en donne pour raison celle que Ton a deja rapportee, que les vaisseaux libres rendent les marchandises libres, raison puisee dans le droit des gens. 26. Le Roi se trouve done parfaitement fonde d'exiger une reparation convenable des dommages causes a ses sujets par 1'injuste precede et detention de leurs vaisseaux, sans qu'il soit tenu des'enquerir si les marchandises avoient ete donnees en commission pour des lieux neutres par des negociants fran9ois, ou s'ils s'etoient charges d'en courir les risques. QUESTION III Si lesdits armateurs ont ete en droit d'arreter en pleine Whether mer d'autres vaisseaux neutres, comme etoient ceux de Suede, de Hollande, de Danemark, de Hambourg, etc., tee . rs k ad . . . a ri ght to NB. fretes en tout ou en partie par des sujets prussiens, capture de les conduire en A ngleterre, de les y detenir des annees neutral entieres et de troubler de cette maniere le commerce des vessels ... . , partly SUjets prussiens ? loaded by 27. La piece ci-jointe cotee Lit. B prouve qu'il a ete Prussian 60 THE PRUSSIAN CASE Thirty- arrete en pleine mer 33 VAISSEAUX NEUTRES, dans lesquels three j es su j e ts prussiens etoient interesses, et que les armateurs neutral anglois, au lieu de se contenter de la production des tured Cap ~ litres de mer et des connoissements qu'en faisoient les contrary capitaines pour justifier qu'ils n'avoient a bord aucune of nations contrebande, les ont conduits dans des ports d'Angleterre, and to the j es y on t detenus, au moins plusieurs, des annees entieres, minister's et que, bien qu'a la fin ils fussent relaches, on n'a pas deciara- j a i ss d e j es condamner aux fraix de capture envers les tion. armateurs. Ce precede qui a trouble le commerce des sujets prus- siens, n'est pas seulement en contradiction avec le droit des gens, mais il est aussi diametralement oppose au contenu de la declaration du ministere anglois. On suppose d'abord ici que tous les vaisseaux neutres ont eu le meme droit que les vaisseaux prussiens, d'ou il s'ensuit qu'il est parfaitement egal que les Prussiens aient charge leurs marchandises sur des vaisseaux prussiens, ou sur des vaisseaux neutres. 28. Le ministere anglois fit assurer en general la cour de Berlin que la liberte du commerce subsisteroit a 1'egard des puissances neutres, sur le meme pied qu'en temps de paix (a 1' exception des munitions de guerre). Comme en temps de paix les sujets prussiens chargeoient leurs marchandises sur d'autres vaisseaux neutres, sans avoir a craindre, pourvu qu'il ne s'y rencontrat point de contrebande, de les voir conduire dans des ports d'Angle- terre, ils ont de bonne foi continue leur commerce sur ce pied-la, se reposant sur la declaration de 1'Angleterre dont le Roi les avoit fait informer. 29. Lesdits sujets prussiens n'auroient jamais charge leurs marchandises sur ces vaisseaux, s'ils avoient pu prevoir que, centre le droit des gens, les principes reconnus par les Anglois memes, et contre la declaration expresse de leur ministere, ceux-ci arreteroient tous les vaisseaux neutres, qu'il y cut de la contrebande ou non, qu'ils les detiendroient des annees entieres dans leurs ports de mer THE PRUSSIAN CASE 61 et les relacheroient a la fin sans aucun dedommagement, et en les condamnant meme aux fraix de la capture. 30. II est certain que la nation angloise ne pouvoit trouver un meilleur moyen pour porter le dernier coup au commerce des sujets prussiens, que de proceder contre eux de la maniere qu'elle a fait, d'ou il s'ensuit que ceux-ci sont fondes a pretendre une satisfaction proportionnee aux dommages et aux fraix que leur ont causes ces illegi- times detentions. QUESTION IV Si les marchandises chargees, soit sur des vaisseaux Whether prussiens, soit sur des vaisseaux neutres, par les sujets \ a ^j^ 0< du Roi, et qui leur ont ete confisquees en vertu des injustes were sentences rendues par les tribunaux anglois, etoient contra- effectivement de contrebande ? band. 31. Les armateurs anglois ay ant confisque sur trois vaisseaux prussiens ou neutres le seigle et les bois qui y etoient charges (voyez 38), cela donne lieu aux deux questions suivantes : lesdites marchandises etoient-elles de contrebande ou non ? et, qu'est-ce qu'on repute contrebande selon le droit des gens ? C'est un axiome du droit des gens, qu'une guerre entre What is deux puissances ne sauroit interrompre ni empecher le commerce des puissances neutres avec 1'une et 1'autre des the law of , 1V , , j IT nations. puissances belhgerantes, et qu aucune de celles-ci ne sau- roit defendre a celle qui reste neutre, 1'usage de la liberte du commerce qui lui compete a cet egard, en vertu des droits naturels : et que par consequent le commerce de toutes sortes de marchandises est regulierement cense permis. 32. On n'excepte ici que le seul cas ou des puissances neutres s'aviseroient de conduire a 1'une des parties belligerantes des munitions de guerre, ce qui porteroit sions. 62 THE PRUSSIAN CASE prejudice a 1'autre ; et c'est la ce que Ton nomme con- trebande. Grotius, 33- Le celebre Grotlus dans son Traite du Droit de la hls . . Guerre et de la Paix, en examinant la meme question. opinion. . ^ distingue L. 3, c. I, 5, n. 2 entre des marchandises qui ne servent uniquement que pour la guerre, et celles qui servent et dans la guerre et hors de la guerre. II met la premiere sorte de marchandises au rang de la contrebande, mais pour la derniere il ne la repute telle qu'au cas qu'on 1'envoie a des places assiegees ou blo- quees. English 34. La Grande-Bretagne a dans tous les temps parle deciara- sur ce ton-la, lorsque des puissances neutres lui deman- tions on ; ' various doient de s'expliquer sur ce sujet. Lorsque la guerre s'alluma entre 1'Espagne et la reine lisabeth, la ville de Liibeck s'etant informee quelle surete elle auroit pour son commerce et quelles marchan- dises il lui seroit permis d'envoyer en Espagne, cette reine lui fit repondre : qu'en s'abstenant d'envoyer des armes et d'autres attirails de guerre, il lui etoit libre d'y eommercer avec toute sorte de marchandises. Selden mar. claus. L. 2, cap. 30, p. 423. Le sieur Bonel, commissaire suedois, re$ut en 1653 a une demande pareille une semblable reponse, et le parlement d'Angleterre lui fit dire : que hors les munitions de guerre, il permettoit aux Suedois de eommercer partout ou bon leur sembleroit. Pufendorff. rer. Suec. L. 25, 46. 35. Le ministere anglois, dans sa declaration au ministre de Prusse, se servit des propres termes de Grotiiis et deciara du premier abord, que les munitions de guerre seules seroient reputees contrebande. Voyez 2. Declaration qui fut ensuite reiteree plus en detail et dans les termes suivants : qu'on n'entendoit aucunement porter obstacle au com- merce des sujets prussiens, pourvu qu'ils s' abstinssent THE PRUSSIAN CASE 63 de porter aux ennemis de la nation britannique des munitions de guerre (dont les noms detailles se trouvoient dans tons les NB. traites de commerce des puissances maritimes] et des munitions de bouche aux places assiegees ou bloquees, etc., et qu'au surplus la liberte de commerce subsistoit a I'egard des puissances neutres sur le meme pied quen temps de paix. Voyez 3. Le ministere anglois ne s'est pas borne la, il a specine en detail tout ce qui n'etoit pas contrebande, comme les grains, les bois et tous les autres materiaux qu'on emploie a la construction des vaisseaux, les cordages, les voiles, le chanvre, la graine de lin, les toiles, etc. 36. Tous les traites de navigation s'expliquent, par what is rapport a la contrebande, sur le meme pied. On renvoie ^^" in a ce qui a ete dit sur ce sujet au 5, ci-dessus, et au commer- traite de commerce de 1674 conclu entre 1'Angleterre et treaties. la Hollande, qu'on y a cite et ou se trouve exactement detaille ce qui est contrebande et ce qui est marchandise libre. Les marchandises des deux sortes se trouvent designees dans les memes termes aux 19 et 20 du traite de com- merce, conclu entre 1'Angleterre et la Hollande en 1713. Du Mont, t. viii, p. 348. 37. On trouve d'autres traites anterieurs aux deux que Ton vient de citer, dans lesquels se trouve detaille de la meme maniere, ce qui ne doit point etre compris sous le nom de contrebande. C'est ainsi qu'au 3 du traite de commerce de 1667 entre la Suede et la Hollande on ne nomme contrebande que les seules munitions de guerre, et que dans le 4, 1'argent, toutes sortes de grains, le sel, le vin, 1'huile, les voiles, les draps, le chanvre, tous les bois de charpente et tout ce qui sert a la construction des vaisseaux, les ancres, etc., sont mis au nombre des marchandises libres. Du Mont, t. vii, premiere partie, p. 37 38. II suffit de jeter les yeux sur les marchandises qui ont ete confisquees en Angleterre aux sujets prussiens, 64 THE PRUSSIAN CASE pour se convaincre qu'il n'y en a aucune qui, selon le droit des gens, les traites de commerce et NB. NB. les declara- tions du ministere anglois, puisse passer pour contrebande. Timber Car on confisqua du vaisseau prussien, Les Jumeaux, and grain une charge de bois ; du vaisseau hollandois, Les Trois Sceurs, conns- . . cated une pareille charge de bois ; et du vaisseau prussien, Le Prussian ^^ e ^ d'or, une cargaison de seigle, toutes marchandises ships. expressement exceptees de la contrebande dans la declara- tion du ministere anglois. 39. Si le ministere anglois avoit declare, des le com- mencement, qu'il regardoit ces marchandises comme de la contrebande, le Roi n'auroit pas manque de faire avertir ses sujets de n'en point hasarder 1'envoi, jusques a ce que Ton fut convenu la-dessus avec la cour d'Angleterre ; mais le ministere anglois ayant positivement declare qu'il regardoit lesdites marchandises comme libres, et le Roi ayant fait part de cette declaration a ses sujets, le susdit ministere ne peut en aucune maniere justifier le procede de ses armateurs. Present 4- ^ e P r ^sent ministere de 1'Angleterre cherche English vainement a justifier le procede des armateurs, par une repu- r ' raison qui choque egalement et le sens commun et les diate usages recus par tous les peuples polices. assurance , given by On avance que le precedent ministere n a pas ete en decess^rs" droit de faire de son chef de semblables declarations, et de determiner, centre la disposition des lois du pays, ce qui etoit contrebande ou ce qui ne 1'etoit pas. 41. On en appelle a tout 1'univers s'il est permis entre puissances d'user de tels fauxfuyants. The word On sait (i) qu'il est d'usage que les princes ne traitent fster for"" avec ^ es envo yes etrangers que par 1'entremise de leurs Foreign ministres ; on est done oblige d'aj outer foi a ce que ceux-ci binding 1 . 8 declarent au nom de leurs maitres aux envoyes qui traitent avec eux ; on y est force surtout, lorsque les ministres refusent, comme en cette occasion, de s'expliquer par ecrit. (2) Qui plus est, la susdite declaration n'a pas ete THE PRUSSIAN CASE 65 faite par un seul ministre, mais bien par deux ministres consecutifs, en differents temps et toutes les deux fois au nom de Sa Majeste Britannique. Seroit-il a presumer que deux ministres dont 1'integrite et le zele patriotique sont si universellement reconnus, se fussent oublies au point de declarer, au nom de leur maitre, une chose sur laquelle il ne leur eut pas donne ses ordres, de tromper d'une fagon aussi indigne une puissance etrangere, son alliee, et de tendre aux sujets de cette puissance des pieges aussi dangereux ? D'ailleurs on a deja fait voir (3) que les susdits ministres n'ont lien accorde que ce qui, selon le droit des gens et tous les traites entre puissances maritimes, se met toujours au rang des merchandises libres. 42. On a remarque, il est vrai, par certaines sentences emanees des tribunaux d'Angleterre, qu'on a confisque la cargaison de quelques vaisseaux neutres sur lesquels etoient chargees des marchandises prussiennes, et il sembleroit du premier coup d'ceil, que dans un tel cas les sujets prussiens ne seroient en droit d'exiger le dedom- magement que des maitres ou proprietaries du vaisseau. On n'en disconvient pas, et Ton tombe d'accord, que, si le vaisseau neutre eut porte de la contrebande, les sujets prussiens n'eussent pu avec justice pretendre a aucune indemnisation ; mais comme ils nient formellement, aussi bien que les capitaines desdits vaisseaux, que Ton [sic] y ait eu de la contrebande, et que par les sentences meme des tribunaux anglois il paroit clairement que les effets confisques n'etoient nullement de contrebande, ce pre- texte ne peut servir de rien aux armateurs, ni les exempter de reparer les dommages qu'ils ont causes. 43. II est done demontre qu'on a viole manifestement le droit des gens et contrevenu directement aux assurances donnees par le ministere anglois, lorsque Ton a arrete des vaisseaux neutres qui ne portoient point de contrebande, et qu'on a par la cause un dommage tres considerable aux sujets prussiens. 1783 F 66 THE PRUSSIAN CASE Whether questions of this sort should be sent to prize- courts for decision. QUESTION V Si le ministere anglois a ete en droit de renvoyer a un tribunal de marine etabli en Angleterre, la decision des differends de la nature de ceux qu'on a examines dans les questions precedentes, et qui s'agitent entre deux puissances libres, et de vouloir obliger la puissance lesee qui demande satisfaction, a sen tenir a ses decisions ? 44. Le ministere anglois, dans presque tous les cas ou les ministres de Prusse lui firent des representations au sujet des depredations et insolences commises en pleine mer contre des sujets prussiens, leur a declare : que le roi d' Angleterre avoit etabli dans ses tats des tribunaux expres, pour examiner et decider, selon les lois d'Angleterre, toutes les prises sur lesquelles il y avoit contestation, et pour administrer la justice a un chacun, lesquels ne manqueroient pas aussi de rendre justice aux sujets prussiens, s'ils les trouvoient fondes dans leurs plaintes. Qu'au surplus, ni le roi de la Grande- Bretagne ni son ministere ne pouvoient, ni changer, ni se departir de cet usage ou constitution de l'tat etabli dans le pays. 45. A 1'occasion de quoi, on ne sauroit s'empecher de Ministry demander de quel droit le ministere anglois s'arroge celui had no d'entrer en connoissance de cause et d'exercer une sorte right to . . exercise de jurisdiction sur un souveram neutre, sur ses sujets et trover ses vaisseaux arretes dans un lieu qui n'est point de la a neutral domination de 1'Angleterre, et ou les vaisseaux prussiens reign, or on ^ autant de droit que les anglois ? over his 46. D e q ue i oeil 1'Angleterre auroit-elle vu le Roi, dans and ships la derniere guerre du Nord, se saisir indifferemment de on the d * ous ^ es va -i sseaux anglois qui commergoient aux provinces high seas, septentrionales, les arreter en pleine mer, les visiter et freeto alL ^ es con duire dans ses ports, donner ensuite a decider au college de son amiraute s'ils etoient de bonne prise, les relacher sans aucun dedommagement apres des procedures de deux a trois ans, et les condamner encore au payement The English THE PRUSSIAN CASE 67 de deux, trois jusqu'a quatre mille ecus pour fraix de capture et de justice ? 47. Quand deux puissances se trouvent avoir entr'elles Disputes quelques differends, on ne peut d'aucun des deux cotes two Ween en appeler aux lois du pays, parce que 1'une des deux Powers i \ v r -x must be parties ne les reconnoit point ; 1 affaire se traite alors par settled voie de negotiation, et de coiir a cour, et le differend ne dl P|p- matically. se decide, du consentement des deux parties, que selon le droit des gens, ou par des moyens qui s'y trouvent fondes. 48. II auroit ete neanmoins tres indifferent au Roi que 9'eut ete le ministere anglois ou les tribunaux de cette nation qui eussent rendu justice a ses sujets ; mais comme ces tribunaux, centre le droit de la nature et des gens, n'ont procure auxdits sujets prussiens aucune reparation, on croit le ministere anglois trop raisonnable pour ne pas juger par lui-meme que le Roi est bien fonde de son cote a ne pas reconnoitre la jurisdiction desdits tribunaux pour competente, bien loin de se soumettre a leurs injustes decisions. 49. Et comme les ministres anglois se sont tou jours As the obstines, toutes les fois qu'on leur a fait des representa- Ministers tions au nom du Roi, a renvoyer ces sortes d'affaires a la have decision de leurs tribunaux et de leurs lois, Sa Majeste tothem- Prussienne, jouissant des memes droits et prerogatives selves th 5 '. J r . power of que Sa Majeste Bntannique, s est vue contrainte par la deciding de commettre dans ses tats 1'examen des griefs de ses sujets a ses propres tribunaux. Le Roi a cet effet a etabli by their une commission, composee de conseillers verses dans les COU rts, affaires de justice aussi bien que dans celles de commerce, th( L, Kin ? of Prussia cnargee, sous la direction de quatre de ses ministres, has been d'examiner les griefs de ses sujets, selon les lois du droit f^J^. dto des gens universellement re9u, et de constituer en con- their science et selon leur devoir un quantum precis et liquide, de ce a quoi les dommages de ses sujets peuvent monter. 50. C'est aussi ce que la commission a effectivement execute ; elle a exige des preuves legales de chaque F2 68 THE PRUSSIAN CASE liquidation des depens ; elle a modere d'une maniere equitable les articles qui paroissoient surcharges ; elle a deboute de leur prevention ceux des plaignants qui n'ont pas su les verifier dans les formes, et par consequent elle a agi en tout et rendu justice sans aucun egard a la personne et avec la plus grande impartialite. QUESTION VI Whether Et enfin, si, au contraire, le Roi riest pas pleinement of Prussfa f on ^ de deferer a I'arret que ses sujets I'ont supplie de was not mettre sur les capitaux anglois, stipules par la paix de irTindem- Breslau et de Dresde, qui se trouvent entre ses mains, pour mfymg procurer a ses sujets les dedommagements et la reparation jectsout convenaUes des violences exercees contre eux par les momfvs armateurs anglois, en depit du droit des gens et malgre les due to declarations formelles et reiterees par le minister e anglois ; subjects. ^ s i l & Ri n ' es t P as en droit d'indemniser ses sujets sur ces capitaux, puisqu'on leur a si longtemps denie toute la justice qu'ils etoient fondes de demander. 51. On a prouve, dans ce qui precede, que les sujets du Roi ont des preventions legitimes a former contre les armateurs anglois ; on y a vu que depuis 1745 jusqu'a present on n'a pu obtenir la-dessus aucune satisfaction du ministere anglois ; et enfin on vient de voir tout a 1'heure, que le Roi a fait examiner par une commission etablie dans ses etats le quantum precis desdites preten- tious, lequel monte NB. a 194,725 ecus, 14 gros, 5 deniers, y compris les interets jusqu'au 10 juillet 1752. II ne reste done plus que d'examiner les voies par lesquelles on puisse procurer aux sujets prussiens la satisfaction et le dedom- magement de leurs pertes. The right 52. C'est une regie etablie et par la raison et par le pdsais droit des gens, que lorsqu'un souverain denie aux sujets d'un autre la justice que ce dernier le fait requerir et solliciter de leur rendre, ou qu'il ne leur rend pas bonne justice, tant le souverain que ses sujets en sont respon- sables en leur pur et prive nom. THE PRUSSIAN CASE 69 Grot. Droit de la Guerre et de la Paix, L. 3, c. 2, 2. II Grotius, a ete etabli par le droit des gens que tous les biens des ^ s . . 5, . opinion. sujets d un Etat seroient comme hypotheques pour ce que 1'fitat ou le chef de l'tat doivent ou directement et par eux-memes, ou en tant que faute de rendre bonne justice, ils se sont rendus responsables d'une dette d'autrui. Grot. Droit de la Guerre et de la Paix, L. 3, c. 13, i, n. 2. Non seulement les biens du debiteur sont comme hypo- theques au creancier, mais encore ce qui appartient a ses sujets, qui sont comme repondant de la dette. Grot. L. 3, c. 2, 5 et 7. En ce cas-la on peut se saisir ou des personnes ou des effets mobiliaires des sujets du souverain, qui refuse de rendre justice. Cela n'est pas a la verite autorise par le droit de nature, mais 1'usage 1'a etabli presque partout ; ou il allegue plusieurs exemples de 1'antiquite. 53. Ce principe du droit des gens est fonde sur la raison naturelle, parce que les sujets sont censes approuver le fait de leur souverain et souscrire a son jugement, d'ou il s'ensuit naturellement qu'ils en repondent, et que, quand tout autre moyen manque, c'est a leur propre bien qu'on doit s'en prendre. 54. Or, puisque le Roi se trouve avoir en mains The King certains capitaux appartenant a des sujets anglois, et 9* Prussia ' therefore qui doivent leur etre payes a la decharge de la Silesie, has acted personne ne peut desapprouver, si usant du droit des gens, mitywtth et sur les instances faites par ses sujets, Sa Majeste arrete the law of ces capitaux, et s'en sert pour les indemniser. 55. Le ministere anglois a d'autant moins lieu de se recrier sur ce qu'on choisit un moyen si modere, puisque lui-meme dans un cas semblable, et avant d'avoir declare la guerre a 1'Espagne, 1'a suivi pendant plusieurs annees. 56. C'est a regret que le Roi se voit dans la necessite d'en venir a cette extremite, dont les suites retombent sur d'innocents membres d'une nation pour laquelle il a toujours eu toute la consideration imaginable, extremite 70 THE PRUSSIAN CASE a laquelle il n'auroit jamais eu recours, s'il avoit eu d'autres moyens de procurer satisfaction a ses sujets. 57. Le Roi, en agissant ainsi, ne fait que suivre les regies dictees par la plus exacte justice. II ne peut, sans manquer a ses devoirs de souverain et a sa gloire, refuser de proteger efncacement ses sujets, qui n'ont commerce sur le pied qu'ils 1'ont fait, qu'en se reposant sur la declara- tion royale qui avoit pour fondement la parole donnee par les ministres anglois. 58. Les sujets anglois qui sont les plus interesses dans cette affaire, trouveront peut-etre moyens, a 1'aide du Parlement, d'inspirer au ministere anglois des sentiments plus equitables ou de forcer les armateurs au payement reel des sommes liquidees dont ils sont comptables aux sujets prussiens, a quel effet ceux-ci transportent des ce moment aux rentiers interesses a la dette de la Silesie tous les droits qu'ils ont contre les susdits armateurs. Rejects 59- On ne comprend du tout point comment 1'entend the Eng- j e ministere anglois, lorsqu'il pretend que 1'Angleterre se that his trouveroit degagee de la garantie de la Silesie, du moment cancels ^ ue * e P avemen t de ces capitaux, garantis aux sujets the guar- anglois par les traites de paix de Breslau et de Dresde, et given to en vue desquels seulement la garantie de la Silesie avoit him for ete accordee. seroit interrompu ; il semble que dans le Silesia . . . cas en question le ministere anglois a de nouveau perdu de vue le droit des gens, car il n'est point question ici, ni de la precedente paix, ni du motif par lequel elle a ete conclue ; mais d'une nouvelle offense faite apres la con- clusion de la paix, par les sujets anglois a ceux du Roi, et c'est cette nouvelle injure qui engage le Roi a user de represailles pour en tirer satisfaction. 60. C'est un fait constant que ce ne fut qu'apres la P a * x ^ e Breslau de 1742 et celle de Dresde de 1745, con- the Eng- firmative de la precedente (par lesquelles d'un cote le Roi teers *~ s'engagea a payer a des sujets anglois plus d'un million began hypotheque sur la Silesie, et d'autre part le roi de la after the J r ^ treaty of Grandc-Bretagne, comme compns dans la meme paix, THE PRUSSIAN CASE 71 se chargea de la garantie de ce traite) ce ne fut que Dresden depuis que les armateurs anglois commencerent, malgre of I74 5- le droit des gens et les assurances positives du ministere de cette nation, a insulter tant les vaisseaux prussiens que les vaisseaux neutres sur lesquels les Prussiens avoient charge des marchandises permises, qu'ils pillerent les uns et trainerent les autres avec violence dans des ports d'Angleterre, d'ou apres les avoir detenus des annees entieres, ils les ont relaches a la fin, sans leur faire aucune satisfaction des dommages et fraix que la detention leur avoit causes, et en les condamnant meme a ceux de capture. 61. II est done question ici d'une nouvelle offense, qui ne tire point son origine de la precedente guerre, et qui n'a point de connexite avec elle, mais qui demande par elle- meme une nouvelle reparation. 62. Le Roi, pour obtenir reparation de cette nouvelle offense, est fonde dans le droit des gens de s'en prendre aux capitaux des sujets anglois, qu'il se trouve avoir en mains, aussi longtemps que ses sujets ne seront pas indem- nises. Voyez ci-dessus 52, 53. 63. La paix precedente ne re$oit par la aucune atteinte Opinion puisque, selon le droit des gens, la reparation d'une nou- Q rotius velle offense peut etre poursuivie (salva pace] sans inter- cited. rompre la paix. 64. L'illustre Grotius decide nettement la question par un principe fonde sur la raison naturelle : C'est une question (dit-il) qui se presente tous les jours, et qui est sou vent debattue, quand c'est que la paix peut etre regardee comme rompue, car autre chose est fournir un nouveau sujet de guerre par une nouvelle offense, et autre chose est rompre la paix. II y donne un exemple parallele au cas que Ton vient d'examiner ici : S'il arrive, qu'apres la paix conclue, 1'une des parties contractantes fait violence aux sujets de 1'autre, et par consequent V offense de nouveau, la paix ne laisse pas 72 THE PRUSSIAN CASE de subsister, mais alors la partie offensee peut NB. NB. (salva pace) sans violer la paix, recommencer la guerre pour ce nouveau sujet. Grot. Droit de la Guerre etdelaPaix,~L.3,c.2O,28 et 32 et c. 20, 32 et 33,11. 3. 65. Si done la paix conclue entre deux parties en guerre subsiste meme apres que 1'une des parties con- tractantes a souffert de nouveaux actes d'hostilite de la part de 1'autre, a combien plus forte raison ne doit-on pas regarder la paix comme subsistante, lorsque ce n'est que le mediateur et le garant de cette paix qui par une nouvelle injure donne lieu a 1'un des contractants, de mettre arret sur des choses stipulees dans cette paix, jusques a ce qu'il ait obtenu satisfaction de cette nouvelle injure ? The 66. Mais quand on s'aviseroit de soutenir contre toute peace of ra j son q ue (j u moins un pareil arret aneantiroit la garantie Chapeiie, promise aux traites de Breslau et de Dresde, celle qui est renewed' stipulee a 1'article 22 de la paix d'Aix-la-Chapelle du theguar- 18 octobre 1748, ne laisseroit pas de subsister toujours dans toute sa force, en tout cas le Roi se trouveroit aussi degage de celle qu'il a donnee a 1'egard de la succession de la famille regnante en Angleterre, et de celle des tats electoraux d'Hanovre. 67. II est done clair, par tout ce que dessus, que malgre 1' arret mis sur les capitaux anglois hypotheques sur la Silesie, la paix de Breslau, et par consequent la garantie du roi de la Grande-Bretagne et de 1' Angleterre, qui y est contenue, subsistent en leur entier ; garantie, que le Roi, si 1'occasion s'en presente, saura bien faire valoir en son temps. The lists of Prussian and of other neutral ships, A and B, will be found in Appendixes 34 and 35. CHAPTER VIII NEWCASTLE'S REPLY TO MICHELL THESE papers were referred to the Law Officers of the Papers Crown, Sir George Lee, Dean of the Arches, Dr. G. Paul, ^ r e ed Advocate-General, Sir Dudley Ryder, 1 Attorney-General, Law and Mr. William Murray, 2 Solicitor-General, who on Officers - January 18, 1753, presented their report. This, together Report with the draft of a reply in French to be addressed to nS Michell by Newcastle, 3 and all the Prussian documents, Michell were considered at a meeting of a Committee of the Privy dered Council held at Newcastle House on February 6, at which by the A Govern- the former two documents were approved. A resolution ment. was also adopted that copies of the reply and report should be sent to the diplomatic representatives at Paris, Madrid, Vienna, St. Petersburg, and the Hague, for presen- tation to the courts to which they were accredited. 4 Special instructions, it was agreed, should be addressed to Lord Albemarle, the Ambassador at Paris, to Benjamin Keene at Madrid and Keith at Vienna. The latter, together with the ministers at the Hague and St. Peters- burg, were to intimate that if any attack should be made upon his Majesty [evidently on his Hanoverian dominions is meant] he doubted not he might depend upon the immediate performance of their defensive engagements to himself. The reply to Michell was to the following effect : Reply to The King found the contents of the memorial presented MlchelL on November 23, with its annexes, so extraordinary that he was not willing to reply to it, nor take any resolution 1 Baron Ryder in 1756 ; Lord Chief Justice of the King's Bench, 1754- 2 Afterwards Lord Chief Justice of England, and created Baron Mansfield in 1756. 3 App. 36. 4 App. 37. 74 NEWCASTLE'S REPLY TO MICHELL thereon, until he had had the memorial as well as the Exposition des motifs, &c., which was presented shortly afterwards, maturely considered, and until he should be in a position to exhibit in their true light the proceed- ings of the British Admiralty Courts ; in order that his Prussian Majesty and every one else might be accurately informed of the regularity of their conduct, in which they appeared to have followed the only method ever practised by nations, where disputes of this kind could happen, and to have conformed themselves strictly to the law of nations, universally recognized as the only rule in such cases when there is nothing to the contrary stipulated by particular treaties between the Powers concerned, irregu- The reply proceeds to say that the examination will so the^pro- clearly show the irregularity of the proceedings of the ceedings persons to whom this affair was referred at Berlin, that Prussian it is anticipated his Prussian Majesty will revoke the Special detention of the sums secured on Silesia, the reimburse- Commis- . .... . sion. ment of which was an express article of the treaties by which that duchy was ceded. The writer is therefore ordered to send to Monsieur Michell the report made on the above-mentioned papers by the Law Officers, which is founded on the principles of the law of nations received and acknowledged in all countries. The points on which the whole affair turns are : First, That prize cases are cognizable only in the courts are cog- of the Power by which the capture was made, and that only by ^ erec "t foreign courts or jurisdictions elsewhere is con- the prize- trary to the known practice of all nations in the like cases ; courts of the Secondly, That the Admiralty Courts, which include captor, the inferior courts and the courts of appeal, decide accord- which 111-. decide ing to the universal law of nations only, except in cases to'thef 1 " 8 f particular treaties between the Powers concerned, law of which have altered the dispositions of the law of nations, nations j , < ,1 aml or deviate from them. treaties. Thirdly, That the decisions in the cases complained of cisions appear from the Report to have been made solely upon the NEWCASTLE'S REPLY TO MICHELL 75 rule prescribed by the law of nations, a rule clearly estab- com- lished by the constant practice of other nations, and by ]^"re the authority of the greatest men ; just. Fourthly, That in the case in question it cannot be pre- No treaty tended that there is any treaty which has altered this rule, Prussia. or by virtue of which the parties could claim any privilege which the law of nations does not allow them ; Fifthly, That as in the present case no just grievance No nor the least reason can be alleged for saying that justice has been denied when regularly demanded, and as in most prisais. of the cases complained of it was the complainants them- selves who neglected the only proper means of procuring it, there cannot be any just cause on which reprisals could be founded ; Sixthly, That even supposing reprisals might be The justified by the known and general rules of the law of dmTcm 5 nations, it appears from the Report, and indeed from the debt considerations which must occur to everybody, that sums persons due to the subjects of the King by the Empress-Queen, and secured by her upon Silesia, payment of which sums the sub- his Prussian Majesty took upon himself by the treaty of j, e r 2 a s re Breslau and by that of Dresden, in consideration of the cession of that country, and which by virtue of that very cession ought to have been fully and absolutely discharged in the year 1745, 1 that is to say, one year before any of the facts complained of did happen, could not either in justice or reason, or according to what is the constant practice between all the most respectable Powers, be seized or stopped by way of reprisals. The reply also observes that the debt was originally contracted by the Emperor Charles VI, who engaged to give the creditors such further security as they might afterwards reasonably ask, and this condition had been 1 The completion of payment of the debt contracted by the Emperor Charles VI should have taken place on January 10, 1745/6. The assertion in the text is not quite exact, for the Dorothee Sophie, No. 14 in the list of Prussian ships, was taken just one month earlier. 76 NEWCASTLE'S REPLY TO MICHELL very ill performed by a transfer of the debt, which had put it in the power of a third person to seize and con- fiscate it. It further asserts that in the late war the Admiralty Courts did not avail themselves of a state of open war to seize or detain the effects of an enemy where it appeared that those effects were wrongfully taken before the war. It concludes by suggesting that what has passed at Berlin has been occasioned solely by the ill-grounded information which his Prussian Majesty had received of these matters, and that when he should see them in their true light, his natural disposition in favour of justice and equity would induce him to rectify the steps which this information had occasioned, and to complete the payment of the debt charged on the Duchy of Silesia, conformably to his engagements in that respect. The Report of the Law Officers is reprinted verbatim, as has been done with the Exposition des motifs, etc., as these two documents set forth all the arguments relied on respectively by the two governments. CHAPTER IX REPORT OF THE LAW OFFICERS OF THE CROWN 1 To the KING'S most Excellent MAJESTY. May it Materials please your Majesty, Report. IN Obedience to your Majesty's Commands, signified to us by his Grace the Duke of Newcastle, we have taken the Memorial, Sentence of the Prussian Commissioners, and Lists marked A and B, which were delivered to his Grace by Mons. Michell, the Prussian Secretary here, on the 23d of November last ; and also the printed Exposition des Motifs, &c. which was delivered to his Grace the I3th of December last, into our serious Consideration. And we have directed the proper Officer to search the Registers of the Court of Admiralty, and inform us how the Matter appeared from the Proceedings there, in Relation to the Cases mentioned in the said Lists A and B, which he has accordingly done. And your Majesty having commanded us to report our Opinion, concerning the Nature and Regularity of the Proceedings, under the Prussian Commission, mentioned in the said Memorial ; and of the Claim or Demand pre- tended to be founded thereupon ; and how far the same 1 Dr. R. Koser quotes in a foot-note (Prenss.Staatsschr. 11.469) a report from the Prussian Minister at the Hague that : ' On trouve entre autres bien extraordinaire et meme un peu indecent que la cour de Londres ait repondu a un memoire en forme et sur 1' Exposition des motifs par une simple communication du rapport de quelques juges et juriscon- sultes particuliers. Les partisans anglois voudroient soutenir que Sa Majeste Britannique n'a choisi cette voie que pour mettre d'autant plus de moderation dans cette reponse.' This criticism, from whomever it may have emanated, can hardly be justified in the face of the very full statement in Newcastle's Note enclosing the report of the Law Officers of the Crown, who were not merely ' quelques juges et jurisconsultes particuliers '. They were at least of equal rank with the compilers of the ' Sentence ' and of the ' Exposition des motifs '. 78 REPORT OF THE CROWN LAW OFFICERS are consistent with, or contrary to, the Law of Nations, and any Treaties subsisting between your Majesty and the King of Prussia, the established Rules of Admiralty Jurisdiction, and the Laws of this Kingdom : For the greater Perspicuity, we beg leave to submit OUT Thoughts upon the whole Matter in the following Method : Method ist, To state the Clear Established Principles of Law. Report. 2dl y> To state the Fact ' 3dly, To apply the Law to the Fact. To observe upon the Questions, Rules and Reasonings alledged in the said Memorial, Sentence of the Prussian Commissioners, and Exposition des Motifs &c. which carry the Appearance of Objections, to what we shall advance upon the former Heads. First, as to the LAW. The law When two Powers are at war, they have a Right to make P nze - prizes of the Ships, Goods, and Effects, of each other upon the High Seas : Whatever is the Property of the Enemy, may be acquired by Capture at Sea ; but the Property of a Friend, cannot be taken, provided he observes his Neutrality. Hence the Law of Nations has established, That the Goods of an Enemy, on Board the Ship of a Friend, may be taken. That the lawful Goods of a Friend, on Board the Ship of an Enemy, ought to be restored. That Contraband Goods, going to the Enemy, tho' the Property of a Friend, may be taken as Prize ; because supplying the Enemy, with what enables him better to carry on the War, is a Departure from Neutrality. By the Maritime Law of Nations, universally and im- memorially received, there is an established Method of Determination, whether the Capture be, or be not, lawful Prize. judicial Before the Ship, or Goods, can be disposed of by the proceed- Captor, there must be a regular judicial Proceeding, co7ut of wherein both Parties may be heard, and Condemnation REPORT OF THE CROWN LAW OFFICERS 79 thereupon as Prize, in a Court of Admiralty, judging by the state the Law of Nations and Treaties. th The proper and regular Court for these Condemnations. Captor belongs, is the Court of that State, to whom the Captor belongs. The Evidence to acquit or condemn, with, or without, Costs or Damages, must, in the first Instance, come merely from the Ship taken, viz. the Papers on Board, and the Examination on Oath of the Master and other Principal Officers ; for which Purpose, there are Officers of Admiralty in all the considerable Sea Ports of every Maritime Power at War, to examine the Captains, and other Principal Officers of every Ship, brought in as Prize, upon General and Impartial Interrogatories : If their [sic] don't appear from thence Ground to condemn, as Enemies Property, or Contraband Goods going to the Enemy, there must be an Acquittal, unless from the aforesaid Evidence, the Property shall appear so doubtful, that it is reasonable to go into further Proof thereof. A Claim of Ship, or Goods, must be supported by the Oath of some body, at least as to Belief. The Law of Nations requires good Faith : Therefore every Ship must be provided with compleat and genuine Papers ; and the Master at least should be privy to the Truth of the Transaction. To enforce these Rules, if there be false or colourable Costs. Papers ; if any Papers be thrown over-board ; if the Master and Officers examined in Preparatorio grossly pre- varicate ; if proper Ship's Papers are not on Board ; or if the Master and Crew can't say, whether the Ship or Cargo be the property of a Friend or Enemy, the Law of Nations allows, according to the different Degrees of Misbehaviour, or Suspicion, arising from the Fault of the Ship taken, and other Circumstances of the Case, Costs to be paid, or not to be received, by the Claimant, in Case of Acquittal and Restitution. On the other Hand, if a Seizure is made, without probable Cause, the Captor is adjudged to pay Costs and Damages : For which Purpose, 8o REPORT OF THE CROWN LAW OFFICERS all Privateers are obliged to give Security for their good Treaties Behaviour ; and this is referred to, and expressly stipu- lated by many Treaties.* Though from the Ships Papers, and the preparatory Examinations, the Property don't sufficiently appear to be Neutral, the Claimant is often indulged with Time, to send over Affidavits to supply that Defect : If he will not shew the Property, by sufficient Affidavits, to be Neutral, it is presumed to belong to the Enemy. Where the Property appears from Evidence not on Board the Ship, the Captor is justified in bringing her in, and excused paying Costs, because he is not in Fault ; or, according to the Circumstances of the Case, may be justly intitled to receive his Costs. Court of If the Sentence of the Court of Admiralty is thought ppea . ^ Q ^ err0 neous, there is in every Maritime Country a superior Court of Review, consisting of the most con- siderable Persons, to which the Parties, who think them- selves aggrieved, may Appeal ; and this superior Court judges by the same Rule which governs the Court of Admiralty, viz. The Law of Nations, and the Treaties subsisting with that Neutral Power, whose Subject is a Party before them. If no Appeal is offered, it is an Acknowledgement of the Justice of the Sentence by the Parties themselves, and conclusive. Treaties This Manner of Tryal and Adjudication is supported, alluded to, and inforced, by many Treaties, f * Treaty between England and Holland, 17 Feb. 1668. Art. 13. Treaty i Dec. 1674. Art. 10. Treaty between England and France at St. Germains, 24 Feb. 1677. Art. 10. Treaty of Commerce at Ryswick, Sept. 20, 1697. between France and Holland, Art. 30. Treaty of Com- merce at Utrecht, 31 March, 1713. between Great Britain and France, Art. 29. f As appears, with respect to Courts of Admiralty adjudging the Prizes taken by those of their own Nation, and with respect to the Witnesses to be examined in those Cases, from the following Treaties. Treaty between England and Holland, 17 Feb. 1668. Art. 9. and 14. Treaty i Dec. 1674. Art. u. Treaty 29 April 1689. Art. 12, 13. REPORT OF THE CROWN LAW OFFICERS 81 In this Method, all Captures at Sea were try'd, during No other the last War, by Great Britain, France and Spain, and submitted to by the neutral Powers. In this Method, prize by Courts of Admiralty acting according to the Law of Nations, and particular Treaties, all Captures at Sea have immemorially been judged of, in every Country of Europe. Any other Method of Tryal would be manifestly unjust, absurd and impracticable. Tho' the Law of Nations be the general Rule, yet it Right of may, by mutual Agreement between two Powers, be timeof in varied or departed from ; and where there is an Alteration war. or Exception, introduced by particular Treaties, that is the Law between the Parties to the Treaty ; and the Law of Nations only governs so far as it is not derogated from by the Treaty. Thus by the Law of Nations, where two Powers are at Treaties War, all Ships are liable to be stopped, and examined to ^ v ^f y whom they belong, and whether they are carrying Con- also the traband to the Enemy : But particular Treaties have contra- enjoined a less Degree of Search, on the Faith of producing ^ and > *_ solemn Passports, and formal Evidences of Property, of an dnlv attested enemy on auiy aiiesiea. board of Treaty between England and Spain, 23 May, 1667. Art. 23. Treaty of a neut ral Commerce at Ryswick, 20 Sept. 1697. between France and Holland, s P' C> Art. 26 and 31. Treaty between England and France, 3 Nov. 1655. Art. 17 and 18. Treaty of Commerce between England and France at St. Germains, 29 March, 1632. Art. 5 and 6. Treaty at St. Germains, 24 Feb. 1677. Art. 7. Treaty of Commerce between Great Britain and France, at Utrecht, 31 March, 1713. Art. 26 and 30. Treaty between England and Denmark, 29 Nov. 1669. * Art. 23 and 34. Heineccins, who Heinec- was Privy-Councellor to the King of Prussia, and held in the greatest cius cited. Esteem, in his Treatise de Navibus ob vecturam vetitarum mercium corn- missis. Cap. 2. Sect. 17 and 18, speaks of this Method of Tryal. With Respect to Appeals or Reviews : From Treaty between England and Holland, i Dec. 1674. Art. 12, as it is explained by Art. 2, of the Treaty at Westminster, 6 Feb. 1715-16. Treaty between England and France, at St. Germains, 24 Feb. 1677, Art. 12. Treaty of Commerce at Ryswick, 20. Sept. 1697, between France and Holland, Art. 33. Treaty of Commerce at Utrecht, 31 March, 1713, between Great Britain and France, Art. 31 and 32, and other Treaties. 1 This date is wrong. The treaty was signed July n, 1670. 1783 G 82 REPORT OF THE CROWN LAW OFFICERS Particular Treaties too have inverted the Rule of the Law of Nations, and, by Agreement, declared the Goods of a Friend, on Board the Ship of an Enemy, to be Prize ; and the Goods of an Enemy, on Board the Ship of a Friend, to be free, as appears from the Treaties already mentioned, and many others.* So likewise, by particular Treaties, some Goods, reputed Contraband by the Law of Nations, are declared to be free. If a Subject of the King of Prussia is injured by, or has a Demand upon, any Person here, he ought to apply to your Majesty's Courts of Justice, which are equally open and indifferent to Foreigner or Native : so vice versa, if a Subject here is wronged by a Person living in the Dominions of his Prussian Majesty, he ought to apply for Redress in the King of Prussia's Courts of Justice. If the Matter of Complaint be a Capture at Sea during War, and the Question relative to Prize, he ought to apply to the Judicatures established to try these Questions. Condi- The Law of Nations, founded upon Justice, Equity, t: ? s on Convenience, and the Reason of the Thing, and confirmed prisais by long Usage, don't allow of Reprizals, except in Case allowed ^ v il ent Injuries, directed or supported by the State, by the a nd Justice, absolutely denied, in Re minime dubid, by nations, all the Tribunals, and afterwards by the Prince, f Where the Judges are left free, and give Sentence according to their Conscience, though it should be erroneous, that would be no Ground for Reprizals. Upon doubtful Questions, different Men think and judge differently ; and all a Friend can desire, is, that Justice should be as impartially administred to him, as it is * Particularly by the aforesaid Treaty between England and Holland, I Dec. 1674, and the Treaty of Utrecht, between Great Britain and France. f Grotius de Jure Belli ac Pads, Lib. 3. Cap. 2. Sect. 4, 5. Treaty between England and Holland, 31 July, 1667. Art. 31. Re- prizals shall not be granted, till Justice has been demanded according to the ordinary Course of Law. Treaty of Commerce at Ryswick, 20 Sept. 1697. between France and Holland, Art. 4. Reprizals shall not be granted, but on manifest Denial of Justice. REPORT OF THE CROWN LAW OFFICERS 83 to the Subjects of that Prince, in whose Courts the Matter is try'd. Secondly, As to the FACT. We have subjoined hereto two Lists, tallying with those Analysis marked A. and B., which were delivered to His Grace the and B de- Duke of Newcastle, by Mons. Michell, with the said Memorial, the 23d of November last ; and are also printed at the End of the said Exposition des Motifs, &c. From whence it will appear, that as to the List A. which con- tains 18 Ships and their Cargoes, Four, if ever taken, were restored by the Captors them- 4 selves, to the Satisfaction of the Prussians, who never have complained in any Court of Justice here. One was restored by Sentence, with full Costs and i Damages, which were liquidated at 28oi/. I2s. id. Sterling. Three ships were restored by Sentence, with Freight, 3 for such of the Goods as manifestly belonged to the Enemy, and were condemned. Four Ships were restored by Sentence, but the Cargoes 4 or Part of them, condemned as Prize, or Contraband, and are not now alledged, in the Lists A. or B. to have been Prussian property. Five Ships and Cargoes were restored by Sentence, but 5 the Claimant subjected to pay Costs, because, from the Ship-Papers, and Preparatory Examinations, there was Ground to have condemned : and the Restitution was de- creed, merely on the Faith of Affidavits afterwards allowed. One Ship and Cargo was restored by Sentence upon _L an Appeal, but, from the Circumstances of the Capture, without Costs on either Side. There need no Observations upon this List. As to the eight Cases first above mentioned, there cannot be the Colour of Complaint. As to the four next, the Goods must be admitted to have been rightly condemned, either as Enemy's Pro- perty, or Contraband, for they are not now mentioned in the Lists A. or B. G2 84 REPORT OF THE CROWN LAW OFFICERS If Contraband, the Ship could have neither Freight nor Costs, and the Sentences were favourable, in restoring the Ships, upon Presumption that the Owners of the Ships were not acquainted with the Nature of the Cargo, or Owners thereof. If Enemy's Property, the Ships could not be entitled to Freight, because the Bills of Lading were false, and purported the Property to belong to Prussians. The Ships could not be intitled to Costs, because the Cargoes, or Part of them, being lawful Prize, the Ships were rightly brought in. As the six remaining Ships and Cargoes were restored, the only Question must be, upon the Paying or not Receiving Costs, which depends upon the Circumstances of the Capture, the Fairness of the Ship's Documents, and Con- duct of her Crew ; and neither the Prussian Commis- sioners, the said Memorial, or said Exposition des Motifs, &c. alledge a single Reason, why, upon the particular Circumstances of these Cases, the Sentences were wrong. List B. As to the List B. Every Ship, on Board which the Subjects of Prussia claim to have had Property, was bound to, or from, a Port of the Enemy ; and many of them appeared clearly to be, in Part, laden with the Goods of the Enemy, either under their own, or fictitious Names. In every Instance, where it is suggested that any Part of the Cargo belong'd to a Prussian Subject, though his Property did not appear from the Ship's Papers, or Pre- paratory Examinations, which it ought to have done, sufficient Time was indulged to that Prussian Subject, to make an Affidavit, that the Property was bona fide in him : And the Affidavit, of the Party himself, has been received as Proof of the Property of the Prussian, so as to intitle him to Restitution. Where the Party will not swear at all, or swears evasively, it is plain he only lends his Name, to cover the Enemy's Property, as often came out to be the Case beyond the Possibility of Doubt. REPORT OF THE CROWN LAW OFFICERS 85 It appears by a Letter 29 May/9 J une I 747> 1 from Mons. Andrie to Andrie to his Prussian Majesty, exhibited in a Cause, ^ r ^ derick and certified to be a true Extract by Mons. Michell under warning his Hand, that this colourable Manner, of screening the subfectT Goods of the Enemy, was stated in the following not t TTT j carry Words. enemy ' Your Majesty's Subjects ought not to load on Board |^ s for Neutral Ships, any Goods really belonging to the account. Enemies of England, but to load them for their own Account, whereby they may safely send them to any Country they shall think proper, without running any Risk : Then, if Privateers commit any Damage to the Ships belonging to your Majesty's Subjects ; you may depend on full Justice being done here, as in all the like Cases hath been done.' List B, contains Thirty-three Cases, Two of them never came before a Court of Justice in 2 England, but (if taken) were restored by the Captors themselves, to the entire Satisfaction of the Owners. In Sixteen of them, the Goods claimed by the Prussian 16 Subjects, appear to have been actually restored, by Sentence, to the Masters of the Ships in which they were laden ; and, by the Customs of the Sea, the Master is in the Place of the Lader, and answerable to him. In Fourteen of the Cases, the Prussian Property 14 was not verified, by the Ship's Papers, or preparatory Examinations, or Claimant's own Affidavit, which he was allowed Time to make. And the other Cause, with respect to Part of the Goods, JL is still depending, neither Party having moved for Judg- M ment.* And so conscious were the Claimants, that the Court of Admiralty did Right, there is not an Appeal, in a single Instance, in List B, and but one, in List A. 1 Misprint in the original for 1744. * The Prussian has since applied for Judgment on the 29th of January, and obtained Restitution. 86 REPORT OF THE CROWN LAW OFFICERS Thirdly, To apply the Law to the FACT. The Sixth Question, in the said Exposition des Motifs, &c. states the Right of Reprisals to be, puisqu'on leur a si long Terns denie toute la Justice, qu'ils etoient fondes [sic] de demander. The as- The said Memorial founds the Justice, and Propriety that n * his P russ ^ an Majesty's having Recourse to Reprisals ; Prussian because his Subjects, n'ont PU obtenir jusqu'd present had bee S n aucune Justice des Tribunaux Anglois qu'ils ont reclames, denied ou d u Gouvernement auquel Us ont porte leurs Plaintes. msticc refuted. And in another Part of the Memorial it is put, apres avoir en vain demande des Reparations de ceux qui Seuls pouvoient les faire. The contrary of all which is manifest from the above State, and Lists hereto annexed. In Six of the Cases specified, If such Captures ever were made, the Prussian Subjects were so well satisfied with the Restitution made by the Captors, that they never complained in any Court whatsoever of this Kingdom. The rest were judged of, by a Court of Admiralty, the only proper Court to decide of Captures at Sea, both with respect to the Restitution, and the Damages and Costs ; acting according to the Law of Nations, the only proper Rule to decide by : And Justice has been done by the Court of Admiralty so impartially ; that all the Ships, alledged in List A, to have been Prussian, were restored ; and all the Cargoes, mentioned in either List, A or B, were restored, excepting Fifteen, one of which is still undetermined. And, in all the Cases in both Lists, Justice was done, so entirely to the Conviction of the private Conscience of the Prussian claimants, that they have acquiesced under the Sentences, without appealing, except in one single Instance, where the Part of the Sentence complained of was reversed, though the Prussian Claimants must know, that, by the Law of Nations, they ought not to complain to their own Sovereign, till Injustice, in Re minime dubid, REPORT OF THE CROWN LAW OFFICERS 87 was finally done them, past Redress ; and though they must know, that Rule of the Law of Nations held more strongly upon this Occasion, because the Property of the Prize was given to the Captors, and ought, therefore, to be litigated with them. The Prussian, who, by his own Acquiescence, submits to the Captors having the Prize, cannot afterwards with Justice make a Demand upon the State. If the Sentence was wrong, it is owing to the Fault of the Prussian, that it was not redressed. But, it is not attempted to be shewn even now, that these Sentences were unjust in any Part of them, according to the Evidence and Circum- stances appearing before the Court of Admiralty, and that is the Criterion. For as to the Prussian Commission to examine these The Cases, ex parte, upon new Suggestions ; it never was attempted in any Country of the World before : Prize, sion de- or not Prize, must be determined by Courts of Admiralty, ex p arie belonging to the Power whose Subjects make the Capture : Every Foreign Prince in Amity, has a Right to Demand that Justice shall be done his Subjects in those Courts, according to the Law of Nations, or par- ticular Treaties, where any are subsisting. If in Re minime dubid these Courts proceed upon Foundations directly opposite to the Law of Nations, or subsisting Treaties, the Neutral State has a Right to complain of such Determination. But there never was, nor ever can be, any other Equit- able Method of Tryal. All the Maritime Nations of Europe, have, when at War, from the earliest Times, uniformly proceeded in this Way, with the Approbation of all the Powers at Peace. Nay, the Persons acting under this extraordinary and unheard of Commission from his Prussian Majesty, don't pretend to say, that in the Four Cases of Goods condemned here, for which Satisfaction is demanded in List A, the Property really belonged to Prussian Subjects : But they profess to proceed upon 88 REPORT OF THE CROWN LAW OFFICERS this Principle, evidently false, that, tho' these Cargoes belonged to the Enemy, yet being on Board any Neutral Ship, they were not liable to Enquiry, Seizure, or Condemnation. Fourthly, From the Questions, Rules, Reasonings, and Matters alledged in the said Memorial, Sentence of the Prussian Commissioners, and Exposition des Motifs, &c. the following Propositions may be drawn, as carrying the Appearance of Objections, to what has been above laid down. First Proposition. Prussian That by the Law of Nations, the Goods of an Enemy cannot. that 1 1 be taken on Board the Ship of a Friend ; and, this the enemy's Prussian Commissioners lay down as the Basis of all they goods cannot be have pretended to do. ^neutral Answer. The Contrary is too Clear to admit of being ship an- disputed. It may be proved, by the Authorities of every swere . \y r j ter U p On the Law of Nations ; some of different Countries are referred to.* It may be proved by the constant Practice, Antient and Modern, but the General * II Consolato del Mare, cap. 273, expresly says, The Enemy's Goods, found on Board a Friend's Ship, shall be confiscated. And this is a Book of great Authority. GROTIUS de Jure Belli ac Pads, lib. iii, cap. i, Section 5, numero 4, in the Notes, cites this Passage, in the il Consolato, and in his Notes, lib. iii, cap. 6, Sect. 6. LOCCENIUS de Jure Maritime, lib. ii, cap. 4, Sect. 12. VOET de Jure Militari, cap. 5, nu. 21. HEINECCIUS, the learned Prussian before quoted, de Navibus ob Vecturam vetitarum Mercium commissis, Cap. 2, Sect. 9, is clear and explicit upon this point. BYNKERSHOECK, Quaestiones Juris Publici, lib. i, cap. 14, per totum. ZOUCH (an Englishman) in his Book de Judicio inter Gentes, pars 2, Sect. 8, numero 6. Treaty between Great Britain and Sweden 23 Oct. 1661, Art. 12 and 13, Treaty between Great Britain and Denmark, 29 Nov. 1669, Art. 2 d, And the Passport or Certificate, settled by that Treaty, are Material as to this Point. REPORT OF THE CROWN LAW OFFICERS 89 Rule cannot be more strongly proved, than by the Excep- tion, which particular Treaties have made to it.* Second Proposition. // is alledged that Lord Carteret, in 1744, by two Verbal Assur- Declarations, gave Assurances in your Majesty's Name, tributeV that nothing on Board a Prussian Ship should be Seized, to Carteret except Contraband ; consequently, that all Effects, not do not Contraband, belonging to the Enemy, should be free, and, warrant that these Assurances were afterwards confirmed in Writing ences by Lord Chesterfield, the $th of January, 1747. J r r a ^ n Answer. The Fact makes this Question not very them, material, because there are but four Instances, in Lists A or B, where any Goods, on Board a Prussian Ship, have been Condemned ; and no Satisfaction is pretended to be demanded, for any of those Four Cargoes in Lists A and B. However it may be proper to shew how ground- less this Pretence is. Taking the Words, alledged to have been said by Lord Carteret, as they are stated ; They don't warrant the Inferences endeavoured to be drawn from them. They import no New Stipulation, different from the Law of Nations ; but expressly profess to treat the Prussians, upon the same Foot with the Subjects of other Neutral Powers under the like Circumstances ; i. e. with whom there was no particular Treaty. For the Reference to other Neutral Powers, cannot be understood to com- municate the Terms of any particular Treaty. It is not so said. The Treaties with Holland, Sweden, Russia, Portugal, Denmark, &c. all differ. Who can say which was communicated ? There would be no Reciprocity ; the King of Prussia don't agree to be bound by the * Treaty between France and England, 24 Feb. 1677, Art. 8. Treaty of Utrecht, between France and England, 1713, Art. 17. Treaty be- tween England and Holland, 17 Feb. 1668, Art. 10. Treaty between England and Holland, i Dec. 1674, Art. 8. Treaty between England and Portugal, 10 July, 1654, Art. 23. Treaty between France and the States General at Utrecht, n April, 1713, Art. 26. 90 REPORT OF THE CROWN LAW OFFICERS Clauses, to which other Powers, have, by their respective Treaties, agreed. No Prussian Goods, on Board an Enemy's Ship, have ever been Condemned here ; and yet they ought, if the Treaties with Holland were to be the Rule between Great Britain and Prussia ; nay, if these Treaties were to be the Rule, all now contended for, on the Part of Prussia, is clearly wrong. Because, by Treaty, the Dutch, in the last Resort, are to apply to the Court of Appeal here. Anglo- Treaty of Alliance between Great Britain and Holland, P ut ^ h , at Westminster the 6th of Feb. 1715-16, Article II. treaty of J / J explain^ ' Whereas some Disputes have happened, touching the ing Art. Explanation of the I2th Article of the Treaty Marine treaty of m T ^7^- ^ is agreed and concluded, for deciding any I6 74- Difficulty upon that Matter, to declare, by these Presents, that by the Provisions mentioned in the said Article, are meant those which are received by Custom in Great Britain and in the United Provinces, and always have been received, and which have been Granted, and always are Granted, in the like Case, to the Inhabitants of the said Countries, and to every Foreign Nation.' Lord Carteret is said twice to have refused, in which Monsieur Andrie acquiesces, to give any Thing in Writing, as not usual in England. Supposing the Conversations to mean no more, than a Declaration of Course, that Justice should be done to the Prussians, in like Manner as to any other Neutral Power, with whom there was no Treaty; there was no Occasion for Instruments in Writing ; because in England the Crown never interferes with the Course of Justice. No Order or Intimation is ever given to any Judge. Lord Carteret therefore knew that it was the Duty of the Court of Admiralty to do equal Justice, and that they would, of themselves, do what he said to Monsieur Andrie. Had it been intended, by Agreement, to introduce, between Prussia and England, a Variation, in any Par- REPORT OF THE CROWN LAW OFFICERS 91 ticular, from the Law of Nations ; and consequently, a New Rule, for the Court of Admiralty, to decide by ; it could only be done by a Solemn Treaty, in Writing, properly Authorized, and Authenticated. The Memory of it could not otherwise be preserved ; the Parties interested, and the Courts of Admiralty could not, other- wise, take Notice of it. But Lord Chesterfield's Confirmation, in a Letter of the 5th of January 1747, being relied upon ; the Books of the Secretary's Office have been searched, and the Letter to Mons. Mitchell is found, which is verbatim as follows. ' a Whitehall, le 5 Janv r . 1747-8. chester- ' Monsieur. ^L d>S x letter to ' AY ANT eu 1'Honneur de recevoir les Ordres du Roy Micheii. sur ce qui a forme le sujet du Memoire, que vous m'avez remis, du 8 de ce Mois, N.S. Je n'ai pas voulu tarder a vous informer que sa Majeste, pour ne rien omettre, par ou Elle peut temoigner ses Attentions envers le Roy, votre Maitre, ne fait nulle Difficult e de declarer qu'Elle n'a jamais eu I'lntention, ni ne 1'aura jamais, de donner le moindre Empechement a la Navigation des sujets Prussiens, tant qu'ils auront soin d'exercer leur Com- merce d'une Maniere licite, et conformement a 1'ancien Usage etabli et reconnu parmi les Puissances Neutres. ' Que Sa Majeste Prussienne ne peut pas ignorer, qu'il y a des Traites de Commerce qui subsistent actuellement, entre la Grande-Bretagne, et certains Etats Neutres, et qu'au Moyen des Engagemens formellement contracted de Part et d'autre, par ces memes Traites, tout ce qui regarde la Maniere d'exercer leur Commerce reciproque- ment, a ete finalement constate et regie. ' Qu'en meme terns il ne paroit point, qu'aucun Traite de la Nature susdite existe a present, ou a jamais existe, entre Sa Majeste et le Roy de Prusse ; mais, que pour- tant, cela n'a jamais empeche que les Sujets Prussiens n'ayent ete favorises par L'Angleterre, par raport [sic] a leur 92 REPORT OF THE CROWN LAW OFFICERS Navigation, autant que les autres Nations Neutres : Et cela etant, Sa Majeste nepresuppose pas, que 1'Idee [sic] du Roy votre Maitre, seroit d'exiger d'Elle des Distinctions, encore moins des Preferences, en faveur de ses Sujets a cet egard. ' Que de plus Sa Majeste Prussienne est trop eclairee pour ne pas connoitre, qu'il y a des Loix fixes et etablies dans ce Gouvernement, dont on ne peut nullement s'ecarter ; et que s'il arrivoit que la Marine Angloise s'avisat de faire la moindre Injustice aux Sujets Com- mersans du Roy votre Maitre, il y a un Tribunal ici, savoir, la Haute Cour de I'Amiraute, a laquelle Us se trouvent en droit de s'adresser, et de porter leurs Plaintes ; assures d'avance, en pareil Cas, qu'on leur y rendra bonne Justice ; Les Precedes Juridiques de ladite Cour etant et ayant ete de tout terns hors d'At- teinte, et irreprochables ; Temoin, Nombre d'Exemples, ou des Vaisseaux Neutres, pris illicitement, ont ete restitues avec Fraix et Dommages aux Proprietaires. ' Voici ce que le Roy m'a ordonne de vous repondre sur le Contenu de votre dit Memoire ; Et Sa Majeste ne sauroit que se flatter, qu'en Consequence de ce que Je viens d'avancer, il ne restera plus rien a desirer au Roy votre Maitre relativement a 1'Objet dont il est question ; Et le Roy s'en croit d'autant plus assure, qu'il est persuade que sa Majeste Prussienne ne voudroit rien demander, qui ne fut [sic] equitable. ' Je Suis avec bien de la Consideration, Monsieur, Votre tres humble, & tres Obeissant Serviteur, CHESTERFIELD/ Puts There need no Observations. It is Explicit, and in onThlf Express Terms puts Prussia upon the Foot of other Neutral footing of Powers with whom there was no Treaty ; and points out Powers the proper Way of applying for Redress. REPORT OF THE CROWN LAW OFFICERS 93 The verbal Declarations made by Lord Carteret in 1744, with which are said to have been confirmed by this Letter from th^ was Lord Chesterfield, cannot have meant more than the Letter no treaty. expresses. And it is manifest, by the above Extract from Monsieur Andrie's Letter to his Prussian Majesty, that in May 1747, 1 Monsieur Andrie himself understood, that Goods of the Enemy, taken on Board Neutral Ships, ought to be condemned as Prize. It is evident, from Authentick Acts, that the Subjects of Prussia never understood that any new Right was communicated to them. Before the Year 1746, the Prussians don't appear to have openly engaged in Covering the Enemy's Property. The Men of War and Privateers could not abstain from Carteret's Captures, in Consequence of Lord Carteret's verbal Assur- ances in 1744 ; because they never were nor could be J 744 known : And there was no Occasion to notify them, sup- fiedto * posing them only to promise impartial Justice. For all crulsers - Ships of War were bound to act, and Courts of Admiralty to judge, according to the Law of Nations, and Treaties. Till 1746, the Prussian Documents were, a Certificate of the Admiralty, upon the Oath of the Builder, that the Ship was Prussian built ; and a Certificate of the Admiralty, upon the Oath of the Owner, that the Ship was Prussian Property. From 1746, the Prussians engaged in the gainful Prac- tice of Covering the Enemy's Goods ; but were at a Loss in what Shape, and upon what Pretences, it might best be done. On Board the Ship the 3 Sceurs, was found a Pass, bearing Date at Stettin the 6th of October 1746, under the Royal Seal of the Prussia Regency of Pomerania, &c. alledging the Cargo, which was Ship Timber, bound for Port I'Orient, to be Prussian Property, and, in Conse- quence thereof, claiming Freedom of the Ship. 1 Misprint tor 1744 in original. 94 REPORT OF THE CROWN LAW OFFICERS Claiming Freedom to the Ship, from the Property of the Cargo, being quite new, the Proposition was after- wards reversed : And on Board a Ship, called the Jumeaux, was found a Pass, bearing Date at Stettin the 27th of June 1747, under the Royal Seal, &c. alledging the Ship to be Prussian Property, and, in Consequence thereof, claiming Freedom to the Goods. But this Pass was not solely relied on, for there was also found on Board the same Ship, another Pass, bearing Date at Stettin the I4th of June 1747, under the Royal Seal, cSr. alledging the Cargo to be Prussian Property. And it is remarkable, that the Oaths, upon which these Passes were granted, appeared manifestly to be false : And neither of the Cargoes, to which they relate, are now so much as alledged to have been Prussian Property in said Lists A or B. It being mentioned, in the said Exposition des Motifs, &c. that Mons. Michell, in September 1747, made verbal Representations to Lord Chesterfield, in Respect to the Cargo, taken on Board the said Ship called the 3 Sceurs, which was claimed as Prussian Property ; and no Men- tion being made in Lists A and B of the said Cargo ; we directed the Proceedings in that Cause to be laid before us, where it appears in the fullest and clearest Manner, from the Ship-Papers and Depositions, that the Cargo was Timber, laden on the Account, and at the Risque, of French Men, to whom it was to be delivered, at Port I' Orient, they paying Freight according to Charter- Party. That the Prussian Claimant was neither Freighter, Lader, or Consignee ; and had no other Interest or Concern in the Matter, than to lend his Name and Conscience : For he swore, that the Cargo was his Property, and Laden on or before the 6th of October, 1746 ; and yet the Ship was then in Ballast, and the whole of the Cargo in Question was not Laden before May 1747. Several other Prussian Claims had, in like Manner, come out so clearly to be merely colourable, that REPORT OF THE CROWN LAW OFFICERS 95 Mons. Andrie, from his said Letter, 29 May/g June I747, 1 appears to have been ashamed of them. Third Proposition. That Lord Carteret, in his said two Conversations, That specified, in your Majesty's Name, what Goods should be deemed Contraband. certain Answer. The Fact makes this Question totally im- Is contra- material. because no Goods condemned as Contraband. b ^ nd not relevant. or which were alledged to be so, are so much as now suggested to have been Prussian Property in the said Lists A and B ; and, therefore, whether as Enemy's Property, or Contraband ; they were either Way rightly condemned ; and the Bills of Lading being false, the Ships could not be intitled to Freight. But, if the Question was material, the verbal Declara- Verbal tions of a Minister in Conversation, might shew what he ^^f' thought Contraband by the Law of Nations ; but never Minister could be understood to be equivalent to a Treaty, dero- gating from that Law. show All the Observations, upon the other Part of these thought verbal Declarations, hold equally as to this. * 1 ? ec n ~ J traband. Fourth Proposition. That the British Ministers have said that these Questions British were decided according to the Laws of England. cannot* 8 Answer. They must have been misunderstood ; for have said the Law of England says, that all Captures at Sea, as pr ize Prize, in Time of War, must be judged of in a Court of cases 3 were Admiralty, according to the Law of Nations, and particu- decided lar Treaties, where there are any. u^^of There never existed a Case, where a Court, judging England. according to the Laws of England only, ever took Cognizance of Prize. The Property of Prizes being given, during the last War, to the Captors ; your Majesty could not arbitrarily 1 Misprint for 1744 in original. 96 REPORT OF THE CROWN LAW OFFICERS Release the Capture, but left all Cases to the Decision of the proper Courts, judging by the Law of Nations and Treaties, where there were any : And it never was imagined, that the Property of a Foreign Subject, taken as Prize on the High Seas, could be affected by Laws peculiar to England. Fifth Proposition. Right of That your Majesty could no more erect Tribunals for to^et up" trying these Matters than the King of Prussia, prize- Answer. Each Crown has, no doubt, an equal Right courts asserted, to erect Admiralty Courts, for the Tryal of Prizes taken by Virtue of their respective Commissions ; but neither has a Right to try the Prizes taken by the other, or to reverse the Sentences given by the other's Tribunal. The only regular Method of rectifying their Errors, is, by Appeal to the superior Court. This is the clear Law of Nations ; and, by this Method, Prizes have always been determined, in every other Mari- time Country of Europe, as well as England. Sixth Proposition. The free- That the Sea is Free. theseais Answer. They who maintain that Proposition in its not in utmost Extent, don't dispute but that when two Powers are at War, they may seize the Effects of each other upon the High Seas, and on Board the Ships of Friends : Therefore that Controversy is not in the least applicable upon the present Occasion.* Seventh Proposition. Spanish Great Britain issued Reprizals against Spain, on Account ^British f Captures at Sea. ships Answer. These Captures were not made in Time of made in War with any Power. time of peace. * This appears from Grotius in the Passages above cited, Lib. 3. Cap. i. Sect. 5. Nu. 4. in his Notes. And Lib. 3. Cap. 6. Sect. 6. in his Notes. REPORT OF THE CROWN LAW OFFICERS 97 They were not judged of by Courts of Admiralty, according to the Law of Nations and Treaties, but by Rules, which were themselves complained of, in Revenue Courts : The Damages were afterwards admitted, liqui- dated at a certain Sum, and agreed to be paid by a Con- vention, which was not performed. Therefore Reprizals issued ; but they were general. No Debts due here to Spaniards were stopped ; no Spanish Effects here were seized. Which leads to one Observation more. The King of Prussia has engaged his Royal Word to pay the Silesia Debt to private Men. It is negotiable, and many Parts may have been Silesian assigned to the Subjects of other Powers. It will not be gotkbie 6 ' easy to find an Instance, where a Prince has thought fit and ma y tlclVC to make Reprizals, upon a Debt, due from himself to passed private Men. There is a Confidence that this will not be ! nto , the , hands of done ; a private Man lends Money to a Prince, upon the subjects Faith of an Engagement of Honour, because a Prince cannot be compelled, like other Men, in an adverse Way, by a Court of Justice. So scrupulously did England, France and Spain adhere to this Public Faith, that, even during the War, they suffered no Enquiry to be made, whether any Part of the Public Debts was due to Subjects of the Enemy, tho' it is certain, many English had Money in the French Funds, and many French had Money in ours. This Loan to the late Emperor of Germany, Charles the Vlth, in January 1734-5, was not a State Transac- tion, but a mere private Contract with the Lenders, who advanced their Money, upon the Emperor's obliging him- self, his Heirs and Posterity, to repay the Principal with Interest, at the Rate, in the Manner, and at the Times in the Contract mentioned, without any Delay, Demurr, Deduction, or Abatement whatsoever ; and, lest the Words and Instruments made use of should not be strong enough, he promises to secure the Performance of his Contract, in and by such other Instruments, Method, Manner, Form, and Words, as should be most effectual and valid, to bind 1783 H 98 REPORT OF THE CROWN LAW OFFICERS the said Emperor, his Heirs, Successors and Posterity, or as the Lenders should reasonably desire. As a specific real Security, he mortgaged his Revenues, arising from the Dutchies of Upper and Lower Silesia, for Payment of Principal and Interest ; and the whole Debt, Principal and Interest, was to be discharged in the Year 1745. If the Money could not be paid out of the Revenues of Silesia, the Emperor, his Heirs and Posterity, still remained Debtors, and were bound to pay. The Eviction or Destruction of a Thing mortgaged, don't extinguish the Debt, or discharge the Debtor. Therefore the Empress-Queen, without the Consent of the Lenders, made it a Condition of her Yielding the Dutchies of Silesia to his Prussian Majesty, that he should stand in the place of the late Emperor, in Respect of this Debt. stipuia- The Seventh of the Preliminary Articles, between the tween the Queen of Hungary and the King of Prussia, signed at Queen of Breslau, the nth of June, 1742, is in these Words ; ' Sa and King Majeste le Roi de Prusse se charge du seul Payement of Prussia ^ e j a Somme hypothequee sur la Silesie, aux Marchands ior trans- fer of the Anglois, selon le Contract [sic] signe a Londres, le jme de So Janvier, 1734-5.' pay. This Stipulation is confirmed by the Ninth Article of the Treaty between their said Majesties, signed at Berlin, the 28th of July, 1742. Also renewed and confirmed by the Second Article of the Treaty between their said Majesties, signed at Dresden, the 25th of December, 1745. In Consideration of the Empress Queen's Cession, his Prussian Majesty has engaged to her, that he will pay this Money, selon le Contract [sic], and consequently has bound himself to stand in the Place of the late Emperor, in Respect of this Money, to all Intents and Purposes. The late Emperor could not have seized this Money, as Reprizals, or even, in Case of open War between the two Nations, because his Faith was engaged to pay it, without REPORT OF THE CROWN LAW OFFICERS 99 any Delay, Demurr, Deduction, or Abatement whatsoever. If these Words should not extend to all possible Cases, he had plighted his Honour to bind himself, by any other Form of Words, more effectually to pay the Money ; and therefore was liable at any Time to be called upon, to declare expressly, that it should not be seized as Reprizals, or in Case of War ; which is very commonly expressed, when Sovereign Princes, or States, borrow Money from Foreigners. Therefore, supposing for a Moment, that his Prussian Majesty's Complaint was founded in Justice, and the Law of Nations, and that he had a Right to make Reprizals in General, he could not, consistent with his Engagements to the Empress Queen, seize this Money as Reprizals. Besides, this whole Debt, according to the Contract, ought to have been discharged in 1745. It should, in Respect of the private Creditors, in Justice and Equity, be considered, as if the Contract had been per- formed ; and the Prussian Complaints don't begin till 1746, after the whole Debt ought to have been paid. Upon this Principle of natural Justice, French Ships and Effects, wrongfully taken, after the Spanish War, and before the French War, have, during the Heat of the War with France, and since, been restored by Sentence of your Majesty's Courts, to the French Owners. No such Ships or Effects ever were attempted to be confis- cated, as Enemies Property here, during the War ; because, had it not been for the Wrong first done, these Effects would not have been in your Majesty's Dominions. So, had not the Contract been first broke, by Non-payment of the whole Loan in 1745, this Money would not have been in his Prussian Majesty's Hands. Your Majesty's Guaranty of these Treaties is entire, and must therefore depend upon the same Conditions, upon which the Cession was made by the Empress Queen. But this Reasoning is, in some Measure, superfluous ; because, if the making any Reprizals upon this Occasion, be unjustifiable, which we apprehend we have shewn, H2 ioo REPORT OF THE CROWN LAW OFFICERS then it is not disputed, but that the Non-payment of this Money would be a Breach of his Prussian Majesty's Engage- ments, and a Renunciation, on his Part, of those Treaties. All which is most humbly submitted to your Majesty's Royal Wisdom. GEO. LEE. G. PAUL. D. RYDER. W. MURRAY. January 18, 1753. [This Report is reproduced from the quarto published by authority, London : Edward Owen, 1753. It has not been thought necessary to reprint the translation, which it contains, of Lord Chesterfield's letter of January 5, 1747/8, to Michell. But we add the Lists of Prussian and Neutral ships, corresponding with the Prussian Lists A and B, merely rearranging them for convenience of printing.] LIST of all the Prussian Ships taken by British Arma- ments at Sea, during the last War, as well those detained for Examination only, as those judicially proceeded upon, together with the Judgments given in the Admiralty Courts of Great Britain thereupon, tallying with his Prussian Majesty's LIST marked A. Ships, which (if taken) were restored by the Captors, upon Examination, without either Party applying to a Court of Justice. i. La Frederique Amitie, Capitaine Sprenger. 4. La Catharine Christine, Capit. Frederick Berend. 16. Le St. Jean,* Capit. Jean Grosse. 17. Le Jeune Tobie, Capit. Paul Otto. * On the 3d of February, the Duke of Newcastle received a letter from Mr. Wolters, His Majesty's Agent at Rotterdam, enclosing the following Declaration : REPORT OF THE CROWN LAW OFFICERS 101 Ships and Goods restored, with all Costs and Damages attending the Capture. 3. L'Anne Elizabeth, Capit. Daniel Schultz, Costs and Damages, 28oi/. I2s. id. DANS 1'Exposition que Sa Majeste Prussienne a donnee au Public, des Vaisseaux de ses Sujets pris par les Anglois dans la derniere Guerre ; J'ai remarque dans la Liste A. N 16, que le Navire le St. Jean, Capitaine Jean Grosse, y est notte comme ayant re9u quelques Dommages, au Prejudice des Proprietaires Prussiens. Comme le fait m'est connu, ayant etc seul Proprietaire de sa Cargaison, Je veux en cette Qualite rendre Temoignage a la Verite, pour servir od il appartiendra. D'ail- leurs, Je ne puis comprendre, comment les Sujets Prussiens osent de- mander un Dedommagement, qu'ils ont deja plus que re9u, comme Je vais les en convaincre. Dans le Mois de Novembre 1747. Je fis fretter a Bordeaux, et charger a Libourne le dit Navire avec 158! Tonneaux de Vin blanc. Le i er de Dec. suivant, ce Navire mit en Mer; Le n. du dit Mois, II se trouva a la hauteur des Dunes; La il fut rencontre par le Corsaire Anglois, nomine le Prince d'Orange, qui envoya a bord du Navire Prussian six Hommes de son Equipage, et fit venir a son bord le Pilote Prussien avec les Papiers de mer, pour en faire 1'Examen. Le 12. du dit Mois, etant a 1'Ancre sous les Cingles, il s'eleva une furieuse Tempete de la Part du W. S. W. qui obligea le Capitaine Prussien, du Consentement de son Equipage, et des six Anglois pour lors dans son bord, de couper le Cable pour gagner la Mer. Ce Navire entra ensuite dans le Passage de Browershave en Hollande, le 15 e du dit Mois de Decembre, sans avoir eu d'autre Dommage que la Perte d'une Partie de son Cable, et d'une Ancre, et arriva ensuite a Rotterdam le 21 e du susd 1 Mois. Tout ceci est constate par la Declaration du Capitaine et de son Equipage, passee, le 4 Janvier 1748, pardevant Jacob Br enter, Notaire Public dans Rot' terdam; ensuite sermentee, le 6 e du dit Mois, pardevant les Commis- saires de la Chambre de la Marine. Apres que le Navire fut decharge, le Capitaine me fit fournir son Compte d'Avarie grosse, dans lequel il portoit les Articles suivants : 1. Pour la Perte de son Cable, et de son Ancre. 2. Pour la Nourriture de 8 Jours a 6 Hommes qui avoient ete mis, par le Corsaire Anglois, sur son bord. 3. Pour un Passeport que Je lui fis donner a la Haye par 1'Envoye de Prusse, qui couta 3 a 4 Florins. Je lui payai, pour ma Portion, dans cette Avarie grosse, 704 Florins, Argent courant d'Hollande, en outre 105 Florins dont Je fis Present au Cap"". Grosse, et 10. io 3 . aussi de Present aux Matelots, qui compo- soient son Equipage. Outre tout ceci, II m'en a coute 20 Florins ou environ, en Angleterre, pour autant que Mess". Simond Freres avoient debourse par mon Ordre pour le Pilote Prussien qui etoit reste a bord du Corsaire, lorsque la Tempete les separa. Ceux qui se connoissent en Navigation, et en Armement de Navire, 102 REPORT OF THE CROWN LAW OFFICERS Ships restored with Freight, according to the Bills of Lading, for such Goods, which were found to be the Property of the Enemy, and condemned as Prize. ii. L'Aigle D'Or, Capit. Onne Arends. 14. La Dorothee Sophie, Capit. Piere Kettelhuth. 15. La Deux Freres, Capit. Aug. Augustinus. Ships and Goods restored, but without Costs, from Circumstances arising from the Case. 18. Le Petit David, Cap. Michael Biigdahl. Ships and Cargoes restored, paying Costs. In these Cases, it either appeared, that the Ship had not the usual Evidence of Property, according to the Custom of the Sea ; or from the Ship-Papers, or Examination of the Crew, there appeared just Reason to presume the Cargo to belong to the Enemy, and the Neuter Claimant, declined proving his Property, by strict legal Evidence ; and obtained Restitution, on the Faith of his own Affi- davit ; and, in these Cases, Courts of Admiralty have always made the like Decrees. 5. La Dame Juliene, Capit. Martin Prest. 6. Le Frederick II. Roy de Prusse, Capit. Chretien Schultz. 7. Le Vaisseau au bon Vent, Capit. Michel Juriansen. ne pourront disconvcnir, que les Proprietaires Prussiens se trouvent, au Moyen de 839. 10'. courans d'Hollande, que Jc leur ai payes, plus que rembourses de toutes leurs Pretensions ; et s'ils peuvent, avec quelque Fondement, en demander d'autres. Tout ce que J'avance ci dessus peut se verifier par des Pieces authen- tiques, (a la reserve des Presents, ou Gratifications, au Capitaine ou a son Equipage, Montant a 115. 10'. dont je n'ai pas retire de Quittance,) en vertu dequoi J'ai signe la prcsente Declaration. Rotterdam, ce 30 Janvier 1753. Pierre Trapaud le Jeune. The above Declaration was signed in my Presence ; and the original Vouchers, quoted in the same, have been produced to me. Witness my Hand and Seal. Rotterdam, January the 3Oth, 1753. R. Wallers. (L.S.) REPORT OF THE CROWN LAW OFFICERS 103 9. La Daageroud, Capit. Martin Sperwien. 12. Les Deux Freres, Capit. Jon Hatten. Cargoes, or part of them, condemned as contraband, and not now alledged, in List A or B, to have been Prussian Property, and therefore were certainly Prize of War. 2. Les Jumeaux, Capit. Kruth. 8. Le Soliel [sic] D'or, Capit. Jacob Ridder. 10. Le Frederick II. Roy de Prusse, Capit. Chretien Schultz. 13. Le Jeune Andre, Capit. Henri Barckhorn. Appeals from the Admiralty Decrees. 18. Le Petit David, Capit. Michael Bugdahl [with result shown on p. 102]. LIST of all the Neutral Ships, taken by British Ships during the last War, in whose Cargoes the Subjects of Prussia Claim to have been interested ; together with the Judgments given by his Britannick Majesty's Courts of Admiralty thereupon, tallying with his Prussian Majesty's LIST marked B. If taken, released, by the Captors, on Examination, without either Party applying to a Court of Justice. 22. L'Anne Sophie, Capit. Henri Horn de Wolgast. Bourdeaux to Koningsberg. Released. 26. La Jeune Catherine, Commandee par le Capit. Kupper, ensuite par le Capit. Elker. Bourdeaux to Hambourg. Released. {Continued over page] 104 REPORT OF THE CROWN LAW OFFICERS , " ' ' ' - OI^O^O O O^O CD bo s !l "rt nJ 111!! (1, PH 0< OH P4 Ill (U XI SS rl r-< (-* ^j o*^ 6 S 6 QJ O ^ C^ C^ OJ O PH ffi ffi ffi opq o pO r -- I '' O ?i 1 43 w bo en -*-> C CD t/3 .-H 4)T3 4-> *- G T< 0) 4) ' - --. ^_ s 5 ,j*>>cDSlr^~ ^ ~ J nJ J J J C O en CD r cu O O O>O PL, -a S c a I'S-g Pq PL, PL, PL, PL, PL, PL, PL, PL, Pq -si IH IH 03 03 PL, PL, o >S he o 1 TO S a s a 4J Jj J2 f g ?- Ef ^ o o re o o o ~ ~ ^3 ,5 o fi o ; tuc w h-o S TO B 300 O 3 O - - J3 O & O ) pq PQ Q pq rt S ^2 ~ 333 i 3 O 3 O 3 'pq^pq^pq pq o G S .t! 'S ^o o OH o i roU S _i io6 REPORT OF THE CROWN LAW OFFICERS be f ? a, ^^ T3 4) G y -, u >H o g rt rf CTJ nj CM PL, Cu PL, pci a G be ^ i O rt ' a 5 ni o ffi PQ -- I I ^ i a-^o-^ 8 'S,o US - CHAPTER X SOME COMMENTS IT will have been remarked that the Exposition ties The Motifs relies in the first place on a literal interpretation Prussian CctSG of Carteret s language to Andrie in 1744, as reported by relies the latter. In four of the propositions laid down it is s ur 2nces S expressly quoted. The preamble cites also a statement given by reported by Michell to have been made to him on Septem- sear e- ber n/22, 1747, by Chesterfield, to the effect that the I ft/' / British Government intended to abide by the declaration made by Carteret to Andrie at the outset of the war. It reproduces likewise a sentence from the note addressed to him by Chesterfield on January 5/16, 1747/8, stating that the maritime trade of Prussian subjects would not be interfered with so long as they carried it on in the per- mitted manner, and conformed to the old usages estab- lished and received among maritime nations. The declaration of Carteret was two-fold; first, on May 18, 1744, that the Prussian flag would be respected equally with that of the other Powers allied with England, with the sole exception of ships which carried munitions of war to her enemies, and second, May 20,/June 9, that contra- band did not include timber and other materials used in ship-building, or rope, sails, hemp, linseed, &c. ; that the Prussian flag and subjects would be respected, and that the trade of the latter would not be interfered with, provided they abstained from conveying munitions of war (as defined in all the commercial treaties between the maritime Powers), nor any provisions to places besieged or blockaded by England. In the second place the Exposition des Motifs denied io8 SOME COMMENTS 2. On the that enemy property on board neutral ships could lawfully ^onThat ^ e confiscated, that such a proceeding was contrary to capture the Law of Nations and to all treaties ever concluded property between the maritime Powers. in neutral i n the third place, it maintained that the English contrary Government had no right to refer to an Admiralty Court law'of established in England, the decision of disputes of the nations, nature considered in the preceding questions (Nos. i to 4), 3. That which had arisen between two independent Powers, and cases can- to expect the injured Power, which demanded satisfaction, not be to abide by the decisions of that court. decided J by prize- Fourthly, it argued that the King of Prussia was of "he justified in placing an embargo on the moneys of which captor's payment was stipulated in the treaties of Breslau and Dresden, and in compensating his subjects out of these reprisals moneys. Kin h of The Re P rt of the Law Officers replies to No. i, that Prussia there were only four cases in which any goods on board justified. a Prussian ship had been condemned, and that it was not British pretended that compensation was asked for either of these i eP Com- car g es - That the words alleged to have been used by pensation Carteret l merely professed to treat the Prussians on the asked for same footing with the subjects of other neutral Powers in any under the like circumstances, i. e. with whom there was C3.SC OI goods on no particular treaty. The reference to the other neutral board a p ower s could not be understood to communicate the Prussian ship terms of any particular treaty. The treaties with Holland, beer^con- Sweden, Russia, Portugal, Denmark, &c., all differed, demned. The Report quotes Chesterfield's letter in full, and 2. ^ hat observes that it places Prussia on the footing of other assur- neutral Powers with whom there was no treaty ; that not'piace ' t ^ ie ver ^ a ^ declarations made by Carteret in 1744, which Prussia are said to have been confirmed by this letter from Lord footing of * Carteret, who succeeded as Earl Granville on his mother's death, a treaty was one of the Committee of Privy Council which met at Newcastle Power. House, February 6, 1753, to consider the papers ; and as the language attributed to him in the Exposition dcs Motifs is not expressly disavowed, it may be taken that Andric's report was admitted to be correct. SOME COMMENTS 109 Chesterfield, cannot have meant more than the letter expresses '- 1 As to the second assertion that enemy property on 3- Cap- board neutral ships was not liable to condemnation, the enemy Report replies that the contrary is too clear to admit of property , . ,. , . , s* in neutral being disputed, and quotes in a foot-note // Lonwlato del ships is M are and other authorities on the point ; ' but the general f z ^ r ~ rule cannot be more strongly proved, than by the Excep- the law of tion which particular Treaties have made to it.' The r Report also quotes Andrie's letter of May 20,/June 9, 1744, 2 warning Frederick that his subjects ought not to load on board neutral ships any goods really belonging to the enemies of England. As to the third Prussian position, that the English 4-. Ad- Government had no right to set up Courts of Admiralty to try the captures complained of, the Report maintains the that before the ship or goods can be disposed of by the country captor, there must be a regular judicial proceeding, wherein both parties may be heard, and that the proper tent to and regular court for these proceedings is the court of the p^g State to which the captor belongs ; that if the sentence cases. of the Court of Admiralty is thought to be erroneous, there is a superior court of review to which the parties who think themselves aggrieved may appeal. If no appeal is offered, it is an acknowledgement of the justice of the sentence by the parties themselves, and conclusive ; by the Law of Nations the claimants ought not to com- plain to their own sovereign until injustice, in re minime dubid, was finally done to them, past redress ; that each Crown has an equal right to erect Admiralty Courts for 1 Though it may fairly be inferred that Chesterfield's letter, jor that portion of it which is quoted, was used to show that he confirmed Carteret's language, it does not seem that the Exposition des Motifs actually says that it is a confirmation. * This copy of a letter must of course be equally accepted as authentic with Andrie's report of Carteret's language in 1744, and it shows that Andrie at least knew what in England was regarded as international law on this subject. From Legge's report of November 1/12, 1748 (p. 32), it appears also that Podewils admitted this principle. no SOME COMMENTS the trial of prizes taken by virtue of their respective commissions, but neither has the right to try prizes taken by the other, or to reverse the sentences given by the other's tribunal. 5. No To the fourth position the Report answers that it will haiTever no ^ ^ e eas y t nn( ^ an instance where a prince has thought made fit to make reprisals upon a debt due from himself to onTdebt private men. A private man lends money to a prince due from U p O n the faith of an engagement of honour, because a himself to private prince cannot be compelled like other men, in an adverse persons. wa y ; by a CO urt of justice. So scrupulously did England, France, and Spain adhere to this public faith, that even during the war, they suffered no inquiry to be made whether any part of the public debts was due to the subjects of the enemy, though it was certain that many English had money in the French funds, and many French in the English funds. Moreover, the Silesian debt was negotiable, and many parts might have been assigned to the subjects of other Powers. Prussian complaints did not begin till 1746, after the whole debt ought to have been discharged. Had not the contract been first broken by non-payment of the loan by the due date, the money The dis- would not have been in Frederick's hands. might We conclude, upon the whole, that this was a case which reason- might reasonably have been referred to arbitration, if the ably have . , , T been parties had agreed upon such a course. It will be seen to arb later that a proposal to this effect was in fact made by tration. King Frederick, but was declined by King George's NO objec- ministers. The difficulty was to find an impartial arbitra- could be tor. It will also be admitted that if the King of Prussia raised to na( j confined himself to appointing a commission to being ex- examine the complaints of his subjects, and to basing his ammed d em and for redress upon the report of such a commission, Prussian no objection could have been raised. The modern ti e s doctrine generally received is that before a claim can be before presented diplomatically to the Government of a Foreign tion. State, the claimant must first have exhausted all the SOME COMMENTS in remedies available to him by the laws of that State. Duty of Sir Roundell Palmer in a weighty speech delivered in the ^ aimant House of Commons on March 7, 1862, said : ' The parties exhaust aggrieved are bound to go before the Court of Appeal, remedies before they can invoke the interference of their own be *. re in * yoking government, if the first decision is contrary to what they dipio- think right. However, if in the court of ultimate appeal some flagrant and indisputable wrong has been done tion. some principle of the Law of Nations disregarded undoubtedly the country aggrieved is not bound by that decision, but has a right to demand restitution and compensation for the individuals ill-treated by the decision of the Prize Court. That is the ordinary Law of Nations.' CHAPTER XI PRIZE LAW IN THE FIRST HALF OF THE EIGHTEENTH CENTURY IN the course of the Prussian Exposition des Motifs, &c., frequent reference is made to ' le droit de la nature et des gens ', to ' le droit naturel ', to ' la raison naturelle ', or to ' la raison et le droit des gens '. That the ' law of nature ' and ' natural law ' are too vague and uncertain to be regarded as a source of international law, has been sufficiently demonstrated by Robert Ward. It was, however, very usual at that period for writers to refer it to the law of nature, as a collection of moral precepts understood and recognized by all men, and therefore by all nations. That law is in reality based on the customs observed among themselves by the Christian nations of Europe, both in war and peace. When other independent Christian nations established themselves in North and South America, they followed the rules recognized by the mother-countries. In more recent times certain non-Christian peoples have voluntarily adopted and practised the law, and have contributed to its codification and amendment. From the time of Grotius onwards, text-writers of reputation came to be frequently quoted by Govern- ments in vindication of their actions. When so quoted, these writers may be regarded as authorities on what the Governments concerned held to be the Law of Nations. In their legislation respecting Maritime Law in time of war, Governments must likewise be supposed to have merely enacted for the guidance of their prize-courts what they held to be in accordance with that particular branch of International Law. Certain treaties which had been concluded between some of them, were evidently PRIZE LAW OF EIGHTEENTH CENTURY 113 regarded as simply providing exceptional treatment as between the contracting parties. What was the legislation of the principal maritime Powers about the middle of the eighteenth century will be seen from the summaries here offered. It is clear from the following citations that during the war of 1744-8 the French law confiscated enemy goods in neutral ships, and even neutral goods in enemy ships ; and that up to October 21, 1744, the rule robe d'ennemi confisque robe d'ami prevailed. Also that pro- duce or manufacture of the enemy country was treated like enemy property, no matter to whom it belonged. This rule doubtless originated in the assumption that merchant vessels carried solely the produce and manu- facture of their own country, and did not act as general carriers. Reglement of October 21, I744- 1 Art. I. Neutral vessels sailing from the ports of their Neutrals sovereign, loaded on account of subjects of the said trade to neutral sovereign with goods the produce or manu- enem Y ports facture of their own country, even when bound for an from enemy port, except contraband of war, are free. country Art. II. Neutral vessels sailing from any port, even with of an enemy, loaded on account of the subjects of neutral ^ m s sovereigns, with goods taken in the country from which th ence. they started and bound direct for a port of their own ^geig 1 sovereign, are free. may Art. III. Neutral vessels leaving a neutral or allied port, provided they are not laden with goods the produce from an enemy or manufacture of enemies, are free ; in the contrary country case the goods are good prize, but the vessels are to be | released. own Art. IV. Neutral vessels, quitting an allied or neutral Produce or manu- 1 ^ alin - 2 5- factiireof 1783 T PRIZE LAW IN THE FIRST HALF an enemy country. Contra- band, enemy produce or manu- facture going to an enemy port. Enemy property. Papers thrown into the sea. Contra- vention of sea- letters. Invali- dity of sea- letters. Unsigned bills of lading. Proofs of sale to neutral required. port, and bound for an enemy port, provided they carry no contraband, or goods the produce or manufacture of an enemy country, are free ; if such goods are on board they are good prize, but the vessels are to be released. Art. V. If the neutral vessels mentioned in the preced- ing articles have on board goods belonging to the enemy, even though not of the manufacture of the enemy country, the goods are good prize, but the vessels are to be released. Art. VI. In case of papers thrown into the sea, whether the vessel be enemy, neutral or allied, even if enough remain on board to prove that the vessel belongs to friends or allies, such vessels are to be declared good prize. Art. VII. 1 No regard shall be had to sea-letters granted by neutral sovereigns if those who have obtained them have acted in contravention thereof, and the vessels shall be declared good prize. Art. VIII. A sea-letter can only be used for one voyage, and will be regarded as null and void if it is proved that when it was granted the vessel was not in a port of the sovereign who issued it. Art. IX. Bills of lading (connaissements) found on board, but not signed, shall be null and void. Art. X. Vessels built in an enemy country or which had belonged to an enemy must have on board authentic documents signed before public officials (officiers publics) establishing the date of sale to a neutral or ally, showing that the sale was effected before the declaration of war, and the transfer duly registered before the principal official of the place from which it sailed, and effected by the owner or his legal attorney. If the vessel built in an enemy country is a prize taken from the enemy it must have official certificates of the original capture and of the sale or adjudication to the subjects of an allied or neutral State, either in France or in the port 1 This and the following three articles are derived from a reglcment of February 17, 1694. Valin, ii. 246. OF THE EIGHTEENTH CENTURY 115 of an ally. In default of such documents the vessel will be good prize, and no subsequent production of docu- ments shall be allowed to the owners of the vessels or of the goods loaded thereon. Art. XL No regard will be had to sea-letters granted Sea- by neutral or allied sovereigns to the owners or masters of vessels, being subjects of an enemy State, unless they to sub- have been naturalized in the States of the said sovereigns J e f C an before the declaration of war, and no owners or masters enem y state by a being subjects of an enemy State, if after the said letters neutral or of naturalization have been obtained they have returned allied * sovc- to the enemy State to there continue their trade, will reign. be able to avail themselves thereof. Art. XII. All foreign vessels having a supercargo, Super- merchant, clerk or mate (officier marinier) of an enemy & a c r o' r State, or of which the crew is composed, as to more than crew ex- ,QQ(\\"[\ff , of sailors of the enemy country, or which has no ship's 2 O f articles (role d'equipage) on board drawn up by the en ^ y ts public officials of the place from which the vessel has renders ' sailed, shall be good prize. prize g 0d Art. XIII. Exception made in case where the captain Excep- or master proves by documents on board that he has tio _ n r J where the been obliged to engage mates or sailors in the ports at crew has which he has touched to replace those of the neutral I^e^at State deceased during the voyage. an inter- Art. XIV. Danish and Dutch ships may freely navigate ^t^ from their ports to other ports neutral or enemy, from Privileges a neutral port to an enemy port, or from one enemy port to another, provided that it is not to a blockaded and place, and provided that in the last two cases they are ve " S ei s not laden wholly or in part with goods reputed con- t b y traband by the treaties, and that notwithstanding the tenor of the first four Articles of this Regulation, of which Arts. 6, 7, 8, 9, 10, n, and 12 shall nevertheless be executed against them ; and in case they should be laden wholly or in part with such contraband goods, going to an enemy port whether from another enemy port or from I 2 n6 PRIZE LAW IN THE FIRST HALF Re- stricted privi- leges of Swedish and Han- seatic ships, which may not carry enemy goods. Vessels carrying goods laden in France are free. Penalties on priva- teers for violating these regula- tions. Kobe d'cnnemi confisque robe d'ami. a neutral port, the goods shall be good prize, without the vessels and the rest of their cargo nor their private effects being detained, even when they belong to enemies. Art. XV. The same shall be observed with regard to Swedish and Hanseatic ships, in which, however, all goods without distinction belonging to enemies, even when not contraband, shall be good prize, without the ships and the rest of the cargo nor their personal effects being retained. Art. XVI. All vessels leaving the ports of France which shall have no other goods on board than those laden thereat, to go free. Art. XVII. In case of violation of any of the preceding articles by a French privateer, replevin shall be made to the subjects of neutral sovereigns of their vessels and the cargo on board which may not be liable to confiscation, and the privateers are to be condemned to damages and costs. Reglement of 1704. Before October 21, 1744, the French law was the Reglement of July 23, 1704. J Art. I. Neutral vessels free to trade from their own ports, and laden on account of the owners or of their countrymen with goods the produce or manufacture of their own country, to any other country, even that of an enemy, provided they carry no contraband. Art. II. Same as II of 1744. Art. III. Same as III of 1744. Art. IV. Same as IV of 1744. Art. V. Nevertheless if in the cases enumerated in the first four articles neutral vessels have any enemy property on board, the vessels and all the cargo shall be good prize in accordance with Art. 7 of the chapter on Prize in the Ordinance of August 1681. 1 Valin, ii, p. 248. OF THE EIGHTEENTH CENTURY 117 Art. VI. 1 Neutral vessels sailing from an enemy port and having thereat taken all or part of their cargo, and bound for the States of any other Sovereign than their own, whether he be an ally, neutral or enemy, may be stopped and carried into France and shall be declared good prize with their cargoes, even though laden on account of French subjects, or of subjects of an ally or neutral. Art. VII is the same in intent as the first part of Art. X Enemy- of 1744. b . u . ut ships sold Art. VIII. Similar to XI of 1744. after de- Art. IX. Same as XII of 1744. ofTar? n Art. X. Same as XIII of 1744. Art. XI. Delay of four months before the preceding four articles come into force. Art. XII. Same as XVI of 1744. Art. XIII. Same as XVII of 1744. Ordonnance de la Marine of August 1681. Art. IV. Enemy ships are good prize. 2 Art. VI. Absence of charter-party, bills of lading 3 or invoices entails confiscation of the vessel, no matter whether it belongs to an enemy, neutral or ally. Art. VII. 4 All vessels, whether belonging to French Enemy subjects, or to the subjects of neutrals or allies, laden ^ e ^ ever with enemy goods, and goods of French subjects or found are allies found on board an enemy ship are good prize. prize, [Art. V of 1744, says Valin, seems to provide that together only the enemy goods shall be confiscated, and the ship, neutral ship be released, but that was only in respect of certain treaties concluded with neutrals or allies, and the principle remains intact.] Art. XL Arms, powder, shot, and other munitions contra- of war, even horses and vehicles (equipages) transported band - for the use of the enemy, are to be confiscated, no matter 1 Still in force in 1744 : see Valin, p. 267, 2. 2 Ibid., ii. 237. a Ibid., p. 243. * Ibid., p. 252. n8 PRIZE LAW IN THE FIRST HALF in what ship found, and no matter who is the owner, a French subject or the subject of an ally. Art. XII. Any vessel which shall refuse to take in her sails, after the warning (semonce) which shall have been given by one of our ships or privateers, may be constrained thereto by artillery or otherwise, and in case of resistance or combat, shall be good prize. [The commentary, p. 270, says the warning may be given by the voice or by a blank shot. The coup de semonce ou d'assurance (affirming gun) must be fired under the national flag. The author alleges that in the last two wars the English did fire it under a false flag ; hence it is now argued that this means of surprising a ship is allowable, provided the national flag is hoisted for the combat. But he regards this practice as cowardly and perfidious, which cannot be justified by the enemy's example.] AppHca- Art. XIV. 1 Prizes taken by privateers bearing a foreign commission may not remain in port more than twenty- twenty- four hours, unless kept in by stress of weather, or unless hours' the prize has been taken from our enemies. [This rule rule. dates from 1650 (p. 219). The author adds in his com- mentary that except for stress of weather, the vessel being fit to go to sea, she must be compelled to leave at the expiration of twenty-four hours, no matter what the danger of capture by her enemy ; otherwise the duty of a neutral is violated. That is only in regard to prizes brought into a neutral port, and does not concern friendly or neutral vessels which have taken refuge unaccompanied by prizes, in order to escape from an enemy or for any other cause. In that case they may remain as long as it is thought fit to allow them, and it is not necessary to make them put to sea after twenty-four hours. The law of nature and of nations authorize giving asylum to any vessel compelled to put in by stress of weather. But the law of war allows the seizure and confiscation 1 Valin, ii, p. 272. OF THE EIGHTEENTH CENTURY 119 of an enemy which has put in to escape shipwreck, other- wise he might come in to spy under that pretext. Asylum is therefore not due to the enemy ; to him the only obligation is that of saving life.] Art. XV. 1 Goods belonging to a French subject or to Disposal the subject of an ally, which are on board a prize brought onboard into a French port to be restored. The rest of the cargo a prize may not be stored or sold under any pretext. into 1 ! French port. MARITIME LAW, AS ADMINISTERED BY THE ENGLISH ADMIRALTY COURTS The High Court of Admiralty held on various occasions that the Crown could make a declaration what shall be contraband. 2 ' Sovereigns have a right to declare March 22, what shall be deemed contraband, and have always I747 ' ' done so/ ' Sovereign Princes at war may declare such June 29, and such things to be contraband, and after notice to c their allies, their subjects may certainly seize them.' Certain rules and directions were appointed on February 22, 166/j., 3 to be observed by the High Court of Admiralty in the adjudication of prizes, Great Britain being then at war with Holland. Art. 2 orders that where neutral ships shall be found having persons or goods on board belonging to the enemy, the ship and the goods shall be condemned as good and lawful prize. Art. 4 : ' That where any neutral ship shall fight or make resistance, or the master or any of the company shall throw, burn, tear or conceal any of the ship's papers or documents, or shall have no papers at all found on board in the said ship, or shall bring and offer to the Court any false writings for evidence, thereby to clear her and her goods, or any of them, the said ship and goods shall be judged and condemned as good and lawful prize.' Art. 5: 'That if any ship or vessell shall be met withall carrying arms, powder, ammunition, or 1 Valin, ii, p. 273. 2 Pratt, pp. 40, 61, 108, 198. 3 Ibid., p. 249. 120 PRIZE LAW IN THE FIRST -HALF provisions of victuals or any contraband goods to the enemy, such ships and goods shall be judged and condemned as good and lawful prize.' May 18, 1665, it was ordered by 'his Majestyes Principal Commissioners of Prizes ' that ' Canvas, masts, pitch, tar, and all other navall accommodations, as also wine, oyl, brandy, fish, corn, salt, flesh, and all other things that tend as provisions unto the support of life, as well as powder, guns, or other instruments of war [be] declared contraband goods, and so intended by his Majestyes declaration of the 22nd February 1664'. June 3, 1672, 1 in the Rules and Directions appointed by his Majesty in Councill to be observed by the High Court of Admiralty in the Adjudication of Prizes, Art. i makes the goods found on board enemy ships subject to condemnation as good and lawful prize = unfree ships. The articles relating to the destruction of papers, or false papers, and to carriage of contraband goods, were the same as in the rules of 1664. The instructions to privateers of May 2, I6Q3, 2 show that ships belonging to any Prince or State in war with France, or belonging to ' Altena ', Gluckstadt, Ham- burgh, Lubeck, Dantzick and other cities and places in the Empire, although belonging to the King of Sweden, Denmark, or other Princes or States, as members of the Empire, which shall be bound to, or coming from, France, might be taken as prize. All ships of any other nation that are bound to France, from any place in war with France, or shall come from France bound to any such place, might be taken as prize, unless only in ballast. The Empire and England were then allied in war against France. Again, the Instructions to privateers of January 29, 1704/5 were that goods belonging to inhabitants in France would be liable to confiscation and seizure [sic]. The War of the Spanish Succession was then going on. 1 Pratt, p. 252. 2 Ibid., p. 264. OF THE EIGHTEENTH CENTURY 121 In 1711, in virtue of the Act 3 & 4 Anne, cap. 13, and in answer to questions put by the King of Prussia's Resident, the following goods were stated to be con- traband : x All sorts of arms offensive or defensive, ordnance, ordnance stores, powder, match, bullets, pitch, tar, hemp, masts, cordage, iron, saltpetre, horses, saddles, holsters, and other utensils and habiliments of war. The masters, pilots and mariners of Prussian ships trading into France [with which country Great Britain was then at war] must be subjects of the King of Prussia or of some other foreign prince or State in amity with Queen Anne. That no Prussian ship should sail from one port of France to another, but in ballast only, unless the entire lading of such ship could not be sold in one port, in which case such ship might be permitted to carry the rest of her cargo, so as no part thereof be French goods, to some other port of that kingdom to be there sold : Prussian ships to carry no goods to France but such as were the property of Prussian subjects, or that belonged to subjects of Her Majesty, and of the growth, produce or manufacture of some of Her Majesty's dominions. The goods enumerated in this document as contraband were those specified in the convention of 1691 between England, Denmark, and Holland. It will be observed that besides defining contraband, i.e. what is now termed absolute contraband, this state- ment affirms that a neutral vessel may not be employed in the coasting trade of an enemy, and limits the goods which may be carried in a neutral vessel to any enemy port, to the property of subjects of the neutral State, or the property of British subjects being the growth, produce, or manufacture of any of the British dominions. The Instructions of June 18, 1744, 2 enumerate as 1 S. P. For., Treaty Papers, vol. 60, Lords of the Treasury to Mr. Secretary St. John. - Pratt, p. 257. 122 PRIZE LAW IN THE FIRST HALF contraband ' all sorts of fire-works and things thereto belonging, as cannon, muskets, mortars . . . horses, saddles, holsters, belts, sailwork, rigging, cables, cordage, masts, lead, pitch, tar, hemp, together with all other equipage that serves for sea and land, laden in Danish or Swedish ships, or ships belonging to neutral countries, and bound to the enemies' country '. They enjoin the strict observance of the Treaty with Holland of 1674, and all other treaties between England and her allies ; and not to do or attempt anything against British sub- jects, or the subjects of any Prince or State in amity with England, ' nor against their ships, vessels or goods ; but only against France and Spain, their vassals and subjects, and others inhabiting within their countries, territories, or dominions, their ships, vessels, and goods, except as before excepted [i.e. carrying contraband] ; and against such other ships, vessels, and goods as are or shall be liable to confiscation/ In addition to the articles named above, certain classes of goods, which Grotius 1 defines as ' quae et in bello et extra bellum usum habent, ut pecuniae, commeatus, naves et quae navibus adsunt ', and especially pro- visions, were treated as contraband if going to an enemy port of naval equipment. Lastly, England had adopted and applied the rule of the Consolato del Mare that enemy goods were con- fiscable when carried on board a neutral ship, while neutral property on board an enemy ship was free. Molloy, third edition, 1682, p. 14 : ' So on the other hand, if the ships of Friends shall be freighted out to carry the Goods of Enemies, this may subject them to prize, especially if the Goods shall be laden aboard by the consent or privity of the Master or Skipper.' From this it is a necessary inference that he held the goods to be confiscablc. All these rules with regard to contraband, enemy 1 Bk. Ill, Cap. v, 2. OF THE EIGHTEENTH CENTURY 123 property and coasting trade of an enemy were subject to exceptions contained in commercial treaties ; but it was held that the exceptions were not of general application and could be claimed solely by the neutral who was a party to such treaty or treaties. Where no treaty existed, the general rule applied. Generally speaking, it may be said that during the first half of the eighteenth century, Great Britain con- tinued to adhere to and enforce the rules which the leading writers on International Law, such as Heineccius, Casaregi, Bynkershoek, and Vattel, had expounded and illustrated. 1 Heineccius includes grain, salt, wine, oil, ropes, sails, and other naval stores among contraband of war. 2 He says, ' Si res hostiles in navibus amicorum reperiantur, illas capi posse, nemo dubitat ; quia hosti in res hostiles omnia licent, eatenus ut eas ubicunque repertas sibi possit vindicare.' 3 Bynkershoek is quoted as stating that, ' Vessels and goods belonging to the enemy, when taken on the high seas, become the absolute property of the captor, without reference to the lapse of time, by actual and full occupancy, such as the captor is able to defend and maintain, namely, when the vessel and cargo shall have been brought into a port of his own country, or among a fleet of men-of-war belonging to his government.' 4 He is clearly of opinion that enemy goods in a neutral ship are confiscable. 5 As to contraband, he says : ' The things which cannot be lawfully carried to the enemies of our friends, and which are called contraband of war, are those which, in their present state, may be fit for, or of service in, war ; and it makes no difference whether they are of use in peace or not.' 6 Thus he rejects the distinction made by Grotius between absolute and conditional contraband. The goods of a friend found in an enemy ship are not liable to 1 Reddie, Researches in Maritime International Law, 1844, p. 263. - Ibid., p. 210. 3 Ibid., p. 212. 4 Ibid., p. 216. 5 Ibid., p. 223. 6 Ibid., p. 218. 124 PRIZE LAW IN THE FIRST HALF confiscation. Casaregi lays it down that : ' Merces inimicorum, de jure, legitime depraedantur, quamvis in navi arnica deportentur. Et sic, in praxi, et con- suetudine servatur.' l Vattel includes amongst contra- band of war, ' wood, and whatever is of use for the construction and armament of ships of war, horses, and even victuals or provisions, on certain occasions, where there is a prospect of reducing the enemy by famine.' 2 He also lays it down that, ' If there be found on board a neutral vessel effects belonging to the enemy, they are seized by the law of war ; but naturally, the freight ought to be paid to the master of the vessel who cannot suffer by that seizure.' 3 Reddie quotes as ' a lucid exposition of the principal doctrines of Maritime international law, as then observed/ the passage in the Report of the Law Officers, beginning ' First, as to the Law ', and ending ' in whose Courts the Matter is try'd '. 4 SPANISH LAW The authority on this subject appears to be Tratado sobre las Maritimas Presas, by d'Abreu, published at Cadiz in 1746, of which a French translation was pub- lished in 1802. By Spanish law the merchandise of neutrals or allies found on board enemy ships is lawful prize. Respecting enemy goods on board the vessels of friends or allies, he says : ' Le droit commun paroit decider centre la saisie de ces marchandises, parceque pour les trouver et les reconnoitre, il faut aborder le navire, le traiter avec violence, et en user avec un ami comme avec un ennemi. Malgre cela, cependant, le droit des nations et celui de la guerre fournissent toutes sortes de raisons pour autoriser la capture de ces effets, quand il y a prouve [sic] qu'ils appartiennent a des 1 Reddie, Researches in Maritime International Law, p. 226, quoted from Discursus Legales de Commercio. 2 Ibid., p. 237. 3 Ibid., p. 240. 4 Supra, pp. 78-83. OF THE EIGHTEENTH CENTURY 125 ennemis. Us ont, pour ainsi dire, un vice reel et inherent, qui les suit part out, et qui subsiste independamment du lieu, ou du vaisseau, qui les contient. . . . Ainsi les mar- chandises appartenant aux ennemis portent, pour ainsi dire, un caractere indelebile, qui les rend de bonne prise, sur quelque bord qu'on les trouve.' l He also quotes the authority of the Spanish Ordonnance des Courses of 1718, that : ' Seront de bonne prise les navires qui porteront des marchandises appartenant aux ennemis, de meme que les effets des Espagnols trouves a bord de vaisseaux ennemis.' But he adds : ' Malgre le poids de ces raisons, nous croyons que les traites cites ci dessus, faits avec la France et la Hollande sont plus conformes au droit commun, et par consequent les vaisseaux des amis ou allies n'encourent point la confiscation pour porter les effets des ennemis.' 2 DUTCH MARITIME LAW IN TIME OF WAR Contraband. According to the most recent ordinances in force during the first half of the eighteenth century, namely those of 1709 besides weapons offensive and defensive and parts thereof, powder, match, saltpetre, bullets, &c., which are provided for in earlier ordinances masts, spars, yards, all kinds of wood in the rough, ships' timber, oaken planks, hemp, rope, sailcloth, pitch, tar, sulphur, cast-iron and steel, iron bars, large and small nails, copper, lead, tin manufactured and unmanufactured, tallow, flax, oakum, iron-wood, tin-plates, Muscovy glass and horn (January 21, 1690), horses (February 13, 1701), hay, oats and horsebeans (February 26, 1701), the follow- ing are declared contraband : grains, to wit wheat, rye, barley, buckwheat, oats, spelt and all other, destined to France, Spain and other enemy places, no matter whence they come, starch, groats, beans, pease, rice and millet. 1 Reddie, op. cit., p. 251. * Ibid., p. 256. 126 PRIZE LAW IN THE FIRST HALF This was during the War of the Spanish Succession, when Holland was allied with Great Britain. The Re- public did not become a belligerent between 1713, the date of the treaty of Utrecht, and April 1747, when France declared war against it. Practically, however, a state of war had existed since 1743, when Dutch troops took the field as auxiliaries of Maria Theresa, and still more in 1744, when France invaded Flanders and expelled the Dutch garrisons from the barrier towns. At the same time it must be remembered that English troops fought against the French at Dettingen in 1743, without a legal state of war existing between Great Britain and France. 1 The ordinances of 1689 and 1690 had made provisions (vivres) contraband, as well as all materials for the equipment of ships. 2 This was at variance with exist- ing treaties and conventions between Sweden and Holland, but not to the same extent with those between Denmark and Holland. 3 Article III of the preliminary treaty (pacta praevia) of 1667 between Sweden and Holland contains the usual list of warlike appliances which are always treated as contraband, and by Art. IV money, 1 The natural resources of Holland being mainly agricultural, the Republic depended, for the financial means of carrying on war, upon her commerce with foreign countries. Consequently, during the war of the Grand Alliance against Louis XIV from 1689 to 1697, William III had procured leave for her to continue to trade with France. Again, when the War of the Spanish Succession broke out, although England had broken off commercial intercourse with the enemy, an example which was followed by the Emperor and the allied princes of Germany, Holland was unwilling to abandon her profitable trading and financial relations with France. It was with difficulty that she was persuaded in 1702 to give them up for the space of one year, and in 1703 England resigned herself to the impossibility of obtaining an extension to the end of the war (C. van Noorden, Der spanische Erbfolgckrieg, i. 300, 306, 307 n.). Great Britain, however, in 1711, when peace was in sight, passed an Act permitting French wines to be imported in exchange for the export of English goods in neutral ships (S. P. For., Treaty Papers, vol. 60, Treasury to Secretary St. John, April 20). 2 See the Resolution of the States-General of January 4, 1692. 3 Rijksarchief at The Hague, Recueil van Placaaten, ii. 218. OF THE EIGHTEENTH CENTURY 127 corn, beans, and pease, salt, wines, oil and all other articles of food, as well as iron, copper, brass, and materials of every kind used in the construction or equipment of ships, are expressly excluded from the list of contraband ; excepting, however, money, provisions, and soldiers, or any other thing likely to be useful or helpful to the enemy, which are being conveyed to fortified places or garrison towns on the coast which are being besieged or blockaded with the intention of capturing them. But by a separate Article it is provided that as Holland is at war with the King of England, articles utilizable in the construction of men-of-war, destined for importation into places under the jurisdiction of Britain may be intercepted and confiscated. 1 Treaties containing similar lists of contraband, and of goods which can never be so regarded, were concluded between the same parties in 1675 and 1679. 2 The treaties and conventions with Denmark consist, Treaty first of a convention signed at Copenhagen June 20/30 ^^_ 1691, 3 and, second, of a provisional treaty 4 of the same mark. date, followed in December 1691 by ' Articles d'Amplifi- cation et Explication ', and by an ' Edictum seu Declara- torium ', to which is attached a ' Specification des Marchandises deffendues '. The convention, after pro- viding for payment by Holland of 85,000 rix-dollars by way of compensation for certain Danish ships with their cargoes, which had been captured by Dutch privateers, lays it down that certain regulations respecting trade with France made, or hereafter to be made, shall be faithfully observed, and that other matters shall be disposed of in accordance with the universal laws and customs observed at sea. Art. Ill of the provisional treaty provides that enemy goods laden on board a Danish 1 Dumont, Corps Diplomatique, vol. vii, pars i, p. 37. 2 Ibid., pp. 316, 437. 3 Manuscript at the Hague Rijksarchief. 4 Dumont, op. cit., vol. vii, pars 2, pp. 2926. 128 PRIZE LAW IN THE FIRST HALF ship may not be transported from one French port to another, but must be conveyed direct to a Danish port. The 'Articles d' Amplification ', &c., add that Danish ships, if unable to sell their whole cargo in one French port, may carry what remains to another port to sell it there. 1 Trade between the ports of the 'German empire and France is prohibited by these articles to Danish ships. The ' Specification of prohibited merchandize ' includes besides munitions of war as ordinarily under- stood, horses and saddles, sails, ropes, masts, lead, pitch, tar, hemp, ' together with whatsoever serves for equip- ment by sea or by land, without including any other merchandize of whatsoever nature '. Bynkershoek, whose Quaestionum juris publici Libri Duo was published at Leyden in 1737, may be regarded as a good authority on Dutch maritime law of the period under consideration. In Book I, cap. x, citing the ordi- nance of April 14, 1672, he says : ' tanquam hostis van den Staat punitur, si quis ad hostem vehat eenige munitie van Oorlog, vivres, of eenige materialen, dienende tot uytrust- ing van Schepen, of eenige andere verbode waren (i. e. any munitions of war, provisions, or any materials serving for the equipment of ships, or any other forbidden articles). Idemque juris est in peregrino, qui ea ex his Regionibus ad hostes advehit.' His definition of contraband is not quite clear. He says, ' articles which, in their actual condition, can be made use of in war (" quae, uti sunt, bello apta esse possunt "), and it matters not if they are also used in time of peace, as swords or gunpowder. All the existing treaties show that those articles are called contraband which serve for carrying on war, whether weapons of war or materials suitable for war in themselves (" quae . . . bellis gerendis inser- 1 This provision appears to relate to outward cargoes from Denmark, not to goods belonging to French owners, which is the meaning attached by the ' Articles d' Amplification ' to the expression ' enemy goods '. The object of the stipulation was to exclude Danish ships from the French coasting trade. OF THE EIGHTEENTH CENTURY 129 viunt, sive instrumenta bellica sint, sive materia per se bello apta ").' He goes on to say : But if every material be prohibited from which something may be fitted for war, the list of prohibited articles would be enormous, since there is scarcely any material from which we cannot manufacture something, at least, fit for use in war (' Si omnem materiam prohibeas, ex qua quid bello aptari possit, ingens esset catalogus rerum prohibitarum, quia nulla fere materia est, ex qua non saltern aliquid, bello aptum, facile fabricemus '). Quoting the Anglo- Dutch treaty of 1674, he says, neutrals are allowed to furnish the enemy with iron, copper, metals (metalluni), shipbuilding materials and all things which are not prepared for use in war. It sometimes happens, how- ever, that shipbuilding materials are prohibited, if the enemy has great need of them, and cannot conveniently carry on war without them ; and these are exceptions which confirm the rule. In making this qualification he evidently had in mind the ' separate article ' of the Swedish Treaty of 1667, which was directed against England. 1 Enemy Goods in Neutral Ships The other question, one of the greatest interest to the Dutch, is whether enemy goods can be captured in neutral ships. The States-General had negotiated during many years with both France and England before they obtained the desired concession in favour of their carrying trade. 2 Bynkershoek discusses it in cap. xiv. In his opinion the treaties which concede my schip, vry goed are to be regarded as exceptions to the rule (' haec Pacta ex- ceptionum loco esse habenda '). 'In any case we are more concerned with the reason of the thing than with 1 See also the citation from this author in the section on English Maritime Law in Time of War, p. 123. 2 See Lettres et negotiations entre M. Jean de Witt, etc., 1725, torn, i, and Thurloe, State Papers, iii-vii. 1783 K 130 PRIZE LAW IN THE FIRST HALF treaties. And, consulting reason, I do not see why it should not be lawful to take enemy goods, although found in the ship of a friend. If you say that I cannot rightly seize enemy goods in a friend's ship, unless I first seize the friend's ship, and so use force against a friend's property, in order to take the enemy's property, and that that is no more allowable than to attack our enemies in a friend's port, or to seize booty in the territory of a friend, I would have you observe, that it is allowable to stop the ship of a friend, in order that it may be proved to be a friend's ship, not by a deceptive flag (fallaci aplustri), 1 but by the papers themselves. If it is shown to be a friend, I shall release it ; if it is proved to be an enemy, I shall take possession. If it be allowed, as it is allowed by all law, and is always observed, it will be permissible to examine also the papers regarding the cargo, and to learn thence whether any enemy goods are concealed on board, and if any are concealed, why should I not take possession of them by the law of war ? ' 2 Bynkershoek refers to a decision given by the Dutch Government in 1665, on the question whether ' unfree goods' make 'unfree ship', i.e. whether a neutral ship carrying either contraband or enemy's goods was liable to confiscation to the effect that by the Dutch law the ship is not liable to confiscation. 3 The decision quotes Grotius on this point, and a sentence attributed to Ayala : ' bona hostium solummodo in praedam veniunt, non naves.' It seems safe to infer that Holland confiscated enemy goods in a neutral ship, where the neutral ship did not enjoy the right by treaty of conveying enemy goods, but did not recognize the validity of the French principle that ' robe d'ennemi confisque robe d'ami ' ; except of course where there was a treaty 1 aplustre, strictly the curved stern-ornament of a ship (Smith, Diet, of Antiq.}. 2 This passage is quoted in Ward, A Treatise, d^c., p. 67 ; Manning, Law of Nations, p. 290. 3 Isaac van den Berg, Nederlands Advys-Bock, iv. 622. OF THE EIGHTEENTH CENTURY 131 providing that enemy goods should go free in a neutral ship and the converse, as for instance the treaty with Spain (' darbij voegende dat het tractaat van Marine met Spangie gemaakt, uitdrukkelijk mede brengt, dat onvrij schip maakt onvrij goed, ende geen onvrij goed onvrij schip '). In January 1692 it came to the knowledge of the States-General that Dutch privateers had captured and brought in neutral vessels, contrary to existing treaties, and they issued stringent orders to the Courts of Admiralty to put a stop to such proceedings, expressly mentioning their treaties with Sweden and Denmark. These have already been referred to as defining contraband. The first of these treaties also stipulates that all cargo in an enemy ship should be liable to confiscation, no matter whether the owner of the cargo were an enemy or a neutral, and that enemy goods might be freely carried in each other's ships, except contraband of war. Or more shortly the parties adopted the same rule as the Spanish treaty just mentioned, namely, enemy ships, enemy goods free ships, free goods except contraband of war. No ordinances of later date than those here quoted have come to our knowledge. K 2 CHAPTER XII CAUSES OF ILL-FEELING BETWEEN GEORGE II AND FREDERICK THE GREAT. RESULT OF NEGOTIATIONS WITH SPAIN, AUSTRIA, AND RUSSIA FOLLOWING ON PRESENTATION OF THE PAPERS IN THE PRUSSIAN- ENGLISH CONTROVERSY Various FROM a very early period of Frederick's reign there had UMeeiine no * l ac ^ e ^ subjects of disagreement and latent hostility between between him and his uncle George II. Indeed their sove- W relations seemed to be coloured by the feelings of mutual reigns. dislike and even contempt which had prevailed between his father and the King of England. In 1740 George II was 57 years old, Frederick only 28, but the difference of age had no more moderating influence than had their relationship. There was the old grievance of the sup- pression of George I's will, by which it was supposed that a large legacy had been left to Frederick's mother. 1 Then there were the rival claims of the Elector of Hanover and the King of Prussia to the Ost-Friesland succession, which Frederick settled in his own favour by taking possession of that province on the death of the last Prince in May 1744. After an exchange of con- troversial papers put forward on either side, George II, in October 1746, initiated proceedings before the Aulic Council, which, however, led to nothing, as the King of Prussia refused to enter an appearance. 2 Another ground of strife was the occupation of certain bailiwicks in Mecklenburg by Hanover, in contravention, it was held, of Frederick's eventual claim to that Duchy. George's policy of upholding the Pragmatic Sanction and affording support to Maria-Theresa in the Silesian question was 1 Pol. Cor. i. 37, 38, 50, 54, 411. Also Hon. Evan Charteris's letter in The Times of January 21, 1909. 2 Freuss. Staatss. ii. 384. GEORGE II AND FREDERICK 133 perhaps the gravest cause of dissension between them. George's meddlesomeness in urging a proposal that the Archduke Joseph should be elected King of the Romans, in 1750, which Frederick opposed by every possible means, increased the tension. 1 In December 1748 Legge had complained of the favour shown by Frederick to the two Keiths, both of them declared Jacobites who had been ' out ' in 1715. 2 Frederick's choice in 1751 of Earl Marischal, one of these brothers, to be his ambassador in Paris, was vehemently resented by George II. Frede- rick's sarcasms respecting King George's behaviour at the battle of Dettingen had no doubt come to his knowledge, and the unfriendly rejoicings over the defeat of the English at Fontenoy were a new source of provocation. Thus the rejection of the judgements pronounced in Prussian prize cases by the English Admiralty Courts, and the assumption of a right to have the cases tried over again by a Prussian Court established for that purpose, were easily regarded by George II as a fresh insult, which he was determined not to tolerate. On February 6 it had been resolved by the Committee Copies of of the Privy Council 3 that printed copies of the reply to f^ 6 ^ Michell and of the report of the Law Officers should be British sent to the King's diplomatic representatives at foreign Courts for communication to the respective governments, foreign Courts. Special instructions were to be addressed to the Ambas- sadors at Paris and Madrid, and to the Ministers at Vienna, St. Petersburg, and the Hague. The correspondence with Benjamin Keene, Ambassador To Spain. at Madrid, is of no great importance, except as showing that the Spanish Government took a sympathetic view of the English case, and was inclined to ridicule French notions of International Law. 1 Pol. Cor., vols. vii and viii passim. - Ibid. vi. 322. 3 App. 36. 134 NEGOTIATIONS WITH AUSTRIA AUSTRIA To On February 13, 1753, Newcastle, as Secretary of State Austria. f or f^e Northern Department, addressed instructions to Robert Keith, 1 the British minister at Vienna, the first portion of which was also sent as a circular to all the diplomatic representatives. He was then directed to point out to the Austrian ministry how essentially the Empress-Queen was concerned in the question, as the Silesian loan had been contracted by her father, the late Emperor Charles VI, and the engagement to repay it was given by the King of Prussia to Her Imperial Majesty. Consequently the Empress-Queen was so closely connected with the King of England in this affair, that he did not doubt she would take such measures as should be agreed upon between them, to induce the King of Prussia to recede from his resolution ; and particularly, in case he should persist, notwithstanding the proofs now given of the injustice and irregularity of his proceedings, that then it might not be improper for the Court of Vienna to give the King of Prussia to understand that they looked upon his discharge of the debt as an essential obligation of the treaties of Breslau and Dresden. King There seems very little reason to doubt that George II contem- an( ^ ms ministers contemplated a resort to reprisals of plating some sort, in case Frederick refused to give way, and that there was some idea of seizing Prussian merchant ships, and in particular those which were engaged in trade from Emden to the East. There is frequent allusion in the correspondence of this period to steps which the King of England might resolve on taking to resent the insult he had received, measures such as it might become necessary for him to adopt in vindication of the rights of his subjects, and the danger which might result to the public tranquillity if Frederick persisted in his unjust proceedings. 2 And it seems to have been expected that 1 App. 38. 2 Albemarle to Holdernesse, February 21, 1753. NEGOTIATIONS WITH AUSTRIA 135 Frederick would retort either by the seizure of Lauenburg Appre- or an attack on some other part of the King's German hen s io ns J~ . of attack dominions. In that event King George would expect on the assistance from his allies, and in particular from the German Empress-Queen. The English Government, it appears, 1 dpmi- also considered it possible that the King of Prussia might, without further provocation, be encouraged to follow up his threat of applying the instalment still remaining unpaid to the compensation of losses suffered by his subjects, by some attack on King George's German dominions, and this belief was founded on rumours of orders having been given to form camps at different points of the Prussian frontiers, to buy artillery horses and to collect large quantities of forage 2 rumours after- wards proved to have been without foundation. 3 Keith reported on March i 4 the receipt of this dispatch, Reply and proceeded on the gth 5 to give an account of the M a _ manner in which he had carried out his instructions. He Theresa, had spoken to the Empress- Queen in verbal conformity with Newcastle's dispatch. In reply, she had expressed her approval of the English reply, and the moderation and wisdom with which King George had acted. Should the King of Prussia, contrary to all expectation, proceed to attack His Majesty's German dominions, the King might depend on ' their ' fulfilling all their engagements with the utmost exactness. As to the suggestion that she should make representations to the King of Prussia, she had not any opportunity of doing that, as he had never mentioned the matter to the Austrian minister at Berlin, nor by his own minister at Vienna, probably because he felt that the Empress and Emperor were ' too much the King's friends to approve of such proceedings '. She also talked rather vaguely about the necessity of 1 Newcastle to Colonel Yorke, February 13, 1753. 2 See Holdernesse to Albemarle of March 14, 1753. 3 See Frederick's denial in letter of March i to Langschmid, Pol. Cor. ix. 358, and March 31 to Michell, ibid., p. 382. 4 App. 39. 6 App. 40. 136 NEGOTIATIONS WITH AUSTRIA concerting new measures for the common safety. Keith rejoined that this might be gone into as soon as the important affair of the election of a King of the Romans was carried into execution. A dispatch from Newcastle 1 of the same day gives an account of the alarming rumours about hostile plans attributed to Frederick, informs Keith of the instructions sent to St. Petersburg, which he was to communicate to the Austrian ministers with a view to their instructing General Pretlack, the Austrian representative, to support Guy Dickens in the representations he was to make to the Russian Court. He was to submit to the Emperor the desirability of so disposing the Austrian troops as, in case of an attack on Hanover from Prussia, would enable a considerable diversion to be made by them immediately. He should endeavour to learn what further measures should, in the opinion of the Emperor and Empress, be taken for the preservation of peace and the frus- tration of ambitious projects on the part of France and Prussia. Difficul- Ever since the conclusion of peace at Aix-la-Chapelle Austria a somewhat acrimonious dispute had been going on arising between the English, Dutch, and Austrian governments Barrier with regard to the fulfilment of the Barrier Treaty of I 7 I 5' wmcn had fallen into abeyance in consequence of the conquest of Flanders by the French. 2 That province was, however, restored to Austria at the peace. In a dispatch to Keith of March 30, 1753, 3 after commenting upon the unsatisfactory nature of the reply returned by the French Court to the request for bons offices with Frederick, Newcastle says that the assurances given by the Emperor and Empress that the King might depend 1 App. 41. 2 See Groen van Prinsterer, Archives de la Maison d' Orange-Nassau, 4": s6rie, torn, i, ii ; and Gachard, Histoire de la Belgiquc au com- mencement du jS me siecle. The abstract of this treaty given in the Cambridge Modern History (v. 459) is in several respects inaccurate. 3 App. 42. THE BARRIER TREATY 137 on their fulfilling their engagements to him had given great satisfaction. 1 He then refers to Maria-Theresa's suggestion that existing engagements might be extended, so as to put the allied Courts in a position to defend them- selves, if attacked, and observes that if her plan should be King George's accession to the secret article of the treaty of 1746 between Austria and Russia, 2 he is to explain the impossibility of acceding to that proposal, as it would involve a departure from the guarantee he had given to Frederick of his possession of Silesia. And he adds that ' No Plan or Scheme for those great Pur- poses, can be effectual till the Disputes about the Barrier are settled, to mutual Satisfaction ; without which the Republick of Holland will be (I fear,) irretrievably lost to the Alliance '. Keith was instructed to seek an audience of their Majesties, and convey to them the remarks con- tained in this dispatch. In another long dispatch of April 20 about the Barrier, Newcastle writes : ' Is it possible then, to imagine that we can continue Our Union with the Empress-Queen by a sacrifice of our Commercial Interests, and That in the Case of the Low Countries ; which, at the Expence of so much Blood, and Treasure, have been conquered by the Maritime Powers for the House of Austria.' Keith, in his reply of May 25, 3 reported what he had said to the Empress-Queen on these two points, but apparently without bringing con- viction to her mind. Interesting also is a dispatch of French Newcastle's of October 22 4 to Keith on a proposal of that the Mirepoix's that the King of France should purchase the *5 m & of Prussian claims for between 15,000 and 20,000, which should England should afterwards repay ; to compound in this ^ h J ( T chase manner would have dangerous consequences, and it had Prussian been rejected. An important dispatch from Holdernesse to Keith of April 26, 1754, winds up by saying ' how Holland absolutely impossible it will be for H. M. to induce the execution States-General to enter into the several Measures, which g f a *^ r 1 See above, p. 135. - See below, p. 139. 3 App. 43. ' App. 44. Treaty. 138 THE BARRIER TREATY it may be necessary to take for the good of the Common Cause, either now or hereafter, if this principal object of their Interest be neglected [i.e. the Barrier], or aban- doned ; and you cannot but know, that if the States General (which I hope will never be the case) should quit their present system, it will be impracticable for the King to carry on the Measures, He is known to pursue, and in which, The Court of Vienna is so nearly interested.' Increas- Five months later, in sending a new counter-project tension ^ or ^ e settlement of this question, as the ultimatum of between the Maritime Powers, to be presented without the accom- and the paniment of a written pro-memorid, Holdernesse said : Maritime ' The whole Conduct of the Court of Vienna, through the induces Course of this Transaction, having been so indecent and f h rm offensive, That it would be impossible to avoid some to turn Expressions, in a written Paper, that might give the France? Court of Vienna a Handle to protract a negotiation, wch. His Majesty is desirous to bring to a Conclusion.' This new draft was rejected by the Austrian Ministry in November, and the feeling on both sides was that the alliance of the Maritime Powers with Austria had received its coup de grace. The language of Holdernesse is a suffi- cient indication of what was thought in England. Maria- Theresa's sentiments can be gathered from her letter of June 26, 1751, to the Prince of Orange, repeated by Kaunitz in a letter of June 6, 1754, to the British and Dutch representatives at Vienna. 1 Gachard's conclusion that the refusal of the English and Dutch to accept the Empress's proposals was a leading factor in her deter- mination to turn to France for an alliance is certainly confirmed by the story of the Barrier negotiations. 2 RUSSIA Conven- In 1747 conventions had been concluded with Russia Russia 111 i n J une by England alone, for the use of 30,000 Russian for troops whenever requisitioned by the King of England, 1 Groen van Prinsterer, op. cit., ii. 146. 2 Gachard, pp. 410, 535. NEGOTIATIONS WITH RUSSIA 139 in November by England and Holland for the same military number of troops to be employed on the Moselle or in ^ S1 i stance Flanders as might seem preferable to the two Maritime Powers, and again in December with England alone, of similar tenor, to which a secret article was attached, pro- viding that these troops should never be used against any one but the King of Prussia. 1 In 1746 a treaty of Treaty of alliance had been concluded between the Empress Eliza- arsaw - beth and Maria-Theresa, 2 to which various secret articles were annexed, of which the fourth recognized the right of the Queen-Empress to recover the portion of Silesia and the county of Glatz ceded to the King of Prussia by the peace of Dresden, in case either of the contracting parties or the Republic of Poland were attacked by the King of Prussia. The main object of the alliance was to put limits to the ambition of Frederick the Great, and in October 1750 George II declared his accession to the main treaty, but not to the secret articles, as that which referred to Silesia was in conflict with the guarantee of his possessions given to Frederick. The Empress on this occasion declared that Russia would defend Hanover in case it was attacked in consequence of the King's accession to the Russo-Austrian alliance. These facts encouraged English him in 1753 to make proposals for a new subsidy treaty j^r^n^ew for the assistance of Russian troops in case his German treaty for possessions were attacked by Frederick. The instructions s l s . Ty sent to Colonel Guy Dickens for this purpose on February tance. 13 were in conformity with the circular addressed to the other British diplomatic representatives, merely enclosing the four documents forming the Prussian case and the British counter-case. This was followed on March 9 by detailed instructions, 3 enclosing a copy of the dispatch to Keith of February 13, in which it was stated that application had been made to the Court of France, with 1 de Martens, torn, ix (x), pp. 144, 147, 165 ; the secret article at p. 171. 2 de Martens, i. 147. 3 App. 45. 140 NEGOTIATIONS WITH RUSSIA reasonable hope of a good result. Still it was impossible to depend upon the King of Prussia's listening to reason. The preparations which the King had heard were being made along the frontiers of his German dominions led to the apprehension that an attack was in contemplation. Colonel Dickens was therefore to lay the state of the case before the Empress Elizabeth, the Grand Chancellor, and other ministers, and say that if any such further violence were committed by the King of Prussia, the King would become entitled to claim the assistance of his allies, and in particular that secured by the defensive alliances of 1741 and 1742 with Russia, and by his accession to the Austro-Russian treaty of 1746. He desired, however, that the assistance in question should be as little burdensome as possible to Her Imperial Majesty, and he was willing to depart from what he was in strictness entitled to. If Colonel Dickens could procure a written assurance that upon notice of an attack by Prussia, the Empress of Russia would assist him with 30,000 or 40,000 men, now quartered in Livonia, and also furnish a large body of Cossacks and Kalmucks to invade the Prussian dominions, he would from the date of the march of such Regular or Irregular Troops give a proportionable subsidy to be paid as long as they should continue in the service of Great Britain ; and if the troubles should be soon and happily ended, part of the subsidy might be continued for such time as should be agreed upon ; but that circum- stances did not permit him to grant any considerable subsidy unless there should appear to be an absolute necessity for it. The great point was to agree upon the number of troops and the sum to be paid for them. There was then a reference to the agreement of 1747, and it was observed that on the present occasion the King was entitled to the succours stipulated, without any money payment, and the troops were not to march until the subsidy became payable. These considerations ought greatly to lessen the expense. No sum could be named, FOR A SUBSIDY TREATY 141 as that would depend upon the number of troops to be furnished. Colonel Dickens was therefore to use his utmost to cut down the sum demanded. When the terms and conditions proposed by the Empress were agreed to by the King, he would be assured of the assis- tance of the Russian troops, in case he were attacked, and the Empress would be assured that the stipulated succours should not be required until the King had com- plied with the proposals to be transmitted, in consequence of these instructions, for the King's approbation. The dispatch wound up by saying that if the Russian Court neglected this opportunity, and insisted on a previous provisional subsidy which could not be granted if the King of Prussia should once resolve to break the peace, the Russians would have to defend themselves ' upon their own bottom ' without any assistance of men or money, and the Turks would be ready to take advantage of such a situation, while the Empress-Queen would have more than sufficient occupation in providing for her own security. Newcastle adds that he was sending this dis- patch under flying seal to Keith, that he might discuss its tenor with the Austrian ministers, and a copy of the dispatch of the same date to Keith was enclosed for Dickens's information. A ' very secret ' letter of the same date l authorizes offer of Colonel Dickens to advance 2,500 to the Grand Chancel- g"^.* lor if he succeeded in procuring the Empress's consent chew. to the proposed plan, and a further amount of 2,500 if the Chancellor gave the desired written assurance. He might further promise a similar sum as soon as the Russian troops began their march in consequence of a requisition from King George, with a further gratuity in case Bestuchew assisted him in fixing the subsidy at as moderate a figure as possible ; the lower the subsidy the greater the consideration for it would be. It was pointed out that this offer of money showed ' how much 1 App. 46. 142 NEGOTIATIONS WITH RUSSIA the King has the success of this affair at heart '. It is hoped that Colonel Dickens will endeavour to reduce the subsidy as low as possible, and Newcastle adds : ' We shall be very impatient to know the success of this important negotiation.' What wonder if the minister supposed that he was completely authorized to enter into an agreement ad referendum, with a certainty of the agreement being approved ! Bribery of ministers at foreign courts was an expe- dient frequently resorted to in the eighteenth century. Frederick the Great probably practised it less often than other sovereigns, from want of money rather than want of will. He did not scruple to bribe secretaries in foreign chanceries to furnish him with copies of important con- fidential correspondence. There is a report from his minister at Dresden of this year, 1 in which Bestuchew is represented as saying that Saxony had made considerable offers to him in 1745, which he had refused, at the moment that Prussia and France lui en avaient fait de plus avan- tageuses. Dilatori- In Colonel Dickens's dispatches from time to time, ^g S c accounts are given of the delays he met with, chiefly Russian owing to the Empress Elizabeth's indolence and unwilling- ness to occupy herself with business matters. At last, on July I/I2, 2 he was able to report that the Russian demands were very high. Six days later he sent a full report of his negotiations, with enclosures. Amongst these were copy of a memorandum he had handed in, embodying his instructions, and the Russian pro-memorid in reply. It offers no observations on the merits of the controversy between Prussia and England, but plunges at once into the question of auxiliary troops, and proposes the draft of a convention. These papers, dispatched by way of Vienna, did not reach London till about August 20. By that time the apprehensions of a Prussian attack seemed to have entirely subsided. Accordingly his report 1 Pol. Cor. ix. 414. * App. 47- FOR A SUBSIDY TREATY 143 elicited from Newcastle a severe rebuke * for the manner in which he had carried out his instructions and for having misled the English Government by statements in his previous correspondence, to the effect that ' The Court of Russia would come into His Majesty's plan, and, in such a manner, as would be entirely agreable to Him '. He was told that he had completely misunder- stood his instructions, and that the King was extremely offended at his having taken on himself, without orders, to present a memorial in writing. His reply of October 14/25 2 explained that there were only two ways of trans- acting business with the Russian Court, viz. either by presenting a pro-memorid, or by a conference with the Grand Chancellor and Vice-Chancellor, at which every- thing said was taken down ad Protocollum. In spite of the King's dissatisfaction, so strongly expressed, Dickens was left at his post and allowed to continue the negotia- tion, until he himself applied in February 1755 to be relieved of his appointment on the ground of age and infirmities, and ' Intemperancy of the climate '. He was succeeded by Sir Charles Hanbury Williams in June of Hanbury that year. Before leaving he wrote 3 that the real reason tt S of the delays was that ' They are desirous here, to see, conclude before They take any Resolution, if the Disputes between England and France, about the Affairs of America, will not come to a Rupture, that this Court may sell Their Assistance the dearer to his Majesty ; Knowing these people here, as I do, I am not at all surprized at their Proceedings, and I have suspected Them, for some time, but did not care to mention my Suspicion, to your Lord- ship, without some foundation ; notwithstanding these prevarications, I must tell Your Lordship, that I am much less in pain, about the Success of Measures pursuing here, than I am about the Dependance, which may be had on Them, when they are brought to Perfection, for sooner, 1 App. 48. 2 Record Office, S. P. For., Russia, vol. 57. 3 Record Office, April n 22, 1755. 144 NEGOTIATIONS WITH RUSSIA or later, they will accept his Majesty's Offers, rather than bear the whole Expence, of the Great Body of Troops, which they cannot avoid keeping on Their Frontiers, but should the Case exist, that these Troops must move forwards, hereafter, I am afraid We shall find numberless Difficulties, and Obstacles, if They are to act by Them- selves ; Therefore I hope to be pardoned, if from my Zeal for the publick Good, I repeat, what I said some Months ago, of the Necessity of not running the hazard of Disappointments from this Court, were even all their most unreasonable Demands complied with. . . .' There is an excellent account of the further course of the negotiations, which were terminated by the signature on September 19 of a convention, in F. de Martens's Traites et Conventions, ix (x), p. 194, Article V stipulating that an invasion of the German dominions of His Britan- nique Majesty on account of interests or disputes which concerned his kingdoms should be regarded as a casus foederis of 1742. It is framed in general terms, but the Empress of Russia regarded it, as she was justified in doing, as applying only to the case of an aggression by Prussia, and on February i she caused a secret declaration to be delivered to Williams making this Failure of point perfectly clear. 1 The treaty of Westminster of the Con- J anua ry 16, 1756, consequently rendered this convention a dead letter. A confirmation of the Russian view is afforded by a letter of Newcastle to the Duke of Devonshire, dated January 2, 1756 : 2 ' I am sure, Your Grace will be glad to hear that all the good consequences which we proposed from the Russian Treaty have already in a great measure happened. We immediately made a communication of the whole to the King of Prussia, which was so well received (as your Grace will see by the enclosed copy of the note taken by my Lord Holdernesse, which I send 1 de Martens, p. 201. '- British Museum Add. MS. 32862, f. 6 v . FOR A SUBSIDY TREATY 145 you in the greatest confidence and to be communicated to Nobody] That we have actually sent in concert with the Prussian Minister here the Draught of a Convention to Berlin for the junction with the King of Prussia, in case the French Troops should invade Germany, which we have great Reason to hope will be accepted, and which if accepted is undoubtedly greatly owing to our treaty with Russia, so that not only Hanover and the Empire will be secure, but a new connection between us and Prussia made which may have good consequences in other respects.' 1783 CHAPTER XIII NEGOTIATIONS WITH HOLLAND THE narrative contained in the last chapter has interest only as an episode in the diplomatic history of the period, and we now turn to discussions which derive their impor- tance from questions affecting the interpretation of treaties and the respective rights of belligerents and neutrals in maritime war. The relations between Great Britain and Holland during a great part of the eighteenth century were very intimate, both governments being interested in the maintenance of the Barrier Treaty, which formed a subject of dispute with the Court of Vienna. Apart from this, the corre- spondence with Holland deserves attention for two reasons, and first, that Frederick had a similar controversy with the Dutch respecting the treatment of Prussian ships by privateers. 1 Memorials were presented by Ammon, the Prussian minister at the Hague, in August and December 1747, complaining of annoyance experienced by Prussian subjects and ships from the visits and seizure of goods by Dutch seamen. After examination of the complaint by delegates of naval affairs and in consultation with dele- gates of the Admiralty Courts, the States passed a resolu- tion on March 5, 1748, by which it was determined that ' passes granted or to be hereafter granted by the King of Prussia to the ships of his subjects should be respected by the Admiralty Courts, war-vessels, and privateers, if such ships had not laden other than permitted goods and no contraband, and that the ships of Prussian subjects shall not be molested further than is necessary for the visit in order to ascertain the nature of the cargo, and as sanc- 1 Pol. Cor. vi. 22, 36, 83, 88. NEGOTIATIONS WITH HOLLAND 147 tioned by the laws and customs of the sea '.* Frederick seems to have regarded this as a frivolous reply to his representations, and instructed Mardefeld on April 21 to inform the Dutch envoy at Berlin that if satisfaction were not given, the proximity of Prussia to Holland would enable him to take it. Mardefeld reported the result, with which Frederick appears to have been contented, for there is no further allusion to the matter in the Politische Correspondenz. In 1753 (March 3) Hellen reported from the Hague that in Holland much satisfaction was felt with Frederick's energetic action against England, as Dutch merchants had also suffered during the earlier part of the war in the same way as the Prussians. For although Equivo- the French had committed acts of hostility against tude^of' Holland as early as June 1744, which were repeated in Holland 1745 and 1746, by expelling the Dutch garrisons from the Barrier towns, the States-General declined to consider themselves at war with France, but preferred to maintain the position of a neutral power, until the French declara- tion of war was delivered to them on April 17, 1747. Consequently they attempted to rely, up to that date, on the article of their treaty of 1674, which provided that as between the English and Dutch reciprocally, the principles of ' free ships, free goods ', and ' enemy ships, enemy goods ' should be observed. This view was contested by the British Government, which held that the Dutch were not properly neutral, as they were bound by their alliance to come to the aid of Great Britain whenever the latter was at war with France. There was an exchange of dispatches in January 1753 instruc- between Newcastle and Yorke 2 respecting orders rumoured to have been given by the King of Prussia for quarters to be prepared at Embden for 10,000 men, and regarding the language Yorke was to hold about his claim to detain the last instalment of the Silesian debt. The instructions 1 Letter from the Superintendent of the Algemeen Rijksarchief at the Hague, apud me. 2 App. 49 and 50. L2 148 NEGOTIATIONS WITH HOLLAND to Yorke of February 13 were similar to those sent to Keith, 1 enclosing printed copies of the reply to Michell, the Report of the Law Officers, together with Michell's printed Memorial and the Exposition des Motifs, all of which were to be delivered to the Princess Royal 2 and the Dutch ministers, if they had not already received copies Appre- of the latter two. In a private letter of the same date 3 hensions Newcastle alluded to the apprehension felt that Frederick Prussian might take it into his head to support his present action George by an attack either on the King's German dominions or ii's Ger- on Holland. It was asserted that a camp for 50,000 men man do- r u minions, had been marked out near Spandau. Should Frederick proceed to hostile action against Hanover, King George was confident that he might count upon the immediate assistance of the Republic. At the same time Yorke was to assure the princess and her ministers that everything would be done by George to avoid such a contingency consistently with the duty he owed to his subjects and with the honour and dignity of his crown. Mirepoix, the French Ambassador, had expressed himself in the most friendly manner, but there were grounds for doubting whether his government would act so fairly as he appeared to hope. All rival nations would be glad to see the English fleet and trade embarrassed, and the lesser Powers would not be sorry to have a precedent for carrying on trade in time of war in the unjustifiable manner insisted on by the King of Prussia. If that was submitted to by England, she would be precluded from ever engaging in a foreign war. Yorke's Yorke replied on February 20 4 that the papers had February ^ een delivered to the Dutch ministers and had given 20. universal satisfaction. Every one who had read them 1 App. 38. Down to the words ' Violence, and Absurdity of Those at Berlin '. 2 Eldest daughter of George II, widow of the Stadtholder William IV. He died October 23, 1751, and she became Regent, her son being only three years of age. 3 App. 51. 4 App. 52. NEGOTIATIONS WITH HOLLAND 149 was fully convinced of the justice of the proceedings in England, and of the violence and absurdity of those taken at Berlin. He was having the Report translated into Dutch for publication. The Prussian ministers had printed the Exposition des Motifs in all languages and dispersed it in all countries. Newcastle, in writing to Yorke on March 6, 1 admitted that if France made serious representations to Frederick regarding his proceedings, there was little reason to fear voyes de fait on his part, but it was always prudent to be prepared for the worst, when you had to deal with a prince who was governed by the principles which appeared to have influenced the King of Prussia in this affair. In reply to the objections made by the Pensionary of Hol- land, as reported in Yorke's private letter of February 2O, 2 Newcastle urged, first, that England had no treaty with Prussia [relative to the carriage of enemy goods in Prussian ships], so that the general Law of Nations was the only rule that could be followed ; second, that by Article 20 of the Treaty of Aix-la-Chapelle the King's German dominions were expressly guaranteed by all the contract- ing parties, among which Holland was included. Later on, Newcastle sent him under flying seal his dispatch of March 30 3 to Keith, in order that he might acquaint the Princess Royal with the answer received from France on the Prussian affair ; writing on April 17,* he still appeared to think it possible that Frederick would take some violent step. Yorke reported on May 8 5 that he had been informed France by the Grand Pensionary of the demand made by France Holland that Holland should insist upon the restitution of all to insis f goods, the property of French subjects, taken under the tution of Dutch flag and condemned during the late war. As the Grand Pensionary seemed to imagine that England had captured made some new declaration to the French Court on this 1 App. 53. 2 This document is not at the Record Office. 3 App. 42. 4 App. 54. 5 App. 55. 150 NEGOTIATIONS WITH HOLLAND Dutch pro- memorid asking for an explicit declara- tion of Dutch rights. New- castle declines to give the de- claration asked for head, Yorke had replied that he had never heard of it, but supposed what St. Contest had said to the Dutch representative was founded upon the answer to the Prussian memorial, in which a distinction was drawn between the rights of neutrals recognized by the Law of Nations and those established by particular treaties. The Pensionary seemed to desire some more explicit declara- tion of Dutch rights than was contained in the English reply. Three days later l he transmits a pro-memorid from the Grand Pensionary on this subject, which he desired to have laid before the King as a private request ; by it Yorke was besought to obtain from his court a declaration that the treaty of December i, 1674, and all other subsisting engagements between England and the Republic would always be carefully and religiously observed, and that in consequence the subjects of their High Mightinesses would be free to transport in their ships goods belonging to the enemies of England, and that the British Court intended to abide exactly thereby on every occasion. To this Newcastle sent a detailed reply on May 18 ; 2 that the King was of opinion that St. Contest's suggestion was made with the object of throwing upon his Majesty the blame for the miscarriage of the Dutch negotiation, or, if it succeeded, to lay by that means the foundation of a perpetual neutrality with Holland, and pointed out that the words in the Dutch pro-memorid, ' pour avoir des assurances qu'en cas de guerre le pavilion de 1'Etat soit respecte, particulierement par ceux avec qui la France se trouvera en guerre,' appeared to suggest that the French Court was on the point of coming to a rupture with England. It would be very improper to give any declaration of the sort in order to satisfy the French Court, and unnecessarily to confirm the existence of a treaty on which sooner or later the King and the Republic must have an amicable explanation. On a recent occasion where 1 App. 56. 2 App. 57. NEGOTIATIONS WITH HOLLAND 151 an appeal from the Court of Admiralty was brought in a Dutch case, the Council had been of opinion that some explanation of that treaty would be necessary, and New- castle ventured to foretell that whenever England should be so unhappy as to be engaged in a war with France, she would begin by insisting that, pursuant to the treaty of 1678, l the Republic should immediately send the succours therein stipulated, and within two months declare war against France ; and in the event of refusal she would declare that that part of the Marine Treaty which stipu- lates ' Free Ships, Free Goods ' would not be observed. In fact, as he pointed out, the treaty of 1674 provided for the case of Holland being neutral, while Article 5 of the treaty of March 3, 1677/8 stipulated that if one ally were attacked the other should break with the aggressor within two months after the rupture, and so nullified Article 8 of the treaty of 1674. He said this argument had been strongly pressed during the late war, when the Dutch minister claimed the full execution of that article. Con- sequently the King could not possibly give such a declara- tion as was asked for. He enclosed copies of the two articles referred to. Newcastle repeated the same arguments in a conver- sation he had with Count Bentinck. 2 He also added that as the two treaties were plainly inconsistent, if the King were formally to declare that the first was still valid, he would certainly demand that Holland should simultane- ously undertake that whenever England was at war with France, she would immediately send the stipulated succours and declare war within two months. This intimation seems to have had the expected influence on the minds of the Dutch ministers when they returned to the charge in a second paper, transmitted by Yorke on May 29. 3 In this they argued that the treaty of alliance of 1678 did not derogate from the commercial treaty of 1674, but merely added fresh stipulations, which in certain 1 Jcnkinson, i. 213. 2 App. 58. 3 App. 59. 152 NEGOTIATIONS WITH HOLLAND events would nullify the condition in the former as to ' Free Ships, Free Goods '. They put four cases in which it would not have this effect. As they pointed out, in 1744 a declaration such as was now asked for had been given, and the Admiralty had in fact applied the principle, in conformity with the treaty of 1674. In conclusion they said that if these fresh representations failed of the desired effect, they would prefer to abandon their request. With great promptitude Newcastle replied 1 that this document contained not one word affording any security that, if the undertaking were given, France would not put forward some fresh demand, or emphasize those already made, for pretended satisfaction for French goods sup- posed to have been captured in Dutch ships ; they would do this directly, on their own account, if the Republic should refuse to do it for them. On this answer 2 being Dutch communicated to the Dutch ministers, they said they had withdraw never meant to persist in their demand, if it proved their disagreeable to the King. They had been led to prefer it reques . ^ v the order given in 1744 to the Lords of the Admiralty, to pay all possible regard to the treaty of 1674, in the instructions to be given to their cruisers, but now, seeing that the thing was impracticable, they desired, if possible, that the question might be entirely dropped. Newcastle's answer 3 was that the King readily consented, and the Dutch Government declared their entire satisfaction with the result. 4 1 App. 60. 2 App. 61. 3 App. 62. 4 App. 63. ENGLISH APPLICATION TO THE COURT OF FRANCE FOR BONS OFFICES. ATTEMPT OF FRENCH GOVERNMENT TO ASSUME THE PART OF AN ARBITRATOR. SUBSE- QUENT ENDEAVOURS OF FREDERICK THE GREAT TO COME TO A DIRECT ARRANGEMENT WITH ENGLAND. FREDERICK had been careful, so far back as November British 1751, to provide his diplomatic representative in Paris with a detailed statement of his grievance against Eng- good land in this matter, for communication to the French c Government. It was therefore natural enough that the French British Government should in their turn lay the justifica- induce tion of their conduct before the French Court, and ask it to aban- to use its influence with the King of Prussia, and induce don his him to abandon the attitude he had, in their opinion, so P ur P sc - unreasonably assumed. They were of course aware of the defensive alliance between France and Prussia which had been hitherto of so much value to Frederick of more value than he was always willing to acknowledge. It was not inexcusable to imagine that he might be willing to listen to the counsels of his ally. Frederick had published his grounds of action to the whole of Europe, and the British Cabinet merely followed his example in acquainting all the Powers, including France, with the counter-arguments on which they relied. All they asked was that France should employ her ' good offices '. The French Government, however, tried to convert this into a request for their mediation a very different thing and even attempted to get themselves accepted as arbitrators. They went so far as to assure the Spanish Government, whom they, were anxious to detach from England, that ' mediation ' had been specifically asked for, but without succeeding. In addition to this, they endeavoured to 154 NEGOTIATIONS WITH FRANCE mix with the question of the Prussian ships a dispute that had been going on with England ever since the treaty of Aix-la-Chapelle in 1748 regarding prizes captured by England before the declaration of -war in 1744, on the ground of an agreement of July 8, 1748, to appoint com- missioners for the restitution of prizes made after the signature of the preliminaries of peace. Had the English Government anticipated the way in which their request would be misrepresented, they assuredly would never have put it forward. Holder- A preliminary dispatch from Holdernesse to Albemarle instruc- ^ February 8, 1 in forwarding a copy of Newcastle's reply tions to to Michell, and promising printed copies of the other marie. papers as soon as they were ready, gave a brief account of what had passed since the spring of 1752, but instructed him not to enter into a discussion with the French minis- ters for the present. In a further instruction of the I5th 2 he referred to the repeated assurances given by Louis XV of his earnest desire to co-operate in the preservation of peace, which induced King George to communicate to him ' this extraordinary transaction '. Printed copies of the Prussian documents were enclosed, to be dis- tributed to St. Contest (the Minister for Foreign Affairs) and his colleagues in the ministry. Holdernesse observed that firstly, the English Courts of Admiralty proceeded solely upon the Law of Nations in cases not governed by treaty ; secondly, that from the facts quoted in the lists annexed to the Prussian memorial and the arguments adduced, it appeared evident that the King of Prussia had no right whatever to make reprisals on his Majesty's subjects ; thirdly, that even if his Prussian Majesty was entitled to make reprisals, stopping the payment of what remained due on the Silesian loan would, from the circum- stances of the case, be unjustifiable. Albemarle was to say that ' His Majesty doubts not but from the con- sideration of justice and friendship the French King will 1 App. 64. 2 App. 65. NEGOTIATIONS WITH FRANCE 155 use his good offices * with the King of Prussia to comply with his solemn engagements to discharge the debt ', and he added : ' His Majesty has so just an opinion of the equity of the Court of France and of their real desire of maintaining the tranquillity so happily established in Europe, that the King will not suffer himself to doubt but that His Most Christian Majesty will interpose in a case where the most solemn treaties are broke through in a violent and unjustifiable manner, without the least colour of reason.' Albemarle replied on the 2ist 2 that he had delivered the papers to St. Contest and used the arguments sug- gested, repeating Holdernesse's language about ' good offices '. St. Contest had replied in the most friendly manner, and said ' he had no doubt the King his master would interpose his good offices and use his utmost endea- vours to reconcile these differences in such a manner as would be agreeable to His Majesty '. About the same time Frederick wrote to Earl Marischal Frederick at Paris that he thought King George had no desire to push things to an extremity on account of so trifling sadorin a matter. 3 He had heard from London that a copy of the English reply had been sent to Albemarle for communi- cation to the French Court, with a hint that His Britannic Majesty would be charmed ' que la France voulut em- ployer ses bons offices aupres de moi pour chercher a me convaincre de la legitimite des demarches de 1'Angleterre dans cette affaire et pour m'engager en meme temps a revenir des resolutions que j'avais prises sur 1'arret des fonds de Silesie.' A week later Albemarle wrote 4 that he had asked French St. Contest for a reply, who said he should like to have a delayed. few days more to weigh the matter maturely, when he 1 The distinction between bons offices and mediation is well recognized. See Nys, Le Droit international, iii. 59. 2 App. 66. 3 Pol. Cor. ix. 357 (February 6, 1753). 4 App. 67. 156 NEGOTIATIONS WITH FRANCE would make a report to the King in Council. He (Albe- marle) had reason to believe that the delay was in order to gain time for an answer from Berlin, whither a dispatch had been sent by messenger directly after the receipt of the papers. Holder- A ' separate ' dispatch of March i l from Holdernesse I16SSG informs informed Albemarle that the King was well pleased Alb( r~ . with St. Contest's reception of the communication. His marie of suspected Majesty had heard it surmised, and perhaps not without o^Frede- foundation, that Frederick had purchased or was about to rick on purchase the Anhalt pretensions on the Duchy of Lauen- GermaiT burg f which the King and his ancestors had long been territory. m possession, and that Frederick was taking rr easures to make himself master of it by force ; and it was supposed that it was in order to be ready to make a stroke there or in some other part of the King's German dominions that Frederick was forming camps at different points of his frontier. Should that really be the case, or should Frederick, in consequence of the dispute or of such measures as it might be necessary for the King to take in vindication of the rights of his British subjects, presume to attack any part of his possessions, King George would then have a right to claim the solemn guarantee of all his territories given by France in Art. 20 of the Treaty of Aix-la-Chapelle. On March 14 2 Holdernesse wrote again that the King had news of Frederick's warlike preparations, such as buying artillery horses and amassing forage on the frontier, probably with the object of deterring the King from vigorously supporting his subjects. But Frederick would find himself mistaken if he supposed that this would have any such effect. ' This Proceeding of the Court of Berlin is a national insult, and should the King be drove to a Necessity of resenting It (which, however, His Majesty is determined to postpone as long as possible), and should His Prussian Majesty, in consequence of such necessary Measures form any Hostile Designs against any 1 App. 68. 2 App. 69. NEGOTIATIONS WITH FRANCE 157 Part of His Majesty's Possessions in Germany, the World will see the unshaken Fidelity of the King's subjects, and that they are ready to sacrifice their Lives and Fortunes in His Majesty's Defence. But the King still hopes, that the Interposition of His Most Christian Majesty will prevent the fatal Effects of a Perseverance, on the Part of the King of Prussia, in the arbitrary and unheard-of Proceeding, which he has threatened. . . . should His Majesty's German Dominions be attacked in consequence, and on account, of an English Quarrel, such a Violation of the Laws of the Empire, and of Publick Faith, such a Proceeding would necessarily call upon the Court of France even to join their Forces against the Agressor.' l He then added in French the very words he and New- castle had by the King's direction used to Mirepoix, and instructed him to read the passage to St. Contest. They amounted to a formal invitation to France to declare that she would set her forces in motion to defend the King's German dominions from attack by Frederick, and held out the prospect that if she did not, the consequences would be a general war. Albemarle found that St. Contest had received from Mirepoix the note verbale read to him by Holdernesse and 1 See Pol. Cor. x. 118 (October 8, 1753). In a letter to Earl Marischal Frederick ridiculed the idea attributed to King George of retaliation by seizing Prussian ships, and suggested by St. Contest as a possibility. He says that the insurance had been effected in England, so that the loss would fall on British subjects. The language about ' insult ' is not the King's alone. See Henry Pelham to Newcastle, July 13, 1753 (Coxe's Life of Henry Pelham, ii. 485). In a letter to his brother, of July 17, Newcastle says: 'The King was for some days extremely uneasy with me for having let the Prussian ship go by (the only way his Majesty often said, of doing anything for the support of the honour, &c.) and that he should be told that his regard to his German dominions was the occasion of it, when I knew the contrary. Of late we are a little easier, and very properly are turning our thoughts now to what is next to be done. Sending away Michell, prohibiting Commerce with Prussia, &c., have been men- tioned by the King. These are all future considerations, but I daresay we shall all be of opinion that something must be done.' 158 NEGOTIATIONS WITH FRANCE French Newcastle, 1 to which he sent a rejoinder. 2 This paper, that Y the nea cled ' Note a lire a Mo n le Due de Newcastle et a Report of Mons r ' le Comte de Holdernesse ', speaks of the English OfficenT request for bons offices, but observes that the English reply asserts j- o Prussia contained statements of principle respecting of prize prize law which could not be admitted by any Power or commerc i a l nation ; and at the same time mixes up with admitted, the Prussian dispute the question pending between France and England respecting prizes taken from the French subjects both before and after the peace of Aix-la-Chapelle. 3 The French reply caused great dissatisfaction in London ; a long dispatch 4 was addressed to Albemarle commenting severely on the facts that, first, it contained no mention of the King's German dominions ; second, affected to regard an atrocious national insult as of trifling impor- tance, and third, talked of reconciling the conflicting interests regarding the prizes taken from Prussian sub- jects. This was not the point on which French inter- position had been asked. Frederick's detention of the money due to private persons, for which he had made himself liable by solemn treaties, was a national affront. The French Court had been asked, not to enter into a dis- cussion of the point of right, but, to induce Frederick to pay what he unjustly and insultingly detained. The dispatch evinced some distrust of the French Court by intimating that the King ' will not suffer himself to be amused ', and hinted that if the King of Prussia remained obstinate, George II might be forced to take hostile measures. If, out of revenge for the just reprisals to which the King was entitled, any part of his dominions were attacked, he would have a right to claim the fulfil- 1 App. 69. * App. 70. 3 This attempt to drag in a question which was under discussion between the French and English Commissioners at Paris ought to have acted as a warning to the British Government, that they would derive no assistance from the French, and it would have been more prudent on their part to have dropped the request for bons offices with Frederick forthwith. 4 App. 71. NEGOTIATIONS WITH FRANCE 159 ment of the solemn guarantee of France. It went on to say that Holdernesse was at a loss to understand the statement that the reply to Prussia set up principles that could not be adopted by any trading nation, and desired Albemarle to ' get a further explanation of these dark Surmises and ambiguous Expressions '. He did not, he said, see why the question of the French prizes had been introduced into a paper relating solely to the dispute with the King of Prussia. 1 Frederick had written to Earl Marischal to assure Frederick St. Contest that he had no hostile intentions against hostile in- Hanover. 2 St. Contest was welcome to assure Albemarle tentions that unless the King of England insulted him or was the buted to first to attack, France would march the whole of her army mm - to support the King of England against a Prussian inva- sion of a single Hanoverian village. The rumours of his pretensions to Lauenburg were ridiculous and without foundation. At the same time he told his own Foreign Secretaries that he would not absolutely refuse the bons offices offered him by France, being assured that he could not place his interests in better hands. It was his inten- tion to communicate to the French Government the rejoinder which was in the course of preparation, and if France was able to induce the Court of London to sur- render to reason and lend itself to what was equitable, he would be very glad. According to St. Contest 3 there was every reason to expect that the dispute would be arranged, and it seems that both he and Mirepoix were under the impression that the answer he had sent to Newcastle and Holdernesse 4 had proved satisfactory ; but, as we have just seen, that was far from being the case. Frederick now began to confuse entremise (intervention) 1 The reasoning seems to be that Frederick by sequestrating the balance of the loan became the original aggressor. If he thereby provoked reprisals, and in revenge for them attacked Hanover, France was bound to make it a casus belli with him. This seems a little far- fetched. 2 Pol. Cor. ix. 385 (letter of April 3). 3 App. 72. 4 See App. 69. i6o NEGOTIATIONS WITH FRANCE Confu- and mediation. 1 From Michell, however, he received a between warning that if he persisted in withholding the balance of interven- the debt, the English would continue to regard his action as media- insulting, and would take steps in consequence. 2 Pelham, tion. W h had hitherto discountenanced violent measures, had lately said that if Frederick went on as he was doing, he would reluctantly be compelled to adopt his brother's view of the necessity of taking action to support the honour of the crown and nation. Michell had also learnt from a trustworthy source that the Cabinet would not be indisposed to afford reasonable satisfaction, provided Frederick did not himself fix the amount, but completed the payment due, and provided it was amicably arranged by private negotiation, so as not to give a handle to the subjects of other neutral powers who had been in the like case with Prussian subjects. Otherwise the ministry would be forced to do something to uphold the honour and glory of the nation, for on this their own position depended, and they would incur the consequences, however dan- gerous, rather than risk the safety of their administration, such being, he said, the motives which ordinarily guided English ministers. French Albemarle duly communicated the contents of Holder- thatno nesse ' s dispatch of April 2 3 to St. Contest, who replied case that his Court would not make the slightest difficulty for S fuL- about acknowledging the obligation arising from the filling the guarantee of 1748 when the case presented itself, but in tees of the the present instance, if King George found himself com- -. t attack Frederick, France would not look on that Chapelle. in the light of reprisals, but as an aggression. Albemarle maintain retorted that Frederick was the aggressor, to which that ' free St. Contest replied that they were doing all they could at goods 'Is Berlin, but had no more influence over Frederick than part of King George over Maria-Theresa. He then adverted to theLawof . Nations, the English maxim that enemy goods could be taken in 1 Pol. Cor. ix. 393. - Ibid. 410. 3 App. 73. NEGOTIATIONS WITH FRANCE 161 the ship of a friend, which he maintained was contrary to the general Law of Nations, and consequently the French had a right to claim the goods of French subjects taken during the war, ' the treaty of Commerce between England and Holland in 1674 having recognized that doctrine.' Albemarle replied (as he was bound to do) that the treaty in question was an exception to the Law of Nations, which it inverted by a private agreement between those two Powers that did not affect [i. e. confer a right on] any other nation. It is evident that Albemarle delivered himself of his instructions in a very thorough manner. He reported on April 18 1 that Frederick had accepted ' the Interposition and Good Offices ' of the Court of France. This dispatch crossed on its way one from Holdernesse announcing that the King would let the affair rest for the present, in order to see what part the King of Prussia would take. Then, on the 20th April, the French Government spoke Memoire out their whole opinion on the controversy in a memoir c delivered by Mirepoix, in which certain portions of the French Report of the Law Officers were criticized. 2 ment. This document does not professedly aim at discussing the merits of the dispute between the Courts of London and Berlin, but as the principles laid down in the answer of the Duke of Newcastle to the Prussian secretary and in the report annexed to it, and some of the allegations therein contained, were held to affect the rights of the King of France and the property of his subjects, it became necessary to distinguish the principles and facts on which there was agreement, and to investigate those on which there was a difference of opinion. [It will be found, however, that incidentally the pro- memorid bears on all the important points in the Prussian Exposition des motifs, for which reason it is thought necessary to summarize its contents, as follows :] 1 App. 74. 2 S. P. For., Foreign Ministers in England, vol. 9 ; App. 75. 1783 M i62 FRENCH PRO-MEMORlA FIRST PART Principles respecting the condemnation of prizes ; that they are to be decided by the rules of the Law of Nations and by treaties, is recognized by all nations. We agree with the English lawyers (magistrals) that when two Powers are at war with one another, they have the right of taking from each other ships, merchandize and goods (effets] met with on the high seas ; everything belonging to the enemy is good prize, but what belongs to a friend cannot be, as long as he observes neutrality. The English lawyers draw several inferences from this principle. i. The goods of an enemy can be seized, although on board a friendly ship. 2. That the goods of a friend ought to be restored, although found on board an enemy ship. These inferences appear to follow naturally from the principle just mentioned, but as the exception is often a confirmation of the rule, it might perhaps be maintained that the friendly flag covers the merchandize of the enemy, and e converse the enemy flag renders the merchandize of a friend subject to condemnation. Perhaps it is the uncertainty of these inferences that has led most nations which have concluded commercial treaties to stipulate that their flag shall cover the mer- chandize of the enemy except contraband. Treaties j^ j s no ^- pretended to decide whether these treaties generally r . regarded form an exception to the Law of Nations, or a confirmation firming ^ ^' though they are commonly regarded as the latter. the In any case the treaties of France with England and Nations Holland are express on this question. The English lawyers have drawn a third inference from the principle cited, namely, that contraband merchandize carried to the enemy, though belonging to a friend, is good prize, because to furnish the enemy with the means of carrying on the war is to violate neutrality. FRENCH PRO-MEMORlA 163 In default of precise enough notions, treaties made between different European nations ought to be regarded as the least equivocal and most impartial enunciations of what is held in regard to contraband. By treaty this term ought in general to be restricted to Contra- soldiers, horses, arms and munitions of war, and provisions ^. d of carried to a place that is besieged or blockaded. If prize has been made of cargoes of timber, hemp, and wheat not going to such places, it would prove that the English courts have not always had treaties under view. Secondly. Of the proofs required for the condemna- tion of prizes, and of captures, made before the war, and damages and interest for ships unjustly taken. [The arguments that follow are addressed mainly to the case of French ships taken before the declaration of war in 1744, of which France was claiming restitution. They are, however, directed to certain statements of law and practice in the Report of the Law Officers.] Thirdly. The principle enunciated by the English French lawyers as to the effect of treaties renders it certain that all goods belonging to Frenchmen and taken in Dutch shi P s ships ought to be free. To support this view the 8th be 8 free article of the Anglo-Dutch treaty of 1674 is quoted and the observation is made that to pretend that French subjects would not be entitled to claim their restoration would be to go contrary to the good faith with which treaties ought to be carried out. SECOND PART What Authority may judge prizes taken at sea. That The opinion of England is that they ought to be judged ^ases are in the last resort by the Power whose subjects were the only pro- visionally Captors. decided This principle utterly destroys the Law of Nations. r r J J courts. It is held that by the Law of Nations prizes can only be judged provisionally by the courts of the Power whose subjects were the captors, and definitively not alone by M 2 164 FRENCH PRO-MEMORlA If either party is dissatis- fied with the judge- ment, justice requires a resort to arbi- tration. The treaties referred to in the Report of the Law Officers do not bear out their con- tention. the Power whose subjects were the captors, nor by that of whose subjects the property has been taken. If one of the two Powers appeals against the judgements pro- nounced by the courts of the other, or if it demands that commissioners be appointed on both sides to decide, a reference to the decision of commissioners cannot be refused without denial of justice. And in case the com- missioners do not agree, then prudence, impartiality, and justice ought to induce the parties to choose a third Power as arbitrator. The interpretation placed by the English Law Officers on the opinion delivered by Heineccius, 1 and on a number of treaties cited by them, is incorrect. All that he says goes no farther than the statement that the property in a prize does not pass to the captors until judgement has been given by an Admiralty Court, and by no means supports the inference that the Power whose subjects have been deprived of the ships has no right to inquire whether the deprivation is just, and to demand reparation. Heineccius himself, in section 22 of the work cited, expressly states that if the judgement of the Admiralty Court is unjust, the Power whose subjects have been wronged may claim restitution by diplomatic means. An independent Sovereign cannot be bound by the decisions of a foreign Court, and it is pointed out that this principle is recognized in the Report of the Law Officers. 2 Secondly, as to treaties. Some of those which stipulate for prizes being tried by an Admiralty Court with appeal to a Superior Court are cited in the Report, but none of them engages to renounce the rights of presenting claims against the judgement, of appointing commissioners, or of making reprisals. The treaty between England and Holland of 1674, article 12, explained by article 2 of the treaty of Westminster of February 6, 1715/6, does not stipulate that the Dutch in the last resort are to apply to 1 p. 16 of 4 edition, foot-note. 2 p. 24 of 4 edition, par. 2, ' Every foreign Prince in Amity, &c.' FRENCH PRO-MEMORlA 165 the Court of Appeal, as is incorrectly stated in the Report. 1 The greater number of the treaties referred to in the foot-note 2 expressly establish the principle that these cases constitute not merely litigation between private individuals, but between nation and nation, in which the public authorities (ministres publics] intervene. [Sum- maries of provisions in this respect are given.] Thirdly. [A powerful criticism of what is laid down in the Report Prize (on page 16 of 4 edit.) follows in four paragraphs, ^ter-^ 6 beginning, ' If a subject of the King of Prussia.' The national argument is that prizes taken at sea involve questions of an international character, and are not in the same cate- gory as suits between private individuals, and that the means of redress against injustice are provided by inter- national law and practice, by the appointment of com- missioners by both disputants, by the resort to arbitration in the first place, and finally to reprisals. The position of the Law Officers that ' the Prussian claimants must know that by the Law of Nations they ought not to com- plain to their own Sovereign till Injustice in re minime dubid was finally done them, past redress ' 3 is disputed with respect to a wrong of an international character Finally, the conclusions of this pro-memorid are applied to the dispute between England and France respecting prizes made as far back as 1739.] The object of the French memorandum is to establish Objects i, the principle of Free Ships, Free Goods, as applicable French to French goods captured in Dutch ships during the war, memor- - . , . andum no matter whether m virtue of the general law of nations, summar- or of the Anglo-Dutch treaty of 1674, or of the com- lzed> mercial treaty of Utrecht. 2. That the judgement in prize cases delivered by an Admiralty Court of the captor's country is not final, that there is no obligation on the 1 4 edition, p. 28. 2 Ibid., p. 14- 3 p. 23 of 4 edition. 166 FRENCH PRO-MEMORlA owner of the ship or goods to go through the formality of appealing to a superior court before claiming the inter- vention of his own sovereign in order to obtain justice. 3. That prize cases are not really suits between private persons, but are contentions of justice and right between the Sovereigns, one under whose flag and pro- tection the captured vessel was navigating, the other under whose commission the captor was acting. 4. That consequently it is right and proper, in the interests of peace, to appoint commissioners on both sides to arrive at a final decision in each case, and in the event of disagreement to refer it to a third Power as arbitrator. Referred This pro-memorid was sent on to the Law Officers of ^ a ^ e the Crown on June 13, with instructions to prepare an Officers, answer forthwith, in case the King should order one to be given. 1 The delay was owing to the parliamentary recess, some of the members of the Council who were usually consulted on foreign affairs being out of town. The day after its delivery to Newcastle and Holdernesse, Mirepoix called on them and stated that the King of Prussia had accepted the mediation offered by the French Court, and that the question now was what course of reconciliation (voye dc reconciliation) would be proposed by the British Court. 2 Although the word ' mediation ' is here intro- duced, Frederick was writing on that very day to Michell that, provided England were reasonably disposed, all might be arranged by the ' good offices ' of France. 3 Obsti- Albemarle, to whom a copy of the pro-memorid had both f ^en given by St. Contest, concluded from the adoption parties, in it of Prussian maxims and doctrines that French inter- position with Frederick was not likely to prove efficacious. 4 The truth is that at this moment neither party was dis- posed to give way. Frederick was determined not to depart from the course he had chosen. 5 On the other 1 5. P. For., France, vol. 247. - App. 76. 3 Pol. Cor. ix. 408. 4 App. 77. 5 Pol. Cor. ix. 416. NEGOTIATIONS WITH FRANCE 167 hand, the English ministry instructed Albemarle l that the only proposal they had to make was that Frederick should immediately pay off what remained due, and that if he did this, then the King would see that justice was done to the complainants in accordance with the means prescribed, known and used in such cases. They even hinted to Mirepoix that if the King of Prussia did not agree to this demand, measures might be taken to exact redress for the wrong done to the bondholders. St. Contest admitted to Albemarle 2 that the debt ought to have been discharged in 1745 [i.e. January 1745/6], but excused Frederick's omission by saying that England was then at war ; as if he had a dim idea that for a neutral Sovereign to pay money owed to the subjects of a belli- gerent was a sort of violation of neutrality. Frederick remained unwilling to take the first step ; 3 he did not insist on obtaining public satisfaction, and all he cared about was that in some way or other his injured subjects should be compensated. He even went so far as to say that provided there was a serious wish to satisfy them, he would first take off the sequestration. St. Contest pro- fessed to hope that the French King's interposition at Berlin would have the desired effect. 4 The English ministers doubted the good faith of the French, who appeared to have wilfully misunderstood the nature of the application made to them ; they had tried to assume the part of mediators and to put themselves forward as judges of the merits of the dispute. 5 In fact, the French minister at Berlin was instructed to propose the appoint- ment of an Anglo- Prussian Commission, on condition that the bondholders should be paid as soon as its members had been appointed and met, but Frederick replied that he would prefer to leave the whole business to French 1 App. 78 and 79. 2 App. 80. 3 Pol. Cor. ix. 425. " App. 81. 3 See dispatch to Keene of May 26, R. O. 5. P. For., Spain, 143 ; App. 82. i68 FREDERICK'S PROPOSALS Alterna- tive sug- gestions for a settle- ment Frede- rick. mediation and arbitration. 1 George's ministers continued to hold firmly to their contention that nothing could be done until the debt was discharged. They sent uncom- promising instructions to Albemarle, while apparently using milder language to Mirepoix. 2 Still, they had never asked for anything but bons offices from France, and they believed that the French Government from the first had wilfully interpreted this to mean mediation ; 3 and it became clearer that what they understood by the ' means prescribed, known and used in such cases ' was carrying the prize suits to the highest court [and abiding by its decision]. 4 In June the French Government began to feel hopeless of arranging the dispute, and a considerable gap occurred in their correspondence with Mirepoix. 5 On July i Frederick gave instructions to propose to the French Government three alternative ways of settling the affair : 6 ist, If France would guarantee to him the payment by England of the ascertained losses of his subjects [as given in the list delivered by Michell to New- castle], he would at once release the money ; 2nd, that France and another Power, either Holland, Denmark, or Spain, should arbitrate and England undertake to abide by the decision of the arbitrators ; or 3rd, that England should privately satisfy his merchants, whereupon he would publicly pay the balance due. He did not believe that George II would frivolously go to war at his advanced age on account of a comparatively trivial sum, not a tenth of what a month's war would cost. Early in the same month Newcastle, in Holdernesse's absence, sent to Albemarle a ' very secret ' dispatch, 7 recording conver- sations with Mirepoix, in which he had told him that England would insist on the Prussian complainants carry- ing their cases to the Court of Appeal, and would not con- sent to the appointment of commissioners, nor would she 1 Pol. Cor. ix. 440 ; May 29. 3 App. 86. " App. 87, 88. 6 Pol. Cor. x. i. App. 83, 84, 85. Pol. Cor. x. 8 ; App. App. 90. TO THE FRENCH GOVERNMENT 169 give any assurance as to a negotiation with Prussia until Frederick had removed the sequestration ; and Albemarle was instructed to communicate all this to St. Contest. In another letter of the same date 1 he informed Albemarle that if the French answer proved unsatisfactory, orders would probably be sent to declare that the King would no longer delay making, or authorizing his injured sub- jects to make, reprisals. Michell was told by Mirepoix 2 that the English ministry was ready to afford all reason- able satisfaction to Frederick's subjects, but that it was not possible to take the affair out of the hands of the lawyers. This induced Frederick to propose at Paris a fourth alternative, namely, that if England would give an undertaking, of which France would guarantee the performance, that a certain sum would be privately paid to the claimants, in proportion to the liquidated total, he would at once take off the sequestration. He would be willing to consent to the deduction of 30,000 or even 40,000 thalers, if St. Contest thought it fair [the liquidated total being 189,700 thalers and a few pence]. Further correspondence between London and Paris 3 British shows that the English Ministry were resolved not to m enTstiii make any concession, and that Mirepoix was warned that, refuses to in case of an unsatisfactory reply, the negotiation with conces- France would be carried no farther. St. Contest, as we Slon - learn from Albemarle's report of July iS, 4 still advocated the appointment of commissioners, and he quoted pre- cedents, one of them from Cromwell's treaty of 1655 with Louis XIV. 5 Albemarle reported that he had rejected the proposal as altogether inadmissible ; commissioners could only be appointed where that was expressly provided by treaty ; otherwise the ordinary course of going to the Courts must be followed. 6 St. Contest had by this time 1 App. 91. 2 Pol. Cor. x. 18. 3 App. 92, 93. * App. 94. 5 Jenkinson's Treaties, i. 81. He might have added that the treaty of 1655 was a treaty of peace. 170 evidently received the dispatches containing Frederick's proposals, 1 as he returned to the idea of a joint-commission, with either France, Denmark, or Sweden as arbitrator. He told Albemarle that Newcastle was reported to have said to Mirepoix that ' although the proposals made by the English Court were too humiliating for the Prussian Court to accept, and were even impracticable, they could not be departed from '. 2 This assertion produced an indignant denial from Newcastle 3 of ever having used such improper language. Evidently the phrase une demarche trop humiliante was added by Mirepoix. Belief in In England the likelihood of the affair ending in a a a pfus- Prussian attack on Hanover was considered so serious, sian at- that the negotiation that had been dragging on since the Hanover beginning of the year was resumed with Russia for sub- leads to sidizing a large body of troops to act against Frederick tion of if matters should go so far. 4 The distrust of the King of Prussia was n t unnatural, if the marching of troops into Russia. Silesia in 1741 while negotiations were going on at Vienna is recalled. Corre- A letter of July 27 from Newcastle to Pelham 5 gives dence a ver Y full account of the conversation with Mirepoix the between day before, in which the latter proposed that commis- .NCW- castle sioners should be appointed, leaving the final determina- ^" d tion to a neutral Power. This was contained in a dispatch Henry f Pelham. from St. Contest which Mirepoix had read to him, often skipping a passage. After some discussion of a rather lively character Mirepoix had suggested that on Frederick removing the embargo, 15,000, say one-half of the amount demanded by him, should be paid without its being known, a proposal which the writer had rejected. The proposal for the appointment of commissioners had been previously reported by Albemarle, and had been 1 App. 95. 2 App. 96. 3 App. 97. 4 See de Martens, Traites et Conventions, ix (x), p. 177, for the history of this negotiation, and also p. 140 supra. 5 Coxe's Life of Henry Pelham, ii. 486. NEGOTIATIONS WITH FRANCE 171 considered on the night of the 26th by himself, Hardwicke, Granville, Holdernesse, and Anson, and definitively rejected. Pelham replying on the 28th agreed that ' no pecuniary bargain should be made antecedent to the King of Prussia revoking his arret : that once done, sure ways might be found to satisfy the individuals of his country, who may possibly have been a little hardly dealt with by our law ; and if such a sum as Mirepoix mentions can do it, that might be found '. The British Government were all the more disposed British to remain firm, because they had learnt that Frederick was alarmed at the motions of Russian troops towards the notify frontier of Livonia, 1 and they sent explicit instructions court of to Albemarle in the shape of a memorandum to be read to ultima- the French minister, 2 promising that when Frederick had turn '. satisfied the holders of the loan, Prussian subjects would be allowed to appeal in those cases where it was still possible, refusing to appoint commissioners, thanking Louis XV for his good offices, which King George was sorry to find had failed of the desired effect, and leaving it to the French king to consider whether it was desirable to continue the negotiation, unless within four weeks from date the King of Prussia thought fit to offer more satisfactory explanations, or the King of France could discover some expedient, not open to the objections which rendered St. Contest's last proposition to Albemarle inadmissible. Albemarle reported on August 15 3 that he had seen French St. Contest on the previous day, who had heard from re p n ijes er Mirepoix of the resolution to insist on the arret being that he removed as a sine qua non of further discussion. There- likelihood upon Albemarle read to him the French instructions he of agree- menu. had received. St. Contest observed that if England would not make any concession, he saw little likelihood of an accommodation. The French Government had no other suggestion to make. It could not be expected that 1 App. 98. 2 App. 99. 3 App. 100. 172 NEGOTIATIONS WITH FRANCE Frederick would submit his claims to the Appeal Court, nor did the Law of Nations, in his [St. Contest's] own opinion, oblige Frederick to abide by any such decision in affairs that were of national concern and therefore proper to be treated between Crown and Crown. St. Contest, as is evident, ignored the English argument, namely, that Prussian subjects who were dissatisfied with the decisions of the Admiralty Court must go to the Court of Appeal. This rule has been recently recognized as valid by the Hague Convention of 1907 for the establish- ment of an International Prize Court. The British Government could not admit a departure from the ordinary course, though they would have acknowledged that when an aggrieved person had exhausted all recourse to judicial methods and was still dissatisfied, his Govern- ment might take up his cause diplomatically. Albemarle insisted that Frederick having inflicted an injury, must make advances by way of reparation, and though this might be thought humiliating, yet a retracta- tion was no more than equity required and was all that had been demanded. St. Contest replied that he saw no way out of the present embarrassing situation, his Court having done all they could, and he had uttered his last word. Some discussion ensued as to the date from which the time-limit of four weeks would begin to count, and Albemarle took it on himself to agree that it should begin to run from the date of this conversation. Frederick Frederick was much encouraged by hearing from London accept f the conciliatory disposition of Henry Pelham, 1 as 80,000 indicated in his letter of July 28 above quoted. 2 He still thalers. hoped that the French Government would prevail with the English Ministry to compose the difference on the basis of St. Contest's proposal for the exchange of simul- taneous declarations. To his minister in Paris he wrote 1 Pol. Cor. x. 51 (August 16). 2 See Michell to Frederick, August 10. An intercepted letter de- ciphered in London. App. 101. BROKEN OFF 173 that he would go so far as to accept 80,000 thalers in satisfaction of his demand. That was less than half of what he had originally claimed. The French now came forward with another proposal, 1 New that Louis XV should pay to Albemarle the sum due by Frencl1 Frederick, and that Albemarle should hand to St. Contest rejected bills of exchange for the amount to which England and England France should agree to reduce the Prussian claim, 2 but this was regarded as no more acceptable than those which had preceded. Albemarle was instructed to inform St. Contest that the British Government agreed to the four weeks beginning to count from August 14, but he was to add that when this period should expire they would look on the negotiation as at an end. King George still adhered to what he had always insisted on, that the removal of the arret by Frederick must precede all other steps ; when that was done, any claim the King of Prussia might have should be heard in the common course of the courts, it being always understood that if the Court of Appeal did not do justice (which, however, was not to be supposed), then, and in that case only, such complaints might necessarily be treated between Court and Court. On this being communicated to St. Contest, he said it French could not be accepted, and that he could not but look on the negotiation as broken off. 3 Having done all they thenego- , . T i -rr- tiations could to bring about a good understanding between King at an end. George and Frederick, the French Court would not under- take to inform the latter that the negotiation was abso- lutely at an end, but would leave it to Newcastle to make the announcement to Michell. St. Contest quoted a French case in which the claimant, though successful, had been refused costs and damages, as a proof of the little satisfaction that could be expected from the English courts, and he argued that in prize cases the subjects of one nation were not bound by the decisions of the judica- ture of the other, but that commissioners ought to be 1 App. 102. 2 Enclosure in App. 102. 3 App. 103. 174 RUPTURE OF NEGOTIATIONS appointed, who in case of disagreement, should choose an arbitrator from a neutral nation in short, the view stated in the French memorandum of April 20. It is somewhat strange that Frederick should still have been under the impression that the dispute was on the point of being settled, and that the only outstanding question was the exact amount of compensation he was to receive. 1 He thought that the English Government would rather pay something than gratuitously impose on the nation the huge sums demanded by Russia as a subsidy for the loan of military assistance. The suggestion that Michell should be made acquainted with the failure of the negotiation did not approve itself to the British Ministers, 2 since that would be inconsistent with the character of the application to the French Court. The object of that step had been simply to let the King of France know that one of his allies had grossly insulted the Crown of Great Britain, and that this offensive proceeding might be productive of disagreeable consequences, unless by his interposition the King of Prussia were brought to desist from his unjust resolve. Holdernesse was of opinion that St. Contest had never thoroughly understood the question, or that he did not know that English prize- court principles and procedure were the same as those which the French Courts observed. Albemarle regarded St. Contest as blind to everything that did not seem to redound to the honour or interest of Prussia. 3 Dispute When St. Contest, a couple of months later, returned to first ^ L the subject, 4 he replied that since ' this Court ' had thought dropped p ro per to drop the negotiation, he had received no further tiations. instructions. This wording was no doubt due to a mistake of the secretary who drafted Albemarle's dispatch report- ing the interview, who must have taken it from a dispatch of Holdernesse to Albemarle, but it read as if Albemarle had admitted to St. Contest that the French Court had 1 Pol. Cor. x. 65 (September 3 : To Earl Marischal and Michell). App. 104. 3 App. 105. 4 App. 106. FREDERICK TRIES DIRECT NEGOTIATION 175 broken off the negotiation. Accordingly it was disap- proved by Holdernesse, 1 who maintained that it was King George who, not having received acceptable proposals from the French Court, had thought proper to desist from further negotiation, and as this distinction was of material importance, he instructed Albemarle to make it clear. 2 The explanation given by the latter in reply was that the expression ' this Court ' had slipped into his dispatch through inadvertence. In the ninth and tenth volumes of the Politische Corre- Volumi- spondenz there is a vast quantity of private letters and official instructions concerning this question from Frede- denceof Frederick rick to his diplomatic agents in Paris and London, with w ith his some extracts from their reports. He seems to have dl pi?~ f matic been under the impression that it was only the desire to agents please King George that induced Hardwicke and Granville d^and to uphold the legality of the Prize Court's judgements ; 3 Paris. Mirepoix had reported to Paris that Newcastle and Pelham were favourably disposed towards a settlement on the basis proposed by him. 4 Eichel, writing at Frederick's dictation on September 16, says : ' Es sei bekannt dass das englische Ministerium von selbst bei der Kron Frankreich um die Arbitrage oder auch bons Offices in gedachter Sache angetragen hatte ' ; and that they had offered to settle the dispute by the payment of a moderate sum, which offer was accepted by France and transmitted to Frederick, who in turn had accepted. For them now to turn round and change their language was contrary to everything usual among respectable Powers. He there- fore still held to the mediation and bons offices that Eng- land herself had demanded. But in a letter of Novem- ber 13 to Michell 5 he expressly says that the English ministers had asked for the bons offices of France. If George II was obstinate, Frederick was equally tenacious. 1 App. 107. 2 App. 108. 3 Pol. Cor. x. 73 (September n, 1753). ' Ibid. 103, September 12, 1753. '" Ibid. 152. 176 PRUSSIAN REJOINDER PREPARED He would not take off the embargo on the 45,000 still due, until he was assured of receiving at least 20,000 or, as an ' ultimatum ', to use his expression, only 80,000 thalers for his injured shipowners and merchants. He had no interest in the proposal to appoint a joint-com- mission, 1 which was in fact an addition made by the French Government to his suggestions for a settlement, although he had no objection to arbitration by a friendly Power, or ' a good ally ' like France. 2 Prepara- Meanwhile he had given instructions to Cocceji and rejoinder others to prepare a crushing refutation of the English to the reply. 3 The German draft was completed by the end of the Law May, and given to a French preacher named Pelloutier to Officers. p u ^. m O French, who completed his version by the middle of July. 4 It was printed, but not published. A copy was sent to Paris, together with the draft of the firo- mcmorid by which it was to be accompanied, in October. 5 The French Government, however, advised Frederick to leave it to Michell and Mirepoix to choose in concert the most suitable and advantageous moment for the presen- tation of these two papers. They also counselled him not to renew on his own account the negotiation which they had failed to conduct to a successful conclusion. 6 This 1 Cf . Pol. Cor. ix. 440, but see x. 35, where he says he is quite willing to leave the affair to the arbitration of France and another Power, and that if England will appoint Commissioners he will do the same, leaving to the two arbitrators the points on which the Commissioners cannot agree. 1 See also x. i, for his various expedients for a settlement, and x. 8 for a fourth. 3 Pol. Cor. ix. 348, 373, 380 ; 393, to Earl Marischal, he will com- municate to France his rejoinder ; 425, May 10, he attributes Mirepoix's want of instructions to the French waiting for this document ; x. 38, shows that it was still not ready. 4 Preuss. Staatsschriften, ii. 470. 5 The French Government highly approved of it, but suggested the omission of the adjective Strange, or its softening down, because in French this expression sounded somewhat harsh and even insulting (Pol. Cor. x. 157 and 186). 6 He had entertained a notion that he might profit by the delivery of the ' replique ' to renew the negotiation, which had for some time been suspended. FREDERICK'S DIRECT NEGOTIATIONS 177 advice he promised to accept, replying that he would let the affair drag on and take its spontaneous course, resolv- ing also to postpone the delivery until after the rising of Parliament. 1 At the same time he was desirous of finding a way out of his difficulties with England, and he instructed Michell to sound Newcastle through the channel of a friend, as to his willingness to agree on an amount to be paid in place of indemnity and to arrange the rest of the details so as to save appearances. Michell reported that he had tried the experiment. 2 His friend had found Newcastle well disposed to listen, but unwilling to give an answer before consulting his colleagues. The result, however, was that nothing could be managed in that way ; the King and his ministers could go no farther than their previous declarations. His friend represented to him that the existing coldness between King George and Frederick was at the bottom of it all, and the ministers would prefer to lose the remainder of the Silesian debt, rather than to come to an arrangement that would expose them to similar demands from other Powers and bring upon them the national resentment. A further report of Michell 's gives the result of a later conversation with his ' friend '. 3 The Ministry had held many conferences, but could not treat the affair de com a cour without risking their places : the only expedient they had been able to advise was that Frederick should annul the sequestration ; he might then be sure that justice would be done by the Court of Appeal without delay. The Court could not decide the cases with sufficient knowledge unless the com- plainants appeared as appellants and stated their reasons for appealing. Frederick, as was to be expected, declined to fall in with this view of the matter. The correspondence between Michell and Frederick continued, but finally he made up his mind to let the 1 Pol. Cor. x. 201 (December 29). 2 Ibid. 262 (February 15, 1754). 3 Ibid. 391 (July 26, 1754). The friend appears to have been Sir Luke Schaub. See British Museum Add. MS. 32849, f. 327. 1783 N 178 PRUSSIAN REJOINDER NOT PRESENTED question sleep, since he had found that the English Ministry were not disposed to recede from their first position. 1 Rejoinder There is no mention in the Politische Correspondenz of neverpre- ^ ne ' replique ' after January 5, I754, 2 and it seems quite sented. certain that it was never presented. Ch. de Martens has printed a portion, consisting of 6-21, and 25-29, and adds : ' M. Michell, qui fut charge de remettre cette replique au ministere britannique, eut ordre de declarer en meme temps " que S. M. Prussienne, apres 1'examen le plus exact de la reponse f aite par la commission anglaise, n'y avait point trouve de raisons suffisantes qui dussent la determiner a changer de resolution, mais qu'elle n'en etait pas moms disposee a terminer cette affaire a 1'amiable et conformement a ses declarations precedentes ".' 3 As has been seen above, Frederick followed the advice given by St. Contest not to renew the negotiation, at least officially, and it can only be concluded that de Martens misunderstood what he found in Behmer. Had the Politische Correspondenz been available when the Causes Celebres was published, 4 he would have avoided this error. The document never having been presented, it seems unnecessary to reprint here such portions as are available. 1 Pol. Cor. x. 391 (August 6, and 510, December 31). 2 Ibid. 206, in a dispatch to Earl Marischal. 3 De Martens probably copied what he gave from the text contained in Behmeri, Novum ius Contr over sum, Lemgov. 1771, a book so rare that the writer has been unable to find a copy in any of the public libraries in England. * In 1827. CHAPTER XV RECONCILIATION OF GEORGE II AND FREDERICK THE GREAT. NEGOTIATIONS THROUGH THE DUKE OF BRUNSWICK, AND THEN THROUGH MICHELL OF all contemporary Sovereigns Frederick the Great Prussian was probably the best informed on international politics. ma\ic Though he had secretaries like Podewils and Finckenstein service, in the foreign department, he remained his own minister for foreign affairs. His diplomatic agents were carefully selected by himself, and he maintained a voluminous correspondence with them, apart from the official instruc- tions and reports that passed through the official channel. It was his practice to keep his agents posted up on all matters concerning his foreign policy, and he permitted them to write to him with perfect frankness, even tolerat- ing from them counsels and statements which did not square with his own plans and intentions. It is not every Government that receives with patience from its diplo- matic servants the expression of unpalatable opinions. Among his agents the most efficient appear to have been Knyphausen, who succeeded the Scotch Jacobite Earl Marischal at Paris in 1755, and Michell, the secretary of embassy who was left in charge of the legation in London when Klinggraff was withdrawn in 1750. Besides his usual sources of information, he had secret agents, at Dresden and in Berlin itself, who were bribed to furnish copies of confidential documents, often of the highest value. Michell, though not a Prussian sub- ject, was faithful, discreet, and intelligent. He had rendered himself persona grata to the English Ministry, and had formed private friendships which proved of great utility. With Mirepoix, the French ambassador, he was on intimate terms, and was thus enabled to supply his master with accurate accounts of the progress N2 i8o POLICY OF GEORGE II of negotiations with England regarding the disputes in North America and the East Indies, and to furnish Frederick with the means of deciding on the course to pursue. Policy of The ruling motive of George II was the defence of his *>rge . Q erman dominions against attack, whether from Prussia or France, while Frederick's policy was solely concerned with the security of his hold on Silesia, which he had every reason to suppose Maria-Theresa was bent on re- conquering. George II placed his chief reliance on the success of negotiations with Russia for the loan of troops to be utilized as a check upon any designs Frederick might cherish against Hanover. The Hanoverians were fine soldiers, from Hesse-Cassel it was possible to hire a con- siderable body of auxiliaries, and Brunswick might, under certain circumstances, be counted on for assistance. Help from Saxony and Bavaria in return for insignificant subsidies during peace was also hoped for. Above all, if Frederick could only be detached from his alliance with France, and induced to give assurances that under no circumstances would he attack Hanover when the atten- tion of Great Britain was elsewhere engaged then George II could feel tranquil. He would allow his English ministers to pursue their projects of expansion in North America, in return for their agreeing to grant subsidies to his German allies. On Maria-Theresa's active support he could not rely. During the last war, it was felt, she had failed to do her part in the defence of the Low Countries, and on her side she held that her interests had been sacrificed to those of her arch-enemy Frederick in the preliminaries of Aix-la-Chapelle. The sinister effect of the dispute about the Barrier Treaty on her policy has already been mentioned. The general result of the wars waged with Prussia and France from 1740 to 1748 was to leave on her mind a deep impression that England was not to be depended on as an ally and that she would always leave her friends in the lurch where her own FREDERICK'S VIEWS 181 interests were involved. 1 To this must be added the growing influence of Kaunitz, who as far back as 1749 had advocated a better understanding with France, where he was sent as ambassador in the following year, 2 returning to Vienna in 1753 to take the direction of foreign affairs. Newcastle's favourite policy had always been a close alliance with Austria and Holland, with the addition of Russia, as the only means of restraining French ambition. This was the old ' system ' initiated by William III in 1701, which Newcastle now found himself compelled to abandon, at 'least as far as Austria was concerned. Frederick greatly doubted the usefulness of France as Views of an ally. He felt that she had deserted him on more than Frederick * one occasion, and since 1748 he held that she had shown great weakness towards England. His efforts to induce the French Court to adopt more vigorous measures, as soon as a renewal of the conflict with England began to appear imminent, may be read in his correspondence with Paris almost up to the moment of his entering into the Treaty of Westminster. They failed completely. If he could not put his trust in French assistance against Austria, would it not be wiser to come to an understanding with Great Britain, wealthy enough to provide subsidies, and knowing her own mind ? Not that he desired pecu- niary help for himself, but it had become clear that Austria would no longer be able to obtain funds from that source. If England made suitable offers to him he would be disposed to entertain them. In October 1754 the hereditary Prince of Hesse-Cassel Hesse- turned Roman Catholic, but was compelled by his father to give a written undertaking for the maintenance of the Protestant faith in the dominions he might one day inherit, and the Protestant Powers were asked to guarantee its execution. Frederick at once complied, and suggested that George II, the landgrave's father-in-law, should be 1 Arneth, iii. 389. 2 Waddington, Louis XV et le Renversement des Alliances, p. 285. 182 APPROACHES MADE BY ENGLAND asked to join. This gave occasion for George II in January 1755 to express to Frederick his thanks for his prompt action, through the channel of Newcastle and Michell. 1 It pleased Frederick, although in writing back to Michell he says he knows too well that the moment has not yet come for speaking of a return to intimate friendship. Ap- The next step was taken through the Duke of Brunswick, made^Q 8 wno na( i married one of Frederick's sisters. George II Frederick had left England for Hanover on April 28, with the object the Duke of providing for the safety of his Electoral dominions of Brims- d ur i n g the coming war with France. There was a project of marrying the Prince of Wales (afterwards George III) to one of the Duke's daughters, and in order to present them to the King, the Duchess paid a visit to Herren- hausen at the beginning of July. In the course of con- versation the Duchess told Munchhausen, the President of the Hanoverian Council of Ministers, that Frederick had declared to her that he would never allow himself to be drawn into attacking the King's German possessions. Holdernesse urged on the King the necessity of culti- vating any good dispositions by which the King of Prussia might be animated, and reported the matter to New- castle, who wrote to Munchhausen suggesting that he should pursue the pourparlers with Frederick. 2 Accord- ingly Munchhausen early in August approached the Duke 3 with a written request that either the Duke himself or the Duchess should induce Frederick to declare that in case France attacked, or showed a disposition to attack, King George's dominions in Germany in connexion with the dispute about North America, he would not hinder King George, either directly or indirectly, from taking all possible measures for their defence. This paper having been forwarded by Prince Ferdinand, the Duke's brother, 1 Pol. Cor. xi. 37. 2 Waddington, p. 203, based on the Newcastle papers at the British Museum. 3 Pol. Cor. xi. 246. HOLDERNESSE'S PROPOSALS 183 to Frederick, the latter noted on it for the Prince's infor- mation, that he might write to the Duke that no one could object to a sovereign taking thought for the security of his dominions. 1 It was well known that the King of England had subsidy treaties with Hesse-Cassel and Gotha, which no one had opposed. Frederick's anno- tation concluded with a suggestion that the Duke should hint at the desirability of Hanover ceasing to annoy him about Ost-Friesland, and that England should settle the dispute about the Prussian prizes. On the loth Holder- nesse went to the Duke with a repetition of the sugges- tion made by Munchhausen, 2 to which he added a request for a formal promise on the part of Frederick that he would not lend any assistance to France in the designs she might be harbouring against King George's German dominions ; that he would not oppose any defensive measures George might find himself compelled to take in case of a French invasion of Hanover, and even that he would anticipate and prevent France from undertaking anything of the sort. Holdernesse also hinted that foreign [i. e. Russian] troops might be called in to assist in defending Hanover. To give greater weight to the request, what Holdernesse had said was taken down in writing by one of the Duke's ministers, and read over to him, and in the Duke's presence he declared the record to be correct. To this Frederick replied on August 12 by two letters, Frede- 1 * . one that might be shown, the other confidential for the Duke's guidance. In the former he remarked of the dis- puted territory in North America : ' Le jeu ne vaut pas la chandelle. Les possessions que ces deux nations se dis- putent [dans les terres] incultes de Canada sont un si petit objet que les grands armements qu'on fait surpassent de beaucoup la valeur des pays litigieux ' [a remarkable failure of prophetic vision !]. The document concluded by suggesting a recourse to mediation : ' II est sur que, 1 Ibid. 247. * Ibid. 251. 1 * .c t, ] 184 FREDERICK'S REPLY si Ton n'y porte un prompt remede il y a toute apparence que la guerre passera en Europe, et qu'elle ne gagne, comme un mal contagieux, de voisin a voisin. ' Vous m'expliquez les apprehensions que vous avez pour 1'Allemagne ; quoiqu'elles me paraissent prema- turees, je serais fort embarrasse de repondre de 1'evene- ment. Je suis cependant de I'opinion qu'il est encore temps de prevenir toutes les suites facheuses que vous semblez prevoir, et cela pourroit se faire en menageant la dignite des deux couronnes par la mediation de leurs amis communs. La part que vous prenez aux interets du roi d'Angleterre, m'oblige de vous ouvrir une idee qui m'est venue des le commencement de la brouillerie des deux nations, et dont il est libre a vous de faire 1'usage que vous trouverez convenable. II me parait que, sans commettre 1'honneur des deux couronnes, des mediateurs pourraient leur proposer des voies de conciliation et couper par la le mal dans sa racine. ' Je m'offrirais volontiers pour un des mediateurs, le roi d'Angleterre pourrait sonder son alliee, 1'Imperatrice- Reine, ou la republique de Hollande, ou 1'Espagne ou le Danemark, et convenir sous main avec une de ces puissances.' In the other letter he explains that the ' ostensible ' letter assumes that he has not had the whole of Holder- nesse's conversation communicated to him. 1 The Duke might play the part of a go-between (entremetteur) , hold out some hopes to the Hanoverians, and even, as a mark of friendly inclination, read to them the other letter, but without giving them a copy. He was quite willing to undertake mediation, if it were desired, but never should they extort from him the desired declaration. It was better for the interests of both the Duke and himself not to leave them without hope, and in case they were not satisfied with mediation, the Duke should advise them not to be discouraged, but to come back to the charge. 1 Pol. Cor. xi. 254. HOLDERNESSE'S ANSWER 185 He adds that he begins to suspect that George is not satisfied with the Court of Vienna, otherwise he would never have applied to himself. By return of post the Duke sent back this paper, to Holder- HCSSG to make sure that it should be seen by no one else. 1 Holder- the Duke, nesse having left Brunswick, he proposes to write to him in the sense of the ' ostensible ' letter, and to add that if he were still on the spot he would have shown him the letter itself. Frederick in reply says that he would not object to a copy being forwarded to Hanover. 2 On the 2Oth the Duke reported that he had sent Holdernesse a copy, and two days later he forwarded an extract from Holdernesse's answer. In it Holdernesse said the King has observed that the judgement expressed on American affairs arises from insufficient information. His first care on returning to England will be to prepare a full state- ment of the question and of the negotiations between the two Courts, and he hopes to be able to prove that the matters in dispute are of the greatest importance for the welfare of the English colonies. Overt hostilities had been commenced by France in 1754, which during the whole course of negotiation had not shown any signs of a spirit of conciliation, but the points in dispute were of such a critical character that the King could not omit taking vigorous defensive measures, without compromis- ing the rights of the Crown and failing in the protection due from him to the most essential branches of the trade of his subjects. The King had never wavered in sin- cerely desiring a just and equitable arrangement, but all his efforts to arrive at it had hitherto been fruitless. It would be made clear where the fault lay. In the mean- time the King would be glad to know what he might expect from Frederick's friendliness, in case, contrary to all justice, France were to undertake anything against his German dominions, in consequence of an exclusively English quarrel. 1 Ibid. 263. 2 Ibid. 264. i86 FREDERICK'S SECOND REPLY Frede- Xo this Frederick replied in a letter to the Duke, 1 that Tick s second the sentiments expressed in his answer to the Hanoverian reply. proposals had evidently made some impression, at least the terms employed by Holdernesse were more moderate than he had at first expected. It would be best to wait till King George was back in London, and the promised details were furnished. For himself it was important to gain time, so the Duke should make excuses for the delay of his final answer, such as his occupation with military manoeuvres and the journey he would shortly be obliged to undertake into Silesia. Frede- Frederick was evidently undecided which side to take, nek s in- decision, and on the last day of August he sent instructions to von Ms^ * e der Hellen, his charge d'affaires at the Hague, to deny to keep absolutely, if any one questioned him, the report current France m Holland that he had come to a secret understanding with George II to remain neutral. The French Govern- ment were carrying on negotiations for a treaty of alliance with Saxony, 2 and he was resolved, if they succeeded, that he would no longer go with them. To this resolution he constantly adhered. 3 On September i he wrote to the Duke, 4 to suggest to Holdernesse, as his own idea, that if reasonable proposals were made to him on behalf of King George, the desired object might possibly be attained, though of course he could not enter into any definite engagement before the expiration of his treaty of alliance with France, which would terminate on June 5, 1756. 5 At the same time he was in no hurry to break with France, and on September 10 he instructed Knyp- hausen to inform the French Ministry that Admiral Hawke had received orders to attack French squadrons and merchant ships wherever he fell in with them. 6 A few days later he told him that he might drop a hint 1 Pol. Cor. xi. 272. 2 Ibid. 282. 3 Ibid. 357, letter of October 28 to Knyphausen. 4 Ibid. 286. 5 He changed his mind eventually on this point. 6 Pol. Cor. xi. 292. HIS HESITATION AND IMPATIENCE 187 to Rouille, the French minister for foreign affairs, that rather singular and important overtures had been made to him from the English side. It appears, however, that the English Government was aware of the coldness of his relations with Paris. From the Duke of Brunswick came a letter of September, reporting that Holdernesse having left for England, he had written to him that Frederick was at present unwilling to say anything positive about the neutralization of Hanover, but if acceptable offers were made to him, the proposed object might be attained. To this Frederick replied from Breslau on the I3th Frederick that he was impatient to know how the affair would turn beTm- out, in order that he might thereby escape from the dim- patient, culties in which he found himself. 1 To von der Hellen he wrote again to deny roundly and boldly any reports that came to his ears of a pretended secret agreement with England. 2 The passiveness of the French Court with regard to the repeated captures of French vessels excited his contempt. Newcastle, in a letter of October 4 to Hardwicke, says he has got the King's leave for Holder- nesse to write to the Duke of Brunswick that negotiations must be pushed in earnest. 3 On the 8th the Duke for- warded copies of two letters he had received from Holder- nesse, in one of which he enclosed a statement of the English case for Frederick's information, with a map of North America, and begged the Duke to obtain a clearer statement of Frederick's intentions with regard to Han- over. In the other he asked what proposals would be acceptable ; if Frederick would openly declare himself favourable to the neutralization of Hanover and the maintenance of peace in Germany, a confidential minister would be chosen for the negotiation, which might be carried on at Berlin under his own eye. In response Frederick sketched three successive drafts, 1 Ibid. 303. 2 Ibid. 303. 3 British Museum Add. MS. 35415. i88 FREDERICK'S THIRD REPLY Frede- o f which he finally adopted the third. 1 It was sent off rick's third on October 13, with a confidential covering letter. In th P o y h t ^ ie course f *h e f rmer > after asking under what pretext the Duke could he prescribe limits to the measures France might adopt, he added, would she not have a right to say to him : ' We embraced your interests at the time of your differ- ences with England touching the depredations committed against Prussian ships, we assured you of our assistance in case the King of England, in order to support some vague pretensions to Ost-Friesland, were to proceed to a rupture, and now that we are at war with these same English, whom you have not prevented from capturing our ships, 2 you want to hinder us from employing the means we judge best for defending ourselves.' Proposals, he concluded, must come from the English side. In the confidential letter he alluded again to these two questions, as two big disputes not yet disposed of. However, he begged the Duke to write a private letter to the English Ministry, accompanying a copy of the ' ostensible ' one, holding out hopes, provided they, who had begun the negotiation, were ready to make an offer ; and above all, that they must in the first place remove the old grounds of quarrel. instruc- Michell having in the meantime assured him that the P^ c y ne will adopt is a matter of great concern to the English Ministry, 3 Frederick instructed him to hint to them, as an idea of his own, that it was much to be wished that such unimportant differences as those respect- ing the depredations on Prussian merchant ships could be made up ; he might also try to confirm them in the opinion, which as Michell had reported, 4 some of them 1 Pol. Cor. xi. 332-5. 2 This is perhaps an allusion to the French request that he should undertake the invasion of Hanover, made some months before, which he had refused. Pol. Cor. xi. 144, 148 (April and May, 1755). 3 Pol. Cor. xi. 338. 4 See postcript to a letter of MichelPs dated September 19, inter- cepted and deciphered in London. App. 109. FRANCO-AUSTRIAN NEGOTIATIONS 189 entertained, that the passage of Russian troops through Germany could not but compel him bon gre mal gre to take part in the war. Michell wrote on October 10 that if the English Ministry could hope to remain quiet in case the war were extended to the Continent, they would take such steps as they thought calculated to ensure such a result, but that they fancied he could not be detached from the French interest. 1 If they saw any possibility of succeeding, he was persuaded they would be glad to open negotiations, provided their general policy were not upset, and that in agreeing to measures that would ensure the safety of Hanover, the King of England did not incur the risk of injuring English interests. To this Frederick replied by asking whether in connexion with the wish that he should remain inactive, there was any chance of the dispute about the Prussian prizes being arranged. About the middle of November he began to suspect Negotia- that negotiations were on foot between Austria and & France, according to which the former would undertake Austria not to back up England, the latter to abstain from invad- France ing the Low Countries. 2 He was far from divining the whole truth. Things had begun to take shape early in rick. September, when the Austrian ambassador in Paris sub- mitted to the French Court proposals for an alliance between Russia, Austria, Saxony, and other states for the purpose of reducing Prussia to the limits of the elec- torate of Brandenburg previous to the Thirty Years' War, France to remain neutral in return for advantages in the Low Countries. He was still impatiently awaiting news from England which would enable him to decide whether to renew his alliance with France, or to allow it simply to expire. 3 Michell, however, had reported on the jih that no anxiety for Frederick's neutrality would induce the English Ministry to settle their differences with him in 1 Pol. Cor. xi. 350. a Ibid. 377. 3 Waddington, p. 297. igo FREDERICK DENIES NEGOTIATIONS English tions of treaty Russia, any other fashion than that reported in the previous year. 1 In Paris there existed some apprehension, as reports had been received from various French diplo- matic agents, that he had already entered into engage- ments with England. He replied to Knyphausen on December 2 2 that these were malignant insinuations in- vented by his enemies, that there was not a word of truth in them. He had entered into no engagements with Eng- land. He had often given faithful advice to France. Not only had it been neglected, but the fact of his having done it had been allowed to leak out, to his great disadvantage. Holdernesse wrote to the Duke of Brunswick, Novem- ber 21, that the treaty with Russia had no other object t nan the defence of Hanover, and that the troops stipu- lated for would not march unless England or Hanover were attacked. 3 This letter having been forwarded to Frederick, he replied on December 2, to tell Holdernesse that he [the Duke] could not mention his letters until he had fuller details. Holdernesse on November 26 4 had given Michell a copy of the treaty with Russia, 5 together with the secret article, and had offered to do everything possible to compose amicably and on a reasonable basis the differences between the two courts respecting the prizes taken during the last war. This must consist in some expedient for safeguarding (mettre a I'abri) the laws and constitutions of the kingdom, and for affording at the same time equitable satisfaction to Frederick. New- castle had confirmed to him by word of mouth all that Holdernesse had said. Henry Fox 6 also had affirmed the purely defensive character of the treaty and his own devotion to the King of Prussia. 1 i.e. on February 15, 1750, namely that Frederick should first release the money sequestrated, on which orders would be given to the Prize Court to inquire summarily into the claims of Prussian subjects. 2 Pol. Cor. xi. 408. 3 Ibid. 413. 4 Ibid. 418. 6 Treaty of September 19, 1755. See F. de Martens, Recueil des Traites ct Conventions, torn, ix (x), 175, and also p. 144 above. 6 Secretary of State for the Southern Department since November 15. CHAPTER XVI NEGOTIATIONS FOR THE TREATY OF WESTMINSTER OF JANUARY 1 6, 1756, AND FINAL ARRANGEMENTS FOR PAYING OFF THE SILESIAN LOAN AND COMPENSATION TO PRUSSIA THE way being now prepared on both sides, Frederick Frede- replied on December 7 with very full instructions to ^j s Michell. 1 He might assure the English Ministry of instruc- Frederick's appreciation of the confidence shown in him by the communication of the treaty, and that he had received with pleasure the proposals they had commis- sioned Michell to transmit. He added : ' After which, you will say to them verbatim what follows, without changing a single word. That I thought the thing could be done by concluding between the King of England and me a neutrality treaty for Germany during the disputes actually subsisting in Europe, without naming therein the French nor the Russians, in order to avoid offending any one, and to leave me by these precautions in a posi- tion to work more efficaciously for the reconciliation of the two nations, belligerent, embroiled, or at variance. ' I accept with pleasure the offer made to you of fresh guarantees for Silesia, though I count sufficiently on the good faith of the King and of the English nation to judge them incapable of repudiating the engagements they entered into by the last treaty of Aix-la-Chapelle. ' As regards the depredations on some Prussian ships, this affair at bottom is a mere " bagatelle ", but as it might in time become a stumbling-block, I shall be glad to see it ended. I will lend myself to anything reasonable, and from the moment that there is a serious intention on both sides to put an end to it, I have no doubt that it will suc- ceed to mutual satisfaction ; but as I must think of the 1 Pol. Cor. xi. 418. IQ2 BEGINS TO DISCLOSE THE SECRET future as well as of the past, you will tell the ministers that I have reason to hope that they will give orders that the small trade of Prussian merchants, at which they cannot take umbrage, be not troubled during this war, or at least that they state to me what they call contraband, in order that I may warn my merchants beforehand, and by this means avoid everything that might disturb the good understanding between the two nations. ' I foresee on the other hand that in order to terminate the negotiation provided that in England the minister is satisfied with what I commission you by this dispatch to tell him it will be necessary to push promptly the dispatch of ministers to finish the negotiation ; I will also think about it on my side, and I only await your answer to make up my mind on this point. , . FEDERIC. Frederick Frederick now began to prepare the way for letting begins to Knyphausen know that he had been driven by French disclose J L ~ his plans incapacity to look elsewhere for safety. He hinted to drpio 5 - Klinggraff * that events were likely to occur that would matic make the Austrian ministers pull a long face. To his envoy at Copenhagen he wrote that there was no occasion for eagerness in denying reports that he is indisposed to declare himself on the side of France, for, after all, his ties to that Power are purely defensive, and concern only the European possessions of both parties. In fact, it was with difficulty that he concealed his satisfaction, and was at every moment on the point of divulging its cause to his agents. Podewils was informed that ' alle gute Hoff- nung anscheine, dass Sr. KonigL Majestdt Projet, wovon Dieselbe mil Ew. Excellenz im Vertrauen und en secret gesprochen, vielleicht noch reussiren dor/lc '. 2 On Decem- ber 23 he wrote quite openly to Knyphausen that England had made overtures to him with the object, as far as he 1 Envoy Extraordinary and Minister Plenipotentiary at Vienna since November 1750. His mission to London has been narrated in Chapter V. a Pol. Cor. xi. 435. NEGOTIATIONS WITH HOLDERNESSE 193 understood them, of maintaining neutrality in Germany. 1 The French Court seems to have been still under the impression that he could be induced to help them by fall- ing upon Hanover. 2 There is an intercepted letter from Frederick to Michell of December 23, 3 from which his satis- faction with the turn things were taking may be inferred. Michell probably received the instructions of Decem- Micheli's ber 7 about the 1/j.th or I5th. He reported on the 23rd 4 negotia f that he had lost no time in reading them to Holdernesse, tic>ns Newcastle, and Fox. Newcastle at once said that the English King would be very pleased to seize this opportunity of Mimstr y- renewing the mutual guarantees 5 subsisting between the two Powers, to put an end to the differences that had arisen with respect to the Silesian loan payments, and for preserving the peace in Germany at the present crisis. Then, after a week's consultation, Holdernesse invited Michell to a second conference, at which he handed to him a draft convention, based, as he said, on the ideas communicated on Frederick's part, together with a memorandum. 6 Holdernesse added that it would not be desirable to insert in the convention the necessary pro- visions relating to the Silesian debt and the compensation for the Prussian prizes, but as soon as Frederick removed the sequestration of the debt he would deliver, on the day when the convention was signed, a secret declaration signed by one or two ministers, engaging to pay Frederick a reasonable sum, payment to be made simultaneously with the balance of the principal and interest of the debt. 1 Pol. Cor. xi. 444. 2 Ibid. 455. Knyphausen to Frederick, December 19, 1755. 3 App. no. 4 Pol. Cor. xii. i. 5 The reference is to the treaty of November 14, 1742, signed at Westminster, by which George II and Frederick guaranteed each other's territories, and the declaration of September 19,1 746, by which George II renewed his guarantee of Silesia to Frederick, accepted by the latter October 13, 1746. 6 Newcastle wrote to Miinchhausen on December 23, acquainting him with the result of the negotiations with Prussia. His reply ex- pressed his joy at the receipt, and a second applauded the draft of the Convention. App. 111-13. 1783 Q 194 NEGOTIATIONS WITH HOLDERNESSE These amounts Michell calculated at 45,000 and 12,600 respectively, and he believed he would be able to obtain from 18,000 to 20,000 as compensation for the prizes. Holdernesse had declined to give the declaration asked for by Frederick respecting contraband, as the Court of Admiralty must be guided by the Law of Nations or by treaties. As to the former, since it was subject to diverse interpretations, it could not always serve as a rule, but in order to put Prussian subjects at ease, the King was ready to conclude a commercial treaty on the model of that of 1672 with Sweden. 1 There was indeed another between England and Denmark, 2 which might appear more advantageous to Frederick, but it was not possible to conclude a similar one, as England had found herself unable to accord to Denmark what the latter claimed under that treaty ; and that far from being suitable for regulating commerce and navigation between the two nations, it had been the subject of disputes on many occasions during the last war. In a word, that nothing but a treaty between Prussia and England could serve as a definite rule for the navigation of Prussian subjects in time of war, and if Frederick wished to conclude one, the English Government would enter on the negotiation. Holdernesse had also said that the King and his ministers would be pleased, in case Frederick desired to discuss the draft convention, to do this through Michell, than whom no one would be more acceptable to them. Holdernesse had also handed him a pro-memorid expressing the readi- ness of King George to conclude the convention and to remove the existing causes of difference. It was not want of courtesy towards the King of Prussia that prevented the immediate nomination of a qualified minister to the 1 The treaty of Whitehall of October 21, 1661, seems to be intended. See Jenkinson, i. 166, Art. 13. A commercial treaty in those days usually contained stipulations as to contraband of war and the treat- ment of enemy goods in neutral ships ; often also of neutral goods in enemy ships. 2 The treaty of July n, 1670, is meant. FREDERICK APPROVES THE DRAFT 195 Court of Berlin, but the necessity of completing the negotiation with promptitude and secrecy. This was exactly what Frederick desired. He approved Draft the draft, with but one change, viz. the substitution of tiorT 6 ' de 1'Allemagne ' for ' de 1' Empire Germanique ', and the amended addition of a separate and secret article excepting the rick. Austrian Netherlands from the contemplated neutraliza- tion. He expressly demanded this, in order not to appear in any way to interfere with French designs on the Low Countries. 1 As soon as he should receive news of the signature of the treaty or convention, he would remove the sequestration, and he further instructed Michell that he would accept 20,000 as compensation for the prizes. Orders were given on January i for the preparation of Michell's full-powers and instructions, and the greatest secrecy was enjoined. From a dispatch of January 3 to Knyphausen, 2 it A hint of appears that Frederick desired at the same time to let the French Court know that he might find himself com- ^ nt . to i 3,1*1 S pelled to accept the English proposals, without at all interfering with a possible renewal of his defensive alliance with France, for he affected to know for certain that as soon as France entered Germany for the purpose of attack- ing Hanover, Austria would invade Silesia with 50,000 men, and send another 50,000 through Saxony against the Mark of Brandenburg, while 60,000 Russians would enter East Prussia. Writing to Michell on January 4 3 he said he was anxious Frederick to know as soon as possible whether the English ministers ^entTo would accept his counter-draft, because Nivernois [a conclude. special ambassador from France] was expected very shortly at Berlin, and it was essential to know in good time where he stood with England. Secret instructions were dispatched the same day to Michell to make it quite clear to the English Ministry that nothing would induce him to take part in the war ; his only object was to ensure 1 Pol. Cor. xii. 2. Podewils to Eichel. 2 Ibid. 8. 3 Ibid. 13. 02 Signature of the Conven- tion of West- minster and of the Declara- tion of the same date. Seques- tration of Silesian Loan Fund re- moved. 196 CONVENTION OF WESTMINSTER SIGNED the peace of Germany and of his own dominions. If he had wanted war he would never have consented to this treaty. If George II desired to keep it secret, he would offer no objection. Michell was informed by the British Government 1 that they had acquainted Sir Charles Hanbury Williams with what had been said in Parliament as to the purpose of the subsidy treaty with Russia, and why it had been com- municated to Frederick. 2 The instructions to Williams were conveyed in a dispatch of December 26. 3 The convention, with Frederick's amendment and addition, was signed January 16, 1756. Its text will be found in Appendix 115. Simultaneously was signed a declaration or exchange of Notes relating to the removal of the embargo on the Silesian debt payments, to be followed by the payment of 20,000 in extinction of all claims whatsoever of the King of Prussia or of his subjects. The nature of the claims was not specified. 4 (Text in Appendix 116.) Both documents were received at Berlin, January 25. 5 On the 3ist Frederick wrote to Michell to tell the Eng- lish ministers that the sequestration had been removed, and that he would make the fact publicly known as soon as he received information of the exchange of ratifica- 1 Pol. Cor. xii. 17. 2 He had every reason, therefore, to assume that the Russian troops would not enter Germany, still less be employed against himself, seeing that the treaty of Westminster would obviate the necessity of calling on Russia to move troops for the defence of Hanover. He was con- vinced that Austria would try to recover Silesia if peace were restored between France and England, but he did not anticipate, so sanguine was he, that his treaty with England would convert France from an ally into an enemy, and he felt himself fully a match for Austria alone. He was quite aware that the Russian subsidy treaty had been aimed at him. (Pol. Cor. xii. 40.) 3 App. 114. 4 It appears that Michell sent to Berlin the copy of the treaty signed by himself, instead of that bearing the signatures of the English pleni- potentiaries. That copy is at the Public Record Office. (Pol. Cor. xii. 60.) Usually each copy of such documents is signed by the pleni- potentiaries of both parties. 5 Pol. Cor. xii. 64. QUESTRATION OF LOAN FUND REMOVED 197 tions. 1 He would arrange at once for the remittance of the necessary sum to pay off both principal and interest, against the delivery of the original bonds and a formal receipt for the money. Michell was to propose to the Ministers that the 20,000 promised by way of indemnity to the Prussian merchants should be deducted at Berlin from the amount payable by him, so as to avoid all eclat, and the trouble of making counter-remittances. Frederick's ratifications of the Convention and secret article were dispatched the same day. On February 3 the Grand Chancellor Jariges was instructed that the sequestration was to be taken off ; he would receive further instructions as to the payment out of the Hof- und Kammergericht, and in the meantime the 80,000 thalers advanced to Splitgerber against his bill must be repaid according to the terms thereof. It was not long before the fact of a treaty having been The secret signed between England and Prussia leaked out. Frederick leaks out. came to hear that it had been reported in the Gazette de Leyde? and gave instructions for an article to be published explaining the objects of the convention and announcing the friendly settlement of the misunder- standings with England respecting the Silesian debt and matters connected therewith. It was pointed out to him by Eichel that the English Ministry had urgently requested that the written undertaking on the latter head should be kept secret, in order not to scandalize the English nation. Nevertheless, the article in question, published on February 5 in the Berlin papers, 3 expressly mentions the compensation given to Prussian subjects who had suffered losses in the last naval war. Frederick even caused it to be hinted to the French ambassador Nivernois that he might give out that the convention had been entered into with the consent of France. 4 1 Ibid. 63. 2 Of January 27 in a letter from London. App. 117. 3 Reprinted in Preuss. Staatssch. ii. 497. 4 Pol. Cor. xii. 80. 198 FINAL ARRANGEMENTS Settle- The English Ministry agreed to Frederick's proposal accounts ^ at the 2o,ooo should be deducted from the amount to between be remitted in discharge of the remaining principal and parties, interest ; so the English Treasury must have paid this sum to the trustees for the bondholders, in accordance with the vote in Committee of Supply on May ly. 1 From a letter of Frederick's to Boden of April 2 2 it appears that according to Michell's account the sum then remaining to be remitted to London was 40,887 los. He says he had instructed the ministers of the foreign department to make up the account in conjunction with Boden, not forgetting to include in the reckoning the value of the bonds he had purchased some years before in London, with interest at seven per cent. There was a further claim of 2,500 (one per cent on the 250,000 loaned to the Emperor Charles VI, provided for in the declaration signed by Count Kinsky on January 7, 1734/5), payable on the complete extinction of the debt. The trustees did not demand the arrears of interest from July 1735 to 1740, of which the Emperor had never paid a penny. They also expressed their willingness that the account for interest should be made up to March 21, instead of up to the month of June inclusive, but on the condition that pay- ment should be completed in a month or six weeks from April 6. 3 The 20,000 = 120,000 thalers were distributed among the Prussian claimants proportionably to the sums attributed to them in the list of claims recognized by the Prussian Commission of Inquiry, so that each received rather less than two-thirds of what had been demanded on his behalf. 4 Frederick consented to pay the 2,500 demanded under the heading of commission. 5 He also gave orders to pay 787 los. to make up the full interest to June 21. Payment was completed on June 20, and a receipt dated June 23 delivered on behalf of the creditors. 6 1 See below, p. 199. 2 Pol. Cor. xii. 233. 3 Ibid. 271. 4 Ibid. 349. 5 Ibid. 353 and 362. 6 Ibid. xiii. 33. CONCLUSION 199 The treaty with Prussia and the declaration signed Treaty simultaneously were laid before both Houses of Parlia- ^eciara- ment on May n, 1756, with a message from the King, tion laid The House of Commons referred the papers to the Com- Parila- mittee of Supply, and on May 17 voted 20,000 for making ment - good his Majesty's engagements to the King of Prussia. 1 CONCLUSION The settlement was no doubt satisfactory to both Reasons parties. Frederick did not obtain the whole amount he mu tual had claimed by way of indemnity for the Prussian mer- satisfac- chants, but whereas he had at one moment expressed his willingness to be satisfied with 80,000 thalers he received the equivalent of 120,000 thalers. To the English Minis- try, as the form of declaration exchanged with Michell did not mention the grounds on which payment was held to be due, the expenditure of so trifling a sum must have seemed a very insignificant price for an alliance which it was expected would protect the King's German dominions from invasion. Moreover, by signing this treaty they stood to save 500,000 a year which they would have had to pay for the Russian auxiliary force, if it had been required to assist in repelling an attack from Frederick. They sacrificed no principle of International Law as they conceived it, and their reply to the Prussian arguments had been left without a rejoinder. It is probable that they considered the promises given by Carteret in respect of Prussian ships and cargoes, somewhat without reflec- tion and in ignorance of the practice of English prize- courts, to constitute a debt of honour which they could not ultimately evade. If so, they certainly took a right view. The word of a minister for foreign affairs given to the diplomatic agent of a friendly Power is binding in honour on the Government and the nation which he represents. 1 Parl. Hist. xv. col. 703. APPENDICES i. LICENCE TO COUNT KINSKY (S. P. For., Foreign Ministers in England, vol. 49) GEORGE R. George the Second, by the Grace of God, King of Great Britain France & Ireland Defender of the Faith &c a . To all to whom these Presents shall come Greeting, Whereas Our good Brother the Emperor of Germany hath represented to Us, that He hath Occasion to borrow the Sum of Three hundred Thousand Pounds and hath therefore given Authority and Instructions to Count Kinsky His Ambassador to propose the borrowing the Same of Any of Our Loving Subjects, within this Our Kingdom, who shall be willing to lend the same at such Interest on such Security and such Terms, as shall be agreed on between them, And hath for that purpose desired Us, to grant Our Royal Licence and Authority to borrow and receive the said Sum of Three hundred Thousand Pounds, of and from such of Our Loving Subjects as shall be disposed to lend the same. Wherefore at the Request of Our said good Brother We do by these Presents give and grant Our Royal Licence and Authority to the said Count Kinsky in the Name, and for the Use of Our said good Brother, to borrow and receive, and to all Our Loving Subjects within This Our Kingdom who shall be so inclined to lend, advance and pay to the said Count Kinsky, or such other Person or Persons as shall be duly authoris'd by him to receive the same to & for the Use and on the behalf of Our said good Brother the Emperor of Germany any Sum or Sums of Money not exceeding y e Sum of Three hundred thousand Pounds, in the whole upon such Security at such rate of Interest and upon such other Terms, Conditions, and Agreements as shall be stipulated and agreed upon be- tween the said Count Kinsky for and on behalf of Our said good Brother the Emperor of Germany and Our said Loving Subjects. Given at Our Court at Kensington the 6 th Day of Aug*. 1734, in the Eighth Year of Our Reign. By His Majesty's Command HARRINGTON. [Endorsed] Copy of a Licence for a Loan to the Emperor Augt. 6th 1734 . APPENDIX 2 201 2. A STATE OF THE CASE OF THE PROPRIETORS OF THE SILESIA LOAN (S. P. For., Foreign Ministers in England, vol. 48) The late Emperor of Germany gave a Commission to Count Kinsky dated the 28 th July 1734 to borrow 250,000. of the Subjects of Great Britain upon a Mortgage of the Emperors Revenues in the Dutchy of Silesia & also the said Emperors Bond together with the Security of the States of Silesia for the repayment thereof. By his Majesty's Licence the Subjects of Great Britain on the Credit of the aforesaid Securities did on or about the io th Day of January 1734 Subscribe at the Bank of England the said Sum of 250,000. which Sum was afterwards paid to Count Kinsky for the use of the Emperor of Germany & there- upon the said Count Kinsky did deliver to the Hon ble Horatio Townshend Esq r : S r . Theodore Janssen, S r . Jn. Heathcote, Sam 1 . Holden, & Tho 8 . Gibson Esq rs : as Trustees for the said Subscribers the Securitys for repayment of the said 250,000. to be made to them the said Trustees in the Bank of England with Interest after the Rate of 7 ^ O ^ Annum in manner following. The first Payment of the Interest to be made at the end of Six Calendar Months from the Day on which the Subscription should begin to be taken which was the io th Jany 1734 and so to be paid at the end of every Six Months successively 'till the said Principal Sum was wholly repaid & discharged And that on the io th January of the Years 1740, 1741 & 1742 10 ^ C* of the whole Principal Sum Subscribed should be each Year repaid to the Creditors & on the io th January of the Years 1743 & 1744 each Year 20 ^ O more, & on the io th Jany 1745 30 ^ O more in full of the said Principal Sum. That by the Treaty of Peace concluded at Breslau between the Queen of Hungary & the King of Prussia his Prussian Majesty did engage to pay to the Proprietors of the Silesia Loan all that was due & owing to them for Principal & Interest conformable to the Covenants of the said Loan, And they have had repeated assurances that the same should be punctually performed (even with the utmost exactness) Nevertheless the Proprietors have not hitherto been repaid any part of their Principal neither have they received any Interest for Nine Years last past so that besides the whole Principal Sum of 250,000. there is owing 157,000. -for 9 Years Interest due July last making together the Sum of 407,500. 202 APPENDIX 3 3. EXTRACT OF THE CONTRACT FOR THE SILESIA LOAN, DATED JANUARY 7, 1734 (5. P. For., Foreign Ministers in England, vol. 49) That the said 250,000, or so much thereof, as shall be sub- scribed, & paid to the said Ambassador, Count Kinsky, or his Order, for the Use of the said Emperor, shall be secured to be repaid & shall be repaid unto the s d Horatio Townshend ; Sir Theodore Janssen ; Sir John Heathcote ; Samuel Holden ; & Thomas Gibson ; or the Survivors, or Survivor, of them, His Executors, or Administrators, for the Use of the Subscribers, their Executors, Administrators, or Assignes, with Interest, at the Rate of Seven Pounds ^ Cent $ Annum, at the Bank of England, in the City of London, in lawful Money of Great Britain, Free from all Charges, Deductions, & Abatements whatsoever in manner following (that is to say) in the Years I 735 1736, 1737, 1738, & 1739- the said Interest shall be paid half Yearly, the First half Year's Payment to begin, & to be made at the End of Six Calender Months next after the Day, on which the Subscription shall begin to be taken, & so succes- sively at the End of Every succeeding Six Months. And in the Year 1740, the like Interest shall be paid half Yearly as aforesaid, & with the last Payment of Interest there shall be paid Ten pounds per Cent of the Capital Summe to be sub- scribed, & paid as aforesaid. And in the Year 1741, the like Interest shall be paid half Yearly for the Ninety pounds per Cent then remaining due of the said Capital Summe to be subscribed & paid as aforesaid & Ten pounds per Cent more of the said First Capital Summe. And in the Year 1742 there shall be paid the like Interest half Yearly for the Eighty pounds per Cent then remaining due of the Capital Summe to be subscribed & paid as aforesaid, & Ten pounds per Cent more of the First Capital Summe. And in the Year 1743, there shall be paid the like Interest half Yearly for the Seventy pounds per Cent then remaining due of the Capital Summe to be subscribed & paid as aforesaid, and Twenty pounds per Cent more of the First Capital Summe. And in the Year 1744 there shall be paid the like Interest half Yearly for the Fifty pounds per Cent then remaining due of the Capital Summe to be subscribed & paid as aforesaid, & Twenty pounds per Cent more of the First Capital Summe. And in the year 1745. there shall be paid the like Interest half Yearly for the Thirty pounds per Cent then remaining due of the Capital Summe to be subscribed & paid as aforesaid, & the remaining Thirty pounds per Cent of the said First Capital Summe without any Delay Demurr Deduction or Abatement whatsoever. APPENDIX 4 203 4. HYNDFORD TO HARRINGTON (S. P. For., Prussia, vol. 51) Bresslau, November 12, N.S., 1741. MY LORD I receiv'd from Presburg a Memorial, dated the Twenty First of October, to be communicated to the King of Prussia, wherein the Queen agrees to, and confirms all that passed on the Ninth of the same Month, at the Conference at Klein Schnellendorff ; and by the Return of my Servant, whom I sent to Presburg, I received a Dispatch from M r Robinson for your Lordp together with a Project of a Treaty to be concluded between that Court & His Prussian Maty, but having no Messenger with me I can't venture to send them to your Lp. by the Post. I communicated them to His Prussian Maty here ; I ac- quainted Him likewise that I had received the said Articles of a Treaty ; He desired me to shew it Him at Berlin, because He had not time to examine it, being extremely busy with his new Subjects. It is founded and consists almost altogether of the same Articles agreed on by the Act of the c/ h (Oct.), only there is added an Article concerning His Prussian Maty's Engagem ts for the Debts on Silesia, pro rata, the maintaining of the Catholick Religion, and Policy of the Country He is now in possession of, and likewise y* the Treaty when concluded should be immediately made publick. What Answer His Prus- sian Maty will give to those Articles, I do not know, but I am afraid that He will not agree to the Last, for I am sorry to acquaint your Lordp that He has signd his Accession to the Treaty & Guaranty between Bavaria & Saxony on the 8 th Inst. I sent by Mo r Sweicheld, as far as Hanover, a Letter for your Lordp, dated the Twenty Eighth, with a Copy of the projected Accession, and the Secret Article, together with a former Dispatch from M r Robinson : all which that Gentle- man promised to forward to London by a Messenger, and I beg Your Lordp will let me know if they came safe to hand. Since my Letter of the 28^ by Mo r Sweicheld I have found means to procure a Copy at length of the Treaty between Bavaria and Saxony, which I gave Your Lp hopes of in that Letter, but till I have a Messenger, or two, I can send nothing ; I hope therefore Your Lp. will put me out of pain by sending one with Instructions how I am to act, in case the Ks of Prussia should desire that the King should become a Party, or enter into any Engagements by this Treaty to be concluded, in case His Prussian Maty is sincere in it, which this last accession of His makes me to begin to doubt of. 204 APPENDIX 4 I leave this place on the 14 th inst. for Berlin where the King of Prussia is expected to arrive as this day, he set out from hence on the 9 th but was to make some stay at Glogaw. Neiss surrendered on the I st ins* after a siege of 14 days. The garrison marched out with the accustomed honours, and have now joined M. Neipperg's Army. The Prussian Army in this country is now gone into winter quarters. The King has appointed M. Schwerin Commander in Chief of Upper Silesia and Governor of Neiss and Brieg. The King of Prussia arrived at Bresslau the 4 th instant received the hommage of the States of Lower Silesia on the 7 th and upon that occasion made several promotions. I send Your Lordship the Cartel betwixt Prussia and Saxony and the two Speeches made on y e occasion of the receiving the hommage of the States in case His Majesty should have a mind to see them. 5. PRELIMINARIES OF BRESLAU, JUNE n, 1742 (S. P. For., Foreign Ministers in England, vol. 49) Extract of The Preliminary Articles of Peace, between Her Majesty The Queen of Hungary, & Bohemia, & His Majesty The King of Prussia, sign'd at Breslau, June the II th 1742 ; & guarantied by His Majesty, on the 24 th Day of the same Inst. Article 7 me Sa Majeste Le Roi de Prusse se charge du seul Payement de la Somme hypothequee sur La Silesie, aux Marchands Anglois, selon le Contract signe a Londres, le 7 rae de Janvier 1734/5. 6. TREATY OF BERLIN, JULY 28, 1742 (S. P. For., Foreign Ministers in England, vol. 49) Extract of a Treaty, between The Queen of Hungary, and The King of Prussia, sign'd at Berlin on the 28 th of July 1742 ; and Guaranty'd by His Majesty, on the loth of March i74. Art. 9 Sa Majeste Le Roy de Prusse se charge du Payement des Sommes hypotequees sur la Silesie aux Sujets d'Angleterre, et de Hollande ; Sauf toutefois a Sa dite Majeste d'entrer, quant aux derniers, en Liquidation et Compensation de ces Dettes sur ce qui Lui est du par La Republique de Hollande. APPENDIX 6 205 Pareillement Sa Majeste La Reine d'Hongrie et de Boheme se charge des Sommes hypotequees sur le dit Pais de Silesie aux Brabasons. Art. 14 Les Deux Hautes Parties Contractantes sont deja con venues, par le Traite des Preliminaires, signes a Breslau 1'onzieme du Mois de Juin, ainsi qu'Elles conviennent encore par le present Traite de Paix, d'y comprendre Sa Majeste Le Roy de la Grande Bretagne, tant en cette Qualite, qu'en celle d'Electeur d'Hanovre ; S. M. de Toutes les Russies ; S. M. Le Roy de Danemarc ; S. M. Le Roy de Pologne, en Qualite d'Electeur de Saxe, sous la Condition stipulee dans 1'Article onzieme du Traite des Preliminaires ; Les Etats Generaux des Provinces Unies des Pai's Bas ; et La Serenissime Maison de Wolfenbuttle. 7. EXTRACT OF THE KING OF PRUSSIA'S RATIFICATION OF THE ABOVE ARTICLE (S. P. For., Treaty Papers, vol. 60) Nous promettons aussi sur notre Parole Royale, pour nous, Nos Heritiers et Successeurs, d'executer ponctuellement et au plutot 1'Article Neufvieme du Traite susmentionne de Berlin, par lequel Nous Nous sommes charges du Payement des Sommes hypothequees aux Sujets de la Grande Bretagne sur la Silesie. 8. FREDERICK'S ACCEPTANCE OF GEORGE II's GUARANTEE, OCTOBER 13, 1746 (S. P. For., Foreign Ministers in England, vol. 49) Nous Frederic par la Grace de Dieu, Roi de Prusse, Margrave de Brandebourg, Archi-Chambellan et Prince Electeur du Saint Empire Remain, Souverain Due de Silesie, Souverain Prince d'Orange, Neuf-Chatel et Valengin, comme aussi de la Comte de Glatz, Due de Gueldre ; de Magdebourg, Cleves, Juliers, Bergue, Stettin, Pomeranie, des Cassubes et Vandales, de Mecklenbourg, comme aussi de Crosne, Bourggrave de Nurnberg, Prince de Halberstadt, de Minde, Camin, Vandalie, Suerin, de Ratzebourg, Ostfrise, et Meurs, Comte de Hohenzol- lern, de Ruppin, de la Marc, de Ravensberg, Hohenstein, Secklenbourg, Suerin, Lingue, Bure et Leerdam ; Seigneur de Ravenstein, de Rostock, Stargard, Lauebourg, Butau, Arlaij et Breda. Savoir Faisons a tous et a chacun, qui les presentes verront, 206 APPENDIX 8 que Sa Majeste Britannique nous aijant donne pour la tran- quille Possession des Etats, qui Nous ont ete cedes par Sa Majeste L'Imperatrice Reine, d'Hongrie et de Boheme, en vertu des Articles preliminaires de Breslau, et du Traite definitif de Berlin, confirme par celui de Dresde, 1'Acte de Garantie, dont la Teneur s'en suit. Nous George Second, par la Grace de Dieu, Roi de la Grande Bretagne, de France et d'Irlande, Defenseur de la Foij &c a . Due de Brunswick et de Lunebourg, Archi-Tresorier et Prince Electeur du Saint Empire Romain, Savoir faisons a tous, et a Chacun, qui ces presentes verront, que comme par les Articles preliminaires, signes a Breslau, le n me Jour du Mois de Juin, de Tan 1742, entre Sa Majeste la Reine de Hongrie et de Boheme, a present Imperatrice de I'Allemagne, et Sa Majeste le Roi de Prusse, Sa dite Majeste Imperiale ceda a perpetuite au dit Roi de Prusse, Ses Heritiers et Suc- cesseurs, le Duche de Silesie, avec la Comte de Glatz, et comme la dite Cession fut pleinement renouvellee confirmee et ratifie en faveur du dit Roi par le Traite definitif de Paix entre les memes Hautes parties, conclu et signe a Berlin le 28 de Juillet de la meme annee : Desquels Articles preliminaires et Traite definitif de Paix Nous garantimes 1'Execution a Leurs dites Majestes par des Actes Authentiques, signes de Notre Main, et scelles de Notre Grand S9eau de la Grande Bretagne, dont le premier a ete expedie dans Notre Palais de Kensington le 24 Juin de Tan 1742, et le second par le Traite d' Alliance de Westminster, signe le 18 Novembre 1742. Mais de nouvelles Mesintelligences, et une Guerre ouverte etant malheureuse- ment survenus entre Sa Dite Majeste ITmperatrice et Sa Majeste le Roi de Prusse, Nous Nous engageames pour porter Sa dite Majeste le Roi de Prusse d'en venir d'autant plutot a une Pacification avec Sa Majeste Imperiale par une Convention signee le 26 d'Aout de 1'annee 1745 a Hanovre, et par Notre Ratification, d'icelle, de renouveller a Sa dite Majeste Notre Garantie tant du Duche de Silesie, que de la Comte de Glatz ; Et comme apres cela ensuite de Notre Media- tion, la Paix fut heureusement conclue, et 1'ancienne amitie retablie entre Leurs Majestes susdites par le Traite de Dresde du 25 Decembre dernier, moyennant le Renouvellement des Cessions susmentionnees de la part de ITmperatrice, et les Garanties reciproques y contenues, Et Sa Majeste Prussienne Nous ayant rcquis et recherche tres instamment de vouloir maintenant remplir 1'Engagement susdit de la Convention de Hannovre, en lui renouvellant la Garantie, que nous Lui avons accordee ci-devant du Duche de Silesie et de la Comte de Glatz. Nous avons bien voulu y acquiescer, pour consolider autant qu'il pourra dependre de Nous la Pacification si heureusement APPENDIX 8 207 conclue, et pour donner a Notre dit bon Frere, le Roi de Prusse, une nouvelle preuve de Notre amitie sincere et inva- riable, Nous en vertu des presentes renouvellons, confirmons et ratifions de nouveau a Sa dite Majeste Prussienne Notre Garantie de la Silesie et de la Comte de Glatz, promettant et Nous obligeants pour nous et pour Nos Heritiers, et Succes- seurs a la Couronne de la Grande Bretagne, tant pour le present, que pour tous les terns a venir, de tenir la Main, et d'employer emcacement tout ce qui est dans Notre pouvoir, pour que Sa Majeste le Roi de Prusse, Ses Heritiers, et Suc- cesseurs restent dans la tranquille et paisible possession de la Silesie et de la Comte de Glatz, et qu'ils y soyent maintenus centre tous ceux qui voudroient les y troubler en maniere quelconque. Nous travaillerons de plus incessamment aupres des Seigneurs les Etats Generaux des Provinces Unies, et Nous leur ferons les Instances les plus fortes, pour les engager a Se charger de la meme Garantie en faveur de Sa Majeste le Roi de Prusse, et a Lui en donner et delivrer un pareil Acte. En foi de quoi Nous avons signe cet Acte de Notre main Royale, et y avons fait apposer Notre Grandsceau de la Grande Bretagne. Fait dans Notre Palais de Kensington le dix neuneme jour de Septembre Tan de grace Mil Sept Cent Quarante Six, et de Notre Regne le Vingtieme. Signe GEORGE R. Nous acceptons avec gratitude le susdit Acte de Garantie, et promettons reciproquement sur Notre Parole Royale, pour Nous et Nos Heritiers et Successeurs, de remplir ndelement la Garantie, que nous avons accordee a Sa Majeste I'lmperatrice Reine d'Hongrie et de Boheme, en vertu du Traite de Paix d'amitie et de Reconciliation, conclu a Dresde, le 25 Decembre dernier, avec Sa dite Majeste, pour Ses Etats situes en Alle- magne, au cas qu'ils fussent attaques, et de satisfaire avec la meme fidelite aux Traites d'amitie de Defense mutuelle et de Garantie contracted avec Sa Majeste Britannique, tant comme Roy de la Grande Bretagne, que comme Electeur de Brunsvic et Lunebourg, et notamment de celui de Westmunster de 1'annee 1742. a condition toutes fois, que Sa Majeste I'lmpera- trice Reine d'Hongrie et de Boheme, et Sa Majeste Britannique (Chacune pour ce qui la regarde, et de maniere que le manque- ment de 1'une ne sera pas impute a 1'autre) executent aussi ndelement de Leurs cotes les Engagements, ou Elles sont entrees avec Nous, et particulierement les Garanties de Nos possessions, qu'Elles nous ont cy-devant donnees, et qu'Elles Nous fassent jouir de leur plein et entier Effet, toutes les fois que Nous Nous trouverons dans le cas de les reclamer. 2o8 APPENDIX 8 Nous promettons aussi sur Notre Parole Royale, pour Nous, Nos Heritiers, et Successeurs, d'executer ponctuellement, et au plus tot 1'Article Neufieme du Traite Susmentionne de Berlin, par lequel Nous Nous sommes charges du Payement des Sommes hypothequees aux Sujets de la Grande Bretagne sur la Silesie. En foi de quoi Nous avons signe ce present acte d'Acceptation et y avons fait apposer Notre Scoee Royal. Fait a Berlin, ce 13 Octobre 1746. FEDERIC, R. e H. C. PODEWILS. C. W. BORCKE. 9. MICHELL TO CHESTERFIELD, DECEMBER 28/jANUARY 8, 1747/8 (S. P. For., Foreign Ministers in England, vol. 48) MILORD, Apres les asseurances et les declarations verbales que le Ministere de Sa Majeste Brittannique avoit donnees au com- mencement de la presente Guerre au Roy de Prusse Mon Maitre, Sa Majeste avoit esperer que Son Pavilion auroit etc respecte, et qu'elle ne se seroit pas vue dans la necessite de faire d'autres demarches a cet effet, tant que les Navires de Ses Sujets n'auroyent ete chargez que de March an discs per- mises suivant les Traittez de Marine : Mais malgre ces declara- tions si Souvent reiterees, et quoy que Ses Sujets ne se soyent jamais ecartez des regies du Commerce licite aux Nations Neutres, La marine Angloise n'a pas laisse que de s'emparer injustement des Navires Prussiens, dont il y en a encore plusieurs de retenus dans les Ports de ce Royaume. C'est pour obvier a ces Inconvenients, pour brider la Licence des Armateurs, et pour les empecher de faire des avanies aux Sujets d'une Puissance Neutre, Que Sa Majeste m'a ordonne de faire des remontrances convenables a Vostre Excellence pour, Quil soit enjoint sous des peines severes aux Comman- dants des Batiments Anglois Armez en guerre, de respecter son Pavilion, de laisser la Navigation libre aux Vaisseaux de Ses Sujets, sans les troubler ou les molester sous pretexte de visitte : Mais de sc contenter de la simple exibition des Passe- ports et des autres Ecritures que les coutumes de Mer authori- sent les Capitaines de Vaisseaux de Guerre et les Armateurs de se faire montrer. Que de plus pour mieux rasseurer les Sujets commercants du Roy, contre les craintes que 1'experience du APPENDIX 9 209 passe doit naturellement leur inspirer, II plaise a Sa Majeste le Roy de la Grande Bretagne, de declarer par Ecrit et d'une maniere formelle, Que Son Intention n'est point d'empecher ni d'interrompre le Cours de la Navigation des Sujets Prussiens aux Ports de France et d'Espagne ; Mais qu'il leur sera permis d'y faire et continuer leur commerce sur le meme pied que le Droit des Gens, et les Coutumes de Mer, authorisent les Nations Neutres de 1'exercer : Que par consequent pour constater 1'Etat de leur Cargaison, on observe exactement la distinction des Merchandises, etablie par les Articles 19 et 20* du Traitte * Treaty of Navigation and Commerce between Great Britain and , 31 March, France of rnrprll ; Art. 17. Magnae Britanniae Reginae et Regis Christianissimi Subditis omnibus et singulis licitum erit, cum suis Navibus, omni cum libertate et securitate, nulla distinctione habita, quinam Mercium in iisdem oneratarum Proprietarij sint, navigare a quocunque Portu ad loca eorum quibus inimicitia aliqua cum Magnae Britanniae Regina aut Rege Christianissimo jam, aut dehinc intercedet ; Licitum itidem erit Sub- ditis et Incolis praedictis, cum praefatis navibus et mercibus navigare, et negotiari eadem cum libertate et Securitate a locis, Portubus, et Stationibus eorum, qui utriusque, vel alterius partis hostes sint, absque contradictione et perturbatione qualicunque, non tantum directe ab illis praememoratis Locis hostilibus ad Locum Neutralem, verum etiam ab uno Loco hostili ad Locum hostilem alium, sive illi sub Jurisdictione ejusdem Principis sint, sive sub diversis. Et sicut jam circa Navigia et Merces stipulatum est, ut Naves liberae Libertatem quoque mercibus vindicent, atque pro immuni ac libero habeatur omne id, quod Navibus ad Subditos alterius Fcederati spectantibus immissum deprehendetur, etiamsi totum oneris, vel ejusdem pars aliqua, ad hostes utriusve Majestatis pertinuerit, exceptis semper Mercibus contrabandis, quibus interceptis, omnia ad Articulorum subsequentium mentem fiant ; Ita conventum pariter est, eandem Libertatem ad Personas quoque extendi debere, quae Navi libera vehuntur, eo cum effectu, ut quamvis utriusque partis, aut alterutrius hostes sint, ex navi ista libera non extrahantur, nisi milites sint, & hostibus effective Ministeria sua praestant. Art. 1 8. Ilia navigandi et commercandi Libertas ad omnia Merci- moniorum genera se extendet, exceptis solum ijs quae Articulo proximo sequuntur, et Contrabands nomine indigitantur. [The English view of the effect of these articles is that the principle of Free Ships Free Goods applies in virtue of them to the case of one of the parties being belligerent, while the other is neutral, and that as if England were at war her antagonist was almost certain to be France, they would generally have no effect. It was not held that they amounted to a recognition of Free Ships Free Goods being applicable in general.] Art. 19. Sub isto nomine Contrabandae, seu Mercimoniorum pro- hibitorum comprehendantur, Arma, Sclopeta, aut Tormenta majora, Bombardae cum suis Igniariis et aliis ad ea pertinentibus, Ignes missiles, Pulvis tormentarius, Fomites, Globi, Cuspides, Enses, Lanceas, Hastaa, Bipennes, Tubi Catapultarij (vulgo Mortarij) Inductiles Sclopi, (vulgo Petardae) Glandes igniarij missiles (vulgo Grenadae) Salpetrae, Sclopeta, Globuli, seu Pilae quae Sclopetis jaculantur, Cassides, Galeae, Thoraces, Loricae (vulgo Cuirasse) et similia armorum Genera, ad instruendos milites comparata, Sclopothecae, Balthei, Equi cum eorum apparatu, & qusecunque alia Instrumenta Bellica. 1783 f 210 APPENDIX 9 de Commerce conclu au Mois d'Avril 1713 entre 1'Angleterre et la France, et par les Articles 15, 16, et 17 * du Traitte de Commerce de 1739 entre la France et la Hollande, et que Ton ne repute pour Marchandises de Contrebande, que celles qui sont expressement declarees telles, par les Articles susmentionnez. De sorte qu'aussy tot que les Capitaines et Maitres de Vaisseaux portant le Pavilion de Sa Majeste, et munis de Ses Passeports, feront voir par leurs Ecritures qui ne sont point Chargez de Marchandises de cette espece, Us puissent continuer leur route sans empechement quelconque, Sans qu'on les force a s'en detourner, ou qu'on les amene aux Ports d'Angletterre, Art. 20. Inter Bona prohibita nequaquam censebuntur haec quae Sequuntur Mercimonia, omnes Scilicet Pannorum Species, omnesque alias manufacturae textae ex quacunque Lana, Lino, Serico, Gosipio, vel alia quacunque materia, omnium Vestium et Indumentorum Genera, una cum Speciebus ex quibus confici solent, aurum et argentum, tarn signatum quam non signatum, Stannum, Ferrum, Plumbum, Cuprum, Orichalcum, Carbones focarij, Triticum etiam & Hordeum, et aliud quodcunque Frumenti, et Leguminis genus, Herba Nicosiana ( vulgo Tobacco,) nee non omne genus Aromatum, Carnes salitae & fumo duratae, Pisces saliti, Caseus et Butyrum, Cerevisiae, Olea, Vina, Sacchara, et omne genus Salis, nee non omnis generatim Annona, quae ad victum hominum, et vitae sustentationem facit, Gossipij porro, Cannabis, Lini, Picis tarn liquidae quam aridae omne genus, Funes, Rudentes, Vela, Linteamen velis nauticis aptum, Anchorae, & Anchorarum partes quae- libet, Mali item navales, ut et asseres, Tabulae, et Trabes ex quibus- cunque arboribus, omniaque alia ad Naves seu construendas seu reficiendas comparata, sed nee aliae quaecunque merces quae Instrument! vel apparatus alicujus pro terrestri, vel maritimo bello formam non acceperunt, pro Contrabandis habebuntur, multo minus quas ad alium quemvis usum jam apparatas & conformatae sunt ; quas omnia plane inter Mercimonia libera censebuntur, juxta ac aliae quaelibet Merces et res, quae in Articulo proxime praecedenti non comprehenduntur, ac specia- tim designantur, ita ut a Subditis utriusque Confcederati liberrime transportari et invehi possint, etiam ad Loca inimica, exceptis duntaxat Oppidis locisve tune temporis obsidione cinctis, circumseptis, vel in- vestitis. (From the original treaty at the Public Record Office.) * Extract from the Treaty of Commerce and Navigation of December 12, 1739, signed at Versailles between France and the Netherlands. 15. Ce transport et ce trafic s'etendront a toutes sortes de mar- chandises, a 1' exception de celles de contrebande. 16. En ce genre de marchandises de contrebande, seront seulement comprises toutes sortes d'armes a feu, et autres assortimens d'icelles, comme canons, mousquets, mortiers, petards, bombes, grenades, sau- cisses, cercles poisses, affuts, fourchettes, bandoulieres, poudre, meches, salpetre, balles, piques, epes, morions, casques, cuirasses, hallebardes, javelines, chevaux, selles de cheval, fourreaux de pistolets, baudriers et autres assortimens servant aux usages de la guerre. 17. Ne seront compris dans ce genre de marchandises de contrebande, les fromens, bles et autres grains, legumes, huiles, vins, sels et generale- ment tout ce qui appartient a la nourriture et sustentation de la vie, mais demeureront libres, comme les autres marchandises et denrees non comprises dans 1'article precedent, et le transport en sera permis, meme aux lieux ennemis desdits Seigneurs Etats-Generaux, excepte aux villes et places assiegees, bloquees ou investies. APPENDIX 9 211 ni qu'on les oblige d'y relacher sous pretexte de Visitte ulte- rieure ou autre de cette nature. Comme ce que je viens de representer a Vostre Excellence de la part du Roy Mon Maitre, est exactement conforme au Droit des Gens et aux Privileges dont les Sujets des Nations Neutres et amies doivent jouir, Sa Majeste s'attend que la Grande Bretagne ne Luy refusera pas une Declaration par ecrit fondee sur des motifs aussy justes, que le sont ceux qui se trouvent detaillez cy dessus ; Et qu'en outre on remediera promtement aux justes plaintes des Sujets de Sa Majeste contre les avanies qui leur ont ete faites par la Marine d'Angle- tterre, en leur procurant une satisfaction equitable pour les pertes, fraix, et dommages que 1'injuste detention ou confisca- tion de leurs Vaisseaux et effets peut leur avoir cause. J'ay 1'honneur d'etre tres respectueusement , etc. MICHELL. a Londres le 28 e Decembre,/8 e Janvier 1747/8. 10 A. ANDRIE TO FREDERICK, MAI 29/juiN 9, 1744 (S. P. For., Foreign Ministers in England, vol. 48 ; enclosed in Michell's letter of March 247 April 4, 1747/8, to Newcastle) Copie de la Depeche de Monsieur Andrie Ministre de Prusse du 29 Mai/9 Juin 1744, au Roi son Maitre. J'ai regu par la Poste d'hier le Rescript de Votre Majeste touchant la liberte de son Pavilion et des Marchandises qui pourroient etre envisagees comme de Contrebande pendant la Guerre presente. Outre ce que J'eus 1'honneur de mander a Votre Majeste par mbn Post Script du 29 du mois dernier sur cette matiere, J'en ai encore parle ce matin a My Lord Carteret sur le pied contenu dans les ordres ci dessus de Votre Majeste, sur quoi ce Secre- taire d'Etat m'a encore reitere et assure au nom du Roi son Maitre que tous les Articles inseres dans les ordres de Votre Majeste, comme Bois et autres materiaux qui servent a la con- struction des Vaisseaux, Cordage, Voiles, Chanvre, Lin, Gaudron ne sont nullement reputes comme Articles de Contrebande; Que tous les Vaisseaux des sujets de Votre Majeste et son Pavilion seroient enactement respectes de la part de 1'Angleterre, et que Ton n'entendoit point les troubler en quoique ce soit dans leur Commerce, pourvu qu'ils ne fussent pas trouves portant des Munitions de guerre aux Ennemis de le Angleterre [sic] speci- fiers dans tous les Traites entre les Puissances Maritimes, ou dc Munitions de bouche dans une place qui pourroit etre assiegee ou bloquee par les Anglois, que dailleurs la Liberte du Com- P 2 212 APPENDIX 10 A merce pour les Puissances Neutres etoit la meme et sur le meme pied qu'en terns de paix, que c'etoit de cette facon qu'il s'etoit explique avec les autres Puissances Neutres Maritimes, comme la Suede et le Dannemarck, et qu'il me le reiteroit encore aujourdhui en priant Votre Majeste d'etre bien per- suadee que 1'Intention de 1'Angleterre ne seroit Jamais de troubler en quoique ce soit le Commerce des sujets de Votre Majeste, qu'il esperoit enfin que comme il n'etoit pas d'usage en Angleterre de donner des Declarations par ecrit dans des Circonstances pareilles a celles-ci a une Puissance Neutre, Votre Majeste seroit satisfaite de celle qu'il venoit de me faire de bouche au nom du Roi son Maitre. Signe, ANDRIE. 10 B. MlCHELL TO NEWCASTLE, MARCH 24/APRIL 4, 1747/8 (5. P. For., Foreign Ministers in England, vol. 48) MILORD Due, J'ay 1'honneur de remettre cy joint a Vostre Excellence Les Cas detaille d'un Vaisseau Charge par un Sujet du Roi de Prusse mon Maitre, qui a ete condamne injustement devant la Cour du Doctors Commons, et dont le Proprietaire a appelle de ce jugement devant la Cour Superieure des Seigneurs Commissaires nommez pour decider en dernier ressort les Causes des Prises. J'ay aussy 1'honneur de joindre icy Copie d'une Declaration que Milord Granville a donnee a Mr. Andrie, de la part de Sa Majeste le Roy de la Grande Bretagne, au commencement de la presente guerre avec la France. C'est en vertu de cette Declaration et du Droit des Gens que les Sujets du Roy mon Maitre ont negocie, et qu'ils se voyent malgre cela interrompus dans leur Commerce et leurs Vaisseaux condamnez. II y a pres de huit mois que la cause de celuy cy est pendante devant le Conseil des Prises, sans qu'on ait pu encore en avoir la justice a laquelle on doit s'attendre ; Ainsy je prie Vostre Excellence de la faire terminer, afin que par la je sois a meme d'informer le Roy mon Maitre, de la realite des asseurances qu'on luy a donne dcpuis si longtems. J'ay 1'honneur d'etre tres respectueusement, Milord Due, De vostre Excellence, Lc tres humble et tres Obeissant Servitcur, MICHELL. Londres, le 24 Mars/4 e Avril 1748. APPENDIX ii 213 ii. INSTRUCTIONS TO LEGGE, FEBRUARY 12, 1747/8 (F. O., King's Letters, vol. 53) GEORGE R. Instructions for Our Trusty & Welbeloved Henry Legge Esq r ., whom We have appointed to repair to the Court of Our good Brother the King of Prussia, with the Character of Our Envoy Extry & Plenipotry. Given at Our Court at S 1 . James's the Twelfth Day of Febry 1747/8 in the Twenty First Year of Our Reign. 1. Upon the Receipt of these Our Instructions, & Our Letters of Credence to the King & Queen of Prussia, & the Queen Mother Our Sister, you are, with all convenient Speed, to repair to Berlin. 2. Being arrived there, you are to demand immediate Audience of the King & Queen of Prussia, & of the Queen Mother, wherein you are to deliver Our said Letters of Cre- dence, & to accompany the same with suitable Compliments in Our Name, & with the strongest Assurances of Our constant Friendship & Regard. 3. In your Audience of the King of Prussia, if it should not be attended with such Ceremonys as may make it, at that Time, improper, you are not to confine your self to the above general Declarations of Our Friendship & Regard towards Him, but to open to Him Our particular Views in charging You with this weighty & important Commission ; But if it should, Our Pleasure then is, that You do desire, as soon as possible, to see the King of Prussia in private, & being accordingly admitted to Him, you will acquaint Him, that from Our sincere Desire of giving Him all possible Proofs of Our true Affection towards Him, We have sent you immedi- ately from Our Presence, fully instructed with Our Sentiments & Dispositions upon the critical & delicate Situation of publick Affairs ; And that as We have nothing more sincerely at heart than to cultivate the most perfect & intimate Union with Him for the reciprocal Advantage of Our Two Royal Familys, & for the general Good of Europe, & That of the Protestant Cause in particular, so We are desirous to enter with Him into the closest Concert of Measures, for the obtain- ing the desireable Ends abovementioned. 4. You shall diligently observe the Motions of that Court. & endeavour to penetrate their real Views & Designs, from Time to Time, for Our Information ; & you shall particularly study the King of Prussia's Genius & Inclinations, & endeavour to make your self as agreable to Him, as possible, 214 APPENDIX ii as well as to those Persons, whom you shall observe to be in His Confidence. 5. Whereas the King of Prussia, by the Ninth Article of the Treaty of Berlin, & by an Act likewise of His Acceptation of Our Guaranty to Him of the Dutchy of Silesia, & County of Glatz, dated at Berlin the 13 th Day of October 1746 ; did promise & engage to repay punctually, & as soon as possible, several Sums of Money advanced by "Our Subjects upon the Silesian Loan ; You will take all proper Occasions of recommending, & insisting in Our Name, with that Prince & His Ministers, upon the due & faithfull Performance of that Engagement, as a Matter, in which the Interests of Our Subjects are .so nearly & essentially concerned, & which, for that Reason, We have most seriously, & extremely, at heart. 6. You shall carefully maintain a good Correspondence with the Ministers of other Princes & States, Our Friends & Allies, residing at the Prussian Court ; & use your best Skill & Endeavours to penetrate into the Councils & Aims of their respective Masters, & the Measures they take, both with respect to their own Affairs, & Those of their Neighbours, & of all you shall be able to discover, You shall send Us a con- stant Account, by One of Our Principal Secretarys of State. 7. Whereas Our Royal Predecessor King Charles the Second, did, by his Order in Council, bearing Date the 26 th Day of August 1668 direct, that his Ambassadors should not, for the future, give the Hand, in their own Houses, to Envoys, in pursuance to what is practised by the Ambassadors of other Princes, & did therefore think it reasonable, that His Envoys should not pretend to be treated differently from the Treat- ment He had directed His Ambassadors to give to the Envoys of other Princes ; We do accordingly, in pursuance of the said Order of Council, hereby direct you, not to insist to have the Hand from any Ambassador, in his own House, who may happen to be in the Court where you reside. 8. You shall countenance & protect Our Subjects trading to the Dominions of the King of Prussia, & endeavour to procure good & speedy Justice, & all reasonable Favour to all such, who have any Suits or Pretensions depending there ; Yet, for Our Honour & your own Credit, }^ou must not engage yourself in every Complaint, that may raise Clamour without a justifiable Cause, or due & legal Proofs ; but only in such as may deserve the Interposition of Our Name for the Relief of Our Subjects, & the Maintaining them in their undoubted Rights & Propertys. 9. Whereas a Representation from Our Com 1 " 8 , of Trade, dated the I st of April 1715. has been laid before Us, proposing APPENDIX ii 215 a Method to be set on foot, for giving regular Accounts of the State of the Commerce of Our Subjects in Foreign Parts, & of the Increase & Decrease of the same, We having approved of the said Proposal, have ordered it to be put into your hands ; And Our Will and Pleasure is, that, pursuant thereto, you do use your best Care & Diligence, that Accounts of Trade be transmitted from time to time, from such Factorys of British Merchants as are settled in any Parts of the King of Prussia's Dominions. 10. You shall correspond with the Ministers, whom We employ in the Courts of Foreign Princes, both for your mutual Information in all Matters, that are transacting, & for assisting each other in such Points, as may be for Our Service in your several Negotiations. 11. At your Return, We shall expect from you a perfect Narrative in Writing, of all Affairs, worthy Our Knowledge, which have happened in the Court, whither you are going to reside, together with your Observations upon the Tempers & Inclinations of the Chief Ministers employed there, the Methods of that King's Government ; His Interests & Alliances ; as likewise all such other Informations, concerning the Nature, State and Strength of those Dominions, as may most contribute to the Use & Service of Us, & Our Kingdoms. 12. You shall, from time to time observe & follow such farther Instructions & Directions, as you shall receive from Us, or One of Our Principal Secretarys of State, with whom you shall likewise constantly correspond, & give an Account of your Proceedings, & of all material Occurrences, which may happen, during the Course of this your Employment abroad. G. R. 12. ADDITIONAL AND SECRET INSTRUCTIONS TO THE SAME (S. P. For., Prussia, vol. 64) GEORGE R. Additional, and Secret Instructions for Our Trusty, and Welbeloved Henry Legge Esq r . ; whom We have appointed to repair to the Court of Our Good Brother, The King of Prussia, with the Character of Our Envoy Extraordinary, & Plenipotentiary. Given at Our Court at St. James's the 12 th Day of February, 1747/8, in the Twenty First Year of Our Reign. That Youmaybe the better enabled to advance the desirable, & salutary Purposes, recommended to You, in the Third Article of Our General Instructions ; You will let The King 216 APPENDIX 12 of Prussia know, That, entirely depending upon the Per- formance of His Engagements towards Us, We are ready, and willing, to renew Our Several Engagements, with regard to Him ; and to contract Such further Alliances with Him as the present Conjuncture of Affairs may render necessary : That We have long seen, with extreme Concern, that any Incidents have hitherto arisen, to obstruct, or weaken, Those Connexions, which the House of Brandenbourg formerly had with the Maritime Powers, & the House of Austria, it's ancient, & natural Allies ; and that France has been able to improve Those Incidents, for the Advancement of it's own particular Views, under the specious, but false Pretext, of securing to The King of Prussia at the General Pacification, the Countries, yielded to Him by the Treaty of Dresden ; As if That Prince could have no other Security given Him for the quiet, & undisturbed Possession of Those Countries, but what was to depend upon the Will, and good Pleasure, of That Crown : That, to shew Him the insidious Artifices of That Court ; and to convince Him, that there are better, & more solid Foundations, upon which to build His Expectations, in that respect ; And how entirely We have His Interest at Heart, in every Point ; We are not only determined to fulfill Our Own Guaranty of Those Possessions ; but to employ Our Endeavours forth- with, to induce the States General likewise to take upon Themselves the same Engagement ; And We will, as We have already done, (Tho', hitherto, without the wish'd for Success,) further exert Our utmost Efforts, at the Court of Vienna, to prevail with the Empress Queen, to perform her Engagements towards The King of Prussia ; and to give Him all the Satis- faction, which He can reasonably expect, for the Security of the Object in question ; And, particularly, to procure the Guaranty of the Empire ; But that, in all Events, We, together with Our Good Friends, & Allies, The States General of the United Provinces, will maintain, & effectually support His Prussian Majesty, against any Power whatever, in the Safe, & quiet Possession of Those Countries which We have already guarantied to Him, by Our Act of the 19 th of Sept r ., 1746, a Copy whereof We have ordered to be delivered to You ; together with That Prince's Act of Acceptation thereof. Having thus given The King, Our Nephew, the strongest, & most authentick Proofs of Our sincere Disposition to cultivate His Friendship, and promote his Interest ; You will demand of Him a like friendly, and unreserved Communica- tion to Us of His Dispositions, and Intentions ; Desiring, at the same Time, to know, whether He will make a Common Cause with Us, and Our Allies, in order to put an End to the Troubles, which have so long unhappily subsisted in Europe. APPENDIX 12 217 And to this End, You will represent to Him, in the most serious, and cordial Manner, the imminent Danger, to which The Republick of the United Provinces is now reduced by the unwarrantable Invasion of It's Dominions, the last Summer, by the French Troops, And Their having possess'd Themselves of Several of It's most important Fortresses ; And that France is now actually meditating to destroy, if possible, the very Existence of That Republick. You will further add to Him, That, as It cannot escape His Penetration, what fatal Consequences must inevitably follow to the Liberties of Europe, and to the whole Protestant Interest, if the House of Bourbon should be able to accomplish this pernicious Design ; So We are persuaded, that He will not be a Spectator only in so great, and important a Crisis ; But That He will cordially join, and cooperate with Us, to stop the further Progress, and Encroachments, of That restless, and ambitious Crown ; And, in Imitation of His Great Grand Father, (who succoured That Republick in a former Extremity,) aim at acquiring the like Glory, of being consider'd, as the Preserver of the Protestant Religion, and the Liberties of Europe. But if, notwithstanding the above Assurances, and the Motives, which We have now directed you to suggest to The King of Prussia, in order to influence his future Conduct ; and the further Consideration of the Danger, to which His own Dominions must be exposed, sooner or later, when France shall have destroyed that Equilibre, which has hitherto check'd, & defeated the Success of it's destructive, but favourite System of universal Monarchy; You shall find That Prince unwilling, and averse to take an active Part in the present War, for the Defence, and Preservation, of the United Pro- vinces ; and for the Security of the other great, & valuable Objects abovementioned ; You will then acquaint Him, That, as We entered into the War upon no other Principle, but the due, and religious Performance of Our Engagements ; and the Defence of the Liberties of Europe against the exorbitant, and insatiable Ambition of France ; So We have been, and are still, desirous to put an End to the Calamities of it, by Our Readiness to receive safe, and honorable Terms of Pacification : And That, accordingly, We make no Doubt, but That The King of Prussia, being thus informed of Our full Intentions for the End abovementioned, will employ His whole Weight, & Credit, with the French Court, not only to deter That Power from attempting any Thing more against the United Provinces ; But to oblige it likewise to think of offering such Terms of Peace, as We, and Our Allies, can accept with Honour. And, if you shall be convinced, That The King of 2i8 APPENDIX 12 Prussia is sincerely, and seriously disposed to enter into Such an amicable Connexion with Us, as is above proposed ; And That, upon manifesting Such his Disposition, by the Answers, and Assurances, which You may receive from Him, in Conse- quence of the Overtures, We have hereby directed You to make ; That Prince should ask You, what Our particular Ideas, & Sentiments are, with regard to the Terms, upon which a General Pacification may be formed ; You will, in That Case, acquaint Him, That We have not yet opened Our Intentions to You thereupon ; But That You believe, (Tho' This You are to mention entirely as from yourself,) That It might be brought about, upon the Foot of a mutual Restitu- tion of Conquests, on all Sides. Upon Your Arrival at the Hague, You are to communicate Your Instructions to The Prince Stadtholder ; and to the Earl of Sandwich, Our Minister Plenipotentiary ; Representing, at the same Time, to the Former the absolute Necessity of pro- curing Instructions to be sent to Mo r . Groensfeldt at Berlin, directing Him to cooperate firmly, & zealously, with You in the Execution of Your Instructions. And you will, particu- larly, insist, That Mo r . Groensfeldt shall be authorized to offer to The King of Prussia, The Guaranty of the Republick for Silesia, and Glatz, in the same Manner, as Great Britain has done, by the Treaty concluded between Us, and The King of Prussia, at Hanover, the ^fth of August, 1745 ; His Prus- sian Majesty giving a reciprocal Guaranty to the Republick. You are to omit no Endeavours to calm, and satisfy any Distrust, which The King of Prussia may have conceived, either in regard to the March, or the Return, of the 30,000 Russians ; by assuring Him, That, in the Conduct of this whole Measure, so great an Attention has been paid to Him ; and the Possibility of giving Him Offence has been so cautiously avoided ; That It has been previously agreed between the Con- tracting Parties, That Those Troops shall, upon no Account, pass over any Part of His Prussian Majesty's Dominions, in their March to Flanders. And You will further add, That, in case an immediate Pacification should prove the happy Consequence of Their Arrival there, The same Precaution shall be taken, and the same Deference shewn to The King of Prussia, in the Manner of Their returning Home again. If The King of Prussia should express any Uneasiness at the Second Treaty, concluded with The Empress of Russia ; You will assure Him, That the View, and Object, of That Treaty is the Same with That concluded the last Year, and then com- municated to His Minister here. G. R. APPENDIX 13 219 13. LEGGE TO NEWCASTLE (British Museum Add. MS. 23829, ff. 116-18) Berlin July ^ 1748. MY LORD, I have great Pleasure in being able to acquaint Your Grace, That, Notwithstanding all the Pains that have been taken here to retain The King of Prussia to the Interest of France, and prevent His Entering into Engagements with Great Britain, He still perseveres in the Sentiments, He pro- fessed at first to me ; of which I have received lately a strong, and fresh Declaration. Before The King left this Place to go to Stetin (of which I acquainted Your Grace in my last Dispatch) He sent for Mo r . Andrie, and commissioned him to speak to me to the fol- lowing Effect ; which, to prevent Confusion, I shall endeavour to relate in his own Words, as reported to Me by Mo r . Andrie. ' Tell Mr. Legge, That He may depend upon it, That I will act sincerely, and confidentially with Him ; That I would see him now, notwithstanding the Shortness of My Stay ; But that Interviews of this Kind cause great Speculation, and can advance Nothing, until He has orders to proceed upon Busi- ness : But if, during My Absence, He receives Orders to enter into Particulars here, or Orders to go to Hanover, I will see Him in private at My Return, and open Myself fully to Him ; And, in the mean while, tell Mr. Legge, He may acquaint His Court, That I am ready to enter into a Defensive Alliance with The Maritime Powers, and Great Britain in particular ; and That I will go as far, towards the Support of the Protestant Cause, and the Defence of the Liberties of Europe, as Any of my Family ever have done. ' France cannot endanger Either, or give Umbrage to The Maritime Powers, but by attacking the German Dominions of The House of Austria, or by Making War in the Low Countries, and Invading The Barrier. I am ready to guaranty Both, as They now stand, in the strongest Manner, The Maritime Powers can desire ; And, tho' the House of Austria, and I, have not personal good Will enough towards Each other, to make an Alliance, immediately with Her, agreable to Me, Yet, If I guaranty Her German Dominions, and engage Myself to make Common Cause, with the Maritime Powers, of Her Defence against France, It is all That She can desire, or that The Maritime Powers can desire in Her Behalf.' This is (as near as I can recollect) the Substance of what Mo r . Andrie delivered to Me, by The King's Command. I must now inform Your Grace, That It is of great Impor- 220 APPENDIX 13 tance, Mons r Klingraff should know Nothing of This Declara- tion ; and the less He knows of The King of Prussia's real Sentiments, except from The King of Prussia Himself, The better. He is a very worthy Man ; but connected with the Minister here, who, I have lately learnt, drew His Instructions. I have not been able to get a Copy of Them ; But I am told, by one, who has seen Them, That They are very extraordinary, to say no worse ; and I know, That, a few Days ago, One of the Ministers, who is most devoted to France, declared, and plumed Himself upon it, That Mo r . Klingraff was not of Opinion, That The King of Prussia ought to throw Himself into the Arms of the King of Great Britain. This is the Cant, They all use, whenever They apprehend, That Their Master designs to quit Those of France ; and consequently That Their Pensions are in Danger. From what I have had the Honor to say to Your Grace, It is natural to suppose, That all which Mo r . Klingraff knows, will soon be known to the Ministers here, who will raise every Obstacle in Their Power to any Union between Great Britain, and Prussia. Hitherto, They know Nothing of The King of Prussia's Intentions, and have very bad ones of Their own. The King Himself is d'esirous to keep Them in Ignorance ; and, for that Purpose, has given me Leave, in all Things of Importance, to come directly to Himself, without any previous Communication to His Ministers ; And I am pretty sure, There is not a Person, to whom He has opened, or will open Himself freely on this Subject, but Mo r . Andrie, and myself. Mo r . Andrie told me, The King of Prussia had mention 'd the March of the Russian Troops, as a Matter, in which He did not think Himself concern'd ; But That His Prussian Majesty, from the Advice He had received, as well as from His own Conjectures, imagined, That Their further March might be with a View to intimidate The House of Bavaria, and The Elector Palatine ; and, by that Means, enable The House of Austria to get the young Arch Duke made King of the Romans. All, I said in answer, was, That I had received no such Intelli- gence ; But whatever the Destination of the Russian Troops was, It could not be governed by the House of Austria, without the Approbation of the Maritime Powers, who paid, and conse- quently would dispose of Them ; And His Prussian Majesty might be sure, They would not dispose of Them in a Manner to give Him any just Cause of Discontent. I hear with great Pleasure, That The King of Prussia's present Complexion is greatly suspected, & disapproved at Paris ; where They talk loudly, & without Management, against Him. It is certain, That Mo r . Valory is to return in APPENDIX 13 221 August next to France, I hope, as a Mark of the French King's Resentment, and not in order to be replaced by an able Minister ; or That if such a one comes, It will be too late to do any Mischief. The King of Prussia, in talking of Mo r . Valory's Return to France, said to one, who told it me, // y aura done un Caporal de mains dans Mes Royaumes ; So that I am in Hopes, any Token of Resentment from France towards His Prussian Majesty, will not be thrown away upon Him : It shall not be my Fault, if it loses its proper Effect. I am &c a . H. LEGGE. [Endorsed] In the D. of Newcastle's Secret Letter of 5/16 July 1748. 14. BEDFORD TO LEGGE (S. P. For., Prussia, vol. 64) Whitehall 24 June 1748. M r . Legge. SIR, I received your favour of the ^| d Inst, and in answer to that part of it which relates to the two Cases of Captures made on the King of Prussia's Subjects, I am to acquaint you, that I have received His Majesty's Orders by M r . Stone, for accelerating Them as much as possible ; But as the Commission signed by His Maty for adding the Judges to the Number of Comm rs . for trying Prize Causes is not yet put in Execution, nor is it certain when it will, as most of the Judges are preparing to go Their Circuits, I can only inform you, that I will, not- withstanding these difficulties forward these Things as soon as possible after the Judges shall be returned from Their Circuits. I am & c . BEDFORD. 15. LEGGE TO BEDFORD (S. P. For., Prussia, vol. 64) Berlin, August 8/19, 1748. MY LORD, Before I had receiv'd the honour of Your Grace's letter of 29 July past, the enclosed extracts of letters relating to the Ship Petit David, were put into my hands, and which I promised should be transmitted to Your Grace. As to Your Grace's Letter I shall make the best use of it towards calming the discontents here, and as far as it is a proof, 222 APPENDIX 15 that Your Grace at least has not left the complaints of His Prussian Majesty's Subjects unattended to, it will certainly have that effect ; tho' the argument it turns upon would not, I am afraid, be much relish'd here. The very Want of those papers for the defense of the Owners titles which is assign 'd to Your Grace by the Court of Admiralty as the sole cause of detaining the Ship, is perhaps the most grievous article of complaint in the whole Transaction. If Your Grace will permit me, I will state the case as it appears to me from the papers I have seen in relation to it. One Privateer meets the Petit David at Sea, rifles her, abuses the Master, and seizes all papers belonging to the Ship. Another Privateer meets her afterwards, takes Ship and Cargo, and carrys her into Leverpoole as good prize. The two Plunderers join together (: upon what motives is too evident :) to prosecute the cause against her, and the one is in a fair way of making good his Claim, because the other has possess'd himself of, and detains in his hands the only means the Ship can possibly have to defeat that Claim. If this should prove to be the case, and no remedy can be had in it, Your Grace plainly sees to what a length Piracy is carried, and that our Privateers would have nothing to do, but by hunting in couples, to make, and in consequence to prove every Ship upon the Ocean alawfull prize. If we should now reproach the Owners with the want of their Papers, I am afraid they would think we added insult to injury. I can't help wishing, for y 8 honour as well as interest of England, and I am sure Your Grace joins cordially in every wish of that sort, that this affair could be thoroughly and speedily examined to the bottom, and strict justice done in it. That if the affair is as represented, those Privateers may be obliged to make ample satisfaction, and not by complicating one fraud within another protract all proceedings, weary and bafle the owners, and perhaps by a series of Knavery at last create a property for themselves, to their own emolument, and the discredit of Great Britain. [Endorsed] R 19, to be laid before the Lords Justices. 16. BEDFORD TO LEGGE (S. P. For., Prussia, vol. 64) Whitehall 26 th August 1748. M r . Legge. SIR, Since I rcc 1 the favour of your Letter of the 8/19 Ins*, inclosing Extracts of Letters relating to the Ship Petit David, I have seen Mo r . Michell the Prussian Secretary, who informs APPENDIX 16 223 me that the Documents & Proofs which have hitherto suspended the Determination of this Cause, are now arrived, so that I shall immediately recommend it to the Judge of the high Court of Admiralty to appoint this the first Cause to be heard after that Court shall sit again, which will be on the 6 th of next Month. I can't conclude without doing Mons r . Michell the Justice to declare he has Sollicited all the Causes recommended to him by his Court, with as much Care & Assiduity as if he had been himself the sole Proprietor of every Ship concerned, nor will I allow the High Court of Admiralty, to be to blame for these Delays, as every Court of Justice ought to proceed according to it's stated Rules & Forms, & Judge from Legal Proofs, & not from the Assertions of either of the Interested Parties. I am &c a . BEDFORD. 17. BEDFORD TO LEGGE (S. P. For., Prussia, vol. 64) Whitehall, 2* Sept r . 1748. SIR, The Day before Yesterday, Mons r . Mitchell, the Prussian Secretary, entered into a Conversation with Me, in relation to the Dedommagement, the King of Prussia expects for Those of His Trading Subjects, whose Effects shall have been con- demned by the different Courts of Admiralty, as legal Prizes, to the Captors, in Derogation of the verbal Declaration, which had been made, at the Breaking out of the War, to Mo r . Andrie, by the Earl of Granville, then Secretary of State, in Conse- quence of which Declaration, (as Mo 1 '. Michell now suggests) His Prussian Majesty had given Directions to His Trading Subjects to carry on their Trade. I, in answer to this, did inform Mo r . Michell, that as this verbal Declaration of the Earl of Granville's had not come to my Knowledge, in any other way, than from the Information, He then gave me of it, by reading over to Me that part of Mo r . Andrie's Letter to His Master, reciting the Conversation, as It had passed, between Him and the Secretary of State, I could give no farther Answer to it, than that It did not appear to me by any Orders I had received from His Majesty, or other authentick Informa- tion, that this Demand of Dedommagement for Prizes legally condemned in the Courts of Admiralty, was any way justly founded, And, moreover, that, untill the several Causes, now depending, should be finally determined, It seemed highly improper to enter into a Discussion of the Dedommagement, which, if It ever should be allowed, (which I thought never would be the Case) could not properly be entered into, 'till the 224 APPENDIX 17 whole Affair of the Prizes, now before the Court of Admiralty, should be finished, when the whole demands might be laid, in one View, before His Majesty. The only thing therefore, I could promise Him, at present, was, that I would endeavour, to the utmost of my Power, to quicken the Court of Admiralty in going thro' with the Causes, now depending before them, in relation to His Prussian Majesty's Subjects. I am, &c a . BEDFORD. [Endorsed] in the Duke of Bedford's of the same Date. 18. LEGGE TO NEWCASTLE (5. P. For., Prussia, vol. 64) Berlin, Sept ber 3/14 1748. MY LORD, I have often had the honour to mention to Your Grace the advantage given to our enemies here, by the unjustifiable conduct of our Privateers, in regard to some of the Prussian Ships, and to find that my Sentiments upon this head agreed with Your Grace's. I beleive in some instances what they have done has fallen little short of downright Piracy. The French party here have been very diligent, in inflaming the Merchants, and forwarding their Complaints to the King, and have at last so far succeeded, that I am told orders will be sent very soon, (: if they are not already gone :) to recall all Prussian Subjects, who have Prize-Causes depending in England. They will be directed to abandon the defense of them, to protest against the capture as piratical, and against the Jurisdiction of the Admiralty Court, and upon their return the King will erect a Commission, to examine into, and make good their respective losses. I have said and done all I could, to prevent things coming to this extremity, but the subject was too good a one to be easily dropt by those who wish ill blood between the two Courts, and tho' there may be real ground of complaint, I look upon this manner of treating it, rather as a Symptom of their temper, than as the result of the evil itself. I am with the greatest respect My Lord Y r Grace's most Obed*. & most humble Serv*. H. LEGGE. [Endorsed] R 17 th . APPENDIX 19 225 19. LEGGE TO NEWCASTLE (S. P. For., Prussia, vol. 64) Berlin, September 17/28, 1748. MY LORD I send Your Grace enclosed a letter I receiv'd yesterday from Count Podewils, containing the copy of a petition from Mess rs . Splitgerber and Daun, to the King of Prussia, in relation to their Ship, which has been taken by an English privateer, and is still detain'd in England. The outrages committed by our privateers, who upon the apprehension of an aproaching peace have degenerated into mere pirates, are I am afraid undeniable, and the delays in point of form necessarily attending a cause before the Admiralty Court, are such as may very possibly wear out the patience of a foreigner ; especially if he thinks his Ship has been unjustly taken (: which I fear is the present case :) and that the damage suffer'd by the Cargo from so long a detention may make him a loser of near half his property, tho' in the end he should carry his cause. In the mean while the expense of wages, victuals, and all charges attending a Ship under these circumstances, which the owners must continue to pay, are certainly very great and very grievous, but, notwithstanding there seems some Grounds of Complaint, in the present Case, It is entirely owing to the Industry of The Ministers here, That It has been carryed so far. Mess*. Splitgerber and Daun, The Petitioners most interested, were so well contented with the Representations I had made, in Their Behalf, at home, and more especially with the Letters I had received from The Duke of Bedford upon that Subject, That, They were determined to wait the Decision of The Court of Admiralty, and not to take any Step that might possibly create ill Blood between The Two Courts. It was, I know, much against Their Will, and at the strong Instigation of The Ministers here, That They were prevailed with to Sign this Address to The King of Prussia ; I therefore told Mons r . Podewills, That I would cer- tainly send his Letter, and The Memorial, to my Court, where I sincerely wished They might have no ill Effect, but That it was very evident The Memorial was drawn for the Sake of the Answer, For, admitting the Case to be, as stated, Nobody could believe That Mess rs . Splitgerber and Daun would prescribe to The King of Prussia in what manner Their Losses should be made good, if They had not been directed to do so : That, as to the Affair of the Silesia Loan, It was so sacred a Fund, so insured by Treaty, and so much The Condition of Every Guaranty His Majesty had given, or, I believed, would give, 1783 Q 226 APPENDIX 19 That, I was astonished They would mention It as Subject to any Charge, tho' but eventual, and in case all other Satisfac- tion was unattainable. As the Silesia Loan has been men- tioned, in a manner, to impeach the Security of it, in some Degree ; tho' very remotely ; Your Grace will pardon me if I take the Liberty to say a Word or two upon that Subject, before I conclude. I do not doubt but sufficient Care will be taken, at Aix, That, in what Shape soever We offer a General Guaranty for Silesia, The Payment of Our Own Debt, as well as of That due to Holland (which, together, Amount to near a Million, Sterling) shall be made a Conditio sine qua Non. It were, likewise, much to be wished, That, a reasonable limitted Time should be fixed for the Payment of Both, at the Expiration of which, all Guaranty should be void, if The Money were not paid ; for, as long as The Obligation remains, in general, without any Specification of Time, The Answers will be as general, always in the Affirmative, when the Payment is sollicited, but, I own, I despair of ever seeing any Effect from Them, 'till Something may be lost by the Non-Execution. [Endorsed] I st Oct r . N. s. [Enclosure] (S. P. For., Prussia, vol. 64) Le Roi ne pouvant qu'etre extremement sensible a ce que les Armateurs Anglois continuent toujours a s'emparer des Vaisseaux de ses Sujets portants son Pavilion et munis de ses Passeports au grand prejudice du Comerce de ses Etats et de ses Sujets, nous a ordonne d'en faire part a Monsieur de Legge Ministre Plenipotentiaire et Envoye Extraordinaire de S. M. Britannique, ce dont nous nous acquittons en lui comuniquant la requete cijointe des Banquiers de Berlin Splitgerber et Daun, qui fait preuve des avanies et insultes insoutenables que les susdits Corsaires Anglois viennent d'exercer tout nouvellement. Nous ne pouvons a cette occasion, que reiterer ce qui a ete si souvent represente en pareilles rencontres a la Cour de Sa Majeste Britannique, en priant Monsieur 1'Envoye de vouloir bien s'employer efficacement, pour faire obtenir aux Sujets de Sa Majeste une decision prompte et juste sur les cas de cette nature, et la cessation entiere des Pirateries. Quant a ce qui est arrive aux susdits Banquiers Splitgerber et Daun, Sa Majeste demande pour eux, non seulement que les frais, dommages et interets leur soi'ent rembourses, mais encore que les Armateurs Anglois qui ont commis cette insulte, en so'ient severement punis, faute de quoi le Roi se verra a la APPENDIX 19 227 fin oblige de faire juger les plaintes de ses Sujets dans ce cas cy et d'autres de cette nature par ses propres Tribuneaux de justice, et de faire remettre aux susdits Banquiers, ce qui leur reviendra avec justice du dedommagement qu'ils ont a pre- tendre des pertes qu'on leur fait essayer si injustement en le rabbattant des somes hypothequees sur la Silesie. Mais nous nous flattens que Monsieur 1'Envoye ne manquera pas d'en faire un fidele rapport a Sa Cour, et qu'il voudra bien employer ses bonnes Offices pour qu'on rende bonne et prompte justice aux Sujets du Roi et qu'on chatie exemplairement les Auteurs des pareilles depredations. Berlin, ce 23 Sept 6 1748. H C. PODEWILS. A Monsieur de Legge Ministre Plenipotentiaire et Envoye Extraordinaire de S. M. le Roi d'Angleterre. [Endorsed] In M r . Legge's of Sep r . 17/28 1748. Copie (S. P. For., Prussia, vol. 64) Notre Vaisseau David le Jeune charge de Vin et d'eau de Vie sur notre compte et a nos risques, conduit par le Capitaine Michel Bugdahl et muni des Passeports, que Votre Majeste nous a tres gracieusement accordes, ai'ant mis a la Voile a Bourdeaux le 5. Mai pour Diinkerque, a rencontre le 7. du meme mois un Capre Anglois qui est venu a son bord pour examiner les Papiers de Mer de Bugdahl, en tachant de 1'en- gager par de bonnes paroles et par la promesse de lui donner double fret et 200 livres Sterl : a lui declarer que sa Cargaison appartenoit a des Sujets de France. Mais le dit Bugdahl naiant pu avancer une chose, qui n'etoit pas, le Capre 1'a fort mal traite en le blessant a la main et en lui enlevant ses habits, livres et Cartes de Mer avec 12 jusqu'a 15. Oxhoff de Vin. Le jour apres le meme Vaisseau rencontra deux autres Capres Anglois dont 1'un etoit de Londres et 1'autre de Leverpole. Le premier vint en Chalouppe au bord du Vaisseau de Bugdahl en lui demandant ses papiers de Mer, et en 1'obligeant d'aller avec lui sur son Vaisseau, et d'y passer toute la Nuit. Le lende- main 1'autre Capre de Leverpole vint aussi au bord du Vaisseau de Bugdahl demander ses papiers de Mer, et comme il apprit que le Capre de Londres les tenoit deja, il envoya une Cha- louppe pour les chercher. Mais il y eut un si grand orage, qu'elle fut renversee en retournant, et que les homes perirent et les papiers de mer furent perdus. La dessus le Capre de Londres mis a la voile et celui de Leverpole mena notre Vaisseau et sa Cargaison a Leverpole. On y examina fort Q2 228 APPENDIX 19 Bugdahl et son pilote, sans cependant faire attention, a ce qu'ils denoncerent pour soutenir le fait tel, qu'il etoit, et en ne remarquant que ce que le capre de Leverpole pretexta pour excuser son injuste procede, de sorte qu'il a ete impossible jusqu'ici d'obtenir justice de 1'Amiraute et la liberte du Vaisseau et de ses marchandises, malgre toutes les cautions, que Bugdahl s'est engage de fournir touchant le rembourse- ment des domages et depens : En general les juges de 1'Ami- raute ne cherchent qu'a justifier les Capres, en imaginant non seulement de pretexte pour ne jamais faire payer aux Capres les domages et interets mais encore en adjugeant le rem- boursement de leur pretendus depens par les Vaisseaux in- justement pris et remis enfin en liberte. Par dessus tout cela la mechancete des Capres, qui ne sauroient souffrir, que les etrangers se melent d'un si innocent negoce, fait durer les Proces, faits sur ce sujet un terns infini, ce qui cause souvent la mine entiere des Vaisseaux et de ses marchandises, et en fait monter les fraix a une somme enorme, comme cela est prouve par une infinite d'exemples. Ainsi pour ne pas nous exposer au meme traitement, et que pourtant cet accident arrive a notre vaisseau en plein Mer, par les susdits Capres ne peut etre en aucune fa$on autorise par 1'Amiraute, et ne sauroit etre regarde que comme un brigandage exerce centre un vaisseau portant le Pavilion de Votre Majeste, nous osons implorer sa puissante Protection en la suppliant d'ordonner a son Secretaire d'Ambassade Michel a Londres de faire la decla- ration suivante au Due de Bedfort et par tout ou il conviendra que si nous avons sollicites aupres du juge de l'Amiraute la liberte de notre Vaisseau et le pavement des domages et interets, ce n'a ete que par les egards que nous avons pour l'Amiraute et sans vouloir nous susciter un Proces avec les susdits Capres, ne les regardant que comme des Brigands qui ne respectent ni Loix ni Souverain. Et en cas que la Cour Britannique veuille bien permettre centre toute equite et centre les assurances meme qu'elle a donne du contraire au Secretaire Michel, que les Vaisseaux des sujets des Puissances neutres comme ceux de Votre Majeste, portants Son Pavilion, et munis de ses Passeports, et charges encore des Marchandises neutres appartenantes a ses Sujets, soient attaques et pilles et declares ensuite de bonne prise par l'Amiraute, nous ne pouvons qu'a- bandonner Vaisseau et Cargaison au Pouvoir des Armateurs, en suppliant Votre Majeste tres humblement de nous per- mettre de nous dedomager de cette perte qui monteroit a 10000 Livr: Sterl: sur les effets Anglois, qui se trouvent dans les Pa'is de Votre Majeste et particulierement sur les Capiteaux hypotheques sur la Silesie. [Endorsed] In M r . Legge's of Sept r . 17/28 1748. APPENDIX 20 229 20. BEDFORD TO LEGGE (S. P. For., Prussia, vol. 64) Mr. Legge. Whitehall, 27^ Sept^. 1748. SIR, I herewith send you an Extract of a Letter of the 19 : instant from Si r Henry Penrice, in answer to a Letter wrote to him by my Direction, by which you will see, that the first Voyage made by the Prussian Ship, the Little David, was from Stettin to Port 1'Orient, with Ship Timber for the French East India Company, that two other Voyages have been made by her since, one to Bourdeaux, with Goods and Merchandizes in freight on Account of French Merchants ; the other for Dunkirk with french Goods, as is likewise said in freight on Account of French Subjects, in which last she was taken by the English Privateers. You will make the best Use you can at your Court of what appears from the Extract of Sir Henry Penrice 's said Letter, and assure His Prussian Maty, that no unnecessary Delay has been given in determining the Cause in question, and that in this, as well as in other Cases that may concern his Subjects, the Courts here will proceed with all the Dispatch, consistent with such Rules as are necessary to be observed to get at a true State of the several Cases, which never can be known without the Informa- tions of both the Parties concerned, and unless such Informations be fairly and impartially considered, it will be impossible to determine these Matters according to Justice and Equity. I am &c a . BEDFORD. 21. LEGGE TO BEDFORD (S. P. For., Prussia, vol. 64) Berlin, Oct r . 12/23, I 748- MY LORD, I have receiv'd the honour of Your Grace's Letter of the 27 th of last Month containing an extract of a Letter from S r . Henry Penrice in relation to the Ship Petit David, by which the Case appears to be very different from the representations made of it by the Proprietors. The loud complaints made here of the unjust detention of this Ship have all gone upon the foundation of these two Suppositions strongly asserted ; Viz. That as there was nothing Contraband on board (Contraband by the Law of Nations) the Ship was not liable to Confiscation, and that as the Cargo was the absolute Property of Prussian Subjects, both Ship and Cargo are exempt from forfeiture. As to the first point, I don't find that actually at the time 230 APPENDIX 21 the Ship was taken she had any thing Contraband on board, and I suppose no retrospect can be had in the case which should make her liable to forfeiture in consideration of any former Lading. But if the Ship had been taken in her first Voyage from Stetin to Port L'Orient, with Timber on board so far converted and determin'd to the use of Shipbuilding that it* might have been deem'd Munition of War, in that case it is very probable the Law of Nations would have judged both Ship and Cargo to be lawfull Prize. As to the second point relating to the Property of the Cargo. This is a Fact the dis- cussion of which must depend upon legal proof and evidence on both sides. If the Cargo is prov'd to be the Property of French Merchants, I believe there is no doubt of its being lawfull Prize, tho' the Carrying of an Enemy's goods would induce no forfeiture of the Ship or of such other part of the Cargo as did not fall under this description. And this doc- trine the Prussians themselves seem to be appris'd of and to admit, by resting their whole defence upon the denial of all French Property in the Cargo. I shall reserve the Contents of Your Grace's & S r . Henry Penrice's Letter to be made use of as occasion shall offer ; and as I have not receiv'd an Answer yet to the last Memorial which I transmitted from hence in relation to the Petit David, I believe it will be better to leave the matter untouch'd till I receive His Majesty's further Commands upon this Subject. In the meanwhile I will endeavour to get the best information I can as to the Sense of the Law of Nations upon the merits of the question, that in case it should be disputed upon that footing, I may not want materials to maintain the Cause with. I am with the greatest Respect My Lord Y r Grace's Most Obedient & most humble Serv*. [Endorsed] R 24. H. LEGGE. 22. BEDFORD TO LEGGE (S. P. For. Prussia, vol. 64) M r . Legge. Whitehall, u/22 th October, 1748. SIR, I had Yesterday Morning a very long and copious Con- versation with M. Michel, in relation to the Orders he has lately received from His Prussian Majesty to make the strongest Remonstrances here, as well against the Captures that have been made on his trading Subjects by English Privateers, as also by the affected Delays (as His Prussian Majesty is pleased APPENDIX 22 231 to call them,) of the High Court of Admiralty, in redressing the Grievances complained of. I am very well apprized that M. Michel has only executed the Orders he has received from His Master to repeat these Complaints, which have been exaggerated at the Court of Berlin much farther than in Justice they ought to have been, and I am persuaded M. Michel will do me the Justice to say that these Delays com- plained of, have neither been owing to any Neglect of mine, nor to any Failure of Justice in the Court of Admiralty. You will see by the Copies of the Letters that have passed between my Secretaries & the Judge of that Court, which I herewith inclose to you, the several Steps I have taken in order to bring the Affair of the Bankers Splitbergen and Daun (which has been so strongly recommended to me by you) to a Conclusion, which must have been long ago decided, had not the Judge been obliged to put off the Meeting of the Court, on Account of a violent Fit of the Gout he was attacked with at his House in the Country. That is now over, and the Court of Admiralty begin their Sessions on the 16: instant, so that in a very short time I hope that Affair will be concluded. I must now inform you, Sir, of some farther Particulars which passed in our Conversation, and which I apprehend it is necessary to inform you of, as in all probability you will hear some Mention of it at Berlin. The inclosed Copy of a Dispatch from M. Andrie to His Prussian Majesty dated from London May 29: 1744, & containing the Precis of a Conversation between that Minister and the Earl of Granville, then Secretary of State for the Northern Department, will inform you sufficiently upon what Grounds that Prince thinks himself entitled to demand a Dedommagement for his Subjects, whose Effects have been seized and since condemned in the Court of Admiralty, in Derogation to that verbal Declaration of the then Secretary of State. In Answer to this I replied to M. Michel, that I was entirely ignorant of any such verbal Declaration having passed between the Earl of Granville and M. Andrie, having never heard any Mention made of it, 'till he some Time ago informed me of it himself, and having never seen a Copy of it 'till this he now delivered to me. That it was impossible for me, 'till I had received His Majesty's Orders, to give him any positive Answer concerning this Demand, as the verbal Declaration upon which the Right of this Dedommagement was founded, is said to have been given before I had the Honour of being in His Majesty's Service, and of which I must consequently be unacquainted. That however I did imagine there must neces- sarily have been some Mistake in M. Andrie's reporting this Conversation to his Master, as I did not apprehend the Judge of the Court of Admiralty could possibly take any Cognizance 232 APPENDIX 22 in his Court of such a verbal Declaration, even though it had been transmitted to him by the Secretary of State, (which I could not find to have been the Case,) but that he would have been obliged to have conformed himself to the Law of Nations, which is the only Rule that Court has to guide themselves by, except with relation to those Powers, between whom and this Country there are Marine Treaties subsisting, which is not the Case with the King of Prussia. As I had not received any Orders from His Majesty what Language it might be proper to hold upon this Subject, I chose to wave entering farther into the Discussion of it with M. Michel, & I trouble you with this Account only to put you upon your Guard, in Case His Prussian Majesty or his Ministers, should hold the like Discourse to you at Berlin. I believe it is unnecessary to recommend to you, to suggest in Answer to any Complaints that may be made to you of illegal Captures by Privateers, and of affected Delays of the Court of Admiralty, that the greatest Care imaginable be taken to ascertain the Complaints before they are sent over hither, and not permit them to be exaggerated, which can only tend to create a Dis- union between y e two Courts, & not be of any Advantage to the parties injured, I do not pretend to disculpate the Pro- ceedings of our Privateers, I believe in many Cases they have been highly blameable, but I can venture to affirm on the other Hand, that Complaints are too easily received at the Court of Berlin, upon the bare Allegations of those Merchants, who have carried on during the War an illicit Trade, and have lent their Names to cover the Effects of his Majesty's Enemies from being seized by his Ships of War and Privateers. The latter Part of my Conversation with M. Michel, turned upon the same Subject as Count Podewils Pro Memoria delivered to you did, Viz*., That if His Prussian Majesty found no Redress for his injured Subjects upon these Representations, he should find himself obliged to indemnify them out of the Silesia Loan. My Answer to this was, that I was excessively surprized to hear His Prussian Majesty had any Thoughts of this Nature, as I thought I could venture to take upon Me to assure him, (tho' I had received no particular Orders thereupon from His Majesty,) that the King would always look upon the King of Prussia's fulfilling his Engagements to his Subjects upon the Silesia Loan, as the Condition upon which that Dutchy was guaranteed by His Majesty to the King of Prussia, which Condition, if it was once violated, would of Course annull the Guaranty. I am &c a . BEDFORD. [Endorsed] under flying Seal to the Duke of Newcastle. APPENDIX 23 233 23. LEGGE TO BEDFORD (5. P. For., Prussia, vol. 64) Berlin, Get** 2 8/Nov^ 8, 1748. MY LORD, The Letter I wrote to Your Grace of October 12/23 is in part an answer to that which I have since had the honour to receive from You of Oct br . n past, containing extracts of letters from your Secretaries to Sir Henry Penrice, with his answers, and extracts of letters from Mons r . Andrie to the King of Prussia. The affair of the Prussian captures has certainly been exaggerated here ; great pains have been taken to convince the King, that the decisions have been affectedly delay 'd, on purpose to distress his Subjects, as such, and discourage them from engaging in commerce. Accidental impediments have furnish'd some ground for this language, which perhaps too is the better heard, as it carries along with it a kind of tacit flattery, by supposing that the commerce of Prussia is worth the attention of Great Britain, and even capable of giving her Jealousy. As idle a Supposition as this is, I beleive it has had its weight ; but the business is to disappoint (if possible) the views of those here, who I don't doubt are well pay'd for cultivating enmity between the two Courts, and finish this affair without detracting from the honour or interest of Great Britain ; And I beleive Your Grace will be of opinion, that it imports both as much not to do an injury, as not to suffer an insult. No pretension can in my poor opinion be more destitute of real foundation, or contain a doctrine less to be admitted by His Majesty, than that of No Search upon the authority of a declaration from a Minister of State. Such a declaration can never have the force of a Treaty of Commerce, much less of an act of Parliament, and as Your Grace observes, is such as the Judge of the Admiralty Court can take no cognoisance of whatsoever. * And yet it is not surprizing that a foreign Minister should think himself authorized to such a Declaration, he is not supposed to enter into the Nature of the English Constitution, and must take it for granted that the Declaration of the Secretary of State is conformable to Law, and contains no more than can be, and will be made good, for if the contrary is supposed, there is an End of all the Confidence, and conse- quently of all Intercourse between His Majesty's Ministers, and Those of Foreign Powers. I am afraid if we were to plead at any foreign Court the Insufficiency (according to the Laws * From this point the letter is written in cipher. 234 APPENDIX 23 of England) of a Declaration made by the Secretary of State, the Answer would be, that it is Matter of domestick Considera- tion for Ourselves, and that if they have been led into an Error by a Declaration, which had no Validity, the Person who made it ought to pay the Damage, and not those who have acted upon it. I have read Monsieur Andrie's Letter very attentively, and if the Conversation he reports is fairly stated, it is evident that the Subjects of the King of Prussia are put upon the same Foot with the Dutch by our Treaty of Sixteen Hundred and Seventy four. It is asserted here, that the same Assurances were repeated afterwards both by Lord Harrington, and My Lord Chesterfield, and as one Precedent goes farther than many Assertions, they quote an Instance of our having already paid upon a former Occasion, Eight Hundred Pounds, to indemnify a Prussian Merchant for Timber seized on Board a Dutch Ship, bound from Stettin to Port 1'Orient, and appeal to your own Justice for equal Treatment in similar Cases.* But I beleive the question of what is or is not contraband by good luck does not enter into any of the causes now depending. I have talk'd the matter fully over with Count Podewils, who seems convinced, that they must not expect any other measure than that of the law of nations. All he contends for, is, that the property at present in litigation is absolutely and bona fide the property of Prussian Subjects : Not denying but that if any part of it can be proved to belong to the French, it is justly subject to forfeiture. At the same time he affirms, that tho' the French had made large offers to such as would undertake to trans- port the Merchandizes of France, the strictest orders had been given to all the Merchants, not to engage in this commerce, and that he himself told the King of Prussia, if they did, they must expect to have the whole seiz'd and confiscated. That our Privateers have been guilty of illegal practices, I am strongly of opinion with Your Grace, and I own there does seem to me to be one case in which an equitable Claim to some compensation would lye ; and that is this : When Ships loaden with perishable commodities have been taken and detain'd many months before the cause is heard, to the great detriment of the Cargo, if in the end the sentence shall be against the Captor, it seems to be a hard case, that the person thus injur'd shall lose half the value of his Cargo into the bargain, and after paying wages to his Ships Company, and all charges incident to the Ship, and the Law Suit, be half ruin'd, tho' he gains his cause. And yet this will be the case if he has no damages granted to him by the Court for a false capture, nor any satisfaction from the Publick. This equity seems to extend to the whole, or any part of the Cargo * The cipher ends here. APPENDIX 23 235 which shall be found not contraband, nor the property of His Majesty's enemies. If any temperament of this kind should be approved by His Majesty, particular care must be taken to have it fully express'd and understood, upon what footing the compensa- tion is given, that it may never be pleaded hereafter as an acknowledgement of the King of Prussia's right to an uninter- rupted, un visited commerce with the enemies of Great Britain. I heartily wish this troublesome affair were brought to some issue, and have been thus prolix (: for which I ask pardon :) in communicating the sense of people here, as well as my own poor sentiments upon it, that no materials may be wanting for those to judge upon, who will be able to form a much wiser determination upon the whole than I can pretend to suggest. * I have made the Declaration in relation to the Silesia Loan, according to His Majesty's Commands, and the Opinion of Their Excellencies the Lords Justices, in the strongest Terms I was able, and believe not without Effect. Yesterday Monsieur Podewils told me that Orders were sent to Monsieur Michel, to declare His Prussian Majesty's Intention of fulfilling the Engagement of the Silesia Loan with the utmost Punc- tuality, but that His Prussian Majesty flattered himself on the other Hand, some Equity would be shewn in compensating the unjust Losses of his Subjects. This is a manifest Altera- tion for the better of the Language, which has been hitherto talked upon this Part of the Subject. I am with the greatest respect My Lord Your Grace's Most obedient & Most humble Serv* [Endorsed] R loth. H. LEGGE. M r . Legge. SIR, 24. NEWCASTLE TO LEGGE (5. P. For., Prussia, vol. 64) Hanover. October 16/27, I send you an Extract of a Letter, that I wrote to The Duke of Bedford, upon the extraordinary Memorial, deliver'd to You by Mo r . Podewiltz and transmitted in your Letter, of the 17/28 Sept r . I send You also, at the same Time, Extracts of the Letters, which I have receiv'd from The Duke of Bed- ford ; and of the Minutes of Their Ex cies , The Lords Justices : And It is His Majesty's Pleasure, That You should acquaint * From this point to the end is in cipher. 236 APPENDIX 24 Monsieur* Podewiltz, with what The Duke of Bedford says, relating to the Delay, in giving Satisfaction, upon the Prussian Complaints, which, undoubtedly, His Grace will have fully explain 'd to Monsieur Michel : And You will then, according to the humble Opinion of Their Excellencies, The Lords Justices, acquaint Monsieur Podewiltz, ' That His M*y' B Guaranty of Silesia given to the King of Prussia entirely depends upon His Prussian Mty' 8 fulfilling the Engagements He is under; to His Majty with regard to the Silesia Loan ; & must be so understood, after the Renewal of it, in the Definitive Treaty.' I am &c a , HOLLES NEWCASTLE. [Endorsed] $ Post. (5. P. For., Prussia, vol. 64) Extract of The Minutes of Their Excellencies The Lords Justices, of Thursday, 6 th October 1748. Present. Lord Archbishop of Canterbury. Duke of Bedford. Lord Privy Seal. Mr. Pelham. Duke of Richmond. Read a Letter from The Duke of Newcastle to The Duke of Bedford, acquainting His Grace, That M r . Legge had trans- mitted to him a Copy of a Letter from M. Podewiltz, with The Petition of Two Prussian Merchants, concerning Their Ship taken by an English Privateer ; Intimating, That, if Justice be not done, His Prussian Majesty will indemnify His Subjects of This, and other, Losses sustained from English Privateers, by stopping so much from The Silesia Loan. Recommended to His Grace The Duke of Bedford to acquaint The Duke of Newcastle, That no Delay has been given but what was unavoidable, either from The Parties not having been ready for a Hearing or from The Indisposition of the Judge, without which The Cause had been determined before This ; and further, That Their Excellencies agree in Opinion with His Grace, That it may be advisable That His Majesty's Ministers at Berlin, and at Aix, should be directed to declare to The Prussian Ministers at both Those Places, That His Majesty's Guaranty of Silesia, given to The King of Prussia, entirely depends upon His Prussian Majesty's fulfilling The Engagements he is under to His Majesty, with Regard to The Silesia Loan, and must be so understood after The Renewal of it in The Definitive Treaty. APPENDIX 25 237 25. LEGGE TO NEWCASTLE (S. P. For., Prussia, vol. 64) Berlin, Nov. 1/12, 1748. MY LORD, In consequence of the Declaration I made here, by His Majesty's Commands, and in conformity to the Opinion of their Excellencies the Lords Justices, upon the Subject of the Silesia Loan, I have receiv'd a message from the King of Prussia by Count Podweils, to the following Effect. That His Prussian Majesty was fully determin'd to execute his engagements with regard to the Silesia Loan, with the utmost exactness ; that he had sent orders to Mons r Michel to make the same Declaration in England, & had commis- sion 'd him (Count Podweils) to make it to me. On the other hand His Prussian Majesty flattered himself that in regard to Justice, as well as consistently with the sentiments of Friendship, His Majesty had express'd towards him, care wou'd be taken, to indemnify such of his Merchants, as had neither carry'd any thing Contraband, nor lent their names to Cover the Property of the French, for the Expences they had made, and the losses they had suffer'd, in their Cargoes by so long a Detention in England ; That His Prussian Majesty was the better authoriz'd to expect this, as he had receiv'd the most positive assurances that the Trade of his Subjects shou'd not be molested, provided they dealt in nothing Contra- band, and as he had already tasted of His Majesty's Justice in the reparation of 800, that was given to one of his Mer- chants upon a Cargo, which was seiz'd and afterwards acquitted as not being found Contraband. To this, Count Podweils added from himself, that the Strictest Orders had been given by the King, to all the Mer- chants, not to deal in any Merchandizes on account of the French, tho' the French had offer'd them great rewards to transport their goods from Port to Port, and that if any part of the Commodities now in Controversy, were prov'd to belong to French Merchants, it was not expected, they shou'd be restor'd ; All the King his Master desir'd was, that Reparation shou'd be made, where it was evident, Injury had been done. * This Language is so very different from That, contain 'd in the Memorial ; and from That which was held here, before the Signing of the Definitive Treaty ; That I am in great Hopes, This troublesome Affair may soon be brought to an amicable Conclusion. That I might not be mistaken in the Message I desired Monsieur Podeweils to repeat it, at different * The remainder of this extract is in cipher. 238 APPENDIX 25 Periods of Time ; and always observed, That It consisted of the Same Words ; Viz*, That the King of Prussia flatter'd Himself with the Hopes of Satisfaction for His Subjects. I am with the greatest Respect My Lord Your Grace's Most Obedient & most humble Serv* H. LEGGE. [Endorsed] R: 4/15. 26. BEDFORD TO LEGGE (S. P. For., Prussia, vol. 64) Whitehall, i5th Novemb r , 1748. M r . Legge. SIR, As I see by your Letter of Nov r 1/12 that His Prussian Maty cites (as a Precedent of the Right his Ships detained here have of an Indemnification) the Reparation of 800 that was given to one of his Merchants upon a Cargo which was brought to England some time ago, & afterwards released, I have enquired into the State of that Fact, & find it so different, from what, I am persuaded, it has been represented to the King of Prussia, that I would lose no Time in informing you of the Truth of it ; As I sincerely wish you may be able to remove (before you leave Berlin) every Suspicion that Prince may entertain, of His Subjects being denied any favour or Protection in this Country, w ch can possibly be granted them, consistent with our Laws and Constitution. The Case was as follows. About Two years ago (in Conse- quence of Orders which had been given to the Captains of Men of War, to bring to England all Ships of all Neutral Powers whatsoever which they should find laden w th Naval Stores, & that not with a View of confiscating, but of buying their Effects at as high a Price as they could possibly be sold for elsewhere ;) The Heerlykeyt Kuyndert (which must cer- tainly be the Ship alluded to) was brought hither amongst others. Orders were accordingly given by the Board of Admiralty for buying her & a Summ fixed on for that purpose with the Owners ; when upon examining more strictly into the Matter, the Ship turned out to be Dutch, and the Lading Prussian, and consequently there was no going on with the purchase, without flying in the face of that Act of Parliament which prohibits all foreign Ships from importing into England, the Produce of any other Country than their own. APPENDIX 26 239 However as no Right of Seizure was proved, or attempted to be proved, it was but just to indemnifie the Master for his Demurrage, Damages &c. and therefore 766 was assigned him for that purpose, with the Consent & Approbation of all Parties. This Sir is the State of the Case of the Ship now quoted as a Precedent for the Treatment of all Prussian Ships in general which have been taken by His Majesty's Ships or Privateers during the late War ; You plainly see this Ship never was intended to be confiscated but purchased, nor was it released in Consequence of any Declaration of a Secretary of State, but in conformity to established Laws, to Acts of Parliament, and consequently can never be looked upon as a paralel Case with the Little David. You will not fail to take the first oportunity of representing this Affair in it's true Light to The King of Prussia, & I own I have too great an Opinion of His Prussian Majesty's Equity as well as of His Policy, to think that for a trifling Summ (and that not liquidated) he would run the least Risk of endangering The King's Guarantee to him of Silesia & Glatz. I am &c. BEDFORD. 27. KLINGGRAFF, PROPOSITION, SEPTEMBER i, 1749 (5. P. For., Foreign Ministers in England, vol. 48) Proposition Le Roy de Prusse bonifiera aux Proprietaires les gros In- terests de 7 p r C* jusqu'au Mois de Juillet de cette Annee 1749. ces Interests seront tous payes de la maniere suivante : Les Proprietaires toucheront d'abord Trois Annees, autant au Mois de Janvier prochain 1750 et Trois autres Annees au Mois de Juillet prochain 1750 ; De Sorte que les 9 Annees d'lnter- rets qu'ils ont a pretendre seroient tous Acquittes dans le Cours d'une Annee Mais Le Roy se flatte qu'en Consideration d'une proposition si profitable pour les Interresses, ils seront asses equitables pour donner sans perte de terns les mains a une autre, qui n'est pas moins juste ; C'est de faire une Nouvelle Convention a Commencer du 10 Juillet de la presente Annee 1749 : (pour laquelle le Ministre Plenipotentiaire de S. M. Prussienne est muni d'un Plein pouvoir :) portant. Que le Capital soit mis a un Interet raisonnable et coutumier aux Fonds Publics en Angleterre Savoir a Trois et demy p C* lesquels seront non seulement payes exactement aux Termes a Specifier dans la Nouvelle Convention mais encore le Capital a ceux qui y seront pareillement specifies de fa?on que le 240 APPENDIX 27 Capital et les Interrets seront entierement acquites au Mois de Juillet 1753 Messieurs Les Proprietaires trouveront d'autant moins de difficult e de se preter a cette Convention, que la diminution des Interrets, qui semble dabord se presenter, se dissipera bientot, s'ils veulent Considerer, qu'en touchant dans le Cours d'une seule Annee Neuf Annees d'Interrets a 7 p. C*. chaque Proprietaire se formera par la un Nouveau Capital asses considerable pour le placer a Interret, Outre 1'avantage que chaqu'un y trouve de voir des Arrangements Solides par lesquels toutte cette Affaire sera menee a une heureuse fin en peu de terns. Fait a Londres ce I Septembre 1749. JOACHIM GUILLEAUME KLINGGRAFF. 28. KLINGGRAFF, ECLAIRCISSEMENTS, OCTOBER 25, 1749 (S. P. For., Foreign Ministers in England, vol. 48) Eclaircissements sur la Proposition que S: M: le Roy de Prusse a fait faire aux Proprietaires des Dettes hypothequees Sur la Silesie. Dans la proposition du Roy, S: M: n'a nullement intention par une nouvelle Convention de Changer la nature de Son Obligation fondee sur les Traittez ; Le Plein-Pouvoir porte bien positivement que les Traittez en seroyent la Base, et que cette Convention n'est proprement qu'un Arrangement Solide pour remplir Ses Engagements en fort peu de terns, puisque Capital et Interets seroyent tous payez au Mois de Juillet 1753. Rien ne prouve mieux combien S: M: veut satisfaire les Pro- prietaires que les arrangements Solides qu'elle a pris pour payer les Interets de 9 annes a 7 pour cent entre cy et huit mois, et de payer tout le Capital en trois termes, Ses Finances a la sortie d'une Guerre ne luy ayant pas permis de le faire plustot : Ce n'est uniquement qu'en cette consideration et sur ces arrangements profitables pour les Proprietaires que la Proposition de reduire 1'Interet a 3. et demy pour cent a etc faite, on seroit meme alle a 4. pour Cent, Si quelques uns des Directeurs avoyent voulu faire 1'honneur de Communiquer la reponse de leur Assembler a L'Envoye du Roy, comme II avoit lieu de S'y attendre. Au reste la proposition a ete fort goutee de plusieurs Personnes qui sont considerablement Interessee dans ce Fond, et qui viennent souvent temoigner leur mecontentement sur 1'opiniatrete de quelques Personnes, qui ont empeche le succes d'une si bonne affaire, car la surete au lieu d'etre changee se trouve beaucoup mieux etablie pour les Proprietaires. A Londres ce 25 e 8 bre 1749. KLINGGRAFFE. APPENDIX 28 241 (5. P. For., Foreign Ministers in England, vol. 48) Translated. Detail in what manner the English Debts shall be paid, after the Interest to the io th July 1749 is paid with 7 $ Cent and the Rest agreed at 3^ $ Cent. Capital. Interest. The Whole. i The Whole Capital has been . 9 Years Interest at 7 $ C*. from 1740 to 1749 the io th July 250,000 I ^7.^00 407. soo Reduced 700 Bonds, Amount in Cap 1 & Inf 44.IOO 114,100 Remains to be paid the io th July 1749 . . The Int*. for the 9 Years is . i 13,400 of these shall be paid now for 3 Years . . 37,800 for 3 Years the io th Jan. 1749/50 . . . 37,800 for 3 Years the io th July, 1750 . . . 37,800 180,000 113,400 113,400 293,400 Remains Capital Inf. at 3 $ C*. from 1749 to 1750 the io th July 180,000 1 80,000 Ditto . from 1750 to 1751 D. 6,300 Becomes due July 1.751 . 1751 July shall be paid 40 fi C'. Capital & 2 Years Inf. ..... 180,000 72,000 12,600 12,600 192,600 84,600 Remains July 1751 Int*. at 3^ $ C l . from 1751 to 1752 July . 108,000 ' 3,780 108,000 Becomes due in July 1752 1752 July shall be paid 45 $ C'. Capital & One Years Int'. .... 108,000 81,000 3,780 3,780 111,780 84,780 Remains July 1752 "Int*. at 3 $ C*. from 1752 to 1753 July . 27,000 945 27,000 27,000 945 27,945 1753 July shall be paid 15 $ C 1 . Capital & all the Int' 27,000 945 27,945 Terms of all the payments propos'd. July 1749 now ready . 37, 800 Jan r . 1749/50 to be paid 37,800 July 1750 D . 37,800 July 1751 Capital & Inf. 84,600 July 1752 D D . 84,780 July 1753 D D . 27,945 all Ballanc'd 310,725 242 APPENDIX 29 29. PROPRIETORS TO NEWCASTLE, NOVEMBER i, 1749 (S. P. For., Foreign Ministers in England, vol. 48) To his Grace the Duke of Newcastle May it please your Grace The Proprietors of the Silesia Loan are obliged to apply to your Grace on Account of the inclosed Proposal which was made to a Meeting of Proprietors Summoned by Publick Notice for y fc purpose. The said Proprietors are fully sensible of his Majestys Pro- tection & Care of his Subjects Interest therein & beg he will cause the proper instances to his Prussian Majesty for paying the Principal & Interest thereof to be repeated in such manner as He shall judge fitting For after full Deliberation the Pro- prietors were of Opinion they ought not to Deviate from ye Agreem* subsists. If Contracts if Bonds if Treaties if Guaranties are any Evidence of just demands the Proprietors are furnished there- with and they conceive his Prussian Majesty must have been misinformed by some Persons unacquainted with the conse- quences of want of Punctuality in Payments. For the Lenders cannot suppose (if it had been so explained to his Prussian Majesty) that a Proposal for abating from them about 17,000 Sterling could be an Object equal to the Evil of a Voluntary neglect of Paym*. The Proprietors have had as strong Assurances as Words can give that there is actually in England Money sufficient and ready to pay 3 Years Interest & this was pressed as an induce- ment to a New Agreement it was even Urged as the strongest Argument for a New Agreement ' if not when will you have this 3 Years Interest now Offered '. The Lenders have too much respect to his Prussian Majesty to impute the Sugges- tion before mentioned in any thing but the indiscretion & ungrounded Fears of some of the Lenders. And Your Grace is requested to insist upon the making Paymant of s (1 3 Years Interest & that the remainder be not delayed. Your Grace will at once see there is no Proposal to pay off the Interest due & so much of the Principal as shall not be Voluntarily continued at a certain Interest for the future, which is the only way we know in England of reducing Interest on Loans. Beside the Proprietors must observe that the whole Principal & Interest thereon ought to have been paid off at several Terms the last whereof expired the io th January 1745 And do insist that from the io th January 1745 both the Principal and Interest thereon ought in reason to bear Interest For the Very Proposal Setts forth the Hardship which the APPENDIX 29 243 Lenders suffer by such an Arrear of Interest as now exceeds 63 $ Cent. It shews they have not hitherto been paid as they ought and the Redress proposed is that they shall have for the future but \ what is payable by the Present Agreement. It cannot be supposed this matter was laid in its true light before a Prince of so much Penetration as his Prussian Majesty He woud readily see the Unfittness of such a Proposal among Equals much more from a Prince of his Dignity. He would see that tho' his Power may compell Lenders to Compound & Lose some part of their Right tho' his Rank place Him beyond their Resentment if He refuse to pay any part of their Right yet Acts of Power so misapplied would hurt Himself. [Endorsed] The Answer to the Prussian Minister's proposal. R Nov. i. 1749. 30. HOLDERNESSE TO ALBEMARLE (S. P. For., France, vol. 242) Very Secret. Whitehall Dec 1 ' 12 th 1751. Earl of Albemarle. MY LORD, The Prussian Secretary Mons r Michel, waited on the Duke of Newcastle Yesterday, &, by Order of the King His Master, declared ; ' That the King of Prussia's trading Subjects not having had Justice done Them in England, upon several Com- plaints, which had been made, of Losses sustained, at Sea ; His Prussian Majesty had appointed a Court of Justice, within His own Dominions, to settle, & determine these Cases, & upon their Decision, would detain so much of the Silesian Loan, due to the Subjects of Great Britain, as might Suffice, to answer the Claims of the Prussians, for the Losses, they have sustained by His Majesty's Ships of War, Privateers, &c.' The Duke of Newcastle, Surprized at so extraordinary a Declaration, desired, that Mons r Michel would give It, to Him in Writing, which He declined, as exceeding His orders, but offered to write to His Court, for leave to do so. I have the King's Permission to send Your Ex c y, in the greatest Confidence, an Account of what has passed Hitherto upon this Subject ; No Notice will be taken of It, till it is known, what Effect, the Letters, which Mons r Michel has undertaken to write, will have upon His Prussian Majesty ; & If that Prince should ultimately persist, in defalking any Part of the Debt, due upon the Silesian Loan, there can be no doubt, but that, His Majesty's Guaranty of Silesia, will be entirely Null & Void ; As the Satisfaction of the Sums raised R2 244 APPENDIX 30 for the Security of that Dutchy, was an Express Condition, of It. Your Exy will easily perceive, that this Affair is of a Nature, that requires the Utmost Secrecy, until some final Resolution, shall be taken upon It. I am, &c HOLDERNESSE. 31. CONVERSATION BETWEEN NEWCASTLE AND MICHELL (S. P. For., Foreign Ministers in England, vol. 48) Newcastle House March II th 1752. The Duke of Newcastle deliver'd, this Day, by the Kings Order, to Monsieur Michel, the Prussian Secretary, His Majesty's Answer, in Writing, to the Application, made, by Mo r Michel, relating to the Embden Company. The Duke of Newcastle, then, acquainted Mo r Michael, that the King, having heard Nothing further of the King of Prussia's Intention to apply the Residue of the Money, due to the Creditors on the Silesia Loan, for the Satisfaction of Such of His Subjects, Whose Causes should be determin'd, by Such Persons, as His Prussian Majesty should appoint, to have been wrongfully decided, by the Court of Admiralty, and Court of Appeal here ; His Majesty was persuaded, that the King of Prussia, upon further Consideration, had, Himself, seen the Impropriety, and Irregularity, of such a Proceeding : But that, if contrary to Expectation, Mo r . Michel's former Declaration should be put in Execution, His Majesty could not help looking upon that Treaty as null, and void, When His Prussian Majesty had thought proper to break an essential Condition of it, which was to have been perform'd by Him. Mo r Michel replied, That He had represented this Affair, in that Light, to the King, His Master; Seem'd to admit the Reason of it ; And that Nothing had been done, in the Case of the King of Prussia's Subjects, but What was the Rule, with regard to all other Foreign Powers ; And to think, that We should hear no more of this Affair. He also told me, that He had acquainted His Court, that Nothing irregular had been done, with regard to the British Subjects, Who had been demanded by the Captain of one of His Majesty's Ships in the Downes. [Endorsed] Account of what pass'd between The Duke of Newcastle, & Mons r Michel, on Wednesday, II th March. 1752. APPENDIX 32 245 32. REPLY GIVEN TO MICHELL AS REPORTED IN His DIS- PATCH OF MARCH 24 1752 (THE DATE is PROBABLY MARCH u, 1752) (S. P. For., Foreign Ministers in England, vol. 48) Projet de Reponse a faire au Sieur Michel. Autant que J'ai pu comprehendre ce que Le Sieur Michel m'a declare des Ordres du Roy son maitre, relatifs aux Vais- seaux de Ses Sujets pris pendant la derniere Guerre, et con- damnes par des Arrets de la Haute Cour d'Amiraute ; il se reduit a ceci : ' Que S. M. Prussienne, ne reconnoissant pas La Jurisdiction de Ladite Cour, s'attendoit, que Ses Sujets fussent dedom- mages des Pertes qu'ils avoient faites par La Prise de Leurs Vaisseaux ; Et que si on continuoit a refuser ce Dedom- magemt : 1'Intention de Sa Majeste etoit, d'etablir une Commission pour examiner Les Pretensions de Ses Sujets a cet egard, et pour fixer juridiquement La Valeur de Leurs Pertes ; et de la defalquer ensuite sur ce qui reste a payer des Dettes de la Silesie.' Ayant fait Raport au Roy de cette Declaration ; Sa Majeste m'a ordonne d'y donner la Reponse Suivante ; et, afin d'eviter tout mal entendu, m'a permis de la donner par ecrit. Que Les Arrets dont on se plaint ont ete prononces par une Cour Souveraine etablie de toute Antiquite, et qui a toujours decide des Causes de cette Nature : Que Sa Jurisdiction avoit ete reconnue par toutes les Nations de 1'Europe, sans avoir jamais ete revoque en doute ; et qu'elle ne pouvoit etre dis- putee avec La moindre ombre de Raison ni de Justice, Que La Commission a etablir par Sa Majeste Prussienne, & 1'Intention de s'attribuer une Jurisdiction, qui appartient incontestable- ment a un autre Etat Souverain, est une Innovation inouie, et a laquelle on ne pouvoit se soumettre : Que Le Defalque- ment dont il s'agit, seroit 1 une Nouveaute aussi inouie que 1'autre : Que Les Dettes de la Silesie sont fondees sur un Article Expres tant des Preliminaires de Breslau, que du Traite de Berlin de , dont Le Roy est Garant, et Le Seul Article de ces Traites qui interesse immediatement La Grande Bretagne : Qu'en divertissant telle partie que ce soit des Sommes promises par cest Article a d'autres usages quelconques qu'a la Satisfaction des Creanciers, on violeroit manifestement Les Susdits Traites ; Et que dans ce Cas la, Le Roy se tiendroit ipso facto pour degage de toute obligation par raport a la Garantie que Sa Majeste en a donnee. 1 ' seroit ' is written above ' est ' in original. 246 APPENDIX 33 33. ' SENTENCE ' OF THE PRUSSIAN COMMISSION, JUILLET 1752 (S. P. For., Foreign Ministers in England, vol. 48) Sentence. Le Roi Nous aiant forme en Commission, par Ordre du 7 e Decembre 1751 Nous y charge, De recevoir les Plaintes de Tous Ses Sujets, qui ont souffert des Pertes et Dommages, durant la derniere Guerre, par les Depredations de La Marine Angloise ; de Les examiner exactement, et a fond, selon les Loix du Droit des Gens, et les Us, et Coutumes, de Mer, etablies entre Les Souverains ; d'exiger d'Eux la Preuve de Leur Dommage precis ; de rechercher Leur Pretensions a toute Rigueur, et avec la plus parfaite Impartiality ; d'en former un Quantum liquide, dont Nous puissions repondre devant Dieu. et tout 1'Univers ; et d'en dresser, unanimement, une Sen- tence, avec nos Raisons de decider. Conforment au quel Ordre, Nous estimons que selon le Droit des Gens, universellement rec^i, et les Us, et Coutumes de Mer, etablies entre Les Etats Souverains, par plusieurs, Traite's ; imo Les Armateurs Anglois n'etoient point en Droit de saisir, en pleine Mer, Les Vaisseaux Prussiens, ou les autres Vaisseaux Neutres, sur lesquels ne se trouvoit point de Con- trabande, soit qu'ils fissent Voile a des Ports ennemis de la dite Nation, soit qu'ils en revinssent, d'en faire Capture, ou de Les detenir dans Leurs Ports, ni en general, ni sous Pretexte que la Charge, ou Partie d'icelle, en appartenoit aux Ennemis d'Angleterre. 2 do . Que les Marchandises reputees de Contrabande, pen- dant la Guerre se trouvent succinctement determinees dans les Traites de Navigation, et dans la Declaration formelle, faite par Le Ministere Anglois au Sieur Andrie, Envoye du Roi, et que sous cette Denomination, ne sauroient etre comprises, ni les Marchandises libres, et permises, appartenants aux Enne- mis, ni, en general, les Bois, le Seigle, et autres Effets, qui ne sont point Munitions de Guerre. 3 tio . Que Les Tribunaux Anglois ont visiblement agi centre tout Droit, quand Us ont declare confiscables de sembla- bles Marchandises, qui n'etoient nullement de Contrabande, et qu'enfin, 4*. Leurs Decisions, et leurs Procedures, ne peuvent, ni au Cas present, ni en general, entre Deux Puissances Souveraines constituer aucun Droit, ou aucun Prejuge. Que, par consequent, il compete a tous Les Sujets Prussiens, un Dedommagement de toutes les Pertes, qu'ils ont souffertes, APPENDIX 33 247 soit par 1'injuste Capture, et Detention, des Vaisseaux Prus- siens, tant pour Le Vaisseau luimeme, que pour la Cargaison, soit pour les Marchandises chargees sur d'autres Vaisseaux Neutres, qui ont ete pareillement pris, et detenus ; soit pour les Marchandises, qui Leur ont ete confisquees, et qui etoient chargees, ou sur des Vaisseaux Prussiens, ou sur d'autres Vaisseaux Neutres ; Soit, enfin, pour les injustes Depens, et Longueur, des Procedures, qui ont ete oblige d'essuyer par devant Les Tribunaux Anglois. En consequence des Principes, ci-dessus poses, et qui se trouvent detailles plus au long, dans une Deduction particuliere, Nous avons examine, avec Exactitude, les Pretensions de Tous les Sujets Prussiens, qui se sont presenter par devant Nous, verifie, avec toute la Precision requise, les Preuves, par Eux rapport ees, les Dommages a Eux causes, et n 'avons rien laisse passer de ce qui ne pouvoit se justifier, selon ces Prin- cipes re5us ; n'aiant, de plus, rien supplie d'Office hors les Interets, qui s'en suivent par une consequence naturelle, que les Choses, qui paroissoient clairement des Documents produits aux Actes. Tout vu, et considere, Nous concluons conforment a Notre Serment, qu'il compete, et doit etre alloue, soit en Capital, soit en Interets, jusqu'au dern : Dec. 1751. sauf les Interets ulterieurs, jusqu'au Jour du Payement, aux Sujets Prussiens ci-dessus nommes, les Sommes portees d'autre part, dans les 66 Sentences de Liquidation ci-jointe, & qui sont cottees selon les Numero des liasses particulieres d'Actes de la Commission, auxquelles Sentences, comme ici se trouve a droite la Somme liquidee par les Plaignans. [Endorsed] Sentence. With Mo r Michel's Memorial of Novem ber 22 d 1752. APPENDIX 33 1 ! I 8 O O ^- "^ N *O * o\ o\ o ",' M M Si? IxN O QOONOO Tj- tx tx ro tx * HI VO N O 10 M f g" B\ * C$ HI N 1O ,Q O HI HI vo tx *ovo Os HI vo tx ^" HI ^-00 M 01 O HI tx HI CJ O Os fOOO tx HI Tj- M VO O ^ J*; G\ HI Ht d HI CO s^ l-l l-t VO N f5 HI \n O M M HI 3 vo vo ^ ON O\ HI fo fo ^o HI -^- cj tx t-i MO CO 1 *Vg O tx txVO OO T}*OO tx O VO OO VO M-vo'S o tC M >J fO txVO Tt*HI T^-Q\M ^T^fHI IO Ci CJ Tt" HH tO T^-VO ^J" tx 10 " O HI ON CO HI HI tx be rt JH ,^?^^ aj^l^^'S 1 . . I ! jlfjl ii^i- ke et Bingel de ow de Stettin e Stettin 'S f'l^O.SooDO.-ifHO -S-^^fe.b^og^^ ifSt^ii^ o -S? S'o s? sf M-S^ T3 ^i >1 - l rtrtM O ^ SW So Iiil II |S^ (J *T* rH O "*-* 2 %* ^^ N O O H"( ^^ Sj M \3 l-< jW -rH fi OT *+H s 'g : Joccc-g a rt m o d CO H>0 > u) pq PM ,_) g j ,_) H^Ao w3o# tJ M N co ^- x^iVO txOO O\ O HI N ro rf ioVO txoo ^ ^fcA^ ^i 1 f- f5N OO\O\HiON M i ^ CON f^ 00 tx 0*1 ^"5 O O f *"l ^^00 O 1 Tf txfO HI 10 N M HI HI HI HI C^ CS HI l-l *** x ^ e O f*l HI M Tf O Ch M -^"00 HI txVO tX HI 10 1000 O tx 00 Sj4 "^H O txO ^VO O\ ^^ O H* Q\ VTi UO O\ ^" ^ vo tx f> rf ON c\ R t q\ M_ ly^ O^ \O Tj* Tj" Tj* tX ^OVO O ^"*O M5VO tx O\OO vq | vo'oo ro ci tx fi 10 -O'-'^C>NooN VD O fO>^>00 O vo"-)N O\\O *? P* aj -i - H a fl g -rt MtS en IfS c_4) T3 d WSQ'r nl o: r in-i> >> d9S' c ' '^oCiiU SS^ O M NO OO rf O\ C3\ VO ro VO "- 1 "^ -^"00 OS M CO O ^00 CO Tf-00 1-1 N 1-1 M M 'O O\ ro N t-xOO O O O "- 1 O VO I-" VO . co O i vo co co o" M" 00 w 250 APPENDIX 33 '> fi-S 8 VO O vo vo O\ ^" 'fr O ^" Hl tx fxVO vo > "^00 OOO'- | OO\"^ f ^'ON tnV VO *O N -^- ON tx>O 'O ro vn tx -^- O\ t^x "^00 lxCO Tf w MN Ncotx * 'f Tj-M OOO tx Tf 00 V> OVO ^O O \O M I- M CO , bo J8 CO bO M bo cu ,.344 is. co 3' -3-2 Is O >" txoo' o\ o" N to < H cOforoM-Tj-Tj-'" * vo (x O i- 1 voVO txOO voVO j-TJ-Tj-vovovovovo voVO VO o" vb" c I-H oo x * i 1-1 ON co O VO CO M 00 M ts. tx. CO rf>O tx O O\ O O tx M O\ w -^- M Tt O\ COOO co M N OO ^ M M H N M- o\ CO N APPENDIX 33 251 Et par les Raisons alleguees dans chacune des Sentences de Liquidation ci-dessous, Nous avons renvoye les plaignans de Leurs Pretensions portees d'autre part. Soit parce qu'ils n'ont pu prouver que Leur Dommage eut ete cause par des Armateurs Anglois ; Soit parcequ'ils avoient charge leurs Marchandises sur Vaisseaux ennemis ; Soit parce que le Dom mage Leur avoit ete cause par l'Arm6e Angloise, qui etoit sur le Rhin, de quoi il n'est point question ici ; Soit parce qu'ils n'ont rapporte aucunes Pieces justificatives de Leurs Pre- tensions dans tout le Terns, qui a dure la Commission. Liquidants deboutis Joachim Nettelbeck de Polberg. Michel Blanck de Polberg. Gerd Dircks d'Ostfrise. Jean Remmers d'Ostfrise. Jede Jocken Lotting d'Ostfrise. Zythema et Compagnie d'Ostfrise. Jean Lutke de Stettin. Chretien Schmid de Stettin. Martin Sperke de Colberg. Nicolas Saeve de Colberg. Moll de Hagen, dans la Comte de Marck. Feldershoff de Cleve. Godefroi Suer de Stettin. Frederick Buske de Stettin. a Berlin, le i er de Juillet 1752. de Fiirst. Behmer Kuhn. Somme HquidSe 96 i 30. IOI O 31. 2,100 4 6. 302 4 8. 157 12 49. 337 52. 198 2 S3- 35 17 54- 60 59- 63 20 60. 338 7 61. 240 62. 63 20 9 63- 82 8 64. SllT A T7C T C O The summations on pp. 248-250, which are copied from the Prussian original, appear to be incorrect in some instances. The names on those pages do not always agree with those on pp. 252-261 ; they are given, in both cases, as in the original printed copies furnished by Prussia. 252 APPENDIX 34 M w I I CO n "5\ (M TJ- X 3 P > < *? w c/) 5 c s H 3 P s * fc ^ 2 | O "^ M PH t I O w PL, co Tf ro c' s K |.g B rt 43 5 8.8 3*g c "K.^ rH JT" l-l 2 G W5 '~ l 43 Jj n -M O G &* Q n find en 4) en 0) T3 +- C C en 323-8 J2! ^i ^ 5* ^1 ~ s^ ^^ ^ i: Ifwa ^4 c&- de S-S s . gc. .s :O ^3 rt -*-> H > . .43 n eu I 00 .00 I t/) I ^tH ' A*" " Pk - So '43 03 CO 43 'I Q Q t; o {3-43 W -g a s -5 PQ -; j2-2>- ^3 ^ - tn t^ g co t%, 'C "- 1 -r-l'lH M I p . p I 5 - 43 CO Q 43 sa 43 < Q S 6 c c l'S|^H ^ HI Cu -^J q~] 3 Cti riH H^ ^ ^ Culj /K?H- 43 J hJ .s : -S I-J s o cS fl ' APPENDIX 34 253 it it i i i i i id)' Tj'l ^'l $ -o"! -S'l ;i s a > -0 fi cX 4> ,fj I >iS fl gc jO w bo ^",0 4>L3' Q 4))' Q - S oir "^iS 0)5*3* 4)4) SS) > tuO^ bOo8 bO S S "0*0 W t O O rt) H .^ ^ '"' fl '"' Z2 ""* '^ _*j .,IH 4) I!A tn^n-S fe 02 2 C 4>-p! = !4>-|->S s _,!H "*< .H >r! .2^2 bOO SbD fl:O t >.l-i : O'^>tH : O4 O k> "TT *-* _-"5 *tj rj- J N ^'S 4) . 4) . fl -u . 4) ... ^ O 4) 4) ^--2 Jj ^^--co^tn 110 ^ 1^4^ tx^cn -^ oo .2 ,_:; M g t/5 *4) cn ^^^^ to j-( en txfeH ^ ^^ ^ fN en txtn en txM en VH -** "r^ '^ "C "^ ^^ *tn '^ u " l 'i-! *"* ^H 'H *"* U"* *"* 'G ^^ ^H *C *"* ^^ 'in ^ 00 p[ p t P| Pj P| p ( P| a ., s s a S 3> -2 fi ^x^ ,DX &^ 4>!u ty!3 en 3 ii .. en 3 . = n o S " S 1 * S Q ^S w ^ : O OOrtOf~IOj_, Wpn 4>PQ4)PQ4)PQ 4) 4>P^ 4>[i| Q Q Q Q Q Q Q S*PQ 4)4J^4)OO[dl i 4) bC 1 ! 4) O C/5 I > 4) O O o J i-i J J J P.-PCH v-i' T-i MO -i-< end -CD *-i 00 ON o 4)(5O43 254 APPENDIX 34 838 pi s c^ e 13 "O -0-3 ':?'> 3 '%'& 3 co C rt en a ct a '-S f? . Pn t/3 55 W PC, O w - en co *** 'S-'S^ 3 3 3 ** 1/5 <& W bo jltl 8 3-3-a o 5 8 fcgfc-S gg r3 IH rs CD bc'C W CO 4) O ?5 VM co ^3 en v-i r; <-> G O C ^ ^ to o w o g o -^ a c .s T3 *-. '^H *_i_l 1: . 3o| & sla^lpl fti'C tU 43 4-> W) g :O P h4 < t)2> 2d2 " -? JS Sill -B Q. p. fit, s s-g o S o fl 42 U5 oO Q Q Q ,g boi'o .i ** o O - M o O bc'-f3 cu 1-1 1-1 cd cuO O 0) O T3 >o-2 8 -S APPENDIX 35 255 FL. to d) D W ^ o; x T & -o W s - crt . C/) : C/) O" 1 v s * o 6 * g =0 & c en hi * S ^'52? "> ?>li ^3 Sa'^l ^ a ;?! ... < o a "5 *. R 5 s- M M ri o oJ O 3 "3 .i a> o. Palmier & de Berli pa -a. a ^ d rt v- 5 $ v& s.sg 3*2 1 oO 6 H-) d'C c c IsS T; K rt O wOO h-1 S o * -So Q.2'8 tic -d a & CO 256 APPENDIX 35 o 2 Pour e toiles Pour d continued) ms des sujets ssiens, qui en t souffert du ommage. | Nom russ ont d 1 S^SlpffJsSS'SiSjS ^ a ^ 3 .9 Si-'3a l/1 x5'^h5 h - 1 8 ;o-3.S:~M~Q 1, ill! Pn , IN ! H to 3 a> d, 05 *Jn *S O IH cd "* to tn rt f^> -4-> O ^. "^j ~o i 1^ Co "2 o3 c3 3 o & & aj O ^2 G ^ ^ (DO y^ Jn^CJ^ j t-5 APPENDIX 35 257 o -p -o 14 * S S 'o :=! -t-> 1-1 . i-i o* -4-> 'O O -t-J a O 43 T) OT _1J 1 -(-< 'S 6 4-> -a O 4-> 'S O -(-> -4 T3 1 _g 3 O 3 13 o a o -^3 -~ 3 O 3 O s 1 3 O O S O 3 O s o UJ_ * M N ^t s o ro 5 vn V> t-x -^ > ^(L, > ^S^^ "T3 VU ,V) r^ I rj IH "ti 1-rrH O >1r!n *- rG jj ^3 G rC VX! -> II ca O Q rt CDO Q tn -M C 03 /-\ O u .-a % .S3 c c r- ri Q ni c3 rri <"'? rt o 3 9 S .5 r K <1 p/N h> cu w _ P-l t> gp 3 i .2 o ^ O rt _, ^3 i rQ O co g - g CD .,5 fl 2 i ? $ s^ ^"^ ^-"i HH s's -id O 'o 'o -d -oi -d ^2 11 ill 5 ^K Q l-i >-< 3 3 O O 00 00 o 0) 3 3-3 3 S O O ,5 O O a-d s ^ CM CM IH IH 3 3 CM CM ^ CM CM p ^ 3 c^y ^ 3 3 3 S^ 3 ^ ft 38 00 I O a ^ 'o^ Jl tuO V-< **r $% cy^ g d8 B-S ; (continued) Noms des suje Prussians, qui ont souffert dt dommage. (i) La Veuve & de Godefroi G fey de Hirsi berg (2) Christophle Cuentz 2^4 Z'K f bo* O g " O EP ?' S 3 ^Jrt-Sj ^J^-S LjpQl-H^rQ l*jl-fi^ SaJT3go d ~ -K) DH 5 2 3 3 J-* t" 1 P . "x "3 3 3 S ^ !3 03 03 ^J (f) "Qi Qi s? ^3 g i) fl 00 S _^ 4-> . 4J g W """^ "i N -O o>J 2 'd *"$ H ^ s -^ 4> fl) * ^^i '"""' fs* 00 *-H QQ 05 , < j- x c/) *~~* tx oo ^^ t\ oo ^ co .00 W 1^ * oo S;J t/5 tX^ U) f^^H .en ^|| .00 ^ ^" O oo i ,~-i n M s ^ CM CM CM CM CM X -03 tij * ^ Q rQ 'd 3 G 3 "fi 3 ^ ti^2 ^ a E ^ 1 ^ O o3 O rt O > 3 1^ oJ X t1 ^ a a O ^< ^ ^"^ ^5 h^ t _ M C ^^ ^^ " o3 nj 03 CO ^^ ,O Q P Q p P Q Q , dS +TI S..- en S w o""* O 1 ^^ O 3 fl rt o S ^ 6 [_, *J to"' O o o o u ^ I > 1-1 rt > s ~^ 4> Cfi ^ pQ '^ tt)OPQ o)OcO ID O O PH (^ ^) i * ^ ^ ] j CO _ " h- t 1 " vn CO to C3 tUDJIj " tJO r^ *" o ^ rt ^ ^^ -fig o S *" ~.y ^ H Pt ^ S 2^ s'fi C.5.0J % Q g-S g 1 .S'St 13 _^ O h-^ O g" G rD <*H ^ |S ^PQ^^l o -p f_, jj ^ (_) ^^^-,-MC/^ ^Uffi ^ f > !^ vJ h-1 r_i ^ ^ 1 2 i ' ^ 00 Ol d w N O ^ ^ t 1 HH -< ^ APPENDIX 35 259 fta? &u o. 3 .- 3 S 1 W . I . I!|!! 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Roben Crousewal Le Culledon, Cap Abraham Boxe! 2 Ij d _o d o O,d di o o o 2 rL ^ dg-iag 4) i -^ "o O ss C d +J ^ 1> II-s oj a T3 IH o O 4) ^2 . 4) c'H ^ d bo !H I'llll bo-S ^o '""" ~" -*-> ri C_) .ij ej H )^ j i hjH p rt /? -l-H ^^r^ d -H w coOU d > dO^ d'^W d^^ .^ i >PMO d H-) H-l ^ ^ tJ J S 2 260 APPENDIX 35 ' 48 *> hC V ^} 3 O *** ft -- 1 o 6 bo 45 03 -dpq 3 ft S 2 .S ;C HH '> *sS 4j" oT O5 .^ _4) 45 45 '3 ^ I'll % 9 .g a-S 4! T3 05 45 45 45 -Q T3 > 3 _bp O^o ."3 " * ^ > s o T) ^3 . 3 "o rt ^^ , -!i- PH P^*" 1 li ^ ^D J2. -SI- p^ 42 3 ~o i3 _a :6 ^ 05 bO o -S -S-S 'S 45 'ti ~' w ^ CJ TH HH 'S HH aj OT J2 bo S !S ff'S ^s o S "S 45 .05 w $ 1-s T3 ^ $ a 3 PH w bo O5 V-i 3 45 IH O5 3 bo i'a ! Q^2 " *'-^4 (-1 IH 45 O5 t> S_g b bo^ be O to == C rt o H H42 rf P* O *l ts ^ 3 ") sS ^ , S CO ^ ^^ ^2 ^ -2- s ' M-) in O5 M ^j ^ rH rr- O5 M 1} 'C |H IH ^ rt in ' S rt 3 *S 3 9 2 3 *S 3 ^" . ^S CH C ^ G < s ^5 p3 "^^fw Si 45 ^ 45 45 45 CJ 45 2^--s >o -o O -"o ^;g M S -u ON-45 ^3 ^ ^ t* ^i 45 45 .I _OT t^ IH ^^ ^ .05 tx g O5 tx^H 'C "- 1 S 0- PM PH PH " PH '03 -03 tfl -rt 'Gj -oJ s X _45 X ^ ^ X ^ ^* " 3 < 3 ^^ 3 3 3 -^ ,; S bo ^ f d W rt ri Cut ? to"~- s , 'O 3 n I 3 *X3 ^ 'O T3 3 t3 3 tj 3 fi 3 o &> 05 o.Sf S'N O -i-> 1 l-i o | o'ls w | 3 1 P- 1 : PQ ^ i W ^ 2 offi 45 ffi 45 M 45 Q 45K Q Q Q Q Q Q , 'g ,_-- d 2" 2"S LJ ti 45 _r /-> A^ 03 o 05 a| i o 'ft (3.1 ." 45 ni ^ & .g t *j i . <0 1 "> oi cq 1 Noms Vaisseaux Capital le Hambo le Rosier, Pierre Cl S.3 ^| CA) 05 ^3 -o 'S 2?% 45 O -C 45 bCCO O J to ^ ^ 1^3 1 6 C 1 >~p ~~ (o j Illll s ^J 00 APPENDIX 35 261 o ^ O r O rt IH C CJ >i HH Xl 3 "cJ* , 13 T3 tn IH IH (J 3 3 3 -r< O O O > PH PM PM Pour du vin. .S a T? '3 ^ > O S-S 3 7 'O rj T) 13 ti Oi HI IH 3 CJ 3 3 O-H O O PH PH PH Pour des fils d chevre & des Ai chois. O W} N .'S -*-> 2 HM O B p | *dJ CJ CJ IH a bO ,j fe bofc o .;; rn C X> rt . CJ " T; en X> !H B 4J bo f> i2 CO W ^ La Veuve Schro- der de Stettin pq | CJ IH CQ IH ,D m XI Oi IH "U Hi HI CJ _ CJ _ cj bo C bo B S C -"S rt .ti rt a UP UQ PH CO CO CJ N IH CJ *s '3 en ^en " 1" I 8 ^ ~~* t^-.iS ~" t^.rt -t- 1 ^0^0 'C ^3 'C M S - C ^ PH PH PH Prisle4Mai 1748. detenu 5 Mois -t- 1 O +J OO C HM ?3 3 S^3 " hH> ^ g "-H ^ *C ^ f " 1 ^ H4 '^ ^H ri * ' ^H Hi * ' ^1 PM " PH ^ ro HI CJ CJ 00 en PM " 'C^ 'H3 'CCj X XX oi 'Oi 'rt 'Oi X bo bo -rt 3 33 3 b S oi NO rt oi bo CJ ff CJ CJ !_ ft S EP o g o ^ bO (L) VH 13 3 'O T3 3 'O ^ r^ rrt f^ O3 P 3^ 3^ 3,8 OQ o cj o "a pq c pq ^3 pQ c CJ If l-s Ig i| rt CJ PH CJ H-] CJ PH CJ XI O K CJ PP CJ PH O PH P P P P P P P P B 6 a" 6 .ti a iilj d^ o b S "H o rt o oi Q, < 3^ oi X o! X SO i T3 ^3 13 ^5 rt Cjo cj o S ^ ! (U c^ ^ " t_J 3 -M -pq 8 s P_J U ^ rl ^ n ^ C P p" ^ rQ I* fl '^ Cj < U Oi a "^'8 a a g ^ oi T3 rt ^^ A fi C 1 ^ oi rt .2 3 IH 3 HI PH & rt OX3 OX3 " ^o f^'O ^ rt y c3 ravener OW ^ UM ^ JH 60 << < ' 13 th , 1753. Colonel Yorke. Private. SIR. You will receive, by my other Letter, The Answer to The Prussian Memorial ; which You are to communicate to The Princess Royal, and The Dutch Ministers, and leave with them. I am to acquaint You, that His Majesty has order'd 298 APPENDIX 51 a proper Communication, & proper Representations, to be made to the Court of France, upon this unjust, & violent Proceeding, of The King of Prussia. If the Apprehension of a War, which His Prussian Maty's Perseverance in these Acts of Injustice may, at last, unavoidably produce, is sufficient to engage France seriously to interpose ; There is no Doubt, but that They may dispose The King of Prussia to do Justice : But if, either France should not be sorry, that His Prussian Maty should begin, or should hope, that these Acts of Violence, if supported, might tend, as they undoubtedly would, to the Ruin and Destruction of the Trade & Navigation of His Majesty's Kingdoms, and greatly lower & reduce the Weight, Reputation, & Influence, of The Naval Force of this Countrey ; There would be Reason to fear, That, in that Case, The King of Prussia may be encouraged to support His present unjust Proceeding ; by some Attack, either upon His Majesty's German Dominion's, or on The Republick of Holland, on the Side of Ostfrise. I have certain Intelligence, that The King of Prussia has marked out a camp for 50,000 Men near Spandau ; And I also hear, that 10,000 Men are directed to march to Ostfrise ; but the last Circumstance (as appears by Your Letter of - ) seems, at present without Foundation. It is His Majesty's Pleasure that You should talk seriously upon This Subject ; to The Princess Royal, to Prince Louis, 1 and to the Dutch Ministers of Confidence. The King does not in the least doubt, but that if any such Attack should be made, either upon His Majesty's Kingdoms, or on The King's German Dominions, His Majesty might depend upon the immediate Assistance of The Republick, in Consequence of the Friendship & Union, as well as of The Defensive Arrangements, which subsist between Them. The King is also persuaded, that They will look upon this as a Common Cause, And, therefore, You will learn the Senti- ments of The Princess Royal, & Our Friends, what Measures The Republick may be able to take, in case this Mischief should unavoidably come upon Us ; But You will give them the strongest Assurances, that His Majesty will do Every Thing in His Power to prevent it, which is consistent with the Justice which The King owes to His Subjects, and with the Honor, & Dignity, of His Majesty's Crown. We have already talked to The Due de Mirepoix, in the most friendly Manner, upon this Occasion; and Nothing could be more satisfactory than His Way of receiving it, & His Conversation upon it. But, at the same Time, I must own 1 Prince Louis of Brunswick, made a member of the Council on Foreign Affairs in July 1751 (Archives de la Maison d' Orange-Nassau, 4" serie, c. 2, p. ix). APPENDIX 51- 299 I have my Suspicions, that His Court may not act so fair a Part, as The French Ambassador wishes, and would advise. All Rival Nations may be glad to see the Fleet of England, & the Trade of this Countrey, reduced & embarrass 'd ; And the lesser Powers may not be sorry to have a Precedent for carrying on Trade in Time of War, in the unjustifiable Manner now insisted upon by The King of Prussia: Which, If It was to be submitted to, would make it impracticable for this Country ever to engage in a Foreign War ; Tho' Their immediate Interests were never so much concerned. The Republick of Holland is so truly connected in Interest with this Countrey, that whatever affects the one, does in reality equally concern the Other. But, as the Trading Towns in Holland often consult Their particular, local, Interests, preferably to that of The Republick, I am not certain, how they may reason, upon this Subject : And therefore You may take Care, to have a Number of these Answers dispers'd amongst them. I hope to hear from You very fully, & confidentially in Answer to this Letter. I am, &c a . HOLLES NEWCASTLE. [Endorsed] Drat, to Col. Yorke, Feb r y 13 th , 1753. Private, by Pollock. 52. YORKE TO NEWCASTLE (S. P. For., Holland, vol. 462) Hague, February the 2O lh , 1753. MY LORD. Your Grace's dispatch of the 13 th instant, was deliver'd to me late on Saturday night, by Pollock, the Messenger, (who went on immediately to Vienna :) together with the Answer, Your Grace returned to Mons. Michel's Memorial, by His Majesty's order, and the Report annex'd, refuting the Exposi- tion des Motifs, &c. which the Prussian Ministers have printed and dispersed in all languages, and in all Countries. In obedience to the King's Orders, I have deliver'd those Papers to the Dutch Ministers, and I can with Truth assure Your Grace, that they have given universal Satisfaction ; Every body who has read them is fully Satisfied of the Justice of the Proceedings in England, and of the violence and ab- surdity of those at Berlin. The Publick is highly impatient for the publication of the Report, and I shall endeavour to 300 APPENDIX 52 Satisfy them tomorrow, I hope at least ; but as the demand is very great in all the Trading Towns of this Country, I have consented to a Translation being made of it in Dutch, Since it is very essential, that they should be fully informed of the nature of this Affair, in which many here think themselves interested. I flatter myself, my proceeding in this manner, will be conformable to the King's intention. I am convinced, the perusal of it will have a very good effect in this Country, and the Prussian Paper having been distributed with so much affectation, it is natural they should expect the Refutation of it. The moderation the King is pleased to shew upon this occasion, as well as the firmness, with which His Majesty Supports His Subjects in their just Rights, is the Topick of Conversation every where, and the admiration of every body, and it is to be hoped, they will have a proper weight with the Court of Berlin. I have, &c. JOSEPH YORKE. 53. NEWCASTLE TO YORKE (S. P. For., Holland, vol. 462) Whitehall, March 6 th , 1753. Colonel Yorke. (Private & Secret). SIR, I am, now, in Consequence of my Promise, to send You the King's Orders upon Your several Letters, which have not yet been fully answered. I shall confine this, chiefly, to those, which give an Account of Your Conferences with The Princess Royal, The Pensionary, & the other Dutch Ministers in Confidence, upon the In- stances, or, rather, Conversations, which You were directed to hold, upon a Supposition, That The King of Prussia might be extravagant enough to proceed to Voyes de fait, And make some Attempt upon His Majesty's German Dominions, In revenge en haine of The Support, which The King will always think proper to give to the just Rights, and essential Interests of His Subjects of Great Britain; and particularly of their Commerce, and Navigation, And I shall begin, by returning You an Answer to Your Letter of the 2O th of February x ; Which contains the material Objections That You have met with. I have the Pleasure to assure You, that His Majesty entirely approves Your Conduct, in this difficult and delicate Affair. Nobody can lament more than The King does, the Weak, 1 This private letter is not to be found. APPENDIX 53 301 & unfortunate Situation of The Republick, or be less sur- prised, that those Ministers, who are True Friends to Their Country, should give, upon all Occasions, the greatest Atten- tion to it ; That Weakness of Holland His Majesty considers as one great Part of our Own, and for that Reason will not enter into Any Measure, which can, in Justice, and Prudence, be avoided, that may, in it's Consequences expose either this, or that Country. But that may not be, as in the present Case, always in The King's Power. The Question, now, is, Whether, The Violent Detention of Money due to His Majesty's English Subjects, and secured to Them, by the Most Solemn Engage- ments, from His Prussian Majesty, both to The King, and to The Empress Queen, (and that upon a most valuable Considera- tion ;) Which Detention, also, was, (as appears) for a Cause, as little justifiable, as the Act Itself ; Whether, I say, this Vio- lence was to have been acquiesced under, & submitted to ; & left unanswered, from a distant Apprehension, that an Injustice committed against The King's Subjects of Great Britain, might still be agravated by a further Violence, and open Attack upon His Majesty's German Dominions. It is sufficient to state this Question, to shew, that The King had but One Part to take in it ; And That once shewed, is sufficient also, to prove the Obligation of All His Majesty's Allies to assist him against such an Attack, If It should be made. There is no One Power in Europe, that desires more sincerely to preserve The Publick Peace, than The King does ; And the Moderation with which His Majesty has acted in this whole Affair, (provoking as it has been) is, of Itself, a sufficient Proof of it. But as no Consideration or Apprehension, can ever induce, The King to neglect the true Interests of His Kingdoms, Honor, Justice, and Gratitude, will ever engage This Country to support His Majesty, to the utmost against any Attempt that may be made any where, upon Him, for so doing. We have talked this whole Affair, very fully, over, with the French Ambassador; Who saw it just in this Light ; And the inclosed Copy of My Lord Albemarle's Letter, will shew You, that Mo r . de S*. Contest sees it in the same Light, also : And if the Court of France will, as I really hope they will, make serious Representations upon it, to the King of Prussia, there is little Reason to fear any Voyes de fait from His Prussian Majesty, Tho' It is always prudent to prepare for the worst, when You have to do with a Prince who is governed by Those Principles, which appear to have influenced The King of Prussia in This Affair. The Princess Royal, therefore, and The Dutch Ministers, must consider any Rupture or Attack made upon The King, 302 APPENDIX 53 on This Account, as an unavoidable Evil, If it should happen ; And from that Consideration, determine, what part the Honor, and Interest of the Republick require of Them to take ? You did very rightly, in appealing to the Pensionary ; to whom They would look up in Case of Their Distress ; Which will probably happen in some Shape or other, If His Prussian Majesty shall go those Lengths, of which We are, now, barely supposing a Possibility. Tho' The Princess Royal, and The Pensionary, will be confirmed in Their Hopes of the Interposition of France ; Yet, that is far from being a sufficient, or positive, Security, entirely to be depended upon. The King, as I have observed, is not surprised at the general Discourse of The Pensionary ; but that His Majesty is per- suaded, that the Two principal Objections, now made by Him, will be removed as soon as ever, They are explained to Him. As to the First ; Viz 1 . The Subject of the Quarrel ; We have no Treatys, relative to this Affair, subsisting with Prussia ; So that the Law of Nations is the only Rule that can be followed here, with Regard to those Disputes with Prussia. The Case is quite otherwise with Holland, as appears by the different Determinations of the Council, which have been according to the Stipulations of the particular Treaties, with the Republick, however grievous, and disadvantageous, for this Country, those Stipulations have appeared to be : So that, The Subjects of The Republick can be affected by this no other Way, than in the very Essential One ; That, if the Rules laid down by The King of Prussia are to be submitted to, England will never venture to engage in a Foreign War ; Tho France was at the Gates of Amsterdam. And in that Case, They will consider seriously, from whence They will have assistance, and Support hereafter. The other Objection is still easier to be answered; And, I own, I wonder, The Pensionary could ask You, upon what Treaty I laid my Finger, to shew, that The Republick was obliged to assist The King, if His German Dominions were attacked. To that I answer ; Experience shews, that the Republick always understood, that They were engaged to do it by Interest, and Treaty : Of which, the inclosed Resolution of The States, in the Year 1729 ; is a most convincing Proof ; when They declared Their Resolution to assist His Majesty not only with Eight Thousand Men ; but, even, more, if necessary, upon an Alarm of an Attempt, at that Time, from The late King of Prussia, unmix'd, unconnected, then, with any English Consideration ; which now is the Sole Cause of the present Apprehension, and much alters the Nature of the Obligation : but the enclosed Copy of the 2O th Article of the APPENDIX 53 303 Treaty of Aix la Chapelle, which I wonder the Pensionary had forgot, puts this Affair quite out of Doubt ; There The King's German Dominions, and Possessions, are expressly guarantied by All The Contracting Powers ; Of which the Republick of Holland was One. I am persuaded, that that Assistance, which The Govern- ment of Holland thought proper to give ; in the Year 1729, before the Establishment of the Stadtholder was brought about, and before any Article, so explicite, as that above- mentioned, in The Treaty of Aix la Chapelle, had been made, will not now, in Case of a Necessity, (which I hope, and believe, will not happen,) be disputed, after the present Settlement has been so happily brought about, and the strongest Engage- ments have been entered into by the Republick by the Treaty of Aix la Chapelle. His Majesty would have You acquaint The Princess Royal with His great Satisfaction, with Her Royal Highness's Declaration to You ; ' That in Case The King was attacked, the Republick would be obliged to fullfill It's Engagements, & that for Herself, in particular, She hoped, It was needless for Her to add, that She would do Every Thing, that depended upon Her, to satisfy His Majesty.' The King has no Doubt of Her Royal Highness's Duty, and Affection ; And of Her Zeal for the Support of His Majesty, against any Attack, that may be made upon any Part of His Dominions ; or of Her Royal Highness's sincere Intention, for the Support of the present System. This Declaration from Her Royal Highness might make the greatest Part of this Letter unnecessary : But The King chose to have this Affair fully explained, that The Pensionary, of Whose good Intentions His Majesty is thoroughly convinced, might be the better enabled to remove those Difficulties with others. I am &c a . HOLLES NEWCASTLE. 54. NEWCASTLE TO YORKE (S. P. For., Holland, vol. 463) _ . . _. . Whitehall, April 17 th , 1753. Colonel Yorke. Private. SIR. The late Letters, from My Lord Albemarle, have brought Nothing, that can give any Room to guess, what may be the final Resolution of The Court of France, upon the Two Material 304 APPENDIX 54 Points, now depending ; The Election of The King of The Romans ; and the particular Disputes with The King of Prussia. Mos r . de S k . Contest varies His Manner of Talking, almost in Every Conversation. Sometimes He talks plausibly, and pretty Satisfactorily upon Both Points ; And, afterwards, in the next Conversation, appears as difficult, and as unreason- able, as ever. I think, Their present View is, Not to break the Peace ; But The King of Prussia will certainly carry Them great Lengths, If He shall think proper to insist upon it ; And, therefore, We should always endeavour to prepare for the Worst. I am, &c a . HOLLES NEWCASTLE. 55. YORKE TO NEWCASTLE (S. P. For., Holland, vol. 463) Private. Hague, May the 8 th , 1753. MY LORD. By a Conversation I had a few days Since with the Grand Pensionary, I found he had received Letters from Mons r . Marselis, who is employ'd at Paris in the Negociation for a new Treaty of Commerce between France and the Republick, in which he gives him the following account of what had past between him and the Marquis de S fc . Contest ; The latter told Mons 1 '. Marselis, that England having declared that the Subjects of Their High Mightinesses were at liberty, to take on board their Ships Goods belonging to the enemies of Great Britain, by virtue of the Treaties Subsisting between the two Nations, His (Mons r . S*. Contest's) Court demanded, that Their High Mightinesses should insist with that of Eng- land, upon the restitution of all the goods of French Subjects, taken under the Flag of the States, and condemned during the last war ; That on the part of France, as Soon as that Restitu- tion was obtained, His Most Christian Majesty would give up the alterations proposed by them, in the 23'' article of the Project of a new Treaty of Commerce. As the Pensionary seemed to imagine, that England had made some new Declara- tion on this head, at the Court of France, I told him that I had never heard of any such thing, but supposed what Mons 1 '. St. Contest had said to Mons' . Marselis, was founded upon the answer to the King of Prussia's Memorial &c. which the Earl of Albemarle had communicated, by the King's order, to the French Ministers, in which Paper the proper distinctions are made, between the Right of Neutral Powers, founded upon APPENDIX 55 305 the Law of Nations only, or establish'd by particular Treaties ; That as our Treaties with the Republick were clear and in full force, I did not see what necessity there was for our entering into any discussion with France upon that head, & that we had never disputed anything, but the abuse of those Treaties That the Republick had great reason to be Satisfied with the explicit manner, in which their Right was avow'd in the answer to His Prussian Majesty ; and as all Europe was in possession of it, no Power could dispute the authenticity of it. I found however, that the Pensionary had a mind, that, in order to facilitate their coming to a Conclusion with the Court of France, England should make some Declaration to the Republick upon this head, which they might make use of in their Negotiation, and seemed to think, that we could not refuse complying with their wishes in this particular. As I suspect, the Pensionary may Speak more particularly to me on this Subject, and may make some application to His Majesty about it, I thought it right to prepare Your Grace for it ; but as our Conversation hitherto has been quite general, I do not know in what manner he may think proper to apply, and I thought it best to avoid entering into particulars, or encouraging him to take this Step, which the Pensionary seems much inclined to. P.S. In Case the Pensionary shall make the application I have mentioned, (w cl1 I am inclined to think he will,) does not Your Grace think I may be founded, in demanding to see the Project of their Treaty of Commerce ? J- Y. 56. YORKE TO NEWCASTLE (S. P. For., Holland, vol. 463) Private. Hague, May the nth, 1753. MY LORD, The Pensionary has begg'd me to transmit the inclosed Pro Memoria to Your Grace, & to desire You would be so good as to lay it before the King, not as a Publick Request to His Majesty, in the name of this Government, but as a Private one, because he is desirous to know the King's Sentiments upon the affair, before he takes any further Step. Mons r Stein hopes, that what they wish may not meet with much difficulty, and he thinks that such a Declaration as he specifies in his Paper, would enable them to conclude their Treaty of Com- merce with France, without further loss of time. I told the Pensionary, that I could say nothing more to him on the Subject, than when he first mentioned it, but that I would immediately transmit his Paper to Your Grace. 1783 X 306 APPENDIX 56 Copie. (S. P. For., Holland, vol. 463) Pro Memoria pour Monsieur le Colonel Yorke, Ministre Pleni- potentiaire de Sa Majeste Britannique. Dans notre negociation Sur le renouvellement du Traite de Commerce avec la France, on insiste de la part de cette Couronne, pour avoir des assurances, qu'en cas de guerre le Pavilion de 1'Etat soit respecte, particulierement par ceux, avec qui la France se trouvera en guerre, quoique les vaisseaux soyent charges de marchandises ou d'effets appartenants aux Sujets de la France. Monsieur de Marcelis ecrit a Leurs Hautes Puissances, que le Marquis de S*. Contest lui a dit, que la Cour d'Angleterre avoit declare, qu'en vertu des Traites il est permis aux Sujets de Leurs Hautes Puissances, de trans- porter dans leurs vaisseaux des effets appartenants aux enemis de 1'Angleterre. Cette Declaration etant conforme aux Traites qui Subsistent entre 1'Angleterre et cet Etat, Monsieur Yorke est prie d'effec- tuer auprez de Sa Cour, qu'il Soit donne ici une telle Declara- tion, afin de faciliter par la nos negotiations Sur le Traite de Commerce avec la France, et que cette Declaration puisse contenir, Que le Traite de Marine du i. Decembre 1674. et tous les engagemens qui Subsistent entre 1'Angleterre et la Republique, Seront toujours Soigneusement et religieusement observes, Sans rien faire qui y Soit contraire, qu'en conse- quence il sera libre aux Sujets de Leurs Hautes Puissances, de transporter dans leurs vaisseaux les effets appartenants aux ennemis de 1'Angleterre, et que la Cour Britannique est d'inten- tion de s'y tenir exactement en toute occasion. On s'attend ici, qu'il n'y aura aucune difficulte de donner cette Declaration, puisqu'on en a donne une pareille, 1'annee 1744. a la requisition de 1'Etat. 57. NEWCASTLE TO YORKE J (S. P. For., Holland, vol. 463) Whitehall, May [18], 1753. Colonel Yorke. SIR, The King having fully considered the Application made to You, by The Pensionary, and mention 'd in your Two Letters, of the 8 th & II th Inst., and The Pro-Memoria inclosd in the Latter, relative to The Marine Treaty of 1674 ; His Majesty is of opinion, That the Proposal, made by Mo r 1 This is printed in Archives de la Maison d' Orange-Nassau, 4" Scrie, Tome II, p. 269. APPENDIX 57 307 de S fc Contest, to Mo r de Marcelis ; Viz*- ' That Their High Mightinesses shou'd insist, with England, upon the Restitution of all the Goods of French Subjects, taken under The Flag of The States, and condemn 'd during the last War ; And That, on the Part of France, as soon as That Restitution was ob- tain'd ; His Most Christian Maj* 1 ? wou'd give up the Altera- tions, propos'd by Them, in the 23 d Article of The Project of a New Treaty of Commerce ' ; is not only New, as relative to another Power, no ways concern 'd in That Negociation ; But that it was made, also, to commit The King with The Repub- lick ; To lay the Blame of The Miscarriage of Their Treaty of Commerce with France, (If that should be the Case,) upon His Majesty ; Or, If the Treaty should succeed, To lay, by That Means, a Foundation for a perpetual Neutrality with Holland ; and The King was sorry to see, that The Pensionary seem'd to adopt This Idea. Mo r de S* Contest, and The Pensionary, can never, upon Reflection, think, that His Majesty wou'd give in to a Proposal of this Kind ; or lay Himself, or His Subjects, under such new & unnecessary Obligations. And the Manner in which it is mention 'd in The Pro-Memoria, Viz* pour avoir des Assu- rances, qu'en Cas de Guerre, Le Pavilion de L'Etat soit respecte, particulierement par Ceux, avec qui La France Se trouvera en Guerre, has indeed the Appearance, as if The Court of France was upon the Point of coming to a Rupture with Us. All Proceedings, relative to Treaties, made, singly, between The King, and The Republick, ought to be carried on, without the Intervention of any Other Power ; And, consequently, It wou'd be very improper for His Majesty to give any Declara- tion to The Republick, relating to Engagements, that may subsist between Them, in order to satisfy the Views of The Court of France, or to promote the Success of a Negociation, entirely foreign to that Treaty ; Especially, when the immedi- ate Tendency of such a Declaration, must be, to strengthen, or give some Countenance to, Demands upon His Majesty's Subjects ; And unnecessarily, and improperly, to confirm the Existence of a Treaty, upon which, sooner, or later, The King, and The Republick, must come to some amicable Explanation and Regulation. The Pensionary was much mistaken in his Notion, that some new Declaration had been made, relating to this Treaty. Whatever Mo r - de S* Contest said, was, I suppose, founded only upon what was very properly mention 'd by way of Dis- tinction, in the Answer, given to The King of Prussia. I believe, There are very few, if any, Complaints of The Dutch, now depending. I remember there was a favorable Determination for Them, some Time ago, upon an Appeal x 2 3o8 APPENDIX 57 from The Court of Admiralty ; And I am told, that the Subsequent Proceedings have been conformable Thereto. But I remember also, that the Inconveniences arising from The Treaty of 1674, appear'd, Then, so great, that it was the general Sense of The Council, before whom the Appeal was brought, that it wou'd be absolutely necessary to have some Explanation of that Treaty ; and I will venture to foretell, that, if nothing, of that Kind, is done ; Whenever This Coun- try shall be so unhappy as to be engag'd in a War with France, England will begin, by insisting, that, pursuant to the Treaty of 1678, The Republick should immediately send the Succours, there stipulated ; And, within Two Months, declare War against France, also ; And in Case of Refusal, on the Part of Holland, will declare, that that Part of the Marine Treaty, which stipulates Free Ships, Free Goods, will not, and cannot be observ'd. And, indeed, if the Transactions, and Dispositions, of the Times, when that Treaty of 1674, and the following Treaty of Defensive Alliance, between England and Holland, of 1678, [were concluded ; which is the Basis of the present, and, I hope, perpetual Union between The Two Countries, are considered ; It will plainly appear, that Those, who wish'd well to that Union, took care, by the Treaty of 1678, to make that of 1674, ineffectual, or unnecessary. For, tho' it is stipulated by the First Treaty, that one Power not being at War, shall be at Liberty to cover, & protect, the Goods of the Enemy of the Other, at War ; It is, as strongly, declared, & stipulated, by the Last Treaty, that that case shall never happen ; For, by the 5th Article of it, it is ex- pressly agreed, that Two Months after War is declar'd against One Party, the Other shall be obliged to declare War also ; And that considerable Succours should be immediately sent to the Party at War ; And, during the Two Months, Good offices should be employed for making up the Differences. And I very well remember, that this Argument was most strongly insisted upon, here, during the late War, when the Dutch Ministers claim'd the full Execution of the 8 th Article of The Marine Treaty of 1674. That Treaty was made soon after the Conclusion of the Dutch War, in 1672. Holland, then, continued in War with France ; and It was weakly, & improperly thought, that this Country might have a Separate Advantage, from their different Situation, at that Time, in that respect ; Which was the real Cause of those Articles in the Marine Treaty. But, when once sounder Principles came to prevail here, and the great, & Essential Interests of England, & Holland, were found to be the same ; All these little, seeming, separate, Advantages were rejected ; and the solid Interests only con- APPENDIX 57 309 sidered ; And, upon that Principle, were the general Engage- ments taken by the Treaty of 1678; That, when War was once declared against either Power, The Other shou'd be obliged, in Two Months, to join in it. That Reasoning destroyed the very Foundation of the 8 th Article of The Marine Treaty ; Shews, how necessary some new Explanation of it must be ; and consequently, how very improper It wou'd be for The King to give any Declaration, that might add new Weight, or Strength, to it. And I hope, that the present Government in Holland, will not so far adopt the Narrow Notions, which prevail'd in England, in 1674, as not to see the Impropriety of His Majty' 8 giving any such Declaration. I must say, that the very End propos'd by it, (viz*, the facilitating The Dutch Treaty of Commerce with France,) wou'd not be a reason for the Thing desired. His Majesty will always be glad to promote the Interest of The Republick ; but The King will rather chuse to do it by any Measure, than by One, which may produce a closer Connection, between Them and France. And it is not yet forgot, that the Enjoyment of this very Treaty of Commerce, (the Renewal of which is now so much desired in Holland,) was a great Inducement, or, at least, serv'd as a Pretence for the Government in Holland, at that Time, to decline joining in the War against France, or taking any vigorous Measures, in support of their Allies. You will make use of these Arguments with the Pensionary, and The Greffier, and with such Others, as may be necessary, to shew the Reasons, which prevent His Majesty from com- plying with what is now desired ; But You will assure Them, at the same Time, that The King's Opinion, & Resolution, upon this Occasion, are founded upon this unalterable Prin- ciple, that England & Holland, ought never to take separate Parts, but to have the same Interests, and the same Views, with regard to all Other Powers ; And that His Majesty will be always ready to shew His Friendship, and Affection, for The Republick, in any Instance, which may not be absolutely repugnant to that Principle. P.S. To save You the Trouble of looking Them out, I send You Copies of the Two Articles, mention 'd in this Letter. [Endorsed] Dra^ to Co 1 . Yorke. May i8 th , 1753. (Separate.) (S. P. For., Holland, vol. 463) Extract of The Treaty between King Charles the 2 cl and The States General. Concluded at London, Decem r I st , 1674. ART. 8. Conventum porro'est, quod quicquid a Subditis Regise Majestatis in Navem quamcunqj, ad hostes Dominorum Ordinum pertinentem, impositum esse deprehendetur, quam- 3io APPENDIX 57 vis de genere Mercium prohibitarum non sit, totum id Fisco addici possit ; Cceterum e contra pro immuni atque liber o habe- bitur omne id, quod in Navibus ad Subditos Regies Majestatis spectantibus immissum deprehendetur, etiamsi totum oneris, vel ejusdem pars aliqua, ad hostes Dominorum Ordinum justo proprietatis Titulo pertinuerit, exceptis semper Mercibus Contra- bandis, quibus intercepts omnia ex Articulorum praecedentium Mente & praescripto fient ; pari itidem ratione, quicquid a Subditis Dominorum Ordinum in Navem quamcunque, ad hostes Regiae Majestatis pertinentem, impositum esse depre- hendetur, quamvis de genere Mercium prohibitarum non sit. totum id Fisco addici potest ; Caterum e contra omne id, quod in Navibus, ad Subditos Dominorum Ordinum spectantibus immissum deprehendetur, pro immuni at%, libero habebitur, ETIAMSI TOTUM ONERIS, VEL EJUSDEM PARS ALIQUA, AD HOSTES REGIME MAJESTATIS JUSTO PROPRIETATIS TITULO PERTINUERIT, exceptis semper Mercibus C ontrabandis , quibus interceptis, omnia ex Articulorum praecedentium Mente, & praescripto fient. Extract of The Treaty of Defensive Alliance, between The Crown of Great Britain & The States General, concluded at Westminster the 3 d of March, 1677/8. ART. 5. Et en cas que la dite Attaque ou Trouble soit suivie d'une Rupture ouverte, Celui des deux Allies qui ne sera pas attaque sera oblige de rompre deux Mois apres la premiere Requisition de Celui d'entre Eux qui sera deja en Rupture, durant lequel terns, il fera tous Devoirs par Ses Ambassadeurs ou autres Ministres, pour moi'enner un Accommodement equitable, entre 1'Aggresseur ou Turbateur, & 1'Attaque ou Trouble, et neanmoins donnera pendant le dit Terns un puissant Secours a Son Allie tel qu'il sera convenu par des Articles Separes entre Sa dite Majeste et les dits Seigneurs Etats Generaux ; lesquels, bien qu'il n'en soit fait aucune Mention au present Article, seront tenus & observes comme s'ils y etoient inseres ou ecrits, demeurant toute fois apres le dit terns de deux Mois expires, au Choix de Celui des Allies qui sera en Rupture de continuer a jouir du Fruit du meme Secours, en cas que la Conjoncture du Terns, et la Constitution de Ses Affaires, Lui en fit preferer 1'Effet a celui de la Rupture ouverte de Son Allie. [Endorsed] Extract of Treaties of 1674 & 1678. APPENDIX 58 311 58. NEWCASTLE TO YORKE (S. P. For., Holland, vol. 463) Whitehall, May 22 d , 1753. Colonel Yorke, SIR, I have had a pretty full Conference with Count Ben- tinck, upon the Two Points now depending ; viz 1 , The Two first Articles of Count Kaunitz's Project, and the Declaration desired, with relation to the Existence of the Marine Treaty of 1674, and I have told him, very plainly, that His Majesty could not recede from the Resolution which He had already taken upon that Head. I may add, to what I formerly wrote, upon the last Subject ; That, as those Two Treaties plainly are inconsistent, and the latter effectually destroys the Force of the Former ; If the King was to give a Declaration, that the First Treaty exists ; His Majesty would certainly insist, that the Republick should, at the same Time, give a Declaration, that, whenever England is at War with France, the Republick will immediately send the Succours stipulated, & declare War also, against France, within the Two Months prescribed. Upon this Condition, I believe We should hear no more of the first Declaration. And nothing, certainly, can be more Just, than that either One should not be insisted upon, or the Other not refused. I am, &c a , HOLLES NEWCASTLE. [Endorsed] Dra* to Col Yorke, May 22 d , 1753. 59. YORKE TO NEWCASTLE (S. P. For., Holland, vol. 463) Hague, May 2Q th , 1753. MY LORD. I have had a very full Conversation with the Pensionary, on the subject of the Declaration desired, with relation to the existence of the Marine Treaty of 1674. and must do him the justice to say, that he talk'd as warmly, and with as much zeal, for the System which His Majesty Supports, as I could wish him. I am desired however, to transmit the inclosed Paper to Your Grace, which has been approved by the Princess Royal and the Ministers of Her Conference. It 3i2 APPENDIX 59 contains the reasons which induced them to make the Pro- position, as they were in hopes, if the thing was feasible, to have been able, by that means, to have vindicated their Conduct in the Negotiation at Paris, upon a Treaty of Com- merce, to the Satisfaction of this Country, and to have shew'd the French Ministers, that no arts, they could make use of, were able to Separate the Interests of the Republick from those of England. The Pensionary added, that after having transmitted their thoughts upon the Subject to Your Grace, if the thing could not be done, they were desirous to keep it as Secret as possible, as it might make some noise here if it was known. I had the honour to acquaint Your Grace, Some days ago, that I did not believe, if a Counter Declara- tion was insisted upon, that our friends would be very pressing for what they had ask'd, and I could plainly perceive, when I threw it out in the Conversation, that Mons r Stein would not chuse to propose it ; So that I make no doubt, but he will be glad to drop it entirely after having removed any Sus- picions, which he may think such a demand may have raised, as if there was any notion here, of listening to the System of a Neutrality for this Country. P.S. Since writing the foregoing Letter, we have received the inclosed advice from Dunkirk, from one of the Engineers, who was sent there to examine the new works, and it is the most particular one I have yet seen. When we have a con- firmation of these accounts, and have compared what is said to be doing, with what is Stipulated in the Treaty of Utrecht, I shall endeavour to get the Dutch Ministers to give their opinion, in relation to the measures necessary to be taken. J- Y. [Endorsed] Hague, May 2Q th , 1753. Colonel Yorke. R 3i st [Enclosure] (S. P. For., Holland, vol. 463) On s'est propose deux choses en demandant a 1'Angleterre la Declaration en question ; 1. D'oter a la France tout pretexte de retardement de la Conclusion du Traite de Commerce ; 2. De prevenir les mauvaises impressions que la France pourroit donner ici, Si elle pouvoit, avec quelque apparence de verite, rejetter Sur 1'Angleterre la Non-reussite de cette Negociation. Ce n'est pas a la requisition de la France que on [sic] demande cette Declaration. Elle n'y entre pour rien. On se propose Seulement de lever une difficulte qu'Elle forme. On voudroit la inettre davantage dans le tort, et faire voir par la au APPENDIX 59 313 Gouvernement de cet Etat, que la France ne cherche qu'a faire trainer 1'affaire, et nullement a conclure ; qu'Elle fait naitre tantot un incident, tantot un autre, pour per- petuer 1'etat d'incertitude, dans lequel Se trouve le Commerce de la Republique avec la France, qui est Surtout prejudiciable a Ses interets, parcequ'on profite de ces circonstances, pour encourager et favoriser de toutes faons la navigation des Puissances du Nord. II a paru ici, que la demande faite a 1'Angleterre ne pre- judicie en rien a Ses droits, ni a Ses interets ; qu'elle est d'ailleurs parfaitement conforme aux Traites Subsistans entre les deux Etats. Par le Traite de Marine du i Decembre 1674 la maxime generale, Vaisseaux libres, Effets libres, est etablie. Cette regie est fondee Sur 1'equite et Sur les principes de 1'Interet commun. Le Traite d'Alliance de 1678. n'a pas deroge au Traite de 1674. On y a pris de nouveaux engagemens, qui, dans de certains cas, font cesser 1'effet de cette condition cy dessus Vaisseaux libres Effets libres. Si aprez deux mois ecoules, la Puissance attaquee demande que Son Allie en vienne a une rupture ouverte avec 1'ennemi de la Puissance attaquee, dans ce cas il est evident, que la Regie Vaisseaux libres, Effets libres, ne peut plus avoir lieu, relativement a 1'Aggresseur. Ce n'est plus le cas de 1'article 8. du Traite de 1674. Jusques la done, Si on le veut, le Traite de 1678 deroge a cet article 8. du Traite de Marine. Mais ce dernier Traite peut et doit toujours Sortir un entier effet, dans les quatre cas Suivans.; et par consequent, la Declaration en question peut avoir lieu dans ces cas ; 1. Pendant 1'espace de deux mois, durant lesquels la Repu- blique, en accordant les Secours Stipules, travaillera a reunir les parties en guerre. 2. Si la Puissance attaquee prefere le Secours Stipule, a une Declaration de guerre, qu'Elle a droit d'exiger de la part de Son Allie. Ce n'est pas pour contrevenir a ce droit, qu'on demande la Declaration dont il S'agit. Cette Seule reflexion Suffit pour detruire 1'idee comme Si Ton Se proposoit de jetter les fonde- mens d'une neutralite perpetuelle, ou comme Si Ton avoit dessein de menager a la Republique un pretexte, arm de decliner les mesures vigoureuses pour le Support de Ses Allies, le cas existant ; II dependra toujours de la Puissance attaquee, d'exiger l'accomplissement de cet engagement, et Si la Repu- blique venoit a manquer a cette obligation, Elle n'auroit aucun droit d'exiger de Son cote 1'observation de 1'article 8. du Traite de 1674, et 1'effet de la Declaration demandee. 314 APPENDIX 59 3. II y a un troisieme cas, ou 1'article 8. du Traite de 1674. doit avoir lieu ; C'est, lorsque la Partie qui reclameroit 1'effet du Traite de 1678. Seroit 1'aggresseur. Ce Traite n'est que Defensif. Ainsi dans ce cas la, celui de 1674. reste dans toute Sa force et vigueur. 4. Enfin le quatrieme cas ou le Traite de 1678. n'altere pas celui de 1'Article 8. du Traite de 1674. c'est lorsque la guerre se fait hors des Limites de 1' Europe. Dans ce cas encore la Stipulation en question doit Sortir Son plein effet. On croit ne devoir pas entrer en discussion Sur les Reflexions que Milord Due de Newcastle fait, Sur la diversite des con- junctures, et des motifs, qui ont donne lieu aux Traites de 1674 et 1678. Sans examiner ce que 1'Histoire d'Angleterre nous permet de Supposer Sur ce Chapitre, il paroit que les dispositions du Roi Charles II. etoient les memes en 1674 et 1678. et que c'est par le Parlement qu'il a etc entraine a faire les deux Traites. Quoiqu'il en Soit, il est certain que dans 1'annee 1744. les choses n'etoient pas differentes de ce qu'elles sont aujourd'hui. Dans ce temps la la Declaration, telle que nous la demandons a present, a ete donnee. D'ailleurs, on ne peut que se louer de 1'equite de 1'Amiraute d'Angleterre, qui a juge, dans differens cas, plusieurs prises conformement a ce principe, et a la teneur de 1'article 8. du Traite de Marine. On Se flatte que 1'Angleterre voudra bien reflechir Sur ce qui vient d'etre dit ; qu'Elle fera attention au but qu'on S'est propose, en demandant la Declaration mentionnee, et Surtout, a la maniere dont cette demande a ete faite, confi- damment, Sous main, et sans avoir porte 1' Affaire en delibera- tion dans les Assemblies de 1'Etat ; et que cela meme engagera a accorder encore la demande. Quoique Ton ne Soit pas assure, qu'une Declaration pareille contenteroit la France ; toujours est il certain, qu'elle feroit un bon effet ici, et que cela Soutiendroit ceux, qui Sont pour le maintien de 1'ancien Systeme, en faisant voir au Public, que dans les occasions la Republique trouve dans 1'Angleterre un appui, et un Secours reel, dans ce qui 1'interesse le plus essen- tiellement. Si ces nouvelles instances ne levent pas les oppositions et les dimcultes, on renoncera a la demande, plus tot que de s'exposer au risque de rendre publique une discussion, qui ne pourroit produire que de tres mauvais effets. [Endorsed]. Motifs pour demander une Declaration de la part de 1'Angleterre Sur 1'Article VIII. du Traite de 1674. Remis a Mons 1 '. Yorke, le 29 May 1753. In Col Yorke's Letter of May 29 th . 1753. APPENDIX 60 315 60. NEWCASTLE TO YORKE (S. P. For., Holland, vol. 463) Whitehall, June I st , 1753. Colonel Yorke, SIR, Last Night, the Mail arrived with your Letters of the 29 th of last Month. As The Dutch Ministers have given You a Paper containing their Reasons for desiring a Declaration of the Existence of the Marine Treaty of 1674 ; by which Paper They endeavour to invalidate those given, by The King's Order, for His Ma- jesty's Refusal ; I have The King's Commands to consult His Servants, in order to form a proper Reply to it. But, in the mean time His Majesty has directed me to acquaint You, that He had never the least Suspicion that The Pensionary (of whose good & sincere Intentions for the Union of the Two Countries, & for the Preservation of the solid System of Europe, The King is so well convinced,) had any View, by this Demand, of laying a Foundation for a future Neutrality, or a closer Connection with France. And my Letters must have been ill wrote, or worse understood ; If they gave any Ground for such an Imputation upon a Minister, whose Conduct is most particularly agreeable to The King. I can't, however, avoid saying, that the Paper does by no Means remove the Difficulty which was apprehended here. It admits, in Substance, the Inconsistency of the 2 Treaties of 1674, & 1678, tho' in some Immaterial Points, not ever likely to happen, They might Both exist at a Time. But there is not a Word to prove ,that it is reasonable to ask a Declara- tion of the Existence of one, & not, at the same time, to give a Declaration of the Existence of the other. And there is not one Word that can be a Security to The King, that when once this publick recent Declaration is given by His Majesty, France will not (which They have declared so often to be their Intention) found a new Demand, or strengthen those already made, for pretended Satisfaction on French Goods supposed to have been taken on board Dutch Ships. And this they would do, directly for Themselves, if the Repub- lick should refuse to make those Demands for Them. The King is extremely sorry for these little Differences in Opinion, which will always happen, if only One Side of the Question is attended to. I know, the principal Reason is, to justify the Conduct of The Dutch Ministers to The Republick. 316 APPENDIX 60 The King would be very glad to do it in any Instance, which would not directly prejudice His Majesty's own Subjects. I am, &c a , HOLLES NEWCASTLE. [Endorsed] Dra* to Col Yorke, Whitehall, June I st , 1753. 61. YORKE TO NEWCASTLE (S. P. For., Holland, vol. 463) Hague, June the 5^, 1753. MY LORD, I am honour 'd with Your Grace's Letters of the 29. May, and I st instant, the last of which arrived yesterday afternoon. In consequence of what Your Grace is pleased to acquaint me with, by the King's direction, I have informed our friends, that they might expect a Reply to the Paper they had given in, containing their reasons for desiring a Declaration of the Existence of the Marine Treaty of 1674. They have desired me to repeat to Your Grace, the assurances that they never meant to persist in their demand, in case it should be dis- agreable to the King, or that His Majesty, which is the case at present, should judge such a Declaration highly improper. The first intention was merely to ask the opinion of England, in order to see whether such a Scheme was practicable, and they were led into it by the order the King was pleased to give in April 1744. to the Lords of the Admiralty, to pay all regard possible to that Marine Treaty, in the Instructions they should give to their Cruizers. As the Dutch Ministers now See, that the thing is impracticable, at least without a Counter Declaration, which they would not chuse to propose at this time, they desire, if possible, that the affair may be entirely dropt, and that they will endeavour to make use of other arguments in their Negotiation at Paris. The Princess Royal, the Pensionary & Greffier, all desired me to beg Your Grace to cut the matter Short in it's present Shape, without entering into any further discussions, because, Should the King think proper, to order a Reply to be drawn up to their Paper, they shall be obliged to reply on their Side, that they may not be accused of having Set on foot such a Negotiation, and having dropt it with so much ease. The Pensionary was extreamly pressing, that I should endeavour to put an end to it, and at the same time, he desired I would assure Your Grace, that nothing would give him more real Satisfaction, than the Con- APPENDIX 61 317 firmation I gave him from Your Letter, that his conduct is most particularly agreable to the King. It was not from any thing personal which was in Your Grace's Letters, that that Minister seemed to apprehend he was Suspected of inclining to a Neutrality, but from the general reception the Proposition met with ; and the Idea that it could be inferr'd from any thing that came from him, makes him still more Sollicitous to drop the affair in question. I can Safely assure Your Grace, that Mons r Stein is perfectly pleased with what You say upon his Subject, and if there was any uneasiness for a moment, it is now entirely removed, and I beg Your Grace to believe, that I was as attentive as possible, to efface any impressions of that sort, from the beginning. 62. NEWCASTLE TO YORKE (S. P. For., Holland, vol. 463) Whitehall, June 8* h , 1753. Colonel Yorke, SIR, I received, late last Night, The Favour of Your Letter of the 5 th Instant. His Majesty very readily consents, to the dropping, entirely, any further Mention of the late Proposal, relating to the Existence of the Treaty of Marine of 1674, or of the papier justificatoire which the Pensionary gave you upon it. The King is always sorry, when He cannot comply with The Wishes of The Princess Royal, and the Well-intentioned Ministers of the Republick ; And is now glad to find, that They are convinced, that His Majesty's not doing it, in this last Instance, proceeded Singly, from the Inconveniencies that must have attended such a Measure. You cannot say too much by Way of Confirmation of what I have constantly wrote You, upon the Pensionary's Subject ; of whose Zeal, Ability, and Good Intentions, The King is so thoroughly convinced. I am, &c a , HOLLES NEWCASTLE. 3i8 APPENDIX 63 MY LORD. 63. YORKE TO NEWCASTLE (S. P. For., Holland, vol. 463) Hague, June the 12 th , 1753. Our friends are extreamly well Satisfied, that the King has been pleased to consent so readily, to the dropping entirely any farther mention of the late Proposal, relating to the existence of the Treaty of Marine of 1674; Any further discussion on that head might have had a bad effect here ; and as they are so fully convinced of His Majesty's friendly Inten- tions towards the Republick ; they would have been very sorry to have too Strongly press'd any measure, which could have been attended with any Inconveniences, such as Your Grace has represented the Declaration desired to be liable to. I shall not fail to take every occasion of confirming to the Pensionary the regard the King has for him, which his zeal and firmness for the Good System, I may venture to say, do certainly deserve. 64. HOLDERNESSE TO ALBEMARLE (S. P. For., France, vol. 246) Whitehall, 8 th February, 1753. H. E. The Earl of Albemarle. Separate. MY LORD, Some Time in the Beginning of last Spring, Mons r Michel the Prussian Secretary declared to The Duke of New- castle, in Form, that The King his Master had determined, to stop the last Payment due upon the Silesia Loan, upon Pre- tence of some Violences committed by English Privateers, on Prussian Subjects, during the Course of the last War, & of a Failure of Justice on the Complaints which were made, for obtaining Redress ; And that His Prussian Majesty had established within His own Dominions an extraordinary Com- mission, for the Revision of the several Causes, which have been tried, & determined, by the Courts of Admiralty here ; And that He should defalk, so much from what remains due to The King's Subjects, upon the Silesia Loan, as should appear to this new erected Court, equivalent to the Demands of the Prussian Complainants. The Duke of Newcastle explained to the Prussian Minister, the Consequences, which would naturally result, from so offensive & unjustifiable a Proceeding, but equitable & temperate Remonstrances, have not had the desired Effect upon His Prussian Majesty: For on the 23 r(I of November APPENDIX 64 319 last, Mons r Michel, presented a Memorial to The Duke of Newcastle, which was soon afterwards followed by a printed Book delivered also in Form, on the 13 th of Decem r entitled Expositions des Motifs, &c a . His Majesty in conformity to that Justice, which is the Basis of all The King's Actions, directed the Whole to be most seriously considered, and maturely weighed, by His Servants ; And an humble Report having been prepared by The King's Lawyers, Viz*. Sir George Lee, Dean of the Arches ; And His Majesty's Advocate General ; Attorney General ; & Sollici- tor General ; The same has met with His Majesty's most Gracious Approbation, and was, accordingly, delivered this Morning to Mons r Michel, together with a Letter from The Duke of Newcastle to him, of which I have the Honor to send Your Excellency a Copy. The King has farther commanded the said Letter & Report to be printed & published, & I shall have His Majesty's Commands, to transmit Copies of the whole to your Excellency, as soon as they can be finished, and am directed by The King, to prepare an ample Instruction for Your Excellency's Conduct, upon this extraordinary Event : But as the Due de Mirepoix would probably have obtained a copy of The Duke of Newcastle's Letter to Mons r Michel, Time enough, to be sent by the Messenger He will dispatch this Night, The King thought it proper, that Your Excellency should also have one for Your Information, However, You will avoid entering deeply into this Matter, for the present, with the French Ministers, untill I can have Time, to send You the whole State of the Case, and His Majesty's Pleasure thereupon ; But as Mons r de Mirepoix writes upon this Subject to Night, it is possible, Mons r de St. Contest, may begin a Discourse with You upon It ; And in that Case, You may acquaint Him ; that The King has determined, to communicate the Whole of this Proceeding to His Most Christian Majesty, as a Friend to both Parties, & to the Preservation of the Publick Peace : And that You have no Doubt, when the several Documents come to be transmitted to You, You shall be able, to vindicate the Moderation of The King's Answer, & shew the Injustice & Violence of The King of Prussia's Proceedings. Your Excellency will see this Letter is preparatory, to a more ample Instruction, & was only wrote, in order to give You Informa- tion, of what it is probable, the French Ministers will have an Account, at the same Time, that Your Excellency receives this Dispatch. I am, &c., HOLDERNESSE. [Endorsed] Dra*-- to The Earl of Albemarle, 8 th February, I 753- Separate. Mo r - Michel. 320 APPENDIX 65 65. HOLDERNESSE TO ALBEMARLE (S. P. For., France, vol. 246) Whitehall, 15^ Febfy., 1753. H. E. The Earl of Albemarle. MY LORD, When I had the Honor of transmitting to Your Excellency, a Copy of the Letter which the Duke of Newcastle had wrote to Mons r Michel by His Majesty's Order, in Answer to the Memorial, which the Prussian Secretary had delivered to His Grace, on the 23 d November last, and accompanying the Report of The King's Lawyers, in Answer to a printed Book, entitled Exposition des Motifs, &c a ., which had in like Manner, been presented to His Grace by Mons r Michel, in Vindication of The King his Master's Resolution, of defalking, the last Payment due to The King's Subjects upon the Silesia Loan : I gave You a short Sketch of what had preceeded the Presenting of the above-mentioned Memorial, & apprized Your Excellency, that The Duke of Newcastle had, by His Majesty's Command, represented to the Prussian Minister, in the most moderate, & decent . Manner, the disagreeable Consequences, which must naturally result from so violent & unjustifiable a Proceeding; These Remonstrances were founded upon The King's Desire, of preserving the Publick Tranquillity, which has been the constant Object of all His Majesty's Measures, since the Conclusion of the Peace of Aix la Chapelle. Of this the Court of France must be sensible, and the strong Declarations, which His Most Christian Majesty continues to make, of His earnest Desire, of co-operating with The King in the Preservation of the Peace, induce His Majesty, to communicate this extraordinary Transaction ; And I dare say, You will not fail to enforce in a proper Manner, the Proof The King gives upon this Occasion, of His particular Regard & Friendship to His Most Christian Majesty, which proceeds from The King's Reliance upon the Equity & Justice of the Court of Versailles. For tho' It is below The King's Dignity, to use Menaces, or to declare before Hand, the Manner in which He will resent an Insult, if any Power should dare to offer It, yet The King is desirous, that the Court of France, & the whole World, may be convinced of the Justice & Moderation of His Way of acting. Your Excellency will see, how scroupulously The King has commanded, the strictest Enquiry to be made, into the Nature of The King of Prussia's Claim ; And had there been any APPENDIX 65 321 Foundation for the Complaints made, reparation would have been given, for any real Injury, which the Subjects of The King of Prussia, or any other foreign Power had received ; But that You may be fully apprized, of the whole State of the Case, I have His Majesty's Commands to transmit to Your Lordship, a Copy of the Prussian Memorial, & Sentence, & of the printed Paper, which accompanied It : And I will not give Your Excellency the Trouble of entering into the Particulars therein contained. I also send You inclosed, a Copy, & Translation, of the Report, which The King's Lawyers have drawn up, in Answer to the above mentioned Memorial, in which all the Arguements made use of by the Court of Berlin, are so clearly, & fully refuted, & The Facts so exactly stated, that I can only refer Your Lordship to that excellent Performance, for Your full Information, upon this material Point ; and I shall only observe ist. That our Courts of Admiralty, proceed, solely upon the Law of Nations, where no particular Treaty takes place. 2ly. That by the Facts, quoted in the Lists, annexed to the Prussian Memorial, and the Arguments advanced, in support of the Complaints made by the Court of Berlin, it appears, evidently, that The King of Prussia has no Right, whatsoever, to make Reprisals upon His Majesty's Subjects. 3dly. And Thirdly, that even, if His Prussian Majesty, had a Right to Reprisals, stopping the Payment of what remains due, upon the Silesia Loan, would from the Circumstances of the Case, be unjustifiable. His Majesty has no Doubt, but that His Most Christian Majesty's known Love of Justice, will make Him see this affair in It's true Light ; & that He will use His utmost Endeavours, to prevent His Ally The King of Prussia, from taking an Offensive Step, the Consequences of which are obvious ; It is therefore His Majesty's Pleasure, that Your Excellency should deliver to Mons r de S* Contest, and to such other of the French Ministers as You may judge proper, Copies of the Prussian Memorial, of the printed Paper, entitled, Exposition des Motifs, &c a , of The Duke of Newcastle's Letter to Mons r Michel ; and the Report of His Majesty's Lawyers ; And, that You should explain to Them, the Nature of the Case ; The Injustice, & Violence of the Proceedings of The King of Prussia ; And the Moderation of The King's Answer. It is also His Majesty's express Command, that You should, at the same Time, acquaint the French Ministers, that, if notwith- standing, the clear Light, in which this Affair is now put, and the evident Injustice of The King of Prussia's Proceedings, His Prussian Majesty should still persist, to retain the Money 1783 Y 322 APPENDIX 65 due to The King's Subjects, on the Silesia Loan : the Payment of which The King of Prussia has taken upon Himself, in consideration of the valuable Cession of the Dutchy of Silesia, the Validity of which Cession, may be greatly affected by It ; It is obvious to foresee the evil Consequences, which will necessarily arise from It. That The King makes this early Communication to His Most Christian Majesty, as a Friend to both Parties, & to the Preservation of the Publick Peace : And that His Majesty doubts not, but, from the Consideration of Justice, & Friend- ship, The French King will use His good Offices, with The King of Prussia, to comply with His solemn Engagements, to discharge the Debt due to His Majesty's Subjects on the Silesia Loan, which should have been done, by the express Conditions of the Contract, one Year, before any of these Facts happened, upon which His Prussian Majesty, has thought proper to retain the Money & refuse the Payment. There is an End of all Publick Faith, if Proceedings like this are to be tolerated ; & His Majesty has so just an opinion, of the Equity of The Court of France, & of their real Desire, of maintaining the Tranquillity so happily established in Europe ; That The King will not suffer Himself to Doubt, but that His Most Christian Majesty, will interpose in a Case, where the most solemn Treaties are broke through, in a violent & unjustifiable Manner, without the least Colour of Reason. The Dignity of every Prince in Europe is concerned in this Question ; And I am persuaded, I shall very soon receive from Your Excellency, a satisfactory Answer to this Dispatch, which is of the most serious Nature, & requires Your utmost Attention. I am &c a HOLDERNESSE. [Endorsed] Drat to The Earl of Albemarle, 15 th Febfy 1753. K g of Pr a. 66. ALBEMARLE TO HOLDERNESSE (S. P. For., France, vol. 246) Paris, Wednesday 2i st Febv 1753. MY LORD. As the King of Prussia was often named in our Conver- sation, the transition to the Conduct that Prince had held towards His Majesty with respect to the Silesia Loan, naturally followed : I deliver'd to him both the Prussian Memorial and the Answer with the Report of His Majesty's Lawyers, and APPENDIX 66 323 after a short recapitulation of the Fact, I proceeded to the Matter of Right, and made use of the Several Arguments Your Lordship had suggested to me which are so full and conclusive as to have left me nothing to add. I set His Majesty's great Moderation in Opposition to the Violence of His Prussian Majesty, and shew'd them both in the strongest light. I observed to him the Injustice of this Prince's Proceedings, which had not the least Shadow of reason to colour it, the Danger which might result from them with respect to the publick Tranquility, if he persisted in them, and the evil consequences which must necessarily arise from them. And that the publick Faith and the Dignity of every Prince in Europe were interested in this Question. I then acquainted him that the King made this early Com- munication to His Most Christian Majesty as a Friend to both Parties and to the preservation of the publick peace ; and that His Majesty did not doubt but from Considerations or Justice and Friendship and their real desire of maintaining the Tranquility so happily established in Europe, the French King would use His good offices with the King of Prussia to comply with His solemn Engagements, and to discharge the Debt, which should have been done, by the express Conditions of the Contract, a twelvemonth before any of the Facts happen 'd, which the King of Prussia has made the pretence of his extraordinary and unjustifiable Behaviour : M. de S* Contest heard me with the utmost Attention and received the papers I offer'd him with great Civility and shewed much Concern at what had happen'd. He told me that he had already had a Copy of Mo r Michel's Memorial and of the Exposition des Motifs &c a , and that the Due de Mirepoix had also sent him a Copy of the Duke of Newcastle's Letter to the Prussian Secretary ; That he would maturely consider the Circumstances and make a faithfull report of them to His Most Christian Majesty who he assur'd me would be extremely sensible of the Mark of His Majesty's Confidence in applying to him thus early as a Friend and well Wisher to both Crowns and to the publick Peace, that His Majesty would find He was not mistaken in his opinion of The Most Christian King's Friendly Dispositions nor be disappointed in His Expectations and reliance upon them, he (Mo r S* Contest) having no doubt but the King his Master would interpose his Good Offices and use His utmost Endeavours to reconcile these Differences in such a manner as would be agreable to His Majesty and that he would not fail acquainting me the next time he should see me with the Orders he should receive upon this Matter. I gave a Copy of the Duke of Newcastle's letter to Mo r Michel, and the Report of His Majesty's Lawyers to Mo r Y2 324 APPENDIX 66 Puysieulx and to the Due de Noailles, and as they are ex- tremely desirous at this Court to see that piece, which as Your Lordship justly observes, is a most excellent performance, I beg the favour of you to send me by the first Messenger ten or twelve french copies, which I may distribute among the French Ministers and Councillors of State. 67. ALBEMARLE TO HOLDERNESSE (5. P. For., France, vol. 246) Paris, Wednesday 28 th Feb 1 "? 1753. MY LORD. I desired Mo T de S fc Contest to tell me, whether he had taken into Consideration the Duke of Newcastle's Letter to Mo r Michell, and the Report of the King's Lawyers, in answer to the King of Prussia's pretensions, and what account he had to give me of the Sentiments of the King, his Master, on this extraordinary Affair ; He said, that as it seemed to him to be of the highest consequence, it required a longer time, than he had had, since that Letter and Report had been left with him, to consider it with all the attention it deserved, and he there- fore desired a few more Days might be allowed him to weigh it maturely ; after which he would make a Report of it, to His Most Christian Majesty, in Councill, and acquaint me with their opinion upon it. From him I went to the Marechal de Noailles, and Mo 1 ' Puyzieulx, but had not the good fortune of meeting with either of them. The Eagerness continues to be very strong, at this Court, to see His Majesty's Answer to the King of Prussia, and I wait with Impatience to receive the french Copies of it, which I have taken the Liberty to ask of Your Lordship. [P.S.] I have reason to believe, that Mo r S* Contest's Delay is designed, to give him time, to receive an Answer, from Berlin, to a Dispatch, that was sent thither, by Messenger, immedi- ately after I had given him the report, &c a ALB. 68. HOLDERNESSE TO ALBEMARLE (5. P. For., France, vol. 246) Whitehall I st March 1753. H. E. The Earl of Albemarle. Seperate. MY LORD, The King was very well pleased with the Manner in which Mons r de S* Contest had received the friendly Com- APPENDIX 68 325 munication His Majesty had thought proper to make to the Court of France of the present Dispute with the King of Prussia ; It is not easy to know, what may be the Resolution, or Intention of His Prussian Majesty, as that Prince, during His whole Reign, has appeared to be but slightly influenced, by what are, and ought to be the most solemn Ties ; I have heard it surmized, and, perhaps, not without Foundation, that the King of Prussia has purchased, or is about purchasing the Pretensions which the House of Anhalt form upon the Dutchy of Lauenbourg, of which His Majesty, & His Ancestors have been long in Possession ; And that His Prussian Majesty was actually taking Measures, to seize, by Force, that Dutchey, in Consequence of the Abovementioned Purchase of frivolous Pretensions ; And it is supposed, that it is in Order to be ready to strike a Stroke, either there, or in some other Part of the King's German Dominions, that His Prussian Majesty is actually assembling Troops, which are to form Camps, in different Parts of His Frontiers; Should that, really, be the Case, or should His Prussian Majesty, in Consequence of a Dispute with the Crown of England, & of such Measures, as may become Necessary for His Majesty, as King, to take, in Vindication of the Rights of His British Subjects, presume to attack any Part of the King's Possessions, His Majesty will, in that Case, have a Right to reclaim the solemn Guaranty given by the Court of France of all His Majesty's Possessions whatsoever, by the 20*^ Article of the Treaty of Aix la Chapelle, containing the following Words : ' Sa Majeste Britannique, en Sa Qualite d'Electeur de Brunswick, Lune- bourg, tant pour Lui, que pour Ses Heritiers et Successeurs, et tous les Etats et Possessions de Sa dite Majeste en Alle- magne, sont compris, et garantis par le present Traite de Paix.' The Terms of this Article are too clear to admit of any Dispute, but as the King is still willing to believe, the Court of France to be sincere in their Professions of an Intention to maintain the Peace, His Majesty will not doubt of the real & efficacious Interposition of His Most Christian Majesty, to prevent the unjustifiable Step hinted at, & which would, of Consequence disturb the present happy Tranquillity of Europe. I am &c a HOLDERNESSE. [Endorsed] Whitehall, I st March, 1753. To The Earl of Albemarle, Separate. F r Encampm ts , K g of P a. 326 APPENDIX 69 69. HOLDERNESSE TO ALBEMARLE (S. P. For., France, vol. 246) Whitehall 14 th March, 1753. H. E. The Earl of Albemarle. MY LORD, I have received & laid before The King, Your Excel- lency's Letters of the 7 th Instant, by which I find, that though You had received mine of the I st , You had not as yet been able to pursue the Directions therein contained, and as You would not have an Opportunity of seeing Mons r de S* Contest 'till this Week, I am not to expect any material Answer from You to those Dispatches, 'till Sunday next, at soonest ; In the mean Time, His Majesty has directed me to inform You by this Messenger, of the Intelligence His Majesty has received, that The King of Prussia is actually making several Warlike Preparations, such as buying up Horses, to serve for a Train of Artillery, and amassing large Quantities of Forage upon the Borders of His Majesty's German Dominions ; These Steps denote something more than a Camp of Amusement, and it is scarce to be believed, that such Measures would have been taken, without an Intention of employing the Troops, which, it is known, are to take the Field to other Purposes than that of exercising Them, and keeping up Discipline by assembling together a considerable Corps, and seem to be meant either to deterr His Majesty from giving a vigorous Support to his injured Subjects, or to revenge, upon The King's German Dominions, the Measures, His Majesty may ultimately find himself obliged to pursue, in consequence of the violent, and unjustifiable, Detention of what remains due to the King's Subjects from The King of Prussia upon the Silesia Loan, under Pretences notoriously false and groundless ; But The King of Prussia will find himself greatly mistaken, and will learn, that The King's Magnanimity, and Justice, will never suffer His Majesty to neglect, what the Interests of His British Subjects, or the Honor and Dignity of His Crown, may render Necessary, from an Apprehension of the Consequences which may result to other Parts of His Dominions. This Proceeding of the Court of Berlin is a national Insult ; And should The King be drove to a Necessity of resenting It, (which however His Majesty is determined to postpone as long as possible), and should His Prussian Majesty, in consequence of such necessary Measures, form any Hostile Designs against any Part of His Majesty's Possessions in Germany, the World will see the unshaken Fidelity of The King's Subjects, and that they are ready to sacrifice their Lives and Fortunes in His Majesty's APPENDIX 69 327 Defence. But The King still hopes, that the Interposition of His Most Christian Majesty will prevent the fatal Effects of a Perseverance, on the Part of The King of Prussia, in the arbitrary & unheard of Proceeding, which he has threatened. The King has no Doubt of the Justice and Equity of His Most Christian Majesty, of His punctual Performance of all His Engagements, or of the Truth of those Professions, which have been so often made by the Court of France, of their sincere Desire, to preserve & maintain the General Tranquillity of Europe, upon the Foot of the Definitive Treaty of Aix la Chapelle ; And is likewise persuaded, that The Most Christian King cannot entertain the least Suspicion, that His Majesty has, or will take any one Step, but what is calculated for the Maintenance of the Public Peace, unless absolutely forced to other Measures, in Vindication of the Rights & Possessions of His Subjects. If Proofs should be necessary, Your Excel- lency has but to recollect, what passed in the very beginning of Your Embassy, when the Insinuations of The King of Prussia had almost induced the Court of France to believe, that the King was encouraging, or at least not endeavouring to prevent, some of His Allies, from taking such Steps, as might have endangered the Peace of the North, and, in It's Consequences, that of the Rest of Europe. But I need not remind Your Excellency of what passed so long ago, when I can give You a recent Proof of His Majesty's still remaining in the same Intentions, by the Temper & Forbearance which His Majesty has hitherto shewn upon the Insults offered by The King of Prussia, and the Pains, His Majesty has taken, to convince that Prince of His Injustice, to give Him Time for Reflection, & by endeavouring to induce the Court of France, to shew him, the Necessity of retracting an unjust & violent Resolution. But though The King relies entirely on the Good Faith of France, & on the Efficacy of their Representations to the Court of Berlin, if they are in reality made with that Force & Energy, which the present Case requires, yet Prudence may dictate to The King, to take such early Mea- sures with His Allies, as the Safety of His Dominions, & the Honor of His Crown, may require, And the Court of France must be sensible, that The King, vigorously supported by His British Subjects, (as in this Case He undoubtedly will be) has it in His Power, to retort any Injury or Violence, that may be offered. But I must again repeat, that it is still The King's Wish and Desire to avoid, if possible, coming to Extremities, and therefore, tho', perhaps, some Powers might not be unwilling to lay hold of such an Opportunity of revenging former Quarrels, His Majesty will take Care, that no Step taken by any of His Allies, under His Majesty's Influence, 328 APPENDIX 69 shall give just Cause of Complaint, or endanger that Peace, which The King is so desirous of maintaining. Thus the Court of France seems to have it in their Power still to preserve the Tranquillity of Europe, for it cannot be supposed, that The King of Prussia would, of Himself, against the Advice & without the Support of France, follow Measures, which would undoubtedly expose Him to the Resentment of the Rest of Europe; And should His Majesty's German Dominions be attacked in consequence, and on Account, of an English Quarrel, such a Violation of the Laws of the Empire, & of Publick Faith, such a Proceeding would necessarily call upon the Court of France, even to join their Forces against the Agressor. But without recurring to antient Treaties, I need only quote the 20 th Article of the Treaty of Aix la Chapelle, by which all His Majesty's Do- minions, and Possessions, in Germany are expressly and solemnly guarantied by France, and His Majesty thinks Himself so certain of the Friendship and Good Faith of The Most Christian King, that He has been pleased to command The Duke of Newcastle and Myself, to talk in the most amicable and confidential Manner with the Due de Mirepoix upon the present critical Situation of Affairs, and The King having been pleased, to permit us to set down in Writing (least any Mistake should arise on so delicate an Occasion) the Words, which We were suffered to make use of, I shall transcribe them for Your Excellency's Information, & You will please to read them over to Mo r de S 4 Contest, viz*. ' Le Roy a ordonne au Due de Newcastle, et au Comte de Holdernesse, de temoigner a Son Excellence Mons r . L'Ambas- sadeur de France, combien Sa Majeste est Sensible a la Fa9on polie, et amicale, dont Mo r , de St. Contest a re9u la Communi- cation, faite par My Lord Albemarle, de ce qui s'est passe dernierement, avec la Cour de Berlin ; et dont S. E. Mo 1 '. Le Due de Mirepoix s'est expliquee, a la meme Occasion. Sa Majeste ne doute pas, qu'Elle ne trouve au Roy Tres Chretien tous les Sentiments, que puisse demander Son Amitie personelle pour Le Roy, Ses Egards pour la Justice, 1'Execution la plus scrupuleuse de Ses Engagemens, et le Maintien de la Paix generale. Aussi Sa Majeste se repose-t-Elle entierement la dessus. ' Mais comme Le Roy vient de recevoir des Avis, que Le Roy de Prusse fait des Preparatifs de Guerre, en amassant des Munitions, de 1'Artillerie, et d'autres Choses necessaires, sur les Frontieres des Etats Allemands de Sa Majeste ; Et quTl a achete de Vieilles Pretensions sur de certains Pais appar- tenans au Roy, et garantis a Sa Majeste par 1' Article 20 du dernier Traite d'Aix la Chapelle : La Prudence du Roy ne APPENDIX 69 329 Lui permet pas de regarder ces Demarches d'un Oeil indiffe- rent, d'autant moins, qu'il y a Lieu de soupgonner, que les susdits Preparatifs se font, dans 1' Intention de detourner le juste Appui, que Sa Majeste doit aux Droits de Ses Sujets de la Grande Bretagne, si notoirement envahis et leses par les Demarches extraordinaires de la Cour de Berlin, ainsi qu'il n'a ete que trop clairement prouve par la Piece, qui a ete dressee, en dernier Lieu, sur ce Sujet ; Ou meme dans le Dessein d'attaquer les Etats Allemands du Roy, soit comme une Suite des Violences, deja commises sur Ses Sujets Anglois, ou en Revanche de La Protection, qu'on suppose pouvoir leur etre accordee, par Sa Majeste sur leurs justes Plaintes. ' C'est pourquoi Le Roy espere, que Mo 1 '. 1'Ambassadeur de France s'informera au plutot des Sentimens de Sa Cour sur cette Affaire ; et de quelle Maniere Le Roy Tres Chretien voudroit s' employer aupres du Roy de Prusse, pour le de- tourner d'une Demarche, qui est si injuste en elle-meme, et qui, certainement, entraineroit, dans la Suite, une Guerre Generate. En cas que, centre toute Attente, Les puissans Offices de Sa Majeste Tres Chretienne n'eussent pas 1'Effet desire ; Et que Sa Majeste Prussienne persistat tou jours dans la Poursuite de Ses Violences ; Le Roy s'assure de la Garantie stipulee par les Traites ; par celui d' Aix la Chapelle, en parti- culieur ; et nommement par le 20 e Article de ce Traite, dont le Due de Newcastle, et Le Comte de Holdernesse, ont Ordre expres de donner Copie a Mons r . 1'Ambassadeur de France, par laquelle Son Excellence verra, que Tons Les Etats, et Posses- sions, de Sa Majeste en Allemagne, sont expressement garantis par les Parties Contractantes, dont la France a ete Une des Principales. ' Le Roy ne fait pas cette Demande, comme si Sa Majeste entretenoit le moindre Doute sur 1'Exactitude de Sa Majeste Tres Chretienne a accomplir Ses Engagements, et tout ce qu'on peut souhaiter d'un bon Ami, et d'un fidele Allie. Mais comme la Continuation de la Paix depend de la Resolution, que la France pourra prendre ; Cette Satisfaction une fois donnee, Le Roy sera non seulement tout-a-fait tranquilise en Son particulier, mais Lera aussi en Etat de tranquiliser les Autres, qui peuvent avoir pris de 1'Ombrage des Demonstra- tions Militaires du Roy de Prusse, dans des Endroits suspects. Bien loin d'avoir en ceci, le moindre Soupgon sur les Disposi- tions pacifiques de Sa Majeste Tres Chretienne ; On souhaite seulement etre mieux en Etat d'affermir la Paix, par le Moyen d'une Assurance amicale a cet Egard. Le Roy ne souhaite rien tant, que la Conservation de la Tranquillite Publique ; Sa Majeste est prete a y contribuer par tous les Moyens qui sont en Son Pouvoir ; Comme aussi a 1'Entretien de 1'Amitie, 330 APPENDIX 69 et de 1'Union, les plus parfaites, avec Sa Majeste Tres Chre- tienne. Mais on ne peut pas etre surpris, dans la circonstance presente que Le Roy prenne toutes les Mesures convenables, pour defendre Les Droits de Ses Sujets, et pour la Surete de Ses Etats. C'est a Sa Majeste Prussienne a repondre des Suites, qui en peuvent resulter au Prejudice de la Tranquillite Publique.' Your Excellency will observe, in how friendly a Manner, His Majesty has commanded His Servants, to express His Thoughts, and how desirous The King is, of receiving an Assurance of the Most Christian King's reciprocal Desire of co-operating with Our Royal Master in the Preservation of the Peace ; And It is The King's Pleasure, that Your Excel- lency should make this the Rule of Your Conversation with the French Ministers. I should hope that Mo r de S* Contest will have no Objection to pursue the Method which We have begun here, and will either permit Your Excellency to take down in his Presence, the Words He shall make use of, or direct Mons r de Mirepoix to treat with The King's Servants here in the Manner We have done with him, which is the only Method of avoiding Mistakes. I am sensible I could add many Considerations upon this Point, but as my Letter is already swelled to too great a Length, I will only add, that if the Court of France do not find Means, to prevent the King of Prussia from persisting in His Violent Resolutions, they may perhaps be obliged to support what they cannot approve, and all Europe be drawn into the Cala- mities of a War, without any material Views of Interest to the principal Parties concerned, but merely from the restless Ambition of His Prussian Majesty. 70. MIREPOIX, NOTE VERBALE (5. P. For., France, vol. 246) Note a lire a Mo r . le Due de Newcastle et a Mons 1 '. le Comte de Holdernesse. Le Roy a vu avec la plus grande Satisfaction dans 1'Ecrit remis a Mo 1 ', le Due de Mirepoix par les Ministres du Roy d'Ang re la Justice que Sa Maj t< Brit 6 rend a Son Amitie pour Elle, a Son Attention constante et impartiale pour le maintien de la Tranquilite publique et a Sa Fidelite a Ses Engagemens ; Sa Majeste n'a pu voir qu'avec beaucoup de peine les premiers In dices de Division, qui se sont manifestos entre le Roy d' Ang re et le Roy de Prusse. La Connoissance qu'Elle a des Sentimens de ces deux Princes pour la Conservation du repos APPENDIX 70 331 public, lui fait croire qu'il ne sera point altere pour un Objet tel que celui qui fait le Sujet de la presente Contestation ; cependant Sa Majeste pour repondre a la Marque de Confiance que Sa Maj t6 Brit 6 lui donne en lui demandant Ses bons Offices, ne negligera rien de ce qui pourra dependre d'Elle pour aplanir les Difficultes qui pourroient s'opposer a la Conciliation des Interets des deux parties, au sujet des prises faites pendant la derniere Guerre par les Sujets de Sa Maj te " Brit 6 sur ceux de sa Maj te " Pruss 6 . Quoique sa Maj t<5 connoisse en general les intentions pacifiques de Sa Maj te " Pruss 6 , elle n'est nullement instruite des Dispositions de ce Prince sur le Fait particulier dont il s'agit ; Elle fera donner incessament Ses Ordres a Son Ministre a Berlin pour eclaircir celles du Roy de Prusse avant de faire aucune Demarche formelle qui put egalement la com- promettre et le Roy d'Ang re en meme terns. En attendant Sa Maj t6 ne sauroit dissimuler, que si la reponse de la Cour de Londres a 1'expose de celle de Berlin par raport aux prises contient des principes solides et re- connus, elle en contient aussi d'autres qui ne peuvent etre adoptes par aucune Puissance et par aucune Nation commer- cante ; Ainsi les bons Offices de Sa Maj t6 aupres du Roi de Prusse ne sauroient la dispenser de continuer a poursuivre par les Voyes usitees par les regies etablies la Justice qu'elle croit legitimement due a Ses propres Sujets a 1'occasion des prises faites sur Eux tant avant qu'apres la Paix d'Aix-la- Chapelle. L'Equite et I'lmpartialite de Sa Maj t<5 et les Dispositions dans lesquelles elle est persuadee qu'elle trouvera egalement Sa Maj t<5 Brit 6 et Sa Maj t6 Pruss 6 doivent lui faire esperer une heureuse Issue des soins qu'Elle se donnera, pour parvenir a des moyens de Conciliation propres a effacer jusques aux moindres traces de Mesintelligence entre deux Princes dont 1'Amitie lui est extremement chere. Toutes les Puissances ont senti 1'avantage et la Necessite d'assembler et de faire camper leurs Troupes en terns de Paix pour les entretenir toujours au maniment des Armes, aux Evolutions et a la Discipline Militaire ; Ainsi on ne doit prendre aucun Ombrage, ni rien conclurre des Arrangemens de cette Nature que la Paix que sa Maj t6 et sa Maj te " Brit e ont rendue a 1'Europe et dont elle jouit si heureusement, soit en danger d'etre interrompue tant qu'elles seront 1'une et 1'autre occupees a prevenir et a ecarter tout ce qui pourroit la troubler. 332 APPENDIX 71 71. HOLDERNESSE TO ALBEMARLE (S. P. For., France, vol. 247) Separate. Whitehall 2 d April 1753. Earl of Albemarle. MY LORD, I received on Sunday the 25 th past, the Honour of your Excellency's Letters of the 2i st , and laid them immedi- ately before the King. His Majesty took particular Notice of the Account you give in your seperate Letter, of what had passed with Mo r de S* Contest, upon the Subject of the Dispute with the King of Prussia, when that Minister assured you of the Punctuality with which His Most Christian Majesty would execute all His Engagements towards the King, and particularly Those relating to the Guaranty of His Maty's German Dominions, and expressed great Surprize at the King of Prussia's offering to buy up any Pretensions upon Territories in His Maty's Possession, Which, He understood were equally guarantied by the Treaty of Aix la Chapelle ; And His Majesty was very well pleased with the solemn Protestations Mo r de S l Contest made, that the Most Chris- tian King had Nothing so much at Heart, as the Preservation of the Publick Peace ; But, as the French Minister was general in his Discourse to Your Excellency, and referred you, in some Measure, to what he should write to the Due de Mirepoix, upon this Subject, I have the King's Com- mands to acquaint you with what has passed here, with the French Ambassador, since I had the Honour of writing to you last. That Minister, having been with the Duke of New- castle and Myself, acquainted us, that His Most Xtian Majesty remained in the Resolution of contributing, all in His Power, to the Preservation of the General Tranquillity, and that He would, most punctually, perform all His Engagements towards the King, And, in Answer to the Paper, which he was suffer'd to copy for his Memory, he read over a Note, of which he likewise admitted a Copy should be taken, and I have the Honour to inclose it for your Information ; And I will trouble your Lordship with some Remarks, which seem natural to occur, from the Contents of it. The Compli- ment, at the Beginning of this Paper, is contained in very general Words, & no Mention is made in it of the Specifick Guaranty of His Majesty's German Dominions, which was reclaimed, by the King, in Consequence of the 20 th Article of the Treaty of Aix la Chapelle, a Copy of which Article was annexed to the Paper given to Mo 1 de Mirepoix, and should have been taken Notice of : The Uneasiness which APPENDIX 71 333 His most Xtian Maty expresses, at the first Appearances of a Division between the King and His Prussian Majesty, shews of what Consequence this Affair appeared to be, to the Court of France, tho' very soon afterwards, the Object is treated, as not being of a Nature to disturb the Publick Peace : Can the Court of Versailles imagine, that the King will look upon so atrocious and National an Insult, as the King of Prussia threatens, to be a Point of little Moment ; But, however, the Most Christian King, in Consideration of the Confidence placed in him by His Maty, promises He will use His Endeavours, to reconcile the Interests of the two Parties, in what relate to Prizes, made by the English, upon Prussian Subjects, during the Course of the last War. Surely, the French Ministers cannot seriously believe, that this is the Point upon which His Majesty desired the Inter- position of the Court of France ; And I must beg leave, in a few Words, once more to state the Case to Your Ex c > r . Courts of Admiralty, and an Appeal from them to the King in Council, are regularly established here, as in all other trading Nations ; Complaints of a Violence, or Injustice, are, in all Countries, tried in the Courts, and Dominions of the Power, whose Subjects are supposed to have done a wrong, to those of another Power ; and it is impossible to proceed in any other than this Method, which is universally received. The King of Prussia imagines His Subjects to be injured by the Decision of these Courts, and appoints an Extraordinary Commission, in His own Dominions, to examine the Deter- minations of the English ; This, I will be bold to affirm, is the first Attempt of the Kind, that was ever made, and can only be an Examination ex parte, yet, in Consequence of this extra-judicial Proceeding, founded upon no former Example, nor any Colour of Right whatsoever, The King of Prussia defalks the Payment of a Part of the Silesia Loan ; a Debt due to private Persons, to which, the King of Prussia, by the most solemn Treaties, has made Himself liable, upon a very valuable Consideration, and which ought to have been dis- charged long before His Prussian Majesty's Complaints existed, and ought not to have been detained, upon any Consideration whatsoever. This, My Lord, I call a National Affront, which is already given, and which requires Repara- tion ; But the King, in Consequence of that Moderation & Justice, which is the Rule & Guide of all His Actions, directed a minute Enquiry to be made into these Complaints. Upon Examination, the Facts Themselves, proved to be falsely stated, and the Reasonings & Conclusions drawn from them erronious : A full, and, I will say, satisfactory Answer, was prepared, and, in the most friendly manner, 334 APPENDIX 71 comunicated to the Court of France : And what was it His Majesty desired of Them ? not that they should enter into a Discussion of the Point of Right, but, That they should induce, by Their Good Offices, the King of Prussia, to desist from a violent and unjustifiable Resolution ; Engage Him to pay what was due to the King's Subjects, and which is unjustly, and insultingly detained from Them, and, thereby, prevent the Consequences, which would probably result, from the Measures His Majesty might be forced to take, in Vindication of the Honour of His Crown, and of the Rights of His Subjects ; And His Majesty is still in hopes, that the most Christian King will make such effectual Representations to the Court of Berlin, as shall answer the Purpose ; but I must acquaint Your Ex c y that the King will not suffer Himself to be amused, or this Transaction to be drawn into too great a Length, which, I must confess, seems to be, in some Measure, the Meaning of the French Ministers. But this is not all which the King meant should be repre- sented to the Court of France ; It was proper, at the same time, That they should know, that if, in Consequence of the King of Prussia's Obstinacy, the King should be forced to take Hostile Measures ; And if, in Revenge for any just Reprizal, which the King has an undoubted Right to make, if the Silesia Loan is not discharged, any Part of the King's German Dominions should be attacked, even tho' under Pretence of an obsolete Claim purchased from another Prince, The King has a Right to reclaim the solemn Guaranty given by the Court of France, of all His Majesty's Possessions, by the Treaty of Aix la Chapelle, owned and confessed by the French Ministers, tho' not mentioned in Mo r de Mirepoix's Paper, The Examination of which I will now continue. It proceeds to say, that the Most Christian King, tho' informed in general of His Prussian Majesty's Pacifick Inten- tions, is not acquainted with that Prince's Disposition, as to this particular Fact, but that an Enquiry shall be forth- with made : The King is glad to find that Orders will be sent to the French Minister at Berlin, to learn the King of Prussia's Resolution, for it is upon that, that the present Question turns. I am quite at a loss to understand the following Part of the French Paper, wherein it is said, that the Most Christian King cannot dissemble ; That tho' the Answer given by His Maty, may contain some solid & received Principles, yet it also contains others, that cannot be adopted by any trading Nation : I cannot guess what those Principles are, which are thus objected to, and must desire your Excellency will get a further Explanation of these dark Surmizes, and APPENDIX 71 335 ambiguous Expressions, 'till when, it is impossible, to answer a hidden Meaning, which is neither understood, nor guessed at : The King was glad to find, that the Court of Versailles was resolved to solicit the Justice which They imagined may be due to French Subjects, on Acco* of Captures, par les Voyes usite'es et par les Regies etablies. This is what the King has always contended for, tho' y e French Court have endeavoured to introduce a new Manner of Proceeding ; And it is in order to avoid a Deviation from y e receiv'd Methods & established Rules, that the King has not permitted His Commissaries, to receive the List of Prizes offered by y e French Commissaries, contrary to y e Intent and Meaning of that Part of their Commission, & repugnant aux Voyes usite'es, et aux Regies etablies ; And the Court of France may depend upon the most exact Justice on every lawfull Com- plaint which may be made, but I cannot see why this was introduced into a Paper relating singly to y e Dispute with the King of Prussia, & y e means of preventing the fatal Consequence which may result from it, if not timely pre- vented ; unless the French Ministers intend to blend two Questions which materially differ, and to insist on a Com- pliance, on the Part of the King, to their unreasonable Demands, before they will employ Themselves to prevent His Prussian Maty from continuing in an unjust & offensive Resolution. As to the Hopes, His Most Christian Majesty entertains of destroying the least Traces of Mesintelligence, between His Majesty, & The King of Prussia, that will entirely depend upon the Nature of the Representations, which shall be made to the Court of Berlin, and upon the Degree of Influence which those Instances may have upon His Prussian Majesty. If the Court of France is sincere, in their Desire of keeping Peace, They seem to have it, in Their Power, but I believe Your Excellency will plainly perceive, it must be done by other Methods, and upon other Principles, than Those, laid down in the Paper which makes the object of this Letter. As to the Excuse, which is made upon the Rumours of Military Preparations, The King takes it as a Civility, and receives it, as such. I have endeavoured to throw together, in the shortest Compass, that the Nature of the Subject will admit of, the several Considerations, which have arisen upon what has passed with Mons r de Mirepoix, and am to signify to You, His Majesty's Pleasure, that you should make Use, in a proper Manner, of the several Suggestions contain'd in this Letter, and particularly that you should state to Mo r S fc Contest, in it's true Light, the Dispute with the King of Prussia, and the Consequences, which may result from it ; That you 336 APPENDIX 71 should shew the French Minister, the Kind of Interposition, which His Majesty expects, from the King his Master, who was applied to, only upon a Supposition of His real Desire of maintaining the Peace, which may be affected by the unheard of Proceedings of the King of Prussia. Since writing what is above, I have received the Honour of Your Ex c y' 8 Letter of the 28 th of March, by which I find, that Mo r de S fc Contest had given you a copy of the Note, which makes it unnecessary for me to send you one in this Letter ; I wonder Mo r de S 4 Contest should not have given it you sooner. Your Excellency will easily imagine, that the King was far from being pleased at the Stile of that Minister's Con- versation with you, and, I must confess, I am a little sur- prized, you would not take up a Point of such Importance, with more Warmth, than appears by your last Letter. As to Mo r de S fc Contest's saying, that Nothing is to be appre- hended of the King of Prussia's having any Design whatever, on any Part of His Majesty's German Dominions, and that a Secretary, His Prussian Maty had at Hanover, had declared it to that Regency, it is Nothing to the present Question. The case stands thus, The King of Prussia, by refusing to pay what remains due on the Silesia Loan, has done Us a National affront, and, hitherto, perseveres in it. The King was in hopes, the Court of France would engage That of Berlin, to desist from an unjustifiable Resolution, which may affect the Tranquillity of Europe ; And if, in Consequence of such Measures as His Majesty may find necessary to take, if no Reparation is made for an Insult already committed, any Part of the King's German Dominions should be attacked, France cannot suffer such a Violence to be committed, with- out breaking through the solemn Guaranty, given by Them, of all His Majesty's Dominions & Possessions in Germany, by the 20 th Article of the Treaty of Aix la Chapelle. I flatter myself, I need add Nothing to this Letter, to enable your Excellency to talk fully with the French Ministers. I hope you will do so as soon as possible, and that you will dispatch a Messenger to me, with the Result of your Pro- ceedings. I am &c a HOLDERNESSE. APPENDIX 72 337 72. ALBEMARLE TO HOLDERNESSE (5. P. For., France, vol. 247) Paris, Wednesday, 4 th April, 1753. MY LORD, The only thing of consequence he acquainted me with, was, that he flatter'd himself, that the Differences between my Court and that of Berlin would be amicably accommo- dated ; that the Courtier, whom they had dispatch' d thither, with Instructions to their Minister in consequence of the Note that had been read to M. de Mirepoix, and which I had been directed to read likewise to M. de S fc . Contest, must have arrived there on Friday last. He, afterwards, acquainted me, that Mo r . de Mirepoix had wrote to him, that the Duke of Newcastle and Your Lordship, had been well satisfied, with the paper, that Ambassad 1 had read to You, of which, I had the honour, of sending Your Lordship a Copy, last Wednesday. I express'd my Satisfaction at it, and that I expected I should receive some Orders, in relation to it, by the first Messenger. ALBEMARLE. 73. ALBEMARLE TO HOLDERNESSE (S. P. For., France, vol. 247) Paris, Wednesday, n^ 1 April, 1753. MY LORD, The Most Christian King going to Choisy, Monday Morning, of which I had no Notice, all the French Ministers, except Mo r . de S fc . Contest, took the Opportunity of coming to Paris, and I was therefore disappointed of seeing any other but him. Your Lordship will have observed, by my letter of the 4 th . Inst*., with what Inconsistencies and even Contradictions, I have to contend with here ; either Mo r . de Mirepoix does write, or Mo r . de S*. Contest asserts, of his mere Motion, that the Paper, read by the French Ambassador, to the Duke of Newcastle and Your Lordship, has given Satisfaction, and yet, how different does the Case appear to be, in Your Lord- ship's Letter, to which I am now returning an Answer, and 1783 Z 338 APPENDIX 73 why Mo r . de S*. Contest should not have given me a Copy of that Paper sooner, as Your Lordship observes (for he could have done it,) I am as much at a loss to guess as Your Lordship ; However, when he did give it to me, I made such Observations to him, upon it, as then occurr'd to me, without having had the time to reflect upon the whole Matter as it deserved, and referring myself to such Orders, as I should receive, when it should come to be maturely weighed, and considered, at home. In consequence, therefore, of His Majesty's Commands, which I have since been honour'd with, I have represented to the French Minister, how different an Impression, Their Answer to the Note that had been given to Mo r . de Mirepoix, had made, from that, which he had told me it had ; And, as it was impossible for me to make use of better, or stronger, Arguments, than those contained in Your Lordship's letter, I summ'd them up to him, in as clear, and precise, a manner as I was able ; and explained to him the actual State of the Case (which, it is unnecessary for me, to trouble Your Lordship here, with a Repetition of, word for word); and the Expectations His Majesty enter- tained, from the Most Christian King's desire of maintaining the Publick Peace, from his Fidelity to His Engagements, and, from His particular Friendship to His Majesty. The French Minister confirmed to me, in the most solemn manner, all his former Assurances, of the Sincerity of the Intentions of the King, his Master, in all these respects, and, in return to the Surprize, which I told him it had given not to see any mention made in Mo r . de Mirepoix's Note, of the specifick Guaranty of His Majesty's German Dominions, he declared positively that tho' it had been omitted there, his Court did not make the least Difficulty to acknowledge it, and that they should be ready to give it, when the Case should exist. That, as to the supposed Purchase, by the King of Prussia, of any Pretensions from any other Prince, he neither knew, or beleived, any such had been made, and he then repeated to me, that all His Majesty's Possessions in Germany were equally guarantied by the last Treaty of Peace. As to what I had said of the Nature of Our Courts of Admi- ralty, and of the Principles and Methods of their Proceedings ; The unheard of Attempt, of the King of Prussia, in appoint- ing an Extraordinary Commission, in His own Dominions, to examine the Determinations of the English ; -His Defalk- ing, in consequence, the Payment of part of the Silesia Loan, and the Affront, he had thereby given to the Nation, which required a Reparation ; And that if, in consequence of the King of Prussia's Obstinacy, the King should be forced APPENDIX 73 339 to take Hostile Measures, in vindication of the honour of his Crown, and of the Rights of his Subjects, and that any part of His Majesty's German Dominions should be attacked, the King had a right to reclaim the solemn Guaranty, given by France, by the Treaty of Aix-la-Chapelle. The French Minister agreed with me in the first Points, relating to our Courts of Admiralty ; but he said that particular Treaties furnished Examples, in which the general Maxims had been inverted ; And, as to the rest, he said in general, that he had wrote, by His Most Christian Majesty's Orders, to the Court of Berlin, both, in relation to the Stoppage of the pay- ment of the Silesia Loan, and on the military Preparations, making, by that Court, whose Answer they were in immediate Expectation of ; that he was persuaded the King would not be forced to come to any Voyes de fait, and that all thoughts about it might be totally laid aside, at least 'till that Answer should be received ; but that, if contrary to all Expectation, it should be finally thought unavoidable, and the King of Prussia should be attacked, which, he said, they should not look upon in the light of Reprizals, but as an Aggression ; he then gave me to understand, that They had Engagements of Guaranty with that Prince likewise, who would, in that case, have a right to reclaim them. I took him up very short in this place, by shewing him, that I could, by no means, agree with him, in his Notion of an Aggression, since it was unfortunately past a doubt, that the King of Prussia's violent, and insulting Proceeding was the first Step towards it, and that if France took it in any other light, they would draw upon Themselves the blame of all Europe, and the 111 Con- sequences that might follow. He added, that if it was possible for the Most Christian Majesty's Good Offices, to destroy any Misunderstanding between the Two Crowns, His Majesty might depend on His Most Christian Majesty's Efforts and leaving nothing undone that might contribute to so good a Purpose. But that he could not disguise that they had no greater Degree of Influence over His Prussian Majesty, than the King had over the Court of Vienna. That, with regard to the Methods employed, by this Court, at that of Berlin, to attain the Ends proposed, it was impossible to condemn them, before they should be known, which, he observed they yet were not, and repeated, that he hoped they would have the desired Success. On my pressing him to explain to me, what were the principles objected to, by his Court, in the Answer given by His Majty. to the King of Prussia, he said, that it was to that Maxim, endeavoured to be established, that an Enemy's Goods can be taken on board the Ship of a Friend, which, z 2 340 APPENDIX 73 he added, is contrary to the General Law of Nations, for that they had an undoubted right, (for example) to demand those Goods, which the Subjects of France had on board Dutch Ships, the Treaty of Commerce between England & Holland in 1674 having acknowledged that Doctrine. This, I had no Difficulty to reply to, from the very Answer itself, that the Treaty he mentioned, was an Exception to the General Law of Nations, which, it inverted by a private Agreement between those two Powers, that did not affect any other Nation but themselves; and that if France had any Benefit to claim from thence, it could only be in con- sequence of such Treaties as subsisted between them and Holland ; in which case, they were to apply to that Republick for Right, but that they had nothing in common with Our Treaties with the Dutch. Mo r . de S'. Contest seem'd to enter into my reasoning, and if he did not formally give up the Point, at least he avoided saying anything further upon it, at present. I then proceeded to express the Satisfaction it had given His Majesty, to find, that the Court of Versailles was resolved to sollicit, par les Voyes usitees, et par les regies etablies, the Justice, which, they imagined, might be due to the French Subjects, on account of Captures. Mo r . de S*. Contest told me, without any further Explanation, at this Meeting, that, that was the Determination in which his Court would persist. And, tho' it had not been seen in England why any men- tion of this Matter should have been made, in a Paper relating only to Our Differences with the Court of Berlin, yet he could not help thinking, it was no improper place, when, talking of Prizes, to say a word of their Intentions, with respect to a Question of an Analagous Nature, between Our Two Courts, tho' perhaps not exactly the same, nor depend- ing on each other. I concluded these heads of Our Conversation, by saying, I hoped, and depended, that his Court would take the several Matters, which have been the Subject of Our Conference into their most serious Consideration, as it was of the greatest Importance to the General Tranquility, which might be affected by it ; And by assuring him, with some Warmth, that His Majesty would not surfer Himself to be amused, or this Transaction to be drawn into too great a length, and I therefore hoped His Most Christian Majesty would inter- pose His Good Offices, to bring the King of Prussia to hearken, as soon as possible, to Justice, and reason, and to desist, from persevering, in a violent Resolution which could not but be looked upon, as a National Insult, and in which he cannot but be considered as the Aggressor. Mo r . S*. Contest desired, APPENDIX 73 341 I would depend on his setting before His Most Christian Majesty, every thing that had passed between us in a full and true light. I took the Opportunity of acquainting him, that His Majesty took as a Civility, and received as such, the Excuse that had been made, upon the Rumours of military Preparations in this Country. In answer to which, that Minister said he would assure me again, that their Encampments were with no other Intent than for the sake of disciplining their Troops. Mo r . de S fc . Contest came Yesterday to Town, to give Audience to the Foreign Ministers, at which I attended, having several Matters to speak to him upon, relating to the private Interests of some of His Majesty's Subjects ; At this Meeting resuming the Subject of the Voyes de fait, &c a , in which it was the resolution of his Court to pursue their Demands on Our's for Prizes. He said, he would draw up a Note, which he would take an Opportunity of giving me, wherein he would explain, more particularly, what was under- stood, by those General Words. I endeavoured, yesterday, to see the Marechal de Noailles, and Mo r . de Puyzieulx, in order to speak to them, on all these important Subjects, but I had not the Fortune to meet with either of them ; I will seek some other Opportunity of doing it. I have the honour to be with the greatest Respect, My Lord, Your Lordship's Most obedient, and most humble Servant, ALBEMARLE. [Endorsed} Paris n th April 1753. H. E. the E 1 . of Albemarle. R 14^ By Colins. K g of Pr a. 74. ALBEMARLE TO HOLDERNESSE (S. P. For., France, vol. 247) Paris, Wednesday i8 th Apr'. 1753. MY LORD, Mo r . de S fc . Conquest [sic] acquainted me, Yesterday, that the Messenger that had been dispatched, from this Court, to those, of Berlin and Munich, as mentioned in the letter, I had the honour of writing to Your Lordship, the 4 th . Ins*., was return 'd ; and that, it was with great pleasure he could inform me, that the King of Prussia accepts the Interposition, and Good Offices, of the Court of France, to adjust the Differences between the King and His Prussian Majesty ; and that no time had been lost in sending a Messenger to Mo r . de Mirepoix, with 342 APPENDIX 74 this Account, and with Orders to communicate it to Your Lordship ; and as M. de S*. Contest told me, that, that Messenger went away last Monday, I conclude Your Lordship will have seen the French Ambassador before you have received this Letter. I expressed my Satisfaction, to Mo r . de S 1 . Contest, at this Disposition of the King of Prussia, and that I hoped it would not be long, before He would hearken to reason, by putting an End, to the present Complaints, which were of such a Nature, that His Majesty would not suffer Himself to be amused, or this Transaction to be drawn into too great a length, which I thought might, in a great measure, depend on the representations, this Court should make, to that of Berlin, and on Their Credit, and Influence, with the King of Prussia. I have the honour to be, with the greatest Respect, My Lord, Your Lordship's Most obedient, and most humble Servant, ALBEMARLE. [Endorsed]. Paris, i8 th April 1753. H. E. the E 1 of Albemarle. R 22 d . K g of Pr a, K g of the R ns. P r . Encampments. 75. MEMOIRE CONCERNANT LES PRISES SUR MER: APRIL 20, 1753 (S. P. For., Foreign Ministers in England, vol. 9) L' Attention que les Commissaires de Sa M t< . doivent aporter a 1'execution de la Commission qui leur a ete confiee par le Roy leur maitre, auroit seule suffi pour les exciter a s'expliquer avec M rs . les commiss 1 " 69 . de S. M. B. sur les principes, et les faits avances dans la reponse qui a ete rendue publique de M. Le Due de Newcastle au Ministre de Prusse et du raport qui y'est joint ; mais a ce motif se joignent les ordres qu'ils ont a cette occasion regus du Roy relativement aux interests qu'ils sont charges de discuter avec les Commissaires Anglois. L'objet de ce memoire ne sera done point d'entrer dans aucune discussion Sur les differends qui peuvent estre entre les Cours de Londres et de Berlin. Differends qui sont etran- gers aux reclamations des prises dont sont charges les com- missaires de Sa Majeste ; Mais les principes, et quelques vns des faits exposes dans la reponse de la Cour Britannique interessent si essentiellem* les droits du Roy et la propriete des biens de ses Sujets qu'il devient necessaire et indispensable APPENDIX 75 343 de constater ceux de ces principes et de ces fails dont on demeure d'accord, et de s'expliquer Sur les Autres, afin de parvenir a se concilier sur des objets aussy importans. II auroit etc a desirer qu'on eut commence dans les con- ferences entre les Comm 1 ' 8 . respectifs nommes et autorises pour decider de la legitimite des prises, par convenir des principes qui doivent determiner les decisions. On auroit pu alors se promettre de leurs conferences plus de fruit qu'elles n'en ont encore produit ; Mais I'eloignment qu'ont temoigne les Comm 19 . de Sa Maj t<5 . Britannique pour adopter et Suivre cette methode, cesse par la publicite des principes que ren- ferme la reponse de la G de . Bret 6 , au Roy de Prusse. Elle etablit la plupart des Maximes qui sont a Suivre dans la matiere des prises, et comme les deux Nations ne cherchent que la verite et la justice et qu'il paroit que ce sont ces motifs qui ont principalement guide les sentimens de M rs . les Magis- trats Consultes par S. M. Britannique, on a lieu de se flatter qu'on se conciliera enfin sur plusieurs points qui jusqu'icy etoient indecis entre les Commissaires. Ce Memoire sera divise en deux parties, on discutera dans la premiere les principes qui doivent determiner la condam- nation des prises et dans la seconde de quelle autorite Elles doivent etre jugees. PREMIERE PARTIE DES PRINCIPES SUR LA CONDEMNATION DES PRISES Article i er . De la Legitimite des prises. Tout ce qui concerne les prises se decide en general par les regies du droit des gens et par les Traites. C'est un principe reconnu de toutes les Nations. On convient avec M rs . les Magistrats Anglois que lorsque deux puissances sont en guerre ensemble, elles ont droit de prendre reciproquement I'vne sur I'autre, vaissaux, Marchandises et effets qui se rencontrent en pleine mer ; Que tout ce qui apartient a I'Ennemy est de bonne prise ; Mais que ce qui apartient a un amy ne peut I' etre tant qu'il garde la Neutralite. page n. Les Magistrats Anglois ont tire de ce principe plusieurs consequences. La premiere que les effets d'vn Ennemy peuvent etre Saisis, quoy qu'abord d'vn Vaisseau ami. Ibid. La Seconde que les Effets d'vn ami doivent estre rendus, quoy que trouves a'bord d'vn Vaisseau ennemi. Ibid. Ces deux consequences paroissent naturellement resulter du principe que Ton vient de raporter ; mais comme 1'excep- tion est souvent vne confirmation de la regie, on pourroit 344 APPENDIX 75 peut estre soutenir que le pavilion ami couvre la Marchand 86 . de 1'Ennemy, et qu'au contraire le pavilion ennemi rend la Marchandise de 1'ami Sujette a confiscation. C'est peut estre par 1'incertitude de ces consequences, que la plupart des Nations qui ont fait des Traites de Commerce ont stipule, que leur pavilion couvriroit les Marchandises de 1'En- nemy, excepte celles de contrebande. On ne pretend point decider si ces stipulaons sont vne exception au droit des gens, ou en sont vne confirmation, car les Traites peuvent estre interpreter en 1'vn ou 1'autre sens, quoyqu'ils s'interpretent plus communement dans le dernier. Cette disposition vniforme des Traites pourroit peut estre s'envisager comme vne Sorte de jurisprudence maritime avoiiee par les Puiss ces . de 1'Europe ; Mais quoyqu'il en soit a cet egard, les Traites de la France tant avec I'Angl 6 . qu'avec la Hollande sont formels sur la question dont il s'agit ; Et comme ces Traites font la Loy entre la France et ces deux Nations, Les Commiss res du Roy n'ont aucun interest a discuter ce que le droit des gens seul pourroit prescrire sur ce Sujet. Les Magistrats Anglois ont tire vne trois e consequence du principe cy-devant cite, Savoir que les Marchandises de Contre- bande qui se menent a 1'Ennemy quoyqu' apartenantes a vn amy sont de bonne prise, parce que fournir a 1'Ennemy de quoy poursuivre la guerre, c'est rompre la Neutralite. Ibid. Cette derniere consequence supose que les Nations de 1'Europe, sont d'accord sur ce que Ton doit entendre par Marchandises prohibees ou de contrebande, Si chaque nation pretendoit decider par vne volonte arbitraire de ce qui doit s'entendre par Marchandises de contrebande, et s'arroger le jugement de tout ce qui peut fournir a 1'ennemyde quoy pour- suivre la guerre, on pourroit enveloper sous ce vaste pretexte presque toutes sortes de Marchandises et d'effets. On auroit attendu des Magistrats consultes par Sa M t<5 . Britannique, qu'ils auroient explique avec precision, ce qujl faut entendre par Marchandises de Contrebande, et qu'ils les auroient nominees et Specifiees, arm d'ecarter solidement toutes les contestations qui pourroient s'elever sur la nature de ces Marchandises. Au defaut de notions assez precises, on doit regarder les Traites faits entre les differentes Nations de 1'Europe comme les enonciations les moins equivoques, et les plus impartiales de ce qu'elles ont pense sur les Marchandises de Contrebande. Or par les Traites, cette denomination doit en general se restreindre aux Soldats, cheveaux, [sic] armes et munitions de guerre, et aux vivres que Ton porteroit a vne place assiegee ou bloquee. APPENDIX 75 345 D'aprez cette observation qu'on ne croit pas que la Grande Bret 6 , puisse contester avec justice, s'il y a eu des prises faites de Cargaisons de bois et de Chanvre, ainsy que de bles qui n'allassent point a des places assiegees ou bloquees, la condam- nation de ces prises, seroit vne preuve que les Cours Angloises n'auroient pas toujours eu les Trait es sous les yeux pour y conformer leurs jugemens. Art e . 2 d . Des preuves requises pour la condamnation des prises. Des Captures faites avant la guerre et des domages et interets pour les Navires pris injustement. On adopte le principe etabli par les Magistrats Anglois, que les preuves pour decharger ou condamner vne prise, doivent en premiere instance venir toutes du Vaisseau saisi immediatement, comme sont les lettres de Mer qui s'y trouvent et les depositions sous serment du Patron et des principaux Officiers du Navire. page 12. Qu'en consequence II faut que tout Vaisseau soit complete- ment muni des documens de mer vsites, et que V originalite en soit evidente. p. 13. Le memoire Anglois ajoute qu'jl faut aussy que le Patron au moins du Navire soit au fait du may Etat de sa charge et de sa destination, p. 13. Nulle difficulte qu'il doit estre au fait de sa destination, mais quant au vray Etat de sa charge, on ne peut exiger de luy d'autre connoissance que cette portee dans les papiers de bord, et Surtout par les connoissemens * et les aquits des Douanes. Vn Capitaine de Vaisseau ne fait point ouvrir les balles, caisses ou futailles de Merchandises, souvent meme, et c'est fort ordinaire jl declare avant que de signer le connoissement, que le contenu des dites balles luy est inconnu, jl hazarderoit done son Serment dans 1'interrogatoire qu'on luy fait subir, s'il pretendoit repondre du Vray Etat de sa Cargaison ; Et le scrupule qu'jl auroit a cet egard ne doit point empescher vne condamnation de dommages et interests, lors que I'illegitimite d'vne prise est d'ailleurs etablie par les papiers de bord ou documens de Mer, et que ces pieces ne fournissent aucun fonde- ment qui ait pu en autoriser la Capture. Ces observations reoivent leur aplication par raport aux * Vn connoissemen est 1'Ecrit par lequel le Cap ne . ou patron reconnoit avoir charge dans vn tel Navire de telle Nation, tant de balles Caisses ou futailles de telles Marchandises Chargees par vn tel dans vn tel port, pour les conduire et remettre sauf les risques de la Mer a vn tel dans vn tel autre port, et tout patron doit en avoir Copie abord. 346 APPENDIX 75 principes Suivans, exposes dans la reponse de la Cour d'Angle- terre. Que quand jl arrive que des Lettres de Mer sont fausses ou suspectes, que des papiers sont jettes en mer, que le Patron et les Officiers preparatoirement examines, prevariquent visiblement que les lettres de Mer usitees ne se trouvent point a bord ou que le Patron et I' Equipage d'vn Navire ne peuvent pas dire, si le Vaisseau ou la Cargaison apartiennent en propre a vn amy ou Ennemi, le droit des gens, veut que suivant les differens degres de manquement ou de suspicion, provenant de la faute du Vaisseau ou d'autres circonstances particulieres du cas, vn demandeur meme a qui restitution se fait, paye pourtant les depens ou du moins ne recoive pas pas [sic] les siens. p. 13. Ces principes seroient pent estre susceptibles de plus de precision et de justesse, car d'vn cote lafaussete des Lettres de Mer, le jet des papiers, le defaut des lettres de Mer vsitees, et la prevarication dans les reponses aux interrogatoires, c'est a dire, lorsque les temoignages et les pieces de bord se contre- disent essentiellement et capitalement ; Toutes ces circon- stances excluent la restitution des Navires et autorisent leur condamnation. D'un autre cote les Soup?ons des Capteurs sur la verite des lettres de Mer, lorsqu'on ne peut les convaincre de faux, et 1'ignorance ou 1'incertitude de 1'equipage sur la propriete de la cargaison, lorsque les connoissemens et les factures sont en regie, et qu'on ne peut pareillement les convaincre de faux, ne peuvent autoriser vne prise en sorte que celuy qui 1'a faite, est cense 1'avoir faite a ses risques, et ne peut estre dispense de payer, non seulement les frais et depens, mais encore des dommages et interests. Que peut faire vn proprietaire neutre pour assurer son bien, sinon de mettre tous les documens d.e mer en regie ; Jl n'y a que ce point qui depende de luy. Jl ne doit pas estre responsable des faux Soup9ons que peut inspirer la cupidite des Capteurs, ni des reponses qu'on peut extorquer d'vn Equipage, souvent grossier, soit en 1'intimidant, soit en luy f aissant [sic] des demandes captieuses ; soit meme en corrompant vne partie de 1'Equipage. Les menaces, 1'astuce et la corruption ne doivent estre prejudiciables qu'a ceux qui les ont mises en reuvre, et non pas a ceux contre lesquels on en a fait vsage. Ces observations se trouvent confirmees par le principe qu'etablissent les Magistrats Anglois et ou Ton ne trouve qu'vn seul mot dont le sens ne soit pas assez determine ; Savoir que s'il arrive qu'vne capture se fasse sans fondement probable, celuy qui la fait, est condamne aux dommages aussy bien qu'aux depens. p. 13. Le mot de probable est celuy dont le sens ne paroit point APPENDIX 75 347 assez precis. L'explication de ce mot retombe dans celle qu'on a faite sur les Soup9ons. Si la defectuosite des pieces de bord, si quelque imperfection dans 1'enonce de ces pieces, quelque omission, quelque faute enfin, qui ne seroit point vne faussete ou vne prevarication, donnent lieu au Capteur de presumer qu'jl est fonde a s'emparer d'vn Navire, Des que cette pro- babilite provient du Navire pris, Elle peut infliier sur la prononciation des depens et dommages ; Mais si cette pro- babilite n'etant souteniie d'aucune defectuosite dans les documens de Mer n'a de fondement que 1'opinion qu'jl a plu au Capteur de s'en faire ; on ne peut sans s'ecarter des regies de la justice, et manquer aux droits des gens, refuser des depens et dommages a ce luy qui a ete injustement pris. Le sentiment des Magistrats Anglois sur la legitimate des dommages et interests pour les prises faites injustement, donne la confiance de croire que desormais les Commissaires de sa Majeste Britannique se rendront a la justice d'accorder des dommages et interests pour les Navires fran9ois, dont la capture sera reconniie in juste. On attend d'eux la meme justice pour la restitution des prises faites avant la guerre. Jls avoient refuse constament de se rendre aux Stipulations les plus expresses, les plus for- melles du Traite d'Vtrecht sur la restitution des Navires qui pouroient avoir ete pris en terns de paix, quoyque le Traite d'Aix la Chapelle porte que celuy d'Vtrecht aura la meme force que s'il y etoit insere mot a mot. Les Commissaires du Roy avoient inutilement represente qu'au commencement de la guerre, le Roy, qui par prudence avoit fait saisir les Navires Anglois qui estoient dans Ses ports, les avoit restitiies par justice sur la demande qui en avoit ete faite de la part de 1'Ang 6 . par le ministere de 1'Ambassadeur des Etats generaux, et sur la promesse que I'Ang 6 . en agiroit de meme a 1'egard des Navires fran9ois. Vn argument si decisif et si peu susceptible de replique, n'avoit cependant pu ebranler les Commissaires de Sa Maj te . Britannique fermes dans leur opinion, dont ils ne se sont departis d'Eux memes que peu avant la publicite de la reponse de la Cour de Londres au Roy de Prusse ; Jls argu- mentoient ainsy, le Traite d'Aix la Chapelle porte que Ton restitiiera les prises faites depuis la cessation des hostilites ; Done il exclue les prises faites avant la guerre, Mais jl paroit que cette maniere de raisonner, ou d'vn principe amrmatif, Ton tire vne conclusion negative, n'a pas trouve grace aux yeux des Magistrats eclaires qui ont ete consultes par S. M t<5 . Briti ue . puisque la Cour d'Angleterre fait aujourdhuy si publi- quement 1'aveu de la justice de restituer les Navire[s] frangois pris avant la guerre et que meme elle se fait honneur de 1'avoir execute, ce qui est vray pour quelques cargaisons ; 348 APPENDIX 75 Mais ce qui devient a juste titre vne assurance anticipee de la restitution d'vn grand nombre de Navires que la France reclame au meme titre. C'est avec ces modifications qu'jl faut entendre le passage de la lettre de M. Le D. de Newcastle ou jl est dit p. 7. que les Tribunaux d'icy (C'est a dire] d'Ang 6 . ne se sont pas meme prevalus d'vne guerre ouverte pour saisir ou retenir les effets de I'Ennemy lorsqu'jl a paru que ces effets avoient ete pris injustem 1 . avant la guerre; Cette circonstance ajoute-t'jl, doit faire honneur a leurs procedures, et montrera en meme terns qu'jl etoit aussy peu necessaire que pen convenable d'avoir recours ailleurs a des procedures absolument inusitees. Jl n'y auroit aucune objection a faire contre ce passage, si la France n 'etoit pas dans le cas de reclamer, et ne reclamoit pas depuis quatre ans, contre la condamnation illegitime d'vn grand nombre de prises faites avant la guerre. Mais on a desormais vne pleine confiance sur la restitu- tion de ces prises, ainsy que sur celle des dommages, et in- terests pour les Captures faites sans fondement, Car les Com- missaires Anglois n'y ont resiste jusqu'a present qu'a la faveur d'un raisonnement dont on a deja fait sentir le peu de justesse. Le Traite d'Aix la Chapelle, ont jls dit, porte la restitution des Vaissaux avec leurs Cargaisons. Done jl exdue les depens et les dommages et interests ; Cette Logique ayant et6 proscrite pour les prises faites avant la guerre, et n'etant pas moins contraire aux regies de 1'equite qu'a tous les prin- cipes du droit des gens, on ne doit pas douter que les Comm re8 . Anglois en y'faisant des secondes reflexions, n'y renoncent formellement. C'est vn principe fonde en justice, et qui est etabli dans le memoire de la Cour Britannique pages 4 et 16 ; que le droit des gens ne cesse de servir de regie entre deux Nations que lorsqu'jl y'a vne derogation par des Traites. Le Traite d'Aix la Chapelle n'a pas deroge au droit de demander les indemnites que prescrit le droit des gens Lorsqu'on fait vne prise sans vn fondement valable, et par consequent ce droit a conserve toute sa force, et doit avoir son execution. Art*. 3. Des exceptions aux principes du droit des gens en matiere de prises. Quoyque le droit des gens ainsy que disent les Magistrals Anglois, fasse pour la determination des prises, la regie generate, cependant deux puissances peuvent par accord mutuel, et quant a Elles, la changer o^t sen ecarter. Alors ce sont les exceptions et les changcmens introduits par leurs Traites qui deviennent APPENDIX 75 349 la Loy pour les contractans, et le droit des gens ria plus lieu entre eux qu'en tant que les Traite's n'y derogent point, p. 16. C'est ainsy que par le droit des gens, lorsque deux puissances sont en guerre, tout vaisseau est sujet a estre arrete, et examine pour voir a qui jl apartient, 6- s'il ne porte pas de la contrebande a I'ennemy ; Et que par des Traites particuliers, cette recherche a jusques a vn certain point ete mitigee sur la foy et V exhibition, ou de passeports solennels ou d'autres preuves de propriete attestees en bonne et due forme, ibid. Il'y a aussy des conventions particulieres qui tout au revers du droit des gens declarent de bonne prise les effets d'vn amy qui se trouvent abord d'vn vaisseau ennemy et rendent libres les effets d'vn ennemy, qui se trouvent abord d'vn Vaisseau Amy. p. 16 et 17. On ne contestera aucun de ces principes qui sont avances par les Magistrats Anglois dans leur raport a S. M. B. ; mais soit que les effets d'vn amy a bord d'vn vaisseau ennemi soient libres en vertu du droit commun des gens; soit qu'jls ne doivent 1'etre que par les Stipulations des Traites ; Jl est certain qu'en consequence meme des principes avances par la Cour Britannique, Tous les effets apartenans a des francois et pris sur des Vaisseaux hollandois auraient du estre libres et n'etre point condamnes en Angl e . Si les Tribunaux des amirautez d'Ang e . avaient Suivi exactement les regies qui doivent s'observer de Nation a Nation. Voicy en effet comme s'exprime l'Art e . 8 du Traite de Londres de Commerce et Navigation entre Charles 2. Roy d'Ang 6 . et les Etats Generaux des Provinces unies du 10. Xbre. 1764. Omne id quod Navibus ad subditos dominorum ordinum Spectantibus, immissum deprehendetur pro immuni atque libero habebitur, etiam si totum oneris vel ejusdem pars aliqua ad hostes Regiae Majestatis justo proprietatis titulo pertinuerit, exceptis semper mercibus contrabands. Tout ce qui se trouvera Sur des Navires apartenans aux sujets des Etats generaux sera libre et exempt encore que toute la Cargaison ou vne partie apartint a juste titre de propriete aux Ennemis de Sa Maj^. excepte les Merchandises de contrebande. Suivant les regies de la bonne foy les Marchandises des francois doivent estre libres et exemptes Sur les Vaissaux hollandois, Les Negocians francois ne les y'ont fait charger, que dans la presomption que les Anglois fideles a leurs engage- mens, respecteroient les Traites qu'jls avoient avec les holan- dois ; ce que les Magistrats Anglois ont dit des Navires pris avant la guerre, qu'on n'a jamais pretendu les confisquer 350 APPENDIX 75 quoyqu'ils apartinssent a des Sujets d'vn Ennemi actuel, et se trouvassent entre nos mains, parcequ'jls n'y eussent point eti alors sans le tort qui leur avoit ete fait auparavant, a son apli- cation aux Marchandises trouvees sur les vaisseaux hollandois, parce qu'elles ne s'y seroient pas trouvees sans les Traites qui les declaroient libres et exemptes, et dont la bonne foy faisoit presumer 1'execution. D'apres ces observations on est en droit d'attendre que 1'Ang 6 . restituera toutes les Marchandises apartenantes aux fran9ois qui ont ete prises sur des Navires hollandois, ou autres Navires de Nations neutres qui ont avec I'Ang 6 . des traites pareils a ceux qui sont entre Elle et la hollande. Pretendre que les fran9ois n'auroient point droit de les reclamer ce seroit aller contre la bonne foy avec laquelle on doit executer ses engagemens ; Car si Ton peut manquer a de pareilles Stipulaons, sans que personne ait droit de s'elever contre vne infraction aussy manifeste, les Traites sont illu- soires. Si ce sont les hollandois qui ont le droit d'en former la reclamation, jls ne peuvent se dispenser de la faire sur la requisition de la France, et de differer sa demande a I'Ang 6 ., ce qui revient au meme, que si la France la formoit directe- ment et immediatement ; et ce seroit par consequent inci- denter que d'en clever la difficulte. Si 1'Ang 6 . resistoit a cette demande, ce qu'on ne presume pas d'apres les principes qu'elle a etablis, ce seroit vne Loy bien dure et bien injuste que celle en vertu de laquelle on pretendroit que la Clause qui feroit perdre aux Nations neutres les effets qu'elles auroient charges sur des Vaisseaux ennemis, devroit avoir son execution, tandis que la clause qui affranchiroit les effets ennemis charges sur des Navires neutres, ne devroit pas 1'avoir. SECONDE PARTIE DE QUELLE AUTORITE ON PEUT JUGER LES PRISES FAITES SUR MER Le sisteme de I'Ang 6 . sur cette question, est que les prises doivent estre jugees en dernier ressort de I'autorite de la puissance dont les Sujets sont les preneurs. On ne peut adherer a ce principe qui detruit par le fonde- ment le droit des gens. On pense au contraire que Suivant le droit des gens, les prises ne peuvent estre jugees, que provisoirement par les Tribunaux de la Puiss ce . dont les Snjets sont les preneurs. APPENDIX 75 351 Qu'elles ne peuvent estre jugees definitivement de 1'autorite seule de la Puissance dont les Sujets sont les preneurs, ni de celle dont les Sujets ont ete pris. Que des qu'une des deux Puissances reclame centre les jugemens rendus par les Tribunaux de 1'autre, ou qu'elle demande qu'on nomme des Commissaires respectifs pour decider des prises, on ne peut sans deni de justice refuser d'en deferer la decision a des Commissaires. Et que dans le cas ou ces Commissaires ne peuvent se concilier, 1'esprit de prudence, d'impartialite et de justice, doit porter les deux parties a choisir vne Puissance arbitre plutost que de prendre la voye des represailles qui est indi- quee par les Trait es et qui conduit presqu'jnfailliblement a la guerre. Cette opinion paroit la seule qui puisse concilier 1'amour de la paix, avec les principes du droit des gens sur 1'inde- pendance mutuelle des Puissances de 1'Europe. Lorsque les Jugemens des amirautes et des Cours Supe- rieures sont prompts et peu dispendieux ; Lorsque ces Jugemens sont non seulem*. justes et equitables, mais que la justice et 1'equite en sont reconniies par toutes les parties interessees, et qu'elles y acquiescent, Lorsqu'enfin il n'y a aucune reclamation, et qu'aucune des parties ne demande des Commissaires, I'acquiescem*. aux Jugemens rendus ne donne aucune atteinte au droit des gens. La methode de Juger les prises par des Cours qui sont proposees a cet effet, est usitee en France. Les Jugemens s'en rendent presque sans aucun frais, 1'expedion y est prompte, et les Etrangers y ont volontiers recours ; Mais c'est vne jurisdiction qu'ils ne subissent que volontairem*. On n'a point pretendu qu'jls y fussent obliges. S'il y a eu rarement des Comm res . nommes pour la decision des prises c'est que rarement la demande en a ete faite au Roy ; Jamais elle n'a ete ni con- testee ni refusee. Les Magistrats Anglois consultes par sa Maj t<5 Britannique ont cite sur la question presente dans le raport qu'jls ont fait au Roy leur Maitre. p. n. les sentiments et 1'Autorite d'Heineccius fameux Jurisconsulte digne des eloges qu'ils luy ont donnes. Us ont pretendu dans le meme raport que la Methode de faire juger les prises par les Cours d'Amiraute avec faculte d'en apeller a vn Tribunal superieur, est indiquee confirmee et autorisee par vn grand nombre de Traites. ibid. L'examen de ces deux assertions est necessaire pour eclaircir cette matiere on examinera en suite les raisons particulieres sur les quelles 1'Ang 6 . apuye son opinion. 352 APPENDIX 75 Art 6 . i er . Examen du Sentimen d'Heineccius Les Magistrals Anglois ont cite au soutien de leur opinion, p. n, les Sections 17 et 18 du second Chap 6 , du Traite d'Hei- neccius sur la prise des Navires qui portent des Marchandises prohibees. Pour bien prendre 1'esprit d'Heineccius, il faut examiner ce que renferme la Section 16. qui precede les deux sections citees par les Magistrats Anglois. Jl etablit dans la Section 16. que les prises, ne sont a la disposition des preneurs qu'apres vne Sentence rendiie au Tribunal des causes Maritimes. La raison qu'jl en allegue, c'est que les gens de Mer sont egalement indociles et avides ; et que sans egard pour le droit jls se prevaudroient d'vn pretexte specieux pour s'em- parer des Navires Amis, S'ils n'etoient obliges de rendre compte de leurs prises aux Magistrats. La Section 17 porte que c'est par cette raison que les Princes ont ordonne par leurs Edits que les prises ne seroient adjugees qu'apres avoir ete declarees bonnes par les Cours d'Amiraute. Heineccius observe que la discussion y' est sommaire ; Qu'en Hollande on ne permet point de Duplique, qu'a Lubec on proscrit de ces causes les avocats & c . La Section 18 dit simplement qu'aussitost que la Sentence est rendiie, la prise devient la propriete de ceux qui 1'achetent. Tout ce qu'Heineccius dit dans ces differentes sections se renferme dans les bornes d'vne police interieure et civile. Jl ne s'agit que d'vne instruction sommaire et qui ne seroit nullement suffisante vis a vis d'vne Puissance Etrangere qui prendroit fait et cause pour ses Sujets. Tous ceux qui ont quelque connoissance de la maniere dont se jugent les prises, Savent que la plupart meme se jugent sans parties contra- dictoires, sur le simple vu des pieces de bord et sur 1'inte- rogatoire de 1'Equipage. Ce qu'on peut resumer du Sentiment d'Heineccius, C'est que Suivant ce Jurisconsulte chaque Nation a prevu avec sagesse et prudence que la propriete d'vne prise devoit rester en suspens jusqu'a ce qu'jl fut intervenu vn Jugem*. sur la legitimite de la Capture parce que s'il avoit sum de prendre pour pouvoir vendre et disposer, 1'avidite des gens de Mer, n'auroit point eu de frein ; Jls auroient egalement pille ami et ennemi, et les Armateurs auroient degenere en pirates et forbans. Mais suit jl dc la, comme pretend la Cour Britannique, qu'on ne peut prendre connoissance des affaires de cette nature APPENDIX 75 353 que dans les Tribunaux de la Puissance chez la quelle la saisie se fait p. 8. Et en peut'on conclure que la puissance dont les Sujets ont perdu leurs Navires, et effets, ne peut demander sinon que ses Sujets soyent juges, et qu'elle n'a pas le droit d'examiner s'ils ont etc injustement depouilles, et d'insister sur vne legitime reparation. II s'en faut bien qu'Heineccius ayt avance vne proposition aussy contraire au droit des gens. On convient avec les Magistrats Anglois, que lorsque les deux parties sont censees reconnoitre la justice de la Sentence, le proces est terminee [sic] p. 18. Mais le cas dont jl S'agit est ce luy ou Ton se plaint de 1'injustice de la prise, et de celle du jugement qui 1'a declaree legitime. Suivant ces Magistrats la seule voye reguliere d'en faire rectifier et reparer les erreurs est par apel au Tribunal Superieur du meme souverain. p. 10. Mais en vertu de quel droit peut on obliger vn etranger a Subir plusieurs degres d'vne jurisdiction dont jl n'est point justiciable, surtout si par la on le constitue dans des frais certains et tres considerables, pour attendre vn jugement tres incertain, et que meme jl doit presumer luy estre con- traire, puisqu'il a deja essuye vne condamnation dans vn premier Tribunal de la meme Nation. D'ailleurs c'est eloigner la difficulte d'vn degre, et ce n'est point la resoudre. Car si ce Tribunal superieur commit luy meme vne injustice, ou qu'on le pretende, vn Souverain etranger dont les Sujets ont navigue a I'ombre de sa puissance et Sous sa protection, doit jl les abandonner a la direction d'vne autre Nation. Tout le monde sera d'accord avec les Magistrats Anglois que, les Cours d'Amiraute ou autres doivent juger selon le droit des gens et les Traites p. 12. Mais qui doit juger si elles si conforment ou si elles s'en ecartent ? Car jl n'est pas moins vray que ces memes Magistrats en conviennent, que Si par le droit des gens et les Traites il ne paroit point qu'jl y ait eu juste lieu a condamner, soit comme effets ennemis, soit comme contrebande, jl faut que la decharge s'en strive, ibid. Et ce principe est aussy vray pour le second degre de Juris- diction comme pour le premier. ' Ce cas s'offre trop sensiblement de luy meme pour avoir ete omis par Heineccius. Jl s'en fait 1'objection a la Section 22 e . qui n'a pas ete citee dans le raport des Magistrats Anglois. ' Mais si par le jugem 1 . rendu, dit ce Jurisconsulte, le Navire est confisque pour raison de Marchandises prohibees, et que la nation a qui il est enleve, se plaigne qu'on luy fasse injustice, ne reste-t-il done aucun remede ? La prudence ne veut pas que Ton ait dans 1'instant recours a la voye des iv83 A a 354 APPENDIX 75 armes. L'vsage est d'envoyer des Ministres pour reclamer les prises injustes, ce qui a ete pratique dans notre Siecle par les Anglois et les Hollandois qui reclamoient plusieurs Navires qu'ils se plaignoient avoir ete injustement enleves par les Suedois. A la verite si Ton ne peut remedier au mal par cette voye de douceur, on a coutume de decerner des represailles.' Le Sentiment d'Heineccius est incontestablement conforme au droit des gens. Vne nation est encore moins soumise aux tribunaux, qu'aux loix d'vne autre nation ; Elle cesseroit d'etre Souveraine et independante. Tout Souverain a droit de faire examiner si Ton a rendu justice a ses Sujets, lorsque ses Sujets n'ont agi que sous sa protection : Si elle n'est pas exactement rendiie, il a droit de la demander, si elle est refusee, de 1'exiger par les armes ; Si elle n'est que contest ee, de requerir qu'il en soit decide par des Ministres ou Commissaires revetus des pouvoirs des deux nations, ou par vn arbitre neutre et convenu. Telles sont les voyes qu'ouvre et qu'autorise le droit des gens. L'erection et les fonctions des Cours d'Amiraute et des Tribunaux qui leur sont superieurs ne changent rien a ces principes. Chaque nation a le droit de les etablir ; Elle peut et doit le faire. C'est un egard et vne attention que toute nation se doit a elle-meme, que de s'eclairer sur la legitimite des prises faites en vertu de commissions emanees de son autorite ; C'est vne necessite de les faire juger, soit, comme on 1'a dit, pour rendre vn jugement provisoire, con- tenir les armateurs, et reprimer les pirateries, soit pour decider les contestations qui s'elevent frequemment entre les armateurs d'vne meme nation, soit pour avoir des ren- seignemens en cas de recours de la part des nations etrangeres qui se trouveroient lesees, et se trouver d'autant plus en etat de leur procurer justice. Jl est dans 1'ordre que 1'Etat prenne connoissance d'vne prise dont on peut luy demander la restitution, et qui a ete faite de son autorite. Mais toutes ces considerations n'excluent point le droit du Souverain de la partie saisie, et n'y peuvent donner atteinte. Tout ce qui a ete fait par des tribunaux etrangers, luy est etranger. Jl n'est lie et ne peut 1'etre que par ce qui est fait en vertu de ses ordres et de ses pouvoirs ; et il ne peut y avoir de juges a la decision desquels il soit tenu de deferer, que des commissaires respectifs ou vn arbitre convenu. Ce que 1'on vient d'exposer doit fixer le sens d'vn passage remarquable du raport fait au Roy d'Ang re . Apres avoir parle de la methode de juger et d'adjuger les captures en premiere instance par les Cours d'Amiraute et sur 1'apel par vn tribunal Superieur de revision, il est dit p. 16 que toutes les Puis- sances neittres y ont acquiesce. APPENDIX 75 355 Si Ton entend par la purement et simplement que c'est vne police interieure, stipulee neantmoins par plusieurs traites, mais plustdt comme vne faculte que comme vne Servitude ; que 1'autorite de ces jugemens ne lie pas la Puissance qui reclame et qui pretend qu'on s'est ecarte dans les jugemens rendus, ou du droit des gens ou des traites, en sorte qu'il n'en resulte ni retardement ni exclusion pour a la premiere requisition d'vne des parties en deferer le jugement a des Commissaires ; on convient qu'avec toutes ces restrictions, c'est vne methode a laquelle toutes les Puissances neutres ont acquiesce. Mais si Ton entend que Ton est strictement oblige de subir le second degre de jurisdiction, car le premier jugement est rendu immediatement a 1'arrivee de la prise, sur la simple requete du Capteur et presque toujours sans aucune comuni- cation a la partie saisie ; Si Ton entend que toutes les Puis- sances neutres ont acquiesce a la jurisdiction de tribunaux etrangers, parceque ces tribunaux sont tenus de prononcer selon le droit des gens et les traites, qu'il suffit, comme il est dit a la page 18, qu'ils jugent selon leurs consciences, quand meme leur sentence seroit de fait erronee, parcequ'il ne se peut que differens esprits ne pensent et ne jugent differemment sur des cas douteux ; Et qu'en consequence on pretende assimiler ses sujets et ceux des autres Puissances comme devant Subir les memes loix et la meme jurisdiction. On ne croit pas qu'il y ait vne seule Puissance neutre qui ait acquiesce a vn pareil sisteme ; Et il est certain qu'il y en a qui n'ont pas sacrifice a la Grande Bretagne, et qui ne luy sacrifieront jamais les droits de leur independance. Jl est si peu possible de se Soustraire a la force et a 1'evi- dence de ces principes, que les Magistrats Anglois en con- viennent eux memes, quoique ces principes soient inaliables [sic] avec leur sisteme, et qu'ils en entrainent la destruction ; Void en effet comme ils s'expriment p. 26. ' Tout Souverain etranger avec qui on est en amitie a droit de demander que justice se fasse a ses Sujets, conformement au droit des gens ou aux traites particuliers, s'il en est de faits avec luy, qui subsistent ; Et lorsqu'en des cas qui ne sont susceptibles d'aucun doute, ces tribunaux precedent d'vne maniere diametralement opposee au droit des gens ou aux traites en vigueur, le Souverain neutre est tres fonde a s'en plaindre.' C'est avoiier que les etrangers ne sont point tenus d'y deferer ; Mais il resteroit encore a decider qui determineroit si le cas est douteux ou non ? Si la contravention au droit des gens est diametrale ou ne Test pas ? Toutes ces ques- tions ne sont d'aucune jurisdiction particuliere, et ne peuvent Aa 2 356 APPENDIX 75 etre decidees que par les voyes qui ont lieu de Souverain a Souverain. Toutes les restrictions que les Magistrats Anglois ont voulu mettre a ces principes, ne peuvent ni les aneantir ni les affoiblir, ni les changer. Les articles suivans repandront encore vn plus grand jour sur cette matiere. Article 2 e . Examen des Traites. Les Magistrats Anglois ont cite dans le raport a Sa Majeste Britannique vn grand nombre de traites que Ton doit regarder comme les plus importans et les plus decisifs sur cette meme matiere. On se renfermera ici dans 1'examen de ces m ernes traites. On a vu dans 1'article precedent que 1'vsage etoit de faire proceder sans delai au jugement d'une prise par les cours des causes maritimes, et que cet vsage ne donnoit aucune atteinte aux droits qu'ont les Souverains etrangers de reclamer contre la condamnation des prises faites injustement. Au contraire c'est vne premiere instruction qui constate la prise, qui fait connoitre le capteur, qui fournit plusieurs renseigne- mens sur les circonstances, et qui facilite les recours et les reclamations. On en peut conclure qu'il est de 1'interest des Puissances, ainsi que du bon ordre interieur et civil, que les Capteurs ne puissent disposer de leurs prises, sans qu'il soit aupara- vant intervenu vn jugement, et que ce jugement soit revu par vn tribunal superieur, afin qu'une nation se faisant justice a elle meme, on soit au moins plus rarement dans le cas de former des reclamations. Jl resulte de cette observation qu'il a ete de 1'interest des Puissances de le stipuler par des traites entre elles. Jl y a en effet parmi ceux qui sont cites dans le raport fait au Roy d'Angleterre plusieurs de ces traites ou il est dit que les prises seront jugees par des Cours d'Amiraute avec appel a vne Cour Superieure ; Mais pour que ce jugement fut re garde autrement que comme provisoire, et qu'il fut definitif, il faudroit qu'il y cut des engagemens d'y acquiescer, sans reclamer, et qu'en consequence les Puissances contractantes eussent renonce au droit d'en deferer 1'examen a des commis- saires, et d'vser de represailles dans le cas ou elles auroient a se plaindre de 1'injustice des jugemens. C'est ce que ne porte aucun de ces traites. On ne se rapelle pas que Ton y trouve en aucun [en-] droit le mot de jugement Souverain et en dernier ressort. Jl ne suffit pas qu'vn traite porte que les Capteurs ne pouront disposer de leurs prises qu'apres avoir essuye vn ou deux degres de jurisdiction ; Ces APPENDIX 75 357 stipulations n'etant point contraires au droit des gens, n 'em- portent aucune derogation a ses dispositions. Si vn Souverain a droit, comme on n'en peut douter, de prendre fait et cause pour vn de ses sujets dont le navire n'aura pu etre protege par le pavilion, qui est la marque de la protection du Prince ; Si vn sujet en pareil cas a luy-meme le droit de reclamer la protection de son Souverain, il faudroit qu'vn Etat cut renonce bien expressement et bien formellement aux droits qui sont vne suite de son independance, pour etre oblige d'acquiescer aux decisions d'vn tribunal etranger. Le traite de La Haye du 17 Fevrier 1668, et celui de Londres du i er Decembre 1674 entre 1'Angleterre et la Hollande sont de ceux qui portent que les prises seront jugees par les Cours d'Amiraute, avec faculte d'appel a vn Conseil Superieur, si les Ministres forment quelques plaintes sur 1'injustice du premier jugement ; Mais ces traites ne renferment aucune clause dero- gatoire aux droits naturels des Souverains, et par consequent ces droits restent en leur entier. On ne parlera pas du traite de Westminster entre les memes Puissances du 6 Fevrier 1715-6. parcequ'il ne fait que confirmer les traites antecedens, et expliquer vn article de celui de 1674. II est vrai que les Magistrats Anglois ont avance p. 30 que par les traites entre 1'Angleterre et la Hollande il est expresse- ment enjoint a tout Sujet Hollandois de ne recourir en dernier ressort qua la Cour d'appel de Sa Majeste Britannique. On peut lire ces traites et 1'on sera convaincu que ce qui est avance par les Magistrats Anglois est vne faute d'inatten- tion qui echape facilement, lorsque Ton est preoccupe d'vn sisteme. Les traites entre ces deux nations ne portent point le mot de dernier ressort, mais simplement ceux de Cour Superieure, vlterieure et de revision. Jls portent aussi peu qu'il n'y aura que ce recours. Jls stipulent que les prises seront jugees par les Cours d'Amiraute, que sur les plaintes des Ministres, il y aura apel a une cour de revision ; C'est vne voye qu'ils ouvrent pour obtenir justice ; Mais ils ne ferment ni ne proscrivent celle qui est ouverte par le droit des gens, et qui est de recourir au Souverain et de demander vn examen par des Commissaires respectifs. Jl faudroit qu'il y eut vne derogation expresse et formelle, comme elle s'y trouveroit si au lieu de s'exprimer comme fait le traite qu'on aura recours a la voye d'appel, il s'etoit exprime comme le font les Magistrats Anglois qu'il n'y aura de recours qu'a la voye d'appel. II ne faut pas beaucoup de logique pour sentir la difference de ces expressions. Jl en est du traite de St. Germain du 24 Fevrier 1677 entre la France et 1'Angleterre comme de ceux dont on vient de 358 APPENDIX 75 parler. Mais les autres en plus grand nombre cites par les Magistrals Anglois, renf erment tous, quelques articles ou quel- ques clauses qui, loin de confirmer leur sisteme, etablissent au contraire que les contestations sur les prises ne sont point de simples affaires de particulier a particulier ; Car Ton convient que celles de cette nature doivent etre portees devant les tribunaux du pays ; mais que ce sont des affaires de nation a nation ou les Ministres publics inter viennent, et ou ils traitent entre eux sous 1'autorite de leurs maitres et en vertu de leurs pouvoirs. Ces traites sont autant de preuves que les Souve- rains ont le droit de requerir que la discussion des prises soit remise a des commissaires respectifs ; Qu'enfm chaque Sou- verain se reserve le droit de faire rendre justice a ses Sujets ou d'vser de represailles. Pour ne laisser rien d'obscur ni de douteux sur cette matiere, on examinera sommairement ces traites par ordre de dates. Traite de S fc . Germain du 29 Mars 1632, entre la France et 1'Angleterre. Par ce traite les Ministres de France promettent au nom du Roy leur maitre de faire payer a 1'Ambassadeur d'Angleterre di verses sommes enoncees par les articles i et 2. pour les navires le Jacques, la Benediction & ca ., et il est pareillem* stipule au nom du Roy d'Angleterre par 1'article n. de payer a qui par le Roy de France sera ordonne les sommes y enoncees pour les Navires le Gabriel, la S te Anne & ca . Ces articles prouvent evidemment que dans le cas de prises injustes la restitution est determinee non par 1'autorite d'aucune Cour de Judicature des deux nations, mais par celle des deux nations memes confiee a leurs Ministres respectifs. On peut remarquer que les deux Rois en font leur affaire personnelle, puis que c'est en leur nom que les payemens sont promis. Traite de Westminster du 3 Novembre 1655 entre la France et 1'Angleterre. L'article 3 de ce traite porte qu'en cas de delai ou de deni de justice elle sera requise et poursuivie par 1'Etat, 1'Ambas- sadeur, ou des Ministres de celui dont les Sujets auront souffert le dommage. L'article 24 stipule formellement qu'il sera nomme des Commissaires de part et d'autre pour liquider les prises, en ordonner et regler le payement, la compensation ou la satis- faction, et que dans le cas ou les Commissaires ne seroient pas d'accord entre eux les differens indecis seront remis a 1'arbi- trage de la Republique de Hambourg. Ces dispositions sont bien contraires au sisteme Anglois pour interdire la decision des prises a toute autre nation qu'a celle des capteurs. On peut dire que ce traite indique les APPENDIX 75 359 voyes que les Princes doivent prendre pour terminer les con- testations sur les prises et eviter de se mettre dans la necessite de decerner des represailles. Traite de Madrid du 23 May 1667 entre 1'Espagne et 1'Angleterre. Ce traite porte a la verite que les prises seront jugees par les Amirautes ou par des competens ; Mais par 1'article 3 il est stipule qu'en cas de delai ou de deni de justice les Rois se la demanderont reciproquement, et qu'il y aura des Commis- saires respectifs pour entendre et recevoir les demandes, arm que tous les differens puissent etre accommodes a 1'amiable. Ce traite ne prouve done point qu'on s'en remette definitive- ment aux jugemens prononces par les tribunaux de la nation qui a fait la prise. Jl prouve au contraire qu'en cas de con- testation c'est vne affaire a traiter de Couronne a Couronne et a terminer a 1'amiable. Traite de Westminster du 29 Nov bre 1669. 1 entre 1'Angle- terre et le Dannemarck. Quoique ce traite soit vn des plus circonstancies sur ce qui sera observe dans les jugemens par les Cours d'Amiraute et par les Cours Superieures qui connoitront de 1'appel, 1'article 35 porte expressement que si 1'vne des deux parties, etrangere au pays ou s'agite la contestation, prefere d'etre jugee par des commissaires, les deux Rois en nommeront des qu'ils en seront requis a 1'effet d'examiner toutes ces sortes d'affaires. Traite de Wittehall du 29 Avril 1689, entre 1'Angleterre et la Hollande. On ne voit pas pourquoi les Magistrats Anglois ont cite ce traite dans leur raport. 1 The correct date of this Treaty is n July 1670 (Record Office). The text of Art. 35 is as follows : ' Utque amborum Regum Subditorum securitati eo uberius prospi- ciatur adhibeaturque cautio, ne ulla ipsis violentia a praedictis Navibus bellicis inferatur, omnibus Ser ml Magnag Britannia; etc. Regis Navium bellicarum Prasfectis et aliis quibus cunque ejus subditis severe in- jungetur et mandabitur, ne molestia aut detrimento ullo subditos Ser m ' Regis Daniae et Norvegias etc. afficiant, Secus si fecerint in per- sonis et bonis omnibus tenebuntur, donee de detrimentis ab ipsis illatis et incommodis omnibus exinde perceptis et percipiendis debita ac justa fuerit consecuta satisfactio et compensatio, similiter omnibus Ser ml Regis Daniae et Norvegiae etc. Navium bellicarum Praefectis et aliis quibus cunque Ejus Subditis severe sub iisdem poenis injungetur et mandabitur, ne molestia aut detrimento ullo dictos Regis Magnaj Bri- tanniae etc. subditos afficiant, Proviso tamen quod omnes praedictae actiones justo et legitimo processu in Curia Admiralitatis utriusque Regis examinari et judicari debeant ; sive si partium alterutri qui ex- traneus fuerit, in isto loco ubi controversia erit peragenda, potius visum fuerit, coram certis quibusdam Commissar iis, quos uterque Rex statim atque implorati fuerint, hunc in finem constituent, examinabuntur, ita ut processus hac ratione non solum absque plurimis sumptibus per- tractari, sed etiam ad summum intra tres Menses finiri possit.' 360 APPENDIX 75 La France etoit alors en guerre centre 1'Angleterre et la Hollande. Le traite dont il s'agit n'est qu'vne convention entre ces deux Puissances alliees pour vnir leurs forces mari- times et concerter leurs armemens. Elles stipulent que les prises faites sur leur ennemi seront au profit des deux nations ; Qu'elles seront jugees par la Cour de 1'Amiraute de celle des deux nations dont le Navire aura fait la prise ; Que dans le cas ou la prise sera faite par les navires des deux nations joints ensemble, elle sera jugee par la cour de I'Amiraute de la Nation dont les vaisseaux auront 6te les plus forts en nombre de canons. Toutes ces stipulations sur le jugemens et le partage des prises faites sur 1'ennemi n'ont aucun raport a la question dont il s'agit. Ni la Hollande ni 1'Angleterre qui sont les deux seules Parties contractantes, ne soumettent les prises qui seroient faites sur leurs sujets au jugement definitif des tribunaux de 1'vne ou 1'autre nation. On croiroit superflu de s'etendre davantage sur ce traite. Traite de Commerce de Riswick du 20 Sept lire . 1697 entre la France et la Hollande. Par 1'article 4 de ce traite il est declare qu'il sera accorde des lettres de represailles en cas de deny manifeste de justice. On y stipule qu'avant de les accorder la requeste de celui qui les demandera sera communiquee au Ministre qui se trouvera sur les lieux de la part de 1'Etat contre les Sujets duquel elles seroient donnees, afin, porte le traite, qu'il puisse procurer raccomplissement de la justice qui est due. Le traite ne dit pas afin qu'il puisse procurer vn jugement, mais la justice qui est due ; Par consequent les Parties con- tractantes se reservent d'en connoitre, conformement aux dispositions generates et communes du droit des gens sur cette matiere. Traite de commerce d'Vtrecht du n Avril 1713 entre la France et 1'Angleterre. L'article 3 du traite de commerce d'Vtrecht contient sur les represailles les memes dispositions que 1'article 4 du traite de Ryswick dont on vient de parler. Jl autorise les lettres de represailles dans les cas de delay ou de deni de justice, apres la communication de la requete par laquelle on en formera la demande, afin que I'on puisse procurer la juste satisfaction qui sera due. Ces dispositions sont confirmees par 1'article 16 du traite de paix d'Vtrecht avec 1'Angleterre qui est de meme datte que celui de commerce ; On y prevoit et on y admet le cas des represailles, lorsque la partie lesee n'aura pas ete satisfaite. Loin que ces stipulations ayent pu exclure la voye des Com- missaires, 1'article n du meme traite de paix avoit pourvu a ce qu'il en seroit nomme a la requisition de 1'vne ou de APPENDIX 75 361 1'autre des parties pour prendre connoissance des prises faites durant la paix. Telle est la loy actuelle entre la France et 1'Angleterre, puis- que par le dernier traite de paix d'Aix la Chapelle le traite d'Vtrecht y est confirme par 1'article 3 comme s'il y etoit insere mot a mot, ce qui emporte 1'obligation de nommer des Com- missaires a la premiere requisition d'vne des deux parties pour juger des prises faites avant la guerre, ainsi qu'il est porte par 1'article u du traite d'Vtrecht. Le traite d'Aix-la-Chapelle avoit ete precede d'vne declara- tion du 8 Juillet 1748 entre les Ministres de France, d'Angle- terre et de Hollande, ou Ton est expressement convenu de referer a des Commissaires le jugement des prises faites depuis la cessation des hostilites. Tous ces exemples font connoitre que jamais aucune nation n'a pretendu s'assujettir a vne jurisdiction etrangere pour le jugement defmitif des prises ; et que tout ce qui se trouve dans les trait es sur les jugemens qui seront rendus, tant par les Amirautes, que par les Cours Superieures ne peut s'entendre que de jugemens provisoires qui ne derogent point a 1'indepen- dance mutuelle des Puissances de 1'Europe, a la protection que les Princes doivent a leurs Sujets, et au droit qu'ils ont de demander et d'exiger vne juste reparation et satisfaction lorsqu'on a donne atteinte a la Sauvegarde qu'imprime la protection des Souverains aux effets et aux navires de leurs Sujets suivant tous les principes du droit des gens. Article 3 e . Examen des raisons alleguees dans le raport fait au Roy d'Angleterre. II est necessaire de rapeller quatre paragraphes du raport fait a Sa Majeste Britannique ou les Magistrats Anglois ont pretendu etablir que les etrangers doivent reconnoitre 1'autorite des tribunaux de leur nation en matiere de prises. 1. ' S'il arrive, disent-ils p. 17, qu'vn Sujet Prussien ait vne plainte ou vne demande a former centre quelqu'vn qui est domicilie ici, il doit s'adresser aux tribunaux de Votre Majeste, qui tous sont egalement ouverts aux etrangers comme aux nationaux, de meme qu'vn Sujet de Votre Majeste, si tort luy est fait par quelqu'vn qui ait son domicile dans les Etats Prussiens, doit s'adresser aux tribunaux de Sa Majeste Prus- sienne. 2. ' Si le grief regarde vne capture sur mer en terns de guerre, ou que le differens soit relatif a vne capture, il faut s'adresser aux tribunaux etablis pour juger ces causes. 3. ' Le droit des gens fonde sur la justice, sur l'equite, sur la 362 APPENDIX 75 raison, et la convenance des choses, et consacre par vn long vsage, ne permet des represailles que dans les deux cas seuls, ou d'vn tort violent, dirige, et soutenu par vn Souverain, ou d'vn absolu deni de justice de la part de tous les tribunaux et du Souverain meme, et cela en choses qui n'admettent pas le moindre doute ou litige. 4. ' Mais ou la liberte entiere est laissee aux juges de pro- noncer selon leurs consciences, quand meme vne sentence qu'ils rendent seroit de fait erronee, elle ne donneroit cependant nul lieu a des represailles. Jl ne se peut gueres que differens esprits ne pensent et ne jugent differemment sur des cas douteux ; Et dans ces cas tout ce que 1'ami etranger peut demander raisonablement, est que justice luy soit rendiie aussi impartiallement qu'aux gens du pays ou sa cause se plaide.' Pour juger du merite de ces raisonnemens il faut distinguer deux natures d'affaires. Les vnes qui sont de particulier a particulier qui doivent se decider par les loix ainsi que par les tribunaux du pays. C'est le cas de tout particulier qui fait des affaires dans vn pays etranger ; Jl sait en les entreprenant que s'il survient des discussions il doit reclamer la protection des loix et des Magis- trats. Jl est d'autres affaires au contraire qui doivent etre con- siderees comme affaires de nation a nation ; Ce sont celles que des Sujets entreprennent sous la protection de leurs propres Souverains. Ou cette protection n'a pu les garantir d'vne violence etrangere faite de 1'autorite et en vertu de la com- mission d'vn Souverain etranger, 1'injure faite au particulier regarde alors 1'Etat dont il est Membre. C'est vne affaire de nation a nation, qui n'est soumise a aucun tribunal civil, qui ne peut se juger par les loix civiles d'aucune nation ; Elle est des lors de nature a ne pouvoir se concilier que de gre a gre, et elle ne peut se traiter que suivant les principes de 1'equite naturelle et du droit des gens. Telles sont evidemment les prises faites sur mer. Le droit des gens suivant meme les Magistrats Anglois p. 24. est la seule regie a suivre dans les decisions de cette nature : Et des que le droit des gens en est la seule regie des tribunaux particuliers a vne nation n'en peuvent decider, parceque 1'autorite qui les constitiie ne peut leur donner de jurisdiction sur les autres nations, en sorte qu'ils sont incompetens en consequence meme des principes qui devroient determiner leurs jugemens ; et que ce seroit donner la plus violente atteinte a ces principes que de pretendre seulement faire reconnoitre leur jurisdiction. Cette distinction entre les affaires de particulier a parti- APPENDIX 75 363 culler et de nation a nation ne peut se contester ; et des qu'elle est admise, la premiere reflexion qui se presente a la lecture des paragraphes qu'on a raportes cy dessus des Magistrats Anglois, c'est qu'on ne peut conclure de ce qui s'observe dans les affaires de particulier a particulier, pour ce qui doit s'ob- server a 1'egard des prises faites en mer, qui doivent etre considerees comme affaires de nation a nation. C'est la cependant le vice evident et manifeste du raisonne- ment que 1'on vient de raporter. Les Magistrats Anglois etablissent dans le premier para- graphe cite, que si vn Sujet Prussien a vne demande a former centre quelqu'vn domicilie en Angleterre, il doit s'addresser aux tribunaux Anglois ; Et apres avoir etabli cette regie generale qui s'observe pour les affaires de particulier a parti- culier ils 1'apliquent dans le second paragraphic aux affaires de nation a nation, en disant que si le grief regarde vne capture faite sur mer, il faut s'adresser aux tribunaux etablis pour ces causes. Les reflexions vlterieures renfermees dans les paragraphes 3 et 4 portent indistinctem* sur ce qui est etabli par le i er et le 2 e quoiqu'elles n'y soient pas egalement aplicables ; Mais c'est vne suite du vice qui affecte le principe meme du rai- sonnement. Par exemple la voye des represailles dont il est parle dans le troisieme paragraphe n'est communement mise en vsage que pour les affaires de nation a nation. Suivant tous les principes admis et reconnus par les Anglois meme, le deny de justice les autorise ; Mais suivant eux il faut que le deny de justice soit absolu, que le tort soil violent dirige et soutemi par le Souverain, et qu'il n'y ait pas le moindre doute on litige. Toutes ces epithetes et toutes ces restrictions, n'ajoutent ni ne retranchent rien a la simplicite des principes. Aucune nation ne tient dans ses mains vne mesure avoiiee par les autres nations pour decider de I'etendiie des torts, du degre & injustice, de 1'incertitude des doutes, et de la probabilite des Litiges. Aucune nation n'est obligee de se soumettre au jugement qu'vne autre en peut porter ; et tout rapelle con- tinuellement a la necessite de traiter de gre a gre par des Commissaires, ou de convenir d'vn arbitre, au jugement du- quel Ton promette respectivement de s'en raporter. Enfin toutes les regies dont il est fait mention dans le quatrieme et dernier paragraphe cite, sur la conscience des juges, sur 1'erreur des jugemens, et sur leur impartialite, n'ont leur aplication qu'aux discussions particulier et civiles, mais elles ne peuvent avoir lieu pour les contestations de nation a nation. Un Souverain ne peut etre oblige de faire dependre la 364 APPENDIX 75 propriete des biens de ses Sujets d'vne conscience etrangere que Dieu seul peut aprofondir et connoitre. Jl ne peut s'en raporter a des juges etrangers auxquels il n'a aucun droit de demander les motifs et les raisons de leurs jugemens, et qu'il ne peut reprimer par la voye de son autorite, s'ils s'ecartent des regies de la justice. La reclamation contre vn jugement errone ne cede qu'a 1' autorite du dernier ressort, et ce principe n'a evidemment lieu que dans les discussions civiles ou de particulier a parti- culier ; Mais suivant les principes de Tequite naturelle et du droit des gens, seules regies a suivre dans la matiere des prises, vne Sentence de fait erronee, pour etre une Sentence n'en est pas moins en soi vne erreur et vne injustice. Toute in- justice exige vne reparation, et personne ne la subit que celui qui n'a pas le droit et le pouvoir de s'en deffendre. Enfin 1'impartialite des Jugemens est precisement un des faits contestes. C'est la matiere meme du Grief et comment peut on s'en faire vn moyen lorsqu'on pretend se rendre juge dans sa propre cause. Vn amy etranger comme s'exprime le raport fait au Roy d'Ang 6 ., lorsque c'est vn particulier, se soumet par necessite, ou si Ton veut par obeissance volontaire a vn jugement, qui sans estre au fonds juste et impartial, est inattaquable par les formes ; Ainsy le veulent et 1'ordonnent les Loix civiles qui ont lieu dans les affaires de particulier a particulier ; Mais vn amy etranger, lorsque c'est vn Sou- verain, ou qu'jl s'agit d'affaires de Nation a Nation, ce qui est equivalent, ne reconnoit d'impartialite que celle qu'jl juge luy-meme estre telle ; Jl n'admet d'autorite que celle de la justice et de 1'equite naturelles, et personne n'en est le juge que luy-meme, a moins qu'jl n'en ait defere le jugement a vn arbitre convenu. Former des pretentious contraires, ce Seroit vouloir s'arroger vne jurisdiction sur ceux qui ne recon- noissent aucune autorite superieure a la leur. Le principe de 1'independance ne permet pas qu'on puisse adherer a ce qui est avance par les Magistrats Anglois p. 24. Que tout demandeur a du savoir que le droit des gens luy inter- disoit le recours a son propre Souverain, jusques a tant qu'vne injustice manifestement avcree, luy Jut faite en dernier resort, et qu'jl n'y restdt phis aucun remede icy et aucun d'eux n'a pu ignorer que cette regie du droit des gens devoit estre d'autant plus etroitement observee par raport aux prises de la derniere guerre, que toute la propriete en etant donnee a ceux qui les faisoient, aucune partie n'en pouvoit estre repetee sur eux, qu'en justice reglee. Jl n'y a rien de plus vray que dans les affaires particulieres on ne peut recourir a son Souverain, qu'aprez avoir epuise tous les degres de jurisdiction, et rarement les Souverains en APPENDIX 75 365 prennent connoissance par plusieurs raisons qu'il est inutile de discuter icy ; Mais dans les affaires de Nation a Nation, tout Sujet a droit de s'adresser directement a Son Souverain et c'est peutestre la premiere fois qu'jl ait etc avance que le droit des gens luy interdisoit ce recours. Les traites ont pii ouvrir et ont ouvert vne nouvelle route pour obtenir justice, ainsy qu'on 1'a observe, en indiquant la voye des Cours d'Amiraute, etablies dans les pays Maritimes, pour la police interieure de 1'Etat ; Mais ouvrir cette route, 1'indiquer, 1'autoriser, n'est point interdire, a moins d'vne derogation expresse au droit des gens, celle que ce meme droit autorise, et en vertu de laquelle le Souverain dont la protection n'a pu garantir ses Sujets d'vne violence etrangere, ecoute et regoit leurs plaintes et en-demande directement reparation. Si des Magistrats aussy integres, et aussy eclaires que ceux qui ont ete consult es par sa M t<5 . Britannique ont pu se tromper sur vn principe aussy evident du droit des gens, on doit reconnoitre combien jl seroit dangereux de laisser a la discre- tion de Tribunaux etrangers ou Ton ne pourroit se flatter de trouver ni tant de lumieres ni tant de connoissances, a decider quels sont ou ne sont point les principes du droit des gens, et d'en faire en suite 1'aplication, ainsy qu'ils aviseroient bon etre dans des affaires ou leurs compatriotes sont interesses. Ce danger est d'autant plus grand qu'aprez avoir etabli en plusieurs endroits et de la maniere la plus forte, qu'on ne doit consulter que le droit des gens et les Traites, on pretend cependant etayer la methode de juger les prises par les dis- positions particulieres que 1'Ang 6 . a juge a propos de faire pour la repartition de ces memes prises, et Ton veut que ces disposi- tions y influent, et qu'on y ait egard. On pretend que les Etrangers doivent former leurs demandes centre des parti- culiers, parce que 1'Etat a distribiie la Valeur des prises a ces particuliers, et qu'en consequence la repetition ne peut s'en faire qu'en justice reglee. Ce que la G de . Bret 6 , ordonne dans son Etat et de son Autorite ne peut ni obliger les Etrangers ni rien ajouter aux dispositions du droit des gens, et a celle des Traites, ni en rien retrancher. D'ailleurs les inconveniens du Sentiment des Magistrats Anglois sont sensibles dans 1'espece presente. Sa Ma t(5 Britannique a juge a propos par vn effet de sa liberalite d'abandonner aux officiers et aux Equipages des navires de guerre, les prises qu'ils feroient. Si dans le cas, d'vne prise injuste, les Sujets du Roy etoient obliges conformement au Sentiment des Magistrats Anglois, de la repeter contre ceux a qui la propriete en a ete donnee, Jl faudroit qu'ils missent en cause tout 1'Equipage des navires, officiers et matelots 366 APPENDIX 75 soit solvables, soil insolvables. Jl suffit d'exposer le fait pour faire sentir la difficulte, on pourroit dire 1'impossibilite d'obtenir justice par vne pareille methode, et combien elle est contraire a tous les principes du droit des gens. L'exemple qu'on vient de citer n'est point le seul qui puisse faire connoitre le danger d'abandonner a des Cours Etrangeres 1'execution, tant des Traites que des dispositions du droit des gens. La declaration de guerre de l'Ang e . centre 1'Espagne du 19. 8 bre 1739. contient vne contravention manifeste aux Traites que 1'Ang 6 . avoit avec la France et la Hollande. Elle porte que tous Navires portants des Marchandises de contrebande a 1'ennemy, seront de bonne prise. Les Juges des Cours Angloises, etant soumis a 1'autorite du Gouvernement de leur Nation, ont du naturellement se conformer a vne declaration publique de guerre, a moins que d'avoir eu des ordres particuliers de ce meme gouverne- ment pour n'y avoir point egard. Cependant les Traites de I'Ang 6 . avec la France et la Hol- lande, portent qu'il n'y aura que les Marchandises de contre- bande qui seront de bonne prise ; Que le Navire et les autres effets seront libres, et nullement Sujets a confiscation. On ne doute pas que S. M. B. s'il y a des prises faites sur les Francois avant la guerre, en execution de cette clause de la declaration de guerre centre 1'Espagne ne convienne d'en faire la restitution ; Cette declaration n'ayant jamais pu donner atteinte aux Traites qui etoient entre les deux nations, encore qu'elle ait pu servir de regie aux jugemens des Cours Angloises. L'Ang 6 . doit cette reparation au droit des gens si mani- festement viole par cette declaration de guerre ; et rien ne prouve plus, comme on 1'a deja observe, le danger de s'en raporter a des Juges particuliers, que I'exemple d'vne con- travention si palpable dans vn acte aussy public, aussy autentique et aussy reflechi. CONCLUSION. Jl resulte de ce qui est expose dans ce memoire que la Grande Bret 6 , ne peut exiger des Puissances de 1'Europe de reconnoitre 1'autorite de ses Tribunaux, et de se Soumettre a leurs jugemens sur la legitimate des prises et sur les depens et les dommages et interests qu'entraine la restitution de celles qui ont etc faites sans fondement valable. Jl doit estre ctabli et reconnu comme vn principe incon- testable que les reclamabns centre les Jugemens que les Cours d'Amiraute ont portes sur les prises, sont de nature APPENDIX 75 367 a devoir estre traites de Souverain a Souverain, et qu'on ne peut Sans deni de justice refuser d'en deferer la decision a des Commissaires ou a vn arbitre convenu. La Grande Bretagne ayant reconnu elle meme la justice de restituer les prises faites avant la guerre, on ne doute point qu'elle ne fasse enftn cesser le refus de ses Commissaires de traiter des dites prises. Ce qui est dit pour les prises faites durant la paix doit egalement avoir son execution pour celles qui ont ete faites et retenues par les Anglois a 1'occasion de la guerre, conforme- ment a 1'Art 6 . 19. du Traite de paix d'Vtrecht qui fixe le terme de Six mois pour retirer les Vaissaux, marchandises et effets qui se trouveroient engages dans les lieux de la domination des puissances respectives. C'est encore vne Suite des principes des Magistrats Anglois. Comme ils sont convenus de la justice des depens et des dommages et interests, on demande que les Commissaires Anglois ne fassent plus de difficulte d'en admettre la dis- cussion pour les prises faites sans vn fondement valable, et dont la restitution a ete ou sera ordonnee. Enfin en execution des principes qui sont egalement avoiies et etablis par la Cour Britannique, on demande la restitution des effets apartenans a des Frangois et qui ont ete Saisis sur des Navires Hollandois ou autres Navires de Nations neutres qui ont avec 1'Ang 6 . des Traites pareils a ceux qui sont entre Elle et la Hollande. On espere avec vne juste confiance que les Commissaires Anglois seront suffisament autorises pour traiter cette ques- tion, ainsy que toutes celles qui peuvent interesser les deux Nations relativement aux prises faites sur mer. 76. HOLDERNESSE TO ALBEMARLE (S. P. For., France, vol. 247) Arlington Street, Saturday Morning, 2i st April, 1753. The Duke de Mirepoix called upon me this Morning and acquainted me that he had just received a Messenger from his Court, & he read over to me, a Letter from M r . de S*. Contest, containing Directions to acquaint His Majesty's Ministers, that the King of Prussia had accepted the Media- tion offered by his Court in the Dispute subsisting with the King ; Et qn'ainsi il ne s'agissoit plus que de Savoir les Voyes de Reconciliation qui seroient proposees par la Cour Britannique. That as He (Duke de Mirepoix) hoped this news would be agreeable to the King, he had determined to lose no time 368 APPENDIX 76 in informing me. That he look'd upon this Affair which might have been liable to disagreeable Consequences as being now entirely at an End. 77. ALBEMARLE TO HOLDERNESSE (S. P. For., France, vol. 247) Paris, Wednesday, 25 th April, 1753. MY LORD, Our Conversation was solely confined to this ; and as I was going out of his Closet, (a method he seems to affect in delivering Papers,) he gave me for my own Information as he call'd it, a Memorial drawn up by their Commissaries, on the Subject of Prizes, of which he said he had sent two Copies to Mo r . de Mirepoix, to be delivered to the Duke of Newcastle and Your Lordship, in which, he added, his Court explained themselves, on the Principles in His Majesty's Answer to the King of Prussia, which in their Paper lately communicated by their Ambassador, they had alledged could not be admitted by any Trading Nation. And also, on what they meant in the same Paper, by the voyes usitees et les regies etablies, for the pursuit of the Justice, they Imagined to be due to them, on account of Prizes. I make no doubt but this performance, in which there are some very new opinions on the subject treated of, is the work of Mo r . de Silhouette. The length of the Memorial, and the manner in which it was put into my hands, not permitting me then to take any other Notice of it, I read it very attentively at my return from Versailles, but I shall not presume to offer my thoughts upon it, farther than that the Prussian Maxims and Doctrine being adopted in it, some Conjectures may be made, of the Efficacy the Interposition of this Court is likely to have, with that of Berlin, for accommodating the Dispute with the King of Prussia on Account of Prizes, who sees his own Principles supported. But as His Majesty has thought proper, that that Affair should rest for the present, in order to see what part the King of Prussia will ultimately take upon it ; I did not make any mention of it to Mo r . de S*. Contest at this Meeting. ALBEMARLE. [Endorsed] Paris. April 25 th 1753. E. of Albemarle. R. April 29 th Pal Neg n . APPENDIX 78 369 78. HOLDERNESSE TO ALBEMARLE (S. P. For,, France, vol. 247) Whitehall, 26 th April 1753. H. E. The Earl of Albemarle. MY LORD, I have received the Honor of Your Excellency's Letters of the i8 th Instant, & laid them immediately before The King ; And am particularly commanded by His Majesty, to acquaint Your Excellency with The King's entire Approbation of the Manner, in which You had executed His Majesty's Commands. The Day before Your Letters arrived, The Due de Mire- poix came to me, & read over a short Dispatch, He had just received from His Court, upon the Subject of the Dispute with The King of Prussia ; The Substance of which You will find in the inclosed Paper, which I took down in writing, immediately after the French Ambassador's Departure. I did not think Myself warranted to give any Answer to the Due de Mirepoix at that Time, and having since laid before His Majesty, an Account of what Mons r . de Mirepoix had said to me, I have received The King's Commands, to delay saying any thing farther, 'till the King can receive the Opinion & Advice of Those of His Servants, who are usually con- sulted upon Foreign Affairs, some of whom are now out of Town, during the Recess of Parliament, for these Holidays. Whenever I can receive The King's Pleasure upon this Point, I shall not fail to transmit It to Your Excellency ; In the mean Time, if any Discourse should pass, between the French Ministers & Yourself, You will acquaint Them, that You have received no Instructions from hence, as yet, but You may throw out as from Yourself, that You suppose the Immediate Discharge of what is due upon the Silesia Loan from The King of Prussia, to British Subjects, is what The King will insist upon, That You do not see, that there is any Room for Negotiation of any Kind, 'till that Reparation is made, for the national Insult, which has been threatened. It is in this Light that I shall state the Case to Mons r . de Mire- poix, untill I shall have an Opportunity of receiving His Majesty's ulterior Commands. A slight Indisposition pre- vented that Minister from coming to me as usual Yesterday Morning. I am, &c n ., HOLDERNESSE. 1783 B b 370 APPENDIX 79 79. HOLDERNESSE TO ALBEMARLE (5. P. For., France, vol. 247) Whitehall, 3 fl May, 1753. H. E. The Earl of Albemarle. MY LORD, I am to acknowledge the Honor of Your Excellency's Letters of the 25th & 28th of April, which I have had the Honor to lay before The King, & have the Satisfaction to be able to acquaint Your Excellency, that His Majesty continues to approve the Manner in which You have executed the Orders transmitted to You. I had the Honor to inform You on Thursday 1 last, with what had passed between Mons r . de Mirepoix, and Myself, concerning the Dispute with The King of Prussia ; And that The King had thought proper, to suspend any farther Instruc- tions, untill He should be able to receive the joint Advice of those of His Servants, whom His Majesty is pleased to consult upon Foreign Affairs. In Obedience to The King's Commands, those Lords met on Monday 2 last, & determined, that the proper Return to the Communication, made by the French Ambassador, of The King of Prussia's Accep- tance of the Interposition, and good Offices of the Court of France (of which I sent Your Excellency a Minute in mine of the 26 th past) would be, by an Instruction to Your Excel- lency to be communicated in like Manner to Mons r . de S*. Contest ; And in order to avoid Mistakes, I have put down, in the French Language, the Words, which His Majesty is pleased to permit Your Excellency to make use of, which You will please to read over to the French Minister, as an Extract of this Letter, without giving Him any Copy thereof ; They are as follows. ' Le Roy est fort sensible a I'Amitie, que Sa Majeste Tres Chretienne a temoignee dans cette Affaire : C'etoit dans cette Persuasion, que Sa Majeste Lui en a fait d'abord com- muniquer le veritable Etat, par lequel on peut voir, qu'il n'y a presentement, rien a proposer, si ce n'est, que Sa Majeste Prussienne fasse lever 1'Arret qu'Elle a mis sur 1'Argent du, aux Sujets du Roy, sur la Silesie, et qu'Elle fasse payer d'Abord cet Argent ; Lequel n'avoit aucun Raport aux Matieres conteniies dans les Plaintes du Roy de Prusse, et dont le dernier Paiiement, en Vertu des Traites les plus solem- nels, auroit du etre fait, dans le Courant de 1'An 1745. ; Et ce n'est que depuis ce Terme, qu'aucun des Cas qu'on allegue, est arrive. Cela une Fois fait, S. M. Prussienne peut etre assuree, que, dans toutes les Occasions, Le Roy ne 1 26 April. 2 30 April. APPENDIX 79 371 manquera pas de rendre Justice sur les Plaintes, qu'Elle peut avoir a faire, selon les Voyes prescrites, conniies, et usitees, dans les Cas pareils.' It will be easy to Your Excellency from hence, to make Monsieur de S*. Contest sensible, that The King cannot think of any Manner of Negotiation, upon this Point ; That The King expects the Payment of what is due to His Subjects on Account of the Silesia Loan, as a Reparation for the violent Injustice, committed by His Prussian Majesty, on the Crown of England. This is the previous Step which The King demands, & if it is not agreed to by the Court of Berlin, The King will think Himself authorized, by natural Justice, & the Law of Nations, to take proper Measures, to do Himself Right, and to redress the Injury done to his Subjects ; In this Light The King's Servants here have been directed to state the Case to the French Ambassador. The Due de Mirepoix, in a Conversation He had Yesterday with the Duke of Newcastle, endeavoured to refine upon the Nature of Reprisals, & pretended, that if His Majesty were now to seize any Ships or Effects belonging to His Prussian Majesty, or His Subjects, such a Reprisal would be an hostile Act, & put The King in the Light of Aggressor in the Breach which may ensue ; His Grace answered that Minister, that according to the Law of Nations, no Wrong is without a Remedy, and that if this Doctrine was to take Place, the Insult committed by The King of Prussia, would be without Redress. I mention this Conversation particularly to Your Excellency, on Account of the following Part ; For Mons r . de Mirepoix replied ; That The King might depend on obtaining Justice, from the efficacious Inter- position of The King His Master. But the Duke of Newcastle, very properly acquainted Him ; That it was not consistent with the Dignity of His Majesty's Crown, to depend on the Will of any other Prince, for the Redress of Injuries to His Subjects ; That the Nature of the Application originally made to the Court of Versailles, upon the Subject of the Dispute with The King of Prussia, was, to show The Most Christian King, as a Friend to both Parties, and as a Power desirous of preserving the Peace, the Nature of the Injury committed, & the Consequences which might naturally result from It. I thought it necessary to apprise Your Excellency with these Particulars. In Your next Conversation with the French Ministers, You will endeavour, to show Them, that, whatever may be the Nature of The King of Prussia's com- plaints, His Proceedings thereupon, have been violent, & unjustifiable ; And that His Majesty is warranted by natural Bb2 372 APPENDIX 79 Equity, & the Law of Nations, to do Himself Right ; That His Majesty does expect, that The King of Prussia, should as a previous Step, take off the Confiscation, laid upon what Remains due on the Silesia Loan ; This once done, The King will always be ready to receive the Complaint of any Foreign Power, & to do ample Justice upon It, when it shall be found reasonable. I am, &c a . HOLDERNESSE. 80. ALBEMARLE TO HOLDERNESSE (5. P. For., France, vol. 247) Paris, Wednesday, 9 th May, 1753. MY LORD, Your Lordship's Letter, of the 3 rd Inst., gave me the greatest Satisfaction, in acquainting me with the Continuance of His Majesty's gracious Acceptance of my poor Services. I executed, Yesterday, His Majesty's Commands, by reading to Mo r . de S*. Contest that part of Your Lordship's letter in french, (which I extracted in the very Words) designed as a return to the Communication made by the French Ambassador, of the King of Prussia's Acceptance of the Interposition and Good Offices of the Court of France. I found Mo r . de S*. Contest had received an Account from Mons r . de Mirepoix the same, in Substance, as that I had read to him, and after expressing his Hopes, that the Dispute between my Court and that of Berlin would soon be amicably accommodated, He asked me what was mean't at the End of what I had read, where, talking of the King's readiness to do Justice upon the Complaints the King of Prussia, might have, it is added, selon les Voyes usitees, &c a . I told him that those Methods were well known and establish'd ; that the Question was not now to enter into that Inquiry, but for His Prussian Majesty to make that Reparation for the Violent Injustice committed by Him on the Crown of England, which the King expected, by the payment of what is due to His Majesty's Subjects on Account of the Silesia Loan ; that I hoped He (Mo r . de S*. Contest) did not imagine that the King would enter into any manner of Negociation with the King of Prussia ; as, I assured him, he would find himself disappointed if he had any such Expectation, that Payment being the previous Step which the King demanded, and if it was not agreed to, by the Court of Berlin, His Majesty would think himself authorized, by Natural Justice and the Law of Nations, to take proper Measures to do Himself Right and redress the Injury done to His Subjects. I then APPENDIX 80 373 explained to him the Nature of the Application that had been originally made to the Court of Versailles, as contained in Your Lordship's Letter ; and added, that whatever might be the Nature of the King of Prussia's Complaints, His Pro- ceeding thereupon had been violent and unjustifiable. Mo r . de S*. Contest acknowledged, that the remainder of what was due on the Silesia Loan ought to have been discharged in 1745 ; but, as he thought it necessary to say something after that, to excuse their good Ally, and having no good reason to give, he ventured on a very bad one, thinking it I suppose better than none at all ; by saying, that We were then at War ; I shewed him how Idle such a pretence was, as We were certainly not at War with the King of Prussia, and that he might and ought to have paid it since. From thence he offer'd to refine upon the Nature of Reprizals, and of an Aggression, as he had already done with me, of which I had the honour to acquaint Your Lordship in my Letter of the II th April ; and Mo r . de Mirepoix's Conversation with the Duke of Newcastle on the same Subject being of the same Kind, was (no doubt) dictated to him from hence ; I would not let Mo r . de S*. Contest be ignorant of the Answers His Grace had given to it, to which He (Mo r . de S*. Contest) did not think fit to make any Reply, but turned the Conversa- tion to the Memorial on Prizes which their Ambassador had lately given His Grace and to Your Lordship ; on which, he said, Mo r . de Mirepoix had informed him that both the Duke of Newcastle and Your Lordship had told him, that possibly Our Two Courts might come to some Conclusion, on the plan laid down in that Memorial ; I answered in general, that not having received any Instructions on that head what I should say would only be as from myself, and have no other Weight ; but that in my Opinion, that Memorial contained many principles that could never be admitted, much less be conformed to, as being contrary to the known Maxims long established and acquiesced in, and equally repugnant to the Law of Nations, and to the Letter and Sense of Treaties now subsisting. Our Conversation ended here, without his making any mention to me of any other publick affairs. I have the honour to be with the greatest Respect, My Lord, Your Lordship's Most obedient and most humble Servant ALBEMARLE. [Endorsed] Paris May g th 1753. Earl of Albemarle. R May 13 th (King of Prussia). 374 APPENDIX 81 81. ALBEMARLE TO HOLDERNESSE (5. P. For., France, vol. 247) Paris, Wednesday, i6 th May, 1753. MY LORD, After returning Your Lordship my thanks, for the honour of Your Letter of the io th . Inst., I shall give you but very little Trouble, on publick affairs ; Mo r . de S*. Contest, who came Yesterday to Paris on His Most Christian Majesty's being at Marli, having only repeated to me, the hopes, that the King His Master's Interposition with the Court of Berlin, would have the desired Success. 82. HOLDERNESSE TO KEENE (S. P. For., Spain, vol. 143) Whitehall, 26 th May, 1753. Secret. H. E. Mr Keene. SIR, I received, on Saturday last, the Favor of Your Letters of the 7 th Instant, by Jenkins, & laid Them immediately before The King ; And am particularly commanded by His Majesty, to acquaint You, with His entire Approbation, of the Manner in which You have executed His Commands, & of the clear, & distinct, Account, which You have given, of what You suppose to be, the present Views, & Intentions of the Court of Madrid, in Case the Dispute with The King of Prussia shall draw on those Consequences, which His Majesty is still willing to hope, may be avoided ; And Your Opinion is supported by such weighty, & solid Arguments, that I am persuaded, You have formed a true Judgement of the Disposi- tion of the Spanish Ministers. The King was very much pleased to find, that Their Catholick Majestys had expressed such Approbation, at the Manner in which The Earl of Albe- marle has been instructed, to treat the present Dispute, with The King of Prussia, at Versailles. The Plan laid down by The King, is very clear, and lies in a very short Compass ; The King of Prussia, an Ally of France, has done Us a National Insult, by refusing, on groundless Pretences, to pay the Remains of a Debt, due to private Persons, Subjects to The King ; a Debt guarantied by the most solemn Treaties, and the very Condition, by which the King of Prussia is now in Possession of a valuable Consideration. The King acquaints the Court of France with this Proceed- APPENDIX 82 375 ing, appeals to Them, as to the Injustice of It, & informs Them of the fatal Consequences which may arise from It, and asks Their Interposition, as a Power interested in the Preser- vation of the publick Tranquillity, pointing out, at the same Time, the Satisfaction, which His Majesty insists on, as a preliminary Step, on the Part of the King of Prussia. The Court of France seem wilfully to have mistaken the Nature of the Application made to Them, & wanted, as Mediators, to have entered into the whole Dispute, & to have erected Themselves, as Judges of it, nay, have even gone farther, & support the essential Part of the Prussian Doctrine, asserting, that even where Treaties do not interpose, the Law of Nations decides, that the Goods of an Enemy, in Time of War, are protected by being on board a Neutral Bottom ; And not contented with reasoning only upon this Point, they have made It a previous Condition to the Treaty of Commerce, now depending between Them & the States General, that the Dutch should obtain from Us a fresh Declaration of the Existence of the Treaty of 1674, in It's full Force & Extent, & that, in Consequence of It, They should claim all Goods, belonging to French Subjects, which may have been taken & confiscated, on board of Dutch Ships, during the whole Course of the War. And I send You inclosed, for Your Infor- mation only, (of which, however, You are to make no Use,) Copies of two Letters, from The Duke of Newcastle to Col. Yorke, upon this Subject. This Proceeding of the Court of France, greatly extends the original Dispute with the King of Prussia, & looks, as if done on Purpose to open a new Scene of Disturbance, as they cannot but know, they attack Us on a Point, from which It is impossible We should recede ; And they hope to be joined in It by all the lesser Trading States, who would wish to be their Carriers in Case of a Rupture. This much I thought necessary for Your Information, but I should deviate from the Design of the present Letter, were I to enter farther into the Question at present ; I shall there- fore only acquaint You, that it is The King's Pleasure, that You should make a proper Compliment to Monsieur Carvajal, upon the Manner in which He laid before Their Catholick Majesties the friendly, & confidential, Communication, which The King had directed You to make, of the Progress of the two great Points now depending with France ; The Dispute with The King of Prussia ; And The Election of a King of the Romans ; And I am further commanded by His Majesty, to direct You, to communicate, to the Spanish Ministers, the Substance of the inclosed Copies of the several Letters, which have been wrote to, & received from, His 376 APPENDIX 82 Majesty's Ministers abroad, upon these Subjects ; And in doing It, You may assure Mons r . Carvajal, that His Majesty never meant, or intended, to draw the Court of Spain, to take any immediate Share against France, in the present Conjunc- ture, as His Majesty has no Doubt, but that whenever Europe comes to be embroiled in a general War, His Catholick Majesty will act that Part, which becomes the Dignity & Indepen- dency of so great a Prince. I am, &c., HOLDERNESSE. 83. HOLDERNESSE TO ALBEMARLE (S. P. For., France, vol. 247) Whitehall, 24 th May, 1753. H. E. The Earl of Albemarle. MY LORD, As to the Dispute with The King of Prussia, I can, at present, only inform You, that The King persists in his former Resolution of obtaining Satisfaction to His Subjects, for what remains due on the Silesia Loan, as a Step previous to all Negotiation ; And as Mo r . de S*. Contest has in express Terms acquainted Your Lordship, that the Court of France had advised The King of Prussia to take this Step, We take this Fact to be so, & You will let Mo r . de S*. Contest know, that We understand it in that Light, & I can scarce doubt, but that I shall have some satisfactory Account from You, perhaps by the next Messenger. I cannot omit taking this Opportunity, of setting Right a Mistake, into which I observe, by Your Lordship's Letter of the 9 th . Inst., Mo r . de S*. Contest has fallen, in Regard to the written Paper, Mons r . de Mirepoix delivered to The Duke of Newcastle & Myself ; Mons r . de Mirepoix must have greatly misunderstood Us both, if He has acquainted his Court, that We ever shewed the smallest Approbation of that Paper. We have both avoided entering upon the Subject, untill it shall have been much more maturely weighed ; But far from admitting the Principles therein laid down, The Impossibility of Our ever consenting to many of the Arguments therein made use of, appears at first Sight. I throw out thus much to Your Excellency, as a Rule for Your Conversation, in case the Subject be again mentioned to You, by Mo r . de S*. Contest. I am, &c a ., HOLDERNESSE. APPENDIX 84 377 84. ALBEMARLE TO HOLDERNESSE (S. P. For., France, vol. 247) Paris, Wednesday, 30 th May, 1753. MY LORD, Upon the Directions Your Lordship sent me the 24 th Inst., I took the Opportunity, Yesterday, of repeating to Mo r ; de S*. Contest, that His Majesty persisted in His Resolu- tion, of obtaining Satisfaction to His Subjects, for what remains on the Silesia Loan, as a Step previous to all Negotia- tion, and expected it soon ; and of letting him know, that His Majesty understood in that light the Advice, he, (Mo r . de S*. Contest) told me, had been given by the Court of France to the King of Prussia. That Minister acquainted me, that Mo r . de Podewiltz had promised Mo r . de la Touche, to give him an Answer very shortly upon the Point, but instead of entering into any Particulars with me, on the Nature of the Advice, which, the King, his Master, had given to His Prussian Majesty, he desired me to observe, that what he had hitherto said to me upon it, was not by any Order from His Most Christian Ma- jesty, but from his own Motion, as a Civility, and a Mark of his Confidence in me, but that when the Answer they expected should be received, he did not doubt but he would be ordered immediately to communicate it to me, and that he still flatter'd himself, that it would be such, as His Majesty would have reason to be satisfied with. From this general Discourse, I pass'd to that necessary Point, mention'd in Your Lordship's letter, of setting him right in the Mistake, into which Mo 1 ', de Mirepoix's Letters had led him, in relation to their Memorial on Prizes, which he had lately delivered ; I explained to him, very clearly, that, that Ambassador must have greatly misunderstood both the Duke of Newcastle and Your Lordship, if he had acquainted His Court, (as Mo 1 ', de S*. Contest had told me that he had) that either His Grace, or Your Lordship, had ever shewn the smallest Approbation of that Paper, for that, on the contrary, you had both avoided entering upon the Subject with him, and that, far from admitting the Principles therein laid down, the Impossibility of our ever consenting to many of the Argu- ments therein made use of appear'd at first Sight ; & I desired him to recollect, that, at the time he spoke to me of it in a different light, I told him, that I had not been instructed upon it, but that, in my opinion, the Memorial contained many principles that could never be adopted, as being contrary to 378 APPENDIX 84 the known established Maxims, and repugnant to the Letter and the Sense of Treaties. Of this I had the honour to give Your Lordship an Account, in my Dispatch of the 9 th . Instant. Mo r . de S*. Contest now owned to me, that, neither the Duke of Newcastle, nor Your Lordship, did enter into any Discussion upon it, but that Mo r . de Mirepoix's Expression was, that both His Grace and Your Lordship had agreed, that many of the Principles laid down in the Memorial of this Court se rapro- choient des Notres. And he added, that he hoped that some Means would be found, of putting a Term to the Disputes now subsisting between Our Two Courts, and to the Obstacles that had hitherto retarded that desireable Work. I have the honour to be, with the greatest Respect, My Lord, Your Lordship's Most obedient, and most humble Servant, ALBEMARLE. [Endorsed] Paris, 30 th May, 1753. H. E. the E 1 . of Albemarle. R 3 d June. 85. ALBEMARLE TO HOLDERNESSE (S. P. For., France, vol. 247) Paris, Wednesday, 6 th June, 1753. MY LORD, I hoped, after the long time that has pass'd since this Court has given their Advice to the King of Prussia, that some Answer would be received, with which I might have the honour to acquaint Your Lordship, and such as His Majesty expected it to be ; But as yet I cannot have that Satisfaction, M. de S*. Contest not having had any Letters from Berlin, since the last time I saw him ; All, therefore, that he said to me, Yester- day, in relation to that Matter, was, that he did not doubt, but he should soon receive some Accounts from thence of the Influence of His Most Christian Majesty's Friendly Advice ; I reminded him of the time that was elapsed, since The Most Christian King had offer'd His Interposition; of His Majesty's Resolution not to enter into any Negociation with His Prussian Majesty, till His Subjects had previously received that Justice they were entitled to, by the payment of what remains due to them on the Silesia Loan ; and that His Majesty would not suffer Himself to be amused nor let this Affair be protracted, as too long a Delay, in returning an Answer might be equal to APPENDIX 85 379 giving an unsatisfactory one ; Mo r . de S*. Contest was very civil to me on the occasion, but could only repeat the hopes he entertained, which, he said, were next to Assurances, that the Dispute with the King of Prussia would be brought to an amicable Accommodation. I beleive Your Lordship will be equally surprized with me, at what a friend of mine, who went in after me to Mo r . de S*. Contest, told me, he had from that Minister's own Mouth, concerning this Matter, it was in Substance, that the Disposi- tions of my Court were not such as I represented them to be, for if he was to believe me they were exasperated to the highest Degree, and he had reason to believe the Case was not really so extreme as he imagines I only pretend it to be ; As I have always conformed myself to the Tenor and Spirit of Your Lordship's Letters, and spoke to him with that becoming Firmness, which I had been directed to do, and in the manner I have acquainted Your Lordship with, in my several letters, on that Subject, I hope you will make Mo r . de Mirepoix sensible (for I take it for granted that it is from what that Ambassador writes that Mo r . de S*. Contest speaks) that my Conduct in this respect has been governed by my Orders, which, it seems, he has given the French Minister to understand otherwise. I have the honour to be, with the greatest respect, My Lord, Your Lordship's Most obedient, and most humble Servant, ALBEMARLE. 86. HOLDERNESSE TO ALBEMARLE (S. P. For., France, vol. 247) Whitehall, 7 th June, 1753. H. E. The Earl of Albemarle. MY LORD, I have nothing to add, at present, as to the Dispute with The King of Prussia ; Your Excellency is fully informed of The King's Sentiments and Resolution thereupon, which still remain the same, as I have had the Honor to represent to You in the several Letters I have been commanded by His Majesty to write upon that Subject ; And Your Excellency may well imagine. That The King begins to be surprized, that no Determination is, as yet, taken by The King of Prussia, in 380 APPENDIX 86 consequence of the Advice given Him by the Court of Ver- sailles. I may in Confidence acquaint Your Excellency, that the French Ambassador at Madrid, has communicated to the Spanish Ministers, the several Steps which have been taken in regard to this Business, but in mentioning the original Application made by The King to France for their Inter- position, in order to prevent the fatal Consequences of an open Rupture with the King of Prussia, the Term Mediation was made use of, as being what The King had desired ; But Mr. Keene having ample Instructions, & being fully informed of the real State of the Case, it will not be difficult for Him, to set It in it's true Light, & to clear up the Mistake into which the French Ministers have wilfully run from the very beginning. I know Mons r . Masones has been talked to in that Strain, but upon the Information he had received from Your Lordship, he explained himself in the Manner I could wish to Mons r . de S*. Contest. I cannot finish this Letter, without acquainting Your Excellency, with The King's entire Approbation of the Manner in which You have talked to the French Ministers, upon the several Heads of Business mentioned in Your Letter of the 30 th May. I am, &c a ., HOLDERNESSE. 87. ALBEMARLE TO HOLDERNESSE (S. P. For., France, vol. 247) Paris, Wednesday, 13 th June, 1753. MY LORD, You will have observed, by my late letters, that I put Mo r . de S*. Contest in mind, in talking with him on the Dispute, with the King of Prussia, of the length of time that had elapsed since His Most Christian Majesty had first offer 'd his Advice to him, and no Answer yet returned ; I went to him Yesterday, with a Resolution to acquaint him, that His Majesty began to be surprized that no Determination had yet been taken, by the King of Prussia, in consequence of that Advice, and that the delaying too long to give an Answer, or refusing to give any at all, were the same thing, in a Case of this Nature, and would equally justify His Majesty in doing Himself Right. But I chose, at the same time, that the Conversation should be begun by him, that it might not be framed entirely on what I should say. After talking of some indifferent Matters, and his telling me that nothing had been yet concluded at Vienna, on APPENDIX 87 381 the last Proposals of the Elector Palatine, He said, that tho' he had nothing positive to communicate to me from Berlin, yet he assured himself, that the King of Prussia would be brought to consent to the Payment of what remains due on the Silesia Loan, since His Majesty had promised to do Justice on any Complaints His Prussian Majesty should be founded to make, but that he would write to Mo r . de Mirepoix, and desired me, at the same time, to prepare Your Lordship, that it would be expected it should be explained, what was mean't by saying that Justice should be done according to the Voyes usitees et reconnues, to which, I told him, I had received no kind of Instructions to enter into any Discussion on this head, but that in my opinion the Words explained themselves to be such a Justice as was agreable to the known Laws and Con- stitution of Great Britain, and to what had been practised in cases of the same kind, but that however that might be, the Point now was, and which would never be lost sight of, to satisfy His Majesty, for the National Insult that had been offer'd, by paying, as a Step previous to any Negociation, the Sum that remained due to His Subjects ; That this was His Majesty's firm Resolution, which I had often acquainted him with, after which, and not till after it, (as I understood,) such Explanations would be given, as would be desired, to redress any Complaints that might be justly made, if any such existed. Mo r . de S*. Contest made me a general reply of the good hopes he had of the Two Courts coming to a friendly Understanding, and Our Conversation went no farther at pre- sent ; I accepted his Invitation to dine with him Yesterday ; after Dinner he took me aside, and from the Impression my Firmness had made upon him, he said to me, rienflammez pas les choses, j'espere qu'il y aura moyen de s'accommoder, dites moi ce que Vous entendez par les Voyes usitees et reconnues', I repeated to him what I had already said, and added, that if my Court thought proper to give any Explanation to it, Mo r . de Mirepoix could have it best from Your Lordship, that as to my enflaming Matters, I hoped he had a better Opinion of me, and knew me more, than to beleive I had any other Desire, than that of cultivating, by every means, the Peace and Good Harmony ; that I should act contrary to the Orders I was charged with, if I did otherwise, and that I always kept myself within the just Bounds of a faithfull Narrative, of what pass'd in my Conversations with him. He said, he did Justice to my Sentiments, but that he mean't only to recommend it to me to try to soften Matters, and I then left him. I thought I could plainly perceive he had received some Letters from Berlin, tho' he was unwilling to own it, and I am persuaded he has ; The next time I see him, he may possibly be more 382 APPENDIX 87 open with me, or perhaps Mo r . de Mirepoix may be instructed, to speak more plainly to Your Lordship. I have the honour to be, with the greatest Respect, My Lord, Your Lordship's Most obedient, and most humble Servant, ALBEMARLE. [Endorsed]. Paris, 13 th June, 1753. H. E. The E 1 of Albemarle. R 17. 88. HOLDERNESSE TO ALBEMARLE (S. P. For., France, vol. 247) Whitehall, 2i 8t June, 1753. H. E. The Earl of Albemarle. MY LORD, Having nothing in Command from His Majesty, nor any material Advices to send Your Excellency, I avoided giving You the Trouble of an unnecessary Letter on Thursday last, & only directed Your Letters of the 6 th & 9 th Inst., to be acknowledged from my Office ; I have since received the honor of Your Letters of the 13 th Inst., and laid them before The King, & have the Satisfaction to be able to assure Your Excellency of His Majesty's entire Approbation of the Manner in which You talked to Mons r . de S*. Contest upon the Subject of the Dispute with The King of Prussia. You will easily imagine, The King was extremely surprized to find, that Mons r . de S*. Contest, instead of being able to give some posi- tive Answer, was aiming at entering upon Conditions in return for the Satisfaction The King insists upon from the Court of Berlin. I imagined The Due de Mirepoix would certainly have received some Instructions from His Court upon that Head, but to my great Surprize, His Excellency acquainted me on Tuesday last, that He had not received Letters from France for above a Fortnight ; I took that Opportunity of acquainting Him with what had passed between Your Lord- ship & the French Ministers, & begged to know of him, in what Manner He had represented to his Court the Conver- sations He had had with The King's Servants here, & in particular, what was meant by offering to do Justice upon any Demand from The King of Prussia, which should be found to be reasonable, selon les Voyes usitees el reconnucs ; & in particular, whether he had ever given his Court any Reason to hope, that His Majesty could be induced to desist from the just Satisfaction The King demands from the Court APPENDIX 88 383 of Berlin, previous to any Negociation ; The Due de Mirepoix very candidly informed me, that He had constantly taken care to acquaint His Court, that the taking off the Arrest upon what Remains due of the Silesia Loan, was what The King positively, & peremptorily insisted upon, & that that Step once taken, His Majesty would be ready to do Justice, if any real Injury had been done to His Prussian Majesty's Subjects, selon les Voyes usitees et reconniies, which Words He explained to me, precisely in the Manner Your Excellency had stated the Question already to Mons r . de S*. Contest, & indeed those Words, can have no other Meaning ; I then desired His Excellency would recollect, whether in any Conversation with The Duke of Newcastle or Myself, he had observed, that We deviated in the least from this Language ; He assured me, that He did not remember that We ever had, & that He had always most punctually related to His Court, what had passed between Us. I can add nothing to what I have already wrote to Your Excellency upon this Subject ; The King's Opinion & Resolution are still the same, and the Court of France will judge how far it is Their Interest, to risque the Consequences which a Delay, or a Refusal of the Justice The King demands, may possibly produce. I am, &c a , HOLDERNESSE. [Endorsed] Dra* to The Earl of Albemarle, 2i 8t June, 1753. 89. ALBEMARLE TO HOLDERNESSE (S. P. For., France, vol. 247) Paris, Wednesday, 27 th June, 1753. MY LORD, I am extremely happy, in the Approbation His Majesty is pleased to give to my Endeavours, which, the letter Your Lordship did me the honour to write to me the 2i st Inst., has acquainted me with : I could not help expressing my Surprize to Mo r . de St. Contest, on finding, that, tho' he had promised to write to Mo r . de Mirepoix in relation to the Dispute with the King of Prussia, that Ambassador had not received any letters from him for a long time ; he excused himself for the Omission from the number of Home Affairs, which, he said, had prevented him. Whatever may be the Stile, used by Mo r . de S*. Contest, in his Correspondence with Mo r . de Mirepoix, I have held but one constant, and uniform Language with him, on that Subject, conforming myself to the Com- mands Your Lordship had sent me from His Majesty, and it 384 APPENDIX 89 is with great Satisfaction I find, by your last Conference with Mo r . de Mirepoix on my letter of the 6 th Instant, that he had represented to his Court the Conversations he had had with the King's Servants in London, and had explain'd in his letters His Majesty's Expectations of the Arrest being taken off the Silesia Loan, as the previous Condition to all Negocia- tion, as well as what was to be understood by the Voyes usitees et reconnues, to which he had given the same Sense I had already done. After all this, I am at a loss to guess, upon what foundation Mo r . de S*. Contest could imagine, that my Dis- course with him was not of a Piece with my Instructions. I asked him, Yesterday, whether he had received any letters lately from Mo r . de Mirepoix, he told me he had, and that, that Ambassador had acquainted him with his late Conver- sation with Your Lordship, and that he expected to have another with the Duke of Newcastle, upon His Grace's return from Cambridge ; but that he (Mo r . de S*. Contest) had not had any letters from Berlin, since he had seen me, and on this occasion, what pass'd between Us, was to the same pur- pose as at Our former Meetings, that is, by his expressing his hopes, that his Master's Advice to the King of Prussia, would be followed, but that a fuller Explanation of the Voyes usitees &c a . would be desired ; and by my reminding him of the long time he had hoped, without having yet any Effects, and insisting on the payment of the Silesia Loan prior to all other Matters. I have the honour to be, with the greatest respect, My Lord, Your Lordship's most obedient, and most humble Servant, ALBEMARLE. [Endorsed] Paris, 27 th June 1753. H. E. The E 1 of Albe- marle. R 30 th , by Thompson. 90. NEWCASTLE TO ALBEMARLE (S. P. For., France, vol. 247) Whitehall, July 5^, 1753. Earl of Albemarlc. King of Prussia. MY LORD, On Saturday last, Thompson, The Messenger, arrived, with Your Ex c y' 8 Letter of the 27 th June, to the Earl of Holdernesse ; which I received, in His Lordship's Absence. As I have had several Conversations with the Due de APPENDIX 90 385 Mirepoix, since my Return from Cambridge, relating to The Disputes, with The King of Prussia ; His Majesty has com- manded Me to send Your Exy. an Account of them ; Whereby You will see The Orders, which Mo r . de Mirepoix has received, from His Court, and the Answers which I have been directed, by The King, to return to Them. I chuse, to avoid Mistakes, when there is any Thing material, to take a Minute, in writing, of what passes in Our Conferences, and to read It, afterwards, to Mo r . de Mirepoix, & the follow- ing Paragraph contains the Minute Itself. With regard to the Affairs of Prussia, The French Ambas- sador acquainted me, ' Que le Roi Tres Chretien n'a neglige aucun Soin pour rAccommodement avec la Prusse.' ' Le Roy de Prusse voudroit bien se tirer d'Affaire, sans montrer la Queue. ' II pretend, que S'il fait lever 1'Arret, Sans s'assurer de rien ; Cela seroit trop humiliant pour lui. ' Mo T . Le Due de Mirepoix souhaite de Savoir, Qu'en cas que la France put repondre que Le Roy de Prusse levat la Saisie des Effets Silesiens ; Elle put recevoir, en meme Terns, des Assurances, par le Canal des Ambassadeurs, qu'on entrera en Matiere avec le Roy de Prusse, sur Ses pretendus Griefs ; Et si, dans ce Cas la, il est indispensable, que tous les Sujets de Grief passent par le Cours Ordinaire de tous les Tribunaux ; Et s'il ne seroit pas plus expedient, pour 1'une, et 1'Autre Cour, de convenir de nommer reciproquement des Commis- saires, pour nettoyer entierement toutes ces Sortes d'Affaires, de quelque Nature qu'Elles puissent etre ? ' ' Le Due de Newcastle a repondu, que, pour ce qui regarde la Nomination de Commissaires ; II croyoit, que cela seroit impracticable.' ' Le Due de Newcastle a dit aussi, qu'il ne savoit pas, si les Sujets du Roy de Prusse n'avoient pas laisse echapper le Terns, dans lequel ils auroient du faire les Appels aux Cours Superieures ; Et sTl n'avoit pas fait, par Ses Precedes, quelque Demarche, qui rendroit ces Appels Nuls.' I immediately made a Report to His Majesty of what had thus passed ; And, as Mo r . de S*. Contest had asked of Your Ex c y an Explanation of The Words, Voyes usitees et connnes ; And continued to say, That a fuller Explanation of Those Words would be desired ; The King was pleased to order me, to return the following Answer to The Due de Mirepoix. ' Que le Due de Newcastle se tient a ce qu'il a dit, Que la Nomination de Commissaires seroit impracticable ; Vu qu'elle changeroit entierement la Nature des Procedures en ces Cas.' ' II a, cependant, les Ordres du Roy, d'assurer M r . de Mirepoix, Qu'apres que le Roy de Prusse aura contente les 1783 CC 386 APPENDIX 90 Sujets de Sa Majeste sur ce qui Leur est du en reste de 1'Em- prunt sur la Silesie ; Le Roy sera pret de rendre Justice, selon les Voyes usitees et connues, sur toutes les Plaintes de Sa Majeste Prussienne ; par lesquelles Voyes on doit entendre, 1'Appel, dans tous les Cas ou il est admissible, a la Cour Su- perieure ; qui est composee de Personnes d'un Rang eleve, qui sont audessus de tout Soupcon de Partialite, et dont les Decisions ont ete sans Reproche.' Mo r . de Mirepoix has promised, to make an exact Report, to Mo r . de S*. Contest, of all that has passed ; And, I am persuaded, will represent it in as favorable, That is, in as true, a Light as possible. Your Excy will be pleased to observe, That Neither the Proposal for Commissaries, Nor an Assurance, Qu'on entrera en Matiere avec le Roy de Prusse, Sur Ses pretendus Griefs, can ever be agreed to ; As that might tend to admit a Charge, or Demand, upon The Crown, before The King of Prussia had taken The necessary Steps, and done what had always been practised in the like Cases. And such an Admission, might be made a Precedent, hereafter, for other Courts, and par- ticularly for The Disputes now depending with the Court of France. Whereas, the Explanation here given, to the Words usitees, et connues, is clear, liable to no Objection, and ought to be Satisfactory. For as The King of Prussia has no Pretence to favour, He can ask no more, than to have the same Liberty to obtain Justice for His Subjects, which all other Powers have had ; And that, in Cases, where those Subjects have not, by Their voluntary Omissions, precluded Themselves from the Benefit of Appeal. As The Court of Appeal will be Judge of those Cases ; There is no Doubt, but that all possible Justice will be done upon Them. I have fully explained to Mo r . de Mirepoix, the Necessity of having an immediate, and clear, Answer. This Affair has already been too long depending, And His Majesty cannot suffer It to be suspended much longer, by the Going and Coming of Messengers, with unsatisfactory Answers. The King has, now given a full Explanation of The Words Voyes usitees et connues ; Which, indeed, seemed clear enough, without It. His Majesty hopes, that The French King is already authorised, by The King of Prussia to accept such a reasonable Explanation, as This must appear to be. If not, You will desire to know of Mo r . de S i . Contest, what The French King would, Himself, propose ; that His Majesty might judge, whether it is Such, as He may think proper to accept. For, if The Answer returned to Mo r . de Mirepoix, and now sent to Your Exy, is to go to Berlin, and to be commented upon There ; No good End can be expected from this Negotiation. APPENDIX 90 387 One should naturally imagine, from the Question put by The Due de Mirepoix, that France was authorised to Answer ; That The King of Prussia should take off the Arret, provided satisfactory Assurances, &c a ., could be given ; And The King thinks, that the Explanations now given, should be satis- factory ; And They are all, that His Majesty, considering the Nature of the Case, does think proper to give. I doubt not, but Your Excellency will explain This Matter fully to Mo r . de S*. Contest ; And You may imagine, that, after so much Time spent in this Affair ; The King will be very impatient for an Answer to this Letter. I am, &c a ., HOLLES NEWCASTLE. P.S. I send Cleverley, The Messenger, with these Letters, that Your Exy may be sure to have them Time enough, to consider, and digest, the Contents of Them, before You have Your ordinary Conference with Mo r . de S*. Contest, on Tuesday next ; And I must beg Your Excellency would redispatch Cleverley, as soon as you shall have executed His Majesty's Orders contained in these Letters. 91. NEWCASTLE TO ALBEMARLE (S. P. For., France, vol. 247) Whitehall, July 5 th 1753. Very Secret. Earl of Albemarle, MY LORD, I am, in the greatest Confidence, to acquaint Your Excy, for Your own Information only, And of which You will take No Notice to Any Body, That Mons r . de Mirepoix has wrote, in the Strongest Terms, to Mons r . de S*. Contest, upon the Subject of My other Letter ; And that He has wrote a private Letter, to Him, desiring Him to think Seriously upon this Affair ; and acquainting Him, That, Tho' It is undoubtedly true, that The King wishes Peace ; Yet, that It is certain, that His Majesty is determined to support this Affair with The King of Prussia ; And He has also desired to know, privately, Mons r . de S*. Contest's thoughts. In short, The French Ambassador thinks as rightly, and as honorably, upon This Point, as a Man can do ; And I should hope, It will have some Effect upon His Court. I may, in Confidence, acquaint Your Excy, (tho' You are to take No Notice of it,) that, If the Answer to these Letters, CC2 388 APPENDIX 91 should not be satisfactory ; I think it most probable, that You will have Orders to declare, that His Majesty, after so much Time, spent so uselessly, cannot any longer, delay doing Himself, and His Subjects, Justice, by Making, or Allowing Them to make, Reprisals, for The Detention of Their Property, contrary to all Justice, and the express Stipulations of The Most Solemn Treaties, which, however, may be done, by The Law of Nations, without any Infraction of the Publick Peace. I am persuaded, that Your Knowledge of This, will shew Your Excy the Necessity of getting, if possible, some explicit Answer from Mons r . de S*. Contest. I am, &c a ., HOLLES NEWCASTLE. [Endorsed] Dra fc to The Earl of Albemarle. July 5 th , 1753. Very Secret. By Cleverly. 92. ALBEMARLE TO NEWCASTLE (S. P. For., France, vol. 247) Paris, Wednesday, n th July, 1753. Copy Very Secret. MY LORD, I return Your Grace many Thanks, for the Confidential Information, contained in your very Secret Letter of the 5 th Instant ; I wish Mo r . de Mirepoix's Opinion may have the Weight at this Court which it certainly deserves, but I am almost afraid, the superior Interest of Prussia, will not permit Them to listen to any Thing, however Reasonable it would be, which is not dictated from thence. I beg Your Grace would be assured, I shall make no other than a discreet Use, of what you have entrusted to me. I have been informed, privately, by a particular Friend of Mine, That Mr. Keith, (The late Lord Marshall) had said, in a Conversation, on the Complaints of Our Court, against that of Berlin, That suppose Letters of Reprizal should be given, all that could be met with, would be the Ship sent from Embden last Year to the East Indies, out of which, They could take nothing from the King of Prussia, but His Flag ; none of the Effects belonging to Him, but to some Dutch, Flemish, & French Merchants. I have the Honor to be, &c a ., ALBEMARLE. APPENDIX 93 389 93. NEWCASTLE TO ALBEMARLE (S. P. For., France, vol. 247) Whitehall, July 12 th , 1753. Secret. Earl of Albemarle. MY LORD, His Majesty has commanded me, to send Your Exy. an Account, for Your Information only, of a very serious Con- versation, which I had, Yesterday, with The Due de Mirepoix. The French Ambassador began, (From a Conversation, I believe, which He had had with Mons r . Michell, The Prussian Secretary,) By Expressing His Fears, that the Disputes with The King of Prussia, would not be accommodated, upon the Foot of the Answer, which I gave Him, last Week, and Trans- mitted to Your Exy. For, said He ; Tho' You know, How much I think His Prussian Majesty to blame ; I am afraid, He will never take off The Arret, on Condition only, that those Disputes should be determin'd, dans Vos Tribunaux ', Tho', He said, He Him- self was persuaded, that Every Thing would be done there, in the most honorable, and just Manner. I answer'd, that We could go no further ; And that, when once a Prince had acted, so contrary to all Rules of Justice, and Reason, as The King of Prussia had done, in this Instance ; If the Disputes were to be made up ; That Prince must be contented, to make some Concession, or Advance. I then told Him, very seriously; that Nothing but The King's Regard, to His Most Christian Majesty's Interposition, had made His Majesty acquiesce so long : That Every Thing depended upon the Return, We should have, to the last Answer, sent, from Hence, to His Court. That the Resolution was taken ; And that We were not afraid of The King of Prussia. I said this, particularly, from the Hint, which Your Exy. gave, in Your Private Letter to My Lord Holdernesse ; That Mons r . de S fc . Contest had said ; That, notwithstanding what The English had given out ; They dar'd not venture to do any Thing. The French Ambassador receiv'd what I said, in the most decent, and handsome Manner, imaginable : Express'd His Obligation for the Regard, shew'd to The King, His Master's Interposition ; And seem'd oblig'd to me, for talking to Him, in this plain, & open Manner. He said, He had wrote, very fully, last Week, to His Court ; And would not fail, again, to represent this Affair, in its true Light. I could plainly see, that My Discourse made a great 390 APPENDIX 93 Impression upon Him ; And I hope, It will do so, upon His Court. He talk'd of the Service, which He might be able to do, during His short Stay in France. And I gave Him to under- stand, that It was My Opinion ; that His Majesty would not suffer the Negotiation to be carried on, any longer ; If the Answers, now expected, should not prove Satisfactory. All, that I said to Him, was from Myself, without any Order from The King. And I was greatly induced, to continue to talk to Him, in This Manner, from what is suggested in Your Ex c y' 8 . private Letter to My Lord Holdernesse, that it might be proper, to name a Day, for The King of Prussia, to give His final Answer. I am, &c a ., HOLLES NEWCASTLE. 94. ALBEMARLE TO NEWCASTLE (S. P. For., France, vol. 247) Compiegne, Wednesday, i8 th July, 1753. Separate. MY LORD, After what had passed between Mo r . de S*. Contest and me, relating to Dunkirk, of which I have given Your Grace an Account, in my other Letter, I began my Conversation with him, on the disputes with the King of Prussia, by saying, that I imagined, he was as well informed from M. de Mirepoix, of the Conference he had with Your Grace on that Subject, as I was, by my last Letters, and that he was therefore prepared for what I should say to him upon it ; Tho' He owned, he had received such an Account from their Ambassador, I beg'd leave nevertheless to read to him that Part of Your Grace's Letter, which contains the Minute of that Conference ; After having heard me with Attention, he confirm'd to me what Mo r . de Mirepoix had said to Your Grace, by Order of his Court ; And on my entring with .him upon an Explanation of the Voyes usitees et connues, by which His Prussian Majesty might expect to receive Justice if he had any Cause of Complaint, He replied, that Mo r . de Mirepoix might have given such an Answer as would have fully satisfied all the Arguments on that Head ; since not only he thought it reasonable that Commis- saries should be Appointed on both sides, to consider of the Grievances complained of, but that there were Precedents of it, which shew'd that the Necessity of going thro' the Ordinary Proceedings of Our Tribunals was not at all indispensable, APPENDIX 94 391 nor could it be admitted that the Decisions of Our Courts of Judicature were, in Cases of this kind, binding against the Subjects of another Crown ; that he was preparing a Memorial, which he should send very shortly to Mo r . de Mirepoix, to be delivered to Your Grace, in which he would cite the Treaty of S*. Germain en Laye, between England and France in 1655, and that of Westminster, between England and Denmark in 1669, by both which, it appears that Commissaries were appointed to inquire into Matters of the kind now in Dispute ; That what He thought might be proposed, was, for His Majesty and the King of Prussia to make reciprocal Declarations, to be deposited with the Court of France, by which His Prussian Majesty should engage to take off the Seizure of the Silesia Loan, and Pay what remains due, on His Majesty's consenting to treat with him between Crown and Crown, on the Complaints He has to make of unjust Captures and Condemnations ; And His Majesty by His Declaration to agree, that on the total Payment of the Silesia Loan, His Majesty will enter into such a Negotiation. With respect to the Treaties Mo r . de St. Contest quoted, I told him, that I wanted nothing more to prove to him, that the Ordinary Course of Tribunals was to take place, unless in particular Cases where it was Stipulated by Treaties to be otherwise reserved ; and that it was therefore manifest, that Treaties were necessary, (or why should it be expressly pro- vided for by them) to alter the known established dispositions of a Country for the Administration of Justice ; That as for his proposal, I could by no Means enter into it, nor did I think it would be agreed to by His Majesty, as the consenting to name Commissaries, or to discuss the Matter with the King of Prussia, upon his pretended Complaints, might tend to admit a Charge or demand upon the Crown, before His Prussian Majesty had taken the necessary Steps, and done what had always been practised in the like Cases ; And that such an Admission might be made a Precedent hereafter ; whereas the Explanation now given, of the Voyes usitees & connues, is clear and ought to be satisfactory. That all I could consider in the present Case, was that the King of Prussia had offer'd a great and National Insult, which required reparation, and therefore it was proper and necessary His Prussian Majesty should make some Concession or Advance, and the previous Condition of all Negotiation, was his taking off the Arret from the Silesia Loan, which was neither hard nor unreasonable. Mo r . de S*. Contest told me hereupon, that he should be able to give me a more precise Answer in a short time, and desired I would not Acquaint Your Grace with all that had now passed between Us ; which however, is of such 392 APPENDIX 94 a Nature, as to deserve Communication, that Your Grace may be prepared in some Measure for what may hereafter be proposed ; I would only beg, it may in the interim be kept from Mo r . de Mirepoix. I shall dispatch Cleverly to Your Grace with what Mo r . de S*. Contest may say further to me upon this Subject, which I expect will be by next Saturday. I have the honour to be, &c a ., ALBEMARLE. 95. ALBEMARLE TO NEWCASTLE (S. P. For., France, vol. 247) Compiegne, Saturday, 2i st July, 1753. Separate. MY LORD, Mo r . de S*. Contest was the first to begin the Conver- sation with me to day, on the Subject of His Majesty's Com- plaint, against the King of Prussia's Proceedings, in which he renew'd the Proposal, of the reciprocal declarations between His Majesty and the King of Prussia, to be left with this Court, of which, I had the honor to give Your Grace the particulars, in my separate dispatch of Wednesday last ; to which he added, that as it would be necessary, that Commissaries should be appointed, to inquire into, and adjust, the Grievances com- plained of by the King of Prussia, if it should happen that they could not agree, the Question might then be referr'd, either to this Court, to that of Denmark or of Sweden, or to the States General, as Nations, the most vers'd in Matters of Com- merce and Navigation, to be decided by either of them ; That, as to the Apprehension Your Grace had alledged to Mo r . de Mirepoix, of such a proceeding being hereafter drawn into Precedent, by Sweden or Denmark, there could be no danger of that, as the particular Treaties Great Britain had with those Nations, left no room for any doubt. That this method now proposed, was the only one, that could be thought of here, to accelerate an Accommodation, the Terms hitherto insisted upon, by my Court, being too Mortifying for the King of Prussia, to Submit to, and it could not be reasonably expected he should. He then expressed His Surprize, at what, he said, was mentioned in a Letter he had received from Mo r . de Mirepoix, since our last Conference, which was, that Your Grace had own'd to him, ' Que bien quc les propositions, faites par la Cour d'Angleterre, etoient trop humiliantes, pour quo celle de Prusse put les accepter, et APPENDIX 95 393 meme qu'elles etoient impraticables, Cependant on ne pouvoit s'en departir.' I have given Your Grace the very words Mo r . de S fc . Contest made use of to me, which I put down in writing. I told him, I was perswaded there was some Misunderstanding, as I could not be convinced Your Grace could have made any such declaration ; That as to his proposal, of appointing Commis- saries, I was sure it would not be agreed to by His Majesty. The Truth is, that I believe their Intention to be, to make a Precedent of such a Method, to be applied to their own Case, in Matters of Prizes ; However, he told me, that this proposi- tion was the result of a Council of State, that had been held the day before yesterday, in which, the dispute with the King of Prussia, had been taken into Consideration, which it would not be possible to bring to an Accommodation, if the Terms first proposed by my Court, were finally persisted in. And, that tho' it might be concluded from them, that the Inter- position of this Court would prove inefectual, yet, such was their desire of maintaining Peace and Harmony, that they would set every Engine they could at work, to bring the two Courts to an Amicable Reconciliation ; with which view, it was, that the present proposition had been thought of, and which he hoped, would not be rejected by my Court. I have the honour to be, with the greatest Respect, My Lord, Your Grace's Most Obedient and Most Humble Servant, ALBEMARLE. [Endorsed] Compiegne, July 2i st , 1753. Earl of Albemarle (Separate). Prussia. R 24th, by Cleverly. 96. HOLDERNESSE TO ALBEMARLE (S. P. For., France, vol. 248) Whitehall, 26 th July, 1753. Private. Earl of Albemarle. MY LORD, I must not pass in Silence the Paragraph in Your Ex- cellency's Letter of the 2i st Instant, wherein The Duke of Newcastle's conversation with Mons r . de Mirepoix, appears to have been so grossly misunderstood by the French Ministers ; His Grace, after recollecting what passed with the French Ambassador, has set down, in Writing, what recurred to His Memory, and this Morning read over, to the Due de Mirepoix, the Paper which I have the Honour to inclose herewith ; That Minister, whose Candour is sufficiently 394 APPENDIX 96 known to Your Excellency, immediately confessed, that He never had understood The Duke of Newcastle in a different Sense from what is stated in that Paper, & that He is very sure He had never represented, to His Court, what had passed, in any other Light ; However, as it is necessary This Mistake should be cleared up, wheresoever it arises, I am to desire that your Excellency would take an Opportunity of reading over this Note to Mo r . de S*. Contest, and of clear- ing The Duke of Newcastle from the Imputation of having said what He never did, nor never could mean. As I can- not suspect Mo r . de S*. Contest of Misrepresentation, I am persuaded this Matter will soon be set right. I am, &c a ., HOLDERNESSE. P.S. The Duke of Newcastle does not write to Your Excy by this Messenger, but desires me not to omit His Compliments to you. 97. NEWCASTLE'S NOTE VERBALE FOR MIREPOIX (S. P. For., France, vol. 247) Le Due de Newcastle est un peu Surpris, qu'on ait pu meme supposer en France, qu'il auroit dit quelque chose de si peu convenable que ceci. ' Bien que les Propositions faites par la Cour d'Angleterre etoient trop humiliantes, pour que celle de Prusse put les accepter, & meme qu'elles etoient impracticable^, cependant on ne pouvoit s'en departir.' Aveu fort extraordinaire. Le Due de Newcastle proteste, qu'il n'y a jamais pense de cette facon, ni dit un seul mot dans ce sens. II se souvient parfaitement bien de ce qu'il a dit a cette Occasion ; Et II connoit trop bien la Droiture de Mons r . Le Due de Mirepoix, pour pouvoir douter un moment, qu'il ne convienne de ce qui s'est passe. Le Due de Newcastle croit pouvoir repeter meme les paroles, dont II s'est servi : Savoir, M r . le Due de Mirepoix ayant allegue, que ce qui avoit ete propose ici seroit cense par le Roy de Prusse comme une Demarche humiliante pour Lui ; Le Due de Newcastle, dans une Conversation amicale & Libre, repondit : ' Qu'il en etoit avec des Princes comme avec des Par- ticuliers : Si quelcun [sic] avoit agi contre toutes les Regies de Justice et de Raison, et souhaitoit que la Dispute s'accom- modat amiablement ; II faloit que cette Partie fit quelque Concession, ou quelque avance.' Le Due dc Newcastle s'en tient encore a ces Propos, sans APPENDIX 97 395 qu'il y trouve rien de deraisonable ni de surprenant ; Et bien loin de tendre a aigrir les Choses, ils ne peuvent avoir ete terms, que dans le Dessein d'avancer un Accommodement, sans la moindre Intention de chdquer qui que ce soit. [Endorsed] Note. In the Earl of Holdernesse's private Letter to the Earl of Albemarle 26th July 1753. 98. HOLDERNESSE TO ALBEMARLE (S. P. For., France, vol. 248) Whitehall, 2 (1 August, 1753. H. E. The Earl of Albemarle. MY LORD, I acquainted Your Lordship on Thursday last, that I hoped I should be able to write fully to You by this Messenger, upon the Subject of the Dispute with The King of Prussia, & shall now give You an Account of what has passed with the French Ambassador here, & acquaint You with The King's Pleasure in consequence of It. The Due de Mirepoix read over last Week to some of The King's Servants, a Dispatch he had received from Mons r . de S*. Contest, containing in Detail, the several Arguments He had made use of to Your Excellency in support of His Proposal of referring The King of Prussia's Complaints to Commissaries, which, He would make the Condition of His Prussian Majesty's taking off the Arret of what Remains due upon the Silesia Loan. But this Proposal Your Ex- cellency will easily imagine could never be listened to here, & The Due de Mirepoix has been constantly told, that it would not be admitted. It is needless to enter minutely into every Thing that has passed in the long Conferences which have been held with the French Ambassador ; Upon the Whole, that Minister has always been given to understand, that The King looks upon the Proceedings of His Prussian Majesty, as a National Affront, and is determined to abide by the Demand of a pre- vious Satisfaction, which Point Your Excellency has so properly supported, in consequence of the frequent Instruc- tions You have received. This Negotiation seems now to be drawn into a narrow Compass, so far as relates to the Court of France ; His Most Christian Majesty looks upon the Satisfaction demanded by The King, as trop humiliant pour Le Roy de Prusse ; And The King, on His Part, determines to reject all Proposals, 'till that Satisfaction is previously given. And the better 396 APPENDIX 98 to enable Your Excellency to convey clearly, & explicitly His Majesty's Meaning to the Court of France, I have The King's Orders to transmit to You a Note which has been drawn up, in consequence of Your Letters of the iS 111 & 2i st of July, which has been communicated to the French Ambassador ; I must observe to You, that the first Part of this Paper so far as the Words ' de la Part de Sa Majeste Tres Chretienne ', would have been transmitted to Your Excellency by the last Messenger, had it not been for the Hopes Mons r . de Mirepoix seemed to entertain, that by postponing it for one Week, He might possibly receive Instruc- tions more conformable to The King's Views & Intentions ; & that Minister having observed, that all farther Negotia- tion with His Court upon this Point, was at an End by the Paper as it then stood, (the Consequences of which He seemed greatly to aprehend,) the last Paragraph beginning with the Words, ' Le Roy laisse a la Consideration du Roy Tres Chretien ', was added to It, with which He seemed much better satisfied. How far the Due de Mirepoix is intrusted with the real Secrets of His Court, I will not pretend to determine ; or whether His own Good Inclination for the Preservation of the Peace may have induced Him to take several of the Steps He has done, during the Course of this Transaction, but I think it is easy to see, that His Court is very far from being desirous of letting Things go to extremity ; & I may in Confidence acquaint Your Excellency, that The King of Prussia seems greatly alarmed at the Motions of some Russian Troops toward the Frontiers of Livonia ; & I have Reason to believe, His Prussian Majesty's Apprehensions from that Quarter are so strong, that He will not, perhaps, be sorry, to find a Loop-Hole to get out of the disagreeable and embar- rassing Situation into which His own violent Measures, & unjust Proceedings have brought Him. I am &c n . HOLDERNESSE. 99. INSTRUCTION FOR ALBEMARLE (S. P. For., France, vol. 248) August 2, 1753. Le Due de Newcastle ayant, par Ordre du Roy, declare a Mons r . Le Due de Mirepoix ; Et Le Comte d'Albemarle ayant fait de meme a Mons 1 '. Le Marquis de S*. Contest ; ' Que la Nomination de Commissaires scroit impraticable, vu qu'Elle changcroit entiercment la Nature des Procedures en Ces Cas ' ; Mais, ' Ou'apres quc Lc Roy de Prussc auroit APPENDIX 99 397 contente les Sujets de Sa Majeste, sur ce qui Leur est du en reste de 1'Emprunt sur la Silesie ; Le Roy seroit pret de rendre Justice, selon les Voyes usitees, et connues, sur toutes les Plaintes de Sa Majeste Prussienne ; Par lesquelles Voyes, on doit entendre, L'Appel, dans tous les Cas, ou il est ad- missible, a la Cour Superieure ; qui est composee de Personnes d'un Rang eleve; qui sont au dessus de tout Soupcon de Partialite ; Et dont les Decisions ont etc sans Reproche.' Et Mons r . Le Comte d'Albemarle ayant mande a Sa Majeste, par des Lettres, du 18, et du 21, du Mois passe, que Mons r . de S*. Contest n'avoit pas approuve la Proposition susdite ; Et avoit propose, ' Que des Declarations reciproques fussent deposees aupres de la Cour de France ; par lesquelles, Sa Majeste Prussienne s'engageroit de lever la Saisie de 1'Emprunt sur la Silesie, et d'en payer le Restant, des que Le Roy consentiroit a traiter avec Elle, de Couronne a Couronne, sur les Plaintes qu'Elle auroit a faire, au Sujet de Captures, et de Condamnations injustes ; Et que Sa Majeste conviendroit, par Sa Declaration, d'entrer dans une pareille Negotiation, des le Payement total du susdit Emprunt ' : Et que, ' Comme, pour cet Effet, il seroit necessaire, qu'il fut nomme des Commissaires, pour examiner, et ajuster, les Griefs, dont Le Roy de Prusse se plaint ; En cas que ces Commissaires ne pussent s'accorder, La Dispute pourroit alors etre renvoyee a cette Cour, a Celle de Danemarc, ou de Suede, ou aux Etats Generaux, comme les Nations, les plus versees dans les Affaires de Commerce, et de Navigation, afin d'etre decidee, par 1'une, ou 1'autre d'Elles '. II est enjoint au Comte d'Albemarle, de declarer a Mons r . de S*. Contest, Que Le Roy s'en tient a la Reponse donnee ci dessus par Son Ambassadeur ; Et ne sauroit aucunement consentir, Que 1'Affaire, dans 1'Etat ou Elle est, soit renvoyee a des Commissaires, pour en faire la Discussion ; Ce qui change- roit entierement la Nature des Procedures en Cette Sorte d'Affaires, et n'a jamais ete pratique dans les Cas semblables ; Et seroit meme tres prejudiciable aux Parties respectives. II est ordonne, en particulier, au Comte d'Albemarle, de faire des Remercimens, de la Part du Roy, a Sa Majeste Tres Chretienne, de la Peine, qu'Elle a bien voulu prendre, en Employant Ses Bons Offices, pour terminer heureusement ces Differends. Le Roy est fache de ce que ces Bons Offices n'ont pas eu 1' Effet desire ; Et Sa Majeste est tres eloignee d'en imputer le mauvais Succes au moindre Defaut d'Amitie, ou d'Egards, de la Part de Sa Majeste Tres Chretienne. Le Roy laisse a la Consideration du Roy Tres Chretien, 398 APPENDIX 99 S'il convient de continuer cette Negotiation ; Amoins que, dans 1'Espace de Quatre Semaines, a compter de ce Jour, Le Roy de Prusse ne juge a propos de s'expliquer d'une facon plus satisfaisante ; Ou, que Sa Majeste Tres Chretienne ne puisse trouver quelque Expedient, qui ne sera pas sujet aux Inconvenients, qui rendent la derniere Proposition, que Mons r . de S*. Contest a fait au Comte d'Albemarle, inad- missible, de la Part du Roy. ioo. ALBEMARLE TO HOLDERNESSE (S. P. For., France, vol. 248) Paris, Wednesday, 15 th Aug*, 1753. MY LORD, In my Audience Yesterday of Mons r . de S*. Contest, who came to Paris to receive the Foreign Ministers, he acquainted me, that he found, by the Due de Mirepoix's Letters, that he had had several Conferences with His Majesty's Servants, on the Dispute with the King of Prussia, which had concluded by telling that Ambassador, that His Majesty would not depart from His Resolution, of having the previous Satisfaction of the Arret being taken off from the Silesia Loan ; I replied, that I imagined then, in consequence of those Letters, that he was no Stranger to the Paper I had to communicate to him, (contained in Your Lordship's Dispatch of the 2 d Inst.) which had also been shewn to the Due de Mirepoix, and served to confirm what that Ambassador had wrote, and I had so often assured him of, that His Majesty was determined to adhere to the Terms He had demanded, as a Satisfaction for the violent Insult which the King of Prussia had offered to the Nation ; and I begg'd leave to read that paper to him, which I did very deliberately from End to End. He said, that he had been informed to the same purpose, by Mo r . de Mirepoix, and that if We would yield nothing from those Terms, he was sorry to see the little likelihood of bringing things to an Accommodation upon that Footing. That those which this Court had pro- posed, had been thought reasonable, and They had hoped His Majesty would not have rejected them ; That they were still, and always should be ready, and desirous, to do every thing they could to reconcile the Two Courts, but that no other means could be thought of here, than that of the reci- procal Declarations, and of naming Commissaries ; for as to the King of Prussia's submitting his Complaints to the ordinary Course of a Superior Court of Judicature, by way of appeal from an Inferior Court, in which His Subjects had APPENDIX 100 399 been condemned, he thought, little was to be hoped from thence, nor does the Law of Nations, in his Opinion, oblige him to abide by such kind of Decisions, in Affairs that were not between Subject and Subject, but of a National Concern, and therefore proper to be treated between Crown and Crown. He then ask'd me, whether I could think of any other way of bringing the Two Courts to a friendly Understanding, since, of the two Means that had been offer'd on both Sides, neither had been accepted ? My Answer to him was such as I thought consistent with the Instructions I had received, that after an Injury had been committed it was but natural to expect, that the Party Offending, should make some Advances by way of Reparation ; that tho' it might be thought humiliant, yet a retractation was no more than Common Equity required, and was all that had been demanded in the present Case, and I could not conceive, therefore, that more moderate Proposals could be made. He repeated to me, he was sorry then to see no way of getting out of this embar- rassing Situation, his Court having done every thing They could, and he had given me Their last Word. I took Notice to him of the Civility with which His Majesty returned His thanks to The Most Christian King for His Good Offices, which, tho' they had not proved successfull, it was not imputed either to any want of Friendship, or of regard on His Most Christian Majesty's part ; And I then added, that I would not yet understand, that he, (Mo r . de S*. Contest) gave me a Denial of using any farther Endeavours, to find some Means of healing the present Division, particularly as His Majesty had offer'd four Weeks more, if His Most Chris- tian Majesty should think it proper, to bring the King of Prussia to explain himself in a more satisfactory manner ; and I desired him on the contrary to consult with his Friends, when he should return to Versailles, and open himself to me, if any Method should be thought of, that could be proposed ; in which Case, if he did not care it should go under his Name, I would make no further Use of it than he would permit me ; and that it would not be necessary to wait for another Tuesday to acquaint me with it, as I would be ready to attend him any other Day. He observed to me, that the Space of four Weeks was too short a time, as near half of it was already elapsed since the Paper I had read to him had been wrote ; but in order to take off that Difficulty, I told him, that, tho' I was not instructed to do what I was going to offer, yet, no Date being fixed to that paper, I would venture to take upon me, that the Term of four Weeks should be understood to commence only from the Day of my reading it to him ; He seem'd better satisfied with this, and desired 400 APPENDIX 100 my Court would be assured, of their sincere Inclination, to bring these Differences to an amicable Conclusion. This was all that passed between Us on this occasion, without Mons 1 '. de S*. Contest's promising any thing more particular to me, than that, if any Measures could be thought of, from which to expect Success, he would lose no time in acquainting me with it. I have the honour to be, with the greatest respect, My Lord, Your Lordship's most obedient, and most humble, Servant ALBEMARLE. [Endorsed] Paris. 15 th Aug*. 1753. H. E. the E 1 of Albe- marle. R 19. 101. MICHELL TO FREDERICK (Brit. Mus. Add. MS. 32846, ff. 70-2) Copie au Roy de Prusse. Londres le 10 Aout 1753. SIRE J'ai regu les ordres Immediats dont il a plu a V. M. de m'honorer en date du 27 du mois dernier avec le tres gracieux Rescrit du meme jour. * En suite de ce que j'eus 1'honneur de mander immediate- ment a V. M. par le dernier Ordinaire, je me rendis hier chez le Due de Mirepoix, qui me confirma non seulement les Dispositions, ou etoient les Ministres de cette Cour par rapport a Leurs Differends avec V. M. ; mais de plus qu'Il avoit deja envoye un Courier a Sa Cour avec Avis, que depuis 1'Ar- rivee du Sieur Pelham en Ville, on etoit dispose ici d'etouffer les Differends en question par le moyen d'une Somme d'Ar- gent, que Ton promettroit a la France ; Qu'Il attendoit actuellement des Instructions, pour savoir, si cet Expedient seroit agree, et approuve par V. M., puisque ceux que Ton avoit propose auparavant, comme la voye des Commissaires, et du Simple Arbitrage, ont etc absolument rejcttes. Voila, ou les choscs en sont, et comme j'ai deja eu 1'honneur de mander plusieurs fois a V. M. la nature de ces Differends, aussybien que la nccessite, ou Ton est ici de soutenir la Legalite de Leurs Tribunaux, et les Precautions, que Ton y etoit oblige de prendre aupres des autres Puissances dans le cas, dont il s'agit, je ne saurois aujourd' huy, que me referer au Contenu de toutes mes Depeches sur cette matiere, en atten- * [The following is in cypher]. APPENDIX 101 401 dant que le Due de Mirepoix receive des Instructions, et que V. M. se decide la-dessus ; m'etant contente de dire simple- ment a cet Ambassadeur, que je savois assez des Sentimens de V. M. pour L'assurer, que si on en usoit avec discretion, et Decence avec V. M., et qu'on Lui rendit la Justice, qui Luy etoit due, il ne tiendroit jamais a V. M., que Ses Dif- ferends avec les Anglois ne s'accommodassent. MlCHELL. [Endorsed] Londres le 10 Aout 1753. Copie d'une Lettre de M r Michell au Roy de Prusse. Rec d y e 10 Aug* 1753. Decyphered. 102. HOLDERNESSE TO ALBEMARLE (S. P. For., France, vol. 248) Whitehall, 24 th Aug fc 1753. Earl of Albemarle. MY LORD, Your Excellency's Letter of the 15 th instant, which I receiv'd on Sunday last, having brought an Account of the Continuance of the same Language, on the Part of the French Ministers, upon the Subject of the Dispute with the King of Prussia, which they have held, to you, for some time past, and, as His Majesty is still determined to abide by the Satisfaction He has demanded, for the National Insult offer'd by the King of Prussia ; I will not trouble you any longer upon the exhausted Arguments which have been made use of, on both Sides, but proceed to inform you of what has passed, in several Conferences the Due de Mire- poix has had with the King's Servants here, which have ended in his making a kind of Proposal, which he said, indeed, was without Orders from his Court, a Copy of which I inclose for Your Excellency's Information ; When it was laid before the King, His Majesty found it to be as inadmissible, as any of the other Expedients which have, hitherto, been suggested by the Court of France, for adjusting these Disputes ; and it is His Majesty's Pleasure, that you should acquaint Mo r . de S*. Contest, that, as Your Exy. had taken it upon your- self to engage, That the Period of one Month, which was fixed in the Paper I transmitted to your Excellency, in my Letter of the 2 d instant, for receiving any new Proposal, from the Courts of France and Prussia, should only commence from the Day on which you read that Paper, viz*, the 14 th instant, His Majesty is pleased to confirm what Your Exy. had advanced ; But, that Term once expired, His Majesty 1783 D d 402 APPENDIX 102 will look upon this Negociation to be absolutely at an End ; and that the King adheres to what He has always insisted upon, viz*. That, previously to any Step being taken in this Affair, His Prussian Majesty should take off the Arret upon the Money due on the Silesian Loan ; And that then any Pretension, which the King of Prussia has, may be heard in the Common Course of the Courts of Justice, It being always to be understood, that if the Court of Appeal should not do Justice (which is not to be supposed) Then, and in that Case only, such Complaints might necessarily be, to be treated between Court and Court. I am, &c ft . HOLDERNESSE. [Enclosure] (S. P. For., France, vol. 248) Copie. L'Ambassadeur de France propose, que Le Roy, Son Maitre, fasse payer a My Lord Albemarle La Somme due par Le Roy de Prusse pour les Effets Anglois, hypoteques sur la Silesie ; Et que My Lord Albemarle soit charge de remettre a Mo r . de S*. Contest les Lettres de Change pour la Valeur de la Somme, a laquelle Les Cours de France, et d'Angleterre, jugeront convenable de reduire les Pretensions du Roy de Prusse. Ce 15 Aout 1753. [Endorsed] Proposition faite par Mo r . L'Ambassadeur de France. Sent to the E 1 . of Albemarle. 24 th Aug* 1753. 103. ALBEMARLE TO HOLDERNESSE (S. P. For., France, vol. 248) Paris, Wednesday, 29* Aug* 1753. MY LORD, The Day after I received the honour of Your Lord- ship's letter of the 24 th , I saw Mo r . de S 1 . Contest, and read to him the proposition, made by the Due de Mirepoix, for reconciling the Differences between His Majesty and the King of Prussia, which I represented, as having shewn the good Intentions of that Ambassador, but at the same time, that the Terms it contained were as little admissible as any of the other Expedients which have been hitherto suggested, and that His Majesty would not depart from that Satisfac- tion he demanded, and which had been so often repeated APPENDIX 103 403 as previous to any Step being taken on His part, in this Affair. I then acquainted him, that His Majesty had been pleased to confirm what I had advanced, that the period of one Month, which was fixed in the Paper I had read to him on the 14 th . Ins*., for receiving any new proposal from the Courts of France or Prussia, should only commence on that Day, but that, that Term once expired, His Majesty would look upon this Negociation to be absolutely at an End. By the manner in which Mo r . de S*. Contest adopted, and approved, their Ambassador's proposition, it seem'd plain to me, that the Hint had been given him from hence, tho' the Due de Mire- poix offer'd it as being his own, and without having received any Orders for it. Mo r . de S*. Contest expressed his Concern to find, that, notwithstanding the Desire of his Court to conciliate this Dispute, and the Endeavours They had used to that End, that none of the means proposed had been accepted of ; that they could not think of any other, nor propose those which His Majesty insisted upon, which were look'd on as trap humiliants for the King of Prussia to submit to, and would therefore be too disagreable to him for them to think of pressing them to him ; that he was sorry to see this Negociation must be given up, but that they had nothing to reproach themselves with, having shewn their friendly Inclination to both Parties. I then took hold of the last part of Your Lordship's letter, to propose to Mons r . de S*. Contest, as from myself, a Method that might tend to bring both Parties to a reconciliation, and which, if he approved of it, I said, I would transmit to my Court to receive Orders upon it ; and that was, that the King of Prussia should take off the Arret upon the Money due on the Silesia Loan, and that afterwards if the Court of Appeal, to whom the King of Prussia's Complaints should be addressed, should not do Justice (which I added, it was not possible to suppose) then they should be treated between Court and Court. This, Mo r . de S*. Contest said, could not be accepted of, and that he could not but look upon the Negociation as broke off, since he saw no likelihood of any proposition being made that would be agreable to both parties, within the time limited ; he said likewise, that after having shewn their Desire at this Court, to bring His Majesty and the King of Prussia to a good Understanding, they would chuse not to have it laid upon them to acquaint His Prussian Majesty with the Negociation being absolutely at an End, but desired that the Duke of Newcastle would signify it to Mo r . Michell ; he said further, that he could not finish without observing to me, that to shew the little Satisfaction that was to be expected from Our Courts of Admiralty and of Appeal, he would 404 APPENDIX 103 instance Mo r . Peyrac's Case that was lately judged, in which Sentence was given in his favour, but as no Damages or Interests had been adjudged, the Computation of his Loss, and of the great Costs he had been at being made, exclusive of all his Trouble, the Sum he had recovered did not amount to half of what that person had a right to. I urged, that the Sentence depended on the Evidence Peyrac had produced, and that I could venture to affirm, from the known Integrity of the Persons who presided at the Court of Appeals, who were of the first rank in the Kingdom, that had the same Evidence been laid before him, or any other impartial persons they could not have given any other Sentence. But Mo r . de S*. Contest was so prepossessed, that it was to no purpose to urge the point any farther ; he adopted the Maxims laid down in their late Memorial on Prizes, by which, they pretend, that in Matters between Nation and Nation, as that, he said of prizes, is, the Subjects of one Nation are not bound by the Sentence of the Courts of Judicature of the other, but that Commissaries ought to be appointed by common Consent, who not agreeing, should chuse Arbitrators in another nation indifferent to both. Our Conversation on this Affair rested here as it was needless for me to enter into that Argument which was wide of the Question. I have the honour to be with the greatest Respect, My Lord Your Lordship's most obedient, and most humble, Servant ALBEMARLE. [Endorsed] Paris 29 th Aug* 1753. H. E. the E 1 of Albe- marle. R i. Sept. By Turner. 104. HOLDERNESSE TO ALBEMARLE (S. P. For., France, vol. 248) Whitehall, 6 tb Sepf 1753. H. E. The Earl of Albemarle. MY LORD, I have received the Honor of Your Excellency's Letters of the 2Q th of August by Turner, & laid them immediately before The King ; And His Majesty has been pleased to approve, the Manner in which You have executed His Com- mands, contained in my Letter of the 24^, relative to the Dispute with The King of Prussia. I have nothing new to say to Your Excellency upon that Head, but to observe, that APPENDIX 104 405 what Mons r . de S*. Contest proposes of It's being signified from hence to The King of Prussia's Minister, that the Negotia- tion between His Majesty, & the Court of France, is at an End, seems entirely useless, & indeed inconsistent with the Nature of the Application originally made to the Court of France, which was no other than to acquaint Them, that One of Their Allies having insulted the Crown of Great Britain, that offensive Proceeding might be productive of disagreeable Consequences, unless by the Interposition of the Most Christian King, His Prussian Majesty was brought to desist from His unjust Resolution, of detaining what is due to The King's Subjects ; And the several Proposals which have been offered, proving unsatisfactory, there is now an End of that Trans- action, so far as relates to the Court of France. One should almost be tempted to think, by Mons r . de S*. Contest's Way of Reasoning upon this Point, that He never tho'ro'ly understood the Nature of the Question, or, that He was not informed, that Our Courts of Admiralty, as likewise the higher Court of Appeals, Act by the same Principles, & even with the same Forms, which are made use of in France ; But it is now become Unnecessary to detain Your Excellency any longer upon this Subject. I am, &c a ., HOLDERNESSE. 105. ALBEMARLE TO HOLDERNESSE (S. P. For., France, vol. 248) Paris, Wednesday, 12 th Sept 1 ' 1753. MY LORD, I have thought it unnecessary to say any thing to Mo r . de S*. Contest, upon the Subject of Your Lordship's letter of the 24 th Instant/ judging it would be inconsistent with His Majesty's Dignity, to take any further Notice of the Negocia- tion, relating to the King of Prussia, after this Court had thrown it up so definitively as they have done. I may, how- ever, assure Your Lordship, that, that Minister could not well misunderstand the Nature of the Application, originally made to his Court, in that respect, having more than once explained it to him in the most precise manner ; but that he is willfully blind to every thing that does not seem to be for the honour, or Interest, of Prussia, is a thing more than probable, from his Manner of acting, on every occasion, in which the King of Prussia has been concerned. 1 ' Ultimo ' is meant. 406 APPENDIX 105 With respect to their Notions of Our Courts of Admiralty and Courts of Appeal, Your Lordship will have observed, that, tho' it has often been told them, that they proceed according to the Law of Nations, and the particular Treaties, yet, by their late Memorial on Prizes, they treat those Judgements as being only of the Nature of Interlocutory Judgements ; and do not look upon them as final, but that the matter of them is to be deem'd an Object of Negociation, to be determined, as often as it may be required, between Crown and Crown, Prizes being, in their Opinion, a National Concern, and not meerly as between Subject and Subject ; and they leave, consequently, the same Application to be made to the Forms used in France, on the like Occasions. [Endorsed] Paris, 12 th Sept., 1753. H. E. the E 1 of Albe- marle, R 16. Evacuations. 106. ALBEMARLE TO HOLDERNESSE (S. P. For., France, vol. 248) Fontainebleau, Tuesday, 13 th Nov r 1753. Apart. MY LORD, Since my other Letters of this Date I have seen Mo r . de S*. Contest, who has told me, that Mo T . de Mirepoix's last Dispatches inform'd him, that Your Lordship was preparing a State of the several Subjects of Complaint from Our Court, Article by Article, remaining unsatisfied, which Your Lordship was to deliver to him ; from which Mo r . de S*. Contest took occasion to express their readiness at this Court to join in removing all Causes of Discontent, between the Two Courts ; and to add, that nothing would remain afterwards, but to settle the Differences between His Majesty and the King of Prussia, which, he said, he should be glad to see an End to ; That he thought some Expedient might be found to bring it about, and asked me whether I had received any Instructions on that subject. I told him, that I had already acquainted him with His Majesty's resolution, in which I did not know of any Alteration ; that since this Court l had thought proper to drop the Negociation that had been begun with them, for the Inter- position of their Offices at that of Berlin, to engage His Prus- sian Majesty, to give the King the Satisfaction His Majesty 1 This is a mistake of the draughtsman, who took the words ' this Court', doubtless, from a dispatch of Holdernesse's, where it would mean the English Court. See dispatches of November 29 and Decem- ber 5 infra. APPENDIX 106 407 had a right to expect, I had not received any Directions what- ever, and had therefore no Propositions to make him ; and that if he had any to offer I could not now take upon me to receive them, but advised him to send them to Mo r . de Mire- poix. Mo r . de S*. Contest made me no other Answer to this than the Wishes of his Court to root up these Seeds of Dissention. [Endorsed]. Fontainbleau, 13 th Nov r 1753. H. E. the E 1 of Albemarle. Apart. R 17 th By Pollock. 107. HOLDERNESSE TO ALBEMARLE (5. P. For., France, vol. 248) Whitehall, 2Q th Nov r 1753. Apart. Earl of Albemarle. MY LORD, I cannot omit mentioning a Mistake, which seems to have slipped into Your Excy's Letter, apart, of Nov r 13 th , wherein amongst other Things, you say, That you had ac- quainted Mons r . de S*. Contest ' That since this Court (meaning France) had thought proper to drop the Negociation, that had been begun with them &c a .,' which seems to insinuate, that it was the Court of France that had dropped this Negociation ; Whereas the Case really is, That His Majesty not having receiv'd admissible Proposals from Them, touching the Prussian Dispute, had thought proper to desist from any farther Negociation, and directed Your Excy to acquaint Mo r . de S*. Contest with this Resolution ; As this Distinction is very material, I hope Your Excy will set it right, wherever the Mistake may have happen'd. I am, &c a ., HOLDERNESSE. 108. ALBEMARLE TO HOLDERNESSE (S. P. For., France, vol. 248) Paris, Wednesday, 5 th Dec r 1753. MY LORD, It is material I should rectify the Error, which Your Lordship has observed, in my Letter Apart of the I3 tb of last Month in speaking of the Negociation at this Court, relating to the Dispute with the King of Prussia. The Terms I made 408 APPENDIX 108 use of slipp'd in by Inadvertency ; But I recollect very well that my Conversation with Mo r . de S*. Contest had not the Turn, which such Expressions would seem to give it, and therefore there is no occasion to make him any Explanation upon it, the mistake being only in my letter. 109. MICHELL TO FREDERICK (Brit. Mas. Add. MSS. 32859, f. 154) Copie Au Roy de Prusse, Au Roy seul. P. S. A ma tres humble Relation du 19 Septembre 1755. J'aurai 1'Honneur de dire a V. M. en Consequence des Ordres immediats, dont Elle m'a honore le 2. de ce Mois, que je suis persuade, que le Ministere Anglois seroit charme de pouvoir mettre a couvert de toute Insulte les Etats du Roy en Alle- magne ; Cela generoit moins 1'Angleterre dans Ses Operations centre la France, et Luy epargneroit probablement beaucoup ; Mais en meme terns je ne saurois mander avec Precision jusqu'a quel Point cela pourroit importer a ces Gens-cy, a moins que de savoir sur quel pied une pareille Negociation pourroit avoir lieu. Si par exemple il etoit question de convenir de cette Affaire avec la France, et qu'Elle exigeat pour cet Effet des Conditions de 1'Electeur, qui affectassent le Systeme du Roy d'Angleterre, les Ministres Anglois, bien loin d'en etre charmes feroient au contraire tout au Monde pour en detourner Leur Maitre ; Mais d'autre cote si on pouvoit trouver des Expedients pour mettre 1'Electorat a couvert sans commettre le Roy d'Angleterre, je suis tres fort persuade comme je viens de le dire, qu'une pareille Negociation feroit plaisir icy. C'est la au moins tout ce que je puis en mander a V. M. en La suppliant d'etre bien sure, que je n'ouvriray jamais la bouche a qui que ce soit, des Questions, qu'Elle m'a fait a cet egard. Ut in humillima Relatione MICHELL. [Endorsed] Londres ig 6 Sept re 1755. Copie du P.S. de la Lettre de M r Michell au Roy de Prusse. R 19 th Sep r 1755. Decyphered. APPENDIX no 409 no. FREDERICK TO MICHELL (Add. MSS. 32861, f. 403) Berlin 23 e Decembre 1755. J'ai recu Votre Rapport du 9. de ce Mois par lequel j'ay vu avec Satisfaction, que les Affaires Publiques sont en Angle- terre encore dans les memes Dispositions, qu'auparavant, et que la Fagon de penser des Ministres continue a cet egard. Comme ma Lettre du 7. de ce Mois vous sera parvenue au Moment present, J'espere d'avoir bientot Votre Reponse la-dessus, et que Je serai bientot d' accord avec ces Gens Id : Faites Moy en au plus tot Votre Rapport, et si Vous pensez qu'il le faille, envoyez Moy Votre Reponse par un Courier Expres, que Vous addresserez au Sieur de Hellen a la Haye, afin qu'il me la fasse parvenir le plus tot le mieux. FEDERIC. in. NEWCASTLE TO MUNCHHAUSEN (Add. MSS. 32861, fif. 401-2) A Newcastle House, Le 23 me Dec re 1755. MON CHER MONSIEUR, Je ne veux pas laisser partir ce Courier, avec les Nouvelles interessantes qu'il porte, sans avoir 1'Honneur de renouveller a Votre Excellence, et a Mo r . de Steinberg, les Assurances de mes Respects inviolables ; Et sans meme vous toucher un Mot sur leur Sujet. Je regarde la Negociation presente avec Le Roi de Prusse, comme la Suite des Idees, qui nous ont ete communes, et egalement approuvees de tous les Deux ; Et J'ose faire res- souvenir a Votre Ex ce . combien Je les ai ardemment recom- mandees dans ma Lettre du 25 me . de Juillet ; Comme le Moyen le plus efficace, dans la Conjoncture presente, de pourvoir a la Surete des Etats Allemands du Roi ; et de prevenir la Guerre sur le Continent ; Un Objet, si desirable pour le Bien de 1'Europe, et, a tous Egards, pour Le Roi. J'espere, que Votre Excellence approuvera le Projet de Con- vention, lequel j 'ai prie Sa Maj te . de vous envoyer, pour que nous puissions avoir Vos Sentimens la dessus, avant le Retour du Courier de Berlin. Je veux bien esperer, que, loin d'y mettre aucun Obstacle, vous y joindres Toutes les Facilites possibles. Je connois trop le Caractere du Roy de Prusse, pour me fier entierement aux Apparences favorables ; Mais Notre Devoir nous oblige de mettre Sa Sincerite a 1'Epreuve. En tout Cas, Je ne prevois aucun Inconvenient, si nous serons en Liberte, sur 1'Entree actuelle des Trouppes Francoises dans 410 APPENDIX in 1'Empire, de faire de meme, de notre part, a 1'Egard des Russes, cm telles autres Trouppes Etrangeres qu'on jugera a propos, et qu'on sera en Etat d'appeller pour Notre Defence ; Liberte, qui doit etre reciproque aux Deux Parties Contractantes. Je ne scaurois finir, sans Vous prier de faire mes tres humbles Respects a Son Ex ce . Mo r . de Steinberg, et a tous Mes Amis, et Amies a Hanovre ; Et particulierement a la Chere Melzing. La Duchesse de Newcastle vous assure tous de ses Complimens les plus sinceres. Je vous souhaite les Complimens de la Saison ; Et suis, avec la Consideration, et la Sincerite, les plus parfaites, Mon Cher Monsieur, &c a HOLLES NEWCASTLE. [Endorsed] Copy to the President Munchhausen, Dec r 23 d 1755, by Lamb. 112. MUNCHHAUSEN TO NEWCASTLE (Add. MSS. 32861, ff. 500-1) MY LORD Due La gracieuse Lettre, dont Votre Excellence m'a honoree le 23 me m'a ete rendue le 29 me a 8 heure du soir. La joye qu'elle m'a causee a ete d'autant plus sensible, que les nouvelles, dont elle me fait part, sont du plus desirables et importantes dans les conjunctures presentes si critiques, et qu'elle m'est d'une preuve authentique, que Votre Excellence continue, de m'accorder quelque part en 1'honneur de sa bienveillance et d'une confiance aussi flatteuse que la sienne, dont 1'un et 1'autre est hors de tout prix aupres de moi. Je n'aurois done gueres pu finir plus agreablement cette annee, que je ne le fais, graces aux bontes de Votre Excellence, Pour que rien ne manque a ce contentement je profite avec empressement de 1'occasion que Votre Excellence me fournit, pour Lui renouveller les assurances de devotion et d'un attachement respectueux et sans reserve, que je Lui ai voue pour le reste de mes jours. J'ajoute des voeux ardens et sinceres, pour qu'il plaise a Dieu de conserver Votre Excellence en Sante et en tout ce qu'il y a de felicite pendant longues annees, et qu'il veuille couronner les conseils eclaires de tout le succes et bonheur imaginable dans ce temps difficile et epineux. Quoique le Courier n'ait pas encore delivre ses autres depeches, et que par consequent je ne sois pas encore instruit des circonstances et de la facon de la chose, dont il s'agit, My lord Holdernesse, de meme que les lettres, que j'ai eu honneur d'ecrire a Votre Excellence pendant la presence du Roy, pourront me rendre temoignage, combien j'ai de lors revere la APPENDIX 112 411 sage reflexion de V. E. au sujet du Plan qu'elle avoit dresse par raport au Roy de Prasse et qui est revenu a present sur le tapis, et combien, j'ai envisage 1'acquisition d'une bonne intelligence avec ce puissant Voisin, come un coup de parti et 1'expedient le plus sur, pour couvrir les Etats du Roy en Alle- magne sans depenses excessives et pour rendre a la Couronne d'Angleterre les coudees d'autant plus Franches, pour agir de la facon la plus conforme aux Interets de la Nation. Je continue d'etre de lameme opinion et je crois pouvoir garantir d'avance a V. E., une approbation universelle et particuliere- ment du Ministere d'ici dans le coup d'essai qu'Elle vient de f aire . Je n'ai pas manque de m'acquitter des complimens, dont Votre Excellence me fait 1'honneur de me charger, en parti- culier a Ms. de Steinberg et Madame de Meltzing. Ils ont ete recus avec grande joye et reconnoissance. Votre Excellence et son souvenir etant a jamais revere et respect e parmi nous, tous m'ont comis d'en assurer V. E. et de leur parfait devoue- ment. Je prens la liberte de presenter mes tres humbles devoirs de memes que ma feme, qui en fait autant a V. E., a Madame la Dutchesse, Lui souhaitant du meilleur de mon coeur une sante parfaite et toute sorte de contentement. Nous vous supplions, de nous conserver 1'un et 1'autre 1'honneur de vos bonnes graces. Votre Excellence peut compter, qu'elle ne peut etre davantage honoree et respectee, qu'elle Test, et le sera a jamais, de My lord Due De Votre Excellence le tres humble, tres obeissant et tres devoue serviteur MtJNCHHAUSEN Hannovre ce 30 Decembre 1755 [Endorsed] R Jan 1 "? 6 th by Lambe. 113. MtJNCHHAUSEN TO NEWCASTLE (Add. MSS. 32861, ff. 498-9) MY LORD Due, En lisant le Plan de Convention, j'ai donne mille et mille benedictions a Votre Excellence, tant je 1'ai trouve bien, prudemment et solidement concu, et tant il m'a paru digne d'admiration qu'au milieu de grandes importantes affaires, que Votre Excellence a dessus les bras, Elle a tant pu s'occuper de notre surete et des moiens de conserver a notre petit coin la paix et la tranquillite. Le Roy aiant ordonne, qu'apres que nous nous fussions concertes sur le plan en qi [question], nous devions expedier et 412 APPENDIX 113 faire repartir le courier sur le champs et sans aucun delai nous avons fait tant de diligence, que le dit Courier repartira demain de bonne heure. Je puis done dire avec verite que tous mes Collegues de meme que moi ont ete penetres de satisfaction et d'admiration sur tout ce que Votre Excellence a projette. Ms. de Steinberg, surtout m'a bien charge d'en assurer Votre Excellence en lui presentant ses respects. Comme nous avons trouve le Plane dresse avec une si grande circumspection tant de prudence et solidite qu'il n'y a rien a retrancher, n'y a aj outer selons nos petits lumieres nous faisons come je viens de le dire, repartir le Courir sur le champ, pour qu'il porte aux pieds du Roy nos humbles remercimens de ses soins Paternels, et si gracieux pour ce Pais ci, et assurer Sa Majeste, que nous ne pourrions rien imaginer de plus propre, pour pourvoir a notre surete, que ce que contient 1'Ecrit, dont Sa Majeste nous a fait faire part. Dieu veuille, que le Roy de Prusse y donne les mains de bonne foi. L'on ne peut sans doute jamais etre entierement sure de son fait avec ce Prince, mais ce qui augmente mes esperances par raport a cette negotiation, c'est qu'outre des raisons qui regardent le propre Interet du Roy de Prusse, et qui proviennent des sages mesures qu'on a pris en Angleterre, c'est, que le Due de Bronsvic en se servant du canal de son Frere le Prince Ferdinand, qui est bien intentionne remue Ciel et Terre, pour inspirer de meilleures dispositions au Roy de Prusse et que je scais de bonne part, que Dieu a beni deja les mouve- ments, que sa devotion pour le Roy lui fait prendre pour faire beaucoup d'impression sur 1'esprit de notre redoutable Voisin. Je suis avec un attachement respectueux et tres sincere My lord Due De Votre Excellence le tres humble et tres obeissant Serviteur, MtJNCHHAUSEN. Hannovre ce 30 Decembre 1755. [Endorsed] R Jan r y 6 th by Lambe. 114. HOLDERNESSE TO SlR CHARLES HANBURY WILLIAMS (Add. MSS. 32861, ff. 441-5) Whitehall, December 26 th , 1755. Copy. Most Secret. SIR, The Subject of this Letter being of the greatest Impor tance to the King's Service, I should wish to introduce it in such a Manner, as to draw your most serious Attention to the APPENDIX 114 413 Contents of it ; And, tho' I shall, as far as possible, acquaint You minutely with The King's Thoughts and Intentions, some Latitude must necessarily be left to Your Excellency's own Judgement and Prudence, which, The King is persuaded, You will exert to the utmost, in so critical a Conjuncture. The Rise and Progress of the Treaty, You have lately signed at Petersburg, is so well known to You, by the Dis- patches already in your Hands, that it is unnecessary to enter into farther Details ; and You will soon recollect, what gave Rise to the first Orders, Colonel Guy Dickens received, upon that Subject ; and that the Project, sent to him, was calculated chiefly to obviate the Consequences of what was, then, to be apprehended from The King of Prussia ; in case the Differ- ences, which had arose between The King and That Prince, had been pushed to Extremity Soon afterwards, indeed, Points of much greater Consequence (I mean the American Dispute with France) arose ; and, as the Object became greater, the Subsidy to the Russians was enlarged ; but the view was still the same ; That of preserving the general Peace of Europe. It was in that Manner, and upon that Supposition, that the Measure was defended by The King's Servants in Parliament ; And it was with that view, likewise, that His Majesty ordered me, to communicate the Treaty, (which could not have long remained secret, as the Printing of it was thought advisable,) to the Prussian Minister, the same Day, that It was laid before both Houses ; when I, also, acquainted Him, by The King's Command, that this Treaty was, by no means, meant as an offensive, or a hostile Measure against His Prussian Majesty ; but principally intended, to secure such an Alliance, as might shew other Powers, That The King would not be attacked, with Impunity, in any Part of the World. I need not hide, from You, that the Austrian Minister, 'here, has taken Umbrage at the Publick Declarations, made by the King's Servants, in the Debate, which arose in Parlia- ment, upon the Treaty with Russia. They suspect a Predi- lection for The King of Prussia ; and insinuate an Alteration of Measures in England ; with no other Foundation, than because The King has not willingly suffered The King of Prussia to be forced into hostile Measures, (perhaps contrary to his present Intention) by France, at a Time, when no other Power in Europe, besides England and France, is directly interested in the Demelees which subsist ; And when a Refusal, on the Part of the Court of Berlin, to enter into the French System, may be the Means of preserving that Peace in Europe, which is, at all times, so desirable, and, now, so necessary. Thus far, perhaps, it may not be improper for You to drop, in a cursory Manner, to the Russian Ministers ; in order to 414 APPENDIX 114 sound them, how far the Court of Vienna may have endea- voured to mislead them, by reasoning upon Fantoms of their own Imagination, and without any real Knowledge of the Truth of what is going on. But, for your own private Infor- mation, I have The King's Leave to inform You of a Fact, of the utmost Importance, and which requires the strictest Secrecy ; It is to acquaint You, that, in consequence of what passed between Monsieur Michell and Myself, He has received Orders, from his Court, to acquaint Me, ' That The King, his Master, was much pleased with the Communication, which had been made to Him, of the Russian Treaty, and with the Sentiments, expressed by The King, upon this Occasion ; That, inclining to preserve the Peace of Europe in general, He is desirous to begin with securing That of Germany ; and thinks, that this End may be best obtained by a Treaty of Neutrality for the Empire during the present Troubles ; drawn up in such a Manner, as not to give offence to any other Power ; And Monsieur Michell proceeded to chalk out a Method, for accommodating the Differences, which have arisen between His Majesty and the King of Prussia.' Finding His Prussian Majesty in this Disposition, The King has thought proper to direct me, to prepare the Project of a Convention, conformable to what has been proposed by the Prussian Minister ; a Copy of which I enclose for your Infor- mation, and which needs no Comment or Explanation. If the King of Prussia is sincere, the Peace of Germany, may, undoubtedly, be maintained ; as it cannot be imagined, that France will venture to march an Army into the Empire, if the King of Prussia is seriously determined to oppose it. But, if (which is not to be supposed) The King of Prussia should have some sinister Meaning in the Overtures He has made ; Endeavours may possibly be used, even by Himself, to instil Jealousies at Petersburg, as if We were neglecting the Russian Alliance, and entering into secret Measures for defeating It. The very contrary is the Case. The King knows, that the Conclusion of the Treaty with The Empress of Russia is one great Inducement to The King of Prussia's present Way of Thinking ; And His Majesty is persuaded, That The Czarina's known Magnanimity will be equally satisfied with having greatly contributed to procure Peace and Security to Her Allies par un Coup de Plume, as if She had had an opportunity of shewing the Bravery of Her Troops, and the Greatness of Her Power in Arms. Her Grandeur and Attachment to Her Allies is equally, perhaps more eminently shewn, by procuring Peace without Bloodshed, than by the most fortunate Success of Her Armies. But here, Sir, consists the delicate Part of your Commission. APPENDIX 114 415 It is The King's Intention, that You should keep the Whole of this nice Transaction, an absolute Secret, even from the Great Chancellor Himself ; unless You should have the greatest Reason to think, The King of Prussia should have been beforehand, and either unfolded the Mystery, or endeavoured to graft Insinuations upon It, that the Measure is repugnant to that thorough Confidence, and close Alliance, which It is His Majesty's most sincere Intention to preserve with The Empress of Russia. And I must yet add another Caution, that You should not be led to make a Communication of this important Nature, even though the Austrian Minister should use His Endeavours to raise Suspicion or Uneasiness at Petersburg, upon the Measures, which The King finds it necessary to take, in order to preserve the Peace and Tran- quility of the Empire, which the Court of Vienna Themselves have but too much neglected. Were You less acquainted with the Way of acting of that Court, upon many Occasions, I should think it incumbent on me to expatiate a little more upon their late Proceedings ; but knowing them so well as You do, I need only acquaint You with some Facts, and with The King's Pleasure, as to the Use, You are permitted to make of Them ; And your Surprize will, then, soon cease at the Apprehension, I have shewn, that the Austrian Ministers might be instructed to do ill Offices to The King's Service at Petersburg. To this End, I have The King's Leave, to send You, in the utmost Confidence, a Series of Correspondence between Mr. Keith and Me, from the Middle of April last to the End of July. And, in reading them over, I must beg your Excellency to recollect the known Circum- stances of Europe, at the particular Dates of each Letter ; as, likewise, the Progress of the Negotiation with Monsieur de Mirepoix, the Documents of which are in Your Hands ; And You will, then, be able to set The King's Conduct, towards the Court of Vienna, in It's true Light ; and to shew the Return, which It has met with. But, as it is by no means The King's Intention, either to complain of, or to resent the Behaviour of the Court of Vienna, Your Excellency will be careful to make no other Use of these Papers, than to justify His Majesty's Proceedings, in case unjust and false Surmises should make it necessary for You to speak out, and to shew, how backward the Court of Vienna has been, in every Thing, that regards His Majesty's Interest. In short the Whole of this Dispatch is meant, to put Arms into your Hands, to obstruct the bad Effect of any Insinuations, which may be made, to the Detriment of His Majesty's Interest, and Views, at the Court of Russia. The King hopes, however, you will have no Necessity to make Use of Them. In that case, the 416 APPENDIX 114 less there is said, the better ; And, at all Events, no harsh Expression should slip from You, however You may be pro- voked by the Conduct of any Court, that may be interested or concerned in the Contents of this Dispatch. I am, &c., [Endorsed]. (By Major.) HOLDERNESSE. 115. CONVENTION OF WESTMINSTER, JANUARY 16, 1756 (S. P. For., Treaties, &c., No. 421) Convention between Great Britain and Prussia, Westminster, i6 th Jan r y 1756. Separate and Secret Articles. Declaration of the Prussian Minister. D'Autant que les Differends, qui se sont eleves en Amerique entre Le Roi de la Grande Bretagne et Le Roi Tres Chretien, et dont les Suites deviennent de plus en plus critiques, donnent lieu de craindre pour la Tranquillite Publique en Europe ; Sa Majeste Le Roi de la Grande Bretagne, Electeur de Bronsvic Lunebourg, &c a ., Et Sa Majeste Le Roi de Prusse, Electeur de Brandebourg, &c a ., attentives a un Objet si inte- ressant, et egalement animes du Desir de conserver la Paix Generale de 1'Europe, et Celle de I'Allemagne en particulier, ont bien voulu se concerter sur les Mesures, qui puissent con- tribuer le plus emcacement a une Fin si desirable ; Et pour cet Effet Elles ont autorise Leurs Ministres Plenipotentiaires respectifs, Savoir, au Nom et de la Part de Sa Majeste Britan- nique, Ses Conseillers Prives, Philippe Comte de Hardwicke, Son Chancelier de la Grande Bretagne, Jean Comte Granville, President de Son Conseil, Thomas Holies Due de Newcastle, Premier Commissaire de Sa Tresorerie, Robert Comte de Holdernesse, L'un de Ses Principaux Secretaires d'Etat, et Henry Fox, un autre de ses Principaux Secretaires d'Etat ; Et au Nom et de la Part de Sa Majeste Prussienne Le Sieur Louis Michell, Son Charge d' Affaires a la Cour de Sa Majeste Britannique ; Lesquels, apres s'etre communique reciproque- ment Leurs Pleinpouvoirs, sont convenus des Articles suivans. Article I. II y aura entre Les dits Serenissimes Rois une Paix sincere et une Amitie reciproque, nonobstant les Troubles qui pour- ront s'elever en Europe, en consequence des Differends susmentionnes ; en suite de laquelle aucune des Parties Con- tractantesn'attaquera, ni n'envahiradirectement ni indirecte- ment le Territoire de 1'autre ; mais au contraire Elles feront chacune de son cote Touts Leurs Efforts pour empecher Leurs Allies respectifs, de rien entreprendre centre le dit Territoire, de quelque maniere que ce puisse etre. APPENDIX 115 417 Article 2. En cas que centre toute Attente, et en Violation de la Tranquillite que Les Hautes Parties Contractantes entendent maintenir par ce Traite dans 1'Allemagne, quelque Puissance Etrangere fit entrer des Troupes dans la dite Allemagne sous quelque Pretexte que ce puisse etre, Les Deux Hauts Con- tractants uniront Leurs Forces, pour s'opposer a 1'Entree ou au Passage de telles Troupes Etrangeres, et a cette In- fraction de la Paix, et pour maintenir la Tranquillite en Allemagne selon 1'Objet du present Traite. Article 3. Les Hautes Parties Contractantes renouvellent expresse- ment Touts les Traites d'Alliance et de Garantie, qui sub- sistent actuellement entre Elles, et nommement 1'Alliance Defensive et de Garantie reciproque, conclue a Westminster entre Leurs Majestes Britannique et Prussienne, le i8 me de Novembre 1742, La Convention arretee entre Leurs dites Majestes a Hannovre le 26 me Aout 1745, et 1'Acte d'Acceptation de Sa Majeste Prussienne de Celui de Garantie de Sa Majeste Britannique du I3 me d'Octobre 1746. Article 4. Le Present Traite sera ratine par Sa Majeste le Roi de la Grande Bretagne, et par Sa Majeste le Roi de Prusse, et Les Lettres de Ratification en bonne Forme seront delivrees, de part et d'autre, dans le Terns d'un Mois, ou plutdt si faire se peut, a compter du Jour de la Signature du present Traite. En Foy de quoi, Nous Soussignes, munis des Pleinpouvoirs de Leurs Majestes Les Roys de la Grande Bretagne et de Prusse, avons en Leurs Noms, signe le present Traite, et y avons appose Les Cachets de Nos Armes. Fait a West- minster, Le Seizieme Jour de Janvier, 1'An de Grace 1756. HARDWICKE C. L.S.} GRANVILLE P. HOLLES NEWCASTLE HOLDERNESSE H. Fox. 1783 E e 4i8 APPENDIX 115 Article Secret et Separ6. Comme la Convention de Neutralite, signee en Date d'Au- jourdhui par les Ministres de Sa Majeste Le Roy de La Grande Bretagne, et de Sa Majeste Le Roy de Prusse munis de Plein- pouvoirs necessaires pour cet Effet ne regarde que 1'Allemagne Cette Convention ne doit point etre etendue aux Pai's-Bas Autrichiens et Leurs Dependances, qui ne doivent point etre censes compris dans la presente Convention de Neutralite, sous quelque Pretexte que cela puisse etre, d'autant plus que Sa Majeste Le Roy de Prusse n'a garanti, dans le Huit- ieme Article de la Paix de Dresde, a Sa Majeste L'Imperatrice Reine de Hongrie, et de Boheme, que les Etats, qu'Elle possede en Allemagne. Cet Article Secret et Separe aura la meme Force, que s'il etoit insere, de Mot a Mot, dans la presente Convention de Neutralite, signee Aujourdhui ; Et les Ratifications en seront echangees dans le meme Terns que celles de la dite Con- vention. En Foy de quoi, Nous soussignes munis de Pleinpouvoirs de Leur Majestes Les Rois de La Grande Bretagne et de Prusse, avons, en Leurs Noms, signe le present Article Secret et Separe, et y avons appose les Cachets de Nos Armes. Fait a Westminster, le Seizieme Jour de Janvier, L'An de Grace 1756. / -v HARDWICKE C. GRANVILLE P. HOLLES NEWCASTLE HOLDERNESSE H. Fox 116. DECLARATION, JANUARY 16, 1756 Afin de terminer les Differends, qui peuvent s'etre eleve's entre Leurs Majestes Prussienne et Britannique, II est declare, Que, desque Sa Majeste Prussienne levera 1'Arret mis sur la Dette de la Silesie, et fera payer, aux Sujets de Sa Majeste Britannique, ce qui Leur en reste du, selon le Contrat Original, tant Interets que Principal ; Sa Majeste Britannique promet et s'engage, de Son Cote, de faire payer a Sa Majeste Prus- APPENDIX 116 419 sienne la Somme de Vingt Mille Livres Sterlin, en Extinction de toute Pretension de Sa dite Majeste ou de Ses Sujets a la Charge de Sa Majest6 Britannique, sous quelque Pretexte que ce puisse etre. Fait a Westminster le Seizieme Jour de Janvier, L'An de Grace 1756. LOUIS MlCHELL. 1 117. EXTRAIT DES LETTRES DE LONDRES DU 2O & DU 23 JANVIER II se tint le 16. au soir un grand Conseil a St. James, dans lequel on signa un Traite, conclu entre cette Cour & celle de Berlin. Ce coup est aussi imprevu, qu'il est frappant pour la France. On assure, que le Traite de Westmunster, par lequel la Maison de Brandebourg garantit la Succession au Trdne de la Grande-Bretagne a 1'Illustre Maison de Hanover, y est renouvelle, & tous les Traites posterieures confirmes ; Que le Roi, notre Souverain, renonce a toutes ses pretensions sur I'Ost-Frise ; Que le Roi de Prusse consent au rembourse- ment du restant du Capital & de ITnteret de 1'Hipotheque sur la Silesie, & a entrer dans les vues de Sa Maj. Britanique par raport au maintien de la tranquilite dans I'Empire, en s'opposant a 1'entree des Troupes etrangeres ; Que Sa Maj. Prussienne garantit 1'electorat de Hanover ; Et que Sa Maj. Britanique renouvelle sa garantie de la Silesie. Cette heureuse reconciliation pourra etre d'un grand effet. II y a deja meme des gens, qui pretendent, qu'on va travailler a Berlin, sous les yeux du Roi de Prusse, a rAccommodement des differends entre cette Cour & celle de France : Quoiqu'il en soit, la notre a encore recu cette semaine un Paquet du Ministere de Versailles ; Mais on 1'a renvoie sans aucune reponse, & meme sans 1'avoir decachete. II est certain, que cette nouvelle Alliance nous rendra plus fermes, sur-tout s'il est vrai, comme on le dit, qu'une autre Puissance a de- clare, qu'au cas que les Etats de la Grande Bretagne fussent attaques, Elle ne pourroit se dispenser de les defendre de toutes ses forces. Gazette de Leyde, no. 8, Tuesday, 27 January 1756. 1 The copy which Michell received and sent to Berlin was signed ' Hardwicke, Ch. Granville, P. Holies Newcastle. Holdernesse. H. Fox.' Pol. Cor. xii. 54. EG2 420 APPENDIX 118 118. INADEQUATE OR ERRONEOUS ACCOUNTS BY VARIOUS WRITERS i. Gentleman's Magazine. a. Aug. 9, 1734. ' His Majesty sign'd a License for any of his Subjects to lend the Emperor 300,000^. at 6 per Cent, on the Security of the Silver Mines in Silesia.' See App. i, from which it appears that the license does not mention any specific security, nor the rate of interest at which the money was to be lent. App. 2 shows that the security was ' a mortgage of the Emperor's Revenues in the Dutchy of Silesia, and also the said Emperor's Bond with the Security of the States of Silesia '. b. June i, 1748 reports that the complaints made by the K. of Prussia's minister were determined by the high court of admiralty entirely to the satisfaction of his Prussian Majesty ; and a treaty of commerce set on foot between England and the ports of Prussia. There is no foundation for the former of these statements. No trace of negotiations for a treaty of commerce is to be found earlier than in the negotiations for the neutralization of Germany towards the end of 1755. c. Vol. xxiii, p. 54 (Jan. 1753). ' In 1738 [sic] the Emperor Charles VI. borrowed of certain persons in England with His Britannic majesty's permission 250, oool. at 6 per Cent. and mortgaged the silver mines in Silesia for the repayment of it. By the treaty of Breslau in 1742, the Q. of Hungary, then empress, yielded up Silesia including the silver mines, to the K. of Prussia, who thereupon engaged to repay to the English the sums secured by the mortgage. This treaty was guarantied by his Britannic majesty. There is now a considerable part of this loan in the K. of Prussia's hands, and he has instead of paying it to us, stopped it to make good the losses which his own subjects have sustained during the late war, by our seizing their ships, tho' they were after- wards released. The pamphlet * is intended to prove that by this application the K. of Prussia has not violated the treaties [sic] of Breslau, and consequently that the guarantee of the K. of G. B. and that of England which it includes remains intire ; a guarantee of which the K. of Prussia says he well knows how to assert effectually, if occasion should offer, and shall think himself disengaged from his guarantees, 1 Among the notices of books and pamphlets on the same page is a brief notice of the Exposition of the Motives, &c., recently published in English. APPENDIX 118 421 with regard to the reigning family in England, and the electoral states of Hanover. A list of the ships taken and detained is added.' There are other notices in the same work of the remittance of 500,000 crowns (June 23, 1743) and 88,000 (Nov. 16, 1750) on account of the loan, of a meeting of the proprietors at which it was resolved that application should be made to the King of Prussia for immediate payment of the loan and all arrears of interest (February 9, 1749), of the rejection of proposals for payment of arrears of interest at 7 per cent., on condition of their accepting 3^ per cent, for the future (October 18, 1749), of the publication of Newcastle's reply to Michell and the Report of the Law Officers (vol. xxiii, p. 83 et seq.) and of Michell's notice to Holdernesse that the remainder of the principal and interest would be paid in a few days (xxvi, June 15, 1756). 2. Contimiation of the Complete History of England, by T. Smollett, M.D., vol. i (or vol. xii), p. 130. ' At this juncture his Prussian majesty made no scruple of expressing his resent- ment against the court of London, which he seemed to con- sider as an officious cabal, that had no right to intermeddle in the affairs of Germany. His resident at London complained to the British ministry, that divers ships, sailing under the Prussian flag, had been stopped at sea, and even seized by English cruisers ; and that his subjects had been ill-treated and oppressed ; he therefore demanded reparation in a peremptory tone ; and, in the mean time, discontinued the payment of the Silesian loan, which he had charged himself with by an article in the treaty of Breslau. This was a sum of money amounting to two hundred and fifty thousand pounds, which the emperor Charles VI. father of the reign- ing empress, had borrowed of the subjects of Great Britain, on condition of paying an interest of six per centum, and mortgaging the silver mines of Silesia for the repayment of the principal. These devolved to the king of Prussia with this incumbrance, and he continued to pay the interest punctually till this juncture, when the payment was stopped ; and he published a paper, intituled, An Exposition of the Motives which influenced his Conduct on this Occasion. . . . The Exposition and Memorial were subjected to the examina- tion of the ablest civilians in England, who refuted every article of the charge with equal precision and perspicuity. . . . Whether his Prussian majesty was convinced by these reasons, and desisted from principle, or he thought proper to give up his claim upon other political considerations ; certain it is, he no longer insisted upon satisfaction, but ordered the payments of the Silesia loan to be continued without further E e 3 422 APPENDIX 118 interruption : a report, indeed, was circulated, that advantage had been taken of the demur by a certain prince, who employed his agents to buy up great part of the loan at a considerable discount.' p. 302 [after giving an account of the treaty of Westminster of January 16, 1756, the author continues] : ' Their majesties, moreover, seized this favourable opportunity to adjust the differences that had subsisted between them, in relation to the remainder of the Silesia loan due to the subjects of his Britannic majesty, and the indemnification claimed by the subjects of his Prussian majesty for their losses by sea during the late war ; so that the attachment laid on the said debt was agreed to be taken off, as soon as the ratification of this treaty should be exchanged.' It is evident that Smollett had before him an English translation of the memorial presented by Michell, and of the Exposition des Motifs, &c., which Michell doubtless had arranged to have published in London. The erroneous statements as to the rate of interest and that the money was lent on the security of the silver mines doubtless were derived from the Gentleman's Magazine. The statement that after the presentation of the English reply Frederick no longer insisted on satisfaction, but ordered the payments on account of the loan to be continued without further interruption, is altogether incorrect, and indeed is in contra- diction with Smollett's own statement that the attachment was taken off on the occasion of the exchange of ratifications of the treaty of Westminster in 1756. The insinuation that Frederick had taken advantage of the fall in price of the bonds caused by the attachment he had laid on the last 45,000 of principal finds its only justification, as far as we know, in the fact that in 1743 he had purchased 500,000 thalers worth. See his letter of January 28, 1749, to Klinggraff, in which he says : ' J'ai fait acheter pour moi, il y a six ans, deja pour la somme de 500,000 ecus des obligations de ce fonds, ce dont le sieur Michell vous pourra donner des eclaircissements ulterieurs ' (Pol. Cor. vi. 357). Probably this was not done in his own name. The only other allusion to this, or any similar trans- action, if indeed there had been one, is in Frederick's instruc- tions to Boden, of April 2, 1756, to arrange for the remittance to England of what still remained due after deduction of the 20,000 he was to receive ; where he writes : ' Dabei Ihr ohnvergessen sein sollet, den Umstand wegen dererjenigen Obligationen, so Ich vor einigen Jahren bereits in Engelland vor Meine Rechnung kaufen lassen, mit in Consideration zu nehmen und zu attendiren, ob und was Mir deshalb an APPENDIX 118 423 Interessen, die Ich zu 7 Procent bezahle, competiren konne und miisse.' Possibly in 1743 the bonds had fallen on the market, and it would have been nobler on his part to pay them off in full, rather than make a profit by buying them in. Half a million thalers would be the equivalent of about 80,000. 3. A Treatise of the Relative Rights and Duties of Belligerent and Neutral Powers in Maritime Affairs : by Robert Ward, Esq., 1801. P. 71. ' The Courts of Admiralty in this country having, it seems, borne hard upon his [i.e. King Frederick's] subjects for bad conduct under their profession of Neutrality, he chose himself to try the matter over again by a Court of his own ; and, as might be expected, that Court having dis- covered that his subjects were in the right, he proceeded to carry its sentence into execution, by immediately, and of his own authority in the manner of reprisals, cancelling the large debt of his new conquest of Silesia to the merchants of England, until the claims of his own subjects were satis- fied. ... At that time there were at the Court of London four illustrious men, learned in the laws of their country and of the world, of great integrity of life and faithfulness in all matters of representation. One of them was a judge of the realm in all matters of civil and public law, the rest the highest law-officers of the Crown. . . . The answer which these learned men gave to all the propositions laid down by the Prussian Minister, is so well known to England, and so widely disseminated in Europe, that it is needless to repeat it. ... the Duke of Newcastle's letter, containing the answer to the Prussian Minister, was then considered, and will, I trust, ever be considered by dispassionate and dis- interested persons, as a masterpiece of true and general law. Thus, at least it was held by the greatest men of that time. Vattel, in speaking of the jurisdiction of Courts in the countries which erect them, observes, that for another country to set aside their definitive sentence, is to attack the juris- diction itself ; on which account no prince ought to interpose in the causes of his subjects when in foreign countries, adding, by way of further proof, " la Cour d'Angleterre a etabli cette maxime avec beaucoup d'evidence a 1'occasion des vaisseaux Prussiens saisis et declares de bonne prise pendant la derniere guerre ". And in the note upon this passage, he calls it, " Un excellent morgeau de Droit de Gens." To this testi- mony of Vattel, 1 we may add, in another country, that of Montesquieu, who, speaking of it in a private manner, as a mere literary man, in one of his familiar letters, says, it 1 Fuller citations from Vattel and Montesquieu will be found further on in the foot-notes to No. 8 of this appendix. 424 APPENDIX 118 is considered as " Reponse sans replique ". There are, however, still stronger and irrefragable proofs of its general merit, its soundness of doctrine, and cogency of conclusion, in the conduct of Frederick II himself. We have seen that his own minister at the Court of London had abandoned it as far as the principle immediately before us was concerned ; * and this probably, together with the force and weight of the answer in the minds of the different public men of Europe, induced him not to renew the subject. Certain it is, that not only these pretensions were never afterwards heard of, as founded in principle, until the Armed Neutrality of 1780 ; but the King of Prussia gave the most convincing proofs of conviction, by relinquishing the immediate pretensions for which he had directed the Exposition des Motifs to be prepared. The interest of the Silesian loan was no longer withheld, but from that time regularly discharged.' It is very evident that Ward, like Smollett, had the Exposi- tion des Motifs and the Report of the Law Officers of the Crown before him when he wrote, and that he derived the erroneous statement that the interest of the loan was from that time forward regularly discharged, from Smollett. The words ' Certain it is ' in both accounts can hardly be due to a mere coincidence. 4. Commentaries on the Law of Nations, by William Oke Manning, 1839 (P- 22 ^), new edition revised by Sheldon Amos, 1875 (p. 293). This work contains the fullest account of the controversy hitherto published in the English language. On only two points can any want of exactness be alleged, ist. The phrase ' whether he would be justified in withholding the money due to the British on the Silesian Loan ' might lead to the inference that the whole was still due, whereas the portion of principal then remaining unpaid, i.e. on November 22, i75i, 2 when the instructions to appoint the Commission were issued, was 90,000, of which one-half was paid off in December of that year. 2nd. The passage ' Reparation was, in fact, ultimately made, four years after the discussion had commenced, by the British Government agreeing, by the Treaty of Westminster, in 1756, to pay ^20,000 in liquidation of all claims from Prussian subjects ; the King of Prussia agreeing, on his part, to fulfil his engagements with regard to the Silesian loan ' suggests that the payment was made in virtue of a stipulation contained in the treaty referred to. Whereas the matter was not alluded to in the treaty, but was made the subject of 1 i.e. that the flag covers the goods. The reference is to Andrie's letter of May 29/June g, 1747, quoted in the Report of the Law Officers. 1 Pol. Cor. viii. 536. APPENDIX 118 425 a separate written declaration, though exchanged on the same day. 5. J. Reddie : Researches, Historical and Critical, in Maritime International Law, vol. i, 1844, p. 264. ' Towards the close of the first half of the i8th Century, several of the most important questions of the Maritime law of nations, underwent considerable discussion, and conse- quently, elucidation, in the dispute between Great Britain and the king of Prussia, relative to the threatened retention by the latter of the Silesian loan, due to British subjects, in satisfaction of damages alleged to have been sustained by Prussian subjects through the seizure and detention of Prussian vessels and cargoes by British cruizers. The dispute was ultimately settled by the payment of the balance of the loan remaining due, principal and interest, and by the subsequent release of most of the captured vessels.' There is here no mention of the alleged Prussian cargoes captured in other" than Prussian neutral ships, which are enumerated in List B, nor of the payment of 20,000 in satis- faction of ' toute pretension de Sa dite Majeste ou de ses sujets a la charge de Sa Majeste Britannique, sous quelque pretexte que ce puisse etre '. The release of the Prussian ships was not subsequent to the payment of the balance of the loan which was made in 1756 ; they had all been released before the end of 1748, see list A, App. 34. 6. Law of Contraband of War, with a selection of Cases from the papers of the Right Hon. Sir Geo. Lee, LL.D., by Frederic Thomas Pratt, D.C.L., 1856. A foot-note to the preface states that ' in the year 1738 the sum of 250,000^. had been borrowed by the Emperor Charles VI of English subjects, and certain mines in Silesia mortgaged for its repayment '. Derived from the Gentleman's Magazine, vol. xxiii. p. 54, but incorrect as to the date of the loan and the mention of silver mines. Otherwise, the summary given is correct. 7. Carlyle : History of Friedrich II of Prussia, called Frederick the Great, 1865, iv. 465 (ist edition). ' To winnow the strictly true out of which, from the half- true or not provable, his Prussian Majesty has appointed a " Commission ", fit people, and under strict charges, I can believe. Commission takes (to Friedrich's own knowledge) a great deal of pains ; and it does not want for clean corn after all its winnowing. Plenty of facts, which can be insisted on as indisputable. " Such and such Merchant Ships " (Schedules of them given in, with every particular, time, name, cargo, value) " have been laid hold of on the Ocean Highway, and carried into English ports ; out of which his Prussian 426 APPENDIX 118 Majesty has, in all friendliness, to beg that they be now re- delivered, and justice done." " Contraband of War," answer the English ; " Sorry to have given your Majesty the least uneasiness; but they were carrying ." " No, pardon me, nothing contraband discoverable in them ; " and hands in his verified Schedules with perfectly polite, but more and more serious request, That the said ships be restored, and damages accounted for. " Our Prize Courts have sat on every ship of them " eagerly shrieks Newcastle all along : " What can we do ! " " Nay, a Special Commission shall now " (1751, date not worth seeking further) " Special Commission shall now sit, till his Prussian Majesty get every satisfaction in the world ! " ' English Special Commission, counterpart to that Prussian one (which is in vacation by this time) sits accordingly : but is very slow ; reports for a long while nothing, except, " Oh give us time ! " and reports, in the end, nothing in the least satisfactory. " Prize Courts ? Special Commission ? " thinks Friedrich : " I must have my ships back ! " And, after a great many months, Friedrich, weary of giving time, instructs Michell to signify, in proper form (" 23rd November 1752 "), " That the Law's delay seemed to be considerable in England ; that till the fulness of time did come, and right were done his poor people, he, Friedrich himself, would hopefully wait ; but now at last must, provisionally, pay his poor people their damages ; would, accordingly, from the 23rd day of April next, cease the usual payment to English Bondholders on their Silesian Bonds ; and would henceforth pay no portion farther of that Debt, principal or interest"' (about 250,000 now owing), ' " but proceed to indemnify his own people, to the just length, and deposit the remainder in Bank, till Britannic Majesty and Prussian could unite in ordering payment of it ; which one trusts may be soon ! " This account of the matter is extremely confused. The only Schedule of ships that was ever given in by the Prussian Government was attached to the Exposition des Motifs, &c., delivered on the I3th December, 1752. It is, however, the fact that from time to time Michell had complained with respect to certain ships, as recounted supra, p. 14. No English Special Commission ever sat. The reply to the Prussian pro- memoria and Exposition des Motifs was delivered to Michell on February 8, 1753, and it cannot be said that any undue delay had elapsed since the presentation of the Prussian Case. All the Prussian ships had been released before the end of 1748, so that the thought attributed to Frederick (after 1751), ' I must have my ships back ', can but be a pure invention of Carlyle's. Where the date of April 23rd is derived from is difficult to say. In the pro-memoria delivered on 23 Novem- APPENDIX 118 427 her 1752 three months is accorded to the English officers or owners of privateers to appeal against the decisions of the Prussian Commission, but that period would expire on Febru- ary 23rd. Carlyle is in error in saying that ' about 250,000^ [was] now owing '. As shown above, the amount of principal remaining unpaid was 45,000. 8. International Law : by Henry Sumner Maine, K. C.S.I., 1888, p. 203. ' The history of it is as follows : A loan of 80,000 had been advanced by subjects of Great Britain to the Emperor Charles VI on the security of the Duchy of Silesia. Silesia, in course of time, was transferred to Prussia by virtue of the Treaties of Breslau and Dresden, and in consideration of this cession Prussia was to discharge the debt. The King of Prussia, however, attached, i. e. took into his own hands, the debt by way of re- prisals, but this by the terms of the treaty he had no power to do. He professed himself to be aggrieved by the decision of certain English prize courts in respect of acts of vessels belong- ing to his subjects, and refused to pay the British subjects the interest which he had pledged himself to pay. The English Secretary of State at once addressed to him, for Prussia was a friendly Power at the time, a letter dated February 8, 1753, in which he dwells upon the unprecedented nature, of the pro- ceeding, and states that he has the King's orders to send to the King of Prussia a report made to His Majesty by Sir George Lee, Judge of the Prerogative Court ; Dr. Paul, his Majesty's Advocate-General ; Sir Dudley Ryder, and Mr. Murray the Mr. Murray who afterwards became Lord Mansfield. The report in question is one of which British lawyers and the British Foreign Office have always been exceedingly proud. It is praised by two great foreign authorities of the time Vattel 1 and Montesquieu ; 2 they both of them speak of it as admirable ; it is, in fact, a most excellent example of the method of reasoning of which International Law admits ; and 1 ' Le prince ne doit done intervenir dans les causes de ses sujets en pays etranger et leur accorder sa protection, que dans les cas d'un deni de justice, ou d'une injustice evidente et palpable, on d'une violation manifeste des regies et des formes, ou enfin d'une distinction odieuse, faite au prejudice de ses sujets, ou des etrangers en general. La Cour d'Angleterre a etabli cette maxime avec beaucoup d'evidence, a 1' occa- sion des vaisseaux prussiens saisis et declares de bonne prise pendant la derniere guerre : Ce qui soit dit sans toucher au merite de la cause particuliere, en tant qu'il depend des faits.' (Vattel, Le Droit des Gens, 1758, vol. i, p. 317.) ' Nous lisons ici la reponse du roi d'Angleterre au roi de Prusse, et elle passe, dans ce pays-ci, pour une reponse sans replique. Vous qui etes docteur dans le droit des gens, vous jugerez cette question dans votre particulier ' (Letter of March 5, 1753, to the Abbe Comte de Guasco, CEitvres Completes, Paris, 1819, vol. vii, p. 400). Rather faint praise, it must be confessed. 428 APPENDIX 118 in the end the King of Prussia gave way to its arguments, and the interest on the Silesian loan was ever afterwards punctually paid.' This is a very inaccurate summary. Firstly, the loan was for 250,000, not .80,000. The terms of the treaty do not either give or refuse to Frederick the power of attaching the debt by way of reprisals. So far was the King of Prussia from giving way to the arguments contained in the report of the English Law Officers and ever after paying the interest on the Silesian loan, that he caused a rejoinder to be prepared, and though this was never presented to the British Government, he withheld the payment of the last instalment of principal and the interest until the settlement of the dispute at the time of the signature of the Westminster Convention of January 16, 1756. The account above given by the Whewell Professor of International Law is evidently based on Ward. 9. The History of England from the Accession of Anne to the death of George II (1702-60), by I. S. Leadam, 1909. P. 427. A paragraph giving a fairly correct account of the matter. It is, however, not quite accurate to say that the last instalment of the capital was due in 1745, unless January 1745 o. s. is to be understood. The statement that Frederick at the beginning of 1753 ' stopped 30,000 out of 45,000 due and applied it as compensation to Prussian shipowners whose vessels had been seized in October, 1745, by English cruisers for carrying contraband of war ' is likewise inaccurate. A foot-note shows that this is based on Carlyle. Frederick stopped the whole 45,000, but did not compensate the Prussian shipowners until after the signature of the Declara- tion of January 16, 1756, by which the King of England under- took to pay 20,000 ' en extinction de toute Pretension de sa dite Majeste ou de ses Sujets a la Charge de sa Majeste Britan- nique, sous quelque Pretexte que ce puisse etre '. And it was this sum of 20,000 that Frederick distributed by way of compensation to the Prussian shipowners and owners of cargo, pro raid of their claims admitted by the Prussian commission of inquiry. 10. Sea Law and Sea Power, by Thomas Gibson Bowles, M.P., 1910. P. 6. ' For another century nothing was heard of the free ship free goods doctrine. Then Frederick the Great of Prussia found it convenient for his purpose. By mingled force and fraud he had acquired from Maria Theresa the rich prey of Upper and Lower Silesia, and therewith the Silesian silver mines mortgaged with a debt to English merchants of 250,000 and charged with the annual interest thereon of 75,000 which by the Treaty of Breslau of 1742 he had undertaken to APPENDIX 118 429 pay to those same merchants. Now, in the war between Eng- land on the one side and France and Spain on the other, which was concluded by the Peace of Aix-la-Chapelle in 1748, Prussian ships had been captured and condemned in British Prize Courts for infractions of neutrality. In 1752, therefore, Frederick sent a memorial to the Duke of Newcastle, Secretary of State in Mr. Pelham's administration, denying the right to search, detain, or capture neutral ships at sea on the ground that they carried enemy's property ; denying equally the competency of Prize Courts to decide on the legality of such captures ; and finally announcing that, since Prussian ships had been thus dealt with, he had attached the moneys due to the British merchants, and would discontinue the payment to them of the 75,000 interest on the Silesian loan. Thus again the doctrine of free ship free goods was advanced ; and this time not merely as a request or a desire, but as a claim of right, backed and enforced by the arbitrary confis- cation of the private property of the English merchants. The proceeding was as Prussian as the Dutch proceeding of a century earlier had been Dutch. But neither Dutch appeal nor Prussian insolence could then find an open ear in England. For Mr. William Pitt the elder was a member of the English Ministry and inspired it with his spirit. The Duke of New- castle's reply to the Prussian minister was declared by Montes- quieu to be a reponse sans replique. The Prussian minister abandoned the principle of free ship, free goods, and his master Frederick resumed payment of the interest on the Silesian loan.' Some of the inaccuracies in this passage seem to be derived from the Gentleman's Magazine and Sir Henry Maine. But not all. The calculation that interest at 7 per cent, per annum on 250,000 amounts to 75,000 a year is new. No Prussian ship was ' condemned ' ; it appears from the Prussian List A that all the ships of Prussian subjects alleged to have been captured were released. The statement that ' the Prussian minister abandoned the principle of free ship free goods ' is perhaps based on Andrie's letter of May 297 June 9, 1747, to Frederick, quoted in the Report of the Law Officers ; in which he informs the King that ' Your Majesty's subjects ought not to load on board neutral ships any goods really belonging to the enemies of England '. An abandonment of the principle by the Prussian Minister could alone have validity if it were officially declared to the British Government, and after the presentation of the Prussian case in November 1752. There is no trace anywhere of such an official communication. As for Frederick's alleged resumption of payment of interest on the loan after receipt of Newcastle's reply, that is equally unhistorical. 430 APPENDIX 118 11. Basil Williams, The Life of William Pitt, Earl of Chat- ham, 1913. Vol. i. p. 277, foot-note. ' After Frederic's conquest of Silesia he had taken over a Silesian loan advanced by England, but had refused to pay the instalments due, until some grievances for captured ships had been redressed by the Admiralty. By the treaty of 1756 Frederick gained most of what he had been contending for.' The endeavour to condense the main facts into a single short paragraph has betrayed the author into several slight errors. The loan was not advanced by England, but by English capitalists. It was from the British Government that Frede- rick claimed redress, not from the Admiralty nor from the Admiralty Courts. What he obtained in the way of com- pensation was not in virtue of the treaty, but of the Declara- tion which formed no part of it. The British Cabinet had expressly stipulated that this question should be excluded from mention in the treaty of Westminster. 12. Philip C. Yorke : Life and Correspondence of Philip Yorke, Earl of Hardwicke, 1913. Vol. ii, p. 7. ' Frederick, on the plea of British depredations upon Prus- sian vessels, seized forcibly a mortgage of 250,000 upon Silesian mines, being a debt incurred originally by the Emperor Charles VI in 1734, and now the property of British subjects.' From the context it appears that the year 1752 or 1753 is indicated as the date of the occurrence here alluded to. It is not quite correctly stated. Of the original sum of 250,000 lent by British capitalists in January 1734 (o.s.) only 45,000 remained unpaid by Frederick at that time. The statement that the loan was secured on Silesian mines seems to be an echo of the statement in the Gentleman's Magazine for August 1734 (see No. i above). INDEX Admiralty courts, decide by Law of Nations or by special treaties, 74 ; appeal from decisions of, 80. Aigle d'Or, Prussian ship, 16. Albemarle, 2nd earl, English am- bassador in Paris, 1 54 ; com- ments on French pro-memorid of April 20, 1753, 1 66 ; mistake in dispatch, 174 ; mistake ex- plained, 175 ; instructions to, of March 14, 1753, French text, 328 ; instructions to, of May 3, I 753. French text, 370. Ammon, Prussian minister at the Hague, 146. Andrie, Prussian minister in Lon- don, 8 ; dispatch to Frederick of 1744, reporting Carteret's assurances as to contraband and freedom of Prussian trade, 1 2 ; text of, 2 1 1 ; warning to Frederick about enemy goods in Prussian ships, 85. Anne and Elizabeth, Prussian ship, 19. Anne Elisabeth, Hamburg ship, 1 5 . Arbitration, Prussian claims suit- able for, 1 10. Austria, English appeal to, for intervention, 134, 267. Austrian and French negotiations suspected by Frederick, 189. B Barrier Treaty, 136, 137, 138, 147. Bedford, 4th duke, Secretary of State for Southern Department 1748-51, 23; dispatches to Legge, 26, 27, 28, 29. Bentinck, Count, Dutch agent, 151- Bestuchew, Russian Grand Chan- cellor, gifts to, 141, 142, 289. Bondholders' case, statement to Newcastle, 35, 242. Bowles, Thomas Gibson, 428. Breslau, preliminaries of, 6, 204. Bribery of officials, 142. British case laid before French Government, 39. British 'ultimatum' senttoFrance, 171. Brunswick, Duke of, 182; to be told by Holdernesse that nego- tiations must be pushed, 187. Bynkershoek quoted, 88 ., 123, 128. Canada, Frederick's opinion of its worthlessness, 183, 185. Carlyle, Thomas, 425. Carteret, Baron, Secretary of State for Southern Department, 5 ; succeeds as Earl Granville, 13 ; promise of equal treatment of Prussian shipping, 12 ; assur- ance respecting contraband, Andrie's report, 12, 211 ; infer- ence from, not warranted, 89 ; not notified to cruisers, 93 ; his definition of, 48 ; his definition of, irrelevant, 95 ; his second reply to Andrie, 48 ; refusal to put reply in writing, 48 ; de- claration as to neutral right to trade with belligerent quoted against him, 57 ; promise re- specting contraband ignored by Bedford, 29. Casaregi, 124. Chesterfield, 4th earl, Secretary of State for Northern Department, 1746-8, ii ; his assurance as to Prussian ships and cargoes, 19 ; his reply to Michell of January 5, 1747, o.s., 21 ; text of, 91 ; representations to and verbal replies, 50. Coasting trade of enemy, 121. Cocceji, Prussian Grand Chan- cellor, 39. Commission, Prussian, on prize cases, justified, 67 ; not justi- fied, 87. Commissioners, appointment to 432 INDEX reconsider prize cases, refused by England, 171. Compensation to Prussian sub- jects mentioned by Michell, 27 ; by Podewils, 28. Conditional contraband according to Grotius, 122. Consolato del mare, 88 ., 122. Contraband of war, Prussian view, 45 ; English view asked for in 1744, 47 ; in Anglo-Dutch treaty of 1674, 48, 49, 63 ; captured Prussian cargoes were not , 6 1 ; Grotius cited, 62 ; Queen Elizabeth cited, 62 ; English Parliament in 1653, 62 ; English declaration to Prussia in 1744, 62 ; by treaty of Utrecht, 63 ; English minister's assurance repudiated by his suc- cessor, 64 ; English view of, in 1665, I2O i n I 7 II I21 ' i n 1744, 122 ; Dutch lists of, 125 ; French view, 163, 344. Council, minutes of meeting at Newcastle House, February 6, 1753, 265. I) Declaration respecting payment of balance of debt, to be separate from treaty, 193 ; text of, 418. Demoiselle Elisabeth of Wolgast, Prussian ship, 1 5 . Depredations of English privateers were posterior to treaty of Dresden, 70 ; ' so-called ', began after date for complete discharge of debt, 75 ; began in October 1745, 49. Dickens, Guy, English minister at Petersburg, 136, 139, 141, 142. Dorothie Sophie, Prussian ship, 14. Drie Gesusters, Dutch ship, 17. Dutch memorial of May 17, 1753, 306 ; of May 29, 312. Dutch neutrality from 1744, 147. Earl Marischal, Prussian minister in Paris, 39, 155. Eendragt, Prussian ship, 16. Eichel, private secretary of Frede- rick, 5. Enemy goods in neutral ship, Podewilb* view, 32 ; Prussian Government view, 45 ; by in- ternational law and treaty, 57, 58 ; Andrie's warning against carrying, in 1744, 85 ; capture justified by law of nations, 78, 109; English orders of 1672, 120; Bynkershoek's view, 129; French view, 160, 162, 344. English prize-court decisions ille- gal, in Prussian view, 45 ; of appeal, 80. Exposition des motifs, &c., text, 47 ; referred to Law Officers, 73. Fagel, greffier of Holland, 9. Ferdinand of Brunswick, 182. Finckenstein, a secretary of Prus- sian Foreign Department, 179. Foreign minister's word binds his Government, Legge's view, 30 ; Prussian view, 64. Fox, Henry, Secretary of State for Southern Department, 190. France, good offices of, requested by England, 153. Frau Juliana, Prussian ship, 19. Frederick II, Prussian ship, 15. Frederick, desire to shirk payment first shown, 4 ; undertook pay- ment out of gratitude to Eng- land, 6 ; threats to withhold payment, 9, 10, n, 36, 38; changes his mind, but still hesitates about payment, 34 ; dissatisfaction with Chester- field's reply, 22 ; offer to bond- holders, 35 ; justification of threats to withhold payment, 43 ; treaty obligation to pay Silesian debt quoted, 98 ; texts of undertaking to pay, 204, 205, 208 ; his patronage of Jaco- bites, 133; proposals for a settle- ment in July 1753, 168, 169 ; but refused by England, ibid. ; willing to accept 80,000 thalers by way of compromise, 173, 176 ; chief object of policy the retention of Silesia, 180 ; offer to mediate between England and France, 1 84 ; hesitation between England and France, 1 86 ; suggests that proposals should come from England, 186; contempt for patience shown by France in face of English aggres- INDEX 433 sions, 1 87 ; prepares draft reply to English overtures, 187 ; in- structions to Michell for treaty of Westminster, 191 ; purchase of bonds by, 198, 422. Freedom of the sea not in question, 96. Free ships, free goods, part of the law of nations, 58, 160, 165 ; doctrine refuted by Law Offi- cers, 88. French criticism of Law Officers' report, 161 ; mmoire on prize law, text, 342. French goods taken in Dutch ships ought to be restored, 149, 163. French new proposal rejected, 173. Gazette de Leyde, article reporting signature of treaty of West- minster, 419. Gentleman's Magazine, 420. George I, his will, 132. George II and Frederick, ill- feeling, causes of, 132 ; his policy in Germany, 1 80. Gibson, Thomas, contractor for Silesian loan, money-scrivener, M.P. for Yarmouth, I.W., i. ' Good offices,' 153, 155, 158, 159, 161, 166, 171, 175. Goude Arend, Prussian ship, 16. Granviile, Earl, formerly Carteret, succeeded October 18, 1744, 13. Grotius cited, 53, 62, 82 ., 88 ., 96 ., 122, 123, 130; on re- prisals, 69, 71. Guarantee of Silesia to Frederick given by George II, 8 ; its con- dition the payment of the Silesian debt, 25, 31, 33, 41 ; opinion of Prussian ministers, 39 ; Frederick's own view, 70 ; renewed by peace of Aix-la- Chapelle, 72 ; Bedford on, 232 ; opinion of the Lords Justices, 236. H Hague Convention of 1907 referred to, 172. Hardwicke, Lord Chancellor, 187. Harrington, ist earl, Secretary of State for the Northern Depart- ment, 1730-41 and 1744-6, 10. Heathcote, Sir John, director of the Bank of England, contractor for the Silesian loan, i . Heerligkeit, Dutch ship, 14, 32. Heineccius, jurist, cited, 81, 88 ., 123 ; English reading of, dis- puted, 164, 352, 354. Hellen, von der, charge d'affaires at the Hague, 147 ; instructed to deny reports of agreement with England, 186, 187. Hesse-Cassel, Hereditary Prince of, becomes Roman Catholic, 181. Holden, Samuel, director of the Bank of England, contractor for the Silesian loan, i. Holland, English negotiations with, 146. Hyndford, 3rd earl, envoy to Prussia, 1741-2, 4 ; asked to facilitate payment of Prussian claims, 36. I Injustice in re minime dubia, 82, 165. J Janssen, Sir Theodore, South Sea director, contractor for the Silesian loan, i. Jarriges, Grand Chancellor, 197. K Kaunitz, Austrian Chancellor, 181. Keith, Robert, English minister at Vienna, 134, 135, 136, 137; corre- spondence with, in App. 38-44. Kinsky, Count, Imperial Ambas- sador in London, i . Klein - Schnellendorf , agreement of, 4. Klinggraff, Prussian diplomatist, sent to London, 23, 34 ; pro- poses reduction of interest on loan, 35 ; failure of negotiation, 36; text of proposal, 239; ex- planation of, 240 ; at Vienna, 192. Knyphausen, Prussian minister at Paris in 1755, 179 ; instructed to inform French Government of orders given to Admiral Hawke to attack French ships, 186 ; to say that England had made overtures, 187 ; that Frederick 434 INDEX had no engagements with Eng- land, 190 ; partially informed of negotiations with England, 192 ; told that Frederick might be compelled to accept English proposals, 195. Law of Nations, basis of, 112; French doctrine of its confirma- tion by treaties, 162, 344 ; Eng- lish doctrine that treaties are exceptions to the general law, 74, 81, 262. Law Officers, report on Prussian case, 73, 77 ; report sent to British representatives abroad, 133- Leadam, I. S., 428. Lee, Sir George, Dean of the Arches, 73. Legge, Hon. Henry, envoy to Prussia in 1748 ; instructions to propose alliance and to urge payment of Silesian debt, 24 ; leaves Berlin, 33 ; text of in- structions, 213, 215 ; on mis- deeds of English privateers, 25, 26, 27 ; doctrine that word of a Secretary of State binds his Government, 30. Les Deux Sceurs, Dutch ship, 15. Les Jumeaux, Prussian ship, 16. Licence to Emperor Charles VI to borrow money in England, i. Loccenius, jurist, cited, 88 n. Lords Justices, minute of October 6, 1748, 31 ; text of, 236. M Maine, Sir H. S., 427. Manning, William Oke, 424. Mardefeld, Prussian Joint Secre- tary for Foreign Affairs, 147. Maria Theresa's reply to English request for intervention, 135. Maritime law in time of war, French view of, 113, 161 ; memoir e on, 162 ; text in App. Mediation, 160, 166, 168. Michell, Prussian secretary in London, 10 ; not a Prussian subject, 179 ; Note to Chester- field protesting against treat- ment of Prussian flag, December 28/January 7, 1747/8, 20; men- tions compensation, 27 ; left again in charge in 1750, 37 ; sounds Newcastle as to a com- promise, 1 77 ; reports English Ministry chiefly desirous of en- suring safety of Hanover, 189. Minister's verbal statement as to contraband of war merely an expression of opinion, 95 ; his word binds his Government, 30, 64. Mirepoix, French ambassador in London, 148 ; proposals of July I 7S3. I 7 I n te verbale, text, 330 ; note of conversation with Newcastle in July 1753, 385 ; proposal of August 1753, 402. Molloy, writer on Maritime Law, 122. Montesquieu, 423, 427 n. Montfort, private estate in Hol- land belonging to Frederick, 10. Munchhausen, President of Hano- verian Council, 182, 183 ; corre- spondence with Newcastle, App. ii, 12, 13. Murray,Wm.,Solicitor-General,73. N Negotiations with France, begun, 153 ; at an end, 173. Neutral right of trading with belligerent, English view cited in Exposition des motifs, &c., 54 ; neutral ships loaded by Prussian subjects, their capture contrary to International Law, 59 ; neu- tral ships taken and released, English list, 104 ; Prussian list, 255- Neutrality as practised by Holland in 1744, 126, 147 ; England neutral at the battle of Det- tingen, 126. Newcastle, Duke of, Secretary of State for the Southern Depart- ment in 1724, 13 ; for Northern Department in 1748, 22 ; accom- panies George II to Hanover, 23 ; First Lord of the Treasury in 1754,177; to Michell, rejecting Prussian claims, 40, 41 ; reply to Michell, February 1753, 73 ; reply to Michell sent to British representatives abroad, 133 ; reply to Michell of March n, 1752, text, 245 ; reply to Michell of February 1753, text, 262 ; note of conversations with INDEX 435 Mirepoix, July 5, 1753, sent to Albemarle, 385 ; note verbale for Mirepoix, July 20, 1753, 394 ; instructions for Albemarle in French, August 2, 1753, 396. Nivernois, Due de, special ambas- sador to Prussia in 1756, 195, 197. Novum ius controversum men- tioned, 178. O Ost-Friesland, 132, 183, 188. Palmer, Sir Roundell, speech in the House of Commons, 1 1 1 . Paul, Dr. G., Advocate-General, 73- Pelham, Henry, 160 ; willing to settle Prussian claims, 171, 175. Pelloutier, translator, 176. Penrice, Sir Henry, 28, 229. Podewils, Prussian Secretary for Foreign Affairs, memorandum given to Legge, 226. Podewils the younger, Prussian representative at the Hague, 9. Pratt, F. T., 425. Pretlack, Austrian representative at Petersburg, 136. Privateers, complaints of depreda- tions by, 1 3 ; security taken for good conduct, 80. Prize cases, cognizable only by courts of captor's country, 74, 79, 81, 109; costs when allowed or refused, 79 ; ques- tions of right involved in Prus- sian cases, 51. Prize courts, decisions not con- clusive as between governments, 45, 66, 67, 163, 165, 166 ; right of the Crown to set up, 96 ; their decisions appealable to in- ternational commissioners, 164. Prize law, Law Officers' exposi- tion of, 78 ; - in i8th cen- tury, 112; French - - of 1681, 117; of 1704, 116; of 1744, 113 ; Dutch , 125 ; English , of 1664, 119 ; of 1665, 1672, 1690, and 1704, 120 ; of 17 n, 121 ; Spanish - , 124. Prussia, anti-English intrigues, 25; only entitled to the same treat- ment as non-treaty Powers, 92. Prussian attack on George II's Germandominionsapprehended , 148, 156, 157 n., 159, 170. Prussian case, comments on, 107. Prussian claimants, list of, 248. Prussian claims, commission set up by Frederick, 27 ., 67 ; de- tailed statement called for, 37 ; report of the commission, 42 ; pro-memorid on, 42 ; analysis of, 43 ; judgement of the com- mission, 45 ; irregular proceed- ing, 74 ; decided on ex parte statements, 87 ; text of judge- ment, 246 ; France proposes to purchase Prussian claims, 137. Prussian list of prizes, analysed by Law Officers, 83. Prussian rejoinder to Law Officers' Report, preparation ordered, 176 ; never presented to British Government, 178. Prussian ships, depredations of English privateers on, 13 ; of Dutch privateers, 146 ; - captured, list of, 252. R Reconciliation of George II and Frederick, 179. Reddie, J., 124, 425. Reprisals, 68 ; justified, 69 ; Gro- tius on, 69, 71 ; Prussian right to make, disputed, 75, 99 ; prince's debts due to private persons not subject of reprisals, 79 ; British, against Spain, 96 ; contemplated by George II, 134, 157 n., 284, 388. Right of capture, 162. Right of search, 81. Right of visit, as defined by Prussia, 52, 55 ; according to Queen Elizabeth, 53 ; dispute between England and Spain in I 739> 55 as defined in Anglo- Dutch treaties, 56. Rule of the war of 1756, 14. Russia, treaty of subsidy of 1747, 138 ; new proposals in 1753, 139 ; conclusion of, 144 ; treaty of defensive alliance of 1741 and 1742, 140, 144. Ryder, Sir Dudley, Attorney- General, 73. 436 INDEX St. Contest, French minister for Foreign Affairs, 1 50 ; admission that the debt ought to have been paid off by 1745, 167. St. Jean, Prussian ship, too. Saxony.if France allied herself with, Frederick would stand out, 186. Shipbuilding materials treated as contraband, 127. Silesia, guarantee of, conditional on payment of debt, 39. See also Guarantee. Silesian debt, origin of, i ; amount and conditions, i ; payments by Frederick, 2 ., 7, 37 ; pay- ments due by contract, 2 ; Frederick's undertaking to pay principal and interest, 4 ; re- newal of, in 1744 and 1745, 8 ; in 1746, 9 ; in 1748, 25, 37 ; sequestration of final instal- ment, 42 ; sequestration re- moved, 196 ; final settlement of accounts, 198 ; bonds negotiable, 97. Smollett, T., M.D., 421. Soleil d'Or, Prussian ship, 17. Spanish view of the controversy, 133- Splitgerber^ 197 ; and Daun, bankers, merchants, and ship- owners, financial agents of Frederick, 225, 226, 227 (Split- bergen mis-spelling), 231, 249, 254, 256, 257, 261. Townsend, Hon. Horatio, director of the Bank of England, con- tractor for the Silesian loan, i . Trading with the enemy, 126 n. Treaty of Aix-la-Chapelle of 1748, art. 20, text, 325. Treaty of Berlin, July 28, 1742, 6, 204 ; of Dresden, December 25, 1745, 8 ; of Breslau, 8 ; of Westminster, November 18, 1742, 9, 193 ; of 1667 and 1668, between England and Holland, 56 ; of 1667 between Sweden and Holland, 63, 126 ; Anglo-Dutch of 1674, 147, 151, 152, 161, 164; text of art. 8, 309; of 1715-16, art. 2, text, 90 ; between Denmark and Holland of 1691, 127 ; of 1746 between Austria and Russia, 1 37. J 39 '> accession of George II to, 139 ; Anglo-Dutch of 1678, 151, text of art. 5, 310; of subsidy with Hesse-Cassel and Gotha, 183 ; Anglo-Swedish of 1 66 1, 194 n. ', Anglo-Danish of 1670, 194 ; of Utrecht between England and France, text of articles, 209 ; between France and Holland of 1739, text of articles, 210; England and Denmark of 1670, text of article, 359 ; treaty of subsidy with Russia signed, 144 ; communi- cated to Frederick, 190. Treaty of Commerce and Naviga- tion between England and Prussia suggested, 194. Treaty of Westminster of January 1756, negotiations, 191 ; draft given by Holdernesse to Michell, 193 ; Frederick's amendment, 195; text, 416; separate article, 418 ; laid before Houses of Par- liament, 199. Twee Gebroeders, Prussian ship, 16. Twenty-four hours' rule, 118. Vattel, 124, 423, 427 n. Voet, cited, 88 n. W War declared between France and England in 1744, 12. Ward, Robert, 423. William III, his political system, 181. Williams, Basil, 430. Williams, Sir Charles Hanbury, envoy to Berlin, 33 ; to Peters- burg, 143, 196. \" Yorke, Joseph, English minister at the Hague, 147-51. Yorke, Philip C., 430. Zouch, cited, Z In. Printed in England at the Oxford University Press L 005 960 907 3 UC SOUT HERN REGIONAL LIBRARY? CILTY A 001 335 000 4