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 TREATISE 
 
 OF THE 
 
 RELATIVE RIGHTS AND DUTIES 
 
 OF 
 
 BELLIGERENT AND NEUTRAL POWERS, 
 
 MARITIME AFFAIRS. 
 
 IN WHICH THE 
 
 PRINCIPLES OF ARMED NEUTRALITIES, AND THE OPINl IS 
 OF HUBNER AND SCHLEGEL ARE FULLY DISCUSSED. 
 
 By ROBERT WARD, Esq. 
 
 BARRISTER AT LAW, 
 
 UTHOR. OF THE ENOJJIRY INTO THE HISTORY AMD FOUNDATION' OF 
 TH£ LAW OF NATIONS IN EUROPE TO THE ACZ OF GROTIl'S. 
 
 LONDON. 
 
 PRINTED FOR J. BUTTER WORTH, FLEET-STREET; 
 
 BY G, WOODFALL, ?ATEV, .JTER-KOW, 
 
 , 1801. .. .
 
 •J X 
 
 x^~ 
 
 ; . *a 
 
 \.->, 
 
 INTRODUCTION 
 
 f is now more than two centuries fmce the 
 
 ^nations of Europe began to recover themfelves 
 
 from the grofs and brutal maxims which formerly 
 
 governed and difgraced them. While the whole 
 
 world was in arms, and the wild buril of 
 
 ferocious and unrefleclino; courage deftioved sill 
 
 before it, and defpifed or oppreffed the milder arts 
 
 ^of peace, it availed little, that fome ^w were to 
 
 be found more enlightened than the reft, who 
 
 ^endeavoured to prove that there were rules of duty 
 
 ^beyond the mere force of power. Fur, while the 
 
 cloiftered learning; of the times was confined to 
 
 the humble range of manufcript communication, 
 
 and religion, the only bond, or at leaft the trueft 
 
 fanclion of our duties, had maddened into enthu- 
 
 iiafm or evaporated in fuperftition, there was 
 
 little room to expect improvement from the only 
 
 fources whence improvement can arife. Accord- 
 
 ca inglv, the potentates of the earth, far from pro- 
 
 5 rhino- bv their intercourfe with one another, were 
 
 S the Haves alternately of vengeance, avarice, or 
 
 a 3 ambitbn ; 
 
 301007
 
 VI INTRODUCTION. 
 
 ambition ; and the right of the ftrongeft, fo far 
 from being difguifed as a principle, Mas almoft 
 the only principle profefled. 
 
 The Reformation, however, and the natural 
 tendency to improvement, brought men at length 
 to truer maxims; and the art of printing, by fa- 
 cilitating the means of real knowledge, achieved 
 almoft a new order of things. Then began the 
 ftates of the world to embrace more juft concep- 
 tions of the nature of their reciprocal duties, and 
 to enquire, even with anxiety, whether there was 
 not fome high obligation, fome fettled principles 
 of action, founded in a nobler origin than the 
 brutal impulfes of paffion or intereft which had 
 hitherto governed them. Religion, learning, and 
 philofophy, all combined, under the aufpices and 
 direction of an illuftrious fet of men, to teach 
 nations, as they had before taught individuals, 
 that they were to be governed by a fcheme of 
 morals founded in the obligations of juftice, and 
 fanctified by the revealed commands of their 
 Maker. Amongft thefe, Grotius led the way, 
 and rofe to fo proud a height of eminence, as to 
 leave all rivals far behind him. The rules for 
 action which he laid down were fo clear and pre- 
 cile, fo deeply founded, upon fuch firm and found 
 bottom, and fo applicable, betides, to almoft all 
 the cafes which human ingenuity could imagine, 
 or human viciflitudes fupply, that, with a very 
 few exceptions indeed, there is fcarccly a pofition 
 
 of
 
 INTRODUCTION. Vll 
 
 of his which can be combated with fuccefs, much 
 lefs overthrown. At the fame time lie Mas fo 
 ably feconded and illuftrated by his fucceffors in 
 his noble fcience, during the whole of the feven- 
 teenth century, and almoft during the whole of the 
 laft, that one would think the law of nations would 
 now be well underftood in all its points and bear- 
 ings, and that it had gradually rifen to that height 
 of perfection which other fciences have acquired. 
 Much, however, it feems, remains to be done. 
 
 It has been well obferved, that ftates are moral 
 agents as well as men; for they are compofed of 
 men, have the fame pafiions and temptations to 
 do ill, together with the fame reafon and anti- 
 dotes to temptation. They owe alfo the fame 
 obedience to the Creator and Governor of all 
 things, can pretend to nothing, and ought to 
 yield every thing, as they ilippofe he would rule 
 and exact it from a iimple individual. But, un- 
 happily for mankind, from the varying powers 
 of their underftandings, the influence of preju- 
 dice, the claihing of intereft, and, above all, 
 from the want of fome fovereign and all-power- 
 ful tribunal to pronounce with authority, and 
 execute with effect, it is no eafy thing to eitablifJi 
 a common code of laws which all may confult, 
 and to which all fhould defer. In the war for the 
 Audi-fan fucceflion, a philofophic king of Pruifia 
 chofe to attempt an alteration in the neutral code, 
 not by endeavouring, as nations more iuterefted 
 
 a 4 than
 
 Vlll INTRODUCTION. 
 
 than his had done,* to obtain it by boon and ex- 
 prefs (tipulations from Great Britain, but by 
 claiming a right, founded on reafoning, fuch as 
 it was, to carry enemy's property in his mips free 
 from fearch ; a claim which fell ftill-born to the 
 ground, from the irrcfiftible argument which 
 ftifled it in its birth, f 
 
 The clofe of the eighteenth century, however, 
 has exhibited a conteft upon the fame point of 
 law, and founded in the fame philofophy, of fuch 
 extreme magnitude in its confequences, agitated 
 in a manner lb tremendous for the parties, and 
 likely to bring along with it fuch a train of evils, 
 ending in mifery and blood, that all men muft 
 naturally make it an anxious fubjeel of their in- 
 veftigation, and be eager to inquire into the rea- 
 foning and authorities that can fettle it, if indeed 
 it can now be granted to us, that reafoning and 
 authority can fettle it at all. 
 
 The pretentions and principles of what is now 
 well known by the name of the " armed neutra- 
 lity" have been formed for fome years. Whether 
 they have been formed upon a juft foundation, 
 
 * Holland, for inflance, who laboured it under the direction 
 of their ableir, minifters, after their war with Cromwell, till it 
 ended in the treaty of 16-4. See Thurloc, pajfim; De Witt 
 and Boreel's Letters, and Temple. 
 
 f See the Duke of Newcaflle's Letter, &c. Sic. 
 
 or
 
 INTRODUCT ION. IX 
 
 or a foundation any thing like juft; whether they 
 can bottom themfelves in any zcell reafoned theory, 
 or find fupport from any examples, (and without 
 a well reafoned theory, fupported by the force of 
 example, it is in vain that you look for the law of 
 nations, or any other law,) is the momentous 
 object of the following enquiry. If the preten- 
 tions of the North can be made out convincingly, 
 if even, incerto marte, their favourers can difcufs 
 the queftion, the world will paufe before they fly 
 to the terrible decifion of arms. If, however, 
 the whole ihould be ufurpation, fet up to acquire 
 unlawful advantages to them, and ending in the 
 total deprivation of the lawful means of defence 
 to ns, it then becomes that object for which the 
 nation muft contend to the end of her refources, 
 or ceafe to be a nation that has any refources at 
 all. Mankind will allow, that the fubject is full 
 of intereft; and the crius of the times is fuch, 
 that Britons at leait, if not the Dane and the 
 Swede, will give it all their anxious attention. 
 
 In that well-known crifis of the American war, 
 when the whole exertion of France was pointed 
 to the acquisition of a navy able to cope with us 
 iingly, without which it had become an axiom 
 of their Government, that they could not pretend 
 to give law to the world ; their policy was, as it 
 will always be with the inferior Belligerent at 
 lea. to turn the whole cf their marine icfource 
 
 into
 
 X INTRODUCTION'. 
 
 into the means of offence ; leaving their trade, 
 and the fupply of ftores, for a time, to the protec- 
 tion of Neutrals, if any Neutrals can be hardy 
 enough to rifk the confequences of an interference. 
 The Dutch, corrupted to the core by the love of 
 gain, which had often made them fupply their 
 own enemies with the means of annoyance, * 
 had always risked, and always fullered for it. 
 Denmark and Sweden, as bold in fpirit, but not 
 fo vitiated by the corruptions which the mere un- 
 qualified genius of trade muft ever generate, had 
 iiiewn much difpofition to interfere ; but either 
 cheeked by a fen^c of jufticc, or tempering their 
 difpofition with prudence, they had never ven- 
 tured into an open defiance of the exifting law, 
 nor upon the bold aifertion of a new one, which 
 no nation in Europe had yet admitted. It was 
 relerved for the afpiring power of Rufiia alone 
 to lead the way to an innovation, which, whether, 
 as me aiferted, it was a natural fy/tem, founded 
 
 * As at Bergen-op-Zoom, which Lower.dahl himfelf con- 
 feffed he could not have taken for want of" ammunition, had 
 not the enemy be a fo good as to fupply him. Many defend 
 the Dutch, tor this in point of policy, without observing that it 
 can only not tend to ruin, when the power that fells is fo fuperi- 
 or to that which buys, that it may laugh at its thus , Tip J 
 efforts. Thi< could never happen from the Dutch towards the 
 French, who have io often endangered their verv exiftence. 
 Who that wa to fiehtwith hi, superior ;n (rrcngth and /kill, 
 would lend him the Avord that \va> to v. orh his deftruclion ? 
 Reverfe the fuuatlor.s, :m : the cafe is prrhap. poffibb. 
 
 OH
 
 INTRODUCTION. XI 
 
 onjujUce, remains now to be feen, but which her 
 own minifter, in his memorial to the States Ge- 
 neral, allows, ' was to be eftablijhed and legalized 
 i in their favour.' 
 
 That memorial dated in terms, that the fame 
 invitation had been made to the courts of Copen- 
 hagen, Stockholm, and Liibon, ' in order, that 
 1 by the united endeavours of all the neutral mari- 
 
 * time powers, a neutral fyftem, founded on juf- 
 ' five, might be ejiahlijhed and legalized in favour 
 ' of the trade of neutral nations, which by its real 
 
 * advantages might ferve for a rule for future 
 ' ages.'* 
 
 What real advantages are here fpoken of, ex- 
 cept thofe accruing to the neutral and inferior 
 Belligerent alone, it will not be eaiy to determine; 
 it is certain that no advantage at all, fpecious or 
 real, could arife to him who had overcome, or 
 nearly overcome, his enemy at fea ; and as cer- 
 tain that the fvftem, though claimed to be na- 
 tural, was yet to be cltabliihed and legalized, and 
 confequently, by an implication as powerful as 
 inevitable, had never yet been eftabliihed or 
 legalized. 
 
 * See the Memorial of Prince Gallitzin to the States General, 
 
 April 3, 1780. 
 
 Now
 
 XII 
 
 INTRODUCTION' 
 
 Now what was this fyftem founded in Nature, 
 but which for many hundred years the fearchers 
 into natural right had never thought of eftablifh- 
 in£ as law? It eon lilted of four errand articles. 
 
 Fir/f. ' That all neutral fhips may freely 
 ' navigate from port to port, and on the 
 ' cordis of nations at war. 
 
 Secondly. ' That the effects belonging to the 
 ' fubjecls of tlie laid warring powers 
 ' mail be free in all neutral veiTels, ex- 
 1 cept contraband merchandifc. 
 
 Thirdly. ' That to determine what is meant 
 ' by a bloeked-up port, this is only to 
 1 be underftood of one which is fo well 
 c kept in by the mips of the power 
 ' that attacks it, and which keep their 
 c places, that it is dangerous to enter into 
 c it. 
 
 Fourthly. ' That neutral vcffels ihall not be 
 'flopped, except for juft caufe, and upon 
 ' clear evidence ; that judgment ihall be 
 1 given without delay ; that the procefs 
 ' mall always be uniform, prompt, and 
 ' legal ; and that befides damages to 
 ' thofe who have fuftaincd lots, ample 
 1 fatisfaetion ihall be made for the infult 
 
 " don-
 
 INTRODUCTION". XUl 
 
 i done to the flag of the contracting 
 
 * powers.' * 
 
 This was the claim in 1780. This is the claim, 
 as far at leaft as Denmark has declared itfelf, in 
 ISOO.-j- This alio, together with another, the 
 privilege of the flan-, are the claims both of 
 Denmark and Sweden. Rufiia, in addition to 
 other fuppofed and particular injuries, co-operates, 
 or rather leads the way, to the afTertion of thefe 
 claims, which all fay arc in their nature indijfolu- 
 hle ;'| and for this the whole North are in arms! 
 Preffed, therefore, as we are in this gigantic con- 
 teft, in addition to the now undivided weight of 
 cur molt powerful and bitter enemy, in the mod 
 juft m ar that was ever undertaken ; 1 have thought 
 that it would be no unacceptable fervice to my 
 countrymen — perhaps no unacceptable fervice to 
 our confederated enemies themfelves, if the whole 
 queftion could be laid at once before them, with 
 all its train of authorities and cafes, in as much 
 brevity as is confiftent with the fubjech 
 
 * See the Treaties between Rafiia and Denmark, and Rufiia 
 and Sweden, June 1780. — Marten's Treat, torn. ii. 
 
 f See Count BernftorfPs anfWer to Mr. Drummond's note., 
 Pecember 1 800. 4 
 
 X See the Preamble to the Treaty 4 th (16th) Dec. 1S00, be- 
 tweeen RuSia and Sweden, which is ' made in order to give a new 
 " function to thofe principles of their neutrality which are 
 < in their nature indiffoluble.' 
 
 With
 
 XIV INTRODUCTION. 
 
 With refpeex to the fourth article of the Ruffian 
 Treaties, 1780, it will not be at all necefl'ary to 
 difcufs it ; as there is nothing in it that militates 
 againft juftice : only we may ohferve, that when 
 cofts and damages are awarded, fatisfaetion for the 
 whole injury, both to the individual and the flag, 
 is intended to be made. As to the third, it feems 
 nearly correct as a general rule. Where it is not en- 
 tirely fo, the enlightened undcrftanding, and ad- 
 mirably confiftent decifions of a man whom I 
 ilioulcl exalt myfelf by endeavouring to praife. 
 muft fatisfy even the trainers of the armed neu- 
 trality themfelves upon the fubject.* 
 
 In addition however, to the important, and to 
 us fatal claims fet up in the three firit articles, 
 there are a variety of others regarding the rights 
 offearch, detention, and judicature, interwoven 
 with them lb intimately as to make it impofiible 
 to feparate them in a treatife like this. Thefe have 
 found of late molt ftrenuous advocates in many 
 of the public men of the times ; the high-toned 
 and certainly able minifters of the courts in quef- 
 tion ; and civilians and profellers of public law, 
 whofe works, though I mean the reverfe of iheu- 
 ing them difrefpect, have produced no fort ot 
 
 * See a variety of cafes of blockade ; and Sir William Scot'« 
 Judgments, in Dr. Robinion's Admiralty Reports. The rule of 
 decifion there, is, that there mult be an actual blockade, together 
 with notice of it to the party, or to thofe whofe duty it was to 
 inform him, and an attempt at its violation. 
 
 conviaii n
 
 INTRODUCTION. XV 
 
 conviction in my mind. And I cannot help 
 thinking they have owed the reputation they 
 enjoy on the continent, more to the flattering' 
 unction which they give to very favoured por- 
 tions, than to the fkilful management of the 
 argument, or the foundnefs of the deduction. 
 Amongti thefe, Hubner, who wrote in the war of 
 fifty-fix ;* and Sc/ilcgel, who has lately detailed, 
 with augmented fophiftry, (if I may ufe fuch an 
 expreffion) the arguments of his precurfor, have 
 been too much boafted of, not to merit a con- 
 ilderable portion of notice ; but Sir William Scott 
 muft forgive me the prcfumption of attempting, 
 after him, to handle an argument which he, from 
 his high place, has given to the world, but which 
 I muft neceifarily touch upon in reviewing thofe 
 who think they have reviewed him .\ 
 
 * De la Saifie Jes Batemens Neutres, &c. — He was a Danifh 
 Chilian, and Confeillier de Conference. 
 
 f I allude to profeflbr Schlegel's Treatife, Sur la Viiite dcs 
 Vaiffeaux Neutres feus Con<voi, ou Examen impartial du Juge- 
 ment prononce par le Tribunal de PAmiraute Angloife, 1799* 
 
 A TREATISF,
 
 A 
 
 TREATISE, &c. 
 
 1 HE alleged rights of Neutrals in maritime affairs, which 
 I propofe to examine, may be divided into fevcral propor- 
 tions, or general heads. 
 
 I. That free fhips make free goods, from which a corol- 
 lary is derived, that Neutrals have a right to coaft from port 
 to port, and to trade from colony to colony, and from the 
 colonies to the mother country of Belligerents, without be- 
 ing liable to fearch or detention, except for contraband of 
 war. 
 
 II. That contraband is confined to articles of exclufive 
 and immediate for vice in war. 
 
 III. That war means military war and commercial 
 peace; that is, that no private property can be the fubjeii 
 of prize. 
 
 IV. That the courts of the capturing Belligerent are not 
 competent to entertain queflions concerning Neutrals cap- 
 tured or detained upon the high feas. 
 
 V. That the right of fearch is not a natural right, and 
 is confined abfolutely to the mere infpection of papers. 
 
 VI. That the flag of the ftate is tantamount to all do- 
 cumentary parol and ocular evidence, and excludes all right 
 of fearch whatever. 
 
 VII. That whatfoever is done under cover of the flag., 
 immediately excludes the fuppofed jurifdi&ion of the courts 
 ©f prize, and becomes matter of reprefentation between 
 State and State. 
 
 s PROPOSITION
 
 2 that free ships [Prop. I. 
 
 PROPOSITION I. 
 
 THAT, BY THE LAW OF NATURE, FREE SH5PS MAKE FREE 
 GOODS, AND NEUTRALS HAVE A RIGHT TO COAST FROM 
 PORT TO PORT, AND TO TRADE FROM COLONY TO COLONY, 
 AND FROM THE COLONIES TO THE MOTHER COUNTRY OH 
 BELLIGERENTS, WITHOUT BEING LIABLE TO SEARCH OR 
 DETENTION EXCEPT FOR CONTRABAND OF WAR. 
 
 A HE argument on cither fide of this queftion proceeds 
 preliminarily upon the fuppofttion,that this is or is not the 
 genuine, natural, and primitive law ) diftinct from all limita- 
 tion bv treaty, and wholly unmodified by convention.* In 
 this ftate of things, the Belligerent is fuppofed to fay that he 
 has a right to annoy his enemy by every means in his power, 
 and confequently to feize his property wherever he may 
 find it, even on board the fhips of a friend. On the other 
 hand, the Neutral contends, with equal earneftnefs and 
 equal appearance of reafon, as a general doctrine, that he 
 has a right to carry on his trade with either and both the 
 Belligerents; that their quarrel ought not to affect him; 
 and that every attempt to trench upon that right is an inva- 
 fion of his neutrality. Here, then, is an apparent connection 
 of two apparently equally perfect rights, and how to recon- 
 cile them is the difficulty to be unravelled. If good faith, 
 
 * Schlegel, pajjim* — See alfo the third article of the late treaty, 
 -j 4 : December, 1800, between Ruiiia and Sweden. 'And where- 
 « a, it is refolved, that whatever, by virtue of the foregoing article, 
 ' can be deemed contraband (hall be excluded from the commerce of 
 
 * Neutral Nations : in like maimer, his Majefty the King of Sweden, 
 
 * and his Imperial Majefty of ail the Knflias, will and determine 
 ' that all other merchandife fliall be and remain free. — And in order 
 
 * that the general principles ofibe La~v of Nature, of which the frec- 
 1 (lorn of Tiadc and Navigation, as nvell as the rights of Neutral Na- 
 c tionSy are the minifdiate conf-qi/ence, may be placed under a con;- 
 
 * petent and due iafeguard, they have refolved no longer to delay 
 
 * that voluntary explanation, from which they have hitherto, been 
 *re(haincd by motives of their fepuratc and temporary intei'clta,' 
 &c. See, 
 
 however,
 
 Sec. I.] MAKE FREE GOODS. « 
 
 however, be brought into the inquiry, that firmed and beft 
 auxiliary to every ferious investigation, but little of intellect 
 will, perhaps, be neceffary to fettle the point. 
 
 For the more convenient difcuffion of the fubjecl:, the 
 argument may be divided into three parts, or fe&ions. P'irft, 
 as to the reafoning drawn from mere common fenfe 
 and the principles of general equity : Secondly, as to the 
 reafoning drawn from authority and cuftom: Thirdly, as 
 it may be collected from treaties. 
 
 SECTION FIRST. 
 
 1 HE whole my fiery of this queflion, as far as 1 have 
 been able to judge, proceeds from either a wilful or an ig- 
 norant mifreprefentation, on the part of the neutral champi- 
 ons, of the real pretentions of the Belligerent) which, they 
 fuppofe, amounts to an entire interdiction of the fair rights 
 of commerce which they enjoyed before the war. All the 
 argument, and the declamation that accompanies the argu- 
 ment ; the attempts at new theories, fet ofF with the ar- 
 rangement and forms of fyftem and fcience ; the unfounded 
 and inoft eafily refuted accufations brought againfl us, from 
 fcantli.ngs of our hiftory, or crude and miflaken, if not 
 wilfully mifreprefented, accounts ofourjudicial proceedings i 
 ■ — all this, I lav, turns upon this radical miflake, that we 
 wifli to prevent and cut off the whole trade of Neutral Pow- 
 ers, or at leaft make fuch inroads into it, beyond the mere 
 deprivation of contraband, as fhall render it nugatory, even 
 when carried en for their own account. Once, and once 
 only, for the fpace of near two centuries, fuch an attempt 
 was made, and, I freely own, by this country, in conjunc- 
 tion with Holland, when, in the treaty of Whitehall,* they 
 
 B 2 endeavoured 
 
 * Aug-. J2, 1689. By the fecond article it is (rated, that as 
 feveral Kings, Princes, and States in Europe, are already engaged 
 iii a war again/! the mod Chriliian King ; and that they have al- 
 ready
 
 4 THAT FREE SHIPS [Pl'Op. I- 
 
 endeavoured to prevent all commerce whatfoever with 
 France in the war of 1689. But though there was, perhaps, 
 power fufilcient, had we ever been folemnly diipofed to 
 confider that power is right, as many four fpirits have mod 
 foolifhly imputed to us ; yet we faw the injuftice into which 
 we had been furprifed, and, to ufe the language of Vattel, 
 (blaming us on this very queftion) c Les deux puifTances 
 * maritimes reconnoifiant que les plaintes des deux couron- 
 1 nes* etoient bien fondees, leur firent juftice.'t 
 
 With this one exception, Great Britain has never at- 
 tempted, fince the law began to be fettled, after the frequent 
 altercations upon it in the Sixteenth century, to impofe fet- 
 ters upon that part of neutral commerce which is innoxious, 
 and which had in reality exifted before a ftate of warfare, 
 unlefs in the authorized cafes of contraband, and of carrying 
 enemy's property. Let it be remembered, therefore, that 
 the queftion on the part of the Belligerent is not, as has 
 grofsly been fuppofed, whether he has a right to intei- 
 fere with the Neutral ; but merely whether he cannot pre- 
 vent the Neutral from interfering with him ? In other words, 
 whether, when the former extends the bounds of his trade, 
 not with y but for a Belligerent ; not only purchafes what is 
 wanting for his own confumption, or fells his uiual peace- 
 fupply of articles; but fells to him articles which may be 
 
 ready prohibited, or will in a fhort time prohibit all commerce 
 with France, 'it is agreed betvveenhis laid Majefty of Great Britain 
 and the faid Lords the States General, that if, during the courlc 
 of this war, the fubjects of any other King, Prince, or State, thai! 
 undertake to traffic, or have any commerce with the fubjecls of the 
 mod Chriftian King ; or if their veffels or (flipping are met with in 
 their pafTage to the ports, havens, or roads, under the obedience 
 of the moft Chriftian King ; the faid veffels, (hipping, merchan- 
 dises, or wares, (hall, in the cafe above-mentioned, be attacked and 
 taken by the Captains of men of war, privateers, or other fubjedts 
 of the King of Great Britain and the Lords of the States General, 
 and (hall, before proper judges, be condemned for lawful prize.' 
 * Denmarkand Sweden. f Droit des Gens, 1. iii. fee. 112. 
 
 eafily
 
 SeC. I.] MAKE FREE GOODS. 5 
 
 eafily converted into the means of annoyance ; or even iurm 
 carrier for his opprefTed friend, who ufes the Surplus (Irength 
 which is thus afforded him againfl his opponent ; whether 
 in fuch cafe, the other Belligerent has no reafon to be of- 
 fended, and to reclaim thofe rights which the pretended 
 Neutral is difpofed to deny him. 
 
 This, in fact, is the true irate of the queftion ; and with 
 this magnet to guide our wanderings, this towering land- 
 mark to point, our exertions, we mail be able, I think, to 
 weather the tempeft which has been only brewed by inge- 
 nious fophiits, or artificial ftatefmen. 
 
 The argument for the proportion in queftion affects to 
 bottom itfelf upon the freedom of navigation, the liberty of 
 the feas,and the natural power and liberty of failing over the 
 world. The right which a people has to ufe its induftry 
 in whichever way it feems beft to them ; the neceffity, 
 founded in Nature, for commerce, in order to improve the 
 defigned intercourfe of mankind ; the equal dignity and in- 
 dependence of Sovereign Powers ; the unlawfulnefs in a war, 
 however juft, of converting the privilege of annoying an 
 enemy into the power of abufing a Neutral ; all thefe, and 
 many others of inferior force, are the arguments by which 
 it is endeavoured to fupport the pofition.* They are founded, 
 it is laid, upon principles of univerfal equity, which form the 
 great and everlasting code for the government ofSove- 
 
 to o 
 
 reigns. f Is it fair, therefore, fay they, becaufe two nations 
 go to war, that others, who are impartial in the difpute, 
 are to fuffer in their rights ? Are they to be curtailed in the 
 means of their fubfiftence, or the ufual exchange of their 
 commodities, which employ and feed fo many thoufands of 
 defencelefs and innocent perfons, merely becaufe others have 
 
 * Schlegel, Hubncr, paffim. t Hubner, i. 105. 
 
 $ o chofert
 
 6 THAT FREE SHIPS [Prop. I. 
 
 chofen to quarrel ; or becaufe, before the war, one of the 
 Belligerents has been ufed to derive advantages from the neu- 
 tral trader, is the latter inftantly to be invaded and ftripped, 
 in order the better to invade and ftrip the former ? Thefe 
 queftions have often been afked, and have as often been an* 
 fvvered. In 1780 they were afked with a kind of triumph; 
 and at this moment they are afked at the head of thoufands 
 of armed men. Not the lefs weighty, nor the lefs firm, 
 however, will be the anfwer ; for, whatever may be the 
 event, it muft always be founded in truth. 
 
 In truth, then, there is no fort of occafion to difpute any 
 one of thefe points ; becaufe, even if they could be contro- 
 verted as general pofitions, without any fpecific application, 
 which it is allowed they cannot, they all elude and go bejule 
 the real pretention. 
 
 Ail that we have to examine, fays Hubner, is, whether 
 Belligerent States have a right to prevent Neutrals from trad- 
 ing with their adversaries ; or whether the latter may ftill 
 continue their commerce with the Belligerent parties, upon 
 the fame footing as in times of peace.* 
 
 Now, with fubmifnon to him, this is not all that we have 
 to examine, for if it was, much of the enquiry might be 
 fpared. 
 
 The quefHon afked by the Belligerent is of a very diffe- 
 rent nature. It is not whether he has a right to prevent 
 Neutrals from trading with hisadverfary, but, neither movi 
 nor lefs than, whether Neutrals do not claim to go infi- 
 nitely beyond the rights of their trade; whether, in their 
 anxiety to preferve privilege on the one fide, a real injuflice 
 is not worked on the other ; whether, in fliort, ail the 
 advantage is not thrown on the Neutral party, which wholly 
 
 * Hub. chap. 1. f. 1. page ;, 
 
 neat a
 
 SC€. I.] MAKE FREE GOODS. J 
 
 burfls afunder the ties of impartiality, and converts the 
 cautious Neutral into a dangerous enemy ? 
 
 Subject to thefe queftions, indeed, it is not the intention, 
 and according to the improved maxims of" modern law, 
 it never was the claim of the Belligerent to interfere with 
 the Neutral. But that feeunty againft thefe is as much 
 the natural right of the Belligerent, as the privileges con- 
 tended for belong to the Neutral, no one will pictend to 
 deny. For, wherever there is a confli£tion of rights, one 
 or other, or both, muft yield fomething, and then the right 
 can only be perfect, that is, can only be afferted, j'ubjeel to 
 the diminution occafioned by the other. Throughout all hu- 
 man focietv, and all human life, it muft ever be lb ; we 
 muft recollect, that the moil: perfect ftate of civil liberty it- 
 felf which man can form, is always a Hate of redaction 
 fomewhere : every man that is born in the world trenches 
 upon the perfect liberty of fome other man, and could we 
 unpeople the earth, or turn the theorift into the defert, for 
 the purpofe of enjoying the perfection of liberty, he never 
 would be able to obtain it, on account of the tigers that 
 would conteft it with him. 
 
 We fee, then, that it is not true, becaufe the rights of 
 commerce are founded in Nature, becaufe the fea is free to all, 
 and becaufe men have a right to profit of their induftry, 
 that thefe rights are to extend to fuch an unqualified 
 height, as never to be modified on any occafion, 
 and even fo as to encounter and defeat the rights of 
 others. Let us rather liften to the rational and liberal 
 Vattel, who, fpeaking of the illegality of contraband, and 
 at the fame time of the rights of trade, fays, * the nations who 
 c renounce it in war fuffer, it is true, but fuffer from neceiTity : 
 
 * Droit des Gens, 1. iii, f. 3.
 
 8 THAT FREE SHIPS [Prop. I. 
 
 4 the Belligerent does not oppofe their rights, but (imply af- 
 < ferts his own ; and if the two rights are incompatible, it is 
 4 the effect alone of inevitablene .efjiiy .*' After all, then, this 
 is a common cafe, met with under every order of fociety, 
 beyond the control of man, as he is, and founded in the 
 nature of things. It cannot be ilhiff.rated better than by 
 directing our attention to a celebrated maxim of our muni- 
 cipal law ' Cujus cji jolum ejus ejl ufque ad caelum' is, for 
 example,, founded in very true principles of juftice ; but a< 
 it is palpable, how eafily, if carried to its utmoft extent, it 
 might work the greateft injufrice, it is modified and render- 
 ed pe feci by the addition of that other part of it, ' ita ut 
 ahetium non I a. das.' 
 
 The diverfified clafs of cafes, and varied amplification of 
 the fubject, which this maxim alone, thus guarded, would 
 generate in every enquring mind, would tuinifh of them- 
 felves abundant matter to clear all miff, from this part of 
 the fubject:. I mall content myfelf, therefore, with refer- 
 ring for what is wanting to the well reafoned theory of the 
 Earl of Liverpool, on the Rights and Duties of Neutral Na- 
 tions, a work to which the viilonaries of the neutral code, 
 s it is called, have in vain attempted to furnifh an an- 
 Iwer.f 
 
 In granting, therefore, the fair and reafonable enjoyment 
 of their privileges to Neutral Nations, there muff always be 
 added the fair and reafonable caution, that they ufe them 
 Jo as not to hurt the Belligerent ; and that I may not feem 
 to qntrench myfelf in generals ' ubi faepe verfatur error,' I 
 would add, that they have certainly no right to ufe them in 
 anyone, the fmallelt degree of proportion, more than they 
 did in times of peace, nor even into great a degree, if fuch 
 
 * Droit cle^ Gens, 1. iii. i. 3. 
 
 + tree theDifcourfe on the Conduct of the Government of Great 
 Britain in refpect to Neutral Nations, by the prefent Earl of 
 Liverpool. 
 
 augmented.
 
 ScC. I.] MAKE FREE GOODS. Q 
 
 augmented, or the ordinary ufe of them bears immediate 
 miSchief to either Belligerent. 
 
 For example, thev may increafe their purchafes to any 
 amount in the Belligerent countries, provided their own 
 consumption requires it, and provided they remain domiciled 
 in their own country. But if they perfift in carrying, much 
 more, if they extend their faculty of carrying for the Belli- 
 gerent, where the latter was in the habit of carrying be- 
 fore ; and if, in confequence, he is enabled to come to the 
 battle, and to Stand the Shock of wSr with augmented 
 flrengthj which he never would, nor could have poSieSied 
 without it, I fee little or no difference between this and an 
 actual loan of military afliitance. All the distinction is, 
 that he fubftitutes his own people in the place of taking 
 foreigners ; for every man, which the Neutral lends to his 
 trade, enables him to furnifh a man to his own hoftiie fleet?. 
 In other words, it enables him to meet his enemy with un- 
 diminished forces, and yet prefervc entire his fources of re- 
 venue ; when, if it was not for -this conduct of the Neutral, 
 either the forces or the revenue of the Belligerent mud in- 
 evitably be diminifhed ! 
 
 This deduction, I think, is fo clear, that the molt' 
 unenlightened Savage, or children in their infant Struggles 
 with one another, would inStantly, taught as it were by 
 Nature, fee its propriety, and act' upon it as a principle. 
 We often, indeed, betake ourfelves to the Indian's untu- 
 tored mind, or the child's Self-taught fprings of action, in 
 order to difcover what we think is the natural law : dr.-' 1 
 Should have no objection to Submit theie diplomatic chicaneries 
 (as they have been called), in other words, thefe plain and ob- 
 vious cafes of duty, which militate agaiuft thole who depart 
 from all duty, to the prompt decision of uninftrufted Nature. 
 E ven Hubner himfelf, who fuppoi'es that he lias eftablifhedanew 
 code in the law of nations, relative to Neutrals, which, he 
 
 tells
 
 IO THAT FREE SHIPS [Prop. I. 
 
 tells you, was omitted in all the codes that preceded him, 
 contends no farther, than that they mall be allowed to carry 
 on their trade as in times of peace ; and this with the ex- 
 ception of contraband. But, according to our princples, the 
 fame reafon which applies to contraband, applies to all nocent 
 cafes whatfoevcr. Hubner, in explaining contraband, fays, that 
 Neutrals were in the habit of carrying a particular fpecies of 
 commodity before the war, which becomes prohibited by the 
 very ftate of war, becaufe it affifts one or other, or both the 
 Belligerents. We fay, precifely in the fame manner, that they 
 have been in the habit, not of carrying a particular com- 
 modity, but fimply of carrying before the war ; which, if 
 perfifted in after the war, muft afliit. one or other, or 
 both the Belligerents : and, exactly upon the fame principle, 
 therefore, is this alfo forbidden. 
 
 Let us review Hubner, in his very definition of Neu- 
 trality. * Toute neutralite confifte dans une inaSfion en~ 
 * tiere relativement a la guerre, et dans une impartialite 
 4 exadte et parfaite, manifefte par les faits a l'egard des 
 c Belligerans ; en taut que cette impartialite a rapport a 
 ' cette guerre meme, et aux moyens directs de la 
 4 faire.'* 
 
 Again, in the fourth grand divifion of the duties of 
 Neutrality, he fays, ' Le grand devoir de tout Etat Neutre, 
 ; c'eft quil doit faire tout fon poflible pour etablir la paix ; 
 ' : et que pour cet eftet il doit employer fincerement fes 
 1 bons ofiiceSj a fin que la partie lejee obtienne fatisfaclion^ 
 
 * Hub. p. il. c. ii. f. i. See alfo p. i. c. iv. f. 4. ' Et en 
 effetje ne vois pus par quelle raiibn les Etats Neutres devroient 
 s'nterdire leur commerce ordinaire avec les Nations qui font la 
 guerre, on en vertue v.z quoi celled pourroient leur prohiber de 
 irafiquer avec chacutie d'elle, comme en terns de Paix pouvu 
 qu'ils abiiiennent de tout ce que a uii rapport direct a la guerre ; 
 c*ert a dire qu'ils reftent parfaitement Neutres.'' — See alfo 
 . ii. c. i. and ii, Commercer fur le meme pi*? que quand ils font 
 :> Pair- 
 
 < t'il
 
 Sec. I.] MAKE FREE GOODS. II 
 
 c s'ij fe peut, fi non, que du moins la guerre Jolt bkntot ter- 
 ' minee* 
 
 Now, I would afk the common fenfe of any one man, 
 lettered or unlettered, whether it is a proof of wifhing to 
 re-eftabiifh peace, or of a fincere employment of good of- 
 fices, when one of the Belligerents begins to be prefied by 
 the other, and, by confequence, to (rand in need of all his 
 military forces, at the expence of withdrawing a portion, 
 or perhaps the whole of the ftrength and vigour which had 
 been allotted before to the arts of commerce ; that a Power, 
 which had hitherto flood by, mould ftep in, and do that for 
 the Belligerent which he was no longer able to do him- 
 felf ? To come a little more into the detail and application 
 of this argument, let us fuppofe, as was the cafe with 
 France, a heavy duty upon foreign freight had formed an 
 almoft fundamental law of her own commercial code ; which, 
 in times of peace, was a kind of Navigation Ac!:, amount- 
 ing to an interdiction of foreign interference ; and that, of 
 a fudden, while engaged in war, wanting her failors, per- 
 haps her merchant-fhips, for hoitile expeditions, at the fame 
 time wanting the pecuniary and other fources of her trade, 
 which would thus be extinguifhed, fhe applied to nations 
 calling themfelves neutral, by taking oft this duty, or even 
 by bounties, to carry on this trade. Here is a proof how 
 neceffary this trade is to her exigencies, and how impofiible 
 it is to preferve it, confidently with her warfare. But where is 
 the man of plain underftanding, and uninterefted in the 
 queftion, who would not determine, that if the Neutral 
 accepted the offer, that initant he interfered in the war ? 
 But Neutrals do thus interfere, nay, they arm in order 
 to fupport their interference. Adieu, then, to the boafted 
 philanthropy of the Neutral, whofe great duty is to do all 
 he can for the re-efiablifhment of peace ! — Adieu to thofe 
 good offices which he is fincerely*'to employ, in order that the 
 injured party in the war fhould obtain fatisfaction ! For if, 
 5 * c -
 
 ii rKAi FFi.s JHTP3 [Prop. J. 
 
 ■ according to Hubncr's fuppofition, thcv can tell which is 
 the parih lefee^ and, in this cafe, he lhould happen to be the 
 irrongcr of the two, able, a-- well as endeavouring, to do 
 himfelf right, the Neutral, by interpofing his indirect, but 
 not lefs powerful afliftan.ee in favour of the other, rot only 
 becomes a party in the caufc, but on the \ cry word fide 
 of it ! 
 
 Thefe obfervations apply, very generally, to all the car- 
 rying trade; but they more particularly apply to that fpe- 
 cific claim in the firft article of the armed neutrality of 
 1780, to navigate (reel}' on the coafts, and trorn port to port, 
 of nations at war. In lb far as the coalring-trade of a nation 
 is more valuable and more necefiary to its exiftence than its 
 foreign commerce; in jult io far is the interpolation ot 
 Neutrals more powerful in its favour. That it is more 
 valuable, and almoft necefiary to exiftence, it would be 
 needlefs hereto prove, having been already lb often proved 
 in the works of many wife men ; but if proof were 
 wanting, and the theory yet flood in need of example for 
 fupport, the French themfelves, triumphant and gorged 
 with victory as they are by land, afforded one in this war, aU 
 mod: irrefiftible. We faw how foon the whole of their foreign 
 and colonial trade was diflipated and deftroyed by Britiih vic- 
 tories — we faw them airnoft fyftematically yield up their 
 colonies, and turn the whole body of their feamen into 
 ciuifers and {hips of war. But the coafting trade, from 
 port to porr, was abfolutely necefiary, not merely to their 
 comfort and luxury, but to the very poflibility of fitting out 
 thofe fleets and ciuifers, without which, to a certain point of 
 ftrengtb, they can never hurt us, were their armies ten times 
 more numerous and more enthuiiaftic than they are. The 
 efforts of Great Britain were, therefore, naturally directed 
 pgainft this necefiary trade ; and, by the painful vigilance 
 af'.-i active efforts of that gallant let of men, the officers and 
 friiors of the Br'tifh nivv, whom to honour is but to namej
 
 'Sec. I.] MAKE FREE COODS. 13 
 
 the exertions ol the French were crippled in their very ports. 
 Their fcattcrcd and ruined convoys (b often baffled in their 
 endeavours to enter the ports of maritime equipment, and 
 the confequent delay of months and years in the exertions of 
 An enemy otherwife fo active, are advantages, not fo bril- 
 liant, perhaps, but hardly lets ufeful than thole wonderful 
 victories which our fleets have fo nobly and fo uniformly 
 achieved. They afford a proof indubitable of the ne- 
 cellity of the coafting-trade to ail naval exertion in time of 
 ivar. 
 
 Now, to fupply this very necefflty, when a Belligerent 
 can no longer fupply it himfelf, is the ftupendous claim of 
 the Armed Neutrality ! What the decifion of a mind merely 
 candid and juft (for it requires not the aid of lights or 
 learning) mult be upon it, I leave to the common fenfe of 
 any one to determine. Certain it is, that if allowed, it is 
 m vain that victories ihali be purchafed at the expence of 
 rivers of blood ; lincc, unlefs they amount to the extermina* 
 tlon of the conquered, they mud and will rife again, through 
 this moil juft help of neutral exertion. Yet thefe are the 
 principles oi a man, a citizen of the world, the fru-nd of 
 mankind,* in the vety moment or laying down a rule, 
 founded, as he lays, in the primitive law oi univerfal juf- 
 tice, that neutrality is n:t to interfere in the war, and that 
 one of its grand duties is to do its utmofl, by fincere good 
 ofHces, to bring about the eitablifhrnent of peace. 
 
 It is really furpriiing to obferve the injufnee into which an 
 honeft, but mifdirected love of juf- ice will often hurry men, 
 when the mind is under the dominion of a particular bias, 
 or warped by the love or a favourite fyftem. Hubner pro- 
 feffes every where that Neutrals have a right totiade in 
 war as they had a right to trade in peace ; the unfoundnefs 
 
 : * Hubner, in hi; Preface.
 
 14 THAI FREE SHIPS [Prop. 1 
 
 of which doctrine, as an univerfal rule, I have been en- 
 deavouring to (hew. He is {tartled, however, by the terms 
 of his own premifes, when he comes to confider their right 
 to a colonial trade in war, to which they had no right during 
 peace. That trade having been generally forbiddem them, 
 and never opened except in cafes of neceffity in war, a ne- 
 ceffity occafioncd bv the preflure of the fuperior Belligerent, 
 a gleam of the injuitice alluded to comes acrofs him, and he 
 paufes before he allows its legality. He fees (for even he 
 is obliged to fee) that i; has, toui'e his own terms, ' Un rap- 
 i port direcl et iinmediat a la guerre, parceque les memes 
 
 * peuples neutres ne la font jamais, et n'ofent le faire en 
 1 temps de paix ; qu'il ne leur. eft ouvert qu'en temps de 
 
 * guerre, et a caufe de la guerre ; et qu'enhn au retabliflement 
 4 de la paix ils en font derechef exclus. 5 * He is obliged 
 to allow, therefore, that que/que incertitude hangs over this 
 part of the fubjecT: ; yet, without attempting to remove the 
 uncertainty— rwithout one fyllable to reconcile the dif- 
 ficulty — the very next fentence aflerts, l that he fees no 
 ' reafon why Sovereign States which are neuter ought to 
 1 refufe to themfelves fo ecnfidcrable an advantage as prefents 
 i it/elf, provided they abftain from fuppjying thofe colonies 
 1 with contraband.'! 
 
 Here, in fact, is developed the whole myftery of the fub- 
 je£t ; becaufe here, in fpite of all difguife, is the true reafon 
 of the claim: c Neutrals cannot refujc to themfehes jo confi- 
 der able an advantage ;' which, word it as delicate! v as they 
 will, is neither more nor lefs than to lay, that the wars ot 
 others, inltead of calling for all their lincere good office- for 
 the redrefs of the injured party, or, at leaft, for the re-eftab~ 
 liihment of peace, are, in. truth, the harveft of Neutral 
 
 * Hub. p. i. c. iv. f. '-. i lb, y. i, c, iv, f. 6.
 
 SeC. I.] MAKE FREE GOODS. 1 5 
 
 Powers, by making them the carriers of the weaker party.* 
 Whether that party is the one injured, or injuring, is no 
 where ftipulated ; for, in the works of Hubner, or Schlegel, 
 it feems indifferent which it is, provided the Neutral is em- 
 ployed ; and in that cafe the Neutral cannot certainly 4 refufe 
 to himfelffo confiderable an advantage.' 
 
 It is really revolting to obferve this contradiction, and 
 how little regard is thus paid to his own principles by Hub- 
 ner, though it is this, perhaps unwary difcovery, that leads 
 him, in the fame fpirit, to confefs, fpeaking of the eftabliihed 
 law, that enemy's goods fhall be lawful prize wherefoever 
 found: c Que celle des parties Belligerantes, dont'la marine 
 4 marchande, et par confequent aufli la marine guerriere ejl 
 c fort inferieure a celle de fon ennemi, n'infiftera jamais fur 
 
 * la veritedelamaximequenous combattons.'f He then goes 
 
 into 
 
 * This part of the argument is put with great force and 
 dearnefs by the Earl of Liverpool, in his Difcourfe on Neutral Na- 
 tions. He ends it with obferviug, that ' if this right were admitted, 
 it would be the intereft of all Commercial States to promote diffen- 
 iions amougft their neighbours.' 
 
 f Hub. p, i. c. iv. f. 5. It is curious to obferve the complete: 
 proof, in point of experience, which this observation received from 
 the Declaration; of the Courts of Madrid and Vcrfailles, inanfwer 
 to the Ruffian Declaration of an Armed Neutrality. Although 
 thofe two Powers had been uniformly famous in Europe for the le- 
 vered maritime laws againfl Neutrals, having been, perhaps, the 
 firft to enforce, and the laft to relinquifh, the maxim, not merely 
 that enemy's property is confifcable on board the ihips of a friend, 
 but alfo that other, that ' Robe d 'ennemi confifque celle d'anii ; ! 
 yet they were now, for the firft time, fully convinced o\ the in- 
 juftice of their conduct. They were feelingly alive to the in- 
 juries that the Northern Courts had fuftained. 1 hey liad dii- 
 covered how founded injuftice, how confonant with true mode- 
 ration, how advantageous even to Belligerents, were thefe princi- 
 ples, for the defence o\' which they themfelves were then actually 
 ut war ! It is fcarce necefl'ary to point out, however, the wonder- 
 tul changes which twenty years produce. Thefe principles, here 
 fo plainly affented to, were all fvvept away in the whirlwind of tne 
 French Revolution ; and the Directory discovered, in 1798, that 
 Belligerents are not only in the right to oppofe them, bur, by 
 their decree, confiscate all veilels, not merely vh :h 111 til catry 
 enemy's property, but enemy's manufacture. Bonaparte agam 
 
 d : fco v v:;
 
 T 6 THAT FREE SHIPS [Prop I - 
 
 into a dtfquilition, to prove that their acquiefcence is the 
 more juft, becaufe their profit in their commerce with Neu- 
 trals is much diminifhed in time of war, owing, as he ex- 
 prefsly itates, to the ruin of their own trade, the greater 
 confr-quent necemtv for the interpoiition of Neutrals, the 
 greater demand which the latter will therefore make 
 as the price of their afhiiance, and the greater charges 
 which they are reailv obliged to incur, in confequence of 
 the dangers they tun in the difficult fervice they have un- 
 dertaken. With due fubmiflion to thofe who approve this 
 writer, this reafoning is the ftrongeft that can be adduced 
 agair.it. his, own pofitions ; for the higher price that is paid 
 for neutral inter pofition, the ltronger is the proof of the 
 imperioufnefs of that neceflity to which the weaker Belli- 
 gerent is reduced The more palpable, therefore, the evi- 
 dence that the Neutral is interpofrng againft the honourable 
 and legal exertions of the fuperior Belligerent. It admits 
 alio, in a manner too undifguifed to be mifunderftood, 
 the real and fole object of the weaker Belligerent, and 
 of the Neutral carrier, in their endeavours to beat down 
 the lawful and juft oppofition fet up againft their moft 
 unlawful confpiracy ; namely, that the one may be 
 able to fight the longer ; and that the other may, 
 without dangt\\ put money into his pocket, for fupplyine; 
 him with the means of fighting. This would inevitably be 
 the confequence of agreeing to the principle contended for, 
 as a point of univerfal Jaw \ and whenever that point is 
 carried, there fcarce ever will be any end, except the moft 
 
 difcoversthat Kings, in this in.fi.incc at lea't, were more juft than Di- 
 rectors, and announces that the North, being about to arm in de- 
 fence oi" the liberty of Navigation * pent compter fur la France!' 
 Contra" this with the (ready, conliftent, and dignified conduct of 
 Great Britain, laying down the pi inc iple, on the fide of Belligerents, 
 is founded in real and natural right, and, under whatfoever 
 preffure, never departing from it thus kid dovn. 
 
 ihock-
 
 Sec. I.] MAKE FREE GOODS. lj 
 
 ing to a maritime war where the forces are nearly equal. 
 Since, although, one party may be weakened in the fhock, 
 his lofs will be fupplied, and his powers renovated, by the 
 ' good offices'' of Neutrals, which, if perchance, he fhould 
 in his turn acquire the fuperiority, would immediately be 
 transferred to his antagonift, (as in the true neutral fpirit 
 it ought to be); and fo on eternally, till one or other, or 
 both, perifh altogether in the conteft. 
 
 The fupporters of this claim imagine, that it is not 
 liable to fo warm an inculpation, becaufe the Neutral is, or 
 ought be, ready to ferve both parties with the fame readi- 
 nefs and zeal. According to all the theories, it is laid down 
 in due order, that neutrality is thrown off, by (hewing any 
 favour to one which is refufed to the other ; and this readineis 
 to aflift the fuperior when he lhall want afliftance, is thought 
 to bring all round again. But upon this it muft be remarked, 
 that complaint is not made fo much for a preference (hewn, as 
 an injury done ; that at the time of the act complained of, 
 the afliftance is not wanted by the fuperior; and although it 
 muft be owned, in all fchemes of morality, that men fhould 
 judge in every other perfon's cafe, as if that cafe was one 
 day to become their own ; yet, even in thofe cafes, judg- 
 ment is fuppofed to be given according to general rules of 
 action, applicable to all the world, and for the advantage 
 of all the world, not with a partial view to our own parti- 
 cular intereft. If, then, it is for the benefit of all the world, 
 that when two nations appeal to the fword, and the fur- 
 rounding nations have declared that they will take no part, 
 thofe nations fhould be loval to their declarations, and afliit 
 neither party ; it is not lefs a falfification of their word, 
 that they will aflift both. If this were fo, it would hold 
 equally good, if the indirect afliftance complained of was 
 extended into a more direct interpofition, in the cafe, for in- 
 fLmce, of actual military aid ; and then we {hould arrive at 
 
 c this
 
 iS THAT FREE SHIP'S . [PrCp. 
 
 i. 
 
 this lingular confequcnce in the reafoning, that a nation was 
 perfectly neutral, becaufe it fent an army of its own citizens 
 to cut one another's throats, on each fide of the queftion. 
 
 But I own, it is to me matter of aftonifhment, that writers 
 ihould flop here, and not carry the principle farther, fo 
 as to affect articles of acknowledged contraband. If this 
 right of navigation is really fo facred, and fo extenfive, 
 that I am quietly to fee my enemy's trade, (that fund from 
 which a maritime enemy ftrengthens the finews of maritime 
 war,) carried on under my eyes, pafs, as it were, through 
 my very hands, he lodged, perhaps, for a time within mr 
 very ports (for who knows that the right is not to extend 
 to Neutrals coming for refrefhment or repairs within the 
 dominions of the Belligerent ?) I fee no reafon why it fhould 
 not extend to contraband, provided there is no treaty. If 
 the claim is founded upon fo facred a privilege of commerce, 
 that no circumilances can modify or curtail it; if it is founded 
 upon the abfolutenefs of the freedom of the fea, and the en- 
 tire want of dominion, and confequent jurifdi&ion upon the 
 ocean, the fame foundation applies equally to contraband cf 
 war. If I cannot take a bale of enemy's cotton from a neutral 
 (hip, merely becaufe me has a right to traverfe the fea where I 
 have no authority ; as little authority have I to ftop and fearch, 
 or feize her, becaufe fire is loaded with cannon, though 
 avowedly for theufeofmy enemy. Yet Hubner agrees that 
 contraband of war is always feizable, although not the fub. 
 jeel of any treaty with the captor. Either, then, the reafon 
 for the principle in queftion is fa'.fe, or contraband of war 
 muft pafs free ; but the latter does not pafs free, even accord- 
 ing to him: the reafon, therefore, of his principle is falfe. 
 
 That I do not overflep the bounds of fair reafoning, in 
 carrying thus rv hthe principle of Schlegel's mafter, will at 
 leaftbe notf'ericd by Schlegel himfelf ; for thepraife of con- 
 fiftency muft certainly be an^orded him, who fays in terms, 
 that contraband, c quoique fondee fur le droit des gens conven- 
 i ' tic nth
 
 Sec. I.] MAKE FREE GOODS. IQ 
 
 1 tionel adtuellement en force, u'eft pourtant pas con forme 
 * au droit des gens naturel.'* By ccnventionel, he every 
 where means founded on treaty ; and as I fhall, perhaps, pre- 
 fently have occafion to fhew, both Schlegel and Hubner 
 muff, have moil inaccurate ideas of a law binding on all na- 
 tions, if they identify it with a law binding upon thofe only 
 who have made treaties. Be this as it may, the glory of 
 overturning everv received notion upon the fubjecf. moff. 
 certainly belongs to Schlegel. In this pafTage, the mafk 
 is fairly thrown off, and it is roundly and boldly afTerted, 
 that unlefs nations have had the precaution to ftipulate by 
 treaty againif. dealing in contraband, there is nothing in 
 the law of their duty to prevent them. 
 
 The fame inviolable right of commerce, which no Belli- 
 gerent can by the Law of Nature have power to control, will 
 extend aifo to the power of entering a blockaded port, which 
 even the articles of the Armed Neutrality, and the viiionaries 
 that defend them, hold to be unlawful. But why unlawful, 
 fince the Law of Nature permits a Neutral to vifit the Bel- 
 ligerent when he pleafes ? Above all, it encourages and 
 enjoins commerce, and they ought not refufe to tbemfelves fa 
 confiderable an advantage as they ivsuld derive from fuppiying 
 a blockaded port with necejfaries ! Here, then, is another in- 
 ftance of conflicting rights, which never can be enjoyed by 
 both claimants together. The befieo-ers have a riarht to 
 attack and block up a hoftile garrifon ; they hope to make 
 it bend to the force of their aflaults, or the vigilance of 
 their blockade. They therefore draw lines of circumvalla- 
 tion by land, and guard with ftrictnefs the mouth of the 
 harbour, all which they have a right to do. But a Neutral 
 
 * Exam. Im. 68, 126. Vattel allow?, that if a neutral natioi", 
 trades in arms and ammunition, fhip-timber, &c. it may continue 
 that trade with both the Belligerents ; buthe confines this expreisiy 
 to the cafe, where ' mon ennerui va acheter lui nieiue dans un pay* 
 * neutre.' D. de> G. iii. f. no, in. 
 
 C ? iu|}^' ;
 
 '10 THAT FREE SHIPS [Prop. 2. 
 
 appears with his right alio ; he is in friendmip with both, 
 he is not going to man the batteries of the befieged, or to 
 carry ftores of war to their exhaufted magazines ; he is 
 iimply going to trade with them in innocent articles, pro- 
 vifions for example, or to take within the neutral dominion 
 and protection of his Jhip all the moft valuable articles of 
 the place. Why may he not do fo, having the right to 
 traverfe the fea, and at the fame time preferve his neutral 
 relations, and more efpecially having a right, had he re- 
 mained at home, to receive within the protection of his 
 territory any part of the treafure of his belligerent friend ? 
 It has been anfvvered, becaufe this is interpofing directly in 
 the war ; becaufe the place being fully furrounded, there 
 is no hope of elcaping to the befieged ; they are, as it were, 
 in the ntuation of a conquered party ; the prey is half killed 
 in fair action: not only, therefore, no afliftance fhall be given, 
 but the capability of giving afliftance fhall not even be at- 
 tempted. But thefe propofitions, though it is impoflibleto 
 withhold our aflent from them upon other grounds, I own, 
 I do not fee the force of, upon the principles we have been 
 examining. I am fincere in faying, that if thofe principles arc 
 juft, to the extent claimed by the Neutral, I cannot fee what 
 law it is that is lb forcible upon the minds of the whole 
 world as to make them agree, even in the articles of the 
 Armed Neutrality itfelf, that a Neutral fhall not attempt to 
 elude a blockade. 
 
 Thefe obfervations apply alfo to breaches of an embargo, 
 which all agree, even to the Emperor Paul, may be legally 
 ordered, and when ordered, can never be broken without 
 fault. It was, iio doubt, his conviction of the facrednefs 
 ot this right of the Belligerent which made him give orders 
 for the Englifh mips, that endeavoured to break it at Riga, 
 to be burnt by way of punifhment. Here eminently, there- 
 fore, is an inftance where the champions of Neutrality them- 
 felves confefs that there are rights belonging to one nation 
 
 5 which
 
 StC. I.] MAKE FREE GOODS. 21 
 
 which may be difturbed, and indeed annihilated, by the fu- 
 perior rights of the other. Why they fhould be allowed 
 in thefe inftances of contraband, breach of blockade, and of 
 embargo, and not extended to the whole carrying the trade 
 of enemies, I am ferioufly at a lofs to hazard a conjecture. 
 
 There is yet another inftance of the interpofition of Belli- 
 gerents with Neutrals, too illuftrative of the fubjecl: to be 
 palTed over here. All mankind, except Schiegel, have hi- 
 therto confuJted their common fenfe, and fuppofed, that 
 the fubjects of a irate at war are really at war alfo, and 
 therefore liable to be attacked in their property and fhips. 
 The experience of the world, lince the world began, has 
 in confequence permitted Belligerents to make prize of the 
 private fnips of their enemy. The iuftice, however, of the 
 world, whatever was thought of the matter formerly, has 
 for a long time determined, that if the goods of a friend 
 are found on board, that cireumftance alone mall not con- 
 demn them, but that they ihall be fairly and honellly re- 
 stored. The reftoration, however, cannot, in the nature of 
 things, be effected without iubjecting the party to confide- 
 rable inconvenience. The chances of being damaged or 
 fpoiled, while frequently unfhipped ; of perifhing, if of a pe- 
 rifhable nature, on more j and the certainty of delay by the 
 interruption of their voyage, occafioning manifeff. lofs and 
 difappointment to the owners, are the almolt inevitable confe- 
 rences of this legal capture, even upon the moft immediate 
 and faithful reftoration. But who is to fuffer, or who is to 
 blame for this lofs ? The Captor exercifing the juft rights of 
 war ? certainlv not ; but the unfortunate Neutral, who, with 
 his eyes open, entrusted his fortunes to the protection ot a 
 party, who, he knew, was liable to be deprived of the means 
 of protection. We fee, then, how viilonary, partaking of 
 little lefs than the original Jacobinical madnefs, are all 
 fchemes of right and uty, not adapted to the actual nature 
 of man. We fee that it is not true, as has been fuppofed 
 by this well meaning profefibr, that Belligerents have only 
 
 c 3 rights
 
 2 2 THAT FREE SHIPS [Prop. I. 
 
 rights to exercife with refpeci to Belligerents; none with 
 reipect to Neutrals ; * they have, i:'i this very inftance, an 
 
 abioiute right to do what may occafion, as we fee, very 
 confiderable lofsand mortification to Neutrals, vet are whol- 
 ly without blame and without refponfibility, the misfortune 
 being founded, as Vattel has before well obierved,f in the 
 nature of things, and inevitable neceility. 
 
 But another argument for the principle now meets us, 
 more ingenious in its confrruclion, if not more convincing 
 in its effect ; and it is gravely brought forward too by the 
 man who is to review a judgment of Sir William Scott. 
 He borrowed it from Hubner,;}; who advanced it in the war 
 of fifty-fix; and he borrowed it from Michel, who advanced 
 it in the war of forty-five ;§ from what fophift it was bor- 
 rowed by the latter, it is of little confequence to enquire or 
 to know. 
 
 It is clear, fays their argument, by the allowance of Belli- 
 gerents themfelves, that the neutral territory can never be 
 attacked, vifited, or fearched, without a violation of neu- 
 trality. All enemy's property, therefore, which is in har- 
 bour, or on fhore, even though under the eyes of the other 
 Belligerents, is fafe, becaufe inviolable without the over- 
 throw of law. Now the fhips of a neutral (late belong to 
 the fovereign or the individual who equips them, and the 
 ports from which they fell. This is clear from the flag they 
 bear, and from their being always amenable to the laws of 
 their country, in whatfoever part of the fea they may be. For, 
 if it were otherwife, their crews would actually return to a 
 ftate of nature, might commit ail manner of crimes without 
 any control of magiflracy, and every veffel would, form fo 
 
 * Schlegel, 53, 54, 5.5. 
 •f D. c'.es G. I. iii. i. in. 
 % . bit. T. i. an, 212. 
 
 § ,,.yofit. des Mot. &c. du Roi de PruiTe, 
 
 many
 
 SeC. I.] MAKE FREE GOODS. 23 
 
 many independent republics, and be endowed with the rights 
 of peace and war. But as this would be too abfurd to be ad- 
 mitted, all mufl: acknowledge, that neut-al veffels upon the 
 Tea are within the frvereignty of the neutral {late ; and, con- 
 fequently, the principle, that free Ihips mike free goods, is 
 not arbitrary, but is derived from ihe nature of things and 
 the univerfal law of nations. 
 
 This wonderful difcovery, if it means anything, is intro- 
 duced in ord^r to found unon it a propofition, which would 
 indeed be wonderful if admitted, namely, that becaufe a 
 Swedifh fhip belongs to Sweden, (for the difcovery is 
 nothing more,) though fwimming upon the high feas, 
 though coafting from port to port of an enemy's country, 
 though pairing from colony to colony, and from the colonies 
 to the mother country, though employed, in fact., in the 
 domeftic fervice oftheenemv, perhaps half manned bvhim, 
 certainly tranfporting and exchanging his cargoes for him, 
 yet fhe in reality is not a fhip all this time, but Sweden 
 herfeif : at leaft, in all her rights and privileges to give pro- 
 tection, fhe is precifely and identically the fame as fo much 
 Swediih territory. 
 
 It requires little to refute this vifionary fophifm. If 
 gravely relied upon by the author who brought it forward, 
 he furely do3? not advert to the true nature of dominion, 
 which is fimply neither more nor lefs, than a right which 
 a people have to do any act, of whatfoever nature, within 
 certain diftriefcs, in confequenee of the abfolute power over 
 thofe diflricls which they pofTet's. Sweden is thus unde r 
 the dominion of its inhabitants. That hardy and high fpi- 
 rited race has always vindicated its independence ; but 
 could Sweden float like her (hips through the fea, or wan- 
 der, like hordes of Tartars or Arabians, through deferts 
 which no body claimed, and fhould fhe be expofed in her 
 progrefs to encounters with other nations that were Beilige- 
 c 4. rents,
 
 24 that free ships [Prop. r. 
 
 rents 5 her fovereign inviolability might be attacked by 
 others, every moment that (he ufed her locomotive power 
 for the purpofe of annoying them. Confequently, if in her 
 proorrefs {he adopted, or had originally conceived J* the defign 
 of doing what was hoftile to thofe under whofe dominion 
 fhe mould happen to come, or whom fhe fhould happen to 
 meet in places where no dominion was paramount to both, 
 the rights of examination and judgment according to law 
 would inftantly accrue. 
 
 The true reafon, therefore, is founded, not in a pretended 
 ri^ht of dominion over the fea, which is, even in thefe times, 
 either wilfully or ignorantly fuppofed ; not in any diftinc- 
 tion which is made between the Swedifh fovereignty with- 
 in the planks of its (hips and the fhores of its territory, 
 but in the fnnple circumftance, that, from their power oi 
 moving over the face of the globe, the goods of enemies in 
 neutral mips are called forth into action, may be ufed directly 
 to the annoyance of the other Belligerent, and at very leaft are 
 working, while in the courfe of trade, the direct advantage 
 of thofe who fhip them. In this point of view, therefore, 
 it matters little whether it be a fhip or a waggon, and the 
 reafoning of Schlegel upon the difference between maritime 
 and continental war is, like moll: of his other fophiitries, eafy 
 to be examined, and never Handing the touch of examination. 
 We (late, therefore, in this reafoning, nothing but a plain, 
 known, and received maxim, that no nation, profefiing neu- 
 trality, fhall affift either Belligerent in the war, whether 
 endowed with ftationary or locomotive power. The for- 
 mer will make not the leafl difference, either in the princi- 
 ple, or in the rights founded upon it ; for, if the Sovereign 
 of aftate that pofleffed not a fhip in the waters, aided, com- 
 
 * It is to be obfervert, that the Swedifh convrv fet fail from 'V 
 Baltic with inftrucrions to re lift the sxcrcile oi therghtoi i^a:A. 
 if attempted, 
 
 for tee
 
 &€C. I.] MAKE FREE GOODS. 1$ 
 
 forted, and encouraged one Belligerent againft the other, his 
 neutrality would be inftantly broken, and the right of com- 
 plaint and of punilhment would as forcibly accrue, as if his 
 fleets had engrofTed the carrying trade of the world. For 
 example, if he fuffered him cxclufroel-j to make levies in his 
 territory, never having done it before, and exprefsly to be 
 employed againft the other party ;* if he furnifhed him 
 with corn, never having previoafly lent it him,t and expref- 
 fly to be employed for the equipment of an expedition; if he 
 allowed him to march an army through his country, ex- 
 prefsiy to invade the other more commodioujly ; if he lent hint 
 a ftrong place on his frontiers, for the purpofes of alternate 
 retreat or annoyance,]; or fold him arms and ammunition, 
 or equipped him again with the means of offence, of which 
 the fortune of war had diverted him ; in all thefe cafes, the 
 Belligerent injured might prevent him by every means in 
 his power, as much as he might prevent the actual attempt at 
 afliftance upon the fea, and even, if unredrefTed, to the denun- 
 ciation of war. Thus alfo, though a maritime Neutral power 
 {hould ftri&ly abftain from carrying the trade of a Bellige- 
 rent, or fupplying him with contraband ; yet, if he opened 
 his ports to his privateers for the purpofes of hojiile equipment ; 
 if he gave himlhelter for his prizes, § or lent him his courts, 
 or fuffered him to ereif. his own, for the purnofe ofcondemn- 
 
 * Vattel, 1. iii. f. no. + lb. % lb. 
 
 § The governors and niinifters of the United States, during this 
 war, have, in many i«(tances, exhibited admirably clear proofs of 
 knowledge in the lawsof neutrality, and offpirit to enforce them in 
 their contefts with the philofcphers of France : not only refuting their 
 attempts to change the laws in this inftance, by innTting upon the li- 
 berty of feizing Belligerent property within the American jurifdic- 
 tion ; but enforcing that refutation by reiloring prizes thus made. 
 See the long note trom Adet to the American Secretary of State, 
 5 Debrett'a State Papers, 263 to 294 ; and the Secretary Pickering's 
 rnoir. able aniwer, 6 Deb. 281 to 339, 
 
 Here
 
 2 6 THAI FREE SHIP [PrOJJ. I. 
 
 ing them ;* in all thefe cafes, alio, there would be a breach 
 of neutrality, and caufe for war. 
 
 Here then is the true principle : the actual atHffance given 
 to a Belligerent, whether ftationary or tranfitory. There 
 is, however, a mod material diftincrion between them, 
 which, far from depriving the injured Belligerent of-his 
 right of prevention, calls tor it in a ten-fold degree; be- 
 caufe the injury is attended with ten-fold aggravation. 
 When pretended Neutrals lend their Clips to the trade of 
 the enem / ; the afixftance, from havi;:g been pafllve, as in 
 the other examples, becomes inflantiy active : it not only 
 affords aid, but carries the fupply ; and the force and power 
 of the mifchief is thus felt in augmented proportion. The 
 dominions of a maritime Belligerent being, befides, fcattered 
 ever the face of the whole world, new difficulties arife t» 
 him in the courfe oi war. \ lie variety oi his colonies, iflands, 
 hfheries, and factories, require a minute diverfion of his 
 protection, which, for the moil part, embarrafies him. The 
 locomotive afnilance ot hi 5 neutral friend does him, there- 
 fore, here the moil active and cfiential iervice, and marks 
 the partiality 01 it in exact proportion as it is active and 
 eiTential. Suppofing, then, for a moment, the dominion 
 within the fides of a iiiip to be the fame as the dominion 
 of the country which equips it, the complaint here is not {'0 
 much that {he affords protection, as that (he actually car- 
 ries the property protected j an injury which it is phyfically 
 irnpofiible fcr protection on more to commit. In the latter 
 cafe, while the property lies harmlefs in the (tore, the 
 harmlefs rights of friendfhip are chearfully allowed ; in the 
 former, actual mifchief to another is (o interwoven with 
 thofe rights, that Neutrality is broken, and impartiality at 
 an end. 
 
 * As was attempted by the French in the commencement of 
 this war, in endeavouring to fct up a Coiifular Tribunal, with Admi- 
 ;vitv power?, in Denmark and othei Neutral States. 
 " ' ' Thefe,
 
 SeC. I.] MAKE FREE GOODS. 27 
 
 Thefe, then, are the fimple and plain principles upon 
 which we proceed ; and they will alio eafily afford an an- 
 swer to an obfervation which is made with no fmall con- 
 fidence by the Danifh ProfeiTor, that neutral rights are more 
 rcfpetled in a continental than a maritime war. As a proof 
 of this, he fays, it is ever held unlawful to plunder indi- 
 viduals who do not bear arms, although fubjeds of the ene- 
 my himfelf; and that Belligerents permit Neutrals to pafs 
 through their countries to the great fairs that are held upoa 
 the Continent at ftated time c . * 
 
 Now, ir. the firft place, the obfervations are falfc in 
 point of fact ; but, if true, they will not bear the conclu- 
 fions built upon them. Did the Profeflbr never hear of the 
 fack and pillage of towns, and the murder of innocent per- 
 fons, in a ftorm ? Did he never hear of the ravage of the 
 Palatinate, where hundreds of harmlefs cottages were laid 
 fmoaking in ruins by the mail accomplished and moff. hu- 
 mane of his time, reduced, by the inferiority of his num- 
 bers, to wafte a whole country, in order to prevent the ir- 
 ruption of the enemy ? According to the accounts of 
 hiftorians, in the act of blaming him, all the evil that he 
 did, appeared to be neceffary, and, if he facrificed the prin- 
 ciples of humanity, it was to the duties of a General and 
 the rules of war.f In later times, has the Profeffor never 
 heard of inftruclions from a French Minifter, in the fame 
 fpirit, to make a downright defert in Weftphalia, as a mere 
 plan of defence ?j At leaft, did he never hear of fuch 
 
 things 
 
 * Examen. Impar. r, 2, 46, 
 
 + Voltaire, Siec. de Louis XIV. .-Mod. Un. Hill. 21. 3-2. 
 
 X See the Infractions from Eel'eifle to Contades, taken amongft 
 the latter's papers alter the battle 01 Minden. Thefe are fome 
 
 of the extract-. ' After obfen^ng the formalities due to 
 
 ' the Magistrates of Cologne, you muft feize on their great ar'il- 
 ' lery by force, telling them that you do fo for their own de- 
 ' fence.' « You muft deftroy every thing which you canr.ot 
 
 * confurr.e, fo as to make a downright defert of Weftphalia.' — 
 
 * Though the Prince of Waldeck is outwardlv neutral, he is verv 
 
 « ill
 
 iS THAT FREE SHIPS [Prop. I. 
 
 things as contributions from States that had never offended ; 
 fuch, in this very war, as Frankfort and Leghorn, v/here the 
 failure in fupplying the demand brings down inftant punish- 
 ment by fire and fword ? One would think that he would 
 have certainly relinquifhed his remark, had he ever reflected 
 on thefe or other feverities ; the frequent bombardments 
 of the mo ft beautiful cities, crowded with innocent and un- 
 armed inhabitants ; fuch defolation as was pracliied at Dref- 
 den, in the i'even years war, where whole fuburbs were 
 fired by the hot balls of the town itfelf, and where the lives 
 of hundreds, and property of thoufands, were facrificed 
 to the cruel neceflity of the terrible ftate of war.* Could 
 we flop the current of the argument for a few moments, 
 and examine the tranfaclions of continental campaigns, 
 what immenfity of proportion would the injuries done to 
 
 1 ill difpofed, and deferves very little favour. You ought, there- 
 
 * fore, to make no fcruple of takingall you find in that territory : 
 
 * but that mult be done in an orderly manner, giving receipts, &c. 
 ' &c Zippe and Paderborn are the moll plentiful ; therefore they 
 
 * mujl be eaten to the roots. '—The French defended this upon the 
 legality of wafting a country, in order to cut off fubfiftence to the 
 
 enemy. Ann. Reg. 1759. Again : obferve the orders oi 
 
 Broglio, when conqueror in Hanover, to the civil and unarmed in- 
 habitants. ' Whereas many civil officers and principal inhabitants 
 
 * of Brunfwick and Hanover have withdrawn themfelves, &rc. 
 
 * they are ordered to remain in their houfes, with their cattle, 
 ' upon pain cf having their houfes pillaged, and levelled nxith the 
 
 * ground, and thimfcliies funifbed according to the exigency of the 
 
 * cafe.' Ann. Keg. 1761. Severe as all this appear*, it is, per. 
 haps, not indefenfible by the laws of war. But even if they arc 
 not, as Schlegel obferves upon the fa ft of fuperior continental 
 regularity, they are proofs in full of the eafy ra(hnel> with which a 
 viiionary aflertion is made. 
 
 * See the Memorial of the King of Poland, published at Vien- 
 na on the railing the fiege of Drelden. Smollet's Hi ft. of Eng. 
 15. 49; and his other Memorial prefented by the Saxon Miniftcr 
 <o the Diet of the Empire, 24th Nov. 17.^8. Its force was fome- 
 wl.ut diminiihed as to Jails by the anfwer of the Prullian Minifter; 
 but whichsoever is true, enough is left lor the fupport of the ar- 
 gument ; the conteft being only as to the quantum of the de- 
 ■h"nC"t«< " ■ See Ann. Regiitcr, 17,58. 
 
 un-
 
 6tfC. I.] MAKE KflEE GOODS. 2(j 
 
 unarmed inhabitant?, both of Belligerent and even Neutral 
 States, bear to the few comparative feizures made upon the 
 feas ! Nor mould we draw the examples from lavage or 
 ignorant Commanders, but from the deliberate determinations 
 of a philofophic King of Pruflia, a good-natured Turenne, 
 and even of the almolt perfect Guftavus Adolphus himfelf. 
 
 The whole of Schlegel's errors proceed, as it appears to 
 me, from a want, I cannot fay of a right undemanding, 
 but of a right ufe of fixed and clear principles. Let him 
 only once bear in mind that firft and comprehenfive rule, 
 embracing almofr, all the laws of war, both by fea and by 
 land, '•that we may do whatever mifchief is not unneceffary \ 
 and all, or nearly all the feverities that have been touched 
 upon, both by fea and by land, may be perfeitly recon- 
 ciled. 
 
 And here I might clofe the difcuffion of the principle, 
 if the opinion I have embraced depended for fupport, or 
 could ever obtain the authority of law, on the private fpe- 
 culation of an individual in his clofet. But as this cannot 
 be, even in a matter that depends eminently upon the de- 
 terminations of reafon and general equity ; I proceed to 
 (hew that this is not a mere private fpeculation, unfounded 
 in experience, but drawn from the authority of thofe wife 
 and enlightened men by whofe virtue and fcience the 
 governors of the world have generally been directed, anx! 
 siuft alwavs be influenced. 
 
 SECOXD
 
 go THAT FREE SHIPS [Prop. I. 
 
 SECOND SECTION. 
 
 the, reasoning from authority and custom. 
 
 IT is remarkable, that from the time when the Law of Na- 
 tions began to exift as a fcience, fince which, if we take it 
 from the publication of the Conjolato dclMare^ a period of full 
 five hundred years has been revolving, the ft ream of au- 
 thorities, until the middle of the iaft century, has been 
 againft the principles of the Armed Neutrality. In that 
 latter time, the provifions of the Conjolato were boldly called 
 in queftion, and, in the fir ft inftance that I <nQ ,/ or, an at- 
 tempt was made to eftablifh the contrary. I allude to the 
 famous Bxpofition del Motifs ox the King of Pruffia, addrefied 
 to the Minifters of George II ; famous, however, more for 
 having called forth the wed-reaioned piece of law which 
 formed its anfvver, than for any merit of if? own, for 
 foundnefs of principle, or cogency o r deduction. Until the 
 year 1752, when this diplomatic piec appeared, the law, as I 
 have reaibned it, feemsto have been admitted. The claim 
 had, indeed, often been ftarted by particular countries ; but 
 it was ftarted without fuccefs even by De Witt ; and 
 whenever it was granted, it was granted as a boon, ob- 
 tained by the ilipulaticns of particular treaty. No one 
 authority, that I can find, before this, hi i ever laid claim to 
 it as a natural right ; and even Schlegel allows that it was 
 then, for the firft time, that the rights of Neutrals were 
 completely difcufled. k II (roi de Prufle) fit imprimer unc 
 * defence publique, dans laquelle les Droits du Pavilion 
 ' neutre furent^ar la premiere fois completement difcutis.* 
 
 Schleg. 5. 
 
 w<?
 
 SfC. I I.J MAKE FREE GOODs. *i 
 
 We cannot help, therefore, paufing in this place, to ob- 
 ferve the artful manner in which he has treated the hiftorv 
 of the claim : for, in the outlet of his work, he would have 
 the work! think then:, in the beginning of the fixteenth. 
 century, the Ctnfolatc was let afide (in form, I fuppcfe, by 
 a kind of general convention), and that other laws, more 
 confonant, according to him, with neutral rights, were 
 eftablifhed in its place. Certain it is, he leaves it to be 
 iuppofed, that it was about that time that the merchants 
 obtained the abrogation of the old law, in coniequence of 
 which it was determined, that, a Neutral veflel fhould no 
 longer be flopped on account of her having enemy's pro- 
 perty on board .* 
 
 That fuch an aflertion, if he meant it, is moft erroneous, 
 we fhall foon have occafion to prove ; bur be it true or falfe, 
 the confefTicn in the paflas,e above cited is totally repug;nau r 
 to it; and thus from hh owr. authority is demonstrated his 
 own inconhftency. 
 
 In tracing the hiftorv of autho: -ties, let us come, then, to the 
 confideration of the famous C: tplato, that venerable pile of 
 maritime and commercial law, whofe origin isot inch remote 
 antiquity, and rooted i'o deeply in the annals of time, that 
 
 * ' Dan? ies j ime 8c i ;me " : e< i< >, prefque tnr.s !es traitt ■ furcnr 
 ' faits d'apres ce principe. Mais coniuie il en refultoit mille chicanes 
 ' lorfqu'il agillbit de decider de ia propriety (ies cargaifons, fur- 
 ' tout depuis que Ies marchands enrent abundonne l'ancienne cou. 
 ' tunie de fuivre leurs marchandifes fur Ies navires, & comme de: 
 c lors la cargaifon fe trouvoit foiivenl appartenir ii diverfes propria - 
 ' taires, ies negocians qui iaifoienl 1c commerce maritime defirerent 
 ' une autre diipolition gene rait- qui tenciit mieux.a Ies garantir des 
 c mauvais trait o, nens de> ( orfaires. 1 ■ fi'.t e. r i ecu f-'quence determine 
 ' qu ? on n'auroit plus egard an proprietaire de la cargailon, mais a. 
 * celui du vaifleau ; — qu'un Vaiiieau nemre ne pourroit plus etre 
 ' arrete parce qiril auroit a bord c • i ." ,! . • lifes ennenues. & 
 ' encore moms parce qiril feroit deitinc pour qnelque port enr 
 ' fauf toute fois le cus ou il ftroii chai -'on appelie con- 
 
 1 irebande de guerre. 
 
 no
 
 3a THAT FREE SHIPS \_Pl'Op. U 
 
 no one can tell with certainty at what period it was com- 
 pofed.* Be this as it may, it was the received rule of Conduct 
 which governed the greateit maritime nations: was the oracle 
 of their tribunals, and decided queftions of prize, whether re- 
 lating to the property of enemies or neutrals, or abandoned 
 to fortune without any owner. This ancient compilation 
 contains the constitutions of the Greek and German Em- 
 perors ; of the Kings of France, Syria, and Cyprus; of 
 Minorca and Majorca; of the Venetians and Genoefe. 
 Greater authorities can fcarcely be found, and need not be 
 required. The German Emperor at that time reigned 
 paramount in the Netherlands, and on the fouthern fhores 
 of the Baltic ; and Conftantinople and the two Republics 
 were, as is well known, the arbiters of trade and the lords of 
 the lea. Thefe constitutions, therefore, governed by far the 
 greater and the moft important parts of the commercial 
 world. 
 
 The eclxxiii. chapter of this compilation contains the 
 following provifions: 
 
 ' If an armed (hip, or cruifer, meets with a merchant vef- 
 l fel belonging to an enemv, and carrying a cargo, the pro- 
 1 perty of an enemy, common fenfe will fufficiently point out 
 
 * I cannot do better on this fubject than transcribe a note of Dr. 
 
 Robinfon, prefixed to his translation of fume pafla^es in the Con 
 
 iblato :-— 
 
 4 With refpecf. to its antiquity, the reader is referred to the 
 table prefixed to the Italian editions; in which it is fpecificallyaf- 
 lertcd to have been received at Koine in the year 107;; and 
 at various places, at various periods, through the mh, 12th, and 
 13th centuries. But let him confult alfo Giaimone's Ili.di Napoli, 
 lib. xi. chap. 6. in which, according to foir.c opinions, this com- 
 pilation is iupuoied not to have been made till the tune of 
 Louis IX. of France, towards the middle of the 13th century. 
 It is, however, generally allowed to have been compofed from 
 the Amalphitan Table ; and as that is fuppofed to have ex- 
 hied as a body of let laws, of great and cxtenfive authority in 
 the Mediterranean, from the clofe of the nth century, there 
 may, perhaps, be no great variation in the fubftance of thefe two 
 accounts.' 
 
 what
 
 SrC. II.] MAKE FREE GOODS. 33 
 
 what Is to be done : it is, therefore, unnecefiary to lay down 
 any rules for fuch a caie. 
 
 * If the captured veffel is neutral property, and the cargo the 
 property of enemies, the captor may compel the merchant veffel 
 to carry the enemy'' s cargo to a place of fafety, where the prize 
 may be fecure from all danger of re-capture ; paying to the vef- 
 fel the whole freight which fhe would have earned at her de- 
 livering p'jn ;* and this freight Jhall be afcertained by the 
 Jhip's papers ; or, in default ofneceffary documents, the oath 
 of toe maflcr fail be received as to the amount of the 
 freight. 
 
 4 Moreover, if the captor is in a place of fafety, where he 
 may be fecure of his prize, yet is defirous to have the 
 cargo carried to fdme other port, the neutral veffel is bound 
 io carry it thither : but for this fervice there ought to be a 
 compenfation agreed upon between them ; or, in default of 
 any fpecial agreement, the merchant veiTel fhall receive for 
 that fervice the ordinary freight that any other veiTel would 
 have earned for fuch a voyage, or even more: and this is to 
 be unuerftood of a fhip that has arrived in the place where 
 the captor may fecure his prize; that is to fay, in the port 
 of a friend ; and going on an ulterior voyage to that port to 
 which the captor wimes her to carry the cargo which he 
 has taken. 
 
 4 If it fhall happen that the mafter of the captured vefTel,, 
 or any of the crew, fhall claim any part ofthe cargo as theii 
 own, they ought not to be believed on their fimple word, 
 but the fhip's papers or invoice mall be infpefted ; and, in 
 defect of fuch papers, the mafter and his mariners fhall be 
 put to their oaths ; and if, on their oaths, they claim the 
 property as their own, the captor fhall reftore it to them ; 
 
 * Bynkerfhcck, nearer to us by fix hundred years than the Con- 
 folaio., while approving the former part of this article, rejects the 
 right to height, becaufe it lias not been earned. ~*!%uejf. Jur.PuL, 
 cap, xiv 
 
 r> re -
 
 34 THAT FREE SHIPS \_Pmp. I, 
 
 regard being paid, at the fame time, to the credit of thofc 
 who fwear and make the claim. 
 
 c If the mafter of the captured veflel fhall refufe to carry 
 the cargo, being enemy's property, to fome fuch place ot 
 fafety, at the command of the captor, the captor may fink 
 the veflel, if he thinks fit, without control from any power 
 or authority whatever ; taking care to preferve the lives 
 of thofe who are in her. This muft be underftood, how- 
 ever, of a cafe where the whole cargo, or, at leaft, the 
 greater part of it, is enemy's property. 
 
 c If thefhip fhould belong to the enemy, the cargo being, 
 either in the whole or in part, neutral property, fome rea- 
 ionable agreement fhould be entered into on account of the 
 fhip, now become lawful prize, between the captor and the 
 merchants owning the cargo. 
 
 ' If the merchants refufe to enter into fuch an agreement, the 
 captor may fend the veflel home to the country whole com- 
 miflion he bears ; and in that cafe the merchants fhall pay the 
 freight which they were to have paid at the delivering port. 
 And if any damage is occafioned by this proceeding, the 
 captor is not bound to make compenfation ; becaufe the 
 merchants had refufed to treat reflecting the fhip, after 
 it had become lawful prize ; and for this farther rea- 
 fon alfo, that the fhip is frequently of more value than the 
 cargo (he carries. If, on the other hand, the merchants are 
 willing to come to a reafonable agreement, and the captor> 
 from arrogance, or other wrong motives, rerufes to agree, 
 and forcibly fends the cargo away, the merchants are not 
 bound to pay the whole, nor any part of the freight j and, 
 befides, the captor fhall make compenfation for any damage 
 he may occafion to them. 
 
 c If the capture fhould be made in a place where the mer- 
 chants have it not in their power to make good their agree- 
 ment, but are, neverthelefs, men of repute, and worthy to be 
 trufted, the captor fliall not fend away the veiTel, without 
 
 being
 
 SeC. II.] MAKE FREE GOODS. 36 
 
 being liable to the damage; but if the merchants are not 
 men of known credit, and cannot make good their ftipulated 
 payment, he may then act as it is above directed.'* 
 
 Such exprefslyare the provifionsof the Confolato del Mare , 
 fome of which have ftood the tele of ages, through all the 
 wonderful alterations in manners and jurifprudence which 
 Europe has feen ; an abundant proof of their deep foundation 
 in the trued principles of reafon and juftice. If proof, 
 however, were wanting, I feek no other, than to find thofe 
 at leaft of them, that form our immediate fubject, approved, 
 and adopted word for word, in the writings of three men, 
 all of them foreigners, of countries whole intereft it emi- 
 nently is to fupport this Neutral claim ; but who, if it was 
 not, muft for ever ftand at the head of the whole world's 
 college of civilians, for experience, learning, and good 
 fenfe. The writers I mean, are no lefs than Grotius, 
 Bynkerfhoek, and Heineccius, And firft of the wife, and 
 liberal Grotius. 
 
 He at leaft will not be fufpected of being a partial or inter- 
 efted advocate in cur favour, even if the whole tenor and 
 plan of his book did not (hew that it was written for 
 the world. During the firft part of his life, his country 
 was Dutch, his interefts were Dutch; when driven from 
 his home, his afylum was France ; and when adopted into 
 another State, that State was Sweden. How well, and how 
 zealoufly he was difpofed to aflert the privileges of the latter 
 againft this very England, with whom the now prepares to 
 quarrel ; his hot and eager conteft for precedency with the 
 Englifh Ambaffadors, fufficiently demonftrates.f But he was 
 actually, befides, the great champion for the freedom of na- 
 vigation; being the firft to pull down the dominion of the 
 fea, (alfo againft the pretenfidns of England ;) and he lived 
 
 * This translation is by Dr. Robinfon, 
 f Bmigny Vie de Grot. 
 
 d 2 in
 
 36 THAT FREE SHIPS [Prop. I. 
 
 in a time, when his countrymen were railing to its height 
 the fource of' their wealth, by rendering their State the em- 
 porium of trade, and becoming the carriers of the reft of the 
 world. 
 
 From fuch a man little could be expected in favour of 
 any tyrannical pretentions ; ftill lefs of pretentions that clog 
 the freedom of navigation ; and mere particularly of Dutch 
 or Swciifh navigation. Yet, as has been faid, he adopts 
 the rule of the Con folate^ that enemy's property fhall not 
 be covered by Neutral veiTels ; and he, as well as Heinec- 
 ciu?, adopts it from a chapter in which, they exprefsly ftatc, 
 that controverfies of this fort are handled.* Yet, ftrange 
 to fay, Hubner, from what caufe I know not, alTerts, in 
 terms in his preface, after ftating that the Confolato relates. 
 amongft other things, to capture, and recapture, ' ni les 
 1 unes ni les autres ne fauront etre cTaucun Jecours a ccux 
 i qui voudroient difcuter les droits des nations Belligerantes 
 * au fujet de la navigation des peuples neutres'.f Whether 
 Hubner had carried his refearch, or his zeal, fo high as to 
 defpife the aimtance of this compilation, it is not for me to 
 enquire; but Grotius at kaft paid it that deference, which 
 
 * Grot, de Jur. Bel. iii. 1, 5 r.otis. ' Ub'rt*X inftituto traclantui 
 hiijus generis controverfia;" Heinec. de Nav. ob Vec Merc 
 Vet. Com. cap- viii. 
 
 f Other readers will, perhaps, bemore difpofed to efteem it ava- 
 ilable, but hidden treaiure, with the very refpectanle names of 
 Caui-Regis, Vaiin, and Emerigon, than to join with fpeculative 
 theorift; in terms of difrefpect, calling to mind the words of Mr, 
 Emerigon who avs, of this work, and of Hubner's criticifm on it : 
 ' Get auteur, aya:;t trouvc dans le chapitre 273, des did/tons eon. 
 ' traires ..' fen ijft.nt, a etc de mauvaife humeur, contre l'ouvrage 
 ' entier ; mai.s ii l'ciit examine avec quelquc foin, il le f'erroit con- 
 
 * vaincu, que les decirions, que le confulat renferme, font i'ondees 
 ' fur le droit de gen... Voila pourquoi elles riunirent les fujf rages 
 
 * des nations ; elles ont iburni une ample matiere, aux redacleurs 
 
 * de l'ordonnanee de 1681 ; et malgre l'ecorce Gothique que les 
 *■ enveloppe quelquefois on y admire l'elpi it de juitice, et d'equitc 
 
 * que les a dicteea.' 
 
 Dr. Rbblnfon's tranflat, of the Confolato,
 
 SeC. II.] MAKE FREE GOODS. nn 
 
 as an authentic monument of what was thought and prac- 
 tifed by our anceftors, it mult general!) command, and al- 
 ways defcrve. 
 
 Let us now then examine the opinions of" Grotius himfelf ; 
 premifing, however, that he is not treating of maritime 
 matters in particular, neither does he confine himfelf to the 
 land ; but that it is principles which he lays down ; and that 
 he fpeaks generally of the duties of Neutrals and the rights 
 of Belligerents. ' A queftion,' fays he, ' often arifes upon 
 4 what is lawful, with refpeci to thofe who either are not, 
 4 or profefs that they are not enemies, yet f apply the enemy 
 4 with any fort of commodities. For there were formerly, 
 4 and lately, very {harp contefts upon it, fome contending 
 4 for the freedom of commerce, fome for the aflertion of 
 4 the rigours of war.'* He then divides the articles of Neu- 
 tral trade into three claries : one, confiftinsr of things im- 
 mediately ufeful in war ; one, of no ufe at all ; and one, of 
 a doubtful or double nature. As to the nrft, he is clear, 
 that whoever fupplies them becomes an enemy himfelf, 
 without making any difference, like Sch!ege!,f between po- 
 fitive and general law ■: the fecond, he diimiffes as furnifh- 
 ing no room for examination : the third, forms the fubjecl 
 of more extended difcufiion. It is here that he lays down 
 thofe general principles, from which all that I have adduced 
 has been extracted and ramified : and it is here, that he ex- 
 plains himfelf more minutely on the authorityof thofe articles 
 of the CmfAato del Mare that have been cited. Thefe are 
 his words. 4 In tertio illo genere ufus ancipitis, diftingu- 
 4 endus erit belli flatus. Nam li tueri me non pofium nifi 
 
 "' De Jur. Eel. 1, iii. i, 5. ' Sed et quacftio incidere foler, 
 •' quid liceat in eos qui hoftea non funt aut dici nolunt, fed hoftibus 
 c res aliquas fubminijlrant. Nam et oiirn et nuper de ea re acritei" 
 • 1 ui'tatum fcimus'cum alii belli rigorem, alii conimerciorum liber- 
 ' tatem defenderent.' 
 
 J Exam. Impart. 60, 116. 
 
 * f 
 
 l 2 IM )'
 
 3§ THAT FREE SHIPS [Prop. I. 
 
 * qua mittuntur intercipiam, neceflitas, ut alibi expofuimus, 
 4 jus dabit, feu Tub onere reftitutionis, nifi caufa alia aecedat. 
 
 * Quod fi juris mei executionem rerum fubveclio impedierit, 
 4 idque fcire potuerit qui advexit, ut fi oppidum obfeiTum 
 c tenebam, fi portus claufos, et jam deditio aut pax exfpec- 
 4 tabatur, tenebitur ille mihi de darr.no culpa dato, ut qui 
 ' debitorem carceri eximit, aut fugam ejus in meam fraudem 
 4 inftruxit ; et ad damni dati modum res quoque ejus capi, 
 4 et dominium earum debiti confequendi caufa quasri poterit. 
 4 Si damnum nondum dederit fed dare voluerit, jus erit re- 
 4 rum retentione eum cogere ut de futuro caveat obndibus, 
 4 pignoribus, aut alio modo. Quod fi pneterea evidentiffima 
 4 fit hoftis mei in me injuftitia, et ille eum inbello iniquif- 
 4 fimoconfir?net, jamnon tantum civiliter tenebitur de damno, 
 4 fed et criminaliter, ut is qui judici imminenti reum mani- 
 4 feftum eximit ; atque eo nomine licebit in eum ftatuere 
 4 quod delicto convenit, fecundum ea quae de pcenisdiximub ; 
 4 quare intra eum modum etiam fpoliari poterit.'* To this 
 inuft be added the long chain of hiftorical evidence contain- 
 ed in his note, but which it is far too long to detail at large. 
 
 Now, upon thefe pafiages we may remark, in the fir ft 
 place, that no immediate mention is made of the queftion 
 before us ; but, that on the contrary, from the very words, 
 res aliquas jub mini ft rant, and the circumftance of dividing 
 the whole of the trade of Neutrals into three articles, all 
 confined to their own particular commerce, it is clear, that 
 their claim to a carrying trade had never entered his mind. 
 It is clear, alfo, from the nature of the long feries of exam- 
 ples in his note, which, although they are introduced ex- 
 prefsly to elucidate the pofitions of the text, which treats, to 
 ufe his own words of the 4 belli rigor, and the commericum 
 1 irnertas,' yet, are all in illuftration of a very different quef- 
 
 * De Jur. Eel, p. r, . i, 5l
 
 Sec. TI.] MAKE FREE GOODS. 39 
 
 tion indeed ; namely, whether a Belligerent has not a right 
 to interdict all commerce whatsoever between Neutrals and 
 his antagonift. This, alio, is manifestly his intention, from 
 the fenfe in which his commentator Gronovius understands 
 it ; who explains the words c commerciorium libertatem,' to 
 mean, c licere unicuique mercesfuas portare ac vendere ad 
 quos voluerit.'* 
 
 In former times, that queftion was agitated with a great 
 deal of heat, and without any precife Settlement, in point 
 of fact; which unfettled State lafted through the fifteenth, 
 Sixteenth, and part of the Seventeenth centuries. We Saw 
 that it was Set up by the EngliSh and Dutch Allies, So lately 
 as in King William's war, againft France, f but was aban- 
 doned in that more enlightened time, on account of its in- 
 justice. But, in the days of Grotius, the right was ftill 
 conteited, and every one of the historical examples which 
 he records, except fome of thofe important extracts Srom 
 the ConSolato, that have been cited, applies to that unSetled 
 point alone. The queftion, thereScre, of free Ships making 
 free goods, is not only not immediately before him, but 
 from that very circumftance, it is proveable, I think, to 
 a demonstration, that he had never, even heard of it as a 
 claim. 
 
 But, though the queftion is not before him in form, be- 
 caufe Europe had not yet even raiSed it; his deciSion of it, 
 as a point Submitted to, and acted upon by all, without 
 queftion, is abundantly to be collected ; for, as has been 
 Said, he tranfcribes, in terms, the proviSions upon it from 
 the ConSolato mentioned before, and without any comment, 
 as a thing not to be diSputed : in Speaking alfo, in his note, 
 of the ordinances of France, which allow the ' libertas 
 * exercendi pacatis populis,' (the mere liberty to trade with 
 
 * Dejur. Bel.l. iii. 1, 5. note 21. 
 
 t By the treaty of Whitehall, Aug. J |, 1689. vide Sup. 
 
 b 4 the
 
 4° THAT FREE SHIPS [Prop. J. 
 
 the Belligerent}, he acids, as if it was a thing wonderful, 
 and pointedly againft the known, not the difputed law, that 
 it was allowed to be exercifed { adeoindifcrete^ut holies fsepe 
 1 fub aiienis norr.inibus resfuas occultaret.* But in addition 
 to this, from the mode in which he handles that other 
 queilion, which we fay was before him, it is plain that he 
 goes a great deal farther ; fince not even to negative it en- 
 tirely, carries the right of the Bqlligerant farther than thofe 
 who merely negative the doctrines of the Armed Neutrality ; 
 for it is much worfe to fay that a neutral vefTel (hall not 
 carry on his own trade with the Belligerent, than that he 
 {hall be inhibited from interpofing in the trade of the Bel- 
 ligerent himfelf. 
 
 That there are cafes in which it is the opinion of this 
 wife man, that the trade of a Neutral with one Belligerent, 
 in articles of a double nature, may be (topped by the other^ 
 is inconteflabiy clear from the whole frame and texture of 
 the fentences in our contemplation. In the very out- 
 fet he obferves, that it will depend upon the particular ftate 
 of the war : ' for if,' fays he, ' I cannot defend myfelf unlefs 
 c by intercepting the merchandife that is fent to my enemy, 
 c the law or neceffity will give me the right to do fo, upon 
 ' condition of reftoring them, unlefs fome other cauie pre- 
 c vent it. But if the carrying tilings to my enemy prevent 
 ' the ailertion of my juft right, and this is known to the 
 ' Neutral ; as if I hold a place bcfieged, or a port blockaded ; 
 1 he fhall anfwer to me in damages for his fault, in the fame 
 ' manner as he who afnfls in defrauding me, by aiding my 
 1 debtor to efcape from prifon. If he has not vet actually 
 c given this affiltance, out only intended it, then I may de- 
 ' maud fecurity of him for the future, bv pledges, hoftages, 
 * or in any other manner. If, however, my caufe for war 
 
 * De Tur, Bel. 1. iii. i. $ nctc.
 
 ScC. II.] MAKE FREE COODS. 41 
 
 < is manifeft, and he ftrengthen and maintain my ahtagontft, 
 4 then he {hall not only anfwer civilly hut criminally for the 
 1 mifchief he occafions, as he is punifhed who has been 
 ' guilty of a refcue, or fcreens a criminal from juitice.' 
 
 Upon this ftrong mode of expreflion there has never vet 
 been a difference of opinion. Cafes may, undoubtedly, arife, 
 and arc perpetually arifi ng, in which the application of the 
 principles may he difputed ; hut the principles themfelves 
 are clear, precife, and general, and their meaning is manifeft 
 as their cor.fequences a r c important. It may, indeed, pof- 
 fihly be urged, that the iiluilration he gives of the breach of 
 a blockade, about which there is no difference of fentiment, 
 points his affertions to one particular exigency ; hut, inde- 
 pendant of the circumftance that that example is brought 
 forward in illuffration of only one of his pofitions ; the 
 univerfality in which all the reft are laid down ; the tenor 
 of thefe words '-.Jlatus belli,' which is a general defcription ; 
 of l juris executionef which is the very right to take arms; 
 of l pax expeflabaturj which is a final termination of 
 hoftilities, not the furrender of the befieged place ; and, 
 laftly, of ' hello confirmetj which is demonftrably applicable 
 to the whole field of war : thefe, I fay, prove him to be 
 occupied with the general plan of operations, and the ge- 
 neral exigencies of a ftate ofhoftility. Rut, above all, the 
 marked (hades of difference that appear in the injuries done, 
 and in the meafures to refill them ; the rule of reftoring 
 in fome cafes, but of punifhing in others ; of taking pledges 
 againft intentions, but of vengeance againft crime; remove 
 all doubt and myftery from the fubject. 
 
 Grotius, then, in the general principle altogether, and on 
 this particular queftion, whenever it came before him, is as 
 ftrong a champion as we can have againft thefe new and 
 momentous claims of the Armed Neutrality — claims which, 
 as lawyers, we might laugh at as frivolous and new-fangled, 
 but that we are forbidden all levity or unconcern on a fub- 
 
 jeer
 
 42 THAT FREE SHIPS [Pj'Op. I. 
 
 ject on which interests of fuch critical magnitude depend : 
 interefts that involve in them no lefs than the exiftence of 
 commerce, the fortune and hlood of thoufands, the fate of 
 Empires, and the univerfal rights of war. 
 
 The next authority which I (hall mention is that of a 
 man of no mean fame for knowledge and learning in a 
 fcience in which he was the fir ft of his time, and the repre- 
 fentation of a great King. I mean Albericus Gentilis ; the 
 only one almoft of his predeceflbrs from whofe labours (not- 
 withftanding he blames him in many points) Grotius con- 
 fefied that he derived advantage in his great work*. 
 Stating the cafe of Turkifh property found by their enemies, 
 the Florentines, on board an Englifh veiTel which was 
 neuter, he gives this opinion, without ever thinking that any 
 doubt had been raifed upon the principle, either by the laws 
 of Nature or the pretenfions of men; ' tranfeunt res cum 
 c fua caufa, victor fuccedet in locum victi, tenetur Etrufcus 
 4 pro toro naulo. 
 
 Albericus Gentilis wrote in the beginning of the feven- 
 teenth century : he was followed by his contempory Gro- 
 tius, whofe work was publifhed while the reputation of Al- 
 bericus was at its height : but although that work was in 
 itfelf ib comparatively perfect that the writings of the ad- 
 vocate of Spain, as he was called, were feldom afterwards 
 confulted; yet, as we have feen, there was little or no dif- 
 ference between them upon the point before us. The 
 opinions of both were adopted by the beft writers of their 
 time, during the whole of that century; by Voet, who 
 publifhed fome little time after Grotius ; by ZouchJ, the 
 beft Englifh Civilian of the age ; and by Loccenius§, the 
 
 * D.J. Bel. P. Prolegom. 
 
 ■f De Jur. Militari c. 5. n. 21. 
 
 J De Jud. inter Gentes, p. 2. f. S, n. 6. 
 
 <J De. Jur. Mantiruo, 2, 4, »a. 
 
 hift>
 
 SeC. II.] MAKE FREE (JOODS. 4* 
 
 hiftorian of Sweden, who, with his mind full of Guftavus Adol- 
 phus, themoftjuftKingand moderate Commander in Europe, 
 confirms the Confolato upon this queftion i:i all its extent. 
 
 On the other hand, no writer of any fort of reputation 
 that I know of, or rather no writer at all is to be found, who 
 upholds the contrary doctrine during that century. They 
 all fly to the Confolato as to a land-mark with relpect to the 
 principle — as a general law, not to be overthrown, and 
 V/hofe overthrow, in theie points, was never even at- 
 tempted. Where it was attempted, in that other much 
 greater queftion of the times, Whether a Belligerent might 
 nut prohibit all commerce with the oppofing Belligerent; 
 we have feen that, after tome doubts about it among Ci- 
 vilians, and very ftrong oppofition among States, it was 
 confirmed and fettled, as it ought to be, as a general law, 
 though fu'njecl, like all general laws, to exceptions 
 founded on the exigency of the caie. — I have no hefitatiort 
 in thinking that it was the conteftation and fettlement of 
 this queftion, that has milled the Danifh Civilian into the 
 aiTertion, that the provifions of the Confolato upon the other t 
 were changed, by agreement, about the fixteenth century ; 
 and that the principle I am canvaffing became paramount in 
 the feventeenth. 
 
 But while all the world were difcuffing one of thefe 
 chief articles of the Confolato ^ whofe foundnefs or un- 
 foundnefs was conudered with all the warm eagernefs and 
 critical acumen which ftrong contefls and paflior.s on 
 both fides, never fail to generate ; when the real and juft 
 rights of Neutrals at laft prevailed in the conteft, and they 
 were allowed the liberty of traffic, which had been difputed 
 with them ; it would have been wonderful that they fhould 
 flop here, and n6t obtain emancipation from the other pre- 
 tentions of Belligerents, which is now before us, could they 
 have made it appear, with equal cogency, that it was not 
 , founded in equity- and reafon. This, however, was not 
 
 even
 
 44 THAT FREE SHIPS [Prop. I. 
 
 even attempted ; and it was long, as a principle of right, 
 the unoppoied law of Europe, while the other was always 
 bitterly contend. The Venetians and Genocfe, in the height 
 of their wealth and maritime greatnefs, founded chiefly upon 
 this very carrying trade, (o far from oppofing it, had joined 
 in being the authors of the law. It was thofe other great 
 carriers, the Dutch, who, feelingly alive to the caufes of 
 their wealth, law all the advantages of an alteration, and 
 firft attempted a change. But how did they attempt it ? 
 Not by fetting up a new code, founded, as it is faid in na- 
 tural jujiice, and fupported by an Armed Confederacy ; not by 
 pretending to a right to break aii their treaties at will, be- 
 caufe, contrary to a chimerical notion, bottomed in vain 
 wifdom and falfe philofophy 3 but by long, laborious, and 
 painful negotiation ; by watching opportunities, and cul- 
 tivating particular difpofitions ; by Toothing particular in- 
 tcrefts, and making compenfations ; in a word, by the Jutl- 
 and lawful mode of mutual contract.*. Nor is it unimpor- 
 
 * Lettres et Negot. entre De Wittc et Boreel, torn. i. 2. and 
 Thurloe's State papers, chiefly 3, 4, and 5. Wiioever will take 
 the trouble of perufing De Wittc and Boreel's letters during the 
 negotiation of tlie latter in France, about the year 1654, and the 
 conferences of Nieuport, the Dutch AmbarTador, in England, will 
 find the fulleft proofs of the anxiety of the Dutch Government to 
 carry this point, as neceffary to their own particular trade. ' On 
 ' attend,' fays Boreel, * ici evec beaucoup d'impatience quelle 
 ' fera ie fin des negociations des Ambaffadeurs Extraordinaries de 
 
 * leurH H. P. P. en Anglcterre touchant leTraitede Marine. On 
 ' efpere qu'on y obtiendra la claufe Vaifleau franc, Cargaifon 
 
 * tranche. Autrement on m'avertie de divers endroits ou 1'on efl 
 ' bien intentionee pour la Republique que ce leroit tin terrible 
 « contre coup pour la navigation des fujets des Province^ Unies, 
 
 * qui perdroient les avantages qu'ils retirent de charger chez 
 
 * toutes les Nations.' Lettre 27111c Nov. 1654. Again, < ii eft im- 
 
 * poffihle d'obtenir le contenu de mes inftructions pu il eft riit que 
 
 * la franchife du Batiment en affranr.hit la Cargaifon meme appar. 
 
 * tenant a l'ennemi : a la verite on me fait efpere que des que la 
 
 * paix fera faite avee l'Efpagne on ne fera pas beaucoup do dirfi- 
 culte,' &c. &c. Lettre 28 Nov. 1658. Nieuport underwent (till 
 more delay and mortification in England; and the negotiation 
 faded at lalt. It was not till after another war, an interval oi 
 twenty years, and a change of politics in England with re!; cct t; 
 France, that the Dutch perlcvcrance at length prevailed, on the 
 ground of mutual advantage in the treaty at large.
 
 SeC. II.] MAKE FREE GOODS. 45 
 
 tant to obferve, that this was during a feries of years in 
 which Holland was at the zenith of its power, its military 
 fpirit, its naval refourees, and its naval pretentions j when 
 fuch fiery men as Tromp and de Ruyter were ftiil more in- 
 flamed to military adventure againft this country, by perfo- 
 nal rivalry with the braveft of her heroes ; and when De, 
 Witt, the ableft of his time, one of thole extraordinary 
 men whofe breath feems to influence the fate of nations, 
 and create a new order of things, was always ready to rifk 
 the whole force of his State rather than fubmit to the leaft 
 invafion of its commerce. But he was, befides this, ani- 
 mated by a perfonal fpirit againft England. His power 
 and pre-eminence in Holland depended upon the deprefTion 
 of the Houfe of Orange, connected jrv blood, and always 
 fupported by the Engliih Royal Family. He had formed the 
 whole plan of his politics upon a particular fet of favoured, 
 and long-foftered maxims of national interefts, amongft 
 which this of Vry Schip Vry goed was the raoft favoured of 
 all; and almoft all were thwarted, and many overthrown 
 by Englifh exertion and Englifh laws. The Navigation 
 Act. gave a death's wound to the trade of Holland; and 
 thus the oppofcrs of his own and of his country's power, 
 rivals in trade, rivals in arms, interfering every where, and 
 fighting often with doubtful fuccefs, it is hardly in the 
 nature of tilings that De Witt would not have been the 
 firft to have fhewn, againft England, if he could, the natural 
 obligations of his maxim, in older to ground upon them the 
 plan of an Armed Confederacy. Of fuch a confederacy, 
 and of the fuccefs of it efforts, he would not have wanted 
 an example in the condudl or his own Republic, and almoft 
 within his own time. The King of Denmark, not a great 
 many years before, had aimed at a fort of tyranny in the 
 Sound, by irppolino- what tells he pleafed, which not only 
 fell heavily upon, the trade of the Baltic, but evinced a dif- 
 poiition to impofe of winch it was impofftble to fee the 
 j ex-
 
 46 THAT FREE SHIPS [Prop. I. 
 
 tent. The Commonwealths of Holland and Lubec, per- 
 ceiving the danger, afTociated themfelves together, not to 
 attack the King of Denmark by name, but for the general 
 protection of the trade of the North. To this union 
 they invited various others of the Hanfeatic States to accede, 
 and at length it was ftrengthened by the junction of 
 Sweden, to the full accomplishment of the end propofed. 
 
 The preamble to the firfr Treaty of Union was conceived 
 in thefe terms. ' As of antient times, the honourable, 
 free, and imperial city of Lubec, and feveral other towns, 
 fituated on the Northern and Eaftern Seas, have been in 
 union and amity with divers towns of the (ret and United 
 Provinces, for the defence cf the liberty of navigation, 
 Trade, and commerce, and the rights and privileges there- 
 unto appertaining: and as now they have found it necef- 
 l'ary to negotiate and treat concerning the renewal of the 
 faid Union, their deputies have confented to the follow- 
 ing articles : 
 
 4 That this Union is not intended to give offence to any 
 one, but folely for the prefervation of the free navigation 
 and commerce of the Northern and Eaftern Seas : that 
 their defign is according to the Law of Nations, merely 
 to affert the liberties, rights, and immunities, which have 
 been granted to them in thofe Seas ; and they will reci- 
 procally defend and protect one another againft all thole 
 who moleft and hinder the faid freedom and liberty of 
 trade. 
 
 * That by this Union they mean not to prejudice, in the 
 fmalleft degree, their friendfhip with the Emperor, or the 
 Kings of France or Great Britain. 
 
 * That thofe who fhall trouble and moleft their com- 
 merce, {hall be firft requejhd to deiift from fuch conduct - 3 
 which if they will not do, they will vigoroufly defend 
 themfelves, fo that the object or" the Union, and the free- 
 
 ; dom
 
 &C II.] MAKE FREE GOODS. 
 
 47 
 
 c <iom of navigation and commerce mail be at lengrh fc- 
 * cured.' 
 
 The articles then go on to ftate the quotas of troops and 
 veflels which each fhall furnifh, and various other detached 
 regulations, in cafe of being driven to war.* 
 
 In April, 1614, another treaty was made, by which 
 Guftavus Adolphus acceded to the Confederacy!; and in 
 December, 161 5, the Han feat ic Towns in general united 
 themfelves with it, to the complete attainment of their ob- 
 ject, in the regulation of the tolls of the Sound. + And 
 we have by no means an incurious precedent, in many of its 
 ftipulations, of the plan upon which the Confederacy in 
 j 780 proceeded. 
 
 The fuccefs of this armed league between Holland and 
 the Hanfe Towns produced another, thirty years after- 
 wards, between that (Republic, and Bremen, and Ham- 
 burgh, again profefiing, that it was not formed to give 
 umbrage to any one, but to defend the freedom of com- 
 merce and navigation, according to the Law of Nations, 
 againft all. The fame effects followed ; and, in 1645, by 
 the treaty of Chriftianople with Denmark, the tolls of the 
 Sound were regulated for fifty years, the right of fearch in 
 the Baltic was confined to the infpection of papers, and 
 many other articles of the Northern Commerce fettled fo as 
 to prevent future difpute.|| 
 
 But with the effect of all thefe confederacies in his mind, 
 fo near in point of time to his own age, and his own very 
 country their original inftigator, it is wonderful that De 
 Witte did not think of renewing them againft England, in 
 the fame general manner, and for the fame general purpoie, 
 under the Law of Nations, as his predeceflbrs had framed 
 them againft Denmark. Probably he would have done fo, 
 
 * Du Mont Corps Dip. 10, 2 ?2. t Id. 246. 
 I Id. 376. || zPoitleth. 154. 
 
 had
 
 4^ THAT FREE SHIPS [Prop. Ii 
 
 had he really thought that his maxim, fo important to the 
 interests of H^iiaiid, and all the North, was clearly 
 founded in natural juftice. He would have found Denmark 
 in particular well difpofed to join with him ; and that he did 
 not do fo, can only be explained by the knowledge, that, 
 interested as he was, he was yet too wife to attempt the 
 juggle of proving to a Belligerent, that to carry the goods 
 of his enemy for him, when he could no longer do it him- 
 felf, was not to afrord him afiifrance in the war. Accord- 
 ing!'/, he laboured tor a long time, and bo u red in vain, 
 both with Engand and France, in order to perfuade thofe 
 powers to grant by treaty, what he never thought of de- 
 manding as a ri";ht. 
 
 We are then fan need in faying, that during the fevert- 
 teenth century, the ri/ht to confiscate enemy's t j;opcrty orl 
 board a neutral ve;ie. : W ai never, as a p-'hidph, contefted, 
 though there were frequent attempts, wi icn were fom'e- 
 times fuccefsful, to modify and change it by treaty. Still 
 more Should we be founded in thinking, that even before 
 that t ; mc, the principle remained facred amonglr. all Mari- 
 time States. As Huhner, however, his dwelt much upon 
 historical proofs of the liberty of commerce^ and as V'aiiTeau 
 Franc Car2;aiion Franche is one of the great objects of thofe 
 who quote him, we may fuppofe that he founds it upon 
 thefe proofs, which, in time? \\atw general trading is al- 
 lowed, would otherwife be totally ufeiefs \ and as, befides, 
 Vm> new civilians dwell much upon his authority in every 
 thin r , it will not be unimportant, in a treatife like this, to 
 examine, in the detail of his examples, not, perhaps, what 
 it is that he means, but what is really proved. 
 
 4 C'cSl l'evidence,' lavs he, c du droit qu'ont les Peuples 
 <■ Ncutres de commerce! librement avec ceu:: qui fe font la 
 ' guerre, qui en a fait convenir les Nations Maritimes de 
 ' lar.s les fades \ iufqu'a ce que des vues d'une cupidite fans 
 1 bornes, ou celles d'une ambition demefuree, ont fair. 
 
 chancer
 
 ScC. II.] MAKE FREE GOODS. 49 
 
 c changer a quelques-une . d'entr'clles, fi non d'avis ou de 
 4 Iangage, du moins de conduite a cet egard'.* 
 
 Now, if this means merely to prove what Europe has ne- 
 ver with any uniformity ccntefted, and what (he has now 
 at length fettled for a century and a half paft, I mean the 
 general right of Neutrals to trade with a Belligerent, or 
 that neutral veiTels mall not be confifcated for having ene- 
 my's property 0:1 board, England certainly is no where 
 pledged to dilpute it. But if by ' commerccr libremenf it 
 means to Mate from hlfory, that the right fet up of purfu- 
 ing enemy's property into neutral mips, was the pretenfion 
 alone of a ' cupidite fans homes,' and difaliowedasa princi- 
 ple; we deny the authority in every one of the examples 
 adduced. 
 
 His fir ft cafe is from the Hiftory of Pompey, who, he 
 fays, in the fpirit oi the Roman power and ambition, in the 
 Mithridatic war eftabiifhed guard fnips in the Bofphorus, 
 ordering them to intercept and to punifh, with death, all 
 thofe zvho dared to Jail thither for the purpofes of commerce. 
 For this he refers you to Plutarch, who, when you have 
 confulted him, tells you u> different a fiery, that the ad- 
 mirers of Hubner muft tremble even for his good faith. 
 The hiftory is, that Pompey having purfued Mithridates 
 through Aha Minor into Bofphorus, in which he had fhut 
 himfelf up with an army, refolved to reduce him by famine; 
 for which purpofe he appointed a guard of fliips to lie in 
 wait for the merchants that failed to the Bofphorus, having 
 prohibited alt, upon pain of death^ to carry provijions or mer- 
 chandife thither, f Who thefe merchants were, is no where 
 exprefsly ftated ; but from the extent and fituation of the 
 Roman Empire, at that time, it will be difficult to imagine 
 that they were any other than thofe that owed obedience to 
 Rome. But, even if they did not, Pompey had then over- 
 
 * Hub. y. i. ch. iv. fee. 7. f Tonibn's Plutarch, iv. 162. 
 
 e come
 
 50 THAT FREE SHIPS. [Prop. I. 
 
 come his enemy in every field where he had flood him; he 
 had purfued him to the fea, w hence he took meafures to 
 prevent his efcaping, and where he had concerted a design, 
 of which he gave notice, to reduce him by famine. Even 
 then, it they were, or could have been, foreign merchants, fo 
 far in this example are we from obferving the mere effect of 
 Roman power ?^i ambition, that we, in fact, fee little more 
 than the regular rights of a modern blockade : the difference 
 confiffcs in the pimilhment alone, and death, inflead of con- 
 fifcation, was the plain refult of the barbarous fpiritofthc 
 times. 
 
 Hubner's fecond cafe is drawn from France, whofe ienti- 
 ments and conduct, he fays, in the preceding ages, were far 
 more equitable upon the fubject; her government never 
 having then troubled the navigation and commerce oi 
 Neutrals with its enemies; for which he refers, as a proof, 
 to the 42d chapter of the ordinances of 1543 and 150*4, 
 where, he fays, we find regulations, conformable with the 
 decihons of the univerfal code of fovereign dates, on the 
 fubject. Unfortunately I have done as he directs me, and 
 confulted theie ordinance", at leaft in Valin's Commen- 
 tary upon the III. Book. Tit. IX. des prizes, article VII. 
 where I find that all Jhips which are found laden with 
 enemy's property are good prize, which, Valin fays, feems 
 to be a confequence of the 43d article (I fuppofe article here 
 is the fame as chapter) of the ordinance of i$43 ar >d 69 th. 
 of that of 1584, where was laid down, that only the pro- 
 perty found was fubiedt to confiscation. * 
 
 His 
 
 * ' II fembloit refulter de I'article 42, de l'ordonnance de 1543, et 
 ' du 69 de cclle de 1584, qu'il n'y avoit que la marchandife des 
 * ennemis trouve dans un navire ami quifut fujette a conficationfans 
 ' toucher au navire ni au refte de fori chargement ; du moins e'eft ainfi 
 ' que Clairac avoit interpret^ ces deux ordonnances dansidn traite de 
 ' la jurifdiclion de la marine.' Art. xxv. p. 443. If Clairac could be 
 4 miftaken, it is tobeobjerved, that the only other interpretation that 
 
 could
 
 Sec. II.] MAKE FREE GOODS. $1 
 
 His next example, cited for the fame purpofe, ends ex- 
 actly in the fame manner, upon recurring to his own refer- 
 ences. It was in confequence of thefe principles, fays he, 
 that Queen Elizabeth teftified her refentment againft the 
 Zelanders, by her ambafTadors, Winter and Beal, for pre- 
 suming to flop her (hips defined for the ports of Spain, the 
 enemy of Holland.* For this he refers to Camden, and 
 Camden tells you, that c the Prince of Orange, in hopes to 
 retain his principality, ceafed not to invite the French into 
 the Netherlands, and permitted the Zelanders and Hol- 
 landers (who infefled the feas round about with their pira- 
 tical veiTels, being men, ?s it were, born in the fea), to rob 
 the Englifn merchant fhips, whom they accufed, to carrv 
 victuals to their enemies, the Dunkirkers, and to tranfport 
 the merchandise of the Antwerpcrs and others into Spain 
 under counterfeit name«, which they were wont themfelves 
 to export formerly to their own advantage, but now clurlt not, 
 as being confeious to themfelves of their revolt. For re- 
 training ofthefe, Holftock, being lent forth again withmen 
 of war, took above 200 pirates, and put them in prisons all 
 along the fea-coaft. But to demand refiitution of the goods 
 they had taken, there were fent into Zeland, Sir William 
 Winter, Knight, and Robert Beal, Clerk of the Council^ 
 to confider of the value of the things in controverfy, and 
 agree about refiitution upon certain conditions. But, by 
 reafon or the avarice of the Enpdifh merchants, 'and the in- 
 folency of the Zelanders, the quarrel broke out r.gain, 
 which was ihortly after compounded with lofs to both na- 
 tions, 'f 
 
 could be given would militate itill more ftrongly againft tlie rights 
 of Neutrals, and confifcate the veffel for canying ihe foods ; the 
 remark of Val'rn being, that the law of 1543 and 1584 wa> milder, 
 according to Clairac, than that before him, which did lo confiicate. 
 the Neutral veffel. 2 Val. 252. 
 
 *■ t Hub. 77. f Camd. 214. 
 
 F 2 Now
 
 $Z THAT FREE SHIPS. [Prop. I. 
 
 Now, upon this we may obferve, firfb, that the pretence 
 of the Zelanders was either true or falfe : Secondly, that 
 reftitution was withheld. If reftitution was withheld becaufe 
 the pretence was ti ue, nothing that could happen in hiltory, 
 could prove with more point and weight, that the principle 
 we contend for was amply allowed in this very example ; 
 for no one that ever heard of her, but knows the high fpi- 
 rit, as well as the power of Elizabeth, to rcfift illegal vio- 
 lence. If it was withheld, however, although the pretence 
 was falfe, it proves the piracies of the Zelanders, but no- 
 thing at all as to the point : and it happens peculiarly, that, by 
 the teftirnony of their own hiilorian, in the very time, and in 
 the very years alluded to, the Zelanders, from diftrefs, and 
 want of fubfiflence, occafioned bv the preiTure of the Spa- 
 niards, were driven to become pirates for i'uch fubhftence ; 
 eminently in this confirming the exprcflions of Camden, 
 that they were permitted to rob the Englifh merchant mips.* 
 
 His fourth example, by being too general, proves no- 
 thing. 
 
 The Englifh, it feems, allowed to the Hanfe Towns, that it 
 was the right of Neutrals to traffic with Spain, but faid that 
 the)' had parted with this right by particular convention. At 
 the fame time it cannot be too often inculcated, that the quef- 
 
 " * Quand il n'y avoit point d'argent a la main, pour payer les 
 Matelots, ni de vhres pour les nounir, ils alloyent en mer, &y 
 prenoyent ce qu'ils y rencontroyent. Tcllement que les admiraulx, 
 les capitaynes, et gens flc marine, n'avoyent fouvent rient a man- 
 ger, iinoM des harems fales, ni rien a boire epie de l'eau, on de la. 
 petite biere. f.es bi; ;.s Si marchandifes, non feulement des Ef- 
 paignols, mais auiii de.i Italiens eltoyei adjugees pour bon butin, 
 pourre qu'ils envoyet (tomme cniieum-) des gens devant Haerlem, 
 ou eftoit le regiment de la Ligue, qui eftoyent Italiens. lis prenoyent 
 auiii toil'- les batteaux, qui vouloyeni alier en Flandres. Et qua/id 
 la nc refill e les pre/fait, iis prenoyent /cut cc qte'ih trowvoyent t & le 
 t-enduyet poitr j't n nyder. Ft pource que ces lacons de iaire, ne 
 t'jurnoyent pa.' a qnind hmneur & hjuatige, '"-.,•" les Ejlats de Hol- 
 lande & de Zeiande. Voyla pcurt;-iioy lis i : obiigerent par lettres 
 i payer le dominate tait, coiuine uutii ils iiicr.t devant la fin de la 
 guerre.' Mct<.ren t 98, */. 
 
 tion
 
 SeC. II.] MAKE FREE GOODS. $% 
 
 tion on the part of Neutrals is not concerning a general 
 liberty to trade, but whether they may carry the trade of 
 the Belligerent. 
 
 The next cafe is a famous one In our own hiftory, on 
 which our fondnefs for the memory of our great Oueen has 
 often delighted to dwell. It is her well-known contefr. 
 with Dzialine, the Polifh AmbaiTador ; far enough, indeed, 
 from fupporting any pofition of Hubner, and, like moft of 
 the reft, falling upon himielf. His account of it is, as 
 ufual, loft in generals ; fo that we know nothing but ' les 
 * obflacles que Ton mit a ion commerce ordinaire avec 
 1 l'Efpagne, en declarant que e'etoit contre le droit des gens 
 4 que les Anglois 1'empechoient de trafiquer librement avec 
 c le Royaume.' What ' trafiquer librement' here means 
 fpccifically is, as ufual, left in the dark; and unexamining the 
 authority, which does not even hint at what fort of traffic 
 the Poles had attempted, fo as to occafion an interruption of 
 it by the Englifh ; we are either loft in the fame indefmitenefs, 
 or muff come at once to the contemplation of contraband. 
 £ For your part,' faid the Oueen, ' you feem, indeed, to us to 
 ha\ e read many books ; but vet to have little underftand- 
 ing of politics. For whereas you fo often, in your ora- 
 tion, make mention of the Law of Nations, you muff, 
 know that, in the time of war betwixt Kings, it is 
 lawful for the one party to intercept the ajjijiance and 
 fucccurs fent to the other, and to take care that no damage 
 may grow thereby to himfelf. This, we fay, is agreeable 
 to the Law of Nature and of Nations, and hath been 
 often pracf ifed, not by us alone, but alfo by the Kings of 
 Poland and Sweden, in the wars which they have had 
 with the Mufcovites.' 
 
 Thus far the Oueen herfelf. He was afterwards told by 
 her Council, conliffing, amongft others, of the two Cecils, 
 • that to intercept fuccours fent to the enemy was not 
 ' againft the Law of Nations, feeing it was ordained by 
 
 e 3 * Nature,
 
 5„4 THAT FREE SHIPS [P?'Op. 1- 
 
 nature, that every one ftiould defend himfelf; and this is 
 not a written law, tut born and bred in us. Moreover, 
 th it it was yet f^ih in memory, how the Kings of Po- 
 land and Sweden have confifcated the Englim (hips and 
 merchandise, upon the bare lufpicion thai toey had ^Jjijled 
 ilie e.lufcovhes with provisions. '■* Here is the real ftate- 
 ment oi" hoe rafe nuoted from the authority referred to ; and 
 a cafe lef> ferviceabie to the caufe it was meant to iupport, 
 or iefs candidly itated bv the reporter, one would think it 
 would net he very eafy to point out. 
 
 The next is an example without any reference ; but it is 
 ci the lefs confequence, as it proves absolutely nothing to 
 the point in hand. The Hanfe Towns, it feems, at war 
 with Denmark, exacted of the Dutch, that they would not 
 trade with the Danes; to which they replied, as they might 
 very fairly do, that they had a right to do fo, and would 
 not dehft from cxercifmg it. f 
 
 The feventh cafe is of Sweden and England. In 1653, 
 the former having allied an explanation as to the latter's 
 intentions with relpcct to Neutral Commerce, the Parlia- 
 ment replied to the Swedifn Cornrnifnoner, that, let them 
 abltain from warlike {lores, and they were at liberty 
 c commercer ou bon leur fembleroit.' j Whether tins 
 is thus exactly to he found in the reference which he 
 gives to Puffendorf's Hi dory, (which I have fearched in 
 vain), as is of no great confer uonce, dice again the 
 worci czmm .,;■, edcr.ee of all indehnitenefs 
 
 on ti\j (ah jcrct, is tde in: ...... x of what is meant to he 
 
 conveyed: a ■ ...\ conic c...., it ne/er c:a\ imply aright to 
 
 carry enemy's p: opt rty. 
 
 The Liv.e ... > to ids eighth example, 
 
 where the cicy ot Lubec, ' ayant pris la meme precaution au 
 
 * Camd.536, 7. i Hub. i. 7 3. t lb. 
 
 1 commencement
 
 SeC. II.] MAKE FREE GOODS. 55 
 
 commencement de la guerre (in th: time o( Elizabeth), et 
 ayaiit fait demander qu'eile iurete lis auror.t pour imr com- 
 merce et qu'elles marchaudijes il lui Jeroit per inn cl'envoyer en 
 EfpagneJ were told that, if they abstained from fending 
 arms, ' et cC autre; attiraiis de la guerre, il lui etoit libre d'y 
 commercer avec toutes fortes des rnarchaudiies.' Upon both 
 thefe cafes, however, particularly the lair, it is to be ob- 
 ferved, that the very circumltance of afking what fecurity 
 they fhouid have tor their commerce, proves almoff, to 
 demonftration, that they did not ccnfider even general 
 trading as a matter of right then fettled in the Law of Eu- 
 rope, as it iince has been. Much more does the queftion, 
 c What fort of goods they fhouid be allowed to fend to 
 * Spain,' prove, that in ail fuch cafes as thefe the word 
 conunereer never means, nor is intended to mean, a right to 
 the enemy's carrying trade. 
 
 The ninth example is merely of the fame nature with the 
 others. Sweden, in its war with Ruflia, feizei Englifh 
 veficis bound to Livonia. The Englifh protefted againffc 
 it, becaufe they had a right, being Neutral, to trade with 
 Bellio-erents. 
 
 But I think the fummit of Kubncr's mifmanagement, in 
 regard to hiftorical proof:, is referved for his tenth and laft 
 cafe: — a cafe relied on (but to me moib ffrangely) by all 
 the innovators upon the Law of Maritime Capture, becaufe, 
 as I fuppofe, it fprings from England, and is argute! with 
 England. Whether it is decided againit her, take Hubner's 
 own account of what was decided, consult the authority, 
 and fee how it applies. In this example he afierts, irom the 
 Expofttion des Motifs, &e. that Lord Carteret and Lord Chef- 
 fterfield, Secretaries of State at different times, declared to the 
 Pruflian minifter, that the fubjects of his country might every 
 where continue their commerce, provided they abfiained from 
 contraband and breach of blockade; and that, as to the re/, 
 the trade of Neutrals Jkould remain upon the fame footing as it 
 
 E 4 vjal
 
 5 6 THAT FREE SHIPS [P/'OJ). T. 
 
 vjas in turn of peace j and he refers to the fecond, third, 
 eighth, and ninth articles. It is to be recollected alfo, that 
 the conteft in the Expofition des Motifs is chiefly, and 
 almoft folely, confined to the queftion of the right of carry- 
 ing enemy's property. — Thus far the ftaternent; now ob- 
 ferve the truth. 
 
 In the fir ft article, the real queftion afked by the Pruf- 
 fian agent is, to be informed from the Englifii Miniftry, 
 of what J'pea fie ally was held contraband with them; and whe- 
 ther grain, timber, planks, hemp, linieed, linen, and the 
 like, were comprehended therein, that the king might ad- 
 rife his fubjecls thereof and ? '•' -: them the neceffary infrac- 
 tions upon the manner in which they fhould continue their 
 commerce. * 
 
 The fecond article (the fir ft referred to by Hubner) con- 
 tains the anfwer : That the King's flag fhould be reflected 
 equally with that of other Powers in the alliance cf Great 
 Britain, excepting only fuch veiTels as fhould carry war- 
 like ftores to the enemies - of the Britifh nation. 
 
 The third article (alio referred to) certainly contains the 
 ftatement ; as far as l that commerce mould remain free to 
 ' Neutral Powers/ but the important words, l upon the 
 1 fame footing as in times of peace,' are contained under an 
 explanatory N. B. apparently by the Pruflian minifters 
 themfelves. 
 
 4 That, for the reft, the commerce mould remain free 
 1 to the Neutral Powers; — N. B. upen the fame footing as 
 in tunes of peace. y \ 
 
 In the eighth and next article referred to, however, 
 Lord Chefterficld's anfwer is, that the King of Great 
 Britain will oiler no hindrance to Pruflian navigation; 
 fo long as they fhould exercise their commerce in an allowatde 
 
 Expcfit. des Motifs, Sec. Art. T, j lb. 
 
 » l V)
 
 SeC. II.] MAKE FREE GOODS. 57 
 
 ivay t #W Jhould confirm to the ancient cufioms ejlabUjlied and 
 received between Neutral Poicers. 
 
 The ninth article merely reiterates Lord Carteret's 
 dech-ratioii. 
 
 Upon thefe articles it is lcarce neceiTary to point out, that 
 although the queftion in the Pruflian expofition direclly 
 concerns the carrying trc.de, the queftions to the Lngjifh 
 Government, and the anfwers of its Minifters, upon which 
 the expofition is emphatically founded, do not in the kalt, 
 much lei's fpecifically, relate to it. Suppohng even the N. B. 
 at the end of the third article to be Lord Carteret's own ex- 
 planation, it can never mean to relate to more than the 
 queftion originally put, which was the nans of all thefe 
 other explanatory queftions. This we fee, in terms, was 
 nothing more than to know, what zvas held contraband by 
 the Englijh Minijiry, in order that the fubjects of Pruffia 
 might tell by what rule to direct their trade. Lord Car- 
 teret's anfvver muft, therefore., relate to contraband, and con- 
 traband alone ; for it would have been ft range if he had volun- 
 tarily granted more than wasafked; and itrange, indeed, if he 
 had granted what England had uniformly, except by treaty, de- 
 nied to all the world. This is the more clear, becaufe, when 
 general complaints, and a more general quenion, feem to have 
 been put afterwards to Lord Chefterneld, .he anfvver then is, 
 that certain things are granted, fo long as they jhould exer- 
 cise their commerce in an allowable way, and ft ould conform to 
 the ancient cnjioms ejfabhjhcd and received betzveen Neutral 
 P Givers. 
 
 To put the matter, however, out of doubt, if doubt can 
 yet be entertained ; take the Sieur Andrie's, one of the 
 Pruflian Minister's own confeilion, as to the law, in a letter 
 to the King of Pruflia birnlelf, pending this controverfy 
 with the Court of London. ' Your Majefty's fubjects 
 1 ought not to load on board neutral fhlps any goods really 
 c bcUnging to the enemies of England, but to load them for 
 
 i their
 
 5 3 THAT FRLE SHIPS. [Prop. I. 
 
 * their own account, whc.eby th; y may fifely fend them to 
 1 any country they fhall thii.'k proper, without running any 
 % rijk: then, if privateers commit any damage to the {hips 
 ' belonging to your Majefty's fuDJeels, you may depend on 
 c full jui'Iice being done here, as in ail the like cafes hath 
 
 And fo much lor the luflorical examples adduced bv the 
 great champion for Neutrality, to prove that the maxim, 
 that fiee fhips make iree goods, has always been acknow- 
 ledged by Europe. That they rnuft have been adduced tor 
 this purpofe, or no purpofeatall, is, I think, clear, becaule a 
 general trade, on the part of Neutrals, with belligerents, 
 has, in the laft century, always been a:iowed, notwithirand- 
 ail the contefts concerning it, that occurred in the preceding 
 ages. It certainly was not denied by Great iiritain, at the 
 time when complaint was moil lonely feu ideci againft her in 
 the war of fifty --fix, about which time Hubner wrote; and 
 why he mould otherwife have recurred to examples (how 
 accurately, howe\ er, we have fecn), to prove what was not 
 relifted, in a work which profclTed to vindicate Neutrality 
 from its injuries, 1 am wholly at a iofs to conjecture. It is, 
 however j the clearer, that thus rnuft have beer; his meaning, 
 becaufc this chain of examples is introduced in the very 
 chapter, and immediately after he had laid down their right, 
 even to the colonial trade of Belligerents, whenever they 
 chofe to let them into it; and in various preceding parts he 
 is ftrenuous in the affertion, that their rights of commerce arc 
 the fame (with the exception of contraband) with thole which 
 they had enjoyed in times of peace; and as in times of peace 
 no one could queftion their right to fuch carrying trade, as 
 any nation chofe to allow them, the confequence is inevi- 
 
 * The genuinefs of this ex t raft is certified under his hand br 
 Michel himielf, tiie other Pruilian Minifter, when it was exhibited 
 in a caui'e. D. oi In";,, letter, in i Magens, 494. 
 
 tabic
 
 SeC. II.] MAKE FREE GOODS 59 
 
 table, that Hubner really thought the examples which have 
 been detailed, bear him out in the aiTertion, that free fhips 
 make free goods. Schiegel, the pupil of Hubner, undei- 
 ftands this to be the object of his book, although it treats 
 merely of the general freedom of neutral commerce, and he 
 does not hefitate to aflert, (we will fuppofe not upon the 
 faith of this hiflorical relearch) that he has developed the 
 rights of the "Neutral in a manner lb Cviiv hieing, that thofc 
 verfed in the law of nations ' ont depuis preique unanimement 
 4 reconnus la iudciledc cette axioms que le pavilion ncutrc 
 ' couvrela marchandife.' * in vain, however, I think has 
 hiftorv been confulted, at leait in the inltances given by this 
 moil ilrenuous advocate of Neutrality: in vain have authori- 
 ties been iought for to wrench the true bearing of facts, 
 and the true meaning of iaimua^e, into the fuppcrt of a prin- 
 ciple, which, except by the ftipulations by treaty, has not, 
 in point of truth, been eve; fupported during the ages we have 
 been examining. Tne uniform experience of Europe, inthofe 
 times, where treaty did not interfere to change the effect of 
 the principle by pofkive contract, determines, beyond all 
 doubt, that the principle itfelf was never brought in queftion. 
 When I fay this, however, let me not appear to be igno- 
 rant of what I know has often b:^n mTerted; let me not 
 ibem to avoid what I wifh thoroughly to examine. Amongft 
 thoie who fupport the maxim as feunded in natural right, a 
 name is laid to be enrolled of iueh great and weighty autho- 
 rity, that, if it is really fo, the reaicning that has been ad- 
 duced will require ir ill greater defence, in order to d~:\d 
 umflmken. It is of no leis a man than PmTendorf, him felt 
 .1 tower of ftrenmh upon any que fi on of the Law cf Na- 
 tions, which he has really efpoufed. The feuhble Barbey- 
 rac, in his commentary upon his great work upon the Law 
 
 * Schlcgel, id. 
 
 Ctf
 
 60 THAT FREE SHIPS \_PrOp. I. 
 
 of Nature and Nations, * has preferved a letter of his upon 
 the fubjecl of Neutral Commerce, which has often been 
 cited by thofe who fupport the maxim in queftion, as proving 
 that Puffcndorf is entirely of that opinion. If we examine 
 it with common attention, it will be found precifely in the 
 fame fituation with thofe hiftorical examples of Hubner 
 which we have jult been examining ; either amounting 
 merely to the aiTertion that, as a general rule, the Neutral 
 has a right to trade with the Belligerent, which, it cannot 
 be too often reiterated, no one denies him ; or, amounting 
 abfolutely to an authority againfr. the maxim, in fupport of 
 which it is cited. 
 
 Let us hear Barbeyrac himfelf in introducing it into his 
 notes, c Au tefte pource qui regarde la queftion, fil'on pent 
 ' empecher que les peuples Neutres ne traffiquent pendant Ic 
 *■ cours cie la guerre avec notre ennemi^ il y a une lettre de 
 4 notre auteur, &c. &c.'j 
 
 It is to be obferved, that PufTendorf no where entertains 
 the queftion of Neuti a! Commerce in his works ; but, what 
 is moil: important in this particular enquiry to know refers 
 you, with full approbation, to the opinions of Grotius in 
 the paiiages that have been cited at length.;}: The letter 
 was written to Groningius, whom Schlegel calls c fameux 
 1 jurifconfult,' in King William's war with France, at the 
 end of the feventeenth century. This civilian had under- 
 taken to aiTert, I know not what claims on the part of 
 Neutral Nations, but amongft them this of a ris:ht to trade 
 generally, which no one now withholds ; but which then, 
 as we have feen^ was particular! v difputed by the Treaty 
 
 * [,. viii.c. C. f Puff. D. des Gen?, 1. viii. c. 6. notis. 
 
 J 'Au rclrc li 1'ou veut ia voir en quoi confident ces temperamens 
 aulii bien que l'etendwe des> droit., de la guerre, et par rapport il 
 1'ennemi, et par rapport a ceux qui lui fourniiTent quelquc clioic ; 
 en trowvera la dcjj'us (implement de quoi fatisfairc daiii le traiic de 
 Grotius au troifieme livre.' Ibid, 
 
 5
 
 SeC. II.] MAKE FREE GOODS. 6l 
 
 of Whitehall. || Now, this particular circumftance, toge- 
 ther with thofe others juft now mentioned, of Puffendorf's 
 approbation of Grotius upon the fubjeci, and the very words 
 of Barbeyrac in introducing the letter, let us at once, I 
 think, into the true queftion that was before Puffendorf 
 when he wrote, winch feems thus folely to have been con- 
 fined to the pretension of England and Holland to cut off 
 all trade whatfoever with France. With this guide to our 
 minds in examining this important letter, let us proceed to 
 look at the letter itfelf.§ 
 
 'L'ouvrage, Monfieur, que vous promettez, touchant la 
 Liberte de la Navigation, excite ma curiofite. C'eff. ui\ 
 beau fujet, et fur lequel perfonne, que je fache, n'a encore 
 fait de traite particulier. Je crains bien neanmoins d'en 
 juger parceque vous toucbez dans voire lettre^ que vous ne 
 trouvicz des gens qui vous contejiercnt vos idees. La quefHon 
 eft certainement du nombre de celles, qui n'ont pas encore 
 etc etablie s fur des fondemens clalrs et induhitables^ qui puif- 
 fent faire regie par tout le monde. Dans tout les exemples, 
 qu'on allegue, il 'y a prefque toujours quelque chofe de 
 droit, et que/que chofe de fait. Chacun d'ordinaire permet cu 
 defend le commerce maritime des Peuples Neutres avec fes 
 ennemis, felon qu'ii lui importe d'entretenir amitie avec ces 
 peuples, ou qu'il fe lent de forces pour obtenir d'eux ce 
 
 || Videfupra. 
 § As to the other claim;, whatever they were, which Groningius 
 
 meant to let up, it is as in vain to enquire after them, as that they 
 (liould derive any weight from their author : fince we are told by 
 Barbeyrac himfelf, that being ' ccmpilateur de tres mauvais gout 
 les exemplaires de fa rbapfodi font iervi aux epiciers ft aux keur~ 
 rieres et par la font devenus rare?..' Puffend. v i . i . 6 ■ notis. It iscu- 
 rioits, after this, to hear Hubner's lamentation in the moment of 
 telling you that Neutrals ought to be allowed to trade with Beln- 
 gercnts upon tlie lame footing as in time of peace. 'The Baron 
 Puffendorf!,' fays he, 'has written a ihort letter upon thi: qui ; : ^r., 
 which I have never leen. It ought to be '•:•. a be k ..".' i G;'o- 
 nmgii Bibliotheca Univerfalis Librorum Juri 1: onun, uid in the 
 Iwjtii page, but I could not find the book at Paris.' Hub; 1 :. C6. 
 
 QV
 
 6 Z THAT FREE SHIPS [Pl'Op. I. 
 
 n-'i 1 fouhaUe. Les Anglois ct le Kcilandol?, peuvcnt dire 
 fa>:s od-jurdite, qu'ii leur eft perrnis de faire tout le mal 
 ul'.;> pcuver.E aux Francois avec qui ils font en guerre, et 
 par confequent d'empioicr le moien ic plus propre a les af- 
 foiblir, qui confifta traverfer ou empechr.r leur commerce: 
 qu'ii i.'cit pas jufte que les Peuples Neutrc, s'enrichiflent a 
 leurs depens, et en atrira.it a eux un commerce interrompu 
 pour l'Angleterre et la Huliande, fournifient a la France 
 des fecours pour continue)- la guerre : d'autant plus que 1'An- 
 gleterre et la Hollande, favorifent ordinaircment d'vinc autre 
 manie>e le commerce cle ces peuples, ct leur donncnt occa- 
 fionde tranfporter et debiter aillcurs les marchandiics deleur 
 cru, ou ce leur fabriquc: en un mot, aa'on veut bien leur 
 laiiter en fon entier le commerce qu'ils ont accoucume de 
 faire en terns cie paix ; mats qu'on ne doit pas foufFrir 
 qu'ils l'augmentent a l'cccafion de la guerre, au prejudice 
 des Anglois et des Hollandois. Mais comme cette ma- 
 tiere du commerce et de la navigation ne depend pas tant 
 de regies frondees fur une loi generale, que fur les conven- 
 tions particulieres entre les peuples: pour pouvoir porter un 
 jugement folide de la question dont il s'agit, il faut examiner 
 avant toutes chofes, quels traitez, il y a eu la-defTus entre 
 les Rois, du Nord, et l'Angleterre ou la Hollande, et ft 
 celles-ci leur ont offert des conditions juices ct railonnables. 
 J)' autre cote ne unmans fi les Rois du Nord peuvent ma'interur 
 four commerce a-\ : la 'r-..i:e, en Jdifant efcorter les vaijjeaux 
 marchands par des nc-virc: de guerre, tour-ju qu'il rTy ait 
 ■point de marchandifei de eonsrebande, perfcntie rCy trcuvera a 
 re J. re: la loi de Avumanitc et de requite entre nations, ne 
 s'entendant pa.", jufqu'a ex:, er que, fans aucunc neceffite, un 
 peuple fc prive ce fon profit, en faveur d'un autre. Mais 
 comme fai'id'tid des w.archanrts ejl ji grand? ■, que, pour le 
 moindre gain, its ne font c.ucutt jcrupule (Taller au de la des 
 jujhs homes: les Nations, qui lont en guerre, peuvent faire 
 vifiter les vaiiicaux des Peuples Neutres; et, s'il s'y trouve 
 
 des
 
 ScC. II.] MAKE FREE GOODS. 6 
 
 J 
 
 c:,' : ; marchandifes defcr.dues, les confifquer dc plein droit. 
 D'ailleurs, jo ne fuis pas furpris que 3c:. Rcis du Nor.! aient 
 plus d'egard a l'ir.teret general .:? toute 1'Europe, qu'aux 
 plaintes dc quelques marchai.ds, avides dc gain, qui ne fe 
 ioucicnt pas que tout kille fans dc ;.n, dc fous, pourvu qu'tii 
 fatisfaflent ieur avarice. Ces memes Princes iugent fage- 
 ment, qu'i! n'elc ■ . . a propos pour cux dc prendre des me- 
 fures precipittcs, pendant que d'autres peuples travaiilent 
 de tuutes ieurs forces a reuuire dans un etat de jufte mceio- 
 critti (Cite puiilance infolente, qui menace de mettre toute 
 ipe dans les iers, et en rneme terns de miner la Reii- 
 ir'io i Prouilante. Ce qui ctant aulli de 1'interet ces Cou- 
 ronnes du Nerd, il ue feroit ni jufte, ni raiibnnabie, que, 
 pour un pcti- profit a tern?, eiles troublaifent un defTein ft 
 faiutaire, dont on tache de venir a tout fans qu'i] leur en 
 coute rien et cu'ils ccurent aucun rilque,' ice. 
 
 Upon this letter it is to ce obferved prelirninarilv, that, 
 although the queftion was concerning the right to inhibit 
 all traffic whatfoevcr, (certainly the carrying trade is never 
 once mentioned or glanced at), yet he tens Groningius that 
 he would find many who would difaute his 'pofiticnsj 
 4 that Greet Britain and Holland could lav, without abfur- 
 • city, that it was allowable for them to do ail the mifchief 
 1 they could to France, and to employ .h^ propereft means 
 4 of weakening: her, which was to interrupt or prevent her 
 4 commerce: that they might f.y, without abfurdity, that 
 4 it was not juir for Neutrals to enrich themfelves at their 
 4 expence, and, at the fame time, furnifh France with the 
 4 means of continuing the war ; particularly as they aliowed 
 c them tc enjoy fuch commerce as they had poffejfed during 
 4 pcace^ but which they ought not to fuffer them to augment 
 4 on account of the war, and to their own prejudice.' 
 
 Poflibly the reader will advert to the very great ftipp. . ; 
 which, thus far, this great mafcer of the Law of Nations 
 
 £■'■• -s
 
 64 THAT FREE SHIPS [Prop. I. 
 
 gives in thefe paflages, to the reafoning that has been before 
 him. How thefe pafiages, at leaft, can feem to militate 
 againft that reafoning it will not be very eafy to demon- 
 strate. But he goes on to ftate, that as commerce and na- 
 vigation do not depend fo much upon general law as parti- 
 cular conventions, it will be necefiary to examine them, in 
 order to fee whether the Englifh and Dutch have come to 
 a juft and reaionabie agreement with the Kings of the 
 North. Here, then, he feems to found the right to trade 
 itfelf upon treaty, certainly, a't leaft, there is nothing here 
 againft our portions. 
 
 It is the next paragraph, however, which, it is conceived, 
 is hoftile, becaufe he favs, that if, after all, the Northern 
 Powers can maintain tosir commerce with France, by 
 means of convoys of veiTels of war, provided they abftain 
 from contraband, no one has a light to queftion them for 
 it, the laws of humanity and equity not requiring that a 
 people fhoulu deprive themfelves of any advantage in favour 
 of another, without any necemty for fo doing. 
 
 Upon this the obvious remark is that, even upon the 
 queftion of prohibiting all trade, where there is a neceffity 
 for fo doing, in this very paftage it is allowed that it ought 
 to be clone; and the only point, therefore, is, to eftablifh 
 a cafe wherein the neceffity may be made to appear. That 
 caie it has been the object of the preceding pages to demon- 
 ftrate, when Neutrals interpofe in the carrying trade ; an 
 interpofition pregnant to the full with as much mifchief, 
 and decifive of as much partiality, as the trade of contra- 
 band itfelf; equally, therefore, open to the ftrong obferva- 
 tion in the letter before us; — c But fince the greedinefs of 
 1 merchants is fo great, that, for the leaft gain, they make 
 1 no (cruple to overleap the bounds of jvjtke^ Belligerents 
 ' have a right to fearch the fhips of Neutrals, aid, if they 
 1 find prohibited merchandife, to coniheate them as fair 
 * prize.' 
 
 Now
 
 SeC. TI.] MAKE FREE GOODS. 65 
 
 Nov/, I own, from the whole of the context taken toge- 
 ther, 1 can fee nothing that would produce conviction, that 
 Puftendorf, fo far from being the champion of the Neutral 
 pretenfion, is net directly in favour of the Belligerent 
 claim. He allows we have feen that the two allied powers 
 may hold, without abiurdity, the very language that we 
 have been holding; he forefees that many will oppofe the 
 affertions of Groningius, though part of his object was to 
 pulldown a pretenfion in that war, which was fo confefledly 
 unjuft as to be abandoned by the allies themfelves; above 
 all, he allows the necemty of checking the unbridled ava- 
 rice of merchants, whole contempt of juftice, in their eager- 
 nefs for gain, is fuch, that he gives to Belligerents the full 
 rights of fearch and confifcation. This conceflion alfo im- 
 mediately fucceeds the only fentence in the whole letter, 
 or indeed in aii the works of Puffei.'dorf, which glances at 
 any thing like a fupport of the Neutral claim. But in 
 addition to this, much is to be obferved upon the terms of 
 that fentence itftlf. It is by no means unqualified or un- 
 mixed; the important ingredient of a national convoy is too 
 prominent not to engage our attention ; and if this is made 
 necefiary in the mind of Puftendorf to the enjoyment of the 
 privilege, the whole claim, in the cafe of private ihips, 
 muft be abandoned at once. 
 
 This, however, could by no means be the intention of (o 
 true a reafoner. Convoy may, poffibly, if Jo fettled^ be al- 
 lowed to difpenfe with certain forms in the exertion of a 
 right, but can never do away the whole right itfelf. The 
 prefence of a fnip of the State, it may be fettled by agree- 
 ment, fhall imply that the veflels and cargoes under convoy 
 are innoxious ; but can never, if they are noxious, render 
 them not fo ; never turn mifchief into harmlefsnefs, crime 
 into innocence. If the right itfelf, therefore, is unfupport- 
 able, it is not the circumftance of convoy that will fupport 
 it. This is fo clear, that it muft make its way into the 
 
 f raoft
 
 66 that free ships [Prop. I. 
 
 moll obtufe underftanding ; and we can never fuppofe, that 
 the fine mind and learning of Puffendorf could ever intend 
 to broach a pofition fo replete with abfurdity. If it means 
 any thing as to the maxim we are difcuffing, it muft mean 
 openly and boldly to affert, that Neutrals have the right by 
 the law, but, being contefted to them by force, that they may 
 oppofe that force for the enjoyment of their rights. Hovv- 
 ver, that it cannot mean this, I think is clear, from what 
 has already been cited from the preceding parts of the let- 
 ter, where the claims of the allied Belligerents are acknow- 
 ledged in full force. That other conftruclion alluded to, 
 that it applies to points of form, and difpenfes with fearch, 
 has, I know, been put upon it ; but, meaning to difcufs 
 that queftion in its proper place, I fhall not entangle the 
 fubject with it here. One farther, and not unimportant 
 obfervation, however, rnuft be made, that, even upon this 
 very point of convoy (whatever it means), the fentence is 
 conceived in thefe particular terms : that it is to be em- 
 ployed to maintain their commerce with France ; not the 
 enemy's commerce, nor for France This, coupled with 
 the hiftorical circumftance which muft always be borne in 
 mind, that the allies had, during th2t very war, pretended 
 to prohibit all trade whatfoever with their enemy, eluci- 
 dates the myftery that hangs over the fubjecl:, and puts the 
 matter beyond all doubt. It proves, I think, that Puffen- 
 dorf hefttated whether even this was not a proper preten- 
 fion of the allies; but that, if the Neutrals, who had a 
 conflicting pretenfion, of perhaps a fuperior nature, chofe 
 to maintain it by force, he could fee nothing to prevent its 
 affertion. It never can be ftrained, however, to mean that 
 they had a right to the carrying trade which they had never 
 poflefied before, and which would not be with, but for 
 France. Now this carrying trade is the very point in dif- 
 cuffion, that hee (hips make i:cc goods; and thus, upon the 
 whole, if Puffendorf 's letter is any authority upon the fub- 
 
 5 jca,
 
 ■SeC. I I.J MAKE FREE GOODS. 67 
 
 jecf, it is authority in favour of the Belligerent, not of the 
 Neutral. 
 
 And thus we have done with this celebrated letter, the 
 only authority that has ever been even glanced at to prove, 
 that in the feventeenth century the maxim in difcuffion had 
 ever been laid down as a principle founded in natural right. 
 
 What, however, {hall we fay (if any doubt can yet hang 
 upon this opinion of Puifendorf) to the authorities of two 
 men, nearly his contemporaries, co-ordinate in point of rank 
 and authority as civilians, equal in point of reputation, and 
 who both affirm, in terms the moil authoritative and une- 
 quivocal, that the pretenfion is unjuft. I fpealc of no lefs 
 men than Bynkerfhoek and Heineccius ; the one a Dutch- 
 man, the other a Pruffian ; each of them, therefore, of coun- 
 tries iiiterelted in finking the foundation of the maxim as 
 deeply in the Law of Nature as the Armed Neutrality it- 
 felf. Each of them, however, determines otherwise. 
 
 In the fourteenth chapter of the Quelf iones Juris Publici, 
 Bynkerfhoek entertains the queftion, ' De bojilum rebus in 
 4 amicorum navibus repertis.' In this, he fays, two things are 
 to be examined : firft, Whether the neutral fhip itfelf is confis- 
 cable for fault, in carrying enemy's property? next, Whether 
 the property fo carried is conflfcable ? As to the firft, after 
 canvailing many doubts, which have before been alluded to, 
 in the writings of Grotius and Loccenius, in times when 
 the Jaw upon the much larger claim of Belligerents was not 
 lb well fettled as it is now; he decides, as the world now 
 decides, that the fhip itfelf is not conflfcable. With re- 
 fpecl to the other, his opinion is as clear as his language is 
 emphatic. ' Why,' fays he, c do you doubt, fmce I have 
 e a right to feize my enemy's goods wherever I find them I* 
 But there are various treaties between Holland, and France 
 and Spain, in which the contrary rule is allowed; and, 
 therefore, either the old law of France is abandoned, or, 
 1 quod ejl veriusj the treaties are exceptions. Whichever 
 
 f 2 way
 
 68 that free snips. [Prop. I. 
 
 way it is, our bufmefs is more with the reafon of the thing 
 than with treaties (de ipfa ratione magis quam de pactis la- 
 borandum eft) ; and, reafon being coniulted, I fee nothing 
 to prevent my feizingan enemy's property, even on board a 
 neutral ihip, by the juji laws of war. You will, perhaps, 
 tell me, that I cannot feize the goods, without fir ft pofteff- 
 ing myfelf of the fhip ; which cannot be, again, without 
 invading her neutrality. But I have a right to ftop even a 
 neutral veflel, in order to afcertain that I am not de- 
 ceived by falfe colours ; I have a right alio, for the fame 
 purpofe, to examine her papers, and the papers relating to 
 the cargo as well as to the {hip : and if I find that they difclofe 
 the property of an enemy, I take pofleiTion of it by the 
 right of war. This is clearly allowed by the law of Hol- 
 land, and by the Confolato del Mare. I, however, do not 
 aflent to the accompanying conceflion in the Confalats, con- 
 cerning freight, which, not having been earned, ought not 
 to be allowed.' — Thefe are the fentiments of a man of the 
 very firft authority in the law; a man, whofe admirable 
 fenfe fifts the bottom of every thing he examines; a man, 
 in fhort, whom Barbeyrac fometimes prefers even to Gro- 
 tius himfelf. 
 
 We mufb not quit this account of Bynkerfhoek's opi- 
 nion, without remarking upon the fupport which he gives 
 to the next authority I mean to cite. c After I had written 
 
 * this,' fays he, 4 the book or the illuftrious Heinecciu.> 
 
 * came into my hands, in which he treats upon this fub- 
 c jeer. : far from finding in it any thing to make me change 
 £ my opinion, it is rathei corroborated, by the authority of 
 4 that great man.'* 
 
 Let us now come, then, to the investigation of this autho- 
 rity. It is to be found in that treatiie or" iieineccius which 
 
 (iueil. Jur. Pub. cap.xiv. ad fin. 
 
 examines
 
 Sec. II.] MAKE FREE GOODS. 69 
 
 examines queflions of confifcations for carrying prohibited 
 goods.* The eighth feclion treats of precifely the fame 
 queftions with thofe touched upon by Bynkerihoek ; and 
 after confidering them pretty nearly in the fame manner, he 
 comes to the fame conclufion. It is to be obferved, how- 
 ever, that although he fets forth the articles of the Confo- 
 lato del Mare, which feems to have all his approbation, 
 and, confequently, approves", the right of feizing enemy's 
 property on board a neutral veiled ; yet he entertains a quef- 
 tion upon all thofe points regarding the confifcation of the 
 veflel for carrying it, and the power itfelf of trading at all 
 on the part of the Neutral ; which, as we have feen, were 
 fo long undecided in Europe. After mentioning the Confo- 
 lato, he obferves, f non femper tarn humans funt leges 
 c tempore belli propofita?,' and then flates a variety of 
 cafes, which ail the old civilians had made ufe of before : 
 1 Ex quibus,' fays he, c fatis adparet vere omnino dixiffe 
 1 Grotium, non certam ea de re eiTe juris gentium legem. 'f 
 After diftinguiftiing, however, feveral different cafes, and 
 determining, as we have allowed, that modern ages have 
 moil: juftly dctermijied, he treats thequeftion before us as if 
 it never had been in doubt : ' Idem ilatuendum arbitramur, 
 
 * fi res hoftiles in navibus amicorum reperiantur. Ulas capi 
 
 * polle nemo dubltat, quia hofti in res hoflis omnia licent, 
 1 eatenus ut eas ub'uunque repcrtas fibi poffit vindicare.' 
 The {hip, as has been obferved, he reftores to the Neutral, 
 avIio was not forbidden by any law from taking them on 
 board, in the fame manner as the Belligerent is allowed by 
 law to feize them, when found on board ; and he gives the 
 whole common i'cn(c of the qucftion in his concluding fen- 
 tence : ' Quemadmodum ergo jure {no utuntur qui res hof- 
 
 * De Navil. ob. Vecl. Merc. Vetit. Comm. 
 f Id. Sec. viii. 
 
 F ? ' tium
 
 *0 THAT FREE SHIPS [Prop. J, 
 
 * tium ex iftis navibus auferunt ; ita ct injufte non faciunt 
 
 * qui amicorum res navibus fuis vehunt.' 
 
 For the fake of the true rcafon, and the real juftice of 
 the cafe, one could wiih that the regulation, which was 
 made fome few years after this, in the ordinances of the 
 French Marine, had been founded on fuch authorities as the 
 laft. However, the motive of the King of France was 
 ilill honourable, when he, for the fuft time, adopted the hu- 
 manity of the Confolato in relaxing the ancient rule of 
 France. He did this in order, as he fays in the regulation, 
 ' to preferve the good faith of the treaties which he had 
 
 * entered into,' not on the ground of general equity. 
 Before the regulation, therefore, of 1744 the French Ma- 
 rine had not yet departed from the old contejied Law of 
 Europe reflecting general trade with Belligerents ; and 
 their confining themfe.lves to the feizure of enemy's pro- 
 perty alone was matter of lenity and improvement. * 
 
 And here we clofe the account of the authorities upon 
 this debated queftion, from the eleventh to the middle 
 of the eighteenth century ; during which long period, as 
 far as can be judged from the pofitive evidence produced in 
 its favour, and the little force of that evidence which is 
 produced againft it, the remark which was made in the out- 
 fet of this lection is confirmed, that the ftream of the au- 
 thorities is againft the principle of the Armed Neutrality. 
 I think we are neareft the truth in faying, that thus the 
 matter refted until the middle of the laft century, when, 
 for the firffc time, Europe faw thofe principles of trade, 
 which had been for a long time forcing theinfelves into 
 practice by the exprefs ftipulations of treaty, contract, and 
 convention, at length boldly brought forward as a matter of 
 general right, founded, as the Armed Neutrality of 1780 
 
 * ?ee the Reglemmts of 1704. and i-.u, 2 Valin, 24S, 250. 
 
 (aid,
 
 'StC. II. j MAKE FREE GOODS. y t 
 
 laid, in natural juftice, and, as the Armed Neutrality of 
 1800 favs, in the indifibluble ties of natural law. In con- 
 fequence of this, it was no longer nectfTary for Maritime 
 States to look to their treaties for the line of their duty, or 
 the foundation of their privileges; but the convenient 
 theory of right fet up, roie far above all law; and by feek- 
 ing the divine origin of reafon, equity, and the general 
 rights of mankind, endeavoured really to perfuade BeU 
 ligerents, that a Neutral might interfere in the war before 
 their faces, and fcreen their enemy under his cloak, at the 
 moment when he might be falling within their power. 
 
 Thefe privileges, founded on right, were firft claimed 
 by the King of PruiTia in the war of 1745, and were de- 
 veloped at large in his minifter's memorial to the Duke of 
 Newcaftle, 1752. 
 
 That memorial difclofed the real pretenfions of the Mo- 
 narch by whole orders it was framed in the fryle which it 
 ruVumed j* from which might be collected, in fine, all that 
 the King of Pruflia found it convenient for himfelf to do, 
 although in defiance of all that any King in the world had 
 attempted in the fame circumftances. The Courts of Ad- 
 miralty in this country having, it feems, borne hard upon 
 his fubjects for bad conduct under their profefiion of Neu- 
 trality, he chofe himfelf to try the matter over again by a 
 Court of his own ; and, as might be expected, that Court hav- 
 ing difcovered that his fubjects were in the right, he pro- 
 ceeded to carry its fentence into execution, by immedi- 
 ately, and of his own authority, in the manner of reprifals, 
 cancelling the large debt of his new conqueft of Silefia to 
 
 * Expofition of the Motives founded upon the univerfally 
 received Laic nf Nations, which have determined the King of 
 Pruflia, upon tiie repeated inftances of his fubjects trading by fea, 
 to lay an attachment upon the capital funds which his Mujefty had 
 promifed to re'unburfe to the fubje&s of Great Britain, in virtue 
 of the peace treaties of Brellau and Drefden. See i Magens, 437' 
 
 F4 
 
 the
 
 ?2 THAT FREE SHIPS [Prop. I. 
 
 the merchants of England, until the claims of his own 
 fubjecls were fatisfied. The mockery of fetting up a tri 
 bunal of his own, to review the fentence of the only tribunal 
 acknowledged in point of fact by the Cuftom of Nations, 
 whatever arguments particular perlbns may have thought of 
 weight again!! it in theory, it is needlefs to expatiate upon, 
 the queftion of the competent jurifdiction not being now 
 before us j but in order to (hew the proper qualifications of 
 this new tribunal, a new law was abfolutely broached, and 
 Europe, for the firft time, faw, in the following abridged 
 queftions, the embryos of the Armed Neutrality. 
 
 I. Whether Belligerent fhips could (top Neutrals on the 
 high feas, fearch, or carry them into port, notwithstanding, 
 from the exhibition of papers, that no contraband was on 
 board ? 
 
 II. Whether they could detain them under pretext that 
 they carried enemy's property ? 
 
 III. Whether the Courts of the capturing Belligerent 
 are competent to decide upon the legality of the capture ? 
 
 IV. Whether the King could not confifcate the Silefian 
 debt by way of reparation for the long delay of juftice, and 
 the unjuft decifions of thefe Courts ? 
 
 And thus, after near fix hundred years filence in Eu- 
 rope upon this great queftion as a principle in the Maritime 
 Law, during which time almoft every other principle had 
 been ftarted, canvaiTed, refitted, or confirmed, amidit the 
 thoufand revolutions of commercial Hates \ after the very 
 queftion itfelf had long been agitated with the greatetf. 
 urgency as a point of convention between particular nations ; 
 it was at length fairly put forth in form, as a right belong- 
 ing to all nations, claimable from nature and not from 
 agreement, and by confequence fo far fuperior in obligation, 
 that treaties on the ilibject were to change their object, 
 r.nd ftipulate, where change was neceflary, the rcverfe of 
 •he principle, ;;.!;;. ,j of the principle itfelf. 
 
 England
 
 ScC. II.] MAKE FREE GOODS. 
 
 / 3 
 
 England law with aftqnifhment this open and bold defign 
 to overturn all the received principles of her maritime 
 rights and duties ; and prepared to refill: them, both by the 
 firmnefs of her conduct and the lbundnefs of" her reafoning. 
 At that time there were at the Court of London four illuf- 
 trious men, learned in the laws of their country and of the 
 world, of great integrity of life and faithfulnefs in all mat- 
 ters of reprefentation. One of them was a judge of the 
 realm in all matters of civil and public law, the reft the 
 higheft law-officers of the Crown. To thefe was confided 
 the important charge of examining the argument by which 
 fuch unheard ofpretenflons were to be fupported, and to afcertain 
 whether or not all Europe had been in a dream, when, in 
 compliance with the authority of ail her wife men, and the 
 example of all her States, fhe had for fo many ages admitted 
 the contrary principles as received law. 
 
 The aniwer which thefe learned men gave to all the 
 proportions laid down by the Prufiian Minifter, is fo well 
 known to England, and fo widely diffeminated in Europe, 
 that it is needlefs to repeat it. In this hiftorical part of the 
 argument, it is fufficient to fay, that thofe excellent perfons, 
 to whom his Majefty had confided the defence of the mari- 
 time rights of his kingdom, mod: amply juffified the con- 
 fidence that had been repofed in them; by furnifhing aa 
 anfwer to the Pruffian allegations of fuch force and autho- 
 rity, that the maritime law of Europe, for this time at 
 leaft, ftood unfhaken. Whether it can ftand the (hock, of 
 the pens of Hubner and Schlegel, fupported by the fleets 
 and armies of fuch great and mighty kingdoms as are pre- 
 paring for the conteil, remains to be feen. Only thus much 
 we may obferve ; that if the Northern Confederacy fhouid 
 even fucceed by the force of power to change the law, as 
 we fay it has flood for ages, that change will not he 
 brought about by altering the principle, but by a conven- 
 tion not to obey it. The nature jf the laws of Reafon and 
 
 Equity,
 
 74 THAT FREE SHIPS [Prop. I. 
 
 Equity, and the writings of thofe learned men who have 
 developed them, muft always remain the fame ; whatever 
 injuries they may fuftain from ignorance or violence. As 
 a general rule, whenever the iuhjecl is confidered in the 
 abirra&, the old opinion muft ever prevail ; and though con- 
 federacy mould arm after confederacy, and treatv fhould 
 fucceed to treaty, until the fa6t actually happened, that 
 every Maritime State of the world fhould agree to be 
 bound by a different law ; ftill the rule itfelf, if properly 
 founded, would be impregnable and unavailable, where- 
 ever firft principles are concerned. At the time we are 
 treating of, Europe was fo little prepared to deny 
 this, or, what is more, to deny that the conduct of the 
 preceding ages, and the writings of the Civilians, had 
 been grounded entirely upon thefe firft principles ; that the 
 Duke of Newcaftle's letter, containing the anfwer to the 
 Pruffian Minifter, was then confidered, and will, I truft, 
 ever be confidered by difpaflionate and difinterefted perfons, 
 as a mafterpiece of true and general law. Thus, at leaft, 
 it was held by the greatefl men of that time. Vattel, in 
 fpeaking of the jurifdiction of courts in the countries which 
 creel them, obferves, that for another country to attempt 
 to fet aiide their definitive fentence, is to attack the jurif- 
 tlii5lion itfelf j on which account no prince ought to inter- 
 pole in the caufes of his fubjeefs when in foreign countries ; 
 adding, by wav of farther proof, c la Cour d'Angleterre a 
 4 ctabli cette maxime avee beaucoup d'evidence a l'occafion 
 ' des vaifTeaux Prufftens faiiis et declares de bonne prife pen- 
 1 dant la derniere guerre.' And in the note upon this paf- 
 fige, he oils it, ' Un excellent morceau de Droit de 
 ' Gens.'* To this teftimo'ny of Vattel, we may add, in 
 another country, that of Montefquieu j who, fpeaking of it 
 
 * Droit des Gen, 1. vii. 84. 
 
 in
 
 SeC. II.} MAKE FREE GOODS. yt 
 
 in a private manner, as a mere literary man, in one of his 
 familiar letters, fays, it is confidered as * Reponfe fans 
 * replique.'* There are, however, full irron»er and irre- 
 fragable proofs of its general merit, its foundnefs of doc* 
 trine, and cogency of conclusion, in the conduct of Frede- 
 rick II. himfelf. We have feen that his own minifter at 
 the Court of London had abandoned it as far as the prin- 
 ciple immediately before us was concerned ; f and this 
 probably, together with the force and weight of the aniwer 
 in the minds of the different public men of Europe, induced 
 him not to renew the fubiect. Certain it is, that not only 
 thefe pretenfions were never afterwards heard of, as founded 
 in principle, until the Armed Neutrality of 1780; but the 
 king of Pruffia gave the moft convincing proofs of convic- 
 tion, by relinquishing the immediate pretenfions for which 
 lie had directed the Expofition des Motifs to be prepared. 
 The intereff. of the Silefian loan was no longer withheld, 
 but from that time regularly difcharged. J 
 
 After all that has been laid, therefore, of the hiilory of 
 the law in Europe ; the uniform acknowledgment of the 
 principle of the Conjolato* whenever it was not modified by 
 treaty ; the conftant, regular, and ftrong fupport which it 
 met with from the v/ritings of Grotius, and the conduct of 
 de Witte ; the approbation of all t-he other writers of the 
 feventeenth century; the unqualified renewal o; that appro- 
 bation by Bynkerfhoek and Heineccius, at the beginning 
 of the eighteenth ; the praife of the anfwers we have been 
 reviewing, from fuch men as Vattel and Montefquieu, in 
 the middle of it ; and the final acknowledgment of its 
 force bv the conduct of the parry himfelf to whom it was 
 addrefled : after all this, I lav, what are we even to at- 
 
 * Lettre 45, a l'Abbe Guafeo. 
 
 f Andrie's Letter, vid. i'upr. p. 57. 
 
 X 12 Smolkt, iji. 
 
 tempt
 
 76 THAT FREE SHJPS [P/'Op. I. 
 
 tempt to make of fuch language as this on the part of the 
 Danifh ProfefTor r 
 
 1 Le Gouvernement Anglois repondit parune confultation 
 4 de quatre jurifconfultes qui defendoient les jugemens 
 1 conteftes par le regie anciennement adoptee par le Con- 
 1 folato del Mare. On s'etonnait alors de ce que le gou- 
 ' vernement et les jurifconfultes Anglois au lieu de fuivre 
 1 le progres des lumieres fe trouvoient en arriere de plus 
 4 d'un fiecle dans la icience du droit des Gens.' * 
 
 What thefe lumieres were, by the progrefs of which we 
 ought to have been governed, it would not be difficult to 
 guefs ; but, unfortunately, the lumieres of that time were 
 all on the fide of the Belligerent Powers; for in the very next 
 war, not above five years after the Expofition des Motifs 
 and its anfwer appeared, the fame principles as were then 
 acted upon by England, were acted upon both by England 
 and France, to the destruction of Neutral interpofition, and 
 with it, perhaps it mult be owned, in fome inftances, to the 
 deftruction of their julfc rights. The conhfeations of whole 
 fleets, almofr. of Dutchmen, on the part of Great Britain ; 
 and of Danes, on the part of France; and the confequent 
 difcontent, remonftrances, and urgent memorials from the 
 merchants to their Governments, are frill, perhaps, in the 
 memories of many at this moment alive. Deputation after 
 deputation, in Holland in particular, was fent to their ma- 
 gistracy ; and there appeared, at one time, a memorial figned 
 by 269 of the principal merchants, ftating their fuppofed grie- 
 vances and caufe of complaint ; in which, no doubt, many real 
 injuries were intermingled with cafes of refinance to injury. 
 They even went fo far in this memorial, as to offer them- 
 lelves to contribute a contingent, and to arm, at their own 
 charge, for the protection of their infulted commerce. But, al- 
 
 • ScWcgel, 9. 
 
 though
 
 ScC. II. "] MAKE FREE C0Ol>3. 77 
 
 though great and juft complaint was made of particular acts 
 of robbery, cruelty, and iniblence, on the part of the Englifh 
 privateers, for which the memorials of our Ambaflador 
 himfelf confeffed there was but too much foundation;* al- 
 though the defence of our own Belligerent rights carried 
 along with it fuch frequent attacks upon the fair rights of 
 their neutrality, as to excite the indignation of our own 
 Government, and even of individuals here, who, to ;their 
 honour, aflbciated to offer rewards for the difcovery of 
 the perpetrators; although, alio, there was a great and 
 fharp conteft on the interpretation of the Maritime Treaty 
 with Holland ; yet, amidft lb many opportunities, fo many 
 direct, or incidental occafions to broach the maxim in ques- 
 tion as ?. matter of natural right, that pretenfion was never 
 afierted ; but all was refrcd upon convention, contrail:, and 
 cuftom, and that, not as the conventional or cuftomary law 
 of Europe, but as the mere pofitive agreement of the two 
 individual States. On the other hand, the Britifh Minifter, 
 while, as we have obferved, he admitted the too frequent 
 inftances of unjuft violence on the part of privateers, 
 never once relaxed in the loud affertion of our Belligerent 
 claims, to prevent the Dutch from pretending, under falfe 
 interpretations of the treaty, to carry the colonial trade of 
 France. 4 His Majefty,' fays one of thofe dignified memo- 
 rials, ' is at war with the rnoft Chriftian King; he cannot 
 1 hope to get out of it with fafecy, or obtain a fpeedy and 
 ' lafting peace, which is his Majefty's fole aim, if the 
 ' Princes who have declared themielves neuter, inftead of 
 c contenting themfelves with trading as ufual, without any 
 1 rifk, alTume a right of carrying on that trade with the 
 c King's enemies, which is not allowed them in times of 
 " peace. His Majefty fees with pleafure the trade of his 
 
 * See Sir Jofeph Yorke's Memor. to the Statts Gen. 2id OSl. 173S, 
 An. R-. i :: g. 
 
 4 neighbours
 
 7S THAT FREE SHIPS \_PrOp. I. 
 
 4 neighbours flourifh, and would behold its increafe with fa- 
 
 * tisfaition, if its profperity were not repugnant to this 
 
 * primarv law.'* 
 
 In thofe days, when the fpirits of men were hotteft 
 againft us, there came out at Amfterdam another Expofition 
 upon the fubjedt of the difputes between Holland, as 
 Neutral, and Great Britain, as Belligerent. But, unlike the 
 former Expofition on the part of Pruffia, though the caufes 
 of complaint were precifely the fame, fuch as the interrup- 
 tions to trade, by unfair detentions, illegal fentences, and 
 the long delay of juftice, yet, not one of the objections is 
 founded upon the falfenefs of the pri?iciple > as founded in 
 nature, of our conduct as Belligerents; but the whole is 
 confined, either to cafes of improper conduct in the purfuit 
 of an unoppofed natural principle, or to a difcufiion of 
 particular rights under the Maritime Treaty. f 
 
 In thofe days, alfo, came out a Memoir e hijlr aci'if on the 
 part of France to Holland, of the precautions which its 
 merchants ought to obferve, in order to avoid falling within 
 the fcope of the ordinances of the marine, relative to 
 prize. In the preamble to this memorial it is ftated, that 
 every power at war is naturally attentive to prevent its 
 enemies from carrying on a free trade under the protection 
 of Neutral colours; and amongft other things, Article 7th, 
 if Dutch fhips carry any goods or merchandife of the 
 growth or manufacture of the enemies of France, they (hall 
 be efteemed good prizes, but the fhips flia.ll be difcharged. 
 In Article 8th it is ftated, that the paiTports given in Hol- 
 land to a Dutch fhip (hall ferve for that voyage for which 
 it is given; that is, to go from the place of its loading to 
 
 * See Sir Jofeph Yorke's Memor. to the States Gen. i2d. Oft. 
 1758. An. Reg. 1758. 
 
 f Summary Expofition of the Cafe of the Dutch Ship?, Amfterd. 
 abridged, in the cafe of the Dutch {hips confidertd by Sir James 
 Marriott, 35 to 47. 
 
 that
 
 SeC. II.] MAKE FREE GOODS. 79 
 
 that of its deftination, and from thence to return to Hol- 
 land. If it fhould make any other intermediate voyages 
 with that paffport, it fhall be declared a good prize. * 
 
 It was in this war alio that many of the foregoing prin- 
 ciples and much of the historical deduction was drawn up 
 with force and perfpicuity, by the prefent Earl of Liver- 
 pool, f in a difcourfe, which, being in every body's hands, 
 need not here be mentioned more particularly than to fhew, 
 in conjunction with thefe lalf inftances, on the parts both 
 of Great Britain and France, how every thing in the di- 
 plomatic hiftory of Europe confpires to prove the uniform 
 uffertion, whenever opportunity arofe for its difcuffion, of 
 the principle, taken as fucb^ in all times and by all countries. 
 The fingle exception of PrufBa, in 1752, to which we have 
 adverted, could never be counted in the fcale, from the very 
 circumfhmce of its being fingle ; but the conduct of that 
 King, which was founded upon the new claim, having, as 
 we have feen, been changed, and totally relinquished, the 
 claim itfelf muft be confidered as having been relinquifhed 
 along with it, aud the rule ftands thus confeffedly in hiftory, 
 even without that fingle and folitary exception. 
 
 I think we may, with confidence, appeal to the Profeflhr 
 himfelf to point out whether thefe affertions are not proved 
 from the hiftory of the world, from the earlieft known 
 time to the days of Hubner, or, at leaft, to the sera of the 
 Expofition des Motifs; fince, as has before been adverted 
 to, he himfelf confefles, that this was the firft time that the 
 rights of Neutrals were * completement diicutes/J But not to 
 confine him to the ftrictnefs of this confeflion, we may fay, I 
 think, without running the hazard of contradiction, that 
 
 * Summary Expofition of the cafe of the Dutch mips, Amfterd. 
 abridged, in the cafe of the Dutch mips confidered by Sir James 
 Marriot, 35 to 47. 
 
 f Difcourfe on the Conduit of Great Britain with refpect to 
 Neutral Nations. % Schkgel, I 
 
 there
 
 8o THAT FREE SHIPS \_PrOp. I. 
 
 there is nothing in his work, at leaft, which militates 
 againft our pofition, except fome very unqualified aflertions, 
 wholly without proof, and without an attempt at proof ; 
 which can only, therefore, be attributed to his not properly 
 diftinguifhing the things agreed on, by particular treaties, 
 and the things which all itates have a right to claim, and 
 do actually infill: on, without any reference to treaty, or 
 even to cuftom. 
 
 That this is not too overftrained a charge againft both 
 Schlegel and Hubner may, I think, be collected from the 
 ienfe which they put upon what they call the conventional, 
 or thepojitive law of nations. This, throughout their works, 
 is uniformly and invariably applied to the fripulations of 
 treaties, which, in every light, appears to me erroneous. 
 For, not to mention that it is fometimes applied where the 
 cafe can by no means warrant it, fuppofing them to be other- 
 wife right ; I mean where the treaties bear no fort of pro- 
 portion to the number of ftates that obey a different law ; 
 the phrafe would ftill be inaccurate, although by far the 
 greater number of the Hates of the world were to become 
 parties to the treaty. 
 
 This mav be collected from the forcible import of th^ 
 phrafe, Laiv of Nations ; a term fo extenfive, {o ablrract, and 
 of fuch intrinfic weight, that it implies the duty of all na- 
 tions, in all time?, places, and circumftances, independent 
 of any change of fituation, and, consequently, of the rela- 
 tions of peace and war. By which laft, we mean not that 
 fome of thofe duties may not befufpended by the terrible 
 operation of the iTate of war, but that when peace returns, 
 the law fhall alfo return of itfelf, by the common courfe and 
 intendment of its inftitution, and not by the intervention of 
 any new compact, treaty, or agreement. 
 
 This character of a law of nations, under what is called 
 the primitive or natural law, is matter of every day's ex- 
 perience ; fincc the laws of Nature and Reafon, which are its 
 
 foundations
 
 Sec. II.] MAKE FREE GOODS* 8 I 
 
 foundations, can never be altered, when left to themfeives, 
 under anv change of place or time. But neither do I 
 fee that this character can in the leaft be altered, merely 
 becaufe it is conventional ; for the force and definition of 
 the term law, taken asfuch, muft be equally extenfive and 
 precife, whatever its foundation or its obligatory powers 
 may be. Once admit, therefore, that it is law, and nothing 
 fhcrt of the power which gave it exiftence is equal to the 
 talk of its deftrudtion : its authority, while it lajls^ muft al- 
 ways be equally extenfive, uniform, and certain, and not likely 
 to be affected by adventitious circumflances, fpringing from 
 the arbitrary or capricious conduct of one, two, orthreeof the 
 flares that joined originally in its constitution. But, above 
 all, it muft ever continue to bind the whole of that fociety of 
 dates which originally ftipuiated to be bound by it $ for if it 
 were otherwife, I do not fee how it is poflible to ufe the term 
 itfelf, of Law of "Nations, with any fort of propriety or ac- 
 curacy, or, what is more, with any chance of effect in point 
 of argument, or pleading before any tribunal of the Law of 
 Nations. For that law, whether founded in nature and 
 reafon, or fimple convention, is that which, emphatically, 
 may be relied on in point of plea, before a court of Law of 
 Nations. It is thofe courts that are alternately to decide 
 upon claims, and refinance to claims, according to law , 
 and the conventional, once eftablifhed, is acknowledged there 
 as of equal force and authority with the natural law. The 
 authority of treaties is alio there acknowledged between 
 thofe ftates that have made them. But how a Britifh fub- 
 je£t, for example, where no Britifh treaty exifts, can be 
 concluded by thofe courts, on a point of mere -inftitution, 
 on the ground that Ruflia, Sweden, and Denmark, in con- 
 junction, wc will fuppofe, with all the other ftates of the 
 world, have formed treaties together, it would puzzle thi 
 underftanding to conjecture. In fact, thofe courts, in ques- 
 tions of right, founded upon treaty, look alone to ;h? trea- 
 ties
 
 St fHAT FREE SHIPS [Prop, f, 
 
 tics themfelvcs for the difcovery of thofe rights ; but for 
 rights founded in the law itfelf, whether conventional or 
 natural, they look cither to natural fanclions or human infti- 
 tutions. In the firft cafe, they look to the Law of Nature ; 
 in the laft, they look to the fact ; and if the fact is not to be 
 difcovered, even without the exiftence of treaties, in uni- 
 verfality or uniformity, but with great and various excep- 
 tions, the law itfelf is wholly at an end. Whenever, there- 
 fore, we attempt to fet up a right, or to repel a claim, upon 
 the ground of the Law of Nations^ we mean (or we can 
 mean nothing) that there is, in the very force of the term, 
 an authority (o implicity acknowleged by the party with 
 whom we are reafoning, that it is not neceflary to go farther ; 
 fo that the only reply that can be made is, not to deny his 
 obedience to the law, but to queftion the fact of its being 
 law. 
 
 Now, the conventional law of nations, deriving autho- 
 rity frem univcrfai cuftom, it is very material indeed that 
 the party rcafoned with fhould have complied with that 
 cuftom, or the matter muft initantly drop, as * res inter alios 
 afta.' It is in this, as we fay, wholly unlike the primitive Law 
 of Nations, which, as was before obferved, muft bind every 
 one, whether he chufe to deny it or not, becaufe its force, 
 power, and divine authority muft ever be the fame ; and 
 .any attempt to withdraw from it may be rebellion indeed, 
 but never can bean abrogation ; the party withdrawing en- 
 tering into the clafs of common barbarians. But, if what 
 is here called Conventional Law was never fubmitted to, in 
 point of fait, by nil the ftates which, it 4s faid, are its fub* 
 jtilts \ if only part of them have fummitted to it; if, beildes, 
 from the courie of human events, even this univcrfai con- 
 trait (iupjipfmg it to be univerfal) muft ever be liable to be 
 trenched upon, weakened, and diminifhed, in the number 
 A US Contracting parties ; nothing with the force of Law of 
 
 Nations
 
 SrC. II.] MAKE FREE GOODS. 83 
 
 Nations can ever be expected from Co feeble, fluctuating, 
 and uncertain a ftate. 
 
 Now, to apply thefe principles^ we may obferve, tha* 
 there are fome certain cuftoms agreed upon by all the na- 
 tions of Europe, and fpringing out of that fimilarity of man- 
 ners, origin, and religion^ which characterizes them, or 
 derived from the intimacy and duration of their connections 
 together, which, from being invariably and univerfally ob- 
 fcrved, although not the effect of the mere Law of Nature, 
 have come to have the force and authority of law. Thefe, 
 whether they were the filent growth of time> the effect of 
 Chriftianityj or originally the offspring of Univerfal com. 
 pact, are never, or fcarcely ever, known to change, what- 
 ever exigency of affairs may fall out) and thefe, therefore, 
 may very properly be called the Conventional Law. Of this 
 nature are — 'the right of fending ordinary or refident Am- 
 baffadors to one another's courts, which cannot now be 
 refufed without an affront 3 the refpect ihewn to flags of 
 truce ; the abftaining from putting prifoners to death, or 
 their reduction to flavery ; the prohibition of the ufe of poi- 
 foned weapons } the refpect (hewn to particular figns and 
 ceremonies, fuch as appear in taking poffeflion of newly 
 difcovered countries 5 the abftaining from contraband in war * 
 many of the laws regarding falvage and re-captures at feaj 
 the refpect {hewn to an actual blockade, or an order of em- 
 bargo ; all thefe, and others, whether originally the growth 
 of the treaties of all nations or not, arej in point of fact, ac- 
 knowleged by all nations, in all times and places, fome of 
 them in peace, fome of them in war, and all of them, whe- 
 ther peace or war, intervene not; fo that, although war 
 may Impend fome of them for a time, their authority in- 
 ftantly returns on the renewal of peace, without having 
 recourfe to new conventions. 
 
 Here, then, is conventional law; but I do not fee how ; 
 in the nature of tilings, becaufe a proportion only of ths 
 
 g 7 flates
 
 84 THAT FREE SHIPS [Prop. I» 
 
 ftates of Europe (allow it to be a large proportion) have 
 chofen to eltablifh certain points of compact together, 
 which are not only not aflentcd to, but protefted againft, 
 by others, and thofe points pure matters of agreement, not 
 grounded upon the Law of Nature, but, perhaps, in dero- 
 gation of that law : I fay, I do not fee that the thing agreed 
 upon by thefe compacts can ever alTume the dignity and 
 power of binding all nations, except upon the fuppofition 
 that a few, or any number, of independent Sovereigns have 
 a right, by treaties amongfl one another, to bind other So- 
 vereigns equally independent. This, at lead, can never 
 be the argument of thofe who defend the neutral preten- 
 fions ; fince this would he neither more nor lefs than to 
 fall into the very faults of which they accufe the more 
 powerful Belligerents; and, indeed, for obvious reafons, 
 can never be defended, either by them, or any other per-- 
 fons, by any turns of ingenuity, or any force of reafoning 
 whatfocver ; and, therefore, we will not wafte time in the 
 diicuffion. 
 
 But farther, if even all the States in Europe were to agree 
 to any particulai thing by treaty ; though the point agreed 
 upon would have as muish lorce, tvhilt the treaty Lifted, as 
 •any law whatfoever; yet, according to our principles, that 
 force would not be derived from the law, but the compact. 
 For we muff, always bear in mind, that it is the important 
 circumftance of being fuperior to every power, except that 
 which formed it, that forms the very character and eflence 
 at a law. f.avv, then, when once eftablifhed, mull: exift 
 in all times and places, be fuperior to the adventitious cir- 
 curnftances of peace and war ; and, while it endures, muff 
 endure with undiminifhed force, clearnefs, and authority. — • 
 This, however, can never be the cafe with matters of 
 treaty, even although the parties to it fhould be no fewer 
 than all the nations of Europe; becaufe, exclufive of the 
 circumffan.ee that every member of the compact is himfelf 
 
 th«
 
 St'C. II.] MAKE FREE GOODS. 8$ 
 
 the judge of its interpretation, the very nature of treaties 
 is to exift no longer than during the continuance of peace 
 and friendfhip between the contracting parties; which 
 words no longer do not mean that they revive of them- 
 felves when peace is re-eftablifhed, but that, by the very 
 act of war, they are annihilated, not fufpended, and can 
 never be renewed, except by fome formal ftipulation in the 
 new treaty of peace. Hence, in every treaty of peace, 
 the contracting parties are careful to infert what of their 
 antient treaties fhall again be put in force, what modifi- 
 cations they fhall undergo, what privileges fhall be pre- 
 ferved, and what claims aflerted. But if this is fo, as the 
 fa£t of almoft. perpetual war in Europe, among fome or 
 other of its nations, is too true for contradiction, obfervc 
 how it will affect even that conventional law of nations, as 
 it is called, which, for the fake of the argument, we fup- 
 pofe to have been folemnly acceded to by all. Should two 
 nations go to war, the law is inftantly abrogated as to 
 them, and will require a new compact, after war is over, to 
 afcertain whether it is ftill the law of all nations. Should 
 ?nore than two go to war, the breach in the law is ftill more 
 extended. Should the Belligerents be united by alliances 
 with many other nations, (and fuch is the plan upon which 
 Europe has long proceeded, that it is now fcarcely pomble 
 for any two of the principal powers to appeal to the fword, 
 without drawing along with them almoft all the reft,) then 
 this law is for ever at an end, as far as it depends upon 
 itfelf, between all thofe nations that are ranged on the one 
 fide, and all thofe that oppofe them on the other. But 
 mould it happen that fome of the belligerent nations fhould 
 change fides during the courfe of the war, (of the pombility 
 of which we have at this moment but too many melancholy 
 proofs) then the abrogation will be extended, not only be- 
 tween the confederates on the one fide and thofe on the 
 
 other,
 
 86 THAT FREE SHIPS [Prop. I. 
 
 other, but between thofe themfelves, who, at firft, had 
 been ranged under the fame alliance ; in other words, be- 
 tween the very confederates. And thus, if the ftipula- 
 tions of treaty can be called the conventional law of Eu- 
 rope, becaufe entered into even by all Europe, (a circum- 
 ftance abfolutely eflential to the very term itfelf) there is 
 Scarcely a year in which new conventions muit not be 
 made by fome one nation or other, to afcertain whether the 
 conventional law is in exiftence or not. 
 
 But where the fact actually is, that only a part of the 
 States of Europe have entered into the treaty j and when 
 the whole hiftory demonifrates that many have ever refufed 
 to form fuch a treaty; then, beyond all doubt, and upon 
 the mere fignification of terms, the particular thing ftipu- 
 lated for can never acquire the force of a law of nations, 
 for the plain reafon, that nations have never enacted fuch a 
 jaw. 
 
 But an objection here meets us, which has caufed per- 
 petual difcuflion whenever the queftion has been ftarted, 
 has often divided opinions, and filled the whole fubject 
 with doubt. As nations, it is faid, are all in the fame 
 {late of independence one towards another, and own no 
 fupcrior fovereign to decide upon their differences, or ex- 
 pound the Law of Nature which governs them ; they have 
 had recourfe to the ftipulations of contract with one ano- 
 ther, in order to afcertain more prccifely what it is that 
 is thus writ down in their duty by the law which they ac- 
 knowledge. Confcqucntly, whatever doubts might be 
 entertained before any treaty was made on a particular 
 fubject, the moment thoic doubts have been deprived of 
 their uncertainty, by the exprefs provifions of fettled 
 compact:, the law ftands difclofcd in all its truth, may 
 ever after be reafoned upon, and muft be obeyed. Hence 
 it is that in treaties we look for the law ; and if the ma- 
 jority of nations, or of treaties, have fettled to purfueor 
 
 abftair;
 
 Sec. II.] MAKE FREE GOODS. 87 
 
 abftain from any particular line of conduct, the interpre- 
 tation of the law of nations is then refted upon a lure 
 foundation : and hence if a considerable majority of trea- 
 ties determines upon any particular point, itinftantly ex- 
 plains what ought to be the law, and fhall become the 
 general rule where there is no treaty to meet it with con- 
 trary ftipulations.* 
 
 On the other hand, it is faid, that fo far from finding 
 the law in the ftipulations of convention, thofe ftipula- 
 tions are exprefsly introduced, in order to fhew that the 
 law in particular inftances is renounced. In vain, fays 
 the argument, do you contend for the obfervance or the 
 exiftence of a Law of Nature, or an univerfal cuftom, if 
 it is neceffary to define it by exprefs agreement. Thofc 
 laws muft be engraven in the heart of man, or at leaft 
 be perfectly familiar in the cuftoms of man ; and there- 
 fore when we find whole focieties entering into compact 
 with one another, concerning any particular path of con- 
 duct, it muft be with a view, in departing from what is fo 
 well known, to point out exactly to what degree it mail 
 be abandoned. An agreement therefore to abide by any 
 given mode of conduct, is in direct derogation, not in 
 affirmance of the law, whether conventional or natural. 
 
 Perhaps the truth will lie between thefe two oppoiite 
 plans of reafoning : and probably it will not be very 
 difficult to fhew that both are in part, neither of them 
 wholly in the right ; fince nothing can be more true than " 
 that nations have made treaties both to confirm and de- 
 rogate from the law ; but as long as there is this doubt 
 
 * Schlegel, 56. Puis done que les tra'tes, en vertu dtfquels la mar- 
 chandife eft couverte par la neutralitedu pavilion, fornvj par rapport 
 auxautresunemajorite U confiderable, on doit legitemement !e envii'ager 
 comme contenant la regie generale, et ceux ci feulmenr comme \in ex- 
 ception : a'ou ii rifulte que cette > egle qui d'al\ieuri eji, i-omme on la 
 iu, fondle fur It droit des gens nature! doit s'afpiiquer aux cats avec 
 ie/queli ii n'e.tijh point des trait is contract:. 
 
 and
 
 88 THAT FREE SHIPS [Prop. I, 
 
 and difficulty concerning them, it fhews how futile are 
 all allegations that the law is conclusively to be drawn 
 from either, if either is confidered without proper en- 
 quiry into accompanying circumfiances, without modi- 
 fication and without referve. Amply there! ore does it 
 fliew with what little reafon the dry letter of treaties (in, 
 whatever number they may be brought forward, either 
 by the one party or the other) is a conclufive indication 
 of the abftract and intrinfic law. There are two forts 
 of treaties fays Grotius* one by which we ftipulate 
 for the obfervance of things ordained by the Law of 
 Nauire ; the other, by which we add fomcthing to that 
 law. As an exemplification of the firft part of this ob- 
 servation, he fays, that men having quickly forgotten 
 that rule of Natural Law by which they are taught that 
 there is an original relationfhip between them, were found 
 to have recourle to treaty, in order to obtain the jus hoi- 
 pitii, and the jus commcrcii quatenus ifta fub jure na- 
 turali veniunt. * As aninftance of the fecond, amongft 
 others, he reckons equal treaties of commerce, and of 
 common caufe in war. -f Vattel, after him, purfues the 
 fame divifion ; J and the infpecYion of the different pro- 
 vifions of a variety of treaties in Luropc, will prove how 
 difficult it is to collect from the mere circumftance of 
 making a treaty, whether the parties have renovated and 
 given acuve vigour to a torpid Law of Nations; orenacled 
 fomething unknown before, and in addition to that law. 
 This can alone be collected with truth, from a free in- 
 veftigation of the thing itfelf ftipulated, which thus re- 
 turns to its abftrac~f. flate, wholly independent of treaty^ 
 and liable to be canvalfed precifely with the fame free- 
 
 * D. Jur. B. et P. z, 15, 5, 1, 3. f Id. 2. 15, 6, 1. 
 \ Droit des Gens, 2, n, j69 ; 17X. 
 
 domj,
 
 Seft. II.] MAKE FREE GOODS. 89 
 
 doin, and according to the fame rules which governed it 
 before it took its ftation under the ciafs of compact. 
 
 Of x things which e\ifted in the Law of Nature before 
 they ever became objects of treaty, and which mull ever 
 exift there, though all treaty w.'s to be annihilated, the 
 following arefome of the moll remarkable : — All general 
 ftipulations of peace and friendfhip, often neceffary 
 amongft thofe nations who formerly thought that where 
 there was no treaty, there was no friendfhip; and in the 
 cafe of ill treatment by the Spaniards in the feventeenth 
 century, actually quoted by the Englifh under Cromwell 
 as their more immediate protection : * all the ftipulations 
 againft the entertainment and protection ofjurates, which 
 form an article ofalmoft all the commercial treaties of 
 Europe : all promifes to deny permiffion'to enemies to fit 
 out hoflile armaments in the ports of a Neutral, — which 
 fill the maritime treaties from the oldeft time to the 
 prefent. All conditions alfo, where the fhips of friends 
 are forced into port by ftrefs of weather, or the purfuit 
 of pirates, or the enemy, that they fhall be received with 
 humanity, which form an article in the conventions of 
 the moft modern times-}-: in like manner all conditions 
 that they fhall receive affittance, and not be plundered 
 while vinder the misfortunes of fhipwreck (which one 
 would think would be pointed out by the common feel- 
 ing of breafts the moft obdurate) : all ftipulations when 
 
 * Upon the murder of Charles I. the Spaniards treated fomeEnglifl* 
 at Malaga with the greateithardfhip and indignity, at which the govern- 
 ment itielf was fuppofed to connive. The council of ftate, in their mc- 
 morial to the Spanifh ambaffador, grounded their right to better treat-- 
 ment upon the ift, 6th, and 7th articles of the exiiling treaty with 
 Spain ; which ftipulated nothing more than that they mould ' mutually 
 ' mew good offices, and abftain from force and wrong doing.' j Thuri. 
 176. 
 
 f See treaty between America and Spain, 10th Oct. 1795.— Debret's 
 S:ate Papers, 40. 
 
 merchants
 
 <)0 THAT FREE SHIPS [Prof. t. 
 
 merchants and clerks are admitted into a country as re- 
 gents for the purpofes of trade, that thev (hall comport 
 themfelves with deference to the la\vs:| all general en- 
 gagements, while neuter, not to affift our enemies with 
 comfort and advice ; under which, as we contend, is in- 
 cluded a promife to abflain from the carrying trade : thefe, 
 and other provihons of the like nature, flow immediately 
 from the obvious rules of juftice, engraven on every man's 
 mind; and ftanding alone would he ftrenuoi.fty iupported 
 by the courts of law in civilized countries, though they had 
 never been fenced about with the fanetions of treaty, or 
 were bereft of their fupport after having enjoyed them. 
 
 On the other hand, a vaft variety of ftipulations con- 
 cerning pofitive duty, accoft us in the perufal of almoft 
 every' convention in the chanceries of Europe, which no 
 refearch into the Law of Nature, no ftudy of conventional 
 inftitution, could ever of thcmfelves point out. Such are 
 all commercial regulations within the jurifdi£rion of the 
 country viiited : the numbers in which foreign (hips are 
 allowed to enter particular ports; all ceremonies, and 
 partial acknowledgements of fovercignty, allowed by 
 iome countries and denied by others: particular Ipecifi- 
 cations of prohibited goods bearing harder upon one coun- 
 try than another : agreements to confifcate the property of 
 friend; on board the fhips of enemies, which was formerly 
 long objected to, and has now long been allowed : the 
 nccciTity for particular muniments, fuch as pafiport- 
 and bills of lading, in order to afcertain the property in 
 afhip; the mode in which the right of fearch on the 
 •^ligh feas fhall be exerciled, by three, four, or five of the 
 crew, or more at pleafure : all fubfidiary or auxiliary trea- 
 ties by which a part of its force is furnifhed by one 
 
 t Treaty between England and Rufiia, Feb. 1797. 
 
 country
 
 SeC. II.] MAKE FREE GOODS. 9I 
 
 country to another, without drawing on a war with that 
 againft which it is to fervc. Thefe, and many more, 
 which every man's particular obfervation can almoft fup- 
 ply, may all be confidered if not in derogation of, yet 
 certainly as not immediately ordained by the law of na- 
 tions. Many conditions beiides are in the nature of pure 
 compenfations, in order to lecure as much advantage on 
 the one hand as is parted with on the other; and where- 
 cver a price is paid for its allowance, there muft at once 
 be an end of all argument concerning its intrinfic power 
 as a Law of Nations. And thus we fee that it is in vain 
 to contend that any one point of the acknowleged duty 
 of nations flows from this or that foundation of its laws, 
 merelyfrom the naked faftthat it isprovided forby treatv. 
 The only one in which it can fairly be argued that the fti- 
 pulations contained are evidence cf the affirmance of the 
 law, is where it is exprefsly ftated lb to be. Where na- 
 tions agree in terms, that any general principle they are 
 about to lay down as a guide for the different articles of 
 their compaft is a principle of law, and therefore to bind 
 and interpret what they are about to ftipulate, — fuch a 
 treaty is very conclufive evidence of what the parties at 
 leaft thought of the law, although the point itfelf is en- 
 tirely open to the examination of other parties. And it 
 is in this as in our afts of parliament which are often in 
 affirmance, often in derogation of the common law ; but 
 are never evidence in themfelves that they are either the 
 one or the other, unlets their preamble ftates them lb 
 to be. Where nothing is mentioned, the fa& remains 
 to be tried by its own intrinfic merits. 
 
 The provifions then of treaty being made both for 
 things evidently taking their foundations in nature; for 
 thole which are as evidently of pofitivc inftitution ; and 
 fur thofc alio which may be considered as belonging to 
 
 neither,"—
 
 £2 THAT FREE SHIPS [Prop. I. 
 
 neither, — nothing with precifion can be collected concern- 
 ing them, but every thing mail be canvafTed, diftincl: 
 from all its different bearings and relations ; and it muft 
 fland by iticlf as if no ftipulation had ever been made, 
 no compact framed for its better exigence. 
 
 Theie objections to that doftrine whi( 1 flates the en- 
 gagements contracted by treaty to be ' ; ie lame thing with 
 the conventional Law of Nathms itlelf, :.]>pears infup< - 
 tie to thofe who vvifh to conduct thcrn!e!ves ij 
 tainty and clearnefs through the broad field of laws, ' 
 
 Now all thefe abfurdities, difficulties, and entangle- 
 ments, may at once be avoided ; the whole labyrinth laid 
 open, and every doubt removed by the fimple reference 
 of the point to its right and true foundation, the mere 
 transitory authority of agreement between thofe nations, 
 and thole alone, which have contracted together. 
 
 With this for our guide, the duty of nations in the 
 
 * Uubner himfelf, in a variety of paffages, is careful to point outtliat 
 treaties r? v . nnb hind r'ie particular nations that frame them. Speak - 
 --.,-. c >' it .. [ftatife of D' Ahreu, he imputes to it as a fault, that it is con- 
 <'.;.'.<! to the maritime laws of Spain. It is true, fays he, t hat genera! 
 ; rmepies a:v lometimes fought for, and even treaties fometimes cited; 
 out ti-efc aie always Spani/h treaties.* Again, in difcuffirig the cafes 
 •■.■• heiein neutral vtffels are not feizable, he (ays, •' An ahufe will not 
 make a law ; 1 will not even here examine the articles of different trea- 
 • . , ••■■; i immercc and navigation, by which fome nations oni renonce a 
 wic panic de leurs droits — chaque puiffance eft librc de farranger la 
 
 li.iS, coTimc e!le lejuge apropos mais elle ne doit pas pretendre que fes 
 . ■ :g \'i i.< ,.' f. ." at urn loi pour d'autres, ou qu'ils ohligent les peuples 
 (ouvtrriins tt l'dtpendans qui ne. fo>it j-.as parties coniraSanies." f 
 Yet Schltgri, as we have i'een, docs nor helitate to id)', that becaufe a 
 i nltdcrabie mn ihy of treaties have determined upon a point, that 
 point fhall become the general rule for thofe who have made no treaty 
 a;-;a:nfi it ; nor does the circumftance of founding the rule in qucftion 
 : *• lie bin: upon the Law of Nature make any difference, becaufe a ne- 
 r>fii:y for doing (a makes no part of his afiirtion; and indeed would be 
 v. iioliv unneceffary, becaufe a f.aw of Nature ought to be obeyed, whe- 
 d-.r corii.irn.ied by treaty oi not. 
 
 * Hub pref. iq. f Id, j 2 8, t p, 176, 177. 
 
 circum-
 
 SeC. IT.] MAKE FREE GCOPS. 9j 
 
 circum fiances fpecified, becomes infiantly Amplified, 
 marked, and clear. No clafhing of interefl, no contra- 
 riety of doctrine, no circuitous reafoning from doubtful 
 cuftoms, or ambiguous terms, are then ib likely to arife 
 und obfeure the fair line of reciprocal obligation; but 
 every thing is at once referred to the fhort letter of the 
 contract, which in moft cafes decides as foon as confulted. 
 Not fo at all times is it with the conventional, nor even 
 the Natural Law ; but infinitely lefs ib when an attempt 
 is made to confound treaties with thofe laws. Amidft 
 that confufion, I fee no rule for courts of juftice, or their 
 fuitors to follow; not a gleam of light arifes to conduct 
 us through the gloom ; and then indeed the code of even 
 this civilized age will be liable to the afperfions thrown 
 by Hubner upon the confolato del mare; in another, ' ce 
 
 * i\t ioit qu'un amas, ou un recueil aiTez ma! choili, de 
 
 * ioix maritimes et pofitives et d'ordonnances narticulieres 
 
 * du moyen age ou des fiecles peu eciaires.' * 
 
 Notwithstanding thefe obvious and, as it fhou'd feem, 
 invincible objections, jF/;/£«<»r and his countryman Schlegel 
 have yet choien to conMder the Law of Treaties as the 
 Law of Nations, in almoit uniformly ftyling it the con- 
 ventional law. In the work of the former, he ftates the 
 following definition to be an idee du droit des gens con- 
 ventionel, * L'aflemblage des regies obligatoires, fondeei 
 ' fur ies engagement hr is par des stats Joverains y ou par 
 1 leur chefs, et faites pour diriger la conduite r;ciproc]ue 
 
 * des parties ccntrafiantes :' -j- And he explains what is 
 meant by engagement in the part introductory to this defi- 
 nition, where he fay?, ' Nous en traiterons maintenant 
 1 fuivant ie droit dens cer.s fecondaire et cor.ventionel, ou 
 ' felon la tencur des tragus de paix, d'amitie d'alliancc, de 
 
 * La Sais c,-. B Neu:. Dif:. prelim, f Id. torn. t. p. iji. 
 
 ' commerce
 
 94 THAT FREE SHIP 3 \PlCf). I* 
 
 4 commerce, oude navigation, qui fubfiftent entre jilufieurs 
 
 * puillancesmodernes.'^ In rindther part he fays, ' Ces en- 
 ' gagemens fe prennent par le moyen des contrats poli- 
 
 * tiques qu'on nomme traites conventions ou capitula- 
 
 * tions;'^ lb that the meaning of the definition with which 
 we fhoukl not be difpofed to quarrel without the expla- 
 nation, is by that explanation rendered, according to our 
 principles, wholly unfatisfaelonly ; fince nothing feems 
 clearer from the language itielf of /ilu/ieurs fiuijfunces and 
 
 parties contraflantes\ that ii treaties areinqueftion,they can 
 only bindthofcy*rv«'tf/ftatcs and thofe contracting parties. 
 After all, however, it would perhaps be not of much 
 import, if this confufion of terms was left as it is, open to 
 every man's obfervation, if -all difcietion upon the point 
 \\ a 1 ; not taken away, in a treatife like this, from the ufc 
 which is everywhere attempted to be made of it. For 
 if we grant the definition with its explanations, as con-- 
 tended for, the f importers' of innovation fay that they 
 flrugglc for nothing more than what has long been fettled 
 by treaties between a vail number of the flates of Europe ; 
 and confequcntly lor nothing more than what ought to 
 be confidered as the law of Europe.* It is therefore of 
 extreme importance that-mankind fhould not be deceived 
 bv an inaccuracy of terms, which, if not (tripped of their 
 fallacy, and placed in 'heir true light, may have a danger- 
 ous as well as a mo ft important effect en the theory of 
 jurifprudence, on the conduct, and even on the fate of 
 nations. At the fame time, however, it is incumbent 
 upon thofc who diffent from this account of the con- 
 ventional law, to inquire into the reafonablenefs itielf of 
 what is aliened, (whether law or not) and to afcertain 
 
 J La.Sa»f,iks B. p »jo. § Id. p iiy. * Schicg. 56. 
 
 whether
 
 SeC. III.] MAKE FREE GOODS. 95 
 
 whether it is true, in point of fact, that the principle be- 
 fore us has really been confecrated as the general [inn- 
 ci/ile of Europe, as it can be difcovered in the treaties 
 which have actually been made. This therefore will be 
 the object of the next fedYion. 
 
 SECTION THIRD. 
 
 THE QUESTION AS IT DEPENDS UPON TREATIKS. 
 
 THE Danifh civilians, in fupporting the maxim be- 
 fore us, in addition to l'uch arguments as they have drawn 
 from reafon, rely mainly upon what they affert to be the 
 law of Europe as found in its various conventions. 
 Hubner, for the moil part, takes up this law within the 
 laft century ; but Schlegel extends it to 1642, the com- 
 mencement affigned by Bufch, in his Collection of Treaties. 
 At the fame time, thinking that it would augment the 
 means ofthe iupport he meant to give to the queftion, he 
 brings forward a treaty of our Edward III. with Spain in 
 1 351, and of Charles I. with Portugal in 1642. 
 
 The treaties of Europe form fo vaft a part of the rule 
 which governs the conduct of each of its Hates, have 
 fwelied to fueh an enormous fize in point of number, 
 contain fo many various, and fometimes fuch contradic- 
 tory ftipulations, and open a field fo immenfe for difcuf- 
 fion bv way of analogy and companion, that it is not 
 an eafy thing to fettle what general principles may be 
 collected from them, except by a thorough and accurate 
 mfpedYion of the whole. Why Hubner, in canvaffing a 
 rreat principle of law, ofthe very firft confccmence to all 
 maritime dates, confined himfelf to fome feven or eight, 
 »{' but the Pvrenea:i treaty, within the laft hundred 
 
 years,
 
 9§ THAT FREE SHIPS [Prop. I. 
 
 years ; or why Schlegel fhoukl centent himfelf with the 
 periods adopted by Bufch ; can only be explained by the 
 obvious realbn that iuch an infulated number fell in beft 
 with the object they each had in view; namely, the af- 
 fertion of a particular ajfumed point. They argue, as it 
 were, a priori ; theyafferta particular propofition, and of 
 courfe give that fhape to their enquiries which beft fuits 
 what they have aflcrted. Denying as we do the power 
 of any number of treaties taken fier Je y to decide upon 
 the law of Europe, or in any degree to influence more 
 than the conduct of the contracting parties ; it is of little 
 confequence to this difquifition how the matter may turn 
 out to have been thus fettled. But for the better under- 
 Handing and more perfeel knowledge of the real ftate of 
 the cafe, the inveftigator would do ill, in an enquiry of 
 this kind to ftop ihort at any particular period, or be 
 content while any one commercial treaty remained unex- 
 plored which it was at all within the compafs of his power 
 to examine. 
 
 Before we engage however in this enquiry, it will pro- 
 bably be not amifs to paulc upon luch diplomatic exam- 
 ples as the Danifh civilians have thought lit to produce ; 
 for although the order ot our refearch may thereby be 
 almoft inverted, and certainly deranged, yet as what was 
 actually determined in thole examples demonftrares that 
 inferences are drawn from them which they will by no 
 means warrant; we collect a circumftance of no fmall 
 imoortance in our inveftigations, either that otrr opponents 
 arain go befide the fair queftion before us, or that their 
 conclufions are all of them fa lie in point of argu- 
 ment. 
 
 The firft treaty mentioned by Hubner, is that between 
 France and Denmark, 23d Auguft 1743, and is honoured 
 with all his praifes. It is composed, he fays, in a fpirit 
 
 which
 
 SfC. III.] MAKE FREE GOOES. 9/ 
 
 which redounds not more to the juftice than the intelli- 
 gence of the contracting powers. It afTerts and confirms* 
 in a manner the molt pofitive, that great general maxim 
 of natural law vipon the fubjeft of neutral navigation and 
 commerce ; that it ought to remain upon the fame footing 
 as in time of peace, without a>:y other modification than that 
 which arift:; from the nature of neutrality itfslf.* 
 
 There is therefore at kaft fome modifk-ition by his 
 own fhewing; and that by no means unimportant in its 
 kind, bcinp neither more nor lefs than what will make 
 the whole difference ; namely, that which does arife from. 
 the nature of neutrality. If it is the nature of fuch a 
 ftate not to interfere in war ; not to fupply men to 
 belligerent traders, in the place of thofe who fight in 
 belligerent fleet? ; the question is already determined 
 between us. The liberty of commerce therefore, as 
 thus Jiated, is palpably nothing more than that liber- 
 ty which, as we have (hewn in preceding parts of this 
 work, was in older times denied without the inter- 
 vention of treaty : that liberty alio which half the ex- 
 ifting conventions of Europe denied in the very moment 
 when the treaty in queftion was framed, in all thofe arti- 
 cles which fpecified that though free fhips might make 
 free goods, yet that goods of neutrals found on 
 board the fhips of enemies, fhould be confifcated along 
 with the fhips as prize J. If this however was even not 
 fo; what, under his favorite fiipulation, 'that trade fhould 
 , be free as in time of peace,' becomes of the right to the 
 colonial carrying trade, which had never been enjoyed 
 during peace : vet this is equally an object of neutral 
 
 * Hub. torn. 2. p. 139. 
 
 1 See the exifting treaties. ' where free ftupSj free goods' is ftipu- 
 latcd : for the one always follows the other, 
 
 H ch ; :ii
 
 98 THAT FREE SHIPS [P'Op. I. 
 
 claim if the Belligerent will eonfent to it, though only 
 to ufe his own expr.ffion, penclaut la guerre, et a caufe 
 dc la guerre. -|- 
 
 Upon the infpedYion of the treaty, even in the articles 
 which Hubner has furnifhed, we find that all it ftates in 
 Favour of neutrality, is the power of failing at will from 
 their own or neutral ports to the ports of the enemy of 
 either, and from enemies ports to enemies ports, without 
 trouble or hindrance, in the fame manner as before the 
 war. Blocked up ports are defined to be thofe which 
 rannot be entered without manifeft danger; and it is pro- 
 vided, as it had before been provided by almoft all com- 
 mercial treaties for an hundred years, that no men or 
 ihips fhciiid be forced under an embargo to take part ia, 
 the war againft their will. At the fame time it is re- 
 markable, that not a fy liable is laid of free (hips making 
 free goods, the point in difpute, although the example' ot 
 all iunounding Hates fbewed the neccflity of noticing 
 it a? an article of treaty whenever defired by the con- 
 tracting parties. 
 
 There ir nothing therefore in this boaftcd treaty fo ho- 
 nourable to the juflice and the intelligence of thole who 
 formed it, and fo ample an iliuflration of the true Law of 
 IS at ion; with regard to commerce,* which would not almoin 
 be granted by every commercial treaty. If we except the 
 words ' trading as in times of peace,' it was very little. 
 different from the treaty then actually cxifting between 
 Denmark and ourfelves; which efpecially provided that 
 the parties might trade with the enemy in time of war* 
 Yet that trade, as might be fiiewn from other parts of the 
 treaty, was not meant to extend to the right of carrying 
 
 f See page 14. 
 
 *" Ceft aiufi qV-n decident !c droit des gens univerici et le xxm« 
 article du traire, &c, &c-. Hub. x. 139. 
 
 en cm:?
 
 Sec, ll!.] MAKE FREE GOODS. QQ 
 
 enemies goods : ~j~ a right which, according to our prin- 
 ciples, was always excluded by the genci ally received and 
 acknowleged duties of neutrality. 
 
 have been the longer in this exami nation j becaufe it 
 feems to be the treaty moll ftrenuoufly relied upon by 
 Hubner as a pattern of all that he wiihes. But as nothing 
 is faid of the carrying trade at all, and (whether to excr- 
 cife or to abftain from that trade be a natural right or 
 not) as it is notorious and beyond all contradiction that, 
 where nothing was ftipulated in terms concerning it, the 
 nations, in point of fail, always did confifcate enemy's 
 property; we are at a lofs to difcoyer what fpecific point 
 is meant to be proved by it. Hubner muft therefore 
 either have cited this treaty, as a proof merely that a 
 trading with the enemy is a natural rights without at all 
 meaning to contend for the other ; or if he did contend 
 for the laft, he leaves a cloud of doubt and mifreprefenta-* 
 tion upon the authority he cites, and his mode of ar- 
 gument from cafes, is at leaft not convincing. 
 
 The fecond treaty cited by Hubner, is that between 
 Denmark and the Two Sicilies, April 1748, which he 
 fays, not only eftablifhes the fame liberty with the laft, 
 but adds a claufe_/r7// inort advantageous to that liberty. * 
 This article is neither more nor let's than a very commoii 
 one in the treaties of that time, and the times preceding, 
 which frequently gave liberty to one of t?he contracting 
 parties to continue its trade with the enemies of the other. 
 The words are, * Leur apporter, fans aucun erripeche- 
 c ment, toutes fortes de mafchandifes, a 1'exception de 
 * celles qui font de contrebande : a moins que ce ne foit 
 
 f See the treaty 1670. 13 Corps Dip, 132, particularly articles 
 * Hub 2, 144, 
 
 K 2 'dan-
 
 100 THAT FREE SHIPS [PfOp, t. 
 
 * dans unc ville, port ou cndroit affiege ; auquel cas il leur 
 
 * fera libre toutefois de vendre lcurs marehandifes au* 
 ' affugCans, ou de les alter vendre 6c porter en quelque 
 ' autre ville, port ou endroit qui n'eft pas affiege.' 
 
 It happens alio peculiarly, that this article, which adds 3 
 it is faid, a claufe fo advantageous to the liberty of com- 
 merce, is, word for word, the fame with the 16th article 
 of the treaty 1670, which was laft cited as exifting be- 
 tween England and Denmark itfclf. Yet that treaty, as 
 has been oblerved, prohibited the parties from carrying 
 enemy's property ; not indeed by an exprefs and inde- 
 pendent Stipulation, but in a manner infinitely ftronger 
 in favour of the argument, by a forcible reference and 
 plain mention of the point as the known exifting; law. 
 The 20th article provides for pafl'ports, and is as follows : 
 
 * But left fuch freedom of navigation or paffage of the 
 ' one ally and his fuhje&s and people, during the war, 
 
 * that the other may have by lea or land with any other 
 
 * country, may be to the prejudice of the other ally ; and 
 
 * that good* and merchandife belonging to the enemy ?nay not 
 4 b> ft auduiently concealed under colour of being in amity, for 
 ' the preventing of fraud, and clearing all fufpicion, it is 
 ' thought fit that the flr.ns, goods, and men, belonging to 
 
 * the other confederate, in their paffage and voyages, br 
 
 * accompanied with letters of paffport and certificate ; tits 
 ' forms whereof to be as follows :' 
 
 The pallport itfclf contains the neceffary affertion, 
 that the cargo really belongs to f the fubjc&s of Den- 
 ' marl;, oi to others in neutrality ;' and thus the carriage of 
 enemies property is not only prohibited by this treaty, 
 but is prohibited in a manner which evinces that the 
 Contracting parties proceeded upon it as upon the known 
 and acknowledged law .* But if this is ib, no ar^u- 
 
 S-e the \re.Wf with D.-nT.ark, 1670. Corps Diplom, 13, 132. 
 
 me j
 
 Se&. III.] MAKE FREE GOODS. IOI 
 
 rnent vvhatfoever, in favour of the pofition in qucftion, 
 can be drawn from the treaty with Denmark, cited by 
 Hubner. Since though it contains an article very fa-r 
 vourable to commerce, that article is contained alfo, word 
 for word, by a treaty, which plainly difallows and repels 
 the pofition. 
 
 The fame remarks are of courfe applicable to the next 
 example, relied upon by Hubner (the treaty between 
 Denmark and Genoa in March 1756) fince he cites it 
 as containing precifely the fame provifions. Thus much 
 however may be added, that from the date of the treaty, 
 it appears to have been made in the very heat of that war, 
 and in the very capital of France, in which the Danes 
 complained loudeft of the invaiion of their neutrality by 
 France. Perhaps it was made at the moment when Hub- 
 ner himfelf, the delegated affertor of Danifh neutral 
 claims, was at Paris, on the fpot : it is ftrange, therefore, 
 if the principle of free fhips making free goods, was 
 even at that time ever claimed as a neutral right, that 
 treaties, which he cites as models of the liberty of com- 
 merce under the natural right, fhould not have contained 
 an exprefs provifion to protect it from invaiion. 
 
 His next authority is the great Pyrenean treaty between 
 France and Spain. In vain however is it examined, in 
 any thing which he cites of it, for the allowance of 
 the maxim. Much indeed is to be found in fupport of 
 the general freedom of trade, which, fubjeft to proper 
 exceptions, has all along been allowed ; we find ftipula- 
 tions that fhips and men fhall not be preiTed into the fer- 
 vice of belligerents ; that the fubjefts on both fides fhall 
 have free liberty of navigating to all ports friendly to 
 themfelves, though hoftile to the other party ; and that 
 they fhall not be troubled or hindered on account of thr 
 
 h 3 war,
 
 I OS THAT FREE SHIPS t^ f '°P' *•' 
 
 war ; but no notice is taken whatfoever, in the parts cited 
 by Hubner, of the claim or fuppofed right to carry ene- 
 my's property. As far therefore as depends upon him, 
 though the faft is otherwife, nothing can be cohr -d 
 from this treaty in affirmance of the maxim. 
 
 The next treaty relied upon by Hubner, is that be- 
 tween France and the Hanfe Towns, Sept. 716* and 
 his reafoning upon it is as litre conclufive as it is ft range 
 that he fhould have cite ! it at ail. The Bth article pro- 
 vides, that no fhips or men {hall be preiTcd into the fer- 
 vice of France when belligerent , and the 13th, that they 
 fhall not be ftopped nor detained, except they arc laden 
 with contraband, or the goods of enemies. This laffc claufe 
 is 10 fatal to his object, that lie is obliged to add, that it 
 is purely poiitive, and therefore mere matter of conven- 
 tion : but why, in a part of his work which afferts the 
 treaties of Europe to be themfelves its conventional law, 
 and which nropofes to enquire what that law is, as it is 
 found exifting in treaties, he fhould explain away the 
 very treaty which he cites, as being mere matter of con- 
 vention (the point itfelf about which he is enquiring) I 
 own myfelf wholly at a lofs to difcover. At the fame 
 time, whatever is his purpofe, he i^ peculiarly unfortu- 
 nate in his fele&ion, becaufe the national law of France, 
 one of the contracting parties, proves that the exception 
 could not be a<- it is called, was only in confonance with 
 its received and fundamental principles concerning neu- 
 trals; and therefore that it could not be mere matter of 
 convention. That law, when not changed by treaty, 
 from the time of Francis I. confifcated all enemy's pro- 
 perty found on board Neutrals; fometimes with the 
 Neutral veffel itfelf, fometiir.es relaxing that latter rule, 
 but always, in all the royal ordinance-, confifcating the 
 property. 
 
 : In
 
 Sett. III.] MAKE FREE GOODS. 1 03 
 
 In 1704 in particular, only two years before the treaty 
 in queftion, it was ftrenuouily and generally renewed and 
 enforced in all its ancient ftriclnefs ; the ordinance of 
 that year confiscating the neutral veffel itfelf for carrying 
 enemy's property, and even for trading with the enemy's 
 ports. N'c: tvas this ordinance at all relaxed for the 
 fpa tortv years; and then onlv in favour of thofe 
 
 countries, with which contrary ftipulations had been 
 made, and expreilly on account of thofe contrary ftipula- 
 tions. The ordinance of 1744 approves that of 1704, in 
 the abftrac~t, in the moft unqualified manner; and only 
 abrogates thofe parts of it which are incompatible with 
 treaties. * Hence it amounts to a demonflration, that 
 the enforcement of the old law of France, and in parti- 
 cular of the ordinance of 1704, by a treaty in 1706, 
 could never be deemed a pofitive exception to the general 
 rule, or purely matter of convention. 
 
 That Sweden fhould make a treaty with France in 
 1741, referving, as he ftates in his next example, all 
 thofe parts of the laft mentioned compact which were 
 advantageous to navigation, but rejecting all the bur- 
 thens, is neither furpriling, nor any thing to the purpofe ; 
 unlefs (what he does not affert) (he introduced an exprefs 
 principle, flowing from the Law of Nature, and militating 
 againft the conditions from which fhe was to he exempt. 
 That fhe did this however, as he infinuates, becauie fuch 
 conditions 4 tChcient fias a une Jiuijfauce qui ticnt un rang 
 1 dijlingue jiarmi ics nations modernes J is what noperfon will 
 silent to who is at all acquainted with its hiftory. The 
 fpirited Chriftina, in the ardour of her mind, at lead 
 
 * Seethe Reglements of 1704 and 1744, 2 vol. 248, 250. 
 
 K 4 worthy
 
 5 ©4 THAT FREE SHIPS \_TfOp. I« 
 
 worthy of being the daughter of the great Adolphus; 
 or the a&ive, the vigorous, and politic Charles Guftavus, 
 were as prompt to fee, and as bold to aflat, what became 
 the rank and dignity of their nation, as the yielding 
 Ulrica, or the foreign Frederick I. : nor was the nation, 
 itfelf, when it hadjuft intiuenced the fate of Germany 
 the conqueror of the Pole, the Dane, and theMufcovite 
 lefs powerful or elevated in the rank of lovereigns, than 
 when beaten and even erufhed by the afcendency of the 
 latter. Yet inch is the fort of fatality which attends. 
 i'lubucri obfervat^ons, that in the former period, and 
 under thole high minded fovereigns, Sweden yielded (if 
 to acquiefce in the law can ever be called yielding) that 
 very point to England in the feventeenth century, which 
 flic was to elevated hi rank to yield to Fiance in the mid- 
 dle of the eighteenth. * 
 
 The laft example cited by Buhner, is the treaty of 
 Vienna, 1721, between the Emperor and Spain; and the 
 articles regarding Neutrals being conceived in the precile 
 terms of thole of the fir ft treatv, mentioned between, 
 Denmark and France, are open to all the obfervations 
 there made : ncr can we too often attend to this import- 
 ant confederation ; that, while it is known that the 
 great maritime powers have univerfally and uniformly 
 claimed a right to confucate enemy's property found on 
 board Neutrals, when there is no treaty to the contrary ;— 
 and more particularly, when many countries have made 
 treaties to the contrary, to ferve efpecial intercfts ; all 
 general ftipulations of a right to navigate freely and 
 
 * By the treaty of Upfal, under Chriflina ; and of Whitehall, under 
 Charles XI, precautions were iiipulattd to prevent the fraudulent c on- 
 cccument of enemy's property, 3, Chalmers, 34 and -,3. 
 
 without
 
 Se8. III. MAKE FREE GOODS. IO£ 
 
 without interruption, or to trade as was permitted before 
 the war, can only be referred to as a general rule, fub- 
 jett of courfc to the proper exceptions : — at rnoft, can 
 only be referred to that great difpute, which once, as 
 we have often obferved, divided Europe upon the claim 
 of Belligerent power?, to inhibit all commerce whatsoever 
 between Neutrals and their antagonists. 
 
 Such then, and in fo fmall a number are the treaties on 
 which the Danifh civilian relies, in order to prove that 
 what he thus calls the Conventional Law of Europe, has 
 determined for the freedom of navigation and commerce 
 to fo vail and unlimited an extent, that every fort of traf- 
 fic is to be permitted to Neutrals without exception ; and 
 of courfe, as his commentators explain him, the carrying 
 Irade along with the reft. 
 
 We have already made it a queftion, whether any 
 number of treaties can amount to a law of nations ; but 
 we may with ftill greater propriety, be permitted to doubt 
 whether feven or eight treaties, entered into altogethei 
 by but fix of the powers of Europe, and that within the 
 Space of fifty years, can decide upon what is Europe's 
 la<v upon fo important a point. With yet greater rea- 
 ibn may we doubt whether the treaties themielves, as 
 brought to our obfervation, furnifh any thing like evi- 
 dence of the opinion that was entertained of the prin- 
 ciple before us, even by thofe who framed thofc 
 treaties. One of them, as we had occafion to obferve, 
 contained ftipulations directly in the teeth of the po- 
 sitions of him who brought it forward : and all of 
 them are made up of very general provifions, amounting 
 to fuch an indefinitenefs of privilege, thac, if conftrued 
 literally, it is known that they are denied by the con- 
 tracting parties themielves. Of this the generally 
 
 Stria
 
 ic6 
 
 THAT FREE SHIPS 
 
 [Prop, i. 
 
 drift refervc of the colonial trade, and the provifions of 
 the Daniih treaty with England, lad cited,*- notwith- 
 standing the fame fort of indefinite and large fenfc 
 which might be put upon its letter, are eminent and 
 conclusive inftances. Leave we then fuch infulated, 
 garbled, and feeble examples of the fort of Ian- which 
 is let up, to produce what effect they may upon minds 
 oi any fi/.e or inquiry ; and let us turn to the Danifh 
 work, of the preient dav, which endeavours with creator 
 vehemence, and perhaps greater powers, to Support the 
 maxim under what its author alio calls the conventional 
 jaw of nations; but what, according to our principles, is 
 the mere Stipulation of particular compacts. 
 
 Profellor Schlegel, however, has not given us very de- 
 tailed means of enquiry ; fince, although there is a pretty 
 large alfertion whir refpeft to the number of treaties 
 which Buich has collected, amounting to thirty-five, and 
 all of them, as it is laid, favourable to the principle 
 of. free fii/u free gsods., Schlegel himielf has mentioned 
 but nine, even in figures, which Supported the principle 
 previous to the armed neutrality of 1780. At the fame 
 time, he fays, he recollects but two which gives into the 
 contrary practice ; namely, thofe of England with Den- 
 mark and Sweden, in 1661 and 1670. Yet, as we learn 
 from Hubner's own enumeration, and in complete dero- 
 gation of the principle which it was cited to fupport, 
 there is at leaft one other that mav be claffcd along with 
 them ; 1 mean that of Fiance with the Hanfe Towns in 
 1706; and the very treaty with Sweden was founded 
 upon two others which had preceded it, in the time of 
 Cromwell. Leaving; this however as one of thole aimoft 
 
 incvitabl*
 
 Sefl* III.] MAKE FREE GOODS. I07 
 
 inevitable omiffions into which the beft memories, par- 
 ticularly when the judgment is under the bias of a fa- 
 vourite object may fall, let us come to the consideration 
 of thole which Schlegel himfelf has actually enumerated ; 
 and fir ft of the treaty of 1351, between our third Ed- 
 ward and the king of Caftile. * 
 
 Although this is quoted as full to the point before us 
 concerning the rights of the neutral flag, yet I own I 
 have looked with attention, and looked in vain for the 
 difcovery of any thing in fupport of the pofition. I fee 
 indeed a ftipulation, fuch as is to be found in every trea- 
 tv of commerce, even in thole the moft fevere ajrainft 
 neutral claims, that the fobjects of the two countries 
 may fafely pals and repafs with their merchandize of 
 whatfoever country, and to whomfoevcr belonging, both, 
 by fea and by land ;* but no mention is made here of a 
 ftate of war between one of the parties and a third ; and, 
 being a limple article of the truce between the two ftatcs, 
 it cannot by poflibility be tortured to mean that enemy's 
 property may be covered by the neutral flag within the 
 very ports of the belligerent. I fee alio in another arti- 
 cle, that if the king of England or his fubjecls fhall 
 happen to gain, a town or caftle from his enemy, wherein 
 any fhips, merchandize, or other property belonging to 
 the fubjecls of the king of Caftile fhall be found ; then 
 the king of England, or he who is captain for him, fhall, 
 with all the loyalty in his power, and upon the faith of the 
 faid truce, reftore thofe fhips, merchandize, and property 
 to the fubjecls of the kingdom of Caftile, oath being made 
 qu'ils ne foient armez ad les enemys le dit roi d'Engleterre 
 et de France, ne face a eux eide focour ne comfoit.-j- 
 
 * 5 Rvm. Feed. 718. f 5 Ibid. 719. 
 
 Thefc
 
 lcS THAT FREE SHIPS [Prop. I. 
 
 Thcfe arc all the paffages of that treaty which apply to 
 the iubjecl in difcuiFion ; and very far indeed are they 
 from going the length of proving, becaufe the goods of 
 friends found within the jurifdi&ion of enemies are to be 
 reftored, on oath that their owners had given no fuccour to 
 the enemy, that the converfe of that pofition is true, and 
 that the goods of enemies within the power of friends 
 are alio to be reftored. What was here determined, is 
 in truth in the very fpirit of one of the articles of the 
 Cenfolato which ha<? been placed before the reader; yet, 
 ftrange to fay, with what precife ideas I know not, 
 Schlcgel, in introducing this treaty of Edward III, ac- 
 companies it with a kind of furprife, that it was deja 
 vers le milieu clu I4me fiecle, et lorjque le Confolato del 
 piare etoit la jeule lei en vigncur. *J- The next treaty 
 mentioned by Schlegel, is that between Charles I. and 
 Portugal, 1642, renewed by Cromwell, 1654 : an inter- 
 nal from the treaty with Caftile of full three centuries. 
 The re a ton for this amazing chafm, it would not be un- 
 natural to alk, more efpecially as the fir ft treaty was 
 mentioned, becaufe it is fuppoied to furnifh fupport to 
 the object in view. Had the Profeifor confeiied at once, 
 that all the treaties with England until 1642, were againft 
 his principle, and then challenged its fairnefs and foun- 
 dation in nature, from the circumftance alleged, that all 
 from that time are in its favour, we fhould then know 
 exactly the point about which we are at iilue. Hut the 
 mention of any treaty at all previous to that time, be- 
 caufe fuppoied (with what accuracy we have fcen) to bear 
 upon the queftion in his favour, gives us a fair right not 
 only to examine the treaties adverted to, but alfo all 
 other contemporary convention-, and even ail thole that 
 
 r Scheie ■->.
 
 Seel. III.] MAKE FREE GOODS. IG$ 
 
 fill the interval. The juftice of his own auguft fove- 
 reio;n, and of that other monarch, the caufe of whole 
 fhips he has come forward to plead, muft allow this; be- 
 caufe otherwife, as there is a pofirive aiicrtion of the pre- 
 valencv of the principle from 1642, and a pofitive 
 (though, as we have feen, mo ft miftaken) affertion of its 
 exiftence in 1 351, it might otherwife be fuppofed that the 
 principle as hid down, had actually exifted during all the 
 interval, in the fame unoppofed vigour and extent of acqui- 
 efcence. Before we inquire, however, into the hiftory of 
 treaties from the middle of the fourteenth century, it may 
 not be improper to afcertain what actually was decided 
 in thofe treaties of Charles I. and Crcmweli with Portu- 
 gal ; and I own, from the beft attention I am able to give 
 them, I am wholly at a lots to difcover any thing to war- 
 rant the affertion that they are conformable to the prin- 
 ciple of free fhips making free goods.* The 10th arti- 
 cle of the treaty 164?., ftipulates, (as in many others 
 that have been mentioned) that fhips and fubje£ls fhali 
 not be preiled in war; the juftice of which we nowhere 
 t'env : vet even that article allows that goods mav be ta- 
 ken for the fervice of the king of Portugal, upen pay- 
 ment, within two months of the current and reafonable 
 price. The eleventh article gives general permiflion to 
 xhe lunjects of Great Britain to fail to the ports of 
 Spain, there fo cxerciie traffic and commerce : however, 
 it lays not a word of being allowed to carry Spanifh pro- 
 perty (there being then war between Spam and Portu- 
 gal) ; and what is actually ftipulated, if it determines any 
 thing, determines againft the full freedom of neu.ral 
 commerce, when it prohibits the Engliih from carrying 
 any merchandize direct from the ports of Portugal to 
 thofe of Spain. -f- Thofe who contend for the unlimited 
 
 Sc l : c^! -6. r-, I Du Mont Corps Dip. 1 r, a 3 S.
 
 IIO THAT FREE SHIPS [Prop. 1. 
 
 light of trading upon the fame footing as in times of 
 peace, and who cite fuch treaties as thefe in fupport of 
 that doctrine as a point of the conventional law of na- 
 tions, inuft reconcile this incompatibility if they can. 
 
 From what ha^ been remarked, and the curibry exa- 
 mination we have given to the very authorities which our 
 opponents in the argument have adduced, little more 
 perhaps might be thought neceflary on the fubject. It is 
 fjuite iufficient, it may be faid, to have braten down the 
 authority of every fingle rate, and every treaty which 
 has been brought forward, and to have fh own how little 
 Warrantable are all the deductions that have been drawn 
 from them. There are in truth, however, a great num- 
 ber of treaties which actually do contain ftipulations in 
 favour of the principle, more el'pecially in latter times ; 
 and they have multiplied greatly fince the armed neutra- 
 lity of 1780, though interiected with many exceptions 
 in point of fact, and many incongruities of conduct* 
 Eut as an acceffion to them has been uniform; v refuied by 
 this country, which lias fcarce ever departed from what 
 it calls the authority of the natural law on the fubject, 
 fupported by ufage where there are no treaties ; as ft range 
 miiconceplions of that nfage, have crept into the works 
 of civilian", rcipettable we lee a^ thole which we 
 have been examining; a. fame difcrimination is ne- 
 cellarv in drawing proper inferences from t he vaft body 
 of commercial treaties that cxifr, a riling from the ge- 
 neral itatc of the laws of commerce at different time?, 
 the different relations rmd connections of prince?, and 
 the V3r:etv of character, and views in public men ; and 
 as betides it mufl ever be an important object in a trea- 
 tile of this kind, ro give feme clue to a matter i'o appa- 
 rently entangled, — it will perhaps be right to let before 
 the reader, as far at lead as lies within the compafs of 
 very confined powers, how the matter Hands in the trea- 
 
 tu- of the Lift four hundred years* 
 
 As
 
 SeC. 111. J MAKE FREE GOODS. Ill 
 
 As it is acknowledged by Schlegel himfelfi, that the 
 Confolato del Mare was the fole law in vigour in the four- 
 teenth century ; * and that, during that period and the 
 fifteenth, almoft all the treaties were formed upon its 
 principles ;-{- we have a very important datum granted to 
 us, with refpedt, to the earlier conventions; fince nothing 
 is more inconteftible, than that enemy's property, on board 
 neutral vefiel?, was by that law conhfeabie. Bearing this 
 in our minds as the received, acknowledged, and univerfal 
 regulation, where no agreement was made to the contrary, 
 we may, notwithstanding, find fome treaties which do 
 make iiipulations to the contrary; we actually find fome, 
 which exprefsly confirm it : and manv more which make 
 no mention of it at all; and the ufe which I make of this 
 acknowledgment of Schlegel, and indeed without fuch 
 acknowledgment, of the known authority of the Confolato, 
 is to eilabiifh three propofitions of fome importance in this 
 liplomatic refearch. I. That, where the rule of the Con- 
 folato is departed from in a treaty, it is an exception to the 
 law. — II. Where it is fupported by an exprefs article, it is 
 merelv amrmatory ; and, III. Where it is not mentioned 
 lit all, it mull he taken fo: gi anted, that it was (till always 
 acknowleged. Thcle propofitions are an inevitable con- 
 fluence of the mere allowance, that the law was acknow- 
 ledged in point of fact ; and is as fimplv conclufive, as that 
 the municipal law of a country governs its inhabitants when 
 not referred to in the fpecial compacts they make together, 
 although they may fomctimes tie up the law by thofc com- 
 pacts, and fometimes give it additional vigour and efFedh 
 
 Now of fourteen treaties of commerce, which are to be 
 found ( doubt lefs amongft many more, but which I have had 
 no opportunity of feeing) during the fifteenth century, 
 
 * Schlcg. 5". \ Id. 4. Dans les i4.me. et 1 5 : r. e . Siecles*pref- 
 .-^'je :ou;; lei UAitcz tuicat fait* d'apres ce prhiupe. 
 
 by
 
 112 THAT FREE SHIPS U >/0 P- *• 
 
 but three make any mention of the cafe of enemy's pro- 
 perty on board neutral veffels. Thefe are the treaties of 
 England and Genoa in 1460, England and Flanders in 
 1478, and another between the fame Powers in 1495; and 
 all three fupport the rule of the Confolato. The fir ft of 
 them was probably meant to correct: the indeftnitenefs with 
 which another treaty, between England and Genoa, had, 
 upwards of thirty years before, permitted the general rights 
 of trading with belligerents. By one of the articles of that 
 treaty, (in 1421) it is ftipulated, that in cafe of war be- 
 tween one of the contracting parties and a third, the 
 other fhall be bound to take no {hare in it; at the fair.? 
 time it is ftipulated, that their (hips and merchants, with 
 their gooJs and merchandize, may fafe.'y pafs and repafs to 
 and from the ports of the other belligerent, and there exer- 
 cife their trade at large, without danger of an infraction or 
 the peace,* Upon a renewal of the alliance, between tin* 
 two countries in 1460, this probablv had been found to.» 
 large a grant of liberty, confident with the fair means of 
 defence; and it was then ilipulated, that ho afhftance or 
 favour iliould be fhewn in anv manner, direct or indirect , 
 and that, in particular, they fhouhi not carry the goods of 
 enemies in then fnips. The regulations, concerning this 
 mutter, are clear and decilive: and indicate fo precifely 
 what was then, at leaft, thought of the duty of Neutral J 
 when met on the fcas> in order to avoid contributing Xo 
 the affiilance of a belligerent, and what was to be the 
 penalty of a rcfiilance to that duty; that I will state the 
 paffages at length for the exercife of every man's judgment. 
 Item ijuod non liceat de Guerram nobis aut fubditi;? 
 noltiis movcuti aut moventibus, auxilium favorem vel 
 juvamen concedere, dare, vel exhibere quocumque modo. 
 
 *■ l, K . nici's Fued. an, i^i, 
 
 vet
 
 Sec. 111.] MAKE FREE GOODS. 113 
 
 veldato colore, clam vel palam, direcle vel indirecle di&a 
 tempore durante. 
 
 Nee cariabunt aut portabunt in navigiis eorum fupra- 
 dicYis ; bona aut mercemonia alicujus inimici noftri feu 
 inimicorum noftrorum ; et, cafu quo fecerint, petiti et 
 interrogali per noitros, dltli Januenfes debent (immediate 
 ctfine dilatione, mediante juramento fuo, cui fubditi noftri 
 fidem dabunt) veritatem dicere et fateri, quas et qualia 
 bona inimicorum noftrorum vel inimici ducunt in navibus 
 fuis, ct ilia fine difftcultate tradere et deliberare capitaneis, 
 vel ducentibus navigia noftra pro cuitodia maris, vel aliis 
 fubditis noflris quos obviate contigeret navibus dictorurrt 
 {anuenfium, ubicumque fuper mare, recipiendo pro rata 
 nauli live affreclamenti hujufmodi mercium inimicorum. 
 Et, cafu quo dicli Januenjis fie faccre recufaverint, vel 
 jnvamen aut defenfionem preftiterint alicui inimicorum 
 noftrorum, contra fubditos noflros fuper mare ; llcitumerit 
 ipjis noflrls fubditis eofdem Januenfes invader e et depugnare eo- 
 rum naves, et bona caper e et retivere, perfonafque eorumdem pri- 
 fonarios acciperc et cujlodire. * 
 
 From thefe articles, we fee that two very important 
 points, between neutrals and belligerents, were refolved on 
 in the fifteenth century by two of the greatest maritime 
 states of Europe; (for who {hall fay that the proud Genoa 
 was not a very ^reat maritime state at that time?) Thefe 
 points were, that the belligerent, meeting the neutral upon 
 the feas, ha 1 a right to enquire, in order for confifcation, 
 after any enemy's property which the latter might carry; 
 that the neutral was bound to fpecify the property on 
 oath, which, if he refufed to do, or fpecified falfely, (for 
 fo in this place may be tranflatcdy'z/vW.'ztTZ aut defenfionem 
 preftiterint,) it was lawful for the belligerent :o feize his 
 ihTp ami good:-, and detain the perfons of his men as pri- 
 
 Rymer's Fxd. ii, 441, 442. , 
 
 1 foners.
 
 II i- THAT FRKIi SHIPS [Prop. I. 
 
 loners. Not vaftly different from this, but greatly more 
 in favour of the neutral, is that old and regularly afferted 
 law which has lately been To much queftioned ; by which 
 rcjijiance to the fame right of examination is made alfo 
 to call down the confiscation of the ihip refilling. 
 
 The fir ft of the other two treaties that have been men- 
 tioned, contains fimilar Stipulations, though not in fuch 
 detailed and precife terms. It is in 1478, between Ed- 
 ward IV. and Maximilian, and states, that the merchants 
 and mailers of mips belonging to Flanders — iC non addu- 
 cent aut adduci facient per mare, fraudulofe vel quocun- 
 que colore, aliqua bona feu mcrcandifas inimicorum An- 
 glian, Hiberniae vel Calesix ; et de hoc, quoties cunquc 
 per fubditos Anglias Guerrx operam dantes fuerint inter- 
 rogati, tenebuntur facere juftam et veram confeffionem et 
 declarationcm.'"'- 
 
 The remaining treaty, containing an exprefs provifion 
 in fupport of the principle, is that between our Henry 
 VII. ami Philip, Duke of Auftria, in 1495, and is a little 
 more full than the laft, and more particular than the 
 firft, which has been mentioned, between England and 
 Genoa. The xxiiid. article is as ioilows. — Item, conven- 
 tum ell utiupr' : quod fubditi unius principuni praedic- 
 torum, five mercatores fuerint, five nauue, magi ft ri na- 
 vium aut marinarii, non adducent, feu adduci facient per 
 mare fraudulofe, vel quorumcunque color, , aliqua bona feu 
 mcrcandifas inimicorum alterius eorundem principuni: 
 et fi fecus cgerint, et per fubditos alterius principis guer- 
 rrc licite operam dantes fuper hoc interrogati fuerint, te- 
 nebuntur facere veram, planam et juftam confeffionem et 
 declarationem, cui in ea parte protur.c flabitur, iidemque 
 iiterrogantts uke-iius Kuutarncn in ea parte non facient. 
 Med ii poAca eundem iuterroga'.um falsi) reipondifie con- 
 
 D
 
 •V'f. 111.] MAKE FREE GOODS, 115 
 
 fliterit, tunc idem "mterrogatus interroganti, quern per 
 falfam refponfionem defraudavit, tantum de fuo erogarc 
 tencbitur, quantum merces inimicorum per eum vedtas-k 
 et ut prcemittitur, celatas, valuilfe conftabit.* 
 
 In addition to thefe four, there are ten other treaties of 
 a commercial nature, between the maritime ftates of Eu- 
 rope, during the fifteenth century, which ftipulate, ge- 
 nerally, both for freedom of trade and for perfect neu- 
 trality, but which do not mention the principle before us, 
 in exprefs terms. Such are the treaties between England 
 and France, 1475 ;f England and Riga, 1498;;; Eng- 
 land and Flanders, 1499 ;s France and Venice, 147751* 
 France and Portugal, 1485 ;§§ France, England, Venice,, 
 and Florence, 1492;;! France and Venice, 1498;]*: 
 France and England, 1497 ;i \ France and Denmark, 
 1456,"—- and France and Spain, 1500. I 
 
 Thefc treaties do not mention the principle, in terms, 
 and are, therefore, according to the proportions laid 
 down, fuppofed to be built upon it, as the known and 
 acknowledged law of Europe, operating silently, indeed, 
 but with not lefs effect, than if" exprefsiy mentioned in, 
 affirmance of the Confolato. In the three treaties which en- 
 tertain the principle, in terms, we fee frefh fupport brought 
 to it, in the moftpofitive manner ; and its rigour, fo far from 
 being relaxed, is extended, corroborated and affcrted, by 
 the introduction of heavy penalties for the now criminal 
 attempt at fraud or refinance. There is no treaty, which 
 I can find, that ftipulates any thing in contravention of 
 the principle. 
 
 * Id. vi. 322. 
 f 1 Fred. Leonard, 176. 
 
 J Corps Dipiom. vi. 40A. $ ld.vi.4n. 
 
 il 1 Fred. Leon. 211. §§ Id. 313. |||| Id. 348. 
 XX Corps Dipiom, vi. 406. 
 ft 1 Fred. txen. 394. ** I". ; , 56, 
 
 4 Coi'ps Dipiom. 41.J,
 
 1 f 6 1 1 1 a t f R £E sir i p s [ Prop . 1 . 
 
 Thus far, then, we have fleered our courfe, with cci 
 
 fainty and precifion, as to the ftate of the law, to the end 
 of the fifteenth century, and nothing arifes, hitherto, to 
 trench upon the mode of reafoning adopted, namely, that 
 the law exifling in acknowledged vigour, the filence or 
 treaties, far from diminishing its force, is a proof that no 
 attempts had been made to exempt any one from its pro- 
 viilons. But if this was the cafe at the end of the fifteenth 
 century, and things continued the lame, or pretty much 
 the fame, throughout the fixteenth, who is to fay, that 
 the lea ft alteration in the law was cif'ecled during that 
 latter period ? — The acknowledgment of Schkgel himielf, 
 as to its ftate in the fifteenth, it feems fair to extend to 
 the middle of the feventeenth, fince, with the exception 
 of the three treaties he mentions, in the previous periods,. 
 and which we have proved him to have Itrangcly miscon- 
 ceived, he fallens upon no onehiflorical fact, much lefs any 
 treaty, forming an exception to the rule of the L'onfclato, 
 until 1642, from which time, as he fays, the change be- 
 <ran. He, indeed, adverts flightly, as Hubner did be- 
 fore him, to the conduct of Elizabeth, when fhe 
 font over Winter and Eeal to Zealand, to vindicate, as 
 he favs, les droits du pavilion neutre ;* but how flic vin- 
 dicated thofc rights, how little was done for the " pav'ilhr. 
 ventre" how entirely it was a cafe of robbery, acknow- 
 ledged by the hiflorian of Holland himfelf, and, therefore, 
 out of ail reach of an argument upon the law of nations, 
 lias already been too amply (hewn to enlarge upon it 
 again. ~\- 
 
 The commercial treaties of the sixteenth century, arc 
 comparatively, few; and of thofe, not one, that 1 have 
 been able to difcover, derogate, in the fmalleft point, from 
 the rule of the Conlolato, confilcating enemy's propcrtv 
 
 1 > 3 s j j S c ) 5 " 3 • 
 
 whcii
 
 SeC. 111.] MAKE FREE GOODS. 117 
 
 where found ; and as we left that rule, in its full vigour, 
 at the end of the fifteenth, it mull be fuppofed fUll to 
 have continued in all its ftrength under every treaty 
 which assumed the regulation of commerce, but 
 which yet did not derogate from a point long fo 
 acknowledged and held fo facred. It is no where men- 
 tioned, either by way of affirmance or denial, in the treaties 
 between England and France of 1514? 1525, 1530, 1540, 
 1564, 1572;* between France and Sweden, 1559;^ be- 
 tween England and the Emperor, Charles V. 1589 ;j be- 
 tween that Emperor and Denmark and Holftein, 1544.$ 
 between Denmark and the Hanfe, 1560 ; or Scotland 
 and Holland, 1594. j 
 
 At the fame time, many of thefe treaties contain ftrong 
 general flipulations againft affording any afliftance to a bel- 
 ligerent, either directly or indirectly; ftipulations, by the 
 way, which we may as fairly ufe in affirmance of the prin- 
 ciple, as our opponents in the argument ufe the general 
 permiffion to trade in its derogation. On the other hand 
 alio, it was in the fifteenth century, at two feveral times, 
 once toward the beginning and once toward the end., that 
 the famous ordinances of France, relative to the marine, 
 were compofed under the aufpices of Francis I. and 
 Henry III. Thefe, as has often been obferved, gave the 
 fulled fupport to the rule of the Confolato, and afferted the 
 privileges of belligerents to an extent far beyond what had 
 before perhaps been known .. 
 
 In this age alio, raged to its height that great 
 pretenfion of belligerents to out off all neutral com- 
 merce whatsoever with their opponents ; in fiances of 
 which are fo abundant and ftrong in the hiflory of every 
 
 J id. .564. 
 
 r Corps Deplom. viii. 42. 
 % Id. 274. § 2 Valin 252, 3, 4. 
 
 || Rec. des Trait, ii. 303, 459. It is no where mentioned at 
 the peace oi Vervins, 159S. 
 
 1 2 maritime.
 
 118 THAT FREE SHIPS \PjV/>. 1. 
 
 maritime country of Europe, that to enter into their detail, 
 would prolong this difcuffion to an unbounded length. 
 Grotius took notice of many of them, in the paflage in 
 which he gives his fancfion to the Conflict to;* and in gene- 
 ral we may obferve, that this is in fadt the true point of nil 
 the ftrongeft examples which arc cited againft our princi- 
 ples, but which prove nothing as we have (ecn, except a 
 general right to trade on the part of the neutral, the rea- 
 fonablenefs of which no one now denies. 
 
 Soon after the marine ordinance of Francis 1. was 
 promulgated, fome of the neutral powers felt its its 
 jeverity ; and I find, that in confequence of ilrong re- 
 prefentations from the Emperor, Charles V. on the part of 
 his provinces in the Netherlands, and after conferences on 
 both fides, the ordinance complained of was abrogated, 
 .i'ut, though the fevcrity of confifcating the (hips of friends 
 for carrying the property of enemies was removed, the 
 right to feize that property was no where trenched upon. 
 On the contrary, by the very terms of the regulation pub- 
 Iifhed for abolishing the ordinance, it is preferred in all its 
 extent; the punilhment of the neutral is alone annulled, 
 and thus while the humanity of the Confolato was perfeel [y 
 reflored, its jufticc and legal fevcrity were integrally 
 preferved. -j* 
 
 This was in the year i 550, but feven years after the pro- 
 mulgation oftheFrench ordinance, whole rigour was thus 
 
 ' De Jur. Bel. p. 3, 1, 5, 4, notis. 
 
 1 Sravoir que dorefnavant tojitcs, & quar.tcs fois qu'on aura 
 faict d'tir,'.;' coi'te on d'aultrc aiitune prinfe, 011 arrcft, loit en 
 iner, oil par tcj're de qiu-lques merchandiieb 011 autrcs biens de 
 ouelque <jii.il it-'-, qifil/. foyent, efhins les dits rficrchandifcs oil 
 biens trouvcz en navires, on chariots & autres voitures des fub- 
 rectz tant dudit Sr. Roy que de nous ou en navires iPenncmis, 
 que du bien ainll prins Sc arrette tant par mer que par terre fera 
 feulement declare confifquu'. a: qui se troui'era appurtcnir aux 
 c'Kt:c:nis, on seulement la luarchandne prohibee, & dcllendue, Sc 
 non autre, fans ee que pour 1'advaiir ladite ordonnanre (qui des 
 maintenant demeure du tout nulle, & rcvocquee) puiil'e cure a!. 
 leguee ny mif'e en avant pour le regard desd, prinfes. Rec. de r i 
 Tnit. ii, 6k 9, 
 
 foftenesJ
 
 Sec. 111.] MAKE FREE GOODS. 119 
 
 foftened towards the inhabitants of the Netherlands. But 
 neither was this mildnefs extended to other nations, nor 
 did it long continue to favour the Flemings themfelves; 
 for in 1583, the regulations of Francis I. were reftored in all 
 their feverity by Henrv III. and they never afterwards ceafed 
 to be the maritime law of Fiance, except when modified in 
 favour of particular nations, by the exprefs ftipulations of 
 particular treaties. It appears alio that thefe laws, hard as 
 they were coniidered by the Emperor himfelf, formed a 
 part of his own commercial regulations on the fide of the 
 Netherlands ; fince the language of the regulation avows 
 that it was obferved in the dominions, both of the Empe- 
 ror and of the King. * 
 
 We have thus conducted the principle of the Confolato 
 in full, and even in augmented vigour to the end of the iix- 
 teenth century ; nor, upon the unite ft inveftigation, is it 
 to be found, either from the internal regulations, or the 
 public treaties of the times, thatany thing like (I will not 
 fay the new principle but) the new pretention, had been 
 hitherto brought forward in Europe. If it had, doubtlefs 
 the learned and indufirious profeffors of Denmark, the 
 zealous advocates of Holland in various Dutch wars, and 
 the inveftigating delegates of the King of PrufTia in 1752, 
 would have long fince pointed them out. It is to be la- 
 mented, I think, that the learned civilian, vvhofe affertions 
 we are thus driven to oppofe, has contented himfelf 
 with fuch very vague and indeterminate language as he has 
 ufed, in fpeaking of one of the mold Important cufloms of 
 maritime nations, as found in their treaties. He acknow- 
 ledges, it is true, that the treaties of the fourteenth and fif- 
 teenth centuries knew no other principle; but after this, 
 
 * Charles, <?cc. a tons ceitx, &c. commc pour faire ceifer les 
 plaintes ct doleances f'aictes par aucuns iroz fubgeCtz, °:c. de !a 
 ri fr eur de ccrtaine ordonnance reipectiveirient obfuve'e en noz 
 pavs de pardeca ct au Royeaulme de France, &,c. Recueil des 
 Traitez. 2. 689. 
 
 14 in
 
 120 that free shifs | Prop. I. 
 
 in pretty marked terms, as was obferved before, 
 he lays, " il fut en confequence determine qu'un 
 " vaiffeau neutre ns pourroit plus etre arrete parce 
 iC que il auroit aboid des marchandifes ennemies.*" 
 How, or when, this was determined, or in confequer.ee of 
 what, he has notcondefcended to fay: but having mention- 
 ed the_/£/)^>?^century as his laft date, he goes on to ob~ 
 ferve that the greater part of the treaties, after the middle 
 of thefeventeenth) purfued an oppofite line ; thus leaving a 
 tolerably large chafm of one hundred and fifty, or perhaps 
 two hundred years, without any definite account, or rather 
 without any account at all, of what was the commercial 
 maxim purfued by its treaties. That account, if this were 
 mere matter of hiftorical enquiry, the library of every 
 ftatefman would be able to fupply ; but how will Schlegel 
 ferioufly anfwer to this country, to his own, and to his con- 
 science, for leaving fo great a fpace of time in total neglect, 
 in order afterwards to call it by the invidious name of mere 
 antiquated law? The queflion is immenfe in its extent, 
 and mighty in its confequences ; the ProfefTor's book is 
 read by the governors of his nation, and the nation itfelf ; 
 they have armies, fleets, and allies, ready to rufh into 
 bloody quarrel, if caufe of quarrel is made out; and where 
 fo many thoufand lives are to play for the flake; great 
 caution, and even painful enquiry, one would think, Should 
 be exercifed, before any thing is hazarded info ftupendcus 
 a caufe. 
 
 From this filence, however, 1 think it rcafonably fol- 
 lows, that even if we were deprived of all light upon the 
 fubject, the fame confeflion, on the part of the profeflbr, 
 muft continue ; .?nd that, with his acquiefcence, we may 
 enter upon the Seventeenth century alfo, with the maxim 
 of the Confolato, in the moil entire State of diplomatic 
 acknowledgment. 
 
 The
 
 Sc'C. 111.] MAKE FREE C00D3. 121 
 
 The feventeenth century is a rich mine of hi iter v, in 
 all that regards and all that can intereft mankind. Nations 
 emerged from barbariSm and bigotry; the vafteil political 
 objects; concentrated and univerfal alliances ; the elevation 
 of the rights of war and peace into a Science, itfelf a molt 
 memorable epoch ; a great Republic riling into acknow- 
 ledged fovereignty ; a war, of thirty years, displaying the 
 moil ardent gallantry, and the moil confummate abilities 
 in generals and itateSmen, and ending in a peace, which 
 formed, ever afterwards, the balls of the political inte- 
 refts of Europe ; in addition to this, the moft Shining 
 characters in all the ranges ot human activity ; Henry 
 IV. Suliy, Guftavus, Grotius, R'ichlieu, D'Avaux, Crom- 
 well, De Wittc, Temple, and King William ; thefe are 
 the meteors which every where ftiine cut upon the en- 
 quirer into this eventful period ! 
 
 It may be fuppofed, that fuch an a.e was fertile in ne- 
 gotiation upon every Subject, and in treaties upon every 
 oueftion. Nor is expectation diSappointed : The conven- 
 tions of thefe times fwell into a Size, both in number 
 and length, beyond all proportion to tliofe of" preceding 
 ages ; and there is fcarcelv a point or po.itical difpute, 
 much lefs a principle of political conduct, which is not 
 limited down and fettled in the active negotiations and the 
 laboured treaties, which every where meet us, in our re- 
 fearches, during this wonderful age! 
 
 It is, therefore, of no fmall advantage, in investigating 
 the opinions of fo bufy and interefling a period, that we 
 have the important datum, to which we have alluded, in 
 order, the better to arrive at truth, in our enquiry. 
 
 It is to be recollected, that hitherto, no one treaty lias 
 been found, to contravene the Stipulation of the Cm/clato. 
 On the contrary, fome have been made in its Support, and 
 Some particular ordinances have gone a great way farther ; 
 and, whenever they have been found too harfh tor a con- 
 tinuance.
 
 122 THAT FREE SHIPS [Prof. 1. 
 
 tinuance, the new agreements which worked their ab- 
 goration, avoided, with care, the deftruction of the ori- 
 ginal law. Again, therefore, we ftart from this as a 
 truth ; that the rule of the Coh folate was the rule of the 
 commencement, at leafr, of the feventeenth century ; 
 and confequently, that though many commercial trea- 
 ties are filent with refpect to it, their filence is the effect 
 of acquiefcen ce alone, and tliey rauft therefore be fup- 
 pofed to adopt and incorporate it with themfelves in the 
 fulled extent. From the year 1600 to J 642, the epoch 
 laid down by Bufcb, and adopted by Schlegel t lor the com- 
 mencement of a new law, there feems, even Irom them, 
 to be no oppofition to this. During that interval, fifteen 
 treaties ofcommerce,or relating to commerce, were framed 
 by the maritime ftates of thofe times. Of thefe, the rule 
 is exprefsly relaxed in none, was nrongly confirmed by 
 five, and is acquiefced under, in filence, by ten. Con- 
 fequentlv, according to cur principles, tliey are ail of 
 them in favour of the Ccnfclato, without a iingle ex- 
 ception. 
 
 The treaties which make 2:0 exprefs mention of it, 
 either in affirmance or derogation, and which, therefore, 
 as we contend, are filently acquiefcent, are thofe between 
 I" ranee and the Hanfe towns, in 1604;''-' between Eng- 
 land and Spain, 1604; in which, however, there is an ex- 
 prefs prohibition to trade with the enemies ot Spain in Hoi- 
 land ;-b between England and F ranee, in 3 0c6;X Spain and 
 Holland, (the twelve vears true.-,} in 1609-. § Denmark and 
 England, in 1621 ;* ;/: France and Ruflia, 1629 ; ~\-\- Poland 
 and Sweden of the lame year;':; Denmark and England, 
 1639 ; {!|j Sweden and Holland, i640;§S and France and 
 Portugal, 1641.^,. 
 
 
 • Recu«\l ,; 
 
 f' Trai 
 
 
 ")■ 
 
 
 
 
 •• Du Moil 
 
 t C i ■;■ 
 
 Din. 
 
 x. 1 
 
 !. 
 
 t rd 
 
 f* 
 
 i.i. 320. 
 Id. 105. 
 
 *■* I< 
 
 », Id. 
 
 21c. 
 
 i 
 
 r id. 
 
 59 s - 
 
 0.z. II. 
 
 Thofe
 
 Sc'C. 111.] MAKE FREE GOODS. 123 
 
 Thofe which confirm the Confohto, either by exprefs 
 words or verv ftronjr imolication, are the treaty between 
 England and Holland, in 1625, againft Spain; in which 
 Charles I. llipulates, that he will inftigate all other princes, 
 Hates, and communities which are neuter, to difcontinue 
 all commerce with Spain ; in fuch a manner, however, as 
 that they Jhall fuffer no lots by their compliance; hut in 
 cafe they will not comply, then it is agreed that all fhips 
 in the high ^zs^f* [petted of fleering towards Spain, (hall he 
 iiopped in order to be fearched, without however being 
 retarded or damaged: (I fuppote in the cafe where no pro- 
 hibited property is found) at the lame time all other com- 
 merce is to be open to them without let or disturbance; 
 and there is an exprefs article, which ftates that nothing in 
 the treatv is to be confidered as anv innovation, change, or 
 interruption in the freedom of navigation and commerce, 
 either of the fubje£ls of the contracting parties or other 
 neutral Rates.* 
 
 The next treaty in which this belligerent right is to be 
 found acknowledged, notexprelsly (for according tons, ina 
 point fo uncontefled, that was not neceffary,) but implied as 
 a well-known law, is that oiSt. Germains, between I ranee 
 a..d England, 163:, in which the third article regulates the 
 right of fearch. " Et d'autant, fays that article, fous pre- 
 li texte de recherche etviiite, qui fe pour roit f aire par lesvaif- 
 *' feaux de guerre de l'un ou de l'autre prince, ou deieurs 
 '* fujets enraer, desnavircs marchands, pour f avoir s'ils i: it 
 " charges dc mcrchand: fes clef endues ct apput tenants aux en <ie wc s , 
 " occ. etc.-f-" it is needlefs topointout to perfo: s, acquaint- 
 ed with the rules of reafoning, that preiexte mull mean the 
 pretence of fomething lawiul ; and that qui jc pour, oil fail c t 
 is proof that what follows is the legal rig!,t to fearch for 
 enemy's goods, which are alfo here placed in the lame rank 
 with defend ues. 
 
 Id. \. :\j. the 2 1 it. 22d. 23d. and 40th artic] 
 i-rcd. I euu, v. 4a,
 
 I24 that free snips [Prop. 1. 
 
 The next inftance is the treaty between Denmark and 
 Spain, in 1641, in which the fulled rights of navigation 
 and commerce are granted to the fubjects of one another, 
 clogged, however, with the moft marked prohibition as to 
 the property of the Dutch, with whom the Spaniards were 
 at war, or of any other hoftile country. And in order the 
 better to prevent the carriage of fuch goods, all merchan- 
 dife whatever, exported from either Spain or Denmark, is 
 to be registered and fealed with the feal, and have the certi- 
 ficate of the country whence it comes ; fo that Dutch, or 
 any other enemy's property, may be eafiiy difcovered; and 
 as fuch, confifcated: ( corarae des marchandifes de contre» 
 bande.'* 
 
 In this period alfo, notwithstanding what has been faid 
 byHubner, that the Muflulmans of the Barbary States gave 
 greater liberty than Chriftians, &c. to the exercife of com- 
 merce, and allowed the principle in queftion, I find fome 
 treaties not without Stipulations of a very contrary nature. 
 In the treaties between France and Algiers, in 1628, and 
 France and Morocco, 1630, a period when the former was 
 the moft favoured of the Chriftian nations in the Mediter- 
 ranean, the fir ft allows not the freedom of enemy's proper- 
 ty until the Algerine fhall have taken the (hip into port, 
 in order to exact a duty, or toll, upon fuch part of the 
 cargo :f the laft confifcates it altogether ; and the Stipu- 
 lation is, that the French veflel fhall alone be free.f 
 
 And thus the matter ftands in the maritime treaties of 
 Europe, -from the time of Edward III. until 1642 ; when, 
 and not till when, according to Schlegel himi'elf, a new 
 fyftem of commercial regulation was fet up. The con- 
 feffion implied by that aflertion might probably have fpared 
 much of the preceding detail; hut as, in all human insti- 
 tutions, much of what is, depends greatly upon what has 
 
 * Corps Div'lom. xi. 2:0. Art. v. 
 
 -j- Corps Diplom, x, 550. X Id. C\&. 
 
 been ;
 
 S'cC. III.] MAKE FREE GOODS. 12^ 
 
 been j as, in many points, the right aunderfrnding of what 
 every day panes is, at lead, facilitated, if not entirely gene- 
 rated by a knowledge of the iburces whence it flows, 
 and the changes it has undergone ; the preceding refearch 
 will not be regretted by thofe who regard the fubjecr. with 
 any thing more than temporary views. At the fame time, 
 it is not pretended that all the maritime conventions that 
 exifted have been here brought together. There are, with- 
 out doubt, many more ; but thefe are all which, from fuch 
 narrow fources as are before me, I have been able to find., 
 and for whofe fidelity I am therefore able to anfwer. It is s 
 however, little probable, that even from thofe which ma 1 ;, 
 for ought I know, remain behind, any thing can be found 
 adverfe to the point we have arrived at ; fmce, if there was, 
 the Danifh civilians, who were fo interefted in the dis- 
 covery, would, doubtlefs, have long fince publifhed it to the 
 world : and the miftakes of their zeal in citing fuch treaties 
 as thofe of Edward III. and Charles I., and the tranfaclion of 
 Elizabeth with the Zelanders, prove to us at what flight 
 and fragile fupports they are willing to grafp ! * 
 
 We now, then, arrive at that important period whence,- 
 es it is /aid, a new principle of governme/it for Neutrals 
 and Belligerents takes its progrefRon. But, although it is 
 indubitable, that, from that time downwards to the ara of 
 the firff. Armed Neutrality, there are a vaff. number of ex- 
 ceptions to the rule which, as we have feen, had hitherto 
 reigned paramount to all exception ; yet we fhall probably 
 heiitate a very long time before we can lend our belief to 
 the aiTertion, that the contrary rule became the rule of Eu- 
 
 ^ee pages 51, 5*. 
 
 rope.
 
 ■flG THAT FREE SHIPS [P/'Op. It 
 
 rope. Even the ground for the fuppofition in the outlet is 
 weak ; for, allowing all poffible credit to the foundnefs of 
 the conclufion, as to the real thing which is ftipulated by 
 treaty (a conclufion, however, which paft experience would, 
 perhaps, induce us to deny), the exiftence of but five and 
 thirty treaties, during a period of one hundred and thirty- 
 eight years, would alone make us doubt of their conftituting 
 Co vail a majority as mull make a rule. But when we add 
 to this, that it was a period the bufieft, the moil intriguing, 
 the moft fertile in every fort of alliance, and in opportunities 
 to draw forth every fort of maritime intereft ; the period, in 
 fur, of Europe's hiftory, when the Maritime Powers began 
 nrftto affume the lead, where formerly they had been merely 
 iecondary to the Continental ; the period when Hol- 
 land was at its zenith ; when Pruffia was ftruggling 
 into notice; when France became commercial; when 
 Ruffia became maritime; when all the States, whether con- 
 tinental or maritime, came to be linked together in fuch 
 clofe connection, that the flighteft movement of one was the 
 fignal for conventions amongft all the reft: under thefe 
 . ; . uaCreriftics, and during lb great a length of years, that 
 i'o final! a number of treaties fhould form a decided and con- 
 fhtntioual majority, is an affertion which we fhould be in- 
 duced to paufe Ion" upon before we <rave it our implicit be- 
 lief ': 'l hat there may be live and thirty treaties, from the 
 year 1642 to 1780, which are favourable to the principle, 
 I am not difpofed to quei'tion, though i know not the fail : 
 that they form a majority, and that a very great one, 1j aa 
 to give the general rule of Europe, is the point to be dii- 
 cuffed ; and that point muft depend upon the fame view o. 
 the fact which we have all along been taking of it in the 
 earlier parts of -he hiftory- In particular, v/e mult ft ill 
 proceed to the enquiry with this cie.it guide in our minds :, 
 that as, hitherto, for the fpace of at leafi four hundred years, 
 no one convention had been made in derogation or the 
 ('.: r !ci!o da May: : a: : , on the contrary, many treaties,
 
 S€C. 111.] MAKE FREE GOODS. 127 
 
 as we have Teen, were made directly in its affirmance; and 
 as what alterations were attempted by the ordinances of 
 particular nations, were all of them built upon its exten- 
 sion, to a degree of even unjuft Severity, it is impofiible not 
 to fay that, in 1642, it was Still the great find acknowledged 
 rule of Europe: confequently, in every treaty which did 
 not except agaiuft it, whether mentioned or not, it rnuf 1 
 ftill be taken to be the known law. Now, in Surveying 
 the treaties of the important period from 1642 to the peace 
 of Utrecht, we do find that fome have departed from it; 
 givingy however ^ very marked conrpenjalions : more have 
 confirmed it exprefsly, and ftill more have confirmed it by 
 tiiis filent acquieScence ; for the better afcertainment of 
 which it will be right to proceed chronologically, though 
 curforily, in our review of the treaties. 
 
 The fir ft upon record, which I find after the new period 
 commences, is certainly not of the complexion of thofe 
 which Biifc'b muft be fuppofed to mean. It is that between 
 France and Courland, 1643, which gives to the latter the 
 fulleft freedom of commerce and navigation through all her 
 ports and feas. There is, however, a fpecial article, which, 
 in terms, prohibits the Duke from availing himfelf of the 
 liberty thus granted to afliit the enemies of France, by 
 carrying to them any fort of merchandise ; * which is ob- 
 vioufly a much greater extenfiou of the Belligerent claim 
 than if it had been confined to the right of Seizing the pro- 
 pertv of cbc enemy himfelf. 
 
 The next in order is the treaty of Chriftianople, between 
 Denmark and Holland, 1645,1 in wh ch, though made ex- 
 ; rcblv tor the arrangement of commercial difputes, no men- 
 ton whatever is made of this Neutral claim. The next 
 .> be. ween Denmark and France, November 1645 ; aclofe 
 
 * Corps Diplonn u. 210. vol. 5. f Id. 312.
 
 ;2£ THAT FREE SHIPS [Prop. I. 
 
 and commercial alliance ; in which, however, there is alfo 
 iilence as to the claim. But the ftipulation is exprefs — That 
 neither power fhall afford help to the enemy of the other, 
 directly or indirectly ; and the twelfth article in particular 
 acquiefces under the antient rule, when it ftatcs, that the 
 freedom of commerce confifts in maintaining things exactly 
 as they are, in the weftern and northern oceans, and in the 
 Baltic fea.* 
 
 The next is the treat 1 / of Pari?, between France and Hol- 
 land, 1646 ; and as it contains an argument of fome little 
 nicety, as to its conftru&ion, it deferves to be mentioned 
 at fome length. It will be recollected, that the ordinances 
 of France at this time confifcated not only all enemy's pro- 
 perty, found on board Neutral veiTels, but the veffels them- 
 felves, as good prize. This had been already felt, and alter- 
 ed, on the reprefentations of Charles V. ; and, an alteration 
 was now again folicited by the United Provinces. The pre- 
 amble, therefore, ftates, that many complaints having been 
 made, that the mips of the King were in the habit of feizing 
 merchant vefTels, in which enemy's property was found, 
 and conhYcating the Jhips the?nfelves as eood prize, accord- 
 ing to the marine ordinance of the late King Henry III. ; 
 and the King being difpofed to apply the bell pofliblc reme- 
 dy to the inconveniences attending the execution of this order ; 
 
 * et fe relacher,' to ufe the words of the treaty, c de la rig-cur 
 
 * d'icelle pour quelque terns en faveur des dits Sieurs les Etats, 
 
 * a la priere que luy en a etc faite par le Sieur Oilerwick. 
 
 * lour Ambafladeur,' names his Commiifioners to confc 
 with the States, who determine upon the following articles. -f 
 
 Now, to paufe here a moment, it is impofiible not to be 
 firuck with the marked tone of the treaty, as it regards ?. 
 very important point; namely, that the whole is condcfccn- 
 
 ' Corps, Diulom. -•??. -\ Fred I.cqw. ', 2:3.
 
 Sec. III.] MAKE FREE GOODS. I29 
 
 fion on the part of the King; and as fuch, of courie, from their 
 very agreement to the treaty couched in thefe terms, accept- 
 ed by the States. He relaxes his rule, for a time only, in 
 their fpecial favour, and at the prayer of their Ambaffador ! 
 Not a fentence is breathed concerning a liberty or right, un- 
 der the Law of Nations, to the abrogation of this ordinance; 
 but all is pure matter of conventional relaxation from an 
 admitted rule, at leaff. of France, and to exiff. only for a 
 time. And what is it that is determined? c Qu'en attendant 
 1 quel'on ait fait un bon reglement, on furfeoira ['execution 
 1 des articles de l'ordonnance du Roy Henry III. de l'an 
 1 1 584 fur le fait de la marine, portant que les marchandifes. 
 
 * appartenantes aux ennemis, donnent lieu a la confifcation 
 1 de c files des amis, et ne fera plus obfervee n'y pratiquee 
 
 * a l'egard des fujets des Sieurs les Eftats Genereux des Pro- 
 ' vinces Unies des Pays-Bays, pendant le temps de quatre 
 c anneesj en telle forte que les navires qui trafiqueront avec 
 4 la patente de l'admiral des Provinces Unies la mer Medi- 
 1 terrannee et du Levant, et fur l'ocean du dit admiral, ou 
 4 des viiles et lieux aux fujet defquels les dits navires appar- 
 1 tiendront, feront libres, et rendront aujji toute leur charge 
 4 libre^ bien qu'il y eujl dedans de la marchandife \ mime des 
 4 grains et legumes afpartenans aux ennemis: fauf et ex- 
 
 * ceptc toutefois les marchandifes de contrebande*. 
 According to the well-underftood language of the prefent 
 
 day, if this flood alone, the phrafe, 'rendront aufli toute 
 i leur charge libre,' would convey very clear and definite 
 ideas. De Witt and the Dutch had little doubt about it 
 eight years afterwards, when it came intodifpute; and they 
 underitood it as, we muff, own, with modern ideas, all 
 Europe would now underftand it to mean, that not only 
 the fliips and property of friends, but the property of ene- 
 
 * Id. Ibid. Artie. I. 
 
 k mies
 
 I30 THAT FREE SHIPS [Prop. I. 
 
 mics alfo, fhould be free from confifcation. Allowances, 
 however, muft be made for novel language, (for at the time 
 it was new) ; and, at all events, deference muft be paid to 
 the intendment of both parties ; and if the Dutch made ufe 
 of one interpretation, another was put upon it by the 
 French: the former yielded their object, the latter never 
 did. In the year 1653, De Witt endeavoured, through 
 Boreel, to negotiate a great commercial treaty with France, 
 in which he laboured hard to be allowed his maxim of 
 ' Free Ships Free Goods,* in the modern understanding of 
 the phrafc ; that is, that enemy's property fhould not be 
 feizable. But Boreel informed him, that he never could ob- 
 tain it under that conftrucHon of its terms ; and then, for 
 the firft time, at leaf! upon record, after the figning of the 
 treaty 1646, it appears that the French Government had 
 very different ideas from De Witt and Boreel of what 
 was really meant by its important firft article. Being in- 
 fected, laid the former, merely in order to fufpend the effect 
 of the ordinance of 1584, its interpretation was to br 
 guided entirely by the fubject. matter contained in the ordi- 
 nance ; and that being to protect an old and known law, by 
 adding to the breach of it a heavy penalty which had 
 never before accompanied it, and which was now com- 
 plained of, any agreement to remedy the inconvenience of 
 the ordinance could go no farther than the inconvenience 
 mentioned : it might take off what was complained of, 
 namely, the penalty, but could never abrogate the law it- 
 felf. Confequcntly all that was done, was to reftore things 
 to their old fituation before the ordinance, which was, that 
 the enemy's property in the fhip might be feized as of old, 
 but that the fhip itfelf, and all Neutral property on board, 
 were to be confidered as free ; and this was all that was 
 meant, when it was laid that the fhip fhould be free, and 
 render alio its cargo free: thus applying the word free to 
 
 the
 
 SeC. ill.] MAKE FREE GOODS. I3I 
 
 the fhip and Neutral cargo alone, which were not (o confi- 
 dered by the feverity of the ordinance. 
 
 I own, this reafoning appears to me to be convincing ; 
 and the only caufe for doubting of its foundnefs feems to 
 arife from the long hnbit we have been in of annexing a par- 
 ticular and different interpretation to the phrafe, Free Ships 
 Free Goods. At this period, we have no ordinance of 1584 
 to encounter, as the ground which gave rife to the difputc ; 
 but have been accuftomcd long to confidcr it as an abftract 
 propofition with a defined meaning, totally diftincl: from any 
 hiftorical circumftance ; and, therefore, by a prejudice by 
 no means unnatural, divert the leaning of our minds to 
 one, and only one, interpretation. Placing ourfelves, how- 
 ever, in the fituation of the French miniftry in the middle 
 of the feventeenth century, and only eight years after the 
 relaxation of the old ordinance of 1584, we (hall not, per- 
 haps, confider the difputc as fo clear in favour of the Dutch. 
 One argument, alfo, there is on the fide of the good faith o* 
 the French Government, that grain and provifions, in thofe 
 times, fell in amongft the general articles of contraband; 
 the carrying of which being, when not ftipulated for to the 
 contrary, a caufe for ieizure ; the exemption from it, in the 
 cafe ftated by the words of the article ' mime des grains et le- 
 gumes J points entirely to the fhip and the neutral part ot 
 the cargo. When this difference arofe alfo, it was not a 
 fudden, or temporary change, to ferve a particular purpofe, 
 in interpreting the treaty of 1646, but a difcuffion, in the 
 outfet, of the meaning of terms to be inferted in a much 
 larger treaty of commerce, and for a much longer time, 
 then in the act of being framed. Boreel, it appears, had pre- 
 fen ted the project of the treaty containing this felf fame article 
 in terms; and had written, as it fhould fcem, to De Witt, 
 to inform him that his projet was not oppofed : he was fur- 
 prifed, therefore, to find that he had been totally mifbtken 
 when lie learned, after having announced it to De Witt, 
 
 k 2 that
 
 1-2, THAT FREE SHIPS [Prop. I. 
 
 that a very different fenfe was put upon thofe words ; and, 
 hence, when the Peniionary replies to his fecond infor- 
 mation, he fays, that it appeared to him, either that the 
 French minifters were miftaken in that conftruction, or 
 that Boreel himfelf had reprelented the thing in a wrong 
 light in his letter ; fince, by the detail of the article, 
 though the phrafe is not there, the rule of Free Ships Free 
 Goods c y ejl nettcment exprimee.' 
 
 Be this as it may, the French, as we fee, interpreted it 
 differently, not only in the projet of the new treaty pre- 
 iented by Boreel, but alfo in the old one of 1646 ; and, as 
 he fays himicif, had alfo put it in practice, * a la verite fort 
 mal ;' and, therefore, as they were always at liberty to put 
 the fame explanation upon it, he advifes a more clear and 
 precife form of words, unconnected with the ordinance of 
 Henry III. ; and propofes the introduction of the maxim 
 of c Free Ships Free Goods,' in terms, with fufficient expla- 
 nations to put it out of doubt, according to the Dutch fenfe 
 of it ; in which propofal he did not fucceed; and it was, 
 for fome years afterwards, altogether rejected by the 
 French*. 
 
 The hiftory of this difcuffion, of courfe, will explain 
 what was meant by the next treaty we find on the fubject, 
 May, 1655, between France and the Hanfe Towns; the 
 third article of which is precifely the fame ; the duration 
 ;or fifteen yearsf. But, though the form of words is fo 
 particular, and, apparently, fo ftrong agaiiifr. the rule of 
 the ConfolatO) it is impoffible, after the pointed difcuffion as 
 to their meaning, to have any doubt of what was offered, 
 and what was accepted. The French, who had continued 
 (o firm to their own interpretation with the flourifhing 
 
 * See the whole of this difpute, in the Lettres ct Neg. de De 
 Witt, torn. i. So, Si, 104, 105, 10&, 129. 
 t Corps Dipiom. xii. 103. 
 
 Dutch
 
 -SeC. III.] MAKE FREE GOODS. 133 
 
 Dutch Republic, that the treaty in contemplation was en- 
 tirely dropped, would hardly, within a twelvemonth al- 
 moft, give up the whole of their objection in favour of the 
 declining Hanfe. Whatever, therefore, was the form of 
 words ufed, there can be no doubt as to the meaning of thefe 
 two treaties ; and, if thefe are included amongft the thirty- 
 five enumerated by Bufch, as trenching upon the Conjolato y 
 they ought to be inftantly expunged. In the fpace of five 
 years afterwards, Denmark, and Sweden made two treaties 
 of alliance and commerce together; one in 1658, and ano- 
 ther in 1660 ; neither of which makes any mention of an 
 innovation on the Conjolato* ; and Spain had formed ano- 
 ther with the Hanfe Towns in 1647, in which {he gave 
 them the fulleft liberty of commerce ; with the ftrong ex- 
 ception, however, that they mould give fecurity by regif- 
 ters, certificates, and other modes, not to bring Dutch 
 property into any of the places within her jurifdiiStion ; 
 a pretty forcible example, that the rights of commerce were 
 not in the treaties, even of this time, enjoyed in the fame 
 manner as during peacef. 
 
 What De Witt himfelf thought of the rights of Neu- 
 trals, when his own country was Belligerent, may be col- 
 lected from the famous placart publifhed by Holland, in 
 1652, upon the approaching war with England. Not con- 
 tent with interdicting all carriage by her own fubjects of 
 neutral property into the ports and harbours of her enemy, 
 fhe gives notice to Neutrals themfelves, though in their 
 pafTage to other neutral countries, not to be found on the 
 coafts of England, or its dependencies, on pain of incur- 
 ring fufpicion ; and, if found to be laden ' en partie o 1 en- 
 * tierement de quelque munition de guerre ou de bouchej on 
 pain of being brought into the ports of Holland, and con- 
 fiicated by the Dutch Admiralty+. 
 
 * Fred. Leon. v. fub. an. f Corps Diplom. xi. 424. 
 t 12 Corps Diplom. xxxvii. 
 
 K. 3 About
 
 134 THAT FREE SHIPS | V .. I. 
 
 About this time, the famous treaty of Upia) ,'/.■ • made 
 between Cromwell and ChriUina, under the auipicer. of 
 Oxenftiern and Whitelock. It acknowieJ - .he rights of 
 commerce to the full ; it exprefsly ftaies, that air'r jugh tiie 
 laws of friendfhip forbid either of the confederates to anift 
 the enemies of the other, yet it muft by no means be un- 
 derftood, that that confederate, who is no; at war, ihall 
 carry on.no manner of trade 01 navigation with thofe ene- 
 mies. Yet, while in this fpirit of comj - te n.'utra) inde- 
 pendence, the very next article, by glancing at it curforily, 
 and as a thing known, acknowledges the extent of our rule, 
 in perhaps a ftronger manner, than if it had contained an 
 exprefs provifion on the fubjecl. ' Leit luch hec navi- 
 c gation,' fays the articie, c fhould be prejudicial to the 
 1 confederate that is at war, and left bojlile goods and wares 
 ' Jhould be concealed under the difguije uf friendjlrip ; and, 
 1 for removing all fi^picisn and fraud ', pafTports and ccrti- 
 * ficates fhall be provided'*.' It is needlefs, I think, to 
 point out the flrong and pronounced manner in which the 
 Belligerent right is thus acknowledged ; it is only necefiary 
 to add, that in the two treaties which followed hard upon 
 this, one in 1654. the other 1 661, the fame fort of lan- 
 guage is held, both with re/peel to Neutral and Belli, 
 gcrentf. 
 
 Several treaties were about this time framed, which, for 
 brevity's fa*ce, may be mentioned ail together, though of 
 different dates, becaufe all coming under the fame clafs of 
 perfect, though filent acquiefcence. Thefe are, — thofe be- 
 tween Cromw.'il and the Dutch, 1654J; Cromwell and 
 France, it 55JJ ; Denmark and Sweden, 1658, and ano- 
 ther, 1660 ^mentioned before )§ ; Sweden and Mofcow, 
 
 Chal, _--.fr', Treaiics, i. 25, 26. -f Id. x::xiv. 53. 
 
 i 12 Coipj Oipiu.n. lxxvii. |; 5 Fred. Leon. xi. 
 
 § 11 Corps Diplom. 208. 
 
 1661*5
 
 SfC. III.] MAKE FREE GOODS 135 
 
 1 66 1* ; England and Pruffia, 166 if ; England and 
 Denmark, 1661J ; and England and Holland, 1662 j|. 
 In none of thefe, though containing general ftipulations, 
 both tor freedom of commerce and the withholding afiiffc- 
 ance to enemies, is the principle in terms either confirmed 
 or denied ; and, as it did not, in thofe times, from the 
 abundant proof we have given, ftand in need of being 
 confirmed ; we fay, that not being excepted from, it was 
 fufficiently acknowledged. 
 
 In the treaty between' England and Holland in particular, 
 it would have been denied upon a principle of right, could 
 the age have allowed it. In the propofal for a maritime 
 treaty, delivered by Nieuport, the Dutch Ambaflador, to 
 Cromwell's Government, December, 1654, he endeavours 
 to obtain it by yielding, in the fame fentence which con- 
 tains the propofal, a right inftead of it, which feems truly 
 founded in the moft impartial Neutrality. This was, that 
 the goods of friends, taken on board the lhips of enemies, 
 fhould be reftored ; and the facrifice of this, in the above 
 propofal, accompanied the fripulation with refpect to the 
 other, without, however, being accepted by the minifters 
 of Cromwell§. At the fame time, the Dutch continued 
 their negotiations for its acconiplifhment upon tbefe terms, 
 in other Courts ; and, at length, had obtained it from 
 Spain, in 1650 ; from Portugal, in 1661 ; and from France, 
 in 1662. In the twenty-fourth article of the treaty, 6th 
 Auguft, 1661, the one right is let againft the other in 
 the following very clear and precife terms. 
 
 4 Bona quxlibet ac merces, five ad dittos regem ordinif- 
 * que fpectabunt five ad utrumvis populum, fi navibus alte- 
 c rutri parti inimicis hoftibufque credits ac in iis depre- 
 ' henfse fuerint, non minus quam naves ipfre in praedam 
 
 F Corps Diplom. 364. + Id. ib. % Id. 400. 
 j! Id. 426, § 3 Thurloe, xxxiii. 
 
 K. 4- ' cedant,
 
 J36 THAT FREE SHIPS [Prop. I. 
 
 c cedant, ac fifco occupantium addicantur: merces vero ac 
 4 res quxcunque ad partes utrius libet hoftem pertinentes, 
 
 * regis ordinumque jam dictorum aut utriufcunque populi 
 
 * navibus impofitae, in eas fifco nil juris efto, adeoque nee 
 ' detineantur, nee poffeflbribus intcrvertantur*. 
 
 This article is almoft literally tranflated in the thirty-fifth 
 of the treaty which followed with France in April i662f j 
 and thus, it was, for the firft time in Europe, and full twenty 
 years after the commencement afligned for it by Bufch and 
 Schlegel, that the maxim of Free Ships Free Goods began, 
 at length, to exift. 
 
 We have this important fact, therefore, with refpecf. to 
 the introduction of this fuppofed natural right; that it 
 never was ftai ted nor obtained as fuch ; that it was not ac- 
 quired by force, as a thing calling upon all Neutral Nations 
 to confederate themfelves for its accomplifhment; neither 
 was it a free grant from a fenfe of juftice in Belligerents ; 
 but it was eftablifhed by conventions that flipulated mutual 
 advantages, and, in particular, was accompanied by the vo- 
 luntary facrifice of a right, really emanating from the Laws 
 of Nature, and long acknowledged by the Law of Nations. 
 
 The right of an impartial Neutral to continue his trade 
 with each Belligerent, fo long as that trade can in no refpe£fc 
 do injury to either, is certainly, from the firft principles of 
 juftice, uncontefted and inconteftable; and it would be dif- 
 ficult to fhew how injury is done, or what interference 
 there is in the war, by placing fuch goods as are facred, from 
 their Neutrality, and have, therefore, a right of paflage all 
 over the world, under the care and protection of a Bellige- 
 rent flag. Something in point of prudence may be urged, to 
 prevent their being expofed to the accidents of war; but if 
 
 12 Corps. Diploia. 366. Artie, 24, f Id. 4.15. 
 
 pieve:;
 
 SeC. I I I.J MAKE FREE GOODS. 13 J 
 
 the Neutral chufes to rifle this, it is impoffible, I think, to 
 conceive a well-founded reafon for fuppofing, that any con- 
 flicrion of rights between him and the other Belligerent 
 can arife from the procedure. This, then feems, an innocent, 
 and, therefore, a natural right in the Neutral ; as fuch 
 formed one of the provisions of the Confolato\ ; and as fuch 
 was approved by Bynkerfhoek§ j and amongft commercial 
 nations, who were themfelves not carriers, much fair advan- 
 tage would, no doubt, arife from its exercife. In the times be- 
 fore us, for example, the Portuguefe were commercial, but 
 not great carriers; while the Engiiih had many manufactures, 
 and were alio very great carriers: and they had fleets likewife 
 to defend themfelves, and ihofe who would entruft their pro- 
 perty to their care, againft almoft all attack. It was, there- 
 fore, greatly to the intereft of Portugal, that this right fhould 
 be enjoyed, in cafe of a war between England and Hol- 
 land. In the fame manner, France was, perhaps, at that 
 time, ftill lefs in the habit of freighting fhips than Portu- 
 gal; but fhe had great and efteemed manufactures, and na- 
 tural produce in general requefl ; and it fhould ieem, that, in 
 cafe of fuch a war, it would have been impolitic to grant to 
 Holland, that if fhe chofe to continue to lade her merchan- 
 dife on board of Englifh vefiels, they might become law*- 
 ful prize to them, in common with the vefiels themfelves. 
 
 This, however, we fee, was done both by Portugal and 
 by France, in the treaties we have been contemplating, 
 and in the very article and the fentence itfelf, in which they 
 ilipulate for the principle of Free Ships Free Goods. Thofe, 
 therefore, who contend that the principle is acknowledged, 
 by treaty, to be a natural right, have to account for the 
 pointed and incompatible circumftance, that what was fti- 
 pulated in the very fame moment of time is, inconteftably 
 
 || See page 33. 33. 
 § Qu;eit. Jur. Pub. cup. xiy. 
 
 pulated
 
 I^S THAT FREE SHIPS. \~PfOp. I. 
 
 an invafion of natural right. Certain, at leaft, it is, that 
 thofc who contend that the commercial rights of Neutrals 
 are in no wile broken in upon by the event of war, but are 
 exactly the fame as in times of peace; and that this is ac- 
 knowledged by the majority of the treaties, or, as they fay, 
 bv the conventional law of Europe; muft have either ralhly 
 hazarded this affcrtion, or mult reconcile the insurmounta- 
 ble incongruities thus peculiarly prcfented to them in the 
 firSt two treaties, which contain an exprefs Stipulation for 
 the maxim in diicuffion. 
 
 The true reafon of thefe Stipulations is, in fail:, to be 
 found in the convenience of Europe, and not in any wild 
 wifh to uphold ?. law of natural juStice. That law would 
 and did decide upon both points, according to the ancient 
 ufage; but from the growing and multifarious commercial 
 connections of Europe, it v. as Sometimes made a queftion, 
 whether it might not be better to beat down all difficulty 
 and entanglement, by Sacrificing both the Belligerent and 
 the Neutral right; and hence they enacted, as it were by 
 pofitive contracts, that in future there Should be no dii- 
 tinction as to property, bur all Should obey the character of 
 the Ship. 
 
 We ice, then, in what trammels, and how little partaking 
 of thai ablblute freedom of navigation, founded, as it is 
 faid, in natural law itfelf, the principle before us was 
 nrft introduced. ThoSe trammels have ever afterwards 
 continued, and the whole proves very clearly, that both 
 the one and the other were in direct derogation of natural 
 juftice, ana limply matters of the pureSt convention. That 
 it was convention, even in the minds of thofe who framed 
 the treaties-, muft, ± think, he clear; Since tire new arrange- 
 ment, beyond all contradiction, overturned the received 
 ^nd antient ufage ; tor it muft be remembered, that both the 
 provisions of the Conflict^ which, as we have Seen, had 
 ruled the maritime conduct of States for ages, were thus 
 
 r ever fed.
 
 SeC. III.] MAKE FREE GOODS. I39 
 
 revtrfed. And as one of them muft be allowed, moft 
 part : ularly by the champion? for Neutral Privileges, to 
 have been founded in the cleareft natural right; it muft be 
 fuppcfed, that the other, which fhared its fate, partook of 
 its r..:ure alfo. For, othervvife, the language of the sficrtors 
 of Commercial Liberty muft and can only be this: — We 
 wilh co dcilroy the tyranny of unjuft ufage and antiquated 
 maxims, and to reftore our trade, which has fo long been 
 fettered, to its ancient and natural liberty : we therefore 
 abrogate the principle of feizing enemy's property in 
 Neutral vefiels, which was an arbitrary invaflon : and, 
 from our hatred to arbitrary invafion, we alfo abrogate 
 the rule of allowing neutral property on board enemy's 
 vefTeiS to be free, which was founded in juftice. I fee 
 no poffibility of avoiding this decifive dilemma, in thofe 
 who can imagine that the introduction of the maxim before 
 us into treaties was the mere effect of the ' progres des luml- 
 eres,' bringing back things to the (late of natural liberty. 
 
 Without descending, therefore, to the folly and blind- 
 nefs of enthufiafm in a Treatife of Law, let us place the 
 matter really upon its right footing, namely, that of parti- 
 cular agreement chaining up the Natural Law ; and, like all 
 other agreements of that kind, binding*only fuch parties as 
 have contracted, and not amounting, nor capable of 
 amounting, (even if the majority of treaties were far greater 
 than ftated) to the force and power of forming a law for 
 thofe who have made no agreement againft it. Such, it 
 muft be remembered, is the vain and vifionary preten- 
 fion *. 
 
 In ufmg this language, however, let us not be deluded 
 into the fuppofition, that the fubjeft has occafion for it. 
 The fact ftill remains to be fettled from diplomatic hiftory, 
 
 * Schleg. 56. 
 
 whether
 
 *40 THAT FREE SHIPS [Prop. I. 
 
 whether the treaties of this fort do actually exift in ruch 
 univerfaiity, as upon their own principles to warrant their 
 aflertion. In looking over the treaties, from the laft that 
 have been mentioned to the year 17 15, I indeed find feveral 
 that are couched in the fame terms. They are thofe be- 
 tween France and Spain, 1659, t ^ ie Pyrennean treaty*; 
 France and Denmark, 1662 f; France and England, 1667, 
 the treaty of Breda J; France and Holland, 1678, the 
 treaty of Nimeguen§; France and Holland again, the 
 treaty of Ryfwick || ; Sweden and Holland, 1667 ** ; Eng- 
 land and Holland, 1668 ft; Sweden and Holland again, at 
 Nimeguen;+J France and England, at Utrecht §§ ; France 
 and Holland, at the fame place J) j| ; and Ruflia and Holland, 
 *7 J 5 §!!§"■ »n all, eleven treaties, compofed by feven 
 Powers. 
 
 But although all thefe, in their treaties, fome with one 
 and fome with another, acknowledged the principle on par- 
 ticular occafions, and with particular parties ; yet they did 
 not by an}- means acknowledge it in common, as binding 
 upon all of them intermingled together. Though two, 
 for example, might contract for its obfervance, whenever 
 their own particular tranfaciions came in contact ; each 
 might contradf. with others, cither for the contrary 
 ftipulation, or for fomething lefs ; or might leave the 
 matter wholly untouched. Thus France, though fhe re 
 
 * 1 Jenkinfon, 113. art. xix. 
 
 f 5 Fred. Leon. art. i. ii. iii. iv. viii. 
 "J 12 Corps Diplom. 439. 
 § 5 Leon. art. xiii. xxii. 
 }j 12 Corps Diplom. 588. 
 
 * * Td. 13. 37. art. viii. 
 •!f Li. 1 3. -5. art. x. 
 
 1% Id. 15. 440. art. xxviii. 
 §<j> Id. 15. 218. art. xvii. xxvii, 
 |l|l Id. 377. art. xxvi. 
 $|i£ Id. 471. art. ix, 
 
 v cried
 
 SeC. III.] MAKE FREE GOODS. I4I 
 
 verfed the rules of the Ccnfolato in her treaties with Eng- 
 land and Holland, ftipulated for the exact: obfecvance of 
 that regarding enemy's property, in her treaty with the 
 Hanfe Towns in 17 16. It was indeed fo exacl: an obferv- 
 ance, that if the property was in fuch large quantity as not to 
 be conveniently laden on board the capturing veflel, the 
 Neutral was bound to attend her to the neareft port in 
 France for the difcharge of the reft*. Thus Denmark, 
 though fhe contracted to follow the maxim with France in 
 1662, implied her acquiefcence under the old law with Eng- 
 land in 1670 f; and abfolutely renounced the French carrying 
 trade by treaty with England and Holland in 1691 \, Swe- 
 den too, which had agreed to the principle with Holland at 
 Breda, was at that moment under treaty not to purfue it 
 with England §. And though Spain had fallen in with it, 
 from the Pyrennean treaty to the peace of Utrecht, with 
 France and Holland, yet with England in 1667 j|, and with 
 the Emperor in 1725 ff, her ftipulation was for the converfe 
 of the maxim alone, namely, that neutral goods on board 
 enemies' velTels mould be confifcated. 
 
 Clearer cafes of mere private compacts can hardly be 
 conceived than are exhibited by thefe examples of the di- 
 verfity of the ftipulation entered into by the fame countries. 
 Little, therefore, could they feel themfelves bound by any 
 general rule, hull lefs by a general rule of natural and uni- 
 verfal law. But what fhall we fay to that vaft number of 
 treaties exprefsly commercial, or including commercial re- 
 
 * Corps Diplom. 15. 4.79. art. xxii. 
 
 + Id. 7. part. i. p. 132. She implied it by dating, that though 
 each party might trade with the enemies of the other, yet, in order 
 to prevent the fraudulent concealment of enemy's property, pair- 
 ports,, Sec. fliould be given. See articles xvi. and xx. 
 t Corps Diplom. 14. 293. 295. ait. iii. 
 § By the treaty, 1661. 
 ti Corps Diplcm. 7. part ii. 1- . 
 * Id. 16. n 5 . 
 
 5 gulations^,.
 
 I42 THAT FREE SHIPS [P/'Op. T. 
 
 gulations, which, during the very times when the principle 
 was canvafted, bargained for, admitted or rejected, by thefe 
 different maritime States, paffed the whole ever in ablbluLe 
 neglect? As the reverie of" the rule' had hitherto incon- 
 teffcably governed Europe, arc we to fuppofc that thefe were 
 to give way at once in filence. and v, ithoat the leaft public 
 indication of fuch a change, to the comparatively few in- 
 ftances of alteration which had appeared? Or are we to 
 fuppofe, that thefe inltances formed the exception which, 
 it is fee: , it retpuired new and marked language to intro- 
 duce? The negotiators of the novel maxims pufhed it with 
 the utmoft activity, and at rlrft had nothing but difficulty 
 to encounter. It was Holland that made the fignal for a 
 change; Holland, that -Riled every maritime Court with 
 propofals for the introduction of the new principle; Hol- 
 land, whole exiftence aimoft depended upon it: while other 
 nations, repofing on their own refources, balanced long 
 upon the innovation, and rejected, at fir ft, all attempts at 
 its completion. It is to be obferved alio, as a confederation 
 of the firft weight, that during the whole of this period, the 
 cmeftion, thus agitated, w is uniformly entertained in almoli 
 every one of the works or public law, which fo frequently 
 raife and illuftrate the literary character of thofe times. 
 The ableft Civilians and Statefmen were employed upon 
 what was thus generally ftarted; and their opinions, 
 as we have i'cen^ inclined uniformly to the fupport of 
 the cxifting law. It feems, therefore, almoft impof- 
 f:ble, by any magic of reafoning, to come to the conclu- 
 sion, that where a law has exifted for four hundred 
 years, is ftill fupported in the writings and opinions 
 of all the learned men, and a vaft body of treaties are 
 daily forming, that take no notice of the change; it is 
 difficult, I fay, to conceive that a fmaller number of con- 
 ventions, acknowledging a new regulation, can form any 
 
 thing 
 1
 
 SicC. III.] MAKE FREE GOODS. 14} 
 
 thins but an exception: certair.lv it cannot amount to a 
 contrary rule itfelf. 
 
 We have feen that the treaties which introduce the new 
 maxim, from i6a?. to 17 15, amounted to twelve : we have 
 ken that thofe which ftipulate either different or contrary 
 conditions, are ("even : there are, befides, 31, which make 
 no mention of the rule one way or the other; and all thefe, 
 we contend, bottom themfelves upon the old law, which 
 we fay the countries making them had never relaxed, ex- 
 cept by exprefs convention. 
 
 Of thefe treaties we have already enumerated eight, 
 which were formed about the time that gave birth to thofe 
 in which the maxim was firft acknowledged in Europe. 
 And there are, therefore, twenty-three which are wholly filent 
 with regard to the ftipulation. The firfr. of thefe is the 
 treaty between Denmark and Holland, 1666, made to 
 afcertain the rights of their mutual commerce, ana ex- 
 prefsly to repel the grofs invufion of the neutrality of the 
 former, by the Englifh, at Bergen. The firft article 
 makes an enumeration of pretty ftrong acts of violence, on 
 the part of the Englifh fleets and cruifers ; in particular are 
 mentioned the ieizure of Danifh veffels failing even to 
 neutral ports, the cannonading of Danifh forts, and other 
 examples of unlawful attack ; but nothing is glanced at 
 with refpecf. to any feizure for carrying enemy's property, 
 which, amidft fuch prompt and rafh acts, mutt, doubtlefs, 
 have happened. Nor does it form any part of the league 
 to prevent this old Belligerent right on the part of England; 
 or to ftipulate for its diffolution on the part of the contract- 
 ing powers. At the treaty of Breda, between England 
 and Denmark, although the queftion was much agitated, 
 and the maxim agreed upon between various of the other 
 powers, it palled, as to them, in the lame acquiefcent. 
 filence. 
 
 I*
 
 144 that free ships. [Prop. I. 
 
 In the fame year, 1666, France renewed a treaty with 
 Algiers, in which no mention was made of it ; at Breda* 
 it was not touched upon, by England and Spain ; ncr after- 
 wards, in 16/Of : nor in 1669, by England and Savoy£. 
 It was equally difregarded by England and Sweden, in 
 1666 ; by another treaty, 1674H ; and by France and Swe- 
 den, in 1672$. At Nimeguen, it was neglected by Swe- 
 den and Holland, although the Dutch propoied, and ob- 
 tained, the right of coafting from one enemy's port to ano- 
 ther**. At BrufTels, previous to Nimeguen, the agree- 
 ment upon coafting, between Spain and Holland, proves no- 
 thing, by proving too much ; for it is allowed even to their 
 own fubjects, either in their own, or neutral vends ; and 
 at any rate, the maxim immediately before us is left un- 
 touchedff. So alio it is in the treaty between England and 
 the Porte, in 1675 J'|; in that between England, Sweden, 
 and Holland, in 1700JHJ ; and between Holland and Den- 
 mark, in i7oi§§. 
 
 The Dutch treaties with the Barbary States, with Tri- 
 poli in 1703, with Tunis in 1708, and with Algiers in 
 1712*1*, leave the maxim alike in filence ; in thofe between 
 Portugal and Spain I70if*fj and Portugal and England 1703, 
 it is equally difregarded+*J. Thus it is alfo in the treaty be- 
 tween England and Dantzic 1 706}! §}| ; and at Utrecht in 
 1713; and by the fecond treaty 17 14, it was left unpro- 
 vided for by England and Spain§}|§. 
 
 This laft treaty renewed the treaties of 1667 and 1670, 
 in which * Free Ships Free Goods' was not mentioned; 
 
 * 5 Fred. Leon. f 2 Chalmers, v. 
 
 X Corps Diplom. xii. 119. 
 
 j| Id. vi. iii. lxxxiii. and vii. p. 1, 2S0. $ 5 Fred. Leon. 
 
 ** Corps Diplom. xiii. 44c. ff Id. 325. 
 
 Jt Id. T. vii. p. 1, 297. t||| Id. vii. 1, 475. $'$ Id. xv. 32. 
 
 *f* Corps. Diplom. 15. 137. 2-2. 205. f*f Id. 31. 
 
 J*$ 3 Chalmer's Treat, 296. |J$|| Chalmer's Treat. 1. 100. 
 
 $||$ Corps Diplom. i -. 393. 409. 
 
 though
 
 SeC. III.] MAKE FREE GOODS. I45 
 
 though it \v~.2 ftipulated in terras that the convcrfe mould 
 be allowed. We rnuft remember all al'mg, that whenever 
 the maxim of Free Ships Free Goods was admitted, it was al- 
 ways accompanied with the reverfal of the other provision of 
 the Confolato, that Neutral property on board Enemy's Ships 
 fhould be free; arid I am aware, that in feme interpreta- 
 tions of very learned men it is faid, whenever this re/erfal 
 is ftipulated for, which it frequently is, the other maxim 
 follows along with it as a thing of courfe. This they 
 ground upon the reafon which has before been Hated, ih.nt 
 both principles take their rife in convenience; and that, in 
 order to avoid the confufion, delay, and chance of injufKce 
 which may arife in afcertaining the different national cha- 
 racters of the owners of the cargo, it is betcer to fweep 
 away the whole at once, under the national character of the 
 ftiip. 
 
 Now, I own, this reafoning does not appear convincing; 
 fince, though the argument, from convenience for the one 
 or the other principle, or both, may be perfectly found ; yet 
 that intimacy of connection and indiflolublenefs of union 
 between the two, which alone can render them infeparable, 
 does not appear to exift, fo as to make the allowance of 
 one an inevitable caufe for allowing the other. That coun- 
 try, indeed, which ftipulated for the one, might, very pro- 
 bably, be dlfpofed to ftipulate for the other; bur courts of 
 juftice could not afliime, from the mere probability of that 
 difpofition, that both were, in fact, granted, where only 
 one was mentioned. Rather, on the contrary, we might 
 fuppofe, that, from their very affinity, the prohibition of the 
 one, without the mention of the other, is a ftrong proof 
 that the latter was never intended to be inferted. And thus, 
 the treaty of Utrecht renewing that of Madrid 1667, between 
 Spain and England, which is the only between thefe cou .- 
 tries which makes mention of either principle, it muft de- 
 pend entirely upon what is there ftipulated; and as tne con- 
 
 l verfe
 
 146 that free surfs [Prop. I. 
 
 verfe onlv of the maxim we are dilcuffing is there to be 
 found, we are warrantee', i think, in faying, that between 
 thefe two great maritime flares the maxim itfelf is not al- 
 lowed. So, at leaitjdocs a great authority underftand it, 
 when he fays, in his Difcourfe on Neutral Nations, that no 
 article can be found in the Spauiih treat}', which grants the 
 privilege in queftion to that nation*. 
 
 At Utrecht the point was left untouched between France and 
 Portugal ; and thus, while thirteen or fourteen treaties, from 
 the epoch of J 642 to the complete termination Oi the negotia- 
 tions of Utrecht in 17 J 5, arc to be found, flipulating for the 
 maxim in queftion, whofe univerfality in theie times is fo 
 boa/led by Schlegel, icven are to be difcovered, framed ex- 
 prefsly on the oppofite rule ; and no lefs than thirty-one, b\ 
 their fiience, give it, under all the circumftances, a molt 
 eirect negation. 
 
 In this place, I cannot help recurring to what may be 
 efteemed .1 confiderable authority on the fubject, bufied as 
 we here are in negative proofs. Fhe Abbe iVlably, in a 
 book proioiiediv treating of the Droit Pubiique, as drawn from 
 the treaties of Europe, gives large place to the whole fub- 
 jeefc of commerce, both in the abflract, and as it is found in 
 treaties ; and he prefents a kind of confpectus, under the 
 tithe of ' Conventions Centrales touchant la Navigation et 
 Ic Commerce ;' under which he arranges all that he con- 
 ceives may amount to a general rule, concerning commer- 
 cial ftipulations; and theie he collects from the univerfality 
 in which they have been laid down by the conventions ot 
 Europe. But, though he enumerates all that has been de- 
 manded on the one i\dL\ and granted on the other, as it re- 
 gards the maiitime rights and duties of States ; though he 
 mentions all that iias been fettled by compact, reflecting 
 refuge in the ports of friends from tempefls or pirates ; or 
 
 ' idle Ear! of ! t's Difc, p. 20. 
 
 refpe&ing
 
 See. III.] MAKE FREE GOODS. l47 
 
 refpech'ng the manner of exercifing the right of fearch, the 
 extent of en bargoes, the number m which armed fhips (hall 
 entei each other's harhouis, the natuie of contraband, and the 
 jurifdiefdon of Admiralties ; though, to come nearer to our 
 fubjeCi, he in particular takes no* ire, that it has been e'eter- 
 mined, that the goods of friends ihail partake of the cha- 
 racter of the (Lip which covers them, and be aiike eonnfea- 
 bie in the Court of Prize ; yet, ftrange to fay, the converfe 
 of this wholly efcapeshim, and lie takes not the leaft notice, 
 as a point of law refoived on by treaties, or refolved on any 
 way, of the maxim of ' Free (hips Free goods.' This 
 negative proof of his opinion comes, at the fame time, with 
 greater weigh';, becaufe it is in the very part of his work 
 in which he lets up the vifionary qucftion as to the policy, 
 humanity, and juftice, of making war upon private property ; 
 leaning in this to the fanciful and wild fcheme of a Military 
 War, and a Commercial Peace. Confequently, he ftands claf- 
 fed eminently in the fame, rank with thole who wifh to car- 
 rv the rights of Neutrals to a height without limit ; and 
 his authority by them, at leail, mull be conudered as indis- 
 putable.* 
 
 The treaty of Utrecht, and the conventions which grew 
 immediately out of it, make perhaps the greatett epoch in 
 the regulations of Europe uuru.g the {alt century. Great 
 interefts, of all kind-, were there fettled, forming the baiis 
 of moil of the treaties which were afterwards framed, and 
 bringing the numerous fubjects of difpute in the century 
 •beforeto io:ne fort of order. 
 
 The v/ars and negotiations, and final arrangements of 
 interefr, which employed nations for the reft of the age, al- 
 though they gave great fcope to the Governors of States, did 
 
 4 See the Droit Pub. dc l'Europe, fonde fur les traites, par 
 I'Abbe Mably. 2. 4591048s. 
 
 I. 2 not.
 
 I4S THAT FREE SHIPS [Prop. I. 
 
 nor, therefore, wear that varied fort or complexion, or afford 
 that immenfe dive. fitv of great general objects, which pro- 
 duce changes in long eitabliihed and long reflected rules. 
 The Kings of the world fought or negotiated, as ufual, for 
 the ufual objects of ambition or national intereft; but the 
 principles of public conduct were, from this time, fettled 
 j .to comparative uniformity. 
 
 Irom the peace of Utrecht, therefore, down to the fa- 
 mous period cf tire Armed Neutrality, nothing very material 
 occurs, as to the principle before us, in the views and con- 
 duct of the maritime powers. It went on, as we faw in 
 the laid century, often ftipulated for by commercial conven- 
 tions, but oftener palled over in the treaties of the times. 
 That it exifted in the majority of thofe that were formed, 
 is not more true, during this period, than, the laid 3 that it 
 was once, for the hd'ft time, fet up as a natural right, difrinc. 
 from all treaty, by due Pruffian King, in 1752, is, as we have 
 ;een, true; but that it was inilantly beat down by the co- 
 gency or the reply, fo as, at ieail, to produce an alteration 
 of conduct, if not of fentiment ; and that the authority of 
 three of the moid learned cf their time was directly againit 
 it, has alfo been let forth at large. Under all the infults, 
 injuries, and abides, which the rhrht to invade enemy's 
 property on board neutral vefleis had too often generated, 
 no one, until the armed pretenfions of 1780, again, thought 
 or feiting up tne principle, either as a pofrtive remedy, or 
 an abdraci right, emanating from the indifiblublenefs cf 
 natural juftice. 
 
 To retur , however, to the point immediately before us, 
 it remains ftib to be feen, whether the conventions cf the 
 times, up to this epoch, continued, as aficrted by Scnlegcl, 
 to form a majority equal to the unheard cf pretention, — to 
 legiflate for o* her independent Sovereignties. Into that point 
 we are not now called upon to examine, but are merely en- 
 quirn.g as to the fact concerning the number in which the 
 treaties exited, 
 
 >
 
 Sec. III.] MAKE FREE GOODS. I49 
 
 The principle being, as we have feen, allowed by treaty, 
 between France and England, France and Spain, and France, 
 Spain, England, and Ruilia, with Holland; all treaties con- 
 firming thefe, though not new in thefe points, are claim- 
 ed to be taken by our opponents as enhancing the number 
 in their favour. But, ihough much may be obferved on 
 the fallacy of that mode of compulation, as the medium of 
 truth on the fubjecl:, I have not been unwilling to obey the 
 path they have pointed out, for the fake of afcertaining how 
 far the afTertion, as to numbers^ is really well founded. 
 
 The treaties, then, of the feventeenth century, as to com- 
 merce, having been for the rnoft part confirmed in the greater 
 treaties of the eighteenth, I am willing to take fuch 
 treaties as thofe of Madrid and Seville, of Vienna, Aix la 
 Chapeiie, and of Paris, as augmenting the number of thofe 
 which allow the principle amongft all the contracting par- 
 ties which had allowed it before. Upon this mode of cal- 
 culation, the treaty of Seville, between France, Spain, arid 
 England, confirms the maxim between the two tirft, and 
 the I a ft and the firft, in confirming the treaty of Utrecht. 
 
 It is alio confirmed by the treaty of Aix la Chapeiie, be- 
 tween France and Fmgland, France and Spain, Holland and 
 France, and Holland and Spain : fo alfo, by the treaty of 
 .Paris, in 1763, between England and France, and France 
 and Spain. 
 
 I rind it alfo allowed in the treaty betv/een England and 
 Tripoli, in 175 T ; England and Tunis, 1752; and again 
 with both thofe powers in 1762. There are alfo, as it is 
 laid, others between Denmark and Spain, 1742 ; Denmark 
 and Naples, 174S ; Denmark and Genoa, 1756; and Na- 
 ples and the Netherlands, 1752 ; and thefe for the prefent 
 J am willing to take for granted*. On the whole, then, 
 
 l 3 
 
 this 
 
 * This enumeration was made in a caufe in the Court of Prize 
 here, but I have not yet had an opportunity of feeing them. 1 a 
 
 little
 
 i 'O THAT FREE Silt PS" [Prop. I. 
 
 tliis enumeration of conventions from 1'JiS to 1780, which 
 llipuhvte for the obfervamcc of the principle, reckoning 
 each contract between any two parties at a general treaty 
 as a feparate treaty of itfelf, amounts to twenty. 
 
 On the other hand, it is no where mentioned in the trea- 
 ties between the E npei or and the Porte, i"iS*j between 
 Sweden and Rufiia, l/2i f ; or Sweden and the Porte., 
 1 7 39+; nor is it mentioned by S. 'Jen and England Ij20§j 
 nor again in 1706-!]. Sprin and England, by confirming 
 their ancient treaties at ±'\IadriJ, 1721**, left the matter 
 where it was, which, as we contend, was not to alloy/ the 
 maxim : fo thev did at Seville. i?-7 J * > an ^ at Aix la Cha- 
 pelle, 1740, where Sardinia and Genoa aifo left it untouched 
 between England and themselves %%. At Madrid, again, in 
 1750 §§; and at Paris 1763 j[j|. The acceffion of Portu- 
 gal, alfo, to that letter treaty, by <n. -..firming all former 
 convention-;, left the fable el without any alteration between 
 herfelf and Great Britain. Ruffia and England paffed by the 
 maxim in 1734, if-l-'?, and 1755 y : ^ ; and in 1766 the mod 
 extended liberty thai, v.- as granted was to be allowed to 
 trade with enemier, c obiervinr;, at the fame time, the prin- 
 * ciples and maxims of the Lcnv of Nati:-:is generally ac- 
 knowledged,' Of courfe, the principle before us was nut 
 in contcniplati >n. 
 
 Sweden an 1 Denmarx, in 172a, allowed what all coi 1- 
 meicud treaties allow at the cloie oi a vvar — the liberty oi 
 
 '•''' t:i-..r ;, 1 ,T.:. , „•■ ,:■;;, ;ilfo '.'11 'MM lUfcd With ' 
 
 , ' : " trentv nt' »•."•:,:•, [':;-, b- : ween Spain and the hmperor ; 
 "■ ;'■■• a' i, i:. ; is, j ruo1 ' ' - i i . i fe oi" the :.,.:.'.;: is ] root' of the 
 
 /• :ll! > l)tl y' tli ' ;..:.x :■. lit" i.', does certuady not go to the length 
 i i '. tie a'.: f :oa ■ 
 
 1 (v d - F^hdoa . i6. •;. f Id. ;/,. 
 
 t ' ; ' i.let Keci'.ei! }i ; in ': - jp. ... $ Corps Dudom. p. 2. 18. 
 '' us' r-, jo. " •'■:■-. Diniofu. 8. 2. 53 ' | r Id. i.nr 
 -•ak'.idfia, ^74 . '-..:-. la 4 , c. 61. ""M 3 leak. 1-7 
 
 .-::::.-,,■.. M:. ■.■.-■■;..- tic: 
 
 trad i n r r 
 
 ! .1
 
 '${?C. III.] MAKE FRLE GOODS. 1^1 
 
 trading with each other, as i i limes of peace ; but no men- 
 tion is made at all of the maxim--; neither is it farther no 
 ticed between Sweden an ' Ruin a in 17211- I" t1fie famous 
 treaty, cited I y Kubner aaw:igft his examples, to prove 
 the ccnver.iimc! law mace between the Emperor and 
 Spain in 1725, it is ftipuiated, as in the Spanifh treaties 
 with England, that the convene of- the maxim fhall exift; 
 but no mention is made of the a axim itfelf*. Notice of 
 cither one or the other rule is wh: lly pailed over by the 
 treaty between Naples and the Porte, 1740, (§), and in the 
 preliminary treat-- between F ranee and Sweden, 1741 ]|. 
 With reipect. to the Porte and the Barbary States, the 
 maxim is feldorn heard of in their treaties in general. We 
 few, indeed, that two treaties between England and Tri- 
 poli, in 1 75 1 and 1762, ana two between England and Tu- 
 nis, of the fame year?, allowed it to the full ; but in fix 
 tre ies with ' and five with A; -in?, from 1698 to 
 
 17855 all is pafTed over m filenee-;--"- ; and to come back again 
 to Europe, the o i aw . rrai.ee diialiowin.o- any innova- 
 tion, is aflerted in the mofi poutive terms, bv the treaty 
 between that country and Hamburgh, j}6o. 
 
 The language of this la ft is fomewhat remarkable. Ii\ 
 mentioning the reledtion both o: t ! te prhteh le and its con- 
 verfe, it fpeaks net of ; t a? a rule to which what is about to 
 be ftipuiated is an exeeption ; but lays it down rather as \i 
 the contrary were the acknowledged general principle. 
 ' In order,' fays the fourtee. th article, 'that the inhabitants 
 ' of Hamburgh mav know in what confiils the freedom of 
 i their commerce and navigation in time of war; and that 
 * they may have a perfect underi'randing 01 the rifks they 
 
 * Corps Dlplorn. 16. -50. -j [cl. ;6. :6. % Id. 16. 11-. 
 
 § Rec.de Roufs. iS. 7'. 11 Id. iS, 19. 
 
 ft Gcfting's Treat. 3-4 et hu'v . 
 
 - run
 
 t^Z Til AT FREE SHIPS [Prop. I .. 
 
 c run in engaging in an illicit trade, it is decided that con- 
 c filiation follows, 
 
 c I. Where goods and merchandife belonging to the faiJ 
 1 inhabitants are found on board fhips of the enemy. 
 
 c II. Where contraband goods, hereafter to be fpecified, 
 c are found on board the fhips of the laid city, deflined for an 
 c enemy's country.' 
 
 The fixteenth Article then makes the fpecification ; and 
 the feventeenth adds, c that it fhall alfo comprehend 
 4 all the effeSfs, goods, and merchandife generally, whatever 
 c they may be, belonging to the enemies of the King.' The 
 {hip itfelf, however, is not made fubjecl: to confifcation *. 
 
 And thus, according to this enumeration, not lefs than 
 thirty-four treaties palled between the various Maritime 
 States, from the year 1 71 5 to 1780, which take no notice 
 of the principle before us ; and thefe, in addition to thirty- 
 one, which were formed between 17 15 and 1642, the 
 epoch whence Schlegel, on the authority or Bufch, 
 commences the feries of contrary conventions, make 
 in all no lefs than fixty-five. Seven are to be added, 
 which, as we fee, were actually adverfe. And the 
 maxim is, therefore, either positively denied, or totally un- 
 noticed by as many as feventy-two. Granting, then, what 
 is not improbable (calculating upon the ground which has 
 here been purfued) that there are thirty-five treaties favour- 
 able to the principle, what is to become of the proof that 
 it forms (o confide rabie a majority as, of neceflity, to make 
 the rule for all countries not bound? The power oftlui^ 
 binding them, oar principles have wholly denied, into 
 whatever proportion, on the one fide or the other, the 
 treaties may be divided. But it feems not a little ex- 
 traordinary, that (o new a parodox fhould be frarted as law, 
 with inch fragile foundations even as to the fa£t ! 
 
 M ■.;■■:>': Treat. 154, 
 
 this
 
 &eC. III.] MAKE FREE GOODS. I £3 
 
 Be this, however, as it may, and leaving the evidence of 
 treaties to prove what it can; the time was now actually 
 fad approaching when the claim was really to be fet up as a 
 pretention founded in the Law of Nature ; and therefore 
 belonging to what is called the primitive Law of Nations. 
 In the iaft war alluded to (1756), the French had made fuch 
 havoc amongDanifh interlopers as to call forth the attention 
 ofthe latter Government in themoft ferious manner ; and there 
 being, with mt doubt, many of thofe inftances of illegal vio- 
 lence which, in the wild uproar of general war, are too often, 
 infeparablc from the exertion of legal rights; they lent over one 
 of their learned civilians to Paris, to '/indicate their claims, 
 and, if poffible, to fettle a different law. This perfon was 
 Hubner, who wrote the treatife which has fo much engaged 
 our difqui fit ions, under thefe impreffions ; and who may, there- 
 fore, be confidered as an Advocate pleading under particular 
 inftructions, and, as far as that can influence an Advocate, 
 under the impulfes of particular feelings. I do not mention 
 this as a thing of much, if of any weight ; but I cannot help 
 obferving, rf there can be any difference, that it muft be 
 all on the fide of the difpaffionate and unbiafled treatifes 
 of thofe learned and virtuous perfonages of the laft and the 
 preceding ages, who wrote for the improvement of the 
 world, without reference to any particular object, to any 
 country, or to any King. Such men did not compofe their 
 admirable works for the accomplifhment of a million, in 
 which fuccefs was probably to be tire foundation of their 
 fortune ; but engaged in their noble occupation for the fake 
 of truth, confidered by itfelf, or, at moft, for the acquifition 
 of honourable fame. About fuch men, therefore, there is 
 thrown a fanclity and veneration, which, with equal learning 
 and knowledge, others cannot acquire. The difference 
 feems to be no lefs than that of the Advocate and the Inde- 
 pendent Judge ; and, fuppofing them to be equal in all other 
 points, thefe obfervations muft ever attend the comparifon 
 
 m between
 
 1^4 THAT FREE SHIPS [P/'Op. I. 
 
 between Hubner, and Vattel, Heineccius, Bynkerfhoek, 
 Puffendorf, and Grotius ! 
 
 Be it, however, as it ma)- ; it muft be acknowledged, 
 that, from this time, an alteration in the claims of rights 
 under the Neutral Code, came to be attempted bv many na- 
 tions, with an ardour and vehemence not before known. 
 What Schlegel fays, indeed, is not true — that, from the 
 time of Hubner's Treatife, men veiled in the Law of Na- 
 tions almoit unanimoufly confefTed the juftnefs of the axi- 
 om, that Free Ships made Free Goods * ; becaufe a thing 
 which had been exercifed, and had relied for perhaps fix 
 hundred years in natural right, could not fo inftantaneoufly 
 be difcovercd to have ceafed to exiit, or to have loft its 
 foundations ; but the fact is true, that endeavours began t6 
 be made to tie it up by treaty, and to enlarge the power of 
 Neutrals at the expence of Belligerents. Till the Ameri- 
 can war, there was little room for trial ; but, even after 
 that eventful period, it is remarkable, that no attempt was 
 made on the part or* the Northern Sovereigns to obtain 
 from Great Britain, or from France, this much wifhed for 
 privilege, by treaty or convention. On the contrary, a 
 number of treaties were allowed to remain in force, in 
 which no mention is made of the claim ; and, not only this, 
 but many articles, under thofe treaties, are, in exprefs 
 terms, declared to be contraband, which the principles of 
 the Armed Neutrality were framed to let free. Nor here 
 can we abftain horn obfervinti upon the conduit of Den- 
 mark, under the guidance of that very minifter, whofe 
 premature lofs to Europe and to Denmark is fo much the 
 object of Schlegel's lamentation;. If, to ilgn a conven- 
 tion, which profeffed to have for its object the folemn fet- 
 
 * Schickel , io. 
 + Schlegel, xvi. 'Oii le rappellr par quels argumens irrefifti- 
 
 * ; . :es notrc s,r.u:d minilire M. do Bo nftoril, trup tut enleve ait 
 D-oi'-inau et a l'liurupe c:it.''!"e, Jvc. &c 
 
 5 tlcment
 
 S'CC. III.] MAKE FREE GOODS. I55 
 
 dement of things long in difference, four days before he 
 figned another, which totally annihilated the firft ; unfettled 
 all the bonds of connection, and opened a caufe for perpe- 
 tual difcontent, if not for perpetual war; if this was the 
 part of a truly great minifter; fincerity, at leaft, has no 
 place in fuch a character. In 1670, a folemn treaty of com- 
 merce was concluded between England and Denmark, the 
 third article oi which contained the definition of contraband; 
 but in which, however, the words, c other neceflaries for 
 ' the ufe of war,' were thought too indefinite. To re- 
 medy this, a convention was made to put the matter out of 
 doubt, bv an article to be fubftituted in the place of the 
 other ; by which contraband was declared to include the 
 very fubjects fo often difputed, — fhip-timber, tar, pitch, 
 r:^n, fheet-copper, hemp, fails, and cordagef. This was 
 figned on the 4th July, 1700. On the 8th was figned that 
 declaration of the Armed Neutrality, which had long been 
 concerting between its original members ; and in which the 
 King of Denmark declares, that he underftands nothing 
 under contraband, except the articles ipecified in the third 
 article of the treaty of 1670 J. 
 
 An inconfiftency fo manifeft ; an infincerity {o glaring; 
 a conduct fo open to the charge of bad faith, as is thus ex- 
 hibited in this fimple relation, requires no fort of com- 
 ment. But, for the fake of Denmark, and of human na- 
 ture ; of thut fair and honeft wifh, that the characters even 
 of hoftile minifters themfelves fhould be freed from all 
 impure (pots, let M. Schlegel juftify, if he can, this con- 
 duct of his country, and her minifler. England will re- 
 joice in that juftification ; and, if fhe can, will be the 
 firft to acknowledge it. 
 
 Reipect for a power, whofe conduct has long been re- 
 fpeetable in the hiftory o( Europe, and which has long ex- 
 
 f 2 Marten's Treat. 102. J Id. 362, 
 
 M 2 ilfed
 
 356 THAT FREE SHIPS \_PrOp. T. 
 
 iftcd in clofe amitv with this country, ought to check the 
 impulfes of'juft refentment ; but, we cannot help obferving, 
 that, when fhe (looped to fuch Machiavelian attempts to 
 amufe, real mifchief could not be far off. Accordingly, 
 many davs did not pals, before the world were furprifed 
 with thofe b dd declarations of the Armed Neutrality, 
 which have been noticed in the beginning of this work*, 
 and which claimed no lefs than to dictate what fhould be 
 univerfai culrom, becaufe certain dates chofe to bind them- 
 selves to it by treaty; to let afide lights of fix hundred 
 "ears enjoyment, and eftabliih a Lav/ of Nature by force 
 of Arm?. 
 
 Aftonifhirrg as thefe pretenfions were, the manner in 
 which they were received by fome of the Belligerents was 
 not lefs fo. France and Spain, with low and little policy, 
 immediately approved them. The former did not hefitate 
 to profefs that the war fhe had undertaken had no other ob- 
 ject than the liberty of the feas ; that fhe was fupporting the 
 rights of Neutrality at the price of her people's blood ; and 
 tsat the claims of the Armed Neutrality were no other than 
 what were already allowed by the rules of her marinef. 
 I .low this was reconciieable with truth, the hiilory of the 
 French law, as detailed in the foregoing pages, is beft able 
 to terrify. 
 
 The Spaniih anfwer to the Ruflian Declaration was not: 
 quite fo unqualified, hut ftiil full of approbation. 
 
 It notices, however, the practice which Neutrals had 
 railen into of providing thernfelves with double papers, and 
 otoer firt;fices ; from which detentions, and other difagreeable 
 confeqnenccs, had arifen. At the fame time, on the whole, 
 it pe: : led to the Armed Neutrality.):. And thus, 
 
 two 01 th . Maritime States of the world, as well as 
 
 rmiodiH-. -", f Ann. Reg. i 7 S: ; . 15a. % Id. lb. 
 
 the
 
 Sec. HI.] MAKE FREE GOODS. 1 57 
 
 the raoft antient monarchies ; one of them in particular, re- 
 nowned for honour and a height of fpiiit which ought 
 to have defpifed the meannei's of acquiring immediate advan- 
 tage at the expenceof facri fie ■ .• the general intereft in time 
 to come*; ftooped to the narrow policy of weakening a 
 great principle of the Law of Nature itfelf, in order to ac- 
 quire a temporary advantage in a war already unequal. 
 
 Even if thev were fincere, their mode of action, as well 
 as their language, fpolce little of true ar.d fimple dignity. 
 In that cafe, they ought themfelves to have demonftrated 
 their fincerity by the ciearnefs of their previous conducts 
 As it was, they allowed the youngeft State of Europe, un- 
 der the direction of an energetic woman, to get the ftart of 
 them in afTerting the privileges, which thev, in their actions 
 at leaft, had not attempted to affert. If they were not fin- 
 cere, no obfervation need be made ; but, in the one cafe or 
 the other, I know nothing to undignified or lb degrading^ 
 as the anfwers of the Courts ofVerfailles and Madrid to 
 the Ruffian Declaration. 
 
 Solitary, and abandoned by the whole world ; ftrug<rling 
 with a fatal fchifm amongfc her own children ; oppofed, with 
 diminifhed refources, to ail the greateft Maritime Powers of 
 Europe, to the Continent of America, and almoif. to the 
 Continent of Aha; without a iingle ally, and before her 
 ancient vigour had fhone out under the direction of her 
 favourite Admiral, to the difmay of her opponents ; nothing 
 could be more firm, or confequently, in fuch a fituation, 
 more honourable, than the conduct of Great Britain. She 
 did not difclaim the rule of action upon which fhe had ever 
 proceeded; fhe did not approve of the natural juftice of the 
 new theory afierted; {he did not 'applaud the principles 
 4 and views of the Emprefs, as partaking of the fame fen- 
 4 timents * ;' but fhe firmly, though prudently, anfwered, 
 
 * .See the French Anfvver, ubi fup. 
 
 M 3 ' that
 
 IfS THAT FREE SHIPS [P?*Op. I. 
 
 that fhe fhould act according to the clear principles of the 
 acknowledged Law of Nations, where no treaty had mo- 
 dified that law; and that ihe would abide by her treaties 
 where they actually fubfifted. In particular, with refpe.ct to 
 Denmark, fhe reminded her of the treaty then exifting, 
 which nothing could overcome but mutual agreement ; and 
 which, fhe faid, fhould ftill, therefore, be the fole bafis of 
 her conduct. 
 
 With regard to Sweden, fhe alfo relied on the treaty 
 which had always regulated their mutual actions; one 
 article of which had exprefsly marked out, that the goods 
 of enemies fhould be feized on board the ihips of friends. 
 This engagement, fhe aflerted, could not be violated with- 
 out breaking the friendfhip which had fo long fubfifted be- 
 tween the countries, and formed ties from which neither 
 could be let free, except by the con fen t of both. ' The 
 1 King, therefore,' fays the anfwer, ' will adhere to thefe 
 i engagements as an inviolable and faered law, and he will 
 1 maintain it as fuch *.' 
 
 The obfervations which might be made on the Armed 
 Neutrality open a vaft field ; but much has been fore Ma lied 
 by the preceding matter of this treatife. We cannot, how- 
 ever, help here adverting to a Arrange and glaring incon- 
 fiftency which appears on the face of it. One great ob- 
 ject of the Convention was to eflablifh a difference between 
 unprotected merchant fhips, acting for themfelves, and thole 
 protected by convoy, acting under command. The reafon 
 for this, as it v/as faid, was founded in the minute and ftrict 
 enquiry which would be made in the letter cafe, before th>- 
 goods were laden ; in confequence of which, and of which 
 
 * Marten's Treat, iv. 36$. And fee a Colltvlion o! Pub!: 
 Acts and Papers relating to fhe -\rned Neutrality ; priiueii io 
 Ilatchard : p. 1 50 to 1 x •
 
 Sc€. III.] MAKE FREE GOODS. 1^9 
 
 alone, very ftrict paiTports, on oath and rigorous examina- 
 tion, were to be taken out: To that the faith of the State was 
 pledged to take care that no illicit commerce was attempted 
 by thofe who put themfelves under the national flag. The 
 foundnefs and cogency of this fort of reafoning we mall ex- 
 amine in its proper place ; for the prefent, we will take it 
 for granted, that the refpective Governments did actually in- 
 tend, and had in reality the means to carry this fpecious de- 
 fign into execution. Now, in turning to the fifth article 
 of the Armed Convention*, we find that, mould it happen 
 that the merchant vefiels of one of the powers fhould be in 
 a latitude where no mips of war of the fame nation were 
 llationed, and where they could not have recourfe to their 
 own convoys; then the commander of the fhips of war of 
 the other power, if he be requeued to do fo, ought, in good 
 faith, and fincerely, to afford them the affiftance of which 
 they may be in need ; and in fuch a cafe, the fhips of war 
 and frigates of the one power fhall grant protection and 
 affiftance to the merchant veffels of the other; provided that 
 thefe (hall not have carried on any illicit trade, or any trade 
 contrary to the principles of Neutrality. 
 
 Upon this article, the quefrion immediately arifes, how it 
 is poffible for a foreign, though an allied fhip of war, or 
 even one bearing the national flag, to be able to anfwer for 
 the particulars of the cargo, or of the previous voyage and 
 transactions, of a private merchant fhip, which happens to 
 meet him by chance in a latitude where fhe can find no 
 cruifers of her own nation ? What becomes of the folemn 
 enquiry to be made on fhore as to the nature of the cargo, 
 in order to infure its innocence? As it is the national Hag 
 which demands, as the price of its protection, that the par- 
 ticulars fhould be made out, in order that the national faith 
 
 * Collect, of Pub. Acts, &c. 113 ; Marterfs Treat. 4. 
 
 m 4 may
 
 j6o THAT FREE SHIPS [Prop. I, 
 
 may be fafely pledged, which is the fpring and ground-work 
 of the whole right afferted ; how is it that Rullia is lb 
 prompt to anfwer for a folitary Swede, or Sweden for a 
 RufT.an, or Denmark for either a Swede or a Ruffian, com- 
 ing from they know not what latitudes, and provided with 
 they know not what muniments, but on whole Ample word 
 they arc to drive, in even bloody contefl, rather than fuifer 
 them to he examined ? 
 
 It cannot be on the faith of papers, the agreement be- 
 tween which and the cargo they have had no opportunity 
 of examining : it cannot I 2 on the faitli of the mailer's 
 word ; for neither pppers nor word are more than what are 
 offered to the fearching Belligerent in cafes without con- 
 voy, in which fcarch is allowed by the confederated power.? 
 themfelves. What magic it is winch throws this fort of 
 facrednefs about a merchant ve{Tel the moment it meets the 
 flag or a lin'p or war, whether of its own or or another 
 country; thofe, and thofe only, can determine who framed 
 the itinulatior.s <ji" the Aimed Neutrality, as they laid, on 
 princ iplcs ot natural iuii 
 
 Tiieie lort oi c . 5 are pi iriimg, and 
 
 rnutt perpetually .wife from th; ve. v ; u;e oi : the iubjt-ci.; 
 ib true it is, t ■..: v tc onee tout : , departed from, 
 
 it is in vain : . ae:, or to plan a 
 
 fhall rcg'ih hLuj the Armed 
 
 Alliance, profiling i the times, bv the 
 
 ltippoiecl wea : : :•■ ot Gr ■ the flagrant tv.ean- 
 
 nefs oi h.w e;w ,. e in th , i ;ce, 
 
 inflead et alumii;-:! its ; tub; had '■.. throw oil its treaties by 
 joree, or made war to break them, and for that purpofe 
 alone j till uiiln .1 have e;:to:ted an acquiescence un- 
 
 der new ftipukttions; th.e way would have been clear, 
 though made l y \ , . en :e; at teail', w< aid never have 
 
 oeen clogged with ini ;;-. rabie i tconfiltcmcies, aiwav: arumg 
 from the pretence, that what they did was founded upo 1 
 
 natural
 
 &CC. III.] MAKE FREE GOODS. l6l 
 
 natural richt. Jn this refpecfc they engaged in a gigantic 
 eonteft far beyond their rrrength, becaufe beyond the 
 power of humanity, to change the decrees of reafon, or to 
 turn truth into faltehood. 
 
 And this is the caufe of the difficulties under which the 
 reafoning of the principle, ana the conduct of thofe who 
 profefs it, muft ever labour. If really this new rule is 
 that drawn from Nature, or that which binds from the 
 majority of the conventions upon it, who is to fay, when 
 it began, how long it is to laft, when it is to ceafe ? Who 
 is to act upon it? What Court is to be governed by it ? 
 When are individuals and Courts to bend to a new law? 
 It happens peculiarly, that, the very year before France, 
 and in the very year in which Spain acceded to the prin- 
 ciples of the Confederacy, as founded in juftice, emanating 
 from natural liberty, or derived from univerfal convention ; 
 each of them had formed treaties, or made ordinances, di- 
 rectly fubverhve of the whole principle. In September 
 1770, feven months before the French anfwer to the Ruf- 
 fian Declaration, France made a treaty with Mecklenburg, 
 framed exactly on the fame rule w r ith that with Hamburgh 
 2 tew years before * ; in which contraband was made to 
 include all enemy's property, of whatfoever nature, on 
 board the Mecklenburg (hips f. Far beyond this went 
 Spain, in her ordinances with regard to Neutrals, in the 
 vear ij'Sd itfeif, and only one month before her acceflion to 
 the principles of the alliance. In thole ordinances fhe 
 feemed to care little for the duty prefcribed to her by her 
 treaties, provided it was neceffary to oppofe the operations 
 <j-r Great Britain where there was no treaty. In thofe 
 ordinances (he declared, that, with refpect to Britifh mer- 
 chandife on board neutral veflfels, fhe mult follow the rule 
 
 Sec page 153. -j- 2 Marten's'! rout: 39. 
 
 of
 
 l6l THAT FREE SHIPS [Pro]). I. 
 
 of Great Britain herfelf with regard to cargoes of the 
 fame nature ; ' in order,' lays the ordinance, ' by this re- 
 
 * ciprocity (a moft mifiaken one!) to avoid the enormous 
 
 * inequality, the prejudice, and even ruin, which other- 
 c wife might be brought upon the Spanifh commerce :' 
 
 That Spain fhould fall into this conduct, and even found 
 it upon a fuppofed rule of reciprocitv, is not furpriimg; but 
 5t baffles all attempts to reconcile it with confiiiencv, that 
 this fhould be done by one who thought the principles of 
 the Armed Neutrality were the true Neutral principles. A 
 very little enquiry into the meaning of things muft fhew 
 us, that this conduct was reciprocal, even in their own 
 miftaken fenfe of that word, only with regard to Great 
 Britain ; while the innocent Neutral, with whom probably 
 fhe was bound by treaty to a different conduct, was, with- 
 out fcruple, made the facrihee. When, for example, fhe 
 was bound bv treaty with Sweden to allow ' Free Ships 
 1 Free Goods,' between whom and Great Britain the con- 
 trary ftipulation exifted, could there be any reciprocitv in 
 breaking that treaty with Sweden, becauie Great Britain 
 acted upon the proviftons of hers: In i'uch cafe, even fup- 
 pofing there was the fame fort of treatv between Great 
 Britain and Sweden, it was neither more nor lefs than to 
 fay; becaufe my enemy has broken his duty, and injured and 
 pillaged you, I alio muft injure and pillage you, or mv 
 commerce will be ruined. A child would detect the fal- 
 lacy of the argument! 
 
 7 he ordinance goes on, however, to itate heavy com- 
 plaints again ft Neutral interference in the war; — that inter- 
 ference which Spain was, in a month, to fanction with her 
 perfeel approbation, as ariling from natural ri:r.ht. It com- 
 plained, that they eluded the blockade of Gibraltar; that 
 they had frequently double lets of papers, and other dif- 
 guifes, in order to fcreen the real oivners of the cargoes. 
 1 Though thefe facts,' fays the ordinance, ' arc notorious, 
 
 * and
 
 Sec. III.] MAKE FREE GOODS. 163 
 
 * and have been proved by formal procefs, yet thefe per- 
 c verfe men, eager for gain, have diflurbed all Europe with 
 ' their clamours; aiTerting falfely, that orders had been 
 4 iflued to detain and feize all Neutral veffels which paffed 
 
 * the Straits; when, in fact, the orders were exprefsly, 
 
 * only to detain fuch fhips as were fufpected, either from 
 
 * the courfe they fteered, or the papers they produced, and 
 ' fuch as carried enemy 's goods or provifions /' la confequence 
 of thefe rcafons, the ninth article goes on to enact, that 
 when enemy's property fhall be found on board Neutrals 
 in future, it fhall be feized and confifcated, paying thtf 
 freight *. One month afterwards, fhe approved the prin- 
 ciples of the Armed Neutrality. 
 
 Where views of policy, however, are fo changeable, 
 and principles of law fo little fixed, perfeveranc in any 
 given line of conduct is not to be expected. Accordingly, 
 within thefe Cew years, Spain, on entering into the war with 
 France in 1793, came round again to the old rule, when 
 {he fripulated, by a convention with Great Britain, that 
 their Majefties (hould unite all their efforts on this occafion 
 of common concern to every civilized State, to prevent 
 other powers, not implicated in the war, from giving, in 
 confequence of their Neutrality, any protection whatever, 
 directly or indirectly, to the commerce or property of the 
 French, on the fea, or in the ports of France f. Exactly 
 the fame fort of convention was entered into by Ruffia her- 
 felf with Great Britain, in the fame year| ; and the in- 
 itructions given by the Emprefs to the commander of her 
 fleet (that very Emprefs who dictated, guided, and fup- 
 
 * See the letter of the Count Florida Blanca to the Marquis 
 Gonzalle^ cle Cafiejun, pour fervir de Reglement concernant la 
 Navigation des Neutres, 13 March, 1780. 
 
 Marten's Treat. 4. 26S, and tbe ninth Article. 
 f Collect, of Pub Acts., &c. 146. t M. in- 
 ported
 
 164 THAT FREE SHIPS [Pro]). I. 
 
 ported the Armed Neutrality of i/<3c) demonilrate, in the 
 mofr Forcible manner, the change oi' her fendments. — 
 Thofe inftruclions command him ' To prevent all neutral- 
 
 * velTels from carrying (lores :>r provinons to France.' 
 They (late that c Denmark, with i.ts accuftomed vveakuefs,» 
 
 * and preferring even an ideal gain to the found confider- 
 
 * ations of policy, had refufed to confent to her iu(l de- 
 
 * mands ; therefore all (hips are to be flopped and fearched, 
 1 even thofe under convoy ; which, if refilled, the honour 
 4 of the Ruffian dag is to be maintained, and force repelled, 
 
 * by force ; without pursuing, in cafe of flight, the vefiels 
 ' compofing the convoy ; putting only in execution what is 
 
 * preicrued, to trcvinl any navigation to ibe cnerfVj s pons.* 
 Such was the tone of Ruflia, becoming Belligerent, in 1793, 
 to her very confederates in the Armed Neutrality : nor had 
 Sweden been backward in renouncing the principles of that 
 celebrated alliance. 
 
 A very important circumftance is here to be remembered ; 
 that, although that alliance profeffed to delineate the princi- 
 ples of univerfal juftice, its flipulations were only to con- 
 tinue during the war. It held out, indeed, that meafures 
 were to be taken as a f^uiJe to new engagements ; and the 
 King of Sweden, in particular, was anxious to propofe a 
 congrefs, in which the rights, both of Belligerents and Neu- 
 trals on this fubject, fhould be for ever fettled ; but this was 
 rot done. After the peace, therefore, of 17B3, the contract- 
 ing parties were left alone to review the r opinions : if well 
 i ed, to bring them again into action ; or, if ill founded, 
 
 t nounce them altogether, when next called upon to afiert 
 ( ' , recording to t 1 -.. ies in which they 
 
 fhould be place.!. Sweden a lei; ■. '.. I- to be (nnpofed, de- 
 cide ' that : ei o : luvl Lveen wrong: for Sweden, in the 
 
 ' Co! 1 : Pub: . U; , tee. 1 13. -| Id. ib.
 
 SdC. III.] MAKE FREE GOODS. I 65 
 
 next war {lie waged, molt abfolutely renounced the princi- 
 ple as a Belligerent*. It would be too grofs an affront to 
 its juftice, to Iuppofe that it has two lines of conduct ; one 
 as Neutral, the other as Belligerent ; we will, therefore, 
 rather iuppofe that fhe faw the errors into which the afpir- 
 ing genius of Ruffia, or her own impulfes, heightened, per- 
 haps, by the incidental injuries infeparable from war, had 
 betrayed her ; and that fhe thought, as her treaties bade her 
 think, that the principle before us could only be matter of 
 convention. 
 
 We have already noticed the flrange and inconfiftent, not 
 to fay unjuft conduct of Denmark on doling with the 
 Armed Neutrality. Denmark at leaft, therefore, in this in- 
 ftance, can furnifh no example of a State verfed in the true 
 laws and principles of that natural juftice which fhe armed 
 herfelfto impofe upon the world as the univerfal and invin- 
 cible rule of its conduct. Very few years after having fa 
 armed herfelf, and it III fewer before fhe acceded to the 
 prefent alliance, both Denmark and Sweden, (moil remark- 
 ably, the only two powers winch Schlegel recollects to have 
 formed treaties renouncing the principle) renewed that re- 
 nunciation, by declaring, in their convention of 1794, that 
 they claimed no advantages but what were clearly founded 
 in all their refpective treaties with the different powers at 
 warf. Now, ' Free thins Free goods,' was at leaft not one 
 of thefe advantages ; fince each of them had tied himfelf 
 down with Great Britain,- — Iwill not fay to renounce, but 
 not to demand it, — above one hundred vears before, by the 
 treaties we have mentioned in the but century j which 
 
 '" * Sclileg. 14, t-. «Dans la guerre que le Roi Guflave III. entre- 
 prit cuntre la RiuTie, il i'e laiila entrainer, par une politique de 
 ^ uTonlrar.ee, a oublier, \a ru-vmes principes dont il venoit fi 
 rccemmenrde le l^ontrerle r. el-' et courageux defenfeur.' 
 ■* C ' .. \ .,■ ind Papers, &c.p. 160. 
 
 treaties
 
 l66 THAT FREE SHIPS [Pl'Op. I. 
 
 treaties were never abrogated. Denmark alfo, in particular, in 
 her inftrucftions to her merchants, February 22, 1793, con- 
 firmed her treaty, and again renounced the claim, when fhe 
 {rated that the treaty of 1670 with England, Stipulating, 
 that, amongft a {hip's papers there mould be a certificate to 
 prove that the cargo belongs to a Neutral Power > {he had, 
 therefore ordered her magistrates to deliver fuch necefTary 
 certificates *. 
 
 About this time alio Pruffia, another of the powers which 
 had acceded to the Armed Neutrality, joined as a Bellige- 
 rent in thofe general Stipulations with Great Britain, c to 
 ' prevent other powers, not implicated in the war, from 
 * giving protection directly, or indirectly, to the commerce 
 4 of the French on the fea, or in the ports of Francef.' 
 
 A great variety of powers, compofing nearly all Mari- 
 time Europe, had acceded to the principles of the Armed 
 Neutrality. America, the caufe and object of the eventful 
 war which gave it birth, Sanctioned of courfe what was So 
 much to her advantage. She was bound by all her great 
 views of trade ; by all on which her existence depended, by 
 every tie of gratitude to her friends, and by every feeling 
 of refentment againft Great Britain, to broach, uphold, and 
 diffeminate the doctrine far and wide, as arifing immediately 
 from the rights of Nature, or at lead founded in fuch uni- 
 verfal convention, as to acquire every where the force of 
 law. Of the great trading nations, however, America is 
 almolt the only one that has fhewn co'nfiftency of principle. 
 The firmnefs and thorough understanding of the Laws of 
 Nations, which, during this war, {he has difplayed, muft for 
 ever rank her high in the fcale of enlightened communities. 
 
 Her treaty with France, 1778, was formed on the 
 ftipulations of 1780, by which fhe was ever ready to 
 
 =* Colleftionof Acls and Papers, p. 13 7, the fixth article, f Id. 146. 
 
 abide ;
 
 ScC. III.] MAKE FREE GOODS. 1 67 
 
 abide; her treaty with England, 1794, gave up the whole 
 of thole ftipulations. In the feventeenth article, {he agreed 
 that enemy's property on board her veffels fhould be con- 
 fifcated, and that on juft fufpicion the velTels themfelves 
 might be detained, and carried into the nearefr, port, for the 
 examination and adjudication of ihe property. She had a 
 right to make both thefe treaties ; and, under a cafe of fome 
 difficulty, by both fhe abided. 
 
 In 179S, the ftateimen of France, amongfr. other cru- 
 dities, let up the ftrangc affertion, that, as the Americans 
 were bound to treat them as the moft favoured nation, they 
 ought not allow French property to be feized by Britifh 
 cruilers on board American (hips, while they prevented 
 the leizure of Britifh property in the lame fituation by the 
 French ; and they threatened war for not complying with 
 this reprefentation. 
 
 The American anfwers to thefe fophiflries are models of 
 dignified and convincing reafoning. Whilft they rejected 
 all fufpicion of being influenced by fear, from the orders 
 which they gave for warlike preparations, their minifters 
 attacked the French arguments with irrefiftible power. * Be- 
 fore the treaty with Great Britain,' faid one of their notes- 
 to the French Government, ' the treaty with France exifted. 
 ( It follows, then, that the rights of England, being neither 
 c diminifhed nor increafed by compact, remained preciiely 
 ' in their natural ftate, which is to feize enemy's property 
 c wherever found: and this is the received and allowed prac- 
 1 ticeofall nations, where no treaty has intervened.' A 
 new Law of Nations, it is pretended, was introduced by 
 the Armed Neutrality ; but who were the parties, and 
 what was their object ? 4 The compact was in its own 
 < nature confined, with refpecl to object and duration. It did 
 ' not purport to change, nor could it change permanently and 
 1 univerfally the rights of nations, net becoming parties to it. 
 1 The defire of eftablifhing univerfally the principle, that 
 
 < Neutral
 
 1 68 THAT FREE SHIPS [Prop. I. 
 
 * Neutral bottoms fnail make Neutral goods/is perhaps felt 
 c by no nation on earth more ftrongly than by the United 
 1 States. Perhaps no nation is more eeeply inierefted in its 
 c eftabliihmcnt ; hut the wifh to eftablifh a principle is ef- 
 c fentially different from a determination that it is already 
 ' eftabiilLed. T'he intercuts of the United States could not 
 1 fail to produce the wifh ; their duty forbids them to indulge 
 'it, when decided on a mere right*.' 
 
 4 The complaints of the French, ' faid another note of the 
 American Aiinifter tohis Preiidentf, 'had reference, amongft 
 other things, to the abandonment, by the Americans, of 
 their Neutral rights, in not maintaining the pretended prin- 
 ciples of the modern Law of Nations, that Free Ships make 
 Free Goods; cv:d that timber and naval /lores arc not centra- 
 hand of war. The neceflity, however, for the ffrong and 
 exprcf- nipulatiom of the Arm d Neutrality itfelf, by all 
 the various powers which joined it, iaewed (as the note 
 went on to irate) that thofe maxims were not in themfelves 
 law, but merely the fripulations or com; act ; that, by the 
 real lav/, Belligerents had a right to feize the property of 
 enemies on board the fliips of friends ; that treaties alone 
 could oblige them to renounce it; and America, there- 
 
 fore, could not be accrued of paitiality to Great Britain, 
 becaufc fl:e did not take arms to comp I h v :: renounce zVj.' 
 
 As far, then, as we can collect b .• reafonsand prin- 
 
 ciples, America will, at lead, not oppofc the object of this 
 treat ife. By the firmnefs me difplayed liie overcame the 
 threats of F ranee ; and by the accuracy oi her reafoning fhe 
 triumphed in the argument. Unhappily, however, all did 
 
 * Collection of Acts, &c 198, et infra. 
 
 -f- Mr. Pinkncy to General Wafhin&ton. 
 
 X Dobn-rt's State Papers, 5. 281, 2S6. '1 ne v I ole letter, which 
 is an anf'wer to Adet, the French Miniftei" •.•omplainta, deferves 
 the belt attention. It is an admirably re, *•:. d j '■ re of diplomatic 
 representation.
 
 iSfC. lit.] MAKE FREE GOODS. 169 
 
 not fhew equal accuracy of understanding, or equal regard 
 to the obligations of treaty. 
 
 We have (een the direct renunciation of Ruffia, in 1793, 
 of the principles which governed her in 1780. In the in- 
 •frructions which developed this renunciation, fhe, indeed, 
 made a difference between common wars and that fhe was 
 about to wage ; but, as Denmark had refolved upon Neu- 
 trality, n<5 part of the reafoning could be binding upon her. 
 • Asthefe meafures,' laid the inftruclions, 'are taken againft 
 arrant villains, who have overturned all duties towards God, 
 the Laws, and the Government; and have even taken away 
 the life of their own Sovereign ; the means of punifhing 
 thefe villain?, and of making them re-enter the wav of truth, 
 -after having been enveigled into crimes, ought, in juftice, to 
 be employed infuch a manner as to accelerate and enfure fuc- 
 cefs in Jo falutary an affair* * 
 
 We have no heiltation in faying, that thefe inftruclions 
 were a grofs and flagrant invafion, on the part of Ruilia, 
 of the independent Sovereignty of Denmark. Had France 
 been even more b&od-ftained than flic is with cruelty, 
 perjury, and crime of every fort; although it might be 
 fair ground for any other nation to interfere, if fhe chofe, 
 by way of punifhing offences againft the Laws of Nature ; 
 vet no power that ever was aiTumed under the Law of 
 Nations could give a right to that avenging nation to 
 call upon another for afliftance againft its will. This pre- 
 tence, therefore, was well anfwered by the Minifrer of 
 Denmark, when once it had refolved to acknowledge the 
 Nation of France. 
 
 But what, after fo glaring a departure from its principles, 
 axe we to think of the confiftency of the Ruman Court, 
 when, finding it neceflary to change its public meafures, it 
 
 * Colled, of Afts, &c. j 49. 
 
 n recurs
 
 I7O THAT FREE SHITS [Prop. l< 
 
 recurs back again to its Declarations of 1780, breaks down, 
 the whole principle that governed its late conduct, and 
 once more becomes the champion of Neutral ufurpation ? 
 
 * Europe had applauded,' fays the Declaration of the i6h 
 Auruft, ' the meafures which were taken by the greater 
 4 part of the Maritime Powers to render facred the prin- 
 ' ciplesofa wife and impartial Neutrality, when, in 1780, 
 c a maritime war between two great Powers made it in- 
 1 curnbent on the reft to provide for the fafety of the com- 
 1 merce and navigation of their fubjects. Every act found- 
 
 * ed upon juftice mud meet with univerfal approbation ; 
 *■ and this was, in effect, merely re-eftabliftiing the prin- 
 1 ciples of the Rights of Nations*. 
 
 A departure fo (trong and lb pointed from the la.fl govern- 
 ing principles of the conduct both of Ruffia and Sweden could 
 onlv prepare the way lor the late mod eventful meafure, 
 big with fate to the nations concerned, and putting a laft 
 hand to the chain of their inconfiftencies. The convention 
 of the 1 6th of December renews and gives additional 
 vigour to the Armed Neutrality of 1780, and engrafts 
 upon it an entire new and moft momentous article, which 
 ftates : 
 
 * That the declaration of the officers who (hall com- 
 ' mand the {hip of war or fhips of war of the King or 
 
 * Emperor, which {hall be convoying one or more merchant 
 ' {hip?, that the convoy has no contraband goods on board, 
 f fhall be fufficient ; and that no fearch of his {hip, or the 
 4 other (hips of the convoy, fhall be permitted. And, the 
 c better to infure refpect to thofe principles, and the ftipu- 
 c lations founded upon them, which their difinterefied wifhei 
 ' to preferve the imprefcriptible rights of Neutral Nations 
 c have fuggefted, the high contracting parties, to prove 
 
 * Collcft. of Acts, &c. 343. 
 
 5 their
 
 SeC. III.] MAKE FREE GOODS, 171 
 
 * their fmcerity and juftice, will give the ftrictefr. orders 
 4 to their Captains, as well of their fhips of war as of their 
 
 * merchant fhips, to load no part of their fhips, or fecretly 
 1 to have on board any articles, which, by virtue of the 
 
 * prefent convention, may be confidered as contraband : 
 1 and, for the more completely carrying into execution this 
 ' command, they will refpectivelv take care to give direc- 
 
 * tions to their Courts of Admiralty to publifh it, when- 
 
 * ever they fhall think it neceffary ; and to this end, the 
 
 * regulation which fhall contain this prohibition, under the 
 
 * feveral penalties, fhall be printed at the end of the prefent 
 
 * Act, that no one may plead ignorance/ 
 
 To the old ftipulations renewed by this convention, to- 
 gether with this important article engrafted upon them, 
 Denmark has acceded — Denmark, who, to ufe the lan- 
 guage of her great ally, prefers, with her accuftomed 
 weaknefs, an ideal gain to the found confederations of 
 policy*. Pruffia has alfo given it all its fupport, prepares 
 its forces, and feems hot for the contefr. Our country does 
 not fhrink from it, engaged as fhe is in the moft arduous of 
 her wars ; and Europe awaits the event in fearful expecta- 
 tion. 
 
 And thus we have conducted this important, this inter- 
 efting, this entangled, but not difficult, fubject through all 
 the mazes of adverfe arguments, adverfe treaties, and ad- 
 erfe conduct. That no light might be wanting for its 
 <ucidation, we have endeavoured ', at leaft, to deduce its 
 h*:ory from its firfr. exiftence, through all the changes 
 tha were attempted, refitted, or allowed upon it in all 
 aget, by whatever countries and whatever men. The de- 
 duction has been long, but, I hope, not unprofitable. A 
 
 * Se- the Inftmaions to the Ruffian Admiral Tchitchagoff, 
 Collect. 3 f Afts, 149. 
 
 point
 
 T 72, THAT FREE SHIPS [Pi'Op. I. 
 
 point of fuch mighty confequences, at this moment, in the 
 affairs of flu rope and of the world, can never be too much 
 examined, fifted, or tried. 
 
 Whether, after this examination, any doubt can remain 
 upon the foundations of the Neutral pretenfion, under what- 
 ever fhape the argument may be framed ; whether it can 
 ilill be imagined, either from the force of general reafon- 
 ing, the ftrength of authority, the uniformity of treaties 
 from times of old, or the confident and recent conduct of 
 Neutrals themfelves, that the right which we refill is the 
 natural right of mankind ; I myfelf am unable to judge. 
 The enquiries of my own mind have produced fatisfaction* 
 that the natural right is on the fide of the Belligerent; and 
 that the neutral claim, where allowed, is a matter of the 
 pureit convention. As to the pofition, that, where the ma- 
 jority of treaties have fixed upon any given point between 
 the powers that contract, it fhall form the law for thofe 
 which have not contracted, it is really too abfurd to demand 
 one moment's attention. It can only be made ufe of by 
 jugglers and robbers of the day, to carry a point of tempo- 
 rary rapacity ; or by vifionary enthufiafts, mad in the pur- 
 fuit of a vain philofophy. I give them credit for their 
 motives and their fincerity ; and I mean them no difrefpecl: 
 when I fay, that, amongft the honefi men, it can only be 
 found in fuch theories as leap from the fancy of Hubner <x 
 the dreams of Schlcgel!
 
 ADVERTISEMENT. 
 
 J "ndifpcn fable profefjwnal avocations have obliged 
 the Author to leave the general JubjeB of his 
 Treat i/h here — only, however, for a jliort time. 
 
 The firft Proportion, forming a complete fubjetl 
 in itftlf he has been induced to publifh it apart. 
 The other Proportions will follow all together, and 
 the whole will form a volume. 
 
 Punted by G> Vfoodfali, No. 2% PaternoJlcr-rciu 9 London*
 
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