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DISCOURSE
ON THE
CONDUCT
GOVERNMENT of GREAT BRITAIN
IN RE&PECT T«
NEUTRAL NATIONS.
A NEW EDITION.
By CHARLES LORD HAWKESBURY.
LONDON:
Printed for T. DEBRETT, oppofite Burlington Hovse,
* TlCCADILLY.
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ADVERTISEMEN T. \] ft
"^HE following- difcourfe was written in
*757 ty Charles Jenkinson, Efq,
now Lord Hawkesbury. Great Britain
was at that time engaged in war with
France, and the Republic of Holland
refilled to .conform to thofe treaties of de-
fenfive alliance, by which flic was then,
bound to affift Great Britain, and fuffered
her fubjects not only to trade with France,
Init to afford protection' to the property
of the enemy j to fupply him with na-
val and military florcs, and to bring to the
French ports in Europe the produce of the
French Weft India iflands. The Britifh go-
vernment ordered all Dutch mips, laden with
the property of the enemy, or with naval or
military ftores, or with the produce of the
French
iv ADVERTISEMENT.
French Weft India iflands, to be feized, and
to be brought into port for legal adjudica-*
tion. The merchants of Holland remon-
strated againft this meafure, which deprived
them of a moil lucrative trade ; but the Bri-»
tifh government perfevered. This Discourse
was written in fupport of the principles on
which the British Government at that
time acted. It was tranflated and re-printed
\n almofl every language of Europe ; and it is
now re-publifhed, from the bell: edition, at
the defire pf feveral noblemen and gentlemen t
who think, that in the prefent circumftances
it may be equally ufeful,
Piccadilly, Jan. 27, 17944
A DIS.
A
DISCOUUSE, Sec.
TT is unhappy for the race of mankind, that
**■ thofe collective bodies, into which it is
divided, mould be fubjecl: to the fame paf-
fions and animofities, as the individuals, of
which they are compofed, and not have, like
them, fome viiible fuperior tribunal, which
might hear and compofe their diffeniions :
this might, perhaps, prevent thofe appeals,
which are too frequently made to the fword,
where the events of war alone decide the
caufe, and the fentence, which paffeth on
the tranfgrefTbr, brings alfo to the injured
party a large (hare of misfortunes in the exe-
cution of it. The welfare of mankind how-
ever requires, that this neceffary evil mould
be confined within the narroweft bounds ;
and that a trial, where the proceedings are ib
B deftruc-
2 LORD HAWKESBURY
deftru&ive, mould be made as fliort and
as equitable as the nature of it will admit : it
is the duty therefore of thofe who are not
concerned in the difpute to be extremely at-
tentive to their conduct, that they may not
thereby contribute to render the conteft une-
qual : as far as man is concerned, it is force-
alone on which the decifion depends ; to add
therefore, by any means, to the power of one
party is manifeit injuftice to the other, and
is befides highly injurious to the reft of man-
kind, fince it necellarily tends to fpread dif-
cord among nations, and from a iingle fpark
of contention to light up a general flame.
It might be hoped, that a duty like this,
inforced by fuch powerful motives, would
be univerfally obferved ; and that no private
inferior intereft could induce any power to
tranfgrefs it ; if fome little profits, the ob-
ject of greedy individuals, mould, perhaps,
arife from the violation <jf it ; can a nation in
general reap a benefit, where public juftice
receives a wound ? To ad in oppofition to
this, in hopes of fome prefent advantage, is
to eftablifh a dangerous example, which may
hereafter prove injurious to ourfelvcs ; it is to
untie the only band, which holdeth nations
happily together, and to banifh mutual con-
4 fidence
ON NEUTRAL NATIONS. 3
fidence from the various communities of the
world.
Such, however, hath been the miftaken
conduct of fome neutral Hates during the prc-
fent war. — France confented to the treaty of
Aix-la-Chappele, that (lie might the more fe-
curely purfue the obje&s of her ambition ;
and that under the difguife of peace fhe might
extend and fortify her pofleffions in a part of
the world, where her arms in time of open
war had always, till then, been unfuccefsful :
for this purpofe fhe had artfully contrived,
that the American rights mould not be de-
termined by that treaty, but be left to the
confideration of commiffaries, to whofe de-
cifions fhe never meant to pay any regard. —
Canada was her vulnerable part : this there-
fore fhe refolved firfl to ftrengthen, and then
to enter again with more confidence into
war; while we were employed in debating
our rights, fhe took more effectual means to
end the conteft in her favour ; fhe fent fre-
quent fupplies to America ; me feized and
fortified the paffes and navigable rivers of
that country, drove the Englifh from their
poffemons, and built forts on the dominions
of Great Britain ; when the defign was thus
far advanced, England faw it in all its ter-
B 2 rors,
4 LORt> RAWKE5BURY
rors, and with fpirit determined to fupport
her juft rights : though forfaken now in her
diftrefs by thofe allies, who owe their inde-
pendency to her protection, me feared not in
fuch a caufe to ftand alone againft all the ef-
forts of France ; fhe fent forth her naval
ftrength, but the enemy foon rendered the
attempts of that ineffectual, by refolving never
to try its force : In what manner was fhe
now to employ it ? — One only object re-
mained worthy of its attention, and that was
to deftroy the trade of the enemy, and to in-
tercept the fuccours which fhe fent to her do-
minions in America. Though this would
not crulh at once the evil, it would ftop at
leaft the fources that fed it, and might in the
end contribute to induce the enemy to confent
to a reafonable peace.
France endeavoured again to obviate this
ftroke by her policy. She took off the tax
of 50 fous per ton, which fhe always chufes
to keep on foreign freightage : fhe opened
even her American ports, and admitted other
countries into that choice part of her commerce,
which, by her maritime regulations, fhe hath
at other times fo ftri&ly referved to herfelf.
Neutral nations feized at once on the advan-
tage, and opened to the enemy new channels
for
ON NEUTRAL NATIONS. 5
for the conveyance of thofe riches, by which
the war was to be nurfed and protracted:
under the banner of friendfhip they thus
ferved the caufe of the adverfary, whofe
wealth fecured by that protection would have
patted fafe and unmoleiced through our fleet ;
if Britain, again railing her fpirit, had not
refolved, that by this means her naval power
mould not be rendered ufelefs, and feized on
the enemy's property, which fhe found on
board neutral mips. — It is well known, how-
ever, that her conduct in this refpecl: hath
not been univerfally approved, and that fome
neutral nations think they have a right to
carry in their veffels unmolefted the property
of our adverfaries. — As I here differ with
them in fentiment, this is the point, on which
I intend to difcourfe.
Great and wife governments have always
been jealous of national glory : it is an active
principle which, properly cultivated, operates
in virtuous aclions through every member of
the flate ; to preferve this therefore in its pu-
rity is the duty of every one who loves his
country. — Can it then be wondered, that the
native of a kingdom, always celebrated for
its public fpirit, and its upright faith, at a
time when thefe are called in doubt, mould
inte-
6 LORD HAWKESB17RT
intereft himfelf in its defence ? No indecent
charges fhall here be urged againft other
countries, it is meant only to vindicate the
honour of our own. It is to be lamented,
that the neceflity ox affairs mould at fuch
a feafon have given occafion to this dif-
putc> particularly with that ancient ally of
England, who hath fo often fought with her
under the fame banner, in fupport of the juft
rights and privileges of mankind : the zeal
of any government to encourage the indufhy
of its people, is what a Britiih pen can never
difapprove : the principle is noble, and me-
rits even our applaufe ; I only mean to mew,
that the prefent object of it is not juft.
I fhall therefore examine the right, which
neutral powers claim in this refpect ; firft,
according to the law of nations, that is, ac-
cording to thofe principles of natural law,
which are relative to the conduct of nations,
fuch as are approved by the ableft writers,
and pra&ifed by ftates the moft refined.— I
fhall then confider the alterations, which have
been made in this right by thofe treaties,
which have been fuperadded to the law of
nations, and which communities, for their
rnutual benefit, have eftablifhed among them-
fclvcs.
The
ON NEUTRAL NATIONS.
The right of protection then muft have its
foundation in fome law, and, when confi-
dered in relation to any particular cafe, it
muft be founded on that law, by which the
interefts of the parties concerned are generally
determined, and which hath force in that
place, where the right of protection is
claimed. Thus in the prefent cafe, if neu-
tral nations have any right to protect the pro-
perty of the enemy, it muft take its rife
from thofe laws, which are the eftablifhed
rules of conduct between nations, and par-
ticularly on that clement, where this right is
fuppofed to be exerted. No civil or muni-
cipal inftitutions, and much lefs the privi-
leges arifing from them, can here take places
they have no force but under the dominion of
thofe who agreed to their eftablifhment. The
queftion then is— How far, according to the
law of nations, doth this right of protection
extend ? — To anfwer this clearly, we muft
obferve, that governments can have fucceeded
to no other rights, but fuch as their refpective
members enjoyed in a ftate of individuality;
and that one nation is now to another, as it
were in a ftate of nature, that is, in the fame
condition in which man was to man before
they entered into fociety ; the right therefore
of protection, which individuals would have
enjoyed
t LORD HAWKESBURY
enjoyed in fuch a fituation, is tlie fame which
government can claim at prefent : — An indi-
vidual then in a ftate of nature, would have
had an undoubted right to proted his own
pcrfon and property againft any attack;—
but if I am engaged in contention with ano-
ther, would he then have had a right to pro-
tect him againfr. me ? — moft certainly not;
iince he thereby would deprive me of a ri^ht,
which the law of nature, for my own fecu-
rity, would in fuch a cafe give me, of feizing
the property of this my enemy, and deftroy-
ing his perfon : if he thought my conduct
manifestly injurious, fo as to call for general
refentment, he would, on that account, be-
come my enemy himfelf ; but as long as he
calls himfelf a neuter, to ad in this manner
againfr. me would be no lefs abfurd than un-
jufl:; — f uc h therefore, and no more, is the
right of protection, which governments enjoy
at prefent in thofe places, to which their own
dominions do not extend ; they have fuc-
ceeded to the rights only of their refpedive
members, and by confequence thefe alone they
can proted.
But it willbeafked, — From whence then
arifes the right, which governments alway
enjoy, of proteding the property of the enemy
within
ON NEUTRAL NATIONS. 9
Within the precincts of their own country ?
— It is a confequence of the right of do-
minion ; unlefs, therefore, their dominion
extends over the ocean, the right of pro-
tection cannot there take place : dominion
gives a right of enacting laws, of eftabliihing
new jurisdictions, and of making all (whe-
ther its own fubjects or thofe of other coun-
triesj fubmit to thefe, who come within the
pale of its power. Here then the trial, which
the law of nations gives, is, as it were, fu-
perleded ; and any proceedings upon it would
of courfe be unjuft ; but as foon as you are
out of the verge of this particular jurifdict ion,
the laws thereof and the privileges which at-
tend them ceafe at once, and the general laws
of nations again have their force : here the pro-
perty even of an ally hath no ether protection
than what thefe laws allow it : beinr ioined,
therefore, to the goods of an enemy, it cannot
communicate its protection to thefe, fince the
fame law which gives fecurity to the firft, al-
lows you to feize and deftroy the latter.. Thefe
reafonings are exemplified by a common fact;
— within the precincts of the dominion of any
government, you are not at liberty to fearch
the mips of any country ; but is not this li-
berty univerfally and immemorially practiled.
over all on the main fea ? and wherefore is
C this
10 tORD HAWKESBURT
this fcarch made, but that, according to the
law of nations, all are here anfwerable for
what they may convey ?
There is fomething analogous to this in
molt civil governments. Few countries are
without fome places which enjoy a right of
protedion from the general laws of the ftate,
fuch as palaces, houfes of religion, and the
hke ; and this right generally ariies from fome
pretence to an exclufive jurifdi&ion ; as long,
therefore, as any particular property remains"
within the verge of thefe, however ju%
it may be the objetf of the law, it is not
fubjetf to the power of it; but fuppofe it
conveyed from hence into the public roads
beyond the precincls of this particular palace!
or convent, the protection it received would
vanifli at once, and the general laws of the
community would fully then have force upon
it. Thus the protection which governments
can give within their dominions extends not
to the lea ; the ocean is the public road of the
univerfe; the law of which is the law of na-
tions, and all that pafs thereon, are fubjedt to
it without cither privilege or exemption.
If this manner of reafoning mould not
clearly eftabhih my point, I can appeal in
fup-
ON NEUTRAL NATIONS. II
fupport of it to the ableft writers on public
law, who will be found to have decided the
queftion in my favour.
And firft I will produce the teftimony of
that learned native of Delft, who wrote fo
nobly on the freedom of navigation to ferve
his ungrateful country. In one of the paf-
fages, which are now before me, it is re-
markable, how much he labours to give the
created extent to the rights of commerce ;
and yet with all his laudable bias to this fa-
vourite point, he is clearly of opinion, that
the fhip of a neutral nation cannot protect the
property of an enemy : he manifeftly im-
plies,* that the veffels even of allies are fub-
ject to condemnation on account of the ene-
mies property, with which they are laden ;
when it appears that this property was put
on board them with the confent of the own-
ers of the veffels, but not otherwife. His
words are, " Neque amicorum naves in prae-
" dam veniunt ob res hoftiles, nifi confenfu
«' id factum fit dominorum navis ;" and pro-
ducing feveral authorities in confirmation of
this opinion, he afterwards adds, " Alioqui
" res ipfae folac in prcedam veniunt ;" but it
* Gi-otius dejure Belli ac Facis, lib. iij. c. 6.. fee. 6. in
»otis.
C 2 the
12. LOCD HAWKESBURY
the enemies property mould be found laden
on board a neutral vellel, without the con-
nivance of the owner, in fuch cafe, " that
" property alone is lawful prize:" and fpeak-
ing again in another place on this point, he
lavs, that if the wrong done me by my enemy
is manifeltly unjuit, and that any one, by af-
lording fuccours, ihouid encourage him in
his enmity againlt me, " jam non tantum ci-
" viliter tenebitur de darnno, fed & crimina-
" liter, ut IS, qui judici imminenti reum
" manifeilum eximit."* A line and animated
manner of exprcilion, which (hews how
clear the opinion of this great author was upon-
the queftion.
To the <eftimony of Grotius I mail add
that of Bynkerfhoek, a native alio of Hol-
land, and whole fentiments, in point of ma-
ritime jurifprudence, Barbcyrac often prefers
even to thole of the former ; and what makes
even his opinion at this time of great impor-
tance, is; that he wrote principally for the
ufe of the courts and Hates of the United Pro-
vinces, and generally confirms what he ad-
vance :s by their judgements and refolutions.
lie fpcaks exprchdy in favour of my point:
* Chorus dr Jure Belli ac Pucis, lib. iii. cap. i.
" Ra-
ON NEUTRAL NATIONS. 13
f< Ratione confulta," fays he,* " non fum qui
** videam, curimon liceret capere res hoftiles
** quamvis in navi arnica repertas, id enim
" capio, quod hoflium eft, quoclque jure belli
" victori cedit." He then affigns this reafon
alfo for his opinion, that as it is lawful to flop
on the ocean any vciiel, though (he carry the
colours of a neutral nation, and to examine
by her papers to whom Ihe really belongs,
and in cafe ihe appear to be the property of
an enemy, to feize her as a lawful prize ; fo
he can fee no caufe why this rule mould not
extend to the effects which any lhip may
have on board ; and if the goods of an enemy
mould lie there concealed, why they alfo, by
the right of war, mould not be taken and
condemned : he even declares it to be his opi-
nion, that the owner of the neutral velTel
fhould, in fuch a cafe, lofe the price of the
freight ; a feverity which the Englifh courts
of admiralty never pracrife, where fome par-
ticular circumftance doth not require it.
I mail add to thefe the opinion of Albericus
Gentilis,-f eileemed the ableft writer on national
jurifprudence till Grotius bore the palm from
* Bynkerfhoek, Queftionum Juris Publici, lib. i. cap. 14.
f Albericus Gentilis de Advocatione Hifpaaica, lib. i.cap.
38.
him ;
H LORD HAWKKSBtfRY
him ; and his fame in this rcfped was fa
great, that Philip the Third of Spain appointed
him perpetual advocate for his fubjeds in all
caufes, which they might have depending in
the courts of England. This author ftatcs a
cafe, where the Tufcans had taken the efTeds
of the Turks, at that time their enemies,
which they found on board fome En^lifli
mips ; and he determines, that the Turkifli
goods are legal prize, but that the captai-
n-Rift pay the freight to the Engliih. " Tranf-
" eunt res," fays he, *« cum fua causa, vidor
" fuccedit in locum vidi, tenetur etrufcus
" pro toro naulo." The property of the
enemy paifeth to the captor, but all its confe-
quences attend it ; the goods juftly belong to
him, but he muil pay to the freighter all which
the enemy would have paid, to whofe right
he hath in every refped fucceeded.
To enter particularly into the fentiments of
any more writers on this fubjed would be
equally tedious and unneceifary ; it will be
fuiKcient to mention the names alone of fuch
others as are in favour of the qucllion. —
Among thel'e I find Heineccius,* no lefs
famed for his knowledge of laws, than for his.
•* Hcincccius de Xavibu- ul> YecWam dc Yctitarum Mer-
learn-
ON NEUTRAL NATIONS. 15
learning in what are the bell: expofitors of
laws, the antiquities of governments. — ■
Zouch,* who for many years prefided in the
courts of admiralty of this kingdom. — Voet,"t*
Zuarius, J and Loccenius,§ all of them writers
of reputation, and whofe opinions are uni-
verfally relied on by all who treat on public
jurifprudence.
I might indeed have wholly omitted the fenti-
tnents of thefe learned individuals, fince wefhall
rind, that great communities themfclves have
confirmed our opinion both by their laws and
by their practice. — It will not be proper on this
occafion to look far back into the early annals
of the European ftates ; when the govern-
ments of thefe were yet in their infancy, the
advantages of commerce were but little un-
derstood, and of courfe the rights of it were
not fufriciently regarded ; war was then too
much the feafon of rapine, and they who en-
tered into it meant lefs to conquer" than to
plunder. As loon, however, as fome better
order began to be introduced into thefe affairs,
it then became ufaal for each party at the com-
* Zouch de Judicio inter Genres, pars 2.
f Voet de Jure Militari, cap. 5.
X Zuarius de Uliu Maris, Confil. ii.
§ Loccenius de Jure Maritimo, lib. ii. cap. 4.
mencer
l6 LORD HAWKESBURY
menccment of the war to publifh a declara-
tion, wherein he fpecified what kind of trade
he would permit neutral nations to carry on
with his enemy ; and the regulations of thefe
were fometimes attended to, and fometimes
not, either as the intercfl of the party neutral
inclined him to fubmit to the reftraint, or as
the power of the party belligerent enabled
Him to enforce the execution of it. True it
is, that the prohibitions which thefe declara-
tions contain are various, according to the
lentiments of the different governments which
made them ; and on that account they are,
perhaps, too unftcady a foundation on which
to eftabliih a right ; there plainly, however,
follows from hence one powerful inference
in our favour, that not one can be found amid
all this variety, which ever permitted neutral
nations to protect the property of the enemy :
this branch of freightage they all agree una-
nimoufly to prohibit.
The free ftates of Italy cultivated firft the
intereits of commerce : before any veffel had
as yet palled the Cape of Good Hope, and a
morter pafTage had been dif covered to the Eaft
Indies, Venice and Genoa drove the principal
trade of the world, and difperfed the manu-
factures of Alia to the different parts of Eu-
2 rope :
ON NEUTRAL NATIONS. 17
rope : it naturally followed, that thefe two
commercial republics fooneft underftood and
defined the juft rights of navigation ; their
maritime conftitutions ttill remain collected
in the Confolato del Mare ; and the reputa-
tion of thefe was fo great, that as the laws of
Rhodes were once to the Romans, and the
laws of Oleron to the wettern parts of Eu-
rope, fo thefe Italian laws became of force
univerfally to all nations which border on
the Mediterranean fca : thefe have determined
the point exprefsly in our favour. In one
of them it is aiferted, " Se la nave o navilio,
11 che pigliato fara, futte di amici e le mer-
" cantie, che lui portera faranno d'inimici, lo
l * armiraglio della nave o del navilio armato,
" pou forzare & conftringere quel patrone di
" quell a nave o d'quel navilio, che lui pigliato
*' havera, che lui conquella fua nave gli debba
" portare, quello, che di fuoi inimici fara;'*
" If the fliip or veflel which fliall be taken
" belong to an ally, and the merchandize
** which fhe has on board belong to an ene-
•' my, the captain of the armed fhip may
" force or conftrain the matter of the ihip or
" velTel which he has taken, to carry into
" fome port for his account, the effects of his
" enemy which are on board ;" and it is af-
terwards added, that the matter of the veffel
D mutt
l8 LORD HAWKESBURY
mull be paid for the freightage of the goods
of the enemy.* — And fuch was not only the
conftant purport of their laws, but the prac-
tice of their governments was always con-
formable to it. Their hiftorian f tells us, that
4n the war between the Venetians and the
Genoefe, the fliips of Grecians, .who were
neuter, were always fearched, and the ene-
mies who lay hid in them were taken out
and made prifoners.
It is unneceffary to dwell longer in giving
a further detail of the condud of every na-
tion in this refpect ; I will, therefore, con-
fine myfelf to thofe who are mod concerned
in the prcfent difputc; and will mew, that
as England claims no more at prefent than
what flic always enjoyed, fo France and
Holland have confhmtJy fupported the fame
opinion whenever their mtercit required it.
It was in the reign of the firfh Edward, a
prince who thoroughly undcrflood the rights
of his crown, and had a fpirit equal to the
fupport of them, that Philip the Fair of
France, being engaged in a war with the
Duke of Burgundy, the French admiral took
* I! Confotato del Marc, c. 273.
f Niccp. Grngoras, lib. ix.
the
ON NEUTRAL NATIONS. 19
the (liips of fevcral neutral nations, which
were palling through the Britifh Channel
into the ports of Flanders': great complaints
were made on this head, and comrniflioners
were appointed to examine into the conduct
of the admiral ; a libel was there prefented
againif him by almofl; every trading nation of
Europe ; the record * of this is ltill remain-
ing : and if neutral nations had at that time
pretended to enjoy the right of protecting
the property of the enemy, and that the ef-
fects which they carried on board their ihips,
could in no cafe, except in that of contra-
band, be made lawful prize, we might well
expect, that this right would here have been
claimed and afferted : fear could not, in this
cafe, have prevented it; for all the world,
except France, was on one fide of the quef-
tion ; but the record contains no fuch claim :
the injured demand their right on a different
principle, becaufe their fhips were taken on
thofe feas, •' where the kings of England
" (faith rhe record) have time out of mind
" been in peaceable poffeflion of the fovcreign
11 lordfhip, with power of appointing laws,
" of prohibiting the ufe of arms, of giving
" protection as occafion ihould require, and
* Sir Ed. Coke's Fourth Inft. chap, 22,
D % ap-
*0 LORD HAWKESBCRY
•• appointing all things neceflary for the rnain-
" taining peace, juftice, and equity among
" all, as well foreigners as natives, who na-
" vigate thofe feas."* Here then the right of
protection is placed on that bafis, on which
alone it can properly be founded, the right of
dominion; no other pretence is offered; and
it I may be allowed to fum up the evidence,
as their names arc written in the record,
" Genue, Cateloigne, Efpaigne, Alemaine,
" Seland, Hoyland, Frife, Denmarcli, Nor-
" way, & plufours aultres lieux del Empier,"
all join here in aiferting the principles on
which I firft eihblifhed my argument.
The annals of Edward III. afford ftill other
fads in favour of my opinion : this prince
added to his military accompli fhments, great
fagacity in the fcience of laws, and uncom-
mon attention to the commercial interefrs of
his kingdom ; in the fecond year of his reign
he confirmed the Charter of Privileges, which
fome of his predeceffors had before granted to
foreign merchants, and particularly to thofe
of the Hanfe-towns,f who were atjhat time
the greatcft freighters of the Weffern parts of
Europe : this inftrument may well be confi-
See all this more fully fated in the record,
f Rjmer's Fceclera, torn. 4. p. 361.
4 dered
ON NEUTRAL NATIONS, *l
dered as a fort of maritime regulation, by
which England meant to direct her conduct
at that time in affairs of this nature ; in this,
liberty of navigation is fully confirmed ; fo-
reign merchants are allowed to carry theirgoods,
whether purchafcd within the kingdom or
without, " Quocunque voluerint ;'* but with
this exception, " prscterquam ad Terras no-
44 toriorum & manifeftorum hoftium Regni
*« noftri ;"* and fome offences being after-
wards committed againfl this charter in the
fucceeding wars, it was again renewed in the
fame manner in the 6th year of this reign ; in
both thefe inftances the exception is exprefs,
that no trade whatfoever mould be permitted
with the enemy ; but this good king, perhaps
through a principle of juftice, and his ardent
love to commerce, ieems to have pracf lied
this right with more moderation, that is, in
much the fame manner in which the govern-
ment of England claims it at prefent ; for in
his wars with Scotland, fome mips of Great
Yarmouth having taken feveral veiiels belong-
ing- to the bure-effes of the town of Bruges,
44 Pr<Etendentes Bona in iifdem exiitentia
4 ' fuiffe hominum de Scotia, he directed
his precepts to the Sheriff of Norfolk, -f com-
* Rymer's Fcedera, torn. iv. p. J 16,
] lb. p. 32S.
manding
22 J-ORD HAWKESBURY
manding him to fet at liberty, and to caufe
iull reititution to be made of the mips, and
of fuch of the goods as belonged to the mer-
chants of Bruges, and that he ihouJd detain
only that part of the cargo which was the pro-
perty of the Scotch, his enemies. We find
alfo, that when Queen Elizabeth was en-
gaged in war with Spain, ihe feized ieveral
veffels of the Hanfe-Towns, which were
entering into the port of Lifbon j and ihe
urged, among other arguments, the charter
above mentioned in defence of her conduct :
flie was in this refped fo fatisfled of the juftice
of her caufe, that the threats of the German
Empire, and other neutral powers, could not
oblige her to relinquim her right; and though
ihe might perhaps on this occafion S i\ C too
great extent to this right, yet it is remarkable
that Monficur dc Thou, who was himfelf a
great lawyer, and had long fat m the flrfl court
of judicature in France, even when he blames
the conduct of the Queen in this affair, paf-
feth his cenfure upon it, not as defective in
juftice, but only in policy: « J n tarn alieno
' tempore,^ fays he,* - Rcrum prudentiores
44 exdhmabant, imprudentcr factum eUe a
44 Regina ab Anglis."
Thurnus, lib. 96.
Wc
ON NEUTRAL NATIONS. 23
Wc have as yet mentioned the conduct
alone of thofe Englifh princes, who knew
how to affert their rights, and who ruled their
people with glory ; but we (hall find that
even under a weaker government, and in a
Litter period, this right of feizing the property
of the enemy found on board neutral fhipsr
hath been fully claimed and practifed : when
Villiers, Duke of Buckingham, prelided over
the naval affairs of England, and to gratify
his own private refentments, had engaged his
country in a war againft Spain, the Britilli
fleet under Pennington took feveral French
veffels, to the number of between thirty and
forty, which had Spanilh effects on board ;
they were brought into the ports of England,
and our courts of admiralty condemned the
goods of the Spaniards as legal prize, but or-
dered the veffels of the French to be rcleafed,
and the freightage to be paid to them. This
conduct was avowed by the Court of Eng-
land, and a full reprefentation of it transmit-
ted by the Lord High Admiral to the adminif-
tration of France: about- 15 years after this,
when the French themfelves were at war with
Spain, the navy of France took a great many
Englifh (hips which were laden with the pro-
perty of Spaniards ; and their courts of ad-
miralty condemned not only the enemy *s
effects x
-4 LORD HAWKESBURY
C
fFecls, but the Englifh mips which conveyed
them : the Earl of Leicefter, then ambaffador
in France, made great complaints on this head;
he was anfwered, that the Englifh always acT:-
cd in this manner; and this anfwer being
tranfmitted to the Earl of Northumberland,
at that time Lord High Admiral, he confut-
ed upon it Sir Henry Martin, the bell Englifh
civilian of that age, and the moft verfed in
maritime jurifdiction ; and by his advice he
returned to Lord Leicester the following an-
fwer, which at the fame time proves the con-
front opinion, and (hews the moderation of
the Britifh Admiralty on this point : " that,"
lays he,* " which is alledged by the French
"to be pra&ifed in our courts of admiralty
" is abfolutely denied ; and that neither the
" law nor practice hath ever been here to
44 confifcate the goods of friends for having
" enemies goods among them : we are fo far
•• from doing any fuch ad of injuftice, as
44 when in time of war we have met with
44 any fuch prizes, the freight hath always
44 been paid by the taker for thofe enemies
44 goods that he took, and thofe that belonged
44 unto friends were duly reflored to them."
' The Sulnej Papers, Algernon Earl of Northumber-
land to Robert, Earl of Leicefter, Nov. 5, 1640.
Thus
ON NEUTRAL NATIONS. 2|
Thus much may fuffice to mew the con-
duel: of the people of England : — hiftory will
alfo prove to us, that Holland hath always
exerted the fame right : — At the beginning
almoft of that war which the United Pro-
vinces fuftained in fupport of their liberties,
and even before their fovereignty was as yet
fully eftabliihed, the people of Zealand fcru-
pled not to carry into their ports all fuch neu-
tral veffels * as were conveying the effects of
the enemy, under pretended names, from
Flanders into Spain ; and the courts of ad-
miralty of that province adjudged the Spanifli
property to be legal prize ; and though they
releafed the neutral mips, they made them no
compenfation for their freightage : among
thefe there were fome Englifh veffels, and
Queen Elizabeth, angry that lb young a ftate,
and one which had placed itfelf under her
protection, mould in any degree interrupt the
commerce of her people, at nrft fhewed the
effects of her refentment, by feizing their
mips, and imprisoning their merchants ; the
Zealanders upon this made reprifals ; feveral
Englifh veffels were detained, and their com-
manders put under confinement : to endea-
* Hiftoria Belgica Metereni, lib. 5. Camden, anno 1575.
Zoueh de Judicio inter Gcntes, pars 2.
E vour
^6 LORD HAWKESBUIttf
vour at fome fettlement of this affair, the*
Queen fent over to Holland Mr. Robert
Beal, her fecretary; and for the fame purpofe
the Prince of Orange difpatched a minifter to
London ; by thefe means the difpute at lad
was compromifed : the {hips and the prifon-
ers were on both fides releafed ; but the
Queen never obtained reftitution of the ene-
mies goods which were taken on board the
veflels of her fubjects ; this fact is worthy of
obiervation, not only as it relates to the con-
duct of Holland, but as it mews how far a
Princefs thought herfelf obliged in equity to
yield, whom hiflorians have always defcribed
as pofitive in her temper, and, whenever her
right was concerned, of a very tenacious dif-
pofition.
Holland, whenever Ihe was engaged in war,
almoft conftantly purfued the lame conduct :
(lie fometimes even prohibited the commerce
of neutral nations beyond all juftice and mo-
deration. In the year 1599,* when the go-
vernment of Spain firit prohibited the fub-
jects of the United Provinces from trading to
the ports of that kingdom, a liberty which
had unaccountably been allowed them, from
* Grotii Hift. fib. 8.
the
ON NEUTRAL NATIONS. 27
the commencement of their revolt to that
period; the States General, in revenge, pub-
lifhed a placart, forbidding the people of all
nations to carry any kind of merchandife into
Spain ; the words of Grotius, in the relation
he has given of this affair in his Belgic Hif-
tory, are very full and exprefs : " Per edic-
" turn,'* fays he, " vetant populos quofcun-
" que ullos commeatus refve alias in Hifpa-
" niam ferre; fi qui fecus faxint, ut hofti-
11 bus faventes vice hoftium futuros." This
placart they publicly notified to all kings and
nations, for this reafon, as the hiftorian ex-
preffes it, " ne quis infeitiam excufaret."
The confequences of this notification de-
ferve alfo our attention ; the hiftorian con-
tinues : " Paruit Rex Gallia?, ac fi quis fuo-
•' rum fex intra menfes in Hifpaniam navi*-
" gat, profelTus eft privatum periculum fore.**
Henry the Fourth, at that time king of
France, though delivered then from all his
diftreftes, and arrived at the fummit of all his
power, icrupled not to fubmit to this placart,
and gave up the interefts of all his fubjects,
who mould attempt within fix months to
tranfgrefs it: the hiftorian concludes, '* Cac-
" teri (reges) filentio rranfmifere ;" the other
powers of Europe made no clamorous corn-
plaints againft this meafurc of the States ; in
E 2 filence
28 LORD HAWKESBURY
filencc they patted it over : How unlike was
this conduct to that of Holland at prefent !
— Charles the Second, in a letter to the
States General, of October 4, 1666, charges
them with a remarkable violence of this
nature ; being at war with fome Afiatic
Princes in the Eafl Indies, they feized all the
ihips and goods of the Englith merchants
which were trading to thofe countries ; and
the Dutch governors fcrupled not only to pro-
iefs in their declarations, " Qu' ayant depuis
" peu annonce la guerre aux Princes, avec qui
•' ils avoient defTein de trafiquer, cette guerre
" devoit par confequent leur interdire tout
" commerce avec les dits Princes."*
I omit citing many other inftances of their
conduct in this particular, left I mould appear
tedious, efpecially as one fad itill remains,
which is alone fufficient to evince the opinion
of Holland on this point ; and the which I
rather chufe to mention, as it happened even
after the Dutch had by their negociations en-
deavoured to eftablifti, as a general maxim
among nations, that the goods of an enemy
under a neutral banner mould pais unmoles-
ted. — At the commencement of that war
* Charles the Second's Letter to the States General, Octo-
ber 4, r666.
which
ON NEUTRAL NATION9. 29
which broke out immediately after the revo-
lution, when the firfr. grand alliance was
formed againft France, Holland entered into a
convention * with England to prohibit totally
the commerce of neutral powers with the
enemy : in the preamble of this, they ailign
publicly their reafons for it ; they fay, " that
' having declared war againft the Moft Chrif-
* tian King, it behoves them to do as much
4 damage as pofiible to the common enemy,
1 in order to bring him to agree to fuch con-
* ditions as may reitore the repofe of Chrif-
* tendom : and that for this end it was necef-
1 fary to interrupt all trade and commerce
' with the iubjecis of the find king ; and
' that to effect this, they had ordered their
' fleets to block up all the ports and havens
1 of France; 5 ' and afterwards, in the fecond
and third articles of this convention, it is agreed,
' that they would take any veffel, whatever
' king or Irate it may belong to, that mail
* be found failing into or out of the ports of
1 France, and condemn both veflel and mer-
' chandife as legal prize j and that this refo-
* lution fliould be notified to ail neutral
* frates." Such therefore was at this time
* Convention concluded at London, Aug. 22, 1689.
the
3° LORD HAWKESBURY
the avowed opinion of Holland, and Eng-
land was induced to join with her in this
convention, exceeding thereby thofe bounds
of equity and moderation, which ilie had al~
moil always praftifed in this point before,
and which fhe will, I hope, moff faithfully
obferve for the future. The Northern
Crowns, who were particularly affecled by
this prohibition, contended very vehemently
agamff it : in anfwer to their objections were
urged, the circumftances of affairs, the danger
of Europe, and the mighty ftrength of that am-
bitious power ; which, if fome extraordinary
effort was not made, would bring mankind
under its fubje&ion. It is remarkable, that
Fuffendorf,* who owed his fortune and em-
ployments to one of thofe Northern Crowns,
was of opinion in this cafe againft them, and
thought that the convention might be juftified.
It is not meant here at prefent either to cenfure
or commend it : circumftances may fometimes
make a thing to be lawful, which confidered
by itfelf, would be unjuff; but fuch times
are truly unhappy, when neceffity muff be
pleaded in fupport of a right.
* Sce a Latcr ( ' f Puffenciorf in Jno. Groningii Bibiiotneca
I:, v-ii.! » Libionim Juridicorum, p. 105.
1 It
ON NEUTRAL NATIONS. 3 1
It remains that I now inquire into the eon-
duel: of France ; my proofs * on this head will
be clear; they are indeed nothing lefs than
the public laws of that kingdom; by fome
very old French ordinances it is declared, not
only that the enemies goods mall be adjudged
to be lawful prize, but that the neutral veflel
which carries them, or the property of any
ally which mall be joined with them, mall be
joined alfo in the condemnation. It has always
been a maxim of the courts of maritime jurif-
dicrJon of France, " Que la robe d'am con-
" flfquecelle d'enemie:" and fo clear were
they in this opinion, that the laws which efla-
bliihed it were repeatedly enaded in the
reio-ns of two of their kings, Francis I. and
Henry III. — That the practice of the French
marine hath in this particular been coniorma-
ble to their laws, may be proved by a thou-
fand infrances: I mall felecl: one upon the
authority of a Miniiter of Holland, which
will mew what their conduct was in that
Spanilh war which preceded the Pyrenean
treaty. In a letter of Monfieur Boreel from
Paris to Monfieur de Wit, December 26th,
1653, "On tient ici," lays he, " pour
* See the Ordinances of France, Francis I. 1543- c « 4-
adHenrv III. 1584.. c. 69.
" maxi-
3* Lord hawkesburt
* rhaxime favorable a leurs interefts, que
' leurs enemies ne doivent recevoir ni defenfc
4 ni fervice des fuhjects de leur H. H. P. Pi
* en tranfportant de chez eux quelques mer-
' chandifes ou commodites ou d'autres, qui
1 feroicnt pour le compte de Tenemie, fous
* peine, au cas qu'ils les trouvent dans les
* batiments Hollandois, qu'ils fcront de bonne
* prife, & qu'on les puiife enlever les dits ba*
1 timents & les conhfquer."
But it is not the old laws of France alone,
that thus determine this point, their more mo-
dern regulations confirm it : one of the laft
and greater!: ferviccs which Colbert perform-
ed to his country, was the cirabliihmcnt of a
fyllem of naval Jaws, the wifeft and beft di-
gefted which the fpirit of legiflation hath ever
yet produced j it is obfervable, that although
the ordinance which contained thefe laws was
regiftercd in 1601, feveral years fubfequent to
thole treaties, by which France agreed that
neutral veffels mould protect the property of
the enemy, yet it pays no attention to them,
and eitabliihcs the contrary doctrine. This
proves how little regard France always ihew-
ed to that article. The words of the ordi-
nance exprefsly condemn not only the ene-
mies
017 NEUTRAL NATIONS. 33
mies goods, but the neutral fhip which car-
ries them : " All fliips (faith the law*) which
1 * have goods oh board that belong to the ene-
*' my, mall be good prize."
Thefe laws continue ftill to be obferved in
France : at the commencement even of the
prefent war, the French government delivered
to Monf. Berkenrode, the Dutch minifler at
Paris, a memorial, " Contenant les Precau-
44 tions," (as the title expreiTes it) •' que
" doivent prendre les negociants Hollandois
■' conforment a ^ordinance de la marine &
" aux reglements de la France, pour eviter
" que leurs navires foient declares de bonne
" prife." In the preamble of this, the words
of the above-mentioned law are repeated, and
the fame rule of condemnation is declared to
be ftill in force : And the feventh article of
the memorial lays even a greater reftrid;ion
o n neutral commerce, than the ordinance of
1681 feems to have intended; it is there faid,
** Si les navires Hollandois tranfportoient des
•' merchandifes du cru ou iabriques des ene-
*' mies de la France, ces merchandifes feroient
" de bonne prife, mais le corps du navire fe-
" roit relache." — By this memorial, there-
* Naval Ordinance of 168 1, Title ix. Art. 7.
F fore,
34 LORD iYawkesbury
fore, every thing which is either of the growth
or manufacture of the enemy's country, when
found on board the ihips of Holland, chough
the property does not appear to belong to the
enemy, is declared to be good prize. The
fame reftriction evidently extends to all other
neutral traders.* Is not this almoft a total
prohibition to neutral powers, of any com-
merce with the enemies of France ?
Let us now look back on what has been
faid : the deduction which I have made hath,
I fear, been tedious; but the importance of
the fubject by force led me into it : — I flatter
myfelf, however, it has appeared, that reafon,
authority, and practice, all join to fupport the
caufc'I defend : — by reafon, I have endeavour*
cd to trace out thofe principles on which this
right of capture is grounded ; and to give
that weight to my own fentiments .which of
themfelves they would not deferve, I have
added the authorities of the ableft writers on-
this fubject ; — and laftly, I have entered
largely into the conduct of nations, that I
might not only lay thereby a broader founda-*
tion for this right, but that I might the more
fully illuftrate, by the extravagant pretentions
* Sec the preamble of ihe MercoriaL
of
ON NEUTRAL NATIONS. 35
of other ftates in this refpect, the prefent mo-
deration of England : no age or country ever
gave a greater extent to the commerce of neu-
tral nations, and we have feen that moif. in the
fame circumftances have confined it within
much narrower bounds.
There remains frill, however, one objection
to what has been laid, and that of foplaufible
a caft, that I cannot leave it without an an-
fwer: it has been pretended, that the liberty
of navigation is deftroyed by means of thefe
captures, and that a violent refbaint hath been
put on the lawful induftry of mankind. The
liberty of navigation, in fair conftruction,
can mean no more than the right of carrying
to any mart unmolefted the product of one's
own country or labour, and bringing back
the emoluments of it : but can it be lawful that
you mould extend this right to my detriment;
and when it was meant only for your own ad-
vantage, that you mould exert it in the caufe
of my enemy ? Each man hath a right to per-
form certain actions, but if the deftruction
of another mould follow from them, would
not this be a juft reafon of reftraint ? The
rights of mankind admit of different degrees,
and whenever two of thefe come into compe-
tition, the loweft in the fcale muff, always
F 2 give
36 LORD HAWKESBURY
give place to the higher;— but you will fay.
that you have a profit in doing this ; if, howv
ever, it is otherwife unjuft, will that contf de-
ration convert it into a right ? — If you mean,
that your own commerce ought to be free,
that right is not in the leaft denied you ; but if
under this difguife you intend to convey free-
dom to the commerce of the enemy, what po-
licy or what juftice can require it ? What can
neutral nations defire more, than to remain
amid the ravages of war in the fame happy
circumftances which the tranquillity of peace
would have afforded them ? But can any right
from hence arife, that you mould take occa-
fion from the war itfelf to conftitute a new
fpecies of traffic, which in peace you never
enjoyed, and which the necefTtfy of one party
is obliged to grant you, to the detriment, per-
haps deftruction, of the other? If this right
was admitted, it would become the intereft of
all commercial ftates to promote diiTenfion
among their neighbours; the quarrels of
others would be a harveft to themfelves ; and
from the contentions of others they would ga»
thcr wealth and powcr.- T -But, after all, the
rights of commerce are not the real caufe of
this difpute: and liberty of navigation is only
a fair pretence, which ambition hath thought
fit to hold forth, to intereft the trading ftates
of
ON NEUTRAL NATIONS. $f
of the world in its caufe, and to draw down
their indignation upon England ; this is not
the firft time that a deceit like this has been
practifed : when the power of Spain was at
its greatefr. height, and Elizabeth wifely con-
tended againit the mighty defigns of Philip,
the capture of fome veilels belonging to the
Hanfe Towns gave occalion to a conteft of this
nature : but they were the emiiTaries of Philip
that then blew up the flame, and pretending a
love to commerce, promoted the ambitious
projects of their mailer : the Queen of Eng-
land publifhed an apology for her conduct,
and this was anfwered in a virulent and abu-*
five manner, not from any of the Hanfe
Towns, but from Antwerp, a city under the
dominion of Spain, and it feemed to be writ-
ten (fays Thuanus) " per hominem Philippi
" partibus addictum, non tarn pro libertate
" navigationis et in Germanorum caufa de-
" fendenda, quam in Hifpanorum gratiam,
" et ad Reginir nomen profcindendum :" the
intercfls of commerce were the pretended
caufe of this difpute, but the real caufe was the
mtereit of Philip; the pretended deiign was to
preferve the liberty of navigation, but the real
end was to ferve the caufe of ambition, and
to deft roy the government of England ; —
this cafe need not be compared with our own
at prefent, the relemblance is too obvious.
Here
^3 LORD HAWKESBL'RY
Here then we might reft our caufc, if the
law ot nations was the only foundation on
which this point could be argued ; but the
bands of equity have been found alone too
weak to hold the nations of the world to
their duty; their intereft taught them to re-
new and confirm thefe by contracts among
themfelves, and frequently to add thereto
certain mutual advantages, greater than what
the law of nations fingly would have allowed
them : — let us confider therefore, what in-
fluence thefe may have in the prefent cafe ; — .
whatever they are, I mean to give them all
the force which reafon or juftice can require :
it our anceftors have betrayed the intereft. of
of their country in granting any privileges of
this nature, wc, who have fucceeded to their
rights, are bound to abide by their concef-
iions ; it is the happinefs of great kingdoms,
whofe power is equal to the fupport of their
own independency, to be able to acT: up to
thofe principles, which neceflity hath often
forced little {fates unhappily to abandon ;
thole fcandalous. maxims of policy, which
have brought difgrace both on the name
and the profefTion, took their rife from the
conduct of the little principalities of Italy,
when diitreiTed by the fucceflive invafions
which France and Spain made upon them,
1 they
ON NEUTRAL NATIONS. 39
they broke or conformed to their leagues, 3$
their own fecurity obliged them ; and their
refined fhifts and evafions formed into- fyftems
by able doctors of their councils, have com-
pofed that fcience, which the world hath
called politics ; a fcience of fraud and deceit,
by which kingdoms are taught to be governed
On principles, which individuals would be
afhamed to profefs ; as if there could be no
morality among nations, and that mankind
being formed into civil focieties, and collec-
tively confldercd, were fet free from all rules
of honour and virtue : maxims like thefe I
mean to avoid ; to follow them would bring
dilhonour on my country.
It mull: then be allowed, that there are arti-*
cles in fome of our maritime treaties with
other nations, which have irJpulated, that,
* ' All which lliall be found on board the
•* velTels belonging to the fubjects of thofe
<f countries, fhall be accounted clear and free,
* ' although the whole lading or any part thereof
*' fhall, by juft title of property, belong to
" the enemies of Great Britain ;" fuch an
article is inferted in thofe maritime treaties,
which Great Britain hath made with France*
* Treaty between Great Britain and France, 24th Feb.
* 6 77-
and
4° LORD HAWKE33URY
and Holland :* it has indeed by fomc beer!
fuppofed, that the fubjc&s of the crown of
Spain have a right to enjoy a privilege of the
fame nature ; certain, however, it is, that no
fuch article as that above mentioned, can be
found in the maritime treaties between that
country and Great Britain, and particularly in
that of Madrid-of 1667, w ^ch is the princi-
ple maritime treaty at prefent in force between
the two kingdoms ; but as a miftake in this
refpecl may poflibiy have arifen from a falfe
interpretation of two articles in the treaty of
Madrid, which declare in general,* that " the
" fubjefts of the two crowns refpedively
" mall have liberty to traffic throughout all
" countries, cultivating peace, amity, or neu-
" trality with either of them, and that the
" faid liberty mail in no wife be interrupted
" by any hindrance or difturbance what! bever,
' by reafon of any hoilility which may be
" between either of the faid crowns and any
" other kingdoms:" and as the liberty here
itipulatcd, may be by fome erroneoufly ima-
gined to extend lb far, as to grant a right to
carry freely the effects of the enemy ; it will
be proper here to remove this error, and to
* Treaty between Great Britain and Holland, ift Dec.
j 764.
f Trcaty.of Madrid, ibfy.
flop
ON NEUTRAL NATIONS. AI
lop a little to fhew the true deilgn and mean-
M ng of thefe articles. This explanation is at
D tf I prefent more necelTary, as it will tend to il-
Mluftrate the true fenfe of other ftipulations of
precifely the fame purport, which may be
found in feveral of our commercial treaties,
and particularly in the firft and fecond articles
of that with Holland of Dec. n,. 1674: a
wrong interpretation of which hath already
given occafion to great confufion and much
ialfe reafoning upon the prefent queftion.
It cannot, I think, be doubted, that accord-
ing to thofe principles of natural equity,
which conftitute the law of nations, the peo-
ple of every country muft always have a right
to trade in general, to the ports of any ftate,
though it may happen to be engaged in war
with another, provided it be with their own
merchandife, or on their own account ; and
that under this pretence, they do not attempt
to fcreen from one party the effects of the
other j and on condition alfo, that they carry
not to either of them any implements of war,
or whatever dk t according to the nature of
their refpc&ive fituations, or the circum-
ifonces of the cafe, may be necelTary to them
for their defence. As clear as this point may
be, it has fufficiently appeared by the facts de-
G duced
1 2 tORD HAWKESBURY
duced above, that amid the regularities 6i
war, the rules of equity in this refpedt were
not always enough regarded ; and that many-
govern ments in time of war have often moil
Iicentiouily difturbed, and fometimes pro-
hibited totally, the commerce of neutral na-
tions with their enemies : about the middle
therefore of the laft century, when the com-
mercial regulations, which at prefent fubfifl
between the European powers, firft began to
be formed, it became abfolutely neceflary to
call back the attention of governments to
thofe principles of natural right, from whence
they had ftrayed ; and to fix and determine
what was the law of nations, by the articles
of their refpedtive treaties : for this purpofe,
the negociators of that age inferted in their
Commercial regulations, articles * to the fame
purport as thofe above-mentioned, aflerting,
in general, a right to trade unmolefted with
the enemies of each other ; and thefe they
ufually placed among thofe articles of general
import, which are commonly firft laid down
in treaties, as the bafis on which the fubfe-
* Treaty of Commerce between France and Holland,
1662. — Treaty of Commerce between England and Holland,
Feb. 17, 1668. — Treaty of Commerce between England and
Holland, Dec. r, 1674.— Treaty of Commerce between Eng-
land and France, Feb. *4, 1677".
duent
ON NEUTRAL NATIONS, 4?
quent ftipulations are founded : the rule there-
fore of equity in this cafe being thus defined,
they came afterwards to erecl upon it fuch
privileges as that rule alone would not have
allowed them ; and among the reft, fome na-
tions, as their intereft prompted them,
granted mutually to each other, by new and
exprefs articles, the right of carrying freely
the property of their refpedlive enemies.
Thefe laft: articles therefore muft be conn>
dered as wholly diftinft in their nature from
thofe before-mentioned, and in their meaning
totally different : the firft are an affirmance of
an old rule, the laft create a new privilege ;
thofe only confirm a right which was deter-
mined by the law of nations before ; thefe
make an exception to that law r : — if they
both imply the fame fenfe, why are both fo
often found inferted in the fame * treaties ?
Would the repetition in fuch a cafe have been
neceffary; and to what purpofe were new
articles added to grant a privilege which was
already included in the terms of the preced-
ing ? The fame exception alfo of contraband
goods is again repeated in the laft cafe, as
well as in the former ; and fhews clearly,
- : See the Treaties mentioned in the laft note.
G 2 that
44 LORD HAWKESEURY
that the property, which is the objecl of the
exception in the different articles, mull like-
wife in its nature be different ; the one relates
to the ordinary means of traffic which every
nation enjoys, its own produce or property ;
the other to the property of the enemy.
But this point is ftill more clearly explained
by the afMance of other treaties, where arti-
cles of the fame force, as the 2 ill and 23d of
the" treaty of Madrid", are inferted, and the
intention of them fully made appear from the
fubfequent parts of the fame treaties. — In the
treaty of commerce between Great Britain and
Sweden, of the 21ft of Oclober, 1661, it is
Stipulated by the nth article, that 4t it is by
44 no means to be' underftood, that the fub-
44 jecls of one confederate, who is not a party
44 in a war, fhall be retrained in their liberty
44 of trade and navigation with the enemies
4 'of the other confederate, who is involved
44 in fuch war;" and then in the article
which immediately follows, the meaning of
thefe words become manifeft beyond a doubt :
it is there fo far from being fuppofed, that
the liberty here granted can be fo interpret-
ed, as to imply a right of conveying the
cffe&s of an enemy, that the very attempt to
praclife
O^ NEUTRAL NATI0N9. A%
p*actife it under favour of this liberty, is there
tailed " a fraud/** and asa" moil heinous
crime,' ' is ordered " to be mod feverely pun-
ilhed ;*' and to prevent any collufion in this
refpeft, the veffels of both parties are required
to be furnimed with paffports, 4 ' fpecifying
44 of what nation the proprietors are to whom
« theefTe&s on board them belong."— And
in the treaty of commerce between Great
Britain and Denmark, of the nth of
July, 1670, a right of free trade with the
enemy is ftipulated in the 1 6th article ; and
afterwards by the 20th article, the extent of
this right is made apparent : here the means
are fet down to prevent the defigns of thofe,
who under favour of this ftipulation mould
attempt to protect the effe&s of the enemy j
and the illegality of fuch a practice being
fuppofed, as not neceffary to be exprefTed,
the article then declares, " but left this
44 liberty of navigation and paflage for one
44 ally might, during a war which the other
44 may be engaged in, by fea or land, with
44 any other flate, be of prejudice to fuch
44 other ally; and the goods belonging to the
44 enemy be fraudulently concealed, under the
44 colourable pretence of their being in amity
* See the Treaty of Commerce between Great Britain
^nd Sweden, Oct. si, 1661. tt
$6 LORI> HAWKESBPRY
'* together; to prevent, therefore, all fraud of
" that fort, all (hips mall be furnimed witii
•? pafiports }" the form of which is there fet
down, and is the fame as that mentioned
aboye.-rFrpm thefe treaties then it manifeftly
appears, that by a general ftipulation in fa-
war pf trade with the enemy of another
power, negotiators never intended to imply a
right to carry freely the effects of that enemy;
but that to eftabli|h fuch a right, it is necef-
iary to have it expref§Iy mentioned. The
2:1ft and i2,2d articles therefore of the treaty of
Madrid, in which liberty of traffic to thq
countries of the enemies of Great Britain is
thus in general ftipulated, can be explained
$0 grant to the fubjefts of the Crown of
Spain, no other right but that of carrying on
without any injuries, v. moieftation," or
*■ dilturbance," fuch traffic as would other-
wife be legal according to the law of nations,
and by this Jaw, in time of war, it never
could be legal to protect the effects of an
enemy ; — a privilege, however, like this
Great Britain hath confented to grant in her
commercial treaties with France and Holland;
the liril of thefe is put an end to by the pre-
: - war ; it remains, therefore, that I now
< ileourfe on this privilege, as it is ftipulatcd
in tli- Britifh treaties with Holland ; and I
i
pro-
ON NEUTRAL NATlbks. 4^
fropofe to fhew that here alio it is extinct. —
But to give a fuller view of my fubject, and
to fhew the origin and intention of this pri-
vilege, it will be rteceffary to enter a little into
the hiilory of it, and to relate the manner in
which the article that grants it was firft ad*
mitted into treaties.
When the United Provinces had put an end
ky the treaty of Munfler, to that long war,
which they had fo nobly maintained in fup-
port of their liberties, and had happily crowned
their labours by obtaining a full acknowledge-
ment of their fovereignty ; delivered from
the cares of war, they wifely turned their
thoughts towards the arts of peace : after long
contentions among themfelves, their com-
mercial provinces had at length obtained the
o-reateft lead in the ftate ; the intereft of trade
i> .....
was of courfe the principal object ot then-
council ; their armies were reduced ; all who
favoured war were no longer in credit ; and
the views of their minifters terminated chiefly
in giving permanence to that extenfive traffic,
which had fupported them through all their
diftreffes, and to the effedts of which they
principally attributed all their power and free-
dom;
They
4-8 LORD HAWKESBURY
They were, indeed, at this time fo fully
matters of almoil all the commerce of the
world, that they had little elfe to do but to
preferve the pofleinp.n of it : the public was,
on this occaiion, amufed with a new fpecies
of policy, the offspring rather of avarice than
ambition, defirous of keeping the reft of man-
kind in indolence, that it might more fully reap
the fruits of its own induftry : where wealth
was at leaft the firft objed: in view, though
in the end it might be accompanied by its
tifual attendant, power : the arts which they
praclifed to preferve their fiiheries, and to
fecure to themfelves alone the trade of the
Aiiatic fpices, are well known, and not at
prefent to our purpofe ; they urged loudly the
ireedom of navigation, till they had made it
free indeed for themfelves ; but they have been
charged with practifing a different doctrine
on the other fide of the line to what they
profefled on this ; and with feeking to efla-
bliih an exclusive trade on thofe very feas,
whofe freedom from papal grants and Spaniih
pretentions the pen of their Grotius had fo
ably defended.
There was, however, another fpecies of
commerce which demanded their attention
even more than either of the former; as it
was
ON NEUTRAL NATIONS. 49
was not only a profitable branch of traffic in
itfelf, but as it greatly tended to the fecurity
of the reft, by being the principal bafis of
their naval power : this was the trade of
freightage, or the carrying trade, the fubject
of our prefent difcourfe. — To underftand their
views" in this refpecl:, we muft firft take no-
tice of the foundation on which their policy
was built ; they had fucceeded to the Han-
featic traders, in becoming the carriers of the
world : long pofTeffion had, therefore, fur-
nifhed them with great numbers of failors
and fhips ; and to theie they added uncom-
mon parfimony and indufiry, the natural en-
dowments of their people : thefe made them
contented with fmall profits, and enabled them
to carry the manufactures of each country
even cheaper than the natives of it them-
felves : with fuch happy circumftances in
their favour, they were fure of making this
branch of trade wholly and perpetually their
own, if they could, by their negociations and
policy, eftablifh two points : — The firft was,
that no nation mould grant to its own na-
tives any privileges in relation to freight-
age, which the people of Holland mould not
equally enjoy. And as the confequences of
war mould otherwife frequently interrupt the
the courfe of this traffic, they laboured to ob-
H tain
5° LORD HAWKESBURY
tain, as their fecond point, that whenever any
other nation was engaged in war, they might
then enjoy, as neuters, the right of protecting
the property of its enemies. Thefe points, once
obtained, would open a larger field, on which
their induftry might exert itfelf, than what
they could otherwife of right pretend to en-
joy : they were wife, however, in endeavour-
ing to obtain it : no nation befides themfelves
had more mipping than what was equal to
the carriage of their own manufactures ! they
alone, therefore, could carry on the freightage
of other countries, and largely reap, when
their neighbours were at war, the advantages
propofed.
The regency of Holland laboured with great
perfeverance for the eftabliihment of thefe two
points: their great minifter De Witt* filled all
inftrudions and difpatches with every argu-
ment and motive which his adive mind
could invent in fupport of thefe favourite
maxims : they were willing to give up any
temporary advantage to gain that, which,
once acquired, would prove for ages an over-
flowing fpring of wealth. By their negotia-
tions they earne% laboured to induce France
* Lettrcs de Monf. De Witt, paffim.
to
ON NEUTRAL NATIONS. 51
to comply with their defircs in thefe refpe&s;
but here they were a long while unfuccefsfnl :
in oppofition to the firft point of their po-
licy, Fouquet, while he was at the head of
the French marine and finances, eftabliihed
the tax of 50 fous per ton on all foreign
(hipping j and endeavoured thereby to en-
courage and augment the freightage of his
own country ; and when, upon his difgrace,
Colbert fucceeded to his employments, this
tax of 50 fous was almoft the only part of
the formers policy which the latter thought
fit to adopt. It is amazing, with what zeal
and application the minifters of Holland con-
tended for the abolition of it : France at
length relaxed her feverity on this head, not
fo much to favour the trade of the Dutch,
as in compliance with the interefts of her
own. Colbert's great fchemes to improve the
manufactures of his country had met with
better fuccefs than his plans for the aug-
mentation of its marine; and the frequent
wars in which his ambitious matter involved
his kingdoms gave repeated checks to the
freightage of his people. France, therefore,
at laft found it neceffary to give a larger vent
to her manufaftures, by opening her ports to
foreign veffels ; and for this purpofe me took
off the tax of 50 fous, by the treaty of Ryf-
H 2 wick,
S 2 LORD HAWKESBURY
wick, as far as it related to the (hips of Hol-
land alone : and fince that time me has regu-
lated her conduct in this particular as the in-
tereft of her trade requires. In time of war,
(he always remits this tax, as me is then
forced to make ufe of the freightage of neu-
tral nations, her naval power not being equal
to the protection of her own : and in time
of peace (he preferves the tax, or not, as the
increafe or diminution of her (hipping re-
quires, always giving the greater!: encourage-
ment to her own marine, which is confident
with the prefervation of her manufactures.
France confented fooner to the other point
of Dutch policy, and granted by treaty to
the veffels of Holland, as neuters, the right
of protecting the effeds of an enemy : the
laws of France, indeed, have continued al-
ways to determine againft this right ; and in
this refpect, therefore, their laws and treaties
contradict each other : fome very ancient or-
dinances of that kingdom (as we have (hewn
above) had adjudged as lawful prize in this
cafe, not only the enemies goods, but had
joined alfo in the condemnation the neutral
veflel which carried .them ; the laft, however,
of thefe points was remitted as early as 1646,
by a temporary treaty then made with Hol-
land ;
ON NEUTRAL NATIONS. $$
land ; the neutral veiTel, and all the effects
of a friend found on board it, by this were
ordered to be fpared : by a fubfequent nego-
tiation, Holland endeavoured to get this pri-
vilege farther confirmed and extended : it was
one great part of Monfieur Boreel's employ-
ment in his long embalTy at Paris : at laft,
however, in the memorable treaty of defenfive
alliance between Holland and France, of the
27th of April, 1662, this favour was obtained
in its full extent; by the 35th article* it is re-
ciprocally agreed, that all which (hall be
found oh board the vefTels of either of the
contracting parties, " encore que la charge
" ou partie d'icelle fut aux enemies, fera libre
" & ar^ranchie. ,, This article was again re-
newed by the marine treaty of 1678, and
by feveral fubfequent treaties : the marine
treaty of December 21, 1739, was the
laft in which it was inferred : this con-
tinued in force during part of the laft war ;
but in the year 1 745 the French Government
declared this treaty void by an acT: of council,
and it hath never lince been renewed: France,
from the condition of her marine, could cer-
tainly reap no advantage from the infertion of
this article in her own treaties ; but it was wife
* See the. treaties in the Letters of D'Eftrade, torn. i.
? in
5$ LORD HAWKESBORT
in her to endeavour to eitablifh the point as a
general maxim of national law among other
countries ; experience hath proved to her the
ufe of it in time of war.
But Holland mod exerted her policy to
bring that nation to a compliance with her
maxims, whom Ihe moft apprehended as her
rival in trade : the fcandalous ignorance of
the Engliih minifters in point of commerce,
and the little attention which they paid to the
interefts of it, gave fuch advantages for fome
time to the Dutch, that more veflels of that
country were feen in the ports of our colo-
nies than even of our own ; the fhipping of
England, from the reign of Elizabeth, had
been in a conftant decline > we mould hardly
have believed, that in the reign of Charles I.
England could not have furniihed more than
three merchant vefTels of 300 tons, if Sir
joiiah Child had not affirmed it : the time at
length arrived, when we were to be put in
this relpecl: on an equality with our neigh-
bours, and to vindicate (as it were) the ad-
vantages of our own induftry and produce to
ourfelves ; in 165 1, the Parliament of Eng-
land paffed into an ordinance that noble ftrain
of commercial policy, called fince, the ad: of
navigation ; Mr. St. John returning about
this
ON NEUTRAL NATIONS. 55
this time from his embaffy at the Hague, be-
came the happy inftrument, which Providence
madeufeof, to accompliih this great work;*
refenting highly the refufal, which had there
been given to his propofals, and the infults
which had been offered to his perfon, he
warmly folicited, and at length induced the
council of ftate, to move the parliament to
pafs it ; the committee fat five days in form-
ing it ; and it was at laft publifhed by order
of the houfe with great pomp and ceremony
at the Royal Exchange ; the Dutch were fo
fenfible of its confequences, that it was the
principal caufe of the enfuing war: they called
it in a manifefto,*f- publifhed foon after,
" A vile act and order." At the negociations
for that peace which put an end to the war,
De Witt laboured with his ufual indufhy and
acutenefs to procure the abolition of it ; his
efforts were happily in vain ; they who made
the law attended with vigour the execution of
it ; the effects of it were immedialy apparent.
This acl: of policy alone hath fortunately out-
weighed all our other follies and extrava-
gancies ; though condemned by fome of our
hiftorians, and unnoticed by others, it hath
proved the fertile fource of all our naval
* Ludlow's Memoirs, vol. i. p. 345.
f The manifefto of Holland, 1652.
power :
5^ LORD HAWKESBURT
power: it hath operated infenfibly to ourpre-
fervation, and hath been the fpring from
whence hath flowed the wealth and greatnefs
of England.
Our anceftors, with equal conftancy, for
fome time withftood the other maxim of Dutch
policy, and would not permit their vefTels,
as neuters, to protect the effeds of the ene-
my. By a very ancient and remarkable treaty,
made when the dukes of Burgundy were fo-
vereigns of the Low Countries, the contrary
opinion had long been eftablifhed ; in that it
was determined, " Quod fubditi Unius Prin-
" cipum Praedidorum," (that is, Henry VII.
King of England, and Philip, Duke of Bur-
gundy) " non adducent aut adduci facient
* per mare, fraudulofe, vel quocunque co-
" lore, ahqua bona feu merchandizas inimi-
4< corum alterius eorundem principum." And
it farther ftipulated, that in cafe the matter
of the neutral veflel mail endeavour, by a
talie report, to defraud the captor of any of
his enemy's effeds, he (hall be obliged to
make good the lofs fuftained thereby, by the
forfeiture of as much of his own. Frequent
applications were made before the reftoration,
both to the parliament and to the protedtor,
to alter the courfe of proceeding in this re-
fpe&i
ON NEUTRAL NATIONS. 5)
fpec~t ; but thofe heads which formed the act
of navigation were too wife to confent to
this ; a particular occasion, however, at laft
induced England to make the coneeihon ; by
the treaty of commerce made at the Hague,
17th of February, 1668, this point was fully
fettled to the fatisfaction of Holland ; by the
1 Oth article* of which it was fully itipulated,
that the (hipping of each country mould
carrv freely the goods of the enemies of the
other. The circummmces of the time, and
the iituation of affairs when this article was
framed, account for its admiffion into this
treaty, and very lfrongly apologife for the
authors of it ; Lewis the XlVth had then
juft commenced the firft career of his ambi-
tion, and England refolved with fpirit to
throw herfelf in his way. Holland was
then engaged in a ftrong defenfive alliance
with France, from whom it was neceilary to
feparate her, and to make her join with Eng-
land to fupport the independency of Europe.
The Dutch miniifers feized this fortunate
opportunity of obtaining from England the
fame advantages which they had already ac-
quired by their treaties with France. It hath
•been the policy of moll republics never to
* Intercurfus .Magnus inRymer's Fceden, vol. x'ri, p. 585.
I enter
58 LORD HAVVKESBURY
enter into any alliance where fome benefit
doth not accrue to themfelves ; and Holland
could not be expcded to deviate from this
maxim on the prefent occafion, in compli-
ment to the king of England, who had al-
ways Shewn but little affection to the States ;
the war alfo with that monarch was but lately
ended, and tire wound but weakly healed :
the French treaty of 1662, befides its defen-
sive Stipulations, contained alfo feveral com-
mercial regulations, the favourite objed of
Holland ; thefe had been provisionally refer-
red to a few months before at Breda, with a
defign to prevent any intermediate difputes
between England and Holland, until a treaty
of commerce, which was then under delibe-
ration, was concluded ; but unlefs thefe were
perpetuate] on the prefent occafion, and
formed into a permament national treaty, to
which England was averfe,* the States were
refolved not to join in the alliance propofed :
Monf. De Witt exprefsly told Sir William
Temple,f " That the treaty of defenfive al-
" liance muff, for a bafis, have at the fame
" time an adjufhnent of matters of com-
" merce ;" and unlefs this could be obtained,
v Sir William Temple to Lord Arlington. Feb. 12, 1668.
f lb. Jan. 24, 1668.
it
ON NEUTRAL NATIONS. 59
it was the avowed opinion of that great pen-
fionury not to conclude. Influenced by the
fentiments of their minifler, the States per-
fifted in the fame refolution ; they forced, at
laft, Sir William Temple to yield the point ;
apprehen.fi ve of the lead delay, and of the
uncertainties which would neceilarily follow
from it, he ventured to comply with their
defires, though he exceeded thereby his in-
ftrudions ; a private promife patted firft be-
tween him and Monf. De Witt, and in con-
fequence of that, a few weeks after, a treaty
of commerce was concluded.
We have before obferved, that in the 35th
article of the treaty of 1662, the French con-
fented to grant the right of protedion to neu-
tral veffels; this, therefore, came of courfc
to be inferted in our commercial treaiy oi
1 668, and the advantages which would arife
from thence in favour of the trade ot Hol-
land, were the conceffions which England
then chofe to make, that ilie might obtain
the affiftance of that republic againft Franre.
To what other purpofe could England at
this time eftablifn a rule of commerce, which
(he had before fo often refufed, and now fo
relu&antly granted to the earneft lblicitations
of the States ? Any benefit which the Britilh
I 2, trade
60 LORD HAWKESBURY
trade might reap from the mutual ftipulation
of this article, could never be the object which
the minifters of this country had in view.
The article, confidered by itfelf, is of the
moil fatal confequence to the power and trade
of Great Britain ; when flic is at peace, and
her neighbours are at war, flic cannot reap
any benefit from it, as her own fhipping is
not more than equal to the trade of her peo-
ple; and when, on the other hand, Great
Britain is at war, and her neighbours at peace,
it tends to defeat the beft part of her power,
and to render fruitlefs the efforts of her naval
force; while at the fame time, confidered as
a general maxim of right among other na-
tions, Great Britain neither wants the ufe of
it, as fhe is equal in time of war to the pro-
tection of her own (hipping; neither can her
merchants enjoy the advantage of it, as the
employment of foreign freightage is in moll:
refpeds directly contrary to her Jaws. This
•article was again renewed in the treaty of com-
merce 1674, in confequence of its having been
before ftipulated in that of 1668. The treaty
of 1 674 is the maritime regulation that at pre-
fent fubfifts between Great Britain and Hol-
land.
In
ON NEUTRAL NATIONS. 6l
In this manner, therefore, the article hav-
ino- obtained exiftence in thcic treaties, we
are now to confider whether it is ftill in
force.
Treaties of alliance being nothing more
than ftipulations of mutual advantages be-
tween two communities in favour of each
other, ought to be confidered in the nature of
a bargain ; the conditions of which are al-
ways fuppofed to be equal, at leaft in the
opinion of thole who make it ; he, therefore,
who breaks his part of the contract, deftroys
the equality or juftice of it, and forfeits all
pretence to thofe benefits, which the other
party had ftipulated in his favour : " Si pars
" una" (fays Grotius) * Fcedus violaverit,
" poterit altera a Foedere difcedere, nam Ca-
" pita Foederis fingula conditionis vim ha-
" bent." And Puffendorf,+ fpeaking of
conventions, lays, " Nee hsec alterum obli-
f* o-ant, ubi ab uno legibus conventionis non
*« fuerit fatis factum."
The next queftion then is—Hath Holland
complied with her part of the treaties cr con-
* Grotius de Jure Belli ac Pacis, lib. ii. cap. xv. fee. 15.
f Puffendorf de Jure Nat. & Gentium, lib. iii. cap. viii.
f rC. S.
traces,
6z LORD HAWKESBURY
trafts, to which fhe is mutually bound with
England ? — Hath the performed all that
flic hath ftipulated in our favour ? — Or hath
fhe been deficient in the execution of fome
article in which the very lire of our alliance
is contained ?-— If f material a part mould
be extinguifhed, it would be unnatural to
fuppofe, that any lefler limb of the treaties
mould have vigour. Holland, in this cafe,
could have no pretence to require the execu-
cution of what may have been conceded in
her favour; especially, if the performance of
it would operate to the detriment of that ally
whofe friendfhip fhe hath forfaken.
I doubt not but my reader hath already
anfvvered in his own mind the queftion pro-
pofed— that the poifeiilons of the crown of
Great Britain in Europe have been attacked
by the armies of France— that "in confequence
of this, on the 2d of Auguft, 1756, the Bri-
tilli government made to the States General
in proper form the necehary requisition —
that in fuch cafe Holland is obliged by trea-
ties to grant immediate fuccours, and after
a certain time to join with Great Britain in
open war — that fhe hath not performed thefe
conditions, and hath therefore forfeited all
title to any advantages contained in thofe
treaties^
ON NEUTRAL NATIONS. 6
.?
treaties, and above all, to fuch as may ariie
from the nature of the war itfelf ?
I (hall ftate, however, this point fome-
thing more particularly ; Holland is engaged
in three different guaranties or defenfive trea-
ties with Great Britain : the fir ft is that an-
cient original defenfive alliance, which hath
been the bafis of all the fubfequent treaties
between the two nations : this treaty was de-
fio-ncd to have been made immediately after
the triple alliance, but the unfteady conduct
of the minifters of Charles the Second, and
the unfortunate attachment of that monarch
to the French court, for fome years delayed
it: it was at laft, however, concluded at
Weftminfter the 3d of March, 1678: it is
(except in two immaterial alterations) an ex-
adt copy of the twelve fir ft articles of the
French treaty of 1662 ; and both were nego-
ciated by the fame minifter, Monfieur Van
Beuningen. In the preamble of this treaty,
" the prefervation of each other's dominions'*
is fet forth as the caufe of making it ; and the
ftipulations of it are, " a mutual guaranty of
" all they already enjoyed, or might hereafter
" acquire by treaties of peace, in Europe
" only." They farther guaranty, " all trea-
" ties which were at that time made, or
" might
*>4 LORD HAWKESBURY
" might hereafter conjointly he made with
" any other power." They promife alfo,
" to defend and preferve each other in the
" poiTeilion of all towns or fortrefies, which
" did at that time belong, or mall for the fu-
" ture belong, to either of them/' and for
this purpofe it is determined, that " when
•' either nation is attacked or moleflcd, the
" other mall immediately fuccour it with a
" certain number of troops and men of war,
" and lhall be obliged to break with the ag-
" greflbr in two months, immediately after
" the party that is already at war (hall re-
" quire it ; and that they lliall then act con-
" jointly with all their forces, to bring the
44 common enemy to a reafonablc accommo-
" dation."
That Holland hath not complied with the
terms of this guaranty is evident ; — Minorca,
" a pofTefTion of the crown of Great Britain,
" and which Hie acquired by treaty," hath
been attacked : this is one cafe of the <iua-
o
ranty; by that attack, "a treaty that was
" made in common concert," the treaty of
Utrecht hath been broken ; this is a iecond
cafe of the guaranty ; and by thefe means
•' England hath been deprived of a poflcifion
** which of right belonged to her :" this is a
4 third
ON NEUTRAL NATIONS. 65
third cafe of the guaranty ; and notwithftand-
iiv all this, Holland hath not as yet granted
the fuccours ftipulated ; and many more than
two months have palled without her having
entered into war conjointly with England, as
the treaty requires.
The fecond fpecies of defend ve alliance
which fubiifls between Great Britain and
Holland, is that which was firlt. agreed to, in
the treaty of barrier and fucceffion of October
the 29th, 1709, and again more particularly
ftipulated in another treaty to the fame pur-
pole of January 29th, 171 3: the defign of
this treaty is the guaranty of the Dutch bar-
rier on one part, and the guaranty of th£
firmeft barrier of Britifh liberty, the Pro-
teftant fucceffion, on the other: the imputa-
tions are,* •' that in cafe either mould be at-
" tacked, the other mould furnifh at the re-
" quifition of the party injured, but at his
" own expence, certain fuccours there ex»
" prefTed ; and if the danger ihould be fuch
" as to require a greater force, that he mall be
" obliged to augment his fuccours, and ulti-
" mately to act with all his power in open
" war againft the aggreflbr." I pretend not
* Article xiv. of the treaty of Barrier and Sueceffion of
T.
January 29, 1713,
K te
66 LORD HAWKESBURY
to make any ufe of this treaty in the prefent
cafe; and only mention it to give a fuller
view of the alliances which fubfift between
us. Here, however, I will indulge a wifli,
that the cafe of this guaranty, as far as it re-
lates to the right of the crown of Great Britain,
may never again exift. I always read with
forrow, that there ever was a time when the
unfortunate diffenfions of our people, in a
point where the whole of their happinefs was
concerned, fhould have made it neceflary to
add any other fan&ion to our own laws, than
fuch as our own power can afford them.
Thefe days, however, of fhame now, I hope,
are palled ; more than forty years experience
of the mildefl government mufl have won the
moft obdurate heart to confefs the prefent fe-
licity, and blefs the hand which beftows it.
When, forgetting ancient errors, we are thus
united in defence, the affections of his Ma-
jefly's fubjefts are the happiei! guaranty of
his right.
I come now to the laft fpecies of defend ve
alliance which iubfifts between Great Britain
and Holland. This was concluded at the
Hague the 4 th of January, 1717. To this
treaty France was a party. The intention or
view of it was, " the prefervation of each
" other
ON NEUTRAL NATIONS. 6j
" other reciprocally in the pofTeflion of their
" dominions, as eftablifhed by the treaty of
" Utretcht;" and the ftipulations are, " to
" defend all and each of the articles of the
" raid treaty, as far as they relate to the con-
" trading parties refpectively, or each of
" them in particular; and they guaranty all
•' the kingdoms, provinces, ftates, rights,
" and advantages, which each of the parties
" at the figning of that treaty pofTefTed:" and
in a feparate article all this is confined to
" Europe only." The fuccours ftipulated in
fupport of this guaranty, are much the fame
as thofe mentioned above ; firft, " interpofi-
" tion of good offices," — then, " a certain
" number of forces,"— and laftly, il deck-
<l ration of war." This treaty was renewed
by the quadruple alliance of 171 8, and again
by the acceffion of Holland to the treaty of
Hanover of 1726, and laftof all by the 3d ar-
ticle of the treaty of Aix-la-Chapelle, 1748,
Holland hath by no means executed the
terms of this guaranty, — Minorca, " a pof-
* ' feffion of the crown of England in Europe,
" which fhe enjoyed at the figning cf this
" treaty," hath been attacked; this is one
cafe of the guaranty. By this attack, ** the
*« article of the treaty of Utrecht, by which
K % " that
°8 LORD HAWKESBURY
" that poiTefilon was ceded to England,"
hath been broken ; this is another cafe of
guaranty. I need not again obferve, that
Holland, inconfequenceofthis, hath neither
granted the fuccours, nor declared war, as this
treaty alfo requires.
It will, however, perhaps be objected, "that
" Great Britain was the aggreflbr in the pre-
" fent war, and unlefs fhe had been firit at-
* tacked, the cafe of the guaranties doth not
« exift." True it is, that the treaties which
contain thefe guaranties, are called defenfive
treaties only ; but the words of them, and
particularly of that of 1678, which is the
bafts of all the reft, by no means exprefs the
point clearly in the fenfe of the objection ;
they guaranty in general - all the rights and
" pofTellions" of both parties, againft " all
" kings, princes, republics, and itates ; " fo
that if either " (hall be attacked" or " mo-
" lefted," whether it be " by hoftile aft or
' open war," or "in any other manner
" whatfoever, difturbed in the poiTefiion of
jhis eftates, territories, rights, immum-
" ties, and freedom of commerce;" it then
declares what mall be done in defence of thefe
objeds of the guaranty, by the ally, who is
not at war; but it is no where mentioned, as
neccfTary
ON NEUTRAL NATIONS. 69
neceflary, that the attack of thefe fhould be
the firft injury or attack. Nor doth this loofe
manner of expreffion appear to have been an
omiflion or inaccuracy. They who have
framed thefe guaranties, certainly chofe to
leave this queition without any farther expla-
nation, to that good faith which muff, ulti-
mately decide upon the execution of all con-
tracts made between fovereign Hates. It is
not prefumed they hereby meant, that either
party fhould be obliged to fupport every acl
of violence or injuflice which his ally might
be prompted to commit through views of
intcreit or ambition. Eut, on the other
hand, they were cautious of affording too fre-
quent opportunities to pretend, that the cafe
of the guaranties did not exift, and of eluding
thereby the principal intention of the alliance;
both thefe inconveniencies were equally to be
avoided ; and they wifely thought fit to guard
againft the latter of thefe, no lefs than the
former. They knew that in every war be-
tween civilized nations, each party always
endeavours to throw upon the other, the odi-
um and guilt of the firft act of provocation
and aggreffion, and that the worft of caufes
was never without its excufe. They forefaw
that this aione would unavoidably give fuffi-
cicnt occafion to endlefs cavils and difputes,
whenever
LORD HAWKESBITRY
whenever the infidelity of an ally inclined
him to avail himfelf of them. To have con-
lined therefore the cafe of the guaranty, by a
more minute description of it, and under
clofer reftriclions of form, would have fub-
jecled to flill greater uncertainty, a point,
which, from the nature of the thino- itfelf,
was already too liable to doubt ; they were
fenfible, that the cafes would be infinitely
various, that the motives to felf-defence,
though evidently juft, might not always be
univerfally apparent; that an artful enemy
might difguife the moll: alarming preparations,
and that an injured nation might be necellita-
ted to commit even a preventive hoftility, be-
fore the danger which caufed it could be pub-
licly known. Upon fucri confutations thefe
negeciators wifely thought proper to give the
greatelt latitude to this queftion, -and to leave
it open to a fair and liberal conflruaion; fuch
as might be expected from friends, whofe in-
terelts thefe treaties were fuppofed to have for
ever united, and fuch on the prefent occafion
Great Britain hath a right to demand.
If, however, we fhould, for the prefent,
wave this interpretation, and allow the trea-
ties to have all the meaning, which they
who make this objection require, the evidence
of
ON NEUTRAL NATIONS. 71
of facts will fufficicntly prove, that France
was the aggrcflbr in the prefent war. If we
look to America, the prefent war there is little
more than a continuation of the laft; repeated
ufurpations of the pofieffions of Great Britain
have been there the conftant employment of
France, almoft from the hour in which the
treaty of Aix was figned ; and thefe were at
laft followed by an avowed military attack
upon a fort belonging to the crown of Great
Britain, by regular troops, acting under a
commiffion from the court of France. If we
confider America as having no concern in the
prefent queftion, the fame ambitious power
will alfo be found to have been the a^jrreffor
in the European war; France early manifefted
herhoflile intentions in Europe; in 1753, in
direct oppofition to the exprefs rripulations * of
three folemn treaties flic bepan to reftore the
port of Dunkirk ; and Holland then conii-
dered this action in fuch a light as induced
her, in conjunction with the Britifn govern-
ment, to prefent a memorial againft it.
France alfo gave another proof of her hoilile in-
tentions by her deiigsi to invade Great Britain,
avowed by her miniflers in every court in Eu-
* Ninth article of the treaty of Utrecht ; fourth article of
the treaty of the Hague, 1 7 1 7 ; and feventeenth article of the
treaty oi Aix-Ia-Chapelie.
4 rope,
7 2 iORD HAWKESBURY
rope, and fufficiently manifefted by the pre-
parations which fhe publicly made for it.
And thefe were likewise followed by an open
attack upon an European ifland belonging to
Great Britain, an attack upon the ifland of
Minorca. It feems, indeed, allowed, by the
opinion of the parties concerned, that by the
attack of Minorca, the European war was
firir. completely opened; notwithstanding all
which had palled elfewhere, propofals for an
accommodation of the American difputcs were
never difcontinued, nor the war conlidered as
univerfal, till that ifland was abfolutely inva-
ded. As for the captures at fea, the avowed
caufe upon which thefe were taken, fuffici-
ently evince that they undoubtedly belong to
the American war ; they were made in confe-
quence of the hostilities firit commenced in
America, and were feized as reprifals, for
the injuries there committed upon the property
of the people of England ; as fuch they were
always declared to be taken by the ministers
of that kingdom, and the value of them to be
on that account retained ;* and upon applica-
tion made to parliament foon after the feizure
of them, the legiflature exprefsly refilled to
distribute them among the captors, as they
* See the Brltiih declaration of war.
have
ON NEUTRAL NATIONS. 73
have done in refpect to all other prizes, which
have been made fince the war of Europe be-
gan. But even if this diftinction, which puts
the queftion out of all doubt, had not been
made by the minifters of England, thefe cap-
tures furely can never be looked upon but as a
part of the American war ; it will not cer-
tainly be denied, that fuch a war may extend
itfelf to the ocean, without having changed
either its nature or denomination ; what but
captures at fea have been the great conftituent
part of every American war before the pre-
fent ; as a war upon the American continent
muft always be fupported by fuccours fent
from Europe, it is abfurd to fuppofe that
either party in this cafe would not endea-
vour, as far as he was able, to take or deftroy
entirely the fhipping of his enemy, by which
alone thofe fuccours could be conveyed.
Countries which have very little internal force
within themfelves, cannot be defended but by
fuch troops as arethrown into them; to defeat,
therefore, the only means by which this re-
lief can be effected, muft be efteemed as ma-
terial a part of fuch a war, as the means to
inveft a fortrefs are a material part of a iiege.
But after all, thefe captures were fubfequent
to the reitoration of the port of Dunkirk, or
L the
74 LORD HAWKESBURY
the * preparations to invade Great Britain ;
and thefe can never be confidered but as un-
doubted acls of aggreiTion ; it is not the firft
military action alone, but hoflilc preparations,
where the defign is apparent,f the ufurpation
of another's rights, or the denial of juftice,
which in the opinion of the ableft writers de-
nominate the aggreffor. The object of the
defenfive treaties are " rights, immunities,
4 and liberties," no lefs than " towns or
44 territories," and " the difturbance" or
44 moleftation" of the former, as well as 44 the
44 attack" of the latter, are exprefsly declared
to be cafes within the guarantees.
A more fubtle objection will frill perhaps
be made to what has been faid. It will be
urged, " that though France was theaggeflbr
44 in Europe, yet that it was only in confe-
44 quence of the hoftilities commenced before
* Undoubted intelligence was received of this before the
27th Auguft, 1755, when general orders were given to bring
in French veiTcls ; the Lys and the Alcide were taken on the
coaft of America, and are therefore in every light a part of
that war.
f Quanqu am et aliquando favor defenfionis ad illius par-
ibus liar, qui prior arma alteri infert, ut fiquis hoftem inva-
fionttjam cer um, per celeritatem opprefferit, dum ille adhuc
in adparandu bello cit occupatus. Fuffendorf de Jure Nat. &c.
lab. 8. cap. 6. fee. 3.
44 in
ON NEUTRAL NATIONS. 7$
11 in America; with which it is determined
" by treaties, that Holland is to have no con-
" cern, and that the rights contefted at pre-
" lent are not contained in the gllaranties. ,, —
If the reafoning on which this objection is
founded was admitted, it would alone be fuffi-
cient to deftroy the effects of every guaranty,
and to extinguilh that confidence which na-
tions mutually place in each other on the
faith of defenlive alliances : it points out to
the enemy a certain method of avoiding the
inconvenience of fuch an alliance : it ihevvs
him where he ought to begin his attack ; let
only the firft effort be made upon fome place
not included in the guaranty, and after that
he may purfue his views againft the very ob-
ject without any appreheniions of the confe-
quence ; let France firft attack fome little
fpot belonging to Holland in America, and
her barrier would be no longer guaranteed :
To argue in this manner would be to trifle
with the molt, folemn engagements. The pro-
per object of guarantees is the prefervation of
fome particular country in the poiTeliion of
fome particular power. The treaties above-
mentioned promife the defence of the domi-
nions of each party in Europe, fimply and
abfolutely, whenever they are " attacked" or
" molefted." If in the prefent war the firft
L 2 attack
7$ LORD HAWKESBURY
attack was made out of Europe, it is manifeft
that long ago an attack hath alfo been made
in Europe : and that is beyond a doubt the
cafe of thefe guarantees.
Let us try, however, if we cannot difcover
what hath once been the opinion of Holland
on a point of this nature. — It hath already
been obferved, that the defenfive alliance be-
tween England and Holland of 1678 is but a
copy of the twelve firft articles of the French
treaty of 1662 ; foon after Holland had con-
cluded this laft alliance with France fhe be-
came engaged in a war with England ; the
attack then firft began, as in the preient cafe,
out of Europe, on the coaft of Guinea j and
the eaufe of the War was alfo the fame, a dis-
puted right to certain pofTeffions out of the
bounds of Europe, fome in Africa, and others
in the Eaft Indies : Hoftilities having conti-
nued for fome time in thofe parts, they after-
wards commenced alfo in Europe; immedi-
ately upon this Holland declared, that the
cafe of that guaranty did exift, and demanded
the fuccours which were itipulated. I need
not produce the memorials of their minifters
prove this ; hiftory fufficiently informs us,
France acknowledged the claim, granted
, and entered even into open war
in
ON NEUTRAL NATIONS. 77
in the defence of her ally : Here then we have
the fentiments of Holland on the fame article
in a cafe minutely parallel : France alfo pleads
in favour of the fi ne opinion, though her
conceflion in this refped: checked at that time
her youthful monarch in the firft eilay of his
ambition, delayed for feveral months his en-
trance into the Spanim provinces, and brought
on him the enmity of England.
If any doubt can yet remain about the
meaning and intent of this article, it may far-
ther be proved from the opinion of the Mi-
nifter who made it : — Immediately after Hol-
land was engaged in the war above-mention-
ed, fhe fent to the Court of France Moniieur
Van Beuningen to prefs the execution of that
guaranty, which he had himfelf concluded.
It is remarkable, that in his converfations on
this fubjedl with Monfieur de Lionne, the
fame objection was debated againfl which I
now contend : Van Beuningen treated it with
great contempt ; he afked Monfieur de
Lionne,* if the pretence of the European war
being only a continuation of that of Africa,
was what the Engliiri alone alledged to deprive.
* Lettre de M. Van Beuningen a M. De Witt, December
36, 1664.
them
?Z LORD HAWKESBURY
them of the fuccours of France, or whether
the French Minifter laid any ftrefs upon it as
an argument at all to be fupported. De Lionne
at firft gave him to undcrftand that he thought
it of fome weight, «' A quoi, je repondis,"
fays Van Beuningen, •« que je ne croyis pas,
" que cette objection fut feneufe, puis qu' ll
" dit alors, que celui, qui a commence la
" guerre en Guinnee, & de la en Europe,
" n'a pas commence de guerre en Europe;
" 6c ne pouvoit paiTer pour troubler la paix
" & le commerce en Europe, parce qu* il
" 1'avoit trouble ailleurs auparavant :" and
then he adds, " Ce, que j'ajoutai a ce raifon-
" nement pour refuter cette objection, refta
" fans replique." This was the fame Mon-
ileur Van Beuningen who negotiated our de-
fenfive treaty of 1678 ; he made the terms of
both thefe guaranties precifely alike ; and we
before (hewed that our common cafe at pre-
fent is exactly the fame as this on which his
opinion hath been produced.
If, however, the words of thefe treaties had
been againlt the interpretation which hath
been given them, I might juftly have appeal-
ed to the fpirit of them, as alone a fuificient
foundation on which to build my opinion:
The whole delign of all thefe our alliances
with
ON NEUTRAL NATIONS. 79
with Holland is to form a barrier againd the
power of thofe mighty kingdoms, whofe am-
bition might otherwife induce them to deflroy
the independency of Europe : They are, in
fact, a regular continuation of that policy
which gave birth to the Triple Alliance, when
the dangerous fpirit of the French councils
firfr began to appear. To anfwer this great
end, they guaranty the pofTeiiions of thofe two
maritime countries, who, from their wealth,
their internal ftrength, and their incapacity of
having any ambitious views themf elves, are
the beft fecurity againit the defigns of others :
But as the obligations of thefe guaranties are
too confiderable to be made ufe of on trifling
occafions, for this purpofe the contracting
parties have made one exception : The rights
of the European kingdoms in the diftant parts
of the world, and particularly in America,
are very uncertain, and the caufe of frequent
diffenfions, and it is well known that wars
have there fub filled- for many years between
the trading fubjecls and commercial compa-
nies of the feveral nations, while the mother
countries have lived, if not in friendlhip, at
leafl in peace; this then is the cafe particu-
larly excepted from the guaranty ; but this
exception mult always be fo interpreted as to
be made coniiflent with the principal inten-
3 tion
80 LORD HAWKESBURT
tion of the alliance : — If fome great country
out of Europe fhould become of fo much im-
portance, that for the interefl of Europe it
ought to remain in the hands of the prefent
pofTefTors ; if the fame great diflurber of man-
kind, after many fruitlefs attempts in his own
neighbourhood, fhould now turn his thoughts
another way, and fhould endeavour, by dif-
tant diverficns, to enfeeble that power on
whofe confutation the fafety of the public
very much depends, and to deprive her of the
fources of her wealth, which fhe hath always
fo largely expended in fupport of the com-
mon caufe, would a generous friend, who at-
tends to the fpirit of his engagements, fay,
that the cafe of the guaranty did not then exifi ?
and, when the reafon of the exception is va-
nillic J, would he urge the pretence of it as
an excufe for giving up the principal point
on which the alliance was conftructed ?—
But if to this diilant attempt the enemy fhould
add an open and avowed war in Europe,
fhould threaten the mother country with in-
vasion, attack her fortreffes, and take occafion
from thence to fpread his armies over the con-
tinent, ihaJl this pretended exception ftill be
urged, when the literal cafe of guaranty is
now become apparent ? On this weak foun-
dation mail a wife people, under fuch obliga-
tions,
ON NEUTRAL NATIONS. 8l'
tions, not only refufe to grant their afTiirance,
but not permit their forfaken ally to make a
full life of his power? holding back in this
manner his arm, when they will not ftretch
forth their own, and claiming from the very
contracts they have broken that privilege
which they turn to the deftryction of her ally.
The abfurdity is mocking; fuch, however, is
the prefent cafe of England : Unhappy in her
friendihips ! She hath neither that afTifcance
from allies which they are bound by treaty to
eive her, neither is ibe allowed to exert even
her own force, though abandoned to her own
defence.
In this manner the point might be deter-
mined on a general view of thefe treaties ;
and this alone would be fufficient j — but it
may be further proved that the article on
which Holland founds her right of protecting
the property of the enemy, as far as it relates
to the prefent cafe, hath been particularly re-
pealed long ago. The treaty in which this
article was laft inferted was concluded the i ft
of December, 1674: Four years after this,
in 1678, was paft that defenhve alliance, in
which it was ftipulated between Holland and
England, " that if either party mould be at-
*' tacked in Europe, the other mould declare
M "'war
S2 LORD HAWKESBURY
44 war againft the aggrefibr two months after
44 he is required:" By this treaty, therefore,
two months after England is attacked by
France in Europe, Holland muft become the
enemy of the latter as well as England ; and
to be the enemy of another means certainly to
diftrefs his trade and feize his property, not
to preferve the former and protect the latter.
If this therefore is the right interpretation of
the word enemy, this article directly and posi-
tively declares, that two months after France
has attacked the European poiTeflions of Eng-
land, the mips of Holland mail not have a
right to proteel; the effeds of the French:
this therefore is derogatory to the 8th article
of the marine treaty of 1678, and as being
pofterior to it, abfolutely repeals it. In all
laws (and fuch are treaties in refpect to na-
tions) the lait. enacted always fets afide the
former, fo far as they difagree. Cicero *
fays, it ought to be coniidered, " Utra Lex
44 pofterius fit lata, nam poflrema quacque
44 graviflima."
But this maxim is not neceflary on the pre-
lent occafion, fince the fame article is a-ain
repealed by two fubfequcnt treaties in words
* Cicero de Inventionc.
as
ON NEUTRAL NATIONS. $$
as pofitive as can be ufed ; for in that
treaty,* by which all the old alliances be-
tween the maritime powers were renewed im-
mediately after the revolution ; and alfo in
that of February 6, 1716, by which they
were again renewed upon the accefTion of the
prefent family to the throne, the treaties of
1674 and 167S are exprefsly mentioned, and
made of both a part; and it is there declared,
that " they mall have the fame force and cf-
" feci, as if they had been inferred in thefe
" treaties verbatim; that is to fay, fo far as
" they do not differ, or are contrary to one
" another ; yet fo as whatever hath been efta-
" blifhed by any later treaty fhall be under-
" flood and performed in the fenfe therein
'" exprefTed, without any regard had to any
** former treaty:" Can it then be doubted
that the articles above mentioned are " con-
" trary to one another," as much as peace
and war, as much as friendfhip and enmity ?
Is not the defenfive alliance of 1678, " a
*' later treaty" than the marine regulation of
1 674 ? and ought not therefore, according to
the words of the renewal, " the article of the
<l latter to be performed in the fenfe therein
* Treaty of friendfhip and alliance between England and
Holland, Auguft, 1689.
M 2 " expref-
84 LORD HAWKESBURY
" expreffed, without any regard being had to
" the former." Since then, the year 1689,
this article, as far as it relates to the prefent
cafe, hath been twice repealed. — Thus much,
therefore, may fuffice to Ihew, that the right
of Holland in this refpect is extinct.
There remains one more claim to be confi-
dcred ; a claim which, if report had not aver-
red that fuch a one had been formally offer-
ed, would bv no means defervc an anfwer.
The northern crowns, whole commercial
treaties with Great Britain contain not any
article which gives them exprefsly a right to
carry the property of the enemy, have endea-
voured to deduce this right from a general fti-
pulation, which is to be found in fome of
their treaties, declaring, that " they mail be
" treated in like manner as the molt favour-
" ed nation." If' Great Britain therefore
hath granted by treaty to any other nation the
right, in time of war, of becoming the carrier
of her enemies, they think they are juftly en-
titled to be admitted to the fame favour. Un-
der this pretence they claim this privilege, as
ltipulated in the Dutch treaty of 1674; but
it has been proved alfo that the treaty of 1674,
as far as it relates to the prefent cafe, is no
longer in force j if the inference therefore was
other wife
ON NEUTRAL NATIONS. $5,
othcrwife juft, the foundation being thus dc-
flroycd, whatever is built upon it muftne-
ceffarily fall with it. But this flipulation of
equal favour, from the very nature of it, can
relate to nothing elfe but fuch advantages as
,may be granted to foreign traders by the mu-
nicipal laws or ordinances of each country ;
fuch as equality of cuftoms, exemption from
the rigour of ancient laws, which would af-
fed them as aliens, and the privileges of
judges-confervators and confuls ; thefe are the
proper objects of favour, and becaufe the
whole detail of thefe could nsrt eafily be ioc-
cified in a treaty, for this reafon they are
thus comprehended in a general article, If
the rights conceded by treaties were the ob-
ieds of this flipulation, to what purpofe were
any other articles added, fince this would
contain them all, and would alone include
every privilege which pair or future treaties
could afibrd them ? and can it be fuppofed,
that any nation mentioned in this manner to
preclude itfelf from the power of exchanging,
by treaty, with fome particular country, any
great right of its own in return ior an equal
advantage ? or that this right mould, in inch
cafe, be" univerfaliy forfeited to the people of
every other nation, who would thus reap the
benefit without having been parties to the bar-
gain ?
86 LORD HAWKESBUR?
gain ? But this point is made clear beyond A
doubt, from the words of the treaties them-
ielves, where this general equality is ftipu-
lated*
In the treaty of commerce between Great
Britain and Sweden, of the 21ft of O&ober,
1661, (the principal one at prefent in force
between the two countries) the fourth article,
which contains this ftipulation, plainly makes
it refer to fuch favours only, as may be en-
joyed in matters of traffic within their re-
fpe&ive dominions. The treatment which
the contracting parties mall there give to the
fubjeefs of each other is the principal purport of
the article; it fpecifies many particulars, and
among the reft it ftipulates, that the people
of both countries mall have 4t liberty to im-
" port and export their goods at difcretion,
■*' the due cuftoms being always paid, and
44 the laws and ordinances of both kingdoms
44 univerfally obferved ;" and then, mannetlly
connecting this with what follows, it adds,
" which things being pre-fuppofed, they fhall
44 hold fuch ample privileges, exemptions,
44 liberties,, and immunities, as any foreigner
44 what foever doth or (hall enjoy ;" the gene-
ral equality therefore here ftipulated, plainly
relates to thofe places alone where the cui-
* turns
ON NEUTRAL NATIONS. 87
toms of thefe kingdoms are to be duly paid,
and the laws and ordinances of them are in
force, and that is only within their refpedive
dominions. The privileges here conceded
cannot poflibly have any larger extent ; and
to confine the fenfe of the article frill more
flrongly to the explanation which hath now
been given of it, the words, " in the domi-
" nions and kingdoms of each other," are
twice repeated, to determine clearly where
that trade muft be carried on, to which thi^
favour is meant only to be granted ; if, how-
ever, any doubt could yet remain in refpect
to this interpretation, they who made the
treaty have given the ftrongeft proof, that
under this article they never intended to im-
ply a right of carrying the property of an
enemy, fince, by the i 2th article of this fame
treaty, an attempt of that nature is pronounced
to be " a heinous crime," and the ftrongeft
provifions are made to prevent it. In
the treaty of commerce between Great Bri-
tain and Ruffia, of the 2d of December,
1734, this ftipulation of equal favour is in-
ferred in few. ml articles j but it appears in
every one of them, to relate to nothing
elfe, but to the particular privileges which
the fubjects of each were to enjoy while
they were trading within die dominions of
the
$S LORD HAWKESBURY
the other. In the fecond article this equality
is cxprefsly faid to be granted " throughout
<l the dominions of the contracting parties
*' in Europe." In the third it relates only to
'* the favourable reception of the fubjects of
" each other in the ports of their refpective
" countries.'* In the 14th it grants only an
equal freedom to import " fuch merchandife
" into each other's dominions as is allowed
" to the fubjects of any other country ;" and
in the 28th it refers only to the " re/peel and
" treatment which is to be given to the fub-
*' je&s of one party who come into the do-
" minions of the other." In the treaty of
commerce between Great Britain and Den-
mark, of the nth of July, 1670, the lateit
at prefent in force between the two countries,
the llipulation of equal favour is inferted in
the 4: th article; it is there faid, M If the
" Hollanders, or any other nation, hath, or
" ihall obtain from his Majefly of Great
' : Britain, any better articles, agreements,
' exemptions, or privileges, than what are
" contained in this treaty, the fame and like
<; privileges mall be granted to the kino; of
: Denmark and Ins fubjects alio, in mod: full
: and effectual manner." That thefe privi-
, s relate only to cuftoms and other advan-
tages of the lame kind, might be proved
from
ON NEOTRAL NATIONS. 89
from' the whole tenor of this treaty ; but it
will be fufficient to fhew that the right of
carrying the property of the enemy cannot
poilibly be intended by it. Holland had ob-
tained this right in 1668, two years before
the Danifh treaty was concluded ; if therefore
the ftipulation of equal favour contained in
the 40th article could extend to an advantage
of that nature, the merchants of Denmark
would have been immediately entitled to it
from the hour the treaty was figned : the mi-
nifies of that kingdom could not be ignorant
of this ; and yet in the 20th article they have
pofitively forbid the exertion of any fuch
right. They have even exprefTed the greateft
apprehenfion, left any liberty conceded by
this treaty lhould be interpreted to that pur-
pofe ; " left fuch freedom of navigation," fays
the article, " or palTage of the one ally, and
" his fubjecls and people during the war,
' "< which the other may have by fea or land
" with any other country, may be to the
*' prejudice of the other ally, and that goods
" and merchandifes belonging to the enemy
*' may be fraudulently concealed under the
<< colour of being in amity; for preventing
" fraud, and taking away all fufpicion, it is
" thought fit the fhijps, goods, and men, be-
*' loncn'no- to the other ally, in their paftage
N and
9<3 LORD HAWKESBURt
" and voyage be furnifhed with letters of
" pafTport;" and in the pafTport the king ot
Denmark hath bound himfelf to declare that
the fhip and goods with which it is laden,
" belong to his fubje&s, or to others having
" an intereft therein, who are the fubjecls of
•■• neutral powers;" and that •« they do not
* ' appertain to either of the parties now en-
" gaged in war." Nothing more, I hope,
need be faid, to refute this weakefr. pretence
to a right of carrying freely the property of
the enemies of Great Britain.
As there is no article, therefore, which
grants a right of this nature at prcfent in force
in any of thefe commercial treaties, it is un-
neceffary to mew that moft of the captures
which England hath made of the veffels of
neutral nations, ought not properly to be re-
ferred to it, but may be julHfied by another
part of the faid treaties, where it is declared,*
*' that all goods are contraband, which are
" carried to places blockaded or invefted."
The debate here would turn on the real ex-
igence of the blockade. To evince this, I
• Art. Ixi. Treaty of 1674, between Great Britain and
Holland. The fame article is found in every other commer-
cial treaty.
might
ON NEUTRAL NATIONS. 91
fnio-ht fhew what opinion the Dutch had of a
naval blockade in 1630,* when they pre-
tended to have blocked up all the coaff, of
Flanders, and openly avowed that they would
take and condemn all neutral mips which had
the mod diftant appearance of being bound to
the ports of that country. I might alio mew
their opinion of the fame in 1689, when they
declared -f publicly to the neutral nations,
that they defigned to block up all the ports of
France. I might obferve, that as the poflef-
iion of the principal avenues to a townconfti-
tutcs a blockade by land ; and that it is not
neceflary, for this purpofe, to have made a
complete line of circumvallation ; fo by keep-
ing great fquadrons of mips of war cruiiing
conftantly before the ports of an enemy, by
deftroying in this manner totally his trade,
and preventing his fleets of war from ever
venturing out, except now and then a fhip or
two by ftealth, a blockade ought certainly to
be confklered as completely eftabli fried by fea.
I might farther prove the caufe from its ef-
fects, and fhew that the American iflands at
leaf* have experienced all the confequences of
fuch a fituation j where want of communica-
tion with the mother country, diflrefs, and
* Convention between England and Holland, ,1689,
f Phcajrt of June 26, 1630.
N 2 (limine
9 1 LORD HAWKESBURY
famine, fully declare that they have been in-
veiled. But as this topic may not perhaps re-
late to the cafe of every capture, and depends
on the particular ftate of a variety of facls, I
fhall not dwell any longer upon it at prefent.
The queition hath here, I hope, fufficiently
been argued on principles which are plain and
com prehen five, on thofe equitable regulations
which nature hath eftablifhed among nations,
and on thofe particular contracts with which
communities have bound themfelves. And
as I before endeavoured to prove, that neutral
nations had no right by the former of thefe
obligations, to protect the property of the
enemy ; fo now it hath been fhewn by what
policy the Dutch firft obtained this privilege;
by what treaties it hath fince been taken from
them ; and by what conducl they have lately
forfeited whatever might remain of this right.
It hath alfo, I flatter myfelf, appeared with
how little reafon other neutral powers, under
colour of any article in their treaties of com-
merce, have claimed the enjoyment of fuch a
right. Upon the whole, therefore, I will
now beg permiflion to conclude, that the
naval power of England hath been conducted,
during the prefent war, with no lefs juftice
than fpirit ; that the faith of our fovereign is
as fpotlefs as his courage ; and that the ho-
nour of the country is unblemifTied.
The
ON NEUTRAL NATIONS. 93
The bafis of juft complaint being thus re*
moved, thole idle clamours which have been
founded upon it, by no means merit our at-
tention ; to charge England with ambition,
mull appear fo abfurd to all who underftand
the nature of her government, that at the bar
of reafon it ought to be treated rather as ca-
lumny than accufation. Poffefled of every
blefling which civil government can pro-
duce, the is open to no temptation with
which ambition might feduce her ; purfuits
of that kind might pollibly operate to the
deftru&ion of her constitution, and her fyftem
of happinefs might be fubverted by the aug-
mentation of her power. It muff, always be
the intereft. of England to protect the juft
rights of commerce, and to fupport thofe
principles which promote the labours of man-
kind, iince ihe herfelf can only be great from
the virtuous induftry of her people. To ob-
tain the largell: extent from the exertion ot
this, is the point to which all her policy
mould tend ; and if foriaking thefe maxims,
ihe mould feek to enlarge her power by any
acts of ambitious lnjuftice, may the then,
for the welfare of the human race, ceafe to
be any longer great and powerful ! Her courts
of maritime jurifdiciion are more wilely cal-
culated to prefcrve the freedom of navigation,
I than
94 LORD HAWKESBURY
than thofe of any other country ; as they are
not fubjetf: to the controul of her executive
power, thepaflions of her princes or minifters
can never influence the decifions of them ; and
foreign traders have in favour of their property
all fecurity which the nature of the thins;
wiii admit, the confeiences of wife men de-
termining upon matters of right, whom the
threats of power cannot affecl, and who are
fet free, as far as poflible, from all bias and
partiality ; and to the honour of the learned
perfons who at prefent perfide in thofe courts,
one impartial teftimony lhall here be produced
in their favour. Though treaties have ex,
prefsly pointed out to all who may there think
themfelves injured, a regular method of re-
drefs before a fuperior tribunal, the mer-
chants and freighters of Holland have never
ventured as yet to bring to a hearing, or even
to put into a way o{ trial any one of the appeals
which they have made from the determina-
tions of thefe judges, giving thereby caufe to
prcfume that they made them with no other
intention but to delay the execution of the
ientences ; and confeious of the invalidity of
their rights, they have in this manner plainly
contorted the real equity of thofe decifions
which have been patted upon them. That
amid the confufions of war, fome irrco-ulari-
to
tiei>
ON NEUTRAL NATIONS. C f \
tics may be committed, is a misfortune tuo
true to be denied, but which the circum-*
itances of the cafe render impoflible to be
wholly prevented. They are thc- ; tofffe-
quences ot all wars, not alone of the prefent.
To deitroy the trade of t the enemy, it is ne-
ceffary to employ privateers, which cannot
always be kept under thole ilrict rules to
which a more regular force is iubject ; thefe
maritime hulTars may fometimes exceed their
commiilions, and be guilty of disorders, the
authors of which cannot always be punilhed,
becaufe the nature of the fad; renders the dis-
covery of them difficult. But can the crimes
of thefe be imputed to miniflers, whole ears
are always open to complaints, and who la-
bour, as much as poffiblc, to redrefs them ?
The privateers of England are already made
iubject to every reftraint, which naval policy
hath as yet invented to force them to conform
to their duty. If, however, thefe are found
infufficient, and it any more fuccefsful means
can be dilcovered to prevent every unjuit de-
predation, by which the evils ot war may be
diminifhed, confident I am, that Great Bri-
tain will be the firit to adopt them ; let them
be confident only with the uie of her naval
power, and conformable to jultice, the Bn-
tifli legiilature will enact fuch into a law, and
9^ LORD ftAWKESfeuRY
the Britifli rriiniury will attend moft fteadily
to the execution of them.
Utit after all, the wifeft regulations on oc-
cafions like this cannot be expected to anfvver
fully the end propofed ; the fyftem of huma-
nity is no where perfect, but in refpect to na*
tions its weaknefs is moft apparent ; the fofter
ties of natural affection among thefe have
little effect, and no coercive bands of power
exift to regulate and controul their paflions ;
it is the virtue of government alone, oik
which the general profperity depends, and
treaties have no better fan ct ion than what that
virtue can give them. Thefe were the prin-
ciples from which I flrft commenced my dif-
courfe ; by thefe the rulers of communities
are inftructed to amend, as far as pofiible, by
their prudence, what nature hath left impeiv
feet. Ambition or avarice will augment
the evil ; moderation may prevent it. Every
little inconvenience mull: be patiently fuffered
where a fuperior right makes, it neceflary.
The love of our country mould never induce
us to act contrary to that love which we
ought to bear to mankind, fincc the interefrs
of both, if they are- rightly purfued, will
always be found confident with each other.
i i N i s.
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