Df California Regional Facility 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. *794« 4ca^//&* **~ /Z^yfi<^S?4^ ^^^ &~rfr^L.c^ CJL^ 33P* URL SRC* ■5% 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 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 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 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 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. University ot <*» l °'7 , ' a v FAC , UTY SOUTHERN BEGIONALUBRARV^-IMe from v^toMtj*^orrowed. UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 150 610 4