UPON THE VISITATION OF NEUTRAL VESSELS U N D E R CONVOY; OR, AN IMPARTIAL EXAMINATION OP A J U D G M E N T PRONOl'XCFn F,Y THE ENGLISH COUR']" OF ADrvIIRALTY. THE IITH JUNE, I799, IX THF CASK O: TTiK SIVEDI S H CON TOY; ">.\'ITH SOME ADDITIONS AND C0IIRECTI0N3. BY MR. j. F. W.'SCHLEGEL, Dciftar ai'.J Professor of Easv in t'-e IJniv-, rs;ty of Copenhageii, ExtnorJs- nary Assessor ot tf.e High Court of Ji^stice, Member of Jcveral l.eari.ed Socii-'ti-iS. TRANSLATED FROM THE DANISH, rXDLll THE IXSPECXION OF TIIF. AUTHOR, BY MR. DE JUGE, French Instrudor at the Ara.lcmv cf diets oi Marine at Copenhagen ; ar.j thence into tin^l.3!-, L O N D G N : PRINTr.U FOR. J. DEBMETT, OPPOSITE BURLINGTON HOUSE. PICCADILLY. 8 I h ( ■' i Frinrcd hy B. M'Millan, Row- Street, Cover.t-Ganlen* CPON THE VISITATION OF NEUTRAL VESSELS UNDER CONVOY. F the evils inseparable from every war, so far as they respe6l Neutral States, ^ are more sensibly felt in maritime than in ti continental wars, it is because the same ^ principles are not followed in the one as in ^ the other, or rather, because there is not in Europe a Maritime Law of Nations perfectly acknowledged, and that the ob- servance of that which does exist, has been ' always rendered uncertain, by the decided preponderance of some powers, and fre- ^ quently of one alone ; while, on the con- § trary, the general principles adopted in $ continental wars, are, in some manner, B sane- [ 4 ] sanctioned, not only by the common in- terest, but, further, by the balance of power which is maintained between the great continental states, such as Austria, France, Russia, and Prussia. For a long time past, acls of violence, exercised in continental wars, against un- armed individuals, though the Subjects of an enemy^s country, the confiscation of their property, and obstructions to their commercial communications, have been considered unjust, while it is held perfeclly legal, in maritime wars, to take the mer- chant-vessels belonging to an enemy's country, seize their cargoes, and thus ruin peaceable and industrious citizens, perhaps for ever. In the war by land, all neutral property is inviola!)le and sacred ; but in maritime war, the belligerent powers think themselves authorized to suiier their ships of war, or their privc'iteers, to take the merchant-vessels of neutral states ; some- times under the pretext, that the ship^ or its cargo, though apparently neutral, really beloi:igs to the enemy ; at other times, ur.dcr pretence that it has concealed on board. [ 5 ] beard, merchandize de contrehande de guerre^ (contraband in warj ; after which, the legahty of the capture is examined and de- cided upon by a Court of xAdmiralty, esta- bhshed by the power which has made the capture, and which generally follows in its judgment, no other rules than those which the interest and the policy of that power dictates. As soon as piracies, to which maritime commerce was so long exposed, had ac- quired an appearance of legality, by means o{ Letters of Marque, by which Sovereigns authorized them, in time of war, under pretence of reprisals, the maritime states endeavoured to prevent, by laws and ordi- nances, the great loss vv'ith which the com- merce of neutrals was threatened. The free states of Italy, and some cities of a\rragon and Catalonia, v^diich Vvcre then almost in the exclusive possession of the maritime commierce in the South of Eu- rope, as the Hanse Towns vere in the North, approved, and successively adopted m the 1 2th and 13th centuries, the famous jmaritimie law, called // Consolato del Marc, B 2 by [ 6 ] by which it was estabhshed, in relation to the right of cruize rs and privateers, that a neutral cargo should be safe on board an enemy's ship ; but that enemy's property found on board a neutral vessel, should be considered as lawful prize, provided always, the captor should pay to the neu- tral owner the freight agreed on *. In the 14th and 15th centuries, almost all the treaties were made according to this principle. But as innumerable chica- neries arose, vvhen the property of the cargo came to be decided upon, particu- larly from the time merchants had aban- doned the old custom of accompanying their merchandize; and as, from that time, the cargo frequently belonged to different owners, the merchants engaged in mari- time trade, sought another general regula- * II Consolato del Mare, cliap. 273. The edition in 4to. of this law, preserved in 1704, by Abraham Westerween, Advocate at Amsterdam, is considered the best. Besides the translation of it in Italu.n, \vc ah;o find one in Dutch, and several critical remarks, which correct the old Italian translation, after t!ie ori^nna!, com- posed in the old Catalonian, or Limousin, Linc;uage. tion. [ 7 ] tion, tending more effcclually to secure them from the ill-treatment of privateers. It was in consequence determined, that no regard should be paid any longer to tlic proprietor of the cargo, but of the vessel ; that a neutral vessel should be no longer liable to detention, because it had cnemv's property on board, and slill less because it might be destined lor some enemy's, port, saving al\N'ays the case of its being laden with "what is called goods co-ntrebcmac d-: guerre (contraband in war) ; and that, on the contrary, neutral property on board an enemy's ship should be liable to coii- iiscation. The Dutch princii)ally eiFeiSled this change in the Maritime Law ot Na- tions, because, being then tlie carriers ot all Europe, they felt themsches more par- ticularly interested in its adoption. Most treaties of commerce, concluded since the middle of the last century until nov.% arc founded upon this principle, which, v.ithin tliese late years, has been gcnerdlly ex- pressed in these terms : he piVuillon neutre couvre la marchandise — the neutral ilas: co- vers the careo. How- [ 8 1 However, the navigation of neutrals did not find itself by this means perfectly se- cure. At the beginning of a war, the belligerent powers allowed themselves to give instructions to their commanders, by which they revived, against the powders with wliom they had no particular treaty establishing the contrary, the old law, which rendered lawful prize, an enemy's property found on board neutral vessels. Thcv further aggravated it, by depriving the neutral owner not only of the freight, but also of the ship. Louis the XlVth, and after his example, Spain, published in peace-time, ordinr.nces restoring to this old law its full force, and suppressing even tlic modifications which made part of it. Tliey exercised against the powers with whom they had contrary treaties en "his ir^ulrjcct, several acts of injustice, to \. hicli the arbitrary extension given by ihcm to the ex[)ression c out r eh and:, dc guerre^ (contraband in Avar), atrorded an ample caricr. They even, sometimes, laid aside l!;c cx-^rress provision or treaties, under ilie pretence that it was in contradiction v'th t:]c n.aritime ordinances and regu- lations [ 9 ] lations for privateers, as if the separate xiS: of one power could deprive a treaty of its validity. No power, however, intrenched so fcr upon the liberty of the commerce of neutrals as England, presuming upon the progres- sive augmentation of its maritime strength, since the reign of Charles II. The trade of the powers of the North was particularly the object of its pursuits; because they fur- nished France, its avowed enemy, with the necessarv materials for the buildinjr of ships, perhaps also (according to the opi- nion of several writers*) because this trade excited the jealousy of a state which seems to aspire to exclusive commerce. In the year 1689 the pretensions of England were even carried so far, that it ■^ This is the opinion of Steck, in the hook entitle;! Lssavs upon divers Subjefls relative to isavigail'jn and Com - mercc during IVar, Berlin, 1794, p- ill. Of BusCH iihei die (lurch den jetzigen Krieg veranlaste Zcrruttung dcs Sechandcls, Hamburg, 1793, P- 7^ — ^^' ^3^ — '^33- ^^ Martens Versuch iiber Caper feindliche Xehmungcn und insonderhe't Widernehmungcn. Gouingcn, 1793, p. 36. souglir [ -o ] sought to prevent all commerce between fortion countries and France, and oblio-ed the States-General of the United Provinces to make the same declaration; but a treaty concluded between Denmark: and Sweden, for maaintaining, by way of reprisals, the liberty of their commerce, induced these povrers to adopt more moderate measures. During the war of the Succession of Spain, England afforded no just ground of complaint. Its trade with France conti- nued even in the midst of the war. But com- pjaints became more frecpent when Eng- land took part in the war of the Succession of Austria. The acfs of injustice committed at that xra, particularly against the Prus- sian marine, determined, as it is known, Kiai';FRE])E HICK the Second to sequester the monies due to the English upon Silesia, in ci;nscuucncc or the engagement \\hich he liiid entered into at tiie time the cession of tliat cuchy was made to liim by Austria. Thv; English having highly compkiined of ir, he caused a public defence to be }:)rinted, in v. Inch the rigiits cf neutral flags were, iov li:e first lime, completely discussed. He He allcdgcd in it, that the Enghsh ministry had, itself, acknowledged them at the com- mencement of the war, though in fact they were not admitted in the Courts. The English government answered by a con- sultation of four lawyers, who maintained the contested judgments by the old rule adopted in the Co?i5olato del Mare. It was at that time matter of astonishment, that the English government and lawyers, instead of following the progress of information, should be more than a century behind in the knowledge of the Law of Nations. But what are we to say at this day, when we see that in the late judgments of their Courts in prize-causes, they have cited this superannuated law as being in full force, and that in contempt of the multiplied and solemn acts by vv'hich the inviolability of neutral liaa:s seemed to be for ever se- cured : Through this condu6l of England, France was led to interrupt, in the same manner by way of reprisals, the commerce ot neutral states, particularlv of those of the North. Durins" the Seven YearsWar, the c privateers [ >^ ] privateers of the belligerent powers took so great a number of Danish vessels, that our government (the Danish) thought it necessary to send a special deputation to the two Courts, to complain of these reite- rated a(Sts of injustice. The late Coun- sellor of Conference, Hubner, who \\'as employed in these negotiations, developed, Upon that occasion, the rights of the neu- tral flag in so clear a manner*, that men conversant in the Law of Nations have since almost unanimouslv acknowledo[ed the justice of the axiom, that le pavi/loti neutre cou'sre la marchand':si\ the neutral flair covers the merchandise. France recognized this principle in its treaty with the United States of North America, when they declared their Inde- pendence. Finding itself thus engaged in a new war against England, the French government published instructions for its privateers, infinitely more moderate than the preceding ones ; but still not entirely in '" On the seizure of neutral ships at tlic Hague, 1739- vol. 8vo. coin- [ -3 ] coincidence with the natural principles and pra6lice of the Law of Nations. The Eng- lish government, on the contrary, gave authority, by instru6tions to its privateers, to take every vessel in which they should find enemy's property, or merchandise contraband in war (de contrebande de guerre)^ comprizing therein materials for ship- building. These instru6lions were general, and the ships belonging to states with which there were contrary treaties then ex- isting, were not excepted^ The natural effect of this measure was, to cover the seas with English privateers, which seized upon all vessels without distinclion, as well neutral as enemies. A considerable fleet of Dutch merchantmen, destined for France, and laden with timber and other materials fit for the construction of ships, was taken and condemned as lawful prize, contrary to the express tenor of the treaty of commerce between England and Hol- land, and though it was proved that this fleet had sailed before the declaration of war could be known. This injustice de- termined Holland to ally herself closely with France, and to take part in the war c 2 against [ u 1 against England. It was the first founda- tion of the intestine troubles which, in the sequel, have afflicled that republic, for- merly so flourishing. The fear of a similar determination on the part of the three Northern Powers, did not prevent the English government from taking their ships, without any plausible reason. To put an end to these acts of violence, destructive of their commerce, Russia, Denmark, and Sweden, at last came to an understanding, and bound themselves reci- procally, to defend their flag bv the unioii of their forces, in fitting out large squa- drons every vcar during the whole conti- nuance of the war. Prussia and Naples afterwards acceded to this alliance, which Avas known by the name of the Armed i\ eu- trcdily. Tlie principles which the contracting parties reciprocally bound themi;elvcs to observe by this treaty, were, ist. That the cargo of a neutral sliip, though ene- my's property, cannot be taken, unless the [ '5 ] ihe vessel should be laden witli a larger quantity of articles contraband in war (^contrebandi dc guerre) than necessary for iti voyage, zdly. That no merchandises should be considered as contraband by war {^co'd- irebande de guerre), but such as are direclily destined for the use of war. 3dly, That nothing should be carried into the port or city of one belligerent power while bloc- kaded, or shut so closely by the ships of war, or batteries, of the other nation, that a merchant-vessel could not attempt to enter, v ithout ostensibly running the risk of being taken. These articles were communicated by formal declarations of the Northern Pow- ers to the Belligerent Powers, as also the firm resolution which they had taken to maintain them by force of arms. France, Spain, and PloUand, formally approved of them in their answers. Great Britain answered in an equivocal manner, consi- derably modiiied its instructions, and ap- peared to yield in silence to the necessity ; its Court of Admiralty was more cautious, and less prodigal of arbitrary judgments, except m cases where the ships taken be- longed [ I6 1 longed to the subje6ls of a State unprovided with a naval force sufficiently strong to com- mand rcspe6l to its flag. The other States engaged in maritime comm.erce, such as Austria, Portugal, Venice, Tuscany, Ge- noa, and the Pope, declared themselves by ordinances, or treaties, in favour of the same principles. From this statement it appears, that the principle, ///? neutral flag covers the merciiandise fic pavilh'n neutre couvre la niarcliiVLiiscJ , was acknowledged in the middle of the i6th century. It will be proved in the secpcl, that so early as that x-ra, it was claimed by England itself, though, in facf, the conduct of that power had been more in opposition to it, than that of any other State. This then is not a new pretension which only began to oTow into favour durina; the American war, as the English lawyers have pre- tended. It is certain, on the contrary, that this regulation, previously established in seve- ral special treaties, was at that time ucknow- Icdgcd, and formally sanctioned, by the concvivrencc of all the maritime powers, and cf all t::c States interested in maritime com' [ '7 ] commerce ; not as a law merely conven- tional, but as a certain rule of the natural Law of Nations. The Publicists conceived, in consequence, a hope, that in future wars, navigation would enjoy the same protection as com- merce by land, and that the scourge of war would not, in future, extend to the peaceable and industrious citizens of neu- tral states. But it was very soon discovered how little foundation there was for this hope. In the war undertaken by Gusta- vus the Third against Russia, he suffered himself to be led by a temporizing policy, to forget the very principles of which he had so recently shewn himself the zealous and bold defender. He revived the old and singular pretension of Sweden, that coined money ought to be comprized among mer- chandise prohibited as contreba?idc dc gv.errc (contraband in war), and ordered his cruizers to seize ships laden for Russia with monev. This resolution was not, however, rigorously executed. During the present war, the illusion has vanished ; for none of ilic preccdiiig have [ '8 1 have so .well proved that States are deaf to the voice of the Lav/ of Nations, when they can substimtc force in its stead. Un- der the pretence, that the object of the war was to punish rebels, and disturbers of so- cial order, the English government sought at the outset to adopt against France the sys- tem of famine, which, an hundred years before, King William the Third attempt- ed to put in practice against the same coun- try ; after tlie example of Queen Eliza- beth, who, towards the end of the 15th century, had recourse to it against Spain*. It required, in consequence, our govern- ment (the Danj sh) , and those of several other neutral states, to prohibit all exportation of grain to France ; declaring that it had iiiven orders to seize the carpoes of all ves- sels laden with grain for that destination, payir.g, however, the \'aluc to the owners. '-■ In 1589, QiiecPi Er.TZAr.KTii took sixty sliips I)C- lonc^in;; to the Hansc Towfjs, i.ulcn witli grain, and mate- rials i'.;r I'liC building or vcssv^ls, dcstnicd for .Lisbon, of uliicji Spain was at that time in possession : s!ic aftcrwai'ds fo.)k t!ie vessels of several other neutral powci'S, with a viev,-, ;'s the puhliely declared, io mhcc Spain hy fionine This [ '9 ] This indemnity, announced by the British government, had its full effect ; and though it has not done away the fundamental in- justice of its pretension, it cannot be deni- ed at least, that, in respe6l of neutrals, it has considerably softened its rigour. It may be remembered, with what irre- sistible arguments our great minister, M. de Bernstoff, too soon lost to Denmark and all Europe, defended, against British insi- nuations, the principles of neutrality which our governm.ent (the Danish) had adopted. He did not confine himself to that ; and, convinced that the cause of justice could not maintain itself, unless protected by force, Denmark concluded an alliance vrith Swe- den, for the purpose of restraining, by powerful means, the entcrprizes of priva- teers. On its part, the English ministry, taught by experience, discovered, at last, that the idea of star^'ing a great people, to make those VviiO OD^ressed them renounce their ambitious projecls, v/as not only unjust, but mipraclicable, and contrary to so-ind D policy ; [ ^° ] policy ; and that, far from forcing such a people to peace, it could only tend, in fact, to render war more obstinate, by con- stantly irritating and driving them to de- spair. At the beginning of the vrar, the French government seemed disposed to pursue equitable principles, in relation to mari- time commerce. The Constituent Assem- bly decreed, with the approbation of all Europe, the abolition of (course en mei) privateering. It sought to execute this resolution, and communicated its inten- tion, for that purpose, to the English go- vernment, provided the latter \\'ould agree to grant no letters of marque during the Avar. The proposition having been re- jecled, France, it is true, fitted out pri\'a- tccrs at the commencement of the war, but in a very small number, and seldom allow- ed itselt to exercise aelb ot injustice to- wards neutrals. The scarcity of grain, and of other provisions, once led the go\'ern- ment to hn cin embargo upon the neutrcil vessels hiden with such merchandise, for whicli it promised an indcmniiication, which [ ^' ] Hlilch never was paid. Moreover, its need of neutrals made it respe6t their rights, in the midst even of the reign of terror. But, after the fall of Robespierre, privateers Yn ere favoured in every way, as the sure means of weakening England. Acts of vio- lence towards neutral vessels multiplied in the same proportion. They became into- lerable, when the vi6lories of Bonaparte had shut all the ports of Italy against Eng- land, and that, by the acquisition of the maritime forces of Venice, and the alliance with Spain, France had the dominion of the Mediterranean. Instead of checking these a6is of injus- tice, the legislative power authorized them by decrees, and the courts by judgments ; v/hich caused the representatives and judges to be publicly accused of being personally interested in this system of plunder. Fi- nally, as if it had undertaken to do away all distinc^fion between friends and enemxies, the Legislative Body, on the ground of retaliation for the system of famine previ- f)usly adopted by England, forbid neutrals all sort of commerce, in objects of the D 2 growth itrowth or manufactures of Eii2:land. This' d-crcc was executed with such rigour, that a ^ Lird of Enghsh cloth, or presumed such, found on board a neutral vessel, though in every respe6l in the best order, was suffi- cient to occasion the sliip and cargo to be condemned as lawful prize, llie injustice v,'cnt even so far, as to give to this decree a retro -active effecl, by applying it also to ships which had sailed betore it appeared. It went still further ; and though, accord- ing to the general usage of civilized nations, in case of condemnation, the private ven- tures and citecls are alwavs restored to the persons forming the crew, the confiscation.') pronounced in France extended to these objects in like iT.anner as to all the rest^. The British government, on its part, seemed to feci tha: it was its interest to rc- spcet the rig]-:i-s of nr^^:\ V :.: ^...^i^oruuii as thcj/wcrc op^v ,u by France; but scarce- ly ]\:[d th^ victury of Admiral Nelson re- stored to the English a decided dominion ou ■" Ai; tills is clcarlv shcsvn in a tiiiil'iriidc of parnphic:-; pi:')!:^iictl ::r Paris on the -luiy? '1, uad ■.v'uch arc in part r-p-,:d in the r-rPr chi C.r'vn:-:^ i;,.;.;.j. the [ ^3 ] the seas, than they abused it, by disturbing the commerce of neutrals. The French marine being almost entirely annihilated by that victory, and the wants of the maritime commerce of France re- quiring that the neutrals which preceding rigours had kept away, should be invited into its ports, the number of prizes made by the French sensibly diminished, in consequence of the late decrees passed by the Legislative Body, upon the vigorous and reiterated representations of the Di- re6lory. It is not irrelevant to remark, upon the subject of these vexations on the part of the belligerent powers, that the neutral states, and particularly the Danes and Swedes, were accused at the sam.e tim.e in France, of favouring the English, and, in England, of being the partizans of France. These accusations, vrhich reciprocall) destroy each other, are, in my opinion, the best proof of the exact neutrahty of the northern powers. Their government lett commerce to its natural course : and the merchraits, guided. [ ^4 J (riiitlcd, as they arc alwavs, bv clrciim- staaccs, spcciiuitx-d with the one or the other oi tlic beilijj;erei'~it powers, according as they tound it more or less to th(dr ad- xantage. It was after the reiterated complaints of the mcrciiants, and atter having exliausted, in \-ain, all the means of oihcijil represen- tations with the bcliigcrent p/v.)V\ers, thut the Danish and Swedish L'"o\'ernments at last came to a resolution to j.»rotee^t: eheclLi- ally their commerce, by causing tiieir fleets of merchantmen to be convo) ed by ships of A\ ar. Independent ot bne ])rotecfion which every state o\\ es to its people, the public prosperity, the progress of agricul- ture, and internal industry ; the subsist- ence of a numerous class of biithful and respeclable subjects, being nccessarih foun_d- cd as well in Denmarlv as in Sweden, upon ioreign commerce, the respective go\ern- mcnts could no longer forbear i/o^n this measure, A\'ithout devoting tlieir s.a'es to ine\itabie ruin. Tbcv liad so nvjili the more rea^-on to flatter tlicmsehcs wiih at- taining tlic end proposed by this mean, as tlic [ ^-5 ] the nature of the formahties required from the persons interested in the ships desiring to sail under convoy, aiTordcd tlic most perfecl security, that not only these \'essels, but their cargoes, were striclly regulated according to existing treaties ; and in fcicl the beUigerent powers liad, until th-n, con- stantly respected the neutrality cf ships w^hich, sailinp; under convo-,, wore., bv rea- son thereof, considered under tl:e safeouiird and responsibility of their governments. Ilowever well founded this expectation might be, it has been disappointed, like many others. It was soon seen in the public prints, that the English had successively detained three Sv.'edish fleets, each of them convo^■ed bv a ship of ^\'ar of their nation. Various reports were spread, to justify tliese acts of violence, which threw the commercial world into astonishment min- gled with alarm. Having anxiously de- sired to know the causes and the parti- culars of these detentions, chance threw in my way the report of the judgment of the English Court of Admiralty, by which one of the Swedish con\'oys was condemned. Tha [ '(> 1 Tlie name of Sir William Scott, who pronounced that judgment, promised much. This judge enjoys in England a considera- tion merited by his distinguished talents, his extensive ac([uirements in jurisprudence, and the dignities themseh'cs to Vv'hich they have raised him. His work indicates irreat knovN-lcdtie, and what is more, a sin- cere intention to discover truth and justice. Nevertheless, the princiijles on which he founds himseli, appear to me false. This vrork deserves a profound examination, so much the more, as, from the erudition disnlavcd in it, and the imDarlialitv which the author professes, it might easily lead persons not conversant in tiie science of the Law of Nations, to adopt his })rinciples, and thus procure the sanciion of public opinion to an act of injustice*. '1 he ex- amination \\ hich I propose is the more in- terLStinij- to Denmarlv, as the iacl-'e declares in I lis re]:)ort, the satisfaction he feels in having found an opportunity of pro- ' There wi'.l be l"./.i!u] at t'^.e eiul of i.h;s treatise, a !r..,:: :..'it;!"i vA [he jiivl^iiivint, in order tliat the icacler mav lie J;;: b.::-r en:tji..d to exumine tire propoaiions which 1 'CuKe. nouncinir [ 27 ] rtounc'ng the law upon the pretension lately arisen, according to him, of ex- einpting from all visitation, merchant ves- sels sailing under convoy; and as he ma- nifests a decided intention to subject them to bcarch, Vviihout regard to the flag ci the sovereign Vv-hicli protects them. It is true, that some attempts have been made to visit and ta;;e our merchantmen under convoy, but they have been con- .stantly repulsed with that firmness Vvdiich characterizes our brave sailors; and this \\'ill evur be ti.e case, as long as the me- n:orv ct Juel and of Tcrdi:n3kiold shall live amon;r us. iMav I be permitted to add, that in ap- ph/ing mvself to this disquisition, I gratifv", as ]nucli as is in my pov er, tlie desire of Sir Wu.LlA^l ScoTT, who has thought ht to submit his opmion, not o?:ly to tli^ examhia- lion r.f his feiioiv~ciiizc?is. but to that rf the citizens of other countries \ seeing these are Ins words, that the snbieci is ere : enernliv in- /t-yvj/zz-g- to all society. It, notw ilhstaiidii'ig all Xhz pains I have tahcn to come at ti.e E truth. [ 2S ] truth, 1 have hccn inistu :en in the int'cr- er.vcs vv hich I h:ive drcuvit, T shall receive ■\virh gratitude any explana^or}' information V\hich may be comnuinicated to me. Sir William Scot'i' obser\'es, that his iudLH-^icnt ought to be ioiinded not upon the \:irialile maxims ot pohtics, but upon the Uiiiversal and immutable rules of the Law ot Nations. Accordino- to him, the question ought to be decided by his court in the same majiner as it should be by an impartial judge at Stockholm. 1 agree \^ il:h him in the principle, and I dilicr t'"Oin him only in its apphcation. I\Iy objecb is to prove that his judgment has not been gi'/ci! accor:]ing to those inniiutablc and nnive:':ali; c:c::nov. lcd<''cd lav.s, but ui^on parricuiar ::::d purely arbi!rar\ con^^idera- tions. 1 c;u:nor say the sauic ot the ob- s:r\dt:Oii which he next n;ahcs, " that the '' nat'ire ot ti:e L'resen" war does give this '' cou:L-r\ (Cw-jat ih^tch:") the rii;hts ot '^ war r':[-\tivji.,' to njcLral states, in as " hc'ge a r:ea:a're as tluv have been regu- '* i::ri_; rcio hg-di ex rc,;)^d at any period '' o;' i;-io Liii eivihvxd th.icsd' The parti- cuhn [ ^9 ] cular nature of a v/ar may, it is true, pro- duce a change in the reciproccil condu^fl of the hostile states, hut it cannot produce anv in their conduct with respecl to neu- trals. Does one of the belligerent powers violate the praclices which loner usas^e has established, to soften the rigours of war? Does it endeavour, for exaniDle, to excite revolts in the bosom of its adversary ? the other has undoubtedly a right to retaliate. But this right, restrained by its nature, to the state \\"hich has given cause for it, can- not be extended to neutrcil states, vvhicli, by the very facb of their ncutralitv, having continued to treat the belligerent powers in the same manner as bciore the wai', have thence a right to require trom these powers the same treatment as in time cr peace. i.et us suppo3e that one ot the b'jhigerent Dowcrs forgets the sacred diities or n;.u- tralitv, it cannot be undci'stood tliat tiiere thence results to the other poveer a right to violate them also on its side. Wtre it oLlicrwise, tlie situation of the subiccts of neutral states v/culd be inhniteh^ wor^e than that of the sul:^ecfs of belligerent po-^ers; r. or t;:e latter are ill-trcn:;ed o.]:v b^; their E 2 eUcUl^ , [ 3^ ] cnernv, whilst the neutrals, the passi\-c -i)l:i\'-thin;.!;s of the caprice ar.d iniiisticc of hoth pOAxrs, would find thcmseh'cs, hy reason aionc that thcv wibh to maintain peace, in a sLate ot why with the one and t:hc other. Tliis is, in fact, an event ^^■hich has taken place in the present wv.r. The circumstance to which SirWiLr,iA?si lier: alludes is, nrohahlv, that the ])rcsent war has heen occasioned hv a revolution, attended vriiAi \'crv rrcat cruelties, and which, accordhif"'- to tiie anparent i^lan of ' ^1 i 1 1 those \v!:o excited it, threatened to qvXlvA its rava-'-cs o\'er all Eurove. To this I an- swer, tlait if one Avonki hatter itsulf that torce c;:' arms could euro tiicse rava-c^, h was for the ;:iTeat powersot Europe to undcr- ta!.e the t:ad., as heinp; nearer to the e\-d, niore cnreethr menaces! . aa:;d at t^ e ^am^^c tiive, in a hetier sil nation to r^naaahn it hv tjuar .-Ci-cr'gt i^, and tiie extent ot then" rc- scurces; A\hi:sr, i^A tiie cca;trarv, wisdom pre>ar":^e^ to -at-;s more r.: note, and ]c-:s p^"-". :^\'.^'^ to (^;-;-erw; a n; ::0-rnip,', vJncii tm\' ci..ian not laaaa ".. ::ac a: eriOauf'xrine tn>..r -mr*';ncf. and e> ^'C-n' " d^en '■■^d\es to the [ 3' ] the ^rc:itC5L calamities. Su:^^ is, in parti- cular, the situation ot Denmark and Swe- den. Whether these two pow eis ought or ought not to liave remained neutral, is a (puestion upon ^.\■hlch their governments alone had a rii^ht to decide. And as no Dower ^\ilate\xr can, \\ itli justice, force another to abandon its neutrality, it has no better foundation to imoose u;>on it new burthens, under nretence tliat it i,. not oppressed by war, particidarly, if wc rc- colieji tiiat tile war has L)een connnenced ^vl:a;cnL ns iannig ai;\ nociceci ic^ anci maL it is continued, and will end, without the interest ot the neutral pov.cr being in any nnnnier taken into con^:acrcltion. 1 he ;ucge or tne :\annraltv maineams Ids opinion on tlie eut;;ority or Baron Fur- FEnjvORF, as expre^sed ni a Icc-xr v, raicn to liie hnnons law^:*-r Gj^oningius, who, at the time of the war \\h:ch England, ilol- land, and several odicr states carried on in j6'}2 a'^'ahist Ivouis the Xi \ di, inni com- n^uincated to hirn his intendon of phading the cause oi neutral coniinerce. Tsl. 1-d' i'CirEanoRF aonrovcs, in tn.s i-.Ltcr, "' tui: iittic [ 32 ] '' lilr-c att-cniion Avhich the powers of tnc ^' nv^rlA, thorigh neutral, paid to the coin- '• pjaixitj of their merchants, ^ecing that '• the war was hh"ccl:ed a^ai'"";t a v^. nurhii.le " power, which v.ircaic.if.d ah waj'cy^? '• ^\"itll ^ki\ e; ■.', and the prore:itant re.iu;ion '' "whh total d^straclion." 1 niii->t liere, in the hrst iiistance, notice :\:\ ^^^crLion to which tlie J^id.i,e ot the Adiihraitv attaches [rreat i:n!:;()rtance, hv t;h:cr\ ing . ti:at • cjFr^NDoi^r was not a vhv'/cde, as he cihedi'CS, hut a C-erman; that 1;C w aS; in raci, in tix oer\'ice or S\\ eacn at li^c tane \vz cc^innos.d Ins work Vl'jji iJic h(i-.'j y ±\atnyc and l\ah'j?is\ hut that at the time iie wrote that Iciter, he was in the j^cr\ ice or tiie jMeCuOr oi: hRANDEXiiUKc;, V. !^o wa- ti^;c]i cX war \\;i:h France; uad in con;a(wence, it is dated at ]>erlin. It is to i^e r^:i;ark!_d, tnat Ins oihihon on this noii^t was founded nnon n:oth'es of ]")olic^n net ucon a:hon:s ot jurisprucicnce or trea- ths, and ti:at lie supj)0:..s the suhjecls of L.-e nv.;itra] 't^CLo con;pla;n:-nr, v-inlst tiieir ?\y\-cr:;ri.;:n^s lave no ixaciitioii to .amnort e:a •>.', mai txiK^ quo- [ 33 ] quotation from Puffexdcrf cannot be made to apply to the present case, \\hich, accorclinfr to the ooinion ot Sir W'illia.m Scott himself, should be decided bv the rules of lav\% not by the variable niaxicos of policy, and in which not only the £i:b- jeCfs of a neutral power, but also their fi:o- vernment, claim, and far from refusing its assistance, has on the contrary, taken them under its immediate protection. '1 hiose w ho shall read thewhole of tliis letter ot Puffen- DORF, will have reason to be satiehedthat this celebrated publicist expressly aclcnowledges the right of neutral powers to protecf their merchants bv convoys, when the^.' do not trade in merchandises prohibited by the laws of war ; and that his opinion only an'^lies to manifest abuses of neutrality^. A 1th on ^-b o ■* Tlie followinc^ passanre precedes the phrase cited l;v th.c j'::I^cof the Aclmir-.hy, ii; tlie letter ci J^lf;l.:do:; r : " Oil the other i;!cle, neverthcie.j, i; i:ie !v!;:^s oi lI.c \,^.\v^ '• can maintain th-ir co;:i;ne!Te v.-.t'.i Liancc ly /...":'■•- " L'uir mi'''c/.a-:t z'tjsc/s c^corft:/ 'y; Snips cj -lujr, p;o'vi.h(l " that thci'e is i:0''hn - CL.n:rai)ard en i)oaid, uo i)o.iv \m!! " be foiind to hnd lault widi then:, rii- law or' !iun:anity »• and wr eijuhs- n;jt e::icnclii;:: -o tar ::■, t:) r^:v\-Vj t:;at a *' iiu-lc:: sh'.i:'.l cUli---i-i itself ^of its :y .Jl: '.:i j:.-.^-r c[ ii:i>- [ 3-- ] 1 {]:: c'rccl: of tbc present Avar -i r'l/ii y:y.:::zi:r cons.:(VJcncc than :-' <.:'.,!-, ■::-;-l;Lnd is so rruch the 1-.;: r. r',:i: (^i Ics:, a'.ii .;!'.-./ J.! Ki s;ich |:rct.jxi,Mv;ns, as it \\ ;iS !sv i:r) ■;:.,:;;v:; t;^roL"::h zenl I'T the niainicna-.sc ol h---^'-^*^, ^^'' ■'■ 'l;h the hitcn^ to siij)ooLt i:iv. coi^stsuLo.iai ';G'.'er.inien;;s or L!:e coivhieiit, that irhs wdr lias been co'^:!;.ei;eeih h liese n";0Li\es ha\e been frL:ii-:eii':h,' n^ei:horied in its })['j:^ress, to i:'!ar:::e the I;!n:.rh:,h people, and iihlajiic tore^^:;ii nations : ineitiiee pas-eo uv noXinnz '} I t!ie ■^''U\ :crniinati()n^\v:iichhse] no other Ixee ^ V. ilh Ttspeel to Enj:h:na, than a vivW i^oeJ " eohoeal, and peciiiiai" to irs^lr, that IS, t' e iso-r siie entcrLained, that ;;y the iniir^n o: h' hoastrian Low Conntries v.\':h 1 e , k^ .;,;,,<- .1 - ^r. ,' . ; ^ i'Ti'O' 's nsal nn'"'ht U'"^ rah-,i :"o r.-'- e.annnrce. e tree nasiLaOaai ol toe a I.; ■^ :,n_ r"-;.- '.v.;ra. sUlch I d' { J3 I do not presume that the Enf^Hsh'go\-ern- •.nent seeks to justiiy its conduct to\v ards iicii- trals, on the allegjition that tlie^, lia\'e l^ecn still more badly treated by the French ; rbr the arbitrary and violent steps tahen by ilie latter, being attributable alone to the con- vulsions inseparable from a revoiutionary state, could not legitimately serve fcjr an example to a regular and Vv'ell-cstab- lished povrer. It this government, viiicii lias in some respects declared the French nation proscribed from European society, in consideration, as it says, of its having trampled under foot the right of nations, bhould, notveith standing, take the line of aciin^^ nursued hv that nation, for its rule of conduct towards neutral states, it Avould be too manifest a contradiction. Those vclio are acquainted with France, the im- mensity of its internal resources, the ricli- ness of its soil, and oi it-^ prcduciions of every kind, know that neither a maritime war, nor even the annihilation of its entire maritime commerce, can operate in it a counter-revolution ; but that such a great cllecL can only be produced by a conti- F ncntal L 30 J ii-ntal v.ar, and such a one too, as is now cairviniT on'^. This is not, mort:c/v"cr, the first time that En aland has availed itself or the particidar nature of a vrar, to justify its attempts upon the rinirs of neutrals. When WhLT.i.^M III- sou!;ht. in 1689, to interdict them all commerce with France, he pretended in tiie same manner, tl^_at that war was or a nature which iustiiied the emnlovment of extraordinary nreans, although it was then carried on Vvitiiout any .ueces^itv, A like pretension was urged at the bcginuins: of the American war, hut Grccit ihdtain was soon reduced to change her tone. In general, the English govcn^mvut has al- most always tried to make its ser^arate cause that of all Europe ; and its C^ourt of Aamiralty has almost alwa\s supported it, by uToceeding rather according to the dic- tates of policy than the naturcd principles of the Eaw of Nations, or the letter of / y '. ■ •J'C pCilC.d Oi * r.'i;:; t;-'. atirc v/as urlttca m 17 the ^rcat' >c iucctSbCS oi the Austrians ;;rid Russinn:; uni;ed treaties ■ [ 37 J treaticb ; and that to a degree at which an impartial spectator could not, some- times, refrain from a smiile. These are the terms of the judgment of the English Court of i^dmiralty pronounced in 1778*, in the case of a Danish ship seized on ac- count of some salted provisions being found on board, which it was alledged were destined for the eneniy, merely because they ::jere salted. " Eng:land is lost, if neutrals •' continue to support the enemies of the '- Mate.'' Far fiom adoptmg this mode of reason- mg, good at m.ost under the meridian of Sc. Paul's, in London, it will be felt, on the contrary, that an enlightened policy prescribes to England to respect the rights of neutrals, in order that the hitter m.ay not iind themieh/es forced against their will to make common cause with its enemies, a^ naDpened to Holland in the last war. But a motive not less important, and which ougiit to hci\'e much s^reater weight in the " BuscH, jber die durcli den je;/:gcn Krieg vsrar'aisM /:■' : 'i":i!p;:^ dc" S^'rhandc;S Hanib, 1703, §94 F 2 war? [ 38 ] "-. .;.r, i:->, that tlic iiLiitrals nuiintain a com- jr.iinirat'ion recinrocally useful for the coMiincrce of hclhti:crcnt powers, and v.-ii!c)i, A\ittioiit t'hem, wouhd be entirely interrupted. It is e\ident ti":^at C/reat Bri- tain would sufihi- nn irrcpara]")le loss, if the numerous and divcrsihed produ'ftions of its •oil and manuiaclurcs should no longer find Ci^annels oi" adniijsion into I^^rance, Spain.^ and Holland, or into tlie ccdonies of tlicsc three powers, wli^rc, iii time of peace, thev ha\ c such a considerable sale. The British irovcrnmcnt is so well coiivinced oi" this truth , that it even secretly favours the direef commerce which the French have so stri6fly prohibited. If such be the attention which that g:overnment thinks it its dutv to pa v \o "ne sale ot its producf ioiis, even in an cue- my's country, c;m it, with anv annearance ot justice, requi!"c of the states of tir:: nortlu 'mat they should al^stain trom the same v'ommercc for the s;ile c^i their principal '>roducl'ions, sucli as i>s'ain in I^emnark^ n-on :jnd timber in, Nor\\avmL2id Sweden^ 'Xiti^oufdi Sn" \'vhLin\M Scott has de- chn-ed he allows that the powers of the uortl:, under circumstai>ces sim'l'ar to the .:>'~ i [ 39 J present, might prohibit all importation of English produ'ilions to their enemies, I may be permitted, I think, to doubt v.iie- ther the English government would pay greater respe-ct to this declaration of its Court of Admiralty, than to the complaints oiits manufacturers and merchants, for I do i:ot knew that it has ever failed to maintain the rights of its fiag, in the small number of maritime wars iii vv-hich it has not been ac- tively eng-po-ed. When, after havn^g declared his opinion upon the nature of the present vvar, the Judge of the Admiralty adds, "= that it *' gives to the English government tlu "' rights of war relati^xly to neutral states, *' in as lars:e a miea;;ure as they have been " reg;ularlv and leeallv exercised at any dc- ^' riod of modern and civilized times;" we cannot but approve his mode of reasoning, if it applies to these words — legalh and re- giilz-dy excyci:ed- — because from thence it results, that the right which he claims for the T^resent war, must be founded srenerallv, not u^on what has been done, but on whac has c een done kgai'v, I confess that the addition of r 40 ] of the sc vv' ord s , - nfmoncni andci\:ni%c^ i times , ' ' at t* )r(!S room to doiibt w licthcr such has been , 111 tacl, the opinion of tlie Judge, or whe- ther he has not rather sought to justify the present iUegahties, by illcgahtics heretofore committed bv civihzcd nations, and of which historv in general , and that of Eno-- land particuhn-h', furnislies but too many examples. This second supposition secnis conlirmed by the passages ^\ hjcii foUow in il:c iud,(rment ; v/liere tlie Tud;i:e fiiUs into ilie same error with whicli J. J. Rousseau rc:)ruaches C^rotius, when he savs-'% '■■ I lis n'lost constant manner or rc-isoning " is, to estabhbh always tiie rio-jit bv the *' laclf an en-or\\hich, ii raised into a princinie, \\^ouid mcrease u;sor-ed to ad- mit that sovereiirntv, but the other Dowxrs O - ^ J. have never acknowledged, in favour of England, any other right upon that part of the sea, than what naturalb/ belongs to every povrer over the extent of sea which m.ay be detended from land, that is, to the distance ot cannon shot ; and in cases where ci very narrow arm of the sea separates two or more states, to the middle line, unless ti'caties or private arraiigements extend the right [ 4:^ ] right of sovereignty beyond it. I'hese prt- tci^-slons are even now acknowledged a' <;xaggerated by the enhghtCxicd Enghsli, among whom I shall coniirie myscji by . ~'"ing ojxC irrctragciblc authoriry, that of the ih.iiw.i^ historian IIume'"^, I'he terms oi' the judgment scsm ah;o to shew that Sir William Scott has not soiu^ht to attri- bate to his coiiuirv' a in-eai;cr ris-ht upoD. the sea, tlian that v/Iucli v/oiild belong to ]': accural rig to tlie principles generally adoptvjd ; ior lic sa}s the ai^air passed upon the coasr of England (close iipon tlie Bri- II;!'! coast j. lioucvcj-. the exposition of the iacL leaver sonic })!'esiampl'ion, that it wa:, at a ccit'hii distance, altliougli it can- not be exaftly ascerlaia^d, ironi want of accurate details upon this point. Suppos- ing, ncvertlieicss, the Swedish convoy may h.a/:j been rcallv talici^ wirhm the hmits of the sea apnertaming to (jre.it Ihatain, it its dctcndo.s V^ad, fro-n it:> circujnstanccs, and the respc^bve righr oi the paitic-, been illc« -^ral on the oxen sea,, it ccxdd not: be less so in acinic saa(x/ a,'.",-/ Tittcd to remrirhj ihr.t this conclubion would be striclly just, if tlie question re- lated to a mutter /j'ure/y prhafe, or which onlv concerned Danish subje6fs, because the latter, according to the usage univer- sally received among the nations of Eu- rope, would be obliged to acknowledge the G iuris- [ 44 ] jurisdiclion of the British Admiralty, al- though they might distrust its impartiahty. But it could not he the same in the present case, which is evidently a public affair, m which the Swedish government is the prin- cipal party interested, inasmuch as the matter in dispute is the detention of a ship of war belonging to tlic state, as well as the detention of ail tlic \'csscls under its special proteclion. In such a case, the court of Sweden, which could r;Ot be sub- iecl to the Fn':"li:ih iurlsdiCiion, mi^dit con- sidcr beiieath its dignity, to cc^mmunicate its explanator'-.' Droofs to the C ourt of Ad- miralt;', without its silence in that respect bcina; lec;allv considered a'? an admission of die case. The following is a brief account of the manner in wdiich the fact is stated by the Judge : Captain Lawfopd, who commanded a small English squadron in the channel, having m.et a Swedish merchant fleet, under com-oy of a frigate of that nation, sent a Prrson on board the frifrate, to demand inform [ 45 ] iiiiormation relative to the destination and cargo of the fleet. He was answered, that it vras destined for different parts of the Mediterranean, and laden with hemp, iron, pitch and tar. Captain Law ford having judged necessary to provide himself with an order of tlie Lords of the Admiralty, re- specting the line he ought to pursue, he was ordered to detain the merchant vessels, and carry them into the nearest English port. Upon the communication of this order to the Swedish Commander, he pro- duced his instructions, which enjoined him to defend his convoy to the last extremity ; after which the Swedish frigate, as also the English squadron, made all the necessary preparations for battle. Night having come on, the English possessed themselves of the greater part of the Swedish ships. Next morning the Swedish frigate sent an armed boat, \\ hich took by force an English officer from one of the Swedish merchant vessels, and carried him on board the frigate. She sent also an officer to Captain Law- roRD, to complain that he had taken ad- vantage of the night, to take possession of the convo\ . But after the latter had repeat- er 2. edlv [ 46 j cdiv r^oresented to the Swedish coin- mmv.lrr the imposslbiiit v ot dcieiiding him- sflt" ao;unst a force so superior, the frigate at hist consented to follow him into Mar- 'late Roads without having- iircd a sinirle gun. We learn hv the public papers, that tliis Con^unander, as a reward tor his com- ])laisance, has been condemned in Svv'eden bv n court-martial, to lose his head. At the end of this statement, ^\^e find in the judgment of tlie Admiralt\', aui examinatio:^ of the affair in a juridical point of view. Sir William is of opinioji, that the ves- sels detained, and tlicir cargoes, are liable to confiscation upon t-^A'o principles, v/hich he does not however distinguish with suffi- cient precision in las judgment. The one is rchirw'c fo tJtc Joi-^i; that is, tliat tlicv reti>,d y\i a violent manner to ^uilcr r;icri:ielves to he searched. The oiiicr, ^^^'^u■]l relates to tiie merits^ is drav, n i.'om tin::, t:\itthccargooughtto It eouMc: ered ':n cr:;Urah'ind, being for the grear^T part dc^Lu^^d lur liic enemies' ports. '*^Vv' V':r\ pr(:>cei-(i to exan.iiic careful! v each '"!" tiu-^e f>rii;;ir;Ic--, a::d ifc ariiuments :! 121 iiie;:" sU'^nori I- 1 R s r L 47 ] FIRST PRINCIPLE. in support of the first principle, the Judii^c of the Admiralty founds himself V;pon the tlirec following propositions: I St. The rio-ht of visitino; and searchins:, .-ays he, belongs to every cruizcr of a belli- gerent nation, lawfully conimi^^sioned, ^^■ith I'cspecl to cjc-ry mcrciKiiit "vcijrU without ex- reption : lurther on, he usv;>) the expression r^.vvv ^-i'/jc /, gcuci ally. Ir this right be real, adds he, there JiiList exis: on the part of neutrals, an obligation corresponding with it, \\iti^out which this right would be null. 2dlv. Cruizers cannot be legally dc» prived or thi- riLfht, bv the interposition of a neutral state that j'-^dgc^ proper to con- voy its inerclianr vessels v ith ships of war. ;;d[^-'. I'he nenaltv incurred bv refusal to -.ubmit to vibitation, if accompanied with violence, is the confiscation of the property so attempted to be Avirhdrawn from visita- tion and :.earcli. .^. N S W E R [ 4S ANSWER TO THE FIRST PROPOSITION, It has been already observed in the in- troduction , that (^course en mer) priva- tecrinp-, is contrary to the natural riirht of nations, and to the generally recognized principle, tr.at war is made by state against state, and not against unarmed indi-ziduals; ti^OLigh, by a singular contradiction, but too trequently m^et Vvdth in the a;?cions of men, this principle, religiously observed amon:7 tlie ]>o\\'crs of ]Curo::>e in the wars bv land, be not followed in the maritim.e v^ars. Fr r; v. v. ?. i c the Great, that crowned philosopher, strsxh witii this contradicrtion at tlie tii^-iC he treated with the United State- of America, proi)osed to them to esrahlh!;, that in case of a rupture between the t\\o powers, they shoiiiil not grarxt reci- proci-lly any letters ct niarque. 'i1hs deter- j^imatloii, equal ;y lioi'iourahlc to the prince wi\') propc^v_d it, and the Ifnitea States, ^\'hich a(hq:jted it, will probably have no erreiR:, as xr^^^xi is scareely an av-pearance, that these two :^ov:ers should ever be in th' s.;t'-a'::n ^■: i^ui'hm.:" v.-jr ar'-ainst each olhe : 49 1 other. It is to be further remarked, that Catherine 11. in her first war ag-ainst the Turks, did not commission any privateers; that she did not hcense them in the last, but under great restrictions ; and that during tlic w'dv witli Sv/cdcn, tar from encourao-- ing them, hlie tool-: pains r.ot to disturb the commerce oi: neutrab, although in that: l^oint Sweden had indulged in ;{0ine irre- p-ularities. I\ot\\ ithstandinrf tlie very ac- tive part which Paul the First, her suc- cessor, takes in the war af:^ainst France, vre do not hear of anv privateers bein^■ htted out ot the Russian ports. This principle, very clear in itself, and supported by such respeclable examples, udll dissipate, perhaps, the disda!i:ful smile with vv'hich Sir \Vielia?,i Scott receives in his judgment, those who oppose tlie- practice ot privateering f course en u-.d )y as disirraceful to the Maritime Lavv" of Na- tions. This enlightened magistrate vrill feel at least, that an opinion founded upon universal morality, and upon justice, adopted by sovereigns as wise as pov\^erful, is badly refuted by the qualification vvhich he he gives It, of the '•^ ncv: f:'j//o::':f'.n ^ r.r *' phUajithycpy^ Avhich tends to introduce w. '' state of things not )"et seen in the world;> "' that of c. ^::iliiLirv i peace. a?i(i a coniDicrcuu Without re\eitin<' to the \^ ars of Russia, which ]:)rove that such a state of things is, I do not say only possible, but compatible with mijitary opercitions, every bodv kno^es tliat in tlic miciSt ol' tlie most sanguinaiT wars u|)on the con.tinent, commerce bv land continues, and tlie raid's ordinarily ob- tain sateguards from the enemy's generals, by means ot wliich the merchants and their m.erchandiscs are protecled from ail insult, as well during the fair as on tlieir way to and from it. Jf the thing be praclicable in warb b\- land, win, should it not he also praelicalde in maritime wars ^ I'his ^//z^- jophv^ far irom l-'^ng ;.:;e, as is pretended, may on tlie contra r\ be traced b^ack to very remote antiquity. The (h'eeks and Ro- mans, such cnliglitened nations, never re- cognized the legality of maritime captures; on the contrary, tlicy coirstantly treated as pirates and enenye^ of ]inmanit\\ those whf) [ 51 ] ^ who, under any pretence whatever, should take peaceable merchantmen. It was in order to put an end to piracy, and to ex- tirpate pirates, that Pompey maintained such a sanguinary war in Asia Minor a^-ainst them. The origin of privateering (la course en mer) hides itself in the dark cera of the middle age. This circumstance does not srive a verv favourable idea of it. The o-o- vernments, in rendering it legal, sought to stop the piracies Vvdiich audacious sailors might of their own accord think them- selves authorized to commit upon mer- chants; and during the long space of time which has elapsed since that period, priva- teers, notvv'ithstanding their commissions, have been considered as little better than pirates. If vre consider the pillage, the vexations, the violence in which they in- dulge themselves, in contempt of the most severe laws, v/ith respect even to those vessels on board of which, notwithstanding all their stratagems, they arc unable to dis- cover any cause for suspicion, this popular opinion will not appear so ill founded. H What [ 52 j What should determine a v/ise govern- iiicnt to the abolition of privateering (la rouise en mcr) is, that it is incontestably the •school in which are formed those danger- ous smugglers, and those men capable of every thing ; who disturb society by their acts of violence. I shall not dvell upon the immorality which it occasions in neu- tral states, and the means, very far iroin just, to which the merchants of those coun- tries arc sometimes forced to have recourse, to shelter their property from this species of brigandage. The belligerent powers care little about it; but can thev be indif- ferent to the corruption ^^"hich it eventually produces among their subjects ? The principal obstacle to the abolition of privateering, is the advantage which the belligerent powers promise themselves from it : but it cannot be compared either with the losses which their commerce suffers, or the other inconveniencies attached to it. The French, during the present war, have cer- tamly gained very much by their privateers; but their government, notwithstanding, has iudgcd fit of late, to restrain them a little: their [ 53 ] their ovrn maritime commerce with foreign countries is annihilated. The more priva- teers are fitted out, the more difficult it be- comes for ships of war to procure the neces- sary number of sailors, that service being more lucrative. In length of time, the cap- tures do no material injury to the belligerent povvxrs, but only to neutrals. The Eng- lish privateers seldom find an opportunity in the present war, of taking merchant vessels belonging to France, for with the exception of mere coasting, which cannot be interrupted by privateers, the only re- maining maritime trade of that country is carried on by means of neutrals. On the other side, the French privateers, not- VN-ithstandino; the incredible aclivitv of the English commerce, arc seldom able to take merchant ships of that nation, since the Britisl"! government has thought fit that they should not sail without convoy. According to this statement, it is clear that it the neutral powers should seriously unite to prevent prizes made on their subjects, privateering (la course cfi merj^ would cerise by degrees. During the American ^^ ar, the H z armed [ 54 ] armed neutrality produced this effe6l, at least in part. The same consequence would have followed in the present war, if Russia and the United States had pursued the same conduct as Denmark and Sweden. The horror inspired by French revolu- tionary principles, has probably prevented that determination; it is that which has, at least, induced the United States to con- clude a treaty very disadvantageous for their flag, with England. But in the next war of an ordinary nature, these principles on the liberty of maritime commerce will be no doubt supported by all the neutral povrers, and then will arrive the cera of the entire abolition of the course Wjiich the Judge of tlie English Admiralty seems so much to dread. Thus the world will be indebted for this amelioration in maritime war, to an enlightened policy, still more than to a love of humanity*. ■• IMcmoirs of J tax de Witt, 3d Rr.cisbon cdirion, 1709, p. 168. — VIa-ly's Public Law ot Europe, wiih tlic rcni.-'.ri.s of 1\c>i\^:slt, at Amsterdam aiid at Leipzig, j;'.)!, vol ii. cluip. 12. p 322 — 332. Essays upon vari- ous subj^-cls relative ;o Navigation and Commerce during VVar, by M. ue vSteck, Eerlm; 1794, p. 58—61. I ha\'e [ 55 ] I have hitherto undertaken to prove, til at maritime prizes in general, even cliough they should confine themselves to vessels alone belon.'2:in2- to subiecrs of belli- gerent powers, cannot be reconciled either ^\ith justice or sound policy. But suppos- ing them legal, it would not thence follow that tb,e privateers oi" belligerent nations would be authorized to detain, bring in, and afterwards prosecute to condenination. in tlieir Courts of Admiralty, the vessels of a state trulv neutral. It is a necessary con- sequence of neutrality, that the j^ower which observes it, has a right to require that its commerce should enjoy the same liberty in time or war as during peace, and tliat its miCrchants should be able to send tlieir vessels, laden with the produce of their own countrv, or v. ith foreigii productions, and even merchandise destined for the use of war, in freight or on their own account, as often to the one as to the other of tlic belligerent powers. For the purpose of weakening this pre- tension, the Judge of the Admiralty relies, ui part^ upon this, that the riglit of war is unli- [ 56 ] unlimited; a/so, that property belonging to an enemy may be taken wherever it can be tbund, and consequently on board neu- tral vessels; and, m/r/ie, upon this, that the neutrals which carry to an enemy, mer- chandises contraband in war {^contrcbcnuk de guen-S)^ breaking by that very act, their neutrality, the belligerent powers are, by the right of war, authorized to restrain them. The^-^/vz' allegation proves nothmg; for there does not exist a right of ^var but against th^' enc'i]}-^ and not against fieutrals, with respect to vhcm, seemg that thev live in peace, war ought to be considercd- as not existing ; and supposing tiiat the right of war admits no limits vnth respect to the enemv, this ousnit to be understood only of the rpiaiitlty of means, and not of their quality, Yox even tlie most barbarous nations consider it flagrant baseness to em- ploy assassins or prisoner^, and to break a capitulation once agrLcd upon, whatever advantage they might derive from such conduct. And to connnc ourseh-es to the practice of civilized nations, are they not unani- [ 57 1 nnanij-nous in repelling as cruelty, the act of killing, plundering, or mcrciy ill-treat- ing people without arms ? The jt't'(9;/^ allegation is too pxncra] ; tV)r before we acknovvlcdo-e the ri2"ia 0/ sr^ziu^ ejiemv's ejje&s luherever they ai'e [ounJ, ^ve ■must begin by restrainin;;- these words; enemy'' s cjfecls {^effets enfic^ms^^ to public dyo- perty belonging to tlie belligerent power, which alone can be considered as enemv's, rind not the effects belonp-ino; to the indivi- duals, subjecfs of that power. It is for this reason, that it is permitted to levy contributions in a conquered country, which are afterwards regularly assessed upon the inhabitants ; Vv hilst it is not per- mitted to plunder the latter, or arbitrarily seize their goods. The exercise of this right must moreover be confined to places where the bellio-erent povvers can le;:ally aft in an hostile manner, as for example, on an enemy's territory, or upon the high •seas ; for it is clear that it cannot be exer- cised either upon neutral territory, or in places where an armed force could not act, witliout violating the deference and respccrt ciue [ 5« ] due to neutrality. We shall be told, per- haps, that the inviolability of the neutral territory is not hurt, v> hen the privateer of a bclhii-ercnt power seizes an enemy's cargo on board a neutral vessel on the high sea ; seeine: that as the sea does not belong to any body, no power ca.n. claim a property in it. But though this m.ay be true of the sea itself, it cannot be denied that the ves- sels which cover and traverse it, cusht to be considered as belonirins: to the sovereiirn of the individual who has equipped them, and of the port from whence they are fitted out. This is not, on the })art of such sovereign, a chimerical pretension; it is a leal and incontestable ri^ht, a rii;ht ac- knovslcdged by all powers, and v liich can- not be refused on better grounds to neutral states, with respecf to the vessels of their su!)iecls employed in commerce, than to Ivelligcrent states, v, ith respe6f to those f'f tiicir sul^jccfs who ht out privateers. 'iliis r::dit is rendered manifest by the ox(S:^x which the sovcrei^-n (■■i\(s to the eonim:::i^uers ot iiis ships to c:arry his flao:, f;V t^'iC rules ^^ !iic-h he prescribes to them, t;\- the Ij\'. o v!iich he publishes respecfing the [ 59 ] the conducl which they ought to pursue at sea, and by the penalties to which those who violate them are subjecled. Were it other\visc, the crew, oi\ leaving port, would return into the independence of a state of nature ; all subordination would cease be- tween them and their captain and the other officers : the most horrible crimes committed at sea could not be with justice prosecuted and punished on land ; and as every vessel, would constitute in itself a little independent power, there would be thence as many of these powers as there are vessels sailing on ihe high sea, which might at their plea- sure make war or conclude peace, without being accountable to any body. These ab- surdities are too palpable at first blush, and also too dangerous, for any man in his sound senses to deny that the neutral ship is under the sovereignty of the neutral btate, and consequently that this principle, iJie neutral fag covers the property (^le pavilion 7icutre couvre la merchandise')^ is not at all arbitrary, but immediately derived from tlie nature of things, and the vvitu>'al\u2^ of Nations, I That [ 6o ] That this principle is equally sanclioned by the positive Law of Nations, resulting from treaties, is what 1 shall allow myself to demonstrate here in a succin6l manner, since there are En2;lish lawyers, and among- them the present Judge of the i\dmiralty, who seem still attached to the contrary opinion. The celebrated Buscii has pub- lished a list of Q^^ commercial treaties, con- cluded between the year 1642 and 1780*, which are all favourable to this principle, while on the contrary, only two have been concluded in that interval, in which the principle, anciently establislied by the Cm- solaio del mare^ Upon the liberty of seizing enemy's property on board neutral ships, has been followed. These treaties, are those which Great Britain concluded in 1 66 1 \\ith Denmark, and in 1670 v/ith Sweden. Vv'c find besides, some other treaties, in wliicii the sense is equivocal, relatively to tliis point. Since 1780 up to the present da.y, we can cite, at least, 23 treaties, in which the prerogative of tha - Sec his book. :;lii:u!V ( "icJ, p. 47 — 52. neutral [ 6t I neutral flag ' has been acknowledged, as may be seen by the list annexed to this work. I know on the contrary, of only one treaty, that between Great Britain and the United States of America, which is founded on the opposite rule. Since then, the trea- ties by virtue of which the merchandise is covered by the neutrality of the flag, form, in respect of the otliers, so considerable a majority, we ought lawfully to view them as containing the general rules, and the others only as an exception : from whence it re- sults, that this rule, which is besides founded, as has been seen, upon the natural Law of Nations, ouglit to be applied to states with which contrary treaties do not exist. To apply to undetermined cases, as the English publicists do, this very small number of treaties which respect the qua- lity of tiie proprietor of the cargo, in pre- ference to that of the ship, is to substitute the exception to the rule, and consequently strip the general Jaw" of all sound interpret tation. To appreciate still better the pretension of the English, it is not impertinent to re- I 2 mark, [ 62 J mark, that so early as about the midd'e of the I J-th century, and at the time when the Cojisolato dch)iarc\y'As the only hiw in force, they estabhshcd b} formal treaties, for the first time, the rights of the neutral flag, as mav be seen bv the treaties of Edward III. with the commercial cities ot S])aii: in 1 35 1 , and afterwards with TJsDon and 0])orto towards the middle of the lyth century. It is farther England, a\ hich hrsi' concluded a t'*eaty conformable to this ]}riiiri|)je, that of 1642 with rortugal, renewed in 1654, the onlv one of the kind \\hich, for various political reasons, the English have still consiaered as sacred. It is from the xra of that treaty that a long series of similar acts commences, by Vvhich the inviolability of the neutral flag is acknov.ledged*, and of which several have been concluded by England herself, such as those with France * So early as 1596, Qjccn Elizabeth claimed the lights ot a neutral tlag, on the subjccl: of the dtttiuion by the Dutch, of English vessels, which had on b(jard pro- perty belonging to some citizens of Antwerp, who were ■^ at that time sul'ljccis of Spain, and consequently enemies of Holland. Slie obtained reparation for that which the English then called an himlt^ by detaining fou" Dutch privateerb. Bl'sch, p 145. in [ 63 ] m 1655, 1677, 1 713, 1742, and the last of the 26th of September 1786, so remarkable for its very detailed determinations relative to the riglits of a neutral flag; those witli the United Provinces in 1668 and 1674; and finally, the commercial treaties with the Porte and with the Barbary powers. Notwithstanding these authorities, which are their cwn work, tlie English pretend that the powers ol the north have endea- voured cf late to (ri\c currencv to the prin- ciple of tlie niviolability of the neutral flag, onlv to fu'-O'-.r their ovrn commerce; and in the eiibarrabsnient in which they find themsehxs, sometimes they invoke the Con- solato del mare, the work of a few little states no long-er in bcinfi-^, as a funda- mental and invariable law; scm.etimes they * It is known, besides, with respecl to this pretended fundamental and hrjariahle /aw, which tlie English invoke, that they do not deign to conform to it even in tlie cases in which they insist upon its validity, as they never pay to the owners of neutral ships, the freiglit W'hich they would l)e entitled to according to this law. How can we per- ceive a stable principle in the midst of these irregula- -jlics ? have [ 64 ] have recourse to the maritime ordinances of certain powers, as if the particular regu- hiiions of any state whatever could annihi- late treaties; sometimes, in fine, thev rely upon the suffrage of Grotius, and of some other ancient law^yers, whose superannuated systems had their birth before 1642, the xra since which the rif^-hts of neutral flairs have began to obtain favour. Among the moderns, the only authority which they cite is Vattel; yet is he so indecisive, and so manifestly contradictory, that upon this point he has no right to the praises which his work has, in other respects, justly acquired to him. If the question ought not to be decided according to princi- ples founded upon reason, and upon trea- ties, but according to the authority of the publicists, we might oppose to those cited by the English, a Huener, a De Steck, a Galliani, a Lampredi, a Hennigs, a BuscH, a Martens; who in their works, full of complete reasoning on this matter, and thoui2:h belon^ino; to different coun- tries, have unanimously pleaded the cause of neutrals. As [ 65 ] As to the third allegation, which founds the restri6lions put upon the maritime commerce of neutrals, upon the right of belligerent powers to prevent the import- ation to the enemy, of merchandises known by the name of contrebande de guerre (con- traband in war), I shall observe at the out- set, that this restriction, though founded upon the conventional Law of Nations now in force, is not, howc\-er, conformable with the natural Law of Nations. Vat TEL pretends, it is true, that in a maritime war, the neutrality is broken by the a6l of furnishing the enem.y vrith such merchandises, although he admits it suffers no injury in a continental war from a commerce of the same kind ; nor even bv a treaty of subsidy. It does not appear, however, that a neutral power shews more partiality in the one case than in the other: we cannot even say, that it shews any, in permitting such a commerce, so long as it does not encourage its subjects to carry merchandise for the use of war to one of the belligerent powers, while it forbids it in respect to the other. In the mean time, it r 66 j it is evident that the prohibition to earn* such merchandises in time oi' wirr, when even it is restrained to articles of a use di- rectly rekiti\e to the Vs'ar, may cause a con- siderable loss to the neuti'ul state, if its principal commerce consists, in time of peace, of merchandise ot that kind ; such as powder, saltpetre, brimstone, firelocks, cannon, &c. This ought to Induce ail the states to support, even in this respect, the liberty of their commerce, and vviih much stronger reason still, ^^'hen they gi\e to the denomdnation of cnntvabcvid in -ii-ar^ so miuch latitude as the English do. 1 he only limi- tation in tiie maritime commerce of neu- trals, which seems to accord Vv iih tlie na- tural Lavr of Nations, is tliat Vv-liich relates to the imporuition by sea., ot p-rovisions, of coined rnone};, and of ail arcieles ^\ hat- soever for the use ot war, into a city block- aded by sea; because, w itkout tliat limita- tion, the 0i>iecL of the blockade would be defeated. Anciently, they conhned them- selves to the prohibition or neutral vessels found .:; tm- -ituation, from entcrm-^ into the port; somctimi:^ ai:50, their cargoes were purc!:ase'] by the besiegers, which on trhr [ 67 ] ought always to be done, in strict justice, when it is proved that the neutral vessel was iLmorant of the blockade*. I shall have hereafter occasion to examine more in de- tail, what is considered as contraband hi i.var by t\vz posit he Law of Nations, and that, in examining the second principle of the judgment, where the question presents itself, whether the Swedish vessels detained can be lavvfully regarded as being within tlie case. Althou2:h I maintain that the maritime prizes made on enemies, and for a stronger reason, upon neutrals, are contrary to the natural Lazv of Nations, I adm.it, however, that they are founded upon the positive Law of Nations^ as well upon that which results * Tiie principles developed in this place, relative to t!ie iiK.galiry of msririirie prizes made of neutrals, according to the natural Law or Nations, dcs-Tve to be compared with the works entitled — Eisny upon the Liberty of the Naviga- tion and Commerce of Naitrah durbi^ the JVar^ by ToTZE, 1780, sect. V. p. 31, &c. translated into German under the title — Die I-'reyheit: der SchilTah.rt; Leipzig, 1 780, ^rer Absch, p. 27 — 36. Essays upon various subjects, relative to the Navigation, &c. by M. de Steck, chap. xviii. p. 1 17 — 127. K from L 68 ] from customs and usages^ as upon that which is ^^uxtXyconventmial^ and supported by trea- ties. This difference in the foundations upon which the legaHty of prizes may rest, is important to observe, as often as the question relates to a dispute arisen upon this matter between a belhgerent power and a neutral power. For if it be shewn that the right of visiting, and in certain cases, of detaining and having neu- tral vessels condemned as fair prize, is purely cojivcntirmal^ it thence clearly results, that the belligerent power cannot give to it greater latitude than the neutral power has consented to allow, and that in all doubt- ful cases, the constru6fion ought to be in favour of the neutral state, according to the rule of law : 7ion plus datum quajn c on- ce s sum. The neutral powers, even those who appear most jealous of the rights of their flag, have consented that the ships of war aiui craizers of !)e}ligerent powers should visit such of their mercliant vessels as they meet at sea; u;t, t(^ verily v, licther the ves- N< 1 be really i^cuirai, seeing that, as by a very [ 69 ] very common abuse, merchant vessels often carry a foreign flag, this sign is become very uncertain in pra6lice ; and 2dly, to satisfy themselves that it is not laden with m.crchandise prohibited by the law of war. But in granting to the belligerent powers such right of visiting and searching, and in imposing upon their commercial subjects the obligation of submitting to it, the neutral powers ha\e confined it within certain fixed limits, which the belligerent powers cannot lawfully over-leap. By the trea- ties, this right has been granted only rela- tively to merchant vessels which sail- alone^ but not relatively to ships of war, or mer- chant vessels which are under their convoy. The mode in which the visiting ought to be made, is in like manner determined in them with the greatest precision: the armed vessel must keep beyond the reach of cannon-shot, and send on board the mer- chant vessel a boat, in which, exclusive of the persons necessary for managing it, there ought to be only the Captain or another officer, the Secretary, and a third person at the most. The object of this jinquixy is, K 2 to t 7° ] to examine the papers ; and if they are found regular, the inquiry ought not to extend to the cargo. In no case ought the visitors to break open chests, or commit the least violence, under very severe penalties. SECOND PROPOSITION. We are now come to the second propo- sition oF Sir William Scott, by which he pretends, that the Sovereign of a neu- tnd state cannot deprive the cruizers of a belligerent ])ower of the right of visiting, by causing their merchant vessels to be es- corted by ships of war; it is partly upon it that he maintains his conclusion, bv which he pronoUiKX's the Swedish convoy hable to confiscation. I tAi.ink 1 bave proved that the svstem ot cruizers and pri\'ateers, and the right or visiting merchant vessels, which constitutes part (;f it. being purely con-vcnf/o/ia/, cannot admit ;mv arbitrary extension; but nothing- is ii-ore iirbitrar}', and conscc^uently more illegal, tlian the extension A\hich is given to [ ?■ ] to this right, in applying it to shins ivhich sail under convoy. All the tix-iitics which speak of visitation at sea, siipj)ose that it has for its ohjccl merchant vessels r.ot con- ■vovcc'l', and among the great niimher of commercial treaties, or v/hich a few only are unfavourable to the interests of neutral powers, we shall not find one vrhich makes mention of this right relati\ely to vessels escorted by ships oi v. ar. Such a stipulation would be in fa 61 absurd. The power v\ liich should put its hand to it, would consent to its own shame: in granting to its subjects an escort tor the protection of their commerce, it would leave tliem a prey to all tlie avarice of pri- vateers : and to this baseness, it would add that of makin. rcndvr them authentic r 'fo declare nuhliclv, douhts of the truth of .such declaratiouh, is to attaick tiie honour, to violate the riglit of the po"A-er iTO;n which they emauare. I'o make these douhts a tounda.tion for violatuig its iunsehcfion with force, is an act of hostility which, tiioui';h even it sliould not he followed by* \'/ar, cannot hut lea\'e remenibrances both with thcit power, and all others w ho find thcnischees by tlie act menaced with the samiC wiolcnce. To give to his pretension on this point a colour of instice and rei^ularitv, the En^:- li^h JuJ;::c declares that a similar proceed- ing would be i)eriecl:ly legal on the part of Sweden to\\ a.rds England, should the latter remain neuLral in a war to which Sweden SiiouiCi he a party, lliit until this opinion Oi an ;n(h\idu.;!, ho\\e\"cr respectable in otik'.- re--.pecb, l:as bcLW corroborated by ]/Ui}:u.: tcuth, iiu-s-.; Vv ho know to what a. «i-.i';!\x- the jh];y,^h aix; susceptible in the ];uuit or lionesur. aiui narticuiarlv when iii^ar iv;g is ((iucerned, will think them- selves [ 75 ] selves authorized to entertain some doubts on the sui:)iccl ; for during the sin.all num- ber ot wars in which Ehiirland has not l)ccn a party, she has constantly acted in tavour of the commi.erce of her subjecle:, according to the very principles which she now refuses to neutrals, and has displayed as much vigour and zeal to support the liberty of the neutral flag, as she now use? to aniiUiUate it. If we consult the very instructions given to their cruizers by the belligerent powers, however contrary they may be in general to the letter of treaties, and the natural Law of Nations, v>e shall see in them a new and very strong proof, that by the common fco?i- iurnicrj Law of Nations, neutral vessels saihne: un(kr co?ivo\', are no more liable to ■'.■isitation, than bv the con-jcnt tonal Law of Nations. For to the present time no power has thought itself authorized to extend to tliemsclves that obligation. England her- self, who ill the present war has given to her cruizers more extensive powers than in p'^cceding wars, has not comprised in them /, that [ 7^> ] tliai of vibiting ships miilc?- convov. T\\\^ cicarlv appears from the judgment itself, where it ^avs, that upon the answer of the Swedish frigate, Captain Lawford hav'tng entcyta'incd doubts on the conduB lishich he cu7hi to pursue in so delicate a situation.) dispatched a messenger to the Lords oj the Adiniraltv^ for their instructions; a precaution which, see- ing tiie extreme superiority of his force ^ would have heen evidently superfluous, it j^is instructions had authorized him to visit \'essels under escort. That the Admiralcy ordered the seizure and detention of the convoy, makes no change in the business : for according to the Judge's ow-n acknow- ledgement, the sole effect of that order is. to discharo-e the Eno;lish Commander of all personal responsibility, without legitimating by it, the attack which results from it, upon a neutral state, if, in its principle, this de- tention were illegitimate. Although every person who, claims a nght, is bound to establish proof of it ( Aijirniayiti non negantl incunihlt probatloj , })arlicularly when the question is that of a right, [ 11 ] r^ght, new, and which has not been ^'et exercised, Sir William has not been able to alledge any treaty, anv law cither ot liis own country, or foreign, which authorize^ the visiting of vessels under convoy. It has not been more possible tor him, to cite among the great number of writers who have treated on this part of the Law of Nations, a single authority that justifies it. fie has been full a.^ little capable of defend- ing its justice by principles lounded upon reason. For Vv'ant ot solid arguments, he lias had recourse to vague and insignificant declamations. I have, on the contrary, de- monstrated by direcl and incontestable ar- guments, that such a right cannot belong to belligerent powers. However, without in anv manner confining myself to them, 1 proceed to render this truth more evident still, I )y producing precise treaties, as well as laws and declarations, and citing se- veral authorities of the greatest weight. The onlv maritime law, within my knowledge, that contains a positive deter- mination upon this point, is that of King L 2 ClIRI'^'- [ 78 ] Christian V. oF Denmark, which may be found in the fonrdi book, chiip. vih art. 2. of his Code. It stales, " that in " case v/hcn, from the fear of privateers, " or other unfortunate accidents, any ves- *' scls beloni^ing to suhjceis ot liis Majesty *' should iointosaillo-redKr, if thereshould ^'- be h-ii-'^d amon;:; thern anv vc';sci in a -' state to be htted i(^Y miiilarv scr\'ice, it ou;::ht to carry t : s r . ^: roval ti^; o' *' ti^c rest. (:.:^ net s^iifcv toiTiL;!! Acsseis to ■' board, visit, cr see ]ts papers, under any '' pretence whatever: but on tlie contrar\% '' to keep them at the greatest (hstance '^ possible, in w iiich the other ^■esscls sail- '- ing with it eight to assist it witli all " their ])ower; and if any foreign vessel •' should aLtemr)t to compel it bv force to '• such visitation, it ougiit to -jppGsc itself t-.- / 'C///^ all its pi and not permit an- thu-;g tliat aniounts to am attack upon the Ahiiesty of the King, or upon his sul;iecfs. If any person acds diflerentlv. and does not put liimself in a state of det. ijce vdien he can do sr), lie shall be puuisl-ed according to the ordinance of *' th.: [ 79 ] *' the marine*. If the fault should pro- '* ceed from any of the crew, who should " not have done their duty on such an " occasion, proceedings shall be taken in *' the same manner, with respecl to them, ^' according to the ordinance of the ina- " rinej-." Cur legislators have, conse- {lucntly, already, in the last ccnturv, im- posed on ii^crcliant vessels iJic ohligction of not siijfcrij:^ c/iv \:h!t(iiiGii^ when ti.ey sail toorether, ana that one can be found amon.o- them which may be armicd and authorized to carrv the roval flair: and this, as much for the lieu our oi" the flag itscH, as to pre- vent any injury being done to the sul^jecLS of the King: from whence it is easv to infer, V. hat \\ as the opinion of the legislature with respecl to vessels sailinii: under the -1 o escort of a shio of war. It ''■" Tlie ordinance of marine liere mentioned, is no doubt that of the 27th of Alarcli, 168S, though puhlished r.fter the code. t!ie articles 112, 115 — 124, impose iur i^my, and tort'"eitui'e ot lire and goods, upon the officers, t The ordinance ciied, inflicts in ^ 12, corporal pu- nishmon, or death, upon tiiose wiio ihall not de'end tiieniselvcs as they ought; and in the § 110, the pain ot dear]) upon tho:.e '.vho do not put themseivcs in a state of defence. [ '^o ] Ii rnrr.', jii triitli, be matter of doubt, wnel'hcr the reiusal of vessels sailing toge- ii;cr to siibinit to be visited, be founded iipoii tlie Law of Nations; seeing tiiat the mere atccstation of the regularity of the vessels, and of their c-ar^roes, p;iven bv the cai^tain oi" a n.ercnant vessel, v ho is him- self onb' a private individual, and besides c/! hUci-ji!.cd party ^ cannot afrord to priva- teers the same security as that of the cap- tain (Ji a man of v ar, acting according to ti-.ee>:]jre-s order of his government, vrhich, alter all the le^^al formalities have been ob- served, authorities him to declare that ail is icgular. Thus, in sancfionmg in the for- nvjr curic a probleniaticcil right, the law has \}.v.xc.)\ coiiurmed m the latter, a right V. Incii, frciin Us nature, \\ a^ certain and d'.-tern'ti]:ed. '[ he same article of this law proves, that tr.e nra^rision or viindravin^r neutrals (rem \'isiLr]ti(^n, bv means of an escort of ships ot war, licis not began to manifest d-fcnrc, >-:: \\\'.'- ,-t;;m!r.M th-ir post: it is tlic ^)!dinniK:c of fh'j S:!'. (■: J■■n:a!^• 17;:. \\liich is iiijw in foice, aiici itsril [ «■ ] itself in our time; that it is, on the con- trary, an ancient one, and that more iati- tLide was given to it formerly than at |)re- tent*. Cf all the treaties which contain stipu- lations relative to this objecl, the most ancient that I knovv", is the treaty of com- merce between Benmark and llussia, dated Petersburgh the 8- 19th of Oclober 17S2. The 18th article expressly imports, that in cases vviiere one of these states should lind itself engaged in a v ar, the merchant vessels of tlie neutral state shall be subject to a lec-al visitation; but if they should be convc} ed by one or Uiore ships of war, t//e slniule dcchration of tlic ofjiccr coimnandijio^ the escort^ that these \rssr/s do Kot carry any tJduiy contraband, shidl be perfcciJv n-'ncicnt^ cmd that there shall he /lo nantka of visita- ■^ We rnav, inoveover, compare the disporitive ot this law widi tlic ordinance of the 22d of September 1658, relative to mercliant vesscU sailing for America, t.hc coait of Guinea, ?.nd the Alediterranean, art. 16 — 18; \v!:ieh supposes tile right ot I'cliiiing visl:aiion, and autliorize; *hem to defend thear-civei in such situatiofi. tion. [ 82 J iioir' . l''^-C same stipulation will be found in tiiC treaty of commerce between the •Suites Cieneral of the United Pro\inces .'nd the United States of America, dated the Ilairne the 8th of Oaober 1782, article lo-j-; and in that between S\veden and the United States (;f America dated ^•- Sec tlic collciTtion of treaties hv M arttx?., vol. ii. p. 292, where it is said — " S'jj);)0;in2;. ncvc; liielc^s, thr.t *' such merchant vessels should be escorted hv one or more *' sliips of war, the simple declarr.ti'. ai of tlie officer co;yi- " manding th.c c^ccrt, that th,e:e vessels do not carrv anv " tliii;'- tcrnrrahand, ihall l)e coiisidercci as tuilv sufficient, " aiid no visit shall take place." 7'he \'-y}.\ article stages. *' A> s;;on as it sliall have appeared hy r::_ V;uchier5 pro- '' c;u( ed, (;r hv tiie verlal assuraVice or the officer c-.-iv. •' iiiaiiding tlie escoit, ii;at the i-KJ.hau: vcssck are iiot ♦• laden with ahv iiung c. >ri:raband, ih; v shali be at hbert\ '• to continue then course svithout anv iurtiier hiiuler- *' ai.'?; a;id those ships of \va; . or privateers, of the oia:; " part or tiie Cnh:.!', whicdi ihall. JK:>i^^;:ii lancie::, al^^.'■/ '• riiem^-eive^j to nudeu or eii.him i^.-- in anv manner what> •• ever, ib.e s'lips in (.jUestKjn. shall b.c cbh;ed to ansucr *' for it in tiicir jieisons and properv'c^, he^idei the iei)a- •' ra;:(,i:i due for tl^v, ii::.nlt ohcred to the flae;." t Co;!: riion of AI aiitf;;s, same s^:l. p. 2 54: " dug; zal *' 3,!-'-n \r iMtle \an pa, !e:en !:;cveri:,f worden van schcLpea " fnuler cen\ov der Ouilo^^sriieepen maar ge'oof \\orden " ;:<■:;. \^n aan h-;: wourd \ an Cy \ officier het convoy Paris, [ S3 ] Paris, 3d of April 1783, article 12*. Wc sec similar dispositions in the treaty of commerce between x'lu; tria and Russia, of the I -1 2th of November 1785, article 13; as also in the declaration of the Emperor of Germany, and of the Empress of Russia, article 15+; and finally, in the treaty of com.merce between France and Russia, dated St. Petersburgh the \\ fa^fJl'y^Vs^^' article 3 1 ; a treaty so much the more re- markable, as these two great maritime j:)0wers recite in them., as axioms, and con- firm therein, four years after the conclusion of the American war, the principles ad- mitted durino; that war bv the armed neu- tralitvl. The treaty of commerce betvveen R^ussia and Naples, of the 6- 17th of Ja- nuary 1787, article 20, contains the same regulation; and adds thereto, in article 21 fyrhat also aooears in the treaty concluded v\'ith France), that tJic cruisers "i^JlIcJi^ after ■■ Martens, vol. ii. p. 334: "nevertheless, tlie exhibit '• iionoftlie papers y.\d\\ not be demanded of merchant ships '' under I'lc convo-, of vessels of v,';ir, but credit shall be gi- ■ '•■CD to the v.ord ofihe officer coniaianding the convov." ■' MCrti-xs, ih'id. p. 625 — 638. I aIakteks, vol. iii. p, 17 and iS. M hcjvhi? [ 84 ] hnv^'i^ received the verbal declaration of the chief, shall hinder the merchant vessels from continuing their course, or molest the?n, sJiall ansvcer tJic damage in their persons and property; besides the reparation due J or having insulted the fag-^. A like disposition is to be found in the treaty between Russia and Por- tugal, of the 9-2oth of December 178;-, articles 25 and 2 6-1-. If stipulations of this kind are not to be met, except in modern treaties, and not in ancient ones, it is because anciejitly no bel- ligerent power had conceived an idea of arrooatiiig to itself a rii war of their *' nation, the former shall not in anv mrfiii-iCr be toucLeu, " biit liic commander ot the convoy mu^t be addressed di- " rectiv; and ir jje declares that tiic said ve^sc!s r.nd;r his " convoy have not on board any merc];andise, coutrahaad " id \v^ii\ th.e partv inquiring shall be content with tiiis " declaration, without requirin^^,; th^at a visit should bcr *■' jnade." that [ 88 that this disposition is general; that it ifiakcs no distin6lion between the statet^ with which there arc existing treaties, v.diich, in this case, interdict visitation, and the other neutral states ; or, to use the favourite exnression of the Enfrhsh, between nations J)rii:i'/cgeci ?ind not privileged, Tlie Enghsh privateers never arrogated to thcmseh'es sucli a right of visitation ni ancient times, and they have done so but very rarely in modern times. I know but one instance of the kind in the European sens during the American v/ar, and though it concerned o:ily the Danes, it excited an i])ii\'ersal sensation. Several iinglish cruizcrs together nisisted upon visiting some Danish mcrcliantmcn convened bv a frigate under the command of Captain Schionnix?;: tlie \'isit having been retuscd, they had re- C(.^ursc to force, and that officer having had the w cakness to yield to it, he was cashiered l)-\ a court-martial appointed for that pur- };cse. In the Indian seas, the privateers v.hich from one tim.e to another, have rLtl^rr.j .cu like illegalities, have been alwavs rer-i'loed as tliey deserved. |3ut. however illeiral [ 89 ] illegal the conducl of the English priva- teers may have been upon more than one occasion, it does not thence result, that the government has really approved it. Dur- ing tlie present war, the Danish convo' s have been always respe-iled. There has been only one single occasion on vrhich some English ships of v^ ar attempted to visit the most distant vessels of a numerous Danish merchant fleet, sailing towards the Medi- terranean under tlie escort of a frigate; but the Danish Commander liaving complained of it, they declared tliat it was a mistake ; and Lord St. \^incext gave him complete satisiciclion ; a proceeding which, in my opinion, adds not a little to tlie glory which tiiis great Admiral has acquired him- self by his brilliant exploits. The French, on their part, restored to tlie Danish Com- mander, vessels taken by their cruizers after tliey had been separated by foul vv^eather from Liieir escort; and that, upon the decla- ration that these vesicis constituted Dart of his convov. The business of the Swedish ( onvoy is tlic first case vithin my know- ledge, in which a contrary conducl h s l.-f'eji authorized bvthe liritish governmen;, and L 90 j nncl in v. hicli tlie courts have iindertakcii to render it legal by a formal judgment. This is proved by the judgment, which docs not ciie any precedent, a circum- stance which the English Judges never fail to consider as a sufhcient authority, al- tliough, in truth, the simple judgments ])ronoun.ced in a preceding cause, cannot in tlic eve of reason be valid a<^i;ainst forei2:n states. It is undoubtedly by rc^ison of the no- velty of this ijrctcnsion to the right to visit vessels under convoy, that the prinxipal publicists, such as Hubnee, Galliani, La3,i?redi, Steck, whose works treat ex- pressly of the rights of neutral commerce in time cf war, have not touched this r[uesticn, but have simply conhned them- selves to inquire the extent which they may lawfully gi','c to the right of visitation by cruizers which meet on the high sea, neu- trcil ships not cc;riVoycd. The letter already cited or Puiwkxddr? to Groningius*, shews, nevertheless, that he considered the neutral [ 9- ] neutral powers as authorized to convoy the nierciiaat vessels belonging to tlieir sub- jects, vrhen they v.'ere not laden with arti- cles contraband in Vv^ar (dc contrchtmde de guerre). From vv' hence we may infer, that the ship of war charged to escort them, appeared to him founded in opposing itself to all visitation, for otherwise the escort irranted would have been without utility. Of all the vv^'iters whom I know, Mar- tens is the onh^ one who has treated this question, although in a very succin6l man- ner, and he expressly refuses to privateers the right of visiting merchant vessels sail- ing under escort. This authority, single as it may be, is so much the more v/eighty, as that publicist has acquired the greatest celebrity, by the extent of his information in every thing relative to the conventional l^aw of Nations, and as his impartiality cannot be suspected by the English, seeing his quality ^iOrdlrzry Frofssso'' ofdke La^v tj Nations^ on tlie foundaricn of His Bri- tannic Majesty at the University of Gottingen. N TiiillD [ 92 ] THIRD PROPOSITION. After having thus estabhshed, that the right of visitation cannot extend to vessels under convoy, I proceed to the examina- tion of the third proposition of Sir Wil- liam Scott, stating that the penalty' in- curred by the refusal to submit to visita- tion, if accompanied witli violence, is the confiscation of the property attempted to be withdrawn from it. For this purpose 1 shall prove : I St, That this proposition, considered in its full extent, can be hardly just, when even the question should only relate to vessels not convoyed. 2dly, That it is absolutely false, if the question relates, as in the present case, to vessels sailing under the escort of a ship or war. 3dlv, Finallv, that supposing even that t:iis proposition v. ere just, abstractedly ij'i:, it cannot be apr;lied to the ure- sent '^n.rp : I ■ [ 93 ] sent case, considering the particular nature of the circumstances of the fact. I. The arguments of the Judge of the Admiralty are drawn from a passage of V ATT EL ; from an ordinance of the Frefich rnarrnc of 1684, with comments by Valin; from an ordinance of the Spanish mar'rne of 1718 ; from an order issued in 1664, by the Privy Council of 'England', from an English proclaination of 1672. Vattel says, " It is impossible to prevent the importation of contraband goods, if neutral vessels, met at sea, are not visited : there is a right, therefore, of \isiting them. Some powerful na- tions have refused, at different times, to submit to this visitation. At this day, a neutral vessel vjliich should refuse to suffer the visit, would subject itself, by that alone, to be condenmed as being a law- ful prize*." '^ The Law of Nations, by M. -nizance or the validitv ot prizes, it is there hiid down in the first instance as a principle, that the sliip and cargo, once '^ciy-cd, are sul^jccl to conhscation, and in- stead of imposing on the_/):V/;j..vrivj- (.sj^oliu" * 1 am nr.sufv'd tlia' t'lc Court oi" A.Imirakv of Loiiclon, pronounced |udgino!U onlv in 1799, iii :"'• case relative to a vc.ool seized (hiring the seven years war. 'I'lic Professor ■ Ujscn, in ids Naehizar v'l seiner Abhaisdlnn -^ iiijcr die '/.crMiiti:n : lie-' >~xe!ian(;;/;,,, I lamb. 1794, n:^s anctlier case Mr the .s.une. n:{uire, cun.r.ence;! in Jar,'.;.iry 1781, and viiich was not indslied :\i tlie anie \\ lien lils ircaiise was widrten- tei:rsj [ 99 ] tturs) the obligation of justifying the lega- lity of the seizure, they are the plu7idered fspGUes) on the contrary, who mast prove that it is ill-founded. To this disadvan- tage, so oppressive for the most legitimate claims, is joined another not less, that is, that the nature of the proofs required from the complainants, is not previously fixed by any positive known law; and that in every point they exceed what the' natural Law of Nations would require. These are particular and private rules, dictated by the momentary interest of the bellige- rent power, and which vary according to circumstances*. Let us suppose, in fine, * England, for example, has not absolutely any settled law relative to maritime prizes. This defedl obliges the Judges to create aibitrary rules, which change according to circumstances, so much the more so, as they are, be- sides, bound to follow the letter ot the law; for those who are used to walk alwavs in leading-strings, have their step ies5 tirtn. Although the foreign states have often and loudlv complained, that the English tribunals do not con- form to treaties, and that in general they do not follow fixed laws, government has not to the present time taken any measure to remedy this evil, by acls of parliament. It is pretended that this is a matter of policy ; but it will he allowed at least, that this is not a free and liberal policy. See BuscH, in the book already cited, p. 78—84. o that that after a long and expensive process, the claim should be allowed, seldom do the owners obtain the reimbursement of their expences; and more seldom still, an indemnity proportioned to the loss of pre- cious time; and to that which results from the deterioration of the vessel or merchan- dises, from the dispersion of the crew, from the fall of prices, and other changes which happen in commercial affairs. Af- ter such an exposition, founded upon fa6ls, unfortunately too notorious, can we blame the resistance which the neutrals make to a right, wdiich in its exercise so often assumes the chara6ler of robbery? And will i'L not be found, on the contrary, that in such case confiscation would be an ur.- just penalty, and in every point dispropor- tioned to the offence ? Jf to justify the confiscation, it be al- Icdgcd that it is the only possible mode of maintaining the rig]:it of visitation, it will ncvertliclcss be clear, that it ought not, iri this case, to extend but to those who refuse it; that consequently, the vessel only should be liable to L.onjiscatmi^ seeing that the owner ought [ .0. ] ought to answer for the iicls of the cap- tain, who is his agent; but that the ecu-go cannot be in this situation, unless it be- longs to the captain, or to the owner of the vessel, or that it should be enemy's propertv. For by what principle of justice can it be made a crime in the freighter, tliat the captain has resisted ^isitation, unless it be clearly proved that it v\"as at his request ? Upon this point PIu] ner is entirely of my opmion ; and Vattel sa\s also, simply, that in case of resistance, the vessc! is at this day liable to conjiscation\ but he- does not sav a word of the car^ro. Sir Wir-LiAM finds fault with Vattel, for having spoken of confiscation as of a law purely r/iodern. " Wlien it is remem- "• bered," says he, " that it is a principle " not only of the civil law (on which great •' part of the Law of Nations is founded), "^' but the private jurisprudence of most " countries in Europe, that a contuma- " cious refusal to submit to fair inquiry *' infers all the penalties of convicted *' guilt." Reasoning evidently forced, as the principle of which Sir William o 2 speaks. [ J02 ] speaks, relates only to affairs of ordinary jurisdictions, where the defendant is legally cited before a tribunal to which he owes obedience. We must find an extreme want of means to apply, as he docs, this same principle to a dispute arisen on the high sea, that is to say, at a place over which no state has a riHit of soverei2:ntv; be- tween persons who obey sovereigns differ- ent and independent of each other; and ac a time when it would be absurd to sujipose that they could have there a regular cita- tion or a competent tribunal. The Judge of the Admiralty further re- lies upon the 1 2th article of the ordinance of the French marine, promulgated in 1 68 1, which states, that every vessel ouglit to he considered good pnzc^ in case oj resist- ance and conih at \ since, he adds, according to the commxcntary of Valin, page 8 1 , the resistance alone is sufficient for the confisca- tion of the vessel ; and he refers to the Spanish ordinance of the year 171 8, which uses the disjunctive particle or, instead of the conjunctive and^ in case of resistance or conmai. I shall [ 103 ] I si'.all observe in the outset, that in the Cormnejiiary of Valin, which I have nov/ under mv eves, th.e Spanish ordinance IS truly mentioned, hut ^^■ithout adding to ir that remark*. Sir William does not put so great a value, in this point, upon his assertion, but because he ]:)retends to be able thence to conclude, that tlic vic-iacc nlnnc of fightings was sufficient in the case of the Swedish convoy, to justifv the co?ifisca- i'ton. But this interpretation is evidently contrarv to the article which he cites, taken in its whole extent. '^ Every vessel *'• (these are its own terais) whicli sJinU re- *- fuse to strike its sails ^ alter it sliall have *' been summoned bv our vessels, or by *' those of our subjccls, armed for war, " 7nay be forced to do it by the artillery, or *' otherwise: in case of resistance and combat^ '' it sliall be good prize." These expres- sions clearly shew, that it is not the mere * T!ie quotation oTthe pac;e is also inaccurate, for tin's matter is not treated in ]). Si, l)ut in the second volmne, p. 269 — 271, of the Roc'iClic cdiiion of 1771. Perhaps Sir William means to speak of the trcaiy of prizes, by tlie same author, which I Iiaye not been able to procure: altliough thJs would be liis Comnu/Uary upon the Ordinance t>f tlic A'li'.r'iuc, which lie has cited in the judgnicnt. yfusal [ '04 ] rn:i'..l ']] ihc T.silj or the menace of making rLs:n.:incc^ that is the case foreseen bv the hiw, but a real and adi'ct resistance. This is also the ivKinner in which Valin ex- pkiiiis it in hi:. Comroentary : " If the cap- '' tain of the vessel (says lie), obstinately *' encragesiu combat, rather than strike his '' sails, and tiiatthe ves-cl si:iOiild be taken, " It bhah. be considered as goo-i prize; be- ^' sides ti:;e i^ersonal punishmeiit which " may be Uidicted upon hirn, if he be a *' hrcaeinnan, particularlv it he has resisted " a kinsc's shin." Accordinir to the re- mark of Vat. in upon the ibllowing article, it ij.e strikes liis sails, and refuses only to pro- duce bis papers, this punishment does not take place, but the vessel ouglit only in that case to be carried into the nearest French port, there to be legally visited. We must not think, from the expression ccery vessel^ that tills law extends to all vessels without exception. The sequel of the article shews, triat it only relates to ships not escorted. A general expression has been cltosen, to make it be seen that the French ships are comprised in it, as the neutrals. This is what Valix inmself observes. We know, moreover J [ '°5 ] moreover, that a sentiment of justice and humanity determined Louis XVI. diirinjj: the Am.erican war, to abohsh this ordi- nance, in every thing that rekites to mari- time prizes, and it has not been without exciting an universal discontent, that the French have restored it in force in the pre- sent war. We cannot then, be sumciently astonished at tiie kind of saiisfaci;ion with vhich Sir William cites this ordinance, nariicuhirlv if we observe, that notwithstanding all its sevcrit}', it is much more moderate still than his judgnient ; for it speaks only of merchant vessels ;;.;/ coyi\:cved^ and of a re- sistance sufficienth-' obstinate to require the using of an armed force: instead of which, the Judge extends the confiscation whicli he pronounces, even to convoyed vessels, and considers a verbal refusal to suiter themselves to be visited, accompanied by menaces of resistance, as equivalent to an eile^live resistance. Finally, the French law confiscates only the vessel, and the English Judge adds to it the entire cargo. The [ 10(5 j The same observations apply to the Spaiiibh ordinance, wiiich is copied from tluit of I^'rance. I am not able to decide positi\cly, A\hether it be now followed in Spain, as pretended in the judgment. At least it is certain, that this power has testi- fied in the present war all possible respe6t for the neutral flag. The merchants have liad frequently cause to complain of French and English prixateers, but not of Spanish. Finally, mention is made in the judg- ment, of two English orders, or proclama- tioii:;. of 1664 and 1672, peculiar, from tiicir nature, to the war \\'hich v^'as their (A;;Cv:\:, and A\iiich, ha\-inp- none ot the cl;ara..l;ci-s that constitute permanent laws, Ccinno!-, at the discretion or a judge, be ex- t-: iuled to th.e present Vv'ar : an extension v.hicii v\ould be, besides, bO much the less pro-p^r, as ilie Judge himself acknowledges tluiL several articles of these orders were at the ver\ time of their publication generally (;::.;ipi)ro\'ed, as oi unheard and extraor- (liuurv bev^rit}-. He thinks indeed, that we ought to except from this censure, tlie article on which he rehcs in the present business : but nothing speaks in favour of this exception, but his ovrn single opinion. lie even says, that upon several occa'rions !l had not been observed, A\"hich proves clearly enough, that the English govern- ment had found it too harsh. To give a nevv^ and obligatory force to a temporary penal regulation, to a regulation superannuated and fallen for above a century into disuse, is not only, on the part of the Judge, a legis- lative acf which exceeds his competence, but a manifest injustice, and so mAich the trreater, as the question to whicli it relates is that of a penalty whicli goes to no less tlian the total ruin of the parties interested. In facl, in this resoecl the article cited is much more rigorous than the French and Spanish ordinances, as it declares the cargo <:-ood prize as well as trie vessel ; but, like these tv\-o ordinances, it relates only to a irsse/ not con-'joyecl, and solely in the case where it shall jighl^ or 'make resistance, il. Admitting for a moment, that the least resistance to the visit puts the mer- p chant t 'o8 ] chant vessel in the situation of being con- fiscated, it cannot thence result, that this penalty should extend to vessels under escort. It has been shewn, that it is a rule founded upon the conventional Law of Nations now in force, that merchant ves- sels com-oyed by ships of war, are not sub- jecl to visit*; that no treatvf, no maritime hnvt, none of the instruct iojis ]:)ublished for cruizers, even in England §, authorizes it; — that the cruizers which meet such ves- sels, ought to be satisfied, if the officer commanding them gives his assurance that none of the vessels which he escorts, is en- gaged in illicit commerce ; and that after such an assurance, the cruizers ought to abstain from all visit, and permit the con- voy to pursue its course without any inter- ruption. From this principle it results, that the refusal made, \\hether by the commander of the convoy or by the ves- sels convoyed, of suffering visitation, is not th.c ^^Lolatio'n^ but the exercise of a legitimate rigiU ; and tliat, far from this refusal ex- •" Sec page 77. t See page 77. ;. ScL.' i)agc 81. •^i Sec page 86. posing [• 1^9 ] posing these vessels to confiscation^ it is, on tlic contrary, the attempt to visit vessels Siulnig under the safeguard and the immediate responsibility oj a sovereign state ^ that is an outrage of vrhich that sovereign would be certain to obtain reparation, if there ex- isted any tribunal of justice between the European States. The English officer who made the cap- ture, seems to have had in that point, sounder ideas than those of the Judge, since he did not dare to take upon him to insist on the visit, until he had been ex- pressly authorized to do so by the Lords of the Admiraltv. This authoritv not havins; been produced in the process of the cause, it may be reasonably doubted whether it really ga\'e the power to em.ploy force against the Swedish frigate, in case the latter had put tile menace of resistance into execution. III. After having demonstrated that the jd proposition of Sir William* is neither just in itself, nor applicable to convoyed \'C5sels, 1 proceed to shevr, that even though Vr"e should admit its justice in general argu- - Fee pa2c 87. p 2 jiient, nicnt, it cannot apply to the present case, ( onsidcring the particular nature of the circumstances of the fact. It is an acknowled.o-ed truth, that an in- fcrior cannot be prosecuted for an act done in pursuance of the order of his superior, invested with legal forms, even though this order should be in contradiction ^^'ith the law : for it docs not belong to one in a subordinate situation, to judge ^\'hether an order, which he cannot disobey Avithout being punishable, be legitimate or illegiti- mate. In a well-governed state, you can- not punish, for example, soldiers or subal- tern officers, or officers of police, because by virtue of an order of their superiors, they have seized persons or property which ought not to have been seized. It is against the commanding officer, or the magistrate who gave the order, that the party should have recourse. We know that the captains of convoyed vessels are bound towards the commander of the escort, to a subordina- tion full as severe as that of common sol- diers tovrards their chiefs; the least disobe- dience uf his orders is rigorously punished. Sup- [ ■■■ 1 Supposing then, that the reiusal to suffcT the visit \verc a fault, it could not be im- puted to the captains of the merchant ves- sels, but onlv to the commander of the escort, vvdio ordered this refusal, or to Ihs So\"ereign, if this disposition had been made by his order. The convo}'ed vessels, or their carL'"oes, could not therefore be confis- cated for having refused the visit; and the belligerent povrer could iiot have any other risrht but thcit of d^mandimr from the neu- tral state, the punishment of the com- mander, or e\ery otlier kind of satisfac- tion. The Judge of the Admiralty appears to have felt to a certain point, the conse- quence vrliich results from this subordi- nation of merchant vessels with respccl to their escort, since he sneaks of the frio;atc J. o as being the rn'j:t cidpchlc (the principal wrong-doer). pTom the manner in which he explains himself, one might be tempted to believe, that it has been nothinii; but the 7nildnesi of the EnLflish i:;o\'ernment, and /;/ respect fcr f he property oj an august So\:ereig'u ujiich have been able to prevent the Court of of Admiralty from proceeding against tlii^ friT(^m;"s Cn^n^ionrarivs on i::e Lnws of LnghuiJ. ixjr k iii. c;..;|'. vii!, •>. !2r:, o^ livj ^cili London :(;ii;on, 8vv. escort: 1 1 1 escort; for without insisting here upon the illcgahty of a visit exercised upon convoyed vessels, the Svrcdish commander li^id inchs- })utablY the right of requiring tiiat the English should observe, upon this occa- sion, the formalities to which privateers \\hich attempt to visit merchant vessels, are subiei^ed. The forjietfulness of these formalities, was an outrage which he had a riirht to resent. And to what lenotli WPS not this forgetfulness earned, if it be considered, that instead of proceeding openly to the visit, in the friendly and peaceable manner of which treaties and usage prescribe the obligation, the English comman.der took advantage or the darkness of the night, and emploved armed boats, not to visit the vessels, but to take posses- sion of them bv force : Though a violence so manifest, had produced on the part cf the Swedish commander the utmost hosti- hties, thev could not be considered as an illegal resistance, Vv'hich could authorize the Judge to pronounce the confiscation; and sucli, upon this point, is the opinion of \h-\LiN himself. That writer, to vhosc authority the English judge would not 0^2 liave [ "8 ] ha\c appealed, if it were less favourable to privateering, declares expressly, that if the cruizer has not hoisted his flag while he was preparing for the visit (which formally excludes all undertaking- of this kind dur- ing the night) the resistance made by the captain of the merchant \'essel is perfectly legal ; and that the conliscation imposed bv the ordinance, cannot take place. Besides, supposing that this species of resistance exercised by a siiigle vessel, had been as reprehensible as it v.as legal, it could not visibly bring along with it the confis- cation of the other vessels, which, as has been seen, made no resistance, properly so called. T shall not dwell upon the various ille- galities which have taken place in this affair ; such as these — the not having forth- with seized the papers c.^f the several ves- sels, and consequently, the taking posses- sion of these Scimc ships before the party had sou2;ht t(j satisf\- biimbch v. lietiier tliev were regular or not — tiic not ha\ ing com- menced the uKiicial proceedings until a lone L 119 ] time alter the detention of the vessels — the having spun them out tor a considerable time, &c. &c. x'\lthough the Judge has acknowledged these illegalities in his judg- ment, they would be of no interest in a work, in which it is solely proposed to examine those among the principles on Avhich the sentence is founded, as could be drawn into })rcceQent in future. Now to resume \vhat has been said in, treating on X^VlQ, first principle (premier mot'if) of the judg]nent, relative to thcfonn^ I be- lieve I have clearly proved, that the refusal to submit to the visit, cannot be considered as a sufficient reason to confiscate the Swe- dish vessels. The following is, in a few words, the series of the principles upon, which my demonstration is founded. rst, The visit, Vvdiich the cruizers of bel- ligerent powers exercise with respect to ves- ■sels \\ liich thcv meet at sea, is not founded upon the 7iatural Lazv ofi Nations, but only on the convejitional La-i^j of Nations', it can- not, consequentlv, be extended beyond the limits fixed ^ov it bv treaties. 2,dly, r i^= ] 2(11}', No treaty has ever granted to belli- gerent })o\\ ers, the right of visiting neutral merchant vessels sailing under the escort ot sliii)s of war. 3dly, The neritr.il state which should grant such a right o\er the vessels of its subjecls, ^\hich it con\'0}s, would do aii not having bv treaties anv other riglit over vesscis not con\'oyetl, than that ot \7;/////^" ///;'/;• papfrs. they find in tlic escort grcinted by the neutral pov er, an additional secu- rity for the legalitv of the commerce of tiic merchant \^essels whicii are saviling und^r its protecPcion. ftlil}-. The commercial treaties con- cluded in these latter times, agree in re- iec'LinL;- 121 ] jecriiJii; expressly, all visit of ncutnil vcs- -ejs cuiivoyed by ships of war. 6thlv, The illegality of such visit, is ac- kiiowledgcd by the i:;elligcrent powers ii^cinsclves. in their regulations for tlie i;ri\'atecr5. -■thlv, The refusal made bv a merchant vessel not cojl^■o^cd, to submit to the vi^it, vannot either by the common (cinUiniicr) J .aw ot Nation-, or by treaties, bring along wirli it tlic eonhseation of tlie vessel, and -till lv;^s that of the ear-^o: die onlv nenalty which vhe^.'-e naturallv hows, is the obliga- rioii LaK]:jy v. hicli. tnose wlio rehise the V]sit, ar 'rr ortmij- tne damai-'csaiidtne ribquco wl'^hh may rchiili to them rrc;m this refusal, it lo true, vluit the parUndur ordi- nances or the nvirHie ot bome btatCN, pro- nour-ce the coiihscation of the \ essel winch has ODUOScd an active and obstinate resist- ance ro a \'i5it demanded iii all the requi- site idrjn^:; but thi;^ confiscation takes ulace m that case ahmc. and cannot be extended ro tjie carjTo. [ 122 ] otlily, The laws pronounce no penalt}- for the case of a mere refusal to submit to the visit, when it is not accompanied with an active and real resistance, nthl}-, Merchant \'essels sailing under con\'o\-, can so much the less incur the penalty of confiscation by reason of sucli a rciiisal, TiS L'ley are subjecl to tb.e striciest ^subordination with respect to the com- mandant Oi the escort. icthlv, The Swedish vessels cannot be coniiscatcd, seeing that they made no effec- tive rcpistance. and even thoutrh thev should have niade some, it Vv'ould not be blame- able on tiieir ])art, seeing the orders Avliich they recei\ ed from their commander, and the iika'al manner in which the Enp-lisbi commander has -orocccded in this aifair. 1 iithly. In general, this business cannot be for the decision of the ordinary tribunal of justice, but it ought to be the objecl: of an arramgement negotiated between tlic tv\o courts, since it is clear that the Swedisli com- mander has not acfed, but accord hi jx to the precise orders of his government. SECOND i^3 J SECOND PRINCIPLK, W'e now come to the sero?iJ pr'mciph\ b']:)on which the Judge of the Admiralty has founded hi.-, senteiice. This principle, which, as \\c liave seen, rehitcs to the me- rits of the case (au Jond dc la cause) ^ is drawn from the nriture of the Swedish car- goes, ^\l]?ch the Judge pretends, are hable to conliscation, as being mcrchandhcs com- prised under the de?ionn nation of contraband In ■zvar, and destined for the enemy's ports. It has been already remarked in a pre- ceding })age*, that according to the natural Lazv of Nations, tliere are no merchandises, the commerce of which can be reasonably proscribed to neutral nations, under pre- tence that tliey are contraband ; that war not being capable to change, relatively to belligerent nations, the situation of those who take no part in it, the commerce whicli before the war was lawful for these latter, ought to be also lawful pending its "^- See pn;';e 6j, & Ciu- [ I^+ ] duration ; and tlvat, m consequence, the subjecls of neutral powers cannot be de- prived of the right of selling to belligerent nations the articles which serve for war, as well as every other sort of merchandise ; provided always, that they observe in this respecl the most strict irnpartiallLy, and that they are as ready to CcUTy on this com- merce with tliC one party as with the other. From this principle it naturally flows, that the restriction by which the exportation of certain m-erchandises to the eneiPiV has been prohibited, under the denomination of co?nral)fir:d in ivar^ is solely founded P.pon. the positive La^iv of Nations ; and that in consequence, no power has a right to give to this prohibition a greater extent, than what it has by the treaties and the usages generally adopted by civilized nations. — This hiv." — the neutral flag covers the mer- chandise — [)( ing become prevalent and ge- neral in the last century, it was established at the same time, that no neutral vessel sliould be laden Avitli merchandises which immediately, and in their present state, rniglit be employed in war ; such, for ex- ample. [ 1^5 ] ample, as gunpowder, artillery, arms, and other military stores. These are the only merchandises which were at first comprised under the name of contraband in ivar ( con- trehand de guerre.) The treaties concluded by Portugal with England in 1642 and 1654, and with the United Provinces in 1661, even permitted that these merchandises should be carried to the Spaniards, v/ho were at that timiC the common enemies of the parlies ; provided nevertheless, that the ex})ortation v/as not made through Portuguese ports. Spain, in a treaty concluded in 1 647 with the Hansea- tic cities, grants them the same permission. Other treaties of the same aera between different povvcrs, prohibit expressly the ex- portation of these merchandises to the ene- mv ; but without extending the prohibition beyond that which is truly and immediately yiecessai'V to icar. By the treaty of 1667 between the United Provinces and Sweden, it was expressly sti|)ulated, that not only coined money, corn, Vv'ine and oil, but further, iron, cop- R 2 per, r 26 ] per, bra*, hemp, cordage, planks, pitcb^ olid tar, should be declared free merchan- dncs\ the other treaties of coiriiiierce con- cluded by Holland, in the seventeenth cen- tury, ^vrili France, Spn'ui, and Denmark, contain the same determination rclati\'cly to goods cnntrabcuhl m "-csar. The P^nglisii, m the roiu'^-c of tbeir ma- ritime \va5-s, having iTcqncj^it'y disturbed IJie commerce of tiic Dulc]"!, the lat^:cr, obtained in j668, b} a conunercird treat}', which was a continuation of that of Breda, that in future wars none should be con- sidered as projuh'jtcd mci cIuduUscs^ except arms, and other instruments kA war; the .same stipulation is to be found in the treaty of 1674. The treaty of i66n, between Enfriand and Spain, confirmed by all the subsequent treaties, in the 2j,th cUid 25th articles com- ]3rises only arms and niilitar\^ stores undei^ the denomination (./' contrabdihl^ and de- clares all other merchandise^ lawful*. The " See, Exinicts trom several treaties subsisting between Great Britai.u and other Kingdoms and States, such artl^ I >^7 ] The treaty of 167^, between Frrjice and England, and the posterior treulies, rest, in that respect,, upon the same basis; as also those concluded in 1753 and 1766 between England and Russia. Although tiie trea- ties ot England, as well with Denmark as with Sweden, depart in some rcs^v.c-1;, ironi this general principle, as may be seen here- after, we are fiilb authorized to conclude from all the precen, 1758, p. S9 and oc,\ In [ 1^8 ] In support of this general rule, may i;e cited even the ordinances of the French, marine, which contain so i^any severe dis- positions against the commerce of neutrals. That of Louis XIV^. declares liable to confiscation, only arms ^ powder^ and nuiitary stores'., also horses and equipages iscJiicJi s'uill be exported for the service of the enemy ^ . And this rule is repeated in the regulations of the 2ist of Oclober 1744, and the 26th of July 1778, article i. By these three ordi- nances, the confiscation is pronounced only for the cargo^ and not for the vessel \ Vv ith the reservation, nevertheless, of the case where three-fourths of the entire cargo pro\'e to be contraband; in v/hich case, by the last ordinance, the ves'^.cl itselt is also coRiiscated, It is true, that tlic liniilisli, availing; themselves (-t tbiC preponderance oi tlieir marine, to do SL'ill greater iuiury to their enemies, have constantly strc)\-e to extend, a.i tar as va. possible for them, the denomi- nation or i-o'}iti-(d)dnd hi vjar. Tlic}' ha\'c * Ordina:;^ ;■ c f rln' m:;r::;c c!" ioS:, !-oc!; iii. title i\ ;^r;l(I.- 2 pre- [ 1^9 ] pretended that we ought to comprise under this name, not only that which is immcdi- atelv. and in its present form^ for the use of ■IV ar, hut also that ivliich is susceptible of being converted to that use, and which may be equally employed hy peaceable indi- *i idiials as by tlie belli^yerent state. It is thus that timber for bitilding.) masts^ cordage ^ hemp^ pitc'i, and tar^ and evtn provisions, arc become the objecl of their prohibitions. For want of solid arguments to justify this attack upon tlic Law of Nations and the commerce of I'lcutrals, thev have Gouii;ht for them, some- times in the particular nature of the war, and sometim.es in the civi/ and canojiical lazv. The little solidity of this former ar- gument has been already shewn*. The others have not more. Witliout pretend- ing to deny that the respeft paid in un- eniiglitcned times to civil and canonical la-ivs^ is the ;-;()urce of several usaires comorised under the denomination of the customary haw of Nations, Vv'c cannot on that account consider either the civil law or the canoni- cal law, as a general code of the Lavu of * See page 28 — 31. Nations^ l ^ >'^ J A^; -•/->, narriculai-I}- m tins ctili^iilciicd 5> jpii'i koiw^ni ccjiniiKMtu. nrilli^. telis, eqiiis. pecu- iiiri, :tli;Kjuc q;i;:vii ;\: a:ii'.\:ii rrunt. TI;C liw i and 2 oi iliC t'odc n'ff ri • fx^".}!,-: 1 r.-rr: cr--:::: '^lO': .i;.\s , Ui, x[\.)y i\:-:\y.C's ih:: cxpi rtut!. n in b;:rna. 'aii«. '■-t pi'o%^is;oni and ttik;, o._-'.aL:Fc tiifv v. ; r^^ li.iug'-roiis ro rhc Rr-nian jieop'e. !: is MiiTJcitnt v> r.-ad tl/'-e i:;\v'. ro ke! tl.ar thcv liave h.' en ir.'uk onh' tor ."'■.■' •.■..•ifV' cj ; K' -p-.^^.'-^^ and not fo.' t L.6, X. dr P;d;cii. E;-.:;av:>c:. Cjn-n coa, t:i. c. 2. thc^.. [ -s- 1 these two powers, the reason of their pre- sent conduct towards states who friorv in not havino- submitted more than themselves to that authority ? We comprehend the injury which this pretension of the Enghsh must pro- duce to the nations of the north, whose principal commerce consists in this same building timber, and other articles fit for the construction of ships, to which they seek to extend their prohibitions. Den- mark and Sweden have, in consequence, several rimes united to set bounds to them, either by alliances or by reprisals, and this was in fact one of the determining causes, and one of the principal objects of the armed neutrality^. Among the funda- mental rules adopted at that aera, it was established, that, with the reservation of the case where there should exist some treaty containing: exoresslv a contrary stiivdation, no belligerent power should consider as contraband i?i icvz; , other merchandibes than those which might directly, an.d in their ''• Sec page 14 — 17, ^ present [ ^32 ] present form, be used for war, as they are specihed in the loth and iith articles of the treaty of commerce between Russia and Great Britain. The loth article of that treaty declares all commerce tree, except only that of military stores , or exports for a blockaded city. The i ith article designates as contraband in ivar, cannon ., mortars, Jire^ locks, pistols, and other jire-arms, bombs ^ grenades, bullets, jlmts, matches, po^vder, salt- petre, sulphur, cuirasses, pikes, six:ords, car- trldges, cross-belts, saddles, harness ; ^ivhen these articles are found on boardy in a greater quantity than is neceuarv for tlie vessel, the cre-iv, and the passengers. It Vv'as established besides, that they should confine theniselves to the confisca- tion of the contraband merchandises found on board, but that they should not be at bberty either to detain the vessel, Xho, passen- gers, or the remainder of the cargo, or to givg any fur titer interruption to their voyage^. All the powers which took part //; the ■iirnicd neutrality, adopted these principles, ■•' Sec Martlns, vol. i. p. 14.5, 146. whichs [ ^33 ] wliich, as has been seen, were acknow- ledged in July and August 1 780, by France, Spain, and Holland. England was less explicit : she confined herself to declaring that she adhered " to the terms cf diferejit " treaties subsisting ivith the ?ieutral po'ivers ; " that the reciprocal rights and duties are " evidently marked out by these solemn " engagements, which (said she), would '■' become illusory, if thev could- be changed *' otherivise than by mutucd consent *." Since that asra, all the treaties in which mention is made of contraband in war, con- tain determinations conformable with the principles ot the armed 7ieutrality. Great Britain herself has admitted them in the treaties which she has recently concluded with the several European powers. Such are her treaties with France, of the date of the 26th of September 1786, articles 22 and 23 + ; 2nd with Russia, of the 25th March ■'^ Sec in the Colleclion of Clausen 2^, the answer of Great Britain of the ist of Jtily 1780, p. 146; that of the Couri: of France of the 27th July, p. 144; and that of Spain, 7th article, p. 157. t ^Iarteks, vol. iii. p. 694 and 695. S 2 1793, I ^34 ] t;:'93, article 4, which confirms that of 1766*. It is expressly declared in the former of these two treaties, that the timber for buildings as well as iron, Jiemp, pitch, a?id tar, are merchandises free, and of zvhich the importation is lawful. By the 28th article it is determined, that the merchandises con- traband in war, can alone be coniiscatcd ; but that as to the vessel and the surplus of the cargo, they must he released', and that if llie captain oifers to give up on the spot, the prohibited merchandises on board, lie must not be 171 any ?nanner prevented from contrnuing his voyage. If there exists, then, any principle gene- rally acknowledged in the co7ive?itional haw rf Nations, with respecl to contraband in war, it. is, that we must consider as such, only the merchandises which sr^rve imme- diately, and in their present form for war, or, to use another expression, only the arms and 77nlitary stores properly so called', unless par- ticular treaties establish the contrary ; to which case the rule of law naturally applies ^ Martens, vol. v, p. 210. itself. [ "i5 J itsclt ; 'volenti m?i ft injuria, Suljjhiir and iait-petre can alone be considered as an ex- ception to tiiis general rule, and arc com- prised under the denomination of cont^-dhcmd in ivar ', because no doubt tlic principal, and most common use of these tvro mtrclian- dises, is to be converted into (riinpo^vde?'. an article which, in our days, is considered as of the first necessity, and, as we may sav, essential to v:ar. It is consequently inconceivable, that a man so enlightened as Sir William Scott, .should advance in his iud.o-iaent as a settled point; that hciv.p^ pitchy and tar^ are r\sy\' comprised under the denominaiion of rc;;- traband in "ivar^ although, adds lie, these w tides "user e u'jt c'j}isidcred as sv.cJi at the ii}r.e '-jjhen England concluded its roinnieraed treaty ivith Szveden (that is to say, in i;76 ; C7\ at least rn 1651, the aera cj the tica'v m 'ivliich W H I T L o c K "ivas emplo iv^/under C r g :i - WELL, and "uehicli serves as the basis lor that. For not only hemp, pitch, and tar, a.rc neither arni^ or militarv stores, but they do not even enter into their composition. — The denomination which the Judge girc^ to [ '36 J to these merchandises, is so much the more; iiiconceivable, as he has not dared to extend it to irrrn^ which constitutes a considerable part of the Swedish convoys ; although, in t"ac?r, iron is of the greatest and most im- jnediate importance tor war, as it enters into the coniposition oj all arms ivhatsoevcr*- If the assertion of the Judge of the Ad- miralty ^\ ere iounded, it must be matter oi as::oni^hment, that towards the middle of the bc\cntccntli century, that which ouglit to be regarded as contraband in iL'ar, should have been specif^icci in a more equitable and clear manner than at present; tor it is evident thai: ii: we comprise under this name, the merchandises which alter \'arious ])repara- tic^ns, sei'\'e equally tor the military and n^ercantilc marine, the commerce or neu- trals \vOiild be expo;.ed to multiplied and endless chicaneries; and that there would be no otlicr bounds to prohibitions, than tho-e or ihe convenience and the caprice of belligerent jjoy. ers. To rstabbsh such a stran^'c assertion^ T^'ruld rcvHiire, no doubt, ^erv resuec^able anai [. '37 ] and express authorities. Those which the Judge of the Admiralty cites, reduce them- selves to these three : I St, A passage from Valix, vrhich states lliat the materials fit for the building of ships are considered at i:)resent, and since tlic commeRccmeiit of tliis centurv, as f,s,7- t rah and in zva;\ which, savs he, was not the case formerly. 2dly, A like decision of Vattej. ; and 3dly,The convention passed in 1780, between Great Britain and Den- mark, to explain the commercial treaty of i6;o. ist. As to the work of Valin, it is essen- tial to observe in the outset, that it was composed beiore France had taken part in ihiC American vcar, and consequently be- fore the arnii'.d "neutrality had established. the principles, equally wise and invariable, above related, with respect to contraband in war: principles to which all the civilized na~ lions have since that time conformed in all their treaties, with the reservation of one or two cases, where different stipulation> liave been dictated by particular circum- stances. [ '38 ] s!:r.'r::v-s. \V? might then pass over Valin, icr l:a\i:ii^ baJiv announced before the A.Txrican war, principles which have not become really uni\:crscd and mcGntestiblt\ ex- cept since tliat ccra; but can Vv'e shew the same induk'ence to Sir William Scott, vv ho, in referring to the authority of that hrA'ver, in support of an opinion v\'hich he maint:iins to be prrcailijig ?ioiv in 1799, evi- d-ntly commits an anachronism : V^'e remark besides, that the facts upon which Vai.ix supports his proposition-", -■annot serve as a basis tor any general principle of the Law of Nations. These t-acTS arc, in the jij-st p/act'^ that, in 1704 brance declared pitch contraband in ivar\ savitu^" ^uch as should be found on board Swedish \essels, seeing that tins was a pro- ciuclion ot their country: /;/ tJu: second place, ri:ct bv the treaty of commerce with Den- mark, Ci the 2 2d ot Auirust 17.12, idtcii. ■\..!-c!ot!i^ hemp, cordage, iiuists, and building tind'ey, are alike considered as bcin^ contra- ba:.;J. S::'j A'alix's Xew Coinmcntar\- upon the ordinancf. c i'rciuh inariiK ot 1 68 1, vol. li. p, 264, in'j [ ^3>') ] The first of these fafts is a mere deter- mination of the moment, occasioned by the extent which England came to give to her proliibitions, and which cannot, conse- quently, be considered as a general and jjcrmanent law. And so far from the Judge being able to draw from thence any conclusion favourable to his opinion, it may be seen, on the contrary, by the ex- ception which it contains in favour of Swedish commerce, that neither the court of France, nor probably that of England, considered themsehes possessed of power to prohibit, under the title of contraband in nJDar, the commerce which a neutral state carries on in its own produLlions. With respc6l to the 2d facl, as the ques- tion there relates to a particular treaty be- tween France and Denmark, relative to some productions foreign to these two coun- tries, there cannot thence result any thing prejudicial either to Sweden, or the com- merce which every neutral state has a right to carry on in the productions of its own soil. This is what Sir William . would T have r 14^ ] have acknowledged, if he had taken the trouble to compare the co?icluswn of Valin with the premises of his argument. It has not, moreover, come to my know- ledge, that the French tribunals have ever considered as contrabatid in ivar, any other articles than those which have been de- clared such by the ordinance of 1681, un- less authorized to do so by an express treaty with some particular power. On this point the pra6tice rests, as vrell as the ordinance upon principles perfeclly just. The con- dacl: of this power during the American war, comes in support of my assertion. According to the declaration of the cabinet of Versailles, France took part in the war, only fo dc'fifid the liberty of maj-itirnc com- merce aganut the usurpations of hlngUmJ, And at the time when the powers of the north had declared their intention to maintain that liberty, so far as concerned neutrals, the court of France, by formal orders addressed to the Admiral and Courts of Admiralty, of the dates of the 23d and 30th of May J and the 7th of August 1780, f 141 1 17,80*, forbid the detention jjf neutral vessels, and particularly of the Russian, the Swedish, the Danish and the Dutch , savin?' the case ivJicre these vessels s/iould car.'-y to the enefny contrahmid mercJiandises^ such as arms of any kind whatsoever, or viiHtary store's. Up to the present revolution, the French government has been constantly faithful to that principle in all its treaties subsequent to the American war, namely, in those with North America, England, Russia, Mecklenbourg, and the city of Hamburgh. This exposition is sufficient, to shew that the opinion of Valin has no w^eight in this case; isolated, it proves nothing against the general custom of Europe, and when we compare it with the practice of the French governnient, upon vsdiich he seems to wish to found it, we coine to a result diamctricallv contrary to that w hich the Judge of the Admiralty has drawn from it in his sentence. ^ See The Cede of Prizes, primed hy order of the King at Paris 1784, 4to. vol. ii. pages 867, 868, p. 876, and pages 886—88^, n T Z 2dlV, [ -42 ] jidlv, Tlie observations which have been made upon Valin, are in a great part ap- phcable to the opinion of Vattel, that timber^ and c-'ccry ihnig ijoliich scrjes for ilic cmstruciion a?id fJting out of sJiips oj i^ar^ are positively, in our time, considered as contraband. His work a})peared at London in 1758, an xra when the principles upon tliis point were not fixed, and when the superiority of the English na\"y, and the example of the treaty which Denmark had unfortunately concluded with France in 1742, gave room, on tlic part of England, to the most extravagant prcterisions ; and by a sophism comaion enough to many authors, he takes these pretensions for an ccrr tired r'lgiit. Assuredly Vattel could not have fallen into this error, if he had 'written at the same time when the Judge of the Admiralty pronounced hie sentence; or, at least, since that multitude of treaties ^^hich serve, as we may say, for the complc- vient and sanriion of the principles of the armed neutrality. This author observes, that the ancient usage was infinitely more favourable to neutrals tlian that of his ozin iiiiie\ seeing that before it, the belligerent povrcrs [ >+3 1 powers confined tliemsclvcs to the seizure of tlie contraband merchandise, on rc'nn- burs'ui^ the owners their value. In speak- ing of the more ri;'-id pracfice wliich came to be introduced, he uses expyressions v/nich are far from importing an ap{)robation, and v\ hich even announce doubt. 7/'f ciis- to'/iis of Europe^ savs he, appear at thl. day to be ge'neraliv fixed^ &c. We may easil}' perceive how mucli, upon what relates to contralxmd, his oi^inion has been h^-'tlv formed, since he comprises provhions tlmn- sek'es under this dciiomination, in the case vhere one of the belligerent powers should flatter itself with starving its enemv. In line, \'" \TTEL appears to fall into a plain contradiction, when lie pretends tliat a neutral state does vjjt fail in its neutrality by furnishing itself, bv land conveyance, niili- tarv stores to beliia'crent powers ; while he affirms that the sul^'ecls of this same i:eu- tral state cannot carry on the same comi- mierce bv sea, nor merelv furnish tlie sub- jects of a belligerent power with materials jit for the building of ships. w\ithout beinii guilty of an illicit act Dat veiiiani corvis, vcxat censr.ra colunnhas. If [ 144 ] If V'attel has only meant to take no- tice of v.aal; -uas the usage of his own time, the reproach of cantradkiion iaiis upon the pow erb : but how is it, t;iat an author who proposes to hiiTi->eii to in(j_Liire mto die etcr- nal and mvarublc principles of ike naiural l^aiv r-f Nations, lias n^iade no observation upon this point ? We cannot prevent ourselves troin percei\ mg, tiiat rehitively to the war bv huid, he speaks for his countrymen, the Swiss, and relatively to the v/ar by sea, in t da'cd St, Ja:ui-^.'i the 4th, nncl .v;.s r:.:ihjd at .o.vder.iburii the 21st |u!\ itSo. it m v Ik: '•ecn in Frer.ch. GeiM:a;-i. D.uiiJi and Engh?Ii, \\\ tii-',"N[NGi Sn'.ninhjng von S:aats — Sthrifrca waine.d djs rec-K:'iLg',j Non 1776 his 1783, 2 ter Band, Ahona 1780, p. ICO — iCJu ; and in Ci.AL'ux, Colleclion ot "i"ic'..'ics v:\ f;>c K-.-'gn cC Chrisii av '"v'l.l p. 140, 141. avd [ U5 ] mid military stores, but farther, //Mjer fir Luilding, pitch or rosin^ sheet copper^ jm'//j, heijip a?id cordage, and generally ei^eiy thing that serves directly for the equip-iient fi ships ^ IS declared contraband: unwrought iron and deal planks, however, excepted. Even though this extension of the word contraband should be found inserted in ali the treaties of England with the other Eu- ropean powers, or, at least, in the greatest number of them, the consequence which the Judge of the Admiralty draws from it. though not as vicious as it is novv', would be very far from being legitimate, for how could England, who maintained with reason in 1780*, that ti-caties irould become illusory, if they could be changed otjiefjcise than by mutual consent — how, I sav, could she, without the express cons'rnt of S':c-den^ subjecl it to obligations which result ticvd, the treaties made with the other pov.- ers, and which are in //'/( ^7 opj^osition to those which serve for the ba-is of her rela- tions with, it: But how much will not this * Sec page 133. [ '46 ] ronsequence appear insupportable, if we consider that the disposition of which he speaks, absolutc/v concerns none but Den- raark^ and that it was owing to a circum- ilduce peculiar to that power alone. We have already had occasion to observe*, that bv the trcatv of commerce of the 23d of Au<2;u>t 1742, between France and Den- rn;irk, the proliibition of contraband mer- chandises extended particularly to na\"rd stores, such as bitcJi^ sail-cloth, hemp, cord- ii:^e, and buddrjig ti^nbcr. From thence it results, that as lon^'- as a like clause was not added to the treaties subsisting between ( ireat Ilritain and Denmark, the sul^jecls of iliis l::t;Lvr power miglit ireely export to Fr:incc, ;ind to its allies, these same naval ■:'orc.', the cxiyortation of which was ror- bi(kiei: to them wdi;h regard to Great Bri- t::in. It wa.s to 'put an cul to this state,, A'sliich i:yi\ e occasion on the part ot the !'.iv.;!ish go\'criiinerit to a re]:)roach of par- trdi/v in favour oj' France, that the court rd I)e!vmau"k, consented to the disposition c^)nra'::ed in the explanatory con\'cntion of the [ U7 ] the 4th of July 17S0; a disposition so con- trary to the principles of that court, that in all the treaties which it has concluded since tliat time with other powers, it has constantly insisted to insert the word co?:- traba?id hi ivar in its proper signification, and that most universally admitted by all the European powers, by confining it solely to that which is really ar??is and military stores, and expressly declaring free and laivful, th€ commerce of those very mer- chandises which the Judge of the Admi^ ralty a\ ould have considered as proscribed in time of war l^y the common law of Eu- ropean nations, ^^ This disposition of the treaty ■ Wc niav consuk upon thi^ subject; ist, The treaty C'f Denmark with Rusi^ia, ot" the 8-i9th of Odlobcr 1782, article 21 (which is to be found in Martens, vol. ii. p. 2(; 3 and 298 ; and in Clausen, p. 180 — 183); by which it ii expressly declarerl, tliat none but the following articles are comprised under the list q( contraband, as cannon, mor- tcrs, rire-arms, pistols, bombs, grenades, bullets, balls, fire- Ic. !:s, riints, matches, powder, saltpetre, sulphur, cuirasse?, pikc:;, iwords, belts, pouches, saddles and bridles, excepting nc\-cj-t!i.:les:, tl^e quantity which may he necessary for the defence of the vessel, &c. and that all other articles i.vhcit- s'jti-o- not her'i Jcilynarcd, shall not be liable to confiscation, and c-.R-cqnpntly ihall pais fialy '■jcuhnit Icing subjcJled 10 " \t ' the i 9 ] ireatv oi lyHo, r'et:uecn Great Britain and Denmark, is not tlien, as tlic Judge pre- tends, a cliany^ ni tlie general rule; but merely an exception to that rule, which con- cerns these tv,"o powers onh;. An.d we have alreaci}' she\\"n, that ?ince the tii"e this ex- ception lias taken place, the ^y?:crnl rule is become still more unhersal in the practice, and that it i^as been cGnfimierlhy analogous dispositions on the part or se\-eral European powers*, and by solemn treatiei^ r^artrcu- larly the Ica^t difficulty. 2uiv, I'liC treatv of Denmark \\V.\\ tlie Republic of Genoa, of the 3o:Ii r-.f Ju'v 1789 (-ec AIar- TEXS, vol. iv. p. 537, av;d Qi.xviLV., j). 254]: thc 61!"! ar- ticle of tliib U'catv Jcci:u'os In tlie t';!lc:;i; detail, cvcrv thin^ meant hv c-.r.traha'dd in zvar (LO^^tii'widc Ji:UhunyJ: and thc ^th article contains thc ciuinieration of t;-,c lairfid 77icr~ chand!u:s, amor.g \vhich are paiticularlv crr/.airieti jntch or rosin, sails and cloth oi Oloime, hemp, and coidage, timbci" for building and carpenters' work, which are pci'- mittcd merchandise^ which niav be sold and exported, even to i)laccs held and occupied hv an eiiemv ot one ot tlie tTvO contracling pov.crs; provided these places shoi'lc! n^t be bv. sieged or l)bx:kaded. * Hv ilie new {•'ru.-.^jian code, ^^ 20."' and f^llowinc;', there li no:'i'ng but (nm.i cnid nidhary s!:}-ij. which can be dc! b.rrd . c;//,vv/£V/;-/; iwidniav-^', hLnidnig timber, cordatie, ^ad-ciotii. hen:!', p'tch, grain; and otlier artielcb \\hiLii n!a\- bc [ 149 ] larly by those which Great Britain herself has conckided as well with France as with Russia*. J\hci' liaviiio; shewn the futility of the rcasonini;s bv v/hich the Judge of the Ad- miralty pixtends to prove, that according to the Law of Nations now existing, tiaval stores, and, in particular, pilch, tar, arul hemp, arc reputed co?itraband, I am undoubt- edly dispensed ^^itli from answering tlie airgument which lie would dra\y from a judgment given in 1750, by the Lords of Appeal in matter ot prizes, in the case of the IxL'Jdsgocde Help, by which a cargo of p'ltcJi cmd tar, althougli Sivedish produce, on board a S'ccedish vessel, v\"as cojijiscated as co7iirahand, because it was destined for a French port. The rcsueiTt of the Enoiish for the decisions of tlieir superior courts, is, no doubt, very proper in all the cases w here neitlier the law or treaties have laid down fixed rules; but v.-hcn these decisions be ea^ploycd in war afier haviiu^ unvlcr^^onc a preparation as also horses, are considered as free and lavjfid tncrcJiarj- d: ! !:s. ''^ Sec page 132. u 2 are [ '50 ] .ire in contradiction either to a hi v.- or a clear precise treat v, to take them tor the rule of a subsequent judgment, is to substi- tute the viohition of the hiw for the law itself; it is to found injustice upon injustice. The English governmicnt has soavcU felt this truth, that since that judgment, as tlie Judge of the Adniirah:yhas tJie candour to acknow- ledge, instead of confiscating these articles on board Swedish vessels, it has conlincd itself to pre^cc7it'mg that thev should be car- ried to the enemy, and to cipplyiiig them to its own use, on inden'tviy ins: the owner. Although this pretended right of prc-occii- patio/i a?id pre-eniption (as th.e Judge calls it), wliich the English claim in tliis particular, be contrary to their treaties wdth Sweden, it proves at least, in an CA-ident manner, tliat before Sir Williavi ScoT'r, tiie Ihigh.sli government did not consider pUch, uiy, cuid Jicnip, on hoard Sz^/edish \-cssed, as comprised under the id Pre-e::e-notion. of ^^■aich the jud^^c speaks. W'e come now to j^rove, that the sub^e- qiient consent and general pracl ice oj Europe, a^ree in ranking- the articles to v. hich the question relates, aruong t\\'Z J'ree and laisjful merchandises : supposing lor the moment, that, accordino; to the krw universally re- ceived in Europe, they are really conira- band, and as even in that case notiiing could thence result prejudicial to the trea- ties of commerce between England and I C2 :5\vc'.:cn, ir c/^c r, Icl us see whc- i.^cr it be true, as tlic Juch^e pretends, that Uo fluest]on rc- o: tiiesc sanie treaties, * mains d^jiib-jid ,7.7./ r^rr-cuicd l-iecwcen these tv.'o pov;ers. 'ri:e hrst of th'."-e trLatie:^, ne:;Oliated bv WhiiTLOCK v:\\]\ Oueeii CiiaiSTi:-'", i;nder L"iio:.i\vj:r.L. in 16 ;i, ha:^, accnrrhnir to the renort ot the Tii' ^re, ^^crven as a basis for ?iibseqnent treal'c ■ ; the three otiiers, poste- rior to the Restoration, wei'e coneluded by Kinr CiiARuns II. ^\ ith Kinai CnAaLiss XL one of tl^e snaec^sors ot CnEisTiNin Two of them are dated London, the ist Oef, laai, and eist Ode, 1664; a:;d the hist. \. nieii ]sn_,::'nd tin treat; v:i \'f (a - '■'■-' \\ in-, a '. ' ooanaianiiia, . '■','■ i r "an n a. . n ^ a ot tnat imav o tr,e c n'enna tanaes ni a, id.nnd at the :nra of :\^ ;a;a •', aaai c:r the ne- )Mv.n:an na. n-ier, of L.i to ■ ^jrr: !n:n ior a - ;•- In ;-rv-r'-l; ;^-H ]\n]- :': a a a- :i\"' ■-> "n r,n\-;T-"! --. [ ^53 ] ta^-cous to S'.vcden. I'his i^ whvX results from the papers themselves of the negotia- tor Wh'HTLocK, printed in England. We sec bv that treaty, that the productions of the soil of S^vedcn, such as iron, copper, hicndhip^ c'.iid idr palters' tunher^ ^uasts^ Jtemp^ pitchy and tar^ were not comprised in the enumeration '^ contrcibaiid niercJia7id}ees, but cohied monex ; a disposition preiudicial to Enghsh commerce, but useful to Sweden, in case she should iind Iiersclf at war witli Russia or Poland, countries destitute oi specie. TJhs treaty concluded by Sweden V, ith the usurncr Cromwell, havinG; c:iven place to a treaty w:th the legitimate Sove- reign of England, the following is the list oi' tlie articles \\hich Vv'ere declared contra- band id IV ar. bv t'lc i ith article of the trcatv of 1661, and which it was consequently forbidden to the contraclin£>- parties and their subjecbs to carry to the encmv — '' Coined money, provisions, arms, fire- locks or their locks, and other thinirs be- longing to them ; bullets, powder, m.atches, pikes, swords, blades, halberts, cannon, mortars, petards, grenades, cross-belts, salt- petre, muskets, balls, helmets, bucklers, cuirasses, cviivir -^>^ <'ru> ^■c\ criil otJicr articles of tIla^ raiH; ; soldici's. h(>r^c^, and every thing bc- \(^--\\t. a vague and general expression, such as tins — " coined inonev^ piorisions^ n.m:^ (Dihiuiriitiou^ and other things ser'-cru'< fyr ^rar by L^nd iird .''V-," w C' woiikl under- '•lantL [ 155 ] Stand, that hi the eyes of the Judge the question relative to naval stores appeared to have been lett in some sort imdet ermine d% but this is not the case. Every thing which the contracling powers wished to prohibit, they have particularly specified: every thing which they have not expressly prohibited^ they have declared firee and la'-jcfiul. This is what results from the conclusion itself of the treaty, where it is said, '' that it is lavv^ful for the subjecfs of either of the con- tracting powers to carry every kind of mer- chandises to enemies of the other (except those precedently mentioned), zvithout any interruption heijig given thereto ; unless that thev should be destined for a port or a place besieged by the other power*. The treaties of 1664 and 1665, such as we find them in an official extra6f, pub- * These are the terms of the article ; Alterutri autem '..onfa^-deratoruni ejusque populo subditisve, cum alterius hos'.ib'j.s comaicrcium liabere, iisque merces quascunque de q-.'.ibus supra exceptum non est) advehere licebir, idque ■■.ne ullo impedim.ento nisi iis in portubus locisque, qui ab A'cy<-'\ c)i)>idcnrur X lished [ '56 ] lished at Stockholm in 1666*, do not confine themselves to confirming, in gene- ral terms, this disposition of the treaty of 1 66 1. They contain on that point, ex- pressions so strong and positive, that it is ahsolutely impossible to extend the deno- mniation of contraband, to other articles than those which are found in it speciJicaUy designated and prohibited as such. The first article states, that f "in the case where one ■ Tlic following is tlie entire passage : Extra6l o'x Lchtog vthafFdhct som emelan Kongl. Mayst. af Swcrige och Kongl. Mayst. af Store Britanien angaendc Commer- cierne ar affhandlat och hevviliat jamwal ock vthafF lioclisibemehe war allernadigste Konung och Herr for gott bcfunnit allom Wcderborandom vthafF debS U;ider- .uJtarc vthi Swerige och dar vnder lydande Provincicr tii estcrrettclse att publiccras. Stockholm 1666. f The following is this article, such as we find it \n the original Latin; — Convcntum est, quod hostibus alte- iius ficdcratoMim nulla; sunt advehends merces, qua prin- Lipalitcr ad u^uni publicum spev5lant ; cux tamcn prohi- bitio neutiquam co extendcnda, ut propterca omnis pro- tiiu'.s amicitix & niutuus conimerciorum usus cum alteiius icjedcrati hosiibiis eorunitjue subditis omnino tollcndus fie intcrdicendus veniar, i\ am cxistente tali ca^u, quod unus confo:dLTat(}rum ip,>i belle inunixtus non fuerit, ejus sub- uJus ac incoli; cum hoiubus illius ftfiderati, qui \\\ bella versatur^ [ '57 ] one of the powers sliall find itself at war, commerce and navigation shall be free to the subjecls of that which shall not have taken any part in it, with the enemies of the other ; and that they shall, consequently, be at liberty to carry to them dlreclly all the merchanchses which arc not specially excepted by the second article of the treaty concluded at London in 1661, and by virtue of this same article expressly declared prohibited or contraband^ or which are not enemy's pro- perty." The following article renders the matter still more plain :* " And to the end that it mav be known to all those who shall read these presents (these are its terms), what are the merchandises specially excepted versatur, commercla l£j ■ncrc'iTat'i'jncs llbcvce erunt &: iisdcm cuaicunque mcrca — qua' arciculo undecimo tradlacus Anglo, Suevici Londinensis, de anno 1661, ipecialitcr non cxccpt^py nee vigore cjusdem expr esse pro z:ethis sen contrabandie d'ldh habita^ nee hostium proprije sunt, etiam Immediate ad kostcs tuto ad'jehere liceblt. * Atque ut constet omnibus, qui hsc introsplclunt, quienam sint spccialiter excepted ac 'vetita; seu pro contra- bandis hahitje mercesj placuit, ut ex supra nominato Anieulo Xlmo. Tiaclatus Londinensis hec recenserentar. Sunt itaque ln(? speclaliter designates merces, bcc. X 2 and [ '58 ] and prohibit cd^ or regarded as contraband, ir has appeared lit to enumerate them here, according to the aforesaid article XI. of the treaty of London. These merchandises specially designated, are the following, &c. &c. &c." (Here follows the enumeration contained in the Xlth art.) We may be allowed to think that the Judge of the Admiralty had not these arti- cles under his eye, when he pretended that by the treaties with Sweden, it remained doubtful and undetermined, ^^"hether pitch, tar, and hemp, were or not lawful mer- chandises : for if he had seen into what minute details the parties therein enter, to specify what should be considered as contra- band — if he had seen with what force tliey there declare free and hruful, every thing which is not specially and expressly prohibited as such, could he have seriously stated as a sign of doubt, the silence observed with re- spe6l to naval stores ? Must he not have acknowledged, on the contrary, that ////.» silence formnlly decided the question in fa- vour of Swedish cargoes ? ibc^ [ >59 ] I believe I have shewn in an irresistible manner, that neither by the natural Law of Nations, nor by the positive Law of Nations, nor by the particular treaties be- tween England and Sweden, can naval stores be considered as contraband. From thence it results, that the capture of the Swedish convoy not being in any manner capable of being justified by the nature of the cargoes, it was no more in the riierhs than in the/orw, a legal subject of confis- cation. According to some considerations which in his system Vv'cre equitable, the Judge has divided the costs, to be defrayed in part by the cargoes, and in part by the claimants. Having proved that this system lias no foundation, and that, on the contrary, the complaint of the claimants is in all respects legitimate, 1 think that they are authorized to demand not only the release of their vessels and of their cargoes, but further, the full reimbursement of tlieir expenccs, and an adequate indemnity for the damage which they have sustained in consequence of the capture, \Miat- [ i6o ] Whatever may have been the difficulties of tlie ^\"ork to which I have apphed my- seh^, I shall think myself completely recom- pensed, if it contribute to inspire belli- gerent powers u'i'-h some rcspccl for the libcrtv of maritime commerce ; and, if in the midst of the tumults of -nas and hostile passioii'>, tlic voice of justice and reason, at lcuL;th makes itself heard in affairs so im- port:int to the fortune and the repose of a numerous and respectable class of peaceable and indiistrions citizens. On that point, I kiiow too well, that the wishes are not the liojic ; I tUii persuaded, how- ever, that they will do justice to my zeal tor truth, as I have been pleased to do it to the ])urity of the intentions, and to the ex- tent of information which the Judge of the x\dmiralty has made to shine in his judge- ment : although, from my own conviclion, I have not been able to approve cither his principles, or the consequences which he has drawn from them. T;F.rop,T [ i6i j REPORT OF THE JUDGMENT OF THE HIGH COURT OF ADMIRALTY, UPO.V THE SWEDISH CONVOY; FoXOUXCED BY THE RIGHT HONOURABLE SIR WII LI AM iCOTT, THE I ITH OF JUNE, I 799. THE SHIP MARIA, PAULSEN, MASTER. THIS ship was taken in the British channel, in com- pany with several other Swedisli vessels sailing under con- voy of a Swedish frigate, having cargoes of naval stores and other produce of Sweden on board, by a British scpa- dron under the command of Commodore Lawford. The fa£ts attending the capture did not sufficiently ap- pear to the Court upon the original cvi;lence ; it therefore viire6led further information to be supplied, and by both. parties. The additional intormation ncv brouglu in, consists of several attestations made en ti;ie part of tiie captors, and of a copy of the instructions under which the Swedish frigate sailed, transmitted to tf.e King's Proctor from the office of the Briti'^h Secretary of State for the foreign department. On the part of the Swedes son^,e attetatio.'S and certifi- cates have '."-.'cn introduced, but all of t>:cm applying to collateral n.-tter, none relating imir.ediatciv to the facts of t!ie capture. On this evider.ce the Court has to determine this most important question ; f r its i;riportance is very .s-'usibly fell bv the Cc-'jrt- I have, thevjlorc, taken sotne L ^'J^ J ijine to wei;j':i tne mucter m;iturc!y ; I sliould regret mud;/ it c'ku dclav lias proiuccJ a;r/ private iiiconvcnience ; hvx I am not con;("ious (attending to the numerous othei ■"■..■iditv cause; that daily preyo upon tlie attention of the C:)U!"t], t'lat I have i;iterposed more time in forming my jiid'^mc!'.:, than was fa.Vivdue to the importance of the quc-.tion, and to tiie magnitude ot tiie interests involved i:i it. In i';rm:ng that judgment, I trust tliat it has not escaped HiV anxious recollection tor one moment, what it is than uic duty of my station tails tor Irom me; — namelv,- to cor^iider mvielf as stationed here, not to deliver occasion:;), ::r,d ihifting opinions to serve present purposes ot particula'- nationid inzerevt, hut to administer witli indiiTerence, tlKit; i.r-.L.ce which t!ie Law of Nations holds out, without distiric- lion to iiidcjicndeiiL states, >,ome hap;)ening to he neutial ;cid sr:ne to he hLiligcrent. The seat of judicial authority i,-, iiideed, locaiiv /ii^u, in tl\c belligerent countrv, accoixl- ing to the kno'Aii law ar.d j^raclice ot nations: but the law i:se!f has r.o locr.litv. — It is the dutv ot the person wliosits iicre, to de:crn:;ine this question exadly as h,e would deter- mine the same question it sitting at Srock'ioim ; — to as;crt no pretensions on the j)art oi GrL-a.t Britain, wiiichlie woidd jict allow to bweden in tlie same circumstaiices, and to ircpose Jio duiie^ on bv. eden, as a neutral eoun.trv, \vh.ich lie would n:.: admit to belong to Great hiritain in the samo eharai^.cr. If, dieiefore, 1 mistake tlie h\\ in this matter, 1 misrakc t-iat which 1 consider, an.l whicii 1 mean should, be consideied, as tlie universal law upon the question ; a tuie^tlon le^rirdin^ one of the most irirportant ric'its oi bcl- li^'^rent nauons rclativelv to rieurrals. 'i he onlv special ccrKideration wihch I sliall notice in. trivour of Great Britain fand uliich I am cutirelv (■'" ■ Axui. oi aduwmg to LSweclen m the same or similar '. 1 ;■. , L;mstanc:sj is, th.,r the nature or the present wa;-, C. L ■^ vwv thio covmirv the riglits oi war, leiativelv to J.' ■ ■■■:\-A :tat;-:,. ii: ai bige a measure as tiiev ha\'e been re- civ . i,u i'-,c.d\' cv :;x!scd. at auv pcii..'! ot mjdt:rn and iii/vd ii:.. '. ^\ hcdici- 1 e>ii;na;e the n;;:ci-e of the ; ic :i\. • k..vc to ;h,- jat'gn-ivnt :^f Isvrope. v-hKn I dc- tin •■ I'.s ai a wa: in wl;;c;. luutra! .'.ate^ liie;v;,-vhei h:;vc ic:.:!e^t mufh :cr,re (d'cd: and suhstamiai than iliex.'- i,.<\ e iii ri;; ,::'.i}\ ,■ _■. !;:;:. ,cC, aiid iccv^^e (Ciarrcds I'if I ilj.C . -v) <...[. t'.^iw 11 G;'c:.t i^r:::-i,i a:.;i it., gieat j'ublic ciiemv. [ 1^3 ] enemy. That I have a right to advert to such considera- tions, provided it be done with sobriety and trtuh, cann >r, I tliink, reasonably be doubted — and, if authority is re- quired, I have authority — and not the less weiglity in this question for being Swedish authority — I mean the opinion of that distinguished person, one of the most distinguished which that countrv (fertile as it has been ot eminenc men) has ever produced, I mean Baron Puffendorff. The passage to whicli I allude, is to be found in a note of Bar- EEYRAc's, on his larger work, L. viii. c. 6. s. 8. — ■ Puffendorff had been consulted in the beginning of the present cenlurv, when England and other states were engaged in the confederacy against Louis XLv^. by a lawyer upon the continent, Groningius, wlio was de- sirous of supporting the claims of neutral commerce, in a treatise wliich he was then projecting. Puffendorff concludes his answer to him in these words: •" I am not surprized that the northern po^vers should con- sult the general interests cf all Europe^ zvithoiit regard to the complaints of some greedy merchants, who care not hovj thivgs go, provided^ they can but satisfy their thirst of gain. Those princes ixisely judge that it would not become them to rake precipitate measures, zvhilst other nations are combining their whole force to reduce within bounds an insolent and exorbitant power which threatens Europe with slavery, and the protestant religion with dcstruifion. This being the in- terest of the northern crowns tJumselves, it is neither just nor necessary that, for the present advantage, they should in- terrupt so salutary a design, especially as they are at no ex- fence in the affair, and run no ha'zard.'^ In the opinion, then, of this wise and virtuous Swede, the nature and purpose of a war was not entirely to be omitted in the consideration of the warrantable exercise of its rights, re- latively to neutral states. — His words are memorable: — " I do not over-rate their importance when 1 pronounce them to be well entitled to the attention of his country." It might likewise be improper for me to pass entirely without notice, as another preliminary observation (though without meaning to lav anv particular stress upon it), duit the transaction in question took place in the British Chan« nel, clese upon the British coast, a station over which the Crown of England has, from pretty remote antiquity, always asserted something of that special jurisdidlicn which the sovereigns of other countries have claimed and exer- Y cised [ i64 ] ciseii over certain parts of the seas adjoining to their cCasts. Jn considering tlie case, 1 think it will he advisahlc for ine, first, to state the fa6ts as they appear in the evidence ; •secondly, to lay down the principles of law which apply generally to such a state of facts ; thirdly, to examine whether any special circumstances attended the transadtion in any part of it, which ought in any manner or degree to afFecl the application of these principles. ist, The fafls of the capture are to he learnt onlv from the captors ; for, as I have ohscrved, the claimants have been entirely silent about them, and that silence gives the strongest confirmation to the truth of the accounts deli- vered by the captors. The attestation of Captain Law ford introduces and verities his log-book, iir which it is stated, that after the meeting of the fleets he sent an officer on board the fri- gate, to inquire about the cargoes aiid destination of the merchantmen, and was answered, " that they were Swedes, hound to different ports in the Mediterranean, laden with liemp, iron, pitcli, and tar," Ujjon doubts which Cap- tain Law FORD entertained respecting the conduct he should hold in a situation of some delicacy, he dispatched imrnediately a messenger to the Admiralty, keeping the convoy in his view ; and having received orders from the Admiralty by th.e return of his messenger, to detain these merchant ships, and carry them into tl-e neaiest Lnglish port, he sent Sir Charles Lindsay and Capt. Raim:r to communicate them in tb.e civilest terms to the Swedisli commodore, who shewed his instruciions to rej^el rorce l)V force, if any attempt was made to boaid ;he convoy, and declared that he should defend diem to tlie last. The 5 ] o'Scer who had been left on board, and carried huh ori board rhc frigate, where he was detained. The Swedish commander sent an officer of Iiis own on board Captain Lawford, to complain that he had taken advantage of the night to get possession of his convoy, which was un- observed by liim, or lie should assuredly have defended tliem to the last. Upon further conference and represen- tation of the impracticability of resistance to such a supe- rior force, he at length agreed to go into Margate Roads, and returned the British officer who had been taken out and detained on board the frigate. After the arrival iu JXIargate Roads, he lamented that he had not exchanged broadsides ; said that he did not consider his convoy as detained, and should resist any furtlicr attempt to take possession of them. Captain Raper states, that on going on board the Swedish frigate he found all the men at their quarters, and the ship clear for adlion ; that the commodore shewed his orders, and expressed his firm determination to carry them into execution. Capt. Lawford sent a boat with an officer on board several of the convoy, to desire they would follow into Margate Roads ; then- answer was, they would obey no one but their own commodore. Lieut. M'Dougal describes in like terms the menacing; appearance and motions of the Swedish frigate. He was sent to take possession of vessels which would not bring- to without tiring at them. On his going on board one of them, the master declared that he had orders from his commodore not to give up the possession of her to any person whatever, and repeatedly drove away by force the British mariner, who, by his order, took possession of the helm. Mr- Cockraft is another witness to the same ef!e(51, and Mr. Candish, the officer who was taken by force out of the Swedish merchantman. Expressions of strong- reproach against the proceedings of the English were ad- dressed to him ; and the commodore protested, tliat if he had not been surprized, lie would have defended his convoy to the last. What then do these attestations {uncontradi6fed attesta- tions) prove ? To my apprehension they prove most clearly these faffs — That a large number of vessels, con- necled altogether widi each o;her, and with a frigate which convoyed them, being bound to different ports in \ z the L i66 ] the Mcditcrrr.nean, some declared to be enemy's ports anct others iior, with cargoes consisting, amongst other things, of nav;il stores, were met with, close upon the British ijxisr, bv HisBiiifANKic Majesty's cruizers — that a continued resistance was given by the frigate to the a6l of hoarding- any of these vessels by the British cruizers, and that extreire violence was threatened in order to prevent it ; aiid tliat the violence was j)revenied from ])roceeding to txtremiiies, onlv by the superior British force which over- awed it— that the act being efleded in the night, by the prudence of tiie Britisli commander, the purpose of hostile resistance, so tar from being disavowed, was maiiitaincd to the last, and complaint made that it had been eluded bv a strataij^em ot tlie night — tliat a forcible re-capture of one vessel took place, and a forcil)le cajKure and detention of one British officer who was on board lier, and wlio, as I understand the evidence, was not released till the superio- rity of the British force had awed this Swedish frigate into bometliing of a stipulated submission. So far go tlic general facts. — But all this, it is said, might he the ignorance or perverseness of the Swedish oihccr of the frigate— the folly or the fault of the indivi- cu;d alone. This suggestion is contradidted by Mr. Ra- PKR'slog, which proves that the merchantmen refused to admit the British officers on board, and declared that thev would obev nobody but their own commodore ; a fa6t to wlhch Mr. M'DouGAL likewise bears testimony. It is contradicled still more forcibly by the two sets of instruc- tions, th.ose belonging to the frigate and those belonging to the merchant-vessels. — The latter have been brought into Court by themselves, and of the authenticity of the former there is no reasonable doubt; for they are transmitted to nie upon the faitli of one ot the great public offixes of the British govenuucnt, and no person disavows them, and indeed nobody can disavow them, because tiicy were pro- duced by the Swedish captain, who made no secret what- ever ot their contents. Something of a complaint has been indulged, iliar the orders h'om the Britisli Admiralty- have not been );!(,. duced ; a singular coniplaint, consider- i:";g that thev were never cidled tor bv the claimants, and tlicy were IV r oidi.-red by t!;e Court, bccau.^e if the a6l of lilt: c-iiiffj;--'. \\a-; illegal, the orders ot the Admiralty V. ould jiot ju li; y it ; au;! t';e want oi orders would not ^/l^.:^'.z, il ui:: .::! A;oleg.;L No ntivstery, Irowever, was made [ 1^7 ] made about these ; for the communication ot orders and instrudlions was mutual and unreserved. It is said that the instructions to the frigate are intended only against cruizers of Tripoli, and an affidavic has heen brought in, CO shew that that government had begun Iiostiiities against- the Swedes. — The language, however, of these instiuclions is as universal as language possibly can be ; it is pointed against the " fleets of any nation whatever.'* It is, however, said, that this was merely to avoid giving otTence to the Tripoline government. But is the Tripo- linc government the only government whose delicacy is to be consulted in such matters ? Are terms to be used alarming to every other State, merely to save appearances with a government which, they alledge in the aftidavit referred to, had already engaged in unjust hostility against them ? Tliere is, however, no necessity for me to notice this suggestion very particularly, and for this plain reason, that it is merely a suggestion, neither proved n jr attempted to be proved in any manner whatever; and the yes gesta completely proves the fadt to be otlierv/ise, because it is clear that if it had been so, the comm.ander of the frigate must have had most explicit instrudions to that efredl. They could never have put such general instrudtions on board, meaning that they should be limited in their appli- cation to one particular State, without accompanying them with an explanation, either verbal or written, which it was impossible for him to misunderstand. Such explanation was the master-key which they must liave provided for his private use: whereas nothing can be more certain than that he had been left without any such restri(f};ive instruc- tions ; he theretorc acls, as any other man would do, upon the natural sense and meaning of the only instructions he had received. On this part of the case, therefore, tlie question is, What is it that these general instructions purport? 'i'he terms of the instruclions are tlicse — they are in- capable of being misunderstood : " In case the comman- " der should meet with any ships ot war ot other nations, " one 01- more ot any tieet v^■hatcver, then tlie commander '* is to treat them with all possible friendship, and not " to give any occasion oF enmitv ; but if you meet with " a foreign armed vessel whicii slioidd be desirous of '" having further assurance tliat your frigate belongs to *•' r!ie King of Sweden, tiien tlie commander is, by tlie Swedish r ics j *'* Swedish flag and salute, to make known tliat I'l is r,o i «' cy 'if Oicj vyjidd make any search amon^^^t the mcrchant- •' 'Visicli wulc ]onr coirjov, zvJikhi ourjit to be endeavoured to " he prevented a's much a^ po<^ible, then the eotnmander Is, in «' case such ihmgdi'jidd be msistedtipon, andtJiat remomtrances *' could not be anvxably made, and that not^v'tthstandlng your ♦' amdable comportment, the mcrchant-shdps should 7iever- " thcless be violent^ attacked, then violence must he opposed *' against violence.'" Reniovirig niere civility of expres- sion, what is the real import of these instruvftions r Nei- ther more nor less than this, according to mv apprehen- sion : — •" It you meet with the cruizers of the bellige- " rent states, and thev express an intenti.)n of visiting and " searching tiie merchant-ships, you arc to tatk t!:iem out " of tlieii purpose if vou can ; and if von caii'r, vou arc " to fight them out -^X it." Tiiat is the plain Englibh, and, I presume, vlie plain Swcdi.h ot the n-jatter. Were tl'icse initructions connricd to tlic frigate, or were thev accepted a:id aclcd upon bv tlic mcichanti-nen ? That thev were acfcd upon, is already shewn in the affidavits -^vhich I have stated ; that they were deliberately accepted, appearb from their own ins:ructions, which exa6tlv tally with them. I'hese instrudtiotiS declaie in express teinis, " that all merchant-ships, during tlie time tlicv are under "' convoy ot His Majesty's ships, are eai'nestly torbidden " to suffer the boats of any Jcrelgn naticii to h:,ird thiin for " trie saki of visitation or searching ; but in t asc sucli boats " sliew an intention ot comiU'.;- alongside, ibc mcrchant- ^' ships arc to sliecr from tliCn-; ."' It appears tiom the at- testation, th.nt the obedience ot these merchanrmen outran tlie letter of their instrucfions. "Wb.atever then was done upon this occasion, \va> not done by tb.e unadvised rashness ot one ir:dividual, but it was an instructed and pren-jcchtated acf — an act common to all [!;^ parties coiKcrr^cd in it; and ol v. liicli every part be- lor,;::. to all ; and tor which all tiie j)ar-icf, being associated wi;h cAv: i u;nn:on intent, are b'gaily and erjuitably an- sw crab;:- 2alv, Tliij beuig die aciaa: :-t r.c of f.:'.' tact, it is proper tor nn: to exanmie, \u tire second place, what is their legal state, or, m otiicr words. lo \\ liat conddarations they are ivbtly sid^ject. :u..,oKiir.g to die Law or \aiions , tor which purp^)-e 1 state a tew piancudcs r,t tl^at sv^tem of law,- winch i tal ' to be m'o.tro.v.rob ■:\ ist, Thaf lit, That die rig'nt of visiting and searching merchant- ?.hips upon the high seas, whatever be the ships, whatever be the cargoes, whatever be the destinations, is an incon- testible right of the huvfully commissioned cruizcrs of a belligerent nation. I sav, be the sliips, the cargoes, and the destinations what tiiey mav, because, till they are vi- sited and searched, it does not appear what tlie ships, or the cargoes, or the destinations are; and it is tor the pur- pose of ascertaining these points, that the necessity of this right ot visisation and search exists. This right is so clear in principle, that no man can deny if, who admits the legality of maritime capture ; because if you are not at liberty to ascertain hv sufficient inquiry, whether there is property that can legally be captured, it is impossible to capture. Even those who contend for the inadmissible rule, ihdiZ free ships make free goods, must admit the exer- cise of rhis right, at least for the purpose of ascertaining whe- ther the ships are tree ships or not. The right is equally clear in practice ; for practice is uniform and universal upon the subject. The many European treaties which refer to this right, refer to it as pre-existing, and merelv regulate the exercise of it. All writers upon the Law of Nations uiranimously acknowledge it, without the ex- ception even of Hubner him.self, tlie great champion of neutral privileges. In short, no man in the least degree con- versant in subjects of this kind has ever, that t know- of, breathed a doubt upon it. The right must unquestionably he exercised with as little of personal harshness and of vexation in the mode as possible ; but soften it as much as you can, it is still a right of force, though of lawful force — something in the nature of civil process, where force is employed, but a lawtul force, which cannot law- fully be resisted. Per it is a wild conceit, that wherever force is used, it may be toiciblv resisted ; a lawful force cannot lawfully be resisted. The only case where it can he so in iiiatters of this nature, is in the state of war and conflidf between two countries, where one party has a perfect J iglu to attack bv force, and the other has an equally per- fect 1 Ight to repel bv force. But in the relative situation of two countries at peace with each other, no such con- fli(rting rights can possibly co-exist. adly, That the authority of the Sovereign of the neu- tral country bemg interposed In any manner of mere force, cannot l-^gnll'j varv the rights of a lawfully-commissioned belli- I 17^ ] beliigerenr cruizer ; T say Icgailx, because what may be j:ivtn, ■-! he ht to be frjven, in the achninistration of this -;>t,ticsor law, to considerations of comity or of national p ;I;cv, are v'cws of the matter which, sitting in this Court, I h:ive no riglit to entertain. All that I assert is, that Icifally it cannot be maintained, that if a Swedish c:.inmi:;;ioncd cruizci", diiring tlie wars of his own coun- try, lias a right by tlie Law of Nations to visit and exa- mine neutral ships, the KixG of England, being neutral to Sweden, is authorized by that law to obstrudt the exercise of that riglit with respeft to the merchant- ships ot his country, I add this, that I cannot but think that it he obstructed it bv force, it would very much re- semble (with all due reverence be it spoken) an oppositior^ of illegal violence to legal right. Two sovereigns may r.nquestionablv agree, if thev think fit (as in some late instances thev have agreed) bv special covenant, that the presence of one of tiieu' armed ships along with their mer- chant-sliips, shall be mutually understood to im.ply, that nothing is to be lound in that convoy of merchant-ships inconsistent with amity or neutrality ; and if they consent to accept this pledge, no tlu'rd partv has a right to quarre: withi it, any more than with anv ether pledge whicli they may agree mutually to accept. But, surely, no sovereigii can legally compel the acceptacce of such a security bv mere force. The only security known to the Law of iVaticns upon this subjecf, independent of all special cove- nant, is the right of j)ersonal visitation and search to be exercised by those who liave tlie interest in making it. J am not ignorant, tliat amongst the loose dodlrines whicli modern fancy, under the various denominations of philo- sophy and philanthropy, and I know not what, have thrown ui-on tiic world, it has been within these few yeai'S advanced, or rather insinuated, that it might possibly be well if such a security were accepted. Upon such un- authorized speculations it is not necessary for me to descant: the law and pra6lice of nations (I include par- ticulailv the pracficc ot Sweden, when it happens to be belligerent) give them no sort of countenance; and until that law ami practice aie new-modelled in such a zvay as .'nay surrender t!ie known and ancient rights of some nations, to the present convenience of other nations (which nations may perhaps rkmkmber to forget them, when thev happen to be themselves belligerent), no reverence is due [ 171 1 ^uc to tlieni ; tliey are tlie elements of that system which, if it is consistent, has for its real purpose an entire aboh"* tion ot capture in war — that is, in other words, to change the nature of hostility, as it has ever existed amongst man- kind, and to introduce a state of things not yet seen in the x'.orld, that of a military war and a commercial peace. If it were fit that such a state should be introduced, it is at least necessary that it shoiild be introduced in an avowed nnd intelligible manner, and not in a way which, profess- ing gravely to adhere to that system, whicl) has for centu- lies prevailed among civilized states, and urging at the .same time a pretension utterly inconsistent witli all its known principles, d^'livcrs over the whole matcer at once to eternal contioversv and confiiff, at the expence of the constaiiL hazard of the harmony of states, and of ihe lives and safe-ties of innocent individuals. 3dlv, Tha. the penalty for the violent contravention of this right, is the confiscacion of the property so withheld ■from visitation and search. For the proof of this I need only refer to Vattel, one of the most corre6f, and cer- tainly not the least indulgent of modern professors of pub- lic law. In Buok III. c. vii. se£f. 1 14, he expresses him- self thus ; " On ne pout empecher le transport des efFets de '' contrebaiidc, si Vun nc visite pas les vaisseaux neutres •' que Ton rcnvxjntre en mer. On est done en droit de *' les visiter, (^ticlqiies nations puissantes ont refuse en *' dilFc rents tcrn^ se soumettre a cctte visite, aujonrcT/ml *' un Viiiss^rm >uutrc, qui }\fuscroH de souff'rir la visite, sc " fcroit condiWDicr par ccla scul, comme etant de bonne prise.''* Vattk I. is here to be considered not as a lawyer merely delivering an opinion, but as a witness asserting the fa6t — the facSl that such is the existing practice of modern Eu- rope. And to be sure tlie onlv marvel in the case is, that Jie should mention it as a law merely modern, when it is -remembered that it is a principle, not only of the civil law, (on whicli gieat part of the Law of Nations is founded), but of the private jurisprudence of most countries in Eu- rope — that a contumacious refusal to submit to fair in- equity inters all the penalties of convicffed guilt. Con- icrmably to this principle, we find in the celebrated French. ordinance of 1681, now in force, article 12, " That every " -JCiscl shall be good prize /?; case of resistance and combat ;'* j.'id V'alin, in his smaller Commentary, p. 81, says ex- pressly, that akhough the expression is iu the conjun^five, [ 1/2 ] vec that tlie rcsiuo.nce a'oy:e h sufflc'unt. Ke rcff-rs to t:;ff ^panlsJi ordinance 1718, evidently copied from i[, in wliich it is cxpres.cJ in t.ic disjnnclive, '' in case of ralst- *• a>!ce or crnLat.'''' And recent instances are at hand ■:\wi\ xsitliin view, in wliich it ap''ears tliat Sp:;'n coiuinues to act ujion this principle. ']"he tirst time in wliich ir occuii to inv nonce, on tlie inquiries I liave been able to make m the in -tituies of our own ccauTirv respeclin'j^ mai- lers or this nattnx', excepting wiiar oecurs ii;; the Black Book or tlie Aviniirahv, is m tiie order (jI coinicil 1661, article 12, whir h direcu^, " that when anv ship ract withal by the roval navv or other shipcommissionaied, siiall fighi: or inake fLsi^tance, the said ship and goods sljall he ad- jud^^ed lawlul prize." — A similar article occurs in the pio- clainaiiion of 1672. I am aware, that in those orders and proclamations are to be found some articles not very con- sistent with the Law of Nations, as understood now, or indeed at that time ; for they are expressly censured bv Lord Cl ARJKDON *. But the article I refer to, is not: of those he reprehends ; and it is observable, that Sir Ro- bert WisLMAN, then the King's Advocate-General, •vslio reported upon the articles in 1673, and ex[^rcsses a disapprcibatloii of some of them, as harsh and novel, does jiot mark this article with any observation ot censure. I am therefore warranted in saving that it was \\\z rule, and the undisputed rule, oi the British Admii'alty. I will n^t say thnt that rule may not have been broken in upon, in some Instances, by considerations ct comity, cr of pclicv, hv wliich it www be fit that the administration of this s;ic cies of law shfuild he tempered in tlie liands ot th.ose trihu- iials which have a liohi to entertain and apply tlicm ; tc : no man can deny, ti.at a state may recede {rar. its e\;rc!r:_ rights, and that its supreme councils are autliorizcd to de- termine in what ca-es it may be fit to do so, the pnrticulai captor haviiig in no case anv other right arid ti'le ip.ai"i wliat the sta:e itself would possess under the same facts ol capture, i'iut I stand wiih confidence upon all lair prin- < iplcs of reason , upon tr.edistincl autbioritv of Vattj:/. .: upon the institutes of other great ir.ai-i[ime countries, a^t well a^ those of our own country-— w lien 1 venture to lav- it down, tlia! Iw the Law of XatioPiS, as now understood, ii deliberate and continued resistarxe to search, en the pr.. .. - Lord CtAit ENDOiv s Life, p, -242, [ 173 1 of a neutral vessel to a lawful cruizer, is followed by the legal consequence of conliscaiion. 3Jlv,Tlie third proposed inquiry was, Whether any spe- cial circuiustanccs preceded, accompanied, or followed the transaition, which ought in any manner or degree to af- fect the application of the general principles ? lit, The Jrr St ground of exemption stated on the part of :he claimants, is the treaty with Sweden, 1661, article 12 j an;; it was insisted by Dr. Laurence*, tliat although the belligerent country is authorized by the treaty to exer- cise rights of inquiry in the first instance, yet that these ric;ht5 were not exercised in the manner therein prescribed. It i-; an obvious answer to that observation, that this treaty ivevcr had in its contemplation the extraordinary case of an armed vessel sent in company with merchantmen, for the verv purpose of beating off all inquiry and search.- On '•lie conrrary, it supposes an inquiry for certain papers ; and if t'ley arc not exhibited, or " t/it^re is any other just pui strong cau:,i of suspicion,''^ then the ship is to undergo ': jarch. T'le treaty, therefore, recognizes the rights L'f i:";qu!i V a'.iJ iCarch ; and the violation of those rights is r, :c h'vs a violation of ibe treaty, than it is ot the general Law )f Nations. It is said, that the demand ought first to have been made upon the frigate: I know of no other vule bur tint of inere curtesy, whicli requires this; for iiiis extraordinarv case, of an armed ship travelling along widi nic!chanr-s]i:;)S, is not a cams fcederls, tliat is at all ■■o provided for in the treatv : b.owever, if it is a rule, it •.va> cow'; plied ^^■ith in the present instance; and the an- swer returned, was, thiat '' iliev were Swedish ships, bjupd to varivH-iS ports in the ^dediterranean, laden with iron, hemp, pitch, and tar." The question then comes, What rights accrued upon the receipt of this answer? — I '-^v, first, tliat a ri:,ht accrued, of sending on board each j> \r:icular sliip tor their several papers ; lor each particular ..ii'i«, vv!tJ!0'jt doubt, had its own papers; the frigate could iv'Ahzxi he.'n; and the captors liad aright to send on i).;a.d ri:em. to demand those papers, as well under the ■Teatv a:, uni.]<:r liic general law. A second right that ac- c : :;. ';, 'ej.'o;) ihe receiving of tnis answer, was a right ofde- Jw'rii'^g :^uch vessels as were carrying cargoes so composed, * Ccurssl Br the Ci;!-r.int5. '" ^ «Ith§r [ ^74 ] fiilier wholly oi in pair, to any ports of the enemies of tliis country ; for tlint tar, pitch, and hemp, going to tlie eiiemv 's use, are liable to he seized, uS contraband in theii own nature, cannot, L conceive, b.: doubted under the moJern Law of Nations; thougli rormeriy, w.i'n the. hostilities of Europe were less naval than thev I'ave since become, tliey ^vere of -! d^.i)utable natui;.'. and perhaps toiitmued so at the time of making '1 T.caty, or at least at the time ot ;naking ikat tre- --ir is the basis of it ; 1 mean the treaty in wh' ' - ^ii'LocK was employed, in the year 1656: fcjr I lonceive that Valik expresses the truth ot this maLter, when he -ays, p 68, " Dc droit ces choses," speaking ci naval stores, " sont de contra- bande aii'i curd' hid ctilc^ixxii. le commencement de ce sicclc, ce qui n'etoit pas autrefois neanmoms ;" and N'attk l, the best recent writer upon these matters, explicitly ad- mits amongst positive contraband, " les hois et tout ce qui sert a la construdiion et a I'armament de vaisseaux de e:uerre." — Cpon this principle was founded the modern explanatory article of the Danish treaty, entered into in 1780, on the part of Great Britain, by a noble lord -•% then secretary of state, whose attention had been peculi- arly turned to subjects of this nature. 1 am tlicrciore of opinion, that although it might bcsh.ewn, that tlie nature of these commodities had been subject to some controversy in the time of AV'ihtlock, when the fundamental treaty was con-^trucled, and tliat, therefore, a discreet silence was ob'^crved rcip^cling them in the composition of that tieaty, and of lire laiier treaty derived from it, yet that tlie ex- position which th.e latter judginen!: and pi-acticc of Europe lias given upon this ^;ubie:"!., would ir^ some degree atlcc.i" and apply wliat tlie treati-.s had been content to leave en rl;at indefinite and disputable footir.g on which the notions, tl)rn more generally prevailing in Europe, nad placed it. Certain it is, i'uit in the year i 7 50, the Lords of Appeal m thiscf untiV declai-cJ pitch and rar, the produce of vSwe- den, and on board a Sveedish ship bound to a 1 icnch i^oit, ?o he cGntr:ihand; aiid subject: to confiscation, in the me- rriOvabSe ra-c of the ?,Ld '■jOGd''s Hh.lpc. In the more mo- <;'_r!\ undcrLtai'dii;;.;, (,.t i\\- , m u'cr, gt^ods of this nattne b*'- ip^ 'Ire p!'\lu(:e ;.! enveden, and the acl'ual property ot :"Ae:i(s, ,:ruJ eoeivfvcd by thtu own navigation, have hecu '■ ''•'■..•. ;;re Y.ix\ '_•> \] \ >;sv ixld, d-emciJ, [ 175 1 tlecmcd, In British Courts df xVJmirnliy, \v{■,r^ a principle of in'JaliTence to tlie native prcdLU^ls aiul ordinary com- merce ot :hat countrv, suhjcd^t only to th>.' iViil-icr lii^hts ot pre-occupancv and pre-emption ; or to tiie rights ot preventing tlie goods trom being carried to die enemy, and of applving them to your own use, making a just pccuni- ;irv compensation tor tliem. But to these rights, being bound to an enemy's port, tliey are clearly suiijecl:, and ■ may be detained without any violation ot national or in- dividual justice. Thirdly, another right accrued, tliat of bringing in for a more deliberate iiiquiry than could pin- >;ibly be conJucled at sea upon such a number of vessels, even t/iae which professed to carry cargoes \vicii a neutral destination. Was there, or was there not, the just and grave suspicion which, tb.e treaty refers to, excited by the cir- cumstances of such a number of vessels with such cargoes, intended to sail all along the extended coasts oi" the several pubhc enemies Oi fins kingdom, uiider the protection of an r.rmed irigate, nssociatcd with ti^eni ioi tlie ver\' pur- pose ot be '--ing oii by torce all particular inquiry r JJut sup- posing even that there was not, is this the manner in whicii the observance of the treaty, or ot thiC Law of Nations, is to l)€ enforced: Certainly nor, bv tlic treaty it-cif; for tlie re- medy tor intrai'tion is provided in compensations to belevi- .cd, and punishment to be inflicled upon delinquents L-v tiicir own respective sovereign^. Article 12. — Hovr standi it liy she general hw r I don't say th:t cases mav njt occur, in which a ship mav be authorized, by tlie i^iaturai rights ot self-preservation, to deicnd itjtlf against extreme violence direatened by a cruizer gro-^ilv abusing his commission .; but \^'hcre the utmost injury threatened is, liie being c;'.r- ried in for inquiry into t'le luarcst port, subject to a fuir responsibilitv in costs ?.nd daiP.ages. if this is done vexa- ticusly, and without just cause, a nietcliarit vessel has not a right to sav for itseit (and aa armed vessel has not a right •EC say tor it;, ■' 1 will suoir.it to^ no suci inriuiry, but ]. will take the law into mv o'vn hnnd^ bv torce." What iS to be the issue, it each, licuiial judge for itself in tire hrst iiistaiico tlerained, and to act upon ih.at jn.i;. iising torce ' — surely nothing ,):■: ;: otten as there is any thi;ig li^.c an c equality of spirit, tor ]i ;. htv of iorcc ur an file case occur, ill " to be !-':-rV;t!\- ' le- nncu [ 176 ] f.tip.c'l' IIo'vV i.ir iiic peace of tlie world will i)e benefited 1)V' raLu!;_;^ the matter iroia off its present footing, and P'.r'.iiu!; i' i-^poii tli;.;, i; tor the advocates of sucli a inea- siiM: to cxj)iain. 1 t;'.;;c tiie rule of law to be, that the vessel shall submit to the inquiry proposed, looking with < onhdenco to those tribunals whose noblest office, :)m]^ I liope, not the least acceptable to them, is to relieve, by co!ii;)eiisation, inconveniencies ot tliis kind, wiierc thev b,;i\e. liappencd through a(~rident or error; and to redress, ])V c'-.nipeiisation and punishment, injuries that Iiave bcea c-jmndttcd by dc.iign. ?,dlv, The .v;vc/;Y/special ground taken on llie i)arf. of tlie cl^iiiKUits v.as, that the inter.tion wss never carried into aO:r. And I agree with Dr. J.aurence, that if the inlcntion was voUmtari'y and clearly abandoned, an inten- tion so abandoned, or even a slight hesitatiori ai)out it, wr.uld not consiitiuc a violation of riglit. But Iiow stands (".;■ fact in tiic ;Me5,enc i.a;-.e ? The intention gives way, so f ii' .1;, it t/;:".! give wa-;, onlv to a suj)erior force. It is for tirv.):e w'iio give suc'i iiiMruciions to reeollec'^, tliat tlie averment of an aljaruiorinient ol intention Ccumot pos;;iblv be , set v.p, beea;'..,c the i.istriicaions are dchv; it'd to persons wiio are b^yiuul to uhrv thein, and wiio ];ave v.::, auihoritv ro vary. The intention is neccssmily uiicliangeible ; aeal, being so, 1 do r;or see t'le person wlio could fairly con- tradicl :ne, it 1 '.\:!s to a;;se)t t]:;at the delivery and accept- a:a.e ot siicii iiistraCtieiu. and the sailing unsbn- ihein, ai./icienL to eonipi^.te the act of hosLihiv. Howevei le tneieiir tact is, thjt the commander saiis ^ to p! event inquiry, ar.d seaudt by force, ;;;S lie ic. ijound to ob.-'.-, aiul wliich lie is ae.ring iipjn to tb.cii' Uiinost extent, onlv ;{;;rve. Undcrsuefj ciicumstance^', how aa.!:;..!o;i of abandonment arise .^ It' it does, ipacnees : if he meets with a superior force, ,s ii'j.ide purpose; if h^ in:.i.li with an le eaiiies it into complete th'cel. How it Ci tiK> cn-dinaiv st;,t.: ov'aiiutd !:o:tility ? ity ? it i:- violence, whcicveu can i:.e vio- es; — a;ul, weu:;;^ yen c.^eiiet, it is sub- li;,- i e. and stn-viPg your c i \iri A ; tleng i an he more I iv.ii, upon tlie peiusal of ti]e^u aec^tat! n , than iiiat tins ! :,,:li!nan ah:n'd.-n^d hi- pi:rp..:e inei eiv a,, a ..ubvlued i)er- fc-;:i in nu uJiec'ie! f:oi;u:^t, i lie re-: lauee is cairied c;n as far \% V iC ; .a;.,;eien lliar !io;ju be \:\i]) insliucf \n , 1 ; ., :!; in^frii; ]eev u)i-ed frc; le, ;', )i :iresl;t: 1 i • ■ . u;e pKV le.ir! . tlie ron "y.r :. 1 ,U!uoni> in;:; '. ■■. : i 1 (^ i (.\ ' < Xl a a J. hci.. 1; - ■ \\ itli SM [ 177 ] far as it cau be ; and wlien ii: can mairitain itself no longer, 3diy, It is said that tlie papers were not immediately taken possession oi', nor proceedings instiruted till long after the arrival in port, 'rhese are unquesrionabiv irregularities ; but I agree with the King's Advocate in liiaintaining, tiiac they are not such irregularities as will destroy the captor's right of proceeding, for the claiaiant liad Ids reuicdv in tile way ot a M jidtion. How rliese delays were oeca- r.ioned, whether va consequence ot pendiiig negoilalionr, as has been repeaiedlv asseitcdi m die coui'se ol tiic ai:;u- iTjent, I am not judicially inf'-.rnied. it ajcli negotiations ever existed, 1 mav b.ave reason persnnaily to lament tiiat they have proved inellecluaL lint t]:;e legal consequence of that inefficiency undoubtedly is, that tlie question ot law remains tb,e same as ii no sucii negotiation had ever been thought of. zj-tldy, It is lastly said, that tliev have proceeded only against themerchanc-vesSLb, and not agairist thcli'igatc, tiie principal wrong-doer. On wiuU groLinils tins was dt;ne — whether on that soit o(- comity arid reipecl whicli is not lannsuaily shewn to the immediate property of great and august Sovereigns, or how otheiwise, 1 am again not judicially informed ; but u can be no 1^ gal bar to tiie riglit of a plaintilF to proceed, tliat lie has lor some reason or oilier declined to proceed agaii.st anotiier party against wljom he had an eqea!, or, p'ossiM} , a superior title. And as to the particular case ot ciie veirsel which had obtained her release, and a re-deiivcrv ot her papers, tlse a6l of tlie captors rnay perbians larnisii a reasonable ground of dis- tinction with respect :o her ou n s[)ecial case ; but its effciC!, be It wliat it may, is eoriLneci to hciseli, and can be ex- tended no lartiicr. 1 anr ot opinion, therefore, that special circumstances do not exist, wldeh can take t!;e case out of tlie rule winch is generally applicable to sucii a state of tads ; and i have already stated tliat r..le to bj the coiidscation of all the j)r('})ertv torcibiy wiildnld f,cin inijtdrv and search. It may be htting (fur any tiling tbait 1 know) tliat oiher con- siderations should be interposed, to soften the severitv of the rule, it the rule can be juitiv taxed with severity ; but I have neither the knowlcal^e ci any such considciatiu'ns, jior authority to apply them, if any negotiations nave pledged (as has been intimated) the lionour and good faith of [ ifo f)f tlic conni.'v. I can only sav, tiiat ii has been much the b:\hk of rhio couiir.y to redeem pledges of so sacred a jKUure. Bu' rr.v bus;ne;s is roei'ely to decide wliether, in a C;:iirt ot riie l.zw of Nations, a pretension can be Ic :;.;iv maiiuainrd. wircli ha> for its purpose neither jr.ore nor less tir.vi to e\;i:'_^i!;^-h t-ic rii'ht of maritime t;:ipiu:c in war; rnd to chv tills, iiow ? bv tlie direct use of lio-^'.ilc tbrce en the nr.rt of a neutral state. It is hi;ii time that tlic legrf; ;v.eric of such a pretension should be disposed ci o:.e wav or r;:;;er — it]"La- been fc)r some lew v:.ais pa-.: prtparinL:; in L.urojjj — ;t is extrumelv fit tliat It ivndd be broeghi lo the te-t of a judicial decision: tor a wyr^c <:-Mc ^n ddng^s cannot ohsr, rlian thee c;r an eii- d;:t.,::j.vncd oondict between the ancient [..uv/ ni T-. anons, a- Li ;ds 'a;,,:;.! an^,! piae'dicd ior ceniarico be aiviin'aai na- V'-'i.:, aia.' <; a-v'ler:i p: - ' : ^ cf inijovat'an, urcrie incaa- a'-renr \\ i:h i; : and an r,',\ nppi ehens'on, no!" nTS-ie iii- at tb.e distance of two montin; from the order of fur:!icr jn-cf : and, condemning thi'- ^.np aval ein'go, I dn'ect all private adventures to be Jexored, Ihii r 179 ] This is tlic substance of what I have to pronounce ju- dicially on this case, after weighing with the most anxious care the several fa6ls, and the learned arguments which have been applied to them. 1 deliver it to my country — and to foreion countries — with little ditBdence in the recli- tude of the judgment itself: I have still more satisfaction in feeling an entire confidence in the rectitude of the con- siderations under which it has been formed. A a REMARK L iSo ] R E M ARK ALLUDED TO IN THE NOTE TO PAGE 95, THE original DDnisIi of tiiis work was scarcely our of the press, wiien a friend pointed out to mc, in the Svslcm of l/ic Laiv of lAdrinc Imnrajiccs, by Mr. Park-", a woi"k considered classic, as well upon the Continent as in England, the note of a sentcr.ce pronounced at Lon- don, in 1785, bv the Court, which decide^ in the dernier YCi^ort in all cases reJating to marine insurance ; on which cr:casion, the Judges Willes, Ashurst, and EuL- T,KR, wlio are in Tne ninnher of tlie most enlightened whom En:ilaiid l^oa' rs, sat in die absence of my Lord Chief |usv;' e .M \xs 1 11: T.i;i. 'i'in's sentence is stated iu that Wv;rk. .i-. c-w: of liiose decisions which establish ihe jurisprudence, and iCi vc tor law in the tribunals. As it rests upon prin;:;plcs dia;r,c:ric::!!v opj)OS!tc to those of the Judge (.)f die Ado^iri'-iV; I nh.dl give a shoi't sketch of the case on which it ic ioundcd, and of the princi[)le3 whic!'» diclatcd it. ]3i..-;ng ihc A;'ner:can war, a neutral vessel, belonging r.o 7'uscan-;-, t';- carc^o of wrdch was ncutial also, bur consi-ned ;rr Lo;;don, ?.\\\\ in -ired in that citv, was cap- tured oil th.e C';;r,;-.t :; ikirharv bv a ^panisll cruizer, whet carried he- io:o a :■!■:::!!■'• nort. The inferior tril)unal. pronounced se-.ver' .^ of conn- :.ition upon this ship and the «■ argo, on tV;-o gr'rLUid- • i'-*., That the ship Ijaving re ~.\\^.':C!. to he 'xareluid. and r, Ttcd with force, as she had. fired upf^n r;-,- .'■jpani /ii crr.i-'cr, slie was placed by that ■.o:gh- a^\ in :'■„ i.--c cf ■^onircarion. 2div, Because she h:,'! i.'; ';/;•;•'; ;-^ ■;■■ oe h.arci, b :t onlv a mtvv^r-lo^ de- '-'.i'ing ail w.e n: -" ^.i..-;;di■^■^ ; .n pri^^cd in th: cargo. A :.up/; -■:' Cwi.rt :i ,e.:v.' tios ^nicnc;:; bur it wa^ con- :'-?, &•:. (h- 'liirl Elition. re - , Li.;. Londji:, i"9'i. i". ':''^t hrmc;i [ i8i j fin-ncd by tlie Supreme Court, where, liowever, die wnnt of the c'laricr party was ncjt insisted upon, it being consi- dered widi reaj?.;!, as luUy S'jpphed by tlie man'tfato. No do'jhr consequently was entertained, but that the ship ard carjo were really neutial property; and the only ground of the condcnination was, the aflive and violent re.^istance which the Captain opposed to the seaich of the ]:riv-ateer. and the Spanish law, wliich in every such case ]>ronounces conHication, The fitters out of the condemned vessel having had recourse to the Insurers at London, the latter availed themselves ot this same ground, to refuse jiayment of their iiisurancc, alleclging, as Sir William Scott does in his judgment, that the search of neutral vessels on the high sea, is the indisputable right of the cruizers of belligerent powers ; that neutral vessels are bound to submit to tin's search, on pain of being lawfully consid'.red as eiiemies ; and that thie Tuscan Captaia having, by his resistance and filing upon the Spanish vessel, failed in that which his neutrality required of him, and placed himself by that very act in the case of confis- cation, the insurers were not answerable for the loss which lie had manifestly drawn upon himself by his own misn conduct. Xo:wirhstandIng all that lias been said of the facility with which English insurers elude the demands of owners, or fitters out c^f ships, and although the grounds alledged were of a nature to find favour in the tribunals of a belli- gerent nation, to wdiicli privateering has always appeared of the highest importance for its marme, the three Judges ab:^vc-mentioned, after having heard the parties, were unanimous in declaring, that in resisting, as he had djric, the search of the Spanish cruizers, the captain of the ve.^iei insured iiad done nothing; unlawful — nothins; - J-^ which com.promised tlie neutrality ot the vessel ; and, in. consequence, they sentcriCed the ins'jrers to pay the in- surance agreed on in the policy. Two ot ttiese Judges, ^^'ILl. Ks and AsHU?-ST, laid it down upon this occasion as a principle, " that the search at sea is an ad of fire c^ which the cruizer exercises at his own risque and peril, and which, consequently, may be resisted when the pai'ty is able ; — th.at if the vessel or the cargo prove to be the property of an enemy, or if the cargo is contraband, the party seizing is justified, and the articles captured are dc- ^larcd lawful prize; but, that in the contrary case, lie A a 2 niuit [ i82 ] must Inclemnify the owners, and pay all tlie costs." Mr. Justice BuLLKR, in support ot this principle, which he adopted in its whole extent, adds the jollowin^ oUieiva- tion, which is equally true aid remarkahle : " The detention, in consequence of the particular or- dinanccb or" a foreign itate, is a risque which the insurer runs , for these ordinances do not iorni a part ot the Law of Nations, and the captain is not culpable it h^ has infringed tiieir. A vessel ib oiilv houiid to take notice of the laws ot the tountrv Jic sails from, and of that to which she sails , but not of the particular ordi- nances of other powers." Such are, upon wliat relates to the search at sea of neutral ships, and the right of withdrawing themselves from it when thev are able, the principles laid down by the great Judges ot England, in a ca^c where, left solely to their own information, and tlieir liabitual rectitude, thev have not been influenced by considerations of shitting convenience or interested policy. Let vs applv them to the case of the Swedish convoy , anu tor diib purpose, let us suppose that the ships which composed it were in- sured at London, and that the judgment of Sir William Scott having been couurmcd by the High Court of Appeal, the owners have no resource bur to come upon the insurers. Should thcje latter endeavour to elude their engagements, they would only fouiui tliernselves upon the judgment antl the arguujents of the Judge ot the Admi- ralty ; tor Irowever con:,umn"!ate the Lnglish lawyers mav' Le in the art of maintainin.g a cause, where could they find any means of v.hich this Judge, as skilful as en- lightened, has not availed himself r It on its part, the same tribunal which has decided against the insurers of the Tuscan ship, should have before it the case of the Swedish convov, and that, as thcie is no doubt, it wiilied to be consistent, what answer would it make to tlic insurers of the convoy ? " Yoa pretend," t/;is Trlhuual ■-jjoidd sau " that the right ot seai-ching neutral merchant ves,-:cls on tlie high sea is an incusputable right of the ci'uizers of belligerent powers", but you do not prove it , for no law, Wo obli- gatory act imp(n,es on neutral vessels the rlglit of submit- tnig, in thi5 partleular, to the pretension of cruizers. l"hc " See S;r Wi L L 1 AM ScoTi 'i Judgment, search [ 13 ) Si^aicli wljich these latter make, is an o.B of force \ you. allow ii — bur vou say* that It is an Vi^ko'i legal force, very nenrly resembling an in.juiry orclere;! by a competent Judge in a legal aftair, and from which the interested party cannot withdraw liimself without incurring the pe* nalties infli-vtcd in case of conviction. Wo. say that your distinction is not more just than your comparison ; that tlse search at sea exercised upon neutral vessels is, in the whole extent of the term, an (?t? of f^rcc, an act \vitl> which no Ic^a! ohl'igat'ion can consequently correspond; ihis adl is exercised by the cruizers at their peril and risque ; and it is clearly lawful for those wlio are the ob- ject of it to witlidraw themselves from it wlien they can. " In vain would you cite the Spanish ordinance, or that of England, to prove that ships which resist search are subject to confiscation ; these are particular ordinances, which make no pnrt of the Law of Nations, and to which neutral vessels do not owe obedience. The only laws of this kind, of which a ncutrrd vessel is bound to take notice, are those of tine country from wliich it sails, and those of the country to which it goes," They mhjit further sax, " "\Vhat we affirmed, wliat wc have decided to be true, in tlie caseot a single neutral vessel not convoyed, is mucii more so still in the case of a fleet of neutral vessels escorted by a frigate, acting by the orders of }ls Sovoeigiu It the tormer v. as not bound to take notice ot the particular ordinances of the belligerent powers. Was not the fleet in question still less so r It the resistance exercised, the resistance by armed force of this former vessel, he an a6t wirh which its captain camiot be reproaclied as an illegal act, with much stronger reason, the 7nerc menace of resist j.nee, destitute ot ail execu- tion, on the part of the Swetlisii commander, cannot be considered as a fault by which he has, either lawtully or voluntarily, incurred conhication. The searcii being, as we liave stated it, an act of foice, exercised at tlic peril and risque of tlic cruiz^er, it thence results, that it tlie ship detained prove nciural, as also its .cargo — if it contain nothing contraband, the capture is null, and the pnrty making it, condemned to indemnify che owners, and pay all the costs. But as no doubt ha> arisen, either with respccft to tliC neutrality of the vessels ^ Sie Sir Wi 1. 1. 1 AM Scot f's Judgment. convoyed cor.V'jvctl hv the S\\evli:;h frigate, or tl:iat cr' their carg'>c5, it i>> clear that the ]<)^s of these ships is not tlie acl of tho.^c who conimaiicled them, but that of the Jutlges who Jia\ e passcJ sentence on the detention. Tin's detention, bv virri;c of a particular ordinance of one of die belligerent itatcs, is a ribque wiiich the insurer runs, like all odier ri-o'ies at sea, to wjiicli the jiarty insured has not contri- buted h^ ids ow;-! fault. '• You prctci.u tiiat vhe S\\'edish convovs were conrra- baiid, and th.c Jud,::e also has pretended the saine ; but ]ieit!ier lie, ncr you, nor the captors, Iiavc proved it. — 'i'hev have cited sonie conirncntators wh,o affirm it ; we have opposctl to tlicni formal treaties, wliicii assert the contrarv. They have spoken of particular ordinaiices of some states, bur these ordinances con--titute no part of tht" Law of Xations; t'le treaties, and the treaties alone, serve for it.^ I)asi>. — 'I liev I'lave cited a treaty between Kiigiai-.d a;:d .Deiunark, widcli declares /icmp, pitch, and tar, conrra!)and ; but rhistiratvi^ ; nlv bindinT on ::'es'; tv.'o pcnvers respetftively. It is no law t(- ^.,e(i;.n, .'ho h::s not intericred in ir, and v, ':o is not .v.d 'e^l eithei to En2,land or Denmark. On tliis point, tiie tr...;^es be- tween England and Sweden are perfecflv clear. I'lie^r ciuimerate in tliC most ample detail, everv diiu.: '/, i.'ch ought to be considered as contraband ; bu: the ni-jreij.rn- discs found on board the Swedish ve>sels are not com- prised in the enumeration ; tliey are not, therefore, con- traband. These treaties declare free and lawful, all the merchandises wldeh are not cxprcsslv prohibited; but lump, p'ltJi, and lar, are not expressly prohibited ; these luci-chandises are tiuTefore kavful, and tJie coiidemnatiou "whicli tbic judge has pi'onounced, not renting ui')on any fault imputable to tk.'j insured, thev aie evidently in pos- se.-,-.ion of a'l tb.eir rights against the insurers." T'liis is, in a few words, what results iVom the sen- tciice rej;orrcd by Mr. Park. Sucli are the means which it furniihcs again.sr the sentence of the f-.;dge of tlie Admi- rtdtv. Ir is r.;r t;ie enlightened and imj^artial read: i- to decide, wlicthcr 1 have had reason to sav, that " this judgment conti^ast^ so manifestly with the jjriiicij.'ies of Sir NViLi.rAM Scott, tliar it alone furniihcs the most com-- jileie refutation of Lhein." SCIILKGEL I- A [■: r, L I 185 ] TABLE OF TREATIES, CONCLUDED SINCE THE MONTH OF JULY, 1780, WHICH ADMIT THE PRINCIPLE, LE PAVILLON NEUTRE COUVRE LA MERCHAN- DISE (free SHIPS MAKE FREE COUDs}. 1. THE Treaty between Denmark and Russia, dated Copenhagen, Qth July, 17 So, inseitcd in the Collcciioti of Treaties by Martens, vol. ii. p. 103 — 109. 2. The Treatv between Ru:-sia and Sweden, dated Pe- tershur;7h, 21st juiy (isc Auguit), 1780, ihld. p. no, nnd the separate articles, vol. i\-, p. 364. 3. The Act of Accession oi the United Provinces of tlie Netherlands to the Treaty betv>'een Russia, Denmark, and Sweden, dated Petersburgh, tJic 2J.th December, 1*^80 i2d fanuarv, 1781), Martkns, vol. ii. p. 11- — 121, und the separate acl, ih:d. vol. i\', p. 4. Tilt Treaty bctwceji Russia and Prussia, o^l the; 8th Mav, 1 78 1, Martens, vol. ii. p. 130. 5. The Acl of Acces^icn of Austria to t];e Armed Is euti-alitv, dated Vienna, Cjih October, 17S1, aiid ac- cepted by Russia 19th October, in tbie same vear, Lanu 'jrtdi del C^'jyanii^'CiO dir^.p^U A..:.'/';.'.',, vol.n, p. to I — io6. 6. The Treaty beiwcen Rn.s.-'a and Ponugal, dated Fetersburgh, 13th julv, rr'H.^, .MAP'irsxs, vol. ii p. 2G8 — 2 1 I. 7. The 'i'reaty of Comme:-:- bet^vee;; Spain and thg Ottoman Por'e, dated lx;ns:rniin'|.'j, rhe 14111 Septem- ber, 17S2, art. 13, and the io:!'..'.ving, ■/>.:/, 22q. 8. T!^e Treatv of (Jorn n\er^\' anJ Union batwocn tiic Xfiiitcd Provinces ot the Acfherla-.ds and tlie States ot North America, dated the bih of Oclubcr, j-32, a:r. ■■'>•— iO, and 24 — ?b, Uk'L p. :■;.:-- j^G:. 26- -i-;i. ["186 ] 9- Tlie Tl^-eaty of Comiperce between Denmark and Russia, of 8th (KJtii) October, 1782, art. 16 — 22, ibid. li. 290 — 294. 10. The Trcatv of Commerce Ix^twcen Sweden and the Free Stales of Nuiih America, dated Paris, 3d April, 1783, art. 8 — 16, ibid. p. 332— 33S. 11. The Trearv of Commerce between Russia and the Ottoman Porte, dated Constantinople, tbic lOlii June, 1783, art. 39, 40, 43, 60, ibuL p. 363, 392, 397. 12. Tlie Treaty of Union between the Empjcror. of Gkrmany andtlie K.M !" roh of Mop.occo, dated i6th O6tober, 1783, art. 5, ibid. p. 504. 13. The Treaty between Spain arid Tripoli, of the lOih September, 1784, i'nd. p. 531 — 539. 14. The Treaty of Commerce between Prussia and tiie States of North America, of the icth Septembefj J785, art. 12 — 15, ibid. p. 371 — 373. 15. The Treaty of Alliance between France and the United Provinces of the Netlierlands, of r'outainbleau, of die lOtli November, 1785, art. 8, ibid. p. 616. 16. 1'1'C Treaty ol Com.merce between Austria and Prussia, 1st (i2rh) November, 1785, art. 12 — 18, of the .i.)celaraticui ot Rus.;i;;, ?vi artkks, vol. ii. p. 624, 627, and art. 14—20, ot i\\?x of Austria, Mah^tlns, ibid, p. 636 — 640. 17. 'i"he Tr'citv of l^.^acc between Spam and Algiers, dated 14th June, 17 86, ;/'•..■,-/. p. 665 — 672. 18. "Ihe 'Jheaty of Commerce between I'Vance and Cjicat Ih'itain, oi the 261a September, 1786, art. 20 — 42, ibid. p. 693-704. 19. TIic 'j'rcjty of Com:i]crcc between France and Ru^.^;a, of St. reui.-burch, 31st: Dicember, 1796(11111 January, 17S7;, o.n. 2u- -3.J., IMar'IEKs, vol. iii, p. 15--19. 20. d'iie Trc:.' y of V'.)V?:\v,c\<- ■- baw^:en Ku:^sia and ?wii)les, 6;h (17J:) j.'ii-aiy, i/S;^ a;t. 17—24, ibid. p. 4.v-4y- 2 1. TilC [ iS? ] a I. The Treaty of Commerce between the Free States of North Ainer'ca and Morocco, 1st (25th) January, 1787, art. 3 — 6, 'lI'icI. p. 56. 22. The Treaty of Commerce between Russia and Portugal, 9th (20th) December, 1787, art. 22 — 28, ihid. p. 118 — 120. 23. Tlie Convention of Commerce between France and the City of Hamburgh, of the 17th March, 1789, art. 2, ibid, p, 159. 24. The Treaty of Commerce between Denmark and Genoa, dated Genoa, 30th July, 1789, art. n — 13, Martens, vol. iv. p. 536 — 343, 25. The Convention of Commerce between Russia and Great Britain, dated London, 25th March, 17513, ibid, vol V. p. 109 — 113. THE ENU, Printed by B. M'Niiilan, Pow-Streetj Covent-G4r4en, INDEX TO THE parliamp:ntary debates. rr:}posals for puhlishiirg by Sribscription, in T-Joo large Fe- in mes, 8^'<3. A COPIOUS INDEX to the DEBATES and PRO- CE^'DINCS in. both Mouses of Parliament, from 1743 to I Boo. ^T No Money recei-.ed but on the Delivery of the Work., '['Vr: P A'UJAMENTARY REGISTER, containing an Hi'tor\ of the Prcceedin^g;, and Df-bates in both Houses of Par- lijmenr, is now ir,jrc:.5ed to upwards of EiCjity Volumes, com. preheriding a pcr.od from 1743 to i underlalTng, hnt irom its acknow- ledged nt'b;-'; and co->venience, as we'l a; froin t!ic nianner ia which ir --.nil be exe.n;:cd, the Puidi-Iier has no doubt of re- c.dving ilnit enennra-- "m-nt, the sanguine hope of which in- duced h;m to undcrr;.!-.e it. hubscrii;ers' Kann-s r:'C: d',-cd bv '. 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