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Cornell University Library 
 JX 521 1.W26 1875 
 
 A treatise of the relative J |9Ms ^"^,,'|" 
 
 3 1924 005 230 705 
 
TREATISE 
 
 RELATIVE RIGHTS AND DUTIES 
 
 BELLIGERENT AND NEUTRAL POWERS 
 
 MARITIME AFFAIRS: 
 
 IN WHICH THE 
 
 PRINCIPLES OF ARMED NEUTRALITIES AND THE OPINIONS 
 OF HUBNER AND SCHLEGEL ARE FULLY DISCUSSED. 
 
 By ROBERT WARD, Esq. 
 
 BARRISTER. AT LAW, 
 
 AUTHOR OF THE ENQUIRY INTO THE HISTORY AND FOUNDATION OF 
 THE LAW OF NATIONS IN EUROPE TO THE AGE OF GROTIUS. 
 
 <• J . .V • EEPEINTED FE( 
 
 a WITH A PREFACE ]^. 
 
 EEP5INTEP FEOM THE OEIGINAL EDITION, 
 
 LORD STANLEY OF ALDERLEY, 
 
 A 
 
 AND AN APPENDIX. 
 
 LONDON: 
 
 DIPLOMATIC REVIEW OFFICE, 
 
 22, EAST TEMPLE CHAMBERS, WHITEFRIARS STREET. 
 1875. 
 
HERTFORD : 
 
 BTEFHEN AUSTIN AMD BOHS, PKINTBKS. 
 
PREFACE. 
 
 Mr. Ward's* Treatise on Maritime Law — a work 
 which, according to Kent, has " exhausted all the law 
 and learning applicable to the question" •[• — is now re- 
 printed because it is entirely forgotten and unknown ; 
 having disappeared within late years from those libraries 
 where it is known to have existed. This disappearance 
 is so singular that it might be more exact to say that 
 it has been removed by careful management. At any 
 rate, such disappearance has been coincident with the 
 renewal of those attempts to put down Maritime power 
 which began towards the close of the last century, 
 and then ended in failure. It was to be found in the 
 British Museum, whei-e the title may still be seen in 
 the catalogue, with the stroke of a pen drawn through 
 it. It was in Hookham's library, among the very 
 complete set of pamphlets which rendered that old 
 collection so valuable ; but this Treatise of Ward's 
 had disappeared from it before the period of the 
 Crimean War. That copy had a peculiar interest ; for 
 through its perusal the attention of one Englishman, 
 whilst still a youth, J was awakened to the subject of 
 Maritime Law, and its connexion with Naval power: 
 and it is to the labours of the same individual, that 
 must be attributed the change from ignorance and 
 
 * Mr. Ward was the father of the late Sir Henry Ward. 
 
 t Kent's Commentaries, vol. i. p. 128. J Mr. David Urquhart. 
 
 indifference 
 
IV PREFACE. 
 
 indifference in those matters, to anxiety and intelli- 
 gence, which have lately been displayed both in 
 England- and in France. The public attention is now 
 awakened to the peril to which these two countries 
 are exposed by the Declaration of Paris against 
 Privateering and the Right of Search. To those who 
 are struggling to restore the power of England and 
 to combat the prejudices raised against Privateering, 
 this Treatise is now offered as being peculiarly appro- 
 priate to meet the fallacies they have to encounter. 
 It is to be observed that it is not written without a 
 definite purpose, but is the answer, and at the time 
 the most authoritative one, to the arguments put for- 
 ward by the projectors of the Armed Neutrality. It 
 is still more remarkable, as we learn from the preface, 
 that a Commission was appointed by the Government 
 of that time to report upon the subject, and Mr. Ward 
 was a member of that Commission. The Ministers 
 who resisted the Armed Neutrality, and who, by doing 
 so, raised England to the height of her fame and power, 
 were therefore as anxious to conform their conduct to 
 the Law of Nations as to provide for the safety of 
 their country. 
 
 Mr. Edmund Phipps, in a memoir on Mr. Ward, says 
 that this Treatise was written at the solicitation of 
 Lord Grenville, and that it was on the eve of com- 
 pletion when a change took place in the Ministry 
 (1801). In the meantime, so great had been the 
 pressure on the author to get at least a portion of 
 
 his 
 
PREFACE. V 
 
 his arguments on the great question of Armed Neu- 
 trality before the public, that he determined to pub- 
 lish the first part before the rest, leaving the whole 
 subject to be completed in an after publication. The 
 part now extant was accordingly published in 1801. 
 When it came out, he received the following letter 
 
 from Lord Grenville : — 
 
 " Dropmore, Aprils, 1801. 
 "Dear Sir, 
 " I waited only till the circuit was over (not knowing where to direct 
 you) to express how much I h&ve been gratified by the manner in which 
 you have executed the work which you had the goodness to undertake 
 at my suggestion. I knew before that it could not be in any hands more 
 able to do justice to the subject, and *I can with great sincerity assure you 
 that my expectations have been fully justified by the result. I earnestly 
 hope that you wiE have time and leisure to complete it, though I should 
 be very sorry if you had delayed the publication of this part, which in the 
 present moment is the most important." 
 
 As far as can at present be ascertained, Mr. Ward never 
 completed the rest of his work : though he continued 
 it so far, and so far only, as to deal with one of the 
 propositions he proposed to discuss ; namely, " that con- 
 traband is confined to articles of exclusive and imme- 
 diate service in war." 
 
 But if in 1 80 1 it were desirable to meet the pro- 
 ceedings of England's enemies by an exposition of the 
 Law, how much more is it so now, when their tactics 
 are so far changed that instead of forming a league 
 against England, and thus attempting to gain their 
 point by open violence, all their care is directed to 
 induce England herself to put forward the new doc- 
 trines as something beneficial to herself as well as to 
 mankind .-' The success that has already attended their 
 
 h efforts. 
 
VI PREFACE. 
 
 efforts, is certainly negatively due to the entire ignor- 
 ance that came to prevail on the subject of Maritime 
 Law, and the almost universal blindness that existed 
 at the time of the Crimean War on the connexion 
 between it and naval power. Had it been otherwise, 
 never would the country have been induced, whilst 
 going to war with Russia, at the same time to resign 
 the very means by which England could act against 
 her and coerce her. 
 
 The signing of the Declaration of Paris was a 
 mere corollary of the act by which the principles 
 embodied in it were announced at the opening of 
 the war. But that the country should have sub- 
 mitted to it is a still further proof of the change that 
 had taken place during the interval of peace since 
 1 8 14. For it was the resignation of the means that 
 had made England great and powerful, at the moment 
 of terminating a war, the course of which afforded 
 ample proof, if such were needed, that those means 
 were necessary to England as a naval Power, as it 
 showed that the finest navy becomes almost useless 
 when cruisers are given up and neutrals are suffered 
 to carry on the commerce of the belligerents. 
 
 The prejudice against privateers arises partly from 
 ignorance of the safeguards provided by the Law for 
 the protection of vessels which are not lawful prize, 
 and partly from the writings of officers of Royal Navies 
 who have been unconsciously biassed by a prejudice 
 similar to that which is felt by regimental officers 
 
 against 
 
PREFACE. VII 
 
 against militiamen, volunteers, and irregular troops. 
 The following is a passage taken at random, which 
 may serve as a specimen of this kind of writing : 
 
 "There is but a slight step from the privateersman 
 to the pirate ; both fight for the love of plunder ; 
 only that the latter is the bravest, as he dares both the 
 enemy and the gallows." 
 
 It was only after such sentences had been written, 
 and the nation prepared by a course of such romance 
 reading, that Lord Aberdeen told the people of Aber- 
 deen that privateering was the last shred of barbarism, 
 and that the only difference between a pirate and a 
 privateer was that the latter bore the Queen's Com- 
 mission. A similar comparison might be made be- 
 tween brigands and soldiers. If the subject had been 
 studied in law books and not in novels, Lord Clarendon 
 could not have based his attempted defence of the 
 Declaration of Paris on the proposition that England 
 obtained a valuable consideration for the acknowledged 
 loss incurred by the giving up of her right to seize 
 enemies' property in neutral vessels, by the abolition 
 of privateering ! 
 
 The paragraph from a novel above quoted is followed 
 by another, which shows how the false notions gene- 
 rally entertained on the subject of privateers, have been 
 fostered by confounding the deeds done in former 
 times with those done in the days of our grandfathers : 
 "But in whatever school they had been taught, the 
 Buccaneers who kept about the English colonies were 
 
 b 2 daring 
 
VIII PREFACE. 
 
 daring fellows, and made sad work in times of peace 
 among the Spanish settlements and Spanish merchant- 
 men."* 
 
 Now the writer of this passage is speaking of 
 Captain Kidd in the reign of Charles II., who ended 
 his career as a pirate, for which he was tried and hung. 
 At that time, as may be seen from the memoirs of 
 Viscount Forbin, and other narratives, war between 
 England and France, and between England and Spain, 
 was chronic in certain latitudes, and was not interrupted 
 by the fact of those countries being at peace in 
 Europe. Moreover, from the time of Drake, whatever 
 could be alleged against privateers could with equal 
 truth be alleged against the captains of the Royal 
 Navy ; but in process of time the conduct of Maritime 
 war improved and became milder and more regular 
 on the part both of the Royal Navy and of the 
 privateers, though it may be doubted whether the 
 theatre of the "Thirty Years War" had any cause 
 to envy the districts of France lately occupied by the 
 Prussians. Maritime war must always be less inhuman 
 than war on land, for seamen do not go into action in 
 the state of hardship and- privation which goads the 
 soldier to excess ; and when the action is over there 
 are no women and children to suffer from the passions 
 
 excited by the strife. 
 
 Stanley. 
 
 Octoier \, 1874. 
 
 * Tales of a Traveller, by Geoffrey Crayon (Washington Irving), vol. ii. 
 p. 241. 
 
 INTRODUCTION 
 
INTRODUCTION 
 
 BY THE AUTHOR. 
 
 I 
 
 T is now more than two centuries since the nations 
 of Europe began to recover themselves from the gross 
 and brutal maxims which formerly governed and dis- 
 graced them. While the whole world was in arms, 
 and the wild burst of ferocious and unreflecting courage 
 destroyed all before it, and despised or oppressed the 
 milder arts of peace, it availed little, that some few 
 were to be found more enlightened than the rest, who 
 endeavoured to prove that there were rules of duty 
 beyond the mere force of power. For, while the 
 cloistered learning of the times was confined to the 
 humble range of manuscript communication, and reli- 
 gion, the only bond, or at least the truest sanction of 
 our duties, had maddened into enthusiasm or evapo- 
 rated in superstition, there was little room to expect 
 improvement from the only sources whence improve- 
 ment can arise. Accordingly, the potentates of the earth 
 far from profiting by their intercourse with one another, 
 were the slaves alternately of vengeance, avarice, or 
 
 ambition ; 
 
vi INTRODUCTION. 
 
 ambition : and the right of the strongest, so far from 
 being disguised as a principle, was almost the only- 
 principle professed. 
 
 The Reformation, however, and the natural tendency 
 to improvement, brought men at length to truer maxims ; 
 and the art of printing, by facilitating the means of real 
 knowledge, achieved almost a new order of things. Then 
 began the States of the world to embrace more just 
 conceptions of the nature of their reciprocal duties, and 
 to enquire, even with anxiety, whether there was not 
 some high obligation, some settled principles of action, 
 founded in a nobler origin than the brutal impulses of 
 passion or interest which had hitherto governed them. 
 Religion, learning, and philosophy, all combined, under 
 the auspices and direction of an illustrious set of men, 
 to teach nations, as they had before taught individuals, 
 that they were to be governed by a scheme of morals 
 founded in the obligations of justice, and sanctified by 
 the revealed commands of their Maker. Amongst these, 
 Grotius led the way, and rose to so proud a height of 
 eminence, as to leave all rivals far behind him. The 
 rules for action which he laid down were so clear and 
 precise, so deeply founded, upon such firm and sound 
 bottom, and so applicable, besides, to almost all the 
 cases which human ingenuity could imagine, or human 
 vicissitudes supply, that, with a very few exceptions 
 indeed, there is scarcely a position of his which can be 
 
 combated 
 
INTRODUCTION. vil 
 
 combated with success, much less overthrown. At the 
 same time he was so ably seconded and illustrated by 
 his successors in his noble science, during the whole 
 of the seventeenth century, and almost during the whole 
 of the last, that one would think the Law of Nations 
 would now be well understood in all its points and 
 bearings, and that it had gradually risen to that height 
 of perfection which other sciences have acquired. Much, 
 however, it seems, remains to be done. 
 
 It has been well observed, that States are moral agents 
 as well as men ; for they are composed of men, have 
 the same passions and temptations to do ill, together 
 with the same reason and antidotes to temptation. 
 They owe also the same obedience to the Creator and 
 Governor of all things, can pretend to nothing, and 
 ought to yield every thing, as they suppose he would 
 rule and exact it from a simple individual. But, un- 
 happily for mankind, from the varying powers of their 
 understandings, the influence of pj-ejudice, the clashing 
 of interest, and, above all, from the want of some 
 sovereign and all-powerful tribunal to pronounce with 
 authority, and execute with effect, it is no easy thing to 
 establish a common code of laws which all may consult, 
 and to which all should defer. In the war for the 
 Austrian succession, a philosophic king of Prussia chose 
 to attempt an alteration in the neutral code, not by 
 endeavouring, as nations more interested than his had 
 
 done, 
 
viii INTRODUCTION. 
 
 done,* to obtain it by boon and express stipulations 
 from Great Britain, but by claiming a right, founded on 
 reasoning, such as it was, to carry enemy's property 
 in his ships free from search ; a claim which fell still- 
 born to the ground, from the irresistible argument which 
 stifled it in its birth.f 
 
 The close of the eighteenth century, however, has 
 exhibited a contest upon the same point of law, and 
 founded in the same philosophy, of such extreme magni- 
 tude in its consequences, agitated in a manner so tre- 
 mendous for the parties, and likely to bring along with 
 it such a train of evils, ending in misery and blood, that 
 all men must naturally make it an anxious subject of 
 their investigation, and be eager to inquire into the 
 reasoning and authorities that can settle it, if indeed 
 it can now be granted to us, that reasoning and autho- 
 rity can settle it at all. 
 
 The pretensions and principles of what is now well 
 known by the name of the '' Armed Neutrality" have 
 been formed for some years. Whether they have been 
 formed upon a just foundation, or a foundation any thing 
 
 * Holland, for instance, who laboured it under the direction of their 
 
 ablest ministers,, after their war with Cromwell, till it ended in the 
 
 treaty of 1674. See Thurloe, passim ; De Witt and Boreel's Letters, 
 and Temple. 
 
 t See the Duke of Newcastle's Letter, &c. &c. 
 
 hke 
 
INTRODUCTION. ix 
 
 like just ; whether they can bottom themselves in any 
 well reasoned theory, or find support from any examples, 
 (and without a well reasoned theory, supported by the 
 force of example, it is in vain that you look for the Law 
 of Nations, or any other law,) is the momentous object of 
 the following enquiry. If the pretensions of the North 
 can be made out convincingly, if even, incerto marte, 
 their favourers can discuss the question, the world will 
 pause before they fly to the terrible decision of arms. 
 If, however, the whole should be usurpation, set up to 
 acquire unlawful advantages to them, and ending in the 
 total deprivation of the lawful means of defence to us, 
 it then becomes that object for which the nation must 
 contend to the end of her resources, or cease to be a 
 nation that has any resources at all. Mankind will 
 allow, that the subject is full of interest ; and the crisis 
 of the times is such, that Britons at least, if not the 
 Dane and the Swede, will give it all their anxious 
 attention. 
 
 In that well-known crisis of the American war, when 
 the whole exertion of France was pointed to the acqui- 
 sition of a navy able to cope with us singly, without 
 which it had become an axiom of their Government, 
 that they could not pretend to give law to the world ; 
 their policy was, as it will always be with the inferior 
 Belligerent at sea, to turn the whole of their marine 
 
 resource 
 
X INTRODUCTION. 
 
 resource into the means of offence ; leaving their trade, 
 and the supply of stores, for a time, to the protection of 
 Neutrals, if any Neutrals can be hardy enough to risk 
 the consequences of an interference. The Dutcl;i, cor- 
 rupted to the core by the love of gain, which had often 
 made them supply their own enemies with the means of 
 annoyance,* had always risked, and always suffered for 
 it. Denmark and Sweden, as bold in spirit, but not so 
 vitiated by the corruptions which the mere unqualified 
 genius of trade must ever generate, had shown much dis- 
 position to interfere ; but either checked by a sense of 
 justice, or tempering their disposition with prudence, 
 they had never ventured into an open defiance of the 
 existing law, nor upon the bold assertion of a new one, 
 which no nation in Europe had yet admitted. It was 
 reserved for the aspiring power of Russia alone to lead 
 the way to an innovation, which, whether, as she as- 
 serted, it was a natural system, founded on justice, re- 
 
 * As at Bergen-op-Zoom, which Lowendahl himself confessed he could 
 not have taken for want of ammunition, had not the enemy been so good 
 as to supply him. Many defend the Dutch for this in point of policy, 
 without observing that it can only not tend to ruin, when the Power that 
 sells is so superior to that which buys, that it may laugh at its thus 
 assisted efforts. This could never happen from the Dutch towards the 
 French, who have so often endangered their very existence. Who that 
 was to fight with his superior in strength and skUl, would lend him the 
 sword that was to work his destruction ? Reverse the situation, and the 
 case is perhaps possible. 
 
 mains 
 
INTRODUCTION. xi 
 
 mains now to be seen, but which her own Minister, in 
 his memorial to the States General, allows, * was to be 
 ' established and legalized in their favour' 
 
 That memorial stated in terms, that the same invita- 
 tion had been made to the courts of Copenhagen, Stock- 
 holm, and Lisbon, ' in order, that by the united endeavours 
 ' of all the neutral maritime Powers, a neutral system, 
 ' founded on Justice, might be established and legalized in 
 ' favour of the trade of neutral nations which by its real 
 ' advantages might serve for a rule for future ages'* 
 
 What real advantages are here spoken of, except 
 those accruing to the neutral and inferior Belligerent 
 alone, it will not be easy to determine ; it is certain that 
 no advantage at all, specious or real, could arise to him 
 who had overcome, or nearly overcome, his enemy at 
 sea ; and as certain that the system, though claimed to 
 be natural, was yet to be established and legalized, and 
 consequently, by an implication as powerful as inevitable, 
 had never yet been established or legalized. 
 
 Now what was this system founded in Nature, but 
 which for many hundred years the searchers into natural 
 
 * See the Memorial of Prince Gallitzin to the States General, 
 April 3, 1780. 
 
 right 
 
xii INTRODUCTION. 
 
 right had never thought of establishing as law ? It 
 consisted of four grand articles. 
 
 First. ' That all neutral ships may freely navi- 
 ' gate from port to port, and on the coasts of 
 ' nations at war. 
 
 Secondly. ' That the effects belonging to the 
 ' subjects of the said warring Powers shall be 
 ' free in all neutral vessels, except contraband 
 ' merchandise. 
 
 Thirdly. ' That to determine what is meant by a 
 ' blocked-up port, this is only to be understood 
 ' of one which is so well kept in by the ships of 
 ■ the Power that attacks it, and which keep 
 ' their places, that it is dangerous to enter into 
 'it. 
 
 Fourthly. ' That neutral vessels shall not be 
 ' stopped, except for just cause, and upon clear 
 ' evidence ; that judgment shall be given without 
 ' delay ; that the process shall always be uniform, 
 ' prompt and legal ; and that besides damages 
 ' to those who have sustained loss, ample satis- 
 ' faction shall be made for the insult done to the 
 ' flag of the contracting Powers.'* 
 
 * See the Treaties between Russia and Denmark, and Russia and 
 Sweden, June 1780. — Marten's Treat, torn. ii. 
 
 This 
 
INTRODUCTION. xui 
 
 This was the claim in 1780. This is the claim, as far 
 at least as Denmark has declared itself, in 1800* This 
 also, together with another, the privilege of the flag, 
 are the claims both of Denmark and Sweden. Russia, 
 in addition to other supposed and particular injuries, 
 co-operates, or rather leads the way, to the assertion of 
 these claims, which all say are in their nature indissolu- 
 ble ; f and for this the whole North are in arms ! Pressed, 
 therefore, as we are in this gigantic contest, in addition 
 to the now undivided weight of our most powerful and 
 bitter enemy, in the most just war that was ever under- 
 taken ; I have thought that it would be no unacceptable 
 service to my countrymen — perhaps no unacceptable 
 service to our confederated enemies themselves, if the 
 whole question could be laid at once before them, with 
 all its train of authorities and cases, in as much brevity 
 as is consistent with the subject. 
 
 With respect to the fourth article of the Russian 
 Treaties, 1780, it will not be at all necessary to discuss 
 it ; as there is nothing in it that militates against justice: 
 only we may observe, that when costs and damages are 
 
 * See Count Bernstorff's answer to Mr. Drummond's note, December 
 1800. 
 
 t See the Preamble to the Treaty 4th (l6th) December 1800, between 
 Russia and Sweden, which is ' made in order to give a new sanctum 
 ' to those principles of their neutrality which are in their nature indis- 
 ' soluble.' 
 
 awarded 
 
xiv INTRODUCTION. 
 
 awarded, satisfaction for the whole injury, both to the 
 individual and the ilag, is intended to be made. As to 
 the third, it seems nearly correct as a general rule. 
 Where it is not entirely so, the enlightened under- 
 standing, and admirably consistent decisions of a man 
 whom I should exalt myself by endeavouring to praise, 
 must satisfy even the framers of the Armed Neutrality 
 themselves upon the subject.* 
 
 In addition however, to the important, and to us fatal 
 claims set up. in the three first articles, there are a 
 variety of others regarding the rights of search, deten- 
 tion, and judicature, interwoven with them so intimately 
 as to make it impossible to separate them in a treatise 
 like this. These have found of late most strenuous 
 advocates in many of the public men of the times ; the 
 high-toned and certainly able Ministers of the courts in 
 question ; and civilians and professors of public law, 
 whose works, though I mean the reverse of shewing 
 them disrespect, have produced no sort of conviction 
 in my mind. And I cannot help thinking they have 
 owed the reputation they enjoy on the continent, more 
 to the flattering unction which they give to very favoured 
 
 * See a variety of cases of blockade ; and Sir William Scott's Judgments, 
 in Dr. Robinson's Admiralty Reports. The rule of decision there, is, 
 that there must be an actual blockade, together with notice of it to the 
 party, or to those whose duty it was to inform him, and an attempt at its 
 violation. 
 
 positions, 
 
INTRODUCTION. XV 
 
 positions, than to the skilful management of the argu- 
 ment, or the soundness of the deduction. Amongst 
 these, Hubner, who wrote in the war of fifty-six ; * and 
 Schlegel, who has lately detailed, with augmented 
 sophistry, (if I may use such an expression) the argu- 
 ments of his precursor, have been too much boasted of, 
 not to merit a considerable portion of notice ; but Sir 
 William Scott must forgive me the presumption of 
 attempting, after him, to handle an argument which 
 he, from his high place, has given to the world, but 
 which I must necessarily touch upon in reviewing those 
 who think they have reviewed him.f 
 
 • De la Saisie des Batimens Neutres, &c. — He was a Danish civilian, 
 and Conseiller de Conference. 
 
 + I allude to professor Sohlegel's Treatise, Sur la Visite des Vaisseaux 
 Neutres sous Convoi, ou Examen impartial du Jugement prononce par le 
 Tribunal de I'Amiraute Angloise, 1799, &c. 
 
 A TREATISE, 
 
TREATISE, &c. 
 
 The alleged rights of Neutrals in maritime affairs, which 
 I propose to examine, may be divided into several pffoposi- 
 tions, or general heads. 
 
 I. That free ships make free goods ; from which a corol- 
 lary is derived, that Neutrals have a right to coast from port 
 to port, and to trade from colony to colony, and from the 
 colonies to the mother country of Belligerents, without be- 
 ing liable to search or detention, except for contraband of 
 war. 
 
 II. That contraband is confined to articles of exclusive 
 and immediate service in war. 
 
 III. That war means military war and commercial 
 peace ; that is, that no private property can be the subject 
 of prize. 
 
 IV. That the courts of the capturing Belligerent are not 
 competent to entertain questions concerning Neutrals cap- 
 tured or detained upon the high seas. 
 
 V. That the right of search is not a natural right, and 
 is confined absolutely to the mere inspection of papers. 
 
 VI. That the flag of the State is tantamount to all do- 
 cumentary parol and ocular evidence, and excludes all right 
 of search whatever. 
 
 VII. That whatsoever is done under cover of the flag, 
 
 immediately excludes the supposed jurisdiction of the courts 
 
 of prize, and becomes matter of representation between 
 
 State and State. 
 
 B PROPOSITION 
 
THAT FREE SHIPS [Prop. I. 
 
 PROPOSITION I. 
 
 THAT, BY THE LAW OF NATURE, FREE SHIPS MAKE FREE 
 GOODS, AND NEUTRALS HAVE A RIGHT TO COAST FROM 
 PORT TO PORT, AND TO TRADE FROM COLONY TO COLONY, 
 AND FROM THE COLONIES TO THE MOTHER COUNTRY OF 
 BELLIGERENTS, WITHOUT BEING LIABLE TO SEARCH OR 
 DETENTION EXCEPT FOR CONTRABAND OF WAR. 
 
 The argument on either side of this question proceeds 
 prelinynarily upon the supposition, that this is or is not the 
 genuine, natural, and primth've layf, distinct from all limita- 
 'tion by treaty, and wholly unmodified by convention* In 
 this state of things, the Belligerent is supposed to say that he 
 has a right to annoy his enemy by every means in his power, 
 and consequently to seize his property wherever he may 
 find it, even on board the ships of a friend. On the other 
 hand, the Neutral contends, with equal earnestness and 
 equal appearance of reason,, as a general doctrine, that he 
 has a right to carry on his trade with either and both the 
 Belligerents ; that their quarrel ought not to affect him ; 
 and that every attempt to trench upon that right is an inva- 
 sion of his neutrality. Here, then, is an apparent confliction 
 of two apparently equally perfect rights, and how to recon- 
 cile them is the difficulty to be unravelled. If good faith. 
 
 * Schlegel, passim. — See also the third article of the late treaty, ^ 
 December, 1800, between Russia and Sweden. ' And whereas it is 
 ' resolved, that whatever, by virtue of the foregoing article, can be deemed 
 ' contraband shall be excluded from the commerce of Neutral Nations : in 
 ' hke manner, his Majesty the King of Sweden, and his Imperial Majesty 
 ' of all the Russias, will and determine that all other merchandise shall 
 ' be and remain free. — And in order that the general principles of the Law 
 ' of Nature, of -which the freedom of Trade and Navigation, as well as the 
 ' rights of Neutral Nations, are the immediate cottsequence, may be placed 
 ' under a competent and sure safeguard, they have resolved no longer to 
 ' delay that voluntary explanation, from which they have hitherto been 
 • restrained by motives of their separate and temporary interests,' &c. &c. 
 
 however, 
 
Sec. I.] MAKE FREE GOODS. 3 
 
 however, be brought into the enquiry, that firmest and best 
 auxiliary to every serious investigation, but little of intellect 
 will, perhaps, be necessary to settle the point. 
 
 For the more convenient discussion of the subject, the 
 argument may be divided into three parts, or sections. First, 
 as to the reasoning drawn from mere common sense 
 and the principles of general equity: Secondly, as to the 
 reasoning drawn from authority and custom: Thirdly, as 
 it may be collected from treaties. 
 
 SECTION FIRST. 
 THE whole mystery of this question, as far as I have 
 been able to judge, proceeds from either a wilful or an ig- 
 norant misrepresentation, on the part of the neutral champi- 
 ons, of the real pretensions of the Belligerent, which, they 
 suppose, amounts to an entire interdiction of the fair rights 
 of commerce which they enjoyed before the war. All the 
 argument, and the declamation that accompanies the argu- 
 ment ; the attempts at new theories, set off with the ar- 
 rangement and forms of system and science ; the unfounded 
 and most easily refuted accusations brought against us, from 
 scantlings of our history, or crude and mistaken, if not 
 wilfully misrepresented, accounts of our judicial proceedings ; 
 — all this, I say, turns upon this radical mistake, that we 
 wish to prevent and cut off the whole trade of Neutral Pow- 
 ers, or at least make such inroads into it, beyond the mere 
 deprivation of contraband, as shall render it nugatory, even 
 when carried on for their own account. Once, and once 
 only, for the space of near two centuries, such an attempt 
 was made, and, I freely own, by this country, in conjunc- 
 tion with Holland, when, in the treaty of Whitehall,* they 
 
 B 2 endeavoured 
 
 * Aug. 12, 1689. By the second article it is stated, that as 
 several Kings, Princes, and States in Europe, are already engaged 
 in a. war against the most Christian King ; and that they have al- 
 ready 
 
4 THAT FREE SHIPS {Prop. I. 
 
 endeavoured to prevent all commerce whatsoever with 
 France in the war of 1689. But though there was, perhaps, 
 power sufficient, had we ever been solemnly disposed to 
 consider that power is right, as many sour spirits have most 
 foolishly imputed to us ; yet we saw the injustice into which 
 we had been surprised, and, to use the language of Vattel, 
 (blaming us on this very question) ' Les deux puissances 
 ' maritimes, reconnoissant que les plaintes des deux couron- 
 ' nes* 6toient bien fonddes, leur firent justice.' f 
 
 With this one exception, Great Britain has never at- 
 tempted, since the law began to be "settled, after the frequent 
 altercations upon it in the sixteenth century, to impose fet- 
 ters upon that part of neutral commerce which is innoxious, 
 and which had in reality existed before a state of warfare, 
 unless in the authorized cases of contraband, and of carrying 
 enemy's property. Let it be remembered, therefore, that 
 the question on the part of the Belligerent is not, as has 
 grossly been supposed, whether he has a right to inter- 
 fere with the Neutral ; but merely whether he cannot pre- 
 vent the Neutral from interfering with him ? In other words, 
 whether, when the former extends the bounds of his trade, 
 not with, but for a Belligerent ; not only purchases what is 
 wanting for his own consumption, or sells his usual peace- 
 supply of articles ; but sells to him articles which may be 
 
 ready prohibited, or will in a short time pi-ohibit all commerce with France, 
 ' it is agreed between his said Majesty of Great Britain and the said Lords 
 of the States General, that if, during the course of this war, the subjects of 
 any other King, Prince, or State, shall undertake to traffic, or have any 
 commerce with the subjects of the most Christian King ; or if their vessels 
 of shipping are met with in their passage to the ports, havens, or roads, 
 under the obedience of the most Christian King y the said vessels, shipping, 
 merchandises, or wares, shall, in the case above-mentioned, be attacked 
 and taken by the Captains of men of war, privateers, or other subjects 
 of the King of Great Britain and the Lords of the States General, and 
 shall, before proper judges, be condemned for lawful prize. ' 
 
 * Denmark and Sweden. t Droit des Gens, 1. iii. sec. 112. 
 
 easily 
 
Sec. I.] MAKE FREE GOODS. 5 
 
 easily converted into the means of annoyance ; or even turns 
 carrier for his oppressed friend, who uses the surplus strength 
 which is thus afforded him against his opponent; whether, 
 in such case, the other Belligerent has no reason to be of- 
 fended, and to reclaim those rights which the pretended 
 Neutral is disposed to deny him. 
 
 This, in fact, is the true state of the question ; and with 
 this magnet to guide our wanderings, this towering land- 
 mark to point our exertions, we shall be able, I think, to 
 weather the tempest which has been only brewed by inge- 
 nious sophists, or artificial statesmen. 
 
 The argument for the proposition in question affects to 
 bottom itself upon the freedom of navigation, the liberty of 
 the seas, and the natural power and liberty of sailing over the 
 world. The right which a people has to use its industry 
 in whichever way it seems best to them ; the necessity 
 founded in Nature, for commerce, in order to improve the 
 designed intercourse of mankind ; the equal dignity and in 
 dependence of Sovereign Powers ; the unlawfulness in a war, 
 however just, of converting the privilege of annoying an 
 enemy into the power of abusing a Neutral ; all these, and 
 many others of inferior force, are the arguments by which 
 it is endeavoured to support the position.* They are founded, 
 it is said, upon principles of universal equity, which form the 
 great and everlasting code for the government of Sove- 
 reigns.! Is it fair, therefore, say they, because two nations 
 go to war, that others, who are impartial in the dispute, 
 are to suffer in their rights .'' Are they to be curtailed in the 
 means of their subsistence, or the usual exchange of their 
 commodities, which employ and feed so many thousands of 
 defenceless and innocent persons, merely because others have 
 
 * Schlegel, Hubner, passim. f Hubner, i. 105. 
 
 B 3 chosen 
 
6 THAT FREE SHIPS [^Prop. I. 
 
 chosen to quarrel; or because, before the war, one of the 
 Belligerents has been used to derive advantages from the neu- 
 tral trader, is the latter instantly to be invaded and stripped, 
 in order the better to invade and strip the former ? These 
 questions have often been asked, and have as often been an- 
 swered. In 1780 they were asked with a kind of triumph ; 
 and at this moment they are asked at the head of thousands 
 of armed men. Not the less weighty, nor the less firm, 
 however, will be the answer ; fof, whatever may be the 
 event, it must always be founded in truth. 
 
 In truth, then, there is no sort of occasion to dispute any 
 one of these points ; because, even if they could be contro- 
 verted as general positions, without any specific application, 
 which it is allowed they cannot, they all elude and go beside 
 the real-pretension. 
 
 All that we have to examine, says Hubner, is, whether 
 Belligerent States have a right to prevent Neutrals from trad- 
 ing with their adversaries ; or whether the latter may still 
 continue their commerce with the Belligerent parties, upon 
 the same footing as in times of peace.* 
 
 Now, with submission to him, this is not all that we have 
 to examine ; for if it was, much of the enquiry might be 
 spared. 
 
 The question asked by the Belligerent is of a very diffe- 
 rent nature. It is not whether he has a right to prevent 
 Neutrals from trading with his adversary, but, neither more 
 nor less than, whether Neutrals do not claim to go infi- 
 nitely beyond the rights of their trade ; whether, in their 
 anxiety to preserve privilege on the one side, a real injustice 
 is not worked on the other ; whether, in short, all the 
 advantage is not thrown on the Neutral party, which wholly 
 
 * Hub. chap. i. s. I. page I. 
 
 neutral 
 
Sec. I.] MAKE FREE GOODS. 7 
 
 bursts asunder the ties of impartiality, and converts the 
 cautious Neutral into a dangerous enemy ? 
 
 Subject to these questions, indeed, it is not the intention, 
 and according to the improved maxims of modern law, 
 it never was the claim of the Belligerent to interfere with 
 the Neutral. But that security against these is as much 
 the natural right of the Belligerent, as the privileges con- 
 tended for belong to the Neutral, no one will pretend to 
 deny. For, wherever there is a confliction of rights, one 
 or other, or both, must yield something, and then the right 
 can only be perfect, that is, can only be asserted, subject to 
 the diminution occasioned by the other. Throughput all hu- 
 man society, and all human life, it must ever be so ; we 
 must recollect, that the most perfect .state of civil liberty it- 
 self which man can form, is always a state of restriction 
 somewhere : every man that is born in the world trenches 
 upon the perfect liberty of some other man, and could we 
 unpeople the earth, or turn the theorist into the desert, for 
 the purpose of enjoying the perfection of liberty, he never 
 would be able to obtain it, on account of the tigers that 
 would contest it with him. 
 
 We see, then, that it is not true, because the rights of 
 commerce are founded in Nature, because the sea is free to all, 
 and because men have a right to profit by their industry, 
 that these rights are to extend to such an unqualified 
 height, as never to be modified on any occasion, 
 and even so as to encounter and defeat the rights of 
 others. Let us rather listen to the rational and liberal 
 Vattel, who, speaking of the illegality of contraband, and 
 at the same time of the rights of trade, says, 'the nations who 
 ' renounce it in war suffer, it is true, but suffer from necessity: 
 
 B 4 
 
 the 
 
8 THAT FREE SHIPS [Prop. I. 
 
 ' the Belligerent does not oppose their rights, but simply as- 
 ' serts his own ; and if the two rights are incompatible, it is 
 ' the effect alone of inevitable necessity.'* After all, then, this 
 is a common case, met with under every order of society, 
 beyond the control of man, as he is, and founded in the 
 nature of things. It cannot be illustrated better than by 
 directing our attention to a celebrated maxim of our muni- 
 cipal law. ' Cujus est solum ejus est usque ad coelum ' is, for 
 example, founded in very true principles of justice ; but as 
 it is palpable, how easily, if carried to its utmost extent, it 
 might work the greatest injustice, it is modified and render- 
 ed perfect by the addition of that other part of it, ' ita ut 
 alienum non ladas! 
 
 The diversified class of cases, and varied amplification of 
 the subject, which this maxim alone, thus guarded, would 
 generate in every enquiring mind, would furnish of them- 
 selves abundant matter to cl6ar all mist from this part of 
 the subject. I shall content myself, therefore, with refer- 
 ring for what is wanting to the well reasoned theory of the 
 Earl of Liverpool, on the Rights and Duties of Neutral Na- 
 tions, a work to which the visionaries of the neutral code, 
 as it is called, have in vain attempted tp furnish an an- 
 swer.f 
 
 In granting, therefore, the fair and reasonable enjoyment 
 of their privileges to Neutral' Nations, there must always be 
 added the fair and reasonable caution, that they use them 
 so as not to hurt the Belligerent ; and that. I may not seem 
 to entrench myself in generals ' ubi saepe versatur* error,' I 
 would add, that they have certainly no right to use them in 
 any one, the smallest degree of proportion, more than they 
 did in times of peace ; nor even in so great a degree, if such 
 
 * Droit des Gens, 1. iii. s. iii. 
 
 + See the Discourse on the Conduct of the Government of Great 
 Britain in respect to Neutral Nations, by the present Earl of Liverpool. 
 
 augmented. 
 
Sec. I.] MAKE FREE GOODS. 9 
 
 augmented, or the ordinary use of them bears immediate 
 mischief to either Belligerent. 
 
 For example, they may increase their purchases to any 
 amount in the Belligerent countries, provided their own 
 consumption requires it, and provided they remain domiciled 
 in their own country. But if they persist in carrying, much 
 more, if they extend their faculty of carrying for the Belli- 
 gerent, where the latter was in the habit of carrying be- 
 fore ; and if, in consequence, he is enabled to come to the 
 battle; and to stand the shock of war with augmented^ 
 strength, which he never would, nor could have possessed 
 without it, I see little or no difference between this and an 
 actual loan of military assistance. All the distinction is, 
 that he substitutes his own people in the place of taking 
 foreigners ; for every man, which the Neutral lends to his 
 trade, enables him to furnish a man to his own hostile fleets. 
 In other words, it enables him to meet his enemy with un- 
 diminished forces, and yet preserve entire his sources of re- 
 venue ; when, if it was not for this conduct of the Neutral, 
 either the forces or the revenue of the Belligerent must in- 
 evitably be diminished ! 
 
 This deduction, I think, is so clear, that the most 
 unenlightened savage, or children in their infant struggles 
 with one another, would instantly, taught as it were by 
 Nature, see its propriety, and act upon it as a principle. 
 We often, indeed, betake ourselves to the Indian's untu- 
 tored mind, or the child's self-taught springs of action, in 
 order to discover what we think is the natural law : and I 
 should have no objection to submit these diplomatic chicaneries 
 (as they have been called), in other words, these plain and ob- 
 vious cases of duty, which militate against those who depart 
 from all duty, to, the prompt decision of uninstructed Nature. 
 EvenHubnerhimself,whosupposesthathehasestablishedanev? 
 code in the Law of Nations, relative to Neutrals, which, he 
 I tells 
 
10 THAT FREE SHIPS [Prop. I. 
 
 tells you, was omitted in all the codes that preceded him, 
 contends no farther, than that they shall be allowed to carry 
 on their trade as in times of peace ; and this with the ex- 
 ception of contraband. But, according to our principles, the. 
 same reason which applies to contraband, applies to all nocent 
 cases whatsoever. Hubner, in explaining contraband, says, that 
 Neutrals were in the habit of carrying a particular species of 
 commodity before the war, which becomes prohibited by the 
 very state of war, because it assists one or other, or both the 
 Belligerents. We say, precisely in the same manner, that they 
 have been in the habit, not of carrying a particular com- 
 modity, but simply of carrying before the war ; which, if 
 persisted in after the war, must assist one or other, or 
 both the Belligerents : and, exactly upon the same principle, 
 therefore, is this also forbidden. 
 
 Let us review Hubner, in his very definition of Neu- 
 trality. ' Toute neutrality consiste dans une inaction en- 
 ,' Hire r61ativement & la guerre, et dans une impartiality 
 ' exacte et parfaite, manifest^e par les faits k I'^gard des 
 ' Belligdrans ; en tant que cette impartiality a rapport k 
 ' cette guerre meme, et aux moyens directs et imm^diats 
 ' de la faire.' * 
 
 Again, in the fourth grand division of the duties of 
 Neutrality, he says, ' Le grand devoir de tout Etat Neutre, 
 • c'est quil doit faire tout son possible pour 6tablir la paix ; 
 ' et que pour cet eifet il doit employer sinc^rement ses 
 ' bons offices, a fin que la partie lesie obtienne satisfaction. 
 
 * Hub. p. ii. c. ii. s. i. See also p. i. c. iv. s. 4. 'Et en 
 
 ' efifet, je ne vois pas par quelle raison les Etats Neutres devroient 
 ' s'interdire leur commerce ordinaire avec les Nations qui se font la 
 ' guerre, ou en vertue de quoi celles-ci pourroient leur prohiber de 
 ' trafiquer avec chacune d'elles, comme en tems de paix pourvu 
 ' qu'ils absti^nnent de tout ce qui a un rapport direct et immediat & la 
 
 'guerre; c'est a. dire, pourvu qu'ils restent parfaitement Neutres.' See 
 
 also p. ii. c. i. and ii. Commercer sur le m^me pi^ que quand lis sont 
 en paix. 
 
 *s'il 
 
Sec. I.] MAKE FREE GOODS. 
 
 II 
 
 • s'il 96 peut, si non, que du moins la guerre soit bientdt ter- 
 ' minie.^ 
 
 Now, I would ask the common sense of any one man, 
 lettered or unlettered, whether it is a proof of wishing to 
 re-establish peace, or of a sincere employment of good of- 
 fices, when one of the Belligerents begins to be pressed by 
 the other, and, by consequence, to stand in need of all his 
 military forces, at the expence of withdrawing a portion, 
 or perhaps the whole of the strength and vigour which had 
 been allotted before to the arts of commerce ; that a Power, 
 which had hitherto stood by, should step in, and do that for 
 the Belligerent which he was no longer able to do him- 
 self ? To come a little more into the detail and application 
 of this argument, let us suppose, as was the case with 
 France, a heavy duty upon foreign freight had formed an 
 almost fundamental law of her own commercial code ; which, 
 in times of peace, was a kind of Navigation Act, amount- - 
 ing to an interdiction of foreign interference ; and that, of 
 a sudden, while engaged in war, wanting her sailors, per- 
 haps her merchant-ships, for hostile expeditions, at the same 
 time wanting the pecuniary and other sources of her trade, 
 which would thus be extinguished, she applied to nations 
 calling themselves neutral, by taking oflF this duty, or even 
 by bounties, to carry on this trade. Here is a proof how 
 necessary this trade is to her exigencies, and how impossible 
 it is to preserve it, consistently with her warfare. But where is 
 the ■ man of plain understanding, and uninterested in the 
 question, who would not determine, that if the Neutral 
 accepted the oiFer, that instant he interfered in the war ? 
 But Neutrals do thus interfere, nay, they arm in order 
 to support their interference. Adieu, then, to the boasted 
 philanthropy of the Neutral, whose great duty is to do all 
 he can for the re-establishment of peace ! — ^Adieu to those 
 good offices which he is sincerely to employ, in order that the 
 injured party in the war should obtain satisfaction ! For if, 
 S ac- 
 
12 THAT FREE SHIPS \Prop. I. 
 
 according to Hubner's supposition, they can tell which is 
 the partie Usee, and, in this case, he should happen to be the 
 stronger of the two, able, as well as endeavouring, to do 
 himself right, the Neutral, by interposing his indirect, but 
 not less powerful assistance in favour of the otherj not only 
 becomes a party in the cause, but on the very worst side 
 of it! 
 
 These observations apply, very generally, to all the car- 
 rying trade ; but they more particularly apply to that spe- 
 cific claim in the first article of the Armed Neutrality of 
 1780, to navigate freely on the coasts, and from port to port, 
 of nations at war. In so far as the coasting-trade of a nation 
 is more valuable and more necessary to its existence than its 
 foreign commerce ; in just so far is the interposition of 
 Neutrals more powerful in its favour. That it is more 
 valuable, and almost necessary to existence, it would be 
 needless here to provQ, having been already so often proved 
 in the works of many wise men ; but if proof were 
 wanting, and the theory yet stood in need of example for 
 support, the French themselves, triumphant and gorged 
 with victory as they are by land, afforded one in this war, al- 
 rnost irresistible. We saw how soon the whole of their foreign 
 and colonial trade was dissipated and destroyed by British vic- 
 tories — we saw them almost systematically yield up their 
 colonies, and turn the whole body of their seamen into 
 cruisers and ships of war. But the coasting trade, from 
 port to port, was absolutely necessary, not merely to their 
 comfort and luxury, but to the very possibility of fitting out 
 those fleets and cruisers, without which, to a certain point of 
 strength, they can never hurt us, were their armies ten times 
 more numerous and more enthusiastic than they are. The 
 efforts of Great Britain were, therefore, naturally directed 
 against this necessary trade ; and, by the painful vigilance 
 and active eff"orts of that gallant set of men, the officers and 
 sailors of the British navy, whom to honour is but to name, 
 
Sec. I.] MAKE FREE GOODS. 13 
 
 the exertions of the French were crippled in their very ports. 
 Theii- scattered and ruined convoys so often bafHed in their 
 endeavours to enter the ports of maritime equipment, and 
 the consequent delay of months and years in the exertions of 
 an enemy otherwise so active, are advantages, not so bril- 
 liant, perhaps, but hardly less useful than those wonderful 
 victories which our fleets have so nobly and so uniformly 
 achieved. They afford a proof indubitable of the ne- 
 cessity of the coasting-trade to all naval exertion in time of 
 war. 
 
 Now, to supply this very necessity, when a Belligerent 
 can no longer supply it himself, is the stupendous claim of 
 the Armed Neutrality ! What the decision of a mind merely 
 candid and just (for it requires not the aid of lights or 
 learning) must be upon it, I leave to the common sense of 
 any one to determine. Certain it is, that if allowed, it is 
 in vain that victories shall be purchased at the expence of 
 rivers of blood ; since, unless they amount to the extermina- 
 tion of the conquered, they must and will rise again, through 
 this most just help, of neutral exertion. Yet these are the 
 principles of a man, a citizen of the world, the friend of 
 mankind,* in the very moment of laying down a rule, 
 founded, as he says, in the primitive law of universal jus- 
 tice, that neutrality is not to interfere in the war, and that 
 one of its grand duties is to do its utmost, by sincere good 
 ofl&ces, to bring about the establishment of peace. 
 
 It is really surprising to observe the injustice into which an 
 honest, but misdirected love of justice will often hurry men, 
 when the mind is under the dominion of a particular bias, 
 or warped by the love of a favourite system. Hubner pro- 
 fesses every where that Neutrals have a right to trade in 
 war as they had a right to trade in peace ; the unsoundness 
 
 * Hubner, in his Prefece. 
 
 of 
 
14 THAT FREE SHIPS [ProJ>. I. 
 
 of which doctrine, as an universal rule, I have been en- 
 deavouring to shew. He is startled, however, by the terms 
 of his own premises, when he comes to consider their right 
 to a colonial trade in war, to which they had no right during 
 peace. That trade having been generally forbidden them, 
 and never opened except in cases of necessity in war, a ne- 
 cessity occasioned by the pressure of the superior Belligerent, 
 a gleam of the injustice alluded to comes across him, and he 
 pauses before he allows its legality. He sees (for even he 
 is obliged to see) that it has, to use his own terms, ' Un rap- 
 ' port direct et imm^diat k la guerre, parceque les mfimes 
 ' peuples neutres ne le font jamais, et n'osent le faire en 
 ' temps de paix ; qu'il ne leur est ouvert qu'en temps de 
 ' guerre, et A cause de la guerre ; et qu'enfin au rdtablissement 
 ' de la paix ils en sont d^rechef exclus.' * He is obliged 
 to allow, therefore, that quelque incertitude hangs over this 
 part of the subject ; yet, without attempting to remove the 
 uncertainty — without one syllable to reconcile the dif- 
 ficulty — ^the very next sentenee asserts, ' that he sees no 
 ' reason why Sovereign States which are neuter ought to 
 ' refuse to themselves so considerable an advantage as presents 
 ' itself, provided they abstain from supplying those colonies 
 ' with contraband.' f 
 
 Here, in fact, is developed the whole mystery of the sub- 
 ject ; because here, in spite of all disguise, is the true reason 
 of the claim : ' Neutrals cannot refuse to themselves so consi- 
 derable an advantage ; ' which, word it as delicately as they 
 will, is neither more nor less than to say, that the wars of 
 others, Instead of calling for all their sincere good offices for 
 the redress of the injured party, or, at least, for the re-estab- 
 lishment of peace, are, in truth, the harvest of Neutral 
 
 * Hub. p. i. u. iv. s. 6. f lb. p. i. i^ iv. s. 6. 
 
Sec. I.] MAKE FREE GOODS. 1$ 
 
 Powers, by making them the carriers of the weaker party.* 
 Whether that party is the one injured, or injuring is no 
 where stipulated ; for, in the works of Hubner, or Schlegel, 
 it seems indifferent which it is, provided the Neutral is em- 
 ployed; and in that case the Neutral cannot certainly 'refuse 
 to himself so considerable an advantage! 
 
 It is really revolting to observe this contradiction, and 
 how little regard is thus paid to his own principles by Hub- 
 ner, though it is this, perhaps unwary discovery, that leads 
 him, in the same spirit, to confess, speaking of the established 
 law, that enemy's goods shall be lawful prize wheresoever 
 found : ' Que celle des parties Bellig6rantes, dont la marine 
 • marchande, et par consequent aussi la marine guerri6re est 
 'fort infirieure a celle de son ennemi, n'insistera jamais sur 
 ' la v6nt6 de la maxime que nous combattons.'f He then goes 
 
 into 
 
 * This part of the argument is put with great force and clearness 
 by the Earl of Liverpool, in his Discourse on Neutral Nations. He 
 ends it with observing, that ' if this right were admitted, it would be the 
 interest of all Commercial States to promote dissensions amongst their 
 neighbours. ' 
 
 t Hub. p. i. t. iv. s. 5. It is curious to observe the complete proof, in 
 point of experience, which this observation received from the Declarations 
 of the Courts of Madrid and Versailles, in answer to the Russian Declaration 
 of an Armed Neutrality. Although those two Powers had been uniformly 
 famous in Europe for the severest maritime laws against Neutrals, having 
 been, perhaps, the first tp enforce, and the last to relinquish, the maxim, 
 not merely that enemy's property is confiscable on board the ships of a 
 friend, but also that other, that ' Robe d'ennemi conSsque celle d'ami ; ' 
 yet they were now, for the first time, fully convinced of the injustice of their 
 conduct. They were feelingly alive to the injuries that the Northern Courts 
 had sustained. They had discovered how founded in justice, how conso- 
 nant with true moderation, how advantageous even to BeUigerents, were 
 these principles, for the defence of which they themselves were then actually 
 at war ! It is scarce necessary to point out, however, the wonderful changes 
 which twenty years produce. These principles, here so plainly assented to, 
 were all swept away in the whirlwind of the French Revolution ; and the 
 Directory discovered, in 1798, that Belligerents are not only in the right to 
 oppose them, but, by their decree, confiscate all vessels, not merely which 
 shall carry enemy's property, but enemy's manufacture. Bonaparte again 
 
 discovers 
 
l6 THAT FREE SHIPS [Prop. I. 
 
 into a disquisition, to prove that their acquiescence is the 
 more just, because their profit in their commerce with Neu- 
 trals is much diminished in time of war, owing, as he ex- 
 pressly states, to the ruin of their own trade, the greater 
 consequent necessity for the interposition of Neutrals, the 
 greater demand which the latter - will therefore make 
 as the price of their assistance, and the greater charges 
 which they are really obliged to incur, in . consequence of 
 the dangers they run in the difficult service they have un- 
 dertaken. With due submission to those who approve this 
 writer, this reasoning is the strongest that can be adduced 
 against his own positions ; for the higher price that is paid 
 for neutral interposition, the stronger is the proof of the 
 imperiousness of that necessity to which the weaker Belli- 
 gerent is reduced. The more palpable, therefore, the evi- 
 dence that the Neutral is interposing against the honourable 
 and legal exertions of the superior Belligerent. It admits 
 also, in a manner too undisguised to be misunderstood, 
 the real and sole object of the weaker Belligerent, and 
 of the Neutral carrier, in their endeavours to beat down 
 the lawful and just opposition set up against their most 
 unlawful conspiracy ; namely, that the one may be 
 able to fight the longer ; and that the other may, 
 without danger, put money into his pocket, for supplying 
 him with the means of fighting. This would inevitably be 
 the consequence of agreeing to the principle contended for, 
 as a point of universal law : and whenever that point is 
 carried, there scarce ever will be any end, except the most 
 
 discovers that Kings, in this instance at least, were more just than Directors, 
 and announces that the North, being about to arm in defence of the hberty 
 of Navigation ' pent compter sur la France ! ' Contrast this with the 
 steady, consistent, and dignified conduct of Great Britain, laying down the 
 principle, on the side of Belligerents, as founded in real and natural right, 
 and, under whatsoever pressure, never departing from it thus laid down. 
 
 shock- 
 
Sec. I.] MAKE FREE GOODS. 
 
 17 
 
 shocking, to a maritime war where the forces are nearly equal. 
 Since, although, one party may be weakened in the shock, 
 his loss will be supplied, and his powers renovated, by the 
 ' good offices ' of Neutrals, which, if perchance, he should 
 in his turn acquire the superiority, would immediately be 
 transferred to his antagonist, (as in the true neutral spirit 
 it ought to be) ; and so on eternally, till one or other, or 
 both, perish altogether in the contest. 
 
 The supporters of this claim imagine, that it is not 
 liable to so warm an inculpation> because the Neutral is, or 
 ought to be, ready to serve both parties with the same readi- 
 ness and zeal. According to all the theories, it is laid down 
 in due order, that neutrality is thrown off, by shewing any 
 favour to one which is refused to the other ; and this readiness 
 to assist the superior when he shall want assistance, is thought 
 to bring all round again. But upon this it must be remarked, 
 that complaint is not made so much for a preference shewn, as 
 an injury done ; that at the time of the act complained of, 
 the assistance is not wanted by the superior ; and although it 
 must be owned, in all schemes of morality, that men should 
 judge in every other person's case, as if that case was one 
 day to become their own ; yet, even in those cases, judg- 
 ment is supposed to be given according to general rules of 
 action, applicable to all the world, and for the advantage 
 of all the world, not with a partial view to our own parti- 
 cular interest. If, then, it is for the benefit of all the world, 
 that when two nations appeal to the sword, and the sur- 
 rounding nations have declared that they will take no part, 
 those nations should be loyal to their declarations, and assist 
 neither party ; it is not less a falsification of their word, 
 that they will assist both. If this were so, it would hold 
 equally good, if the indirect assistance complained of was 
 extended into a more direct interposition, in the case, for in- 
 stance, of actual military aid ; and then we should arrive at 
 
 c this 
 
l8 THAT FREE SHIPS \Prop. I. 
 
 this singular consequence in the reasoning, that a nation was 
 perfectly neutral, because it sent an army of its own citizens 
 to cut one another's throats, on each side of the question. 
 
 But I own, it is to me matter of astonishment, that writers 
 should stop here, and not carry the principle farther, so 
 as to affect articles of acknowledged contraband. If this 
 right of navigation is really so sacred, and so extensive, 
 that I am quietly to see my enemy's trade, (that fund from 
 which a maritime enemy strengthens the sinews of maritime 
 war,) carried on under my eyes, pass, as it were, through 
 my very hands, be lodged, perhaps, for a time within my 
 very ports (for who knows that the right is not to extend 
 to Neutrals coming for refreshment or repairs within the 
 dominions of the Belligerent .?) I see no reason why it should 
 not extend to contraband, provided there is no treaty. If 
 the claim is founded upon so sacrfid a privilege of commerce, 
 that no circumstances can modify or curtail it ; if it is founded 
 upon the absoluteness of the freedom of the sea, and the en- 
 tire want of dominion, and consequent jurisdiction upon the 
 ocean, the same foundation applies equally to contraband of 
 war. If I cannot take a bale of enemy's cotton from a neutral 
 ship, merely because she has a right to traverse the sea where I 
 have no authority ; as little authority have I to stop and search, 
 or seize her, because she is loaded with cannon, though 
 avowedly for the use of my enemy. Yet Hubner agrees that 
 contraband of war is always seizable, although not the sub- 
 ject of any treaty with the captor. Either, then, the reason 
 for the principle in question is false, or contraband of war 
 must pass free ; but the latter does not pass free, even accord- 
 ing to him : the reason, therefore, of his principle is false. 
 
 That I do not overstep the bounds of fair reasoning, in 
 carrying thus high the principle of Schlegel's master, will at 
 least be not denied by Schlegel himself ; for the praise of con- 
 sistency must certainly be afforded him, who says in terms, 
 that contraband, ' quoique fondle sur le droit des gens conven- 
 I ' tionel. 
 
Sec. I.] MAKE FRETE goods. 
 
 19 
 
 ' tionel actuellement en force, n'est pourtant pas conform^ 
 ' a!u droit des gens naturel.' * By conventionel, he every- 
 where means founded on treaty ; and as I shall, perhaps, pre- 
 sently have occasion to shew, both Schlegel and Hubner 
 must have most inaccurate ideas of a law binding on all na- 
 tions, if they identify it with a law binding upon those only 
 who have made treaties. Be this as it may, the glory of 
 overturning every received notion upon the subject most 
 certainly belongs to Schlegel. In this passage, the mask 
 is fairly thrown off, and it is roundly and boldly asserted, 
 that unless nations have had the precaution to stipulate by 
 treaty against dealing in contraband, there is nothing in 
 the law of their duty to prevent them. 
 
 The same inviolable right of commerce, which no Belli- 
 gerent can by the Law of Nature have power to control, will 
 extend also to the power of entering a blockaded port, which 
 even the articles of the Armed Neutrality, and the visionaries 
 that defend them, hold to be unlawful. But why unlawful, 
 since the Law of Nature permits a Neutral to visit the Bel- 
 ligerent when he pleases } Above all, it encourages and 
 enjoins commerce, and they ought not refuse to themselves so 
 considerable an advantage as they would derive from supplying 
 a blockaded port with necessaries ! Here, then, is another in- 
 stance of conflicting rights, which never can be enjoyed by 
 both claimants together. The besiegers have a right to 
 attack and block up a hostile garrison ; they hope to make 
 it bend to the force of their assaults, or the vigilance of 
 their blockade. , They therefore draw lines of circumvalla- 
 tion by land, and guard with strictness the mouth of the 
 harbour, all which they have a right to do. But a Neutral 
 
 * Exam. Itn. 68, 126. Vattel allows, that if a neutral nation trades in 
 arms and ammunition, ship-timber, &c. it may continue ithat trade with 
 both the Belligerents ; but he confines this expressly to the case, where 
 'mon ennemi va acheter lui mtoe dans un pays neutre.' D. des G. iii. 
 
 S. no. III. 
 
 c 2 appears 
 
20 THAT FREE SHIPS [^Prop. I. 
 
 / 
 appears with his right also ; he is in friendship with both, 
 he is not going to man the batteries of the besieged, or to 
 carry stores of war to their exhausted magazines; he is 
 simply going to trade with them in innocent articles, pro- 
 visions for example, or to take within the neutral dominion 
 and protection of his ship all the most valuable articles of 
 the place. Why may he not do so, having the right to 
 traverse the sea, and at the same time preserve his neutral 
 relations, and more especially having a right, had he re- 
 mained at home, to receive within the protection of his 
 territory any part of the treasure of his belligerent friend ? 
 It has been answered, because this is interposing directly in 
 the war; because the place being fully surrounded, there 
 is no hope of escaping to the besieged ; they are, as it were, 
 in the situation of a conquered party ; the prey is half killed 
 in fair action : not only, therefore, no assistance shall be given, 
 but the capability of giving assistance shall not even be at- 
 tempted. But these propositions, though it is impossible to 
 withhold our assent from them upon 'other grounds, I own, 
 I do not see the force of, upon the principles we have been 
 examining. I am sincere in saying, that if those principles are 
 just, to the extent claimed by the Neutral, I cannot see what 
 law it is that is so forcible upon the minds of the whole 
 world as to make them agree, even in the articles of the 
 Armed Neutrality itself, that a Neutral shall not attempt to 
 elude a blockade. 
 
 These observations apply also to breaches of an embargo, 
 which all agree, even to the Emperor Paul, may be legally 
 ordered, and when ordered, can never be broken without 
 fault. It was, no doubt, his conviction of the sacredness 
 of this right of the Belligerent which made him give orders 
 for the English ships, that endeavoured to break it at Riga, 
 to be burnt by way of punishment. Here eminently, there- 
 fore, is an instance where the champions of Neutrality them- 
 selves confess that there are rights belonging to one nation 
 
 S which 
 
Sec. I.] MAKE FREE GOODS. 21 
 
 which may be disturbed, and indeed annihilated, by the su- 
 perior rights of the other. Why they should be allowed 
 in these instances of contraband, breach of blockade, and of 
 embargo, and not 'exterided to the whole carrying trade 
 of enemies, I am seriously at a loss to hazard a conjecture. 
 
 There is yet another instance of the interposition of Belli- 
 gerents with Neutrals, too illustrative of the subject to be 
 passed over here. All mankind, except Schlegel, have hi- 
 therto consulted their common sense, and supposed, that 
 the subjects of a State at war are really at war also, and 
 therefore liable to be attacked in their property and ships. 
 The experience of the world; since the world began, has 
 in consequence permitted Belligerents to make prize of the 
 private ships of their fenemy. The justice, however, of the 
 world, whatever was thought of the matter formerly, has 
 for a long time determined, that if the goods of a friend 
 are found on board, that circumstance alone shall not con- 
 demn them, but that they shall be fairly and honestly re- 
 stored. The restoration, however, cannot, in the nature of 
 things, be effected without subjecting the party to conside- 
 rable inconvenience. The chances of being damaged or 
 spoiled, while frequently unshipped ; of perishing, if of a pe- 
 rishable nature, on shore ; and the Certainty of delay by the 
 interruption of their voyage, occasioning manifest loss and 
 disappointment to the owners, are the almost inevitable conse- 
 quences of this legal capture, even upon the most immediate 
 and faithful restoration. But who is to suffer, or who is to 
 blame for this loss } The Captor exercising the just rights of 
 war } cqrtainly not ; but the unfortunate Neutral, who, with 
 his eyes open,' entrusted his fortunes to the protection of a 
 party, who, he knew, was liable to be deprived of the means 
 of protection. We see, then, how visionary, partaking of 
 little less than the original Jacobinical madness, are all 
 schemes of right and duty, not adapted to the actual nature 
 of man. We see that it is not true, as has been supposed 
 by this well meaning professor, that Belligerents have only 
 
 c 3 rights 
 
22 THAT FREE SHIPS {Prop. I. 
 
 rights to exercise with respect to Belligerents; none with 
 respect to Neutrals;* they have, in this very instance, an 
 absolute right to do what may occasion, as we see, very 
 considerable loss and mortification to Neutrals, yet are whol- 
 ly without blame and without responsibility, the misfortune 
 being founded, as Vattel has before well observed,t in the 
 nature of things, and inevitable necessity. 
 
 But another argument for the principle now meets us, 
 more ingenious in its construction, if not more convincing 
 in its effect; and it is gravely brought forward too by the 
 man who is to review a judgment of Sir William Scott. 
 He borrowed it from Hubner,f who advanced it in the war 
 of fifty-six ; and he borrowed it from Michel, who advanced 
 it in the war of forty-five ; § from what sophist it was bor- 
 rowed by the latter, it is of little consequence to enquire or 
 to know. 
 
 It is clear, says their argument, by the allowance of Belli- 
 gerents themselves, that the neutral territory can never be 
 attacked, visited, or searched, without a violation of neu- 
 trality. All enemy's property, therefore, which is in har- 
 bour, or on shore, even though under the eyes of the other 
 Belligerents, is safe, because inviolable without the over- 
 throw of law. Now the ships of a neutral State belong to 
 the sovereign or the individual who equips them, and the 
 ports from which they sail. This is clear from the flag they 
 bear, and from their being always amenable to the laws of 
 their country, in whatsoever part of the sea they may be. For, 
 if it were otherwise, their crews would actually return to a 
 state of nature, might commit all manner of crimes without 
 any control of magistracy, and every vessel would form so 
 
 ' Schlegel, S3, 54, 55. 
 
 t D. des G. I. iii. s. ill. 
 
 } Hubn. T. i. 211, 212. 
 
 \ Exposit. des Mot. &c. du Roi de Prusse. 
 
 many 
 
Sec. I.] MAKE FREE GOODS. 23 
 
 many independent republics, and be endowed with the rights 
 of peace and war. But as this would be too absurd to be ad- 
 mitted, all must acknowledge, that neutral vessels upon the 
 sea are within the sovereignty of the' neutral State; and, con- 
 sequently, the principle, that free ships make free goods, is 
 not arbitrary, but is derived from the nature of things and 
 the universal law of nations. 
 
 This wonderful discovery, if it means any thing, is intro- 
 duced in order to found upon it a proposition, which would 
 indeed be wonderful if admitted, namely, that because a 
 Swedish ship belongs to Sweden, (for the discovery is 
 nothing more,) though swimming upon the high seas, 
 though coasting from port to port of an enem/s country, 
 though passing from colony to colony, and from the colonies 
 to the mother country, though employed, in fact, in the 
 domestic service of the enemy, perhaps half manned by him, 
 certainly transporting and exchanging his cargoes for him, 
 yet she in reality is not a ship all this time, but Sweden 
 herself; at least, in all her rights and privileges to give pro- 
 tection, she is precisely and identically the same as so much 
 Swedish territory. 
 
 It requires little to refute this visionary sophism. If 
 gravely relied upon by thfe author who brought it forward, 
 he surely does not advert to the true nature of dominion, 
 which is simply neither more nor less, than a right which 
 a people have to do any act, of whatsoever nature, within 
 certain districts, in consequence of the absolut-e power over 
 those districts which they possess. Sweden is thus under 
 the dominion of its inhabitants. That hardy and high spi- 
 rited race has always vindicated its independence; but 
 could Sweden float like her ships through the sea, or wan- 
 der, like hordes of Tartars or Arabians, through deserts 
 which no body claimed, and should she be exposed in her 
 progress to encounters with other nations that were Bellige- 
 
 c 4 rents. 
 
24 THAT FREE SHIPS \^Prop. I. 
 
 rents; her sovereign inviolability might be attacked by 
 others, every moment that she used her locomotive power for 
 the purpose of annoying them. Consequently, if in her 
 progress she adopted, or had originally conceived* the design 
 of doing what was hostile to those under whose dominion 
 she should happen to come, or whom she should hajjpen to 
 meet in places where no dominion was paramount to both, 
 the rights of examination and judgment according to law 
 would instantly accrue. 
 
 The true reason, therefore, is founded, not in a pretended 
 right of dominion over the sea, which is, even in these times 
 either wilfully or ignorantly supposed ; not in any distinc- 
 tion which is made between the Swedish sovereignty with- 
 in the planks of its ships and the shores of its territory, 
 but in the simple circumstance, that, from their power of 
 moving over the face of the globe, the goods of enemies in 
 neutral ships are called forth into action, may be used directly 
 to the annoyance of the other Belligerent, and at very least are 
 working, while in the course of trade, the direct advantage 
 of those who ship them. In this point of view, therefore, 
 it matters little whether it be a ship or a waggon, and the 
 reasoning of Schlegel upon the difference between maritime 
 and continental war is, like most of his other sophistries, easy 
 to be examined, and never standing the touch of examination. 
 We state, therefore, in this reasoning, nothing but a plain, 
 known, and received maxim, that nb nation, professing neu- 
 trality, shall assist either Belligerent in the war, whether 
 endowed with stationary or locomotive power. The for- 
 mer will make not the least difference, either in the princi- 
 ple, or in the rights founded upon it ; for, if the Sovereign 
 of a State that possessed not a ship in the waters, aided, com- 
 
 * It is to be observed, that the Swedish convoy set sail from the Baltic 
 with instructions to resist the exercise of the right of search, if attempted. 
 
 forted, 
 
•S''?^- I-] MAKE FREE GOODS. 
 
 25 
 
 forted, and encouraged one Belligerent against the other, his 
 neutrality would be instantly broken, and the' right of com- 
 plaint and of punishment would as forcibly accrue, as if his 
 fleets had engrossed the carrying trade of the world. For 
 example, if he suffered him exclusively to make levies in his 
 territories, never having done it before, and expressly to be 
 employed against the other party;* if he furnished him 
 with corn, never having previously lent it him,t and expres- 
 sly to be employed for the equipment of an expedition ; if he 
 allowed him to march an army through his country, ex- 
 pressly to invade the other more commodious ly ; if he lent him 
 a strong place on his frontiers, for the purposes of alternate 
 retreat or annoyance,J or sold him aims and ammunition, 
 or equipped him again with the means of offence, of which 
 the fortune of war had divested him ; in all these cases, the 
 Belligerent injured might prevent him by every means in 
 his power, as much as he might prevent the actual attempt at 
 assistance upon the sea, and even, if unredressed, to the denun- 
 ciation of war. Thus also, though a maritime Neutral Power 
 should strictly abstain from carrying the trade of a Bellige- 
 rent, or supplying him with contraband; yet, if he opened 
 his ports to his privateers /or the purposes of hostile equipment; 
 if he gave him shelter for his prizes,§ or lent him his courts, 
 or suffered him to erect his own, for the purpose of condemn- 
 
 * Vattel, 1. iii. s. no. f ">. % lb. 
 
 { The governors and ministers of the United States, during this warj 
 have, in many .instances, exhibited admirably tiear proofs of knowledge in 
 the laws of neutrality, and of spirit to enforce them in their contests vpith 
 the philosophers of France : not only refuting their attempts to change the 
 laws in this instance, by insisting upon the liberty of seizing Belligerent 
 property within the American jurisdiction ; but enforcing that refutation by 
 restoring prizes thus made. See the long note from Adet to the American 
 Secretary of State, 5 Debrett's State Papers, 263 to 294 ; and the Secretary 
 Pickering's most able answer, 6 Deb. 281 to 339. 
 
 ing 
 
26 THAT FREE SHIPS [Prop. I. 
 
 ing them;* in all these cases, also, there would be a breach 
 of neutrality, and cause for war. 
 
 Here then is the true principle : the actual assistance given 
 to a Belligerent, whether stationary or transitory. There 
 is, however, a most material distinction between them, 
 which, far from depriving the injured Belligerent of his 
 right of prevention, calls for it in a ten-fold degree ; be- 
 cause the injury is attended with ten-fold aggravation. 
 When pretended Neutrals lend their ships to the trade of 
 the enemy ; the assistance, from having been passive, as in 
 the other examples, becomes instantly active : it not only 
 affords aid, but carries the supply ; and the force and .power 
 of the, mischief is thus felt in augmented proportion. The 
 dominions of a maritime Belligerent being, besides, scattered 
 over the face of the whole world, new difficulties arise to 
 him in the course of war. The variety of his colonies, islands, 
 fisheries and factories, require a minute diversion of his 
 protection, which, for the most part, embarrasses him. The 
 locomotive assistance of his neutral friend does him, there- 
 fore, here the most active and. essential service, and marks 
 the partiality of it in exact proportion as it is active and 
 essential. Supposing, then, for a moment, the dominion 
 within the sides of a ship to be the same as the dominion 
 of the country which equips it, the complaint here is not so 
 much that she affords protection, as that she actually car- 
 ries the property protected ; an injury which it is physically 
 impossible for protection on shore to commit. In the latter 
 case, while the property lies harmless in the store, the 
 harmless rights of friendship are chearfully allowed ; in the 
 former, actual mischief to another is so interwoven with 
 those rights, that Neutrality is broken, and impartiality at 
 an end. 
 
 * As was attempted by the French in the commencement of this war, 
 in endeavouring to set up a Consular Tribunal, with Admiralty powers, in 
 Denmark and other Neutral States. 
 
 These, 
 
Sec. I.] MAKE FREE GOODS. 27 
 
 These, then, are the simple and plain principles upon 
 which we proceed; and they will also easily afford an an- 
 swer to an observation which is made with no small con- 
 fidence by the Danish Professor, that neutral rights are more 
 respected in a continental than a maritime war. As a proof 
 of this, he says, it is ever held unlawful to plunder indi- 
 viduals who do not bear arms, although subjects of the ene- 
 my himself; and that Belligerents permit Neutrals to pass 
 through their countries to the great fairs that are held upon 
 the Continent at stated times.* 
 
 Now, in th« first place, the observations are false in 
 point of fact ; but, if true, they will not bear the conclu- 
 sions built upon them. Did the Professor never hear of the 
 sack and pillage of towns, and the murder of innocent per- 
 sons, in a storm } Did he never hear of the ravage of the 
 Palatinate, where hundreds of harmless cottages were laid 
 smoaking in ruins by the most accomplished and most hu- 
 mane of his time, reduced, by the inferiority of his num- 
 bers, to waste a whole country, in order to prevent the ir- 
 ruption of the enemy } According to the accounts of 
 historians, in the act of blaming him, all the evil that he 
 did, appeared to be necessary, and, if he sacrificed the prin- 
 ciples of humanity, it was to the duties of a General and 
 the rules of war.f In later times, has the Professor never 
 heard of instructions from a French Minister, in the same 
 spirit, to make a downright desert in Westphalia, as a mere 
 plan of defence.? J At least, did he never hear of such 
 
 things 
 
 * Examen. Impar. i, 2, 46. 
 
 t Voltaire, Siec. de Louis XIV. — Mod. Un. Hist. 21, 392. 
 
 X See the Instructions from Belleisle to Contades, taken amongst the 
 latter's papers after the battle of Minden. These are some of the extracts. — 
 'After observing the formalities due to the Magistrates of Cologne, you 
 ' must seize on their great artillery by force, telling them that you do so for 
 'their own defence.' 'Yoit must destroy every thing which you cannot 
 •consume, so as to make a downright desert of Westphalia.' — 'Though the 
 'Prince of Waldeck is outwardly neutral, he is very ill disposed, and 
 
 ' deserves 
 
28 THAT FREE SHIPS [Prop. I. 
 
 things as contributions from States that had never offended ; 
 such, in this very war, as Frankfort and Leghorn, where the 
 failure in supplying the demand brings down instant punish- 
 ment by fii-e and sword ? One would think that he would 
 have certainly relinquished his remark, had he ever reflected 
 on these or other severities; the frequent bombardments 
 of the most beautiful cities, crowded with innocent and un- 
 armed inhabitants ; such desolation as was practised at Dres- 
 den, in the seven years war, where whole suburbs were 
 fired by the hot balls of the town itself, and where the lives 
 of hundreds, and property- of thousands, were sacrificed 
 to the cruel necessity of the terrible state of war* Could 
 we stop the current of the argument for a few moments, 
 and examine the transactions of continental campaigns, 
 what immensity of proportion would the injuries done to 
 
 ' deserves very little favour. You ought, therefore, to make no scruple of 
 ' taking all you find in that territory : but that must be done in an orderly 
 'manner, giving receipts, &c., &c. Zippe and Paderborn are the most 
 ' plentiful j therefore they must be eaten to the roots. ' — The French defended 
 this upon the legality of wasting a country, in order to cut off subsistence 
 to the enemy. Ann. Reg. 1759. — Again : observe the orders of Broglio, 
 when conqueror in Hanover, to the civil and unarmed inhabitants. 
 ' Whereas many civil officers and principal inhabitants of Brunswick and 
 ' Hanover have withdrawn themselves, &c. , they are ordered to remain 
 'in their houses, with their cattle, tipon fain of having their houses pillaged, 
 ^and levelled with the ground, and themselves punished according to the 
 ' exigency of the case.'' Ann. Reg. 1 761. Severe as all this appears, it is, 
 perhaps, not indefensible by the laws of war. But even if they are not, 
 as Schlegel observes upon the fact of superior continental regularity, they 
 are proofs in fiill of the easy rashness with which a visionary assertion is 
 made. 
 
 * See the Memorial of the King of Poland, published at Vienna on the 
 raising the siege of Dresden. SmoUet's Hist, of Eng. 15, 49 ; and his 
 other Memorial presented by the Saxon Minister to the Diet of the Empire, 
 24th Nov. 175^- Its force was somewhat diminished as to facts by the 
 answer of the Prussian Minister ; but whichsoever is true, enough is left 
 for the support of the argument ; the contest being only as to the quantum 
 of the destruction. See Ann. Register, 1758. 
 
 un- 
 
Sec. I.] MAKE FREE GOODS. 29 
 
 unarmed inhabitants, both of Belligerent and even Neutral 
 States, bear to the few comparative seizures made upon the 
 seas ! Nor should we draw the examples from savage or 
 ignorant Commanders, but from the deliberate determinations 
 of a philosophic King of Prussia, a good-natured Turenne, 
 and even of the almost perfect Gustavus Adolphus himself. 
 
 The whole of Schlegel's errors proceed, as it appears to 
 me, from a want, I cannot say of a right understanding, 
 but of a right use of fixed and clear principles. Let him 
 only once bear in mind that first and comprehensive rule, 
 embracing almost all the laws of war, both by sea and by 
 land, 'that we. may do whatever mischief is not unnecessary ;^ 
 and all, or nearly all the severities that have been touched 
 upon, both by sea and by land, may be perfectly recon- 
 ciled. 
 
 And here I might close the discussion of the principle, 
 if the opinion I have embraced depended for support, or 
 could ever obtain the authority of law, on the private spe- 
 culation of an individual in his closet. But as this cannot 
 be, even in a matter that depends eminently upon the de- 
 terminations of reason and general equity; I procead to 
 shew that this is not a mere private speculation, unfounded 
 in experience, but drawn from the authority of those wise 
 and enlightened men by whose virtue and science the 
 governors of the world have generally been directed, and 
 must always be influenced. 
 
 SECOND 
 
30 THAT FREE SHIPS [^Prop. I. 
 
 SECOND SECTION. 
 
 THE REASONING FROM AUTHORITY AND CUSTOM. 
 
 It is remarkable, that from the time when the Law of Na- 
 tions began to exist as a science, since which, if we take it 
 from the publication of the Consolato del Mare, a period of full 
 five hundred years has been revolving, the stream of au- 
 thorities, until the middle of the last century, has been 
 against the principles of the Armed Neutrality. In that 
 latter time, the provisions of the Consolato were boldly called 
 in question, and, in the first instance that I know of, an at- 
 tempt was made to establish the contrary. I allude to the 
 famous Exposition des Motifs of the King of Prussia, addressed 
 to the Ministers of George II. ; famous, however, more for 
 having called forth the well-reasoned piece of law which 
 formed its answer, than for any merit of its own for 
 soundness of principle, or cogency of deduction. Until the 
 year 1752, when this diplomatic piece appeared, the law, as I 
 have reasoned it, seems to have been admitted. The claim 
 had, indeed, often been started by particular countries ; but 
 it was started without success even by De Witt ; and 
 whenever it was granted, it was granted as a boon, ob- 
 tained by the stipulations of particular treaty. No one 
 authority, that I can find, before this, had ever laid claim to 
 it as a natural right ; and even Schlegel allows that it was 
 then, for the first time, that the rights of Neutrals were 
 completely discussed. ' II (roi de Prusse) fit imprimer une 
 ' defence publique, dans laquelle les Droits du Pavilion 
 ' neutre furent pour la premiere fois completement discuth.'* 
 
 Schleg. 5. 
 
 We 
 
Sec. II.] MAKE FREE GOODS. 31 
 
 We cannot help, therefore, pausing in this place, to ob- 
 serve the artful manner in which he has treated the history 
 of the claim : for, in the outset of his work, he would have 
 the world think that, in the beginning of the sixteenth 
 century, the Cotisolato was set aside (in form, I suppose, by 
 a kind of general convention), and that other laws, more 
 consonant, according to him, with neutral rights, were 
 established in its place. Certain it is, he leaves it to be 
 supposed, that it was about that time that the merchants 
 obtained the abrogation of the old law, in consequence of 
 which it was determined, that a Neutral vessel should no 
 longer be stopped on account of her having enemy's pro- 
 perty on board.* 
 
 That such an assertion, if he meant it, is most erroneous, 
 we shall soon have occasion to prove ; but be it true or false, 
 the confession in the passage above cited is totally repugnant 
 to it ; and thus from his own authority is demonstrated his 
 own inconsistency. 
 
 In tracing the history of authorities, let us come, then, to the 
 consideration of the famous Consolato, that venerable pile of 
 maritime and commercial law, whose origin is of such remote 
 antiquity, and rooted so deeply in the annals of time, that 
 
 * • Dans les I4me & iSme Siecles, presque tous les traites furent faits 
 ' d'apr^s ce principe. Mais comme il en resultoit mille chicanes lorsqu'il 
 ' agissoit de decider de la propriete des cargaisons, surtout depuis que les 
 ' marchands eurent abandonne I'ancienne coutume de suivre leurs marchan- 
 ' discs sur les navires, & comme des lors la cargaison se trouvoit souvent 
 ' appartenir i diverses propri^taires, les negocians qui faisoient le commerce 
 ' maritime desirerent una autre disposition generale qui tendit mieux i les 
 'garantir des mauvais traitemens des corsaires. II fut en consequence 
 ' determine qu'on n'auroit plus egard au proprietaire de la cargaison, mais 
 ' i celui du vaisseau ; — qu'un vaisseau neutre ne pourroit plus ^tre arr^te 
 ' parce qu'il auroit k bord des merchandises ennemies, & encore moins parce 
 ' qu'il seroit destine pour quelque port ennemi, sauf toute fois le cas ou il 
 • seroit charg^ de ce qu'on appelle contrebande de guerre. 
 
32 THAT FREE SHIPS {Prop. I. 
 
 no one can tell with certainty at what period it was com- 
 posed.* Be this as it may, it was the received rule of conduct 
 which governed the greatest maritime nations ; was the oracle 
 of their tribunals, and decided questions of prize, whether re- 
 lating to the property of enemies or neutrals, or abandoned 
 to fortune without any owner. This ancient compilation 
 contains the constitutions of the Greek and German Em- 
 perors ; of the Kings of France, Syria, and Cyprus ; of 
 Minorca and Majorca; of the Venetians and Genoese. 
 Greater authorities can scarcely be found, and need not be 
 required. The German Emperor at that time reigned 
 paramount in the Netherlands, and on the southern shores 
 of the Baltic ; and Constantinople and the two Republics 
 were, as is well known, the arbiters of trade and the lords of 
 the se^. These constitutions, therefore, governed by far the 
 greater and the most important parts of the commercial 
 world. 
 
 The cclxxiii. chapter of this compilation contains the 
 following provisions : 
 
 ' If an armed ship, or cruiser, meets with a merchant ves- 
 ' sel belonging to an enemy, and carrying a cargo, the pro- 
 ' perty of an enemy, common sense will sufficiently point out 
 
 * I cannot do better on this subject than transcribe a note of Dr. 
 Robinson, prefixed to his translation of some passages in the Con- 
 solato : — 
 
 ' With respect to its antiquity, the reader is referred to the table prefixed 
 ' to the Italian editions ; in which it is specifically asserted to have been 
 ' received at Rome, in the year 1075 ; and at various places, at various 
 'periods, through the nth, 12th, and 13th centuries. But let him consult 
 ' also Giannone's 1st. di Napoli, lib. xi. chap. 6, in which, according to 
 ' some opinions, this compilation is supposed not to have been made till 
 ' the time of Louis IX. of France, towards the middle of the 13th century. 
 ' It is, however, generally allowed to have been composed from the 
 ' Amalphitan Table ; and as that is supposed to have existed as a body 
 ' of sea laws, of great and extensive authority in the Mediterranean, from 
 'the close of the nth century, there may, perhaps, be no great variation 
 ' in the substance of these two accounts. ' 
 
 what 
 
Sec. II.] MAKE FREE GOODS. 
 
 33 
 
 what is to be done : it is, therefore, unnecessary to lay down 
 any rules for such a case. 
 
 ' If the captured vessel is neutral property, and the cargo the 
 property of enemies, the captor may compel the merchant vessel 
 to carry the enemy's cargo to a place of safety, where the prize 
 may he secure from all danger of re-capture; paying to the ves- 
 sel the whole freight which she would have earned at her de- 
 livering port;* and this freight shall be ascertained by the 
 ship's papers; or, in default of necessary documents, the oath 
 of the master shall be received as to the amount of the 
 freight. 
 
 ' Moreover, if the captor is in a place of safety, where he 
 may be secure of his prize, yet is desirous to have the 
 cargo carried to some other port, the neutral vessel is bound 
 to carry it thither: but for this service there ought to be a 
 compensation agreed upon between them ; or, in default of 
 any special agreement, the merchant vessel shall receive for 
 that service the ordinary freight that any other vessel would 
 have earned for such a voyage, or even more : and this is to 
 be understood of a ship that has arrived in the place where 
 the captor may secure his prize ; that is to say, in the port 
 of a friend ; and going on an ulterior voyage to that port to 
 which the captor wishes her to carry the cargo which he 
 has taken. 
 
 'If it shall happen that the master of the captured vessel, 
 or any of the crew, shall claim any part of the cargo as their 
 own, they ought not to be believed on their simple word, 
 but the ship's papers or invoice shall be inspected; and, in 
 defect of such papers, the master and his mariners shall be 
 put to their oaths ; and if, on their oaths, they claim the 
 property as their own, the captor shall restore it to them; 
 
 * Bynkershoek, nearer to us by six hundred years than the Consolato, 
 while approving the former part of this article, rejects the right to freight, 
 because it has not been earned, — Quest, yur. Pub. cap. xiv. 
 
34 THAT FREE SHIPS [Prc^. I. 
 
 regard being paid, at the same time, to the credit of those 
 who swear and make the claim. 
 
 ' If the master of the captured vessel shall refuse to carry 
 the cargo, being enemy's property, to some sijch place of 
 safety, at the command of the captor, the captor may sink 
 the vessel, if he thinks fit, without control from any power 
 or authority whatever ; taking care to preserve the lives 
 of those who are in her. This must be understood, how- 
 ever, of a case where the whole cargo, or, at least, the 
 greater part of it, is enemy's property. 
 
 ' If the ship should belong to the enemy, the cargo being, 
 either in the whole or in part, neutral property, some rea- 
 sonable agreement should be entered into on account of the 
 ship, now become lawful prize, between the captor and the 
 merchants owning the cargo. 
 
 ' If the merchants refuse to enter into such an agreement, the 
 captor may send the vessel home to the country whose com- 
 mission he bears ; and in that case the merchants shall pay the 
 freight which they were to have paid at the delivering port. 
 And if any damage is occasioned by this proceeding, the 
 captor is not bound to make compensation ; because the 
 merchants had refused to treat respecting the ship, after 
 it had become lawful prize ; and for this farther rea- 
 son also, that the ship is frequently of more value than the 
 cargo she carries. If, on the other hand, the merchants are 
 willing to come to a reasonable agreement, and the captor, 
 from arrogance, or other wrong motives, refuses to agree, 
 and forcibly sends the cargo away, the merchants are not 
 bound to pay the whole, nor any part of the freight ; and, 
 besides, the captor shall make compensation for any damage 
 he may occasion to them. 
 
 ' If the capture should be made in a place where the mer- 
 chants have it not in their power to make good their agree- 
 ment, but are, nevertheless, men of repute, and worthy to be 
 trusted, the captor shall not send away the vessel, without 
 
 being 
 
Sec. II. J MAKE FREE GOODS. 35 
 
 being liable to the* damage; but if the merchants are not 
 men of known credit, and cannot make good their stipulated 
 payment, he may then act as it is above directed.' * 
 
 Such expressly are the provisions of the Consolato del Mare, 
 some of which have stood the test of ages, through all the 
 wonderful alterations in manners and jurisprudence which 
 Europe has seen ; an abundant proof of their deep foundation 
 in the truest principles of reason and justice. If proof, 
 however, were wanting, I seek no other, than to find those 
 at least of them, that form our immediate subject, approved, 
 and adopted word for word, in the writings of three men, 
 all of them foreigners, of countries whose interest it emi- 
 nently is to support this Neutral claim ; but who, if it was 
 not, must for ever stand at the head of the whole world's 
 college of civilians, for experience, learning, and good 
 sense. The writers I mean are no less than Grotius, 
 Bynkershoek, and Heineccius. And first of the wise, and 
 liberal Grotius. 
 
 He at least will not be suspected of being a partial or inter- 
 ested advocate in our favour, even if the whole tenor and 
 plan of his book did not shew that it was written for 
 the world. During the first part of. his life, his country 
 was Dutch, his interests were Dutch ; when driven from 
 his home, his asylum was France ; and when adopted into 
 another State, that State was Sweden. How well, and how 
 zealously he was disposed to assert the privileges of the latter 
 against this very England, with whom she now prepares to 
 quarrel ; his hot and eager contest for precedency with the 
 English Ambassadors, sufficiently demonstrates-! But he was 
 actually, besides, the great chanlpion for the freedom of na- 
 vigation ; being the first to pull down the dominion of the 
 sea, (also against the pretensions of England ;) and he lived 
 
 * This translation is by Dr. Robinson, 
 t Burigiiy Vie de Grot. 
 
 D 2 in 
 
36 THAT FREE SHIPS \_Proj>. I. 
 
 in a time, when his countrymen were raising to its height 
 the source of their wealth, by rendering their State the em- 
 porium of trade, and becoming the carriers of the rest of the 
 world. 
 
 From such a man little could be expected in favour of 
 any tyrannical pretensions ; still less of pretensions that clog 
 the freedom of navigation ; and more particularly of Dutch 
 or Swedish navigation. Yet, as has been said, he adopts 
 the rule of the Consolato, that enemy's property shall not 
 be covered by Neutral vessels ; and he, as well as Heinec- 
 cius, adopts it in chapters in which they expressly state 
 how controversies of this sort are handled.* Yet, strange 
 to say, Hubner, from what cause I know not, asserts, in 
 terms in his preface, after stating that the Consolato relates, 
 amongst other things, to capture, and recapture, ' ni les 
 ' unes ni les autres ne sauront etre d'aucun secours a ceux 
 ' qui voudroient discuter les droits des nations Bellig6rantes 
 ' au sujet de la navigation des peuples neutres.' \ Whether 
 Hubner had carried his research, or his zeal, so high as to 
 despise the assistance of this compilation, it is not for me to 
 enquire ; but Grotius at least paid it that deference, which 
 
 * Grot, de Jur. Eel. 1. iii. i, S notis. ' Ubi ex instituto tractantur hujus 
 generis controversiae.' Heinec. de Nav. ob Vec. Merc. Vet. Com. 
 cap. viii. 
 
 t Other readers will, perhaps, be more disposed to esteem it a valuable, 
 but hidden treasure, with the very respectable names of Casaregis, 
 Valin, and Emerigon, than to join with speculative theorists in terms 
 of disrespect, calling to mind the words of Emerigon, who says, of 
 this work, and of Hubner's criticism on it : ' Cet auteur, ayant trouve 
 ' dans le chapitre 273, des dkisions contraires h son sysihne, a ete de mau- 
 
 • suffrages des nations ; elles ont foumi une ample matiere, aux redac- 
 ' teurs de I'ordonnance de 1681 ; et malgr^ I'ecorce Gothique que les 
 
 • enveloppe quelquefois on y admire I'esprit de justice, et d'equite que les 
 ' k dictees.' 
 
 Dr. Robinson's translat. of the Consolato. 
 
 as 
 
Sec. II.j MAKE FREE GOODS. 37 
 
 as an authentic monument of what was thought and prac- 
 tised by our ancestors, it must generally command, and al- 
 ways deserve. 
 
 Let us now then examine the opinions of Grotius himself; 
 premising, however, that he is not treating of maritime 
 matters in particular, neither does he confine himself to the 
 land ; but that it is principles which he lays down ; and that 
 he speaks generally of the duties of Neutrals and the rights 
 of Belligerents. ' A question,' says he, ' often arises upon 
 ' what is lawful,' with respect to those who either are not, 
 ' or profess that they are not enemies, yet supply the enemy 
 ' with any sort of commodities. For there were formerly, 
 ■ and lately, very sharp contests upon it, some contending 
 ' for the freedom of commerce, some for the assertion of 
 ' the rigours of war.' * He then divides the articles of Neu- 
 tral trade into three classes : one, consisting of things im- 
 mediately useful in war ; one, of no use at all ; and one, of 
 a doubtful or double nature. As to the first, he is clear, 
 that whoever supplies them becomes an enemy himself, 
 without making any difference, like Schlegel,f between po- 
 sitive and general law : the second, he dismisses as furnish- 
 ing no room for examination : the third forms the subject 
 of more extended discussion. It is here that he lays down 
 those general principles, from which all that I have adduced 
 has been I extracted and ramified : and it is here, that he ex- 
 plains himself more minutely on the authority of those articles 
 of the Consolat(f del Mare that have been cited. These are 
 his words. ' In tertio illo genere usus ancipitis, distingu- 
 ' endus erit belli status. Nam si tueri me non possum nisi 
 
 * De Jur. Bel. 1. iii. i, 5. ' Sed et quasstio incidere solet, quid liceat 
 ' in eos qui hostes non sunt, aut did nolunt, sed hostibus resaliquas submi- 
 ' msirani. Nam et olim et nuper de ea re acriter certatum scimus, cum 
 ' alii belli rigorem, alii commerciorum libertatem defenderent.' 
 
 t Exam. Impart. 60, 116. 
 
 D 3 quce 
 
38 THAT FREE SHIPS [Prop. I. 
 
 ' qucB mittuntur intercipiam, necessitas, ut alibi exposuimus, 
 ' jus dabit, sed sub onere restitutionis, nisi causa alia accedat. 
 ' Quod si juris mei executionem reram subvectio impedierit, 
 ' idque scire potuerit qui.advexit, ut si oppidum obsessum 
 • tenebam, si portus clauses, et jam deditio aut pax exspec- 
 ' tabatur, tenejaitur ille mihi de damno culpa dato, ut qui 
 ' debitorem carceri eximit, aut fugam ejus in meam fraudem 
 ' instruxit ; et ad damni dati modum res quoque ejus capi, 
 ' et dominium earum debiti consequendi causa quseri poterit. 
 ' Si damnum nondum dederit, sed dare voluerit, jus erit re- 
 ' rum retentione eum cogere ut de futuro caveat obsidibus, 
 ' pignoribus, aut alio modo. Quod si prseterea evidentissima 
 ' sit hostis mei in me injustitia, et ille eum in bello iniquis- 
 ' simo confirmet, jam non tantum civiliter tenebitur de damno, 
 ' sed et criminaliter, ut is qui judici imminenti reum mani- 
 ' festum eximit ; atque eo nomine licebit in eum statuere 
 ' quod delicto convenit, secundum ea quae de pcenis diximus ; 
 ' quare intra eum modum etiam spoliari poterit.'* To this 
 must be added the long chain of historical evidence contain- 
 ed in his note, but which it is far too long to detail at large. 
 Now, upon these passages we may remark, in the first 
 place, that no immediate mention is made of the question 
 before us ; but, that on the contrary, from the very words, 
 res aliquas suhministrant, and the circumstance of dividing 
 the whole of the trade of Neutrals into three articles, all 
 confined to their own particular commerce, it is clear, that 
 their claim to a carrying trade had never entered his mind. 
 It is clear, also, from the nature of the long series of exam- 
 ples in his note, which, although they are introduced ex- 
 pressly to elucidate the positions of the text, which treats, to 
 use his own words, of the ' belli rigor, and the commerciorum 
 ' libertas,' yet, are all in illustration of a very different ques- 
 
 * De Jur. Bel. 1. iii. i, S, 3. 
 
 tion 
 
Sec. II.] MAKE FREE GOODS. 39 
 
 tion indeed ; namely, whether a Belligerent has not a right 
 to interdict aJl commerce whatsoever between Neutrals and 
 his antagonist. This, also, is manifestly his intention, from 
 the sense in which his commentator Gronovius understands 
 it ; who explains the words ' commerciorum libertatem,' to 
 mean, ' licere unicuique merces suas portare ac vendere ad 
 quos voluerit.'* 
 
 In former times, that question was agitated with a great 
 deal of heat, and without any precise settlement, in point 
 of fact ; which unsettled state lasted through the fifteenth, 
 sixteenth, and part of the seventeenth centuries. We saw 
 that it was set up by the English and Dutch Allies, so lately 
 as in King William's war, against France, -f but was aban- 
 doned in that more enlightened time, on account of its in- 
 justice. But, in the days of Grotius, the right was still 
 contested, and every one of the historical examples which 
 he records, except some of those important extracts from 
 the Consolato, that have been cited, applies to that unsettled 
 point alone. The question, therefore, of free ships making 
 free goods, is not only not immediately before him, but 
 from that very circumstance, it is proveable, I think, to 
 a demonstration, that he had never even heard of it as a 
 claim. 
 
 But, though the question is not before him in forni, be- 
 cause Europe had not yet even raised it ; his decision of it, 
 as a point submitted to, and acted upon by all, without 
 question, is abundantly to be collected ; for, as has been 
 said, he transcribes, in terms, the provisions upon it from 
 the Consolato mentioned before, and without any comment, 
 as a thing not to be disputed : in speaking also, in his note, 
 of the ordinances of France, which allow the ' libertas ' 
 • exercendi pacatis populis,' (the mere liberty to trade with 
 
 • De Jur. Bel. 1. iii. i, S, note 2i. 
 
 t By the treaty of Whitehall, Aug. J-f, 1689, vide sup. 
 
 D 4 . the 
 
40 THAT FREE SHIPS [^Prop. I. 
 
 the Belligerent), he adds, as if it was a thing wonderful, 
 and pointedly against the known, not the disputed law, that 
 it was allowed to be exercised ' adeo indiscrete, ut hostes saepe 
 ' sub alienis nominibus res suas occultarent.'* But in addition 
 to this, from the mode in which he handles that other 
 question, which we say was before him, it is plain that he 
 goes a great deal farther ; since not even to negative it en- 
 tirely, carries the right of the Belligerent farther than those 
 who merely negative the doctrines of the Armed Neutrality ; 
 for it is much worse to say that a neutral vessel shall not 
 carry on his own trade with the Belligerent, than that be 
 shall be inhibited from interposing in the trade of the Bel- 
 ligerent hinself. 
 
 That there are cases in which it is the opinion of this 
 wise man, that the trade of a Neutral with one Belligerent, 
 in articles of a double nature, may be stopped by the other, 
 is incontestably clear from the whole frame and texture of 
 the sentences in our contemplation. In the very out- 
 set he observes, that it will depend upon the particular state 
 of the war : ' for if,' says he, ' I cannot defend myself unless 
 ' by intercepting the merchandise that is sent to my enemy, 
 ' the law of necessity will give me the right to do so, upon 
 ' condition of restoring them, unless some other cause pre- 
 ' vent it. But if the carrying things to my enemy prevent 
 ' the assertion of my just right, and this is known to the 
 ' Neutral ; as if I hold a place besieged, or a port blockaded ; 
 ' he shall answer to me in damages for his fault, in the same 
 ' manner as he who assists in defrauding me, by aiding my 
 ' debtor to escape from prison. If he has not yet actually 
 ' given this assistance, but only intended it, then I may de- 
 ' mand security of him for the future, by pledges, hostages, 
 ' or in any other manner. If, however, my cause for war 
 
 * De Jur. Bel. 1. iii. I, 5 note. 
 
 'is 
 
Sec. II.] MAKE FREE GOODS. 
 
 41 
 
 ' is manifest, and he strengthen and maintain my antagonist, 
 
 * then he shall not only answer civilly but criminally for the 
 
 * mischief he occasions, as he is punished who has been 
 ' guilty of a rescue, or screens a criminal from justice.' 
 
 Upon this strong mode of expression there has never yet 
 been a difference of opinion. Cases may, undoubtedly, arise, 
 and are perpetually arising, in which the application of the 
 principles may be disputed; but the principles themselves 
 are clear, precise, and general, and their meaning is manifest 
 as their consequences are important. It may, indeed, pos- 
 sibly be urged, that the illustration he gives of the breach of 
 a blockade, about which there is no difference of sentiment, 
 points his assertions to one particular exigency; but, inde- 
 pendant of the circumstance that that example is brought 
 forward in illustration of only one of his positions ; the 
 universality in which all the rest are laid down ; the tenor 
 of these words ' status belli,' which is a general description ; 
 of 'Juris execuiionem,' which is the very right to take arms ; 
 of 'pax expectabatur,' which is a final termination of 
 hostilities, not the surrender of the besieged place ; and 
 lastly, of ' bello confirmet' which is demonstrably applicable 
 to the whole field of war : these, I say, prove him to be 
 occupied with the general plan of operations, and the ge- 
 neral exigencies of a state of hostility. But, above all, the 
 marked shades of difference that appear in the injuries done, 
 and in the measures to resist them ; the rule of restoring 
 in some cases, but of punishing in others ; of taking pledges 
 against intentions, but of vengeance against crime ; remove 
 all doubt and mystery from the subject. 
 
 Grotius, then, in the general principle altogether, and on 
 this particular question, whenever it came before him, is as 
 strong a champion as we can have against these new and 
 momentous claims of the Armed Neutrality — claims which, 
 as lawyers, we might laugh at as frivolous and new-fangled, 
 but that we are forbidden all levity or unconcern on a sub- 
 ject 
 
42 THAT FREE SHIPS \Prop. I. 
 
 ject on which interests of such critical magnitude depend : 
 interests that involve in them no less than the existence of 
 commerce, the fortune and blood of thousands, the fate of 
 Empires, and the universal rights of war. 
 
 The next authority which I shall mention is that of a 
 man of no mean fame for knowledge and learning in a 
 science -in which he was the first of his time, and the repre- 
 sentative of a great King. I mean Albericus Gentilis ; the 
 only one almost of his predecessors from whose labours (not- 
 withstanding he blames him in many points) Grotius con- 
 fessed that he derived advantage in his great work. * 
 Stating the case of Turkish property found by their enemies, 
 the Florentines, on board an English vessel which was 
 neuter, he gives this opinion, without ever thinking that any 
 doubt had been raised upon the principle, either by the laws 
 of Nature' or the pretensions of men ; ' transeunt res cum 
 ' sua causa, victor succedet in locum victi, tenetur Etruscus 
 ' pro toro naulo.' 
 
 Albericus Gentilis wrote in the beginning of the seven- 
 teenth century ; he was followed by his contemporary Gro- 
 tius, whose work was published while the reputation of Al- 
 bericus was at its height : but although that work was in 
 itself so comparatively perfect that the writings of the ad- 
 vocate of Spain, as he was called, were seldom afterwards 
 consulted ; yet, as we have seen, there was little or no dif- 
 ference between them upon the point before us. The 
 opinions of both were adopted by the best writers of their 
 time, during the. whole of that century ; by Voet, f who 
 published some little time after Grotius ; by Zouch, \ the 
 best English Civilian of the age ; and by Loccenius, § the 
 
 I 
 
 • D. J. Bel. P. Prolegom. 
 
 t De Jur. Militari c. 5, n. 21. 
 
 J De Jud. inter Gentes, p. 2, s. 8, 11. 5. 
 
 § De Jur. Maritimo, 2, 4, 12. 
 
 histo- 
 
Sec. II.] MAKE FREE GOODS. 
 
 43 
 
 historian of Sweden, who, with his mind full of Gustavus Adol- 
 phus, the most just King and moderate Commander in Europe, 
 confirms the Consolato upon this question in all its extent. 
 
 On the other hand, no writer of any sort of reputation, 
 that I know of, or rather no writer at all is to be found, who 
 upholds the contrary doctrine during that century. They 
 all fly to the Consolato as to a land-mark with respect to the 
 principle — as a general law, not to be overthrown, and 
 whose overthrow, in these points, was never even at- 
 tempted. Where it was attempted, in that other much 
 greater question of the times. Whether a Belligerent might 
 not prohibit all commerce with the opposing Belligerent ; 
 we have seen that, after some doubts about it among Ci- 
 vilians, and very strong opposition among States, it was 
 confirmed and settled, as it ought to be, as a general law, 
 though subject, like all general laws, to exceptions 
 founded on the exigency of the case. — I have no hesitation 
 in thinking that it was the contestation and settlement of 
 this question, that has misled the Danish Civilian into the 
 assertion, that the provisions of the Consolato upon the other, 
 were changed, by agreement, about the sixteenth century; 
 and that the principle I am canvassing became paramount 
 in the seventeenth. 
 
 But while all the world were discussing one of these 
 chief articles of the Consolato, whose soundness or un- 
 soundness was considered with all the warm eagerness and 
 critical acumen which strong contests and passions on 
 both sides never fail to generate ; when the real and just 
 rights of Neutrals at last prevailed in the contest, and they 
 were allowed the liberty of traffic, which had been disputed 
 with them ; it would have been wonderful that they should 
 stop here, and not obtain emancipation from the other pre- 
 tensions of Belligerents, which are now before us, could they 
 have made it appear, with equal cogency, that they were not 
 founded in equity and reason. This, however, was not 
 
 even 
 
44 THAT FREE SHIPS [Prop.l. 
 
 even attempted ; and it was long, as a principle of right, 
 the unopposed law of Europe, while the other was always 
 bitterly contested. The Venetians and Genoese, in the height 
 of their wealth and maritime greatness; founded chiefly upon 
 this very carrying trade, so far from opposing it, had Joined 
 in being the authors of the law. It was those other great 
 carriers, the Dutch, who, feelingly alive to the causes of 
 their wealth, saw all the advantages of an alteration, and 
 first attempted a change. But how did they attempt it ? 
 Not by setting up a new code, founded, as it is said, in na- 
 tural jusfiu, and supported by an Armed Confederacy ; not by 
 pretending to a right to break all their treaties at will, be- 
 cause, contrary to a chimerical notion, bottomed in vain 
 wisdom and false philosophy; but by long, laborious, and 
 painful negotiation ; by watching opportunities, and cul- 
 tivating particular dispositions ; by soothing particular in- 
 terests, and making compensations ; in a word, by the just 
 and lawful mode of mutual contract. * Nor is it unimpor- 
 
 * Lettres et Negot. entre De Witte et Boreel, torn. i. 2, and Thurloe's 
 State Papers, chiefly 3, 4, and 5. Whoever will take the trouble of 
 perusing De Witt and Boreel's letters during the negotiation of the latter 
 in France, about the year 1654, and the conferences of Nieuport, the 
 Dutch Ambassador, in England, will find the fullest proofs of the anxiety 
 of the Dutch Government to carry this point, as necessary to their own 
 particular trade. 'On attend,' says Boreel, 'id avec beaucoup d'impa- 
 ' tience quel sera le fin des negociations des Ambassadeurs Extraordi- 
 ■ naires de leur H H. P. P. en Angleterre touchant le Traite de Marine. 
 ' On espere qu'on y obtiendra la clause Vaisseau franc, Cargaison franche. 
 ' Autrement on m'avertie de divers endroits ou Ton est bien intentionee 
 ' pour la Republique que ce seroit un terrible centre coup pour la naviga- 
 ' tion des sujets des Provinces Unies, qui perdroient les avantages qu'ils 
 ' retirenit de charger chez toutes les Nations.' Lettre 27me Nov. 1654. 
 Again, ' il est impossible d'obtenir le contenu de mes instructions ou il est 
 ' dit que la franchise du Bitiment en affranchit la Cargaison m^me appar- 
 ' tenant k I'ennemi : k la verite on me fait espere que des que la paix sera 
 ' faite avec I'Espagne on ne fera pas beaucoup de difficulte,' &c., &c. 
 Lettre 28 Nov. 1658. Nieuport underwent still more delay and mortifi- 
 cation in England ; and the negotiation failed at last. It was not till after 
 another war, an interval of twenty years, and a change of politics in . 
 England with respect to France, that the Dutch perseverance at length 
 prevailed, on the ground of mutual advantage in the treaty at large. 
 
 tant 
 
Sec. II.] MAKE FREE GOODS. 45 
 
 tant to observe, that this was during a series of years in 
 which Holland was at the zenith of its power, its military 
 spirit, its naval resources, and its naval pretensions ; when 
 such fiery men as Tromp and De Ruyter were still more in- 
 flamed to military adventure against this country, by perso- 
 nal rivalry with the bravest of her heroes ; and when De 
 Witt, the ablest of his time, one of those extraordinary 
 men whose breath seems to influence the fate of nations, 
 and create a new order of things, was always ready to risk 
 the whole force of his State rather than submit to the least 
 invasion of its commerce. But he was, besides this, ani- 
 mated by a personal spirit against England. His power 
 and pre-eminence in Holland depended upon the depression 
 of the House of Orange, connected by blood, and always 
 supported by the English Royal Family. He had formed the 
 whole plan of his politics upon a particular set of favoured, 
 and long-fostered maxims of national interests, amongst 
 which this of Vry schip Vry goed was the most favoured of 
 all ; and almost all were thwarted, and many overthrown 
 by English exertion and English laws. The Navigation 
 Act gave a death's wound to the trade of Holland ; and 
 thus the opposers of his own and of his country's power, 
 rivals in, trade, rivals in arms, interfering every where, and 
 fighting often with doubtful success, it is hardly in the 
 nature of things that De Witt would not have been the 
 first to have shewn, against England, if he could, the natural 
 obligations of his maxim, in order to ground upon them the 
 plan of an Armed Confederacy. Of such a confederacy, 
 and of the success of its eff'orts, he would not have wanted 
 an example in the conduct of his own Republic, and almost 
 within his own time. The King of Denmark, not a great 
 many years before, had aimed at a sort of tyranny in the 
 Sound, by imposing what tolls he pleased, which not only 
 fell heavily upon the trade of the Baltic, but evinced a dis- 
 position to impose of which it was impossible to see the 
 
46 THAT FREE SHIPS [Prop. I. 
 
 tent. The Commonwealths of Holland and Lubec, per- 
 ceiving the danger, associated themselves together, not to 
 attack the King of Denmark by name, but for the general 
 protection of the trade of the North. To this union 
 they invited various others of the Hanseatic States to accede, 
 and at length it was strengthened by the junction of 
 Sweden, to the full accomplishment of the end proposed. 
 
 The preamble to the first Treaty of Union was conceived 
 in these terms. ' As of antient times, the honourable, 
 ' free, and imperial city of Lubec, and several other towns, 
 ' situated on the Northern and Eastern Seas, have been in 
 ' union and amity with divers towns of the free and United 
 ' Provinces, for the defence of the liberty of navigation, 
 ' trade, and commerce, and the rights and privileges there- 
 ' unto appertaining : and as now they have found it neces- 
 ' sary to negotiate and treat concerning the renewal of the 
 •said Union, their deputies have consented to the follow- 
 ' ing articles : 
 
 ' That this Union is not intended to give offence to any 
 ' one, but solely for the preservation of the free navigation 
 ' and commerce of the Northern and Eastern Seas : that 
 ' their design is according to the Law of Nations, merely 
 ' to assert the liberties, rights, and immunities, whi.ch have 
 ' been granted to them in those Seas ; and they will reci- 
 ' procally defend and protect one another against all those 
 ' who molest and hinder the said freedom and liberty of 
 ' trade. ■ 
 
 ' That by this Union they mean not to prejudice, in the 
 ' smallest degree, their friendship with the Emperor, or the 
 ' Kings of France or Great Britain. 
 
 ' That those who shall trouble and molest their com- 
 ' merce, shall be first requested to desist from such conduct ; 
 ' which if they will not do, they will vigorously defend 
 ' themselves, so that the object of the Union, and the free- 
 
 ' dom 
 
Sec. II.J MAKE FREE GOODS. 
 
 47 
 
 ' dom of navigation and commerce shall be at length se- 
 ' cured.' 
 
 The articles then go on to state the quotas of troops and 
 vessels which each shall furnish, and various other detached 
 regulations, in case of being driven to war.* 
 
 In April, 1614, another treaty was made, by which 
 Gustavus Adolphus acceded to the Confederacy;! and in 
 December, 1615, the Hanseatic Towns in general united 
 themselves with it, to the complete attainment of their ob- 
 ject, in the regulation of the tolls of the Sound. J And 
 we have by no means an incurious precedent, in many of its 
 stipulations, of the plan upon which the Confederacy in 
 1780 proceeded. 
 
 The success of this armed league between Holland and 
 the Hanse Towns produced another, thirty years after- 
 wards, between that Republic, and Bremen, and Ham- 
 burgh, again professing, that it was not formed to give 
 umbrage to any one, but to defend the freedom of' com- 
 merce and navigation, according to the Law of Nations, 
 against all. The same effects followed; and, in 164.5, ^y 
 the treaty of Christianople with Denmark, the tolls of the 
 Sound were regulated for fifty years, the right of search in 
 the Baltic was confined to the inspection of papers, and 
 many other articles of the Northern Commerce settled so as 
 to prevent future dispute. || 
 
 But with the effect of all these confederacies in his niind, 
 so near in point of time to his own age, and his own very 
 country their original instigator, it is wonderful that De 
 Witt did not think of renewing them against England, in 
 the same general manner, and for the same general purpose, 
 under the Law of Nations, as his predecessors had framed 
 them against Denmark. Probably he would have done so, 
 
 • Dumont Corps Dip. 10, 232. t Id. 246. 
 
 t Id. 276. II 2 PosUeth. 154. 
 
 S had 
 
48 THAT FREE SHIPS [Prop. I. 
 
 had he really thought that his maxim, so important to the 
 interests of Holland, and all the North, was clearly 
 founded in natural justice. He would have found Denmark 
 in particular well disposed to join with him ; and that he did 
 not do so, can only be explained by the knowledge, that, 
 interested as he was, he was yet too wise to attempt the 
 juggle of proving to a Belligerent, that to carry the goods 
 of his enemy for him, when he could no longer do it him- 
 self, was not to afford him assistance in the war. Accord- 
 ingly, he laboured for a long time, and laboured in vain, 
 both with England and France, in order to persuade those 
 powers to grant by treaty, what he never thought of de- 
 manding as a right. 
 
 We are then founded in saying, that during the seven- 
 teenth century, the right to confiscate enemy's property on 
 board a neutral vessel, was never, as a principle, contested, 
 though there were frequent attempts, which were some- 
 times successful, to modify and change it by treaty. Still 
 more should we be founded in thinking, that even before 
 that time, the principle remained sacred amongst all Mari- 
 time States. As Hubner, however, has dwelt much upon 
 historical proofs of the liberty of commerce, and as Vaisseau 
 franc Cargaison franche is one of the great objects of those 
 who quote him, we may suppose that he founds it upon 
 these proofs, which, in times when general trading is al- 
 lowed, would otherwise be totally useless ; and as, besides, 
 the new civilians dwell much upon his authority in every 
 thing, it will not be unimportant, in a treatise like this, to 
 examine, in the detail of his examples, not, perhaps, what 
 it is that he means, but what is really proved. 
 
 ' C'est r^vidence,' says he, ' du droit qu'ont les Peuples 
 
 ' Neutres de commercer librement avec ceux qui se font la 
 
 ' guerre, qui en a fait convenir les Nations Maritimes de 
 
 ' tous les sikles; jusqu'4 ce que des vues d'une cupidit6 sans 
 
 bornes, ou celles d'une ambition d6mesur6e, ont fait 
 
 changer 
 
Sec. II.] MAKE FREE GOODS. 49 
 
 ' changer k quelques-unes d'entr'elles, si non d'avis ou de 
 ' langage, du moins de conduite k cet 6gard.' * 
 
 Now, if this means merely to prove what Europe has ne- 
 ver with any uniformity contested, and what she has now 
 at length settled for a century and a half past, I mean the 
 general right of Neutrals to trade with a Belligerent, or 
 that neutral vessels shall not be coniiscated for having ene- 
 my's property on board, England certainly is no where 
 pledged to dispute it. But if by ' commercer lihremmt ' it 
 means to state from history, that the right set up of pursu- 
 ing enemy's property into neutral ships, was the pretension 
 alone of a ' cupidity sans homes,' and disallowed as a princi- 
 ple ; we deny the authority in every one of the examples 
 adduced. 
 
 His first case is from the History of Pompey, who, he 
 says, in the spirit of the Roman power and ambition, in the 
 Mithridatic war, established guard ships in the Bosphorus, 
 ordering them to intercept and to punish, with death, all 
 those who dared to sail thither for the purposes of commerce. 
 For this he refers you to Plutarch, who, when you have 
 consulted him, tells you so different a story, that the ad- 
 mirers of Hubner must tremble even for his good faith. 
 The history is, that Pompey having pursued Mithridates 
 through Asia Minor into the Bosphorus, in which he had shut 
 himself up with an army, resolved to reduce him by famine ; 
 for which purpose he appointed a guard of ships to lie in 
 wait for the merchants that sailed to the Bosphorus, having 
 prohibited all, upon pain of death, to carry provisions or mer- 
 chandise thither. \ Who these merchants were, is no where 
 expressly stated ; but from the extent and situation of the 
 Roman Empire, at that time, it will be difficult to imagine 
 that they were any other than those that owed obedience to 
 Rome. But, even if they did not, Pompey had then over- 
 
 • Hub. p. i. ch. iv. sec. 7. t Tonson's Plutarch, iv. 162. 
 
 E come 
 
so THAT FREE SHIPS [Prop. I. 
 
 come his enemy in every field where he had stood him ; he 
 had pursued him to the sea, whence he took measures to 
 prevent his escaping, and where he had concerted a design, 
 of which he gave notice, to reduce him by famine. Even 
 then, if they were, or could have been, foreign merchants, so 
 far in this example are we from observing the mere effect of 
 Roman power and ambition, that we, in fact, see little more 
 than the regular rights of a modern blockade : the difference 
 consists in the punishment alone, and death, instead of con- 
 fiscation, was the plain result of the barbarous spirit of the 
 times. 
 
 Hubner's second case is drawn from France, whose senti- 
 ments and conduct, he says, in the preceding ages, were far 
 more equitable upon the subject ; her government never 
 having then troubled the navigation and commerce of 
 Neutrals with its enemies ; for which he refers, as a proof, 
 to the 42 d chapter of the ordinances of 1543 and 1584, 
 where, he says, we find regulations, conformable with the 
 decisions of the universal code of sovereign states, on the 
 subject. Unfortunately I have done as he directs me, and 
 consulted these ordinances, at least in Valin's Commen- 
 tary upon the III. Book, Tit. IX. Des prizes, article VII. 
 where I find that all ships which are found laden with 
 enemy's property are good prize, which, Valin says, seems 
 to be a consequence of the 42d article (I suppose article here 
 is the same as chapter) of the ordinance of 1543 and 69th 
 of that of 1 5 84, where it was laid down, that only the pro- 
 perty found was subject to confiscation.* 
 
 His 
 
 • ' II serabloit resulter de I'article 42, de I'ordonnance de 1543, et du 
 ' 69 de celle de 1584, qu'il n'y avoit que la marchandise des ennemis trouve 
 ' dans un navire ami qui fut sujette ^ confiscation sans toucher au navire ni 
 ' au reste de son chargement ; du moins c'est ainsi que Clairac avoit in- 
 ' terprete ces deux ordonnances dans son traite de la jurisdiction de la 
 ' marine.' Art. xxv. p. 443. . If Clairac could be mistaken, it is to be 
 observed, that the only other interpretation that could be given would 
 
 militate 
 
Sec. II.J MAKE FREE GOODS. 
 
 51 
 
 His next example, cited for the same purpose, ends ex- 
 actly in the same manner, upon recurring to his own refer- 
 ences. It was in consequence of these principles, says he, 
 that Queen Elizabeth testified her resentment against the 
 Zelanders, by her ambassadors, Winter and Beal, for pre- 
 suming to stop her ships destined for the ports of Spain, the 
 enemy of Holland.* For this he refers to Camden, and 
 Camden tells you, that ' the Prince of Orange, in hopes to 
 ' retain his principality, ceased not to invite the French into 
 ' the Netherlands, and permitted the Zelanders and Hol- 
 ' landers (who infested the seas round about wjth thtir pira- 
 ' Heal vessels, being men, as it were, born in the sea), to rob 
 ' the English merchant ships, whom they accused, to carry 
 ' victuals to their enemies, the Dunkirkers, and to transport 
 ' the merchandise of the Antwerpers and others into Spain 
 
 • under counterfeit names, which they were wont themselves 
 ' to export formerly to their own advantage, but now durst not, 
 ' as being conscious to themselves of their revolt. For re- 
 
 • straining of these, Holstock, being sent forth again with men 
 ■ of war, took above 200 pirates, and put them in prisons all 
 
 • along the sea-coast. But to demand restitution of the goods 
 ' they had taken, there were sent into Zeland, Sir William 
 ' Winter, Knight, arid , Robert Beal, Clerk of the Council, 
 
 • to consider of the value of the things in controversy, and 
 ' agree about restitution upon certain conditions. But, by 
 ' reason of the avarice of the English merchants, and the in- 
 ' solency of the Zelanders, the quarrel broke out again, 
 ' which was shortly after compounded with loss to both na- 
 ' tions.'t 
 
 militate still more strongly against the rights of Neutrals, and confiscate 
 the vessel for carrying the goods ; the remark of Valin being, that the law 
 of 1543 and 1584 was milder, according to Clairac, than that before him, 
 which did so confiscate the Neutral vessel. 2 Vai. 252. 
 * I Hub. 77. t Camd. 214. 
 
 E 2 Now 
 
52 THAT FREE SHIPS, \_Prop. I. 
 
 Now, upon this we may observe, first, that the pretence 
 of the Zelanders was either true or false: secondly, that 
 restitution was withheld. If restitution was withheld because 
 the pretence was true, nothing that could happen in history, 
 could prove with more point and weight, that the principle 
 we contend for was amply allowed jn this very example; 
 for no one that ever heard of her, but knows the high spi- 
 rit, as well as the power of Elizabeth, to resist illegal vio- 
 lence. If it was withheld, however, although , the pretence 
 was false, it proves the piracies of the Zelanders, but no- 
 thing at all as to the point : and it happens peculiarly, that, by 
 the testimony of their own historian, in the very time, and in 
 the very years alluded to, the Zelanders, from distress, and 
 want of subsistence, occasioned by the pressure of the Spa- 
 niards, were driven to become pirates for such subsistence ; 
 eminently in this confirming the expressions of Camden, 
 that they were permitted to rob the English merchant ships.* 
 
 His fourth example, by being too general, proves no- 
 thing. 
 
 The English, it seems, allowed to the Hanse Towns, that it 
 was the right of Neutrals to traffic with Spain, but said that 
 they had parted with this right by particular convention. At 
 the same time it cannot be too often inculcated, that the ques- 
 
 * ' Quand il n'y avoit point d'argent a la main, pour payer les Matelots, 
 ni de vivres pour les nourrir, ils alloyent en mer, & y prenoyent ce qu'ils y 
 rencontroyent. Tellement que les admiraulx, les capitaynes, et gens de 
 marine, n'avoyent souvent rien k manger, sinon des harengs sales, ni rien a 
 boire que de I'eau, ou de la petite biere. Les biens & marchandises, non 
 seulement des Espaignols, mais aussi des Italiens estoyent adjugees pour 
 bon butin, pource qu'ils envoyent (comme ennemis) des gens devant 
 Haerlem, oh. estoit le regiment de la Ligue, qui estoyent Italiens. Ils pre- 
 noyent aussi tous les batteaux, qui vouloyent aller en Flandres. Et quand 
 la necessity les pressoit^ ils prenoyent tout ce quHls irouvoyent &^ le vendoyent 
 pour s'en ayder. Et pource que ces facons de faire, ne tournoyent pas h 
 grand honneur &> louange, pour les Estats de Hollande &' de Zelande. 
 Voyla pourquoy ils s'obligerent par leltres k payer le dommage fait, comme 
 aussi ils firent devant la fin de la guerre. ' Meteren, 98, d. 
 
 tion 
 
Sec. II.J MAKE FREE GOODS. 53 
 
 tion on the part of Neutrals is not concerning a general 
 liberty to trade, but whether they may carry the trade of 
 the Belligerent. 
 
 The next case is a famous one in our own history, on 
 which our fondness for the memory of our great Queen has 
 often delighted to dwell. It is her well-known contest 
 with Dzialine, the Polish Ambassador ; far enough, indeed, 
 from supporting any position of Hubner, and, like most of 
 the rest, falling upon himself. His account of it is, as 
 usual, lost in generals ; so that we know nothing but ' les 
 ' obstacles que Ton mit k son commerce ordinaire avec 
 ' I'Espagne, en declarant que c'etoit contre le droit des gens 
 ' que les Anglois I'^mpechoient de trafiquer librement avec 
 ' le Royaume.' What ' trafiquer librement ' here means 
 specifically is, as usual, left in the dark ; and on examining the 
 authority, which does not even hint at what sort of traffic 
 the Poles had attempted, so as to occasion an interruption of 
 it by the English ; we are either lost in the same indefiniteness, 
 or must come at once to the contemplation of contrabanfl. 
 ' For your part,' said the Queen, ' you seem, indeed, to us to 
 ' have read many books ; but yet to have little understand- 
 ' ing of politics. For whereas you so often, in your ora- 
 ' tion, make mention of the Law of Nations, you must 
 ' know that, in the time of war betwixt Kings, it is 
 ' lawful for the one party to intercept the assistance and 
 ' succours sent to the other, and to take care that no damage 
 ' may grow thereby to himself. This, we say, is agreeable 
 ' to the Law of Nature and of Nations, and hath been 
 ' often practised, not by us alone, but also by the Kings of 
 ' Poland and Sweden, in the wars which they have had 
 ' with the Muscovites.' 
 
 Thus far the Queen herself. He was afterwards told by 
 her Council, consisting, amongst others, of the two Cecils, 
 ' that to intercept succours sent to the enemy was not 
 ' against the Law of Nations, seeing it was ordained by 
 
 E 3 ' Nature 
 
54 THAT FREE SHIPS {Prop. I. 
 
 ' Nature, that every one should defend himself; and this is 
 ' not a written law, but born and bred in us. Moreover, 
 ' that it was yet fresh in memory, how the Kings of Po- 
 ' land and Sweden have confiscated the English ships and 
 ' merchandise," upon the bare suspicion that they had assisted 
 ' the Muscovites with provisions.' * Here is the real state- 
 ment of the case quoted from the authority referred to ; and 
 a case less serviceable to the cause it was meant to support, 
 or less candidly stated by the reporter, one would think it 
 would not be very easy to point out. 
 
 The next is an example without any reference ; but it is 
 of the less consequence, as it proves absolutely nothing to 
 the point in hand. The Hanse Towns, it seems, at war 
 with Denmark, exacted of the Dutch, that they would not 
 trade with the Danes ; to which they replied, as they might 
 very fairly do, that they had a right to do so, and would 
 not desist from exercising it.f 
 
 The seventh case is of Sweden and England. In 1653, 
 the former having asked an explanation as to the latter's 
 intentions with respect to Neutral Commerce, the Parlia- 
 ment replied to the Swedish Commissioner, that, let them 
 abstain from warlike stores, and they were at liberty 
 ' commercer oii bon leur sembleroit.' J Whether this 
 is thus exactly to be found in the reference which he 
 gives to Puffendorf's History, (which I have searched in 
 vain), is of no great consequence, since again the 
 word commercer, the very essence of all indefiniteness 
 on the subject, is the sole index of what is meant to be 
 conveyed ; and consequently it never can imply a right to 
 carry enemy's property. 
 
 The same observation applies to his eighth example, 
 where the city of Lubec, ' ayant pris la mdme precaution au 
 
 • Camd. 536, 7. t Hub. i. 78. J lb. 
 
 I commencement 
 
Sec. II.] MAKE FREE GOODS. 55 
 
 commencement de la guerre (in the time of Elizabeth), et 
 ayant fait demander quelle suret6 elle auroit pour leur com- 
 merce et quelles marchandises il lui seroit permis d'envoyer en 
 Espagne,' was told that, if it abstained from sending 
 arms, ' et d'auires attiraih de guerre, il lui 6toit libre d'y 
 commercer avec toutes sortes des marchandises.' Upon both 
 these cases, however, particularly the last, it is to be ob- 
 served, that the very circumstance of asking what security 
 they should have for their commerce, proves almost to 
 demonstration, that they did not consider even general 
 trading as a matter of right then settled in the Law of Eu- 
 rope, as it since has been. Much more does the question, 
 ' What sort of goods they should be allowed to send to 
 ' Spain,' prove, that in all such cases as these the word 
 commercer never means, nor is intended to mean, a right to 
 the enemy's carrying trade. 
 
 The ninth example is merely of the same nature with the 
 others. Sweden, in its war with Russia, seized English 
 vessels bound to Livonia. The English protested against' 
 it, because they had a right, being Neutral, to trade with 
 Belligerents. 
 
 But I think the summit of Hubner's mismanagement, in 
 regard to historical proofs, is reserved for his tenth and last 
 case : — a case relied on (but to me most strangely) by all 
 the innovators upon the Law of Maritime Capture, because, 
 as I suppose, it springs from England, and is argued with 
 England. Whether it is decided against her, take Hubner's 
 own account of what was decided, consult the authority, 
 and see how it applies. In this example he asserts, from the 
 Exposition des Motifs, &'c. that Lord Carteret and Lord Ches- 
 terfield, Secretaries of State at different times, declared to the 
 Prussian minister, that the subjects of his country might every 
 where continue their commerce, provided they abstained from 
 contraband and breach of blockade ; and that, as to the rest, 
 the trade of Neutrals should remain upon the same footing as it 
 
 £ 4 was 
 
56 THAT FREE SHIPS {Prop. I. 
 
 was in time of peace ; and he refers to the second, third, 
 eighth, and ninth articles. It is to be recollected also, that 
 the contest in the Exposition des Motifs is chiefly, and 
 almost solely, confined^ to the question of the right of carry- 
 ing enemy's property. — Thus far the statement ; now ob- 
 serve the truth. 
 
 In the first article, the real question asked by the Prus- 
 sian agent is, to be informed from the English Ministry, 
 of what specifically was held contraband with them ; and whe- 
 ther grain, timber, planks, hemp, linseed, linen, and the 
 like, were comprehended therein, that the King might ad- 
 vise his subjects thereof, and give them the necessary instruc- 
 tions upon the manner in which they should continue their 
 commerce.* 
 
 The second article (the first referred to by Hubner) con- 
 tains the answer : That the King's flag should be respected 
 equally with that of other Powers in the alliance of Great 
 Britain, excepting only such vessels as should carry war- 
 like stores to the enemies of the British nation. 
 
 The third article (also referred to) certainly contains the 
 statement ; as far as ' that commerce should remain free to 
 'Neutral Powers;' but the important words, 'upon the 
 ' same footing as in times of peace,' are contained under an 
 explanatory N. B. apparently by the Prussian ministers 
 themselves. 
 
 ' That, for the rest, the commerce should remain free 
 ' to the Neutral Powers ; — N. B. upon the same footing as 
 in times of peace.' \ 
 
 In the eighth and next article referred to, however, 
 Lord Chesterfield's answer is, that the King of Great 
 Britain will offer no hindrance to Prussian navigation ; 
 so long as they should exercise their commerce in an allowable 
 
 • Exposit. des Motifs, &c. Art. i. t lb. 
 
 way. 
 
Sec. II.] MAKE FREE GOODS. 5/ 
 
 way, and should conform to the ancient customs established and 
 received between Neutral Powers. 
 
 The ninth article merely reiterates Lord Carteret's 
 declaration. 
 
 Upon these articles it is scarce necessary to point out, that 
 although the question in the Prussian exposition directly 
 concerns the carrying trade, the questions to the English 
 Government, and the answers of its Ministers, upon which 
 the exposition is emphatically founded, do not in the least, 
 much less specifically, relate to it. Supposing even the N. B. 
 at the end of the third article to be Lord Carteret's own ex- 
 planation, it can never mean to relate to more than the 
 question originally put, which v^s the basis of all these 
 other explanatory questions. This we see, in terms, was 
 nothing more than to know, what was held contraband by 
 the English Ministry, in order that the subjects of Prussia 
 might tell by what rule to direct their trade. Lord Car- 
 teret's answer must, therefore, relate to contraband, and con- 
 traband alone ; for it would have been strange if he had volun- 
 tarily granted more than was asked ; and strange, indeed, if he 
 had granted what England had uniformly, except by treaty, de- 
 nied to all the world. This, is the more clear, because, when 
 general complaints, and a more general question, seem to have 
 been put afterwards to Lord Chesterfield, the answer then is, 
 that certain things are grante"d, so long as they should exer- 
 cise their commerce in an allowable way, and should conform to 
 the ancient customs established and received between Neutral 
 Powers. 
 
 To put the matter, however, out of doubt, if doubt can 
 yet be entertained ; talce the Sieur Andrie's, one of the 
 Prussian Ministers, own confession, as to the law, in a letter 
 to the King of Prussia himself, pending this controversy 
 with the Court of London. ' Your Majesty's subjects 
 • ought not to load on board neutral ships any goods really 
 ' belonging to the enemies of Englatid, but to load them for 
 
 ' their 
 
58 THAT FREE SHIPS [Prop. 1. 
 
 ' their own account, whereby they may safely send them to 
 ' any country they shall think proper, without running any 
 ' risk : then, if privateers commit any damage to the ships 
 ' belonging to your Majesty's subjects, you may depend oh 
 ' full justice being done here, as in all the like cases hath 
 ' been done.'* 
 
 And so much for the historical examples adduced by the 
 great champion for Neutrality, to prove that the maxim, 
 that free ships make free goods, has always been acknow- 
 ledged by Europe. That they must have been adduced for 
 this purpose, or no purpose at all, is, I think, clear, because a 
 general trade, on the part of Neutrals, with Belligerents, 
 has, in the last century, always been allowed, notwithstanding 
 all the contests concerning it that occurred in the preceding 
 ages. It certainly was not denied by Great Britain, at the 
 time when complaint was most loudly sounded against her in 
 the war of fifty-six, about which time Hubner wrote ; and 
 why he should otherwise have recurred to examples (how 
 accurately, however, we have seen), to prove what was not 
 resisted, in a work which professed to vindicate Neutrality 
 from its injuries, I am wholly at a loss to conjecture. It is, 
 however, the clearer, that this must have been his meaning, 
 because this chain of examples is introduced in the very 
 chapter, and immediately after he had laid down their right, 
 even to the colonial trade of' Belligerents, whenever they 
 chose to let them into it ; and in various preceding parts he 
 is strenuous in the assertion, that their rights of commerce are 
 the same (with the exception of contraband) with those which 
 they had enjoyed in times of peace ; and as in times of peace 
 no one could question their right to such carrying trade, as 
 any nation chose to allow them, the consequence is inevi- 
 
 * The genuineness of this extract is certified under his hand by Michel 
 himself, the other Prussian Minister, when it was exhibited in a cause. 
 D. of N.'s letter, in i Magens, 494. 
 
 table, 
 
Sec. II.] MAKE Free goods. 59 
 
 table, that Hubner really thought the examples which have 
 been detailed bear him out in the assertion, that free ships 
 make free goods. Schlegel, the pupil of Hubner, under- 
 stands this to be the object of his book, although it treats 
 merely of the general freedom of neutral commerce, and he 
 does not hesitate to assert, (we will suppose not upon the 
 faith of this historical research) that he has developed the 
 rights of the Neutral in a manner so convincing, that those 
 versed in the law of nations ' ont depuis presque unanimement 
 ' reconnus la justesse de cette axiome que le pavilion neutre 
 ' couvre la marchandise.'* In vain, however, I think has 
 history been consulted, at least in the instances given by this 
 most strenuous advocate of Neutrality : in vain have authori- 
 ties been sought for to wrench the true bearing, of facts, 
 and the true meaning of language, into the support of a prin- 
 ciple, which, except by the stipulations by treaty, has not, 
 in point of truth, been ever supported during the ages we have 
 been examining. The uniform experience of Europe, in those 
 times, where treaty did not interfere to change the effect of 
 the principle by positive contract, determines, beyond all 
 doubt, that the principle itself was never brought in question. 
 When I say this, however, let me not appear to be igno- 
 rant of what I know has often been asserted ; let me not 
 seem to avoid what I wish thoroughly to examine. Amongst 
 those who support the maxim as founded in natural right, a 
 name is said to be enrolled of such great and weighty autho- 
 rity, that, if it is really so, the reasoning that has been ad- 
 duced will require still greater defence, in order to stand 
 unshaken. It is of no less a man than Puffendorf, himself 
 a tower of strength upon any question of the Law of Na- 
 tions, which he has really espoused. The sensible Barbey- 
 rac, in his commentary upon his great work upon the Law 
 
 * Schlegel, lo. 
 
 of 
 
6o THAT FREE SHIPS [ProJ>.J. 
 
 of Nature and Nations,* has preserved a letter of his upon 
 the subject of Neutral Commerce, which has often been 
 cited by those who support the maxim in question, as proving 
 that Puffendorf is entirely of that opinion. If we examine 
 it with common attention, it will be found precisely in the 
 same situation with those historical examples of Hubner 
 which we have just been examining ; either amounting 
 merely to the assertion that, as a general rule, the Neutral 
 has a right to trade with the Belligerent, which, it cannot 
 be too often reiterated, no one denies him ; or, amounting 
 absolutely to an authority against the maxim, in support of 
 which it is cited. 
 
 Let us hear Barbeyrac himself in introducing it into his 
 notes, ' Au reste pour ce qui regarde la question, si Von pent 
 ' emp&cher que les peuples Neutres ne traffiquent pendant le 
 ' cours de la guerre avec noire ennemi, il y a une lettre de 
 ' notre auteur, &c. &c.'t 
 
 It is to be observed, that Puffendorf no where entertains 
 the question of Neutral Commerce in his works; but, what 
 is most important in this particular enquiry to know, refers 
 you, with full approbation, to the opinions of Grotius in 
 the passages that have been cited at length. % The letter 
 was written to Groningius, whom Schlegel calls ' fameux 
 ' jurisconsulte,' in King William's war with France, at the 
 end of the seventeenth century. This civilian had under- 
 taken to assert, I know not what claims on the part of 
 Neutral Nations, but amongst them this of a right to trade 
 generally, which no one now withholds ; but which then, 
 as we have seen, was particularly disputed by the Treaty 
 
 * L. viii. c. 6. t Puff- D- des Gens, 1. viii. c. 6. notis. 
 
 { ' Au reste si I'on veut savoir en quoi consistent ces temperamens aussi 
 bien que I'etendue des droits de la guerre, et par rapport a I'ennemi, et par 
 rapport ^ ceux qui lui fournissent quelque cliose ; on troimera la dessus 
 amplement de quoi satisfaire dans le trait^ de Grotius au troisieme livre.' 
 Ibid. 
 
 S of 
 
Sec. I I.J MAKE FREE GOODS. 6\ 
 
 of Whitehall.* Now, this particular circumstance, toge- 
 ther with those others just now mentioned, of Puffendorf's 
 approbation of Grotius upon the subject, and the very words 
 of Barbeyrac in introducing the letter, let us at once, I 
 think, into the true question that was before Puffendorf 
 when he wrote, which seems thus solely to have been con- 
 fined to the pretension of England and Holland to cut off 
 all trade whatsoever with France. With this guide to our 
 minds in examining this important letter, let us proceed to 
 look at the letter itself.f 
 
 ' L'ouvrage, Monsieur, que vous promettez, touchant la 
 Liberty de la Navigation, excite ma curiosite. C'est un 
 beau sujet, et sur lequel personne, que je sache, n'a encore 
 fait de traite particulier. Je crains bien neanmoins d'en 
 juger parceque vous iouthez dans vdire lettre, que vous ne 
 trouviez des gens qui vous contesteront zios idhs. La question 
 est certainement du nombre de celles, qui n'ont pas encore 
 iti iiablies sur des fondemens clairs et induhitables, qui puis- 
 sent faire regie par tout le monde. Dans tout les exemples, 
 qu'on allegue, il 'y a presque toujours, quelque chose de 
 droit, et quelque chose de fait. Chacun d' ordinaire permet ou 
 defend le commerce maritime des Peuples Neutres avec ses 
 ennemis, selon qu'il lui importe d'entretenir amiti6 avec ces 
 peuples, ou qu'il se" sent de forces pour obtenir d'eux ce 
 
 * Vide supra. 
 
 t As to the other claims, whatever they were, which Groningius meant 
 to set up, it is as in vain to enquire after them, as that they should derive 
 any weight from their author : since we are told by Barbeyrac himself, 
 that being 'compilateur de tres mauvais gofit les exemplaires de sa rhapsodi 
 sont servi aux epiciers et aux heurrieres et par W sont devenus rares.' 
 Puffend. viii. 6. notis. It is curious, after this, to hear Hubner's lamenta- 
 tion in the moment of telling you that Neutrals ought to be allowed to 
 trade with Belligerents upon the same footing as in time of peace. ' The 
 Baron Puffendorff, ' says he, 'has written a short letter upon this question, 
 which I have never seen. It ought to be in a book called Groningii 
 Bibliotheca Universalis Librorum Juridicorum, and In the 105th page, but 
 I could not find the book at faris. ' Hubn. i. 66. 
 
 qu'il 
 
62 • THAT FREE SHIPS [Frop. I. 
 
 qu'il souhaite. Les Anglois et les Hollandois, peuvent dire 
 sans absurdite, qu'il leur est permis de faire tout le mal 
 qu'ils peuvent aux Ftan9ois avec qu'ils sont en guerre, et 
 par consequent d'emploier le moyen le plus propre k les af- 
 foiblir, qui consist^ traverser ou empecher leur commerce : 
 qu'il n'est pas juste que les Peuples Neutres s'enrichissent A 
 leurs depens, et en attirant i eux un commerce interrompu 
 pour I'Angleterre et la Hollande, fournissent k la France 
 des secours pour coniinuer la guerre: d'autant plus que I'An- 
 gleterre et la Hollande, favorisent ordinairement d'une autre 
 mam6re le commerce de ces peuples, et leur donnent occa-- 
 sion de transporter et d6biter ailleurs les marchandises de leur 
 era, ou de leur fabrique : en un mot, qu'on veut bien leur 
 laisser en son entier le commerce qu'ils ont accoutum6 de 
 faire en tems de paix ; mais qu'on ne doit pas souffrir 
 qu'ils I'augmentent k I'occasion de la guerre, au prejudice 
 des Anglois et des Hollandois. Mais comme cette ma- 
 tidre du commerce et de la navigation ne depend pas tant 
 de regies fondles sur une loi generale, que sur les conven- 
 tions particulieres entre les peuples : pour pouvoir porter un 
 jugement solide de la question dont il s'agit, il faut examiner 
 avant toutes choses, quels traitez, il y a eu la-dessus entre 
 les Rois du Nord, et I'Angleterre ou la Hollande, et si 
 celles-ci leur ont ofFert des conditions justes et raisonnables. 
 U autre c6ti nianmoins si les Rois du Nord peuvent maintenir 
 leur commerce avec la France, en faisant escorter les vaisseaux 
 marchands par des navires de guerre, pourvu qu'il n'y ait 
 point de marchandises de contrebande personne ny trouvera d 
 redire: la loi de Thumanit^ et de I'equite entre nations, ne 
 s'6ntendant pas jusqu'a exiger que, sans aucune necessity, un 
 peuple se prive de son profit, en faveur d'un autre. Mais 
 comme Vavidite des marchands est si grande, que, pour le 
 moindre gain, ils ne font aucun scrupule d' alter au de la des 
 justes bornes : les Nations, qui sont en guerre, peuvent faire 
 visiter les vaisseaux des Peuples Neutres ; et, s'il s'y trouv6 
 
 des 
 
Sec. II.] MAKE FREE GOODS. 63 
 
 des marchandises defendues, les confisquer de plein droit. 
 D'ailleurs, je ne suis pas surpris que les Rois du Nord aient 
 plus d'egard k rint6r6t general de toute I'Europe, qu'aux 
 plaintes de quelques marchands, avides de gain, qui ne se 
 soucient pas que tout aille sans dessus dessous, pourvu qu'ils 
 satisfassent leur avarice. Ces m6mes Princes jugent sage- 
 ment, qu'il n'est pas 4 propos pour eux de prendre des me- 
 sures pr6cipit6es, pendant que d'autres peuples travaillent 
 de toutes leurs forces k reduire dans un etat de juste medio- 
 crity cette puissance insolente, qui menace de mettre toute 
 I'Europe dans ses fers, et en meme tems de ruiner la Reli- 
 gion Protestante. Ce qui etant aussi de I'int^ret des Cou- 
 ronnes du Nord, il ne seroit ni juste, ni raisonnable, que, 
 pour un petit profit a tems, elles troublassent un dessein si 
 ■ salutaire, dont on tiche de venir k bout sans qu'il leur en 
 coute rien et qu'ils courent aucun risque,' &c. 
 
 Upon this letter it is to be observed preliminarily, that 
 although the question was concerning the right to inhibit 
 all traffic whatsoever, (certainly the carrying trade is never 
 once mentioned or glanced at), yet he tells Groningius that 
 he would find many who would dispute his ' positions ; 
 ' that Great Britain and Holland could say, without absur- 
 ' dity, that it was allowable for them to do all the mischief 
 • they could to France, and to employ the properest means 
 ' of weakening her, which was to interrupt or prevent her 
 ' cbmmerce : that they might say, without absurdity, that 
 ' it was not just for Neutrals to enrich themselves at their 
 ' expence, and, at the same time, furnish France wiiA the 
 means of continuing the war; particularly as they allowed 
 ' them to enjoy such commerce as they had possessed during 
 ' peace, but which they ought not to suffer them to augment 
 ' on account of the war, and to their own prejudice.' 
 
 Possibly the reader will advert to the very great support 
 which, thus far, this great master of the Law of Nations 
 
 gives 
 
64 THAT FREE SHIPS [Prop. I. 
 
 gives in these passages, to the reasoning that has been before 
 him. How these passages, at least, can seem to militate 
 against that reasoning it will not be very easy to demon- 
 strate. But he goes on to state, that as commerce and na- 
 vigation do not depend so much upon general law as parti- 
 cular conventions, it will be necessary to examine them, in 
 order to see whether the English and Dutch have come to 
 a just and reasonable agreement with the Kings of the 
 North. Here, then, he seems to found the right to trade 
 itself upon treaty ; certainly, at least, there is nothing here 
 against our positions. 
 
 It is the next paragraph, however, which, it is conceived, 
 is hostile, because he says, that if, after all, the Northern 
 Powers can maintain their commerce with France, by 
 means of convoys of vessels of war, provided they abstain 
 from contraband, no one has a right to question them for 
 it, the laws of humanity and equity not requiring that a 
 people should deprive themselves of any advantage in favour 
 of another, without any necessity for so doing. 
 
 tfpon this the obvious remark is that, even upon the 
 question of prohibiting all trade, where tjiere is a necessity 
 for so doing, in this very passage it is allowed that it ought 
 to be done ; and the only point, therefore, is, to establish 
 a case wherein the necessity may be made to appear. That 
 case it has been the object of the preceding pages to demon- 
 strate, when Neutrals interpose in the carrying trade ; an 
 interposition pregnant to the full with as much mischief, 
 and decisive of as much partiality, as the trade of contra- 
 band itself; equally, therefore, open to the strong observa- 
 tion in the letter before us ; — ' But since the greediness of 
 ' merchants is so great, that, for the least gain, they rnake 
 ' no scruple to overleap the bounds of justice, Belligerents 
 ' have a right to search the ships of Neutrals, and, if they 
 ' find prohibited merchandise, to confiscate them as fair 
 ' prize.' 
 
 Now 
 
Sec. II.J MAKE FREE GOODS. 65 
 
 Now, I own, from the whole of the context taken toge- 
 ther, I can see nothing that would produce conviction, that 
 PufFendorf, so far from being the champion of the Neutral 
 pretension, is not directly in favour of the Belligerent 
 claim. He allows we have seen that the two allied powers 
 may hold, without absurdity, the very language that we 
 have been holding ; he foresees that many will oppose the 
 assertions of Groningius, though part of his object was to 
 pull down a pretension in that war, which was so confessedly 
 unjust as to be abandoned by the allies themselves ; above 
 all, he allows the necessity of checking the unbridled ava- 
 rice of merchants, whose contempt of justice, in their eager- 
 ness for gain, is such, that he gives to Belligerents the full 
 rights of search and confiscation. This concession also im- 
 mediately succeeds the only sentence in the whole letter, 
 or indeed in all the woi;ks of Puffendorf, which glances at 
 any thing like a support of the Neutral claim. But in 
 addition to this, much is to be observed upon the terms of 
 that sentence itself. It is by no means unqualified or un- 
 mixed ; the important ingredient of a national convoy is too 
 prominent not to engage our attention ; and if this is made 
 necessary in the mind of PufFendorf to the enjoyment of the 
 privilege, the whole claim, in the case of private ships, 
 must be abandoned at once. 
 
 This, however, could by no means be the intention of so 
 true a reasoner. Convoy may, possibly, if so settled, be al- 
 lowed to dispense with certain forms in the exercise of a 
 right, but can never do away the whole right itself. The 
 presence of a ship of the State, it may he settled hy agree- 
 ment, shall imply that the vessels and cargoes under convoy 
 are innoxious; but can never, if they are noxious, render 
 them not so ; never turn mischief into harmlessness, crime 
 into innocence. If the right itself, therefore, is unsupport- 
 able, it is not the circumstance of convoy that will support 
 it. This is so clear, that it must make its way into the 
 
 F most 
 
66 THAT FREE SHIPS [Prop. I. 
 
 most obtuse understanding ; and we can never suppose, that 
 the fine mind and learning of PuiFendorf could ever intend 
 to broach a position so replete with absurdity. If it means 
 any thing as to the maxim we are discussing, it must mean 
 openly and boldly to assert, that Neutrals have the right by 
 the law, but, being contested to them ly force, that they may 
 oppose that force for the enjoyment of their rights. How- 
 ever, that it cannot mean this, I think is clear, from what 
 has already been cited from the preceding parts of the let^ 
 ter, where the claims of the allied Belligerents are acknow- 
 ledged in full force. That other construction alluded to, 
 that it applies to points of form, and dispenses with search, 
 has, I know, been put upon it ; but, meaning to discuss 
 that question in its proper place, I shall not entangle the 
 subject with it here. One farther, and not unimportant 
 observation, however, must be made, that, even upon this 
 very point of convoy (whatever it means), the sentence is 
 conceived in these particular terms : that it is to be em- 
 ployed to maintain their commerce with France ; not the 
 enemy's commerce, nor for France. This, coupled with 
 the historical circumstance which must always be borne in 
 mind, that the allies had, during that very war, pretended 
 to prohibit all trade whatsoever with their enemy, eluci- 
 dates the mystery that hangs over the subject, and puts the 
 matter beyond all doubt. It proves, I think, that Puffen- 
 dorf hesitated whether even this was not a proper preten- 
 sion of the allies ; but that, if the Neutrals, who had a 
 conflicting pretension, of perhaps a superior nature, chose 
 to maintain it by force, he could see nothing to prevent its 
 assertion. It never can be strained, however, to mean that 
 they had a right to the carrying trade which they had never 
 possessed before, and which would not be with, but for 
 France. Now this carrying trade is the very point in dis- 
 cussion, that free ships make free goods ; and thus, upon the 
 whole, if Puffendorf's letter is any authority upon the sub- 
 5 ject. 
 
Sec. II.] MAKE FREE GOODS. 6/ 
 
 ject, it is authority in favour of the Belligerent, not of the 
 Neutral. 
 
 And thus we have done with this celebrated letter, the 
 only authority that has ever been even glanced at to prove, 
 that in the seventeenth century the maxim in discussion had 
 ever been laid down as a principle founded in natural right. 
 
 What, however, shall we say (if any doubt can yet hang 
 upon this opinion of Puffendorf) to the authorities of two 
 men, nearly his contemporaries, co-ordinate in point of rank 
 and authority as civilians, equal in point of reputation, and 
 who both affirm, in terms the most authoritative and une- 
 quivocal, that the pretension is unjust. I speak of no less 
 men than Bynkershoek and Heineccius ; the one a Dutch- 
 man, the other a Prussian ; each of them, therefore, of coun- 
 tries interested in sinking the foundation of the maxim as 
 deeply in the Law of Nature as the Armed Neutrality it- 
 self. Each of them, however, determines otherwise. 
 
 In the fourteenth chapter of the Questiones Juris Publici, 
 Bynkershoek entertains the question, ' De hostium rebus in 
 ' amicorum navihus repertts.' In this, he says, two things are 
 to be examined : first. Whether the neutral ship itself is confis- 
 cable for fault, in carrying enemy's property ? next. Whether 
 the property so carried is confiscable .-' As to the first, after 
 canvassing many doubts, which have before been alluded to, 
 in the writings of Grotius and Loccenius, in times when 
 the law upon the much larger claim of Belligerents was not 
 so well settled as it is now ; he decides, as the world now 
 decides, that the ship itself is not confiscable. With re- 
 spect to the other, his opinion is as clear as his language is 
 emphatic. ' Why,' says he, ' do you doubt, since I have 
 ■ a right to seize my enemy's goods wherever I find them ?' 
 But there are various treaties between Holland, and France 
 and Spain, in which the contrary rule is allowed; and, 
 therefore, either the old law of France is abandoned, or, 
 ' quod est verius,' the treaties are exceptions. Whichever 
 
 F 2 way 
 
68 THAT FREE SHIPS \_Prop. I. 
 
 way it is, our business is more with the reason of the thing 
 than with treaties (de ipsa ratione magis quam de pactis la- 
 borandum est) ; and, reason being consulted, I see nothing 
 to prevent my seizing an enemy's property, even on board a 
 neutral ship, by the just laws of war. You will, perhaps, 
 tell me, that I cannot seize the goods, without first possess- 
 ing myself of the ship ; which cannot be, again, without 
 invading her neutrality. But I have a right to stop even a 
 neutral vessel, in order to ascertain that I am not de- 
 ceived by false colours; I have a right also, for the same 
 purpose, to examine her papers, and the papers relating to 
 the cargo as well as to the ship : and if I find that they disclose 
 the property of an enemy, I take possession of it by the 
 right of war. This is clearly allowed by the law of Hol- 
 land, and by the Consolato del Mare. I, however, do not 
 assent to the accompanying concession in the Consolato, con- 
 cerning freight, which, not having been earned, ought not 
 to be allowed.' — These are the sentiments of a man of the 
 very first authority in the law; a man, whose admirable 
 sense sifts the bottom of every thing he examines ; a man, 
 in short, whom Barbeyrac sometimes prefers even to Gro- 
 tius himself. 
 
 We must not quit this account of Byijkershoek's opi- 
 nion, without remarking upon the support which he gives 
 to the next authority I mean to cite. 'After I had written 
 ' this,' says he, ' the book of the illustrious Heineccius 
 ' came into my hands, in which he treats upon this sub- 
 ' ject : far from finding in it any thing to make me change 
 ' my opinion, it is rather corroborated, by the authority of 
 ' that great man.'* 
 
 Let us now come, then, to the investigation of this autho- 
 rity. It is to be found in that treatise of Heineccius which 
 
 Quest. Jur. Pub. cap. xiv. ad fin. 
 
 examines 
 
Sec. II.] MAKE FREE GOODS. 69 
 
 examines questions of confiscations for carrying prohibited 
 goods.* The eighth section treats of precisely the same 
 questions with those touched upon by Bynkershoek; and 
 after considering them pretty nearly in the same manner, he 
 comes to the same conclusion. It is to be observed, how- 
 ever, that although he sets forth the articles of the Conso- 
 lato del Mare, which seems to have all his approbation, 
 and, consequently, approves the right of seizing enemy's 
 property on board a neutral vessel ; yet he entertains a ques- 
 tion upon all those points regarding the confiscation of the 
 vessel for carrying it, and the power itself of trading at all 
 on the part of the Neutral ; which, as we have seen, were 
 so long undecided in Europe. After mentioning the Conso- 
 lato, he observes, ' non semper tarn humanse sunt leges 
 ' tempore belli propositae,' and then states a variety of 
 cases, which all the old civilians had made use of before : 
 ' Ex quibus,' says he, ' satis adparet vere omnino dixisse 
 ' Grotium, non certam ea de re esse juris gentium legem.' f 
 After distinguishing, however, several difl'erent cases, and 
 determining, - as we have allowed, that modern ages have 
 most justly determined, he treats the question before us as if 
 it never had been in doubt : ' Idem statuendum arbitramur, 
 ' si res hostiles in navibus amicorum reperiantur. Illas capi 
 ' posse, nemo dubitat, quia hosti in res hostis omnia licent, 
 ' eatenus, ut eas uhicunque repertas sibi possit vindicare.' 
 The ship, as has been observed, he restores to the Neutral, 
 who was not forbidden by any law from taking them on 
 board, in the same manner as the Belligerent is allowed by 
 law to seize them, when found on board ; and he gives the 
 whole common sense of the question in his concluding sen- 
 tence : ' Quemadmodum ergo jure suo utuntur, qui res hos- 
 
 * De Navib. ob. Merc. Vetit. Vect. Commiss. 
 t Id. Cap. ii. Sec. viii. 
 
 F 3 ' tium 
 
70 THAT FREE SHIPS \Prop. I. 
 
 ' tium ex istis navibus auferunt ; ita et injuste non faciunt 
 ' qui amicorum res navibus suis vehunt.' 
 
 For the sake of the true reason, and the real justice of 
 the case, one could wish that the regulation, which was 
 made some few years after this, in the ordinances of the 
 French Marine, had been founded on such authorities as the 
 last. However, the motive of the King of France was 
 still honourable, when he, for the first time, adopted the hu- 
 manity of the Consolato in relaxing the ancient rule of 
 France. He did this in order, as he says in the regulation, 
 ' to preserve the good faith of the treaties which he had 
 ' entered into,' not on the ground of general equity. 
 Before the regulation, therefore, of 1744 the French Ma- 
 rine had not yet departed from the old contested Law of 
 Europe respecting general trade with Belligerents ; and 
 their confining themselves to the seizure of enemy's pro- 
 perty alone was matter of lenity and improvement.* 
 
 And here, we close the account of the authorities upon 
 this debated question, from the eleventh to the middle 
 of the eighteenth century ; during which long period, as 
 far as can be judged from the positive evidence produced in 
 its favour, and the little force of that evidence which is 
 produced against it, the remark which was made in the out- 
 set of this section is confirmed, that the stream of the au- 
 thorities, is against the principle of the Armed Neutrality. 
 I think we are nearest the truth in saying, that thus the 
 matter rested until the middle of the last century, when, 
 for the first time, Europe saw those principles of trade, 
 which had been for a long time forcing themselves into 
 practice by the express stipulations of treaty, contract, and 
 convention, at length boldly brought forward as a matter of 
 general right, founded, as the Armed Neutrality of 1780 
 
 * See the Reglements of 1704 and 1744, 2 Valin, 248, 250. 
 
 said. 
 
Sec. II.J MAKE FREE GOODS. 71 
 
 said, in natural justice, and, as the Armed Neutrality of 
 1800 says, in the indissoluble ties of natural law. In con- 
 sequence of this, it was no longer necessary for Maritime 
 States to look to their treaties for the line of their duty, 
 or the foundation of their privileges ; but the convenient 
 theory of right set up, rose far above all law ; and by seek- 
 ing the divine origin of reason, equity, and the general 
 rights of mankind, endeavoured really to persuade Bel- 
 ligerents, that a Neutral might interfere in the war before 
 their faces, and screen their enemy under his cloak, at the 
 moment when he might be falling within their power. 
 
 These privileges, founded on right, were first claimed 
 by the King of Prussia in the war of 1745, and were de- 
 veloped at large in his minister's memorial to the Duke of 
 Newcastle, 1752. 
 
 That memorial disclosed the real .pretensions of the Mo- 
 narch by whose orders it was framed in the style which it 
 assumed;* from which might be collected, in fine, all that 
 the King of Prussia found it convenient for himself to do, 
 although in defiance of all that any King in the world had 
 attempted in the same circumstances. The Courts of Ad- 
 miralty in this country having, it seems, borne hard upon 
 his subjects for bad conduct under their profession of Neu- 
 trality, he chose himself to try the matter over again by a 
 Court of his own ; and, as might be expected, that Court hav- 
 ing discovered that his subjects were in the right, he pro- 
 ceeded to carry its sentence into execution, by immedi- 
 ately, and of his own authority, in the manner of reprisals, 
 cancelling the large debt of his new conquest of Silesia to 
 
 * Exposition of the Motives founded upon the universally received Law 
 of Nations, which have determined the King of Prussia, upon the repeated 
 instances of his subjects trading by sea, to lay an attachment upon the 
 capital funds which his Majesty had promised to reimburse to the subjects 
 of Great Britain, in virtue of the peace treaties of Breslau and Dresden. 
 See I Magens, 437. 
 
 F 4 the 
 
72 THAT FREE SHIPS \_Prop. I, 
 
 the merchants of England, until the claims of his own 
 subjects were satisfied. The mockery of setting up a tri- 
 bunal of his own, to review the sentence of the only tribunal 
 acknowledged in point of fact by the Custom of Nations, 
 whatever arguments particular persons ijiay have thought of 
 weight against it in theory, it is needless to expatiate upon, 
 the question of the competent jurisdiction not being now 
 before us ; but in order to shew the proper qualifications of 
 this new tribunal, a new law was absolutely broached, and 
 Europe, for the first time, saw, in the following abridged 
 questions, the embryos of the Armed Neutrality. 
 
 I. Whether Belligerent ships could stop Neutrals on the 
 high seas, search, or carry them into port, notwithstanding, 
 from the exhibition of papers, that no contraband was on 
 board ? 
 
 II. Whether they could detain them under pretext that 
 they carried enemy's property } 
 
 III. Whether the Courts of the capturing Belligerent 
 are competent to decide upon the legality of the capture } 
 
 IV. Whether the King could not confiscate the Silesian 
 debt by way of reparation for the long delay of justice, and 
 the unjust decisions of these Courts ? 
 
 And thus, after near six hundred years silence in Eu- 
 rope upon this great question as a principle in the Maritime 
 Law, during which time almost every other principle had 
 been started, canvassed, resisted, or confirmed, amidst the 
 thousand revolutions of commercial states ; after the very 
 question itself had long been agitated with the greatest 
 urgency as a point of convention between particular nations ; 
 it was at length fairly put forth in form, as a right belong- 
 ing to all nations, claimable from nature and not from 
 agreement, and by consequence so far superior in obligation, 
 that treaties on the subject were to change their object, 
 and stipulate, where change was necessary, the reverse of 
 the principle, instead of the principle itself. 
 
 England 
 
Sec. II.J MAKE FREE GOODS. 73 
 
 England saw with astonishment this open and bold design 
 to overturn all the received principles of her maritime 
 rights and duties ; and prepared to resist them, both by the 
 firmness of her conduct and the soundness of her reasoning. 
 At that time there were at the Court of London four illus- 
 trious men, learned in the laws of their country and of the 
 world, of great integrity of life and faithfulness in all mat- 
 ters of representation. One of them was a judge of the 
 realm in all matters of civil and public law, the rest the 
 highest law-officers of the Crown. To these was confided 
 the important charge of examining the argument by which 
 such unheard of pretensions were to be supported, and to ascer- 
 tain whether or not all Europe had been in a dream, when, in 
 compliance with the authority of all her wise men, and the 
 example of all her States, she had for so many ages admitted 
 the contrary principles as received law. 
 
 The answer which these learned men gave to all the 
 propositions laid down by the Prussian Minister, is so well 
 known to England, and so widely disseminated in Europe, 
 that it is needless to repeat it. In this historical part of the 
 argument, it is sufficient to say, that those excellent persons, 
 to whom his Majesty had confided the defence of the mari- 
 time rights of his kingdom, most amply justified the con- 
 fidence that had been reposed in them ; by furnishing an 
 answer to the Prussian allegations of such force and autho- 
 rity, that the maritime law of Europe, for this time at 
 least, stood unshaken. Whether it can stand the shock of 
 the pens of Hubner and Schlegel, supported by the fleets 
 and armies of such great and mighty kingdoms as are pre- 
 paring for the contest, remains to be seen. Only thus much 
 we may observe; that if the Northern Confederacy should 
 even succeed by the force of power to change the law, as 
 we say it has stood for ages, that change will not be 
 brought about by altering the principle, but by a conven- 
 tion not to obey it. The nature of the laws of Reason and 
 
 Equity, 
 
74 THAT FREE SHIPS \^Prop. I. 
 
 Equity, and the writings of those learned men who have 
 developed them, must always remain the same ; whatever 
 injuries they may sustain from ignorance or violence. As 
 a general rule, whenever the subject is considered in the 
 abstract, the old opinion must ever prevail ; and though con- 
 federacy should arm after confederacy, and treaty should 
 succeed to treaty, until the fact actually happened, that 
 every Maritime State of the world should agree to be 
 bound by a different law ; still the rule itself, if properly 
 founded, would be impregnable and unassailable, where- 
 ever first principles are concerned. At the time we are 
 treating of, Europe was so little prepared to deny 
 this, or, what is more, to deny that the conduct of the 
 preceding ages, and the writings of the Civilians, had 
 been grounded entirely upon these first principles ; that the 
 Duke of Newcastle's letter, containing the answer to the 
 Prussian Minister, was then considered, and will, I trust, 
 ever be considered by dispassionate and disinterested j)ersons, 
 as a masterpiece of true and general law. Thus, at least, 
 it was held by the greatest men of that time. Vattel, in 
 speaking of the jurisdiction of courts in the countries which 
 erect them, observes, that for another country to attempt 
 to set aside their definitive sentence, is to attack the juris- 
 diction itself; on which account no prince ought to inter- 
 pose in the causes of his subjects when in foreign countries ; 
 adding, by way of farther proof, ' le Cour d'Angleterre k 
 ' 6tabli cette maxime avec beaucoup d'6vidence i I'occasion 
 ' des vaisseaux Prussiens saisis et declares de bonne prise pen- 
 ' dant la derni^re guerre.' And in the note upon this pas- 
 sage, he calls it, ' Un excellent mor^eau de Droit des 
 ' Gens.'* To this testimony of Vattel, we may add, in 
 another country, that of Montesquieu ; who, speaking of it 
 
 * Droit des Gen. 1. vii. 84. 
 
Sec. II.] MAKE FREE GOODS. 75 
 
 in a private manner, as a mere literary man, in one of his 
 familiar letters, says, it is considered as ' Reponse sans 
 ' replique!* There are, however, still stronger and irre- 
 fragable proofs of its general merit, its soundness of doc- 
 trine, and cogency of conclusion, in the conduct of Frede- 
 rick II. himself. We have seen that his own minister at 
 the Court of London had abandoned it as far as the prin- 
 ciple immediately before us was concerned ; \ and this 
 probably, together with the force and weight of the answer 
 in the minds of the different public men of Europe, induced 
 him not to renew the subject. Certain it is, that not only 
 these pretensions were never afterwards heard of, as founded 
 in principle, until the Armed Neutrality of 1780; but the 
 king of Prussia gave the most convincing proofs of convic- 
 tion, by relinquishing the immediate pretensions for which 
 he had directed the Exposition des Motifs to be prepared. 
 The interest of the Silesian loan was no longer withheld, 
 but from that time regularly discharged.^ 
 
 Afte^ all that has been said, therefore, of the history of 
 the law in Europe ; the uniform acknowledgment of the 
 principle of the Consolato, whenever it was not modified by 
 treaty; the constant, regular, and strong support which it 
 .met with from the writings of Grotius, and the conduct of 
 De Witt; the approbation of all the other writers of the 
 seventeenth century; the unqualified renewal of that appro- 
 bation by Bynkershoek and Heineccius, at the beginning 
 of the eighteenth ; the praise of the answers we have been 
 reviewing, from such men as Vattel and Montesquieu, in 
 the middle of it ; and the final acknowledgment of its 
 force by the conduct of the party himself to whom it was 
 addressed ; after all this, I say, what are we even to at- 
 
 * Lettre 45, i I'Abbe Guasco. 
 
 t Andrie's Letter, vid. supr. p. 57. 
 
 X \2 Smollet, 132. 
 
 tempt 
 
"jS THAT FREE SHIPS \Prop.l. 
 
 tempt to make of such language as this on the part of the 
 Danish Professor ? 
 
 ' Le Gouvernement Anglois repondit par une consultation 
 ' de quatre jurisconsultes qui defendoient les jugemens 
 ' contest6s par le r6gle anciennement adoptee par le Con- 
 ' solato del Mare. On s'etonnait alors de ce que le gou- 
 ' vernement et les jurisconsultes Anglois au lieu de suivre 
 ' le progr^s des lumidres se trouvoient en arriere de plus 
 ' d'un si6cle dans la science du droit des Gens.' * 
 
 What these lumUres were, by the progress of which we 
 ought to have been governed, it would not be difficult to 
 guess ; but, unfortunately, the lumUres of that time were 
 all on the side of the Belligerent Powers ; for in the very next 
 war, not above five years after the Exposition des Motifs 
 and its answer appeared, the same principles as were then 
 acted upon by England, were acted upon both by England 
 and France, to the destruction of Neutral interposition, and 
 with it, perhaps it must be owned, in some instances, to the 
 destruction of their just rights. The confiscations of whole 
 fleets, almost, of Dutchmen, on the part of Great Britain ; 
 and of Danes, on the part of France ; and the consequent 
 discontent, remonstrances, and urgent memorials from the 
 merchants to their Governments, are still, perhaps, in the 
 memories of many at this moment alive. Deputation after 
 deputation, in Holland in particular, was sent to their ma- 
 gistracy ; and there appeared, at one time, a memorial signed 
 by 269 of the principal merchants, stating their supposed grie- 
 vances and cause of complaint ; in which, no doubt, many real 
 injuries were intermingled with cases of resistance to injury. 
 They even went so far in this memorial, as to offer them- 
 selves to contribute a contingent, and to arm, at their own 
 charge, for the protection of their insulted commerce. But, al- 
 
 Schlegel, 9. 
 
 though 
 
Sec. II.] MAKE FREE GOODS. 77 
 
 though great and just complaint was made of particular acts 
 of robbery, cruelty, and insolence, on the part of the English 
 privateers, for which the memorials of our Ambassador 
 himself confessed there was but too much foundation;* al- 
 though the defence of our own Belligerent rights carried 
 along with it such frequent attacks upon the fair rights of 
 their neutrality, as to excite the indignation of our own 
 Government, and even .of individuals here, who, to their 
 honour, associated to offer rewards for the discovery of 
 the perpetrators ; although, also, there was a great and 
 sharp contest on the interpretation of the Maritime Treaty 
 with Holland ; yet, amidst so many opportunities, so many 
 direct or incidental occasions to broach the maxim in ques- 
 tion as a matter of natural right, that pretension was never 
 asserted ; but all was rested upon convention, contract, and 
 custom, and that, not as the conventional or customary law 
 of Europe, but as the mere positive agreement of the two 
 individual States. On the other hand, the British Minister, 
 while, as we have observed, he admitted the too frequent 
 instances of unjust violence on the part of privateers, 
 never once relaxed in the loud assertion of our Belligerent 
 claims, to prevent the Dutch from pretending, under false 
 interpretations of the treaty, to carry the colonial trade of 
 France. ' His Majesty,' says one of those dignified memo- 
 rials, ' is at war with the most Christian King ; he cannot 
 ' hope to get out of it with safety, or obtain a speedy and 
 ' lasting peace, which is his Majesty's sole aim, if the 
 ' Princes who have declared themselves neuter, instead of 
 ' contenting themselves with trading as usual, without any 
 ' risk, assume a right of carrying on that trade with the 
 ' King's enemies, which is not allowed them in times of 
 ' peace. His Majesty sees with pleasure the trade of his 
 
 * See Sir Joseph Yorke's Memor. to the States Gen. 22d Oct. 1758. 
 An. Reg. 1758. 
 
 ' neighbours 
 
78 THAT FREE SHIPS [Prop. I. 
 
 ' neighbours flourish, and would behold its increase with sa- 
 ' tisfaction, if its prosperity were not repugnant to this 
 ' primary law.' * 
 
 In those days, when the spirits of men were hottest 
 against us, there came out at Amsterdam another Exposition 
 upon the subject of the disputes between Holland, as 
 Neutral, and Great Britain, as Belligerent. But, unlike the 
 former Exposition on the part of Prussia, though the causes 
 of complaint were precisely the same, such as the interrup- 
 tions to trade; by unfair detentions, illegal sentences, and 
 the long delay of justice, yet, not one of the objections is 
 founded upon the falseness of the. principle, as founded in 
 nature, of our conduct as Belligerents ; but the whole is 
 confined, either to cases of improper conduct in the pursuit 
 of an unopposed natural principle, or to a discussion of 
 particular rights under the Maritime Treaty.f 
 
 In those days, also, came out a Memoire Instructif ot\ the 
 part of France to Holland, of the precautions which its 
 merchants ought to observe, in order to avoid falling within 
 the scope of the ordinances of the marine, relative to 
 prize. In the preamble to this memorial it is stated, that 
 every power at war is naturally attentive to prevent its 
 enemies from carrying on a free trade under the protection 
 of Neutral colours ; and aihongst other things, Article 7th, 
 if Dutch ships carry any goods or merchandise of the 
 growth or manufacture of the enemies of France, they shall 
 be esteemed good prizes, but the ships shall be discharged. 
 In Article 8th it is stated, that the passports given in Hol- 
 land to a Dutch ship shall serve for that voyage for which 
 it is given ; that is, to go from the place of its loading to 
 
 * See Sir Joseph Yorke's Memor. to the States Gen. 22d Oct. 1758. 
 An. Reg. 1758. 
 
 \ Summary Exposition of the Case of tlie Dutch Ships, Amsterdam ; ab- 
 ridged, in the case of the Dutch ships considered by Sir James Marriott, 
 
 35 to 47- 
 
 that 
 
Sec. II.] MAKE FREE GOODS. 79 
 
 that of its destination, and from thence to return to Hol- 
 land. If it should make any other intermediate voyages 
 with that passport, it shall be declared a good prize.* 
 
 It was in this war also that many of the foregoing prin- 
 ciples and much of the historical deduction was drawn up 
 with force and perspicuity, by the present Earl of Liver- 
 pool,f in a discourse, which, being in every body's hands, 
 need not here be mentioned more particularly than to shew, 
 in conjunction with these last instances, on the parts both 
 of Great Britain and France, how every thing in the di- 
 plomatic history of Europe conspires to prove the uniform 
 assertion, whenever opportunity arose for its discussion, of 
 the principle, taken as such, in all times and by all countries. 
 The single exception of Prussia, in 1752, to which we have 
 adverted, could never be counted in the scale, from the very 
 circumstance of its being single ; but the conduct of that 
 King, which was founded upon the new claim, having, as 
 we have seen, been changed, and totally relinquished, the 
 claim itself must be considered as having been relinquished 
 along with it, and the rule stands thus confessedly in history, 
 even without that single and solitary exception. 
 
 I think we may, with confidence, appeal to the Professor 
 himself to point out whether these assertions are not proved 
 from the history of the world, from the earliest known 
 time to the days of Hubner, or, at least, to the sera of the 
 Exposition des Motifs; since, as has. before been adverted 
 to, he himself confesses, that this was the first time that the 
 rights of Neutrals were ' completement discut6s.' { But not to 
 confine him to the strictness of this confession, we may say, I 
 think, without runniilg the hazard of contradiction, that 
 
 * Summary Exposition of the case of the Dutch ships, Amsterdam ; ab- 
 ridged, in the case of the Dutch ships considered by Sir James Marriott, 
 
 35 t° 47- 
 
 t Discourse on the Conduct of Great Britain with respect to Neutral 
 Nations. { Schlegel, 8. 
 
 there 
 
80 THAT FREE SHIPS [Prop. I. 
 
 there is nothing in his work, at least, which militates 
 against our position, except some very unqualified assertions, 
 wholly without proof, and without an attempt at proof; 
 which can only, therefore, be attributed to his not properly 
 distinguishing the things agreed on, by particular treaties, 
 and the things which all States have a right to claim, and 
 do actually insist on, without any reference to treaty, or 
 even to custom. 
 
 That this is not too overstrained a charge against both 
 Schlegel and Hubner may, I think, be collected from the 
 sense which they put upon what they call the conventional, 
 or the positive law of nations. This, throughout their works, 
 is uniformly and invariably applied to the stipulations of 
 treaties, which, in every light, appears to me erroneous. 
 For, not to mention that it is sometimes applied where the 
 case can by no means warrant it, supposing them to be other- 
 wise right ; I mean where the treaties bear no sort of pro- 
 portion to the number of States that obey a different law ; 
 the phrase would still be inaccurate, although by far the 
 greater number of the States of the world ' were to become 
 parties to the treaty. 
 
 This may be collected from the forcible import of the 
 phrase. Law of Nations ; a term so extensive, so abstract, and 
 of such intrinsic weight, that it implies the duty of all na- 
 tions, in all times, places, and circumstances, independent 
 of any change of situation, and, consequently, of the rela- 
 tions of peace and war. By which last, we mean not that 
 some of those duties may not be suspended by the terrible 
 operation of ithe state of war, but that when peace returns, 
 the law shall also return of itself, by the common course and 
 intendment of its institution, and not by the intervention of 
 any new compact, treaty, or agreement. 
 
 This character of a law of nations, under what is called 
 the primitive or natural law, is matter of every day's ex- 
 perience ; since the laws of Nature and Reason, which are its 
 
 foundations 
 
Sec. II.] MAKE FREE GOODS. 8l 
 
 foundations, can never be altered, when left to themselves, 
 under any change of place or time. But neither do I 
 see that this character can in the least be altered, merely 
 because it is conventional; for the force and definition of 
 the term law, taken as such, must be equally extensive and 
 precise, whatever its foundation or its obligatory powers 
 may be. Once admit, therefore, that it is law, and nothing 
 short of the power which gave it existence is equal to the 
 task of its destruction : its authority, whi'k it lasts, must al- 
 ways be equally extensive, uniform, and certain, and not likely 
 to be affected by adventitious circumstances, springing from 
 the arbitrary or capricious conduct of one, two, or three of the 
 States that joined originally in its constitution. But, above 
 all, it must ever continue to bind the whole of that society of 
 States which originally stipulated to be bound by it ; for if it 
 were otherwise, I do not see how it is possible to use the term 
 itself, of Law of Nations, with any sort of propriety or ac- 
 curacy, or, what is more, with any chance of effect in point 
 of argument, or pleading before any tribunal of the Law of 
 Nations. For that law, whether founded in nature and 
 reason, or simple convention, is that which, emphatically, 
 may be relied on in point of plea, before a court of Law of 
 Nations. It is those courts that are alternately to decide 
 upon claims, and resistance to claims, according to law ; 
 and the conventional, once established, is acknowledged there 
 as of equal force and authority with the natural law. The 
 authority of treaties is also there acknowledged between 
 those States that have made them. But how a British sub- 
 ject, for example, where no British treaty exists, can be 
 concluded by those courts, on a point of mere institution, 
 on the ground that Russia, Sweden, and Denmark, in con- 
 junction, we will suppose, with all the other States of the 
 world, have formed treaties together, it would puzzle the 
 understanding to conjecture. In fact, those courts, in ques- 
 tions of right, founded upon treaty, look alone to the trea- 
 
 G ties 
 
82 THAT, FREE SHIPS [Prop. I. 
 
 ties themselves for the discovery of those rights; but for 
 rights founded in the law itself, whether conventional or 
 natural, they look either to natural sanctions or human insti- 
 tutions. In the first case, they look to the Law of Nature ; 
 in the last, they look to the fact ; and if the fact is not to be 
 discovered, even without the existence of treaties, in uni- 
 versality or uniformity, but with great and? various excep- 
 tions, the law itself is wholly at an end. Whenever, there- 
 fore, we attempt to set up a right, or to repel a claim, upon 
 the ground of ike Law of Nations, we mean (or we can 
 mean nothing) that there is, in the very force of the term, 
 an authority so implicitly acknowledged by the party with 
 whom we are reasoning, that it is not necessary to go farther ; 
 so that the only reply that can be made is, not to deny his 
 obedience to the law, but to question the fact of its being 
 law. 
 
 Now, the conventional law of nations, deriving autho- 
 rity from universal custom, it is very material indeed that 
 the party reasoned with should have complied with that 
 custom, or the matter must instantly drop, as ' res inter alios 
 acta.' It is in this, as we say, wholly unlike the primitive Law 
 of Nations, which, as was before observed, must bind every- 
 one, whether he chuse to deny it or not, because its force, 
 power, and divine authority must ever be the same ; and 
 any attempt to withdr.aw from it may be rebellion indeed, 
 but never can be an abrogation ; the party withdrawing en- 
 tering into the class of common barbarians'. But, if what 
 is here called Conventional Law was never submitted to, in 
 point of fact, by all the States which, it is said, are its sub- 
 jects ; if only part of them have submitted to it ; if, besides, 
 from the course of human events, even this universal con- 
 tract (supposing it to be universal) must ever be liable to be 
 trenched upon, weakened, and diminished, in the number 
 of its contracting parties ;. nothing with the force of Law of 
 
 Nations 
 
Sec. II.] MAKE FREE GOODS. 83 
 
 Nations can ever be expected from so feeble, fluctuating, 
 and uncertain a state. 
 
 Now, to apply these principles, we may observe, that 
 there are some certain customs agreed upon by all the na- 
 tions of Europe, and springing out of that similarity of man- 
 ners, origin, and religion, which characterizes them, or 
 derived from the intimacy and duration of their connections 
 together, which, from being invariably and universally ob- 
 served, although not the effect of the mere Law of Nature, 
 have come to have the force and authority of law. These, 
 whether they were the silent growth of time, the effect of 
 Christianity, or originally the offspring of universal com- 
 pact, are never, or scarcely ever, known to change, what- 
 ever exigency of affairs may fall out ; and these, therefore, 
 may very properly be called the Conventional Law. Of this 
 nature are — the right of sending ordinary or resident Am- 
 bassadors to one another's courts, which cannot now be 
 refused without an . affront ; the respect shewn to flags of 
 truce; the abstaining from putting prisoners to death, or 
 their reduction to slavery ; the prohibition of the use of poi- 
 soned weapons ; the respect shewn to particular signs and 
 ceremonies, such as appear in taking possession of newly 
 discovered countries; the abstaining from contraband in war; 
 many of the laws regarding salvage and re-captures at sea ; 
 the respect shewn to an actual blockade, or an order of em- 
 bargo : all these, and others, whether originally the growth 
 of the treaties of all nations or not, are, in point of fact, ac- 
 knowledged by all nations, in all times and places, some of 
 them in peace, some of them in war, and all of them, whe- 
 ther peace or war intervene not ; so that, although war 
 may suspend some of them for a time, their authority in- 
 stantly returns on the renewal of peace, without having 
 recourse to new conventions. 
 
 Here, then, is conventional law; but I do not see how, 
 in the nature of things, because a proportion only of the 
 
 G 2 States 
 
84 THAT FREE SHIPS [Prop. I. 
 
 States of Europe (allow it to be a large proportion) have 
 chosen to establish certain points of compact together, 
 which are not only not assented to, but protested against, 
 by others, and those points pure matters of agreement, not 
 grounded upon the Law of Nature, but, perhaps, in dero- 
 gation of that law : I say, I do not see that the thing agreed 
 upon by these compacts can ever assume the dignity and 
 power of binding all nations, except upon the supposition 
 that a few, or any number, of independent Sovereigns have 
 a right, by treaties amongst one another, to bind other So- 
 vereigns equally independent. This, at least, can never 
 be the argument of those who defend the neutral preten- 
 sions ; since this would be neither more nor less than to 
 fall into the very faults of which they accuse the more 
 powerful Belligerents ; and, indeed, for obvious reasons, 
 can never be defended, either by them, or any other per- 
 sons, by any turns of ingenuity, or any force of reasoning 
 whatsoever; and, therefore, we will not waste time in the 
 discussion. 
 
 But farther, if even all the States in Europe were to agree 
 to any particular thing by treaty ; though the point agreed 
 upon would have as much force, while the treaty lasted, as 
 any law whatsoever; yet, according to our principles, that 
 force would not be derived from the law, but the compact. 
 For we must always bear in mind, that it is the important 
 circumstance of being superior to every power, except that 
 which formed it, that forms the very character and essence 
 of a law. Law, then, when once established, must exist 
 in all times and places, be superior to the adventitious cir- 
 cumstances of peace and war ; and, while it endures, must 
 endure with undiminished force, clearness, and authority. — 
 This, however, can never be the case with matters of 
 treaty, even although the parties to it should be no fewer 
 than all the nations of Europe ; because, exclusive of the 
 circumstance that every member of the compact is himself 
 
 the 
 
Sec. II.] MAKE FREE GOODS. 85 
 
 the judge of its interpretation, the very nature of treaties 
 is to exist no longer than during the continuance of peace 
 and friendship between the contracting parties ; which 
 words no longer do not mean that they revive of them- 
 selves when peace is re-established, but that, by the very 
 act of war, they are annihilated, not suspended, and can 
 never be renewed, except by some formal stipulation in the 
 new treaty of peace. Hence, in every treaty of peace, 
 the contracting parties are careful to insert what of their 
 antient treaties shall again be put in force, what modifi- 
 cations they shall undergo, what privileges shall be pre- 
 served, and what claims asserted. But if this is so, as the 
 fact of almost perpetual war in Europe, among some or 
 other of its nations, is too true for contradiction, observe 
 how it will affect even that conventional law of nations, as 
 it is called, which, for the sake of the argument, we sup- 
 pose to have been solemnly acceded to by all. Should two 
 nations go to war, the law is instantly abrogated as to 
 them, and will require a new compact, after war is over, to 
 ascertain whether it is still the law of all nations. Should 
 more than two go to war, the breach in the law is still more 
 extended. Should the Belligerents be united by alliances 
 with many other nations, (and such is the plan upon which 
 Europe has long proceeded, that it is now scarcely possible 
 for any two of the principal powers to appeal to the sword, 
 without drawing along with them almost all the rest,) then 
 this law is for ever at an end, as far as it depends upon 
 itself, between all those nations that are ranged on the one 
 side, and all those that oppose them on the other. But 
 should it happen that some of the belligerent nations should 
 change sides during the course of the war, (of the possibility 
 of which we have at this moment but too many melancholy 
 proofs), then the abrogation will be extended, not only be- 
 tween the confederates on the one side and those on the 
 
 other. 
 
86 THAT FREE SHIPS [Prop. I. 
 
 other, but between those themselves, who, at first, had 
 been ranged under the same alliance; in other words, be- 
 tween the very confederates. And thus, if the stipula- 
 tions of treaty can be called the conventional law of Eu- 
 rope, because entered into even by all Europe, (a circum- 
 stance absolutely essential to the very term itself), there is 
 scarcely a year in which new conventions must not be 
 made by some one nation or other, to ascertain whether the 
 conventional law is in existence or not. 
 
 But where the fact actually is, that only a part of the 
 States of Europe have entered into the treaty; and when 
 the whole history demonstrates that many have ever refused 
 to form such a treaty ; then, beyond all doubt, and upon 
 the mere signification of terms, the particular thing stipu- 
 lated for can never acquire the force of a law of nations, 
 for the plain reason, that nations have never enacted such a 
 law. 
 
 But an objection here meets us, which has caused per- 
 petual discussion whenever the question has been started, 
 has often divided opinions, and filled the whole subject 
 with doubt. As nations, it is said, are all in the same 
 state of independence one towards another, and own no 
 superior sovereign to decide upon their differences, or ex- 
 pound the Law of Nature which governs them ; they have 
 had recourse to the stipulations of contract with one ano- 
 ther, in order to ascertain more precisely what it is that 
 is thus writ down in their duty by the law which they ac- 
 knowledge. Consequently, whatever doubts might be 
 entertained before any treaty was made on a particular 
 subject, the moment those doubts have been deprived of 
 their uncertainty, by the express provisions of settled 
 compact, the law stands disclosed in all its truth, may 
 ever after be reasoned upon, and must be obeyed. Hence 
 it is that in treaties we look for the law ; and if the ma- 
 jority of nations, or of treaties, have settled to pursue or 
 
 abstain 
 
Sec. II.] MAKE FREE GOODS. 87 
 
 abstain from any particular line of conduct, the inteipre- 
 tation of the law of nations is then rested upon a sure 
 foundation; and hence if a considerable majority of trea- 
 ties determines upon any particular point, it instantly ex- 
 plains -what ought to be the law, and shall become the 
 general rule where there is no treaty to meet it with con- 
 trary stipulations.* 
 
 On the other hand, it is said, that so far from finding 
 the law in the stipulations of convention, those stipula- 
 tions are expressly introduced, in order to shew that the 
 law in particular instances is renounced. In vain, says 
 the argument, do you contend for the observance or the 
 existence of a Law of Nature, or an universal custom, if 
 it is necessary to define it by express agreement. Those 
 laws must be engraven in the heart of man, or at least 
 be perfectly familiar in the customs of man ; and there- 
 fore when we find whole societies entering into compact 
 with one another, concerning any particular path of con- 
 duct, it must be with a view, in departing from what is so 
 well known, to point out exactly to what degree it shall 
 be abandoned. An agreement therefore to abide by any 
 given mode of conduct, is in direct derogation, not in 
 affirmance of the law, whether conventional or natural. 
 
 Perhaps the truth will lie between these two opposite 
 plans of reasoning : and probably it will not be very 
 difficult to shew that both are in part, neither of them 
 wholly in the right ; since nothing can be more true than 
 that nations have made treaties both to confirm aiid de- 
 rpgate from the law ; but as long as there is this doubt 
 
 * Schlegel, 56. Puis done que les traites, en vertu desquek la mar- 
 chandise est couverte par la neutralite du pavilion, forment par rapport aux 
 autres une majorite si considerable, on doit legitemement les envisager 
 comme contenant la regie generale, et ceuxci seulement comme une excep- 
 tion : d'ou il risulte que cette rigle qui d'ailleurs est, comme on t'a mi, Jondie 
 sur le droit des gens naturel doit s'appliquer aux etats avec lesquels il n'existe 
 point des traitis contraires. 
 
 and 
 
88 THAT FREE SHIPS [Frop. I. 
 
 and difficulty concerning them, it shews how futile are 
 all allegations that the law is conclusively to be drawn 
 from either, if either is considered without proper en- 
 quiry into accompanying circumstances, without modi- 
 fication and without reserve. Amply therefore does it 
 shew with what little reason the dry letter of treaties (in 
 whatever number they may be brought forward, either 
 by the one party or the other) is a conclusive indication 
 of the abstract and intrinsic law. There are two sorts 
 of treaties, says Grotius ; one by which we stipulate 
 for the observance of things ordained by the Law of 
 Nature ; the other, by which we add something to that 
 law. As an exemplification of the first part of this ob- 
 servation, he says, that men having quickly forgotten 
 that rule of Natural Law by which they are taught that 
 there is an original relationship between them, were found 
 to have recourse to treaty, in order to obtain the jus hos- 
 pitii, and the jus commercii quatenus ista sub jure na- 
 tural! veniunt.* As an instance of the second, amongst 
 others, he reckons equal treaties of commerce, and of 
 common cause in war.f Vattel, after him, pursues the 
 same division ; J and the inspection of the different pro- 
 visions of a variety of treaties in Europe will prove how 
 difficult it is to collect from the mere circumstance of 
 making a treaty, whether the parties have renovated and 
 given active vigour to a torpid Law of Nations ; or enacted 
 something unknown before, and in addition to that law. 
 This can alone be collected with truth, from a free in- 
 vestigation of the thing itself stipulated, which thus re- 
 turns .to its abstract state, wholly independent of treaty, 
 and liable to be canvassed precisely with the same free- 
 
 • D. Jur. B. et P. 2, 15, 5, 3. f M. 2, 15. 6, i. 
 
 J Droit des Gens, 2, 12, 169, 172. 
 
 dom, 
 
Sec. II.] MAKE FREE GOODS. 8g 
 
 dom, and according to the same rules which governed it 
 before it took its station under the class of compact. 
 
 Of things which existed in the Law of Nature before 
 they ever became objects of treaty, and which must ever 
 exist there, though all treaty was to be annihilated, the 
 following are some of the most remarkable : — All general 
 stipulations of peace and friendship, often necessary 
 amongst those nations who formerly thought that where 
 there was no treaty, there was no friendship ; and in the 
 case of ill treatment by the Spaniards in the seventeenth 
 century, actually quoted by the English under Cromwell 
 as their more immediate protection : * all the stipulations 
 against the entertainment and protection of pirates, which 
 form an article of almost all the commercial treaties of 
 Europe : all promises to deny permission to enemies to fit 
 out hostile armaments in the ports of a Neutral, — which 
 fill the maritime treaties from the oldest time to the 
 present. All conditions also, whefe the ships of friends 
 are forced into port by stress of weather, or the pursuit 
 of pirates, or the enemy, that they shall be received with 
 humanity, which form an article in the conventions of 
 the most modern times : f in like manner all conditions 
 that they shall receive assistance, and not be plundered 
 while under the misfortunes of shipwreck (which one 
 would think would be pointed out by the common feel- 
 ing of breasts the most obdurate) : all stipulations when 
 
 * Upon the murder of Charles I. the Spaniards treated some English 
 at Malaga with the greatest hardship and indignity, at which the govern- 
 ment itself was supposed to connive. The Council of State, in their me- 
 morial to the Spanish ambassador, grounded their right to better treat- 
 ment upon the 1st, 6th, and 7th articles of the existing treaty vifith Spain ; 
 which stipulated nothing more than that they should ' mutually shew good 
 ' offices, and abstain from force and wrong doing.' i Thurl. 1 76. 
 
 t See treaty between America and Spain, 20th Oct. 1795- — Debret's 
 State Papers, 40. 
 
 merchants 
 
90 THAT FREE SHIPS [Prop. I. 
 
 merchants and clerks are admitted into a country as re- 
 sidents for the purposes of trade, that they shall comport 
 themselves with deference to the laws : * all general en- 
 gagements, while neuter, not to assist our enemies with 
 comfort and advice ; under which, as we contend, is in- 
 cluded a promise to abstain from the carrying trade : these, 
 and other provisions of the like nature, flow immediately 
 from the obvious rules of justice, engraven on every man's 
 mind ; and standing alone would be strenuously supported 
 by the courts of law in civilized countries, though they had 
 never been fenced 'about with the sanctions of treaty, or 
 were bereft of their support after having enjoyed them. 
 
 On the other hand, a vast variety of stipulations con- 
 cerning positive duty accost us in the perusal of almost 
 every convention in the chanceries of Europe, which no 
 research into the Law of Nature, no study of conventional 
 institution, could ever of themselves point out. Such are 
 all commercial regulations within the jurisdiction of the 
 country visited : the numbers 'in which foreign ships are 
 allowed to enter particular ports : all ceremonies, and 
 partial acknowledgments of sovereignty, allowed by 
 some countries and denied by others : particular specifi- 
 cations of prohibited goods bearing harder upon one coun- 
 try than another : agreements to confiscate the property of 
 friends on board the ships of enemies, which was formerly 
 long objected to, and has now long been allowed : the 
 necessity for particular muniments, stich as passports 
 and bills of lading, in order to ascertain the property in 
 a ship : the mode in which the right of search on the 
 high seas shall be exercised, by three, four, or five of the 
 crew, or more at pleasure : all subsidiary or auxiliary trea- 
 ties by which a part of its force is furnished by one 
 
 » Treaty between England and Russia, Feb. 1797. 
 
 country 
 
Sec. II.] MAKE FREE GOODS. 9I 
 
 country to another, without drawing on a war with that 
 against which it is to serve. These, and many more, 
 which every man's particular observation can almost sup- 
 ply, may all be considered if not in derogation of, yet 
 certainly as not immediately ordained by the law of na- 
 tions. Many conditions besides are in the nature of pure 
 compensations, in order to secure as much advantage on 
 the one hand as is parted with on the other; and where- 
 ever a price is paid for its allowance, there must at once 
 be an end of all argument concerning its intrinsic power 
 as a Law of Nations. And thus we see that it is in vain 
 to contend that any one point of the acknowledged duty 
 of nations flows from this or that foundation of its laws, 
 merely from the naked fact that it is provided for by treaty. 
 The only one in which it can fairly be argued that the sti- 
 pulations contained are evidence of the affirmance of the . 
 law, is where it is expressly stated so to be. Where na- 
 tions agree in terms, that any general principle they are 
 about to lay down as a guide for the different articles of 
 their compact is a principle of law, and therefore to bind 
 and interpret what they are about to stipulate, — such a 
 treaty is very conclusive evidence of what the parties at 
 least thought of the law, although the point itself is en- 
 tirely open to the examination of other parties. And it 
 is in this as in our acts of parliament which are often in 
 affirmance, often in derogation of the common law ; but 
 are never evidence in themselves that they are either the 
 one or the other, unless their preamble states them so 
 to be. Where nothing is mentioned, the fact remains 
 to be tried by its own intrinsic merits. 
 
 The provisions then of treaty being made both for 
 things evidently taking their foundations in nature ; for 
 those which are as evidently of positive institution ; and 
 for those also which may be considered as belonging to 
 
 neither, — 
 
92 THAT FREE SHIPS. [Prop. I. 
 
 neither, — nothing with precision can be collected concern- 
 ing them, but every thing must be canvassed, distinct 
 from all its diiferent bearings and relations ; and it must 
 stand by itself as if no stipulation had ever been made, 
 no compact framed for its better existence. 
 
 These objections to that doctrine which states the en- 
 gagements contracted by treaty to be the same thing with 
 the conventional Law of Nations itself, appears insuper- 
 able to those who wish to conduct themselves with cer- 
 tainty and clearness through the broad field of laws.* 
 
 Now all these absurdities, difBculties, and entangle- 
 ments, may at once be avoided ; the whole labyrinth laid 
 open, and every doubt removed by the simple reference 
 of the point to its right and true foundation, the mere 
 transitory authority of agreement between those nations, 
 and those alone, which have contracted together. 
 
 With this for our guide; the duty of nations in the 
 
 *, Hubner himself, in a variety of passages, is careful to point out that 
 treaties can Only bind the particular nations that frame them. Speaking 
 of the treatise of D'Aireu, he imputes to it as a fault, that it is confined 
 to the maritime laws of Spain. It is true, says he,, that general principles 
 are sometimes sought for, and even treaties sometimes cited ; but these are 
 always Spanish treaties.* Again, in discussing the eases wherein neutral 
 vessels are not seizable, he says, ' ' An abuse will not make a law ; I will 
 not even here examine the articles of different treaties of commerce and 
 navigation, by which some nations ont renonci i une partie de leurs droits 
 — chaque puissance est libre de s'arranger la dessus, comme elle le juge 
 apropos, mais elle ne doit pas pretendre que ses engagemens fassent une loi 
 pour d'autres, ou qu'ils obligent les peuples souverains et independans qui 
 ne sent point parties contractantes?'^ Yet Schlegel, as we have seen, does 
 not hesitate to say, that because a considerable majority of treaties have 
 determined upon a point, that point shall become the general rule for those 
 who have made no treaty against it ; nor does the circumstance of founding 
 the rule in question before him upon the Law of Nature make any 
 difference, because a necessity for doing So makes no part of his assertion ; 
 and indeed would be wholly unnecessary, because a Law of Nature ought 
 to be obeyed, whether confirmed by treaty or not. 
 
 • Hub. Pref. 19. + Id. 128, 140, 176, 177. 
 
 circuiji- 
 
Sec. II.] MAKE FREE GOODS. 93 
 
 circumstances specified becomes instantly simplified, 
 marked, and clear. No clashing of interest, no contra- 
 riety of doctrine, no circuitous reasoning from doubtful 
 customs, or ambiguous terms, are then so likely to arise 
 and obscure the fair line of reciprocal obligation ; but 
 .every thing is at once referred to the short letter of the 
 contract, which in most cases decides as soon as consulted. 
 
 Not so at all times is it with the conventional, nor even 
 the Natural Law ; but infinitely less so when an attempt 
 is made to confound treaties with those laws. Amidst 
 that confusion, I see no rule for courts of justice, or their 
 suitors to follow ; not a gleam of light arises to conduct 
 us through the gloom; and then indeed the code of even 
 this civilized age will be liable to the aspersion thrown 
 by Hubner upon the Consolato del Mare; namely, 'ce 
 ' ne soit qu'un amas, ou un r6cueil assez mal choisi, de 
 ' loix maritimes et positives et d'ordonnances particuli6res 
 ' du moyen %e ou des siecles peu 6clair6s.'* 
 
 Notwithstanding these obvious and, as it should seem, 
 invincible objections, Hubner and his countryman, Schlegel, 
 have yet chosen . to consider the Law of Treaties as the 
 Law of Nations, in almost uniformly styling it the con- 
 ventional law. In the work of the former, he states the 
 following definition to be an Idie du droit des gens cori- 
 ventionel. ' L'assemblage . des regies obligatoires, fofidees 
 ' sur les engagemens pris par des Etats souverains, ou par 
 ' leur chefs, et faites pour diriger la conduite r6ciproque 
 ' des parties contractafites' \ And he explains what is 
 meant by engagement in the part introductory to this defi- 
 nition, where he says, ' Nous en traiterons maintenant 
 ' suivant le droit des gens s6condaire et conventionel, ou 
 ' s61on la t6neur des trait6s de paix, d'amitid d'alliance, de 
 
 • La Sais. des B. Neut. Disc, prelim, p. 13. f I<1' 'o™- 2, p. iji- 
 
 ' commerce 
 
94 THAT FREE SHIPS [Prop. I. 
 
 ' commerce, ou de navigation, qui subsistent entre plusieurs 
 ' puissances modernes.'* In another part he says, 'Ces en- 
 ' gagemens se prennent par le moyen des contrats poli- 
 ' tiques qu'on nomme trait^s, conventions ou capitula- 
 ' tions ; ' t so that the meaning of the definition, with which 
 we should not be disposed to quarrel without the expla- 
 nation, is by that explanation rendered, according to our. 
 principles, wholly unsatisfactory ; since nothing seems 
 clearer from the language itself of plusieurs puissances and 
 parties contractantes, that if treaties are in question, they can 
 only bind those several States and those contracting parties. 
 
 After all, however, it would perhaps be not of much 
 import, if this confusion of terms was left as it is, open to 
 every man's observation, if all discretion upon the point 
 was not taken away in a treatise like this from the use ^ 
 which is everywhere attempted to be made of it. For 
 if we grant the definition with its explanations, as con- 
 tended for, the supporters of innovation say that they 
 struggle for nothing more than what has Long been settled 
 by treaties between a vast number of the States of Europe ; 
 and consequently for nothing more than what ought to 
 be considered as the law of Europe.J It is therefore of 
 extreme importance that mankind should not be deceived 
 by an inaccuracy of terms, which, if not stripped of their 
 fallacy, and placed in their true light, may have a danger- 
 ous as well as a most important effect on the theory of 
 jurisprudence, on the conduct, and even on the fate of 
 nations. At the same time, however, it , is incumbent 
 upon those who dissent from this account of the con- 
 ventional law, to inquire into the reasonableness itself of 
 what is asserted, (whether law or not), and to ascertain 
 
 * La Sais. des B. p. 130. -f Id. p. 133. % Schleg. 56. 
 
 whether 
 
Sec. III.] MAKE FREE GOODS. 95 
 
 whether it is true, in point of fact, that the principle be- 
 fore us has really been consecrated as the general prin- 
 ciple of Europe, as it can be discovered in the treaties 
 which have actually -been made. This therefore will be 
 the object of the next section. 
 
 SECTION THIRD. 
 
 THE QUESTION AS IT DEPENDS UPON TREATIES. 
 
 THE Danish civilians, in supporting the maxim be- 
 fore us, in addition to such arguments as they have drawn 
 from reason, rely mainly upon what they assert to be the 
 law of Europe as found in its various conventions. 
 Hubner, for the most part, takes up this law within the 
 last century ; but Schlegel extends it to 1642, the com- 
 mencement assigned by Busch, in his Collection of Treaties. 
 At the same time, thinking that it would augment the 
 means of the support he meant to give to the question, he 
 brings forward a treaty of our Edward III. with Spain in 
 1351, and of Charles I. with Portugal in 1642. 
 
 The treaties of Europe form so vast a part of the rule 
 which governs the conduct of each of its States, have 
 swelled to such an enormous size in point of number, 
 contain so many various, and sometimes such contradic- 
 tory stipulations, and open a field so immense for discus- 
 sion by way of analogy and comparison, that it is not 
 an easy thing to settle what general principles may be 
 collected from them, except by a thorough and accurate . 
 inspection of the whole. Why Hubner, in canvassing a 
 great principle of law, of the very first consequence to all 
 maritime States, confined himself to some seven or eight, 
 all but the Pyrenean treaty, within the last hundred 
 
 years. 
 
96 THAT FREE SHIPS \Prop. I. 
 
 years ; or why Schlegel should content himself with the 
 •periods adopted by Busch, can only be explained by the 
 obvious reason that such an insulated number fell in best 
 with the object they each had in view ; namely, the as- 
 sertion of a particular assumed point. They argue, as it 
 were, a priori; they assert a particular proposition, and of 
 course give that shape to their enquiries which best suits 
 what they have asserted. Denying as we do the power 
 of any number of treaties taken per. se, to decide upon 
 the law of Europe, or in any degree to influence more 
 than the conduct of the contracting parties ; it is of little 
 consequence to this disquisition how the matter may turn 
 out to have been thus settled. But for the better under- 
 standing and more perfect knowledge of the real state of 
 the case, the investigator would do ill, in an enquiry of 
 this kind, to stop short at any particular period, or be 
 content while any one commercial treaty remained unex- 
 plored which it was at all within the compass of his power 
 to examine. 
 
 Before we engage however in this enquiry, ,it will pro- 
 bably be not amiss to pause upon such diplomatic exam- 
 ples as the Danish civilians have thought fit to produce ; 
 for, although the order of our research may thereby be 
 almost inverted, and certainly deranged, yet as what was 
 actually determined in those examples demonstrates that 
 inferences are drawn from them which they will by no 
 means warrant ; we collect a circumstance of no small 
 importance in our investigations, either that our opponents 
 again go beside the fair question before us, or that their 
 conclusions are all of them false in point of argu- 
 ment. 
 
 The first treaty mentioned by Hubner, is that between 
 France and Denmark, 23d August, 1743, and is honoured 
 with all his praises. It is composed, he says, in a spirit 
 
 which 
 
Sec. III.] MAKE FREE GOODS. 97 
 
 which redounds not more to the justice than the intelli- 
 gence of the contracting powers. It asserts and confirms, 
 in a manner the most positive, that great general maxim 
 of natural law upon the subject of neutral navigation and 
 commerce ; that it ought to remain upon the same footing 
 as in time of peace, without any other modification than that 
 which arises from the nature of neutrality itself* 
 
 There is therefore at least some modification by his 
 own shewing ; and that by no means unimportant in its 
 kind, being neither more nor less than what will make 
 the whole diiference ; namely, that which does arise from 
 the nature of neutrality. If it is the nature of such a 
 State not to interfere in war ; not to supply men to 
 belligerent traders, in the place of those who fight in 
 belligerent fleets ; the question is already determined 
 between us. The liberty of commerce therefore, as 
 thus stated, is palpably nothing more than that liber- 
 ty which, as we have shewn in preceding parts of this 
 work, was in older times denied without the inter- 
 vention of treaty : that liberty also which half the ex- 
 isting conventions of Europe denied in the very moment 
 when the treaty in question was framed, in all those arti- 
 cles which specified that though free ships might make 
 free goods, yet that goods of neutrals found on 
 board the ships of enemies, should be confiscated along 
 with the ships as prize.f If this however was even not 
 so, what, under his favorite stipulation, 'that trade should 
 ' be free as in time of peace,' becomes of the right to the 
 colonial carrying trade, which had never been enjoyed 
 during peace .? Yet this is equally an object of neutral 
 
 * Hub. torn. 2, p. 139. 
 
 t See the existing treaties, ' where free ships, free goods ' is stipulated ; 
 for the one always follows the other. 
 
 H claim 
 
98 THAT FREE SHIPS \Prof. I. 
 
 claim if the belligerent will consent to it, though only, 
 to use his own expression, ' pendant la guerre, et a cause 
 de la guerre.' * 
 
 Upon the inspection of the treaty, even in the articles 
 which Hubner has furnished, we find that all it states in 
 favour of neutrality is the power of sailing at will from 
 their own or neutral ports to the ports of the enemy of 
 either, and from enemies' ports to enemies' ports, without 
 trouble or hindrance, in the same manner as before the 
 war. Blocked up ports are defined to be those which 
 cannot be entered without manifest danger ; and it is pro- 
 vided, as it had before been provided by almost all com- 
 mercial treaties for an hundred years, that no men or 
 ships should be forced under an embargo to take part in 
 the war against their will. At the same time it is re- 
 markable, that not a, syllable is said of free ships making 
 free goods ; the point in dispute, although the example of 
 all surrounding States shewed the necessity of noticing 
 it as an article of treaty whenever desired by the con- 
 tracting parties. 
 
 There is nothing therefore in this boasted treaty so ho- 
 nourable to the justice and the intelligence of those who 
 formed it, and so ample an illustration of the true Law of 
 Nations with regard to commerce.t which would not almost 
 be granted by every commercial treaty. If we except thei 
 words ' trading as in times of peace,' it was very little 
 different from the treaty then actually existing between 
 Denmark and ourselves ; which especially provided that 
 the parties might trade with the enemy in time of war. 
 Yet that trade, as might be shewn from other parts of the 
 treaty, was not meant to extend to the right of carrying 
 
 * See page 14. 
 
 t C'est ainsi qu'en decident le droit des gens universal et le xxme article 
 du traite, &c. &c. Hub. 2, 139. 
 
 enemies 
 
Sec. III.] MAKE FREE GOODS. 
 
 99 
 
 enemies' goods : * a right which, according to our prin- 
 ciples, was always excluded by the generally received and 
 acknowledged duties of neutrality. 
 
 I have been the longer in this examination, because it 
 seems to be the treaty most strenuously relied upon by 
 Hulner as a pattern of all that he wishes. But as nothing 
 is said of the carrying trade at all, and (whether to exer- 
 cise or to abstain from that trade be a natural right or 
 not) as it is notorious and beyond all contradiction that, 
 where nothing was stipulated in terms concerning it, the 
 nations, in point of fact, always did confiscate enemy's 
 property; we are at a loss to discover what specific point 
 is meant to be proved by it. Hubner must therefore 
 either have cited this treaty, as a proof merely that a 
 trading with the enemy is a natural right, without at' all 
 meaning to contend for the other; or if he did contend 
 for the last, he leaves a cloud of doubt and misrepresenta- 
 tion upon the authority he cites, and his mode of ar- 
 gument from cases, is at least not convincing. 
 
 The second treaty cited by Hubner, is that between 
 Denmark and the Two Sicilies, April 1748, which he 
 says, not only establishes the same liberty with the last, 
 but adds a clause still mare advantageous to that liberty.f 
 This article is neither more nor less than a very common 
 one in the treaties of that time, and the times preceding, 
 which frequently gave liberty to one of the contracting 
 parties to continue its trade with the enemies of the other. 
 The words are, ' Leur apporter, sans aucun empeche- 
 ' ment, toutes sortes de marchandises, k I'exception de 
 ' celles qui sont de contrebande : a moins que ce ne soit 
 
 • See the treaty 1670. 13 Corps Dip. 132, particularly articles 15 
 and 20. 
 t Hub. 2, 144. 
 
 H 2 ' dans 
 
lOO THAT FREE SHIPS [Prop. I. 
 
 ' dans une ville, port ou endroit assi6g6 ; auquel cas il leur 
 ' sera libre toutefois de vendre leurs marchandises aux 
 •assi6g6ans, ou de les aller vendre & porter en quelque 
 ' autre ville, port ou endroit qui n'est pas assi6g6.' 
 
 It happens also peculiarly, that this article, which adds, 
 it is said, a clause so advantageous to the liberty of com- 
 merce, is, word for word, the same with the i6th article 
 of the treaty 1670, which was last cited as existing be- 
 tween England and Denmark itself. Yet that treaty, as 
 has been observed, prohibited the parties from carrying 
 enemy's property ; not indeed by an express and inde- 
 pendent stipulation, but in a manner infinitely stronger 
 in favour of the argument; by a forcible reference and 
 plain mention of the point as the known existing law. 
 The 20th article provides for passports, and is as follows : 
 ' But lest such freedom of navigation or passage of the 
 ' one ally and his subjects and people, during the war, 
 ' that the other may have by sea or land with any other 
 ' country, may be to the prejudice of the other ally ; and 
 ' that goods and merchandise belonging to the enemy may not 
 ' be fraudulently concealed under colour of being in amity ; for 
 ' the preventing of fraud, and clearing all suspicion, it is 
 ' thought fit that the ships, goods, and men, belonging to 
 ' the other confederate, in their passage and voyages, be 
 ' accompanied with letters of passport and certificate ; the 
 ' forms whereof to be as follows : ' — 
 
 The passport itself contains the necessary assertion, 
 that the cargo really belongs to ' the subjects of Den- 
 ' mark, or to others in neutrality :' and thus the carriage of 
 enemies' property is not only prohibited by this treaty, 
 but is prohibited in a manner which evinces that the 
 contracting parties proceeded upon it as upon the known 
 and acknowledged law.* But if this is so, no argu- 
 
 * See the treaty with Denmark, 1670. Corps Diplom. 13, 132. 
 
 ment 
 
Sec. III.] MAKE FREE GOODS. lOI 
 
 ment whatsoever, in favour of the position in question, 
 can be drawn from the treaty with Denmark, cited by 
 Hubner. Since, though it contains an article very fa- 
 vourable to commerce, that article is contained also, word 
 for word, by a treaty, which plainly disallows and repels 
 the position. 
 
 The same remarks are of course applicable to the next 
 example, relied upon by Hubner (the treaty between 
 Denmark and Genoa in March, 1756), since he cites it 
 as containing precisely the same provisions. Thus much 
 however may be added ; that from the date of the treaty, 
 it appears to have been made in the very heat of that war, 
 and in the very capital of France, in which the Danes 
 complained loudest of the invasion of their neutrality by 
 France. Perhaps it was made at the moment when Hub- 
 ner himself, the delegated assertor of Danish neutral 
 claims, was at Paris, on the spot : it is strange, therefore, 
 if the principle of free ships making free goods, was 
 even at that time ever claimed as a neutral right, that 
 treaties, which he cites as models of the liberty of com- 
 merce under the natural right, should not have contained 
 an express provision to protect it from invasion. 
 
 His next authority is the great Pyrenean treaty between 
 France and Spain. In vain however is it examined, in 
 any thing which he cites of it, for the allowance of 
 the maxim. Much indeed is to be found in support of 
 the general freedom of trade, which, subject to proper 
 exceptions, has all along been allowed : we find stipula- 
 tions that ships and men shall not be pressed into the ser- 
 vice of belligerents ; that the subjects on both sides shall 
 have free liblrty of navigating to all ports friendly to 
 themselves, though hostile to the other party ; and that 
 they shall not be troubled or hindered on account of the 
 
 H 3 war: 
 
I02 THAT FREE SHIPS [Prop. I. 
 
 war : but no notice is , taken whatsoever, in the parts cited 
 by Hubner, of the claim or supposed right to carry ene- 
 my's property. As far therefore as depends upon him, 
 though the fact is otherwise, nothing can be collected 
 from this treaty in affirmance of the maxim. 
 
 The next treaty relied upon by Hubner, is that be- 
 tween France and the Hanse Towns, Sept. 1716 : and 
 his reasoning upon it is as little conclusive as it is strange 
 that he should have cited it at all. The 8th article pro- 
 vides, that no ships or men shall be pressed into the ser- 
 vice of France when belligerent ; and the 13th, that they 
 shall not be stopped or detained, except they are laden 
 with contraband, or the goods of enemies. This last clause 
 is so fatal to his object,, that he is obliged to add, that it 
 is purely positive, and therefore mere matter of conven- 
 ■ tion : but why, in a part of his work which asserts the 
 treaties of Europe to be themselves its conventional law, 
 and which proposes to enquire what that law is, as it is 
 found existing in treaties, he should explain away the 
 very treaty which he cites, as being mere matter of con- 
 vention (the point itself about which he is enquiring) I 
 own myself wholly at a loss to discover. At the same 
 time, whatever is his purpose, he is peculiarly unfortu- 
 nate in his selection, because the national law of France, 
 one of the contracting parties, proves that the exception 
 as it is called could not he, and was only in consonance with 
 its received and fundamental principles concerning neu- 
 trals ; and therefore that it could not be mere matter of 
 convention. That law, when not changed by treaty, 
 from the time of Francis I. confiscated all enemy's pro- 
 perty found on board Neutrals ; sometimes with the 
 Neutral vessel itself, sometimes relaxing that latter rule, 
 but always, in all the royal ordinances, confiscating the 
 property. 
 
 In 
 
Sec. III.] MAKE FREE GOODS. IO3 
 
 In 1704 in particular, only two years before the treaty 
 in question, it was strenuously and generally renewed and 
 enforced in all its ancient strictness ; the ordinance of 
 that year confiscating the neutral vessel itself for carrying 
 enemy's property, and even for trading with the enemy's 
 ports. Nor was this ordinance at all relaxed for the 
 space of forty years ; and then only in favour of those 
 countries, with which contrary stipulations had been 
 made, and expressly on account of those contrary stipula- 
 tions. The ordinance of 1744 approves that of 1704, in 
 the abstract, in the most unqualified manner; and only 
 abrogates those parts of it which are incompatible with 
 treaties.* Hence it amounts to a demonstration, that 
 the enforcement of the old law of France, and in parti- 
 cular of the ordinance of 1704, by a treaty in 1706, 
 could never be deemed a positive exception to the general 
 rule, or purely matter of convention. 
 
 That Sweden should make a treaty with France in 
 1741, reserving, as he states in his next example, all 
 those parts of the last mentioned compact which were 
 advantageous to navigation, but rejecting all the bur- 
 thens, is neither surprising, nor anything to the purpose ; 
 unless (what he does not assert) she introduced an express 
 principle, flowing from the Law of Nature, and militating 
 against the conditions from which she was to be exempt. 
 That she did this however, as he insinuates, because such 
 conditions ' tt'i'm'enf pas d une puissance qui tient un rang 
 ' distingui parmi les nations modemes,^ is what no person will 
 assent to who is at all acquainted with its history. The 
 spirited Christina, in the ardour of her mind, at least 
 
 • See the Reglements of 1704 and 1744, 2 vol. 248, 250. 
 
 H 4 worthy 
 
I04 THAT FREE SHIPS [Prop. I. 
 
 worthy of being the daughter of the great Adolphus ; 
 or the active, the vigorous, and politic Charles Gustavus, 
 was as prompt to see, and as bold to assert, what became 
 the rank and dignity, of their nation, as the yielding 
 Ulrica, or the foreign Frederick I. Nor was the nation 
 itself, when it had just influenced the fate of Germany, 
 the conqueror of the Pole, the Dane, and the Muscovite, 
 less powerful or elevated in the rank of sovereigns, than 
 when beaten and even crushed by the ascendency of the 
 latter. Yet such is the sort of fatality which attends 
 Huhner's observations, that in the former period, and 
 under those high minded sovereigns, Sweden yielded (if 
 to acquiesce in the law can ever be called yielding) that 
 very point to England in the seventeenth century, which 
 she was too elevated in rank to yield to France in the mid- 
 dle of the eighteenth.* 
 
 The last example cited by Hubner, is the treaty of 
 Vienna, 1721, between the Emperor and Spain; and the 
 articles regarding Neutrals being conceived in the precise 
 terms of those of the first treaty, mentioned between 
 Denmark and France, are open to all the observations 
 there made. Nor can we too often attend to this import- 
 ant consideration ; that, while it is known that the 
 great maritime Powers have universally and uniformly 
 claimed a right to confiscate enemy's property found on 
 board neutrals, when there is no treaty to the contrary; — 
 and more particularly, when many countries have made 
 treaties to the contrary, to serve especial interests ; — all 
 general stipulations of a right to navigate freely and 
 
 * By the treaty of Upsal, under Christina, and of Whitehall, under 
 Charles XI., precautions were stipulated to prevent the fraudulent conceal- 
 ment of enemy s property . 2 Chalmers, 34 and 53. 
 
 without 
 
Sec. III.] MAKE FREE GOODS. lOJ 
 
 without interruption, or to trade as was permitted before 
 the war, can only be referred to as a general rule, sub- 
 ject of course to the proper exceptions, and at most, can 
 only be referred to that great dispute, which once, as 
 we have often observed, divided Europe upon the claim 
 of Belligerent powers, to inhibit all commerce whatsoever 
 between Neutrals and their antagonists. 
 
 Such then, and in so small a number, are the treaties on 
 which the Danish civilian relies, in order to prove that 
 what he thus calls the Conventional Law of Europe, has 
 determined for the freedom of navigation and commerce 
 to so vast and unlimited an extent, that every sort of traf- 
 fic is to be permitted to Neutrals without exception ; and 
 of course, as his commentators explain him, the carrying 
 trade along with the rest. 
 
 We have already made it a question, whether any 
 number of treaties can amount to a Law of Nations ; but 
 we ma/ with still greater propriety, be permitted to doubt 
 whether seven or eight treaties, entered - into altogether 
 by but six of the powers of Europe, and that within the 
 space of fifty years, can decide upon what is Europe's 
 law upon so important a point. With yet greater rea- 
 son may we doubt whether the treaties themselves, as 
 brought to our observation, furnish any thing like evi- 
 dence of the opinion that was entertained of the prin- 
 ciple before us, even by those who framed those 
 treaties. One of them, as we had occasion to observe, 
 contained stipulations directly in the teeth of the po- 
 sitions of him who brought it forward : and all of 
 them are made up of very general provisions, amounting 
 to such an indefiniteness of privilege, that, if construed 
 literally, it is known that they are denied by the con- 
 tracting parties themselves. Of this the generally 
 
 strict 
 
I06 THAT FREE SHIPS [Prop. I. 
 
 Strict reserve of the colonial trade, and the provisions of 
 the Danish treaty with England, last cited,* notwith- 
 standing the same sort of indefinite and large sense 
 which might be put upon its letter, are eminent and 
 conclusive instances. Leave we then such insulated, 
 garbled and feeble examples of the sort of law which 
 is set up, to produce what effect they may upon minds 
 of any size or inquiry ; and let us turn to the Danish " 
 work of the present day, which endeavours with greater 
 vehemence, and perhaps greater powers, to support the 
 maxim under what its author also calls the conventional 
 Law of Nations ; but what, according to our principles, is 
 the mere stipulation of particular coinpacts. 
 
 Professor Schlegel, however, has not given us very de- 
 tailed means of enquiry ; since, although there is a pretty- 
 large assertion with respect to the number of treaties 
 which Busch has collected, amounting to thirty-five, and 
 all of them, as it is said, favourable to the principle 
 of free ships free goods, Schlegel himself has mentioned 
 but nine, even in figures, which supported the principle 
 previous to the Armed Neutrality of 1780. At the same 
 time, be says, he recollects but two which give in to the 
 contrary practice ; namely, those of England with Den- 
 mark and Sweden, in 1661 and 1670. Yet, as we learn 
 from Hubner's own enumeration, and in complete dero- 
 gation of the principle which it was cited to support, 
 there is at least one other that may be classed along with 
 them ; I mean that of France with the Hanse Towns in 
 1706 ; and the very treaty with Sweden was founded 
 upon two others which had preceded it, in the time of 
 Cromwell. Leaving tliis however as one of those almost 
 
 * Page 100. 
 
 inevitable 
 
Sec. III.] MAKE FREE GOODS. 10/ 
 
 inevitable om,issions into which the best memories, par- 
 ticularly when the judgment is under the bias of a fa- 
 vourite object, may fall, let us come to the consideration 
 of those which Schlegel himself has actually enumerated ; 
 and first of the treaty of 1351, between our third Ed- 
 ward and the king of Castile. 
 
 Although this is quoted as full to the point before us 
 concerning the rights of the neutral flag, yet I own I 
 have looked with attention, and looked in vain for the 
 discovery of anything in support of the position. I see 
 indeed a stipulation, such as is to be found in every trea- 
 ty of commerce, even in those the most severe against 
 neutral claims, that the subjects of the two countries 
 may safely pass and repass with their merchandize of 
 whatsoever country, and to whomsoever belonging, both 
 by sea and by land ; * but no mention is made here of a 
 state of war between one of the parties and a third ; and, 
 being a simple article of the truce between the two States, 
 it cannot by possibility be tortured to mean that enemy's 
 property may be covered by the neutral flag within the 
 very ports of the belligerent. I see also in another arti- 
 cle, that if the king of England or his subjects shall 
 happen to gain a town or castle from his enemy, wherein 
 any ships, merchandize, or other propeirty belonging to 
 the subjects of the king of Castile shall be found; then 
 the king of England, or he who is captain for him, shall, 
 with all the loyalty in his power, and upon the faith of the 
 said truce, restore those ships, merchandize, and property 
 to the subjects of the kingdom of Castile, oath being made 
 ' qu'ils ne soient armez od les enemys le dit roi d'Engleterre 
 et de France, ne ne facent a eux eide socour ne comfort.' f 
 
 S Rym. Feed. 718. t S Ibid. 719. 
 
 These 
 
I08 THAT FREE SHIPS \_Prop. I. 
 
 These are all the passages of that treaty which apply ta 
 the subject in discussion ; and very far indeed are they 
 from going the length of proving, because the goods of 
 friends found within the jurisdiction of enemies are to be 
 restored, on oath, that their owners had given no succour to 
 the enemy, that the converse of that position is true, and 
 that the goods of enemies within the power of friends 
 are also to be restored. What was here determined, is 
 in truth in the very spirit of one of the articles of the 
 Consolato which has been placed before the reader; yet, 
 strange to say, with what precise ideas I know not, 
 Schlegel, in introducing this treaty of ^dward III., ac- 
 companies it with a kind of surprise, that it was 'deja 
 vers le milieu du i4me siecle, et lorsque le Consolato del 
 mare itoit la seule lot en vigueur.'* The next treaty 
 mentioned by Schlegel, is that between Charles I. and 
 Portugal, 1642, renewed by Cromwell, 1654: an inter- 
 val from the treaty with Castile of full three centuries. 
 The reason for this amazing chasm, it would not be un- 
 natural to ask, more especially as the first treaty was 
 mentioned, because it is supposed to furnish support to 
 the object in view. Had the Professor confessed at once, 
 that all the treaties with England until 1642, were against 
 his principle, and then challenged its fairness and foun- 
 dation in nature, from the circumstance alleged, that all 
 from that time are in its favour, we should then know 
 exactly the point about which we are at issue. But the 
 mention of any treaty at all previous to that time, be- 
 cause supposed (with what accuracy we have seen) to bear 
 upon the question in his favour, gives us a fair right not 
 only to examine the treaties adverted to, but also all 
 other contemporary conventions, and even all those that 
 
 * Schelg. 57. 
 
 fill 
 
Sec. III.] MAKE FREE GOODS. 109 
 
 fill the interval. The justice of his own august sove- 
 reign, and of that other monarch, the cause of whose 
 ships he has come forward to plead, must allow this : be- 
 cause otherwise, as there is a positive assertion of the pre- 
 valency of the principle from 1642, and a positive 
 (though, as we have seen, most mistaken) assertion of its 
 existence in 1351, it might otherwise be supposed that the 
 principle as laid down, had actually existed during all the 
 interval in the same unopposed vigour and extent of acqui- 
 escence. Before we inquire, however, into the history of 
 treaties from the middle of the fourteenth century, it may 
 not be improper to ascertain what actually was decided 
 in those treaties of Charles I. and Cromwell with Portu- 
 gal ; and I own, from the best attention I am able to give 
 them, I am wholly at a loss to discover any thing to war- 
 rant the assertion that they are conformable to the prin- 
 ciple of free ships making free goods.* The loth arti- 
 cle of the treaty 1642, stipulates, (as in many others 
 that have been mentioned) that ships and subjects shall 
 not be pressed in war, the justice of which we nowhere 
 deny ; yet even that article allows that goods may be ta- 
 ken for the service of the king of Portugal, upon pay- 
 ment, within two months of the current and reasonable 
 price. The eleventh article gives general permission to 
 the subjects of Great Britain to sail to the ports of 
 Spain, there to exercise traffic and commerce : however, 
 it says not a word of being allowed to carry Spanish pro- 
 perty (there being then war between Spain and Portu- 
 gal)' ; and what is actually stipulated, if it determines any 
 thing, determines against the full freedom of neutral 
 commerce, when it prohibits the English from carrying 
 any merchandize direct from the ports of Portugal to 
 those of Spain. f Those who contend for the unlimited 
 
 * Schlegel, 56, 57- t Dumont Corps Dip. ii, 238. 
 
 right 
 
no THAT FREE SHIPS [Prop. 1. 
 
 right of trading upon the same footing as in times of 
 peace, and who cite such treaties as these in support of 
 that doctrine as a point of the conventional Law of Na- 
 tions, must reconcile this incompatibility if they can. 
 
 From what has been remarked, and the cursory exa- 
 mination we have given to the very authorities which our 
 opponents in the argument have adduced, little more 
 perhaps might be thought necessary on the subject. It is 
 quite sufficient, it may be said, to have beaten down the 
 authority of every single case, ,and every treaty which 
 has been brought forward, and to have shown how little 
 warrantable are all the deductions that have been drawn 
 from them. There are in truth, however, a great num- 
 ber of treaties which actually do contain stipulations in 
 favour of the principle, more especially in latter times ; 
 and they have multiplied greatly since the Armed Neutra- 
 lity of 1780, though intersected with many exceptions 
 in point of fact, and many incongruities of conduct. 
 But as an accession to them has been uniformly refused by 
 this country, which has scarce ever departed from what 
 it calls the authority of the natural law on the subject, 
 supported by usage where there are no treaties ; as strange 
 misconceptions of that usage, have crept into the works 
 of civilians, as respectable we see as those which we 
 have been examining ; as some discrimination is ne- 
 cessary in drawing proper inferences from the vast body 
 of commercial treaties that exist, arising from the ge- 
 neral state of the laws of commerce at different times, 
 the different relations and connections of princes, and 
 the variety of character, and views in public men ; and 
 as, besides, it must ever be an important object in a trea- 
 tise of this kind, to give some clue to' a matter so appa- 
 rently entangled, — it will perhaps be right to set before 
 the reader, as far at least as lies within the compass of 
 very confined powers, how the matter stands in the trea- 
 ties of the last four hundred years. 
 
 As 
 
Sec. III.] MAKE FREE GOODS. Ill 
 
 As it is acknowledged by Schlegel himself, that the 
 Consolaio del Mare was the sole law in vigour in the four- 
 teenth century ; * and that, during that period and the 
 fifteenth, almost all the treaties were formed upon its 
 principles ; f we have a very important datum granted to 
 us, with respect to the earlier conventions ; since nothing 
 is more incontestible, than that enemy's property, on board 
 neutral vessels, was by that law confiscable. Bearing this 
 in our minds as the received, acknowledged and universal 
 regulation, where no agreement was made to the contrary, 
 we may, notwithstanding, find some treaties which do 
 make stipulations to the contrary; we actually find some, 
 which expressly confirm it ; and many more which make 
 no mention of it at all : and the use which I make of this 
 acknowledgment of Schlegel, and indeed without such 
 acknowledgment, of the known authority of the Consolato, 
 is to establish three propositions of some importance in this 
 diplomatic research. I. That, ^ where the rule of the Con- 
 solato is departed 'from in a treaty, it is an exception to the 
 law. — II. Where it is supported by an express article, it is 
 merely affirmatory; and, III. Where it is not mentioned 
 at all, it must be taken for granted, that it is still always 
 acknowledged. The propositions are an inevitable con- 
 sequence of the mere allowance, that the law was acknow- 
 ledged in point of fact ; and are as simply conclusive, as that 
 the municipal law of a country governs its inhabitants when 
 not referred to in the special compacts they make together, 
 although they may sometimes tie up the law by those com- 
 pacts, and sometimes give it additional vigour and effect. 
 
 Now of fourteen treaties of commerce, which are to be 
 found (doubtless amongst many more, but which I have had 
 no opportunity of seeing) during the fifteenth century, 
 
 ♦ Schleg. 57. t Id. 4. Dans les I4me. et isme. siecles presque toutes 
 les traitez furent faites d'aprfes ce principe. 
 
 but 
 
112 THAT FREE SHIPS [Prop. I. 
 
 but three make any mention of the case of enemy's pro- 
 perty on board neutral vessels. . These are the treaties of 
 England and Genoa in 1460, England and Flanders in 
 1478, and another between the same Powers in 1495; and 
 all three support the rule of the Consolato. The first of 
 them was probably meant to correct the indefiniteness with 
 which another treaty, between England and Genoa, had, 
 upwards of thirty years before, permitted the general rights 
 of trading with belligerents. By one of the articles of that 
 treaty, (in 1421) it is stipulated, that in case of war be- 
 tween one of the contracting parties and a third, the 
 other shall be bound to take no share in it; at the same 
 time it is stipulated, that their ships and merchants, with 
 their goods and merchandize, may safely pass and repass to 
 and from the ports of the other belligerent, and there exer- 
 cise their trade at large, without danger of an infraction of 
 the peace.* Upon a renewal of the alliance, between the 
 two countries in 1460, this probably had been found too 
 large a grant of liberty, consistent with the fair means of 
 defence ; and it was then stipulated, that no assistance or 
 favour should be shewn in any manner, direct or indirect; 
 and that, in particular, they should not carry the goods of 
 enemies in theii ships. The regulations, concerning this 
 matter, are clear and decisive, and indicate so precisely 
 what was then, at least, thought of the duty of neutrals 
 when met on the seas, in order to avoid contributing to 
 the assistance of a belligerent, and what was to be the 
 penalty of a resistance to that duty, that I will state the 
 passages at length for the exercise of every man's judgment. 
 
 'Item quod non liceat de Guerram nobis aut subditis 
 nostris moventi aut moventibus auxilium, favorem, vel 
 juvamen concedere, dare, vel exhibere quocumque modo. 
 
 Rymer's Feed. an. 1421. 
 
 vel 
 
Sec. III.] MAKE FREE GOODS. II3 
 
 vel dato colore, clam vel palam, direct^ vel indirect^ dicto 
 tempore durante. 
 
 ' Nee cariabunt aut portabunt in navigiis eorum supra- 
 dictis, bona, aut mercimonia alicujus inimici nostri seu 
 inimicorum nostrorum ; at, casu quo fecerint, petiti et 
 interrogati per nostros, dicti Januenses debent (immediate 
 et sine dilatione, mediante juramento suo, cui subditi nostri 
 fidem dabunt) veritatem dicere et fateri, quae et qualia 
 bona ' inimicorum nostrorum vel inimici ducunt in navibus 
 suis, et ilia sine difficultate tradere et deliberare capitaneis, 
 vel ducentibus navigia nostra pro custodia maris, vel aliis 
 subditis nostris quos obviare contigeret navibus dictorum 
 Januensium, ubicumque super mare, recipiendo pro rata 
 nauli sive aifrectamenti hujusmodi mercium inimicorum. 
 Et, casu quo dicti Januenses sic facere recusaverint, vel 
 juvamen aut defensionem prestiterint alicui inimicorum 
 nostrorum, contra subditos nostros super mare, licitum erit 
 ipsis nostris subditis eosdem Januenses invadere et depugnare eo- 
 rum naves, et bona capere et retinere, personasque eorumdem pri- 
 sonarios accipere et custodire.' * 
 
 From these articles, we see that two very important 
 points, between neutrals and belligerents, were resolved on 
 in the fifteenth century by two of the greatest maritime 
 States of Europe ; (for who shall say that the proud Genoa 
 was not a very great maritime state at that time ?) These 
 points were, that the belligerent, meeting the neutral upon 
 the seas, had a right to enquire, in order for confiscation, 
 after any enemy's property which the latter might carry; 
 that the neutral was bound to specify the property on 
 oath, which, if he refused to do, or specified falsely, (for 
 so in this place may be translated 'Juvamen aut defensionem 
 prestiterint,') it was lawful for the belligerent fc) seize his 
 ship and goods, and detain the persons of his men as pri- 
 
 * Rymer's Feed. xi. 441, 442. 
 
 I soners. 
 
114 THAT FREE SHIPS \Prop. I. 
 
 soners. Not vastly different from this, but greatly more 
 in favour of the neutral, is that old and regularly asserted 
 law which has lately been so much questioned ; by which 
 resistance to the same right of examination is made also 
 to call down the confiscation of the ship resisting. 
 
 The first of the other two treaties that have been men- 
 tioned contains similar stipulations, though not in such 
 detailed and precise terms. It is in 1478, between Ed- 
 ward IV. and Maximilian, and states, that the mercliants 
 and masters of ships belonging to Flanders — "non addu- 
 cent aut adduci facient per mare, fraudulos6 vel quocun- 
 que colore, aliqua bona seu mercandisas inimicorum An- 
 glise, Hiberniae vel Calesise ; at de hoc, quotienscumque 
 per subditos Angliae Guerrae operam dantes, fuerint inter- 
 rogati, tenebuntur facere justam et veram confessionem et 
 declarationem." * 
 
 The remaining treaty, containing an express provision 
 in support of the principle, is that between our Henry 
 VII. and Philip, Duke of Austria, in 1495, and is a little 
 more full than the last, and more particular than the 
 first, which has been mentioned, between England and 
 Genoa. The xxiiid. article is as follows. — ' Item, conven- 
 tum est ut supri : quod subditi unius principum praedic- 
 torum, sive mercatores fuerint, sive nautae, magistri na- 
 vium aut marinarii, non adducent, seu adduci facient per " 
 mare fraudulos6, vel quorumcunque colore, aliqua bona seu 
 mercandisas inimicCirum alterius eorundem principum : 
 et si secus egerint, et per subditos alterius principis guer- 
 rae Wciih operam dantes super hoc interrogati fuerint, te- 
 nebuntur facere veram, planam et justam confessionem et 
 declarationem, cui in ea parte pro tunc stabitur, iidemque 
 interrogantes ulterius scrutamen in ea parte non facient. 
 Sed si postea eundem interrogatum falso respondisse con- 
 
 * Dumont Corps Dip. iii. par. 2. p. 31. 
 
 stiterit. 
 
Sec. III.] MAKE FREE GOODS. II5 
 
 stiterit, tunc idem interrogatus interroganti, quern per 
 falsam responsionem defraudavit, tantum de suo erogare 
 tenebitur, quantum merces inimicorum per eum vectas, 
 et ut praemittitur, celatas, valuisse constabit.'* 
 
 In addition to these four, there are ten other treaties of 
 a commercial nature, between the maritime states of Eu- 
 rope, during the fifteenth century, which stipulate, ge- 
 nerally, both for freedom of trade and for perfect neu- 
 trality, but which do not mention the principle before us, 
 in express terms. Such are the treaties between England 
 and. France, 1475;! England and Riga, 1498 ; J Eng- 
 land and Flanders, 1499 ; § France and Venice, 1477 ; || 
 France and Portugal, 1485 ; §§ France, England, Venice, 
 and Florence, 1492 ; |||| France and Venice, 1498 ; JJ 
 France and England, 1497 ! tt France and Denmark, 
 1456;** and France and Spain, 1500.]. 
 
 These treaties do not mention the principle, in terms, 
 and are, therefore, according to the propositions laid 
 down, supposed to be built upon it, as the known and 
 acknowledged law of Europe, operating silently, indeed, 
 but with not less effect, than if expressly mentioned in 
 affirmance of the Consolato. In the three treaties which en- 
 tertain the principle, in terms, we see fresh support brought 
 to it, in the most positive manner; and its rigour, so far from 
 being relaxed, is extended, corroborated and asserted, by 
 the introduction of heavy penalties for the now criminal 
 attempt at fraud or resistance. There is no treaty, which 
 I can find, that stipulates anything in contravention of 
 the principle. 
 
 * Id. iii. par. i. p. 322. 
 
 t I Fred Leonard, 176. 
 
 } Corps Diplom. vi. 404., § Id. vi. 411. 
 
 II I Fred. Leon. 211. §§ Id. 313. |||| Id. 348. 
 
 \X Corps Diplom. vi. 406. 
 
 tt I Fied. Leon. 394. ** Id. i. 56. 
 
 I Corps Diplom. 445. 
 
 I 2 Thus 
 
Il6 THAT FREE SHIPS {Prop. I. 
 
 Thus far, then, we have steered our course, with cer- 
 tainty and precision, as to the state of the law, to the end 
 of the fifteenth century, and nothing arises, hitherto, to 
 trench upon the mode of reasoning adopted, namely, that 
 the law existing in acknowledged vigour, the silence of 
 treaties, far from diminishing its force, is a proof that no 
 attempts had been made to exempt any one from its pro- 
 visions. But if this was the case at the end of the fifteenth 
 century, and things continued the same, or pretty much 
 the same, throughout the sixteenth, who is to say, that 
 the least alteration in the law was eifected during that 
 latter period ? — The acknowledgment of Schlegel himself, 
 as to its state in the fifteenth, it seems fair to extend to 
 the middle of the seventeenth ; since, with the exception 
 of the three treaties he mentions, in the previous periods, 
 and which we have proved him to have strangely miscon- 
 ceived, he fastens upon no one historical fact, much less any 
 treaty, forming an exception to the rule of the Consolato, 
 until 1642, from which time, as he says, the change be- 
 gan. He, indeed, adverts slightly, as Hubner did be- 
 fore him, to the conduct of Elizabeth, when she 
 sent over Winter and Beal to Zealand, to vindicate, as 
 he says, ' les droits du pavilion neutre ; ' * but how she vin- 
 dicated those rights, how little was done for the 'pavilion 
 neutre! how entirely it was a case of robbery, acknow- 
 ledged by the historian of Holland himself, and, therefore, 
 out of all reach of an argument upon the law of nations, 
 has already been too amply shewn to enlarge upon it 
 again.f 
 
 The commercial treaties of the sixteenth century, are, 
 comparatively, few ; and of those, not one, that I have 
 been able to discover, derogate, in the smallest point, from 
 the rule of the Consolato, confiscating enemy's property 
 
 • Schleg. 57. 
 
 t Fred. Leon. ii. 198, 383, 458, 583. 
 
 where 
 
Sec. III.] MAKE FREE GOODS. II7 
 
 where found ; and as we left that rule, in its full vigour, 
 at the end of the fifteenth, it must be supposed still to 
 have continued in all its strength under every treaty 
 which assumed the regulation of commerce, but 
 which yet did not derogate from a point long so 
 acknowledged and held so sacred. It is no where men- 
 tioned, either by way of affirmance or denial, in the treaties, 
 between England and France of 1514, 1525, 1530, 1546, 
 1564, 1572;* between France and Sweden, 1559 ;t be- 
 tween England and the Emperor, Charles V. 1589; J be- 
 tween that Emperor and Denmark and Holstein, 1544;§ 
 between Denmark and the Hanse, 1560 ; or Scotland 
 and Holland, 1594. 1| 
 
 At the same time, many of these treaties contain strong 
 general stipulations against affording any assistance to a bel- 
 ligerent, either directly or indirectly ; stipulations, by the 
 way, which we may as fairly use in affirmance of the prin- 
 ciple, as our opponents in the argument use the general 
 permission to trade in its derogation. On the other hand 
 also, it was in the sixteenth century, at two several times, 
 once towards the beginning and once towards the end, that 
 the famous; ordinances of France, relative to the marine, 
 were composed under the auspices of Francis I. and 
 Henry III. These, as has often been observed, gave the 
 fullest support to the rule' of the Consolato, and asserted the 
 privileges of belligerents to an extent far beyond what had 
 before perhaps been known. 
 
 In this age also, raged to its height that great 
 pretension of belligerents to cut off all neutral com- 
 merce whatsoever with their opponents ; instances of 
 which are so abundant and strong in the history of every 
 
 • Id. 564. 
 
 t Corps Diplom. viii. 42. 
 X Id. 274. I 2 Valin, 252, 3, 4. 
 
 11 Rec. des Trait, ii. 303, 459. It is no where mentioned at the peace 
 of Vervins, 1598. 
 
 1 3 maritime 
 
"8 THAT FREE SHIPS [Prop. I. 
 
 maritime country of Europe, that to enter into their detail, 
 would prolong this discussion to an unbounded length. 
 Grotius took notice of many of them, in the passage in 
 which he gives his sanction to the Consolato ; * and in gene- 
 ral we may observe, that this is in fact the true point of all 
 the strongest examples which are cited against our princi- 
 ples, but which prove nothing as we have seen, except a 
 general right to trade on the part of the neutral, the rea- 
 sonableness of which no one now denies. 
 
 Soon after the marine ordinance of Francis I. was 
 promulgated, some of the neutral Powers felt its 
 severity ; and I find, that in consequence of strong re- 
 presentations from the Emperor, Charles V. on the part of 
 his provinces in the Netherlands, and after conferences on 
 both sides, the ordinance complained of was abrogated. 
 But, though the severity of confiscating the ships of friends 
 for carrying the property of enemies was removed, the 
 right to seize that property was no where trenched upon. 
 On the contrary, by the very terms of the regulation pub- 
 lished for abolishing the ordinance, it is preserved in all its 
 extent ; the punishment of the neutral is alone annulled ; 
 and thus while the humanity of the Consolato was perfectly 
 restored, its justice and legal severity were integrally 
 preserved.! 
 
 This was in the year 1550, but seven years after the pro- 
 mulgation of the French ordinance, whose rigour was thus 
 
 * De Jur. Bel. p. 3, i, 5, 4, notis. 
 
 t Scavoir que doresnavant toutes, & quantes fois qu'on aura faict d'ung 
 coste ou d'aiitre aucune prinse, ou arrest, soit en mer, ou par terre de 
 quelques merchandises ou autres biens de quelque qualite, qu'ilz soyent, 
 estans les dits merchandises ou biens trouvez en navires, ou chariotz & autres 
 voitures des subgectz tant dudit Sr. Roy que de nous ou en navires 
 d'ennemis, que du bien ainsi prins & arrette tant par mer que par terre 
 sera seulement declare confisquie ce qui ce irouvera apparienir aux eiinemis, 
 ou seulement la marchandise prohibee, & deffendue, & non autre, sans ce 
 que pour I'advenir ladite ordonnance (qui des maintenant demeure du tout 
 huUe. & revocquee) puisse estre alleguee ny raise en avant pour le regard 
 desd. prinses. Rec. des Trait, ii, 689. 
 
 softened 
 
Sec. III.] MAKE FREE GOODS. II9 
 
 softened towards the inhabitants of the Netherlands. But 
 neither was this mildness extended to other nations, nor 
 did it long continue to favour the Flemings themselves ; 
 for in 1583, the regulations of Francis I. were restored in all 
 their severity by Henry III. and they never afterwards ceased 
 to be the maritime law of France, except when modified in 
 favour of particular nations, by the express stipulations of 
 particular treaties. It appears also that these laws, hard as 
 they were considered by the Emperor himself, formed a 
 part of his own commercial regulations on the side of the 
 Netherlands ; since the language of the regulation avows 
 that it was observed in the dominions, both of the Empe- 
 ror and of the King.* 
 
 We have thus conducted the principle of the Consolato 
 in full, and even in augmented vigour to the end of the six- 
 teenth century ; nor, upon the strictest investigation, is it 
 to be found, either from the internal regulations, or the 
 public treaties of the times, that any thing like (I will not 
 say the new principle but) the new pretension, had been 
 hitherto brought forward in Europe. If it had, doubtless 
 the learned and industrious professors of Denmark, the 
 zealous advocates of Holland in various Dutch wars, and 
 the investigating delegates of the King of Prussia in 1752, 
 would have long since pointed them out. It is to be la- 
 mented, I think, that the learned civilian, whose assertions 
 we are thus driven to oppose, has contented himself 
 with such very vague and indeterminate language as he has 
 used, in speaking of one of the most important customs of 
 maritime nations, as found in their treaties. He acknow- 
 ledges, it is true, that the treaties of the fourteenth and fif- 
 teenth centuries knew no other principle ; but after this. 
 
 * Charles, &c. a tous ceux, &c. comme pour faire cesser les plaintes et 
 doleances faictes par aucuns noz subgectz, &c. de la rjgeur de certaine 
 ordonnance respectivement observee en noz pays de pardeca et au 
 Royeaulme de France, &c. Recueil des Traitez, ii. 689. 
 
 I 4. in 
 
I20 THAT FREE SHIPS \_Prop. I. 
 
 in pretty marked terms, as was observed before, 
 he says, " il fut en consequence determine qu'un 
 " vaisseau neutre ne pourroit plus etre arrdt6 parce 
 " que il auroit abord des marchandises ennemies." * 
 How, or when, this was determined, or in consequence of 
 what, he has not condescended to say : but having mention- 
 ed the fifteenth century as his last date, he goes on to ob- 
 serve that the (greater part of the treaties, after the middle 
 of the seventeenth, pursued an opposite line ; thus leaving a 
 tolerably large chasm of one hundred and fifty, or perhaps 
 two hundred years, without any definite account, or rather 
 without any account at all, of what was the commercial 
 maxim pursued by its treaties. That account, if this were 
 mere matter of historical enquiry, the library of every 
 statesman would be able to supply ; but how ~will Schlegel 
 seriously answer to this country, to his own, and to his con- 
 science, for leaving so great a space of time in total neglect, 
 in order afterwards to call it by the invidious name of mere 
 antiquated law ? The question is immense in its extent, 
 and mighty in its consequences ; the Professor's book is 
 read by the governors of his nation, and the nation itself ; 
 they have armies, fleets and allies, ready to rush into 
 bloody quarrel, if cause of quarrel is made out ; and where 
 so many thousand lives are to play for the stake, great 
 caution and even painful enquiry, one would think, should 
 be exercised, before any thing is hazarded in so stupendous 
 a cause. 
 
 From this silence, however, I think it reasonably fol- 
 lows, that even if we were deprived of all light upon the 
 subject, the same confession, on the part of the professor, 
 must continue ; and that, with his acquiescence, we may 
 enter upon the seventeenth century also, with the maxim 
 of the Consolato, in the most entire state of diplomatic 
 acknowledgment. 
 
 » Schleg. s- 
 
 The 
 
Sec. III.J MAKE FREE GOODS. 121 
 
 The seventeenth century is a rich mine of history, in 
 all that regards and all that can interest mankind. Nations 
 emerged from barbarism and bigotry; the vastest political 
 objects ; concentrated and universal alliances ; the elevation 
 of the rights of war and peace into a science, itself a most 
 memorable epoch ; a great Republic rising into acknow- 
 ledged sovereignty; a war, of thirty years, displaying the 
 most ardent gallantry, and the most consummate abilities 
 in generals and statesmen, and ending in a peace, which 
 formed, ever afterwards, the basis of the political inte- 
 rests of Europe ; in addition to this, the most shining 
 characters in all the ranges of human activity ; Henry 
 IV., Sully, Gustavus, Grotius, Richelieu, D'Avaux, Crom- 
 well, De Witt, Temple, and King William : these are 
 the meteors which every where shine out upon the en- 
 quirer into this eventful period 1 
 
 It may be supposed that such an age was fertile in ne- 
 gotiation upon every subject, and in treaties upon every 
 question. Nor is expectation disappointed. The conven- 
 tions of these times swell into a size, both in number 
 and length, beyond all proportion to those of preceding 
 ages ; and there is scarcely a point of political dispute, 
 much less a principle of political conduct, which is not 
 hunted down and settled in the active negotiations and the 
 laboured treaties, which every where meet us, in our re- 
 searches, during this wonderful age ! 
 
 It is, therefore, of no small advantage, in investigating 
 the opinions of so busy and interesting a period, that we 
 have the important datum, to which we have alluded, in 
 order, the better to arrive at truth in our enquiry. 
 
 It is to be recollected that hitherto no one treaty has 
 been found, to contravene the stipulation of the Consolato. 
 On the contrary, some have been made in its support, and 
 some particular ordinances have gone a great way farther ; 
 and, whenever they have been found too harsh for a con- 
 tinuance. 
 
122 THAT FREE SHIPS [^Prop. I. 
 
 tinuance, the new agreements which worked their ab- 
 rogation, avoided, with care, the destruction of the ori- 
 ginal law. Again, therefore, we start from this as a 
 truth ; that the rule of the Consolato was the rule of the 
 commencement, at least, of the seventeenth century; 
 and consequently, that though many commercial trea- 
 ties are silent with respect to it, their silence is the effect 
 of acquiescence alone, and they must therefore be sup- 
 posed to adopt and incorporate it with themselves in the 
 fullest extent. From the year 1600 to 1642, the epoch 
 laid down by Busch, and adopted by Schlegel, for the com- 
 mencement of a new law, there seems, even from them, 
 to be no opposition to this. During that interval, fifteen 
 treaties of commerce, or relating to commerce, were framed 
 by the maritime States of those times. Of these, the rule 
 is expressly relaxed in none, was strongly confirmed by 
 five, and is acquiesced under, in silence, by ten. Con- 
 sequently, according to our principles, they are all of 
 them in favour of the Consolato, without a single ex- 
 ception. 
 
 The treaties which make no express mention of it, 
 either in affirmance or derogation, and which, therefore, 
 as we contend, are silently acquiescent, are those between 
 France and the Hanse towns, in 1604;* between Eng- 
 land and Spain, 1 604 ; in which, however, there is an ex- 
 press prohibition to trade with the enemies of Spain in Hol- 
 land ; f between England and France, in 1 606 ; J Spain and 
 Holland, (the twelve years truce,) in 1 609 ; § Denmark and 
 England, in i6zi ; || France and Russia, 1629;^ Poland 
 and Sweden of the same year ; ** Denmark and England, 
 '639 ;tt Sweden and Holland, 1640;^^ and France and 
 Portugal, 1641. §§ 
 
 * Recueil des Traites, iii. 19. 
 
 t Dumont Corps Dip, x. 34. J Id. 62. § Id. ib. || Id. 320. 
 U Id. 597. *» Id. 598. tt Id- xi. 174 %X Id. 193. §§ Id. 2i6. 
 
 Those 
 
Sec. III.] MAKE FREE GOODS. 
 
 123 
 
 Those which confirm the Consolato, either by express 
 words or strong implication, are firstly the treaty between 
 England and Holland, in 1625, against Spain; in which 
 Charles I. stipulates, that he will instigate all other princes. 
 States, and communities which are neuter, to discontinue 
 all commerce with Spain ; in such a manner, however, as 
 that they shall suffer no loss by their compliance ; but in 
 case they will not comply, then it is agreed that all ships 
 in the high seas, suspected 0/ steering towards Spain, shall be 
 stopped in order to be searched, without however being 
 retarded or damaged (I suppose in the case where no pro- 
 hibited property is found), at the same time all other com- 
 merce is to be open to them without let or disturbance ; 
 and there is an express article, which states that nothing in 
 the treaty is to be considered as any innovation, change, or 
 interruption in the freedom of navigation and commerce, 
 either of the subjects af the contracting parties or other 
 neutral states.* 
 
 The next treaty in which this belligerent right is to be 
 found acknowledged, not expressly (for according to us, in a 
 point so uncontested, that was not necessary,) but implied as 
 a well-known law, is that of St. Germains, between France 
 and England, 1632, in which the third article regulates the 
 right of search. " Et d'autant que," says that article, " sous 
 " pretexte de recherche et visite, qui se pourroient faire par les 
 " vaisseaux de guerre de I'un ou de I'autre prince, ou de leurs 
 " sujets en mer, des navires marchands, /oz^r jfawz'r ^ils sont 
 " chargez de merchandises def endues appartenantes aux ennemis, 
 " &c. (&c."t It is needless to point out to persons, acquaint- 
 ed with the rules of reasoning, that pretexte must mean the 
 pretence, of something lawful ; and that qui se pourroient faire, 
 is proof that what follows is the legal right to search for 
 enemy's goods, which are also here placed in the same rank 
 with defendues. 
 
 * Id. X. 480, the 2 1st, 22d, 23d, and 40th articles. 
 1 Fred. Leon. v. 44. 
 
 The 
 
124 THAT FREE SHIPS [Prop. I. 
 
 The next instance is the treaty between Denmark and 
 Spain, in 1641, in which the fullest rights of navigation 
 and commerce are granted to the subjects of one another, 
 clogged, however, with the most marked prohibition as to 
 the property of the Dutch, with whom the Spaniards were 
 at war, or of any other hostile country. And in order the 
 better to prevent the carriage of such goods, all merchan- 
 dise whatever, exported from either Spain or Denmark, is 
 to be registered and sealed with the seal, and have the certi- 
 ficate of the country whence it comes ; so that Dutch, or 
 any other enemy's property, may be easily discovered ; and 
 as such, confiscated : ' comme des marchandises de contre- 
 bande.'* 
 
 In this period also, notwithstanding what has been said 
 by Hubner, that the Mussulmans of the Barbary States gave 
 greater liberty than Christians, &c. to the exercise of com- 
 merce, and allowed the principle in question, I find some 
 treaties not without stipulations of a very contrary nature. 
 In the treaties between France and Algiers, in 1628, and 
 France and Morocco, 1630, a period when the former was 
 the most favoured of the Christian nations in the Mediter- 
 ranean, the first allows not the freedom of enemy's proper- 
 ty until the Algerine shall have taken the ship into port, 
 in order to exact a duty, or toll, upon such part of the 
 cargo:! the last confiscates it altogether; and the stipu- 
 lation is, that the French vessel shall alone be free.J 
 
 And thus the matter stands in the maritime treaties of 
 Europe, from the time of Edward III. until 1642; when, 
 and not till when, according to Schlegel himself, a new 
 system of commercial regulation was set up. The con- 
 fession implied by that assertion might probably have spared 
 much of the preceding detail ; but as, in all human insti- 
 tutions, much of what is, depends greatly upon what has 
 
 * Corps Diplom. xi. 210. Art. v. 
 
 t Corps Diplom. x. 559. X Id- 614. 
 
 been; 
 
Sec. III.] MAKE FREE GOODS. 125 
 
 been ; as, in many points, the right understanding of what 
 every day passes is, at least, facilitated, if not entirely gene- 
 rated by a knowledge of the sources whence it flows, 
 and the changes it has undergone ; the preceding research 
 will not be regretted by those who regard the subject with 
 any thing more than temporary views. At the same time, 
 it is not pretended that all the maritime conventions that 
 existed have been here brought together. There are, with- 
 out doubt, many more ; but these are all which, from such 
 narrow sources as are before me, I have been able to find, 
 and for whose fidelity I am therefore able to answer. It is, 
 however, little probable, that even from those which may, 
 for ought I know, remain behind, any thing can be found 
 adverse to the point we have arrived at ; since, if there was, 
 the Danish civilians, who were so interested in the dis- 
 covery, would, doubtless, have long since published it to the 
 world : and the mistakes of their zeal in citing such treaties 
 as those of Edward III. and Charles I., and the transaction of 
 Elizabeth with the Zelanders, prove to us at what slight 
 and fragile supports they are willing to grasp ! * 
 
 We now, then, arrive at that important period whence, 
 as it is said, a new principle of government for Neutrals 
 and Belligerents takes its progression. But, although it is 
 indubitable, that, from that timei downwards to the aera of 
 the first Armed Neutrality, there are a vast number of ex- 
 ceptions to the rule which, as we have seen, had hitherto 
 reigned paramount to all exception ; yet we shall probably 
 hesitate a very long time before we can lend our belief to 
 the assertion, that the contrary rule became the rule of Eu- 
 
 * See pages 51, 52. 
 
 rope. 
 
126 THAT FREE SHIPS \_Prop. I. 
 
 rope. Even the ground for the supposition in the outset is 
 weak ; for, allowing all possible credit to the soundness of 
 the conclusion, as to the real thing which is stipulated by- 
 treaty (a conclusion, however, which past experience would, 
 perhaps, induce us to deny), the existence of but five and 
 thirty treaties, during a period of one hundred and thirty- 
 eight years, would alone make us doubt of their constituting 
 so vast a majority as must make a rule. But when we add 
 to this, that it was a period the busiest, the most intiiguing, 
 the most fertile in every sort of alliance, and in opportunities 
 to draw forth every sort of maritime interest ; the period, in 
 fact, of Europe's history, wheij the Maritime Powers began 
 first to assume the lead, where formerly they had been merely 
 secondary to the Continental ; the period when Hol- 
 land was at its zenith ; when Prussia was struggling 
 into notice ; when France became commercial ; when 
 Russia became maritime ; when all the States, whether con- 
 tinental or maritime, came to be linked together in such 
 close connection, that the slightest movement of one was the 
 . signal for conventions amongst all the rest : under these 
 characteristics, and during so great a length of years, that 
 so small a number of treaties should form a decided and con- 
 stitutional majority, is an assertion which we should be in- 
 duced to pause long upon before we gave it our implicit be- 
 lief ! That there may be five and thirty treaties, from the 
 year 1642 to 1780, which are favourable to the principle, 
 I am not disposed to question, though I know not the fact ; 
 that they form a majority, and that a very great one, so as 
 to give the general rule of Europe, is the point to be dis- 
 cussed ; and that point must depend upon the same view of 
 the fact which we have all along been taking of it in the 
 earlier parts of the history. In particular, we must stjll 
 proceed to the enquiry with this clear guide in our minds ; 
 that as, hitherto, for the space of at least four hundred years, 
 no one convention had been made in derogation of the 
 Consolaio del Mare; as, on the contrary, many treaties, 
 
 as 
 
Sec. III.] MAKE FREE GOODS. 12/ 
 
 as we have seen, were made directly in its affirmance ; and 
 as what alterations were attempted by the ordinances of 
 particular nations, were all of them built upon its exten- 
 sion, to a degree of even unjust severity, it is impossible not 
 to say that, in 1642, it was still the great and acknowledged 
 rule of Europe: consequently, in every treaty which did 
 not except against it, whether mentioned or not, it must 
 still be taken to be the known law. Now, in surveying 
 the treaties of the important period from 1642 to the peace 
 of Utrecht, we do 'find that some have departed from it; 
 giving, however, very marled compensations; more have 
 confirmed it expressly, and still more have confirmed it by 
 their silent acquiescence ; for the better ascertainment of 
 which it will be right to proceed chronologically, though 
 cursorily, in our review of the treaties. 
 
 The first upon record, which I find after the new period 
 commences, is certainly not of the complexion of those 
 which Busch must be supposed to mean. It is that between 
 France and Courland, 1643, which gives to the latter the 
 fullest freedom of commerce and navigation through all her 
 ports and seas. There is, however, a special article, which, 
 in terms, prohibits the Duke from availing himself of the 
 liberty thus granted to assist the enemies of France, by 
 carrying to them any sort of merchandise ; * which is ob- 
 viously a much greater extension of the belligerent claim 
 than if it had been confined to the right of seizing the pro- 
 perty of the enemy himself. 
 
 The next in order is the treaty of Christianople, between 
 Denmark and Holland, 1645, f in which, though made ex- 
 pressly for the arrangement of commercial disputes, no men- 
 tion whatever is made of this neutral claim. The next 
 is between Denmark and France, November 1645 ; a close 
 
 * Corps Diplom. vol. 5. 2io. f Id. 312. 
 
 and 
 
128 THAT FREE SHIPS \Prop.\. 
 
 and commercial alliance ; in which, however, there is also 
 silence as to the claim. But the stipulation is express ; — that 
 neither power shall afford help to the enemy of the other, 
 directly or indirectly; and the twelfth article in particular 
 acquiesces under the antient rule, when it states, that the 
 freedom of commerce consists in maintaining things exactly 
 as they are, in the western and northern oceans, and in the 
 Baltic sea.* 
 
 The next is the treaty of Paris, between France and Hol- 
 land, 1646; and as it contains an argument of some little 
 nicety, as to its construction, it deserves to be mentioned 
 at some length. It will be recollected that the ordinances 
 of France at this time confiscated not only all enemy's pro- 
 perty, found on board neutral vessels, but the vessels them- 
 selves, as good prize. This had been already felt, and alter- 
 ed, on the representations of Charles V. ; and, an alteration 
 was now again solicited by the United Provinces. The pre- 
 amble, therefore, states, that many complaints having been 
 made, that the ships of the King were in the habit of seizing 
 merchant vessels, in which enemy's property was found, 
 and confiscating the ships themselves as good prize, accord- 
 ing to the marine ordinance of the late King Henry IH. ; 
 and the King being disposed to apply the best possible reme- 
 dy to the inconveniences attending the execution of this orders 
 ' et se relacher,' to use the words of the treaty, ' de la rigeur 
 ' d'icelle pour quelque terns en faveur des dits Sieurs les Estats, 
 ' A la priire qui luy en a est6 fait par le Sieur Osterwick, 
 ' leur Ambassadeur,' names his Commissioners to confer 
 with the States, who determine upon the following articles.f 
 Now, to pause here a moment, it is impossible not to be 
 struck with the marked tone of the treaty, as it regards a 
 very important point ; namely, that the whole is condescen- 
 
 Corps Diploin. 328. t Fred. Leon. v. 223. 
 
 sion 
 
Sec. III.] MAKE FREE GOODS. 129 
 
 sion on the part of the King ; and as such, of course, from their 
 very agreement to the treaty couched in these terms, accept- 
 ed by the States. He relaxes his rule, for a time only, in 
 their special favour, and at the prayer of their Ambassador ! 
 Not a sentence is breathed concerning a liberty or right, un- 
 der the Law of Nations, to the abrogation of this ordinance ; 
 but all is pure matter of conventional relaxation from an 
 admitted rule, at least of France, and to exist only for a 
 time. And what is it that is determined ? ' Qu'en attendant 
 ' que Ton ait fait un bon r6glement, on surseoira I'execution 
 ' des articles de I'ordonnance du Roy Henry III. de I'an 
 '1584 sur le fait de la marine, portant que les marchandises 
 ' appartenantes aux ennemis, donnent lieu k la confiscation 
 ' de celles des amis, et ne sera plus observ6e n'y pratiqu6e 
 • i regard des sujets des Sieurs les Estats G6n6raux des Pro- 
 ' vinces Unies des Pays-Bays, pendant le temps de quafre 
 ' annies, en telle sorte que les navires qui trafiqueront avec 
 ' la patente de I'admiral des Provinces Unies la mer Medi- 
 ' terrannde et du Levant, et sur I'ocean du dit admiral, ou 
 ■ des villes et lieux aux sujets desquels les dits navires appar- 
 ' tiendront, seront libres, et rendront aussi toiite leur charge 
 ' libre, Men qriil y eust dedans de la marchandise ; mime des 
 ' grains et Ugumes appartenans aux ennemis : sauf et ex- 
 ' cept6 toutefois les marchandises de contrebande.' * 
 
 According to the well-understood language of the present 
 day, if this stood alone, the phrase, ' rendront aussi toute 
 ' leur charge libre,' would convey very clear and definite 
 ideas. De Witt and the Dutch had little doubt about it 
 eight years afterwards, when it came into dispute ; and they 
 understood it as, we must own, with modern ideas, all 
 Europe would now understand it to mean, that not only 
 the ships and property of friends, but the property of ene- 
 
 * Id. Ibid. Artie. I. 
 
 K mies 
 
130 THAT FREE SHIPS- \Prop. I. 
 
 mies also, should be free from confiscation. Allowances, 
 however, must be made for novel language, (for at the time 
 it was new) ; and, at all events, deference must be paid to 
 the intendment of both parties ; and if the Dutch made use 
 of one interpretation, another was put upon it by the 
 French ; the former yielded their object, the latter never 
 did. In the year 1653, De Witt endeavoured, through 
 Boreel, to negotiate a great commercial treaty with France, 
 in which he laboured hard to be allowed his maxim of 
 ' Free Ships Free Goods' in the modern understanding of 
 the phrase ; that is, that enemies' property should not be 
 seizable. But Boreel informed him, that he never could ob- 
 tain it under that construction of its terms ; and then, for 
 the first time, at least upon record, after the signing of the 
 treaty of 1646, it appears that the French Government had 
 very different ideas from De Witt and Boreel of what 
 was really meant by its important first article. Being in- 
 serted, said the former, merely in order to suspend the effect 
 of the ordinance of 1584, its interpretation was to be 
 guided entirely by the subject matter Contained in the ordi- 
 nance ; and that being to protect an old and known law, by 
 adding to the breach of it a heavy penalty which had 
 never before accompanied it, and which was now com- 
 plained of, any agreement to remedy the inconvenience of 
 the ordinance could go no farther than the inconvenience 
 mentioned : it might take off what was complained of, 
 namely, the penalty, but could never abrogate the law it- 
 self. Consequently all that was done, was to restore things 
 to their old situation before the ordinance, which was, that 
 the enemy's property in the ship might be seized as of old, 
 but that the ship itself, and all neutral property on board, 
 were to be considered as free ; and this was all that was 
 meant, when it was said that the ship should be free, and 
 render also its cargo free : thus applying the word free to 
 
 the 
 
Sec. III.] MAKE FREE GOODS. 131 
 
 the ship and neutral cargo alone, which were not so consi- 
 dered by the severity of the ordinance. 
 
 I own, this reasoning appears to me to be convincing ; 
 and the only cause for doubting of its soundness seems to 
 arise from the long habit we have been in of annexing a par- 
 ticular and different interpretation to the phrase, Free Ships 
 Free Goods. At this period, we have no ordinance of 1584 
 to encounter, as the ground which gave rise to the dispute ; 
 but having been accustomed long to consider it as an abstract 
 proposition with a defined meaning, totally distinct from any 
 historical circumstance, we, therefore, by a prejudice by 
 no means unnatural, divert the leaning of our minds to 
 one, and only one, interpretation. Placing ourselves, how- 
 ever, in the situation of the French Ministry in the middle 
 of the seventeenth century, and only eight years after the 
 relaxation of the old ordinance of 1584, we shall not, per- 
 haps, consider the dispute as so clear in favour of the Dutch. 
 One argument, also, there is on the side of the good faith of 
 the French Government, that grain and provisions, in those 
 times, fell in amongst the general articles of contraband ; 
 the carrying of which being, when not stipulated for to the 
 contrary, a Cause for seizure ; the exemption from it, in the 
 case stated by the words of the article ' mime des grains et U- 
 gumes,' points entirely to the ship and the neutral part of 
 the cargo. When this difference arose also, it was not a 
 sudden, or temporary change, to serve a particular purpose, 
 in interpreting the treaty of 1646, but a discussion, in the 
 outset, of the meaning of terms to be inserted in a much 
 larger treaty of comnierce, and for a much longer time, 
 then in the act of being framed. Boreel, it appears, had pre- 
 sented the project of the treaty containing this self same article 
 in terms ; and had written, as it would seem, to De Witt, 
 to inform him that his project was not opposed : he was sur- 
 prised, therefore, to find that he had been totally mistaken 
 when he learned, after having announced it to De Witt, 
 
 K 2 that 
 
132 THAT FREE SHIPS \Prop. I. 
 
 that a very different sense was put upon those words ; and, 
 hence, when the Pensionary replies to his second infor- 
 mation, he says, that it appeared to him, either that the 
 French Ministers were mistaken in that construction, or 
 that Boreal himself had represented the thing in a wrong 
 light in his letter ; since, by the detail of the article, 
 though the phrase is not there, the rule of Free Ships Free 
 Goods 'y est nettement exprim6e.' 
 
 Be this as it may, the French, as we see, interpreted it 
 differently, not only in the project of the new treaty pre- 
 sented by Boreel, but also in the old one of 1646; and, as 
 he says himself, had also put it in practice, ' k la v6rit6 fort 
 mal ;' and, therefore, as they were always at liberty to put 
 the same explanation upon it, he advises a more clear and 
 precise form of words, unconnected with the ordinance of 
 Henry III. ; and proposes the introduction of the maxim 
 of ' Free Ships Free Goods,' in terms, with sufficient expla- 
 nations to put it out of doubt, according to the Dutch senses 
 of it, but in which proposal he did not succeed ; and it was, 
 for some years afterwards, altogether rejected by the 
 French.* 
 
 The history of this discussion, of course, will explain 
 what was meant by the next treaty we find on the subject, 
 May, 1655, between France and the Hanse Towns ; the 
 third article of which is precisely the same ; the duration 
 for fifteen years.f But, though the form of words is so 
 particular, and, apparently, so strong against the rule of 
 the Consolato, it is impossible, after the pointed discussion as 
 to their meaning, to have any doubt of what was offered, 
 and what was accepted. The French, who had continued 
 so firm to their own interpretation with the flourishing 
 
 * See the whole of this dispute, in the Lettres et Neg. de De Witt, 
 torn. i. 80, 81, 104, 105, 108, 129. 
 t Corps Diplom. xii. 103. 
 
 Dutch 
 
Sec. III.] MAKE FREE GOODS. 
 
 133 
 
 Dutch Republic, that the treaty in contemplation was en- 
 tirely dropped, would hardly, within a twelvemonth al- 
 most, give up the whole of their objection in favour of the 
 declining Hanse. Whatever, therefore, was the form of 
 words used, there can be no doubt as to the meaning of these 
 two treaties ; and, if these are included amongst the thirty- 
 five enumerated by Busck, as trenching upon the Consolaio, 
 they ought to be instantly expunged. In the space of five 
 years afterwards, Denmark and Sweden made two treaties 
 of alliance and commerce together; one in 1658, and ano- 
 ther in 1660; neither of which makes any mention of an 
 innovation on the Consdato;* and Spain had formed ano- 
 ther with the Hanse Towns in 1647, in which she gave 
 them the fullest liberty of commerce ; with the strong ex- 
 ception, however, that they should give security by regis- 
 ters, certificates and other modes, not to bring Dutch 
 property into any of the places within her jurisdiction; 
 a pretty forcible example, that the rights of commerce were 
 not in the treaties, even of this time, enjoyed in the same 
 manner as during peace.f 
 
 What De Witt himself thought of the rights of Neu- 
 trals, when his own country was belligerent, may be col- 
 lected from the famous placard pufelished by Holland, in 
 1652, upon the approaching war with England. Not con- 
 tent with interdicting all carriage by her own subjects of 
 neutral property into the ports and harbours of her enemy, 
 she gives notice to Neutrals themselves, though in their 
 passage to other neutral countries, not to be found on the 
 coasts of England, or its dependencies, on pain of incur- 
 ring suspicion ; and, if found to be laden ' en partie ou en- 
 ' tidrement de quelque munition de guerre ou de bouche, ' on 
 pain of being brought into the ports of Holland, and con- 
 fiscated by the Dutch Admiralty.J 
 
 • Fred. Leon. v. sub. an. t Corps Diplom. xi. 424. 
 
 J 12 Corps Diplom. xxxvii. 
 
 K 3 About 
 
134 THAT FREE SHIPS {Prop. I. 
 
 About thife time, the famous treaty of Upsal was made 
 between Cromwell and Christina, under the auspices of 
 Oxenstiern and Whitelock. It acknowledges the rights of 
 commerce to the full ; it expressly states, that although the 
 laws of friendship forbid eillher of the confederates to assist 
 the enemies of the other, yet it must by no means be un- 
 derstood, that that confederate, who is not at war, shall 
 carry on no manner of trade or navigation with those ene- 
 mies. Yet, while in this spirit of complete neutral inde- 
 pendence, the very next article, by glancing at it cursorily, 
 and as a thing known, acknowledges the extent of our rule, 
 in perhaps a stronger manner than if it had contained an 
 express provision on the subject. ' Lest such free navi- 
 • gation, ' says the article, ' should be prejudicial to the 
 ' confederate that is at war, and lest hostile goods and wares 
 ' should be concealed under the disguise of friendship; and, 
 ' for removing all suspicion and fraud, passports and certi- 
 ' ficates shall be provided.'* It is needless, I think, to' 
 point out the strong and pronounced manner in' which the 
 belligerent right is thus acknowledged ; it is only necessary 
 to add, that in the two treaties which followed hard upon 
 this, one in 1654, the other 1661, the same sort of lan- 
 guage is held, both with respect to Neutral and Belli- 
 gerent.f 
 
 Several treaties were about this time framed, which, for 
 brevitys sake, may be mentioned all together, though of 
 different dates, because all come under the same class of 
 perfect, though silent acquiescence. These. are, — those be- 
 tween Cromwell and the Dutch, 1654;! Cromwell and 
 France, 1655 ;1| Denmark and Sweden, 1658, and ano- 
 ther, 1660 (mentioned before) ; § Sweden and Moscow, 
 
 * .Chalmer's Treaties, i. 25, 26. t Id. xxxiv. 53. 
 
 + 12 Corps Diplom. Ixxvii. |1 S Fred. Leon. xi. 
 
 § 12 Corps Diplom. 208. 
 
 1661 
 
Sec. III.] MAKE FREE GOODS. 135 
 
 1661;* England and Prussia, 1661 ; f England and 
 Denmark, i66i;t and England and Holland, 1662. § 
 In none of these, though containing general stipulations, 
 both for freedom of commerce and the withholding assist- 
 ance to enemies, is the principle in terms either confirmed 
 or denied ; and, as it did not; in those times, from the 
 abundant proof we have given, stand in need 'of being 
 confirmed, we say, that not being excepted from, it was 
 sufficiently a,cknowledged. 
 
 In the treaty between England and Holland in particular, 
 it would have been denied upon a principle of right, could 
 the age have allowed it. In the proposal for a maritime 
 treaty, delivered by Nieuport, the Dutch Ambassador to 
 Cromwell's Government, December, 1654, he endeavours 
 to obtain it by yielding, in the same sentence which con- 
 tains the proposal, a right instead of it, which seems truly 
 founded in the most impartial neutrality. This was, that 
 the goods of friends, taken on board the ships of enemies, 
 should be restored ; and the sacrifice of this, in the above 
 proposal, accompanied the stipulation with respect to the 
 other, without, however, being accepted by the ministers 
 of Cromwell. II At the same time, the Dutch continued 
 their negotiations for its accomplishment upon these terms, 
 in other Courts ; and, at length, had obtained it from 
 Spain, in 1650 ; from Portugal, in 1661 ; and from France, 
 in i66z. In the twenty-fourth article of the treaty, 6th 
 August, 1 66 1, the one right is set against the other in 
 the following very clear and precise terms. 
 
 ' Bona quselibet ac merces, sive ad dictos regem ordines- 
 ' que spectabunt sive ad utrumvis populum, si navibus alte- 
 ' rutri parti inimicis hostibusque creditse ac in iis depre- 
 ' hens£e fuerint, non minus quam naves ipsse in praedam 
 
 ♦ Corps Diplom. 364. t Id- it>. t Id. 400. 
 
 § Id. 426. II 3 Thurloe, xxxiii. 
 
 K 4 • cedant. 
 
136 THAT FREE SHIPS [Prop. I. 
 
 ' cedant, ac fisco occupantium addicantur : merces vero ac 
 ' res qusecunque ad partis utrius libet hostem pertinentes, 
 ' regis ordinumque jam dictorum aut utriuscunque populi 
 ' navibus impositae, in eas fisco nil juris esto, adeoque nee 
 ' detineantur, nee possessoribus intervertantur.* 
 
 This article is almost literally translated in the thirty-fifth 
 of the treaty which followed with France in April 1 662 ; j- 
 and thus, it was, for the first time in Europe, and full twenty 
 years after the commencement assigned for it by Busch and 
 Schlegel, that the maxim of Free Ships Free Goods began, 
 at length, to exist. 
 
 We have this important fact, therefore, with respect to 
 the introduction of this supposed natural right; that it 
 never was started nor obtained as such ; that it was not ac- 
 quired by force, as a thing calling upon all neutral nations 
 to confederate themselves for its accomplishment; neither 
 was it a free grant from a sense of justice in Belligerents ; 
 but it was established by conventions that stipulated mutual 
 advantages, and, in particular, was accompanied by the vo- 
 luntary sacrifice of a right, really emanating from the Laws 
 of Nature, and long acknowledged by the Law of Nations. 
 
 The right of an impartial Neutral to continue his trade 
 with each Belligerent, so long as that trade can in no respect ' 
 do injury to either, is certainly, from the first principles of 
 justice, uncontested and incontestable ; and it would be dif- 
 ficult to shew how injury is done, or what interference 
 there is in the war, by placing such goods as are sacred, from 
 their neutrality, and have, therefore, a right of passage all 
 over the world, under the care and protection of a bellige- 
 rent flag. Something in point of prudence may be urged to 
 prevent their being exposed to the accidents of war ; but if 
 
 • 12 Corps Diploni. 369. Artie. 24. t Id. 415. 
 
 the 
 
Sec. III.] MAKE FREE GOODS. 137 
 
 the Neutral chooses to risk this, it is impossible, I think, to 
 conceive a well-founded reason for supposing, that any con- 
 fliction of rights between him and the other Belligerent 
 can arise from the procedure. This, then, seems an innocent, 
 and, therefore, a natural right in the Neutral ; as such it 
 formed one of the provisions of the Consolato;* and as such 
 it was approved by Bynkershoek :t and amongst commercial 
 nations, who were themselves not carriers, much fair advan- 
 tage would, no doubt, arise from its exercise. In the times be- 
 fore us, for example, the Portuguese were commercial, but 
 not great carriers; while the English had many manufactures, 
 and were also very great carriers : and they had fleets likewise 
 to defend themselves, and those who would entrust their pro- 
 perty to their care, against almost all attack. It was, there- 
 fore, greatly to the interest of Portugal, that this right should 
 be enjoyed, in case of a war between England and Hol- 
 land. In the same manner, France was, perhaps, at that 
 time, still less in the habit of freighting ships than Portu- 
 gal ; but she had great and esteemed manufactures, and na- 
 tural produce in general request ; and it would seem, that, in 
 case of such a war, it would have been impolitic to grant to 
 Holland, that if she chose to continue to lade her merchan- 
 dise on board of English vessels, they might become law- 
 ful prize to them, in common with the vessels themselves. 
 
 This, however, we see, was done both by Portugal and 
 by France, in the treaties we have been contemplating, 
 and in the very article and the sentence itself, in which they 
 stipulate for the principle of Free Ships Free Goods. Those, 
 therefore, who contend that the principle is acknowledged, 
 by treaty, to be a natural right, have to account for the 
 pointed and incompatible circumstance, that what was sti- 
 pulated in the very same moment of time is; incontestably 
 , _— 
 
 • See page 33, 33. 
 t Qusest. Jur. Pub. cap. xiv. 
 
 an 
 
138 THAT FREE SHIPS \Prop. I. 
 
 an invasion of natural right. Certain, at least, it is, that 
 those who contend that the commercial rights of Neutrals 
 are in no wise broken in upon by the event of war, but are 
 exactly the same as in times of peace ; and this is ac- 
 knowledged by the majority of the treaties, or, as they say, 
 by the conventional law of Europe ; must have either rashly 
 hazarded this assertion, or must reconcile the insurmount- 
 able incongruities thus peculiarly presented to them in the 
 first two , treaties, which contain an express stipulation for 
 the maxim in discussion. 
 
 The true reason of these stipulations is, in fact, to be 
 found in .the convenience of Europe, and not in any wild 
 wish to uphold a law of natural justice. That law would 
 and did decide upon both points, according to the ancient 
 usage ; but from the growing and multifarious commercial 
 connections of Europe, it was sometimes made a question, 
 whether it might not be better to beat down all difficulty 
 and entanglement, by sacrificing both the belligerent and 
 the neutral right ; and hence they enacted, as it were by 
 positive contracts, that in future there should be no dis- 
 tinction as to property, but all should obey the character of 
 the ship. 
 
 We see, then, in what trammels, and how little partaking 
 of that absolute freedom of navigation, founded, as it is 
 said, in natural law itself, the principle before us was 
 first introduced. Those trammels have ever- afterwards 
 continued, and the whole proves very clearly, that both 
 the one and the other were in direct derogation of natural 
 justice, and simply matters of the purest convention. That 
 it was convention, even in the minds of those who framed 
 the treaties, must, I think, be clear ; since the new arrange- 
 ment, beyond all contradiction, overturned the received 
 and antient usage ; for it must be remembered, that both the 
 provisions of the Consolato, which, as we have seen, had 
 ruled the maritime conduct of States for ages, were thus 
 
 reversed. 
 
Sec. III.] MAKE FREE GOODS. 
 
 139 
 
 reversed. And as one of them must be allowed, most 
 particularly by the champions for neutral privileges, to 
 have been founded in the clearest natural right ; it must be 
 supposed, that the other, which shared its fate, partook of 
 its nature also. For, otherwise, the language of the assertors 
 of commercial liberty must and can only be this : — We 
 wish to destroy the tyranny of unjust usage and . antiquated 
 maxims, and to restore our trade, which has so long been 
 fettered, to its ancient and natural liberty: we therefore 
 abrogate the principle of seizing enemies' property in 
 neutral vessels, which was an arbitrary invasion : and, 
 frorn our hatred to arbitrary invasion, we also abrogate 
 the rule of allowing neutral property on board enemies' 
 vessels to be free, which was founded in justice. — I see 
 no possibility of avoiding this decisive dilemma, in those 
 who can imagine that the introduction of the maxim before 
 us into treaties was the mere effect of the ' progrks des lumi- 
 ires,' bringing back things to thQ state of natural liberty. 
 
 Without descending, therefore, to the folly and blind- 
 ness of enthusiasm in a treatise of law, let us place the 
 matter really upon its right footing, namely, that of parti- 
 cular agreement chaining up the Natural Law ; and, like all 
 other agreements of that kind, binding only such parties as 
 have contracted, and not amounting, nor capable of 
 amounting, (even if the majority of treaties were far greater 
 than stated) to the force and power of forming a law for 
 those who have made no agreement against it. Such, it 
 must be remembered, is the vain and visionary preten- 
 sion.* 
 
 In using this language, however, let us not be deluded 
 into the supposition that the subject has occasion for it. 
 The fact still remains to be settled from diplomatic history, 
 
 Schleg. 56. 
 
 whether 
 
140 THAT FREE SHIPS {Prop. I. 
 
 whether the treaties of this sort do actually exist in such 
 universality as upon their own principles to warrant its 
 assertion. In looking over the treaties, from the last that 
 have been mentioned to the year 17 15, I indeed find several 
 that are couched in the same terms. They are those be- 
 tween France and Spain, 1659, the Pyrennean treaty;* 
 France and Denmark, 1662 ;■): France and England, 1667, 
 the treaty of Breda ; J France and Holland, 1678, the 
 treaty of Nimeguen ; § France and Holland again, the 
 treaty of Ryswick ; || Sweden and Holland, 1667;** Eng- 
 land and Holland, 1668 ,-ff Sweden and Holland again, at 
 Nimeguen ; %% France and England, at Utrecht ; §§ France 
 and Holland, at the same place; |j|| and Russia and Holland, 
 17'S • §ll§ i^i 3-ll> eleven treaties, composed by seven 
 Powers. 
 
 But although all these, in their treaties, some with one 
 and some with another, acknowledged the principle on par- 
 ticular occasions, and with particular parties ; yet they did 
 not by any means acknowledge it in common, as binding 
 upon all of them intermingled together. Though two, 
 for example, might contract for its observance, whenever 
 their own particular transactions came in contact, each 
 might contract with others, either for the contrary 
 stipulation, or for something less ; or might leave the 
 matter wholly untouched. Thus France, though she re- 
 
 * I Jenkinson, 113. art. xix. 
 
 t 5 Fred. Leon. art. i. ii. iii. iv. viii. 
 
 $12 Corps Diplom. 439. 
 
 § 5 Leon. art. xiii. xjcii. 
 
 II 12 Coi-ps Diplom. 388. 
 
 ** Id. 13. 37. art. viii. 
 
 tt Id. 13. 75. art. A. 
 
 XX Id. 15. 440. art. xxviii. 
 
 §§ Id. 15. 218. art. xvii. xxvii. 
 
 nil Id. 377 art. xxvi. 
 
 §||§ Id. 471. art. ix. 
 
 versed 
 
Sec. III. J MAKE FREE GOODS. 141 
 
 versed the rules of the Consolato in her treaties with Eng- 
 land and Holland, stipulated for the exact observance of 
 that regarding enemies' property, in her treaty with the 
 Hanse towns in 1716. It was indeed so exact an observ- 
 ance, that if the property was in such large quantity as not to 
 be conveniently laden on board the capturing vessel, the 
 Neutral was bound to attend her to the nearest port in 
 France for the discharge of the rest* Thus Denmark, 
 though she contracted to follow the maxim with France in 
 1662, implied her acquiescence under the old law with Eng- 
 land in 1670;! and absolutely renounced the French carrying 
 trade by treaty with England and Holland in 1 69 1 .% Swe- 
 den too, who had agreed to the principle with Holland at 
 Breda, was at that moment under treaty not to pursue it 
 with England. § And though Spain had fallen in with it, 
 from the Pyrennean treaty to the peace of Utrecht, with 
 France and Holland, yet with England in 1667,11 a-nd with 
 the Emperor in 1725,^ her stipulation was for the converse 
 of the maxim alone; namely, that neutral goods on board 
 enemies' vessels should be confiscated. 
 
 Clearer cases of mere private compacts can hardly be 
 conceived than are exhibited by these examples of the di- 
 versity of the stipulation entered into by the same countries. 
 Little, therefore, could they feel themselves bound by any 
 general rule, still less by a general rule of natural and uni- 
 versal law. But what shall we say to that vast number of 
 treaties expressly commercial, or including commercial re- 
 
 * Corps Diplom. 15. 479. art. xxii. 
 
 t Id. 7. part. i. p. 132. She implied it by stating, that though each 
 party might trade with the enemies of the other ; yet, in order to prevent 
 the fraudulent concealment of enemies' property, passports, &c. should be 
 given. See articles xvi. and xx. 
 
 X Corps Diplom. 14. 293. 295. art. iii. 
 
 § By the treaty, 1661. 
 
 II Corps Diplom. 7. part ii. 27. 
 
 IT Id. 16. lis- 
 
 5 gulations, 
 
142 THAT FREE SHIPS [Prop, I. 
 
 gulations, which, during the very times when the principle 
 was canvassed, bargained for, admitted or rejected by these 
 different maritime States, passed the whole over in absolute 
 neglect ? As the reverse of the rule had hitherto incon- 
 testably governed Europe, are we to suppose that these were 
 to give way at once in silence, and without the least public 
 indication of such a change, to the comparatively few in- 
 stances of alteration which had appeared ? Or, are we to 
 suppose, that these instances formed the exception which, 
 as is seen, it required new and marked language to intro- 
 duce ? . The negotiators of the novel maxims pushed it with 
 the utmost activity, and at first had nothing but difficulty 
 to encounter. It was Holland that made the signal for a 
 change ; Holland, who filled every maritime Court with 
 proposals for the introduction of the new principle ; Hol- 
 land, whose existence almost depended upon it : while other 
 nations, reposing on their own resources, balanced long 
 upon the innovation, and rejected, at first, all attempts at 
 its completion. ; It is to be observed also, as a consideration 
 of the first weight, that during the whole of this period, the 
 question thus agitated was uniformly entertained in almost 
 every one of the works , of public law which so frequently 
 raise and illustrate the literary character of those times. 
 The ablest civilians and' statesmen were employed upon 
 what was thus generally started ; and their opinions, 
 as we have seen, inclined uniformly to the support of 
 the existing law. It seems, therefore, almost impos- 
 sible, by any magic of reasoning, to come to the conclu- 
 sion, that where a law has existed for four hundred 
 years, and is still supported in the writings and opinions 
 of learned men, and where a vast body of treaties are 
 daily forming, that take no notice of the change ; it is 
 difficult, I say, to conceive that a smaller number of con- 
 ventions, acknowledging a new regulation, can form any 
 , I thing 
 
T 
 Set^. III.] MAKE FREE GOODS. I43 
 
 thing but an exception : certainly it cannot amount to a 
 contrary rule itself. 
 
 We have seen that the treaties which introduce the new 
 maxim, from 1642 to 1715, amounted to twelve; we have 
 seen that those which stipulate either different or contrary 
 conditions are seven. There are, besides, 31, which make 
 no mention of the rule one way or the other ; and all these, 
 we contend, bottom themselves upon the old law, which 
 we say the countries making them had never relaxed, ex- 
 cept by express convention. 
 
 Of these treaties we have already enumerated eight, 
 which were formed about the time that gave birth to those 
 in which the maxim was first acknowledged in Europe. 
 And there are, therefore, twenty-three which are wholly silent 
 with regard to the stipulation. The first of these is the 
 treaty between Denmark and Holland, in 1666, made to 
 ascertain the rights of their mutual commerce, and ex- 
 pressly to repel the gross invasion of the neutrality of the 
 former, by the English, at Bergen. The first article 
 makes an enumeration of pretty strong acts of violence, on 
 the part of the English fleets and cruisers ; in particular are 
 mentioned the seizure of Danish vessels sailing even to 
 neutral ports, the cannonading of Danish forts, and other 
 examples of unlawful attack ; but nothing is glanced at 
 with respect to any seizure for carrying enemies' property, 
 which, amidst such prompt and rash acts, must, doubtless, 
 have happened. Nor does it form any part of the league 
 to prevent this old belligerent right on the part of England ; 
 or to stipulate for its dissolution on the part of the contract- 
 ing Powers. At the treaty of Breda, between England 
 and Denmark, although the question was much agitated, 
 and the maxim agreed upon between various of the other 
 Powers, it passed, as to them, in the same acquiescent 
 silence. 
 
 In 
 
144 THAT FREE SHIPS [^Prop. I. 
 
 In the same year, 1666, France renewed a treaty with 
 Algiers, in which no mention was made of it ; at Breda* 
 it was not touched upon by England or Spain ; nor after- 
 wards, in 1670:! nor in i66g, by England and Savoy.]: 
 It was equally disregarded by England and Sweden in 
 1666 ; by another treaty in 1674; |1 and by France and Swe- 
 den, in i672.§ At Nimeguen, it was neglected by Swe- 
 den and Holland, although the Dutch proposed, and ob- 
 tained the right of coasting from one enemy's port to ano- 
 ther.** At Brussels, previous to Nimeguen, the agree- 
 rhent upon coasting, between Spain and Holland, proves no- 
 thing, by proving too much ; for it is allowed even to their 
 own subjects, either in their own, or neutral vessels ; and 
 at any rate, the maxim immediately before us is left un- 
 touched. ff So also it is in the treaty between England and 
 the Porte, in 1675 ;H in that between England, Sweden, 
 and Holland, in i7oo;|||| and between Holland and Den- 
 mark, in i7oi.§§ 
 
 The Dutch treaties with the Barbary States, with Tri- 
 poli in 1703, with Tunis in 1708, and with Algiers in 
 1712,*!* leave the maxim alike in silence; in those between 
 Portugal and Spain 1701 f*t; and Portugal and England 1703, 
 it is equally disregarded.J*J Thus it is also in the treaty be- 
 tween England and Dantzic in 1706 ; ||§|| and of Utrecht in 
 1713 ; and by the second treaty 17 14, it was left unpro- 
 vided for by England and Spain. §||§ 
 
 Tijis last treaty renewed the treaties of 1667 and 1670, 
 in which ' Free Ships Free Goods ' was not mentioned ; 
 
 * 5 Fred. Leon. f 2 Chalmers, v. 
 
 X Corps Diplom. xii. 119. 
 
 II Id. vi. iii. Ixxxiii. and vii. p. i, 280. § 5 Fred. Leon. 
 
 ** Corps Diplom. xiii. 440. ft Id. 325. 
 
 1 1 Id. T. vii. p. I, 297. II II Id. vii. I, 475. § § Id. XV. 32. 
 
 »t* Corps Diplom. 15. 137. 232. 295. t*t Id. 31. 
 
 J * J 2 Chalmer's Treat. 296. || § || Chalmer's Treat. I. 100. 
 
 k II § Corps Diplom. 15. 393. 409. 
 
 though 
 
Sec. III.] MAKE FREE GOODS. 145 
 
 though it was stipulated in terms that the converse should 
 be allowed. We must remember all along, that whenever 
 the maxim of Free Ships Free Goods was admitted, it was al- 
 ways accompanied with the reversal of the other provision of 
 the Consolato, that neutral property on board enemies' ships 
 should be free ; and I am aware, that in some interpreta- 
 tions of very learned men it is said, whenever this reversal 
 is stipulated for, which it frequently is, the other maxim 
 follows along with it as a thing of course. This they 
 ground upon the reason which has before been stated, that 
 both principles take their rise in convenience ; and that, iri 
 order to avoid the confusion, delay and chance of injustice 
 which may arise in ascertaining the different national cha- 
 racters of the owners of the cargo, it is better to sweep 
 away the whole at once, under the national character of the 
 ship. 
 
 Now, I own, the reasoning does not appear convincing; 
 since, though the argument, from convenience for the one 
 or the other principle, or both, may be perfectly sound, yet 
 that intimacy of connection and indissolubleness of union 
 between the two, which alone can render them inseparable, 
 does not appear to exist, so as to make the allowance of 
 one an inevitable cause for allowing the other. That coun- 
 try, indeed, which stipulated for the one, might, very pro- 
 bably, be disposed to stipulate for the other; but courts of 
 justice could not assume, from the mere probability of that 
 disposition, that both were, in fact, granted, where only 
 one was mentioned. Rather, on the contrary, we might 
 suppose, that, from their very affinity, the prohibition of the 
 one, without the mention of the other, is a strong proof 
 that the latter was never intended to be inserted ; and thus, in 
 the treaty of Utrecht renewing that of Madrid, 1667, between 
 Spain and England, which is the only one between these coun- 
 tries which makes mention of either principle, it must de- 
 pend entirely upon what is there stipulated : and as the con- 
 
 L verse 
 
146 THAT FREE SHIPS \Prop. I. 
 
 verse only of the maxim we 'are discussing is there to be 
 found, we are warranted, I think, in saying, that between 
 these two great maritime States the maxim itself is not al- 
 lowed. ■ So, at least, does a great authority understand it, 
 when he says, in his Discourse on Neutral Nations, that no 
 article can be found in the Spanish treaty, which grants the 
 privilege in question to that nation.* 
 
 At Utrecht the point was left untouched between France and 
 Portugal; and thus, while thirteen or fourteen treaties, from 
 the epoch of 1 642 to the complete termination of the negotia- 
 tions of Utrecht in 1715, are to be found, stipulating for the 
 maxim in question, whose universality in these times is so 
 boasted by Schlegel, seven are to be discovered, framed ex- 
 pressly on the opposite rule ; and no less than thirty -one, by 
 their silence, give it, under all the circumstances, a most 
 direct negation. 
 
 In this place, I cannot help recurring to what may be 
 esteemed a considerable authority on the subject, busied as 
 we here are in negative proofs. The Abb6 Mably, in a 
 book professedly treating of the Droit Publique, as drawn from 
 the treaties of Europe, gives large place to the whole sub- 
 ject of commerce, both in the abstract, and as it is found in 
 treaties ; and he presents a kind of conspectus, under the 
 title of ' Conventions G6n6rales touchant la Navigation et 
 le Commerce ; ' under which he arranges all that he con- 
 ceives may amount to a general rule, concerning commer- 
 cial stipulations ; and these he Collects from the universality 
 in which they have been laid down by the conventions of 
 Europe. But, though he enumerates all that has been de- 
 manded on the one side, and granted on the other, as it re- 
 gards the maritime rights and duties of States ; though he 
 mentions all that has been settled by compact, respecting 
 refuge in the ports of friends from tempests or pirates ; or 
 
 * The Earl of Liverpool's Disc. p. 20. 
 
 respecting 
 
Sec. III.] MAKE FREE GOODS. 
 
 147 
 
 respecting the manner of exercising the right of search, the 
 extent of embargoes, the number in which armed ships shall 
 enteiteach other's harbours, the nature of contraband, and the 
 jurisdiction of Admiralties ; though, to come nearer to our 
 subject, he in particular takes notice, that it has been deter- 
 mined, that the goods of friends shall partake of the cha- 
 racter of the ship which covers them, and be alike confisca- 
 ble in the Court of Prize ; yet, strange to say, the converse 
 of this wholly escapes him, and he takes not the least notice, 
 as a point of law resolved on by treaties, or resolved on any 
 way, of the maxim of ' Free ships Free goods.' This 
 negative proof of his opinion comes, at the same time, with 
 greater weight, because it is in the very part of his work 
 in which he sets up the visionary question as to the policy, 
 humanity and justice, of making war upon private property ; 
 leaning in this to the fanciful and wild scheme of a Military 
 War, and a Commercial Peace. Consequently he stands clas- 
 sed eminently in the same rank with those who wish to car- 
 ry the rights of Neutrals to a height without limit; and 
 his authority by them, at least, must be considered as indis- 
 putable.* 
 
 The treaty of Utrecht, and the conventions which grew 
 immediately out of it, make perhaps the greatest epoch in 
 the regulations of Europe during the last century. Great 
 interests, of all kinds, were there settled, forming the basis 
 of most of the treaties which were afterwards framed, and 
 bringing the numerous subjects of dispute in the century 
 before to some sort of order. 
 
 The wars and negotiations, and final arrangements of 
 interest, which employed nations for the rest of the age, al- 
 though they gave great scope to the Governors of States, did 
 
 * See Le Droit Pub. de I'Europe, fond^ sur les traitfe, par I'Abbe 
 Mably. 2. 459 to 488. 
 
 L 2 not. 
 
148 THAT FREE SHIPS \_Prop. I. 
 
 not, therefore, wear that varied sort of complexion, or afford 
 that immense diversity of great general objects, which pro- 
 duce changes in long established and long respected rules. 
 The Kings of the world fought or negotiated, as usual, for 
 the usual objects of ambition or national interest ; but the 
 principles of public conduct were, from this time, settled 
 into comparative uniformity. 
 
 From the' peace of Utrecht', therefore, down to the fa- 
 mous period of the Armed Neutrality, nothing very material 
 occurs, as to the principle before us, in the views and con- 
 duct of the maritime powers. It went on, as we saw in 
 the last century, often stipulated for by commercial conven- 
 tions, but oftener passed over in the treaties of the times. 
 That it existed in the majority of those that were formed, 
 is not more true, during this period, than the last ; that it 
 was once, for the first time, set up as a natural right, distinct 
 from all treaty, by the Prussian King, in 1752, is, as we have 
 seen, true ; but that it was instantly beat down by the co- 
 gency of the reply, so as, at least, to produce an alteration 
 of conduct, if not of sentiment ; and that the authority of 
 three of the most learned of their time was directly against 
 it, has also been set forth at large. Under all the insults, 
 injuries, and abuses, which the right to invade enemies' 
 property on board neutral vessels had too often generated, 
 no one, until the armed pretensions of 1780, again thought 
 of setting up the principle, either as a positive remedy, or 
 an abstract right, emanating from the indissolubleness of 
 natural justice. 
 
 To return, however, to the point immediately before us. 
 It remains still to be seen, whether the conventions of the 
 times, up to this epoch, continued, as asserted by Schlegel, 
 to form a majority equal to the unheard of pretension, — to 
 legislate for other independent Sovereignties. Into that point 
 we are not now called upon to examine, but are merely en- 
 quiring as to the fact concerning the number in which the 
 
 treaties existed. 
 
 I The 
 
Sec. III.J MAKE FREE GOODS. 149 
 
 The principle being, as we have seen, allowed by treaty, 
 between France and England, France and Spain, and France, 
 Spain, England, and Russia, with Holland ; all treaties con- 
 firming these, though not new in these points, are claim- 
 ed to be taken by our opponents as enhancing the number 
 in their favour. But, though much may be observed on 
 the fallacy of that mode of computation, as the medium of 
 truth on the subject, I have not been unwilling to obey the 
 path they have pointed out, for the sake of ascertaining how 
 far the assertion, as to numbers, is really well founded. 
 
 The treaties, then, of the seventeenth century, as to com- 
 merce, having been for the most part confirmed in the greater 
 treaties of the eighteenth, I am willing to take such 
 treaties as those of Madrid and Seville, of Vienna, Aix la 
 Chapelle, and of Paris, as augmenting the number of those 
 which allow the principle amongst all the contracting par- 
 ties which had allowed it before. Upon this mode of cal- 
 culation, the treaty of Seville, between France, Spain, and 
 England, confirms the maxim between the two first, and 
 the last and the first, in confirming the treaty of Utrecht. 
 
 It is also confirmed by the treaty of Aix la ,Chapelle, be- 
 tween France and England, France and Spain, Holland and 
 France, and Holland and Spain ; so also, by the treaty of 
 Paris, in 1763, between England and France, and France 
 and Spain. 
 
 I find it also allowed in the treaty between England and 
 Tripoli, in 1751 ; England and Tunis in 1752; and again 
 with both those powers in 1762. There are also, as it is 
 said, others between Denmark and Spain in 1742 ; Denmark 
 and Naples in 1748 ; Denmark and Genoa in 1756 ; and Na- 
 ples and the Netherlands in 1752 ; and these for the present 
 I am willing to take for granted.* On the whole, then, 
 
 L 3 this 
 
 • This enumeration was made in a cause in the Court of Prize here, but 
 I have not yet had an opportunity of seeing them. I a little doubt their 
 
 accuracy 
 
ISO THAT FREE SHIPS {Prop. I. 
 
 this enumeration of conventions from 1715 to 1780, which 
 stipulate for the observance of the principle, reckoning 
 each contract between any two parties at a general treaty 
 as a separate treaty of itself, amounts to twenty. 
 
 On the other hand, it is no where mentioned in the trea- 
 ties between the Emperor and the Porte in 1718 ;* between 
 Sweden and Russia in 1721;! or Sweden and the Porte in 
 1739 ; J nor is it mentioned by Sweden and England in 1720 ; § 
 nor again in 1766. 1| Spain and England, by confirming 
 their ancient treaties at Madrid, 1721,** left the matter 
 where it was, which, as we contend, was not to allow the 
 maxim: so they did at Seville in 1727 ;j-f at Aix la Cha- 
 pelle in 1748, where Sardinia and Genoa also left it untouched 
 between England and themselves ;{J and at Madrid, again, in 
 1750 ;§§ and at Paris in 1763. |||| The accession of Portu- 
 gal, also, to the latter treaty, by confirming all former 
 conventions, left the subject without any alteration between 
 herself and Great Britain. Russia and England passed by the 
 maxim in 1734, 1742, and i7SS;§*§ and in 1766 the most 
 extended liberty that was granted was to be allowed to 
 trade with enemies, ' observing, at the same time, the prin- 
 ' ciples and maxims of the Law of Nations generally ac- 
 knowledged.' Of course, the principle before us was not 
 in contemplation. 
 
 Sweden and Denmark, in 1720, allowed what all com- 
 mercial treaties allow at the close of a war — the liberty of 
 
 accuracy, as there is also enumerated with them the treaty of Viemia, 1 725, 
 between Spain and the Emperor ; which, unless proof of the converse of 
 the maxim is proof of the admission of the maxim itself, does certainly not 
 go to the length of the assertion. 
 
 * Corps Diplom. 16. 33. t Id. 36. 
 
 X Rousset Recueil Hist. &c. 18. 5. § Corps Diplom. p. 2. 18. 
 
 II I Chalmers, 60. *• Corps Diplom. 8. 2. 33. ft Id. 258. 
 
 XX 3 Jenkinson, 374. §§ Pap. Off. c. 61. ||1| 3 Jenk. 177. 
 
 §*§ Gostling's Marine Treaties. 
 
 trading 
 
Sec. III.] MAKE FREE GOODS. 151 
 
 trading with each other, as in times of peace ; but no men- 
 tion is made at all of the maxim ; * neither is it farther no- 
 ticed between Sweden and Russia in 1721.! In the famous 
 treaty, cited by Hubner amongst his examples, to prove 
 the conventional law made- between the Emperor and 
 Spain in 1725, it is stipulated, as in the Spanish treaties 
 with England, that the converse of the maxim shall exist ; 
 but no mention is made of the maxim itself.J Notice of 
 either one or the other rule is wholly passed over by the 
 treaty between Naples and the Porte in 1740, §, and in the 
 preliminary treaty between France and Sweden in 1741. || 
 With respect to the Porte and the Barbary States, the 
 maxim is seldom heard of in their treaties in general. We 
 saw, indeed, that two treaties between England and Tri- 
 poli, in 1751 and 1762, and two between England and Tu- 
 nis, of the same years, allowed it to the full ; but in six 
 treaties with Morocco, and five with Algiers, from 1698 to 
 1783, all is passed over in silence ; ff and to come back again 
 to Europe, the old law of France disallowing any innova- 
 tion, is asserted in the most positive terms, by the treaty 
 between that country and Hamburgh in 1769. 
 
 The language of this last is somewhat remarkable. In 
 mentioning the rejection both of the principle and its con- 
 verse, it speaks not of it as a rule to which what is about to 
 be stipulated is an exception;' but lays it down rather as if 
 the contrary were the acknowledged general principle. 
 ' In order,' says the fourteenth article, ' that the inhabitants 
 'of Hamburgh may know in what consists the freedom of 
 ' their commerce and navigation in time of war ; and that 
 ' they may have a perfect understanding of the risks they 
 
 » Corps Diplom. 16. 30. f M. 16. 36. % Id. 16. 115. 
 § Rec. de Rouss. 18. 7. || Id. 18, 19. 
 
 tt Gosling's Treat. 304 et enfra. 
 
 •run 
 
152 THAT FREE SHIPS [Prop. I. 
 
 ' run in engaging in an illicit trade, it is decided that con- 
 ' fiscation follows : 
 
 ' I. Where goods and merchandise belonging to the said 
 ' inhabitants are found on board ships of the enemy. 
 
 ' II. Where contraband goods, hereafter to be specified, 
 ' are found on board the ships of the said city, destined for an 
 • enemy's country.' 
 
 The sixteenth Article then makes the specification ; and 
 the seventeenth adds, ' that it shall also comprehend 
 ' all the effects, goods, and merchandise generally, whatever 
 ' they may he, belonging to the enemies of the King.' The 
 ship itself, however, is not made subject to confiscation.* 
 
 And thus, according to this enumeration, not less than 
 thirty-four treaties passed between the various Maritime 
 States, from the year 1715 to 1780, which take no notice 
 of the principle before us ; and these, in addition to thirty- 
 one, which were formed between 1715 and 1642, the 
 epoch whence Schlegel, on the authority of Busch, 
 commences the series of contrary conventions, , make 
 in all no less than sixty-five. Seven are to be added, 
 which, as we see, were actually adverse. And the 
 maxim is, therefore, either positively denied, or totally un- 
 noticed by as many as seventy-two. Granting, then, what 
 is not improbable (calculating upon the ground which has 
 here been pursued) that there are thirty-five treaties favour- 
 able to the principle, what is to become of the proof that 
 it forms so considerable a majority as, of necessity, to make 
 the rule for all countries not bound } The power of thus 
 binding them, our principles have wholly denied, into 
 whatever proportion, on the one side or the other, the 
 treaties may be divided. But it seems not a little ex- 
 traordinary, that so new a paradox should be started as law, 
 with such fragile foundations even as to the fact ! 
 
 * Marten's Treat. 254. 
 
 Be 
 
Sec. III.] MAKE FREE GOODS. 153 
 
 Be this, however, as it may, and leaving the evidence of 
 treaties to prove what it can, the time was now actually 
 fast approaching when the claim was really to be set up as a 
 pretension founded in the Law of Nature ; and therefore 
 belonging to what is called the primitive Law of Nations. 
 In the last war alluded to (1756), the French had made such 
 havoc among Danish interlopers as to call forth the attention 
 of the Danish Governmentin the most serious manner; and there 
 being, without doubt, many of those instances of illegal vio- 
 lence which, in the wild uproar of general war, are too often 
 inseparable from the exertion of legal rights ; they sent over one 
 of their learned civilians to Paris, to vindicate their claims, 
 and, if possible, to settle a different law. This person was 
 Hubner, who wrote the treatise, which has so much engaged 
 our disquisitions, under these impressions; and who may, there- 
 fore, be considered as an advocate pleading under particular 
 instructions, and, as far as that can influence an advocate, 
 under the impulses of particular feelings. I do not mention 
 this as a thing of much, if of any weight ; but I cannot help 
 observing, if there can be any difference, that it must be 
 all on the side of the dispassionate and unbiassed treatises 
 of those learned and virtuous personages of the last and the 
 preceding ages, who wrote for the improvement of the 
 world, without reference to any particular object, to any 
 country, or to any king. Such men did not compose their 
 admirable works for the accomplishment of a mission, in 
 which success was probably to be the foundation of their 
 fortune ; they engaged in their noble occupation for the sake 
 of truth, considered by itself, or, at most, for the acquisition 
 of honourable fame. About such men, therefore, there is 
 thrown a sanctity and veneration, which, with equal learning 
 and knowledge, others cannot acquire. The difference 
 seems to be no less than that of the advocate and the inde- 
 pendent judge ; and, supposing them to be equal in all other 
 points, these observations must ever attend the comparison 
 
 between 
 
154 THAT FREE SHIPS [Prop. I. 
 
 between Hubner, and Vattel ; Heineccius, Bynkershoek, 
 Puffendorf, and Grotius ! 
 
 Be it, however, as it may, it must be acknowledged, 
 that, from this time, an alteration in the claims of right, 
 under the Neutral Code, came to be attempted by many na- 
 tions, with an ardour and vehemence not before known. 
 What Schlegel says, indeed, is not true — that, from the 
 time of Hubner's Treatise, men versed in the Law of Na- 
 tions almost unanimously confessed the justness of the axi- 
 om, that Free Ships made Free Goods ;* because a thing 
 which had been exercised, and had rested for perhaps six 
 hundred years in natural right, could not so instantaneously 
 be discovered to have ceased to exist, or to have lost its 
 foundations : but the fact is true, that endeavours began to 
 be made to tie it up by treaty, and to enlarge the power of 
 Neutrals at the expence of Belligerents. Till the Ameri- 
 can war, there was little room for trial ; but, even after 
 that eventful period, it is remarkable, that no attempt was 
 made on the part of the Northern Sovereigns to obtain 
 from Great Britain, or from France, this much wished for 
 privilege, by treaty or convention. On the contrary, a 
 number of treaties were allowed to remain in force, in 
 which no mention is made of the claim ; and, not only this, 
 but many articles, under those treaties, are, in express 
 terms, declared to be contraband, which the principles of 
 the Armed Neutrality were framed to set free. Nor here 
 can we abstain from observing upon the conduct of Den- 
 mark, under the guidance of that very Minister, whose 
 premature loss to Europe and to Denmark is so much the 
 object of Schlegel's lamentations.f If, to sign a conven- 
 tion, which professed to have for its object the solemn set- 
 
 * Schlegel, lo. 
 
 t Schlegel, xvi. ' On se rappelW par quels argumens irresistibles notre 
 ' grand ministre M. de Bernstorff, trop tot enleve au Danemarc et a 
 ' I'Europe enti^re, &c. &c. 
 
 tlement 
 
Sec. III.] MAKE FREE GOODS. 155 
 
 tlement of things long in difference, four days before he 
 signed another, which totally annihilated the first, unsettled 
 all the bonds of connection, and opened a cause for perpe- 
 tual discontent, if not for perpetual war ; if this was the 
 part of a truly great minister, sincerity, at least, has no 
 place in such a character. In 1670, a solemn treaty of com- 
 merce was concluded between England and Denmark, the 
 third article of which contained the definition of contraband ; 
 but in which, however, the words, ' other necessaries for 
 ' the use of war,' were thought too indefinite. To re- 
 medy this, a convention was made to put the matter out of 
 doubt, by an article to be substituted in the place of the 
 other; by which contraband was declared to include the 
 very subjects so often disputed, — ship-timber, tar, pitch, 
 rosin, sheet-copper, hemp, sails, and cordage.* This was 
 signed on the 4th July, 1780. On the 8th was signed that 
 Declaration of the Armed Neutrality, which had long been 
 concerting between its original members ; and in which the 
 King of Denmark declares, that he understands nothing 
 under contraband, except the articles specified in the third 
 article of the treaty of 1670.! 
 
 An inconsistency so manifest, an insincerity so glaring, 
 a conduct so open to the charge of bad faith, as is thus ex- 
 hibited in this simple relation,- requires no sort of com- 
 ment. But, for the sake of Denmark, and of human na- 
 ture, of that fair and honest wish, that the characters even 
 of hostile Ministers themselves should be freed from all 
 impure spots, let M. Schlegel justify, if he can, this con- 
 duct of his country, and her Minister. England will re- 
 joice in that justification ; and, if she can, will be the 
 first to acknowledge it. 
 
 Respect for a Power, whose conduct has long been re- 
 spectable in the history of Europe, and which has long ex- 
 
 • 2 Marten'^ Treat. 102. f I^- 3^2. 
 
 isted 
 
IS6 THAT FREE SHIPS [Prop. I. 
 
 isted in close amity with this country, ought to check the 
 impulses of just resentment ; but, we cannot help observing, 
 that, when she stooped to such Machiavelian attempts to 
 amuse, real mischief could not be far off. Accordingly, 
 many days did not pass, before the world was surprised 
 with those bold declarations of the Armed Neutrality, 
 which have been noticed in the beginning of this work,* 
 and which claimed no less than to dictate what should be 
 universal custom, because certain states chose to bind them- 
 selves to it by treaty ; to set aside rights of six hundred 
 years enjoyment, and establish a Law of Nature by force 
 of Arms. 
 
 Astonishing as these pretensions were, the manner in 
 which they were received by some of the Belligerents was 
 not less so. France and Spain, with low and little policy, 
 immediately approved them. The former did not hesitate 
 to profess that the war she had undertaken had no other ob- 
 ject than the liberty of the seas ; that she was supporting the 
 rights of neutrality at the price of her people's blood ; and 
 that the claims of the Armed Neutrality were no other than 
 what were already allowed by the rules of her marine.f 
 How this was reconcileable with truth, the history of the 
 French law, as detailed in the foregoing pages, is best able 
 to testify. 
 
 The Spanish answer to the Russian Declaration was not 
 quite so unqualified, but still full of approbation. 
 
 It notices, however, the practice which Neutrals had 
 fallen into of providing themselves with double papers, and 
 other artifices ; from which detentions, and other disagreeable 
 consequences, had arisen. At the same time, on the whole, 
 it -perfectly acceded to the Armed Neutrality. J And thus, 
 two of the greatest Maritime States of the world, as well as 
 
 * Introduc. xii. t Ann. Reg. 1780. 350. J Id. lb. 
 
 the 
 
Sec. in.] MAKE FREE GOODS. 157 
 
 the most antient monarchies ; one of them in particular, re- 
 nowned for honour and a height of spirit which ought 
 to have despised the meanness of acquiring immediate advan- 
 tage at the expence of sacrificing the general interest in time 
 to come ; stooped to the narrow policy of weakening a 
 great principle of the Law of Nature itself, in order to ac- 
 quire a temporary advantage in a war already unequal. 
 
 Even if they were sincere, their mode of action, as well 
 as their language, spoke little of true and simple dignity. 
 In that case, they ought themselves to have demonstrated 
 their sincerity by the clearness of their previous conduct. 
 As it was, they allowed the youngest State of Europe, un- 
 der the direction of an energetic woman, to get the start of 
 them in asserting the privileges, which they, in their actions 
 at least, had not attempted to assert. If they were not sin- 
 cere, no observation need be made ; but, in the one case or 
 the other, I know nothing so undignified or so degrading, 
 as the answers of the Courts of Versailles and Madrid to 
 the Russian Declaration. 
 
 Solitary, and abandoned by the whole world ; struggling 
 with a fatal schism amongst her own children ; opposed, with 
 diminished resources, to all the greatest Maritime Powers of 
 Europe, to the Continent of America, and almost to the 
 Continent of Asia ; without a single ally, and before her 
 ancient vigour had shone out under the direction of her 
 favourite admiral, to the dismay of her opponents ; nothing 
 could be more firm, or consequently, in such a situation, 
 more honourable, than the conduct of Great Britain. She 
 did not disclaim the rule of action upon which she had eyer 
 proceeded ; she did not approve of the natural justice of the 
 new theory asserted ; she did not ' applaud the principles 
 ' and views of the Empress, as partaking of the same sen- 
 ' timents ; ' * but she firmly, though prudently, answered. 
 
 * See the French Answer, ubi sup. 
 
 that 
 
IS8 THAT FREE SHIPS [Prop. I. 
 
 that she should act according to the clear principles of the 
 acknowledged Law of Nations, where no treaty had mo- 
 dified that law ; and that she would abide by her treaties 
 where they actually subsisted. In particular, with respect to 
 Denmark, she reminded her of the treaty then existing, 
 which nothing could overcome but mutual agreement; and 
 which, she said, should still, therefore, be the sole basis of 
 her conduct. 
 
 With regard to Sweden, she also relied on the treaty 
 which had always regulated their mutual actions ; one 
 article of which had expressly marked out, that the goods 
 of enemies should be seized on board the ships of friends. 
 This engagement, she asserted, could not be violated with- 
 out breaking the friendship which had so long subsisted be- 
 tween the countries, and formed ties from which neither 
 could be set free, except by the consent of both. 'The 
 ' King, therefore,' says the answer, ' will adhere to these 
 ' engagements as an inviolable and sacred law, and he will 
 ' maintain it as such.' * 
 
 The observations which might be made on the Armed 
 Neutrality open a vast field ; but much has been forestalled 
 by the preceding matter of this treatise. We cannot, how- 
 ever, help here adverting to a strange and glaring incon- 
 sistency which appears on the face of it. One great ob- 
 ject of the Convention was to establish a difference between 
 unprotected merchant ships, acting for themselves, and those 
 protected by convoy, acting under command. The reason 
 for this, as it was said, was founded in the minute and strict 
 enquiry which would be made in the latter case, before the 
 goods were laden ; in consequence of which, and of which 
 
 * Marten's Treat, iv. 368. And see a Collection of Public Acts and 
 Papers relating to the Armed Neutrality ; printed for Hatchard : p. 130 
 to 135- 
 
 alone 
 
Sec. III.J MAKE FREE GOODS. 159 
 
 alone, very strict passports, on oath and rigorous examina- 
 tion, were to be taken out : so that the faith of the State was 
 pledged to take care that no illicit commerce was attempted 
 by those who put themselves under the national flag. The 
 soundness and cogency of this sort of reasoning we shall ex- 
 amine in its proper place ; for the present, we will take it 
 for granted, that the respective governments did actually in- 
 tend, and had in reality the means to carry this specious de- 
 sign into execution. Now, in turning to the fifth article 
 of the Armed Convention, * we find that, should it happen 
 that the merchant vessels of one of the powers should be in 
 a latitude where no ships of war of the same nation were 
 stationed, and where they could not have recourse to their 
 own convoys ; then the commander of the ships of war of 
 the other Power, if he be requested to do so, ought, in good 
 faith, and sincerely, to afford them the assistance of which 
 they may be in need ; and in such a case, the ships of war 
 and frigates of the one Power shall grant protection and 
 assistance to the merchant vessels of the other ; provided that 
 these shall not have carried on any illicit trade, or any trade 
 contrary to the principles of neutrality. 
 
 Upon this article, the question immediately arises, how it 
 is possible for a foreign, though an allied ship of war, or 
 even one bearing the national flag, to be able to answer for 
 the particulars of the cargo, or of the previous voyage and 
 transactions, of a private merchant ship, which happens to 
 meet him by chance in a latitude where she can find no 
 cruisers of her own nation } What becomes of the solemn 
 enquiry to be made on shore as to the nature of the cargo, 
 in order to insure its innocence } As it is the national flag 
 which demands, as the price of its protection, that the par- 
 ticulars should be made out, in order that the national faith 
 
 • Collect, of Pub. Acts, &c. 113; Marten's Treat. 4. 
 
 •may 
 
l6o THAT FREE SHIPS \Prop. I. 
 
 may be safely pledged, which is the spring and ground-work 
 of the whole right asserted ; how is it that Russia is so 
 prompt to answer for a solitary Swede, or Sweden for a 
 Russian, or Denmark for either a Swede or a Russian, com- 
 ing from they know not what latitudes, and provided with 
 they know not what muniments, but on whose simple word 
 they are to strive, in even bloody contest, rather than suffer 
 them to be examined ? 
 
 It cannot be on the faith of papers, the agreement be- 
 tween which and the cargo they have had no opportunity 
 of examining : it cannot be on the faith of the master's 
 word ; for neither papers nor word are more than what are 
 offered to the searching Belligerent in cases without con- 
 voy, in which search is allowed by the confederated Powers 
 themselves. What magic is it which throws this sort of 
 sacredness about a merchant vessel the moment it meets the 
 flag of a ship of war, whether of its own or of another 
 country, those, and those only, can determine who framed 
 the stipulations of the Armed Neutrality, as they said, on 
 principles of natural justice. 
 
 These sort of observations are perpetually arising, and 
 must perpetually arise from the very nature of the subject ; 
 so true it is, that when once sound principle is departed from, 
 it is in vain to act, or to plan any scheme of action which 
 shall regularly be found to square with it. Had the Armed 
 Alliance, profiting by the opportunity of the times, by the 
 supposed weakness of Great Britain, and the flagrant mean- 
 ness of her enemies, come boldly forth in the teeth of justice, 
 instead of assuming its garb ; had it thrown off its treaties by 
 force, or made war to break them, and for that purpose 
 alone, till distress should have extorted an acquiescence un- 
 der new stipulations ; the way would have been clear, 
 though made by violence ; and, at least, would never have 
 been clogged with insuperable inconsistencies, always arising 
 from the pretence, that what they did was founded upon 
 
 natural 
 
Sec. III.] MAKE FREE GOODS. l6l 
 
 natural right. In this respect they engaged in a gigantic 
 contest far beyond their strength, because beyond the 
 power of humanity, to change the decrees of reason, or to 
 turn truth into falsehood. 
 
 And this is the cause of the difficulties under which the 
 reasoning of the principle, and the conduct of those who 
 profess it, must ever labour. If really this new rule is 
 that drawn from Nature, or that which binds from the 
 majority of the conventions upon it, who is to say, when 
 it began, how long it is to last, when it is to cease } Who 
 is to act upon it 7 What Court is to be governed by it ? 
 When are individuals and Courts to bend to a new law ? 
 It happens peculiarly, that, the very year before France, 
 and in the very year in which Spain, acceded to the prin- 
 ciples of the Confederacy, as founded in justice, emanating 
 from natural liberty, or derived from universal convention ; 
 each of them had formed treaties, or made ordinances, di- 
 rectly subversive of the whole principle. In September 
 1779, seven months before the French answer to the Rus- 
 sian Declaration, France made a treaty with Mecklenburg, 
 framed exactly on the same rule with that with Hamburgh 
 a few years before;* in which contraband was made to 
 include all enemy's property, of whatsoever nature, on 
 board the Mecklenburg ships.f Far beyond this went 
 Spain, in her ordinances with regard to Neutrals, in the 
 year 1780 itself, and only one month before her accession to 
 the principles of the alliance. In those ordinances she 
 seemed to care little for the duty prescribed to her by her 
 treaties, provided it was necessary to oppose the operations 
 of Great Britain where there was no treaty. In those 
 ordinances she declared, that, with respect to British mer- 
 chandise on board neutral vessels, she must follow the rule 
 
 * See page 151. + 2 Marten's Treat. 39. 
 
 M of 
 
l62 THAT FREE SHIPS \Prop. I. 
 
 of Great Britain herself with regard to cargoes of the 
 same nature ; ' in order,' says the ordinance, ' by this re- 
 ' ciprocity (a most mistaken one !) to avoid the enormous 
 ' inequd,lity, the prejudice, and even ruin, which other- 
 ' wise might be brought upon the Spanish commerce ! ' 
 
 That Spain should fall into this conduct, and even found 
 it upon a supposed rule of reciprocity, is not surprising ; but 
 it bafHes all attempts to reconcile it with consistency, that 
 this should be done by one who thought the 'principles of 
 the Armed Neutrality were the true neutral principles. A 
 very little enquiry into the meaning of things must shew 
 us, that this conduct was reciprocal, even in their own 
 mistaken sense of that word, only with regard to Great 
 Britain ; while the innocent Neutral, with whom probably 
 she was bound by treaty to a different conduct, was, with- 
 out scruple, made the sacrifice. When, for example, she 
 was bound by treaty with Sweden to allow ' Free Ships 
 ' Free Goods,' between whom and Great Britain the con- 
 trary stipulation existed, could there be any reciprocity in 
 breaking that treaty with Sweden, because Great Britain 
 acted upon the provisions of her's ? In such case, even sup- 
 posing there was the same sort of treaty between Great 
 Britain and Sweden, it was neither more nor less than to 
 say ; because my enemy has broken his duty, and injured and 
 pillaged you, I also must injure and pillage you, or my 
 commerce will be ruined. A child would detect the fal- 
 lacy of the argument ! 
 
 The ordinance goes on, however, to state heavy com- 
 plaints against neutral interference in the war ; — that inter- 
 ference which Spain was, in a month, to sanction with her , 
 perfect approbation, as arising from natural right. It com- 
 plained, that they eluded the blockade of Gibraltar; that 
 they had frequently double sets of papers, and other dis- 
 guises, in order to screen the real owners of the cargoes. 
 ' Though these facts,' says the ordinance, ' are notorious, 
 
 'and 
 
Sec. II I.J MAKE FREE GOODS. 163 
 
 ' and have been proved by formal process, yet these per- 
 ' verse men, eager for gain, have disturbed all Europe with 
 ' their clamours ; asserting falsely, that orders had been 
 ' issued to detain and seize all neutral vessels which passed 
 ' the Straits ; when, in fact, the orders were expressly, 
 ' only to detain such ships as were suspected, either from 
 ' the course they steered, or the papers they produced, and 
 ' such as carried enemy's goods or provisions ! ' In consequence 
 of these reasons, the ninth article goes on to enact, that 
 when enemy's property shall be found on board Neutrals 
 in future, it shall be seized and confiscated, paying the 
 freight.* One month afterwards, she approved the prin- 
 ciples of the Armed Neutrality. 
 
 Where views of policy, however, are so changeable, 
 and principles of law so little fixed, perseverance in any 
 given line of conduct is not to be expected. Accordingly, 
 within these few years, Spain, on entering into the war with 
 France in 1793, came round again to the old rule, when 
 she stipulated, by a convention with Great Britain, that 
 their Majesties should unite all their efforts on this occasion 
 of common concern to every civilized State, to prevent 
 other Powers, not implicated in the war, from giving, in 
 consequence of their neutrality, an;^ protection whatever, 
 directly or indirectly, to the commerce or property of the 
 French, on the sea, or in the ports of France.-f Exactly 
 the same sort of convention was entered into by Russia her- 
 self with Great Britain, in the same year ; % and the in- 
 structions given by the Empress to the commander of her 
 fleet (that very Empress who dicta'ted, guided, and sup- 
 
 • See the letter of the Count Florida Blanca to the Marquis Gonzalles 
 de Castejon, pour servir de Reglement concemant la Navigation des 
 Neutres, 13 March, 1780. — MarterCs Treat. 4. 268, and the ninth Article. 
 
 t Collect, of Pub. Acts, &c. 146. } Id. 142. 
 
 M 2 ported 
 
l64 THAT FREE SHIPS [Prop. I. 
 
 ported the Armed Neutrality of 1780) demonstrate, in the 
 most forcible planner, the change of her sentiments. — 
 Those instructions command him ' To prevent all neutral 
 ■ vessels from carrying stores or provisions to France.' 
 They state that ' Denmark, with its accustomed weakness, 
 ' and preferring even an ideal gain to the sound consider- 
 ' ations of policy, had refused to consent to her just de- 
 ' mands ; therefore all ships are to be stopped and searched, 
 ' even those under convoy ; which, if resisted, the honour 
 ' of the Russian flag is to be maintained, and force repelled 
 ' by force ; without pursuing, in case of flight, the vessels 
 ' composing the convoy ; putting only in execution what is 
 ' prescribed, to prevent any navigation to the enemy's ports' * 
 Such was the tone of Russia, becoming belligerent, in 1793, 
 to her very confederates in the Armed Neutrality : nor had 
 Sweden been backward in renouncing the principles of that 
 celebrated alliance. 
 
 A very important circumstance is here to be remembered ; 
 that, although that alliance professed to delineate the princi- 
 ples of universal justice, its stipulations were only to con- 
 tinue during the war. It held out, indeed, that measures 
 were to be taken as a guide to new engagements ; and the 
 King of Sweden, in particular, was anxious to propose a 
 congress, in which the rights, both of Belligerents and Neu- 
 trals on this subject, should be for ever settled : but this was 
 not done. After the peace, therefore, of 1783, the contract- 
 ing parties were left alone to review their opinions : if well 
 founded, to bring them again into action ; or, if ill founded, 
 to renounce them altogether, when next called upon to assert 
 or reject them, according to the exigencies in which they 
 should be placed. Sweden at least, it is to be supposed, de- 
 cided that her conduct had been wrong ; for Sweden, in the 
 
 • Collect, of Public Acts, &c. 142. 
 
 next 
 
Sec. III.] MAKE FREE GOODS. 165 
 
 next war she waged, most absolutely renounced .the princi- 
 ple as a Belligerent.* It would be too gross an aflfront to 
 her justice, to suppose that she has two lines of conduct ; one 
 as neutral, the other as belligerent ; we will, therefore, 
 rather suppose that she saw the errors into which the aspir- 
 ing genius of Russia, "or her own impulses, heightened, per- 
 haps, by the incidental injuries inseparable from war, had 
 betrayed her ; and that she thoughti as her treaties bade her 
 think, that the principle before us could only be matter of 
 convention. 
 
 We have already noticed the strange and inconsistent, not 
 to say unjust conduct of Denmark on closing with the 
 Armed Neutrality. Denmark at least, therefore, in this in- 
 stance, can furnish no example of a State versed in the true 
 laws and principles of that natural justice which she armed 
 herself to impose upon the world as the universal and invin- 
 cible rule of its conduct. Very few years after having so 
 armed herself, and still fewer before she acceded to the 
 present alliance, both Denmark and Sweden, (most remark- 
 ably, the only two powers which Schlegel recollects to have 
 formed treaties renouncing the principle) renewed that re- 
 nunciation, by declaring, in their convention of 1794, that' 
 they claimed no advantages but what were clearly founded 
 in all their respective treaties with the different Powers at 
 war.f Now, ' Free ships Free goods,' was at least not one 
 of these advantages ; since each of them had tied herself 
 down with Great Britain, — I will not say to renounce, but 
 not to demand it, — above one hundred years before, by the 
 treaties we have mentioned in the last century ; which 
 
 * Schleg. 14, 15. 'Dans la guerre que le Roi Gustave III. entreprit 
 contre la Russia, il se laissa entrainer, par une politique de circonstance, a 
 oublier, les mSmes principes dont il venoit si recemment de se montrer le 
 zeW et courageux defenseur.' 
 
 f Collection of Acts and Papers, &c. p. 160. 
 
 treaties 
 
l66 THAT FREE SHIPS {Prof. I. 
 
 treaties were never abrogated. Denmark also, in particular, in 
 her instructions to her merchants, February 22, 1793, con- 
 firmed her treaty, and again renounced the claim, when she 
 stated that the treaty of 1670 with England, stipulating, 
 that, amongst a ship's papers there should be a certificate to 
 prove that the cargo belongs to a Neutral Power; she had, 
 therefore ordered her magistrates to deliver such necessary 
 certificates.* 
 
 About this time also Prussia, another of the Powers which 
 had acceded to the Armed Neutrality, joined as a Bellige- 
 rent in those general stipulations with Great Britain, 'to 
 ' prevent other Powers, not implicated in the war, from 
 ' giving protection directly, or indirectly, to the commerce 
 ' of the French on the^sea, or in the ports of France.' f 
 
 A great variety of Powers, composing nearly all Mari- 
 time Europe, had acceded to the principles of the Armed 
 Neutrality. America, the cause and object of the eventful 
 war which gave it birth, sanctioned of course what was so 
 much to her advantage. She was bound by all her great 
 views of trade ; by all on which her existence depended, by 
 every tie of gratitude to her friends, and by every feeling 
 of resentment against Great Britain, to broach, uphold, and 
 disseminate the doctrine far and wide, as arising immediately 
 from the rights of Nature, or at least founded in such uni- 
 versal convention, as to acquire everyi where the force of 
 law. Of the great trading nations, however, America is 
 almost the only one that has shewn consistency of principle. 
 The firmness and thorough understanding of the Laws of 
 Nations, which, during this war, she has displayed, must for 
 ever rank her high in the scale of enlightened communities. 
 
 Her treaty with France, 1778, was formed on the 
 stipulations of 1780, by which she was ever ready to 
 
 * Collection of Acts and Papers, p. 137, the sixth article. f I<i- '46- 
 
 abide 
 
Sec. III.] MAKE FREE GOODS. 167 
 
 abide; her treaty with England, 1794, gave up the whole 
 of those stipulations. In the seventeenth article, she agreed 
 that enemies' property on board her vessels should be con- 
 fiscated, and that on just suspicion the vessels themselves 
 might be detained, and carried into the nearest port, for the 
 examination and adjudication of the property. She had a 
 right to make both these treaties : and, under a case of some 
 difificulty, by both she abided. 
 
 In 1798, the statesmen of France, amongst other cru- 
 dities, set up the strange assertion, that, as the Americans 
 were bound to treat them as the most favoured nation, they 
 ought not to allow French property to be seized by British 
 cruisers on board American ships, while they prevented 
 the seizure of British property in the same situation by the 
 French ; and they threatened war for not complying with 
 this representation. 
 
 The American answers to these sophistries are models of 
 dignified and convincing reasoning. Whilst they rejected 
 all suspicion of being influenced by fear, from the orders 
 which they gave for warlike preparations, their ministers 
 attacked the French arguments with irresistible power. ' Be- 
 fore the treaty with Great Britain,' said one of their notes 
 to the French Government, ' thp treaty with France existed. 
 ' It follows, then, that the rights of England, being neither 
 • diminished nor increased by compact, remained precisely 
 ' in their natural state, which is to seize enemies' property 
 ' wherever found : and this is the received and allowed prac- 
 ' tice of all nations, where no treaty has intervened.' A 
 new Law of Nations, it is pretended, was introduced by 
 the Armed Neutrality ; but who were the parties, and 
 what was their object } ' The compact was in its own 
 ' nature confined, with respect to object and duration. lidt'd 
 ' not purport to change, nor could it change permanently and 
 ' universally the rights'- of nations, not becoming parties to it. 
 ' The desire of establishing universally the principle, that 
 
 ' neutral 
 
i68 THAT FREE SHIPS \Prop. I. 
 
 ' neutral bottoms shall make neutral goods, is perhaps felt 
 ' by no nation on earth more strongly than by the United 
 ' States. Perhaps no nation is more deeply interested in its 
 ' establishment ; but the wish to establish a principle is es- 
 ' sentially different from a determination that it is already 
 ' established. The interests of the United States could not 
 ' fail to produce the wish ; their duty forbids them to indulge 
 ' it, when decided on a mere right.'* 
 
 ' The complaints of the French,' said another note of the 
 American Minister to his President,f ' had reference, amongst 
 other things, to the abandonment, by the Americans, of 
 their neutral rights, in not maintaining the pretended prin- 
 ciples of the modem Law of Nations, that Free Ships make 
 Free Goods ; and that timber and naval stores are not contra- 
 band of war. The necessity, however, for the strong and 
 express stipulations of the Armed Neutrality itself, by all 
 the various Powers which joined it, shewed (as the note 
 went on to state) that those maxims were not in themselves 
 law, but merely the stipulations of compact ; that, by the 
 real law, Belligerents had a right to seize the property of 
 enemies on board the ships of friends ; that treaties alone 
 could oblige them to renounce it ; and that America, there- 
 fore, could not be accused of partiality to Great Britain, , 
 because she did not take arms to compel her to renounce it.' % 
 
 As far, then, as we can collect from these reasons and prin- 
 ciples, America will, at least, not oppose the object of this 
 treatise. By the firmness she displayed she overcame the 
 threats of France ; and by the accuracy of her reasoning she 
 triumphed in the argument. Unhappily, however, all did 
 
 * Collection of Acts, &c. 198, et infra. 
 
 + Mr. Pinkney to General Washington. 
 
 X Debrett's State Papers, 5. 281, 286. The whole letter, which is an 
 answer to Adet, the French Minister's complaints, deserves the best atten- 
 tion. It is an admirably reasoned piece of diplomatic representation. 
 
 not 
 
Sec. III. J MAKE FREE GOODS. 169 
 
 not shew equal accuracy of understanding, or equal regard 
 to the obligations of treaty. 
 
 We have seen the direct renunciation of Russia, in 1793, 
 of the principle which governed her in 1780. In the in- 
 structionb which developed this renunciation, she, indeed, 
 made a difference between common wars and that she was 
 about to wage ; but, as Denmark had resolved upon neu- 
 trality, no part of the reasoning could be binding upon her. 
 ' As these measures,' said the instructions, ' are taken against 
 arrant villains, who have overturned all duties towards God, 
 the Laws, and the Government ; and have even taken away 
 the life of their own Sovereign ; the means of punishing 
 these villains, and of making them re-enter the way of truth, 
 after having been enveigled into crimes, ought, in justice, to 
 be employed in suck a manner as to accelerate and ensure suc- 
 cess in so salutary an affair.' * 
 
 We have no hesitation in saying, that these instructions 
 were a gross and flagrant invasion, on the part of Russia, 
 of the independent Sovereignty of Denmark. Had France 
 been even more blood-stained than she is with cruelty, 
 perjury, and crime of every sort ; although it might be 
 fair ground for any other nation to interfere, if she chose, 
 by way of punishing offences against the Laws of Nature ; 
 yet no power that ever was assumed under the Law of 
 Nations could give a right to that avenging nation to 
 call upon another for assistance against its will. This pre- 
 tence, . therefore, was well answered by the Minister of 
 Denmark, when once it had resolved to acknowledge the 
 Nation of France. 
 
 But what, after so glaring a departure from its principles, 
 are we to think of the consistency of the Russian Court, 
 when, finding it necessary to change its public measures, it 
 
 * Collect, of Acts, &c. 149. 
 
170 THAT FREE SHIPS [Prop. I. 
 
 recurs back again to its Declarations of 1780, breaks down 
 the whole principle that governed its late conduct, and 
 once more becomes the champion of Neutral usurpation ? 
 ' Europe had applauded,' says the Declaration of the 1 6th 
 August, ' the measures which were taken by the greater 
 ' part of the maritime Powers to render sacred the prin- 
 ' ciples of a wise and impartial neutrality, when, in 1780, 
 ' a maritime war between two great Powers made it in- 
 ' cumbent on the rest to provide for the safety of the com- 
 ' merce and navigation of their subjects. Every act found- 
 ' ed upon justice must meet with universal approbation ; 
 ' and this was, in effect, merely re-establishing the prin- 
 ' ciples of the Rights of Nations.' * 
 
 A departure so strong and so pointed from the last govern- 
 ing principles of the conduct both of Russia and Sweden could 
 only prepare the way for the late most eventful measure, 
 big with fate to the nations concerned, and putting a last 
 hand to the chain of their inconsistencies. The convention 
 of the 1 6th of December renews and gives additional 
 vigour to the Armed Neutrality of 1780, and engrafts 
 upon it an entire new and most momentous article, which 
 states : 
 
 ' That the declaration of the oflBcers who shall com- 
 ' mand the ship of war or ships of war of the King or 
 ' Emperor, which shall be convoying one or more merchant 
 ' ships, that the convoy has no contraband goods on board, 
 ' shall be sufficient ; and that no search of his ship, or the 
 ' other ships of the convoy, shall be permitted. And, the 
 ' better to insure respect to those principles, and the stipu- 
 ' lations founded upon them, which their disinterested wishes 
 ' to preserve the imprescriptible rights of neutral nations 
 ' have suggested, the high contracting parties, to prove 
 
 * Collect, of Acts, &c. 243. 
 
 their 
 
Sec. III.J MAKE FREE GOODS. 171 
 
 ' their sincerity and justice, will give the strictest orders 
 ' to their captains, as well of their ships of war as of their 
 ' merchant ships, to load no part of their ships, or secretly 
 ' to have on board any articles, which, by virtue of the 
 ' present convention, may be considered as contraband : 
 ' and, for the more completely carrying into execution this 
 ' command, they will respectively take care to give direc- 
 ' tions to their Courts of Admiralty to publish it, when- 
 ' ever they shall think it necessary ; and to this end, the 
 ' regulation which shall contain this prohibition, under the 
 ' several penalties, shall be printed at the end of the present 
 ' Act, that no man may plead ignorance.' 
 
 To the old stipulations renewed by this convention, to- 
 gether with this important article engrafted upon them, 
 Denmark has acceded — Denmark, who, to use the lan- 
 guage of her great ally, prefers, with her accustomed 
 weakness, an ideal gain to the sound considerations of 
 policy.* Prussia has also given it all its support, prepares 
 its forces, and seems hot for the contest. Our country does 
 not shrink from it, engaged as she is in the most arduous of 
 her wars ; and Europe awaits the event in fearful expecta- 
 tion. 
 
 And thus we have conducted this important, this inter- 
 esting, this entangled, but not difficult, subject through all 
 the mazes of adverse arguments, adverse treaties, and ad- 
 verse conduct. That no light might be wanting for its 
 "elucidation, we have endeavoured, at least, to deduce its 
 history from its iirst existence, through all the changes 
 that were attempted, resisted, or allowed upon it in all 
 ages, by whatever countries and whatever men. The de- 
 duction has been long, but, I hope, not unprofitable. A 
 
 • See the Instructions to the Russian Admiral Tchitchagoff, Collect, of 
 Acts, 149. 
 
 point 
 
1/2 THAT FREE SHIPS [Prop. I. 
 
 point of such mighty consequences, at this moment, in the 
 affairs of Europe and of the world, can never be too much 
 examined, sifted, or tried. 
 
 Whether, after this examination, any doubt can remain 
 upon the foundations of the neutral pretension, under what- 
 ever shape the argument may be framed ; whether it can 
 still be imagined, either from the force of general reason- 
 ing, the strength of authority, the uniformity of treaties 
 from times of old, or the consistent and recent conduct of 
 Neutrals themselves, that the right which we resist is the 
 natural right of mankind ; I myself am unable to judge. 
 The enquiries of my own mind have produced satisfaction, 
 that the natural right is on the side of the Belligerent ; and 
 that the neutral claim, where allowed, is a matter of the 
 purest convention. As to the position, that, where the ma- 
 jority of treaties have fixed upon any given point between 
 the powers that contract, it shall form the law for those 
 which have not contracted, it is really too absurd to demand 
 one moment's attention. It can only be made use of by 
 jugglers and robbers of the day, to carry a point of tempo- 
 rary rapacity ; or by visionary enthusiasts, mad in the pur- 
 suit of a vain philosophy. I give them credit for their 
 motives and their sincerity ; and I mean them no disrespect 
 when I say, that, amongst the honest men, it can only be 
 found in such theories as leap from the fancy of Hubner or 
 the dreams of Schlegel ! 
 
A D VER TISEMENT. 
 
 Indispensable professional avocations have obliged the 
 Author to leave the general subject of his Treatise here 
 — only, however, for a short time. 
 
 The first Proposition, forming a complete subject in 
 itself, he has been induced to publish it apart. The 
 other Propositions will follow all together, and the 
 whole will form a volume. 
 
I7S 
 
 APPENDIX. 
 
 No. I. 
 
 Declaration respecting Maritime Law, signed by the 
 Plenipotentiaries of Great Britain, Austria, 
 France, Prussia, Russia, Sardinia, and Turkey, 
 assembled in Conference at Paris, April i6, 1856. 
 
 The Plenipotentiaries who signed the Treaty of Paris of 
 the 30th of March, 1856, assembled in conference, — 
 
 Considering that maritime law, in time of war, has long 
 been the subject of deplorable disputes ; 
 
 That the uncertainty of the law and of the duties in such 
 matter gives rise to differences of opinion between Neutrals 
 and Belligerents which may occasion serious difficulties and 
 even conflicts ; 
 
 That it is consequently advantageous to establish a uniform 
 doctrine * on so important a point ; 
 
 That the Plenipotentiaries assembled in Congress at Paris 
 cannot better respond to the intentions by which their 
 Governments are animated than by seeking to introduce into 
 international relations fixed principles in this respect ; 
 
 The above-mentioned Plenipotentiaries, being duly author- 
 ized, resolved to concert among themselves as to the means 
 of attaining this object ; and, having come to an agreement, 
 have adopted the following solemn Declaration : — 
 
 1. Privateering is and remains abolished. 
 
 2. The neutral flag covers enemies' goods, with the 
 exception of contraband of war ; 
 
 3. Neutral goods, with the exception of contraband of war, 
 are not liable to capture under enemy's flag ; 
 
 4. Blockades, ' in order to be binding, must be efi"ective ; 
 that is to say, maintained by a force sufficient really to pre- 
 vent access to the coast of the enemy. 
 
 The Governments of the undersigned Plenipotentiaries 
 
 * The "United States and other Powers not having acceded to this 
 Declaration, this argument in its favour falls to the ground. 
 
176 
 
 engage to bring the present Declaration to the knowledge of 
 the States which have not taken part in the Congress of 
 Paris, and to invite them to accede to it. 
 
 Convinced that the maxims which they now proclaim 
 cannot but be received with gratitude by the whole world, the 
 undersigned Plenipotentiaries doubt not that the efforts of 
 their Governments to obtain the general adoption thereof 
 will be crowned with full success. 
 
 The present Declaration is not, and shall not be binding, 
 except between those Powers who have acceded, or shall 
 accede to it. 
 
 Done at Paris the i6th day of April, 1856. 
 
 Signed Buol-Schawenstein, 
 
 HUBNER, 
 
 Walewski, 
 
 bourqueney, 
 
 Clarendon, 
 
 Cowley, 
 
 Manteuffel, 
 
 Hatzfeldt, 
 
 Orloff, 
 
 Brunow, 
 
 Cavour, 
 
 De Villamarina, 
 
 Aali, 
 
 Mehemmed Djemil. 
 
177 
 
 No. II. 
 
 THE CRIMEAN WAR, THE DECLARATION OF 
 PARIS, AND THE BRUSSELS CONGRESS. 
 
 Mr. Urquhart's Petition to Parliament to Annul 
 THE Declaration of Paris, July 3RD, 1874. 
 
 To the Honourable the Commons of Great Britain and Ireland 
 in Parliament Assembled. 
 
 The Petition of the Undersigned sheweth, — 
 
 That your Petitioner, at the moment of the despatch of 
 British troops to the Ottoman Empire, under colour of a pre- 
 tended Declaration of War against the Emperor of Russia, 
 did address to the Honourable House of Commons a Petition 
 representing that such forces were not required to support 
 the Sultan, and that their presence on the field of war and 
 the use that would then be made of them would only have 
 for effect to aid that ambition of the Czar against which it 
 was proposed to protect the Sultan and the world. 
 
 That the events of the twenty years which have elapsed 
 have confirmed the allegations of the said Petition. 
 
 That, further, your Petitioner had represented that it was 
 in the design of this most needless but fatal War to bring 
 upon the British Empire by means of it, the gravest injury 
 and peril by the surrender of its strength, so that it should 
 be deprived of the use of its natural arm for its own just 
 defence. 
 
 That this anticipation was in like manner confirmed by 
 the so-termed 'Declaration respecting Maritime Law,' secretly 
 signed at Paris for the suppression of the use of Privateers 
 and of the capture, of the produce and property of Bel- 
 ligerents embarked on the vessels of neutrals. 
 
 That from April, 1856, to the present day, no reason has 
 been assigned by any public man for this surrender, and that 
 no such man, either in your Honourable House or elsewhere, 
 has spoken thereon without condemning it, and designating 
 it as a ruinous, fatal, or suicidal measure. 
 
 N That, 
 
178' 
 
 That, nevertheless, no measure has been taken and no 
 act proposed for its reversal. 
 
 That through its operation Great Britain has, during 
 those eighteen years, been shown to be powerless as a great 
 State, and is acknowledged to be incapable of exercising 
 either power or influence over foreign events arising out of 
 the ambition of the Governments whose power is exclusively 
 territorial and military. 
 
 That France, who joined in the same Declaration, al- 
 though a Military as well as a Maritime Power, has, in con- 
 sequence thereof, been struck down by a Government inferior 
 to herself in the aggregate, being absolutely destitute of 
 naval means. 
 
 That Maritime Power consists entirely in the capture and 
 confiscation of the goods of the enemy. 
 
 That this power, as applied to Russia, becomes, in con- 
 sequence of the nature of her products and the configuration 
 of her territory, an absolute supremacy, against which she 
 cannot struggle and to which she must submit. 
 
 That by causing the sentiment to prevail throughout 
 Europe, and to be acted upon, that it is not proper to capture 
 the goods of an enemy if these goods be afloat and not on 
 land, the control actually possessed by the Maritime Powers 
 over the Military Powers will be changed into a control of 
 the Military Powers over the Maritime Powers. 
 
 That these truths have been severally perceived and 
 announced by the two men of most authority in their several 
 branches, the late Envoy to Persia, Sir John McNeill and 
 Mr. Richard Cobden, the first declaring that it is ' the 
 ' Right of Search and Seizure which constitutes the Maritime 
 ' power of England, which power he designated as a provi- 
 ' dential weapon placed in the hand of England for the 
 ' coercion of Russia.' The second said : ' It is clear that 
 ' Nature itself has doomed Russia to a condition of abject 
 ' and prostrate subjection to the will of the Maritime Powers.' 
 
 That this position has not been apprehended, by the 
 reason that the Maritime Powers (with the sole exception 
 formerly of the surrender of the Right of Search) have had 
 no other will than that of Russia, seeing that the Ministers of 
 the Crown of Russia are abler Ministers than those of the 
 other Crowns of Europe. 
 
 That in 1780 the Government of St. Petersburg first 
 
 put forward the maxims contained in the Declaration of 
 
 Paris, with the avowed purpose of destroying, through their 
 
 general acceptance, the power of England. 
 
 That the advantage for which an able Government has 
 
 toiled 
 
179 
 
 toiled for a hundred years, must be for itself very great, as 
 also the diflSculties that it has had to encounter. So propor- 
 tionately great must be the injury which it expects will be 
 thereby inflicted on the other Governments, to circumvent 
 whom its care has been given. At that period it succeeded in 
 obtaining the adhesion of all the Powers to a measure with- 
 out advantage to them, but nevertheless ultimately failed, 
 through the opposition of the British Government, acting 
 under a due sense of its duties and its rights. 
 
 That this same Government of St. Petersburg, in ,1856, 
 abstained from appearing to suggest or enforce their adoption, 
 but really did obtain them through indirect means. 
 
 That in 1870 France might have resumed the exercise of 
 her maritime means ; in view of such a contingency the 
 English Minister for Foreign Affairs addressed a despatch to 
 Paris, calling on the French Government not to depart from 
 the rules laid down in the Declaration of Paris 1856. A 
 similar despatch was addressed to Berlin, which was without 
 meaning, Prussia not having any maritime power to exert. 
 
 That France, if again attacked and now enlightened as 
 to the effects of such surrender, might resume those rights. 
 
 That England might do the same. That to bar such 
 contingency it must be and is the design of the Government 
 of St. Petersburg to obtain such sanction for the Declara- 
 tion of Paris, as shall prevent, in future contingencies, the 
 Naval Powers from putting forth their naval strength. 
 
 That having failed, during eighteen years, to obtain such 
 sanction through the Crowns or Parliaments of either of these 
 countries, other means will be employed for the attainment of 
 this end. 
 
 That this end can be attained through what is called 
 ' Public Opinion.' 
 
 That ' Public Opinion ' is to be made to believe that it is 
 desirable, for the common good of humanity, that the pro- 
 perty of Belligerents shall enjoy immunity when coming within 
 reach of maritime Belligerents, in other words, ' STpanng privaie 
 property at sea.' 
 
 That this design has been brought so far towards maturity 
 that a mixed Congress of anomalous nature has been sum- 
 moned at Brussels, under the personal influence of the 
 Emperor of Russia, to determine the new laws that shall 
 regulate the action of Belligerents. 
 
 That Representatives, not only of the different Sovereigns, 
 but also of the various departments of the separate Govern- 
 ments, are to constitute this new extra-National Legislative 
 Assembly. 
 
 That 
 
i8o 
 
 That your Honourable House, together with the other 
 House of Parliament, and the Queen, can alone alter the 
 laws of England. 
 
 That all three cannot alter the Law of Nations in its 
 fundamental parts, such as that of forbidding a nation to use 
 its natural means of defence. 
 
 That the measures proposed are contrary to, and subver- 
 sive of, the laws of England, as well as those of Nations and 
 of Nature. 
 
 That the object in view is to deprive England of the 
 power of resisting any and every unjust demand, and to repeat 
 with impunity a further partition of France, and the infliction 
 on her of a further ransom. 
 
 Your Petitioner therefore prays your Honourable House 
 in your wisdom to perform the service of advice due to your 
 allegiance to the Queen, by presenting a humble address 
 warning Her Majesty of the danger of affording, by the- 
 presence of Her Representatives, any colour to such an 
 anomalous assemblage, but instead thereof to declare null 
 and void the Declaration of Paris of 1856. 
 
 And your Petitioner will ever pray. 
 
 David Urquhart. 
 Carstairs House, Lanark. 
 
 FINIS. 
 
 BTBFHXN AUSTIN AND SONS, PRINTERS, HERTFORD.