Page images
PDF
EPUB

they cannot be renewed, but with diffi- 1 plicated, resting on undisputed facts, or culty and danger. Whatever shall then involved in controverted principles. But be left in ambiguity will be placed in the it was of peculiar importance that this worst of all situations; in a state where ground of preference should, in the negowe can neither abandon our right with tiation of this treaty, have been secured dignity, nor maintain it with advantage. to Great Britain. Where we shall neither obtain the credit Our interest in the whole subject, very which we might claim for its sacrifice, far exceeded that of the power with whom nor secure the benefits which we should we treated. Much of our security in derive from its assertion. To how large peace, much of our energy and success in a proportion of these articles this remark war, must hereafter depend on the accuapplies, your lordships will judge by com- racy and precision of the law, which is paring them with the corresponding provi- now laid down, by this convention, for sions in the hostile conventions of 1780 the conduct of our pavy, and for the guiand 1800. Those conventions were dance of our courts of admiralty. It must framed with the avowed object of destroy also be remembered, that the whole subing our rights; this treaty is concluded for ject is involved in difficult and technical the purpose of securing them; and the distinctions, in matters of detail, and in difference of the stipulations, which are to points of law, often very imperfectly underproduce these contrary effects on the same stood by the continental governments, who subjects, must, therefore, be looked for have so little occasion to study them in on the face of the instruments themselves. their practical application : whereas, in This comparison is rendered but too easy this country, they ought to be familiar to by a circumstance which I consider as every man who undertakes the conduct of having uniformly, and, in a very great the public interests. And if the king's degree, operated to our disadvantage servants had the smallest reason to distrust throughout the whole conduct of this their own abilities or knowledge in this negotiation. I am far from supposing respect, they might, for the purpose of that the authors of this treaty can be framing such a project, have availed ignorant of the advantage which a person themselves of the assistance of some of employed in negotiation must always de the greatest men who have ever professed rive from treating on the basis of his own the science of public jurisprudence. But project, rather than on that of his adver- whether this mode of negotiating were sary. They know, unquestionably, that more or less desirable, whether it were concessions so introduced are often suffered safer to have treated for the final arto remain, in order to avoid the incon- rangement of these great questions on the veniences of farther controversy or delay: basis of a British or of a Russian project, That differences, even unintentional, and I must say, without reserve, that no cirapparently inconsiderable, in the wording cumstances could require from the minisof an article, have often led in their result | ters of this country that course which has to the most important consequences ; actually been pursued in the present and that the party, who draws any such instance; a course which should, in my instrument, will naturally apply his prin- opinion, have been decidedly rejected cipal attention to the perspicuity and ac- from the beginning, not only on the concuracy of those stipulations which are siderations which I have already stated, most favourable to the interests he is em but perhaps still more on that of the naployed to maintain. The skill and dili. tional honour and the dignity of the British gence of a public minister is, indeed, crown. often best shown, in the security which In the form and wording of all these he has thus provided to his country, against articles, the two hostile conventions of those ambiguous interpretations, and armed neutrality have have been followed latent claims, to which the expressions with a scrupulous and servile exactness chosen by an adversary might too proba- wherever they could be made to apply. bly be liable. This advantage, however, We have, therefore, negotiated and conas it is known to both parties, cannot cluded this treaty, not on the basis of any always be obtained even by the ablest British, or even of any new Russian prostatesmen; nor is it always equally impor-ject, but on that of the very same hostile tant. Its value and effect are more or and inadmissible conventions, which we less considerable, as the nature of the actually went to war for the purpose of subject to be arranged is simple or com- annulling. And we now stand, in the (VOL. XXXVI.)

[P]

face of Europe, no longer as resisting,

2. That every belligerent power may but as acceding to the treaties of armed capture the property of its enemies neatrality; with modifications indeed, and wherever it shall be met with on the changes in some important points; but high seas; and may, for that purpose, desanctioning, by this concession, the gene- tain and bring into port neutral vessels ral weight and authority of transactions, laden wholly, or in part, with any such which we had hitherto considered as gross property.t violations of public law, as manifest indi. 3. That under the description of concations of hostile purpose, and as sufficient traband of war, which neutrals are prohi. grounds to justify, on our part, the extre- bited from carrying to the belligerent nities of war itself

. Whatever principles powers, the law of nations (if not reof maritime law may hereafter be con- strained by special treaty), includes all tested, they must now be discussed with naval as well as all military stores; and some regard to the treaties of armed neu generally all articles serving principally, trality. Whatever words of doubtful in- according to the circumstances of the war, terpretation are transferred from those to afford to one belligerent power the intreaties into this convention (and many struments and means of annoyance to be such are so transferred), must, according used against the other. I to one of the best rules of legitimate construction, be explained by a reference to as the whole possible extent of their demand, the original instrument, where they were

which he afterwards proceeds to limit by first introduced into the code of public law. those considerations which results from the

“ Quæritur quid It is, therefore, under this impression, facere aut non facere possunt inter duos that we must proceed to examine the con- hostes. Omnia, forte inquies, quæ potuecessions of the present convention, and to runt cum pax esset inter eos, quos inter nunc compare them with those claims for which bellum est.” Bynk. Quæst. Juris Pub. 1. 9. this country wisely determined, at the + This has long ago been laid down as the commencement of the present year, that universal and undoubted law of nations.

lar, c. 273. Einecwas necessary, even under all the diffi- See the Consolato del culties of that moment, to incur the ad. cius says, " Idem statuendum arbitramus si ditional dangers of a northern war. What Illes capi posse nemo dubitat, quia hosti in res

res hotiles in navibus amicorum reperiantur, those claims were, is a fact which cannot hostiles omnia licent, eatenus ut eas ubicumque now be disputed. At the opening of the repertas sibi possit vindicare.”—De Nav. ob last session of parliament, they were stated vect. &c. c. 2. s. 9. in this House, and, with much more abi. “ I believe it cannot be doubted, that, by lity in another place, as being included in the general law of nations, the goods of a five separate propositions, or principles of friend, found in the vessels of an enemy, are maritime law; every one of which the free; and the goods of an enemy, found in neutral league of 1800 had bound the Jefferson's Let. to Genet, 24 July, 1797.

the vessel of a friend, are lawful prize."contracting parties in that engagement to The law and practice of France has always resist by force': and every one of which carried this claim much farther than the Briyour lordships agreed with the government | tish prize courts have ever done. We confisof that day, in considering as essentially cate only the enemy's property found on necessary to be maintained for the pre. board a neutral ship, but release the ship servation of our maritime strength, and, itself, with the remainder of her cargo. The

French ordinances direct, that, in addition to consequently, for the means even of our domestic security,

the confiscation of the enemy's property so

found, the neutral ship which carries it shall The proposititions were as follows: also be confiscated. We release all neutral 1. That it is not lawful to neutral pa

property which is found on board an enemy's tions, to carry on, in time of war, for the ship; but France considers it as lawful prize. acivantage, or on the behalf, of one of the See Ordonnance de Marine, Art. 7, and belligerent powers, those branches of its Valin, p. 284. commerce from which they are excluded

In speaking here, and in other places, of in time of peace.*

the practice of France as constituting an authority of deserved weight on these subjects,

I refer to her ancient maritime code, and not * The claims of neutrals, for the security to the contradictory decrees, or to the corrupt of their commerce, can evidently, in no case, and lawless decisions, of her révolutionary be carried farther than that they may continue governments. to trade in war in the same manner as they $ “ Les choses qui sont d'un usage particudid in peace. This is stated by Bynkershoek, lier pour la guerre, et dont on empêche le

4. That it is lawful to naval powers, Having thus faithfully reated these wheu engaged in war, to block the ports propositions, it is not necessary that I of their enemies, by cruizing squadrons, should here repeat those arguments which bona fide allotted to that service, and have long since undeniably established fairly competent to its execution. That both the justice of the principles themsuch blockade is valid and legitimate, al selves, and their infinite importance to the though there be no design to attack, or to interests of this country. The very adreduce by force, the port, fort, or arsenal dress to which your lordships are about to to which it is applied. And that the fact accede, describes them, empbatically, as of the blockade, coupled with due notice essential rights, and on that ground you given thereof to the neutral powers, shall are about to congratulate his majesty upon affect not only vessels actually intercepted their final establishment and recognition. in the attempt to enter the blockaded In what degree they are really secured to port, but those ships also which shall else- us, by the present treaty, is therefore the where be met with, and shall be found to only point to be now considered ; and this have been destined to such port, under the question, with the permission of the House, circumstances of the fact and notice of its I will proceed to examine in detail. blockade.*

The first of these principles, in the 5. That the right of visiting and exa- order in which I stated them, establishes mining neutral vessels, is a necessary con. the rule under which the belligerent resequence of these principles. And that, fuses to neutrals the liberty of carrying on, by the law of nations (when unrestrained during the war, those parts of his enemy's by treaty) this right is not in any manner trade, from which they are usually exaffected by the presence of a neutral ship cluded in time of peace. This rule has, of war, having under its convoy merchants in our practice, been pricipally applied to ships, either of its own nation, or of any the coasting and colonial trade of France. other country.t

From both these branches of her trade,

France bas, in every period of peace, extransport chez l'ennemi, s'appellent marchan- cluded all vessels but her own; with such dizes de contrabande. Telles sont les armes, les munitions de guerre, les bois, et tout ce qui sert à la construction et à l'armement des + “On ne peut einpêcher le transport des vaisseaux de guerre."-Valtel, c. 7, s. 112. effets de contrebande” (we may add, nor that See also the letter of the American govern- of enemy's property), “ si l'on ne visite pas les ment to Mr. Pinckney, their minister at Paris, vaisseaux neutres que l'on recontre en mer. dated January 16th, 1797, which expressly On est donc en droit de les visiter."— Valtel, declares, that by the law of nations, timber 1. 3, s. 114. and other naval stores, are contraband of war. “ Tout vaisseau qui refusera d'amener ses These are quoted as the two last authorities voiles, après la semonce qui lui en aura été of undoubted impartiality on the subject. It faite par vos vaisseaux, ou ceux de nos sujets has been copiously and variously discussed by armés en guerre, pourra y être contraint par the older writers on the law of nations; but artillerie ou autrement, et en cas de resistance the concise and luminous expresssion of Gro- et de combat, il sera de bonne prise."--Ortius includes the whole principle, by which donnance de la Marine de France, Tit. des reason shows that the question always must Prises, Art. 12. be governed, “ In tertio genere (mercium), The Spanish ordinance of 1718 has an artiusus ancipitis, distinguendus erit belli status.” cle to the same effect. With respect to the -Grot. 1. 3, c. 1, s. 5. See also the essay on pretension that neutral vessels sailing under contraband, by the able author of the History convoy, are exempted from this right of search, of the Law of Nations.

it is so unanswerably refuted in sir W. Scott's * The late judgments of the court of Ad- judgment in the case of the Swedish convoy, miralty have set this question of blockade in that nothing can be added to the authority of so clear a light, that it would be an injury to that argument. The history of the question the reader to refer him elsewhere for the law has since been stated with very great ability of nations on this point. These judgments by Dr. Croke, in his reply to Mr. Schlegel's are to be found in the valuable collection of pamphlet; and every person who examines Admiralty Reports: a publication calculated those publications with impartiality, must I to vindicate the national honour from much think, conclude, in the language used respectunmerited reproach; and to prove to the ing this claim by Cromwell's commissioners world that Great Britain administers the pub- in 1657, That a belligerent“ cannot, and ought lic law of nations with the same distinguished not, to put so much faith in particular captains ability and unblemished purity, which have so at sea ; that in no former treaty any such long been the glory of her courts of municipal article is found; and that the neutral powers judicature.

have no reason to desire any such uovelty."

occasional exceptions only, as have more any fair construction at all, preclude it; strongly proved her general principle of and if the principle essential to Great exclusion. But in war she has always Britain be not (as I fear it is) expressly found it impossible to maintain these mo- negatived, it is left, at the best, in a state nopolies. Pressed on the one hand, by so very doubtful, as to afford a handle for our naval superiority, which has rendered perpetual cavils, and a copious source of the navigation of their own ships unsafe ; interminable differences. A free navigaand unable, on the other hand, to forego tion to the ports, and upon the coasts of the resources which depend entirely on any country, must, I think, imply the lithese important branches of her commerce, berty of navigating freely, both to and she has frequently endeavoured, under from all those ports, and upon every part these special circumstances, to open both of those coasts. If any limitation of her colonial and her coasting trade to the this liberty was intended, it must natuvessels of neutral nations. But this attempt rally be looked for in the same instrument has uniformly been resisted by Great which asserts, and guarantees, the general Britain ; nor' have the other powers of right. Some such restraints and limitaEurope been very forward to embark in a tions are accordingly specified in this commerce which they knew we should article; and these must, I think, in all justly consider as an interference in the fair reasoning, be taken to be the only war, and as a manifest breach of all the remaining exceptions, to that otherwise obligations of neutrality.

unrestrained freedom of navigation and The right to carry on unmolested, dur-commerce with our enemies ports, which ing war, both these branches of the trade neutrals are henceforward to enjoy. of France, although prohibited in time of Among the exceptions thus specified, not peace, was, however, claimed in 1780, by even the most distant reference is to be the pretended neutral league, which was found to that principle respecting the then formed for the purpose of destroying coasting trade, which we have hitherto our naval power.

And when, at the thought, as this address declares it, a close of the last year, the same confede- right essential to our interests. The racy was renewed, with the same views, liberty of sailing freely to any port of the this unjust and inadmissible pretension hostile country, is plainly conceded and was, with many others of the same de- guaranteed: but it is not even intimated, scription, once more openly advanced in much less declared, by any article of this hostile defiance to Great Britain. The treaty, that this permission is not to claim which the confederates thus asserted, extend to ships laden with commodities was, as far as relates directly to the coast- purchased at any other port of the same ing trade, expressed in the third article of country. No man, from reading this the convention of 1800, under the follow- convention, could conjecture that we ing words, viz. “ That neutral ships may had ever asserted such a rule of public navigate freely from port to port, and law. The very principle itself is con. upon the coasts of the belligerent powers.” signed to utter oblivion, and any attempt The present convention has adopted very on our part to renew its practical exercise, nearly the same expressions. By the will henceforth be regarded as a breach of first section of what there also stands as that solemn compact by which we have rethe third article, neutral ships are per. cognized the innocence, and guaranteed mitted “ to navigate freely to the ports, the freedom, of all neutral trade, not and upon the coasts of the belligerent consisting in enemies property, or in conpowers.And in the next section of the traband of war. same article, corresponding also (though Nor indeed would it be easy to explain, with a variation respecting enemy's pro. in any other sense than that of a deliberate perty, of which I shall hereafter speak) and intentional concession of the coasting with a clause in the treaty of 1800, it is trade, the admission of those words which expressly declared, that " the effects em- guarantee to neutrals the free navigation, barked on board neutral ships shall be free, not only to the ports, but " upon with the exception of contraband of war, coasts of the powers at war." If a direct and of enemy's property.”

trade only from the neutral country to the Now, my lords, if these words do not ports of the belligerents had been intended, actually establish the hostile claim of the ihe first words of this section had amply northern league on this subject of the secured it. If it was meant to permit a coasting trade, they certainly do not, on partial and successive discharge of the

the

different articles of the cargo, at different the concessions which really were in. ports, this also is secured by the general tended; or why we should have forborne to and unqualified permission to sail freely require in return, that our remaining rights, to those ports. And the addition of the whatever they might be, should be recog. words"

upon the coasts,” cannot pos- nized with the same precision, and guasibly have been made with this view; be- ranteed to us with the same certainty. cause the words themselves have no re- I must however acknowledge, that to ference to this purpose, nor do they even the next point of which I have to speak, convey the idea to the mind of any man, the charge of ambiguity does not apply. whether he be accustomed to hear the On this head the treaty is unfortunately subject spoken of in loose and popular but too explicit. It is clear that we have language, or be expressed with the preci- admitted neutrals to carry on the whole sion of statesmen and civilians. These colonial trade of France. That claim is words were first introduced into the treaty indisputably and unequivocally conceded of armed neutrality in 1780. They were by Great Britain. I have already stated there employed for the express purpose to your lordships on what grounds of policy of asserting the right of neutrals to carry and justice we have always hitherto reon the coasting trade of the belligerents. fused to neutrals, during war, the priviFrom that treaty they have since been lege of trading with the French colonies carefully transcribed, first into the hostile If this prohibition were once withdrawn, convention of 1800, and now again into or if it did not attach upon the commerce this conciliatory arrangement, to which of those colonies with the neutral ports of we are hereafter to look for the rule of Europe, as well as on their direct trade maritime law. It will not be a very un- with 'France, our maritime superiority candid argument, on the part those who would, at least in that quarter of the shall maintain that Russia having, in all world, be completely eluded the valour and these three cases, adopted these same energy of our navy would be deprived of words of sailing freely upon the coasts of the just reward which it now derives from the belligerents, meant to express by them its most profitable captures ; and the in each of the cases the same claim: enemy would enjoy, undiminished in war, and on the other hand, that if Great as in peace, all those resources which Britain had now intended to stipulate for are most applicable to increased exerthe renunciation of the right which Russia tions against the vital interests of Great had before asserted, our negotiators Britain. would not have selected the very same ex- The instructions issued by his majesty pressions which were originally used for at the commencement of the late war,* for ebat assertion, and which even now are the conduct of his navy, were therefore capable of no other interpretation, and founded on this long-established principle; must be either so construed, or regarded and the only relaxation of it which had as wholly superfluous.

taken place until the signature of this It would however be difficult for any treaty, was by an indulgence granted to man, at all acquainted with the nature the united states of America, on account of the subject, and with the situation and of the peculiarity of their local situation. interests of the contracting parties, to That government complained that these believe that this point was in fact intended instructions had driven the Americans to to be conceded by us, or was purposely the necessity of purchasing in Europe, by involved in doubtful and equivocal expres. a circuitous voyage, the articles of colosions. Russia could have no object in nial produce necessary for their own concontesting it with us: Russian ships will sumption. If the other European colonies never carry on the coasting trade of the had at that time been open to the trade of belligerenis, nor will that country derive America, while those of France were either commercial or political advantage, closed by us, the ground of this complaint from obtaining this benefit for the vessels would have been considerably weaker than of Denmark or of Sweden, to whom alone it is likely that this stipulation will practic and detain all ships laden with goods the

6, " That they shall stop cally apply. But if this surrender of right produce of any colony belonging to France, was not in our contemplation, I am utterly or carrying provisions or other supplies for the at a loss to conceive why we should have use of such colony, and shall bring the same been afraid to state with openness, and with their cargoes to legal adjudication in our to define with accuracy, the extent of Courts of Admiralty.”

« PreviousContinue »