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it appeared to be under the circumstances which actually subsisted. Or if the complaint itself, however well founded, could not have been attended to by this country, without practically conceding to our enemies the means of bringing their colonial produce to Europe, the paramount claim of our own defence would justly have superseded every other consideration. But this was by no means the case; it was evident that no vessel laden with French colonial produce, and met with by our cruisers on its passage to Europe, could allege a destination to New York, or Boston, which the mere fact of the course she was pursuing would sufficiently disprove; whereas if a voyage to Hamburgh or Copenhagen had been equally permitted, the same ship might proceed under this pretence to the very mouths of the French ports, waiting the first opportunity to enter safely, if not into Bourdeaux or Marseilles, at least into Cherbourg, Havre, or Dunkirk. Nor was it likely that the direct trade from the Islands to America could, under the peculiar circumstances of a war which had placed in our hands almost the whole of the West Indian possessions of France, be made the channel of any considerable circuitous_supply of French colonial produce to Europe. On these grounds a relaxation of our principle was admitted in favour of a friendly power; but this was not done by any treaty, permanent, or even temporary; it was a spontaneous act of his majesty's government, resting on the king's authority alone, and subject to his discretion; and depending therefore for its duration, or its renewal, on the continuance or recurrence of the same circumstances which then led to its adop


The new instruction issued for this purpose in 1794, by his majesty in council,+ permitted neutral vessels, during that war, to carry to the ports of the United States the produce of the French colo

* "Lucrum illi commerciorum sibi perire nolunt. Angli nolunt quid fieri, quod contra salutem suam es. Jus commerciorum aquum est, at hoc æquius tuendæ salutis; est illud privatorum, hoc est Regnorum." Albericus

Gentilis de Jure Belli.

Jan. 8, 1794, Art. 1. "That they shall bring in for lawful adjudication all vessels, with their cargoes, that are laden with goods the produce of the French West India islands, and coming directly from any port of the said islands to any port in Europe."


nies. But in other respects the former order still remained in force; and from that moment, to the close of last year, amidst the numerous, and often groundless complaints of neutrals, I do not recollect that a single voice was heard either to question the justice of our principle, which confined their commerce with the enemy to those branches only which they had carried on before the war; or to dispute the correct application of that principle, as detailed in the instruc tions under which the British navy has uniformly been acting. Yet, in the present treaty, the whole of this long-admitted claim, its principle as well as its practice, is at once surrendered without reserve, and without compensation, by a permanent and perpetual concession. Not one word of exception has been provided for it; nor, as it should seem, has one thought of interest been bestowed upon it.

My lords, I am happy to see that I am honoured with the attention of my noble and learned friend who presides in this House, and whose situation peculiarly calls upon him to insure to his country that some remedy shall yet be obtained, while a remedy is still within our reach, for this unforeseen and almost incalculable mischief. He is the first in station among those venerable magistrates who administer to the subjects of this realm, and to all foreign nations having intercourse or commerce with us, the inestimable benefits of pure and impartial justice. He is also the first in that high commission of appeal, where the rights and interests, the claims and the complaints, not of individuals only, but of states and governments, are weighed with deliberate consideration, and determined with dignified and scrupulous integrity; and if his continuance in that distinguished office shall be as long as his country wishes it, he will often be required to pronounce authoritatively upon the construction of this treaty, and to promulgate from the seat of justice those numerous and important changes which it has suddenly introduced into our whole system of maritime law. I have long known the uprightness and integrity of his mind: I am certain, not only that when he decides as a judge he will forget that he is a minister, but that even when in debate in this House

he delivers any opinion on matter of law, he will speak to us as a lawyer, and not as a politician. I take the liberty therefore to address myself to him, as to a per

son to whose opinion I always listen with unfeigned respect: and I ask him with confidence, whether, in determining a question of property between individuals, any earthly considerations could induce him to assert, that a neutral ship carrying on the trade of the French colonies with Europe (but not having on board either enemy's property or contraband of war), has violated any one of those conditions subject to which alone this convention has expressly guaranteed an unlimited freedom to neutral navigation? Let my noble and learned friend, before he answers this question, look to the second section of this third article of which I have before been speaking. He will there find it distinctly provided, that "all effects embarked on board neutral ships shall be free," with no other exception than those of contraband of war, and of enemy's property.

The sugars of Martinique or St. Domingo, if so embarked, will certainly not be contraband of war. The case which I put to my noble and learned friend, supposes them not to be enemy's property, but purchased by neutrals under a lawful sale. What is then the sentence which he must pronounce upon them? I answer, in the very words of this article, by which he is to judge, "the effects shall be free;" they shall pass freely, without capture, detention, or delay, to Denmark, to Sweden, to Russia, or even to France itself. Would such a sentence be conformable to the present law of nations? Is this now the rule which guides the practice of our cruisers, or the decisions of our courts? My noble and learned friend well knows that it is not. But we must henceforward submit to receive and recognise it, as an imperious and over-ruling principle, which is to silence the concurrent opinions of all civilians, to annul the uniform decisions of all British and all foreign courts of prize jurisdiction, and to be applied, as I shall hereafter show, not merely to the powers with whom we have ostensibly negotiated this transaction, but to the practice and the rights of every neutral state. If indeed any English ministers could be suspected of having deliberately consented to such a sacrifice, one should not have wondered that a sense of the fundamental change which it must introduce into the principles of our public law, should have rendered them so peculiarly solicitous to word it in the clearest and most decisive terms; lest some natural

doubts should still remain among the other powers of Europe, whether the British government had really and knowingly agreed to a concession, which must appear to all the world almost incredible. Clearly and unequivocally indeed have they spoken. For your lordships will observe, that the article from which this new and dangerous consequence is to result, does not stop even at the decisive words which I have already quoted: it goes on to state, with a precision rarely to be found in this treaty, that "it is agreed not to comprise, under the denomination of enemy's property, the produce, growth, or manufactures of the countries at war, acquired by neutrals, and transported on their account." Apply these words to the case which I have already stated; their purport and effect must be, that the produce of Martinique, acquired by Danes or Swedes, may freely be transported on their account to any neutral country; or even to France itself, for in that respect there is no limitation. Even this is not all. As if it had been thought that additional words were still wanting to ratify our submission, or that repetition and tautology could give new validity and assurance to this explicit surrender of our rights: the article subjoins (still speaking of the produce of a hostile country, purchased and transported by neutrals), "which merchandize cannot be excepted, in any case, from the freedom granted to the flag of the neutral power."

Now, my lords, let those who have undertaken the sacred duty of maintaining, in negotiation with foreign powers, the rights of their sovereign, and the interests of their couutry, weigh in their own minds all the effect and force of these expressions. Let them ask themselves, whether any words can be found in language admitting of less doubt? Whether any purpose can be more distinctly expressed by an agreement, or any obligation be more clearly binding on the public faith? The thing spoken of in the treaty, is "the growth, produce, and manufacture of the territories of the belligerent powers." No man, I suppose, will deny that the colonies of France are its territories; or that the sugars, coffee, and cotton, are their growth and produce. The stipulation respecting this growth and produce is, that it may freely be acquired by neutrals, and transported by them without restraint to any other place. I am

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not aware that even the possibility of cavil is left to us, on this subject, much less any honourable plea, to which British ministers can now resort in defence of this most important right, which all their predecessors have successfully maintained, and the dereliction of which, when coupled with the other concessions of this convention, will place us in a situation hitherto unexampled in the history of the British navy.

Can we now contend that neutrals may not transport to Europe the produce of the colonies of France? Can we even refuse to them an unlimited intercourse with all the ports of all those colonies? Look at the treaty-the only object of which is to define and regulate such questions with a greater accuracy than before prevailed, and, as the preamble declares, "to fix invariably the principles of the contracting parties upon the rights of neutrality." We have there expressly conceded, not in any loose and general provision, having other points principally in its contemplation, but in the precise words of an article, framed for the sole purpose of certainty upon this very subject, that all neutrals "may sail freely to any port of the belligerents;" to their ports in America, therefore, as well as to their ports in Europe: and that their commerce in the productions of those countries "shall be free," with such limitations only as have no relation to this question of colonial trade. Must we then acquiesce in this change, and leave to neutrals the enjoyment of this new pretension? Or shall we, in failure of every other plea, lay claim to some hidden exception, to some implied reserve, by which we intend to profit, but which we have omitted to express ? Shall we attempt to argue that the colonial trade is by us considered as a special case, to which this general conces sion does not apply? Even there also the framers of this article have met us; and, as if they foresaw the evasion, but were determined to guard against it, they have distinctly provided, not merely that this freedom of navigation shall in general be permitted, but that is shall not "in any case" whatever, be refused. On the whole, therefore, I have, for my own part, no hisitation, or difficulty, in declaring it to be my deliberate and conscientious opinion, that any judge, sitting to decide under this treaty as it now stands, and having regard to the obligation of his oath, must admit the conclu

sion which I have here stated: and that no minister can in negotiation contend against it, without betraying the deliberate and dishonourable purpose of breaking the public faith, and wresting from their true construction the solemn engagements of his sovereign. Nor, until I hear the contrary, will I believe that any man, capable of construing a treaty, can attempt to controvert this interpretation, however much he may wish to excuse the negligence, or hope to palliate the error, which constrains him to admit so dangerous a consequence.

Having stated this as the firm and unal. terable conviction of my mind, grounded on reasons which I am confident it is impossible to shake, I think it just to add, in this instance as in the former, that I am thoroughly persuaded this effect was not in the contemplation of the framers of this treaty. It has, I have no doubt, resulted only, like that of which I have before spoken, from precipitation and inadvertency. But I have much more satisfaction in looking to the means of rectifying the omission, than in examining its origin, or in tracing its consequences. I am therefore happy to remark to your lordships, upon this, and upon almost every other concession of this treaty, that they are all points still susceptible of amendment; points on which Russia, disposed as she now is towards Great Britain, can have had no real interest to insist. Very great advantage would certainly result to other neutral powers from this particular concession; and its value to France might be almost beyond calculation; but to the Russian empire it can produce no benefit whatever. The colony trade of France in war, if we open it at all to neutrals, will naturally fall into other hands than those of Russia. If, therefore, in the spirit of conciliation and friendship, we propose at Petersburgh to explain this article in a manner more consistent, both with our rights and interests, we must believe that such an explanation will not be refused. There can be no reason to apprehend that the mere desire of gratifying our common enemies, or rivals, would induce that court to insist on our adhering to an agreement into which we have been betrayed only by negligence or inadvertence, and the consequence of which may produce so material an injury to our naval power.

Having therefore expressed this hope, and trusting that the measures by which

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it may best be realized, will neither be omitted nor delayed, by those who are charged with the conduct of the public interests, I proceed to speak of the second of the general principles, which I have before enumerated. It is that which is opposed to the pretension that free ships make free goods. It is the principle on which we maintain that the goods of an enemy embarked on board a neutral ship are not exempted from those natural rights of capture and confiscation, which accrue to a belligerent whenever he meets with hostile property, not protected by the territorial jurisdiction of a friend. I am happy to declare, without reserve, that on this point the present convention seems to me to have obtained a sufficient recognition of the just and established principle asserted by Great Britain. Our advantage in that recognition is indeed confined to the single case of Russia, whose commercial navigation is of small extent. With respect both to Denmark, and to Sweden, as far as the public faith of na

tions is to be considered as binding, this stipulation was already contained in our treaties with both those powers, and was perhaps still more distinctly expressed than it is in the article of which I am now speaking. But I am far from thinking that the recognition of the same principle by Russia was therefore of slight importance: and I am desirous to give to the convention, on this head, the full credit to which I think it fairly entitled.

†Treaty of 1661, between Great Britain and Sweden. Art. 12.-" But lest such freedom of navigation and passage of the one confederate should be of detriment to the other, while engaged in war, by sea or land, with other nations, and lest the goods and merchandises of the enemies should be concealed under the name of a friend and ally, for the avoiding all suspicion and fraud of such sort, it is agreed, that all ships, carriages, wares, and men, belonging to either of the confederates, shall be furnished in their journies and voyages with safe-conducts, commonly called passports and certificates, such as are underwritten, verbatim, signed and subscribed by the chief magistrate of that province and city, or by the chief commissioners of the customs and duties, and specifying the true names of the ships, carriages, [VOL. XXXVI.]

Most sincerely do I wish that the next principle which we have to consider, were left by the result of this negotiation on a like footing of advantage and security to Great Britain. It involves what is perhaps the most valuable of all the interests for which we have contended. It relates to the important concern of contraband of war. But before I speak of the consequences to be apprehended from the unparalleled inaccuracy of this part of the convention, it is proper first to advert to those more obvious and avowed concessions which it contains, and which, apply to this essential point. The first of these relates to the duration of the preties with Russia, which we had renewed sent engagements. Our commercial treain 1797, for a fresh period of ten years only, had, by a temporary stipulation, admitted the subjects of the Russian empire to carry, in their own ships, naval stores to the ports of our enemies. By the second seperate article of the present convention, the treaty of 1797, which had been suspended during the short period of hostility between the two countries, has been re-established for the remainder of its terms; but the period of

Treaty of 1670, between Great Britain and Denmark, Art. 20.-"But, lest such freedom of navigation, or passage of the one ally, and his subjects and people, during the war, which 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 merchandises, belonging to the enemy, may be fraudulently concealed under colour of being in amity, for preventing fraud, and taking away all suspicion, it is thought fit that the ships, goods, and men, belonging to the other ally, in their passage and voyages, be furnished with letters of passport and certificate, the forms whereof ought to be as follow." Here follows the form of the passport, which expressly certifies that the whole cargo belongs to neutrals, and not to either of the belligerent parties.

goods, and masters of the vessels, as also the exact dates, without any fraud or collusion; together with such other descriptions of that sort as are expressed in the following form of a safe conduct and certificate. Wherefore, if any person shall affirm, upon oath by which he is bound to his king, state, or city, that he hath given in true accounts, and shall afterwards be convicted, on sufficient proof, of any wilful fraud therein, he shall be severely punished, as a transgressor of the said oath." Here follows the form of passport, which is to the same effect as that in the Danish treaty. And the article goes on, after some farther detail, to state, that "if the goods of an enemy are found in such ship of the confederate, that part only which belongs to the enemy shall be made prize, and what belongs to the confederate shall be immediately restored." [Q]


its duration has not been extended. It will therefore expire within a little more that five years from this time; but the privilege which it conveyed to Russia of carrying naval stores to our enemies, will now not expire with it. The article which contained that concession has been separated from all commercial stipulations, and transferred from the treaty of 1797, which was of limited and short duration, into the present convention, which is expressly declared to be perpetual. not any man that hears me, imagine this innovation to be a matter of inconsiderable consequence. Hitherto, as often as our commercial treaties with Russia were to be renewed, so often was the policy of this concession brought under our view, to be reconsidered, as any change should have occurred in the circumstances of the two empires, or in their mutual relations to each other. In the present state of the commercial marine of Russia, this privilege, confined as it is to Russian ships alone, cannot materially affect the interests of Great Britain; nor is likely that the next five years will produce alteration in this respect. any essential

But is this country equally secure in the perpetual surrender of such a privilege? Are we certain that the marine of Russia will for ever continue incapable of exercising it to an extent highly prejudicial to the most important interests of the British empire? What sentence of irrevocable law, what principle of reason or of nature, has barred all farther progress to a nation which has been raised, within the last century, from a horde of barbarians to rank with the first among the powers of Europe? Or, where is that bold and visionary prophet who, circumscribing by his predictions the exertions of a great and growing empire, has ventured to guarantee to us the perpetual duration of its present territorial boundaries? Has he never heard of the three successive partitions of Poland? he never looked to the present situation Has of Sweden and of Turkey? Or, is he to learn, that it is yet a problem how far that desperate system of partition may at this very hour be actively extending itself on the continent of Europe? The French

pulations shall be regarded as permanent, * Article 8. of this Treaty." These sti

and shall serve for a constant rule to the contracting powers in matters of commerce and navigation."

Debate in the Lords

republic has openly adopted it as the
great instrument of her present and fu
main spring of all her foreign policy, the
ture dominion. Left as she now is by
our submission, tlie indisputed arbitress
of Europe, what shall prevent her from'
inducing the continental
more to recur to the same injustice; to
quench their mutual jealousies in the
powers once
blood of their unoffending neighbours,"
manly resistance against her encroach-
and to seek their own security, not by a
ments, but by making themselves accom-'
plices with her in the plunder and division
of weak and defenceless states? From
present sovereigns of those three mighty
the personal dispositions indeed of the
hoped. Happy will it be for Europe,
monarchies, better things may perhaps be
and happy for themselves, if they shall
finally reject these revolting projects of
illegitimate aggrandizement! But if the
danger to which Great Britain may be
exposed by the consequences of the pre-
sent treaty, is to recur as often as the
system of partition shall revive in Europe,
we may too soon feel the want of some
better security. We may find abundant
for the interests of our country some.
cause to regret that we have not obtained
more lasting safeguard than can be found
either in the constancy of any personal
character, or in the precarious tenure of
human life

Yet, if it were as reasonable, as it is
merchant ship can ever be constructed in,
in fact absurd, to contend that no Russian
those harbours which now contain a mili-
tary marine not much inferior to that of
France; if it were clear that no naval
ships from the same ports to which the
stores could ever be exported in Russian
vessels of all other nations resort in crowds
for the purchase of those very articles;
if it were certain that Russia alone, of all
forth extend her navigable coast, either
the powers of Europe, never can hence-
by treaty or by conquest; if we had no
place at her disposal the commanding port
reason at this very hour for wishing to
of the Mediterranean sea, as the only
absolute dependence upon France; if the
means which can now preserve it from an
benefit of this convention could justly be
withheld from all provinces or countries
have never recognized as to our own con-
henceforth to be acquired by either of the
parties; a principle which we ourselves.
quests, nor have maintained against Prus-
sia in the recent example of Dantzic

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