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yet even then, making all these extrava- tion would have been distinctly expressed. gant admissions, your lordships will still It was the object of this treaty to fix infind, that we have, by another part of the variably the rights of neutrality. It canconvention, materially facilitated to our not therefore be presumed, that in treatenemies the means of carrying on with | ing on this very subject of the crews of Russia, even in her present state, an ex- neutral vessels, this important limitation tensive commerce in naval stores. of those rights would have been passed
By the seventh article of this treaty over in silence, if it were interided to (copied with so many other of its stipula- remain. The plain interpretation of that tions from the hostile conventions of the silence must be, that the old rule is abnorthern league*) it is provided that the rogated by the omission, and that, by the privileges of neutrality shall be allowed to positive stipulation, the new rule has been such vessels only as have on board a substituted in its place. Russia, therecaptain and one-half their crew composed fore, in construing this treaty, which, of the subjects of the power whose flag strange as it must appear, does not conthey bear. If these words are to be contain any general reservation of our former strued only as limiting the proportion in rights, will undoubtedly be well warwhich the subjects of one neutral may be ranted to contend, that in the present admitted to navigate the vessels of another case, as in that of contraband, the specineutral, I agree that they must be in fication of the restraint implies the pernocent, because I am sure they are commission of all that it does not expressly pietely nugatory. It must be quite indiffe. restrain. If then, in any time of war, rent to us by what neutral sailors neutral a crew, the half of whom are French, ships are manned: or, if we should find may sail under the protection of a Russian any imaginable advantage in the distinc- fag; and if to a vessel so manned we must tion, the powers, whose interests it allow the general rights of neutrality, and affected, would very soon, by the prac- the special privileges of the Russian navitice of adopting and naturalizing the sub- gation, can any man doubt that great and jects of each other, make it impossible essential detriment may arise to us from for us, even in a single instance, to ascer- this concession. France herself, with all tain the fact in question. But if this pro her parade of liberality, has not yet vision be construed, as I fear it will, as granted the like privilege either to Russia, superseding every other restraint respect. or as, I believe, to any other country. I ing the crews of neutral vessels; if hostile Yet, if this concession from Great Britain subjects as well as neutral may henceforth were really a benefit to Russia, it might, compose one half of the seamen who in some points of view, be less objectionnavigate such vessels, it becomes impor. able; but it is to France alone, and in her tant to inquire what innovation has thus wars with England, that all the advanbeen introduced into the law of nations, tage of this article will accrue. A direct and how far it may affect the interests of commerce, during war, is now authoGreat Britain. By the rule which is now rized between the French and Russian generally received in Europe,t not one ports, in vessels bearing indeed the Rushalf, but one third only of hostile seamen sian flag, but which will be navigatad by are permitted to navigate a neutral vessel. a crew, one half of whom are French, If it had been meant that this rule should and who will consequently have much still subsist as to hostile seamen, and that greater opportunities than any which can the new provision of the article which now subsist of fraudulently disguising the we are now considering, should be superadded to it, but confined to neutral sca
† The following passage from a work, men only, we must suppose that this inten- recently published in France, to countenance
the new principles of neutral law, carries this * See Art. 5. of the Neutral Convention pretension still higher than it is stated above. of 1800.
* La seule patente par laquelle une nation t" Les Hollandois doivent observer que veut qu’un navire soit traité comme lui apl'equipage du navire ne soit pas composé de partenant, ne suffit pas, suivant les usages matelots sujets d'un pais ennemi au-delà du actuels de la mer; mais il faut encore que lo tiers de l'equipage: si les matelots sujets du capitaine et les deux tiers des matelots soient pais ennemi excedoient le tiers de l'equipage, le sujets de cette même nation, et que ces matelots navire seroit de bonue prise."--Notification soient compris sur le rôle d'equipage."--Azuni to the Dutch, published by the court of France Droit Maritime de l'Europe, Paris, an. 6, in 1756, Art. 4.
vol. ii. p. 244.
real property of the vessel, and of con- as contraband of war.” Conformably trolling the conduct of the remainder of the with this intention, the contracting parties crew.
declare, in the body of the clause, what In stating to your lordship these last are the only commodities which they concessions, I have proceeded on the acknowledge as such." And this declapersuasion, that they are too plainly and ration is followed by a special reserve, clearly expressed, not to have been in the that it “ shall not prejudice their partifull contemplation of both the contracting cular treaties with other powers.” parties. If the fact was otherwise, if these If the parties had intended to treat of stipulations were originally intended to this question only as it related to their bear any other than their natural and ob- own conduct towards each other, and to vious sense, I have only to repeat, in this leave it in that respect on the same footing case as in the former, that no time should on which it stood before the formation of be lost in removing all ground of am- the hostile league of 1800, all mention of biguity, by candid and amicable explana- contraband in this part of the present tion. But, among the numerous instances convention would evidently have been in which such a revisal of the present superfluous. Nothing more could, in that treaty appears to be essential to the public case, be necessary, than simply to renew interests, there is none of such extensive the former treaties, which had specified importance as that to which I must next what articles of commerce the subjects of intreat the particular attention of the the respective powers might carry to the House. On comparing together the dif- enemies of each other; and as we find ferent sections of the third article of this that renewal expressly stipulated in convention, one great distinction between another article of this same convention, them cannot fail to be remarked, even by we must, in common justice to its the most superficial observer. The two authors, consider this third section as first sections and the fifth, those which introduced for some distinct and separate relate to the coasting and colonial trade, purpose. It must therefore unquestionand to the proceedings of our maritime ably be understood in that larger sense tribunals, are in their frame and operation which is announced in its preamble, and manifestly, prospective. They provide which is expressed in the words of the only for the future arrangement of the declaration which it contains. It must objects which they embrace; and they be taken as laying down a general rule for profess to extend no farther than to the all our future discussions with any power reciprocal conduct of Great Britain and whatever, on the subject of military or Russia towards each other. The third naval stores, and as establishing a principle and fourth sections, on the contrary, those of law which is to decide universally on which treat of contraband of war, and of the just interpretation of this technical blockaded ports, do each of them ex- term of contraband of war, pressly contain, not the concession of any
Nor, indeed does it less plainly appear special privilege henceforth to be enjoyed from the conclusion, than it does from the by the contracting parties only, but the preamble, and from the body of this recognition of a universal and pre-exist- section, that it is meant to bear the ing right, which, as such, cannot justly general and comprehensive sense, which I be refused to any other independent state. have here stated. The reservation which This third section, which relates to con- is there made of our special treaties with traband of war, is, in all its parts, strictly other powers, is manifestly inconsistent declaratory. It is introduced by a separate with any other more limited construction, preamble, announcing that its object is to For, if the article had really no other prevent “all ambiguity or misunder. object in its view, than to renew or to standing as to what ought to be considered prolong our former engagements with the
northern crowns, what imaginable purpose Equivoque is, in the official copy of the can be answered by this concluding sen. present treaty, translated equivocation : but this tence? Was it necessary to declare, that is a mistake; it means doubt or error. The argument would, however, be equally strong
a stipulation, extending only to Russia, if this translation were admitted. The worá to Denmark and to Sweden, should not ambiguily has been here chosen, because it is prejudice our treaties with other powers ? found in the common English translation of How should it possibly have any such the convention of 1780, from which this
effect? How pre
treaties with amble is faithfully copied,
Portugal or with America be affected by
the renewal of those engagements which , naval rights, as that of contraband of war. had long ago declared what articles might The explanation given of this term by this be carried in Russian or Danish ships ? convention, is neither drawn from any esBut the case would, indeed be widely tablished usage, por supported by any ada different under the more enlarged con- mitted authority. It is copied both in its struction which evidently belongs to this letter and in its spirit from the same constipulation. The reserve was not only vention of armed neutrality, which, as I prudent but necessary, when we undertook have often had occasion to remark, have to lay down a universal principle, apply- so unfortunately been chosen as the ing alike to our transactions, with every models for this British negotiation. In the independent state. In recognizing a first of those hostile leagues the empress claim of pre-existing right, and in estab- of Russia thought proper to declare, that lishing a new interpretation of the law of her engagements with Great Britain on nations, it was unquestionably of extreme the subject of contrband, should thenceimportance expressly to reserve the more forth be considered as the invariable rule favourable practice which our subsisting of natural and universal right; and that treaties had established with some other those commodities, which her own subjects powers. And that which was before in- were privileged by treaty to carry to our congruous and useless, would therefore, enemies, should not, in the commerce of under such circumstances, become, as far any other nations, be reputed contraband, as it extends, an act of wise and com- exceptby virtue of some special agreement. mendable forethought.
In strict adherence to this unprecedented On the whole, therefore, I have no and extravagant pretension, the article doubt that neutral nations will be well which we are now considering, adopts the warranted in construing this section as same rule, and adopts it on the same declaratory of a universal principle, and grounds; enumerating all the commodities applicable to every case where contraband mentioned in the treaty of 1797, between of war is not defined by especial treaty. Great Britain and Russia, and declaring Nor could we, in my opinion, as this treaty that conformably to that treaty the two now stands, contend in future wars, with sovereigns acknowledge those commodities any shadow of reason, much less with any alone as contraband of war. And as from hope of success, against this interpreta- that enumeration, every article serving tion, however destructive it must be of all for the construction or repair of ships is our dearest interests. Least of all can carefully excluded, it follows, that the we resist it, when we are reminded, that framers of this treaty have made the king in a succeeding article of this very con- of Great Britain publicly declare, that vention* we have bound ourselves, by the naval stores ought not, in his opinion, most distinct engagement, to regard all its “ to be considered as contraband of war;" principles and stipulations as permanent, and that he himself does not “ acknowaod to observe them as our constant rule ledge them as such !". in matters of commerce and navigation ; I must, however, here observe, that if expressions exactly corresponding with no other objection existed to this part of those by which the parties to the two the treaty except its extraordinary inacneutral leagues asserted both the perma. curacy, this alone would make it absomanence and the universality of the prin lutely necessary to resort to some farther ciples which were first asserted by those negotiation on the subject. It is not posconfederacies, and which the present sible that the future interests of this coun, convention so frequently recognizes and try on these essential points should be adopts.
left to rest on the unsteady foundations of It is therefore highly necessary that this precipitate transaction. The most your lordships should carefully. examine important clause even of this important what is this general interpretation which section, that which contains the very the contracting parties have thus solemnly object and essence of the whole, is in one declared; what sense it is that they have part of it so worded, that, as it now stands, thus permanently affixed to a term so no human ingenuity can extract from it a frequently recurring in the practice and reasonable meaning. The enumeration of law of every civilized nation, and so inti-those articles, which Great Britain has mately connected with the exercise of our by this convention declared to be the
only contraband of war, is, as I have * See Art. 3, of this Treaty. already stated, carefully confined to the
implements of a land war, to cannons and which they required that every other nafirelocks, swords and pikes, knapsacks, tion should implicitly adopt, and to which saddles and bridles, and the like; and, they bound themselves to obtain, either after going through this list, the treaty by menace, or by force, the reluctant proceeds expressly to declare, not only acquiescence of Great Britain. In purthat all other articles whatever shall not be suance of the purpose thus openly avowed, subject to confiscation, but that they “are they professed, on this very subject of not to be reputed warlike and naval contraband, to extend to every other stores.” Muskets and pikes, knapsacks, country the special privileges which we saddles and bridles, may, it seems, be had granted to Russia;* and they declared, useful for the construction of ships. But without reserve, that a commerce with all other articles whatever, all iron and our enemies, in naval stores, was open to timber, pitch and tar, masts, hemp, sail. every neutral state, under the fundacloth, cordage, and the rest, which the mental principles of the law of nature. ignorance of our ancestors considered as Prussia, therefore, although not privileged necessary for the means of maritime war, by any treaty on this subject, yet claimed are now discovered not only not to be for herself the undisturbed enjoyment of contraband, but not even to be naval this hostile trade. And this pretension, stores. The negotiations now depending extravagant as it may seem, was not only at Petersburg, must, however, as I imagine, recognised, but guaranteed to her by all produce such a correction of this article the confederates ;t who, at the same time, as may at least make it consistent with invited every other neutral power to enter common sense, and in some degree expla- into the like engagements, and to partake natory of the meaning which it was de- of similar advantages. I signed to convey. Anticipating, there. If under such circumstances the British fore, some such amendment, it may be government had then pursued the same proper for us to consider the clause as if conduct which has now been followed in it were already limited to its first declara- the present treaty, no hope could have tion, that naval stores ought not, by the remained to us of ever re-establishing our law of nations, to be reputed contraband rights. If this country had, in that moof war.
ment, as in the present, adopted those To judge of the effect which such a hostile conventions as the basis of its own declaration must produce on the situation engagements, if we had then proclaimed of this country in any future war, it is to the world, in the words of this article, necessary that we should once more recur that naval stores ought not to be consito the history of the first treaty of armed dered as contraband of war, and that neutrality. It was the undoubted object we ourselves did not acknowledge them as of that transaction, to disarm this country such, can any man doubt in what situation of her naval pre-eminence. Its authors, we should thenceforth have stood ? Not therefore, did not confine their views to only would the Prussian claim have been the acquisition of special privileges for by these admissions irrevocably confirmed, their own navigation. On principles the but the principle, thus solemnly recogmost hostile to our naval interests, they nised by us, must of necessity have been framed a universal code of maritime law, extended equally to every other country.
* Treaty between Russsia and Prussia 8th The same advantage must again have been May 1781. The preamble, after speaking of conceded to Holland, no longer fettered the determination of the king of Prussia to accede to the principles of the armed neurrality, • Treaty between Russia and Prussia, 8th adds--" Ceite déterosination de S. M. Prus- May 1781, article 2. sienne répondant parfaitement au desir de S. † Treaty between Russia and Prussia, 8th M. Imperiale de toutes les Russies de leur May 1781, article 3. donner une base stable et solide, en les faisant Treaty between Russia and Prussia, 8th reconnoitre sollemnellement par toutes les May 1781, article 9. “ Le but et l'objet prinpuissances, comme les seuls capables d'établir cipal de cet acte étant d'assurer la liberté géla sureté du commerce et de la navigation des nérale du commerce et de navigation, S. M. nations neutres en général, leurs majestés se Prussienne, et S. M. impériale de toutes les sont partées d'un commun accord à entrer en Russies conviennent et s'engagent d'avance à négociation, sur un objet qui les intéresse au consentir que d'autres puissances également même dégré."
neutres y accedent, et qu'en adoptant les prinSee also the fourth separate article of the cipes qui y sont contenus, elles en partagent same treaty.
les obligations ainsi que les avantages."
by any obligations of reciprocal assistance. Those rights we have now voluntarily li had before been reluctantly allowed to renounced: and unless the renunciation her as a special privilege and condition of be itself retracted, we must, in all future alliance ;* it had been recently withdrawn, discussions with America, when the short as an indulgence too great to be continued term of our commercial treaty shall have to an indifferent spectator of our danger ;t expired, abide the consequences of that but it must, under such a declaration as new rule of public law, which we ourthe present, have been once more restored selves have thought proper to proclaim. to her, as the inherent right of every neu- The same must be our situation with retral power.
spect to Holland, with whom we have inThe effect of the same principle must, deed made peace, under the auspices of at a subsequent period, have equally been France, but with whom we are little likely, felt in our negotiations with America. By under such auspices, to renew our treaties, their treaty of friendship and commerce either of commerce or alliance. The with Great Britain, the United States had same must be our situation with respect agreed, in 1794, to include in the enume to Spain, whenever that power shall think ration of contraband, almost every article fit to acknowledge herself bound by the of naval stores. Accused on this account preliminaries of peace, to which France, by the French and Spanish governments alone has hitherto pledged her faith. In of hostility to the interests of France, the the same state we shall stand towards American ministers vindicatd their impar- Portugal, if it be true, as I fear it is, that tiality by an appeal not merely to the while we boast to lave guaranteed the justice of the rule, but also to the well. territorial integrity of that unhappy known fact, that Great Britain was immu. country, by placing her colonies at the tably resolved to maintain it against every mercy of the enemy, we have at the same neutral power. They asserted (how truly time imposed on her the ignominious neit is immaterial here to inquire) that a cessity of abandoning her ancient alcontrary rule would better have promoted liances, and renouncing for ever her the interests of their own country. But commercial connexions with Great Bri- ? they urged, with undeniable reason, that tain.* In the same state we shall likewise until Great Britain should consent to re- stand towards Prussia ; and in the same nounce f her ancient rights, it was not to towards almost every other maritime be expected that America should resist power in Europe, which is not a party in them by measures of unjust hostility. this convention. Not one of those
will be bound to us by any special treaty See the memorial delivered by sir Joseph on this important subject. To regulate Yorke to the States General, 21st March their practice, they must look to the 1780.
1 Order in Council, 17th April 1780, which general law of nations ; and they will find recites that Holland had deserted her alliance
it in our own declarations contained in with Great Britain, and placed herself in the this very article. We have here publicly situation of a neutral power not bound to this deserted our former claim; we have con- . kingdom by any treaty; and thereupon sus- fessed that naval stores ought not to be pends all particular stipulations respecting the considered as contraband of war, and neutral navigation of the Dutch in time of that we ourselves no longer acknowledge war, and particularly those of the marine them as such. We have expressed this treaty in 1674. Letter from the Executive Government lected for the purpose of making it uni.
avowal in the very words originally seof America to Mr. Pinckney, 19th Jan, 1797. versal; and we have inserted it in our Mr. Pickering's letter to the chevalier Yrujo, 17th May 1797 : “Permit me to say, that treaty, with those very powers who had our engagements with Great Britain ought to confederated for no other object than to be no matter of surprise to the Catholic king, enforce our observance of it. because his majesty has seen, during the If then we shall, in any future war, be whole course of the American war, how stea- manifestly unable to repel, by any just or dily Great Britain persisted, in opposition to reasonable plea, the claim of neutrals to the demands of all the maritime powers, to trade with our enemies in naval stores, maintain her claims under the law of nations, to capture enemy's property, and timber, and are we, on the other hand, better prenaval stores, as contraband in neutral ships. pared to admit and recognise it? We, Could H. C. M. therefore expect that Great Britain would relinquish her legal rights to a * See the Treaty of Madrid, concluded benation (the United States) which abounded in tween France and Portugal, Sept. 29, 1801, · materials for building and equipping ships?" Article 5.