who so lately armed for the very purpose | of resisting it; whose existence depends upon our maritime pre-eminence; and whose naval power can only be maintained by an adherence to the same principles on which it was established? What then remains, but that we should address ourselves with openness and confidence to the ally with whom we have concluded this dangerous stipulation? We have every reason to be confident of obtaining his consent to withdraw the concession, if it has been improvidently made: to rectify the error, if it has been committed through inadvertence: or to explain the misconstruction, if the meaning which the words suggest be really contrary to the acknowledged intention of the parties. The special privileges of Russia, with respect to this question of contraband, are already sufficiently established, by the renewal of our ancient treaties. To the extent of those privileges nothing is added by this Convention; their permanence, if that point were considered as essential, might easily be secured by a separate stipulation; but to compel us to adhere to a declaration, which applies them universally to every other country, is contrary to the manifest interest of Russia, and cannot be desired by her sovereign, unless he were animated by very different sentiments than those which he appears to entertain towards the British empire. tended completely to subvert. I have already so often been compelled to point out the inconveniencies of this servile adherence, on our part, to the wording of a hostile treaty, that I am unwilling again to recur to the same topic, though in a case to which it is so peculiarly applicable. Nor will I even dwell upon the glaring impolicy of resting so important a principle, as that which was here in contest, on' the minute and scarcely perceptible variation of a single particle. But there are two farther objections to this stipulation in its present form, to which I am the more desirous of drawing the attention of those who are to explain, or to amend this Convention, because I think some remedy may yet be provided against the mischiefs which must, as I fear, necessarily follow from the words of the article, as it now stands. When we speak, in this article, of the power which attacks the port, it seems to me, that we do in some degree countenance the unfounded assertion, that a blockade by sea, like that by land, require an actual design of reducing, or conquering, the particular place to which it is applied. Whereas Great Britain now maintains, in her naval wars with France, as Holland* formerly maintained in her contest with Spain, that the blockade of one or more of the enemy's ports, or even of a considerable extent of his coasts, may lawfully be adopted, for the special purpose of intercepting his supplies, in order, by this pressure, to reduce him to just and reasonable conditions of peace. The second objection which I have to state against this article is, perhaps, of still more importance, because it calls in question both the justice and the policy of the whole stipulation, even if interpreted in exact conformity with what, in the most candid construction, plainly appears to have been the intention of the parties. From the very nature of all I pass then to the next question, that of blockaded ports, on which it will not, 1 trust, be necessary for me to detain your lordships long. The stipulation on this subject is likewise declaratory; and it is transcribed with the variation only of a-single word, from the corresponding articles of the two Conventions of armed neutrality. Those articles had declared, in substance, that no port should be considered as blockaded, unless where the power attacking it should maintain a squadron constantly stationed before it, and sufficiently near to create an evident danger of entering. In the present treaty, xi. cites the decree of the States General to Bynkershoek Quæst. Jur. Pub. I. 1. c. instead of the words, " and sufficiently this effect, in 1630. He adds—" Idem plane near," the contracting parties have sub-jam olim tempore nascentis reipublicæ sancistituted, "or sufficiently near." And I have not the smallest doubt, that by this minute change, trifling and unimportant as it is, they did really intend to establish, in their full extent, the principles which Great Britain has maintained on this great question of maritime blockade, and which the article, in its original state, as it stood in the two neutral Conventions, was in tum fuerat. Ex edicto ordinum Hollandiæ," Were it not, indeed, for the confident hope which I entertain of seeing the other deficiences of this Convention supplied by the result of the negotiations now depending, I should consider all that regards this last point as being comparatively of very little moment. Not that I am at all desirous of depreciating a claim, which, as a part of our general system of maritime law, I have always thought of infinite importance; but because its whole value is, as I conceive, purely relative, and must always entirely depend upon the extent and nature of those principles to the maintenance of which it is applied. The privilege of visiting, or of searching a neutral ship, can in itself be of very little advantage. It is useful only as it facilitates the exercise of other rights; as it leads to the detection of frauds, and the prevention of unlawful commerce; and as it affords the means of ascertaining those facts which justify detention, seizure, and confiscation. If, therefore, we are henceforth to continue to neutrals the advantages which this Convention guarantees to them, our right of visitation, or of search, could be of little value. When we have opened to them the coasting and colonial trade of our enemies, what should we gain by acquiring the utmost certainty that they do in fact avail themselves largely of that permission? When we have declared naval stores not to be contraband, what would it profit us if we should examine every cargo of that description which is carried to the ports of our enemies? Or, when we have admitted that a port, blockaded only by a cruizing squadron, is open to the trade of neutrals, what purpose would it answer to ascertain the name of every vessel sailing with such a destination? But if, on the contrary, that code of naval law which Great Britain has hitherto asserted, had in this negotiation been steadily maintained, and unequivocally confirmed, nothing could have been more important than to have crowned that great work, by placing beyond dispute the means of exercising those principles, the justice of which had finally been recognised. naval operations, depending so much on the variation of weather, a squadron blockading a hostile port, and fully equal to the execution of that service, may, nevertheless, occasionally be unable to remain either stationary before the port, or even sufficiently near to it to create, at all times, an evident danger of entering. And if, as the words of this article import, the blockade is understood to continue so long only as that danger actually exists, and is, on the other hand, to be considered as being raised as often as the danger ceases, even for the shortest interval, the utmost confusion must inevitably arise, in all cases; but particularly in those of neutral ships met with at a distance from the blockaded port, but destined to it. No such ship can ever henceforth be detained, because by this stipulation it is made impossible that the officer of the belligerent should know whether the blockade does at that moment really subsist; and because the fact of its existence can alone justify the detention. It may, indeed, be asserted, without the least exaggeration, that even giving the fullest weight to that minute verbal change, on which so much is here made to depend, a strict adherence to the letter of this stipulation, in its present form, must utterly destroy our whole system of blockade by cruizing squadrons. In order to enable ourselves to maintain that system, according to our present practice, we must contend for a more liberal interpretation of this treaty, drawn from the general spirit of the negotiation, or from the supposed intention of the contracting parties. In truth, the original article, from which this stipulation has unfortunately been copied, is so confused and intricate, as hardly to be capable of translation, or reconcileable with sense or grammar; and it is therefore but ill calculated to serve as a permanent rule, applicable to all the cases which are likely to arise on so nice and critical a question as that of blockade. It is, there fore, much indeed to be desired, that a new and more precise declaration of the law of nations, on this subject, may prevent those numerous differences to which we must infallibly be exposed, from leaving the question on its present footing. Without, however, detaining your lordships longer on a point so clear as hardly to admit of illustration, I will now proceed to the last branch of this inquiry, and examine those stipulations of the present treaty which relate to the right of search. [VOL. XXXVI.] Defective, therefore, as I must consider this treaty in its present state, I cannot help believing that its authors will be induced, if not by these suggestions, at least by their own reflections, to apply themselves with diligence and zeal to procure, for the interest of their country, some more effectual and permanent secu[R] rity. And as in that case it is, I think, impossible to doubt of their immediate and complete succcess, I am desirous to solicit the attention of the House to what I have to state on this one remaining point, which would, under such circumstances, again become an object of very principal and leading importance. The general right of visitation and search follows of necessity from that of maritime capture. If we may lawfully make prize of the ships and property of our enemies, some inquiry is evidently necessary, that we may distinguish them from those which belong to neutrals; or, if any restraints may justly be imposed in war on the commerce of neutrals, it is only by examination that we can ascertain, in any particular case, either that the cargo is innocent, or the destination legal. This is indeed so manifest, that, if we except some idle declamation from the schools of French philosophy, I believe this right itself has never yet been seriously questioned. But some of those neutral states, whose subjects have profited by speculations which their treaties admit to be unlawful, are always anxious to narrow the exercise of a right, the principle of which they cannot dispute. In this desire, and in a general hostility to the British naval power, originated both the practice of giving convoy to neutral commerce, and the pretension of exempting from visitation and search all vessels so protected. In the very few instances which can be alleged of any ancient practice of this nature, it is notorious, that the immediate object of the convoy so appointed, was to cover an unlawful commerce; and if In 1656, the celebrated vice-admiral De Ruyter, after lying some time in Cadiz, sailed from thence for Amsterdam, with several merchantmen under his convoy. He was met in the Channel by some armed ships of England, then at war with Spain, which insisted upon search; but upon De Ruyter's declaring, "that there was not any thing in the fleet that belonged to the king of Spain," they desisted, and parted good friends. Yet, after this solemn declaration of a commander who stands so high in the annals of maritime fame, it was afterwards proved, that there was an immense treasure of silver on board these vessels belonging to the king of Spain, and his subjects in Brabant and Flanders, which De Ruyter had assured them he would transport in safety. And so important was the service to the enemy, that, if this money had not been conveyed, the king of Spain would not have been able to have brought his army history alone had not enabled us to reject this pretension, reason and justice were completely decisive against it. Our cruisers were required to receive the declaration of the neutral officer, as conclusive evidence of a fact which he has neither any interest to examine, nor any sufficient means to ascertain; which therefore, even if it were true, could not be known to him, and which, if it were false, it was made impossible that we should ever be enabled to disprove. All examination was denied to us, except that our ships of war might, if they pleased, send an officer on board the convoying ship, and there receive a communication of the papers and certificates belonging to the merchant vessels of the convoy. But if those papers were regular (and it would, under such circumstances, be strange indeed if they were otherwise), no farther search whatever could take place. This was the pretension, and this the law, which the hostile confederates in the league of 1800 bound themselves to impose by force upon Great Britain, after the deliberate and premeditated act of one of those powers had brought the matter to the issue of open violence. From my own feelings I judge of those which your lordships must have experienced when you perceived, on reading this Convention, how little benefit we have, in this just cause, derived from the most complete success: how little the British admission of the present day differs in its practical application from that neutral claim, our necessary resistance to which was the immediate occasion of the war. The right of searching vessels under convoy, which was denied by the Convention of the armed neutrality, is indeed recognised by this treaty. But to what purpose it is recognised, we must learn by an examination of the subsequent provi sions, which have limited the exercise of a right, the justice of which has been thus openly acknowledged. It is in the first place refused, now for the first time, to all privateers; a circumstance which I mention only for the sake of accuracy; but to which I am not disposed to object. Though I must at the same time declare, that if I think we might fairly acquiesce in this demand, it is by no means for those reasons which I have sometimes heard assigned. In the fulsome and dis into the field. See Dr. Croke's Reply to Schlegel, and the authorities there cited. gusting cant of her false philosophy, France has lately declaimed against the whole practice of commissioning and arming privateers; but she has done so only whenever that practice appeared to offer more prospect of advantage to her enemies than to herself. In the contrary case, no power has ever pursued this system with greater eagerness.* The maxims of the British naval code do not depend on the Auctuating circumstances of occasional interest. They are fixed and permanent; drawn either from the immutable principles of natural law, or from the longestablished usage of civilized societies. And whoever will turn from the fleeting dreams of modern speculation, to the immortal works of the great masters of this science, will easily convince himself that no practice can be more consonant to reason and justice than that of carrying on public war in some degree by individual exertions. Nor, although it be true that occasional irregularities may prevail, ought this country to renounce an important right merely because we hear some exaggerated statements of rapine and violence committed by those who exercise it. Such assertions are made with great facility, because it is almost always impossible to disprove them, unless the neutral would pursue his complaint in those courts which are constantly open for his redress. For myself, I must say, that what I have known of similar allegations which have sometimes been made against the conduct of his majesty's navy, and into which it has been my duty to inquire, does not dispose me to give unlimited credit to the assertions of this nature respecting privateers, made by persons who have often so strong an interest to conceal the disgraceful frauds of which they have themselves been guilty, and to deceive their own governments, as well as those of the powers at war. I proceed, therefore, to consider the stipulations of this article, as they respect By a declaration published in June 1780, the French government notified to its subjects its intention of granting honorary distinctions to the commanders and crews of privateers who might successfully annoy our trade. In the late war, the Directory, despairing of success in any farther naval operations, invited all the inhabitants of the maritime provinces of France to engage in privateers, and offered, for that purpose, to let to them for hire, all the ships of war which remained in their harbours after our victories, the future practice of the British navy in visiting and examining neutral vessels sailing under convoy. I have already stated, that the claim of the neutral league of 1800, confined this examination to a bare perusal of the papers of the neutral ships; which papers were for that purpose to be communicated to the belligerent by the neutral officer, on board his own vessel. Exactly the same proceeding has here been stipulated; and it is added in this treaty, as in the former, that if the papers so communicated shall be found to be regular, no farther search shall take place. An exception, however, is here subjoined, which constitutes the only practical difference on this subject between the two Conventions. It is not, as before, laid down absolutely, that no farther search shall in any case take place, but that none shall so take place, "unless some valid motive of suspicion shall exist." It would be injurious even to ask, whether, in concluding this treaty, its authors meant that it should be executed on the part of this country with justice, with liberality, and, above all, with that unblemished good faith which will, I trust, always continue to be the leading characteristic of British policy. It certainly was not the intention of his majesty's ministers to reserve to their country, under an ambiguous phrase, the power of eluding the whole object of the stipulation to which they have acceded. If, indeed, any such design could possibly have entered into their minds, which nothing but their own avowal will ever induce me to believe, it is manifest that in the present case the folly of such a purpose would, if possible, exceed its injustice. The only imaginable benefit which, in the most sanguine hopes of any man, Great Britain can ever derive from this treaty, is, that by a mutual good understanding, resulting from fair discussion and established by joint consent, we should prevent the future revival of claims which have always hitherto been urged against us in the periods of our greatest embarrassment and danger. What could be a more wretched policy than to hold in reserve for such periods a concealed and doubtful pretension, which now, in the security of victory and in the confidence of friendship, we have been afraid to avow? Your lordships, therefore, may well assure yourselves, that such is not the intention of the framers of this treaty. They certainly never will assert, either now, or at any future pe riod, that right, from which we have agreed to abstain, except when some valid ground of suspicion shall exist, may still be indiscriminately exercised at our discretion, or continued as the established practice and daily usage of the British navy. It would neither be consistent with their own characters, nor (which is still more important) with the public faith, should they contend that mere individual caprice, that national misunderstandings, that a general disbelief of the good faith of neutrals, or even that a distrust applying to the particular case, but not founded on any special circumstances belonging to it, can furnish that valid ground of suspicion which this treaty has described, Such suspicion must evidently rest on some distinct and separate foundation; it must unquestionably be grounded on some fact, by which the ships to which it is applied can be very clearly distinguished from the common case of neutrals sailing under convoy. Unless this be true, the whole object of the stipulation is defeated, and every ship is liable to farther search. The exception which we have here inserted, manifestly admits the principle, while it limits the application of the rule to which it is subjoined. It recognises the validity of the claim, that, where the papers are regular, the ship itself shall not be visited; and it allows of such visitation only in the single case, where some valid ground of suspicion shall be found to exist. It is necessary then to inquire what the cases are, in which alone, under the fair construction of this treaty, a British officer can now visit and examine a neutral ship, when sailing under convoy. As the practice has hitherto stood, the inquiry into the facts of the case preceded all conclusion to drawn from them. Our officer first examined the papers of each ship, by going on board the ship itself to which they related. He compared them with the appearance of the ship, of its crew, and of its cargo. He questioned the crew. He judged on the spot respecting an infinite variety of small circumstances, which, taken together, might constitute a valid ground of suspicion. Even with all these advantages, the fraud often escaped his vigilance; and if, after the ship had thus been visited, every thing appeared to be regular, it was stipulated by our former treaties that no farther search should then take place. But the commanding officer decided for himself, upon the facts as they thus appeared to him; and if he saw, from this inquiry, a reasonable presumption of unlawful conduct, he detained the ship, and brought her in for farther search, well knowing that as often as he did so without sufficient cause, he was bound to satisfy all the costs and charges which he brought upon the neutral. In these cases, therefore, the suspicion arose from the search, and the detention of the ship was its just and natural effect. As the law will now stand, the suspicion must precede the inquiry; and it is expressly stipulated by another article of this treaty, that no detention can take place, unless the officer be already in possession of manifest and evident facts establishing the violation of neutrality. There are very few cases likely to occur in practice, where any valid ground of suspicion respecting a neutral ship can bona fide exist before the search. Sometimes indeed, but by no means frequently, previous information has been received by the belligerent power of frauds applying to a particular ship before she sails. But in that case, the instructions given to our officers would naturally be, not that they should search, but that they should detain the vessel pointed out in such intelligence. Where this case does not exist, I ask how often it is likely that any valid ground of suspicion should really arise before the vessel has been visited? Can such suspicion exist in the mind of any man, unless it be excited by some circumstances, real or supposed, which have relation to the suspected object? And if not, let it then be considered what it is that a British officer can know, what it is that he can reasonably believe, or strongly suspect, with regard to a ship, the very name of which he never heard before, and which, when he goes on board the convoying frigate, is shown to him for the first time through a telescope, out of the distance of cannon shot? Her sails, her masts, the fashion of her rigging, and her hull, these it is possible he may distinguish. Will these inform him whether the property of the ship, or of all the goods, or of an part of them, be hostile or neutral? Whether the cargo be contraband or innocent? Of what nations the crew is composed, and in what proportions? Whether the object of the voyage be conformable to such special treaties as may apply to it, or whether it be consonant with the general law of nations? Can he even conjecture, |