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No. 1.To the English Admiral.

The affliction which carries off, in this city and its environs, thousands of victims, and which threatens not to fufpend its ravages until it has cut off all who have hitherto escaped, being calculated to excite compaffion, it is with furprife that I fee the fquadron, under the command of your Excellency, come to augment the confternation of the inhabitants. I have too exalted an opinion of the humanity of the English people, and of yours in par ticular, to think that you would wish to render our condition more deplorable. However, if, in confequence of the orders your Excellency has received, you are inclined to draw down upon yourself the execration of all nations, to cover yourfelf with difgrace in the eyes of the whole univerfe, by oppreffing the unfortunate, and attacking those who are fuppofed to be incapable of defence;-I declare to you, that the garrifon under my orders, accustomed to behold death with a ferene countenance, and to brave dangers much greater than all the perils of war, know how to make refiftance, which shall not terminate but with their entire deftruction. I hope that the answer of your Excellency will inform me, whether I am to speak the language of confolation to the unfortunate inhabitants, or whether I am to roufe them to indignation and vengeance.

May God preferve your Excellency.
Oct. 5, 1800.

THOMAS DE MORLA.

The veffels employed in the blockade have not, till now, prevented the fifhers from exercifing their harmless induftry. It must excite astonishment, that your Excellency fhould deprive us of this fmall comfort.

No. II.-The Commanders in Chief of the Sea and Land Forces of bis Britannic Majefty, forming the Expedition before Cadiz.

On board his Britannic Majesty's Ship the
Foudroyant, off Cadiz, October 5.

We have had the honour of receiving your Excellency's letter of this date, in which you defcribe to us the deplorable state of this city. We are deeply afflicted at this calamity, though we have good reafon to believe that its effects have been much lefs difaftrous.

We are not ignorant that a great number of his Catholic Majefty's veffels are armed, in order to join the naval forces of the French, and to be employed in prolonging the troubles which afflict all the nations of Europe, difturb public order, and destroy the happiness of individuals. We have received orders from our Sovereign to ufe every effort to defeat the projects of the common

enemy,

enemy, by endeavouring to take or deftroy the fhips of war which are in the harbour and arfenal of Cadiz.

The number of troops intrufted to our command leave but little doubt as to the fuccefs of the enterprife. We are little difpofed to multiply unneceffarily the evils infeparable from war. Should your Excellency confent to give up to us the veffels armed or arming, in order to act againft our King, and to prolong the misfortunes of neighbouring nations, your crews and officers fhall, be at liberty, and our fleet fhall withdraw; otherwife we muft a& conformably to the orders which have been given to us, and your Excellency cannot attribute to any other than yourself the additional evils which you fear.

We have the honour to be, with refpect, &c.

R. ABERCROMBY.
KEITH.

A frigate will remain in the harbour, to wait for the answer of your Excellency, that there may be no delay.

No. III.-To the Commanders of his Britannic Majefty's Sea and Land Forces.

When I reprefented to your Excellencies the melancholy condition of this city, with the view of engaging your humanity, not to aggravate it by acts of hoftility, I could not have fuppofed that my request would have been regarded as the effect of fear or weakness. Unfortunately I find that your Excellencies have misinterpreted my expreflions, fince they have led to a propofal as infulting to the perfon to whom it is addreffed, as it is but little honourable to thofe who have made it. Your Excellencies will take this as fufficient information that you must make more fuitable propofitions, if you intend that they fhall be accepted. I have the honour to be, &c. THOMÁS DE MORLA.

October 6, 1800.

Extract from a Difcourfe, written by the Earl of Liverpool, on the Conduct of Great Britain in refpel to neutral Nations.

THE right of protection then must have its foundation in fome

law, and, when confidered in relation to any particular cafe, it must be founded on that law, by which the interefts of the parties concerned are generally determined, and which hath force in that place where the right of protection is claimed. Thus in the prefent cafe, if neutral nations have any right to protect the property

*This Difcourfe was written in 1757, by Charles Jenkinfon, Efq. now Earl of Liverpool. Great Britain was at that time engaged in war with

2

France,

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property of the enemy, it must take its rife from thofe laws, which are the cftablished rules of conduct between nations, and particularly on that element, where this right is fuppofed to be exerted. No civil or municipal inftitutions, and much lefs the privileges ariling from them, can here, take place; they have no force but under the dominion of thofe who agreed to their cfiablishment. The queftion then is-How far, according to the law of nations, doth this right of protection extend ?-To answer this clearly, we muft obferve, that governments can have fucceeded to no other rights, but fuch as their refpeétive members enjoyed in a fate of individuality; and that one nation is now to another, as it were in a flate of nature, that is, in the same condition in which man was to man before they entered into fociety; the right therefore of protection, which individuals. would have enjoyed in fuch a fituation, is the fame which go vernment can claim at prefent:-an individual then in a state of nature, would have had an undoubted right to protect his own perfon and property against any attack;but if I am engaged in contention with another, would he then have had a right to protect him against me?-moft certainly not;-fince he thereby would deprive me of a right, which the law of nature, for my own fecurity, would in fuch a cafe give me, of feizing the property of this my enemy, and deftroying his perfon: if he thought my conduct manifeftly injurious, fo as to call for general refentment, he would, on that account, become my enemy himself; but as long as he calls himfelf a neuter, to act in this manner againft me would be no lefs abfurd than unjuft:-fuch therefore, and no more, is the fight of protection, which governments enjoy at prefent in thofe places, to which their own dominions do not extend; they have fucceeded to the rights only of their refpective members, and by confequence thefe alone they can protect.

France, and the republic of Holland refufed to conform to thofe treaties of defenfive alliance, by which the was then bound to aflift Great Britain, and Juffered her fubjects not only to trade with France, but to afford protection to the property of the enemy; to fupply him with naval and military ftores, and to bring to the French ports in Europe the produce of the French Weft India islands. The British government ordered all Dutch fhips, laden with the property of the enemy, or with naval or military flores, or with the produce of the French West India iflands, to be feized, and to be brought into port for legal adjudication. The merchants of Holland remonftrated againft this meafüre, which deprived them of a moft lucrative trade; but the British government perfevered. This Difcourfe was written in fup. port of the principles on which the British government at that time acted. It was tranflated and reprinted in almoft every language in Europe; and was republifhed, from the belt edition, at the defire of feveral noblemen and gentlemen, by J. DABRETT, in January 1794.

But

But it will be afked, From whence then arifes the right, which governments alway enjoy, of protecting the property of the enemy. within the precincts of their own country?-It is a confequence of the right of dominion; unlefs, therefore, their dominion extends over the ocean, the right of protection cannot there take place dominion gives a right of enacting laws, of establishing new jurifdictions, and of making all (whether its own fubjects or thofe of other countries) fubmit to thefe, who come within the pale of its power. Here then the trial, which the law of nations gives, is, as it were, fuperfeded; and any proceedings upon it would of courfe be unjuft; but as foon as you are out of the verge of this particular jurifdiction, the laws thereof and the privileges which attend them ceafe at once, and the general laws of nations again have their force: here the property even of an ally hath no other protection than what these laws allow it: being joined, therefore, to the goods of an enemy, it cannot communicate its protection to thefe, fince the fame law which gives fecurity to the firft, allows you to feize and deftroy the latter. These reasonings are exemplified by a common fact;-within the precincts of the dominion of any government, you are not at liberty to fearch the fhips of any country; but is not this liberty univerfally and immemorially practifed over all on the main fea? and wherefore is this fearch made, but that, according to the law of nations, all are here anfwerable for what they may convey?

There is fomething analogous to this in moft civil governments. Few countries are without fome places which enjoy a right of protection from the general laws of the ftate, fuch as palaces, houfes of religion, and the like; and this right generally arifes from fome pretence to an exclufive jurifdiction: as long, therefore, as any particular property remains within the verge of thefe, however justly it may be the object of the law, it is not fubject to the power of it; but fuppofe it conveyed from hence into the public roads, beyond the precincts of this particular palace, or convent, the protection it received would vanifh at once, and the general laws of the community would fully then have force upon it. Thus the protection which governments can give within their dominions extends not to the fea; the ocean is the public road of the univerfe; the law of which is the law of nations; and all that pass thereon are fubject to it without either privilege or exemption.

If this manner of reafoning fhould not clearly establish my point, I can appeal in fupport of it to the ableft writers on public law, who will be found to have decided the question in my favour.

And first I will produce the teftimony of that learned native of Delft, who wrote fo nobly on the freedom of navigation to ferve his ungrateful country. In one of the paffages which are now VOL, X.

M m

before

before me, it is remarkable how much he labours to give the greatest extent to the rights of commerce; and yet with all his Laudable bias to this favourite point, he is clearly of opinion, that the fhip of a neutral nation cannot protect the property of an enemy: he manifeftly implies*, that the veffels even of allies are fubject to condemnation on account of the enemy's property, with which they are laden; when it appears that this property was put on board them with the confent of the owners of the veffels, but not otherwife. His words are, " Neque amicorum naves in prædam veniunt ob res hoftiles, nifi confenfu id factum fit dominorum pavis;" and producing feveral authorities in confirmation of this opinion, he afterwards adds, " Alioqui res ipfæ folæ in prædam veniunt;" but if the enemies property fhould be found laden on board a neutral veffel, without the connivance of the owner, in fuch cafe, "that property alone is lawful prize :" and speaking again in another place on this point, he fays, that if the wrong done me by my enemy is manifeftly unjust, and that any one, by affording fuccours, fhould encourage him in his enmity against me, "jam non tantum civiliter tenebitur de damno, fed & criminaliter, ut IS, qui judici imminenti reum manifeftum eximit t." A fine and animated manner of expreffion, which fhows how clear the opinion of this great author was upon the question.

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To the teftimony of Grotius I fhall add that of Bynkershoek, a native also of Holland, and whofe fentiments, in point of maritime jurifprudence, Barbeyrac often prefers even to thofe of the former; and what makes even his opinion at this time of great importance, is, that he wrote principally for the use of the courts and states of the United Provinces, and generally confirms what he advances by their judgments and refolutions. He speaks exprefsly in favour of my point: "Ratione confultâ," fays he ‡, non fum qui videam, cur non liceret capere res hoftiles quamvis in navi amicâ repertas, id enim capio, quod hoftium eft, quodque jure belli victori cedit." He then affigns this reason also for his opinion, that as it is lawful to ftop on the ocean any vessel, though the carry the colours of a neutral nation, and to examine by her papers to whom the really belongs, and in cafe the appear to be the property of an enemy, to feize her as a lawful prize; fo he can fee no caufe why this rule fhould not extend to the effects which any fhip may have on board; and if the goods of an enemy fhould lie there concealed, why they alfo, by the right of war, fhould be taken and condemned: he even declares it to be his opinion, that the owner of the neutral veffel fhould, in such a

Grotius de Jure Belli ac Pacis, lib. iii. c. 6. fec. 6. in notis.
+ Ibid. cap. 1.
Bynkerfhoek, Questionum Juris Publici, lib. i. cap. 14.

case,

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