land fcrupled not to carry into their ports all fuch neutral veffels as were conveying the effects of the enemy, under pretended names, from Flanders into Spain; and the courts of admiralty of that province adjudged the Spanish property to be legal prize; and though they releafed the neutral fhips, they made them no compenfation for their freightage: among thefe were fome English veffels; and Queen Elizabeth, angry that fo young a state, and one which had placed itself under her protection, fhould in any degree interrupt the commerce of her people, at first showed the effects of her refentment by feizing their thips, and imprisoning their merchants; the Zealanders upon this made reprifals; feveral English veffels were detained, and their commanders put under confinement. To endeavour at fome settlement of this affair, the Queen fent over to Holland Mr. Robert Beal, her fecretary; and for the fame purpose the Prince of Orange dispatched a minister to London; by thefe means the difpute at laft was compromifed: the thips and the prifoners were on both fides releafed; but the Queen never obtained reftitution of the enemies' goods which were taken on board the veffels of her fubjects: this fact is worthy of obfervation, not only as it relates to the conduct of Holland, but as it shows how far a princefs thought herfelf obliged in equity to yield, whom hiftorians have always defcribed as pofitive in her temper, and, whenever her right was concerned, of a very tenacious difpofition. Holland, whenever he was engaged in war, almost constantly purfued the fame conduct: the fometimes even prohibited the commerce of neutral nations beyond all juftice and moderation. In the year 1599 †, when the government of Spain first prohibited the fubjects of the United Provinces from trading to the ports of that kingdom, a liberty which had unaccountably been allowed them, from the commencement of their revolt to that period; the States General, in revenge, publifhed a placart, forbidding the people of all nations to carry any kind of merchandise into Spain. The words of Grotius, in the relation he has given of this affair in his Belgic Hiftory, are very full and exprefs: "Per edictum," fays he, vetant populos quofcunque ullos commeatus refve alias in Hifpaniam ferre; fi qui fecus faxint, ut hoftibus faventes vice hoftium futuros." This placart they publicly notified to all kings and nations, for this reafon, as the hiftorian expreffes it, "ne quis infcitiam excufaret." The confequences of this notification deferve alfo our attention; the hiftorian continues: "Paruit Rex Galliæ, ac fi quis fuorum fex intra menfes in Hifpaniam navigat, profeffus eft privatum periculum Hiftoria Belgica Metereni, lib. 5. Camden, anno 1575. Zouch de Judicio inter Gentes, pars 2. † Grotii Hift. lib. viii. fore," fore." Henry IV. at that time king of France, though delivered then from all his diftreffes, and arrived at the fummit of all his power, fcrupled not to fubmit to this placart, and gave up the interests of all his fubjects, who fhould attempt within fix months to tranfgrefs it: the hiftorian concludes, "Cæteri (reges) filentio tranfmifere." The other powers of Europe made no clamorous complaints against this measure of the States; in filence they paffed it over. How unlike was this conduct to that of Holland at prefent! Charles II. in a letter to the States General, of October 4, 1666, charges them with a remarkable violence of this nature; being at war with fome Afiatic princes in the East Indies, they feized all the fhips and goods of the English merchants which were trading to thofe countries; and the Dutch governors fcrupled not only to profefs in their declarations, "Qu' ayant depuis peu annoncé la guerre aux princes, avec qui ils avoient deffein de trafiquer, cette guerre devoit par confequent leur interdire tout commerce avec les dits princes*.' I omit citing many other inftances of their conduct in this particular, left I should appear tedious, especially as one fact ftill remains, which is alone fufficient to evince the opinion of Holland on this point; and the which I rather choose to mention, as it happened even after the Dutch had by their negotiations endeavoured to establish, as a general maxim among nations, that the goods of an enemy under a neutral banner fhould pafs unmolested. At the commencement of that war which broke out immediately after the revolution, when the firft grand alliance was formed against France, Holland entered into a convention t with England to prohibit totally the commerce of neutral powers with the enemy. In the preamble of this, they affign publicly their reafons for it; they fay, "that having declared war against the Moft Chriftian King, it behoves them to do as much damage as poffible to the common enemy, in order to bring him to agree fuch conditions as may reftore the repofe of Christendom: and that for this end it was neceffary to interrupt all trade and commerce with the fubjects of the faid king; and that to effect this, they had ordered their fleets to block up all the ports and havens of France;" and afterwards, in the fecond and third articles of this convention, it is agreed, "that they would take any veffel, whatever king or ftate it may belong to, that fhall be found failing into or out of the ports of France, and condemn both velfel and merchandise as legal prize; and that this refolution fhould be notified to all neutral ftates." Such, therefore, was at this time the avowed opinion of Holland, and England was induced to join with her in this convention, exceeding thereby thofe bounds of Charles the Second's letter to the States General, October 4, 1666. + Convention concluded at London, August 22, 1689. VOL. X. equity equity and moderation, which she had almost always practifed in this point before, and which the will, I hope, most faithfully obferve for the future. The northern crowns, who were particularly affected by this prohibition, contended very vehemently against it in answer to their objections were urged, the circumftances of affairs, the danger of Europe, and the mighty strength of that ambitious power; which, if fome extraordinary effort was not made, would bring mankind under its fubjection. It is remarkable, that Puffendorff*, who owed his fortune and employments to one of those northern crowns, was of opinion in this case against them, and thought that the convention might be justified. It is not meant here at present either to cenfure or commend it: circumftances may fometimes make a thing to be lawful, which, confidered by itfelf, would be unjust; but such times are truly unhappy, when neceffity must be pleaded in support of a right. It remains that I now inquire into the conduct of France; my proofst on this head will be clear; they are indeed nothing lefs than the public laws of that kingdom. By fome very old French ordinances it is declared, not only that the enemies' goods fhall be adjudged to be lawful prize, but that the neutral veffel which carries them, or the property of any ally which shall be joined with them, fhall be joined alfo in the condemnation. It has always been a maxim of the courts of maritime jurifdiction of France, "Que la robe d'ami confifque celle d'enemie :" and fo clear were they in this opinion, that the laws which established it were repeatedly enacted in the reigns of two of their kings, Francis I. and Henry III. That the practice of the French marine had in this particular been conformable to their laws, may be proved by a thousand inftances: I fhall felect one upon the authority of a minifter of Holland, which will show what their conduct was in that Spanish war which preceded the Pyrenean treaty. In a letter of Monfieur Boreel from Paris, to Monfieur de Wit, December 26, 1653: “On tient ici," says he, "pour maxime favorable à leurs interefts, que leurs enemies ne doivent recevoir ni defenfe ni fervice des fubjects de leur H. H. P. P. en tranfportant de chez eux quelques merchandifes ou commodités ou d'autres, qui feroient pour le compte de l'enemie, fous peine, au cas qu'ils les trouvent dans les batiments Hollandois, qu'ils feront de bonne prife, & qu'on les puiffe enlever les dits batiments & les confifquer." But it is not the old laws of France alone, that thus determine See a letter of Puffendorff in Jno. Groningii Bibliotheca Univerfalis Librorum Juridicorum, p. 105. + See the Ordinances of France, Francis I. 1543. c. 4. 2d Henry III. 1584. c. 69. this point; their more modern regulations confirm it. One of the laft and greateft fervices which Colbert performed to his country, was the establishment of a fyftem of naval laws, the wifeft and beft digested which the fpirit of legislation hath ever yet produced; it is obfervable, that although the ordinance which contained these laws was registered in 1681, feveral years fubfequent to thofe treaties, by which France agreed that neutral veffels fhould protect the property of the enemy, yet it pays no attention to them, and establishes the contrary doctrine. This proves how little regard France always fhowed to that article. The words of the ordinance exprefsly condemn not only the enemies' goods, but the neutral fhip which carries them: "All fhips," faith the law*, "which have goods on board that belong to the enemy, fhall be good prize." These laws continue still to be observed in France: at the commencement even of the prefent war, the French government delivered to Monfieur Berkenrode, the Dutch minister at Paris, a memorial, "Contenant les Precautions," as the title expresses it, que doivent prendre les negociants Hollandois conforment à l'ordinance de la marine & aux reglements de la France, pour eviter que leurs navires foient declarés de bonne prife." In the preamble of this, the words of the above-mentioned law are repeated, and the fame rule of condemnation is declared to be ftill in force: and the seventh article of the memorial lays even a greater restriction on neutral commerce than the ordinance of 1681 feems to have intended; it is there faid, "Si les navires Hollandois tranfportoient des merchandifes du cru ou fabriques des enemies de la France, fes merchandifes feroient de bonne prife, mais le corps du navire feroit relaché." By this memorial, therefore, every thing which is either of the growth or manufacture of the enemy's country, when found on board the hips of Holland, though the property does not appear to belong to the enemy, is declared to be good prize. The fame restriction evidently extends to all other neutral traders t. Is not this almost a total prohibition to neutral powers, of any commerce with the enemies of France? Let us now look back on what has been faid: the deduction which I have made hath, I fear, been tedious; but the importance of the fubject by force led me into it; I flatter myfelf, however, it has appeared that reafon, authority, and practice, all join to fupport the cause I defend: by reafon, I have endeavoured to trace out those principles on which this fight of capture is grounded; and to give that weight to my own fentiments which of themselves they would not deferve, I have added the autho Naval Ordinance of 1681, title ix. art. 7, + See the preamble of the memorial. rities rities of the ableft writers on this subject; and lastly, I have entered largely into the conduct of nations, that I might not only lay thereby a broader foundation for this right, but that I might the more fully illuftrate, by the extravagant pretenfions of other ftates in this refpect, the prefent moderation of England: no age or country ever gave a greater extent to the commerce of neutral nations, and we have feen that most in the fame circumstances have confined it within much narrower bounds. There remains ftill, however, one objection to what has been faid, and that of fo plaufible a cait, that I cannot leave it without an aufwer: it has been pretended, that the liberty of navigation is destroyed by means of thefe captures, and that a violent restraint hath been put on the lawful industry of mankind. The liberty of navigation, in fair conftruction, can mean no more than the right of carrying to any mart, unmolefted, the product of one's own country or labour, and bringing back the emoluments of it: but can it be lawful that you should extend this right to my detriment; and when it was meant only for your own advantage, that you should exert it in the cause of my enemy? Each man hath a right to perform certain actions, but if the deftruction of another fhould follow from them, would not this be a just reafon of reftraint? The rights of mankind admit of different degrees, and whenever two of these come into competition, the lowest in the fcale must always give place to the higher: but you will say that you have a profit in doing this; if, however, it is otherwife unjuft, will that confideration convert it into a right? If you mean, that your own commerce ought to be free, that right is not in the leaft denied you; but if under this difguife you intend to convey freedom to the commerce of the enemy, what policy or what justice can require it? What can neutral nations defire more, than to remain amid the ravages of war in the fame happy circumftances which the tranquillity of peace would have afforded them? But can any right from hence arife, that you should take occafion from the war itself to conftitute a new fpecies of traffic, which in peace you never enjoyed, and which the neceffity of one party obliged to grant you, to the detriment, perhaps deftruction, of the other? If this right was admitted, it would become the intereft of all commercial ftates to promote diffenfion among their neighbours; the quarrels of others would be a harvest to themfelves; and from the contentions of others they would gather wealth and power. But, after all, the rights of commerce are not the real caufe of this difpute; and liberty of navigation is only a fair pretence, which ambition hath thought fit to hold forth, to intereft the trading states of the world in its caufe, and to draw down their indignation upon England; this is not the first time that a deceit like this has been practifed. When the power of Spain was at its greatest height, and Elizabeth wifely contended |