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contended against the mighty defigns of Philip, the capture of fome veffels belonging to the Hanfe Towns gave occafion to a conteft of this nature: but they were the emiffaries of Philip that then blew up the flame, and pretending a love to commerce, promoted the ambitious projects of their mafter. The Queen of England publifhed an apology for her conduct, and this was anfwered in a virulent and abufive manner; not from any of the Hanfe Towns, but from Antwerp, a city under the dominion of Spain, and it seemed to be written (fays Thuanus) "per hominem Philippi partibus addictum, non tam pro libertate navigationis et in Germanorum causâ defendendâ, quam in Hifpanorura gratiam, et ad Reginæ nomen profcindendum." The interefts of commerce were the pretended caufe of this difpute, but the real cause was the intereft of Philip; the pretended defign was to preferve the liberty of navigation, but the real end was to ferve the cause of ambition, and to deftroy the government of England: this cafe need not be compared with our own at prefent; the refemblance is too obvious.

Here then we might reft our caufe, if the law of nations was the only foundation on which this point could be argued; but the bands of equity have been found alone too weak to hold the nations of the world to their duty; their intereft taught them to renew and confirm thefe by contracts among themselves, and frequently to add thereto certain mutual advantages, greater than what the law of nations fingly would have allowed them: let us confider, therefore, what influence thefe may have in the prefent cafe, whatever they are, I mean to give them all the force which reafon or justice can require. If our ancestors have betrayed the interest of their country in granting any privileges of this nature, we, who have fucceeded to their rights, are bound to abide by their conceffions; it is the happiness of great kingdoms, whofe power is equal to the fupport of their own independency, to be able to act up to thofe principles which neceffity hath often forced little states unhappily to abandon; thofe fcandalous maxims of policy, which have brought difgrace both on the name and the profeffion, took their rife from the conduct of the little principalities of Italy, when diftreffed by the fucceffive invafions which France and Spain made upon them, they broke or conformed to their leagues, as their own fecurity obliged them; and their refined thifts and evafions, formed into fyftems by able doctors of their councils, have compofed that fcience which the world hath called politics; a fcience of fraud and deceit, by which kingdoms are taught to be governed on principles which individuals would be ashamed to profefs; as if there could be no mo rality among nations, and that mankind being formed into civil focieties, and collectively confidered, were fet free from all rules

of

of honour and virtue: maxims like thefe I mean to avoid; to follow them would bring dishonour on my country.

It must then be allowed, that there are articles in fome of our maritime treaties with other nations, which have ftipulated, that, "All which shall be found on board the vessels belonging to the fubjects of thofe countries, fhall be accounted clear and free, although the whole lading or any part thereof fhall, by just title of property, belong to the enemies of Great Britain:" fuch an article is inferted in thofe maritime treaties which Great Britain hath made with France* and Hollandt. It has indeed by fome been fuppofed, that the fubjects of the crown of Spain have a right to enjoy a privilege of the fame nature; certain, however, it is, that no fuch article as that above mentioned can be found in the maritime treaties between that country and Great Britain, and particularly in that of Madrid of 1667, which is the principal maritime treaty at present in force between the two kingdoms; but as a mistake in this refpect may poffibly have arisen from a false interpretation of two articles in the treaty of Madrid, which declare in general, that "the fubjects of the two crowns refpectively thall have liberty to traffic throughout all countries, cultivating peace, amity, or neutrality with either of them; and that the faid liberty fhall in no wife be interrupted by any hindrance or disturbance whatsoever, by reafon of any hoftility which may be between either of the faid crowns and any other kingdoms:" and as the liberty here ftipulated, may be by fome erroneously imagined to extend fo far as to grant a right to carry freely the effects of the enemy, it will be proper here to remove this error, and to ftop a little to fhow the true defign and meaning of thefe articles. This explanation is at prefent more neceffary, as it will tend to illuftrate the true fenfe of other ftipulations of precifely the fame purport, which may be found in feveral of our commercial treaties, and particularly in the first and second articles of that with Holland of December 11, 1674: a wrong interpretation of which hath already given occafion to great confusion and much falfe reafoning upon the prefent question.

It cannot, I think, be doubted, that according to those principles of natural equity, which conftitute the law of nations, the people of every country must always have a right to trade in general to the ports of any state, though it may happen to be engaged in war with another, provided it be with their own merchandise, or on their own account; and that under this pretence, they do not attempt to fcreen from one party the effects of the other; and on condition also, that they carry not to either of them any imple

* Treaty between Great Britain and France, 24th February 1677.
+ Treaty between Great Britain and Holland, ist December 1764.
Treaty of Madrid, 1677.

ments

ments of war, or whatever elfe, according to the nature of their respective fituations, or the circumftances of the cafe, may be neceffary to them for their defence. As clear as this point may be, it has fufficiently appeared by the facts deduced above, that amid the regularities of war, the rules of equity in this respect were not always enough regarded; and that many governments in time of war have often moft licentiously difturbed, and fometimes prohibited totally, the commerce of neutral nations with their enemies. About the middle, therefore, of the last century, when the commercial regulations, which at prefent fubfift between the European powers, first began to be formed, it became abfolutely neceffary to call back the attention of governments to thofe principles of natural right from whence they had ftrayed; and to fix and determine what was the law of nations, by the articles of their respective treaties: for this purpose, the negotiators of that age inferted in their commercial regulations, articles to the fame purport as those above mentioned, afferting, in general, a right to trade unmolefted with the enemies of each other; and these they ufually placed among thofe articles of general import, which are commonly firft laid down in treaties, as the bafis on which the fubfequent ftipulations are founded: the rule, therefore, of equity in this cafe being thus defined, they came afterwards to erect upon it fuch privileges as that rule alone would not have allowed them; and among the reft, fome nations, as their intereft prompted them, granted mutually to each other, by new and exprefs articles, the right of carrying freely the property of their respective enemies. Thefe laft articles therefore must be confidered as wholly diftinct in their nature from those before mentioned, and in their meaning totally different: the firft are an affirmance of an old rule, the laft create a new privilege; thofe only confirm a right which was determined by the law of nations before; these make an exception to that law: if they both imply the fame fenfe, why are both fo often found inferted in the fame treaties t? Would the repetition in fuch a cafe have been neceffary; and to what purpose were new articles added to grant a privilege which was already included in the terms of the preceding? The fame exception alfo of contraband goods is again repeated in the laft cafe as well as in the former; and fhows clearly, that the property, which is the object of the exception in the different articles, muft likewife in its nature be different; the one relates to the ordinary means of traffic which every nation enjoys, its

Treaty of commerce between France and Holland, 1662.-Treaty of commerce between England and Holland, February 17, 1668.-Treaty of commerce between England and Holland, December 1, 1674.Treaty of Commerce between England and France, February 24, 1677.

See the treaties mentioned above.

Own

own produce or property; the other to the property of the

enemy.

But this point is ftill more clearly explained by the affistance of other treaties, where articles of the fame force as the 21ft and 22d of the treaty of Madrid are inferted, and the intention of them fully made appear from the fubfequent parts of the fame treaties. In the treaty of commerce between Great Britain and Sweden, of the 2 ft of October 1661, it is ftipulated by the 11th article, that

it is by no means to be understood, that the subjects of one confederate, who is not a party in a war, fhall be reftrained in their liberty of trade and navigation with the enemies of the other confederate, who is involved in fuch war ;" and then in the article which immediately follows, the meaning of thefe words becomes manifeft beyond a doubt: it is there fo far from being supposed that the liberty bere granted can be fo interpreted as to imply a right of conveying the effects of an enemy, that the very attempt to practife it under favour of this liberty, is there called "a fraud *;" and as a "most heinous crime," is ordered to be moft feverely punished;" and to prevent any collufion in this refpect, the veffels of both parties are required to be furnished with paffports, "fpecifying of what nation the proprietors are to whom the effects on board them belong." And in the treaty of commerce between Great Britain and Denmark, of the 11th of July 1670, a right of free trade with the enemy is ftipulated in the 16th article; and afterwards by the 20th article, the extent of this right is made apparent. Here the means are fet down to prevent the defigns of thofe who, under favour of this ftipulation, fhould attempt to protect the effects of the enemy; and the illegality of fuch a practice being fuppofed, as not neceffary to be expreffed, the article then declares," but left this liberty of navigation and paffage for one ally might, during a war which the other may be engaged in, by fea or land, with any other state, be of prejudice to fuch other ally, and the goods belonging to the enemy be fraudulently concealed, under the colourable pretence. of their being in amity together; to prevent, therefore, all fraud of that fort, all ships shall be furnished with passports;" the form of which is there fet down, and is the fame as that mentioned above. From thefe treaties then it manifeftly appears, that by a general ftipulation in favour of trade with the enemy of another power, negotiators never intended to imply a right to carry freely the effects of that enemy; but that, to establish such a right, it is neceffary to have it exprefsly mentioned. The 21st and 22d articles therefore of the treaty of Madrid, in which liberty of traffic to the countries of the enemies of Great Britain is thus in general

See the treaty of commerce between Great Britain and Sweden, October 21, 1661.

ftipulated,

ftipulated, can be explained to grant to the fubjects of the crown of Spain no other right but that of carrying on without any injuries, "moleftation," or "difturbance," fuch traffic as would otherwife be legal according to the law of nations; and by this law, in time of war, it never could be legal to protect the effects of an enemy *.

[The author having fully difcuffed the queftion on the ground of the treaties between Great Britain and Holland, as propofed in the note below, then proceeds as follows:]

There remains one more claim to be confidered; a claim which, if report had not averred that such a one had been formally offered, would by no means deserve an answer. The northern crowns, whofe commercial treaties with Great Britain contain not any article which gives them exprefsly a right to carry the property of the enemy, have endeavoured to deduce this right from a general ftipulation which is to be found in fome of their treaties, declaring, that "they fhall be treated in like manner as the most favoured nation." If Great Britain, therefore, hath granted by treaty to any other nation the right, in time of war, of becoming the carrier of her enemies, they think they are justly entitled to be admitted to the fame favour. Under this pretence they claim this privilege, as ftipulated in the Dutch treaty of 1674; but it has been proved alfo that the treaty of 1674, as far as it relates to the prefent cafe, is no longer in force: if the inference, therefore, was otherwife juft, the foundation being thus deftroyed, whatever is built upon it muft neceffarily fall with it. But this ftipulation of equal favour, from the very nature of it, can relate to nothing elfe but fuch advantages as may be granted to foreign traders by the municipal laws or ordinances of each country; fuch as equality of cuftoms, exemption from the rigour of ancient laws, which would affect them as aliens, and the pri vileges of judges-confervators and confuls; thefe are the proper objects of favour, and because the whole detail of these could not eafily be specified in a treaty, for this reason they are thus comprehended in a general article. If the rights conceded by treaties were the objects of this ftipulation, to what purpose were any other articles added, fince this would contain them all, and would alone include every privilege which paft or future treaties could

The author then proceeds to fhow that Great Britain granted fuch a privilege in her commercial treaties with France and Holland: that with the former power was put an end to by the then exifting war; the author, therefore, confines in the fequel his difcourfe on this privilege as ftipulated in the British treaties with Holland, and contends that with respect to that country it was extinct at the time in which he wrote. To give a full view of the fubject, and show the origin and intention of the privilege, ne enters into its history, and relates the manner in which it was first admitted into treaties.

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