Slike strani

No. I.---To the English Admiral. The affliction which carries off, in this city and its environs, thousands of vi&tims, and which threatens not to suspend its savages until it has cut off all who have hitherto escaped, being calculated to excite compassion, it is with surprise that I fee the Squadron, under the command of your Excellency, come to augment the consternation of the inhabitants. I have con exalted as opinion of the humanity of the Englith people, and of yours in par. ticular, to think that you would wish to render our condition more deplorable. However, if, in consequence of the orders your Excellency has received, you are inclined to draw down upon yourself the execration of all nations, to cover yourfelf with disgrace in the eyes of the whole universe, by oppressing the unfortunate, and atracking those who are supposed to be incapable of defence ;-) declare to you, that the garrison under my orders, accustomed to behold death with a serene countenance, and to brave dangers much greater than all the perils of war, know how to make refillance, which shall not terminate but with their entire destruction. I hope that the answer of your Excellency will inform me, whether I am to speak the language of confolation to the anfortunate inhabitants, or whether I am to rouse them to indignation and vengeance.

May God preserve your Excellency.. 02. 5, 1800.

THOMAS DE MORLA. The vessels employed in the blockade have not, till now, prevented the fithers from exercising their harmless induftıy. It must excite astonishment, that your Excellency should deprive us of this small comfort.

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

On board his Britannic Majesty's Ship the

Foudroyant, off Cadiz, Oaober 5. We have had the honour of receiving your Excellency's letter of this date, in which you describe to us 'the deplorable state of this city. We are deeply afflicted at this calamity, though we have good reason to believe that its effects have been much less disastrous.

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


enemy, by endeavouring to take or destroy the ships of war which are in the harbour and arsenal of Cadiz,

The number of troops intrusted to our command leave but little doubt as to the success of the enterprise. We are little disposed to multiply unnecessarily the evils inseparable from war. Should your Excellency consent to give up to us the vessels armed or arming, in order to act against our King, and to prolong the misfortunes of neighbouring nations, your crews and officers thall, be at liberty, and our fleet shall withdraw; otherwise we muft act 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 respect, &c.


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 Majesty's Sea and

Land Forces. When I represented to your Excellencies the melancholy con- , dition of this city, with the view of engaging your humanity, not 10 aggravate it by acts of hostility, I could not have supposed that my request would have been regarded as the effect of fear or weakness. Unfortunately I find that your Excellencies have misinterpreted my expreslions, since they have led to a proposal as insulting to the person to whom it is addressed, as it is but little honourable to those who have made it. Your Excellencies will take this as sufficient information that you must make more suitable propositions, if you intend that they thall be accepted.

I have the honour to be, &c. October 6, 1800.


Extract from a Discourse, written by the Earl of Liverpool, on the

Conduct of Great Britain in rrjpeal 10 neutral Nations. THE right of protection then must have its foundation in some

law, and, when considered in relation to any particular case, it must be founded on that law, by which the interests of the parties concerned are generally determined, and which hath force in that place where the right of protection is claimed. Thus in the present case *, if neutral nations have any right to protect the


# This Discourse was written in 1757, by Charles Jenkinson, Esq. now Earl of Liverpool. Great Britain was at that time engaged in war with 2


property of the enemy, it must take its rise from those law), which are the cltablished rules of conduct between nations, and particularly on that element, where this right is supposed to be exerted. No civil or municipal institutions, and much less the privileges arising from them, can here take place; they have no force but under the dominion of those who agreed to their cliablishment. The question then is.How far, according to the law of nations, doth this riglit of proieclion extend i-To answer this clearly, we must observe, that governments can have succeeded to no other rights, but such as their respective mernbers enjoyed in a state of individuality, and that one nation is now to another, as it were in a state 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 such a situation, is the same which gn. vernment can claim at present :an individual then in a state of nature, would have had an undoubted right to protect his own person 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. --- inoft certainly not; --lince he thereby would deprive me of a right, which the law of nature, for my own security, would in fuch a cafe give me, of seizing the property of this ony enemy, and deltroying his perfon : it he thought my conduct manifestly injurious, so as to call for general resentment, he would, on that account, become my enemy himself; but as long as he calls himself a neuter, to act in this manner against me would be no less absurd than unjust :-(uch therefore, and no more, is the right of protection, which governments enjoy at present in thole places, to which their own dominions do not extend; they have succeeded to the rights only of their respective members, and by consequence thele alone they can proteet.

France, and the republic of Holland refused to conform to those treaties of detentive alliance, by which the was then bound to allint Great Britain, and Juttered her subjects not only to trade with France, but to afford protection to the property of the enemy; to fupply him with naval and military stores, and to bring to the French ports in Europe the produce of the French Welt India illanes Ilie Britillo government ordered all Dutch Ihips, laden with the property of ine enemy, or with naval or military llores, or with the produce of The Fiench West India illands, to be seized, and to be brought into port for legal adjudication. The merchants of Holland remonftrated against this mealure, which deprived them of a molt lucrative trade; but the British government persevered. This Discourse was written in ftip. port of the principles on which the British government at that time acted. ir was translated and reprinted in almost every language in Europe ; and was republished, from the belt edition, at the delire of leveral noblemen and gentlemen, by J. DABRETT, in January 1794


But it will be asked, From whence then arises the right, which governments alway enjoy, of protecting the property of the enemy within the precincts of their own country ? --It is a consequence of the right of dominion; unless, 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 jurisdictions, and of making all (whether its own subjects or those of other countries) fubmit to these, who come within the pale of its power. Here then the trial, which the law of nations gives, is, as it were, superseded; and any proceedings upon it would of course be unjuft; but as soon as you are out of the verge of this particular jurisdiction, the laws thereof and the privileges which attend them cease 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 these, since the same law which gives security to the first, allows you to seize and destroy 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 search the ships of any country; but is not this liberty universally and immemorially practised over all on the main fea? and wherefore is this search made, but that, according to the law of nations, ali are here answerable for what they may convey?

There is something analogous to this in most civil governments, Few countries are without some places which enjoy a right of protection from the general laws of the state, such as palaces, houses of religion, and the like; and this right generally arises from some pretence to an exclusive jurisdiction : as long, therea fore, as any particular property remains within the verge of these, however justly it may be the object of the law, it is not subject to the power of it; but suppose it conveyed from hence into the public roads, beyond the precincts of this particular palace, or convent, the protection it received would vanish 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 sea; the ocean is the public road of the universe; the law of which is the law of nations; and all that pass thereon are subject to it without either privilege or exemption.

If this manner of reasoning should not clearly establish my point, I can appeal in support of it to the ablest writers on public law, who will be found to have decided the question in my favour.

And first I will produce the testimony of that learned native of Delft, who wrote fo nobly on the freedom of navigation to serve his ungrateful country. In one of the passages which are pow VOL, X Mm

before * Grotius de Jure Belli ac Pacis, lib. iii. c. 6. fec. 6. in notis.

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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 ship of a neutral nation cannot protect the property of an enemy: he manifestly implies *, that the vessels even of allies are fubjeét 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 consent of the owners of the veisels, but not otherwise. His words are, Neque amicorum naves in prædam veniunt ob res hostiles, nisi consensu id factum fit dominorum navis ;” and producing several authorities in confirmation of this opinion, he afterwards adds, “ Alioqui res ipfa solæ in prædam veniunt;” but if the enemies property thould be found laden on board a neutral vessel, without the connivance of the owner, in such case, “that property alone is lawful prize :" and speaking again in another place on this point, he says, that if the wrong done me by my enemy is manifestly unjust, and that any one, by affording succours, should encourage bim in his enmity against me," jam non tantum civiliter tenebitur de damno, sed & criminaliter, ut IS, qui judici imminenti reum manifestum eximit t." à fine and animated manner of expression, which shows how clear the opinion of this great author was upon the question.

To the testimony of Grotius I shall add that of Bynkershoek, a native also of Holland, and whose sentiments, in point of maritime jurisprudence, Barbeyrac often prefers even to those 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 resolutions. He speaks ex. pressly in favour of my point : “ Ratione consulta," says he ,

sum qui videam, cur non liceret capere res hoftiles quamvis in navi amicâ repertas, id enim capio, quod hoftium eft, quodque jure belli viciori cedit." He then assigns this reason also for his opinion, that as it is lawful to stop on the ocean any vessel, though The carry the colours of a neutral nation, and to examine by her papers to whom she really belongs, and in case the appear to be the property of an enemy, to seize her as a lawful prize ; so he can fee no cause why this rule should not extend to the effects which any ship may have on board ; and if the goods of an enemy should lie there concealed, why they also, by the right of war, should be taken and condemned: he even declares it to be his opinion, that the owner of the neutral vessel fhould, in such a



Ibid. cap. 1:
Bynkershoek, Questionum Juris Publici, lib. i. cap. 14.


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