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contended against the mighty designs of Philip, the capture of some vessels belonging to the Hanle Towns gave occafion to a contest of this nature : but they were the emillaries of Philip that then blew up the flame, and pretending a love to commerce, promoted the ambitious projects of their master. The Queen of England published an apology for her conduct, and this was answered in a virulent and abusive manner; not from any of the Hanse Towns, but from Antwerp, a city under the dominion of Spain, and it seemed to be written (says Thuanus) “ per hominem Philippi partibus addictum, non tam pro libertate navigationis et in Germanorum causâ defendendâ, quam in Hifpanorum gratiam, et ad Reginæ nomen profcindendum.” The interetts of commerce were the pretended cause of this dispute, but the real cause was the interest of Philip; the pretended design was to preserve the liberty of navigation, but the real end was to ferve the cause of ambition, and to destroy the government of England: this cafe need not be compared with our own at present; the resemblance is too obvious.
Here then we might rest our cause, 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 100 weak to hold the nations of the world to their duty; their interest taught them to renew and confirm these by contracts among themselves, and frequently to add thereto ceriain mutual advantages, greater than what the law of nations singly would have allowed them : let us consider, therefore, what influence these may have in the preferit cale; whatever they are, I mean to give them all the force which reason or justice can require. If our ancestors have betrayed the interest of their country in granting any privileges of this nature, we, who have succeeded to their righis, are bound to abide by their concessions ; it is the happiness of great kingdoms, whole power is equal to the support of their own independency, to be able to act up to those principles which neceility hath often forced little states unhappily to abandon ; those scandalous maxims of policy, which have brought disgrace boih on the name and the profession, took their rise from the conduct of the little principalities of Italy, when distreiled by the successive invasions which France and Spain made upon them, they broke or conformed to their leagues, as their own security obliged them; and their refined shifts and evasions, formed into fyftems by able doctors of their councils, have composed that science which the world hath called politics; a science of fraud and deceit, by which kingdoms are taught to be governed on principles which individuals would be ashained to profess; as if there could be no morality among nations, and that mankind being formed into civil societies, and collectively considered, were set free from all rules
of honour and virtue: maxims like these I mean to avoid ; to fol. low them would bring dishonour on my country.
It must then be allowed, that there are articles in some of our maritime treaties with other nations, which have stipulated, that, “ All which shall be found on board the vessels belonging to the subjects of those countries, shall be accounted clear and free, although the whole lading or any part thercof fhall, by juft title of property, belong to the enemies of Great Britain such an article is inferted in those maritime treaties which Great Britaja hath made with France * and Hollandt. It has indeed by some been supposed, that the subjects of the crown of Spain have a right to enjoy a privilege of the fame nature; certain, however, it is, that no such 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 respect may possibly have arisen from a false interpretation of two articles in the treaty of Madrid, which declare in general I, that “the subjects of the two crowns respectively thall have liberty to traffic throughout all countries, cultivating peace, amity, or neutrality with either of them; and that the said liberty fall in no wise be interrupted by any hindrance or disturbance whatsoever, by reason of any hostility which may be between either of the faid crowns and any other kingdoms:" and as the liberty here ftipulated, may be by some erroneously imagined to extend so 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 stop a little to show the true design and meaning of these articles. This explanation is at present more neceffary, as it will tend to illustrate the true sense of other ftipulations of precisely the same purport, which may be found in several of our commercial treaties, and particularly in the first and fecond articles of that with Holland of December 11, 1674: a wrong interpretation of which hath already given occasion to great confusion and much falfe reasoning upon the present question.
It cannot, I think, be doubted, that according to those principles of natural equity, which constitute 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.
ments of war, or whatever else, according to the nature of their respective situations, or the circumstances of the case, may be, necessary 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 most licentiously disturbed, and sometimes prohibited totally, the commerce of neutral nations with their enemies. About the middle, therefore, of the last century, when the commercial regulations, which at present subsist between the European powers, first began to be formed, it became absolutely necessary to call back the attention of governments to those 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 inserted in their commercial regulations, articles * to the same purport as those above mentioned, afferting, in general, a right to trade unmolested with the enemies of each other; and these they usually placed among those articles of general import, which are commonly first laid down in treaties, as the basis on which the subsequent stipulations are founded: the rule, therefore, of equity in this case being thus defined, they came afterwards to erect upún it such privileges as that rule alone would not have allowed them; and among the rest, some nations, as their interest prompted them, granted mutually to each other, by new and express articles, the right of carrying freely the property of their respective enemies. These last articles therefore must be cons sidered as wholly distinct in their nature from those before mena tioned, and in their meaning totally different: the first are an affirmance of an old rule, the last create a new privilege; those 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 same sense, why are both so often found inserted in the same treatiest? Would the repetition in such a case have been necesa sary; and to what purpose were new articles added to grant a privilege which was already included in the terms of the preceding? The same exception also of contraband goods is again repeated in the last case as well as in the former; and shows clearly, that the property, which is the object of the exception in the different articles, must likewise 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, Deceniber 1, 1674. Treaty of commerce between England and France, February 24, 1677. + See the treaties mentioned above.
own produce or property; the other to the property of the enemy.
But this point is still more clearly explained by the affistance of other treaties, where articles of the fame force as the 2ift and 22d of the treaty of Madrid are inserted, and the intention of them fully made appear from the subsequent parts of the fame treaties. In the treaty of commerce between Great Britain and Sweden, of the 21st of October :661, it is stipulated by the uth article, that « it is by no means to be understood, that the subjects of one confederate, who is not a party in a war, shall be restrained in their liberty of trade and navigation with the enemies of the other confederate, who is involved in such war;" and then in the article which immediately follows, the meaning of these words becomes manifeft beyond a doubt : it is there so far from being supposed that the liberty bere granted can be so interpreted as to imply a right of conveying the effects of an enemy, that the very attempt to practise it under favour of this liberty, is there called “a fraud * ;" and as a “ most heinous crime," is ordered “ to be most feverely punished ;” and to prevent any collusion in this refpect, the vesfels of both parties are required to be furnished with pafsports, “ specifying 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 sith 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 ineans are set down to prevent the designs of those who, under favour of this ftipulation, frould attempt to protect the effects of the enemy; and the illegality of such a practice being supposed, as not neceffary to be expreffed, the article then declares, “ but lest this liberty of navigation and passage 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 such 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 set down, and is the same as that mentioned above. From these treaties then it manifestly 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 necessary to have it expressly 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, Detober 21, 1661.
ftipulated, can be explained to grant to the subjects of the crown of Spain no other right but that of carrying on without any injuries, “ molestation," or " disturbance," fuch traffic as would otherwise be legal according to the law of nations; and by this law, in time of war, it never could be legal 10 protect the effects of an enemy *
[The author having fully difcufted the question on the ground of the treaties between Great Britain and Holland, as proposed in the note below, then proceeds as follows:]
There remains one more claim to be considered; 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, whose commercial treaties with Great Britain contain not any article which gives them expressly a right to carry the property of the enemy, have endeavoured to deduce this right from a general stipulation which is to be found in some of their treaties, declaring, that “they shall 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 same favour. Under this pretence they claim this privilege, as ftipulated in the Dutch treaty of 1674; but it has been proved also that the treaty of 1674, as far as it relates to the present case, is no longer in force: if the intference, therefore, was otherwise juft, the foundation being thus destroyed, whatever is built upon it must neceffarily fall with it. But this ftipulation of equal favour, from the very nature of it, can relate to nothing else but such advantages as may be granted to foreign traders by the municipal laws or ordinances of each country; such as equality of customs, exemption from the rigour of ancient laws, which would affect them as aliens, and the privileges of judges-conservators and confuls; these are the proper objects of favour, and because the whole detail of these could not easily 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, since this would contain them all, and would alone include every privilege which past or future treaties could
.* The author then proceeds to show that Great Britain granted such a privilege in her commercial treaties with France and Holland : that with the former power was put an end to by the then existing war; the author, therefore, confines in the sequel his discourse 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 subject, 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