yet even then, making all these extravagant admissions, your lordships will still find, that we have, by another part of the convention, materially facilitated to our enemies the means of carrying on with Russia, even in her present state, an extensive commerce in naval stores. By the seventh article of this treaty (copied with so many other of its stipulations from the hostile conventions of the northern league*) it is provided that the privileges of neutrality shall be allowed to such vessels only as have on board captain and one-half their crew composed of the subjects of the power whose flag they bear. If these words are to be construed only as limiting the proportion in which the subjects of one neutral may be admitted to navigate the vessels of another neutral, I agree that they must be innocent, because I am sure they are completely nugatory. It must be quite indifferent to us by what neutral sailors neutral ships are manned: or, if we should find any imaginable advantage in the distinction, the powers, whose interests it affected, would very soon, by the practice of adopting and naturalizing the subjects of each other, make it impossible for us, even in a single instance, to ascertain the fact in question. But if this provision be construed, as I fear it will, as superseding every other restraint respecting the crews of neutral vessels; if hostile subjects as well as neutral may henceforth compose one half of the seamen who navigate such vessels, it becomes important to inquire what innovation has thus been introduced into the law of nations, and how far it may affect the interests of Great Britain. By the rule which is now generally received in Europe,t not one half, but one third only of hostile seamen are permitted to navigate a neutral vessel. If it had been meant that this rule should still subsist as to hostile seamen, and that the new provision of the article which we are now considering, should be superadded to it, but confined to neutral seamen only, we must suppose that this inten See Art. 5. of the Neutral Convention of 1800. + "Les Hollandois doivent observer que l'equipage du navire ne soit pas composé de matelots sujets d'un pais ennemi au-delà du tiers de l'equipage: si les matelots sujets du pais ennemi excedoient le tiers de l'equipage, le navire seroit de bonne prise."-Notification to the Dutch, published by the court of France in 1756, Art. 4. tion would have been distinctly expressed. It was the object of this treaty to fix invariably the rights of neutrality. It cannot therefore be presumed, that in treating on this very subject of the crews of neutral vessels, this important limitation of those rights would have been passed over in silence, if it were intended to remain. The plain interpretation of that silence must be, that the old rule is abrogated by the omission, and that, by the positive stipulation, the new rule has been substituted in its place. Russia, therefore, in construing this treaty, which, strange as it must appear, does not contain any general reservation of our former rights, will undoubtedly be well warranted to contend, that in the present case, as in that of contraband, the specification of the restraint implies the permission of all that it does not expressly restrain. If then, in any time of war, a crew, the half of whom are French, may sail under the protection of a Russian flag; and if to a vessel so manned we must allow the general rights of neutrality, and the special privileges of the Russian navigation, can any man doubt that great and essential detriment may arise to us from this concession. France herself, with all her parade of liberality, has not yet granted the like privilege either to Russia, or as, I believe, to any other country. Yet, if this concession from Great Britain were really a benefit to Russia, it might, in some points of view, be less objectionable; but it is to France alone, and in her wars with England, that all the advantage of this article will accrue. A direct commerce, during war, is now authorized between the French and Russian ports, in vessels bearing indeed the Russian flag, but which will be navigatad by a crew, one half of whom are French, and who will consequently have much greater opportunities than any which can now subsist of fraudulently disguising the The following passage from a work, recently published in France, to countenance the new principles of neutral law, carries this pretension still higher than it is stated above. "La seule patente par laquelle une nation veut qu'un navire soit traité comme lui appartenant, ne suffit pas, suivant les usages actuels de la mer; mais il faut encore que le capitaine et les deux tiers des matelots soient sujets de cette même nation, et que ces matelots soient compris sur le rôle d'equipage."-Azuni Droit Maritime de l'Europe, Paris, an. 6, vol. ii. p. 244. real property of the vessel, and of controlling the conduct of the remainder of the crew. In stating to your lordship these last concessions, I have proceeded on the persuasion, that they are too plainly and clearly expressed, not to have been in the full contemplation of both the contracting parties. If the fact was otherwise, if these stipulations were originally intended to bear any other than their natural and obvious sense, I have only to repeat, in this case as in the former, that no time should be lost in removing all ground of ambiguity, by candid and amicable explanation. But, among the numerous instances in which such a revisal of the present treaty appears to be essential to the public interests, there is none of such extensive importance as that to which I must next intreat the particular attention of the House. On comparing together the different sections of the third article of this convention, one great distinction between them cannot fail to be remarked, even by the most superficial observer. The two first sections and the fifth, those which relate to the coasting and colonial trade, and to the proceedings of our maritime tribunals, are in their frame and operation manifestly prospective. They provide only for the future arrangement of the objects which they embrace; and they profess to extend no farther than to the reciprocal conduct of Great Britain and Russia towards each other. The third and fourth sections, on the contrary, those which treat of contraband of war, and of blockaded ports, do each of them expressly contain, not the concession of any special privilege henceforth to be enjoyed by the contracting parties only, but the recognition of a universal and pre-existing right, which, as such, cannot justly be refused to any other independent state. This third section, which relates to contraband of war, is, in all its parts, strictly declaratory. It is introduced by a separate preamble, announcing that its object is to prevent "all ambiguity or misunder. standing as to what ought to be considered Equivoque is, in the official copy of the present treaty, translated equivocation: but this is a mistake; it means doubt or error. The argument would, however, be equally strong if this translation were admitted." The word ambiguity has been here chosen, because it is found in the common English translation of the convention of 1789, from which this preamble is faithfully copied, as contraband of war." Conformably with this intention, the contracting parties declare, in the body of the clause, what are the only commodities which they acknowledge as such." And this declaration is followed by a special reserve, that it "shall not prejudice their particular treaties with other powers." If the parties had intended to treat of this question only as it related to their own conduct towards each other, and to leave it in that respect on the same footing on which it stood before the formation of the hostile league of 1800, all mention of contraband in this part of the present convention would evidently have been superfluous. Nothing more could, in that case, be necessary, than simply to renew the former treaties, which had specified what articles of commerce the subjects of the respective powers might carry to the enemies of each other; and as we find that renewal expressly stipulated in, another article of this same convention, we must, in common justice to its authors, consider this third section as introduced for some distinct and separate purpose. It must therefore unquestionably be understood in that larger sense which is announced in its preamble, and which is expressed in the words of the declaration which it contains. It must be taken as laying down a general rule for all our future discussions with any power whatever, on the subject of military or naval stores, and as establishing a principle of law which is to decide universally on the just interpretation of this technical term of contraband of war. Nor, indeed does it less plainly appear from the conclusion, than it does from the preamble, and from the body of this section, that it is meant to bear the general and comprehensive sense, which I have here stated. The reservation which is there made of our special treaties with other powers, is manifestly inconsistent with any other more limited construction. For, if the article had really no other object in its view, than to renew or to prolong our former engagements with the northern crowns, what imaginable purpose can be answered by this concluding sentence? Was it necessary to declare, that to Denmark and to Sweden, should not a stipulation, extending only to Russia, prejudice our treaties with other powers? How should it possibly have any such effect? How can our treaties with Portugal or with America be affected by the renewal of those engagements which had long ago declared what articles might be carried in Russian or Danish ships? But the case would, indeed be widely different under the more enlarged construction which evidently belongs to this stipulation. The reserve was not only prudent but necessary, when we undertook to lay down a universal principle, applying alike to our transactions, with every independent state. In recognizing a claim of pre-existing right, and in establishing a new interpretation of the law of nations, it was unquestionably of extreme importance expressly to reserve the more favourable practice which our subsisting treaties had established with some other powers. And that which was before incongruous and useless, would therefore, under such circumstances, become, as far as it extends, an act of wise and commendable forethought. naval rights, as that of contraband of war. The explanation given of this term by this convention, is neither drawn from any established usage, nor supported by any admitted authority, It is copied both in its letter and in its spirit from the same convention of armed neutrality, which, as I have often had occasion to remark, have so unfortunately been chosen as the models for this British negotiation. In the first of those hostile leagues the empress of Russia thought proper to declare, that her engagements with Great Britain on the subject of contrband, should thenceforth be considered as the invariable rule of natural and universal right; and that those commodities, which her own subjects were privileged by treaty to carry to our enemies, should not, in the commerce of any other nations, be reputed contraband, exceptby virtue of some special agreement. In strict adherence to this unprecedented On the whole, therefore, I have no and extravagant pretension, the article doubt that neutral nations will be well which we are now considering, adopts the warranted in construing this section as same rule, and adopts it on the same declaratory of a universal principle, and grounds; enumerating all the commodities applicable to every case where contraband mentioned in the treaty of 1797, between of war is not defined by especial treaty. Great Britain and Russia, and declaring Nor could we, in my opinion, as this treaty that conformably to that treaty the two now stands, contend in future wars, with sovereigns acknowledge those commodities any shadow of reason, much less with any alone as contraband of war. And as from hope of success, against this interpreta- that enumeration, every article serving tion, however destructive it must be of all for the construction or repair of ships is our dearest interests. Least of all can carefully excluded, it follows, that the we resist it, when we are reminded, that framers of this treaty have made the king in a succeeding article of this very con- of Great Britain publicly declare, that vention we have bound ourselves, by the naval stores ought not, in his opinion, most distinct engagement, to regard all its" to be considered as contraband of war;" principles and stipulations as permanent, and that he himself does not " acknowand to observe them as our constant rule ledge them as such !”. in matters of commerce and navigation; expressions exactly corresponding with those by which the parties to the two neutral leagues asserted both the permamanence and the universality of the principles which were first asserted by those confederacies, and which the present convention so frequently recognizes and adopts. It is therefore highly necessary that your lordships should carefully. examine what is this general interpretation which the contracting parties have thus solemnly declared; what sense it is that they have thus permanently affixed to a term so frequently recurring in the practice and law of every civilized nation, and so intimately connected with the exercise of our See Art. 8, of this Treaty, I must, however, here observe, that if no other objection existed to this part of the treaty except its extraordinary inaecuracy, this alone would make it absolutely necessary to resort to some farther negotiation on the subject. It is not possible that the future interests of this country on these essential points should be left to rest on the unsteady foundations of this precipitate transaction. The most important clause even of this important section, that which contains the very object and essence of the whole, is in one part of it so worded, that, as it now stands, no human ingenuity can extract from it a reasonable meaning. The enumeration of those articles, which Great Britain has by this convention declared to be the only contraband of war, is, as I have already stated, carefully confined to the implements of a land war, to cannons and firelocks, swords and pikes, knapsacks, saddles and bridles, and the like; and, after going through this list, the treaty proceeds expressly to declare, not only that all other articles whatever shall not be subject to confiscation, but that they "are not to be reputed warlike and naval stores." Muskets and pikes, knapsacks, saddles and bridles, may, it seems, be useful for the construction of ships. But all other articles whatever, all iron and timber, pitch and tar, masts, hemp, sailcloth, cordage, and the rest, which the ignorance of our ancestors considered as necessary for the means of maritime war, are now discovered not only not to be contraband, but not even to be naval stores. The negotiations now depending at Petersburg, must, however, as I imagine, produce such a correction of this article as may at least make it consistent with common sense, and in some degree explanatory of the meaning which it was designed to convey. Anticipating, therefore, some such amendment, it may be proper for us to consider the clause as if it were already limited to its first declaration, that naval stores ought not, by the law of nations, to be reputed contraband of war. which they required that every other nation should implicitly adopt, and to which they bound themselves to obtain, either by menace, or by force, the reluctant acquiescence of Great Britain. In pursuance of the purpose thus openly avowed, they professed, on this very subject of contraband, to extend to every other country the special privileges which we had granted to Russia;* and they declared, without reserve, that a commerce with our enemies, in naval stores, was open to every neutral state, under the fundamental principles of the law of nature. Prussia, therefore, although not privileged by any treaty on this subject, yet claimed for herself the undisturbed enjoyment of this hostile trade. And this pretension, extravagant as it may seem, was not only recognised, but guaranteed to her by alt the confederates;† who, at the same time, invited every other neutral power to enter into the like engagements, and to partake of similar advantages.‡ If under such circumstances the British government had then pursued the same conduct which has now been followed in the present treaty, no hope could have remained to us of ever re-establishing our rights. If this country had, in that moment, as in the present, adopted those hostile conventions as the basis of its own engagements, if we had then proclaimed to the world, in the words of this article, that naval stores ought not to be considered as contraband of war, and that we ourselves did not acknowledge them as such, can any man doubt in what situation we should thenceforth have stood? Not only would the Prussian claim have been by these admissions irrevocably confirmed, but the principle, thus solemnly recognised by us, must of necessity have been *extended equally to every other country. The same advantage must again have been conceded to Holland, no longer fettered To judge of the effect which such a declaration must produce on the situation of this country in any future war, it is necessary that we should once more recur to the history of the first treaty of armed neutrality. It was the undoubted object of that transaction, to disarm this country of her naval pre-eminence. Its authors, therefore, did not confine their views to the acquisition of special privileges for their own navigation. On principles the most hostile to our naval interests, they framed a universal code of maritime law,* * Treaty between Russsia and Prussia 8th May 1781. The preamble, after speaking of the determination of the king of Prussia to accede to the principles of the armed neurrality, adds-" Cette déterniination de S. M. Prussienne répondant parfaitement au desir de S. M. Impériale de toutes les Russies de leur donner une base stable et solide, en les faisant reconnoitre sollemnellement par toutes les puissances, comme les seuls capables d'établir la sureté du commerce et de la navigation des nations neutres en général, leurs majestés se sont partées d'un commun accord à entrer en négociation, sur un objet qui les intéresse au même dégré." See also the fourth separate article of the same treaty. * Treaty between Russia and Prussia, 8th May 1781, article 2. Treaty between Russia and Prussia, 8th May 1781, article 3. Treaty between Russia and Prussia, 8th May 1781, article 9. "Le but et l'objet principal de cet acte étant d'assurer la liberté générale du commerce et de navigation, S. M. Prussienne, et S. M. impériale de toutes les Russies conviennent et s'engagent d'avance à consentir que d'autres puissances également neutres y accedent, et qu'en adoptant les principes qui y sont contenus, elles en partagent les obligations ainsi que les avantages." by any obligations of reciprocal assistance. It had before been reluctantly allowed to her as a special privilege and condition of alliance; it had been recently withdrawn, as an indulgence too great to be continued to an indifferent spectator of our danger ;+ but it must, under such a declaration as the present, have been once more restored to her, as the inherent right of every neutral power. The effect of the same principle must, at a subsequent period, have equally been felt in our negotiations with America. By their treaty of friendship and commerce with Great Britain, the United States had agreed, in 1794, to include in the enumeration of contraband, almost every article of naval stores. Accused on this account by the French and Spanish governments of hostility to the interests of France, the American ministers vindicatd their impartiality by an appeal not merely to the justice of the rule, but also to the wellknown fact, that Great Britain was immutably resolved to maintain it against every neutral power. They asserted (how truly it is immaterial here to inquire) that a contrary rule would better have promoted the interests of their own country. But they urged, with undeniable reason, that until Great Britain should consent to renounce her ancient rights, it was not to be expected that America should resist them by measures of unjust hostility. * See the memorial delivered by sir Joseph Yorke to the States General, 21st March 1780. + Order in Council, 17th April 1780, which recites that Holland had deserted her alliance with Great Britain, and placed herself in the situation of a neutral power not bound to this kingdom by any treaty; and thereupon suspends all particular stipulations respecting the neutral navigation of the Dutch in time of war, and particularly those of the marine treaty in 1674. Letter from the Executive Government of America to Mr. Pinckney, 19th Jan. 1797. Mr. Pickering's letter to the chevalier Yrujo, 17th May 1797: "Permit me to say, that our engagements with Great Britain ought to be no matter of surprise to the Catholic king, because his majesty has seen, during the whole course of the American war, how steadily Great Britain persisted, in opposition to the demands of all the maritime powers, to maintain her claims under the law of nations, to capture enemy's property, and timber, and naval stores, as contraband in neutral ships. Could H. C. M. therefore expect that Great Britain would relinquish her legal rights to a nation (the United States) which abounded in materials for building and equipping ships?" :: Those rights we have now voluntarily renounced and unless the renunciation be itself retracted, we must, in all future discussions with America, when the short term of our commercial treaty shall have expired, abide the consequences of that new rule of public law, which we ourselves have thought proper to proclaim. The same must be our situation with respect to Holland, with whom we have indeed made peace, under the auspices of France, but with whom we are little likely, under such auspices, to renew our treaties, either of commerce or alliance. The same must be our situation with respect to Spain, whenever that power shall think fit to acknowledge herself bound by the preliminaries of peace, to which France alone has hitherto pledged her faith. In the same state we shall stand towards Portugal, if it be true, as I fear it is, that while we boast to have guaranteed the territorial integrity of that unhappy country, by placing her colonies at the mercy of the enemy, we have at the same time imposed on her the ignominious necessity of abandoning her ancient alliances, and renouncing for ever her commercial connexions with Great Bri-: tain. In the same state we shall likewise stand towards Prussia; and in the same towards almost every other maritime power in Europe, which is not a party in this convention. Not one of those powers will be bound to us by any special treaty on this important subject. To regulate their practice, they must look to the general law of nations; and they will find it in our own declarations contained in this very article. We have here publicly deserted our former claim; we have con- . fessed that naval stores ought not to be considered as contraband of war, and that we ourselves no longer acknowledge them as such. We have expressed this avowal in the very words originally selected for the purpose of making it uni versal; and we have inserted it in our treaty with those very powers who had confederated for no other object than to enforce our observance of it. If then we shall, in any future war, be manifestly unable to repel, by any just or reasonable plea, the claim of neutrals to trade with our enemies in naval stores, are we, on the other hand, better prepared to admit and recognise it? We, * See the Treaty of Madrid, concluded between France and Portugal, Sept. 29, 1801,. Article 5. |