The Sun.
London, England, 1854-07-05 00:00:00

tween Sweden and Denmark to resist by force of arms the'
execution of the convention between the United Provinces
and England to put a stop to all neutral trade with France.
This armed neutrality seems to have been successful, and
the allies had to abandon their project. In the war of 1741,
in consequence of our searching, and detaining, and cap-
turing enemy's property on board Prussian vessels, the
King of Prussia refused to pay the interest of the Silesian
Loan, until we had made reparation to his subjects by a
payment of 20,000/. The second and most celebrated armed
neutrality was in 1780 ; it objects were to resist our rule of
war of 1756, with regard to trading with the colonies, or
on the coast of our enemies, and to establish the rule that
"free ships should make free goods." This armed neutra
lity consisted of conventions which Russia concluded with
Denmark, Prussia, Austria, Portugal, and the Two Sicilies,
It and to which Spain and Holland acceded. attained
its object, and in the treaties of
peacewhich we
concluded in 1783, with France and Spain, we recognised,
as far as those powers were concerned, the main prin-
ciples of the armed neutrality of 1780, and renewed trea-
ties, namely, those of Utrecht of 1713,
which contained
the role " free ships free goods."
neu-
trality was concluded in 1794, ne third armed
between
Denmark and
Sweden, for the protection of their trade during the war
of the French Revolution : it was not successful. And
'befourth armed neutrality, the principles of which were
t same as those of the armed neutrality of 1780, was
ormed in 1800, by treaties that Russia concluded with
weden, Denmark, and Prussia. This armed neutrality
was speedily brought to an end by the murder of the Emperor
of Russia. The principles of the armed neutrality are to be
found in the treaties of 1782 and 1814, between Russia and
Denmark ; of 1800 and 1809, between Russia and Sweden;
and of 1818, between Denmark and Prussia. These trea-
ties and leagues show how anxious the Northern Powers
have generally been to expunge the rule of confiscating
eem
of y's goods on board neutral ships from the public
lanee Europe, and to substitute the rule " free ships
free goods." I must observe, however, that the rule
" free ships free goods" is not contained in some of the
treaties between the Northern and Western powers-for
instance, it is not contained in the treaty of commerce of
Copenhagen, concluded in 1670 between Great Britain and
Denmark, which was renewed by the treaty of Kiel of
1814, nor is it contained in the treaties between Great Bri-
tain and Sweden, signed at Upsal in 1654, at Westminster
in 1656, at Whitehall in 1661, and all of which were con-
firmed by the treaty of Oretro of 1812. These treaties are
still in force, and from various articles in them the infe-
rence may be fairly drawn that we are now entitled by
treaty to confiscate enemy's goods on board neutral ships
belonging to Denmark and Sweden. Nor was the rule
"free ships free goods" contained in any of our treaties
with Russia. On the contrary, in the marine convention
of St. Petersburg of 1801, to which Sweden and Denmark
acceded, the second article declared that enemy's
goods should not be free on board neutral ships. On the
other hand, the treaties which Prussia concluded with ,
Austria, in 1785, with France in 1787, and with the Two i
Sicilies in the same year, contained the stipulations of the
armed neutrality of 1780. The rule "free ships free
goods" is also to be found in the treaties between Prussia
and Portugal of 1787 and 1798, the latter of which was
renewed by the declaration of 1815. The same rule was
contained in the treaties between Danmark and France
of 1663, 1742, 1749, and 1813. And according to eminent
French authorities-namely D'Hanterive and Hautefuille
-is still in force between France and Denmark. Conse-
quently at present the Danes are entitled by treaty with
France to carry Russian goods from one Russian port
to another Russian port, the ports not being blockaded.
The rule "free ships free goods" was also contained in the
treaties between Denmark and Spain of 1742 and
1814; and in those between Sweden and the United
Provinces of 1679 and 1686. I think that I have
referred to every, or nearly every, international engage-
ment of the two last centuries between the Northern
Powers, or between them and the Western Powers, which
contained a specific stipulation with regard to the goods of
an enemy on board the ship of a neutral. There were se-
veral treaties that contained no stipulation on the subject;
but those that did were about 40 in number; of them,
only nine (to every one of which England was a party)
stipulated that the goods of an enemy in the ship of a
friend should be lawful prize : the remaining 31 contained
the rule "free ships free goods ;" and most of them con-
tained the principles of the armed neutralities of 1780 and
1800. The armed neutrality of 1780 was an offspring of
the American war of independence. The United States at
once declared in favour of its principles, and adopted its
provisions as rules of public law of the New World. For
the rule "free ships free goods" is to be found in the
treaties which the United States concluded with France in
1778 and 1800 ; with the United Provinces in 1782 ; with
Sweden in 1783, 1816, and 1827 ; with Prussia in 1785,
and though the rule was temporarily suspended in 1799, it
was re established in 1828. The only instance in which
the United States adopted tho rule that the goods of an
enemy in the ship of a friend is lawful prize, was a treaty
with this country in 1794. But in 1795 the United States
concluded a treaty with Spain, which contained the rule
" free ships free goods," it was renewed in 1819, but with
this reservation, that the rule should only be acted upon
when all the belligerents assented to it ; for example, the
ships of the United States, being a neutral, were only to
render nee the goods of the enemy of Spain, being a bel-
ligerent, when the enemy of Spain also acted upon that
rule. About 30 years ago the South American colonies of
Spain shook off the yoke of their mother country and be-
erne • independent ; they then entered into negotiations
with the United States; in those negotiations the United
States declared that the rule of public law-that the pro-
perty of an enemy is liable to capture on board the vessels
of a friend has no foundation in natural right, and
though it be the established usage of nations, rests entirely
on the abuse of force. For these reasons, the rule " free
ships free goods" is to be found, I believe in every treaty
which the United States has concluded with the states of
South America : for instance, with Colombia, in 1824 ;
with the States of Central America, in 1825 ; with
Brazil, in 1828 ; with Mexico, in 12831 ; with Chili,
in 1832 ; with Bolivia., in 1836 ; with Venezuela, in
the same year ; and with Equador, in 1843. I should
observe, that in almost all these treaties with the states
of South America, the United States stipulated that the
rule " free ships free goods" should only be enforced when
all the belligerents assented to act upon it ; for, though
the United States maintained in the strongest manner
that the rule in question ought to be contained in the public
law of nations, yet 'they asserted that, if one belligerent
alone were to act upon that rule, and the others were to
adopt the contrary rule of confiscating enemy's goods on
board neutral ships, the belligerent who acted upon the
right rule would be unjustly damnified, and he who
acted upon the wrong rule would be unjustly benefited ;
therefore, the United States stipulated in the treaties in
question that the rule " free ships free goods" should be
subject to the limitation which I have mentioned, until
the progress of civilisation and the consent of all civilised
nations should establsh it as an undoubted rule of public
law. France has also concluded numerous treaties with
the states of South America, in which it has been generally
stipulated that France should not impose upon neutrals
in time of war any other obligations than that of sub-
mitting to the laws of effective blockade. lam in-
formed that this stipulation is contained in the treaty
which France concluded with Brazil in 1826, with
Bolivia in 1837, with Equador and Venezuela in 1843,
with New Granada in 1846, with Guatemala in 1848, with
Costa Rica in the same year, and with Hayti in 1852.
Lastly, I should observe, that the Ottoman Porte is at pre-
sent bound by its capitulation of 1604 with France, of 1675
with England, of 1783 with Russia, and prbably by those
of 1784 with Austria, of 1740 with the Two Sicilies, of 1782
with Spain, of 1680 with Holland, of 1790 with Prussia,
not to confiscate any goods, except contraband of war, on
board the ships of the nations which I havejust mentioned.
I have now enumerated 130 international engagements be-
tween the chief powers of the civilised. world ; they are all,
or nearly all, the international engagements between these
powers during the last two centuries, which contain dis-
tinct provisions, with regard to the treatment of enemy's
goods on board neutrals' ships ; there are many treaties
which contain no provision on that subject, but of the 130
that do, only 11, to ten of which England was a party,
contain the rule that the goods of an enemy in the ship of
a friend aro lawful prize, the remaining 119 contain the
rule, "free ships free goods." I have now shown that
during the century and a quarter which preceded the wars
of the French revolution the all but invariable rule of
amicable intercourse, as established by treaties between
this country and the great maritime powers of western
Europe, and the invariable rule between those powers was
free ships ft ee goods. I have also shown that the general
rule of amicable intercourse, as established by treaty be-
tween the northern powers, between the northern and
western powers (with the exception of England), between
France and the Nsw World, and between the Ottoman
Porte and the great powers of Europe, was free,ships free
goods. I am therefore entitled to assert that though it
has been the custom and usage of nations to act upon the
rule of capturing enemy's goods on board neutral ships,
yet that custom and usage have been and still are held
7 the great majority of civilised nations to be at vari-
ance with correct notions of what is right and just.
M
w' an eminent modern writer on jurisprudence, r. Austin,
"the rule in defining international law, states that
considered regardinga the conduct of sovereign states
l
related
to each other is termed
tiaons or w by its analigyt° positive law, being imposed upon na-
soveregas,
perior authority, bult't? the positive command of a su-
nations. The duties wliyici7ini°ns generally current among
sanctions, by fear on the Da.trtrel)°!tes are enforced by moral
general hostility, and inn` . Bovereiens of provoking
they should violate maximsng its probable evils in case
• spected." If this be a correct nition of international
g(rrallY received and law, or or rather what ought to be international law, it fol-
lows that the rule, "free ships,
follows
sutghhatt tt oh
eb
po-
sition a
rule of international law, or at leaset ft 3;(131"
ed gentleman,
contained in the resolution of tlisiiiskaern
ship of a friend
if it be not
namely, that the goods of an enemy
are lawful prize, is not indisputably true:
edhave already
indisputably true, the house ought not, ;
said, by agreeing to the motion of the learns
pledge the honour of this country to upholdg7.remant,?
I must observe that in the treaties to which Iha efrrlerfeevreeed:
with the exception of those which contained thev
of the armed neutrality of 1788Iand. of 1800, the itilnee.i.t.lees
ships, free goods" has been accompanied by the rule " ene-
my's my's ships, enemy's goods," in virtue of which the goods of
neutrals were liable to confiscation on board enemy's ship 9.
This rule was a convenient one for belligerents. It saved
them the trouble of determining the ownership of any pro-
perty on board an enemy's ship; and therefoire those powers
who agreed to the rule " free ships, free goods," generally
stipulated that neutrals should pay for the lenity of that
rule, by the confiscation of their property when found on
board an enemy's ship. Bill between the two rules of "free
ships, free goods," and "enemy's ships, enemy's goods,"
there is no logical connexion; the only connexion between
them is the jingling of a verbal antithesis. Now, every
-writer, ancient and modern, on international law, has con-
demned thernle "enemy's ships enemy's goods," as contrary
to the principles of public law. Grotius expressly condemn.
ed it, so did Bynkershock, Heineccins, and Vattel, so has
Hubner, Kluber, de Raynevel, and Hautefeuille. As
there is no logical connection between the rule " free ships
and free goods," and the rule "enemy's ships, enemy's
goods," it follows that we were under no logical nor moral
obligation to adopt the latter rule, because we held it to
be right and expedient in existing circumstances to adopt
the former rule. I said that I would assume for the sake
of argument that a belligerent state ought to have the
right of confiscating enemy's goods on board neutral ships,
and would then undertake to show that it was expedient
and politic in existing circumstances to waive for the pre-
sent the right of confiscating the goods of Russian subjects
' in the ship of a neutral. I will now proceed to do so. I
think every one must admit that it is all important for the
successful prosecution of the war now waging with Russia,
that France and England should cordially
co-operate by
sea, as well as by land. It is self-evident, that cordial
co-operation could not be attained if one power were to
act upon one rule of maritime war, and the other upon an
opposite rule. For complete harmony of action it is indis-
pensable that both powers should adopt the same rules of
maritime war. But as I have already shown, according to
the international laws of France and England, rules
of maritime war were different. The French 'were bound
- by their law of nations and by numerous treaties to re-
q,ct enemy's goods on board zientrad ships; but tlioy

wewereneutrals 0 D board
enemy'swere
ships.entitled to
con
the confiscateotb e
rt hbeangoods of neutrals
b oonodubboard
r
law of nations to respect the goods of t s
goodsenemy'sonshibposa;rdbuntewuterawl esrbeiepnst.itleldt
itsoecvoindfienscta,
nr
tee fr, no
rs 3 tee'
e,
that withwar regardolasbed towintbeutornarls,rotlhe French rules. of mari-
timees It is eastehyee
n rules of war, it would have a
that if each power had insisted upbone„nadihmenponsgsibre
for
own
cruisers of the two powers to act cordially in con-
cert. For instance, suppose that two cruisers, one an
English tha other a French, had been sailing together in
the Baltic, and that each had received instructions to act
according to the national rules of reprisal—the French
according to the French rules, the English according to the
English Jules. Suppose the two cruisers had met a neu-
tral ship, carrying from and to a non-blockaded port a
cargo of erods and merchandise of the growth and manu-
facture of Russia, but not contraband of war; both cruisers
would have stopped the ship, their respectiveofficers would
have visited it, both would, in the first instance, have
asked the same questions, both would have ascertained the
nationality of the ship ; both would then have enquired
whether there was any contraband of war on board,
finding none the French officer would then have said to
the master of the ship, "By the French law of nations,
and also by virtue of a treaty between France and your
sovereign, I have nothing more to do on board your ship,
and I wish you un bon voyage." Not so the English
officer. After his French comrade had taken leave he
would have carefully and minutely searched the ship, he
would have found that it was laden with goods and mer-
chandise of the growth and manufacture of Russia, he
would then have inquired to whom the property belonged,
how it had been acquired, and on what terms, and if he
suspected that any portion of it belonged to a Russian
subject ; if he fancied that the purchase of it from a Rus-
sian subject had not been completed according to the
strict and technical rules of English law, the English
officer would have been bound to detain the neutral ship,
would have been bound to take it to an English port, to
be adjudicated upon by English judges, according to the
English law ; then perhaps the cargo would have been
condemned, and the English officer and his crew might
have acquired considerable wealth by the confiscation
of property which the French officer and his crew had
refused to touch. Thus the French cruiser would have
permitted the ships of every neutral state—those of the
United States., of Spain, of the Northern Powers, of the
South American Republics, etc.—to pass free, though
full of valuable goods belonging to Russians, whilst
ilstthe
English cruiser, sailing in company with the r e one,
would have reaped a rich harvest of prize and Fbooty by de-
taining every one of those ships
essterxcteypttsoucrhesapseobt. elonognedtbtoe
Spain, which we are bound
other hand, I should observe that if a Russian ship had
r lawe nc Fho
of nations,
or ua
ti
oe
nr
st
,h et
oFrench ;teen
allld hparvoe.
bbeeeenn captured
entitled, byby the
thene i
perty on board the Russian ship, toe
twohsoumb
jseoeetvseroftßushessi:
pro-
perty might have belonged, whether
of the United States, of Spain, &c. ; but had our cruiser
captured a Russian ship we should have been bound, by
our law of nations, to restore all property of neutrals on
board that ship, not being contraband of war, to their
owners, provided they were not Spanish subjects. There-
fore, it is self-evident that if France and England had in-
sisted upon adhering to their respective codes of maritime
war, the difference in their rules of taking prizes and booty
would have sown the seeds of dissension, jealousy, and ill-
will between the crews of their respective fleets, and ren-
dered cordial co-operation in maritime war impossible.
Neutral states would likewise have had good reason to
complain if the cruisers of England and France, sailing in
company, had acted upon opposite rules of maritime war.
For the consequence would have been to inflict upon neu-
trals the penalties both of the French and English codes,
without granting them the immunities of either. For in-
stance, neutrals have frequently considered that the se-
verity of the English rule of confiscating enemy's goods on
board neutral ships, was in some degree mitigated by the
lenity of the English rule respecting neutrals property
found on board enemy's ships. On the other hand, neu-
trals have held that the lenity of the French rule, " free
ships free goods," was paid for to a certain extent by
the severity of the French rule, " enemy's ships enemy's
goods." Now, it a French and an English cruiser,
sailing in company, had acted upon the rules of their re-
spective codes of maritime war, the French cruiser would
have confiscated neutral property on board Russian ships,
and the English cruiser would have confiscated Russian
property on hoard neutral ships • and between the two the
unfortunate neutral would, as I have already said, have
suffered the penalties of both codes of maritime war, with-
out enjoying the immunities of either; and neutral states
would have had grounds of complaint at least as, valid as
those which gave birth to the celebrated armed neutrality
of 1780. It was therefore of paramount importance that
the FrenCh and English rules of maritime war shoulci), if
possible be assimilated, at least for the present. The,ae
were three modes by which this result might have been
accomplished. Either France might have yielded to Eng-
land, and adopted the English rules of maritime war, or
England might have yielded to France, and adopted the
French rules of maratime war; or both powers might
have made as they did make, mutual concessions. Now,
neither power could have yielded entirely to the other,
and have adopted the other's rules of maritime war with-
out doing wrong. For though both powers were entitled
to waive rights, neither power could with honour have
disregarded obligations. For instance, France could have
waived her right to confiscate neutral property on board
Russian ships, and England could have waived her
right to confiscate the property of Russians on board
neutral ships; but France could not with honour
have disregarded the obligation imposed upon her by nu-
merous treaties, as well by her law of nations, of respecting
the property Of Russians on board neutral ships, nor
could England have set aside the obligation imposed upon
her by her law of nations, of respecting neutral property,
on board Russian enemies. Therefore the only hon-
ourabie compromise which France and England
could have made with regard to their rules of
maratime war, must have been based upon a
mutual waiver of rights, and a strict fulfilment of obliga-
tions; this is the compromise which has been made. France
waived her right of confiscating neutral property on board
Russian ships; England waived her right of confiscating
Russian property on board neutral ships. The rules of
maritime war of the two nations are now the same. We
can cordially act together against the common enemy, and
neutral states have no grounds of complaint against us.
Russia has imitated our example. May that example be
followed by future belligerents in future wars. (Cheers.)
For if the precedent set by this war should lead to the
abolition of pirate-war on the ocean, and to the establish-
ment of the maritime rights of neutrals on the firm and
solid basis of reason and justice, whatever other results
this war may bring about, it would be noted for these re-
sults in the history of the law of nations as a step in civi-
lisation and a benefit to the human race. I have shown
on the assumption that a belligerent state ought to have
the right of confiscating enemy's property on board a neu-
tral ship, that it was right and proper for this country to
waive for the present that belligerent right. I have like-
wise shown that the opinions current among the majority
of civilised nations are in favour of the rule " free ships
free goods." Therefore I infer that reasonable doubt may
be entertained of the truth of the proposition contained in
the resolution of the learned gentleman, and consequently
that the house ought not, by agreeing to the motion of
the learned gentleman, to pledge the honour of the coun-
try to uphold for ever the position that "the goods of an
enemy in the ship of an enemy are lawful prize." Lastly,
I will assume, only for the sake of argument, that the
position in question is indisputably true. Nevertheless
the house ought not to assent to the resolution of the
learned gentleman, unless he can show that some great,
positive, and practical good would result from the house
agreeing to it. For we are not a body of publicists, assem-
bled for the purpose of discussing and determining abstract
questions of international law; but a body of practical
men, whose duty it is to act or determine how the Govern-
ment of this country should act in existing circumstances.
Our resolutions should, therefore, have for their end and
aim immediate action. And consequently it would be un-
wise and inexpedient to limit our freedom of action, or that
of our successors, by laying down abstract rules of action
without some well-proved necessity for so doing. Now
what great positive and practical good does the learned
gentleman expect to obtain from the house agreeing to his I
resolution ? Does he wish by means of it to compel future
Governments in future wars to insist upon confiscating
enemy's goods on board neutral ships ? But if the circum-
stances of future wars should be the same as those of the
present war, future Governments should act as we have
acted, for I have shown that we have acted rightly. There-
fore, if his resolution were to prevent them from following
our example, it would be mischievous in the extreme. On
the other hand, if in future wars it should be right and
proper to insist upon every belligerent right appertaining
to us by the law of nations, the resolution of the learned
gentleman is not wanted to enable us to do so ; because we
have not renounced nor surrendered any belligerent right
appertaining to us by the law of nations. For in the de-
claration of the 28th of March last, in which her Majesty
was graciously pleased, by the advice of her responsible
ministers, to declare that " to preserve the commerce of
neutrals from all necessary obstruction, she was willing for
the present to waive a part of the belligerent rights ap-
pertaining to her by the law of nations." Her Majesty
did not renounce or surrender any one of her belligerent
rights. For I need hardly assure the learned gentleman
that to " waive for the present a right," and to surren-
der it, are two quite distinct things. But the learned
gentlemen is not content with her Majesty's declaration to
neutral states. He asks this house to make a declaration
to neutral states in a tone and spirit very different from
that of March last, and in my opinion in a very objection-
able tone and spirit. For what does he ask the representa-
tives of the people of this country to declare to neutral
states ? He asks them to say, in so many words—" The
peculiar circumstances of this war have induced us reluct-
antly to relax the principle that the goods of an enemy in
the ship of a friend are lawful prize. The force of events
has compelled us, against our will to waive for the present
our belligerent right of confiscating Russian goods on board
Your ships. Yet, be assured, we have no intention to make
wishes, or in any way
concession ejusticession to your yyreonurr demands ; on the con-
C.:4_, we maintain that the right in question is so clearly
this count
with the law of nations, and so interwoven
aIV
/11.°i:3:ate:t aona permanent
oar:
utlaerc:ge
be inconsistent with the security or honour of
it would ,aritime renown, that to renounce or surrender
.
; tlaerefore, we are determined, whenever
in spite of will Permit, rigorously to enforce that right,
up our minds to
protests."
Inch'iinnt femonstrances and in defiance of your
we should carefullvat is
dignified. dearuguage would be neither politic nor
et, and tr:,
what with other states, we ought to make
gahwteaa
we will do. To do abetain from threats and boasts of what
:d that us
we
oe
will , a nddo slcioniitte; ba
nu
_t
fume, and to fret, one
thing "e day, and to vapour, and to
oth •er thing another d
mighty nation. sue_ ay, would be conduct unworthy of a
Falstaffragged conduct would
regiment A mild beat become one of
learned
gentleman, I • nd with every respect for the
terms of his resolution must Bay .
I svas when I listened to the
of the language of Ancient almost irresistibly reminded
leek under the Pistol, who,
, whilst eating the
this leek I will be horribly influence of Fluellen's cudgel, swore Y
" Free ships free goods," risevz,l3d. I eat, eke I swear."'B
gentle-
man, the eating of which he would
of the learned
revenge in future wars swear most horribly
by the merciless to
goods of every enemy in the ship of e confiscation -aon of the
hope that the house will not be friend. I only
hear.) lam convinced that the house co-jurors. (Hear.
sent to the resolution of the learneg ought not to con-
have shown that it contains a pro osit'entiernan• For, I
the majority of civilised nations —one
ion condemned by
ne of doubtful truth, to
the upholding of which the house ought not to
honour of the country ; that the resolution if
pledge the
be mischi , carried, may
evous, can never be useful,impolitic
and is both -
and undignified. (Loud cheers.) The right ho n
gentle-
man concluded by moving the previous question.•
Mr. R. PHILLIMORE, assenting to the wisdom of the
course pursued by the Government in waiving the Belli-
gerent rights of the Crown, could not agree with many of
the propositions of Sir W. Molesworth, between whose
speech and the declaration of her Majesty there appeared,
ho said, a remarkable discordancy. He expressed his sur-
prise that Sir William should have taken his interpreta-
tion of international law from treaties, instead of justice
and C3lllMentatus, and observed that, if his doctrine were