The Enquirer

FOR THE ENQUIRER.
CONGRESS AT PRAGUE.

It has been said, that the Emperor of France, means to make the 17th art. of the treaty of Utrecht, the basis, on his part, of the intended negotiation.

This treaty was a treaty of amity and commerce, made in the year 1713, between France and Great Britain, and signed probably, on the same day, with the treaty of peace, between the same powers. The events of the war, terminated by this latter treaty, are well known. The British were successful in every siege, and victorious in every battle.--Louis the 14th was at one period alarmed even for the safety of his Capital.

At the conclusion of this war, which carried the military glory of Great Britain to a point which it had not reached since the reign of Henry the 5th, and which it has never since attained; it was expressly agreed, in the article quoted above, "that free ships should make free goods" and "that neutrals might proceed without molestation from one port to another of the same belligerent."

The treaty of commerce, as well as the treaty of peace, occasioned great discontent and clamor in the British parliament. The History of that time has recorded the objections to the former; but there is not one of them, which has any relation to the article under consideration. At that time it had not occurred to the statesmen of the British cabinet, that the existence of the Empire depended on its supremacy at sea, and that this supremacy was to be supported by the plunder of the world.

In the year 1756, a commercial treaty concluded between France and Great Britain contains an article copied word for word from the 15th art. of the treaty of Utrecht.

In the year 1797, during the negotiations at Lisle, it was proposed on the part of Great Britain, to insert in the treaty then under discussion, a confirmation of the treaty of Utrecht: her minister, Malmsbury, observing that this treaty "had become the law of nations."

In the long interval between the years 1713, and 1797, Great Britain had in perhaps twelve different instances recognised the principle, which is announced as the basis of the negotiation at Prague, by treaties: containing either an express stipulation corresponding with the 17th art. of the treaty of Utrecht, or a confirmation of that treaty.

In the year 1780, the Empress of Russia, grandmother of the present Emperor Alexander, proposed to the Northern powers of Europe, the equipment of a formidable naval force for the purpose of supporting the identical principles laid down in the 17th art. of the treaty of Utrecht. The parties stvled themselves the "armed neutrality." and the alliance proposed by Russia, was acceded to by Denmark, Sweden, Prussia, the United Provinces, Austria, Portugal and Naples, and approved if not acceded to by France and Spain---It is not going too far to say that every commercial nation in Europe has repeatedly given its unequivocal sanction to the principle that "free ships make free goods" -which is the principle of the treaty of Utrecht, the object of the armed neutrality, and the intended basis, as is said, of the negotiation at Prague.

In all the treaties in which the United States are parties, the same principle has been established where the assent of the other contracting party, could be obtained-- as the treaties with France, Holland and Prussia will shew.

In the year 1793, Mr. J. then Secretary of State in a letter to Mr. Genet, represents the principle in question as one which derives its authority, from compact or treaty only, and not from the law of nations--by virtue of which he conceives the goods of an enemy on board the vessel of a friend may be seized and condemned as prize.

In the year 1794, the treaty between the United States and Great Britain, commonly called Jay's treaty, is founded on the supposition, that neutral vessels containing enemy's property may be seized and the property condemned." The 17th art. provides that in all cases where vessels shall be captured or detained on just suspicion of having enemy's property on board, the part only which belongs to the enemy shall be made prize, and the vessel shall then be at liberty to proceed with the remainder without any impediment.

What Mr. Jay's instructions were on this point, is not known, at least to this writer.-- The Secretary of State in the preceding year had expressed in the letter to Mr. Genet, before noticed, his disapprobation of what he admits to be the rule, and tells him that we are "endeavoring to advance" to the establishment of the opposite doctrine. The presumption is that Mr. Jay was instructed to press upon the British government, this opposite doctrine, if there was a chance for success.

This is a rough, but faithful sketch of the views that have been taken of this most interesting subject by the governments of Europe, during the last hundred years, and by the United States since the declaration of independence,

The inference seems to be obvious and fair; that Bonaparte in the selection of the 17th art. of the treaty of Utrecht, as the basis of his negotiation, does not press upon his allied enemies a new doctrine, fabricated to promote his own views, but one, well known to all Europe, sanctioned at different times by all the maritime powers, and especially by Great Britain, and announced by Russia and Prussia in the year 1780 as a great principle which they were resolved to maintain by force. The allied princes therefore may, without any degradation, meet the Emperor of France on the ground of the intended basis of the negotiation at Prague, because in truth they will then stand on the very ground on which their respective states voluntarily placed themselves upwards of 30 years ago.

If Bonaparte shall succeed in establishing the 17th art. of the treaty of Utrecht, as a part of the law of nations, which Lord Malmsbury affirmed it to be, he will have made some atonement for the mischief which his ambition has brought upon mankind. He will then have deserved, so far, but no farther, the title which has been gratuitously bestowed on the Emperor Alexander, because he will have delivered the world from a maritime tyranny, which originating in base and sordid motives is more despicable, tho' less fatal, than that which springs from the ambition, however foolish, or however wicked, of glory and dominion.

Perhaps there is no principle, of so much importance to the repose of the world, and the comfort of mankind, which rests on a more slender foundation, than that under which Great Britain claims the right of seizing the goods of her Enemy in neutral vessels.

The Law of nations is that system of principles and regulations founded in reason and general convenience, by which the intercourse between independent states ought to be governed.

The treaties before referred to prove unequivocally the general and continued conviction of all Europe, as well as of the U. States, that the principle that free ships shall make free goods is reasonable and convenient. This consideration ought to be conclusive.

The reasons which have produced this conviction are obvious. if the rights of neutrals were never to be invaded, "but in cases of absolute necessity, the only cases, says Grotius, in which 'they can be lawfully invaded. (B 3. c. 17. S. 1.) if in fact the goods of an enemy could be carried in neutral ships, two consequences, most auspicious to the happiness of the world, would necessarily result. The first is that wars would be less frequent, as the great cause of collision between belligerents and neutrals would be removed: and the second is, that wars would be much less distressing, because the individuals of a belligerent state, might yet carry on their trade in Neutral ships.

In this view of the subject, the opinions; or rather the dicta, of the jurists, on whose authority the opponents of neutral rights rely, cannot be of much consequence. The authority of all Europe, and especially of that government which calls them to its aid, is directly against them. Treaties are the work of statesmen, selected generally for negotiation on account of their practical knowledge of the world, and its affairs, as well as on account of their learning and abilities. When therefore we discern the rule in question for nearly a century the basis of so many treaties, recognised over and over again by every maritime nation, and actually distinguished from all other principles of the law of nations by a grand confederacy of States armed for its support, the inference is clear and irresistible that the rule itself must in its operations be useful & beneficial to mankind. This inference cannot be resisted by a few lines from (Grotius, Bynkershoek, & Vattel, each of whom as to the extent of the belligerent right, differ from the other two-the first being of opinion that the vessel is forfeited. if the goods are put on board with the consent of the master-the second, that the vessel cannot be condemned, even if the master should have undertaken to transport them, but that he loses his freight--the third, that the vessel is safe. but that the master is entitled to the price of transportation.-A few words on this subject may be amusing, if not useful to those who have no leisure to engage in a full examination for themselves.

Grotius (Book 3d. ch. 6. Sn. 6.) has these words only. "The vessels belonging to neutrals are not good prize, because they have enemy's property on board, unless they have been placed there by the consent of the master."' It is certain that in his opinion the goods themselves might be condemned; but whether this opinion or dictum, for it is no more, was founded on his deliberate conviction of what was right, or his knowledge of the common practice of that early day, does not distinctly appear. The probability is that he referred to the practice only; because in fact, his great work celebrated as it is, may be regarded rather as an historical detail of the usages prevailing among the nations of Europe, than an exposition of the principles of the Law of nations, on the ground of reason and convenience.

The remark of Bynkershoek (Quaest. Jur. pub. lib. 1. c. 2) to this effect is entirely correct, & seems peculiarly applicable to him in relation to the point under consideration. Bynkershoek however has himself fallen into the same error: and often quotes even the ordinances of the States General as shewing what the law of nations is. without any investigation of the reason and principle of what he thus supposes to be law.

Bynkershoek in speaking upon this great question, he gives his opinion, (qu. 1. c. 13 ) that the enemy's property may be seized on board of neutral ships: but what he says deserves not the name of reasoning; & the weight of his authority such as it may be is very much impaired by his acknowledgement. that after he had written the little that he says on one of the most important questions, that can exist among nations, he had read the work of Heineccius. whom he calls a most celebrated man. but that he yet adheres to his own opinion. Heineccius therefore was offered to him. Of Heineccius I have no knowledge: and just knowledge enough of Bynkershoek to suspect that no small portion of his celebrity is due to the language in which he wrote.

The next distinguished writer, relied on by the partizans of the British principle is Vattel: a sensible man, who often saw what was right, without having the courage to declare it.

He too like his predecessors Grotius and Byrkershoek. contents himself with a very brief exposition of what he understood the law to be All that he states (Book 3. c. 7. S. 114.) on the point is expressed in one line and a half. "If the goods of an enemy, says he. are found in a neutral vessel. they may by the law of war be seized." There is no reasoning. no inquiry, no practical view of the principle. So the law is, he says, and there he leaves it. Such is the text: and in the body of the work, he appears to follow the manner as well as the matter, of the writers who had gone before him. Yet his real opinion, steals out as it were in a few words at the bottom of a note of several lines. The note represents Briel a Dutch embassador as stating in his correspondence with the Pensionary DeWitt, that he had so far succeeded in his negociation with France. that thereafter, Enemy's goods only on board of the Hollander would be condemned, and that the vessel & the residue of the cargo should be released, but that he could not succeed in establishing the principle that free ships make free goods." "This last law, says Vattel. would be more natural than the first." The authority of Vattel's opinion, therefore. if it be worth any thing. is against the doctrine of the British. whom he praises with great liberality, and who have returned him. compliments. I have no doubt, with entire good will.

A singular instance of this sort of good will on the part of a British writer towards Vattel is before me. Marshal (on Insurance Book 1. c. 8. Sn. 5.) says that Vattel: French author. of the first eminence maintains by irrefragable arguments, not only the right of visitation and search. but that a neutral ship, resisting such search, might for that reason only be condemned."' Vattel, it is true, so expounds the law: but so far from maintaining his opinion by irrefragable arguments. he urges no argument whatever. This palpable misrepresentation reflects no credit on the cause. in which it has been employed.

The same writer. loses his liberality and politeness as soon as he notices Hubner, who contended that free ships make free goods. His work is cavalierly denounced as a curious production, more remarkable for ingenuity than for candor and fair reasoning. Hubner then it seems does reason on this subject a' d what is more, reasons ingeniously. and what is still more, reasons so ingeniously that he is abused. instead of being answered

Azuni says that he is the first man who has reasoned to any extent on this part of public law.

To support Heineccius, and Hubner. with whose works I am not acquainted, and Vattel, whom I consider as in truth an advocate for the freedom of the flag. Martens professor of Law in the University of Gottingen, may be brought forward. He makes as short work with this great question as any of his predecessors. and simply says that free ships make free goods. He mentions in a note that Grotius was of a different opinion, which says he was supported by the practice of his time.

Azuni is of the same opinion with Martens, Heineccius, Hubner and Vattel, and supports that opinion with much zeal. and information, but without much method, or ability. The influence of his opinion is however much diminished by the warmth which he displays against G. Britain, and his entire devotion to the politics of France.

On the whole the weight of authority on both sides excluding that of treaties appears to be nearly equiponderant: b t. in the language of Johnson. it is not worth while to mark the trepidations of the balance, as in truth, there is no authority, putting treaties aside, but that of reason, justice, convenience. and humanity.

These remarks are offered to the public with three different views, The first is, to guard those who may chance to read them, from the precipitate adoption of opinions adverse to the best interests of their Country, into which they may be led by the habit of condemning all that Bonaparte does, and of opposing every principle for which he contends. It will not be said that Bonaparte may not be sometimes in the right. In the present instance he unquestionably is right: and there is some chance, a remote possibility, that his worst enemies may think so, when they cannot condemn him without pronouncing a sentence equally severe on all the powers now in arms against him.

The second object of these remarks, is to lay before the public, facts about which, there can be no dispute, and which will shew in one instance at least, but that of the most important character, how little influence Bonaparte has had on the councils of this country. He has for years been contending. whether sincerely or not is immaterial, for the freedom of the seas. He has endeavored to cut off all commerce between the continent and G. Britain, until the latter would agree to respect the right of neutrals. He has called on the U S. to assert these rights, and insulted us for not co-operating with him. Our government knew full well the value of the rights, which we were thus required to maintain: it knew that the freedom of the flag, would cover the ocean with our ships, and that commerce thus freed from her shackles would pour the treasures of the world into the coffers of our citizens. But on this subject it has been silent. The reasons of this silence are not material in my view of the case. I speak only of the fact: and we all know that our government has never entered into a serious discussion. of this topic with G. Britain. Does this statement shew any thing like the influence of Bonaparte--any thing like a devotion on the part of our government to the views and policy of France?

It has indeed been suggested in a London paper, that our mission to St. Petersburg, under the Russian mediation. was in foot a mission to the Congress at Prague with a
view to support Bonaparte in his claim that free ships shall make free goods. The same idea has been suggested or published here.

This for obvious reasons is a mere delusion.

In the first place at the time of the mission, the Congress at Prague could not have been anticipated. even by Bonaparte himself, and in the second. our government. whatever it may think of the principle, has certainly never manifested a disposition to support it, at the expence and hazard of a war.

The third object of these remarks is. to point out the probable effect of a peace. in Europe, founded on the basis, on which it is said the negotiations are to commence.--

It is taken for granted that Bonaparte will adhere to this basis, because, if he does not, he must acknowledge in the face of the world that after all his labours, sufferings. & victories, he is entirely defeated and disappointed.

G. Britain will accede to this basis or not.

If she does, we shall be left to combat against her undivided strength. But our commerce will be carried under neutral flags. and G. Britain will be engaged in the improbable task of forcing into the hands of her great enemy. that trade of which with common discretion, and good faith, she might have had almost a monopoly. G. Britain must then stand by and see France increasing her ships, and seamen, or violate her engagement, to respect the neutral Flag and renew the war. This alternative may be avoided by making peace with the U. S. and as G. Britain if she accedes to the treaty of Prague, will have no want of seamen, nor any occasion for orders in council or blockades. there will be no motive with her for continuing the war. On the contrary it will be obviously her interest to bring it to a conclusion. How far she may be misled by feelings towards us, not indulged towards other nations. or by erroneous speculations as to the continuance of the union and the state of parties in America, time alone can disclose.

If G. Britain does not accede to the treaty thus formed at Prague, our prospect of an accommodation is perhaps still better. In that event, the war between France and G. Britain will still continue. Russia and Prussia (if Prussia survives the negotiation) will be in a state of neutrality. and their ships will be immediately employed in carrying on the coasting and foreign trade of France. G. Britain adhering to the principle, for the preservation of which she refused to join the Congress at Prague, will seize every ship having French property on board. The consequence will be if Russia and Prussia, shall have guaranteed their observance of the treaty of Prague. that they will both be involved in a war with G. Britain, and allies in fact of the French Emperor with whom they are now at war. all this must present itself to the view of the British ministry, and must induce them to enter into a negotiation for peace with us, unless they mean to make a great and bold distance, at once to all the powers of the earth.

But let not speculations like these have any influence on our conduct public or private. Let every effort be made for a vigorous prosecution of the war, and. let every citizen who has a family be as certain now from choice, as he will be from necessity hereafter if the war shall continue seven years.

You may perhaps hear from me shortly on the subject of blockades; as it is manifest that the question concerning the inviolability of the flag. loses half its importance if the British doctrine of blockade be correct

A. B.