"The claimant disdains to found his right in any other way than upon the treaty. My idea is, that all the marine treaties, which subsist between two friendly powers, form but one code of laws, one great confederation, one indivisible union. They are, if it is lawful to make use of these sacred words, the Bible, the Book, or the Testament of the social contract between the nations, to be maintained inviolably, as a system, whereof we cannot break one part without dissolving the whole.
"The Dutch subjects have, in virtue of the treaty, particular privileges, superior to those of every other country, but they may overleap the bounds of these privileges, and from that time they ought to be weighed in the balance, like other neutral nations. To be found under a convoy is not, in itself, an infraction of the treaty, but the conduct of this convoy is to be considered.
"The fifth article of the treaty of 1674 is reciprocal. 'If any ship, belonging to the subjects of his Majesty of Great Britain, shall in open sea, or elsewhere, out of the dominions of the said States, meet any ships of war of the Lords the States, or privateers belonging to their subjects, the said ships of the Lords the States, or of their subjects, shall keep at a convenient distance, and only send out their boat, with two or three men only, to go on board such ships or vessels of the subjects of his Majesty, in order that the passport, or sea-brief, concerning the property thereof, according to the form hereunder annexed, may be produced to them, by the captain or master of such ship or vessel, belonging to the subjects of his Majesty; and the said ships, so producing the same, shall freely pass; and it shall not be lawful to molest, search, detain, or force such ship from her intended voyage. And the subjects of the Lords the States shall enjoy in all things, the same liberty and immunity, they in like manner showing their passport, or sea-brief, made out according to the form prescribed at the foot of this treaty.'
"The sixth article is, 'If any ship or vessel, belonging to the English or other subjects of Great Britain, shall be met making into any port belonging to an enemy of the Lords the States, or, on the other side, if any ship belonging to the United Provinces of the Netherlands, or other subjects of the Lords the States, shall be met in her way, making into any port under the obedience of the enemies of his said Majesty, such ships shall show, not only a passport, or sea-brief, according to the form hereunder subscribed, wherewith she is to be furnished, but also her certificate or cocket, containing the particulars of the goods on board, in the usual form, by the officers of the customs of that port, from whence she came; whereby it may be known whether she is laden with any of the goods prohibited by the third article of this treaty.'
"Such are the terms of this treaty, which this court will not declare to be now in force; but one of the parties may renounce it; and it would be from that time, so far forth, a good cause of annulling it. It could not ever have been the intention of the contracting parties, that the merchant ships of the subjects of the States should become the transport vessels for the service of the King of France, nor that the men-of-war of the States should serve as a convoy to them. It is impossible to form an idea more unworthy of the sovereignty of the States. The idea of granting a convoy to all Dutch ships destined for the port of an enemy is offensive, and still more aggravating, when accompanied with resistance, or orders to resist, when they go so far as to reject ipso facto all the ordinary ways of public justice, and to set at nought the articles, which had been established to prevent the consequences of the intervention of neuters, as parties in a war, by public acts; articles which stipulate a legal procedure for discussing all the points in controversy, before the courts of admiralty reciprocally; and in case the parties should not be satisfied, they ought to be finally heard by their respective sovereigns in council. Such is the tenor of the twelfth article of the treaty of 1674.
"In the present state of the cause, this court will not say, nevertheless, that the States have annulled the treaty; because the orders of Admiral Byland have not appeared, and his conduct may be disavowed by the States; but even the granting of a convoy, and above all of a squadron, is essentially offensive, since the Dutch subjects are already sufficiently armed by the treaty, and by the methods of redress prescribed, which are the same with all maritime nations. The party complaining follows the ship and the papers, which she has on board, into the jurisdiction of the place and country where he is carried, as the subject, who in the nature of things and proceedings, can only of necessity be judged there, where the original proofs exist; the judges specially constituted, for the decision of prizes, both in the first instance and in the last resort, are, by common consent, charged to hear and determine all national differences between powers who are friends and allies, like the Council of Amphyctions in ancient Greece. But seamen do not well comprehend this language. They speak roughly, like the mouths of their cannons. If this vessel had fired upon the boat, and any one had thereby lost his life, I think I should not have hesitated to condemn her upon general principles. Neither Admiral Byland, nor his instructions, are before me. I know not how to give a sentence against him or his vessels; nevertheless, he ought not to have fired upon the boat of Commodore Fielding; but he was bound to send to him his boat, and to propose an interview and an amicable conference. He might have made him a visit, which he immediately would have returned; and all the captains of the Dutch merchant ships might have been ordered on board the English Commodore, to produce their passports and cockets. The effect of his resistance is thus the cause, that, although I do not declare the treaty null generally, nevertheless, in retaliation to these vessels taken in time of resistance, I ought to declare the ship forfeited of its privilege, and foreclosed of the treaty, by the act of M. Byland. There was certainly never any vessel under convoy without instructions, at least in her course, and without signals. If the claimants had not withheld them, it would have appeared, whether the Dutch Admiral ought, or ought not to have escorted these ships even into the ports of France, which would have aggravated the offence against the treaty. A convoy of a single ship, destined for the States, destined for the Colonies of the States, or loaded generally with innocent commodities, is, in itself, inoffensive; because, in these times, there are in all the seas little pirates, furnished with all sorts of commissions, American, French, Spanish, and English; but a squadron of a line of battle ships, and which appears force [?] even to the treaty, which they claim the benefit of, is a serious affair. To engage in hostilities is not the way of protecting commerce; and those who have solicited the States to grant such a convoy, were rather factious Americans, or intriguing French politicians, than solid, sensible Dutchmen, true and real friends of their country. There is certainly among them a number of worthy people, who can never desire to become, in fact, a Province, under the obedience of the King of France, or his resident Minister.
"The case of the Swedish convoy is not applicable to this case. That convoy had not made any resistance. The ships entered the Downs by the bad weather, and were there taken without their convoy, which came to anchor near them. This was represented, and the course of justice was followed. The ship's papers were produced directly in this court, the requisites were done, and the causes finally discussed according to the style of the admiralty, velo levato; no time was lost, either in contesting the justice or demanding right; and the captains of the ships returned contented with their vessels after they had been paid the freight, as well as the expense; and the naval stores, which they had on board, were purchased by the government, by virtue of powers granted to the Council of the Royal Marine, by act of Parliament, in conformity to acts of Parliament in former wars.
"The question, whether the hemp and flax are contraband, is clear. Both of them have been adjudged such on all former occasions, when the quantity has been considerable, and particularly, when they are not of the produce of the country of the party which carries them. The flax is as necessary for sails, as the hemp for cordage; and if this court has once ordered that flax should be sold to the Commissioners of the navy, it was because it was of little value, and in very small quantity. I am sorry to learn, that the Navy Board makes any difficulty upon this subject. The iron on board was only for ballast."
I cannot go through with the whole of this decree for want of time; but the following curious and convenient doctrine ought not to be omitted.
"That, which in the natural or intellectual world is called quality, is not relative. Good and evil are relative. Everything is what it is, and acquires its denomination from comparison, degree, manner, quality, place, time, person, fault, &c. &c. These relations constitute the metaphysical essence of every complex idea in the human understanding. Hence that source, without end, of disputes, the glory of the bar, and of the schools of philosophy.