4. You, or one of your chief officers, shall bring or send the master and pilot, and one or more principal person or persons of the company of every ship or vessel by you taken, as soon after the capture as may be, to the judge or judges of such court as aforesaid, to be examined upon oath, and make answer to the interrogatories which may be propounded, touching the interest or property of the ship or vessel, and her lading; and, at the same time, you shall deliver, or cause to be delivered, to the judge or judges, all passes, sea-briefs, charter-parties, bills of lading, cockets, letters, and other documents and writings found on board, proving the said papers, by the affidavit of yourself, or of some other person present at the capture, to be produced as they were received, without fraud, addition, subduction or embezzlement.

5. You shall keep and preserve every ship or vessel, and cargo, by you taken, until they shall, by sentence of a court properly authorized, be adjudged lawful prizes; not selling, spoiling, wasting, or diminishing the same, or breaking the bulk thereof, nor suffering any such thing to be done.

6. If you, or any of your officers or crew, shall, in cold blood, kill or maim, or by torture or otherwise, cruelly, inhumanly, and contrary to common usuage, and the practice of civilized nations in war, treat any person or persons surprized in the ship or vessel you shall take, the offender shall be severely punished.

7. You shall, by all convenient opportunities, send to Congress written accounts of the captures you shall make, with the number and names of the captives, copies of your journal from time to time, and intelligence of what may occur or be discovered concerning the designs of the enemy, and the destination, motions, and operations of their fleets and armies.

8. One-third, at least, of your whole company shall be landsmen. 9. You shall not ransom any prisoners or captives, but shall dispose of them in such manner, as the Congress, or, if that be not sitting, in the colony whither they shall be brought, as the general assembly, convention, or council, or committee of safety, of such colony shall direct.

10. You shall observe all such further instructions as Congress shall hereafter give in the premises, when you shall have notice thereof.

11. If you shall do any thing contrary to these instructions, or to others hereafter to be given, or willingly suffer such thing to be done, you shall not only forfeit your commission, and be liable to an action for breach of the condition of your bond, but be responsible to the party grieved for damages sustained by such malversation.

4

Treaty Plan of the Continental Congress, September 17, 17761

[Resolution, Articles XV, XVI, XVII, XXVI, and XXVII]

Congress took into consideration the plan of treaties to be proposed to foreign nations, . . .

Resolved, That the following plan of a treaty be proposed to His Most Christian Majesty.

ART. XV. The Merchant Ship of either of the Parties, which shall be making into a Port belonging to the Enemy of the other Ally, and concerning whose Voyage, and the Species of Goods on board her, there shall be just Grounds of Suspicion, shall be obliged to exhibit, as well upon the high Seas as in the Ports and Havens, not only her Passports, but like wise Certificates, expressly shewing that her Goods are not of the Number of those which have been prohibited, as Contraband.

ART. XVI. If by the exhibiting of the above Certificates, the other Party discover there are any of those Sorts of Goods, which are prohibited and declared Contraband, and consigned for a Port under the obedience of his Enemies, it shall not be lawfull to break up the Hatches of such Ship, or to open any Chest, Coffers, Packs, Casks, or any other Vessells found therein or to remove the smallest Parcells of her Goods, whether such Ship belong to the Subjects of France, or the Inhabitants of the said United States, unless the lading be brought on Shore in the Presence of the officers of the Court of Admiralty, and an Inventory thereof made; but there shall be no allowance to sell, exchange, or alienate the same in any manner, untill after that due and lawfull Process shall have been had against such prohibited Goods, and the Courts of Admiralty shall, by a Sentence pronounced, have confiscated the same, saving always as well the Ship itself, as any other Goods found therein, which by this Treaty, are to be esteemed free, neither may they be detained on Pretence of their being as it were infected by the prohibited Goods, much less shall they be confiscated as lawfull Prize: But if not the whole Cargo, but only Part thereof shall consist of prohibited or contraband Goods, and the Commander of the Ship shall be ready and willing to deliver them to the Captor who has discovered them, in such Case the Captor having received those Goods, shall forthwith discharge the Ship, and not hinder her by any Means freely to prosecute the Voyage on which she was bound.

ART. XVII. On the Contrary, it is agreed, that whatever shall be found to be laden by the Subjects and Inhabitants of either Party, on any Ship belonging to the Enemy of the other, or to his Subjects, although it be not of the Sort of prohibited Goods, may be confis1Journals of the Continental Congress, vol. v, pp. 768–779.

cated in the same Manner as if it belonged to the Enemy himself, except such Goods and Merchandise as were put on board such Ship before the Declaration of War, or even after such Declaration, if so be it were done without the Knowledge of such Declaration. So that the Goods of the Subjects or People of either Party, whether they be of the Nature of such as are prohibited, or otherwise which, as is aforesaid, were put on board any Ship belonging to an Enemy before the War, or after the Declaration of it, without the Knowledge of it, shall no wise be liable to Confiscation, but shall well and truly be restored without delay to the Proprietors demanding the same; but so as that if the said Merchandises be contraband, it shall not be any Ways lawfull to carry them afterwards to any Ports belonging to the Enemy.

ART. XXVI. It shall be lawfull for all and Singular the Subjects of the most Christian King, and the Citizens, People, and Inhabitants of the said States, to Sail with their Ships, with all manner of Liberty and Security; no distinction being made, who are the Proprietors of the Merchandizes laden thereon from any Port, to the Places of those who now are, or hereafter shall be at Enmity with the most Christian King, or the United States. It shall likewise be lawfull for the Subjects and Inhabitants aforesaid, to sail with the Ships and Merchandizes aforementioned; and to trade with the same Liberty, and Security, from the Places, Ports, and Havens of those who are Enemies of both or either Party, without any opposition or Disturbance whatsoever, not only directly from the Places of the Enemy aforementioned to neutral Places; but also from one Place belonging to an Enemy, to another Place belonging to an Enemy, whether they be under the Jurisdiction of the same Prince or under Several: And it is hereby Stipulated that free Ships shall also give a Freedom to Goods, and that every Thing shall be deemed to be free and exempt, which shall be found on board the Ships, belonging to the Subjects of either of the Confederates; although the whole Lading or any Part thereof, should appertain to the Enemies of Either, Contraband Goods being always excepted. It is also agreed in like manner, that the same Liberty, be extended to Persons, who are on board a free Ship with this Effect, that although they be Enemies to both or either Party, they are not to be taken out of that free Ship, unless they are Soldiers, and in actual Service of the Enemies.

ART. XXVII. This Liberty of Navigation and Commerce shall extend to all Kinds of Merchandizes, excepting those only which are distinguished by the Name of Contraband: and under this Name of Contraband, or prohibited Goods, shall be comprehended Arms, Great Guns, Bombs with their Fuzees, and other Things belonging to them; Fire Balls, Gunpowder, Match, Cannon Ball, Pikes, Swords,

Lances, Spears, Halberds, Mortars, Petards, Granadoes, Saltpetre, Musketts, Muskett Balls, Helmets, Head Pieces, Breast Plates, Coats of Mail, and the like Kind of Arms proper for arming Soldiers, Muskett rests, Belts, Horses with their Furniture, and all other war like Instruments whatsoever. These Merchandizes which follow, shall not be reckoned among Contraband or prohibited Goods; that is to Say, all Sorts of Cloths, and all other Manufactures woven of any Wool, Flax, Silk, Cotton, or any other Material whatever; all Kinds of Wearing apparell, together with the Species whereof they are used to be made; Gold and Silver, as well coined as uncoined, Tin, Iron, Lead, Copper, Brass, Coals; as also Wheat and Barley, and any other Kind of Corn and Pulse; Tobacco, and likewise all manner of Spices; Salted and Smoked Flesh, Salted Fish, Cheese and Butter, Beer, Oils, Wines, Sugars, and all Sorts of Salt; and in general, all Provisions which Serve for the Nourishment of Mankind, and the Sustenance of Life: Furthermore, all Kinds of Cotton, Hemp, Flax, Tar, Pitch, Ropes, Cables, Sails, Sail Cloth, Anchors, and any Parts of Anchors; also Ships' Masts, Planks, Boards, and Beams, of what Tree Soever; and all other Things proper either for building or repairing Ships, and all other Goods whatsoever which have not been worked into the Form of any Instrument or Thing prepared for War, by Land or by Sea, shall not be reputed Contraband, much less such as have been already wrought and made up for any other use; all which shall wholly be reckoned among free Goods; as likewise all other Merchandizes and Things which are not comprehended, and particularly mentioned in the foregoing Enumeration of Contraband Goods; So that they may be transported and carried in the freest Manner by the Subjects of both Confederates, even to Places belonging to an Enemy, such Towns and Places being only excepted as are at that time besieged, blocked up, or invested.

[The following articles of a treaty of 1713, printed as an annex, contain provisions similar to those in the treaty plan.]

[Annex]

Treaty of Commerce and Navigation between Great Britain and France, April 11, 17131

[Articles XVII, XVIII, XIX, XX, and XXVII]

XVII

It shall be lawful for all and singular the Subjects of the Queen of Great Britain, and of the most Christian King, to sail with their Ships, with all manner of Liberty and Security, no Distinction being 'Journals of the House of Commons, 1711–1714, vol. xvii, pp. 331–338.

made who are the Proprietors of the Merchandizes laden thereon, from any Port to the Places of those who are now, or shall be hereafter, at Enmity with the Queen of Great Britain, or the most Christian King: It shall likewise be lawful for the Subjects and Inhabitants aforesaid to sail with the Ships and Merchandizes aforementioned, and to trade, with the same Liberty and Security, from the Places, Ports, and Havens, of those who are Enemies of both, or of either, Party, without any Opposition or Disturbance whatsoever, not only directly from the Places of the Enemy afore-mentioned, to a neutral Place, but also from one Place belonging to an Enemy, to another Place belonging to an Enemy, whether they be under the Jurisdiction of the same Prince, or under several: And as it is now stipulated, concerning Ships and Goods, That free Ships shall also give a Freedom to Goods; and that every thing shall be deemed to be free and exempt, which shall be found on board the Ships belonging to the Subjects of either of the Confederates, although the whole Lading, or any Part thereof, should appertain to the Enemies of either of their Majesties; contraband Goods being always excepted; on the Discovery whereof, Matters shall be managed according to the Sense of the subsequent Articles; it is also agreed, in like manner, That the same Liberty be extended to Persons who are on board a free Ship; with this Effect, That, although they be Enemies to both, or to either, Party, they are not to be taken out of that free Ship, unless they are Soldiers, and in actual Service of the Enemies.

XVIII

This Liberty of Navigation and Commerce shall extend to all Kinds of Merchandizes; excepting those only which follow in the next Article, and which are signified by the Name of Contraband.

XIX

Under this Name of contraband, or prohibited, Goods, shall be comprehended Arms, great Guns, Bombs with their Fusees, and other Things belonging to them, Fire-ball, Gunpowder, Match, Cannon-ball, Pikes, Swords, Lances, Spears, Halberds, Mortars, Petards, Granadoes, Saltpetre, Musquet, Musquet-ball, Helmets, Head-pieces, Breast-plates, Coats of Mail, and the like Kinds of Arms proper for arming Soldiers; Musquet-rests, Belts, Horses with their Furniture; and all other warlike Instruments whatever.

XX

These Merchandizes which follow shall not be reckoned among prohibited Goods; that is to say, All Sorts of Cloths, and all other Manufactures woven of any Wool, Flax, Silk, Cotton, or any other