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cation. Yet it is abundantly obvious that this treaty merely altered, and could only alter, the previous state of the law and practice between England and Burgundy, so long as it lasted, while the practice of other nations, such as Denmark, Sweden, the Hanse Towns, Scotland, Spain, Venice, Genoa, &c., remained the same as formerly, and the practice even of England and Burgundy towards these other nations also remained the same. And it is equally manifest an ordonnance of the King of France could merely affect the French practice, while it proved against that government an aggravated deviation from the previous usage. .
Again, M. Schoell distinguishes a third epoch of maritime international law, upon the following very defective evidence afforded by detached national conventions :-A public document by which the Turkish government agreed, in 1604, that hostile goods on board French vessels should not be confiscated ; a treaty, in 1646, by which France granted a similar favour to Holland for four years, and afterwards granted, or refused, that indulgence at pleasure ; a public document by which Holland obtained from the Ottoman Porte the recognition of the old rule of the Consolato del Mare, by which neutral property was respected, though on board hostile vessels ; a treaty in 1630, obtained from Spain by Holland, by which all Dutch goods in hostile vessels were to be confiscated, but all goods on board Dutch vessels, though belonging to the enemies of Spain were to be free ; treaties between England and Portugal in 1642 and 1654, between England and France in 1655 and 1677, between England and Spain in 1667 and 1670, and between England and Holland in 1667 and 1674, by
which it was agreed, very much in consequence of the interested urgency of Holland, that the neutral flag should protect hostile goods. But these temporary arrangements, on particular occasions, between individual nations, did not alter the general rule recognised in previous practice, and founded on the obvious and almost intuitively apprehended maxim of right, that a belligerent who has been provoked by injury is entitled to enforce bis rights against his enemy by seizing his goods, whether in his own country or on the high seas. And, accordingly, in point of fact, the practice of the different nations just mentioned, towards others than the opposite contracting parties, continued, notwithstanding these treaties, to be the same as formerly, as appears from their own internal regulations, records, and works of their writers, such as Loccenius, Bynkershoek, D'Abreu, Valin ; and no such treaties were entered into by England, with the northern kingdoms of Denmark and Sweden.
Proceeding in the same course of inconsequential deductions from premises inadequate in point of fact, M. Schoell represents the celebrated Ordonnance de la Marine of Louis XIV. in 1681, as constituting a fourth epoch of maritime international law; as if the legislative enactment of any single nation could constitute a body of international law, obligatory on all the other independent states of Europe. In the same vague and inaccurate mode of apparently holding treaties absolutely and conclusively to constitute international law, and to set aside not only previous practice, but to annul legal principles, M. Schoell next distinguishes the Treaty of Utrecht, in 1713, as forming a fifth epoch in international law, and establishing the rule that
the neutral flag protects the hostile cargo. But this is another deduction unwarranted by the premises. The treaty of Utrecht in 1713 between France on the one side and Great Britain and Holland on the other, no doubt, in consequence of the influence possessed by Holland at that period, sanctioned the rule just mentioned ; and so long as that treaty remained in force, the parties who so contracted were of course bound to observe this rule towards each other. But that this treaty was not intended to establish, and did not establish, that rule, as general common international law, is manifest from the fact of the stipulation being inserted only in the treaties between Great Britain and Holland on the one side, and France on the other, and from its not being included in the other treaties, which are usually denominated the Treaty of Utrecht-such as the treaty of 1713, between Spain and Great Britain, and between Spain and France—or extended in any way to the northern kingdoms and states of the Baltic, or to the southern states of the Mediterranean and Adriatic. The eminent Spanish and French jurists of last century, also D’Abreu and Valin, clearly prove that such treaties merely constituted exceptions from, but did not permanently change, the general rule and practice observed by these nations.
Finally, upon the same erroneous theory of holding treaties or special contracts between particular nations to constitute, and from time to time to alter and form of new general or common international law, M. Schoell represents, as a sixth epoch in the progress of that law, the French Réglement of 1744, which so modified the practice of France as to declare that hostile goods on
board neutral vessels should, as formerly, be confiscated, but that the neutral vessels should be released. He notices also, under this epoch, certain treaties between France and other states, in the earlier part of the eighteenth century, and inquires into the changes in French practice. But into this detail it is unnecessary to follow him, since these treaties could only bind the nations who were parties to them, and could not, any more than French practice, of itself, constitute common international law.
So much for the evidence of the class of errors we have just been considering—those of exaggerating the extent and effects of the conventional law of nations, by assuming treaties between or among nations as chiefly, if not wholly, constituting and affording evidence of the existence and of the successive alterations of the general and common consuetudinary law of nations, as well as of the particular conventional law of nations, or jus pactitium, -of omitting all notice of the contemporary different practice of the contracting parties themselves towards the other nations, with whom no such treaties have been entered into ; and of passing over in silence the temporary nature of treaties, and the various events and accidents by which they may be legally extinguished and terminated.
We next proceed to the other class or description of errors before alluded to.
Farther Error in over-estimating the Legal Operation
and Effects of Public Treaties.
We proceed now to the second class of errors to which we formerly alluded, and by which a series of stipulations and engagements in a succession of treaties, between or among certain nations individually, is held to establish general rules binding upon other nations who have not been parties to these treaties, or only for a certain period, and for certain considerations, and upon certain conditions. And against such errors it is of importance to be on our guard, because their tendency and effect is to convert the conventional law of nations, which is, from its very nature, a particular law, into a general or common international law, and to give to the conventional law of nations, if not a legislative or statutory force, at least a legal obligatory force ; such as to bind nations to what are matters of free choice, or option, and to which they have never given their unqualified consent, so as to render the operation of the principle Pacta sunt servanda at all applicable.
Thus, as formerly noticed, some later German writers, such as Martens and Klüber, appear to have endeavoured still farther to enlarge the conventional law of nations, by creating out of separate treaties, or, by what they term analogy, deducing from various similar stipulations in treaties, a body of international law which seems to be held out as of perpetual duration, without regard to