Treaties be tween Hol Powers. stipulation continued to form the conventional law between the two nations until the revision of the treaty in 1810, when the stipulation in question was omitted.▾ In 1677, Charles II being secretly allied with Louis XIV, whilst the latter was openly at war with Holland, a treaty of navigation and commerce was concluded at St. Germain between Great Britain and France, by which the two maxims of free ships free goods, and enemy ships enemy goods, were adopted by the contracting parties. The motive for this stipulation, on the part of England, was to secure her trade with Holland and other countries from depredation by French cruizers, whilst the assent of France to this deviation from her ordinary prize law was secured by the admission of French manufactures into England." During the period which elapsed between the peace of land and other Westphalia, by which the independence of the United Provinces was finally acknowledged by Spain, and that of Utrecht, by which it was secured against France, the external policy of that republic fluctuated between the two great objects of maintaining the equilibrium of Europe, as the only security for her national existence, and that of promoting the interests of her commerce, colonies, navigation and fisheries, as the main foundations of her national wealth, strength, and prosperity. The interests of Holland, both as a belligerent and a neutral power, induced her to seek the establishment of the principle of free ships free goods as the general law, by which she would gain more whilst others were engaged in war and the Republic should remain neutral, than she would lose when this state of things was reversed. This principle was first conceded by England to Holland by the treaty of commerce concluded at the Hague in 1668, as the price of an alliance between the V Scholl, Histoire abrégée des Traités de Paix. tom. x. p. 45. w Flassan, Histoire de la Diplomatie Française, tom. iii. p. 423. two countries against France. It was again renewed in the treaty of commerce concluded in 1674, and continued to form the rule observed between the two countries until the war of 1756 broke out between France and Great Britain, when the refusal of Holland to fulfil the stipulations contained in the treaties of defensive alliance and guaranty between the republic and the British crown induced the latter to refuse any longer to recognize the principle.y The navigation act, passed by the English parliament under the commonwealth in 1651, and afterwards renewed in the reign of Charles II, was designed to secure to British shipping a portion of the carrying trade which had been hitherto monopolized by Holland. Her great minister John De Witt sought to parry the fatal blow, thus aimed at the commerce and navigation of his country, by inducing France to relax the severe rules of her prize code, and adopt his favorite maxim of free ships free goods. The states general had obtained as early as 1646 a temporary suspension of the ancient French ordinances, by which a neutral ship carrying enemy's goods was made liable to confiscation together with a recognition of the rule of free ships free goods. This latter stipulation not having been duly observed on the part of France gave rise to remonstrances from the Dutch. The Dutch negotiator in Paris, in his correspondence with De Witt, states that he obtained in 1658 "the repeal of the pretended French law, que la robe d'ennemi confisque celui d'ami; so that if for the future there should be found in a free Dutch vessel effects belonging to the enemies of France, these effects alone will be The Dutch minister De Witt absolutely refused to sign the treaty of defensive alliance, unless it was preceded by a promise on the part of Sir W. Temple the British negotiator to conclude a treaty of commerce containing the concession. (Sir W. Temple's Letters to Lord Arlington, Feb. 12, 1668, Jan. 24, 1668. Temple's Works, vol. i. p. 317.) Jenkinson, Discourse, etc. pp. 67-73. ed. 1801. Lettres et Negotiations de Jean de Witt, tom. i. p. 108. and Treaties be other confiscable, and the ship with the other goods will be restored; for it is impossible to obtain the 24th article of my instructions, where it is said that the freedom of the ship ought to free the cargo, even if belonging to an enemy."a This concession was at last obtained by the commercial treaty between France and Holland signed at the same time with the peace of Nimiguen in 1678, confirmed by the treaty of Ryswick, 1697, which finally established the rule of free ships free goods, and enemy ships enemy goods, between the two powers.b In 1655 a treaty of navigation and commerce was contween France cluded between France and the Hanseatic towns, by which Powers. the ancient privileges accorded to the Teutonic Hanse were renewed and confirmed. The third article provided que la robe de l'ennemi ne confisquoit pas la robe de l'ami; that the goods belonging the inhabitants of the Hanseatic towns found in the ships of an enemy should be free, as well as enemy's goods found in a Hanseatic vessel, except contraband of war, or in case of spoliation of papers or resistance to visitation and search. This concession was revoked by the treaty between France and the Hanseatic towns in 1716, which again rendered liable to capture enemy goods in neutral vessels, exempting the vessels only from confiscation.d Treaties of The two maxims of free ships free goods, and enemy ships enemy goods, were recognized in the treaty of commerce between France and Denmark of 1663, art. 27; and of alliance with Sweden of 1672, art. 19.e By the treaty of 1670, art. 20, between Sweden and the Baltic Denmark the ancient rule of the Consolato del Mare is Powers be tween them selves and with others. Dumont, Corps diplomatique, tom. vi. p. 1. p. 342. tanea Maritima, p. 121, note. Robinson's Collec b Flassan, Histoire de la Diplomatie Française, tom. iii. p. 451. a Dumont, Corps diplomatique, tom. viii. p. i. p. 478. Flassan, Histoire de la Diplomatie Française, tom. iii. p. 395. adopted, by which the goods of a neutral found on board of an enemy ship are declared free, and those of an enemy on board of a neutral ship are subjected to capture and confiscation. The same maxims are adopted by the treaties between England and Sweden of 1661, 1666, and 1670; and between England and Denmark of 1670, art. 20.g Treaties of commerce at Such was the state of the conventional law between the four great maritime powers of France, Spain, Great Britain Utrecht, 1713. and Holland, and between them and the Baltic States, when the treaties of Utrecht, 1713, were concluded between the former and the other principal European powers. The main object of the long war which was terminated by the peace of Utrecht, had been the disputed succession to the dominions of the Spanish monarchy; and the principal object of the treaties of peace, was the regulation of that succession, and other territorial arrangements, consistently with the maintenance of the balance of power in Europe. The treaties of peace signed at Utrecht were immediately followed by separate treaties of navigation and commerce between France and Great Britain, between Great Britain. and Holland, and between France and Holland, in which the two maxims of free ships free goods, and enemy ships enemy goods were adopted as between these powers. The 1 Dumont, Corps diplomatique, tom. vii. p. i. p. 132. Martens, Manuel Diplomatique sur le dernier état de la controverse concernant les Droits des Neutres sur Mer, pp. 43, 60, 62. The Baltic powers first adopted the rule of free ships free goods, among themselves, by the treaty of armed neutrality of 1780. The Danish Ordinance of 1659, prescribes a form of certificate for goods laden on board of vessels the property of Danish subjects, "that the goods also belong to Danish subjects," a precaution which would have been needless if the vessel protected the cargo. It adopts also the rule of the French prize code enemy ships enemy goods, and confiscates neutral ships laden with the goods of an enemy. (Heineccius de Navib. Ob. Vect. Merc. Vetit. Comm. cap. ii, § viii) By the Sweedish Ordinance of 1715, enemy's goods in whatever ships taken, are confiscated as well as neutral goods in enemy's ships. (Robinson's Collectanea Maritima, p. 171.) § 15 Contraband of war. vention and u became con the 18th cen treaty of peace signed at Utrecht between Great Britain and Spain on the 13th July, 1713, was also followed by a treaty of commerce concluded the 28th November, (9th December,) 1713, between these two powers. Both these treaties are equally silent upon the present question.h Certain articles, which under the denomination of contraband of war, are forbidden by the law of nations from being carried by neutrals to the enemy, are excepted from the general freedom of neutral commerce stipulated by the above mentioned treaties, beginning with that of the Pyré nées, and ending with the treaties of Utrecht. These treaties at the same time limit the list of contraband to those articles which are directly useful as instruments of war, expressly excluding provisions, naval stores, and all other goods which have not been worked into the form of warlike instruments. The Marine Ordinance of Louis XIV, of 1681, confisChange in the law of con- cates only munitions of war. Valin and Pothier, in comsage by which menting upon this article, both concur in declaring that naval stores provisions, munitions de bouche, were not at the time when traband at the they wrote, considered as contraband by the prize law of beginning of France, or by the common law of nations, unless destined to a besieged or blockaded place.k But Valin states that in the war of 1700, (which was that of the Spanish succession terminated by the peace of Utrecht,) "pitch and tar were comprehended in the list of contraband, because the enemy treated them as such, except when found on board of Swedish vessels being of the growth and produce of their tury. h Schoell, Histoire abrégée des traités de paix, tom. iv. pp. 21-25. i Les armes, poudres, boulets et autres munitions de guerre même les chevaux et équipages qui seront tranportés pour le service de nos ennemis, seront confisqués en quelque vaisseau qu'ils soient trouvés, et à quelque personne qu'ils appartiennent, soit de nos sujets ou alliés. (Ordonnance de la Marine, liv. 3, tit. 9, des prises, art. 11.) * Valin, Commentaire sur l'Ordonnance, liv. 3, tit. 9, des Prises, art. 11. Traité des Prises, ch. 5, § 6, No. 4. Pothier, Traité de Proprieté, No. 104. |