In 1739, France concluded a treaty with Holland, by which the treaty of navigation and commerce between the two powers, concluded at Utrecht in 1713, which had expired by its own limitation, was revived, and the associated maxims of free ships free goods and enemy ships enemy goods were established as the conventional law between the contracting parties.

In 1742, a treaty of commerce was concluded between France and Denmark by which the same rules were established.P

The vessels of Denmark and Holland were exempted, in consequence of the above treaty stipulations, from the operation of the French ordinance of 1744. They were at liberty to navigate freely from their own ports to another neutral port, or to an enemy's port, or from one enemy's port to another, except blockaded places, and whether the cargo was the property of enemies or neutrals, except contraband. The same exemption was extended to the navigation of Sweden and the Hanse towns, with this exception that enemy's property in the vessels of these two states continued liable to capture and confiscation, whilst the vessel with the residue of the cargo was restored. The complete exemption was however subsequently extended to Swedish vessels in consequence of special treaties between France and Sweden. Spain also enjoyed the same privilege under the still subsisting treaty of the Pyrénées, 1659.

ni confisqués, non plus que le reste de leurs cargaisons; mais seulement les dites marchandises appartenantes aux ennemis de sa Majesté, seront confisquées, de méme que celles qui seront de contrebande; sa Majesté dérogeant à cet égard à tous usages et ordonnances à ce contraires, et même à celles des années 1536, 1584, et 1681, qui portent que la robe ennemie confisque la marchandise et le vaisseau ami.” etc.

And by the 24th art. "toutes les marchandises et effets appartenans aux sujets des Villes anséatiques, trouvés dans un navire des ennemis de sa Majesté seront confisqués ; quand même ils ne seraient pas de contrebande etc," (Flassan, Histoire de la Diplomatie Française, tom. iv. p. 415.)

• Flassan, Histoire de la Diplomatie Française, tom. v. p. 107.

P Flassan, Histoire de la Diplomatie Française, tom. v p. 166.

On the other hand, the privileges granted to Holland and the Hanse towns were revoked; so that the only states which enjoyed the complete benefit of the rule free ships free goods, at the time when Valin wrote, were Denmark, Sweden and Spain.

In other respects the Marine Ordinance of Louis XIV, 1681, remained in full force; and these two ordinances continued to form the prize code of France during the maritime war terminated by the peace of Aix la Chapelle, 1748, and that terminated by the peace of Paris, 1763.4

We have already seen under what circumstances the treaties between Great Britain and Holland were concluded conceding to the latter power the principle of free ships free goods, as the favorite object for which her statesmen contended with such zeal and perseverance in their negotiations with the great maritime powers. This concession on the part of the former was coupled with treaties of alliance and mutual guarantee between the two states which involved Holland in the war between France and Great Britain in 1747; whilst the treaty of 1739, by which the same concession had been made in favour of the Dutch navigation by France was suspended by the latter power. The republic thus lost, with her neutral character, the benefit of the concession with both belligerents during the latter part of the maritime war which was terminated by the peace of Aix la Chapelle. The alliance of 1756 between Austria and France delivered Holland from the danger of the barrier which had been secured to her in Belgium by the treaties of Utrecht, being invaded by the French; and though called upon by Great Britain, on the renewal of the war, to fulfill the guarantees contained in her treaties with that power, the republic refused on various grounds, to comply with this demand; and at the same time insisted on the benefit of the commercial treaties by which the rule

Valin, Traité des Prises, ch. 5. sec. 6. No's. 18, 19.

of free ships free goods had been mutually stipulated. This interpretation of the compact between the two countries was repudiated by the British government; which continued to treat the navigation of Holland, during the war of 1756, on the same footing with that of other neutral states, with whom it had no special treaty engagements in favour of the freedom of their flag. The commercial treaty of 1739 between France and Holland had been suspended since the year 1745; and the latter power, consequently, derived no benefit whatever as a neutral during the war terminated by the peace of Paris, 1763, from her antecedent treaties with France and Great Britain, by which the rule of free ships free goods had been stipulated between the contracting parties.

The treaty of Aix la Chapelle between France, Great Britain, and the United Provinces, (art 3,) renews generally the treaties of Utrecht. As the treaty of commerce at Utrecht is not specially mentioned in that of Aix la Chapelle it might appear doubtful whether the stipulations of Utrecht in favour of neutral commerce were meant to be revived. This doubt is however entirely removed by the treaty of Paris, 1763, (art. 2,) between France, Great Britain, and Spain, to which Portugal acceded, which expressly renews and confirms (among other treaties) the treaties of peace and commerce at Utrecht.r

Such was the maritime law of nations, as evidenced in their practice and prize codes, and such was that law as recognised by treaties, during the period now in question. The two systems stood in direct opposition to each other.

Martens, Recueil des Traités, tom. i. p. 107. "Les traités de Westphalie, &c. ceux de paix et de commerce d'Utrecht," &c. "servent de base et de fondement à la paix, et au present traité; et pour cet effet, ils sont tous renouvellés et confirmés dans la meilleure forme, ainsi que tous les traités en général qui subsistoient entre les Hautes Parties contractantes avant la guerre, et comme s'ils etaient insérés ici mot et mot, en sorte qu'ils devront être observés exactement à l'avenir dans toute leur teneur," &c." (art. 3.)

We have already seen that Bynkershoek, whose work on the Laws of War, was published after the peace of Utrecht, and before the war terminated by the peace of Aix la Chapelle, considered the rules of the Consolato del Mare as still constituting the law of nations on this subject, independent of special treaty stipulations at the time when he wrote.s

(b. 1681, d.

Heineccius, who wrote about the same time, and whose Heineccius, dissertation on the confiscation of ships for carrying pro- 1741,) on the hibited goods, had been seen by Bynkershoek before he question of put the finishing hand to his two chapters on this subject, gation. is considered by the latter as confirming his own views.t

In this dissertation, Heineccius considers the question of neutral navigation in the two different cases: "Quid si vel naves hostium merces amicorum, vel naves amicæ merces hostium contineant?" He states that the Consolato del Mare distinguished the cases:

1. Where the ship and cargo both belonged to the enemy, in which case they were both liable to confiscation.

2. Where the ship belonged to a friend, and the cargo to an enemy, the neutral master might be compelled to carry the cargo into a port of the captor's country, and be entitled there to receive his freight, the cargo alone being subject to confiscation.

3. Where the ship belonged to an enemy, and the cargo to a friend, the matter might be compromised; or if the freighters refused, the cargo might be carried into a port of the captor, who would then be entitled to receive the

neutral navi

* Vide ante, First Period, § 14.

Postquam hæc scripseram in manus meas pervenit clariss. Heineccii Opusculorum Variorum Sylloge, in qua etiam exstat ejus Dissertatio de navibus ob vecturam vetitarum mercium commissis, ubi c. ii. § 9, paucis exponit utramque speciem, de qua hoc et præced cap. actum est. Sed tantum abest, ut, his lectis, mutem sententiam, ut eam potius confirmaverit viri magni auctoritas. Cur tamen nihil delendum censuerim, ipse videbis, si, quæ uterque nostrum dixit, conferre commodum sit. (Bynkershoek, Q. J. Pub. lib. i. cap. xiv. ad fin.)

§ 10. Case of the Silesian loan.

freight on the cargo, as if it had been carried to its port of original destination, whilst the ship alone would be confiscated.

He then cites various ordinances and treaties of different maritime states modifying these rules, sometimes in favour, and sometimes against the interests of neutral navigation, and gives his reasons for approving of the rules as constituting the primitive law. He afterwards states the proofs and presumptions by which the right of property in the ship and cargo, are to be ascertained in the prize courts of the captor's country, whose final adjudication he considers as conclusive, according to the usage of nations as evidenced in their laws and treaties, upon the question of proprietary interest, and as transferring the property in the captured things to the purchaser under the sentence of condemnation. "But suppose" says he, "the sentence thus pronounced in the last resort, does not appear just to the neutral state, by whose subjects the property is claimed, what remedy remains ?" And he answers, that prudence will dictate not rashly to resort to war. Redress is first to be sought for by friendly remonstrance, and if it is unreasonably refused, reprisals may be decreed by the supreme authority of the state, in which is vested the power of making war."

During the maritime war between France and Spain, on one side, and Great Britain and Holland on the other, which was terminated by the peace of Aix la Chapelle, 1748, and in which Prussia remained neutral, a controversy arose between the British and Prussian govornments respecting the rights of neutral navigation and commerce, in which these principles of the public jurists were brought to a practical test.

Frederick II, by the treaties of Breslau and Berlin, 1742,

u Heineccius, de Navib ob Vect. Merc. Vet. Comm. cap. ii. §§ 8—12,