Part IV. French subjects laden on board the vessels of his enemies, and the goods of his enemies laden on board French vessels, were both exempted from capture by Turkish cruisers. The capitulation expressly declares, art. 10:— "Parce que des sujets de la France naviguent sur vaisseaux appartenans à nos ennemis, et les chargent de leurs marchandises, et étant rencontrés, ils sont faits le plus souvent esclaves, et leurs marchandises prises; pour cette cause, nous commandons et voulons qu'à l'avenir, ils ne puissent être pris sous ce prétexte, ni leurs facultés confisquées, à moins qu'ils ne soient trouvés sur vaisseaux en course," etc. Art. 12:-"Que les marchandises qui seront chargées sur vaisseaux français appartenantes aux ennemis de notre Porte, ne puissent être prises sous couleur qu'ils sont de nos dits ennemis, puisque ainsi est notre vouloir "(i). $ 447. Treaties of Holland on this subject. It became, at an early period, an object of interest with Holland, a great commercial and navigating country, whose permanent policy was essentially pacific, to obtain a relaxation of the severe rules which had been previously observed in maritime warfare. The States-General of the United Provinces having complained of the provisions in the French ordinance of Henry II., 1538, a treaty of commerce was concluded between France and the Republic, in 1646, by which the operation of the ordinance, so far as respected the capture and confiscation of neutral vessels for carrying enemy's property, was suspended; but it was found (i) Flassan, Histoire de la Diplomatie Française, tom. ii. p. 226. M. Flassan observes:-"C'est à tort qu'on a donné à ces Capitulations le nom de traité, lequel suppose deux parties contractantes, stipulans sur leurs intérêts; ici on ne trouve que des concessions de privilèges, et des exemptions de pure libéralité faites par la Porte à la France." In the first English edition of this work, and also in another more recently published, under the title of "History of the Law of Nations," the author has been misled, by following the authority of Azuni and other compilers, into the erroneous conclusion, that the above capitulation was intended to change the primitive law, as observed among the maritime States of the Mediterranean from the earliest times, and to substitute a more liberal rule for that of the Consolato del Mare, of which the Turks must necessarily be supposed to have been ignorant, and which the French king did not stipulate to relax in their favour, where the goods of his enemies should be found on board Turkish vessels. (Note by Wheaton.) impossible to obtain any relaxation as to the liability to Chap. III. capture of enemy's property in neutral vessels. The Dutch negotiator in Paris, in his correspondence with the grand pensionary De Witt, states that he had obtained the "repeal of the pretended French law, que robe d'ennemi confisque celle 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 confiscable, and the ship with the other goods will be restored; for it is impossible to obtain the twenty-fourth 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." This latter concession the United Provinces obtained from Spain by the Treaty of 1650; from France by the treaty of alliance of 1662; and by the commercial treaty signed at the same time with the peace at Nimiguen in 1678, confirmed by the treaty of Ryswick in 1697. The same stipulation was continued in the treaty of the Pyrénées between France and Spain, in 1659. The rule of free ships free goods was coupled, in these treaties, with its correlative maxim, enemy ships enemy goods. The same concession was obtained by Holland from England, in 1668 and 1674, as the price of an alliance between the two countries against the ambitious designs of Louis XIV. These treaties gave rise, in the war which commenced in 1756 between France and Great Britain, to a very remarkable controversy between the British and Dutch Governments, in which it was contended, on the one side, that Great Britain had violated the rights of neutral commerce, and on the other, that the StatesGeneral had not fulfilled the guaranty which constituted the equivalent for the concession made to the neutral flag, in derogation of the pre-existing law of nations (k). (k) Dumont, Corps Diplomatique, tom. vi. pt. i. p. 342. Flassan, Histoire de la Diplomatie Française, tom. iii. p. 451. A pamphlet was published on the occasion of this controversy between the British and Dutch governments, by the Part IV. $ 448. Portuguese treaty. $449. Union of the two maxims in treaties. § 450. Armed neutrality of 1780. A treaty of commerce and navigation was concluded between the Republic of England and the King of Portugal in 1654, by which the principle of free ships free goods, coupled with the correlative maxim of enemy ships enemy goods, was adopted between the contracting parties. This stipulation continued to form the conventional law between the two nations, also closely connected by political alliance, until the revision of this treaty in 1810, when the stipulation in question was omitted, and has never since been renewed. The principle that the character of the vessel should determine that of the cargo, was adopted by the treaties of Utrecht of 1713, subsequently confirmed by those of 1721 and 1739, between Great Britain and Spain, by the treaty of Aix-la-Chapelle, in 1748, and of Paris in 1763, between Great Britain, France, and Spain (1). Such was the state of the consuetudinary and conventional law prevailing among the principal maritime powers of Europe, when the declaration of independence by the British North American colonies, now constituting the United States, gave rise to a maritime war between France and Great Britain. With a view to conciliate those powers which remained neutral in this war, the cabinet of Versailles issued, on the 26th of July, 1778, an ordinance or instruction to the French cruisers, prohibiting the capture of neutral vessels, even when bound to or from enemy ports, unless laden in whole or in part with contraband articles destined for the enemy's use; reserving the right to revoke this concession, unless the enemy should adopt a reciprocal measure within six months. The British government, far from adopting any such measure, issued in March, 1780, an order in council suspending the special stipulations respecting neutral commerce and navigation contained in the treaty of alliance of 1674, between Great Britain War," which contains a very full and treaties. London, 8vo. 1757. 2nd ed. 1794; 3rd ed. 1801. (1) Wheaton's Hist. Law of Nations, pp. 120-125. and the United Provinces upon the alleged ground that Chap. III. the States-General had refused to fulfil the reciprocal conditions of the treaty. Immediately after this order in council, the Empress Catharine II. of Russia communicated to the different belligerent and neutral powers the famous declaration of neutrality, the principles of which were acceded to by France, Spain, and the United States of America, as belligerent; and by Denmark, Sweden, Prussia, Holland, the Emperor of Germany, Portugal, and Naples, as neutral powers. By this declaration, which afterwards became the basis of the armed neutrality of the Baltic powers, the rule that free ships make free goods was adopted, without the previously associated maxim that enemy ships should make enemy goods. The Court of London answered this declaration by appealing to the "principles generally acknowledged as the law of nations, being the only law between powers where no treaties subsist"; and to the "tenor of its different engagements with other powers, where those engagements had altered the primitive law by mutual stipulations, according to the will and convenience of the contracting parties." Circumstances rendered it convenient for the British government to dissemble its resentment towards Russia, and the other northern powers, and the war was terminated without any formal adjustment of this dispute between Great Britain, and the other members of the armed neutrality (m). renewed. $451. By the treaties of peace concluded at Versailles in Tre ties uniting the 1783, between Great Britain, France, and Spain, the maxims not treaties of Utrecht were once more revived and confirmed. This confirmation was again reiterated in the commercial treaty of 1786, between France and Great Britain, by which the two kindred maxims were once more associated. In the negotiations at Lisle in 1797, (m) Flassan, Diplomatie Française, tom. vii. pp. 183, 273. Annual Register, vol. xxiii. p. 205, State Papers, pp. 345-356; vol. xxiv. p. 300. Whea- Part IV. it was proposed by the British plenipotentiary, Lord Malmesbury, to renew all the former treaties between the two countries confirmatory of those of Utrecht. This proposition was objected to by the French ministers, for several reasons foreign to the present subject; to which Lord Malmesbury replied that these treaties were become the law of nations, and that infinite confusion would result from their not being renewed. It is probable, however, that his lordship meant to refer to the territorial arrangements rather than to the commercial stipulations contained in these treaties. Be this as it may, the fact is, that they were not renewed, either by the treaty of Amiens in 1802, or by that of Paris in 1814. $452. Practice during the French Revolution. § 453. Armed neutrality of 1800. During the protracted wars of the French Revolution all the belligerent powers began by discarding in practice, not only the principles of the armed neutrality, but even the generally received maxims of international law, by which the rights of neutral commerce in time of war had been previously regulated. "Russia," says Von Martens, "made common cause with Great Britain and with Prussia, to induce Denmark and Sweden to renounce all intercourse with France, and especially to prohibit their carrying goods to that country. The incompatibility of this pretension with the principles established by Russia in 1780, was veiled by the pretext, that in a war like that against revolutionary France, the rights of neutrality did not come in question." France, on her part, revived the severity of her ancient prize code, by decreeing, not only the capture and condemnation of the goods of her enemies found on board neutral vessels, but even of the vessels themselves laden with goods of British growth, produce, and manufacture. But in the further progress of the war, the principles which had formed the basis of the armed neutrality of the northern powers in 1780, were revived by a new maritime confederacy between Russia, Denmark, and Sweden, formed in 1800, to which Prussia acceded. This league was soon dissolved by the naval power of |