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cluded between the different powers, that had taken part, in the war of the Spanish succession. Among these treaties, there are to be found three, relating to commerce and navigation: one between France and England; another between England and Spain; the third between France and Holland.

In the treaty between France and England, it is stipulated that, if it should happen to either of these powers, to remain neutral in a maritime war, the flag of such power should cover the merchandize of the enemy of the other; and, in addition, that, by contraband articles subject to confiscation, in every description of vessel, should be understood, only those, which were immediately applicable to the purposes of war. These two points settled, at all times, in a particular and distinct manner, in each particular treaty of navigation, between. the nations of the world, formed, at the end of the seventeenth, and the commencement of the eighteenth century, nearly the whole question of neutral rights in maritime war. By the earlier treaties of 1655, and 1677, France and England had, with respect to these points, made the same reciprocal concessions, as those contained in the treaty of Utrecht, and these concessions were renewed and enforced, even in favour of the power supposed to remain neutral, in the famous commercial treaty of 1786.

When attention is given to the relative situation of these two powers, it will no longer be a matter of surprise, that, in all the treaties between them affecting navigation, the greatest latitude of right should be allowed, to the one of them, that might remain neutral during a maritime war of the other. The reason is plain: the supposed event was so improbable, that all that was mutually promised, amounted as it were, to no more than a diplomatic compliment. After the decline of Spain, and subsequently of Holland,-France and England were the two preponderating powers at sea. It was evident, that, directly or indirectly, every maritime war, of whatever importance or duration, must either begin or finish, by being a war between England and France. Such in fact, is the history of all the wars, which have occurred, since the close of the seventeenth century. Nothing was risked, by indulging in the supposition of a maritime war, in which one or the other would be neutral, because the case was difficult even to be imagined. The more they were confirmed in their position of rivals, the more did that rivalry verge towards a state of habitual hostility, and the less did it cost them, to be liberal in stipulations of the kind under review.

But the final arrangements with respect to neutral rights, VOL. IV.

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made by treaty between England and France, did not bind either of the contracting parties, in its relations with other powers: no general principle resulted from them; each party retained the right of making on this head, with any other state, such arrangements as might seem the most easy, or useful.

The treaty of navigation and commerce between England and Spain, forming a sequel to that of peace and amity, which these powers had signed at Utrecht, was but the ratification of a treaty of 1667, which was inserted verbatim in that of 1713. In this treaty, favourable enough, indeed, in other respects for the party, that might eventually wear the character of a neutral, there is no mention made of the maxim, that "free ships make free goods;"-an important fact, demonstrating in the first place, how slender was the connexion, between these separate treaties, and in the second, how far the doctrine just mentioned, was, from being considered, as a law generally established, or of universal jurisdiction. For, if such had been the light in which it was viewed, the silence of a formal treaty, on a point of so great importance, would be wholly inexplicable.

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The treaty of commerce between France and Holland, signed at Utrecht, having had no reference to England, I need not give it any attention.

As for the other powers of Europe, as for those even that took part in the negotiations of Utrecht, or were included in the several treaties, such as Portugal, Prussia, Sweden, Savoy, Tuscany, Genoa, Venice, &c. not a word was uttered determining their maritime rights, or the limits of their future neutrality, neither upon any general principle, nor in relation to any one of the powers, who had co-operated in, the general pacification.

To know precisely what idea the French government must itself have entertained, of the character of these stipulations, concerning neutral rights, and of the degree of propriety with which they could have been asserted, as general principles, we have but to glance at the laws, which then constituted the maritime code of France herself.

No country has exerted more severity, in her legislation against the freedom of neutrals in maritime war, than France. The ordonnances of Francis I. (1536 and 1543),-of Henry II. (1554),—of Charles IX. (1569),-of Henry III. (1584), &c., had all enacted without any reservation, "that ene"my's goods should subject to confiscation, not only all mer"chandize laden with them, but even the ship itself to whom

"soever belonging." The celebrated marine ordonnance of 1681, which the French have long considered as one of the monuments of the glory of Louis XIV., sanctioned the same principles, while it added some exceedingly onerous provisions, with respect to the proof of neutrality, to passports, bills of lading, certificates of every kind, and the forms of proceeding in prize-causes. The regulation of 1704, on the subject of prizes, published in the very war, to which the treaty of Utrecht succeeded, was strictly in unison with the ordonnance. "If," says the seventh article of the regulation, "there be found enemy's goods on board of neutral vessels, "both the vessel and cargo shall be good prize." The regulation of 1744 did, indeed, remove the most rigorous part of this clause, but carefully retained the rest. The fifth article declares "subject to confiscation, enemy's goods found on "board neutral or allied ships," adding, however, "that the "ships should be released."

If, as is unblushingly asserted in the present times, "the "maritime rights of neutrals had been solemnly regulated by "the treaty of Utrecht," it would be inconceivable how it happened, that the maritime legislation of France did not feel the influence of this great event;-neither at the epoch of its fancied occurrence, nor even as late as thirty years afterwards. The last law which she promulgated on the subject before the revolution-" Regulation concerning neutral navi"gation in time of war," of the 26th July 1778, does not specify the principle, that free ships make free goods. It is true that it does not, after the example of the preceding laws, proclaim the opposite doctrine; but, to judge from the extreme rigor of all the other provisions of this regulation, from the nature of the proofs enacted by the second article, to establish the fact of neutrality, and finally from the tenor of the last article, which recognizes the ordonnance of 1681, "as to "whatever part of it remains uncontradicted by the present "regulation,"-to judge from this, it is evident, that, as late as 1778, the French government entertained no serious intention, of asserting for the neutral flag, the privilege of protecting enemy's goods. It is only since the occurrence of the armed neutrality of 1780, that France has abruptly changed her language, and maintained, with an effrontery worthy of the aurora of her golden age, "that the liberty of the seas had "uniformly been the chief object of her ordonnances."

But lest it should be supposed, that the ordonnances of France, had nothing in common with her treaties, that legislation and the law of nations pursued each its usual and dis

tinct course, without any mutual relation, I shall proceed to quote a memorable case, which will dissipate all doubts on this head.

The Hanseatic towns, (Lubeck, Bremen and Hamburg,) were, from the middle of the seventeenth century, distinguished by the particular favour of the French government. Cardinal Mazarine had granted them in the year 1655, a treaty, in which it was said, "that, as to the Hanseatic cities, “his majesty, departing from the ordonnances, wills and under"stands, that their inhabitants shall be exempted from the "rigor of the said ordonnances, for fifteen years, to the effect "that the flag of an enemy should not subject to confiscation the “goods of the friend, and that their ships should be free, and "make free goods, although there should be on board mer"chandize belonging to the enemy."-In 1716, three years after the treaty of Utrecht!!-the Hanseatic towns demanded the renewal of this treaty. They obtained it, and such as follows, is the language in which the principal article was couched. “The vessels on board of which, may be found merchan“dize belonging to the enemies of his majesty, shall not be "liable to confiscation, no more than the remainder of their "cargo, but only the said merchandize belonging to such enemies, in the same manner as contraband articles, his “majesty, departing in this respect, from all usages and or"donnances of an opposite tenor, even from those of the “years 1536, 1584 and 1681, which enact, that enemy's goods "subject to confiscation, both the merchandize and vessel of a “friend.”—It was represented to the Hanseatic towns in the light of an extraordinary favour, that they were curtailed in this new treaty, of but one half of the privileges, which had been granted to them in 1655.

The treaty which the same towns obtained from France in 1769, was, in every point, comformable to that of 1716. But a fact still more curious, because it borders, in point of date, so closely on the climacteric year 1780, remains to be noticed. It is, that a commercial convention which the French government caused to be signed on the 18th September 1779, with the duke of Mecklenburg-Schwerin, revived again all the severity of the ancient ordonnances, and among other things, declared most expressly, "that all enemy's goods found on “board of a neutral ship should be liable to confiscation."

It is thus that the French government considered, and itself respected, the treaty of Utrecht! It is thus that this treaty had become," the common law of nations for the rights of "the neutral flag."!!

II. "This law," continues the Reporter," renewed verbatim "in all subsequent treaties, has consecrated the following prin"ciples," &c. I think I have said enough to enable the reader to judge whether, even at the period of its signature, the treaty of Utrecht, could have had the authority of a general law, or have consecrated any principle whatever. The flat, peremptory assertion that "this treaty has been revived ver"batim in all subsequent treaties," is so entirely falsified, by a multitude of documents accessible to every reader, that those even, who have most attentively watched the course, and studied the spirit of the official publications of the French government, must be struck with surprise, at its hardihood in this instance. The fact is, that amid the numerous treaties which, from 1713 down to our day, have been framed, in part with a view to the determination of the maritime rights of various nations, there is not one, in which the treaty of Utrecht is either revived, confirmed, or cited as a precedent. The men who negotiated these treaties, knew well that some merely conventional arrangements made, in 1713, between France and England, or France and Holland, were not obligatory, either upon the powers whom these arrangements did not in any manner contemplate, or even on those who had mutually adopted the same, in their political relations with other states. Upon what principle could a Danish minister for example, have required an English negotiator to admit the stipulations of Utrecht, as the basis of the rights which the flag of Denmark or England, should enjoy during this neutrality? In the good times of diplomacy, such an absurdity as this, would never have entered into the head of any person.

But even had the treaty of Utrecht been,-what it certainly was not, the formal and acknowledged result, of a common consultation, of all the powers of Europe, on the tenure, and privileges of neutrality in maritime war, and consequently, a true code of laws, it is evident that the revolutions in the political system, since 1713, would have rendered necessary, a general and even frequent revision of this code, unless the most important and doubtful questions, had been abandoned to the decision of arms, or to private arrangement. The idea of a general congress of the nature here supposed, is in itself chimerical, and much more so, that of the periodical revival of such an assembly.

It is not with a view to enforce a doctrine, which I think firmly established, but in order to elucidate, and develope it, that I shall proceed to make a few observations, on some of the principal changes, which have taken place within the last

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