ment what is most essential in this dispute, and the reasons made use of by the two parties in defence of their cause.

149. The knot most difficult to untie was this: that the Dutch carried on a very profitable trade to the French West India islands, bringing back from them their products to France, as well as carrying French goods to those islands. In this manner the best part of the commerce of France had fallen into the hands of the Dutch, and was carried on in Dutch bottoms. This was what the English considered illegitimate because it was prejudicial to them, the vessels and effects of the French being thus sheltered from attack and pursuit of the English ships of war and cruisers. They therefore cut the knot. They seized all the Dutch vessels employed in this trade, and declared them good prize. On the complaints of the Dutch, and in order to justify this proceeding, they alleged the treaty concluded in 1674, between the crown of England and the United Provinces, according to which "freedom of navigation and commerce in any sort of mer. chandise ought not to be interrupted by reason of war, but should be extended to all goods which were transported in time of peace, contraband alone excepted:" which signified, they said, "that trade might be continued during war in the same manner that it had been in time of peace." Now, continued they, the trade of the Dutch to the French islands has been but quite recently begun, and since the commencement of the war (for in time of peace it was restricted merely to France) and thus it could not be understood in the treaty of 1674. And as the Dutch vessels do not trade but by special permission of the French, they could not be considered but as vessels of that nation which alone has a right to give such permission, that is to say, as French vessels, and consequently they may be seized and condemned. [Answer to the Memorial concerning the capture and detention of Dutch vessels going to and coming from French islands. London, 1758. see the Monthly Review for December 1758. p. 578. vol. 19.] The Dutch alleged the same treaty of 1674 and the principle

therein adopted, that free ships make free goods; agreeably to which French goods laden on board Dutch vessels could not be seized there. As to the liberty of navigating from French ports to French islands, and from them to France, they deemed it proved by the declaration of the same treaty made with a common accord in 1675, because according to that "the vessels of the subjects of either party might not only pass and trade from a neutral port or place to an enemy port or place, but also from one enemy port or place to another enemy port or place, whether the said places belonged to the same prince or to several princes, with whom the other party might be at war." This declaration appears to be favourable to the Dutch and to place the right on their side. But it was too feeble against a nation which ruled the seas. The seizure and confiscation of Dutch vessels continued therefore as they had begun until the end of the war; and the merchant losses amounted at last to an exorbitant sum, which some estimated at one hundred millions.*

* An American court condemns an American vessel to the penalties of prize of war because she has a British license on board in time of war between the United States and Great Britain. The reason of the law is the life of the law; and the reason of this condemnation is, that the American becomes hostile by placing herself under hostile protection. If so, does not the same principle sanction the rule of 56? The English condemned the Dutch vessels because they carried on, by French permission or license, a trade not open to them in time of peace. They therefore became identified with the French, being under French protection, said the English. The answer the Dutch made to this argument was that free ships make free goods. But, without the acknowledgment of this principle, does not the rule of 56 appear to be maintained by the principle, or reason of our condemnations in the license cases?

The rule of 56, the orders in council for unlimited paper blockades, the most enormous catalogue of contraband, even the maltreatment, though not perhaps the impressment, of seamen, seem to have examples in the practice and even, some of them, in the treaties of all maritime nations. It comes therefore to this-either establish that free ships make free goods, or equip navies. No other alternative remains.

Tr.

150. The revolt of the English colonies in North America was an occasion which France eagerly seized upon to strike a severe blow at the power which had triumphed in the last war; and it was not neglected. Louis XVI, supported the American colonies; he made an alliance with them and acknowledged them as free and independent colonies. This proceeding must necessarily light up the flame of a new war, which could not fail to expose the navigation and commerce of neutral nations to many difficulties and dangers. The court of France caused to be published, 26th July 1778, an ordinance forbidding its cruisers to take or send into French ports neutral vessels, although coming from or going to enemies' ports, excepting only contraband goods which were to be stopped and confiscated. But it reserved to itself the revocation of this liberty in case the adverse party should not make a similar declaration in the term of six months. This ordinance was very rigorous in some articles. It purported, among other things, that a vessel laden with contraband destined for the enemy should be confiscated, with all the cargo, if the contraband goods constituted the one-third part which was contrary to the usage established in almost all commercial treaties: and that the same thing should take place if an enemy agent or officer should be found on board a neutral vessel. It was likewise ordained that only the papers found on board should be received as proofs, and that those brought afterwards should have no credit.*

151. The war began by acts of hostility without any formal declaration. The English cruisers seized not only French vessels, but likewise many neutrals, on pretence of being laden on French account, and took them into English ports. The envoys of Denmark, of Sweden, of Prussia and the United Provinces immediately complained of this. People of moderate sentiments even in England acknowledged that war not having been declared, these vessels could not be seized

*This was rigorous and even unjust, being contrary to general principles of jurisprudence and common usage.

under any colour. Many of them also were restored with costs and damages. Contraband goods, among which were placed ship-timber and other naval munitions, were bought for account of the admiralty, and the freight paid, because, it was said, the freighters of these vessels had not been apprized of the rupture, but for the future that reason would not be available. The king of Great Britain also published an ordinance in which it was gravely forbidden cruisers to attack or stop on any pretext, unless because of naval or warlike munitions, vessels or effects belonging to friendly princes or states or to their subjects, without certain and unequivocal proofs of the falsity of the papers and bills of lading exhibited to them. All this was also to be particularly observed towards vessels of the United Provinces, but in like manner with the exception of warlike and naval munitions. The English cruisers continued therefore to take Dutch vessels laden with materials fit for ship-building and frequently without discrimination sent the vessels into English ports. They were indeed finally released with costs and damages: but with all that the owners did not come off without loss, having lost the opportunity of a profitable sale by long detention. The cities of Amsterdam, Rotterdam and many others in Holland, of West Frizeland and of Frizeland addressed themselves to the states of Holland, to the States General and to the prince stadtholder, demanding their protection for the preservation of free navigation and trade. The States General did not fail to make remonstrances against the outrages of the cruisers through their envoy in London, and to demand redress of the grievances, one of the greatest of which was the neglect of the treaties of commerce subsisting between the two states, many Dutch vessels having been seized, whose cargoes consisted but of ship-timber, contrary to the treaty of 1674, which expressly puts timber and all other materials fit for ship-building and equipment, in the number of permitted goods. It was also remarked that although the timber was paid for, yet that was done only at a price arbitrarily fixed.

owner.

152. But it seems that in England they did not choose to govern themselves so scrupulously by this treaty, although conceived in very clear and simple terms. That appeared by a decree of the court of admiralty, on the subject of a Dutch vessel, laden with ship-timber. Both of them being Dutch property, were claimed by virtue of the treaty of 1674. The cruiser maintained that the cargo was French property. By the decree it was ordered that the vessel be restored as Dutch property, the freight paid, the loss of time occasioned by the improved (bonifiee) delay, and the cargo sold to the commissioners of the admiralty at a fair price, for the profit of the The judges published the reasons of their decision, which are very remarkable, because they there display anew the distinction between the letter and the spirit, formerly employed by Louis XIV, and then so much ridiculed in England. We should, say they, consider and interpret the spirit as well as the letter of the alleged treaty of 1674, by comparing it with other treaties subsisting between the two states, particularly with those of 1670 and of Breda: that although the articles of pitch, of masts, &c. are specially named among the unprohibited articles by the treaty of 1674, the treaties of an older date purport expressly that neither of the two powers can afford succour to the enemy of the other, by furnishing arms, munitions and vessels; that there is no difference between furnishing vessels of war, completely armed, or sending parts, of which vessels might be soon composed; that otherwise the intention of the treaty might be eluded, if one Dutchman should furnish masts, a second sails, a third cordage, which would destroy the prohibition of succour, concerning which they supposed themselves secured; that the usage or the custom, according to which treaties have been explained, formed, in the second place, a very strong argument; the more so since, in the two preceding wars between France and England, the States General had been bound by the same decisions; that is to say, that they had detained all materials fit for the marine which were found on board Dutch vessels