they would enjoy the benefit of the maxim of free ships, free goods, with the usual exception of contraband.

This controversy was finally adjusted by a declaration, annexed to the treaty of defensive alliance between Great Britain and Prussia, signed at Westminster January 16th, 1756, by which his Prussian Majesty was to take off the sequestration laid on the Silesian debt, and pay the amount of capital and interest due to the British creditors, and the British government were to pay the sum of twenty thousand pounds for the extinction of all claims of the Prussian government and subjects on Great Britain. This sum was paid and distributed among the Prussian subjects who had proved their losses under the commission.f

1756.

The maritime war terminated by the peace of Paris, § 11. Rule of 1763, was also signalized by the first attempt on the part of the war of Great Britain to establish the doctrine which subjects to capture in time of war any neutral commerce which is not open in time of peace. This principle, which has since received the name of the rule of war of 1756, was applied to confine neutrals to their accustomed trade previous to the war, and to exclude them from the colonial and coasting trade of the enemy as not being usually open to foreigners. in time of peace. This rule, which might seem to receive some countenance from the example of France in her ordinances of 1704 and 1744, appears to have been originally founded upon the fact that the French, finding the trade with their colonies under their own flag almost entirely cut off by the naval superiority of Great Britain, relaxed the

f Martens, Causes célèbres du Droit des Gens, tom. ii. pp. 73-88. M. de Martens adds in a note: M. de Hertzberg fit en 1747 un mémoire sur cette dispute, qui n'a pas été imprimé mais qui fut envoyé an ministère Britannique. On peut dire que c'est Frederic II qui a le premier soutenu les principes de la neutralité maritime, et que M. de Hertzberg en a été le premier défenseur." I have in vain caused inquiries to be made in the Prussian archives of state, for this memoir. After a diligent search, it could not be found.

monopoly of that trade, and allowed the Dutch to carry it on under special licenses or passes, excluding at the same time all other neutrals from the same trade. Many Dutch vessels so employed were captured by the British cruizers and condemned in their prize courts, upon the principle that by such employment they were in effect incorporated into the French navigation, having forfeited their neutral character and adopted that of the enemy. As soon as it was known that this effect was imputed to these licenses, they were discontinued, or pretended to be so; but the discontinuance, whether real or supposed, produced no change in the conduct of Great Britain; for neutral vessels employed in this trade were captured and condemned as before. There is some obscurity as to the principle on which the condemnations were founded after the discontinuance of the licenses; it being sometimes stated in the arguments referring to that period that they were founded on the principle that the trade was virtually or adoptively, a French trade; and sometimes that it was founded on the general principle that it was a trade not open in time of peace. Be this as it may, the Dutch remonstrated against the application of the rule to their commerce, and appealed to the treaty of 1674 between the two countries, by which the maxim of free ships, free goods, was reciprocally adopted, as well as the explanatory declaration of 1675, by which the freedom of neutral navigation was expressly declared to extend to the trade from one enemy's port to another, whether these places belonged to one or several states with whom the other party should be at war. The British government, at first, contended that this liberty was confined by the terms of the treaty to the accustomed trade of neutrals in time of peace; but being at last driven from this ground they rested the justification of their measure upon the above mentioned principle of adoption or naturalization. But whatever might be the character of the rule it does not appear to have been adopted by Great Britain previous to the war of 1756 ;-it was suffered to slumber during the

American war; and, as we shall hereafter see, was again awakened during the war of the French revolution and applied to the total prohibition of all neutral commerce with the enemy's colonies.g

Holland was not the only neutral state which felt itself aggrieved by the measures adopted by the belligerent powers, and especially by Great Britain, during the war of 1756. Denmark, under the wise and liberal administration of Count Bernstorff, the first great statesman of that name, sought to avail herself of the advantages of neutrality to extend her commerce and navigation. These inter

ests could not wholly escape the ravages of a war which was principally directed by the British government against the colonies and commerce of its enemics. The Danish government sent a special mission to remonstrate with the British and French courts against the depredations committed by the belligerent cruizers on the trade and navigation of its subjects. The minister employed on this mission was Hübner, and this circumstance gave occasion to the publication of his treatise on the Seizure of Neutral Vessels, so often referred to in the more recent controversies respecting belligerent and neutral rights.h

de la Saisie des Bâtimens

In this work, the author lays at the foundation of his 12. Hübner, reasoning the principle of the freedom of the high seas, as the common property of mankind, incapable of being ex- Neutres. clusively appropriated by any one nation, and in the free use of which all have an equal right to participate for the purposes of commerce and navigation. Every nation has consequently a right to navigate the ocean, and to traffic with every other in such articles, and on such conditions, as

Madison, Examination of the British Doctrine which subjects to capture a Neutral Trade not open in Time of Peace, pp. 51-55, 81–99, Lond. ed. 1806.

De la Saisie des Bâtimens Neutres, ou du Droit qu'ont les nations belligérantes d'arrêter les Navires des Peuples Amis. Par M. Hübner, etc. à la Haye, 1759.

the other state thinks fit to allow, in time of peace. The question to be examined is, whether, and to what extent, the belligerent nations can lawfully intercept this traffic of neutrals with their enemies in time of war?

He concludes that the neutral has a right to continue his trade with those nations who happen to become enemies of each other exactly as if they remained at peace, provided he abstains from all direct interference in the war, that is to say, provided he remains perfectly neutral. Nor is it sufficient, in order to justify an interruption of this commerce, that it is found to contribute to strengthen the enemy, and thus enable him the longer to resist his adversary; or that it contributes to strengthen one of the belligerents more than another on account of the disparity of their naval forces. These are but incidental circumstances, for the consequences of which the neutral is no way responsible, since he does but use an incontestable right, which cannot furnish a just ground of complaint on the part of those who may be incidentally injured by its exercise.

The only portion of neutral commerce which Hübner hesitates to include in this general immunity is the trade with the enemy's colonies. "This trade," says he, "may perhaps be considered unlawful, contrary to neutrality, and constituting a direct interference in the war, since neutral nations are not permitted to carry it on in time of peace; it is only opened to them in time of war, and on account of the war; and lastly, that on the re-establishment of peace, they are again excluded from it, so that the commerce of neutrals with the colonies of a state at war appears to be subject to the rigorous laws of war. Still I do not perceive why neutral states ought to refuse themselves so considerable an advantage provided they abstain from furnishing the enemy's colonies with articles prohibited in time of war. If besides that, they also abstain from carrying thither provisions, by which I understand articles of the first and second necessity, which in time of war are equivalent to contraband of war properly so called, it is then

evident that neutrals may lawfully carry on this commerce, because the principal cause of its being opened to them during the war will not produce the intended effect; this commerce will not directly influence the fortunes of the war, and consequently will not become liable to interdiction by the other belligerent as being a direct succour afforded to his enemy.i

After attempting to illustrate his reasoning respecting this general freedom of neutral navigation and commerce in time of war by several historical examples, Hübner proceeds to consider the duty of neutrals to abstain from all direct interference in the war, such as attempting to trade with besieged or blockaded places, which the belligerent has a right to punish by the seizure and confiscation of the vessel and cargo making this attempt. (Ch. 5, § 2, 3.) He admits that there are some cases in which the belligerent nations may have a right to capture neutral vessels. He then states that this right is founded neither upon the sovereignty of the seas, which cannot be appropriated by any particular nation; nor upon the jurisdiction of one nation over another, which would be incompatible with the equal sovereignty of both; nor upon the rights of war itself, which can only be exercised against enemies; nor npon the right to interrupt, in time of war, the lawful, accustomed trade carried on by neutrals in time of peace; nor upon the right to intercept the articles called contraband, as being per se unlawful objects of commerce. After stating upon what this belligerent right is not founded, he proceeds to inform us that it is actually founded upon the nature of neutrality itself as he had before defined it. The belligerent nations have the right of seizing the vessels belonging to neutral states, or to their subjects, whenever these vessels shall have committed any act contravening

i Hubner, de la Saisie des Bâtimens Neutres, tom. i. Preme Partie, ch. iv. § 6.