But this leads to a more far-reaching conclusion. Of the maxim," free ships free goods," Pitt declared that, when granted, it was as a matter of favour, not as of right. Fox, when he justified his offer to Catherine, in 1782, to accept the principle, declared that he intended to get something in return-an alliance with Russia, of which we then stood greatly in need.' In the foregoing analysis of our agreement with France the something that we obtained in return has been made clear; it was a material alteration of the French law in favour of our ships. And so it is in all the other cases in which we have accepted the maxim in a treaty. Nowhere is there to be found a bald acceptance of the principle. It is accepted reciprocally in treaties of commercial alliance; that is, in treaties concluded under the influence of a desire by both parties to obtain reciprocal commercial advantages. Commercial alliances, however, are often intimately connected with political alliances; and in every other case in which England has accepted the maxim a political alliance has been close at hand.

This hardly needs emphasizing in the case of the Dutch. The manifest advantage conceded, after many years of strenuous diplomacy, to the great carrying nation in 1674 was compensated by the specific agreement of 1678 for mutual succour in the event of either party being attacked.

In the case of Spain the commercial treaty was made in 1667, and was confirmed by the treaty of alliance in 1670. In the case of Portugal the first commercial treaty was concluded in 1642; but this was replaced by the treaty of 1654, which was a treaty of peace and alliance.

This, then, is the first fact to be appreciated in regard to the appearance of the maxim in the English treaties. But there is another of equal importance, which enables us to get to closer grips with the Duc de

1 March 25, 1801 (Hansard, Parl. Hist., Vol. xxxv, col. 1127 et seq.)

Bassano's statement that the common law of nations was established at Utrecht.

A commercial treaty was also concluded in 1713, between France and Holland, in which the principle of the flag was accepted. It existed in the old treaty between England and Holland. Therefore these three countries, England, France, and Holland, severally agreed that, whenever there was a war between any two of them, the flag of the third, remaining neutral. should protect the property of either belligerent from seizure by the other.

The consequences of this will be made clearer by taking concrete cases:

(a) England at war with Holland: Dutch goods on French ships would be free under the Anglo-French treaty, English goods on French ships would be free under the Franco-Dutch treaty.

(b) England at war with France: French goods on Dutch ships would be free under the Anglo-Dutch treaty; English goods on Dutch ships would be free under the Franco-Dutch treaty.

(c) France at war with Holland: French goods on English ships would be free under the Anglo-Dutch treaty; Dutch goods on English ships would be free under the Anglo-French treaty.

The freedom of enemy goods on neutral ships in any of these several wars would extend no further than as here stated, for the plain reason that the treaty stipulations warrant no more extended modification of the practice. Again concrete cases will make this intelligible:

If England were at war with Holland, neither Dutch nor English goods would be free on Russian ships; nor, if England were at war with France, would French or English goods be free on Bremen ships; nor, if France were at war with Holland, would French or Dutch goods be free on Danish ships; for in none of these cases is there a treaty to support the claim.

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Two things are thus made abundantly clear. Firstly, that, in the common form in which free ships free goods" is accepted in the treaties, its application is strictly limited to the specific case provided for; and nothing but a stipulation that the principle is to apply in case of war between the parties to a treaty could warrant the claim to the wider freedom for enemy goods on all neutral ships. Secondly, that, so long as the common form is adhered to, a number of similar treaties between different States would bring the principle no nearer to that universal acceptance which alone would warrant the statement that it has become part of the "common law of nations." Such universal acceptance could only be arrived at, if at all, by a treaty to which all nations were adherent, in which "free ships free goods was accepted as a definite principle. It would then, all being adherent, govern every war between any two or more nations, and the belligerents and all neutrals would be entitled to claim the benefit of it.

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The application of the principle enemy ships enemy goods," also accepted in these three treaties. would work out in a corresponding manner.

Freedom of the Seas

III

THE SILESIAN LOAN, 1752–3

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THE history of the Silesian Loan, of its guarantee by Frederick the Great, of his refusal to pay the final instalment in order to recoup his subjects for losses sustained by them on account of the seizure of some Prussian neutral ships by English privateers during the war with France (1744-1748), together with the full text of the documents and despatches, will be found in Sir Ernest Satow's monograph, "The Silesian Loan and Frederick the Great. The documents are (1) The "Exposition des Motifs," prepared by Frederick's lawyers; (2) the Report to George II of the English Law Officers, commonly known as the Réponse sans Réplique"; (3) A Memorandum prepared by the French Government. The English Law Officers were Sir George Lee, Dean of Arches; Dr. G. Paul, Advocate-General; Sir Dudley Ryder, AttorneyGeneral; and Mr. William Murray, afterwards Lord Mansfield, Solicitor-General.

The Prussian Exposition is of great importance, because it was the first public challenge to established practice, and claimed that free ships as of right make free goods. It recognized the fact that, up to that time. the maxim was only to be found in treaties; but it deduced from this fact its general acceptance by the nations as a principle of the Law of Nations. The chain of reasoning was this. Belligerent rights as against neutrals are limited to search for and seizure of contraband and seizure for breach of blockade. This established, it followed that enemy property could not be seized on board neutral ships, and therefore that free ships must make free goods.,

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1 Oxford, 1915.

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Of the ships seized some had been simply returned; but (1) some were restored by the Prize Court with freight and the enemy goods on board only condemned; and (2) some were restored, but their cargoes condemned as contraband going to the enemy.

The argument of the Exposition des Motifs took the form of answers to a series of questions propounded by Frederick. The first question was whether the English cruisers had a right to seize Prussian vessels at sea and take them into an English port for adjudication, in spite of the exhibition of their papers, which showed that there was no contraband on board. The answer of the lawyers was that the seizure was a violation of the Freedom of the Seas.

Ce procédé est visiblement contraire au droit de la nature et des gens, selon lequel c'est un principe universellement reconnu par tous les peuples raisonnables, que la mer est au nombre des choses appelées res nullius, ou desquelles l'homme ne peut se rendre le maître. Si donc personne ne peut s'attribuer la souveraineté et la propriété de la mer, il s'ensuit naturellement que l'usage en est commun à tous les hommes, et que personne n'est en droit de l'interdire aux autres. Selon ces principes fondés dans la raison, toutes les Puissances ont un droit égal de naviguer et de commercer sur mer.

The second question was whether there was a right to visit Prussian vessels at sea, on the ground that they had enemy property on board? The answer was that although the vessels had been released, and only the French enemy property on board confiscated, yet this was contrary to the Law of Nations and all treaties, because Prussians had by that law the right to traffic with France and Spain. It was insisted that no wrong could be done to England, because these vessels had been seized on their return voyage to neutral ports, and therefore there could have been no question of contraband, which was the only exception to free navi gation applicable to the case. Further, it was incontestable that “selon la raison et le droit des gens même," enemies are safe from one another when they meet in a neutral place; that therefore a belligerent