be drawn hereafter from the past contest to the prejudice of any reciprocal rights existing, before not expressedly deviated from by some new stipulation.

On this general ground it is, I mean a restitution of reciprocal rights in integrum after a war, implied as well as expressed, that the jus postliminii, which never has been called in question in any period, reverts to creditors relative to the debts due to them from the subjects of the belligerent state, contracted before the war, during which, although the right of the creditor to recover the same is suspended, yet it is not annihilated by any confiscation, but he may pursue and obtain his demand after the war. Now the same restitution in integrum of na tional rights and obligations is as reasonable and just between the respective governments, as it is universally allowed to exist between their subjects, one with another; for the revival of all obligations, public as well as private, stands undoubtedly upon the same analogy of justice.

But there is still a more striking instance of all obligations not entirely sinking in a war, when the creditors of one belligerent party are the subjects of the other hostile government, and yet preserve the right to their property, by the law of nations, flagrante bello, without danger of confiscation. Such is the force of those exalted principles of public law, which, in these happier ages of human society, restore their proper empire over the minds of men to good sense and good faith, with a force superior to the passions or prejudices of nations long accustomed to be rivals; and such I conceive to be the law of Europe in its present state, which, whenever these doctrines, founded in reason and humanity, shall cease to prevail, will fall back into all the gloom of a barbarous condition of ignorance and despotism.

The war between England and France which followed the revolution, suspended the commercial treaty of 1686, called the treaty of neutrality. The treaty of peace concluded at Ryswic, 1697, takes no notice of it nominally, but revives it, not only by the general quality of a treaty, putting an end to the war, but by the strongest terms of a general comprehension, restoring the commerce of the two nations, reciprocally, to the state in which it existed before the war.

The 5th article is, liber sit usus navigationis et commercii inter subditos utriusque dominationis, regum prout jam olim erat tempore pacis et ante nuperrimi belli denun

ciationem.

The commerce of the two nations was declared free, just in the same degree as it was free before the war, and of course prohibited in the same degree; so long as, in our reasoning, every affirmation carries with it the necessary negation of its opposite.

Thus was the treaty of 1686 revived, by implication, in the terms of the treaty of Ryswic; but it was as strongly revived by reciprocal acts of acknowledgment; and both nations adhered to the treaty of 1686 till the war of Queen Anne. By that war the vigor of the treaty of 1686 was again suspended till the general peace of Utrecht, and revived again in the same manner as before.

The 7th article is, la navigation et le commerce seront libres, entre les sujets de leurs majestes, de meme qu'ils l'ont toujours ete en tems de paix, et avant la declaration de la guerre.

The separate treaty of commerce between Great Britain and France at the peace of Utrecht was confined to Europe, which shows that both parties considered the treaty of 1686 as reciprocally subsisting in Ameri

ca, for otherwise they certainly would have provided for it in a treaty the most comprehensive in history, and the most definitive in developing and fixing all the interests of the belligerent parties, except the last, since the treaty of Westphalia.

It must be judged that both France and England then considered the treaty of 1686 as a subsisting treaty, not only for the reason I have already given, but for others. The 6th article of the general treaty of Utrecht refers the case of mutual confiscation of ships, in America, which had been made in time of peace (most probably on the ground of the treaty of 1686) to commissaries: it must mean, or it could mean nothing, that the decision of these commissaries should be made on the basis of some treaty, and no other treaty could possibly be, in the contemplation of the contracting parties, but the treaty of commerce and neutrality of 1686, subsisting at the time of the capture, and the 6th article of it relative to confiscation of ships and cargoes in America. Farther, the validity of the treaty in question appears plainly acknowledged, in fact, by no step being taken in contravention to it by France and England for so long a period as from 1713 to 1727. It was again acknowledged more particularly in about 1738, when the French court repealed the edict which had been made in contravention to the treaty in question, on the warm remonstrances of the British government.

The treaty of 1686 remained thus considered, by both nations, and by all Europe, as a subsisting treaty till the war of 1744. The treaty of Aix la Chapelle took no notice of this treaty, nominally, but renewed all subsisting treaties. The treaty of 1686 was acknowledged, in fact, by both nations acting in consequence of it till the war of 1756.

The last definitive treaty of peace, like that of Aix la Chapelle, does not nominally revive the particular treaty of 1686; but having first, nominally, revived the great general treaties, in which the interests of the other powers of Europe have been settled at different periods, it goes on to renew all other treaties which subsisted between the contracting parties before the war: thus a distinction clearly appears, that some treaty is understood to subsist, which is not named, and which is of a different nature from the treaties specified; and that the treaty understood is relative only to the interests of the two contracting parties, separate from the rest of their allies and confederates, who were parties. to the treaties which were revived by name; so that there is a very reasonable ground of implication, from the terms of the reviving stipulations, that the treaty of 1686 was meant to be revived as a subsisting treaty by the last definitive treaty. But upon the general analogy, it is a much stronger case that a commercial treaty should subsist by implication, than that a subsidiary treaty of alliance, which I take to be out of doubt, should subsist by implication, though made for a limited time, as completely as by signing, sealing, and formal ratification, provided the parties do any act declarative of their consent to the renewal, which as I observed before, is the ground on which all contracts are supported. If one party advances the subsidy for another year or more, and the other accepts it, it is, undoubtedly, a subsisting treaty, notwithstanding that the term limited is expired, Now, in the case of the validity of a general treaty of commerce, the implication of validity is stronger, because there being no limitation of time, nothing expires; but there is only a suspense of the obligation, during the interval of a war.

The general stipulations of revival in the definitive treaties deserve particular attention, because under the terms, "renewing all subsisting treaties," it is plain, that they do not subsist, because they are renewed; but they are renewed in words, but subsist because the war is at an end. This usual stipulation would be nugatory, if it revived nothing by implication of this expression; and it would be redundant, if it did not attempt to show that it did not mean to abrogate specially, or by any implication, but on the contrary to give the utmost force to that which was already understoood to subsist generally.

Upon the whole matter, for some one or all of these reasons, or for better, which may occur to the contemplation of their Lordships, and the wisdom of his Majesty's administration, under the present circumstances of the British and French colonies in America, I have the honor to submit that the treaty of 1686 may be insisted upon, as a subsisting treaty, not only because it is revived by a strong implication of words and facts, but for that it may be understood to subsist because it never was abrogated.

JAMES MARRIOTT, Advocate-General.

Feb. 15, 1765.

If the King's advocate's last report on the treaty of 1686 is not circulated, he begs the favor of Mr. Pownall to alter the passage, page 8, beginning at the words, "But there is still a more striking instance," &c. &c.

Instead of it, read as follows, "But there is still a more striking instance of all obligations not entirely sinking in a war, when the subjects of one government are the public creditors of the other, and yet these alien enemies preserve the right to their property in the pub