James Madison Papers

To James Madison from Peter S. Du Ponceau, 8 July 1805

From Peter S. Du Ponceau

Philadelphia, 8th. July 1805.


Agreeably to your desire communicated to me by Mr. Wagner,1 I have Sat down to collect & put together in the form of Notes, the facts which had struck me in the course of my reading as throwing light on the history & motives of the British prohibition of the Trade of neutrals with the Colonies of her Enemies. The Subject being very interesting has grown upon me, & this interest, added to an indisposition of Some days has been the cause of its taking up more time than I expected. Having divided my enquiry under three periods, I take the liberty, lest you Should Suspect that I have neglected your intimation, to enclose the first which is completed,2 & the others will Shortly follow. My object has Simply been to refresh your memory as to a variety of facts, to which, not having at hand the books in which they are recorded, you cannot easily recur. I shall be happy if I can Succeed in convincing you of my Zeal in any thing that may be agreeable to you & of my profound respect. I have the honor to be Sir Your most obedient humble Servant

Peter S. DuPonceau


Notes on the restrictions imposed by Great Britain,

on the commerce of neutrals with the Colonies

of their Enemies, in time of War.

It is expected that the result of these notes will Shew

1st That the restrictions alluded to were not thought of by Great Britain, nor by any other power until the War which began in 1756.

2. That the alledged principle on which those restrictions are founded, was first broached by the British jurists at the period of that War, and has not been advanced or acted upon, either before or Since by any other power.

3dly. That the reasons alledged by Great Britain in Support of those restrictions are merely colourable, while the true reason, which is carefully kept concealed, is a desire to monopolize in time of war, the trade of the French & Spanish American colonies, and therefore that those restrictions are not a measure of war against their Enemies, but a direct hostility upon neutral States.

They are not a measure of war against their Enemies to prevent their colonies from being Strengthened by Supplies from abroad, Since she Supplies them herself with the same articles which She prevents neutrals from furnishing.

They are an act of direct hostility upon neutrals, Since they intercept and destroy their Commerce in order to make room for their own.

These points will be attempted to be elucidated by a recurrence to historical facts.

We shall consider this Subject under three distinct periods.

1. From the reign of Queen Elizabeth to the peace of Utrecht in 1713.

2. From the peace of Utrecht to that of Aix La Chapelle in 1748.

3. From the peace of Aix La Chapelle to the present time.

First Period

From the reign of Queen Elizabeth to the peace of Utrecht

It is in vain to look into the Works of the writers of that period for principles particularly applicable to the commerce of neutrals with the Colonies of Belligerents in time of War, and the reason of it Seems to be that the nations who possessed Colonies in America, & particularly Spain & Portugal, were much more jealous of their Commercial monopoly than they are at present, it does not appear that any contraband Trade was carried on with them by neutrals in time of War, & therefore the state of things was not Such as to give rise to discussions Similar to the present.

We find, indeed, that at that time, Belligerent nations were equally jealous of the commerce & prosperity of neutrals in time of war, as they are now, and that they endeavoured to prevent their deriving profit from trading with their enemies, but among the various prohibitions of neutral trade which took place in that interval of time, there is none to be found directed particularly against the Trade to or with enemy’s colonies.

The Law of nations as to the Trade of neutrals with Belligerents, appears to have been at that period very much undefined, & indeed, the Subject of Neutrality in general, had not yet sufficiently drawn the attention of the publicists, for we find it barely touched upon, even by Grotius, who collected the Scattered principles of the Law of nations, & reduced it into a regular System.

How vague & how unsettled those principles were during the period that we are Speaking of, & what was the general Spirit of the prohibitions of Belligerent powers at that time, will best appear by a recapitulation in chronological order of the most prominent actes of the Europe an Governments, in respect to the Commerce of Neutrals in time of war.

In 1551. The Hanse Towns required of Denmark that they Should not trade with the Dutch, with whom they were at war. 1. Hubner 78.3

In 1572. John, King of Sweden being at war with Russia, issued an Edict, prohibiting all nations from Trading with Livonia and the port of Nerva—Thuan. B: 96.4

Poland issued a Similar prohibition, & many Vessels were captured in consequence of it—Marquard. de jure mercat: p. 1495—La Liberté de la navigation & du commerce & ca. p: 155.6

In 1584. The States of Holland, & in 1586 The Earl of Leicester, who governed that country, prohibited all nations from Trading with Spanish Flanders—(The pretence was—a blockade of the whole coast) Bynk: Quæst: Jur. pub. B. 1. Cap: 11.7

In 1597. Queen Elizabeth prohibited neutrals from trading with the Dominions of Spain. Thuan: B. 119. Camden annal, Sub anno 1597.8 Some writers have pretended that she only prohibited the carrying of provisions, naval Stores & contraband articles, but Thuanus gives us at length her answer to the complaint of the Ambassadors of the King of Poland, on this Subject, in which she is made to say “Navigationem Mercatorium Osterlingorum, quod impediat, frumento præsertim & apparatu bellico hostes adjuventium, multas justasque causas habere”9 nor Says She, do the particular privileges granted to the Easterlings, interfere with this prohibition, for this Special clause has been very properly inserted in them “Ne ad regni hostes commercii Specie commeare liceat.”10 And she quotes the Example of Sweden & Poland in 1572. Thuan: Ibidem.

In 1599. The States genl. issued an Edict, prohibiting all nations from trading with Spain. Grot: Hist: Book 8. P: 371. La Liberté &ca. p. 157.11

In 1610. Charles IX of Sweden, being at war with Poland, interdicted all Commerce with Riga, which then belonged to that Republic, & with the Dutchy of Courland. La Liberté &ca. page 154. marquard p: 148.

In 1625 Charles I of England made a Treaty with the Dutch by which they agreed to unite their endeavours to prevent neutrals from trading with Spain or her Dominions, by fair means, if possible, that is to say, by obtaining from the Sovereigns of Europe a prohibition of that Trade to their Subjects, otherwise by arresting Searching &ca. the Vessels when suspected of being bound to Spain or the ports of her Dominions. Such is the Spirit of the articles 20. 23. of that Treaty, which is to be found in Dumont, Corps Diplom: Tom 5. Part 2. p. 478.12 Its execution and the measures of retaliation which France pursued in consequence of it, were, says the author of La Liberté &a. p. 160. The cause or rather the pretext of the war between France & England in 1627.

In 1652. The Dutch being at war with the commonwealth of England, prohibited all nations from Trading with the British Dominions. Bynk: Quæst: Jur: Pub: B. 1. C 10.

In 1663. The Spaniards issued a Similar prohibition against trading with Portugal. Bynk: Ibid: C 4.

In 1689. The English made a Treaty with the Dutch, by which it was Stipulated that all vessels found trading with France or her Dominions Should be condemned as prize. The Dutch Plenipotentiaries did not much relish the Article, & remonstrated against it “il faut que cela Soit ainsi,” answered King William, “C’est le droit Comun.”13 La liberté &a. p: 163.

The above instances will be Sufficient to shew what was the Spirit of the prohibitions of Belligerent nations against neutral Trade, during the period that we are treating of—There is not to be found in the whole history of those times (at least as far as we have been able to investigate) a Single instance of a prohibition particularly directed against trading with the colonies of Enemies. Of course as the Subject never came under discussion, the writer who treated on the Law of nations did not make it the object of their enquiries. Those that we have at hand have been particularly examined with that view, &, as was expected, nothing has been found in them bearing directly upon the present question.

And, indeed, there was nothing in the State of Colonial commerce at that time, that could give rise to a discussion of this kind. The colonies of the nations of Europe in America, except those of Spain, were yet in their infancy. Spain of course, excited the jealousy of all the other Nations, & particularly by her extravagant pretention of the exclusive Sovereignty of the American Seas. It was well known that she denied to other nations the right of navigating those Seas without her permission. When Oliver Cromwell remonstrated against that claim to Don Alonzo De Cardenas, the Spanish Ambassador, when he complained that the English were treated as Enemies wherever they were met with in the American Seas, and that the English Subjects were liable to be molested by the Inquisition the ambassador answered: “That to ask a liberty from the inquisition and free Sailing in the West Indies, was to ask his master two eyes; and that nothing could be done on these points, but according to the practice of former times.” Long’s Hist: of Jamaica, Vol: 1. p: 291.14

Spain, therefore in war, as well as in peace, watched her Colonies with the most jealous eye, and did not Suffer this Sanctum Sanctorum to be approached by adventurers from other Countries.

The other nations on their parts had but two objects in view.

1st. To colonize Such parts of the American Continent & Islands, as they could take possession of—2dly. To annoy by all the means in their power, & destroy, if possible the Colonies of Spain.

Hence it happened that France and England, tho’ at peace with Spain in Europe, were perpetually at war with her in America—Anderson on Trade, Vol: 2 p. 139.15

It is now well known the Buccaneers who in the 17th. century, did so much mischief to the trade and Colonies of Spain in America, were protected & encouraged by the Governments of France & England. Sir Henry Morgan,16 the great English leader of those daring men acted by virtue of a regular commission 1. Long. 301. 2. Anders: 140. and the King Charles 2. himself Shared in the Booty. 1 Long, 626.

The total destruction, therefore, of the Spanish Establishmts. in America, & not a participation in their advantages by means of a contraband Trade, were at that time the object both of France & of Great Britain, while, on the other hand the avenues to those countries, were so well watched by Spain, that contraband was if not altogether impossible, at least very difficult to be carried on, nor does it appear to have been thought of at that time, as an object for mercantile enterprize.

Such was the State of things during the greatest part of the period which we have before us. It continued so until the year 1670 when another Scene began gradually to unfold itself, and to prepare the events which happened in the Subsequent period. Spain and England, tired of mutual hostility, concluded on the 18th. of July of that year, a Treaty to restore peace and good understanding between them in America. By the 9th. Article of that treaty, it was Stipulated, that the Subjects of both parties should abstain from Sailing & trafficking to the ports of each other in the West Indies, & by the 15th. That it was nevertheless to be understood that the freedom of navigation Should not be interrupted, when nothing was attempted contrary to the 9th. article. 2d. Chalmers 34.17 1 Long 305.

The French continued longer to disturb the trade of the Spaniards in the American Seas, but the British Government began from that time to turn their thoughts from the project of destroying that trade, to that of participating in it, that project however was not fully matured until the next period.

The Spaniards compelled by actual necessity, had now begun for the first time to shew to foreigners the way to their American ports. On this Subject we shall here Copy a note from Long Vol: 1. page 598. “In 1669. Spain for want of Ships & Sailors of her own, began openly to hire Dutch Shipping to Sail to the Indies, tho’ formerly so careful to exclude all foreigners from thence, and so great was the Supply of Dutch manufactures to Spain &c that all the merchandize brought from the Spanish West Indies, was not sufficient to make returns for them, So that the Dutch carried home the ballance in money.” The English then began to see that it was better to endeavour to profit by the Spanish Colonies, than to attempt to destroy them.

The new System of measures which afterwards developed itself on the part of Great Britain appears to have been pointed out to the ministry by an intelligent Gentleman, of the name of Nevil, who resided at Jamaica. In a letter which he wrote to the Earl of Carlisle,18 about the year 1677. which is recorded in Long’s History, Vol: 1. page 596. he recommends the following plan:

1 To encourage the Settlement and Cultivation of the Island of Jamaica

2 To endeavour to obtain a Trade with the Spaniards, but Says he, so many obstructions will arise from their jealousies & interests in the beginning, as will require a more than ordinary Care in conducting it, & some assistance here & at home to make it practicable.

3 To make some Contract for Supplying their American Settlements with negroes. This he recommends as a means to gain a Trade with those Settlements.

4 To maintain bonâ fide the peace made with the Spaniards & not to Suffer the French to molest or disturb their Trade in the West Indies.

5 To drive the French, if possible, entirely from the Island of St. Domingo, where they had begun to make Settlements, which promised to rise into importance.

These hints appear to have Sunk deep into the minds of the ministry of Great Britain, & we find Mr. Nevil’s plan begun to be carried into effect in the famous Asiento Treaty, concluded in 1713.19

RC (DLC); letterbook copy and letterbook copy of enclosure (PHi: Peter S. Du Ponceau Letterbook, 1777–1839). In the margin of the letterbook copy of enclosure is a note in Du Ponceau’s hand: “2d Period Sent 15 July / 3d Period Sent 23 July.”

1Jacob Wagner had written Du Ponceau on 27 June, asking for the information (Du Ponceau to Wagner, 29 June 1805, PHi: Peter S. Du Ponceau Letterbook, 1777–1839).

2JM presumably used Du Ponceau’s notes while composing his own Examination of the British Doctrine, Which Subjects to Capture a Neutral Trade, Not Open in Time of Peace later in 1805 ([Washington, 1806]; Shaw and Shoemaker description begins R. R. Shaw and R. H. Shoemaker, comps., American Bibliography: A Preliminary Checklist for 1801–1819 (22 vols.; New York, 1958–66). description ends 10776).

3Du Ponceau referred to Martin Hübner’s 1759 De la saisie des bâtimens neutres, 1:78, in which Hübner actually says that the Hanseatic cities demanded that the Dutch stop trading with the Danes, but that the Dutch replied that such trade was their right and they would not refrain from exercising it. Hübner (1723–1795) was born in Hanover but raised and educated in Denmark, where he became a professor of history and philosophy at the University of Copenhagen from which he had graduated. He was a member of the Society of Arts and Letters in Paris and of the Royal Society in London (Ernest Nys, Études de droit international et de droit politique, 2d ser. [Brussels, 1901], 55 n. 2).

4Du Ponceau referenced Historiarum Sui Temporis (5 vols.; Paris, 1604–20) by Jacques-Auguste de Thou (PJM, description begins William T. Hutchinson et al., eds., The Papers of James Madison (1st ser., vols. 1–10, Chicago, 1962–77; vols. 11–17, Charlottesville, Va., 1977–91). description ends 10:309 n. 1; Sowerby, catalogue of Jefferson’s Library, 1:73 and n.). Jacques-Auguste de Thou (1553–1617) was educated in the law and was a member of the Parlement at Paris and the council of state. His history was placed on the Index Librorum Prohibitorum (List of Prohibited Books) in 1609 (Berard L. Marthaler et al., eds., New Catholic Encyclopedia, 2d ed., [Detroit, 2003], 14:61).

5This was the Tractatus Politico-Juridicus de Jure Mercatorum et Commerciorum Singulari…: Accesserunt in Fine Tractatus Ipsa Privilegiorum, Constitutionum, Statutorum, Pactorum, &c. Exemplaria… (2 vols. in 1; Frankfurt, 1662) by Johann Marquart. Johann Marquart (1610–68) studied law in Jena, Leipzig, and Padua. He was elected to the city council of Lübeck and became its mayor in 1663. As diplomatic representative for that city, he was renowned for his skill in negotiation and his knowledge of commercial law. He is considered to have written Europe’s first comprehensive treatise on commercial law (Otto Stolberg-Wernigerode et al., eds., Neue Deutsche Biographie [24 vols. to date; Berlin, 1953—], 16:244–45).

6Du Ponceau cited La liberté de la navigation et du commerce des nations neutres, pendant la guerre, considerée selon le droit des gens universel, celui de l’Europe, et les traités… (London, 1780) by Eobald Toze. However, what Toze says is that Sweden forbade all commerce with Polish territories in Latvia (ibid., 154). Toze (1715–1789) was a professor of public law and history at the University of Butzow, counselor to the duke of Mecklenburg-Schwerin, and a member of the Royal Academy of History in Göttingen (Biographie universelle [1843–65 ed.], 42:9).

7Du Ponceau referenced Quaestionum Juris Publici Libri Duo, Quorum Primus Est de Rebus Bellicis, Secundus de Rebus Varii Argumenti (Leiden, 1737) by Cornelis van Bijnkershoek. Following the assassination of William of Orange in July 1584, which left the Dutch revolt against Spain leaderless, the States General offered the sovereignty of the region first to Henry III of France, then to Elizabeth I of England, both of whom refused, although the latter agreed to supply the states with military aid. Robert Dudley, Earl of Leicester, was placed in charge of the troops and named governor general, a position he held until late 1587. He imposed his embargo, which had a profound effect on Dutch trade and food prices, in April 1586. The Estates of Holland on 27 July 1584 had issued an earlier decree forbidding neutrals to trade with Spanish Flanders on pain of having their ships and cargoes confiscated. Dutch jurist Cornelis van Bijnkershoek (1673–1743) was first a member and later president of the supreme court of Holland and Zeeland, who wrote several seminal works on international law (Jonathan I. Israel, The Dutch Republic: Its Rise, Greatness, and Fall, 1477–1806 [Oxford, 1995], 216, 219–20, 225–28, 230; Cornelius van Byjnkershoek, Quaestionum Juris Publici Libri Duo, Classics of International Law 14 [2 vols.; 1737; facsimile reprint, Oxford, 1930], 2:75; Encyclopaedia Britannica [11th ed.; 29 vols.; Cambridge, 1910–11], 4:896).

8Du Ponceau here referenced William Camden’s Annales Rerum Anglicarum, et Hibernicarum, Regnante Elizabetha (2 vols. in 1; Leiden, 1625). William Camden (1551–1623) was an English educator, historian, and herald who was educated at Oxford and taught for over twenty years at Westminster School. After he published a historical and geographical description of the British Isles in 1586, he was named senior herald in the College of Arms. His Annales, the first biography of Elizabeth I, was written in two parts; the first was published in 1615 and the second, posthumously, in 1625.

9“Navigationem Mercatorium Osterlingorum, quod impediat, frumento præsertim & apparatu bellico hostes adjuventium, multas justasque causas habere.” They had many just reasons to interfere with the merchant navigation of the Eastern people, who were helping the enemy, especially with grain & means of war (editor’s translation).

10“Ne ad regni hostes commercii Specie commeare liceat.” Nor shall it be allowed to work together with the enemies of the kingdom under the appearance of trade (editor’s translation).

11Du Ponceau is citing Hugo Grotius’s Annales et historiae de rebus Belgicis (1657). In the English translation by T. Manley (London, 1665) the referred matter is found in book 8, 639–40, which states that the States General sent copies of their decree to several countries “that none might pretend ignorance thereof.” Hugo Grotius (1583–1645) was a Dutch diplomat and philosopher whose treatise on international law, De Jure Belli ac Pacis, is regarded as “an essential foundation” for the study of that subject (Paul Edwards et al., eds., The Encyclopedia of Philosophy [8 vols. in 4; 1967; reprint, New York, 1972], 3:393).

12Du Ponceau cited Corps universel diplomatique du droit des gens; contenant un recueil des traitez d’alliance, de paix, de treve,… faits en Europe, depuis le regne de l’empereur Charlemagne jusques à présent… (8 vols. in 14; Amsterdam, 1726–31) by Jean Dumont. In articles 20–23 of the treaty, the signatories listed what was to be considered contraband, agreed to persuade all neutral rulers to forbid their subjects to trade with Spain, and further agreed that if those rulers would not do so, the signatories would seize any ships suspected of such trade and carry them into their own ports for inspection (Davenport and Paullin, Europe an Treaties, 1:297–98). Jean Dumont (1667–1727) entered the army but left after having been tried and acquitted of espionage. He traveled through Italy, Malta, Turkey, and Germany, and wrote about his voyages. His book on the peace of Ryswick brought him to the attention of Count Zinzendorf, who recommended him to Emperor Joseph I, who charged Dumont to write a history of the battles of Prince Eugene of Savoy. Dumont was a counselor and historiographer to Charles VI, who named him baron de Carlscroon in 1725 (Dictionnaire de biographie française, 12:220–21).

13“It is necessary for it to be that way” and “it is the common law.” For the 1689 treaty between England and the United Provinces forbidding either signatory to trade with France, see Jenkinson, Collection of All the Treaties between Great Britain and Other Powers (1968 reprint), 1:292–95.

14Du Ponceau cited Edward Long’s History of Jamaica…. with Reflections on Its Situation, Settlement,… Laws, and Government (3 vols.; 1774; reprint, London, 1970), which said that Cromwell based his complaint on the 1630 treaty between England and Spain, which stated “that there should be a peace, amity, and friendship, between the two kings and their respective subjects, in all parts of the world.” Cornish native Edward Long (1734–1813) belonged to a family that had for de cades been connected with the Jamaican government. In 1757 he moved to Jamaica, where he was a judge of the vice-admiralty court and a member of the legislative assembly. He returned wealthy to England in 1769 and wrote a number of pamphlets on Jamaica before producing his epic work.

15Du Ponceau referred to Adam Anderson’s Historical and Chronological Deduction of the Origin of Commerce from the Earliest Accounts Containing an History of the Great Commercial Interests of the British Empire (4 vols.; 1801; reprint, New York, 1967), 2:493–94. Scottish-born Anderson (1692–1765) spent forty years in London’s South Sea House, rising in the end to chief clerk. An Historical and Chronological Deduction of the Origin of Commerce, first published in two volumes in 1762, made his reputation as “one of the first serious historians of commerce.” JM was familiar with Anderson’s work and cited him often in the 1780s and 1790s (PJM, description begins William T. Hutchinson et al., eds., The Papers of James Madison (1st ser., vols. 1–10, Chicago, 1962–77; vols. 11–17, Charlottesville, Va., 1977–91). description ends 13:208, 209, 211 n. 5, 366, 367 nn. 1, 3–9, 367–69 and nn.; 14:121, 122 n. 5; 15:170 n., 179, 189, 201 n. 8, 216, 224 n. 4; and 17:575).

16Henry Morgan (ca. 1635–88) was a privateer who led plundering expeditions in the 1660s against Spanish territory in Portobelo in Panama and Maracaibo in Venezuela in the on-again, off-again Anglo-Spanish wars of the period. In 1671, with an army of over 2,000 volunteers, he captured and sacked Panama City. He was arrested in a campaign against privateering in 1672 and imprisoned in the Tower of London until 1674, after which he was named lieutenant governor of Jamaica and knighted. He returned to the island, where he also served as a council member and an admiralty court judge, and with the tacit approval of Charles II, encouraged privateering against Spain. He was acting governor from 1680 to 1682 but was suspended from office in 1683 when his political rivals gained power. He used his time in office to accumulate wealth and died one of the richest men in Jamaica.

17Du Ponceau referred to George Chalmers’s Collection of Treaties between Great Britain and Other Powers (2 vols.; London, 1790). It is the eighth article of the Anglo-Spanish treaty of 1670 that forbids subjects of each country from trading with the West Indian possessions of the other (ibid., 2:34, 37, 39). In his discussion of the treaty, Long also confuses the provisions of the eighth and ninth articles (History of Jamaica [1970 reprint], 1:305–7).George Chalmers (1742–1825), was born and educated to the law in Scotland and emigrated to America in 1763, where he invested in land and practiced law in Baltimore. A Loyalist, he returned to England in 1775 and spent the next several years producing anti-American works. In 1786 he was named chief clerk of the Privy Council’s Committee on Trade and Foreign Plantations, a position he held until his death, and in 1792 he was appointed London agent for the legislative assembly of the Bahamas. He was a prolific writer who researched and published several histories of Scotland while filling these two positions.

18Charles Howard, 1st Earl of Carlisle (1628–1685), who held government and military offices under both Oliver Cromwell and Charles II, was governor of Jamaica from 1677 to 1681.

19For the Asiento of 1713 between Spain and Great Britain allowing the British to import 4,800 slaves a year for thirty years into the Spanish colonies in the West Indies and South America, see Jenkinson, Collection of All the Treaties between Great Britain and Other Powers (1968 reprint), 1:375–99.

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