James Madison Papers

To James Madison from Peter S. Du Ponceau, 15 July 1805 (Abstract)

From Peter S. Du Ponceau, 15 July 1805 (Abstract)

§ From Peter S. Du Ponceau. 15 July 1805, Philadelphia. “I have the honor of enclosing to you the Continuation of my Notes &c. for the Second period.1 I beg you will excuse me for Sending it thus by parcels, but living as I do at present partly in Town & partly in the Country, & not having before me at the same time all the Books that I have occasion to recur to, it necessarily requires more time than it would otherwise do, & correctness & accuracy being the only merit of these Notes, I would not wish to be deficient in this particular. The third & last period, I shall have the honor of Sending you with the least possible delay.”


Second Period.

From the Peace of Utrecht to the peace of Aix La Chapelle

After the cessation of the hostilities between Spain & Great Britain in America, by the Treaty of 1670, commo[n]ly called the American Treaty,2 a contraband commerce began to be carried on principally if not altogether by English Vessels, from the Island of Jamaica to the Colonies of Spain—This Commerce was already Very considerable at the time of the Treaty of Utrecht. Bryan Edwards tell[s] us that about the beginning of the last Century the Trade of the Spanish Colonies employed 4000 Tons of English Shipping & created a Vent for one million & a half of English merchandize (1. Edw: Hist: W.Ind: 284. Philad: Ed:).3

Of So much consequence was this Commerce already considered at that period by the British Government & so jealous were they of other Nations Sharing in it, that they insisted in their Treaty with the French at Utrecht & obtained an engagement on the part of the King of France “that he should not accept of any other usage of Navigation to Spain & the Spanish Indies, than what was practised there in the reign of Charles 2 of Spain, or than what Should likewise be fully given and granted at the same time to other Nations & people Concerned in Trade” See the Treaty art: 6. in 1st Chalm: 340.4

On the other hand Great Britain availed herself of the favorable Circumstances then existing to obtain from Spain all the Commercial advantages that she could in America. France in 1701 had made with Spain an Assiento Treaty for 10 years which were expired—Britain made one for thirty years on the same terms that France had had it before (See the Treaty Art: 12)5 and obtained besides the Liberty of Sending annually to Porto Bello during that period, a Ship laden with her manufactures, which was called the annual Ship.

With these powerful means, it is well known in what manner Great Britain Contrived to encrease he[r] Contraband Trade with the Spanish Colonies, so that in the year 1739 the King of Spain thought himself authorized to assert in the manifesto which he published at that time, That that contraband Trade yielded annually to the English by their own Confession Several millions—6 Lord’s Debates 247.6

The English Writers themselves inform us to what a degree this Trade was then Carried. “The Assiento” Says Long, “became a great Source of improvement to Jamaica, Kingston became the great Magazine for Supplying British manufactures to the Spaniards; numberless merchants, factors & Traders were attracted by the gainful plan of business which then opened to view”—1 Long 297.

The English were now bent not only on forcing a direct Trade between their Colonies and those of Spain, but on being themselves the carriers of it. The Spaniards grew jealous, remonstrated, let loose their Guarda Costas, took all the English Vessels which they found in the American Seas and Suspected to be engaged in that Trade, the English complained; eleven years, from 1728 to 1739. were Spent in mutual complaint & negotiations (1. Long 293.) at last War broke out between the two nations, which was declared by Great Britain on the 19th. Octer. 1739. while this war continued France in 1744. became a party to it, & the two Wars, the Spanish War of 1739. & the French War of 1744. ended in 1748. by the Treaty of Aix-La Chapelle, which closes this period.7

During the Eleven years that these two Maritime Wars continued, we do not find that the British pretended to limit or restrain the Commerce of Neutrals with the Colonies of either Spain & France, on the contrary, we find that in the War of 1744. Ships taken on a voyage from the French Colonies were released before the Lords of appeal. 2 Robinson 122. Am: Ed:8 And Sir William Scott, who traces the British prohibitions thro’ all their different periods, does not speak of them previous to the war of 1756. The Immanuel 2. Rob: 156. Am: Ed.

Altho’ it appears that Great Britain at that time had a Considerable interest (tho’ not in the same degree as at present) to induce her to prevent the trade of other Nations with the Colonies of her enemies, & that she was fully as jealous of their interfering in it as she is at the present time, yet it Seems that Sufficient reasons may be assigned for the forbe[a]rance which She exercised during that War.

1. Great Britain was evidently making War upon Spain for the purpose of forcing a Trade with her Colonies. The Dutch & other Nations must have seen her efforts with pleasure, as long as She did not shew any disposition to monopolize it to herself. However she might have cloaked her prohibitions under Specious Arguments, the veil would have been seen thro’, the Spirit of monopoly would have been perceived, & the objects which the War was intended to promote might have been frustrated by her displaying too Soon the whole of her ultimate views.

2 Great Britain was then feelingly alive to the fears of Popery & the Pretender. The Carrying Nations of the North of Europe were mostly Protestant States, & She had an evident interest in treating them with justice & with moderation.

Whatever may have been the cause of the moderation which Gt. Britain displayed in the Course of this War, it appears certain, that the idea of the trade of neutrals with the enemy’s Colonies being a violation of the Laws of neutrality did not enter the minds of British Statesmen during this period, on the Contrary at the time of the breaking out of the war of 1739.both the political parties which then divided Great Britain, appear to have entertained no other idea, but that it was a Legal Trade, altho’ it militated against their commercial interests. In the Debates which took place in the British Parliament on the expediency of a war with Spain, a few days before the War was declared, this particular point came incidentally under consideration in the house of Lords, & we cannot give a better idea of the opinions which then prevailed, than by copying Extracts from the Speeches which were delivered on that occasion—they are taken from 6. Lord’s Debates 136. 154.

Lord Hervey, against the War.

“Some People may perhaps imagine that great advantages might be made by our intercepting the Spanish Plate fleets, or the Ships that are employed in that trade with their Settlements in America, because none but Spanish Ships can be employed in that Trade; but even this could be precarious, & might in Several Shapes be entirely prevented; for, if they should open that Trade to the French and Dutch, it is what those two nations would be glad to accept of, & we could not pretend to make prize of a French or Dutch Ship on account of her being bound to or from the Spanish Settlements in America, no more than we could make prize of her on account of her being bound to or from any port in Spain.” [“]We could not so much as pretend to Seize any treasure or goods (Except Contraband) she had on board, unless we could prove that those goods or that Treasure actually belonged to the king or Subjects of Spain. Thus the Spanish treasure and effects might Safely be brought &ca.”

Lord Bathurst, in answer.

“We may do the Spaniards much damage by privateering &a. If they bring their Treasure home in flotas, we intercept them by our Squadrons, if in Single Ships, our privateers take them.

They cannot bring it home either in French or Dutch Ships, because by the 6th. Article of the Treaty of Utrecht the King of France is expressly obliged not to accept of any other usage of navigation to Spain & the Spanish Indies—than What was practised there in the reign of Charles 2. of Spain or than what shall likewise be fully given & granted at the Same time to other Nations & people Concerned in Trade—Therefore the Spaniards could not Lay the Trade to their settlements in America open to the French, or at least the French could not accept of it, & if the Dutch should, they would be opposed by the French as well as by us, an opposition they would not, I believe chuse to struggle with.”

The Subject is not taken up in the whole of this debate, on the ground of Belligerent right, or of neutral duty—The opposition of France, which was then Neutral, as well as that of Britain, to the Dutch interfering in that Trade, is Threatened Solely on the ground of commercial jealousy, the true and only real ground of the prohibitions which have taken place in Subsequent times.

Such appear to have been the prevailing ideas during the period before us—The trade of Neutrals with Enemies appears to have been considered by the publicists generally as Lawful, except in the two Cases of enemy’s goods & contraband, no distinction is made between trading to the Colonies & trading to the mother Country. We have carefully looked into all the authors of this period that have come to our hands, & have not been able to find any traces of Such a distinction. We have not been able to find it even in the analogous case of the Coasting trade of Belligerents in Europe, not an idea is thrown out of its being prohibited to Neutrals in time of War. In the Debates which took place in the house of Lords respecting the Spanish Captures in america and the war which followed, Several of the Lords in their Speeches lay down in detail the particular Cases in which Belligerent Nations may Search, Capture & Confiscate neutral vessels in time of War; but altho’ Colonial Trade was the immediate Subject of their discussions, the distinction alluded to, does not Seem to have been even Suspected to prevent, the Carrying of contraband of War is the only ground on which Spain is admitted to be allowed to Search & Capture Neutral Vessels in the American Seas in time of War—See the speech of Lord Carteret 5 Lord’s Debates 402, 405. and the Speeches of Several other Lords on the Same question.

With regard to the practice of other Nations, we do not find either within this or the former period, that any nation confiscated neutral Vessels for the Specific cause of trading with Enemy’s Colonies—But candor requires us to State that a still greater degree of Severity was then exercised by Some Nations upon Neutral Trade. Louis 14th. by his Marine Ordinance of 1681, had Established the monstrous principle “Que la robe d’ennemi confisque celle d’ami,”9 See Ordinance Title des Prises art: 7 in 2 Valin 252.10 by which principle if either Vessel or Cargo were enemy’s property, the whole was liable to Confiscation. This was Copied by Spain in her ordinance concerning prizes of the year 1718. art: 9. (Chevalier d’Abreu on the Spanish Law of prizes, Vol 1. p. 144. French Translation)11—In the year 1705 France by another ordinance waived the above principle, but introduced another not less Severe, to wit; “That all Merchandize of the growth or manufactures of the Country of her Enemies found on board of Neutral Vessels was liable to Confiscation tho’ the Vessel itself was to be released[”]—(2 Valin 248)—By a Subsequent ordinance, at the breaking out of the war of 1744. She re-enacted the same Law, excepting only from its operation the Vessels of Denmark, Sweden, Holland & the Hanse Towns, in consequence of particular Treaties with those several powers (2 Valin 250.) The effect of these regulations might well prevent an intercourse between neutrals & the Colonies of the Enemies of France, but after all we have not been able to find any act either of that Country or any other, done with that direct substantive View, and the above ordinances were universally held to be contrary to the principles of the Law of nations.

We find indeed in the appendix to 4 Robinson, page 18. am: Ed: (note to document No. 3) that about the year 1705. The French tried the plan of Supplying their Colonies in America in time of War by means of Neutral Vessels, but the first Vessels which were fitted out having been taken they returned to the plan of Convoys—This may be true, but from the general Course of ideas and opinions which then prevailed in Europe respecting the Law of Nations & Neutral Trade, it seems morally impossible that they could have been taken on the fine Spun principle, of its not being Lawful for neutrals to carry on with Belligerents in time of war, a trade not permitted to them in time of peace, That these Captures originated in Commercial jealousy, there can be no doubt, & if the Vessels were condemned, pretences will not have been Wanting more suited to the opinions and to the spirit of the age.

The principle in question appears to be a modern refinemt. & Seems to have been very little known or understood even in the War of 1756. out of the British Cabinet. Long, an Englishman, who wrote after that war, & who residing at Jamaica, must have Witnessed the many Captures which were made by the British in those Seas, does not seem even to have been aware of it when he wrote the following anecdote with which we Shall conclude these notes for the present period.

“It was a shrewd remark of the Spanish Governor of St. Domingo, Don manuel Azlor, during the last War with france. At that time the Spanish Vessels were not allowed to trade with the French; but a Sloop having, Contrary to her Register, deviated to a French port, and there received a loading of French produce, was intercepted by one of our Cruizers, and carried into Jamaica for condemnation. The Spanish Governor immediately Sent to reclaim her; insisting that the Spanish Commerce in the West Indies being restrained by their Law to the Subjects of the King of Spain, all their Vessels, which had Registers to shew that they were dispatched from a Spanish port, ought to navigate freely and not be Stopped under pretence of Search; but their lading Should be suffered to pass untouched, even tho’ belonging to the French—‘If our Vessels, (added he) carried French effects to the British ports or to their Ships, I should not oppose their being Seized, & the effects Confiscated, if the Crews & Vessels were returned to us, as being Spanish, that we might Chastise our own Subjects for the transgression of our Laws, but the Ships of his Britannic Majesty are not Guarda Costas of the King of Spain, nor ought they to watch his Vessels, if they enter into an illicit trade; it belongs to me, and others, the respective Governors of the King my master, to prohibit it, to guard against, & to punish it, as we do upon all occasions. And the bad use which any Spaniard may make of his licences & passports cannot give a right, Nor legal authority to subjects of your Nation, to Seize & Carry them into your ports, and commence processes against them; by which they are ruined, even when the Cause is decided in their favour.[’]” 1 Long. Hist: of Jam: 308.

RC (DLC); letterbook copy of enclosure (PHi: Peter S. Du Ponceau Letterbook, 1777–1839). RC 1 p.

1For an earlier installment of the notes, see Du Ponceau to JM, 8 July 1805.

2For the 1670 treaty of Madrid, see Jenkinson, Collection of All the Treaties between Great Britain and Other Powers (1968 reprint), 1:197–98.

3In citing Bryan Edwards’s History, Civil and Commercial, of the British Colonies in the West Indies, 4th ed. (4 vols.; Philadelphia, 1805–6; 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 8375), Du Ponceau transposed the numbers; the correct page number is 248. Bryan Edwards (1743–1800) was born in England and in 1759 was sent to help manage an uncle’s sugar plantations in Jamaica, where he continued his education. Given two estates by his uncle, he inherited several others in 1769 and eventually owned thousands of acres and 1,500 slaves. In 1765 he was elected to the Jamaica legislative assembly, where he supported the thirteen mainland colonies in their differences with Great Britain. In 1774 he was elected to the American Philosophical Society. From 1782 to 1787 he was in England, where he published a pamphlet calling for an expansion of trade between the British West Indian colonies and the newly independent United States. He published his highly acclaimed history in 1793 (Olwyn M. Blouet, “Bryan Edwards, F.R.S., 1743–1800,” Notes and Records of the Royal Society of London 54 [2000]: 215–22). JM was familiar with Edwards’s 1784 pamphlet on the trade between the United States and the West Indies (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 8:91 n. 1, 102; and 13:208, 211 n. 7).

4For article 6 of the Anglo-French Treaty of Peace and Friendship signed at Utrecht in 1713, see Chalmers, Collection of Treaties between Great Britain and Other Powers, 1:477–78.

5The Franco-Spanish Asiento of 1701 granted the French a monopoly to import 4,800 slaves each year, from 1702 to 1712, from Corisco Island and Angola to the Spanish West Indian colonies (Hugh Thomas, The Slave Trade: The Story of the Atlantic Slave Trade; 1440–1870 [New York, 1997], 227–28). For the Anglo-Spanish Asiento of 1713, see Du Ponceau to JM, 8 July 1805, n. 19.

6Du Ponceau quoted from Ebenezer Timberland’s History and Proceedings of the House of Lords, from the Restoration in 1660, to the Present Time…. (8 vols.; London, 1742–43).

7The “Spanish War of 1739” was the War of Jenkins’ Ear; after 1742 it merged with the War of the Austrian Succession, which involved most of Europe (Acton, Cambridge Modern History [1969 reprint], 6:64, 66, 68, 157, 228–29, 233, 236, 238, 239, 242, 248–49). For the 1748 Treaty of Aix-la-Chapelle that ended the wars, see de Clercq, Recueil des traités de la France, 1:65–79.

8Du Ponceau cited the 1801 Philadelphia edition of Robinson’s Admiralty Reports (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 584), 2:122.

9Que la robe d’ennemi confisque cette d’ami. That the dress of an enemy condemns that of a friend (editor’s translation).

10Du Ponceau cited René-Josué Valin’s Nouveau commentaire sur l’ordonnance de la marine, du mois d’août 1681 (1766 reprint), 2:252.

11Du Ponceau referred to Félix José de Abreu y Bertodano’s Tratado juridico-politico, sobre pressas de mar, y calidades, que deben concurrir para hacerse legitimamente el corso (Cádiz, 1746). French translations were printed in Paris in 1753, 1758, and 1802 as Traité juridico-politique sur les prises maritimes et sur les moyens qui doivent concourir pour rendre ces prises légitimes. Félix José de Abreu y Bertodano (ca. 1722–1766) was the Spanish envoy extraordinary to Britain from 1755 to 1760 and had held another diplomatic position in England before that (The Biographical Dictionary of the Society for the Diffusion of Useful Knowledge [4 vols. in 7; London, 1842–44], 1:178; Joseph Thomas, Universal Pronouncing Dictionary of Biography and Mythology, 3d ed. [2 vols.; Philadelphia, 1908], 1:39).

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