From Peter S. Du Ponceau, 23 July 1805 (Abstract)
§ From Peter S. Du Ponceau. 23 July 1805, Philadelphia. “I have the honor of Sending you the conclusion of the Notes &c. with an Appendix of Documents & authorities.1 I have endeavoured as much as has been in my power, to fulfill the object which you appeared to have in view; if I have not Succeeded, I rely upon your goodness to ascribe it solely to my want of abilities, not to a deficiency of Zeal. You will excuse me also if I have stated many facts which are already familiar to you, but it seemed to me necessary to connect together the whole of this little Sketch.
“The Gentleman to whom I alluded in the Course of the Notes, & from whom I have received the information respecting the proposals of Adml. Duckworth to Dessalines, is Capt. Lewis, of the Ship Hindostan, of New York, who is lately returned from St Domingo,2 I had a full opportunity to obtain correct information there.”
From the peace of Aix La Chapelle to the present time.
The War of 1739. which, as we have observed was undertaken by Great Britain in order to Secure an active Trade with the Spanish American Colonies, failed entirely of its principal and indeed its Sole object. The English at the Conclusion of this War found themselves quite fallen from the vantage ground which they Stood on at the conclusion of the Treaty of Utrecht, the right claimed by Spain to Search British vessels Navigating in the american Seas, was neither given up, explained or modified, the asiento, the term of which had expired about four years after the beginning of the war, was not renewed, the British were only allowed to continue it for the remainder of the term which the war had Suspended, & they even soon after commuted that right with Spain for a gross sum of money, so that the asiento, the annual Ship & the carrying trade to the Spanish Colonies were now at an end.
While Great Britain was thus endeavouring to obtain by force a Trade with the American Colonies of Spain, France had also aimed at the same object, but had pursued it by more pacific Means, She had Silently encouraged the Spanish Smugglers to come to the ports of her Colonies, where they brought in Small Vessels their valuable produce, and took away in return the manufactures of France. England had no resource left but to follow the same plan, & She wisely did it. The Court of Spain endeavoured to counteract it by relaxing in Some degree the Severity of her Laws concerning the Trade between her old and new possessions, & succeeded thereby so far as greatly to diminish the quantity of contraband Trade, nevertheless, Says Edwards, “the intercourse with Jamaica in—Spanish Vessels, was still very considerable, So late as the year 1764.” 1. Edw: 249. Philada Ed.3
Besides this Trade Carried on between the British American Colonies in general, especially those of the West Indies, & the Spanish, there had for a long time Subsisted one equally extensive, between the British Colonies (especially those on the Continent of North America) and the French West Indies. This Trade was permitted to be carried on for a long time during the war (of 1756) between Great Britain & France, directly, by means of flags of Truce(a); and in a round about way thro’ the Dutch & Danish Islands, and at length thro’ the Spanish port of Monte Christi, in the Island of Hispaniola; till a[t] last (Says the Annual Register) the vast advantages the French received from it, above what the English could expect, in Consequence of their having in a manner laid Siege to all the French West India Islands, determined the Government to put a Stop to it. Ann: Reg: 1765 p: 20–21.4
If the British Government really did put a Stop to that Trade, it must have been very late in the War, probably not until the year 1762. when it was declared against Spain & when the West India Islands became not only the Theatre of War, but the object of attack.
This Commerce while it continued was certainly of immense advantage to Great Britain. Long tells us that during the Six first years of the War (of 1756.) there were 640 thousand weight of French Indigo, imported from St. Domingo into the Island of Jamaica. 1. Long 499.5 He tells us also (Same page) that in the years 1764–5. the Exports from Jamaica to England exceeded by more than one third the Sum which they amounted to in 1751.6 So that the Colony must greatly have enriched itself during the War by the French & Spanish Colonial Trade. And when by the impolitic Conduct of the Government of Great Britain in the year 1765 which we Shall hereafter mention, a Stop was put to that lucrative Trade, the exports from Great Britain to Jamaica fell Short of what they were in 1763. by £168000 Sterlg. 1. Edw: 248.7
We can judge also of the immense importance of this Trade with the French West India Colonies by what took place in the British house of Commons in 1774. on the question of the renewal of the free port act, which was about to expire “It being,[”] Says Edwards, “given in Evidence that thirty thousand people about Manchester, were employed in the Velvet manufactory, for which the St. Domingo Cotton was best adapted, & that Indigo had been imported from Jamaica at least Thirty per Cent cheaper than the same could have been procured at thro’ France; the house, disregarding all Colonial opposition, came to a resolution ‘that the continuance of free ports in Jamaica would be highly beneficial to the Trade and Manufactures of the Kingdom.’ That act was thereupon renewed & has since been made perpetual.” 1 Edw: 252.8
It is then an undoubted matter of fact, that at the breaking out of the War of 1756. the British were in possession of a very Lucrative Trade with the French & Spanish Colonies in America, that they continued it during the whole war (Except perhaps the last year, when they were laying actual Siege to the French and Spanish Islands[)], and that they derived a great profit from it during the War.
It is also a fact that the commerce while it was highly advantageous to Great Britain, was not less so to her enemies (See annual Register Loco citato) Hence when during the same war, she Seized & confiscated the Dutch & other Neutral Vessels, which were Seeking a participation in that beneficial Trade the cause of that prohibition must be looked for elsewhere, than in her fears, lest the strength & resources of her enemies should be thereby encreased; and the facts and circumstances which we have before us, point to commercial jealousy as the only motive that could actuate them.
The principles which governed the decisions of the British Courts during that War, as to this particular trade appear to have been fluctuating. We find in the case of Berens v. Rucker (in 1. Black: Rep: 313.)9 which was the case of a Dutch Ship which had taken in Sugar at Sea off the Island of St Eustatius, which were brought along side of her by French boats from a French Island, and which was taken in 1758. on her return to Amsterdam with those Sugars on board, that Lord Mansfield in the year 1760. expresses himself as follows “This Capture was certainly unjust. The pretence was that part of this Cargo was put on board off St. Eustatius by French boats from a French Island. This is now a Settled point by the Lords of appeals, to be the same thing as if they had been landed on the Dutch Shore, & then put on board afterwards; in which case there is no Colour for Seizure. The Rule is, that if a neutral Ship Trades to a French Colony, with all the privileges of a French Ship, and is thus adopted and naturalized, it must be looked upon as a French Ship, & is liable to be taken—not so, if She has only French produce on board, without taking it at a French port, for it may be purchased of Neutrals.”
It Seems that the French during that War gave licences to Neutrals to trade with their Colonies, & that Lord Mansfield, & (if he is Correct) the Lords of appeals considered the prohibition as applying only to those licenced Vessels, under the quaint Supposition of their being Naturalized as French bottoms, but that a trade carried on with the French Colonies indirectly thro the neutral Islands, or even, which makes the case much Stronger by waiting for the French boats in the open Sea, without touching at the French port was perfectly lawful. Yet we find in Robinson that the French West India produce which was taken in Neutrals [sic] Vessels at Monte Christi, a Spanish Neutral port was uniformly condemned, it being considered as an evasion of the rule—The Providentia 2. Rob: 120. Am: Ed: Appendix to 4 Rob: A page 6. Am. Ed.10
We find also that the usage of Licences being discontinued by the French in the Course of that War, the Vessels which were taken in that trade, tho’ without licences were nevertheless condemned. The Providentia 2. Rob: 120.
Yet if we are to credit the Annual Register, the English themselves carried on the same trade directly with the French Islands, by means of Flag of Truce, equivalent to Licences, and indirectly thro’ the port of Monte Christy and other Neutral ports, while they confiscated the property of neutrals, for carrying on precisely the same trade & in the same Manner.
Sir William Scott has admitted that the English trading with Enemy’s Colony, justifies neutrals for doing it precisely in the same degree. The Immanuel 2 Rob: 163. Am: Ed: This is sufficient to shew that the reason which they gave for condemning the Dutch and other Neutral Ships or Cargoes Carrying on the French West India trade from their own country, directly by means of Licences, or indirectly thro’ the port of Monte Christi, was but mere Colour or pretence, & that the[y] were really making War upon Neutrals, while they pretended to be making it upon the French.
The English admit thus much, because they have Since the last war restricted their prohibition to the direct trade by Neutrals, between the Enemy’s Colony & the mother country or other ports than those of the Nation to which the Vessel belongs. It is not within the Scope of these notes to point out the little essential difference in regard to the now assumed ground of Strenghtening [sic] the Enemy, that there is between that trade, and the trade which is carried on by the British themselves, perhaps that the considerable pains which appear to have been taken by Sir William Scott to avoid that delicate point, Speaks louder than any arguments that we may adduce on the Subject, & which we leave to those who are more adequate to the task. But see the Immanuel 2. Rob: 169. am: Ed.
If we have Succeeded thus far in proving that Commercial jealousy was the sole cause of the English prohibition in the War of 1756. Our object is fully attained. We shall now proceed with our historical narrative.
Soon after the peace of 1763. the British Ministry by a Series of impolitic measures lost what remained to them of the Commerce of the Spanish Colonies. “They gave directions” Says Edwards “to enforce their Laws of Navigation with the utmost rigour; and the Captains of British men of war had custom house Commissions given to them, with orders to Seize indiscriminately all foreign Vessels that should be found in the ports of our West India Islands, a measure which in reality Converted the British navy into Guarda Costas for the Spanish King. The Spaniards by these proceedings, were deterred from approaching near us; and in the year 1765 the exports from great Britain to Jamaica alone in the year 1765 fell short of the year 1763. £168000 Sterling.
“A wiser minister endeavoured to remedy the mischief by giving orders for the admission of Spanish Vessels as usual, but the Subject matter being canvassed in the British Parliament, the Nature and intent of those orders were so fully explained, that the Spanish Court, grown wise from experience, took the alarm, and immediately adopted a measure, equally prompt & prudent for counteracting them. This was laying open the trade to the Islands of Trinidad, Porto Rico, Hispaniola & Cuba ‘to Every Province in Spain,[’] & permitting goods of all kinds to be sent thither, on the payment of moderate Duties, Thus the temptation of an illicit commerce with foreign Nations being in a great measure removed, there was reason to believe that the effect would Cease with the Cause.
“Such, however, is the Superiority or comparative cheapness of British manufactures, that it is probable the Trade would have been revived to a Certain degree if the British Ministry of 1765 after giving orders for the admission of Spanish Vessels into our ports, had proceeded no further, but in the following year they obtained an Act from Parliament for opening the chief ports of Jamaica & Dominica, to all foreign Vessels of a certain description—The Jealousy of Spain was awakened, and the endeavours of the British Parliament on this occasion Served only to encrease the evil which was meant to be redressed—By an unfortunate over Sight the Collectors at the Several British free ports were instructed to keep regular accounts of the entry of all foreign Vessels, & of the bullion which they imported, together with the names of their Commanders. These accounts having been transmitted to England, copies of them were by Some means procured by the Court of Spain, and occasioned the absolute destruction of the poor people, who had been concerned in the business. Information of this being transmitted to the British ministry, the former Instructions were revoked, but the remedy came too late, for what else could be expected than that the Spaniards would naturally shun all intercourse with a people, whom neither the safety of their friends; nor their own evident interest, was sufficient to engage the Confidence and Secrecy?
“The little Trade therefore which now (about the year 1793.) Subsists with the Subjects of Spain in America, is chiefly carried on by small vessels from Jamaica, which contrive to elude the Vigilence of the Guarda Costas. [”] 1. Edw: Hist: W. Ind: 249. Philada Ed.
Thus at the beginning of the war of 1778. The British by their own fault had lost their valuable Trade with the Spanish Colonies, their trade with the French possessions was chiefly carried on from the now United States, which being now separated from the mother Country, She no longer derived any benefit from it, the intercourse between Jamaica & the French part of St. Domingo still Subsisted by which they were enabled to procure cotton & Indigo for their manufactures at home, the war put an end to it, and they were obliged to obtain those Supplies in a less direct way.(a)
The Commerce of the French Colonies was opened to allies and Neutrals during that War. But we have not been able to ascertain by any authentic document the precise date when it began; it does not appear however, from the best information that we have been able to obtain, that there was much intercourse between them and Europe until about the year 1781. It is certain that in the year 1779. Coffee could be had at Cape François & Port au Prince at 4 to 5s French West India currency per pound (the Sol is 1/165th. part of a Dollar) and the best brown Sugar at One Dollar Cwt., which shews that purchasers did not abound in the French Ports of St. Domingo.
While the Dutch remained Neutral, the Trade of the French Islands centered principally in the Dutch Island of St. Eustatius, which was made a free port, & was the great mart of West India produce to which all nations resorted, & the British as well as others. It is recollected that when the British forces under Adml. Rodney & Genl. Vaughan took that Island in 1781. the immense property which their Countrymen possessed there was involved in the general plunder.
After the Capture of that Island, the Emperor of Germany having made Ostend a free port, Several French houses, particularly from Dunkirk, established agents there, by whom a considerable trade was carried on with the French West Indies, under cover of the Imperial flag, the French Islands were then better Supplied, & their produce rose proportionally. The port of Ostend was opened on the 11th of June 1801. & peace was concluded between Great Britain and the allies on the 3d. of September 1803.
We have been informed by respectable Merchants who resided at St. Domingo at that time, that that trade between Ostend & that Island was very little interrupted by the British Cruizers, altho’ the cloak of neutrality was so thin that it would hardly be called a disguise. That trade was chiefly carried on by French Vessels with French owners, Masters, Crews & Cargoes, who had merely touched at Ostend to obtain an Imperial passport for the Vessel, & Letters of Burgership for the Captain.
In this state of things, we have it from British as well as from Neutral authority, that the application of the principle now contended for by Great Britain, & which is the object of these notes, was wholly intermitted. The Emanuel, 1. Robinson 252. Am: Ed:—Henning’s Abhandlung über die neutralitæt, page 58.11 The Courts of Admiralty released every neutral Vessel & Cargo which was brought in for having traded with the Enemy’s Colonies. And it is remarkable that they did this in the face of an Act of Parliament passed during the same War, by which the Cargoes of Vessels thus taken, were declared to be liable to confiscation. This act, 20 Geo: 3. C. 29. was passed after the Capture of the Island of Grenada by the French, it made it lawful for Neutrals to trade to that Island, and the Grenadines, but at the same time declared that it was not to exempt from confiscation the Cargoes of Vessels found trading with the other enemy Islands. As this act was temporary, its Title only is to be found in Danby Pickering’s Statutes at large,12 but it is recorded at full length in 2. Henning’s Sammlung von Staatsschriften (collection of State papers during the war of 1778.) page 114.13 We Subjoin it to these notes, with other Documents, in an appendix No. 1.14
Sir William Scott, in the above cited case of the Emanuel, 1. Rob: 252. assigns as a reason for this toleration of the neutral Trade with Enemy’s Colonies “That it was understood that France, in opening her Colonies during the war, had declared that this was not done with a temporary view, relative to the War, but on a general & permanent purpose of altering her Colonial System, & of admitting foreign Vessels universally & at all times to a participation of that Commerce.”
We have not been able to find in the annals of the times any traces of Such a declaration made by France—indeed Sir William Scott himself does not State it as an absolute fact, for he Says “Taking that to be the fact, (however Suspicious its commencement might be during the existence of a war) there was no ground to say that neutrals were not engaged in an ordinary Commerce &c. & proceeds to say that on that ground the neutral Vessels were released.”
It is impossible not to perceive that this Supposed declaration of France, So doubtful in its terms, according to the Statement of Sir William Scott, and so Suspicious on account of the time when it is said to have been made, cannot have been the real cause of the non condemnation of neutral Vessels trading with enemy Colonies during the War of 1778. It is at least, an object of curiosity to endeavour to find out what were the true motives which induced Great Britain to follow that line of conduct, during that War. We hope that we shall not be thought presumptuous if we collect here a few data, which may perhaps lead to a correct conjecture, we must for that purpose take a brief retrospect of the law & practice of nations for some time back with regard to neutral Commerce.
We have Seen in the former parts of these notes what were during the 17th Century the general prohibitions of Belligerent Nations in Europe, against trading with their Enemies. In the next Century we have seen what were the severe Laws of France & Spain on the same subject. During those periods England acted in the different Wars in which she was engaged, according as circumstances pointed out to her, Some times, as we have seen, issuing herself general prohibitions against neutrals, at other times retaliating upon them by her courts of Admiralty, the Severe Laws of her Enemies, of which we find Examples in Sir Leoline Jenkins,15 some times also pursuing a milder line of Conduct. As she did not issue formal Edicts like other Nations, and as no records are Extant of the proceedings of her Courts of prize, during those times except the few Scattered cases which we find in the works of Jenkins, and a very few indeed in some other Books, we cannot trace her conduct with regard to neutrals, So precisely as we can that of other Nations. Holland also during those periods, issued some arbitrary Edicts, several of which are noticed and animadverted upon by Bynkershoek, in the first Book of his Quæstiones Juris publici.16
In the midst of all these irregularities, the principle of “free Ships make free goods” and the mitigated list of contraband articles, had begun, so early as the middle of the 17th Century, to introduce themselves among the nations of Europe. The great Maritime powers had successively adopted them in their Treaties with each other, and with those other nations which they wished particularly to favor, so that at last the Weaker Maritime powers were alone exposed to the effects of the arbitrary Edicts and proceedings of the Belligerent Nations.
Such was the State of things during the war of 1744. when Britain rigidly enforced what is called the ancient Law of Nations, upon the Subjects of those Sovereigns with whom She had no Treaty to the Contrary. Prussia had till then been considered as an insignificant State, particularly in a maritime point of view. But Frederick the Second by the force of his genius was rapidly raising her to the high rank which she has obtained among the powers of Europe. The British Government, however, did not immediately understand the line of Conduct that was to be followed with a country governed by such a man—His vessels were seized & brought into the English ports on various grounds, and particularly on that of being laden with enemy’s property, & condemnations ensued. Frederick felt indignant at being assimilated to the lesser powers of the north of Europe, he Seized on the monies due to British Subjects which were mortgaged on the Dutchy of Silesia, & remonstrated afterwards. A legal discussion ensued, which was managed on the part of Prussia, by the celebrated Professor Cocceius, and on the part of England by Lord Mansfield, Sir Dudley Ryder17 & the first civilians & common Lawyers of the day. The Memorial of professor Cocceius was written in the plain Style of a German jurist, while the answer of the British Government was adorned with all the elegancies of Style & language; Hence the latter is in every body’s hands, while the former is read but by few. The issue, however, was not favorable to the English, altho’ their political writers have taken great pains to insinuate that it was so(a) but the dispute ended in the payment by Great Britain to Prussia of £20,000. by way of indemnity for the unjust Captures made upon her Subjects. The Instrument by which the King of England agreed to this Settlement, has been kept out of view in the British publications, but it has found its way into the German Collections, and is published at large in the Original French in 3d Wenck’s Corpus juris Gentium18 from which we have Translated & inserted it in the appendix to these notes No. 2.
During the War of 1756. Prussia Was in alliance with Great Britain, & of Course her Vessels were not molested by the British Cruizers; But they were let loose upon other nations, & even upon some who were entitled by Treaty to the benefit of the modern principles in a manner that excited general indignation.(b) Several able writers took up their pens in vindication of neutral rights, and among others the celebrated Hubner—Others wrote in favor of the British pretentions, & among those we are sorry to find the Name of Vattel. Other measures than polemic writings, would probably have been resorted to by the oppressed neutrals, but Britain was victorious in every quarter of the glob[e]. France, in the course of that war had followed, with respect to neutral nations a line of Conduct comparatively moderate. She had not expressly renewed her Severe Ordinance of 1744. & the decisions of her prize courts were dictated by the policy of the Cabinet; Suited to times, cases & Circumstances. Thus the discontent of neutrals was directed Solely against Great Britain, the State of the public mind was Such, that it was easy to forsee that an explosion would take place, whenever a favorable opportunity should offer. France understood this very well, & by a stroke of Masterly policy, immediately on the breaking out of the War of 1778 proclaimed to all the world by a Solemn Edict, the principles of the modern Law of nations. See her Edict of 23. July 1778.20
Here was neither a proper time nor proper Circumstances for Britain to assert new or extravagant pretentions against neutral Trade—Her Trade with foreign Colonies was almost entirely annihilated—She was fighting for the recovery of her own Colonies, which had revolted from her dominion. Her cause was not popular in Europe, her great maritime power, & the tyranical use which she had made of it during the preceeding War, had indisposed the other Nations against her, & she had no hopes of being able to form continental alliances, but on the contrary She might discover an enemy in every other Maritime power. France on the Contrary had a powerful navy, a well managed Treasury, able Statesmen at the head of her affairs, friends or at least well wishers in all the Sovereigns of Europe, & the moderate conduct which she pursued with respect to neutral States made it dangerous for Great Britain to adopt a different one.
When therefore we attend to the public acts of that Nation with regard to neutral Nations during that War, we find them fraught with a Spirit of Concession such as she had never exhibited in any former War, & Such as She has certainly not Shewn in any subsequent one. Let us be permitted to recapitulate here some of those public Acts.
1. Additional Instructions to privateers, dated 15th December 1778. Strictly charging them not to make illegal Captures. 2. Henning’s Collection 59.
2. Explanatory Article of the Treaty with Denmark of the 11th. July 1670. By this Explanatory article, dated the 21 july 1780. the word Contraband, which in the Original Treaty was left unexplained, is construed according to the principles of the modern law of nations.21 2 Henning’s. 16.
3. Additional Instructions to privateers, dated 20 Nover. 1800. charging them strictly to observe the 10th & 11th. Articles of the Treaty between Great Britain & Russia of the 20th of june 1766. founded on the principles of the modern Law of nations.22 2 Hennings 63.
4. Additional Instructions to privateers, dated 15 Feby 1801. warning all those who shall make illegal Captures, that they Shall “inevitably be compelled to the most Complete and ample restitution & amends.”23 2. Hennings 106.
5. Additional Instructions to privateers, dated 20 April 1801. forbiding the making any Captures whatever in the Baltic Sea. 2 Hennings 105.
Among those public Acts of the Executive of Great Britain during the war of 1778. we find none relating to the trade with Enemy’s Colonies, except an additional Instruction dated the 29 Decer. 1780. permitting the Dutch who were then Enemies, to trade freely with the Island of Grenada, the Grenadines, St. Vincent & Dominica, for the Space of four months, & to be while so engaged considered as neutral vessels going to neutral ports. 2 Hennings 117.
When we take into view this State of things, and the formidable combination of the Neutral powers which took place in the year 1780 under the name of the armed neutrality, we shall not perhaps be at a loss how to account for the conduct of the British Courts of Admiralty in not condemning Neutral Vessels trading with her enemy’s Colonies. The General Conduct of England in this war with respect to Neutrals, tho’ not free from blame, yet was in a degree moderate compared to what it was in the War of 1756. and to what it has been in subsequent wars. The recollection of past Sufferings, & the Spirit which they had excited contributed as much at least to produce the armed Neutrality as the actual irregularities of Great Britain during the war that gave it birth.
The Subject of the rights of Neutrals had taken possession of Men’s mind, and Scarcely had the war of 1778 begun, when a multitude of writings appeared in various parts of Europe in which it was more or less ably discussed. Even the Writers of Italy came forward & took their parts in the important contest. Galiani at Naples, wrote a voluminous Treatise on the Laws of Neutrality in which he advocated the modern principles.24
Lampredi a celebrated Professor of the Law of Nations at the University of Pisa, in Tuscany, took up the other Side of the question.25 Germany and the Northern States of Europe teemed with productions on the Same Subject—Among others Professor Busch of Hamburg, wrote a Spirited Treatise in which having collected a number of the decisions of the late judge of Admiralty of England, Sir James Marriott, he criticised them in such a severe manner as excited in the mind of that Judge, that strong antipathy to German Professors, which he has so ludicrously displayed in his decree on the Case of the Ship Columbus, which is recorded in the first Volume of Collectanea Juridica.26
We are now come down to the period of the War of 1793. the occurrences of which are still fresh in the recollection of every one. We shall therefore content ourselves with collecting and bringing together here within a narrow compass, a few of the most material facts in Support of our chief position. “That the restrictions imposed by the British on the Commerce of neutrals with the Colonies of their Enemies, are founded on Commercial, & not in Belligerent interests.”
After the Conclusion of the peace of 1783. the British Governmt. thought Seriously of reorganising a Contraband Trade with the French & Spanish Colonies in America. In 1787 on an average of three years, Jamaica already imported £150,000: Sterlg. annually from foreign Colonies, under the free port Law &c. 1 Edw: 245. The French Revolution, & the Wars which it produced, soon furnished them with the means of exceeding in this respect even their most sanguine Expectations.
The objects recommended in 1677 by mr. nevil to the British Government,27 had never been entirely lost Sight of. To drive the French, if possible, out of the Island of St. Domingo, & to obtain a Trade by all means with the Spanish Colonies.
The first of these objects appears to have been taken up by Great Britain early in the French Revolution & before the breaking out of war between the two Countries, for there are many who think, that the discussions provoked by mr. Pitt in the British Parliament respecting the abolition of the Slave trade, had for its object to encourage the enthusiastic spirit which had begun to appear in France on the Subject of the freedom of the blacks, and to lead that nation into those measures, which have proved So fatal in their consequences, & lost ultimately to them that beautiful & valuable Colony.28
If however the true motives which actuated mr. Pitt in this particular instance cannot be mathematically ascertained, & are involved in some degree of obscurity & doubt, their Conduct during the War, particularly in the time of General Toussaint point beyond all possibility of doubt to their true object. For what reason the American Nation was then permitted by Great Britain to participate in that trade, is a Subject which does not belong to us to touch upon.29 It is enough for us to observe that the same indulgence was not shewn to other neutrals, their Vessels trading with St. Domingo were condemned on the identical pretence, on which our own have been lately adjudged as prize at Halifax and elsewhere, to wit; that that Island was still considered as a French Colony. The Immanuel, 2. Rob: 162 Am: Ed.
We have taken pains to procure sufficient data, from which not only to conjecture, but to ascertain, if possible the real Motives of the British lately capturing & condemning our Vessels & property met with in the St Domingo Trade, & we have obtained the following information on which we can entirely rely. The British have at present no direct Trade from Jamaica or elsewhere with the late French part of the Island of St. Domingo, they Supply themselves with Cotton & cocoa, indirectly thro’ St. Thomas, from whence that trade is freely carried on. The reason why the British prohibit their Vessels from going to those ports is that they are afraid lest some of the Negroes shoul[d] conceal themselves on board of their Vessels, & Spread the Spirit of insurrection at Jamaica. At the same time, they are not insensible to the advantages of that trade, & are exerting themselves for obtaining it on a safe & advantageous footing. They have made the following proposals to Dessalines:30 1. To make a Treaty of Commerce with them whereby they shall be admitted to Supply them with their manufactures, & with every article that they may want, the Americans to be excluded from that Trade, except that they will be permitted to import articles of their own growth, but nothing else. 2d. To give possession to the British of two points on the Island, viz, Cape Nichola mole, & Cape Tiburon. Dessalines refused to accede to these terms, and the British in order to frighten him into compliance, threatened to cut off all Supplies from him by preventing the Trade between the United States & St. Domingo. This threat had no effect upon him, therefore the British to give it greater force, have carried it into execution by giving private instructions to the commanders of their Armed Vessels, to take & bring in for adjudication our vessels found in that trade.(a) What the result of this measure will be, it is not yet known. The Gentleman, from whom, we have obtained this information, is an intelligent and well informed American on whom dependance Can be placed. He is just returned from St. Domingo, when he has had frequent & familiar access to the Emperor; he has told us that he translated a letter for him from Admiral Duckworth, by which that Admiral Offered to furnish him with every article that he might stand in need of, & particularly with arms, powder & other warlike Supplies.
Thus we find still the same principle actuating the British prohibitions of neutral Trade, in the present War, as in the preceeding ones. We shall now proceed to consider them as they affect the trade with the Spanish Colonies.
At the beginning of the War of 1793. Britain had reorganized in some degree her contraband Trade with the Colonies of Spain. Her alliance with that power, gave it a greater extent & Spirit, & the Spanish possessions were inundated with English goods, when the peace took place between Spain & France. The two Nations lately in enmity soon became allies to each other, & Spain, Now desirous of diminishing the Contraband trade between the English possessions & her own, but yet being sensible that her Colonies could not do without the Supplies which they had been till then accustomed to receive from Great Britain, did by her decree of the 18th. of Nover. 1797. open her American ports to the Vessels of Neutral Nations, & prohibited the entry of English merchandize.31
This was a heavy stroke upon Great Britain, In order to counteract it, she issued in the year 1798. an order of Council, opening the ports of Jamaica & new Providence to the Spaniards, then her enemies, See the Pamphlet entitled “Observations on the Commerce of Spain with her Colonies, in time of War,” which is attributed to the Marquis de Casa Yrujo, and was printed at Philadelphia in 1800. by James Carey, pages 37: 60.32
Not satisfied with this measure, Britain intrigued at the Court of Spain, & was so Successful in her machinations that the obnoxious Edict was repealed on the 23d of April 1799. The times were then exceedingly favorable to her purpose—The French had lost all their influence with the Courts of Europe, they were threatened with an Invasion from Italy, the Directory were hated & despised at home & abroad. So that but little Resistance could be offered to the powerful arguments that she made use of. But after the overthrow of the directory, & the accession of Bonaparte to the Supreme power, the Spanish Colonies were again opened to neutrals, British merchandize was again prohibited & continued so to the end of the War.
It is remarkable that it was in the same year 1799. that Condemnations of neutrals began to take place in England for trading with Enemy’s Colonies; See the case of the Immanuel, 2: Rob: 162. Am: Ed: where the counsel Say arguendo “With respect to authorities” (upon the main question of Neutral Trade with enemy Colonies) “It cannot be expected that there should be any. The question has not arisen in this War, or it would not be discussed So much at length in the present case.”
It would Seem then, as if the Instructions of 1793. & 1794. were issued merely in terrorem, & to be only enforced when favorable circumstances should permit it, except perhaps in the West India Islands upon the Vessels of the United States against which the instructions of Nover. 1793. appear to have been more particularly, if not exclusively directed.
This Supposition is strengthened by what is also Stated by Counsel, in another Case, the Providentia, reported in 2. Rob: 122 Am: Ed: “But if it were granted that the interposition in the trade of a Belligerent, not before open to foreign Traders, made Some part of the principle of that war” (the War of 1756.) “it would not only apply to the cases of this War, for in the late practice of this Court during this War, there have been a Variety of cases from the French & Dutch Colonies, in which the Court has either ordered farther proof, or restored in the first instance, by no means considering them therefore as concluded by this circumstance.” This case of the Providentia was adjudged on the 16th Augt. 1799.
To return to the British Trade with the Spanish Colonies, Since the year 1798. it has been regularly or ganized by the communication opened with the free ports established at Jamaica and other Islands, & lately with the Island of Trinidad. “These ports” Says the author of the Observations on the Commerce of Spain &c.” are opened, altho’ in time of War, to the Spanish Subjects, granting them protection, not only in the said Islands, but also in their voyages to and from the Spanish possessions, by means of Special passports Granted by the Governors of the said English Islands. The British Ships of War protect these Smuggling Vessels, & the privateers respect them.” Observations &c. p. 37.
The nature of this Trade & its advantages to Great Britain are still more fully explained in a late work entitled “The claims of the British West India Colonists &c. in answer to Lord Sheffield’s Strictures, by G. W. Jordan,33 Colonial agent for Barbadoes.” Some Extracts from this Work have been published in the London monthly Review for April 1805. a few paragraphs of which we shall here copy, from the Gazette of the United States, of Friday the 12th. of July instant.
“It is possible,” Says mr. Jordan “to open a South American trade, as well as that of North America, which, without any respect to the nature of the Shipping employed, shall, by a due enumeration & restriction of the permitted articles of exchange or carriage, with perfect Safety & propriety encrease indefinitely the British import, export and carrying trade of the West India Islands.
“These Islands are so disposed along the coasts or Stretched across between the principal points of North & South America, that access to them from both the continents may at all times be had by the simplest & cheapest Species of Navigation. The approach [of] British vessels to the continent of South America is partially or totally forbidden by the Great Europe an Powers who possess it—Under these circumstances British Vessels cannot be used in the intercourse with it. Great Britain, therefore of necessity indeed, but with her accustomed wisdom, has opened certain ports in the Colonies to Vessels of these foreign Countries, in order that they may bring in the enumerated Articles she desires to obtain, and that they carry the enumerated Articles She wishes to dispose of, or such as are necessary to support the trade. The first enumeration contains articles of Territorial produce of that part of the continent, and bullion among the rest; the other consists of goods of British Manufactures, or import or articles of territorial produce of the Islands. Great Britain does not upon this occasion consider her navigation and colonial Systems, as not at any time, upon any occasion, or under any circumstances to be invaded. She looks to the objects and purposes of those Systems. She wants raw materials, She wants markets for her various articles of manufacture, commerce & produce; She wants encouragement & extensive employment for her Shipping. By neglecting all consideration of the use as militating against her navigation and colonial Systems, of those petty vessels which serve to associate her islands with the continent, She obtains all the objects of those Systems, materials, markets, and increased carriage. The ports of her Islands become ports of the continent, and those Vessels are only as the port Vessels and laden droghers of other countries. British Ships carry to and bring away from the Islands the commodities laden in and unladen from these Vessels, and neither their employment nor their Numbers is to be calculated upon by Great Britain, but as proofs of the extension of her own commerce and proper Navigation.
“Instead, therefore of a port in Grenada a port in Dominica Two in Jamaica, one in Tortola, one in the Bahamas, it might upon these principles well be recommended to Great Britain, to extend the provisions of the freeport Acts to all the Islands, or to the Custom house ports of all the Islands. It might further be proposed by enlarging and combining all the principles & practice which alike prevail in the West India intercourse with the Northern and Southern portions of America, to form a general, Simple & consolidated System, that should connect them all, which should embrace and comprehend the at present enumerated articles of import and export between the whole continent and the Islands, and permitt between them the employment jointly with British ships of one decked vessels of all the Countries growing the commodities imported into the Islands.”
Thus far mr. Jordan—We hardly think it possible to prove more Completely that the prohibitions issued by Great Britain in the Wars of 1756, 1793. & in the present War against the Trade of neutrals with the Colonies of her enemies, have had no other object than to Secure that trade exclusively to themselves, Since they have carried it on in every one of these Wars, except in the War of 1778. during which their prohibitions were intermitted from a variety of powerful motives.
It therefore only remains for us now to Say Something respecting the practice of other Nations & the Opinions of publicists, on the Subject of the interference of Neutrals in the Commerce of the Enemy’s Colonies.
I. As to the practice of other Nations.
We have before us all the Successive ordinances and Edicts of France respecting neutral Trade made during the whole of this period. We have also the Old and new Code des Prises,34 in which are contained the principal decisions of their prize Courts before & Since the Revolution. We have the Works of their most approved authors upon prize Law, in which the Doctrines adopted by their Tribunals, are fully laid down & commented upon. With regard to Spain, we have also the successive Edicts & Ordinances on the Subject of neutral Trade during this period, & we have a late Edition of the Chevalier D’Abreu’s Treatise upon prize Law.35 We have also some Dutch Books on the subject, tho’ the Dutch have ceased for a long time to give Laws to neutrals in time of war. Lastly we have a variety of German and French collections of Edicts, Ordinances & other State papers, issued by the different powers of Europe during the different Wars which took place within this period, & in none of these sources have we been able to find any thing like a direct or indirect prohibition to Neutrals from trading with enemy’s Colonies, unless we are to consider in that light the Decree of the French Directory of the 29th Nivose, 6th. year, which revives the Edict of 1744. against goods of British growth or manufacture, with the additional Severity of the confiscation of the Ship. and innocent parts of the Cargo.36 We say unless we Consider this Decree in that light, because Vessels trading with British Colonies, must necessarily on their return have been laden with British west India produce, & of course must have fallen with the general principle of the decree & been liable to Confiscation. But we have not found any Edict, Ordinance, State paper decision or even dictum of a Court of Judicature, directly applicable to the present point.
II. As to the Opinion of Writers.
We have taken the pains to collect, & have before us, the Writings of almost every publicist of note, who has written during the present period, either on the laws of nations in general or on the Law of neutrality in particular. It may be astonishing, but it is not less true, that after an accurate research, we have found only two of them who have touched at all on the subject in question. They are Hubner and Hennings, both Danes, the former of whom wrote during the war of 1756. & the latter between the war of 1778. & the wars of 1793.37 We Subjoin their opinions in the appendix No. 3. 4. & 5.
It will be observed that Hubner gives but a kind of unsettled, hesitating opinion on the Subject, and it is not perhaps, to be wondered at. At the time when he wrote, the general principle of free Ships make free goods, & the List of Contrabands were the great points which agitated the Neutral world. Those two points alone are the subject of his Book, & the Trade of Neutrals to Enemy’s Colonies is noticed only incidentally. The Carrying trade to Europe was then the great Subject of discussion, the carrying trade to America (which Trade was not then by far so considerable as it has become Since) was an object of inferior consequence, which had not yet attracted the general attention, & which the Neutral Nations of Europe would perhaps—at that moment have sacrificed for the sake of attaining the greater & more important object which then swallowed up all inferior considerations.
It is evident that Mr. Hubner did not pay much attention to this particular Subject, for the concessions which he makes in his 6th. Section, appendix No. 3. are in direct contradiction with the luminous principles which he lays down himself in his 5th. Section, which we have inserted in the appendix No. 4. that the two sections may be compared together.
With regard to mr. Hennings, as he wrote at a time when Great Britain was considered as having given up the point, it cannot be expected that he should have said much upon the Subject.
The latter Writers are altogether Silent upon it, & take no notice of it whatever.
There is a general principle, however, laid down in the works of almost every Neutral writer from Hubner down to the present time, which, if dextrously laid hold of, might afford an argument against the Trade of Neutrals with Enemy’s Colonies. The principle is this: “That Neutrality is not a new State of things, but a continuation of that which existed before the War; hence, that Neutral Nations are entitled to carry on Commerce during the war precisely & on the same footing, as they did before the war, with the exception of Contraband, & trading to blockaded ports.” This position being so often repeated by the neutral Writers, it may be said that the right of carrying on Trade during the War precisely as they did before the War, is all that they have ever contended for, that the prohibition of Trade with Enemy’s Colonies, does not militate against this right, Since it is a different Trade from that which they carried on before the war, and expressio unius, est exclusio alterius.38
It Seems that this position of the Neutral Writers, is at once unguarded & inaccurate. It is unguarded, because, they had not in contemplation when they wrote every kind of neutral Trade which might take place during a war. It is unaccurate because Neutrality is not an absolute, but a relative State of things, & no definition of it can be correct, which loses Sight of its relative character. The neutral Writers, therefore Seem to have gone too far in representing it as the continuation of a fixed & permanent state of things, independent of the variations of external circumstances to which it is & will ever be Subordinate.
The application however of this principle as an argument against the Trade of Neutrals with Belligerent Colonies, would be a mere Sophism. For, before the War, it was lawful for Neutrals to trade with every nation which open their ports to them—They do no more in the present instance, and thus every argument founded upon this dictum of the neutral writers, would necessarily end in a dispute about words.
We ought to add, in conclusion, that after a minute research, we have not been able to find any authority or judicial decision out of England, by which it might appear that the coasting Trade of Belligerents, in time of war, So analogous to the Trade between the mother Country and the Colonies, is unlawful for neutrals, even tho’ it be prohibited to foreigners in time of peace, & only permitted during the war; no distinction appears at all to be made between that & any other trade between Neutral & Belligerent Nations; & in England, we have not been able to find any thing on the Subject, prior to the decision of Sir William Scott, in the case of the Emanuel, Soderstrom in the year 1799. reported in 1. Rob: 249: Am: Ed: which appears on the face of it, to be a Case of the first impression, tho’ it refers to a Decree of the Lords of Appeal in 1795. which from Sir W. Scott’s embarrassed Statement, seems to have been given upon other grounds and to more ancient judgments, of which he neither Specifies the time nor the cases in which they were given.
Partial RC (DLC); letterbook copy of enclosure (PHi: Peter S. Du Ponceau Letterbook, 1777–1839). RC 1 p.; complimentary close and signature clipped; correspondent assigned based on the hand, and on the contents of Du Ponceau’s 8 and 15 July 1805 letters to JM.
2. The Hindostan, Captain Lewis, arrived at New York with “the Saint Domingo fleet” on 19 May 1805 (New York Morning Chronicle, 20 May 1805).
3. Edwards, History, Civil and Commercial, of the British Colonies in the West Indies (Shaw and Shoemaker 8375), 1:249.
4. Annual Register for 1765, 20–21.
5. Du Ponceau erred; the information is cited from note g on page 497 of the first volume of Long’s History of Jamaica (1970 reprint).
6. Ibid., 499.
7. The correct page in volume one of Edwards, History, Civil and Commercial, of the British Colonies in the West Indies, for this information is 249.
8. For the matter quoted, see ibid., 252–53.
9. Du Ponceau referred to Berens v. Rucker in William Blackstone’s Reports of Cases Determined in the Several Courts of Westminster-Hall, from 1746 to 1779 (2 vols.; London, 1781), 1:313–15.
10. Robinson, Admiralty Reports (Shaw and Shoemaker 584), 2:120, and ibid. (Shaw and Shoemaker 6412), 4:appendix A, 6.
11. Du Ponceau cited August Adolph Friedrich von Hennings’s Abhandlung über die Neutralität und ihre Rechte, insonderheit bey einem Seekriege (Altona, 1785).
12. Du Ponceau referred to Danby Pickering’s Statutes at Large, from the Magna Charta to the End of the Eleventh Parliament of Great Britain, Anno 1761 (46 vols. in 51; Cambridge, 1762–1807).
13. Du Ponceau referred to August Adolph Friedrich von Hennings’s Sammlung von Staatsschriften, die, während des Seekrieges von 1776 bis 1783, sowol von den kriegführenden, als auch von den neutralen Mächten, öffentlich bekannt gemacht worden sind; in so weit solche die Freiheit des Handels und der Schiffahrt betreffen (2 vols. in 1; Altona, 1784–85).
14. The appendix has not been found.
16. Bijnkershoek, Quaestionum Juris Publici Libri Duo.
17. Du Ponceau presumably referred to baron Samuel von Cocceji (1679–1755), a Prussian minister of state and chancellor under Frederick the Great. He compiled the Frederician Code in 1747. William Murray (1705–1793), first Earl Mansfield, was born in Scotland and educated at Oxford and Lincoln’s Inn. He practiced law successfully for several years before becoming solicitor general and a member of Parliament in 1742. He succeeded Dudley Ryder as attorney general in 1754 and as chief justice in 1756, when he was also created baron Mansfield. He was a member of the House of Lords for thirty years and served on various occasions as privy councilor, chancellor of the exchequer, and speaker of the House of Lords. He was created Earl Mansfield in 1776. Sir Dudley Ryder (1691–1756) was a prosperous attorney who became a member of Parliament and solicitor general in 1733. He was appointed attorney general in 1737, knighted in 1740, and named lord chief justice in 1754 (Hugh James Rose, ed., A New General Biographical Dictionary [12 vols.; London, 1853], 6:384).
18. The appendix has not been found. For the 1756 agreement between Great Britain and Prussia, see Friedrich August Wilhelm Wenck’s Codex Juris Gentium Recentissimi, è Tabulariorum Exemplorumque Fide Dignorum Monumentis Compositus (3 vols.; Leipzig, 1781–95), 3:84–87. Du Ponceau donated his copy to the American Philosophical Society’s library in 1840, when he was president of the organization (Proceedings of the American Philosophical Society 1 : 180).
19. Du Ponceau misquoted from Robert Ward’s Treatise of the Relative Rights and Duties of Belligerent and Neutral Powers in Maritime Affairs…. (London, 1801). The correct quotation from page 79 reads: “The single exception of Prussia, in 1752, to which we have adverted, could never be counted in the scale, from the very circumstance of its being single; but the conduct of that King, which was founded upon the new claim, having, as we have seen, been changed, and totally relinquished, the claim itself must be considered as having been relinquished along with it.”
20. The 26 July 1778 French edict concerning the trade of neutral vessels during a war was printed in the Pennsylvania Packet or the General Advertiser, 14 Jan. 1779.
21. For the Explanatory Article of 4 July 1780 defining contraband, see Scott, Armed Neutralities of 1780 and 1800, 295–96. For the 1670 Anglo-Danish treaty, see Dumont, Corps universel diplomatique du droit des gens, 7, pt. 1:132–37.
22. For the tenth and eleventh articles of the 1766 Treaty of Commerce and Navigation between Great Britain and Russia, see Jenkinson, Collection of All the Treaties between Great Britain and Other Powers (1968 reprint), 3:224, 228–29.
23. These instructions appear to be a restatement of similar instructions issued on 15 Feb. 1781. For these, see Scott, Armed Neutralities of 1780 and 1800, 365.
24. Ferdinando Galiani (1728–1787) was a Neapolitan cleric, economist, diplomat, and prolific writer who dealt with, among other topics, finance and the grain trade. He served as secretary to the Neapolitan legation at Paris. Du Ponceau presumably referred to Galiani’s De’ doveri de’ principi neutrali verso i principi guerreggianti, e di questi verso i neutrali ([Naples], 1782) on the rights and duties of neutrals (Grande Dizionario Enciclopedico, 4th ed. [23 vols.; Turin, 1984–2000], 9:25–26).
25. Giovanni Maria Lampredi (1732–1793) was a theologian and professor of canon law at the University of Pisa. Du Ponceau had in mind Lampredi’s Del commercio dei popoli neutrali in tempo di guerra (2 vols.; Florence, 1788), “which was translated into various languages and occupies an important position in the literature of international law.” Lampredi argued that neutrals should be allowed to trade with all belligerents in a war provided they maintained impartiality (Edwin R. A. Seligman et al., eds., Encyclopaedia of the Social Sciences [15 vols.; New York, 1930–35], 9:28–29).
26. For the 18 Dec. 1789 decision in the case of the Columbus, Guerin master, see Francis Hargrave, ed., Collectanea Juridica: Consisting of Tracts Relative to the Law and Constitution of England (2 vols.; London, 1791–92), 1:88–128.
28. For William Pitt the Younger’s efforts towards the abolition of the slave trade by Great Britain, see William Hague, William Pitt the Younger (New York, 2005), 247–58.
29. For the Maitland agreement allowing British and American trade with Saint-Domingue, see PJM-SS, 2:257 n. 2.
30. For British negotiations with Jean-Jacques Dessalines about a trade agreement, see ibid., 8:106 n. 1.
31. The 18 Nov. 1797 decree that allowed “a legal and heavily taxed trade” with the Spanish colonies was revoked on 20 Apr. 1799, but the revocation was widely ignored by both American shippers and citizens of the Spanish colonies (Leslie Bethell, ed., The In depen dence of Latin America (Cambridge, 1987), 20–21.
32. Observations on the Commerce of Spain with Her Colonies, in Time of War (Philadelphia, 1800; Evans 38142) is listed as written “By a Spaniard, in Philadelphia” and “Translated from the Original Manuscript, by another Spaniard.”
33. The Claims of the British West India Colonists to the Right of Obtaining Necessary Supplies from America, by Gibbes W. Jordan, was printed in London in 1804.
34. Du Ponceau referred to Daniel Marc Antoine Chardon’s Code des prises ou Recueil des édits, déclarations, lettres patentes, arrêts, ordonnances, règlemens, et décisions sur la course et l’administration des prises, depuis 1400 jusqu’ à présent (2 vols., [Paris], 1784) and Sylvain Lebeau’s Nouveau code des prises: ou Recueil des édits, déclarations, lettres patentes, arrêts, ordonnances, réglemens et décisions sur la course et l’administration des prises, depuis 1400 jusqu’au mois de mai 1789 (v. st.); suivi de toutes les lois, arrêtés, messages, et autres actes qui ont paru depuis cette dernière époque jusqu’au 3 prairial an 8 (4 vols.; Paris, [1789–1801]).
35. Abreu y Bertodano, Tratado juridico-politico.
36. For the wording of the 18 Jan. 1798 decree, see ASP, Foreign Relations, 2:182. By 1 Aug. 1798 the Council of 500 was debating the repeal of the decree because of its deleterious effect on French trade with neutrals (New-York Gazette and General Advertiser, 18 Oct. 1798).
38. Expressio unius, est exclusio alterius: the expression of one thing is the exclusion of the other thing (editor’s translation).