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By JAMES STEPHEN 1805–
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BY JOHN LEYLAND

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WAR IN DISGUISE
HODDER AND STOUGHTON
PUBLISHERS TO
THE UNIVERSITY OF LONDON PRESS
WAR IN DISGUISE;
OR,
THE FRAUDS
OF THE
NEUTRAL FLAGS
BY
JAMES STEPHEN
– 18 05 —
-º-
REPRINTED FROM THE THIRD EDITION
2-º-º-
EDITED
BY
SIR FRANCIS PIGGOTT
(LATE CHIEF JUSTICE OF HONG KONG)
WITH AN INTRODUCTION BY
JOHN LEYLAND
—º-
-u-
LONDON : UNIVERSITY OF LONDON PRESS
AT ST. PAUL’S HOUSE, WARWICK SQUARE, LONDON, E.C.
I917
THE
NEUTRAL MERCHANT
IN RELATION TO THE LAW OF
CONTRABAND OF WAR AND BLOCKADE
By SIR FRANCIS PIGGOTT
Price 2s. 6d. net.
“The author disposes effectually of some of the sophisms
lurking in the phrase ‘freedom of the seas,' now much in
favour with the friends of Germany, who mean thereby to
muzzle England's fleet.”—Times Literazy Supplement.
“A weighty essay on the neutral merchant.”—Daily
Telegražh. .
“A strong plea for the justice of Britain's conduct of the
war by sea.”—Saturday Rezniew.
AV AZAZAZAAA’ A 7TWOAV.
A DOCUMENTARY HISTORY
OF THE FRENCH WARS
1793–1815
By SIR FRANCIS PIGGOTT AND
JOHN LEYLAND
PUBLISHED BY
THE UNIVERSITY OF LONDON PRESS
*& º • * , ſº &
- º; . .” *:
* *** * * * * 9, & ºt.
PREFACE Br THE EDITOR
So much has already been written on subjects
relating to the War, there is so much still to be
written, that only very special reasons would justify
the reprinting of this almost forgotten pamphlet
published during the Napoleonic Wars. I think
such reasons do exist, for the problems which face
England to-day differ hardly at all in detail, not
at all in principle, from those which confronted her
then. To play the part of Bonaparte with a new
reading to a new audience has long been the modern
Hohenzollern dream ; and the collector of curious
analogies will find an abundant store, showing how
carefully the business of the part has been studied.
I note two in the facts referred to in this pamphlet :
the manipulation of the press, and “the insertion
“in the American newspapers of many of those false
“ and incendiary paragraphs, by which England is
“insulted and defamed in that country”; and that
strange idea that a belligerent may escape condemna-
tion by imputing to his enemies “the very crimes
“which he is at the same moment, perpetrating, and
“of which they are the intended victims.” And two
in the facts of to-day. This passage from the
Moniteur of the 16th August, 1805,” must have
served as text for many of the effusions on the
“Liberty of the Sea” which have emanated from the
German Admiralty for the beguilement of the neutral
nations: “L’Europe opprimée n'a plus qu'un désir
* See Editor’s Appendix, III, p. 2 II.
y
vi
“raisonnable à former, et ne doit placer ses res-
“sources que dans une seule espérance, le rétablisse-
“ment de la puissance maritime de la France.”
And to the proposal, or suggestion, for a prema-
ture peace, from whomsoever emanating—enemy, or
neutral, or domestic opposition—the answer is the
same as when Pitt led the Empire: “Peace | Yes;
“but only a secure peace l’—“You may make
“treaties with Buonaparte, but you cannot make
“peace.” This was a true saying when Stephen wrote
it ; substitute the new aggressor for the old, it is
what all men know to be true to-day.
But the analogy of this day with that on which
James Stephen's pamphlet throws so much light
is the position assumed by the neutrals towards the
belligerents, the claim on behalf of their merchants
to trade as of right with the enemy, their complete
indifference to the consequences which must result
to the Allies, and to the world, were that claim
admitted : by one neutral especially, the United
States, that new Power which had “arisen on the
“western shores of the Atlantic,” of which he pro-
phesied that its “position and maritime spirit were
“ calculated to give new and vast importance to
“every question of neutral rights.” So close is the
analogy that there is one passage in the pamphlet
which might have been written yesterday—
“There are some champions of neutral pre-
“tensions, who . . . maintain stoutly that
“neutral merchants have a right to trade on
“ their own account, with the Powers at war,
“wherever, and in whatsoever commodities
“ they please. If contraband goods, and
“blockaded places be graciously excepted,
vii
“this is the utmost extent of their absti-
“nence. All other neutral commerce they
“hold to be unquestionably legal.”
That is exactly the position which the United
States has assumed in its protests against the Order
in Council of the I Ith March, 1915.
Against that position Stephen fought strenuously.
He maintained that behind the doctrines of contra-
band of war and blockade there was a larger
principle, of which they were only illustrations, the
right of a belligerent to prevent the neutral from
giving assistance to his enemy. The peculiar
feature of England's belligerent policy then was an
attack on the French colonial trade ; the assistance
which the neutral American gave was to carry that
trade for him, and also his coasting trade, thus
affording to enemy property the sheltering screen
of the neutral flag. England's retaliatory measure
was to seize the neutral vessels, treating them as
she had treated the Dutch ships which had carried
that same trade for the French in the Seven Years
War; the retaliation known as the “Rule of 1756.”
That Rule was the warrant for the Instructions
to the Fleet issued in 1793, to bring in all vessels
engaged in the enemy colonial trade “for lawful
adjudication,” modified in 1794, and again in 1798.
The Prize Court recognised the principle on which
the Rule was based as consistent with the Law of
Nations, in the Immanuel and the Wilhelmina. But
they had enunciated it in a form applicable only to
the case before them, which had arisen out of the
monopoly of the French colonial trade—the neutral
had no right to enjoy unmolested in war a trade
in which he had no right to participate in peace.
viii
In this form the “Rule of 1756” has, in
fact, been handed down to us in the books. It
seems probable that the decisions of the Courts
during the Seven Years War proceeded on that
ground; and if in regard to matters of such supreme
moment we were compelled to keep ourselves within
the “all-fours” principle, the Rule would find no
larger statement. But it is the transcendent merit
of James Stephen that he saw its deeper meaning,
and boldly proclaiming it, pressed the Government
to adopt it—that it was a fundamental principle
of war that “a neutral has no right to deliver a
“belligerent from the pressure of his enemy's
“hostilities by [id est, as by trading with his
“colonies in time of war in a way that was pro-
“hibited in time of peace.” That was the principle,
he declared, “ of a rule first practically established
“by the Supreme Tribunal of Prize during the War
“of 1756, only because the case which demanded its
“application then first occurred.”
The peculiar form of deliverance from the pres–
sure of our hostilities adopted by the Dutch' in
1756, was trading under charter from and for the
enemy, still wearing the neutral flag; and this later
writers have called “identification ” with the enemy.
That was a special form of assistance. But all
assistance must come under the ban : and James
Stephen's version of the rule, as I have interpreted
it, is amply borne out by other judgments of Sir
William Scott, notably that in the Emanuel.
Were it only for this service rendered the
pamphlet would be worth reading to-day. But
there is another reason. The fight for the supre-
macy of belligerent right over neutral trading claims
was taken up in our own times by Admiral Mahan,
ix
who traced the application of the Rule of 1756,
through the Instructions of 1793, I 794, 1798, to
the Orders in Council of 1807. I have little doubt
that his brilliant justification of those Orders was
due to the inspiration of James Stephen. Indeed it
is not possible fully to appreciate the three chapters
on the “Warfare against Commerce’’ (xvii, xvi II,
xix) in Mahan's Influence of Sea-Power on the French
Revolution and Empire without reading Stephen's
pamphlet. -
The justification of the Orders in Council of
1807 | I wonder how many people realise what
that means ! I wonder how many among the
learned will withhold the sarcastic smile ! For it is
an article of good British faith that there was a time
when our country, attacked by Bonaparte with his
legion of Continental States behind him, pressed,
strangled almost to death in the struggle, hit back,
exercised the right of retaliation, as it is called for
confusion's sake : in saner language, exercised her
sea-power to the full, not keeping within the four-
square conventions of International Law. And her
own people have risen, and still rise, in judgment
against her.*
Indeed we are a strange people ! Nelson, block-
ading Genoa by the most effective dispositions of his
frigates that a great seaman could think of, was pes-
tered by reminders that their Lordships were not quite
sure whether those dispositions were such as Inter-
national Law contemplated, and whether the frigates
ought not to be closer in shore so that they could
be seen ; and, said Nelson, being seen, eluded. That
* See especially, an article vehemently criticising the Orders
in Council of 1807 and 1915, in the Quarterly Review of January,
I916.
X
was in 1804. But later, much impressed, as it is
said on best authority, by James Stephen's arguments,
Pitt, and the Whig Ministry in its turn, so used
sea-power as not merely to beat off the enemy's
ships, but to give battle to the monstrous Continental
System which he had reared for our destruction, and
the neutral assistance which supported it.
Yet, though at the long last the Sea beat the Land,
the cavillers run up and down with uplifted book,
pointing to chapter and verse violated. Strangest
thing of all : when, after many years, a learned
seaman took the matter seriously in hand for the
benefit of the rising generation of sailors in his own
country : when, after examining every document
in the dossier, after tracking the courses of the ships
as they chased and fought, he passed judgment of
acquittal on the offender, holding the plea salus
reipublicae good and proven : when he declared that
though he had great respect for the mass of conven-
tions known as International Law, yet he realised
that it couldnot “prevent the interests of belligerent
“ and neutral clashing, nor speak with perfect clear-
“ness when they do”: when this distinguished
seaman, “though an American " (though through-
out the Napoleonic Wars the troubles over neutral
rights arose specially with the United States, and led
to war with the old Mother Country), spoke with
clear conviction that the standard criticism of Eng-
land was all wrong : yet English critics went, and
still go, gaily on their way, and the professors,
instead of making those three chapters a text-book
for students and politicians of all ages to ponder
over, profess the old, old doctrines which favour the
neutral merchant at the expense of the belligerent
nation. That Mahan was greatly influenced and
xi
inspired by Stephen's pamphlet I have no doubt
whatever; the thread of reasoning which runs
through his argument is the same as Stephen's, and
he also traces the belligerent policy of the wars with
France back to the Rule of 1756.* His justifica-
tion of the Orders in Council of 1807 rests on it.
For this reason also the pamphlet is worth reading
to-day.
But the sceptic, not even convinced against his
will, protests that that is a dead issue, and the con-
troversy academic—What can it have to do with us
now * The American Government is right in its
protest, and he wishes to goodness we hadn't done
it ! So that demon of self-criticism, which is our
curse, has created two sects in the nation to-day :
the Flagellants—for, unless they in spirit have
denationalised themselves, in scourging the Govern-
ment they scourge England in the face of the world,
and so shamefully scourge themselves ; and Those
of Little Faith, whose support of the sea-policy of
the Allies is lukewarm, just hoping for the best. The
Flagellants are, I fear, past praying for : but those
others will find their grain of faith strengthened to
move mountains of unbelief, if only they will read
this little book. They will cease to be startled at
Mahan's conclusions; they will, which is more to
the point, find the thread of his argument justifying
* The signs of this influence are unmistakable ; but it is
curious that Mahan does not refer to the pamphlet expressly,
but only to the “Answer” to it, written by Gouverneur Morris—
Remarks upon the New Doctrine of England concerning Neutral Trade—
published in New York immediately after the appearance of the
American second edition of Stephen’s pamphlet, and by the same
firm. I have read the “Answer”; it appears to me only a
repetition of well-worn arguments, and very inconclusive. But
perhaps I am prejudiced.
xii
the Orders in Council of 1807 a firm-linked chain,
starting from 1756; and then, as the breaking
dawn dispels the shadows of the night, conviction
will come that that chain has had another link added
to it, certainty that the Order in Council of 1915
rests on the same sure basis, the Rule of 1756—the
rule of International Law that a neutral merchant
has no right to relieve a belligerent from the pressure
of his enemy's hostilities : no right, that is, to do so
with impunity; and that if the penalty falls on him,
it is the risk he ran, and he must bear it without
whining, and without pestering his Government, in
Mahan's sarcastic phrase, “to write State Papers.”
But Stephen's pamphlet has yet another value.
He was not content to enunciate as an abstract
proposition the “Rule of the War 1756,” as he
called it. He contended, with great dialectical
skill, that it supplied not merely the justification
for forcibly opposing the neutral's direct assistance
to the enemy, but also the necessary weapon for
dealing with their indirect assistance, the abuse of
the neutral flag; and he furnishes us with the
inner history of the evolution of the doctrine of
“continuous voyage.” We know it only as we
piece it together from the decisions of the Prize
Courts; but he gives it in a consecutive narrative,
and for this reason the first part of his pamphlet
has a peculiar interest and value to-day, when the
discussion with the neutral Governments turns on
its true meaning and legitimate application. As the
memoir in the Dictionary of National Biography says
of him, he had practised in the Colonial Courts and
knew what he was talking about. This had given
him a practical knowledge of the intricate details of
the subject; and he traces the neutral evasions of
xiii
our power at sea, and thus the inception of the
doctrine, to the influence of trade winds and ocean
currents which set the courses of sailing ships from
the West Indies to Europe along the shores of
North America. The neutral merchant, profiting by
the suggestion which Nature gave him, after a time
took this course deliberately, and founded on it a
new kind of trading. .
In applying to this evasion of our sea-power, the
expression “Frauds of the Neutral Flags,” Stephen
followed the conventions of the Prize Courts, which
apply the terms of the criminal law to the devious
devices of the neutral. I believe that this has done
more to envelop the relations of the merchant with
the belligerent in the cloud that has for so long
obscured them. Those relations are of the simplest.
If, when the belligerent has, as he has a perfect
right to do, stopped any or all of the channels of
supply from the outside world to the enemy, the
neutral merchant chooses to continue the supply,
he does so at his peril, for he is intermeddling with
the war and must take the consequences. The
“Rule of 1756” condenses the whole subject into
one short formula : the neutral has no right to
assist the enemy; if he does so, the belligerent may
take such steps as he thinks fit to prevent it. Of
this, the rules of contraband of war and blockade are
the well-known and most common examples. But it
must be obvious, this war has made it so, that these
two methods do not exhaust the possibilities of
neutral assistance to the enemy; equally obvious,
this war has made it so, that those rules cannot
exhaust the belligerent's power of checking that
assistance. But the neutral merchant never fought
fair. In order to evade the belligerent's power at
xiv.
sea he had recourse to devices, such as concocted
evidence, false manifests, and the hundred other
things which in the Courts of Law are termed
Fraud.
I do not like the word, because I believe it to be
wholly inappropriate to the main question. There
are two cardinal principles governing the whole and
every part of the subject: the first, that the neutral
merchant when he is trading with a belligerent is
acting for himself: for if his Government were
to protect the business, or forward its interests in
any way, or curtail it, its own neutrality would be
jeopardised ; the second, thus applied by Mahan to
the concrete case of the French Wars—“Great
“Britain did not dispute the right of the enemy to
“avail himself of any help the neutral could give ;
“she only asserted the determination not to permit
“the neutral to extend it with impunity.” Nor
does he deny, conversely, that Bonaparte was right
to assert, the like determination in regard to neutral
assistance to Great Britain, and enforce it if he
could—if the command of the sea being in his
enemy's hands had not prevented him, and led him
to seek other but, as it proved in the end, weaker
II]. Ca.11S.
Therefore, when rubber is moulded and painted
to resemble onions, and despatched to a neutral
country, so that it may be conveniently carried
by simple peasant-folk across the frontier into
Germany, “slim " would seem to be a better word
to use than “fraud.”; and when the X-ray discovered
copper carefully packed away in bales of cotton
before it was declared contraband, science came in
aid of astute belligerency and slimness suffered
defeat.
XV
Let it be said that the American Government
does not claim protection for these artless dodges ;
rather it proclaims them to be quite unnecessary,
for it maintains that everything outside the list of
contraband of war—though it professes uneasiness
at the continued lengthening of that list—ought,
naked and unashamed, without packings, to go freely
through the cruiser cordon which guards the northern
entrance to the North Sea : even though, the unkind
critic adds, some German in New York were to con-
sign it direct to Herr Krupp von Bohlen at Essen,
so only that it be laden on a neutral vessel bound
for Rotterdam | For “Free ships make Free
Goods”; and therefore this pretty dilemma arises
to perplex the belligerent –if the seller has not
parted with the property in goods sold to the
enemy they are still neutral, and therefore not
seizable : but if he has parted with the property
to the enemy purchaser, this convenient maxim
completes the halo of sanctity and proclaims them
“free.”
And now let me introduce James Stephen and his
pamphlet to his new readers. Born at Poole in
1758, his third son was Sir James Stephen, who
became famous as Under-Secretary for the Colonies,
whose second son was Sir James Fitzjames Stephen,
and whose daughter was the mother of Edward and
A. V. Dicey. Apart, then, from any merits of his
own, the illustriousness of these, and of many
others of his descendants who bear his name, claims
for their ancestor patient hearing.
But he had great merit, and much enthusiasm,
which led him to link his fortunes with Wilberforce
in the agitation against the slave trade. He married
xvi.
Wilberforce's sister. Before settling down to work
in the Prize Court he had practised at the Bar in
the West Indies, and the experience thus gained,
the familiarity with the facts, made him a powerful
opponent not only to the traffic in slaves but also
to the frauds of the neutral flags, the seat of both
being in the islands of the Caribbean Sea. He was
on terms of intimate friendship with Perceval—had,
in fact, been by his side a few moments before
Bellingham shot him—and was largely instrumental
in bringing about the Orders in Council of 1807.
If he did not actually draft them he inspired them,
and spoke vigorously in their defence in the House
of Commons against Brougham's violent attacks.
He was appointed a Master in Chancery in 1811,
and died at Bath on the Ioth October, 1832.
To the ability of the man and to the immense
value of War in Disguise, Lord Brougham in his
Life bears most loyal testimony. He describes him
as “a man of very considerable powers, combined
“with great firmness of purpose, and unquenchable
“ardour'; and he adds that the tract was “de-
“servedly celebrated, and most justly admired. It
“is impossible to speak too highly of this work, or
“to deny its signal success in making the nation
“for a time thoroughly believe in the justice and
“efficacy of his Order in Council.”
In the hope and belief that the spirit of his
writing may have the same influence on public
opinion, not “for a time” but for all time, not in
this country alone but in neutral countries, this
republication has been undertaken.
F. T. PIGGOTT.
March, 1917. -
xvii
The pamphlet was published on October 18th,
1805, a second edition on December 19th, and a
third on February 21st, 1806. There were cer–
tainly two editions published contemporaneously in
America : the second is dated February, 1806.
Copies are now, I believe, only to be found in
a few public libraries, and it has been necessary to
resort to the rotograph process of photography in
order to provide “copy” for the printers. The
courtesy of the authorities of the British Museum
has enabled the rotographs to be prepared from the
copy of the third, the rarest, edition, by Mr. Donald
Macbeth, of 17 Fleet Street. -
I have endeavoured to make the reading easier
by giving in a series of marginal and editorial notes
a running commentary on the events with which
the author deals, which, though brief, are sufficiently
copious to form a continuous thread, linking the
pamphlet with the known and profoundly interesting
history of the times. The author's spelling and
punctuation have been preserved.
I am greatly indebted to my friend Mr. John
Leyland, not only for his “ 1805,” but also for
much advice.
1805
Let us imagine ourselves in the England of July,
1805, when James Stephen was writing his War in
Disguise. War was then everywhere, in Parliament,
in the State, and in the world. Open and disguised,
it was the atmosphere in which men lived, moved,
and had their being. -
Let us imagine Pitt, still filled with his old fire,
but haggard and hollow-eyed, and failing visibly, yet
grasping firmly the helm of affairs. Let us listen,
in the Coffee-houses, to the sneering of men at
his dull Ministry, and to their jeering at his
administration as composed of “William and Pitt.”
The Commissioners of Inquiry into Abuses in the
Navy, who have been sitting for three years, have
reported early in this year. A storm of indignation
has followed, and with bitter acrimony Melville,
First Lord of the Admiralty, has been denounced
in the Commons for that, he “licked his fingers”
during the years in which he was Treasurer of the
Navy. Let us imagine the scene when Pitt, after
the Speaker had given his casting vote against the
Government, left the House, followed by some of
his friends, shedding scorching tears at the thought
of the mortal blow inflicted upon his Ministry and
himself. Afterwards he said: “We can get over
Austerlitz, but we can never get over the Tenth
Report.” The nearly octogenarian Admiral Sir
xix
Charles Middleton, now Lord Barham, is in
Melville's place—a great and wise administrator—
but of him nothing could the people know.
Addington has retired in dudgeon because the
place has not been given to a supporter of his own.
Men's minds are disturbed, in this England of
1805, by thinking of Demons of War which might
have assailed us and may still, they think, work our
doom. The “Ogre of Europe” is seeking his prey.
He can see our coasts from Boulogne, and awaits only
the assembly of his combined squadrons off Brest
to give him command of the Channel for six hours—
even for six hours l—and then there would be an
end of us ! Imagine the disquiet of people, thinking
of invasion planned for years past, and of the French
ports filled with flat-bottomed boats ready to bring
the army over. Not all men can keep their heads
in such times. Few of them know what the Navy
is doing. News comes slowly. Where is Villeneuve
and where Nelson they have asked. A blazing
haystack, mistaken for a beacon, has brought under
arms all the doughty volunteers of Derbyshire and
Yorkshire, ready to repel the invader. Naughty
children are threatened with the fear that “Boney
is coming.” A will-o'-the-wisp in the eastern Fen-
lands raises a widespread commotion. There is the
mustering of men in every shire.
Imagine all the doubt and bewilderment of a time
filled with vague rumour, which timid souls call the
“Time of Terror.” Think of the great blockade,
which extends from Flushing right round to Toulon;
of gallant old Cornwallis, who has stood close in to
Brest, fighting many a winter gale since war was
resumed; and of all the Admirals on these weather-
beaten coasts. Can the blockade still hold P Did
b
XX
not Villeneuve escape from Toulon, and Nelson lose
scent of him P Did he not chase the Frenchmen to
Egypt, when they were actually cruising near Tou-
lon P Did not Missiessy slip out from Rochefort,
under Sir Thomas Graves's nose, in January 2 Who
can tell what the Frenchmen will do P Lord
Gardner, just returned from the Fleet, is reported
to look gloomily on the situation. May not Gan-
teaume evade Cornwallis and escape from Brest, to
join Villeneuve and so fall upon Nelson Or may
the enemy not go to Ireland, as Hoche did in 1795,
and Humbert in 1798 That, it is believed, is
what Melville and his friends most feared. Or, it
is said, may not Villeneuve arrive off Brest, and,
with Ganteaume, overwhelm Cornwallis, and cover
the passage of the invading flotillas
We can see pates wagging where men are gathered
together and talking thus. They are not sure of the
Fleet. They remember how it lately seethed with
mutiny. They do not know how it has been purged;
and there are tales of the “United Irishmen ‘’
spreading discontent and plotting amongst the men
in the ships. They say that when Nelson went out
to Toulon he had an inferior fleet, with ships foul,
weakly manned and sickly, no dockyard, no stores,
few reinforcements, and everything to provide for
himself. No wonder that the Frenchmen cut capers,
and twice came out from their lair. They declared
that Nelson did not know what the Frenchmen
would do. Why did he think they had gone to
Egypt They had afterwards heard that he believed
when they came out, their action would be to cover
an invasion of England. The quidnuncs were used
to shake their heads when they spoke of Nelson's
having chased the French to the West Indies, of
xxi
all places in the world ! Might they not have
appeared in the Channel instead, and French soldiery
have run riot in England as they had done in
Germany We had run a great risk, said the
croakers, and we still stood in peril.
Everywhere, at this time, men's minds are dis-
turbed by uncertainty. People gain no encourage-
ment from “Old Jarvie”—the great Earl St.
Vincent—who said a year ago, with a snarl—“I
don’t say the French can't come ; I say they can't
come by sea l’’ Many things may happen at sea.
Nelson met Levanters when he went east, and winds
dead foul when he came west. The people who
talk in this way are of the sort that burned Hawke
in effigy just when he was fighting his great fight in
Quiberon Bay.
Evidently this summer of 1805 is a summer big
with anxiety. So many things are happening in it,
and so many are not happening; and so great is the
unsettlement of men's minds that if the wrong thing
should happen they will, without more ado, cast
down Dame Fortune from her pedestal, and even
burn in effigy the frail body of the national hero.
But the right thing does happen, and the alarmists
are soon surprised at their alarms. The aged Barham
has sat in his solitude to envisage the situation, and
has prepared a priceless minute, in which the old
English lore of the sea is embodied. Better still
Nelson has sent home good Captain Bettesworth in
the Curieux, and the brig has brought home tidings
of Villeneuve's exact course. He has found Lord
Barham in bed, and no one bold enough to arouse
him ; but soon after daybreak the next morning
Barham, knowing what to do, is ready with his
orders to Cornwallis, which direct that Admiral
xxii
to give Calder force sufficient for his battle—and
eventually, rightly or wrongly, bring him home to
go before a court-martial.
The fate of England hangs in the balance now,
and with it the fate of the World. High are the
hopes when Bettesworth arrives | Nelson was right
after all ! The French were really going to the
West Indies. Now we know where they are. Then
comes news of Calder's failure. The cup of satis-
faction is dashed from eager lips, and loud is the
outcry. Some say Calder has done enough to take
the fight out of Villeneuve, nevertheless. Others
gloomily say that in the critical hour he has not
held on as an English Admiral should. He has
been too readily content with an easy battle. The
shadow of impending invasion soon vanishes, how-
ever. Rumour comes that the camps are broken up
at Boulogne. Instead of dictating peace at Black-
heath, Bonaparte is attacking Austria, and attempt-
ing to break up the new coalition.
There were evil dreams among the people in
those times, and not until the day of Trafalgar
broke, and news of the victory came, did sunshine
chase the clouds away. When Villeneuve came out
from Ferrol, into which port he had run from Vigo
after Calder's blow, and turned southward to Cadiz,
instead of appearing off Brest, the mighty dream
of Bonaparte for the invasion and subjection of
England vanished. There was one man, at least,
who thought clearly and spoke ably to dissipate the
fears of the timid in the time of the greatest alarm
—that great sea officer Sir Edward Pellew, the
future Lord Exmouth ; and what he said in the
House of Commons, in March, 1804, embodied
xxiii
all the wisdom of the sea :-‘‘I do not see in the
“arrangement of our naval defence,” he declared,
“anything to excite the apprehensions of even the
“most timid among us. On the contrary, I see
“everything that may be expected from activity and
“perseverance to inspire with confidence. I see a
“triple naval bulwark, composed of one fleet acting
“on the enemy's coast; of another, consisting of
“heavier ships, stationed in the Downs, and ready to
“act at a moment's notice ; and of a third, close to
“the beach, capable of destroying any part of the
“enemy's flotilla that should escape the vigilance of
“the other branches of our defence. As to the
“probability of the enemy being able, in a narrow
“sea, to pass through our blockading and protecting
“squadrons with all that secrecy and dexterity and
“by those hidden means that some worthy people
“expect, I really, from anything I have seen in the
“course of my professional career, am not disposed
“to concur in it.”
Bonaparte had mustered his armies, and marshalled
or tried to marshal his fleets as if they were armies,
in the effort to challenge our historic position in the
world. He had gathered every military, naval, and
economic force against us that was within his power.
He had endeavoured to weld the neutrals into his
combinations, and, as Mahan puts it, in a pregnant
phrase, “While Great Britain rules the sea, every
neutral is the ally of her enemy.”
James Stephen was a far-sighted and sagacious
man, who knew and understood how Great Britain
had used her Sea Power to defend her belligerent
rights against the Dutch shippers during the Seven
Years War. In his little book he laid down the
great rule of belligerency, that a neutral may not
xxiv.
with impunity assist a belligerent, if the other
belligerent has force and will to intervene. With
that object he wrote the remarkable paper which is
here reproduced, in order to urge the Government
of his time to act, though with moderation, in the
spirit of what was known as the “Rule of 1756,”
and to revoke the concessions to the United States
which had been granted in the late war with France.
Stephen wrote in times which greatly resemble
our own, and many of his arguments are strictly
relevant to the situation in the present war. He
had, in the first place, a full sense of the magnitude
of our Sea Power, and of the efficiency with which
it was being applied. “Have we lost the triumphant
“means of such effectual warfare,” he asks, “ or
“have the ancient fields of victory been neglected P’’
No, he answers, as we should answer now ; “never
“was our maritime supremacy more decisive.”
There was no naval failure then, any more than
there is now. It was the neutral shipper who had
succeeded in weakening the pressure of blockade.
Stephen might have been writing of these very
times when he says: “Not a single merchant ship
“under a flag inimical to Great Britain now crosses
“the equator or traverses the Atlantic Ocean.” Such
was then, and is now, the efficiency of our command
of the sea.
Stephen saw in his time what we are so conscious
of now—the vital relation of the neutrality of
Belgium and the Low Countries to our Sea Power.
Bonaparte had a design to acquire “a new line of
“coast, new ports, new countries,” which would
“render our dangers more imminent.” He was
XXV
employing the naval advantages of Antwerp much
as the Germans are employing those of Zeebrugge.
The neutrality of all the Low Countries has been
the constant motive of our foreign policy. It was
a cardinal point with Pitt. It made Belgium the
“cockpit of Europe.” In the dark hour when the
Allies were threatening on the Rhine in 1813, and
disaster impended over Bonaparte, he asked his
councillors if they would dare to make peace and
sacrifice all the great seaward promise of the Low
Countries. “Rather than give them up, I will
“break down the dams l’’ ~.
We have heard a great deal of the German claim
to “freedom of the seas,” of which we are described
as the tyrants, and the oppressors of other nations.
Here Stephen speaks not less surely. “The
“usurper's favourite topic of late,” he says of
Bonaparte, “has been the liberty of navigation ; he
“would be thought the champion of the common
“rights of all maritime states. . . . Yes! he will
“clamour for the freedom of the seas, as he did
“for the freedom of France, till his neutralizing
“friends shall have placed him in a position to
“destroy it. . . . Those who have sublimated their
“imaginations so far, as really to think that war
“ought, in justice and mercy, to be banished from
“the boisterous ocean, that it may prey the more
“and the longer on the social cities, or quiet plains ;
“are not likely to descend with me into the regions
“ of sober investigation.”
Could there be a more appropriate comment on
the modern claim to “freedom of the seas " ? The
sea, as all men know, is as free as, and freer than the
land in time of peace ; it is only controlled by the
xxvi
superior belligerent in time of war. Is that land
free in time of war which armies invade and ravish,
and which they continue to occupy and control
This thought was with James Stephen in 1805.
He could not know that in the Treaty of Alliance
of Tilsit, concluded two years later between Bona-
parte and the Emperor of Russia,” whereby France
and Russia sought to impose peace upon us, or, in
default thereof to bring the Scandinavian States and
Portugal in arms against us, this new “freedom of
the seas" was one of the concessions proposed to
be extracted from us, which would have amounted
to the abdication of all our maritime rights.
There is another analogy between the year 1805
and our own times. An appeal has been made to
the sentiments of the American people, who are
united to us by the ties of common extraction and
many sympathies. Here we may draw something
from the wisdom of James Stephen. The Americans
see us “sustaining the cause of civil liberty against
“the iron yoke of military despotism. . . . Nor
“can they doubt that the subjugation of England
“would be fatal to the last hope of liberty in
“Europe.” “Is the Atlantic thought a sufficient
“rampart for themselves against the same despotic
“system ** They would see the States of South
America held in “the hands of this Colossus.”
One might direct attention to many other points
in Stephen's pages. His constant trust in the Navy
is admirable and should be a lesson for our own
times. It must be wisely administered and con-
trolled. Stephen did not concern himself with
* June 26th, 1807.
xxvii
personalities. All he asked was fitness for the office
of First Sea Lord. Age mattered nothing to him.
Lord Melville had been in many respects a most
capable naval administrator. Lord Barham, whom
the light of modern research has placed high in
the long line of our administrators, had succeeded
him. But Barham was verging upon eighty, and
many people feared he might prove unequal to his
task. Stephen thought his long experience and
reflection fitted him the better for the arduous
position, and anticipated greater activity to meet
the enemy's exertions, and “every possible counter-
action ” on our own part. That was then, as it is
now, a matter of first-rate importance. “He re-
“sembles the old, but sound and healthy oak,
“which time has qualified for the most important
“uses of our navy, by enlarging its girth and its
“dimensions without having at all impaired its
“strength or elasticity.”
One must not labour too much the bearing of
Stephen's writing of 1805 upon the particular cir-
cumstances of modern times. But allusion may be
made to his reference to what is, perhaps, a common
experience of war, the extraordinary growth of
wealth in those classes who are able to secure profit
from the opportunities it offers to enterprise, and
also to his remarks on the danger of the influencing
or controlling of the enemy press in such a way
that “an ardent and intelligent people” may be
“impressed with a belief of facts diametrically
“opposite to the truth.”
JOHN LETTLAN/O.
Airst AEdition, 18 Oct. 1805
Second Edition, 19 ZXec. 1805
Third AEdition, 21 Areb. 1806
First American AEdition, 1805
Second American Edition, Feb. 1806
Reprinted, March 1917
WAR IN DISGUISE :
OR,
THE FRAUDS
OF THE
AWEUTRAL FLAGS.
THE THIRD EDITION.
LONDON .
PRINTED BY c. whitTINGHAM,
Dean Street;
AND SOLD BY J. HATCHARD, PICCADILLY ; AND
J. BUTTERWORTH, FLEET-STREET.
-mº ºm-
1806.
PREFACE
TO THE
FIRST EDITION.
—º-—
-º-
THOUGH the following sheets have been
written and sent to press in considerable haste, on
account of some temporary considerations which
add to the immediate importance of their subject,
the author has spared no pains that could tend to
guard his statements from mistake. His facts are,
for the most part, derived, as the reader will per-
ceive, from those authentic and original sources of
information, the records of our courts of prize :
it may therefore perhaps be surmised, that some
practitioner in those courts, if not the author of
the argument, has at least contributed his aid, in
furnishing premises for its use.
Adverting to the probability of such a conjecture,
and to an erroneous notion which he knows to be
very prevalent, namely, that the practitioners in the
admiralty courts have an interest opposite to the
pretensions of neutral merchants, he thinks it right
to guard both his facts and his opinions against
this source of jealousy, by one brief remark—con-
tests in the prize jurisdiction arise almost exclusively
from claims of property preferred by neutrals ; and
therefore, the business of the prize courts, would
obviously be impaired, not extended, by narrowing
the legal confines of the neutral flags.
If the intelligent reader should stand in no need
of this information, he will still feel such caution
xxxii
in an anonymous writer, not to be excessive ; for
however sacred a national cause may be, it is be-
come too common a rule, to Suppose that no man
exerts himself in it from a public motive, if a private
one can possibly be surmised.
October 18th, 1805.
PREFACE
TO THE
SECOND EDITION.
—º-
-
ON the same day on which the first impression
of the following sheets issued from the press, an
event took place off Cape Trafalgar, which in the
eyes of many, perhaps, may have diminished the
importance of their general subject ; and which has
certainly taken from some of the facts and reflec-
tions contained in them, a part of their original
interest. Our immortal Nelson, and his brave
successor in command, have materially thrown back
the naval preparations of Buonaparte, and dashed
his rising hopes of “ships, colonies, and commerce.”
The gallant Sir Richard Strachan has since given
the Usurper another proof, that more than equality
of force, and more even than intrepidity of conduct,
is necessary to protect his flag from the most signal
and entire defeats, in a conflict with British seamen :
and the general result is, not only a great increase
of national glory, but a most important deduction
from some of the dangers, to which the following
pages relate. w
xxxiii.
But enough of peril, as well as mischief, still
arises from the present abuses of neutral privilege,
to make a longer submission to them highly
dangerous and imprudent. - -
Let us not be so ungrateful, as to consider less
anxiously the rights and interests of our brave
seamen, because their heroic exploits have improved
our security ; nor let the glorious dying donation
of Nelson to his country prove, like a rich legacy
to a prodigal, a pernicious gift, by confirming us
in the waste of our maritime patrimony, and thereby
1nsuring our ruin. -
An Appendix is added to this Edition, containing
Some further facts, evidence, and illustrations, as
well as a few explanatory remarks. Some of each
might have properly made part of the text ; but
as the latter was thought to require scarcely any
material alterations, it seemed fairer towards the
purchasers of the First Edition, to place all this
new matter in an Appendix, which they may buy
separate from the work.
Dec. 19, 1805.
PREAEA CE
TO THE
THIRD EDITION.
—sº-
-º-
THE grand events, and political reverses, of this
extraordinary aera, succeed each other so rapidly,
that they outstrip the speed of the press; and
xxxiv.
every argument on national affairs that turns
on their existing position, is in danger of being
antiquated before it can be read ; or at least, before
it can be deliberately examined by the public.
The grand subject of the following sheets,
however, is of no fugitive nature or momentary
1nterest.
The capitulation of Ulm, the battle of Austerlitz,
and the peace of Presburgh, have only made the
maritime rights of England more important, and
their immediate assertion more indispensably
necessary, than before, to our safety and national
eX1Stence. .
Though much of great moment might now be
added to this little work, the change of circum-
stances demands no omissions or corrections in it,
except in the form of some passages not at all
essential to the argument, which relate to situations
that no longer exist, and public characters now lost
to their country.
The author nevertheless intended to revise and
alter the pamphlet before it was reprinted, but
found it impossible to take time enough from his
private avocations for the purpose, when a great
demand for the work, now out of print, and the
urgent importance of its subject, forbad his delay-
ing any longer to send it again to the press. The
text therefore will be found entirely the same with
that of the second edition.
Feb. 21, 1806.
WAR IN DISGUISE,
&c.
THE hope of Peace, which long, though faintly,
gleamed from the North, has vanished ; the political
atmosphere is become darker than ever ; and the
storm menaces a wider range, as well as a lengthened
duration."
T EDITOR’s NoTE.—Pitt, returning to power in May, 1804, hoped to
use against Bonaparte the weapon of a coalition of the Northern Powers
which he himself had used against England during the Republican war.
The foundations for such a policy had been laid in June, 1801, by a treaty
with Russia which had pulled to pieces the Armed Neutrality of 1800,
some of its favourite maxims being abandoned. The reins once more in
his hands, he concluded a secret convention with Sweden, December 3,
1804, by which the Hanoverian corps, then being formed, was to have its
headquarters either at Stralsund or in the island of Rugen. In 1805, the
larger plan of the coalition was set on foot in order to rescue Europe from
its sufferings, and to force the French Government to consent to peace
and the re-establishment of the equilibrium of Europe, and the treaty with
Russia was signed at St. Petersburg on March 30 : “S. M. le Roi des
Royaumes-Unis de la Grande Brétagne et d'Irlande, et S. M. l'Empereur
de toutes les Russies, animés du désir de rendre à l'Europe la paix, l'indé-
pendance et le bonheur, dont elle est privée par l’ambition démesurée du
Gouvernement François, et par l’extrême influence qu’il cherche à s'arroger,
ont résolu de mettre en oeuvre tous les moyens qui sont en leur pouvoir
pour atteindre ce but salutaire et pour prévenir le renouvellement de
pareilles circonstances funestes.”
Great Britain undertook to support the common effort by employing its
forces on land and sea, lending its transports for the troops of the other
nations, and furnishing subsidies to the adhering Powers proportionately
to the forces contributed, at the rate of £1,250,000 for every IOO,OOO men,
as well as the amount necessary to put the troops in motion. The
B
2
At such a period, it is natural to cast forward
an anxious glance toward the approaching events
of war, and to calculate anew the chances of a happy
or disastrous issue of this momentous contest ; but
it is wise also to look backward, to review the plan
on which the war has hitherto been conducted, and
inquire, whether experience has not proved it to be
in some points, erroneous or defective.
The season seems favourable for improvement,
especially in our offensive measures, since new re-
lations will, in all probability, demand an important
change in them ; while the acquisition of allies,
however powerful and active, will diminish in no
degree the duty of putting forth our utmost
eXert1OnS. -
Fatal might be that assistance in the war, which
should lead us to cherish less carefully our own
independent means of annoyance or defence. The
arch enemy of the civilized world, in the prospect
of having a new confederacy to contend with, like
Satan when opposed to the angelic phalanx, is
negotiations for the adhesion of Austria were completed on July 28, and
Sweden joined on October 3. An army of 400,000 men was to be
launched against France. This was the “momentous contest” towards.
which anxious glances were directed by the country.
The author shared Pitt's confidence in this third coalition : it was the
faint gleam of hope from the North which, by a successful campaign
against France, was to usher in peace. But in August, when Bonaparte
heard that Villeneuve, instead of approaching Brest, as he had ordered,
through the Raz de Sein, had turned southward to Cadiz, he realised that
his hopes of invading England had vanished. “What a fleet !” he
exclaimed. “What sacrifices for nothing ! What an admiral All hope
gone !” It was the supreme moment, and the bitterest of Bonaparte's
career. But the genius of the man triumphed, and he instantly took
the initiative, marched his army from Boulogne against Austria, and the
storm of war thenceforward menaced “a wider range, as well as a
lengthened duration.”
It is probable that the writing of this pamphlet was begun soon after the
arrival of the news in England. When the third edition appeared, a few
months later, the fate of Austria had been sealed at Ulm and Austerlitz.
3
“collecting all his might,” and seems to be pre-
paring, for his continental foes at least, an impetuous
attack" ; nor are their preparations of a character
less decisive—
“One stroke they aim,
“That may determine, and not need repeat.”
A single campaign, if disastrous to our allies,
may realize some of the late threats of Buonaparte.
He may acquire “a new line of coast, new ports,
“new countries,” and then, he fairly tells us the
consequence—“the defeat of our confederates would
“be reflected back upon ourselves—would leave
“France more at liberty than ever to turn her whole
“attention to her war with this country, and to
“employ against us still augmented means of
“annoyance ; ” it would render our dangers, as he
truly says, “more imminent,” though, I trust, he is
mistaken in the insulting conclusion, that it would
“ insure our fall.” +
The plan which this exasperated enemy has
formed for our destruction, is of a nature far more
formidable than that which he ostentatiously dis-
played. The flotilla at Boulogne, and the army of
the coast, have chiefly excited our attention ; but
* See an official article in the Moniteur of August 16th or
17th copied into the London papers of the 28th [ſee Editor’s
Appendix, I].
‘ſ EDITOR’s NOTE.-The “impetuous attack” was delivered against
Austria, and resulted in the capitulation of Ulm of October 17, four days
before Trafalgar, and later, on December 6, in the armistice after the defeat
of the Austrians at Austerlitz. On December 26, a Treaty of Peace was
signed at Presbourg, by which, among many other things, France was to
retain the territories beyond the Alps already incorporated into the Empire:
Austria renounced that part of the Republic of Venice which had been ceded
to her by the Treaties of Campo Formio and Lunéville, and recognised
Napoleon as King of Italy. Napoleon guaranteed the integrity of Austria
as reconstituted.
4
the restitution of his regular marine, and the in-
crease of the confederated navies, have been the
Usurper’s more rational dependence, and the means
of war which he has been indefatigably labouring
to provide. Enraged at the interruption of this
plan by his quarrel with Austria, he now avows in
his complaints, its real nature and magnitude. He
asserts to the Germanic Diet, “ that he has been
“employing all the resources of his empire, to con-
“struct fleets, to form his marine, and to improve
“his ports ; ” + nor is the important fact unfounded,
though alleged by Buonaparte.
These dangerous efforts may be in some measure
diverted by the new continental war ; but they will
not be wholly suspended ; and should we again be
left singly to sustain the contest, they will, of course,
be resumed on their former scale, with renovated
vigour and effect.
In preparations like these consist the chief danger,
not only of England, but of Europe; for the fall of
this country, or, what would be the same in effect,
the loss, at this perilous conjuncture, of our superi-
ority at sea, would remove from before the ambition
of France almost every obstacle by which its march
to universal empire could be finally impeded.
Nor let us proudly disdain to suppose the possi-
bility of such a reverse. Let us reflect what the
natives $ of France, Spain, and Holland once were ;
let us consider that these countries form but a part
of those vast maritime regions, the united resources
of which are now at the command of the same
energetic government ; ** and if these considerations
Bonaparte's
ambition to
increase his
fleet the real
danger.
[In 1798 Bona-
parte wrote,
** Make what
efforts we
will, we shall
not for many
years acquire
the control of
the seas”—
Ed.]
On the
revival of
the Armed
Neutrality in
I8OO, Eng-
land again
found herself
without an
ally as she
had been
in 1780.
These re-
marks reflect
the anxiety of
the country in
the autumn of
I805.
The pamphlet
appeared on
the day
on which
Trafalgar was
fought and
WO]].
§ for
“natives”
probably read
‘‘navies.”
* Paper presented by M. Bacher to the Diet of Ratisbon,
Moniteur of September 11th [see Editor’s Appendix, II].
** Genoa alone, it is computed, can supply Io,000 able seamen.
5
are not enough to repel a dangerous confidence, let
those great maritime advantages of the enemy, which
the following pages will expose, be added to the
large account ; for I propose to show, in the en-
croachments and frauds of the neutral flags, a
nursery and a refuge of the confederated navies ; as
well as the secret conduits of a large part of those
imperial resources, the pernicious application of
which to the restitution of his marine, the Usurper
has lately boasted—I propose to show in them his
best hopes in a naval war; as well as channels of a
revenue, which sustains the ambition of France, and
prolongs the miseries of Europe.
In the retrospect of the last war, and of the pro-
gress we have yet made in the present, one singular
fact immediately arrests the attention. -
The finances of France appear scarcely to be im–
paired, much less exhausted, by her enormous
military establishments, and extensive enterprises,
notwithstanding the ruin so long apparently imposed
on her commerce. Poverty, the ordinary sedative
of modern ambition, the common peace-maker be-
tween exasperated nations, seems no longer to be
the growth of war. -
The humblest reader in this land of politicians,
if he has raised his eyes so high as to the lore of
Poor Robin's Almanack, has learned that—“War
“begets povery, poverty peace, &c.”; but now, he
may reasonably doubt the truth of this simple pedi-
gree ; while the statesman, must be staggered to find
the first principles of his art shaken by this singular
CalSC.
In fact, political writers have been greatly em-
barrassed with it ; and have laboured to account for
it by the unprecedented nature of the interior situa-
The scheme of
the pamphlet
set forth : The
author pro-
poses to show
the depend-
ence of
Bonaparte on
neutral assist-
ance : and the
fraudulent
devices of the
neutrals to
evade our
measureS to
prevent it.
Resources of
France appear
to be unim-
paired in spite
of the cost of
her military
enterprises,
and our de-
predations on
her commerce.
6
The ‘‘ con-
fiscations”
were the
Decrees order-
ing the
destruction of
British manu-
factures intro-
duced into
France.
tion and policy of France, or from the rapacious
conduct of her armies ; but none of these theories
were quite satisfactory when promulgated ; and they
have since, either been shaken by the failure of those
prospective consequences which were drawn from
them, or have been found inadequate to explain the
new and extended difficulties of the case.
Let ample credit be taken for revolutionary
confiscations at home, and military rapine abroad,
for the open subsidies, or secret contributions
of allies, and for the gifts or loans extorted from
neutral powers, by invasion or the menace of
war;"| still the aggregate amount, however enormous
in the eye of justice and humanity, must be small
when compared to the prodigious expenses of
France.
In aid of that ordinary revenue, of which com-
merce was the most copious source, these extra-
ordinary supplies may, indeed, be thought to have
sufficed ; but when we suppose the commercial and
colonial resources of France to have been ruined by
our hostilities during a period of near twelve succes-
sive years, the brief term of the late peace excepted ;
and when we remember that she has not only sus-
tained, during a still longer period, and with scarcely
"I EDITOR’s NOTE.-It seems probable that the author is referring to
the curious series of treaties which Bonaparte imposed on the Italian
States in 1796. His method of dealing with them is, however, not
quite accurately described. It appears to have been fairly uniform. There
was first a cessation of hostilities, for which a heavy price was demanded
in contributions of money and kind; this was followed by a Treaty of
Alliance by which the “neutrality” of the State was ensured, subject to
the free passage of the French troops, and the payment of the contri-
butions put on a firm basis, when perhaps, though essentially “butin,”
they assumed the form of “gifts.” The contributions in “kind” were of
a most varied description, and though specially directed to strengthening
the “remount” and commissariat departments of the army, did not neglect
art treasures. Examples of these are given in the Editor's Appendix, V.
7
any cessation,” a war arduous and costly beyond all
example, but has fed, in addition to her military
myriads, those numerous swarms of needy and rapa-
cious upstarts, who have successively fastened on
her treasury, and fattened by its spoil ; I say, when
these exhausting circumstances are taken into the
account, the adequacy of the supply to the expendi-
ture, seems, notwithstanding the guilty resources
which have been mentioned, a paradox hard to ex-
plain. Were the ordinary sources of revenue really
lost, those casual aids could no more maintain the
vast interior and exterior expences of France, than
autumnal rains in Abyssinia could fill the channel
of the Nile, and enable it still to inundate the plains
of Egypt, if its native stream were drawn off.
Besides, the commerce and the colonial resources
of Spain and Holland are, like those of France
herself, apparently ruined by the war.—When,
therefore, we calculate on contributions from these
allies, this common drawback on their finances
should diminish our general estimate.
If we look back on the wars that preceded the
last, the difficulties in this subject will be enhanced.
To impoverish our enemies used, in our former
contests with France and Spain, to be a sure effect
of our hostilities; and its extent was always pro-
portionate to that of its grand instrument, our
superiority at sea. We distressed their trade, we
intercepted the produce of their colonies, and thus
exhausted their treasuries, by cutting off their chief
sources of revenue, as the philosopher proposed to
dry up the sea, by draining the rivers that fed it.
By the same means, their expenditure was immensely
* A most expensive contest with the negroes in the West Indies,
filled up the whole interval between the last and present war.
Referring to
the troubles in
San Domingo
and its ulti-
mate loss in
1803. The
island had
been ceded to
France by
Spain in 1795.
Disastrous
consequences
to our enemies
of our
Superiority at
Sea, and of
the policy of
attacking their
colonial trade.
8
During the
Seven Years
War our sea-
power ex-
hausted
France in her
distant pos-
sessions, and
she lost India.
and Canada.
The arrival
of a convoy
in the West
Indies was a
rare event,
and home-
ward-bound
convoys
were often
captured.
The Instruc-
tions to the
Fleet of 1793,
I794, and
'I'798, had
destroyed the
open com-
merce of
France with
her colonies.
increased, and wasted in defensive purposes. They
were obliged to maintain fleets in distant parts of
the world, and to furnish strong convoys for the
protection of their intercourse with their colonies,
both on the outward and homeward voyages. Again,
the frequent capture of these convoys, while it en-
riched our seamen, and by the increase of import
duties aided our revenue, obliged our enemies, at a
fresh expense, to repair their loss of ships ; and
when a convoy outward-bound, was the subject of
capture, compelled them either to dispatch duplicate
supplies in the same season, at the risk of new
disasters, or to leave their colonies in distress, and
forfeit the benefit of their crops for the year.
In short, their transmarine possessions became
expensive incumbrances, rather than sources of
revenue; and through the iteration of such losses,
more than by our naval victories, or colonial con-
quests, the house of Bourbon was vanquished by
the masters of the sea.
Have we then lost the triumphant means of such
effectual warfare ; or have the ancient fields of
victory been neglected P
Neither such a misfortune, nor such folly, can
be alleged. Never was our maritime superiority
more decisive than in the last and present war. We
are still the unresisted masters of every sea ; and
the open intercourse of our enemies with their colo-
nies, was never so completely precluded ; yet we do
not hear that the merchants of France, Spain, and
Holland are ruined, or that their colonies are dis-
tressed, much less that their exchequers are empty.
The true solution of these seeming difficulties is
this—The commercial, and colonial interests of our
enemies, are now ruined in appearance only, not in
9
reality. They seem to have retreated from the
ocean, and to have abandoned the ports of their
colonies; but it is a mere ruse de guerre–They
have, in effect, for the most part, only changed their
flags, chartered many vessels really neutral, and
altered a little the former routes of their trade.
Their transmarine sources of revenue, have not
been for a moment destroyed by our hostilities, and
at present are scarcely impaired.
Let it not, however, be supposed that the pro-
tection of the trade, and the revenue of an enemy,
from the fair effects of our arms, is the only preju-
dice we have sustained by the abuse of the neutral
flag. To the same pestilent cause are to be ascribed
various other direct and collateral disadvantages, the
The prosperity
of France, in
spite of all our
successes and
continued
mastery of the
sea, traced to
its source—the
abuse of the
neutral flag.
effects of which we have severely felt in the late and -
present war, and which now menace consequences
still more pernicious, both to us, and our allies.
Hitherto we have suffered the grossest invasions of
our belligerent rights, warrantably if not wisely; for
the cost was all our own ; and while the enemy
totally abandoned the care of his marine, the sacri–
fice could more safely be made ; but now, when he
is eagerly intent on the restitution of his navy, and
when other powers have gallantly stood forth to
stem the torrent of French ambition, the assertion
of our maritime rights is become a duty to them as
well as to ourselves : for our contribution to an
offensive war must be weak, or far less than may be
justly expected from such an ally as Great Britain,
while the shield of an insidious neutrality is cast
between the enemy, and the sword of our naval
power.
In the hope of contributing to the correction of
this great evil, I propose to consider—
The ‘‘in-
vasions of our
belligerent
rights” were
the conces-
sions to the
United States
in 1794 and
1798.
The remedy
lies in a full
assertion of
our belligerent
rights at sea.
10.
I.
Z'he Origin,
AWature, and
Axtent of the
aôuse of the
AVeutral Flag.
American
merchants
claimed to
trade with the
French West
Indies as of
right.
Our attacks
on enemy
colonial
COIO In erCe
confused
with declara-
tions of con-
traband of
W3. T.
1st. Its origin, nature, and extent.
2d. The remedy, and the right of applying it.
3d. The prudence of that resort.
There are few political subjects more important,
and few, perhaps, less generally understood by the
intelligent part of the community, than the nature
of that neutral commerce, which has lately in some
measure excited the public attention, in consequence
of the invectives of Buonaparte, and the complaints
of the American merchants. The Moniteur asserts,
that we have declared sugar and coffee to be contra-
band of war,” and some of our own newspapers, in
their accounts of conferences supposed to have taken
place between the minister, and the American resi-
dent, are scarcely nearer the truth. Our government
has been stated to have recalled orders, which never
issued, and to have promised concessions, which I
believe were never required.
To shew what the subject of controversy, if any
controversy actually now depends between the two
nations, may probably be, as well as to make the
abuses which I have undertaken to delineate more
intelligible, I must begin with stating some im–
portant historical facts. -
The colonizing powers of Europe, it is well
known, have always monopolized the trade of their
respective colonies ; allowing no supplies to be
carried to them under any foreign flag, or on
account of any foreign importers ; and prohibiting
the exportation of their produce in foreign ships,
or to any foreign country, till it has been previously
brought into the ports of the parent state.—Such,
Colonial trade
was always
considered a
monopoly of
the mother-
countries of
Europe.
[See Editor's
Note, p. II.4,
as to the
principles
on which the
Navigation
Act was
based.]
* Moniteur of August 16th : London newspapers of the 27th
[see Editor’s Appendix, III].
11
with a few trivial and temporary exceptions, has
been the universal system in time of peace ; and,
on a close adherence to this system, the value of
colonies in the new world has been supposed
wholly to depend.
In the war which commenced in the year 1756,
and was ended by the peace of 1763, France, being
hard pressed by our maritime superiority, and un-
able with safety, either to send the requisite supplies
to her West India Islands, or to bring their produce
to the European market, under her own mercantile
flag, resorted to the expedient of relaxing her
colonial monopoly ; and admitted neutral vessels,
under certain restrictions, to carry the produce of
those islands, to French or foreign ports in Europe.
Of course it was so carried, either really or osten-
sibly, on neutral account ; the object being to
avoid capture on the passage. -
But the prize courts of Great Britain, regarding
this new trade as unwarranted by the rights of
neutrality, condemned such vessels as were captured
while engaged in it, together with their cargoes ;
however clearly the property of both might appear
to be in those neutral merchants, on whose behalf
they were claimed.
As these vessels were admitted to a trade, in
which, prior to the war, French bottoms only could
be employed, they were considered as made French
by adoption : but the substantial principle of the
rule of judgment was this—“that a neutral has no
right to deliver a belligerent from the pressure of
his enemy's hostilities, by trading with his colonies
in time of war in a way that was prohibited in time
of peace.” .
When the facts which I would submit to the
During the
Seven Years
War, 1756–
I763, France,
hard pressed
by our com-
mand of the
sea, relaxed
monopoly and
admitted the
neutral flag to
colonial trade.
Neutral
vessels con-
demned be-
cause they had
become enemy
by adoption.
The “Rule of
1756” stated.
12
The Rule as
laid down by
Sir William
Scott in the
Ammanzee/–
I799; (2 C.
Rob. Adm.
Rep. 186).
attention of the reader are fully before him, the
justice and importance of this limitation of neutral
commerce, which has sometimes been called “the
rule of the war, 1756,” will be better understood.
Yet a general preliminary account of the reasons
on which it is founded, seems necessary to the right
apprehension of some of those historical facts ; I
give it, therefore, in the language of one, whose
ideas it is always injurious to quote in any words
but his own.
“The general rule is, that the neutral has a
“right to carry on, in time of war, his accustomed
“trade, to the utmost extent of which that accus-
“tomed trade is capable. Very different is the case
“of a trade which the neutral has never possessed,
“which he holds by no title of use and habit in
“ times of peace ; and which, in fact, he can obtain
“in war by no other title, than by the success of
“the one belligerent against the other, and at the
“expense of that very belligerent under whose
“success he sets up his title ; and such I take to
“be the colonial trade generally speaking.
“What is the colonial trade, generally speaking f
“It is a trade generally shut up to the exclusive
“use of the mother country, to which the colony
“belongs; and this to a double use—the one, that of
“supplying a market for the consumption of native
“commodities, and the other, of furnishing to the
“mother country the peculiar commodities of the
“colonial regions: to these two purposes of the
“mother country, the general policy respecting
“colonies belonging to the states of Europe, has
“restricted them.
“With respect to other countries, generally speak-
“ing, the colony has no existence. It is possible
I3
“that indirectly, and remotely, such colonies may
“affect the commerce of other countries. The
“manufactures of Germany, may find their way into
“Jamaica or Guadaloupe, and the sugar of Jamaica
“or Guadaloupe, into the interior parts of Germany ;
“but as to any direct communication or advantage
“resulting therefrom, Guadaloupe and Jamaica are
“no more to Germany, than if they were settlements
“in the mountains of the moon. To commercial
“purposes they are not in the same planet. If they
“were annihilated, it would make no chasm in the
“commercial map of Hamburgh. If Guadaloupe
“could be sunk in the sea, by the effect of hostility
“at the beginning of a war, it would be a mighty
“loss to France, as Jamaica would be to England,
“if it could be made the subject of a similar act
“ of violence ; but such events would find their
“way into the chronicles of other countries, as
“events of disinterested curiosity, and nothing more.
“Upon the interruption of a war, what are the
“rights of belligerents and neutrals respectively,
“regarding such places It is an indubitable right
“of the belligerent to possess himself of such
“places, as of any other possession of his enemy.
“This is his common right ; but he has the certain
“means of carrying such a right into effect, if he
“has a decided superiority at sea. Such colonies are
“dependent for their existence, as colonies, on
“foreign supplies; if they cannot be supplied and
“defended, they must fall to the belligerent of
“course ; and if the belligerent chooses to apply
“his means to such an object, what right has a
“third party, perfectly neutral, to step in and pre-
“vent the execution 2 No existing interest of his,
“is affected by it ; he can have no right to apply to
14
“his own use the beneficial consequences of the
“mere act of the belligerent, and to say, “True it
“is you have, by force of arms, forced such places
“out of the exclusive possession of the enemy, but
“I will share the benefits of the conquest, and by
“sharing its benefits, prevent its progress. You
“have in effect, and by lawful means, turned the
“enemy out of the possession which he had ex-
“clusively maintained against the whole world, and
“with which we had never presumed to interfere;
“but we will interpose to prevent his absolute
“surrender, by the means of that very opening,
“which the prevalence of your arms alone has
“effected :-supplies shall be sent, and their products
“shall be exported : you have lawfully destroyed
“his monopoly, but you shall not be permitted to
“possess it yourself; we insist to share the fruits
“of your victories; and your blood and treasure
“have been expended, not for your own interest,
“but for the common benefit of others.”
“Upon these grounds, it cannot be contended to
“be a right of neutrals, to intrude into a commerce
“which had been uniformly shut against them, and
“which is now forced open merely by the pressure
“of war ; for when the enemy, under an entire
“inability to supply his colonies, and to export their
“ products, affects to open them to neutrals, it is
“not his will, but his necessity, that changes the
“system ; that change is the direct and unavoidable
“consequence of the compulsion of war; it is a
“measure not of French councils, but of British
“ force.” +
* Judgment of Sir William Scott, in the case of the Immanuel,
at the Admiralty, Nov. 1799.
I quote from the second volume of the Reports of Dr. Robinson;
15
Such were the principles of a rule, first practically
established by the Supreme Tribunal of Prize during
the war of 1756, only because the case which de-
manded its application then first occurred ; and it
ought to be added, that the decisions of that
tribunal, at the same period, were justly celebrated
throughout Europe for their equity and wisdom.*
a work of transcendent value ; and which will rise in the estima-
tion of Europe and America, in proportion as the rights and duties
of nations are better known and respected. It repays the atten-
tion of the English lawyer, statesman, and scholar, not only by
legal and political information of a highly important kind, and
which is nowhere else to be so fully and correctly obtained ; but
by exhibiting some of the happiest models of a chaste judicial
eloquence.
* See Blackstone's Commentaries, vol. iii. 70 *| ; Montesquieu's
Letters, 5th March, 1753 ; and Vattel’s Law of Nations, Book II,
c. 7, S. 84.
T EDITOR’s NOTE.-The quotation from Blackstone is as follows:
“During the whole of that war (which commenced in 1756) the commission
of appeals was regularly attended and all its decisions conducted by a judge
whose masterly acquaintance with the law of nations was known and
revered by every State in Europe.” -
Sir Thomas Salusbury was appointed Judge of the Admiralty Court
in 1756. -
The quotation from Montesquieu is from a letter written from Paris to
the Abbé Comte de Guasco, at Vienna, on March 5, 1753 [Letter 71,
Paris edition of Montesquieu's complete works, 1826, vol. viii, p. 352]:
“Nous lisons ici la réponse du Roi d’Angleterre au Roi de Prusse, et elle
passe, dans ce pays-ci, pour une réponse sans réplique. Vous qui étes
docteur dans le droit de gens, vous jugerez cette question dans votre
particulier.”
The following is the passage from Vattel referred to : “To undertake
to examine the justice of a definitive sentence is an attack on the jurisdiction
of him who has passed it. The Prince therefore ought not to interfere in the
causes of his subjects in foreign countries, and grant them his protection,
excepting in cases where justice is refused, or palpable and evident in-
justice done, or rules and forms openly violated, or, finally, an odious
distinction made to the prejudice of his subjects, or of foreigners in general.
The British Court established this maxim, with great strength of evidence,
on the occasion of the Prussian vessels seized and declared lawful prizes
during the last war. What is here said has no relation to the merits
of that particular cause, since they must depend on facts.”
These quotations refer to the answer given by England to Frederick the
The ‘‘ Rule of
1756” was not
created but
applied for the
first time by
the Courts in
that year.
16
After France became a party to the American
war, some captures were made, to which the same
rule of law might, perhaps, in strictness, have been
applied : for that power had again opened, in some
degree, the ports of her West India islands to the
ships of neutral powers. In this case, however,
the measure preceded the commencement of her
hostilities with Great Britain ; and it was, therefore,
speciously represented on the part of the neutral
claimants, as a genuine and permanent change in the
commercial system of the enemy, by which they had
a right to profit. There was, in fact, some ground
for believing that the French ministry of that day
had adopted new maxims of colonial policy, which
novelty, and an apparent liberality of principle,
concurred to recommend. The case in other
respects also was much weaker than that of the
war of 1756; for our enemies, during the American
contest, were never so inferior at sea as to be unable
The applica-
tion of the
Rule appears
to have gone
into abeyance
during the
War of
American
Independ-
ence, because
France
relaxed her
colonial
monopoly
before taking
part in the
war in 1778
(see, however,
the note on
p. I7).
France was,
however, suffi-
Great in 1753, on his refusal, by way of reprisal for the seizure of some
Prussian ships, to pay the amount due on the Silesian loan which he had
guaranteed. The King of Prussia’s memorial was referred by George III
to Sir George Lee, Judge of the Prerogative Court, Dr. Paul, Advocate
General, Sir Dudley Ryder, Attorney General, and Mr. Murray (after-
wards Lord Mansfield), Solicitor General. The author’s view as to the
effect produced by their report in Europe seems accurately to reflect public
opinion at the time; for Vattel, who pronounced it “an excellent piece
on the law of nations,” published his work in 1758, and “Blackstone”
appeared in 1768. But, as Sir Frederick Pollock has pointed out [Zaw
Quarterly Aceview, vol. xxxii, p. 120], the expression “réponse sans
réplique” was not, as invariably stated, Montesquieu's own opinion, but
was only used by him as reflecting public opinion. Yet, as he wrote from
Paris, this is not free from difficulty; for Sir Ernest Satow, in a work quoted
below, refers to the French reply—that Government having been asked
for Öons offices in the settlement of the dispute—in which it was stated that
the report of the Law Officers asserts some principles of prize law which
cannot be admitted. The dispute was settled by mutual concession. This
is not the place to discuss the merits of propositions of international law
involved in the dispute, and these facts are only noted for accuracy's sake.
The historical question is fully, and luminously discussed by Sir Ernest
Satow in his valuable monograph, Zhe Silesian Zoan and Frederick the
Great [Clarendon Press, 1915].
17
to protect, in a great measure, their colonial trade
from our hostilities. At some periods, they even
possessed a naval superiority; especially in the
West Indian seas; where, in consequence, some of
our most valuable islands fell into their hands, and
were retained by them till the peace. France, there-
fore, could scarcely be said, in this case, to have
rescued herself by the relaxation of her colonial
system, from actual distress, the effect of a maritime
Walſ.
It was a measure of convenience, no doubt,
otherwise it would not have been adopted : but it
was not an expedient which the pressure of our
hostilities had made absolutely necessary. The dis–
tinction which I have first mentioned, however, was
that which was principally insisted upon, in the
leading cases of this class ; and it was chiefly, if not
exclusively, on that ground that the ships in question
were restored by our Supreme Tribunal of Prize.*
Perhaps the political difficulties of the day, espe-
cially the powerful, though injurious, influence of
the first armed neutrality, may have had some weight
in those decisions. But whatever the motives were,
the rule of the war 1756 was not avowedly de-
parted from ; much less expressly reversed. The
most that can be alleged is, that in a case which,
notwithstanding the distinctions above mentioned,
may be possibly thought to have warranted the
application of that rule, it was not at this time
applied."
* Cases of the Tiger, and the Copenhagen, at the Cockpit, in
1781.
* EDITOR’s NOTE. –A study of the decisions in Hay and Marriott's
Reports seems to show, however, that the relaxation of the “Rule of
I756” was confined to neutral carriers, their ships being almost invariably
C
ciently strong
at sea to resist
our enforce-
ment of the
ule.
First Armed
Neutrality of
Northern
Powers, 178o.
18
France re-
stored her
colonial
monopoly at
the end of the
war, in 1783,
but resorted
again to the
assistance of
neutrals on
the outbreak
of war with
England in
I793.
e.g. by
Martinique
(see p. 27).
Instructions of
I793.
Rise of the
United States:
its effect on
all questions
of neutral
rights pro-
phesied.
The instant resumption of the colonial monopoly
by the government of France as soon as the sword
was sheathed, proved the fallacy of that expectation
on which the indulgence had been claimed ; yet in
the next war, which was our late arduous contest
with that country, the enemy reverted to his former
policy, without limitation or disguise.—Despairing
of being able to dispute with us the dominion of the
sea, the Republic threw wide open to every pacific
flag, all the ports of her colonies; some of which
had been, in fact, partially opened a short time
before the commencement of hostilities, by the local
revolutionary governments ; and the neutral mer-
chants immediately rushed in with avidity, to reap
the offered harvest.
Our government, on notice of the general fact,
adopted with promptitude the course which it
seemed proper to take. On the 6th of November,
I 793, a royal instruction to the commanders of his
Majesty's ships of war and privateers, was issued,
ordering them “to stop and detain for lawful ad-
“judication, all vessels laden with goods the produce
“of any French colony, or carrying provisions or
“other supplies for the use of any such colony.”
A new power had now arisen on the western
shore of the Atlantic, whose position, and maritime
spirit, were calculated to give new and vast import-
ance to every question of neutral rights ; especially
in the American seas. The merchants of the
restored, unless they were captured trading with the rebel colonies in
violation of the Act prohibiting all such trade. The rule against neutral
assistance of the enemy was applied against the cargoes, even in the case of
Dutch vessels carrying cargoes for other neutrals to the enemy, which they
claimed to protect in virtue of the Treaty of 1674. The Court held that
the Treaty only covered Dutch goods; and, moreover, did not take the
Dutch out of the provisions of the Act. This Act, which treated the rebels
as enemies, was itself essentially an application of the ‘‘ Rule of I756.”
19
United States, were the first, and by far the most
enterprising adventurers in the new field that was
opened to neutrals in the Antilles, and the ports
of the French islands were speedily crowded with
their vessels.
Of course, the cargoes they received there, as
well as those they delivered, were all declared by
their papers to be neutral property ; but when,
instead of rum and molasses, the ordinary and
ample exchange in the West India markets for the
provisions and lumber of America, the neutral ship-
owners pretended to have acquired, in barter for
those cheap and bulky commodities, full cargoes
of sugar and coffee ; the blindest credulity could
scarcely give credit to the tale. It was evident that
the flag of the United States was, for the most
part, used to protect the property of the French
planter, not for the American merchant.
The royal instruction, nevertheless, seemed to
operate severely against the new-born neutral power.
Great numbers of ships, under American colours,
were taken in the West Indies, and condemned by
the Vice-Admiralty Courts.
The fraudulent pretences of neutral property in
the cargoes, were in general so gross, being con-
trived by men at that time inexpert in such business,
that a great part of these prizes might have been
condemned on the most satisfactory grounds as
hostile property, had the proper examinations taken
place. But the Vice-Admiralty Courts, which at
that time were very badly constituted, regarded the
illegality of the trade, as an infallible ground of
decision ; and therefore were grossly remiss in
taking and preserving the evidence on the point
of property. In many cases, they proceeded no
Development
of American
trade in the
French West
Indies.
The abuse of
the neutral
flag: it is
used to pro-
tect enemy
property.
The first
condemna-
tions in the
war with
France: in-
completeness
of early Vice-
Admiralty
procedure.
20
further in putting the standing interrogatories to
the persons usually examined, than was necessary
to obtain from them an avowal of the place of
shipment or destination. The captors, influenced
by the same reliance on the rule of law, neglected
to search for concealed papers ; and those docu-
ments which the masters thought fit to produce,
were often given back to them at their request,
without the preservation of a copy, or any minute
of their nature or contents: irregularities, which
proved in the sequel highly injurious to the captors,
and a cover for fraudulent claims.
It is needless to state particularly, the disputes
that ensued between our government and the neutral
powers, or the amicable arrangements by which
they were terminated ; as these facts are sufficiently
known. It is however proper to remark, that
nothing was expressly settled by any convention,
respecting the lawfulness of neutral commerce with
the colonies of a belligerent state ; nor were any
concessions made, whereby this country was in any
degree precluded from asserting the rule of the war
of 1756, at any subsequent period, to its utmost
practical extent."
It was agreed that all the sentences of condem-
nation in controversy should be submitted to the
revision of the appellate jurisdiction; but the in-
Settlement of
disputes with
the United
States by Jay
Treaty, I794.
|But the ‘‘ Rule
of 1756”
remained
unaffected.
Instructions of
I794 relaxed
the Rule in
favour of the
* EDITOR’s NOTE. –The author's view that the Jay Treaty left the
“Rule of 1756” untouched is supported by Mahan, in his Influence of
Sea Power on the French Revolution and Æmpire (chap. xvi). He says:
“The Rule of 1756 was not mentioned in the treaty, and the failure to
do so may be construed as a tacit acquiescence, or at least Submission, on
the part of the United States.” Monroe, then envoy in London, con-
tended that the result of the Joint Commission’s report, awarding com-
pensation for seizures of American ships under the Instructions of 1793,
disposed of the principle of the Rule. But this contention Mahan also
refuses to accept (p. 238).
21
struction complained of was in January, I 794, so
far repealed, that instead of the comprehensive
order therein contained, the direction only was to
seize “such vessels as were laden with goods the
“produce of the French West India Islands, and
“coming directly from any port of the said islands
“to Europe.”
The latter instruction remained in force till
January, 1798, when a new one was substituted,
which remained unrevoked to the end of the war.
By this last Royal Order, a further relaxation of
the rule of law was introduced, in consideration,
as the preamble expressly recited, of the existing
state of our own commerce and that of neutral
countries, and the new direction was to bring in
for lawful adjudication all “vessels laden with the
“produce of any island or settlement of France,
“Spain, or Holland ; and coming directly from any
“ port of the said island or settlement to any port
“in Europe, not being a port of this kingdom, or
“of the country to which the vessel, being neutral,
“should belong.” In other words, European neutrals
might, without being liable to capture under this
last instruction, bring the produce of the hostile
colonies directly from thence, to ports of their own
country; and either these, or the citizens of the
United States, might now carry such produce
directly to England; either of which voyages would
have subjected the ship to seizure under the
Instruction of 1794.
The decisions of the Admiralty Courts, and of
the Lords Commissioners of Appeals, on this
interesting subject, next demand our notice.
Royal Instructions, from the time of their pro-
mulgation, of course, become law to all executive
United States,
allowing
direct trade
with French
West Indian
colonies.
Instructions
of 1798 further
relaxed the
Rule in favour
of European
neutrals, for
their own
commerce.
Instructions of
1798 allowed
neutral vessels
to bring
enemy colon-
ial produce
to England.
22
Legislative
effect of
Instructions;
being modifi-
cations of the
Rule, they
were remis-
sions of belli-
gerent rights.
Restitutions
do not imply
a right in the
neutral to
restoration of
property.
officers acting under his Majesty's commission, so
as absolutely to direct their conduct, in relation,
either to the enemy, or the neutral flag. Their
legislative force in the prize court also, will not be
disputed ; except that if a royal order could be
supposed to militate plainly against the rights of
neutral subjects, as founded on the acknowledged
law of nations, the judge, it may be contended,
ought not to yield obedience; but when the
sovereign only interposes to remit such belligerent
rights, as he might lawfully enforce, there can be
no room for any such questions ; for, “volenti mon
fit injuria,” and the captor can have no rights, but
such as he derives from the sovereign, whose
commission he bears. :
It results from these principles, that whether a
judgment by the prize court, condemning pro-
perty claimed as neutral, but captured pursuant to
a prohibitory royal instruction, does or does not
amount to a positive declaration of the opinion of
that tribunal, on the principle of the prohibition
itself; the restitution of property so claimed, in
pursuance of a permissive instruction, clearly is no
affirmation that by the general principles of the
law of nations, independently of the will of the
Sovereign, the captured property ought to have
been restored.
If this remark be kept in view, it will be found
that the Admiralty Court, and the Lords Commis-
sioners, were so far from impeaching during the late
war, by any of their decisions, the rule of the war
1756, that they, on the contrary, adhered firmly to
the sense of their predecessors, the judges of that
period. They condemned all vessels and cargoes,
taken in voyages that fell within the prohibitory
23
intent of the existing instruction, which was so far
practically pursuant to that rule; nor did they admits s for “ad.
in such decisions expressly to advert to the rule
itself, and to declare that they considered it as
founded on most incontestible principles of the law
of nations." On the other hand, they restored such
neutral property as was captured in the course of a
voyage allowed by the existing instruction; expressly
on the ground of that voluntary relaxation of the
former rule of law, which his Majesty had been
pleased to introduce.
It should here be observed, that these royal orders
were all couched in directory, and in prohibitory
terms ; also, that in none of them is any branch of
the neutral intercourse with the colonies of our
enemies expressly permitted. But when the order
of November, 1793, to seize all vessels bringing
produce from the hostile colonies, was revoked by
that of January, 1794, and, in lieu thereof, a direc-
tion was given to seize such vessels when bound to
Europe, an indulgence to neutral vessels carrying
such cargoes to other parts of the world was plainly
implied ; and in like manner, when the instruction
of 1798 still further narrowed the prohibitory effect
of the direction, confining it to vessels bound to
countries in Europe not their own, with the ex-
ception of Great Britain, the trade to their own
ports, and to ports of this kingdom, was by clear
implication permitted. -
Their lordships, and the judge of the court of
admiralty, also followed these distinctions into fair
analogies, in respect of the outward voyage. This
branch of the trade was left unnoticed in the two
mit” read
‘‘ onit.”
* EDITOR'S NOTE. –See Lord Loughborough's statement in the Wilhel-
mina, in 18OI, referred to in the Note on p. I2O.
Instructions
were expressly
directed
against
enemy's
colonial trade
prohibiting it
to neutrals
in right of
belligerency.
The gradual
relaxations
and indulg-
ences to
neutrals.
Application of
principle of
relaxations to
outward
voyages.
24
Condemna-
tions in
voyages
falling outside
permissions of
Instructions.
Sir W. Scott’s
dictzemz in the
Amzzzazzzze/:
What the
Instructions
did not
permit was
latter instructions; but as that of 1793, which placed
the carrying supplies to a hostile colony on the same
footing with the bringing away its produce, had been
generally revoked, it would have been unreasonable
and inconsistent not to admit that a neutral vessel
might allowably go to the colony, from the same
port to which she was now allowed to carry its pro-
duce. Such outward voyages, therefore, were held
to be within the clear meaning of relaxation.
On the other hand, when neither the letter nor
spirit of the royal instructions could fairly be con-
strued to have permitted the particular branch of
this commerce with the hostile colonies, in respect
of which a question arose, it was always held by
those tribunals to be illegal. Thus, a voyage from
any hostile country, whether in Europe or else-
where, to any hostile colony; or, vice versa; the
voyage of an American from a hostile colony to any
part in Europe, except Great Britain ; the voyage
of a Dane or Swede from any hostile colony to the
United States of America, and their respective con-
verses, have all been held to be contrary to the law
of war, and have induced the condemnation both of
the ships and cargoes.*
In short, the doctrine uniformly held by the lords
commissioners of appeals, as well as by the Court of
Admiralty, was such as the learned judge of that
court has thus comprehensively expressed : “The
“true rule of the court S is the text of the instructions;
“what is not found therein permitted, is understood
“to be prohibited ; upon this plain principle, that the
“colony trade is generally prohibited, and that what-
prohibited.
§ for “of the
court’”
zead ‘‘to this
court.”
* Cases of the New Adventure; the Charlotte, Coffin ; the
Wolant, Bessom ; the Wilhelmina, etc., etc., at the Cockpit, last war.
25
“ever is not specially relaxed, continues in a state of
‘‘ interdiction.” +
The only doctrines in which the supreme tribunal
may possibly be supposed to have departed from
the rule of the war 1756, or any other ground than
that of a voluntary remission of belligerent rights
by the crown, were the restitutions of vessels and
cargoes which had been captured and condemned
prior to the instruction of January, 1794; for by
that order the first legislative relaxation of the general
prohibitory rule was introduced.
Vessels and cargoes of this description certainly
were restored, when the voyages in which they
were taken were found to have been such as that
instruction, if in force at the time, would have
legalised.
There may be good reasons for giving to such
orders in time of war, when they go to enlarge, not
to restrain, the indulgence of neutral trade, a retro-
active effect upon cases still depending in judgment.
Nor is it unjust towards captors; for since they often
derive from sudden changes, during the war, in our
relations with different powers, or from new strict-
ness in the conduct of the war itself, benefits not in
their contemplation at the time of the capture; it
is reasonable that their private interest should, on
the other hand, give way to the public good, when
necessary for purposes of conciliation with neutral
states, and to effectuate such amicable arrangements
with them, as may intervene between the capture
and the judgment. It might be added, that a captor's
rights under the acts of parliament which give him
* Case of the Immanuel at the Admiralty, 2d Robinson’s
Reports, 2 oz.
Retroactive
applications of
reſºlISSIOIlS
of Instructions
of 1794 in
pending cases
were indul-
gences granted
to neutrals.
26
Rights of
capturing
officers
respected.
The indul-
gences to
neutrals
involved a
sacrifice of
belligerent
rights.
the benefit of the prizes he makes, comprehend, by
express law, no more than property taken from the
enemy; consequently it would be the more un-
reasonable to restrain, on the notion of an inchoate
right in him prior to the definitive sentence, the
power of the state itself to decide, how far the rules
of the law of war shall be relaxed in favour of
neutral property, which may be liable to seizure.
It is enough that he is indemnified ; and in the
present case, all captors, whose disappointment
would have been attended with actual loss, had
reason to be satisfied with the national liberality
and justice.
But in truth, the lords commissioners found also
some equitable reasons, on behalf of the neutral
claimants, for giving to such of them as had traded
with the French islands, prior to January 1794, the
benefit of that instruction.
I presume not to develop the motives of his
Majesty's government, for granting such large and
truly costly indulgences as were ultimately accorded
to neutral commerce during the last war, at the
expense of our belligerent interests. They were,
perhaps, proportionate in their weight to the magni-
tude of the sacrifice. But the indulgent instruction
of 1794 was probably founded in part on a con-
sideration which avowedly weighed much with the
lords commissioners, for giving it a retrospective
effect. It was found that before France had actually
engaged in hostilities with any maritime power, the
Some French
colonies had
of their own
accord thrown
open their
revolutionary assemblies and governors of her West
India islands had opened some of their ports, to a con-
siderable extent, to foreign vessels bringing necessary
supplies ; and consequently that the principle of the
rule of the war, 1756, did not apply to the whole
27
extent of the existing neutral commerce with those
colonies.*
* As this is an important fact, of which authentic evidence is
not easily to be found in Europe, I subjoin a proclamation of the
French governor Behague, and the colonial assembly of Martin-
ique, by which certain ports of that island were opened. It is
extracted from the evidence in a prize appeal, that of the Peter
Augustus, – Robson, Master, before the lords commissioners,
Dec. 16, 1801.
<< PROCLAMATION.
“John Peter Anthony de Behague, lieutenant-general in the
“King's armies, governor-general of the Windward Islands,
“commanding in chief the forces by land and sea.
“Examined by us the resolution of the colonial assembly of the
“ 14th of this month, the purport whereof follows:
“Extracts of the verbal process * of the resolution of the colonial
“assembly in their sitting of the fourth day of December, 1792.
“The colonial assembly of Martinique, after hearing the
“reports of its committee, and taking into consideration what had
“been done in Guadaloupe, upon opening the ports, resolved :
“Ist. That the ports and roads of Saint Pierre, Fort Royal,
“ and Marin, shall be open to all strangers without exception, for
“the introduction of all sustenances, and other necessary articles, as
“well for the cultivation of lands, as the erection of buildings, and
“they are permitted to export produce of every kind, which may
“be given them in return.
“2d. That without altering old customs in the regard to the
“duties on importation, those payable on exportation, as well by
“foreigners as Frenchmen, as also by those shipping either to a
“foreign country, or the French ports, shall, from the date of the
“publication of these presents, consist in one sole duty of three per
“cent.; which duty shall be borne by the shippers, independent of
“the additional duty of 27 livres per hogshead of sugar, and two
“and a quarter per cent. on all other island produce, which shall
“ be received as before, and which are at the charge of the seller.
“Taffia, rum, and molasses, shall continue to be liable only to the
“former established, duties.
“3d. That the duties above alluded to shall be paid, according
“to the usages and forms already fixed. That all the above regula-
“tions shall continue in full force until express orders to the con-
ports to
neutrals before
the war broke
out in 1793.
* i. e. procès-
zerbal.
28
This innovation was apparently unknown to, or
overlooked by, our government, when the instruc-
tion of November, 1793 was framed ; otherwise an
exception would probably have been made in favour
of such neutral vessels as were found trading within
the limitations of the new laws, promulged before
the war.
It must indeed be owned, that this relaxation of
the national monopoly wac a mere temporary expe-
dient, the result of distress, occasioned by revolution
and civil war in the parent state, and the consequent
neglect of her transmarine interests in general ; that
the legislative authority from which it flowed was
highly questionable ; * and that it was not even pre-
Opening of
colonial ports
a temporary
expedient
compelled by
the state of
affairs in
France.
“trary. In order that the present resolution, with the approbation
“ of the governor, may be carried into effect without delay, Iooo
“copies shall be forthwith printed, affixed, published, and sent to
“the neighbouring islands, wherever it may be necessary.
(Signed)
“GILLIET CHARLEY, Vice President.
“GALLE S. AURIN, President.
“RICORDY, Secretary.
“DEs LoNDEs, Joint Secretary.”
“By virtue of the powers with which we are invested, we
“approve, and do approve of the above decree being carried into
“execution, according to the form and effect thereof; and in con-
“sequence and by virtue of the same powers, order, and do order,
“to the administration, bodies, and functionaries, that these presents
“be transcribed in our registry, read, published, and executed in the
“respective districts. Given at Fort Royal, Martinique, under our
“seal, and the countersign of our secretary, the 15th day of
“December, 1792.
(Signed) “BEHAGUE.
“By order of the General,
(Signed) “PERRIQUET.”
* It appeared in the evidence in the same cause from which the
above proclamation is extracted, that the royalist and republican
29
tended by the authors to be founded on any
intention of permanently altering the established
commercial relations between the mother country
and her colonies. Nor would it have been unnatural
to surmise, that this innovation was adopted in
contemplation of that war with the maritime powers,
which France was determined to provoke, and which
so soon after took place. If so, it was a mere
stratagem to elude our belligerent rights ; and we
were no more bound to admit any claims of neutral
privilege which might be deduced from it, than if
the innovation had been made after the war had
actually commenced. The claimants, however,
contended that it was not to be considered as a
temporising measure, but as a change of system to
which France would permanently adhere ; and the
revolutionary spirit of the day gave some plausibility
to the suggestion, though the conduct of the French
government, subsequent to the treaty of Amiens,
has proved it to have been fallacious.
But, however disputable the duty might be on our
part to tolerate this new trade during the late war,
on the ground of any change that had previously
taken place in the West Indies, it is clear that the
neutral merchants who had engaged in it prior to
any notice of our hostilities with France, were
parties, who alternately prevailed in the French Windward
Islands in that season of distraction which immediately preceded
the late war, successively opened and shut the ports in opposition
to each other, during their brief periods of authority ; and it is
remarkable, that the party of the royalists and planters, under
General Behague, was that which introduced and supported this
innovation.—Their opponents abstained from it on motives of
respect to the authority of the National Convention, notwith-
standing the distress of the islands at the time.
It is doubtful
if this aban-
donment of
the monopoly
was genuinely
intended to be
permanent.
Recognition
of right of
neutral to
finish voyages
begun before
Instructions
issued.
30
It must be
admitted that
the ‘‘ Rule
of 1756” is
not to be
enforced with-
out express
authority.
This justifies
restitutions.
American
vessels con-
demned in
intitled to finish their voyages without molestation :
nor was this ever disputed ; unless when their ships
were detained on suspicion of having French pro-
perty on board. Had the fact of the new colonial
regulations been known to our government, some-
thing more might perhaps have been expected.
Some notice ought, perhaps, to have been given,
that this country would not acquiesce in the further
prosecution of a trade so opposite to her belligerent
rights ; and this the rather, because we had already
forborne to assert them in a case somewhat similar,
in the last preceding war.—No such notice was
given prior to the instruction of November, 1793:
and therefore the neutral merchants might naturally
enough conclude, that the toleration of this commerce,
which they had experienced at the commencement of
the war, would be extended to their future voyages.
That these considerations were admitted by his
Majesty's ministers, in the discussions that ensued
between them and the neutral powers, may be
reasonably conjectured : but certain it is that the
lords commissioners of appeals adverted to them
as one motive of the great indulgence shewn by
their lordships to the class of claimants whose cases
we are now reviewing ; and consequently, if the
right to give a retroactive effect to the instruction
of January, 1794, can reasonably be questioned, we
have here another ground, on which these restitu-
tions may well be reconciled with the rule of the
war I 756.
So far were the decisions of their lordships, even
in these early and favourable cases, from impeaching
the principle of that important rule, that by some
of them it was practically affirmed. Such American
vessels captured in the summer of 1793, as were
31
laden with French colonial produce, and bound to 1793 expressly
the ports of France, or to Europe, were condemned i."
expressly on that rule of law.*
Having stated thus generally the conduct both
of the executive government and of the prize
tribunals of Great Britain, in regard to this great
principle of the law of nations, during the last
war, I have to add, that on the recommencement
of hostilities with France in 1803, the same system
was with little variation pursued.
An instruction, dated the 24th of June in that
year, directed the commanders of his Majesty's
ships of war and privateers “not to seize any Instructions
“neutral vessels which should be found carrying on ; !.
“trade directly, between the colonies of the enemy, newal of war
“and the neutral country to which the vessel be ***
“longed, and laden with property of the inhabitants
“of such neutral country; provided that such neutral
“vessel should not be supplying, nor should have
“on the outward voyage supplied, the enemy, with
“any articles contraband of war, and should not be
“trading with any blockaded ports.” i
This proviso had been rendered too necessary º: of
by the misconduct of neutrals in the former war, ...?'."
to be now omitted, and forms the only substantial ºl. is
difference between the existing instruction, and that fº p. 45.
of January, 1798; except that the ports of this
kingdom are no longer permitted places of destin-
ation, from the hostile colonies ; and that the
cargo, as well as the ship, is now required to belong
to subjects of the same neutral country to, or from
which, the voyage is made.
* Cases of the Charlotte, Coffin ; the Wolant, Bessom ; and
Betty, Kinsman, 19th Dec. 1801.
32
Our general
adherence to
the ‘‘ Rule
of 1756.”
The indul-
gences to
neutrals:
they are
allowed to
trade with
enemy
colonies
direct.
Neutrals claim
to trade in
enemy colonial
produce for
their own
consumption.
Complaints
of United
States on this
subject, led
to concession
of I794.
The general result of this historical statement is,
that we have receded very far in practice from the
application of the rule of the war 1756, in some
points, while we have adhered to it in others;
but that the principle of that important rule in
point of right, has never been at any time, either
theoretically, or practically abandoned.
Let us next enquire what use has been made by
neutral merchants of the indulgences which the
British government has thus liberally granted.—We
have suffered neutrals to trade with the colonies of
our enemy, directly to and from the ports of their
own respective countries, but not directly to or from
any other part of the world, England, during the
last war, excepted. Have they been content to
observe the restriction ? .
One pretext of the neutral powers, for claiming a
right to trade with the hostile colonies, was the
desire of supplying themselves with sugar and other
articles of West India produce, for their own con-
sumption ; and it was speciously represented as a
particular hardship in the case of America, that,
though a near neighbour to the West Indies, she
should be precluded from buying those commodities
in the colonial markets of our enemies, while shut
out by law from our own.
The argument was more plausible than sound ;
for in time of peace, this new power was subject to
the same general exclusion ; as were also the other
neutral nations.—Besides, Denmark has colonies,
which more than supplies her own moderate con-
sumption ; and as to that of Sweden, and of the
United States, it was exceedingly small. The only
products of the West Indies, that the latter usually
imported, a little refined sugar and coffee which
33
came to them from Europe excepted, were rum
and molasses; and with these we were willing still
copiously to supply them from our own islands ;
nor would the importing of such articles as these
from the hostile colonies perhaps, have been thought
worth a serious dispute. It is well known that the
frugal citizens of America, make molasses for the
most part their substitute for sugar ; and have
learned from habit to prefer it to that more costly
article. -
However, this pretext was completely removed,
when the British government gave way so far to it,
and the other arguments of the neutral powers, as
to allow them to carry on the trade in question, to
their own ports. The instruction of 1794, indeed,
seemed not to concede so much to the neutral states
of Europe; but when it is recollected, that Denmark
and Sweden each possessed islands, in the West
Indies, which might be made entrepôts between their
European dominions and the French colonies, it
will be seen that they were put nearly on an equal
footing with the United States of America.
Had the neutral powers been influenced by justice
and moderation, these concessions would not only
have been satisfactory, but might have been guarded
by reciprocal concessions against any pernicious
abuse ; as was attempted in the 12th article of our
treaty with America, soon after negotiated and
signed by Mr. Jay.
The chief danger of our so far receding from the
full extent of our belligerent rights, as to allow
the neutral states to import directly the produce of
the hostile colonies, was that it might be re-exported,
and sent either to the mother country in Europe, or
to neighbouring neutral ports, from which the produce
D - -
Neutral re-
quirements
could have
been supplied
by our own
colonies.
The extent
of the special
concession to
the United
States.
Danger of the
concession lay
in possibility
of re-exporta-
tion, the goods
ultimately
reaching
enemy mother-
country:
34
hence re-
exportation
forbidden by
Jay Treaty,
art. I2, which,
however, was
not ratified
by Senate.
Re-export to
European
market was
essential to
American
merchant’s
profit, and lay
at the root of
the demand;
itself, or its proceeds, might be easily remitted to
the hostile country ; in which case our enemies
would scarcely feel any serious ill-effect from the
war in regard to their colonial trade. It was wisely,
therefore, stipulated in the American treaty that
West India produce should not be re-exported
during the war from that country ; and the better
to reconcile the United States to that restriction,
they were admitted by the same article to an exten-
sive trade, during the same period, and for two years
longer, with the British West India islands.
Had not this equitable and liberal agreement
proved abortive, arrangements of a like tendency
would no doubt have been negotiated with the
neutral powers of Europe; but unfortunately, the
clamorous voice of the French agents, and of a few
self-interested men, in America, prevailed so much
over the suggestions of justice, and the true per-
manent interests of both countries, that in the ratifica-
tion of the treaty by the government of the United
States, the 12th article was excepted.
In truth, those injurious consequences which
formed a reasonable subject of apprehension to this
country, were essential to the selfish views of the
neutral merchants who had engaged in the new
trade with the French colonies. -
To the Americans especially, whether dealing on
their own account, or as secret agents of the enemy,
the profit would have been comparatively small,
and the business itself inconsiderable, had they not
been allowed to send forward to Europe, at least
in a circuitous way, the produce they brought from
the islands. The obligation of first importing into
their own country, was an inconvenience which their
geographical position made of little moment; but
35
the European, and not the American market, was
that in which alone the ultimate profit could be
reaped, or the neutralizing commission secured.
In the partial ratification of the treaty by
America, our government acquiesced. No conven-
tional arrangements consequently remained with
that neutral power, and none were made with any
other, for palliating the evils likely to arise from the
relaxing instruction; but they were left to operate,
and progressively to increase, to that pernicious and
dangerous extent which shall be presently noticed.
War, in suspending the direct communication
between the hostile colonies and their parent states,
cannot dissolve those ties of property, of private
connection, of taste, opinion, and habit, which bind
them to each other. The colonial still prefers those
manufactures of his native country with which he
has been usually supplied ; and still wishes to lodge
in her banks, or with her merchants, the disposable
value of his produce. That the colonial proprietors
resident in Europe must desire to have their
revenues remitted thither, as formerly, is still more
obvious ; and indeed such an adherence to the old
course of things, is both with them and their absent
brethren, in general rather a matter of necessity
than choice ; for mortgagees, and other creditors,
in the mother country, are commonly entitled to
receive a large part of the annual returns of a West
India plantation.
The consequence is, that into whatever new
channels the commerce of the belligerent colonies
may artificially be pushed by the war, it must always
have a most powerful tendency to find its way from
its former fountains to its former reservoirs. The
colonial proprietor, if obliged to ship his goods in
and the
danger to
ourselves
increased.
Nature of
colonial trade.
Remittances
of goods
and money
between
colonists and
mother-
countries
essential.
36
If remittances
not possible
direct, then
it would be
through
neutral ports:
either by
pretended
voyages to
such ports,
or by direct
voyage
followed by
re-export.
Dutch
adopted
pretended
destination to
neutral port.
Spanish and
French relied
on re-exporta-
tion.
neutral bottoms, will still send them directly to his
home in Europe, if he can ; and if not, will make
some neutral port a mere warehouse, or at most a
market, from which the proceeds of the shipment,
if not the goods themselves, may be remitted to
himself, or his agents in the parent state.
Such has been the event in the case before us.
But let us see more particularly how the grand objects
of the enemy planter and merchant, have been, in
this respect, accomplished.
When enabled by the royal instructions, to trade
safely to and from neutral ports, they found various
indirect means opened to them for the attainment of
those ultimate ends, of which the best, and most
generally adopted, were the two following:—They
might either clear out for a neutral port, and, under
cover of that pretended destination, make a direct
voyage from the colony to the parent state ; or they
might really proceed to some neutral country, and
from thence re-export the cargo, in the same or
a different bottom, to whatever European market,
whether neutral or hostile, they preferred.
The first of these was the shortest, and most con-
venient method ; the other the most secure.—The
former, was chiefly adopted by the Dutch, on their
homeward voyages ; because a pretended destination
for Prussian, Swedish, or Danish ports in the North
Sea, or the Baltic, was a plausible mask, even in the
closest approximation the ship might make to the
Dutch coast, and to the moment of her slipping into
port: but the latter method, was commonly preferred
by the Spaniards and French, in bringing home their
colonial produce ; because no neutral destination
could be pretended, that would credibly consist with
the geographical position and course of a ship coming
37
directly from the West Indies, if met with near the
end of her voyage, in the latitude of their principal
ports.
The American flag, in particular, was a cover that
could scarcely ever be adapted to the former method
of eluding our hostilities; while it was found
peculiarly convenient in the other. Such is the
position of the United States, and such the effect of
the trade winds, that European vessels, homeward-
bound from the West Indies, can touch at their ports
with very little inconvenience or delay; and the
same is the case, though in a less degree, in regard
to vessels coming from the remotest parts of South
America or the East Indies. The passage from the
Gulph of Mexico, especially, runs so close along
the North American shore, that ships bound from the
Havannah, from Vera Cruz, and other great Spanish
ports bordering on that Gulph, to Europe, can
touch at certain ports in the United States with
scarcely any deviation. On an outward voyage to
the East and West Indies, indeed, the proper course
is more to the southward, than will well consist with
touching in North America ; yet the deviation for
that purpose is not a very formidable inconvenience.
Prior to the independency of that country, it was not
unusual for our own outward-bound West Indiamen
to call there, for the purpose of filling up their vacant
room with lumber or provisions.
But this new neutral country, though so happily
placed as an entrepôt, is obviously no place for a
fictitious destination, on any voyage between the
colonies and Europe ; because, as it lies midway
between them, the pretext would be worn out long
before its end was accomplished.
From these causes it has naturally happened, that
American flag
not adapted
to pretended
voyages, but
suitable for
re-export
trade, owing
to geograph-
ical position
of the United
States; and
this was
assisted by
wind and
weather.
The courses
of the sailing
ships suggest
circuitous
voyages.
38
Inception of
the practice
of circuitous
voyages
by way of
American
ports.
Pretended
destination to
British ports
resulted from
Instructions of
1798, which
allowed direct
trade from
enemy colo-
nies to British
as well as
neutral Euro-
pean ports.
the protection given by the American flag to the
intercourse between our European enemies and their
colonies, since the instruction of January, 1794, has
chiefly been in the way of a double voyage, in which
America has been the half-way house, or central
point of communication. The fabrics and commo-
dities of France, Spain, and Holland, have been
brought under American colours to ports in the
United States ; and from thence re-exported, under
the same flag, for the supply of the hostile colonies.
Again, the produce of those colonies has been brought,
in a like manner, to the American ports, and from
thence re-shipped to Europe.
The royal instruction of 1798, however, opened
to the enemy a new method of eluding capture
under the American flag, and enabled it to perform
that service for him in a more compendious manner.
The ports of this kingdom, were now made legitimate
places of destination, to neutrals coming with cargoes
of produce directly from the hostile colonies.
Since it was found necessary or prudent, to allow
European neutrals to carry on this trade directly to
their own countries, it was perhaps, deemed a pallia-
tion of the evils likely to follow, and even some
compensation for them in the way of commercial
advantage, to obtain for ourselves a share of those
rich imports, which were now likely to be poured
more abundantly than ever, through our own very
costly courtesy, into the neutral ports of Europe.
We had submitted to a most dangerous mutilation
of our belligerent rights, to gratify the rapacity of
other nations ; and we felt, perhaps, like a poor sea-
man, mentioned by Goldsmith, who, in a famine at
sea, being obliged to spare a certain part of his body
to feed his hungry companions, reasonably claimed
39
a right to have the first steak for himself. Or, per-
haps, the motive was a desire more effectually to
conciliate America. If so, we were most ungratefully
requited ; but in the other case, the error flowed
from a very copious source of our national evils,
though one too plausible and popular to be inci-
dentally developed in a work like this : I mean a
morbid excess of sensibility to immediate commercial
profit. The Dutch who during a siege sold gun-
powder to their enemies, were not the only people
who have sometimes preferred their trade to their
political safety.
The use immediately made by the American
merchants of this new licence, was to make a pre-
tended destination to British ports, that convenient
cover for a voyage from the hostile colonies to
Europe, which their flag could not otherwise give ;
and thus to rival the neutrals of the old world,
in this method of protecting the West-India trade
of our enemies, while they nearly engrossed the
other. y
They often indeed really did call at some port in
the channel: but it was in general, only to facilitate,
through a communication with their agents here,
and by correspondence with their principals in the
hostile countries, the true ultimate purpose of the
voyage. They might even sell in our markets, when
the prices made it clearly the interest of their French
or Spanish employers to do so; but whether Havre,
Amsterdam, Hamburgh, or London, might be the
more inviting market, the effect of touching in
England was commonly only that of enabling them
to determine, in what way the indulgence of this
country might be used with the greatest profit to
Olli Cheſſ) 16:S.
British
merchants
assisted in
re-export to
the Continent,
40
This practice
destroyed by
Instructions
This last extension of our ruinous liberality has
not, in the present war, been renewed (A). The
of sº, which method of the double voyage, therefore, which was
eliminated
British ports
from the per-
mitted trade.
Inception
of doctrine of
“continuous
voyage,” and
“common-
stock ’’
principle.
always the most prevalent, is now the only mode, of
American neutralization in the colonial trade.
It may be thought, perhaps, that this allowed
method of eluding our hostilities might have con-
tented the French and Spaniards, and their neutraliz-
ing agents, as a deliverance from all the perils of
capture, sufficiently cheap and safe, to satisfy the
enemies of this great maritime country, when they
durst not show a pendant on the ocean. To
neutrals, trading on their own account, also, this
qualified admission into the rich commerce of both
the Indies, may seem to have been a boon advan-
tageous enough ; when considered as a gratuitous
gain derived from the misfortunes of other nations.
But moderation, is the companion of justice, and
belongs not to the selfish spirit of encroachment;
nor is successful usurpation ever satisfied, while
there remains with the injured party one unviolated,
or unabdicated right. .
America, we have seen, like other neutral powers,
was permitted to carry the produce of the hostile
colonies to her own ports, and from thence might
export it to Europe; nay, even to France and Spain.
She was also at liberty to import the manufactures
of those countries, and might afterwards export the
same goods to their colonies ; but the word directly,
in the royal instruction, as well as the spirit of these
relaxations, in general, plainly required, that there
should be a boma fide shipment from, or delivery in,
the neutral country—in other words, that the voyage
should actually, and not colourably, originate, or
(A) See Appendix.
41
terminate, in such a way as the subsisting rule
allowed.
The American merchants, however, very early
began, in their intercourse with the Spaniards, to
elude the spirit of the restriction, by calling at their
own ports, merely in order to obtain new clearances;
and then proceeding to Spain, with produce which
they had shipped in her colonies; or to the latter,
with supplies, which were taken on board in Spain.
It seems scarcely necessary to show, that, by this
practice, the licence accorded by the British govern-
ment was grossly abused. What was the principle
of the relaxation ?—an indulgence expressly to the
commerce of neutral countries. What was the
object of this restriction ?–To prevent, as much as
consisted with that indulgence, the intercourse
between the European enemy and his colonies, in
neutral ships. But the mere touching, or stopping,
of a ship at any country, does not make her voyage
a branch of the trade of that country. Our East
India trade, is not the trade of St. Helena. Neither
was it any restraint on the intercourse between the
enemy and his colonies, such as could gravely be
Abuse of the
privileges we
had granted to
the neutrals.
The in-
dulgence to
neutral trade
developed by
the neutrals
into enemy
trade.
supposed to be meant by the restriction, to oblige
him merely to drop anchor, at some neutral port in
his way.
According to some recent doctrines, indeed,
which that great champion of neutral rights, the
murderer of the Duc D'Enghein, inculcates, trade
in a neutral vessel, be the voyage what it may, is
neutral trade; but America does not, in the present
case at least, assert that preposterous rule ; for she
tacitly professes to acquiesce in the restriction in
question, when, in point of form, she complies with
it ; and the neutrality of the trade, in the sense of
The neutral
doctrine that
all neutral
trade is free.
42
The abuse of
the neutral
flag. Trade
between
enemies and
their colonies
secured by
artifice.
Examination
of frauds
involved in
“circuitous
voyages.”
Evidence of
first part of
voyage de-
stroyed before
second part
commenced.
the royal instruction, is plainly a local idea : it is
the commerce, not of the ship, but of the country,
to which indulgence was meant to be given. The
only question, therefore, is, whether the trade be-
tween France or Spain and their colonies, becomes
the trade of America, merely because the ships which
conduct it, call at one of her ports on their way.
By the merchants of the United States, the line
of neutral duty in this case was evidently not mis-
conceived ; for the departures from it were care-
fully concealed, by artful and fraudulent contrivance.
When a ship arrived at one of their ports to
neutralize a voyage that fell within the restriction,
e.g. from a Spanish colony to Spain, all her papers
were immediately sent on shore, or destroyed. Not
one document was left, which could disclose the
fact that her cargo had been taken in at a colonial
port: and new bills of lading, invoices, clearances,
and passports were put on board, all importing
that it had been shipped in America. Nor were
official certificates, or oaths wanting, to support
the fallacious pretence. The fraudulent precaution
of the agents often went so far, as to discharge
all the officers and crew, and sometimes even the
master, and to ship an entire new company in
their stead, who, being ignorant of the former
branch of the voyage, could, in case of examination
or capture, support the new papers by their declara-
tions and oaths, as far as their knowledge extended,
with a safe conscience. Thus, the ship and cargo
were sent to sea again, perhaps within eight and
forty hours from the time of her arrival, in a con-
dition to defy the scrutiny of any British cruiser,
by which she should be stopped and examined in
the course of her passage to Europe.
43
By stratagems like these, the commerce between
our enemies and their colonies was carried on even
more securely, than if neutrals had been permitted
to conduct it in the most open manner, in a direct
and single voyage.
In that case, both the terms of the voyage being
hostile, and the papers put on board at the port
of shipment, being derived from an enemy, or from
agents in the hostile country, the suspicion of a
visiting officer would naturally be broad awake :
and a strict examination, even though the vessel
should be brought into port for the purpose, would,
generally speaking, be justifiable and safe. The
alleged right of property in a neutral claimant of
the cargo, might also, in such a case be examined
up to its acquisition in the hostile country, by the
light of the evidence found on board. Whereas,
in the latter branch of the voyage that has been
described, all ordinary means of detecting the
property of an enemy, under its neutral garb, are
as effectually withdrawn, as if the transaction had
really begun in a neutral port.
The illegal plan of the voyage itself is very
easily concealed during its anterior branch, since
the papers then point only to the neutral country,
as the ultimate place of destination ; and there is
not the least necessity for hazarding a disclosure to
the master, much less to the crew, that the real
intention is different.
With such facilities, it is not strange that this
fraudulent practice should have prevailed to a great
extent, before it met the attention of our prize
tribunals. In fact, though often since incidentally
discovered in the course of legal proceedings, it
can scarcely ever be detected in the first instance
Evidences of
innocence of
Second part of
voyage com-
plete, making
Seizure at sea
impossible.
44
Case of the
Mercury,
caught in both
parts of her
voyage by
the same
privateer,
by a captor at sea, so as to be a ground of seizure,
unless by an accident such as once brought it to
judicial notice. - .
A ship, with a valuable cargo of sugars from the
Havannah, on her passage to Charlestown, the port
to which she belonged, was stopped and examined
by a British privateer. As the papers were per-
fectly clear, and concurred with the master's declara-
tion, in shewing that the cargo was going on
account of the American owners to Charlestown,
where the voyage was to end, the ship was immedi-
ately released.
After a stay of a few days at that port, she
sailed again with the same identical cargo, bound
apparently to Hamburgh, perhaps, in fact, to Spain ;
but with an entire new set of papers from the
owners and the Custom House, all importing that
the cargo, not one package of which had been in
fact landed since she left the Havannah, had been
taken on board at Charlestown. The fact also was
solemnly attested on oath.
Soon after the commencement of this second
part of her voyage, she was again brought to by
a British cruizer ; and her papers, aided by the
master's asseverations, would doubtless have in-
duced a second dismissal, but for one awkward
coincidence. It happened that the visiting cruizer,
was the very same privateer by which she had
been boarded on her voyage from the Havannah ;
and whose commander was able to recognize and
identify both her and her cargo, as those he had
lately examined.
This case came by appeal before the lords com-
missioners ; who finding the above facts clear and
undisputed, thought them a sufficient ground for
45
condemning the property. They held that the
touching at a neutral port, merely for the purpose
of colourably commencing a new voyage, and there-
by eluding the restrictive rule of law, in a branch
of it not relaxed by the royal instructions, could
not legalize the transaction ; but that it ought
nevertheless to be considered as a direct and con-
tinuous voyage from the hostile colony to Europe,
and consequently illegal.*
In this case, the detection being full and con-
clusive, it would have been in vain for the claimants
to contend that there had been an actual importation
into America, with an intention to land and sell
the cargo. But other cases occurred, wherein the
evidence taken in the prize court, brought to light
less circumstantially the fact, that the captured
cargoes, though ostensibly shipped in America, had
been previously brought in the same bottoms, and
on account of the same persons, from Spain, or a
Spanish colony ; and in these cases an explanation
was offered by the American claimants, to which the
court of admiralty and the lords commissioners, in
their great indulgence, thought proper to listen.
It was alleged, that the importations into America
were genuine, and were made with a view to the
sale of the cargoes in that country; but that in
consequence of a fall of price in the markets, the
importers found themselves unable to sell without
loss ; and therefore were obliged, contrary to their
original design, to re-export the cargoes, and send
them to Europe or the West Indies, according to
the now acknowledged destination. -
An excuse like this, had it been offered even
* Case of the Mercury, Roberts, at the Cockpit, July 28, 1800,
and Jan. I 3, 1802.
enables the
Court to
establish
doctrine of
‘‘continuous
voyage.”
(The Mercury
is referred to
in judgment
in the
William,
5 C. R. 385.)
Plausible
excuse of loss
of market
accepted at
first but ulti-
mately led to
establishment
of ‘‘ common
stock ’’
principle.
46
Suppression
of first part
of voyage
renders excuse
Suspicious;
yet indulgence
of the Court
granted time
for “further
proof”;
in the first instance, with a gratuitous disclosure
of the anterior branch of the transaction, might
reasonably have been received with diffidence;
especially when it was considered, that the goods
composing these cargoes, were of a kind not gener-
ally consumed in America, and such as could be
in common demand there only for the purpose
of re-exportation to that very country, to which
they were now actually proceeding. Such is no-
toriously the case, in respect of the sugars of the
Havannah, and also in respect of the plantation
stores, and supplies usually sent to the foreign
West Indies from Europe, of which these cargoes
were chiefly composed ; and it was evidently very
unnatural, that a merchant, found in actual con-
nection both with the hostile colonies, and with the
hostile or prohibited port in Europe, as an importer
from the one, and an exporter to the other, should
have been driven unintentionally, and by necessity
alone, into that very convenient and profitable course
of trade, which he was found actually pursuing.
But when the studied suppression of the former
branch of the transaction is taken into the account ;
and when it is considered that this excuse was
commonly brought forward in the last instance,
to avert the penal consequences of a discovery
accidentally made in the prize court; the pretence
must be admitted to have been in the highest
degree suspicious, if not absolutely unworthy of
credit.
Yet such has been the extreme lenity of those
tribunals, of whose severity the enemy and his
neutralizing agents have the effrontery to complain,
that these excuses were not rejected as incredible;
and the claimants were indulged, when necessary,
47
with time to establish them in point of fact, by
further proofs from America.
When an actual attempt to sell the cargo in the
neutral port, has been in such cases alleged, and in
any degree verified, that fact has been held sufficient
to support the general excuse. A cargo of Spanish
manufactures shipped at Bilboa, and taken when
proceeding from America to the Havannah, on
account of the same shippers, was restored on
evidence of an attempt to sell, having been made by
the claimant, on the ship's arrival at Philadelphia;
though the cargo chiefly consisted of nails for sugar
boxes, an article consumed only in the Spanish West
Indies.*
Certain other general criteria of a boma fide im–
portation into the neutral country, have been in
these cases admitted and required.
Those who are conversant with the business
of the prize court, well know, that the affidavits
in further proof, are never wanting to support every
case that a claimant may be allowed to set up." It
* Case of the Eagle, Weeks, at the Cockpit, May 15th,
I 8oz.
T EDITOR’s NoTE.—The practice of the Prize Court in the earlier wars
was, as explained in the Preface to Hay and Marriott’s Reports, “to pro-
nounce almost universally for just cause of seizure and expences, and for
further pleading and proof on the part of the claimant.” But, as the author
points out, a new practice had been introduced of decreeing for “further
proof,” and the finding of “just cause of seizure '’ was not given till after
this had been given. This let in the practice, to which the author has
already alluded (p. 42), of preparing affidavits to meet the case, which seem
in a great number of cases to have been fraudulent. The number of cases
in which expenses were given against the captors must have had a very
detrimental effect on their activities at sea, especially when the neutral flag
was flying.
Mahan bears similar testimony to the preparation of false evidence.
“In the year 1806 it was asserted that there were upwards of 3000
Sail belonging to merchants of Holland, France, and Spain, navigating
under the Prussian flag ; and the practice, doubtless, was not confined
to Prussia. . . . The fact becoming known, British cruisers, when meeting
and any evi-
dence of bozza
fides admitted.
Case of
the Eagle
(referred to in
judgment in
the William).
Perjury
rampant in
the Court :
affidavits of
** further
proof” always
forthcoming.
48
Criteria of
bond fides at
first admitted.
Case of the
Polly—
2 C. R., 361
(referred to
in judgment in
the William).
may be even asserted with truth, that property
taken under neutral colours is scarcely ever con-
demned, but by a sentence which in effect impeaches
the neutral merchants and their agents, of wilful
and elaborate perjury. Nor is the shocking fact
surprising, if it be considered that every man who
undertakes, for a commission, to cover the enemy's
property under neutral papers, engages beforehand
to furnish all the perjury that may be necessary to
support his claim in case of capture, as an essential
part of the contract. Courts of prize, therefore,
wisely lay much stress on such probable presump-
tions as may arise from undisputed facts; especially
such facts as are collateral to the main transaction,
of a public nature, and not likely to have been
contrived for the purpose of imposition.
Accordingly, in the class of cases we are consider-
ing, it was held of great importance to shew that the
cargo had been landed in the neutral port, that
the duties on importation had been paid, and that the
first insurance had been made for a voyage to ter-
minate in the neutral country. In a case of this
description, which came before Sir William Scott
early in 1800, he laid great stress on these circum-
stances, especially the two former ; regarding them
as the best general indications of the original inten-
tion on which, in the absence of any evidence of an
opposite tendency, he could found his judgment ;
and, on proof being exhibited that the goods in
question had been landed, and the duties for them
a valuable ship with Prussian papers, were apt to take the chance of
her being condemned and send her in ; but even in British ports and
Admiralty courts the neutralizing agent was prepared to cover his trans-
action. The captain and crew of the detained vessel were all carefully
instructed and prepared to swear to the falsehoods which were attested
by equally false papers sworn to before Prussian judges.”
49
paid in America he restored the property.* The
lords commissioners, in subsequent cases before
them, were of the same opinion ; and therefore it
became tacitly a general rule, that when the excuse
in question was set up by a claimant, he must sup-
port it by shewing those ordinary features of a
sincere and genuine importation.
But, unfortunately, such practical rules as are
devised for the better discovery of truth, and sup-
pression of fraud, in the prize court, are liable to
lose their effect as soon as they become known in
neutral countries; for persons meditating future im–
position, will adapt their conduct prospectively to the
rule of practice, so as to prepare the means of furnish-
ing, in case of necessity, the proofs which they know
will be required.
The landing the cargo in America, and re-shipping
it in the same bottom, were no very costly pre-
cautions for better securing the merchant against
the peril of capture and detection in the latter
branch of these important voyages. In fact, it is
often a necessary proceeding, in order to clean, and
refit, or repair the vessel; for in the West-India
trade, ships must usually go into dock to have their
bottoms cleaned, and receive all necessary repairs,
once in every voyage. American owners, therefore,
whose ships are constantly employed in this circui-
tous commerce between the West Indies and Europe,
must, to maintain them in proper condition, either
submit to the great expence and disadvantage of
* Case of the Polly, - Lasky, at the Admiralty, Feb. 5th, 1800.
2 Robinson’s Reports, 361. There was nothing in this case,
beyond the fact that a part of the cargo had been imported two
months before in the same vessel from the West Indies, from
which any collusive intention in the owner could be inferred.
E
Regard paid
to payment
of duties at
first port.
Neutral
merchants
knowing
the rule of
the Court,
prepared the
evidence
required
beforehand.
“Refitting”
a convenient
excuse for
unloading at
neutral port.
50
Separate
insurance
for both parts
of voyage
taken out.
Payment of
import duty
at neutral
port accepted;
but even this
abused.
Re-export of
bonded goods
cleaning and repairing them in a foreign and belli–
gerent country, or embrace the opportunity of
careening, or putting them into dock, on the arrival
at their own ports, either on the outward voyage
from Europe, or the return. It is, probably, so
much cheaper to refit and repair their ships in
America, than in Spain or the West-Indies, as to
compensate them for the expence of landing and
re-shipping the cargo.
The laying a foundation for the necessary evidence,
in regard to insurance, was a still easier work : for
though at first they sometimes insured the whole
intended voyage, with liberty to touch in America,
it was afterwards found, in consequence perhaps of
the captures and discoveries we have noticed, to be
much safer for the underwriters, and consequently
cheaper in point of premium to the owners, to insure
separately the two branches of the voyage; in which
case, America necessarily appeared by the policies on
the first branch, to be the place of ultimate destina-
tion ; and on the last, to be that of original
shipment. -
The payment of duties, then, was the only
remaining badge of the simulated intention for which
the merchants had to provide ; and here they found
facilities from the laws of the United States, such as
obviated every inconvenience. On the arrival of a
cargo destined for re-exportation in the course of
this indirect commerce, they were allowed to land
the goods, and even to put them in private ware-
houses, without paying any part of the duties; and
without any further trouble, than that of giving a
bond, with condition that if the goods should not be
re-exported, the duties should be paid. On their
re-shipment and exportation, official clearances were
51
given, in which no mention was made that the cargo after payment
consisted of bonded or debentured goods, which had tº:
previously been entered for re-exportation ; but the
same general forms were used, as on an original
shipment of goods which had actually paid duties in
America (B). Nor was this all; for, in the event of
capture and further inquiry respecting the importation
into that country, the collectors and other officers
were accommodating enough to certify, that the
duties had been actually paid or secured to the
United States; withholding the fact that the bonds
had been afterwards discharged on the production of
debentures, or other official instruments, certifying
the re-exportation of the goods.
By these means, the American merchant, whether Success
trading on his own account, or as an agent for the .."
enemy, was enabled securely to carry on a commerce, of the .
such as the royal instructions were far from meaning *
to tolerate. If by any accident or inadvertency, the
preceding branch of the voyage should be discovered,
he had an excuse at hand, such as would be accepted
by the British prize court ; and which he was pre-
pared to support by such evidence, as he knew
beforehand would suffice.
But rules of practice, which have been devised by
any court, for the guidance and assistance of its own
judgment on questions of fact, can evidently not be
binding on the court itself, when discovered to be no
longer conducive to that end ; much less when they
are found to be made subservient to the purpose of
imposition and fraud. ... The lords, commissioners case cºme
of appeal, therefore, finding it manifest in a recent Essex (re.
case, that the alleged importation into Salem, of a .
tº e tº © judgment in
cargo which had been shipped in Spain, and after- the William).
(B) See Appendix.
52
wards re-shipped for the Havannah in the same
bottom, was wholly of a colourable kind ; and that,
notwithstanding the usual clearances and certificates,
the duties had not been finally paid to the American
custom-house; rejected the claim, and condemned the
ship and cargo.” "
In this case, as in others of the same description,
there was found on board an affidavit of the pro-
prietor, stating, that the goods had been “laden on
“board from stores and wharfs at Salem, and that the
“duties thereon were secured to the United States, or
“paid according to law.” Yet it afterwards appeared,
by his own admission, that he had only given the
usual bond on the entry of the cargo from Barcelona;
which, as we have seen, is in effect a security to re-
export, rather than to pay duties on, the cargo ;
Bonding
goods is not
equivalent to
importing
them
* Case of the Essex, — Orme, at the Cockpit, May 22, 1805.
There were in this case great doubts as to the neutrality of the
property ; and their lordships did not express on what grounds
they decided ; but their sentence was understood at the bar to
have been founded on the illegality of the trade.
T EDITOR’s NOTE. –Mahan gives the same explanation of the evolution
of the “common stock ’’ principle, in The Influence of Sea Power on the
French Revolution and Æmpare : “Great Britain admitted that articles of
hostile origin, but become neutral property, became part of the neutral
stock and could then be freely re-exported to a hostile State. The question
of a bona-fide importation, like all others involving a question of intention,
could be determined only by the character of the transactions attending it;
but it was held generally that actual landing and storage, with payment of
duties, was sufficient proof, unless rebutted by other circumstances. Early
in the war following the Peace of Amiens, the British Courts awoke to the
fact that the duties paid on goods so imported were simply secured by a
bond, and that on re-exportation a drawback was given, so that a very
small percentage of the nominal duties was actually paid. Upon this
ground a ship was condemned in May 1805, and great numbers of
American vessels carrying colonial produce to Europe were seized and
brought into port, as well as others proceeding from the United States to
the West Indies, with cargoes originating in the mother countries, and
when, in the opinion of the Court, the duties had been only nominally
paid, they were condemned.” (Vol. II, p. 268.)
53
and which had been accordingly cancelled on the
re-exportation.
Two other American cases were soon after heard
at the Admiralty, in which, under similar circum-
stances, the learned judge of that court made similar
decrees ; holding that this mode of landing, and
paying or securing duties on, the cargoes in America,
was not sufficient to constitute an importation into
the neutral country, so as to break the continuity of
a voyage from the French colonies to Europe, and
thereby legalize the transaction under the indulgent
instruction now in force; the intention of the parties,
as was manifest from the other facts in evidence,
having been to elude the legal restriction.*
It seems impossible for any man seriously to dis-
approve of these decisions," without denying the
validity of the rule of law, which it is the purpose
of these colourable importations into America to
evade—a rule which, as we have seen, is acquiesced
in by the neutral powers themselves.
The payment, or non-payment, of duties in a
neutral country, obviously cannot, of itself, vary our
belligerent rights ; nor can the mere landing and re-
shipment of goods, without a change of property or
intention, give to the owner any right of carriage which
* Cases of the Enoch and the Rowena, at the Admiralty, July 23,
1805.
T EDITOR’s NOTE.-Mahan agrees (p. 269): “It is hard to see the
soundness of objection to these decisions.” But he objects to the first of
the condemnations on what he assumes to be a new ground, because there
was no warning from the Government of a change of policy. In this the
distinguished officer and author not only misconceives the purport of the
early decisions on the point, but confuses the functions of the Government
with those of the Courts. The complaint of the United States merchant
was referred to, and all the early decisions reviewed by Sir William Grant,
Master of the Rolls, in his judgment in the William. (5 C. Rob. Adm.
Rep. 385.)
Justification
of decision
in the Æssex.
54
Neutrals had
no right ex-
cept to trade
fairly and
above-board,
as sanctioned
by the
concession.
The frequency
of the same
excuse for a
practice shows
a deliberate
intention to
adopt it.
he did not previously possess.-Those circumstances
consequently were never regarded in the prize court
as of any intrinsic, or substantive importance ; they
were merely considered as evidence of the alleged
primary intention of the neutral importer ; and that
intention was enquired into only for his benefit, in
order to absolve him from strong general presump-
tions against the fairness and legality of the voyage.
It would therefore have been inconsistent and pre-
posterous, to give to any, or all of those circumstances,
any justificatory effect, when they were found not at
all to support the favourable conclusions which had
been originally drawn from them ; but rather, on
the contrary, to confirm the general adverse pre-
sumptions, which they had been once supposed to
repel. When it was found that the duties had been
secured, not in a way naturally applicable to goods
meant to be sold and consumed in America, but in
a mode devised for the special convenience of im–
porters intending a re-exportation, the suspicion that
the claimant originally meant to continue the voyage,
as he eventually did, was obviously strengthened, if
not absolutely confirmed.
If the justice or consistency of our prize tribunals
in these cases, needed a further defence, it might be
found in the great frequency, I might say univers-
ality, of the excuse which they had too indulgently
allowed. The credit of the main pretext itself, was
worn out by frequency of use.
A man on whose person a stolen watch should be
found, might allege that he had picked it up in the
street, and might find probable evidence to satisfy
a magistrate that his defence was well-founded: but
what if he were found possessed of ten or twenty
watches, stolen at different times, from different
55
persons, and should offer, in respect of them all, the
same identical explanation The same evidence
would now be reasonably regarded as insufficient to
deliver him from the highly aggravated suspicion.
Or, to borrow an illustration from a case con-
nected with our general subject, and one which is
practically notorious :-A neutral vessel is taken in
the attempt to enter a blockaded port, which lies
wide of her course to that place to which she is
ostensibly destined: the excuse offered to the captor
is, that a storm had driven her out of her proper
course ; and that, being in distress, she was going
into the blockaded port of necessity, in order to
refit. For once, or twice, perhaps, such excuses
might gain credit, on the oaths of the master and
his people ; but a multitude of vessels are taken in
the same attempt ; and all their masters give pre-
cisely the same excuse. They have all met with a
storm ; and are all obliged by distress, to put into
the prohibited port. Surely the commanders of the
blockading squadron, and the judges of the prize
courts, may now justifiably shut their ears to this
stale pretext; unless it comes supported by more
than ordinary evidence.
So in the case before us, when it has been found,
during several years, that all American merchants
detected in carrying from their own country to
Europe, produce which they had imported into the
former in the same bottoms, from the colonies of
our enemies, have exactly the same exculpatory facts
to allege ; the defence, on this ground alone, might
justly forfeit the credit which it in the first instance
received. It would be strange indeed, if so many
men, had all been accidentally, and reluctantly, driven
to consult their own interest to the utmost possible
56
Conclusion of
argument as
to the fraud
involved in
“circuitous
voyages.”
§ [See p. Io,
and Editor’s
Appendix,
III.]
The judgment
in the Wil/zam
involved no
new rule ; the
court only
weighed the
evidence of
ãonzó ſides more
carefully.
advantage, through a disappointment in their more
abstinent views ; and compelled to go eventually to
the best markets, instead of selling, as they designed,
at the worst. -
Too much time may perhaps appear to have been
spent on the history of these circuitous voyages,
which, though an extensive, form but a single
branch, of the abuses I wish to expose.
It was however not unimportant to show in it,
the true subject of those violent clamours with
which the public ear has been lately assailed. The
recent invectives of the Moniteur, Š and the complaints
of the American merchants, which have been echoed
by our own newspapers, and falsely alleged to have
produced concessions from his Majesty's govern-
ment, have all had no sounder foundation, than the
late conduct of our prize courts as here explained,
in regard to this indirect trade. The sole offence is
that those tribunals, finding themselves to have been
deceived for years past by fallacious pretexts, have
resolved to be cheated in the same way no longer.
They have laid down no new rule of judgment, but
only learned to be more circumspect than before in
the admission of excuses by which a subsisting rule
was evaded. It is on this account only, and the
consequent capture of some American West India-
men supposed to be practising the usual fraud, that
we are accused of insulting the neutral powers, of
innovating on the acknowledged law of nations, and
of treating as contraband of war, the produce of the
West India Islands (C). -
Though these collusive voyages, are the most
general abuse of the indulgence given by the royal
nstructions, and are a mode of intercourse with the
(C) See Appendix.
57
hostile colonies, peculiarly productive of a fraudu-
lent carriage for the enemy on his own account
under neutral disguise, the suppression of the prac-
tice would by no means remedy the enormous evils
which result from that intercourse in general.
An adherence by our prize tribunals to their
recent precedents, will perhaps put a stop to the re-
exportation from neutral ports of the same colonial
produce, in the same identical bottom, and on account
of the same real or ostensible owners by whom it
was imported ; * but a change of property in the
neutral country will be a false pretence easily made,
and not easily detected (D): nor will the substitution
of a different vessel, add very much to the trouble
or expence of the transaction. Two ships arriving
about the same time, in the same harbour, may com-
modiously exchange after landing their cargoes, and
proceed with them to the same places of destination.
A transhipment does not indeed, according to the
established rules of judgment in the prize court,
legalize a transaction which would have been un-
lawful if continued in the same bottom ; nor would
the landing the goods and re-shipping them in a
different bottom, be considered, in the case supposed,
as any better than a transhipment; but by such
an expedient the transaction might be effectually
concealed. In short, new methods of carrying the
(D) See Appendix.
T EDITOR’s NOTE. –It should be understood that the circuitous voyages
at this period were, in the same vessel, interrupted at the neutral port for
some of the excuses which the author deals with. The evasion of the
“Rule of 1756,” attempted by means of transhipments into another vessel,
came into vogue during the American Civil War, and was dealt with by
the American Court in the case of the Bermuda. (3 Wallace, U.S. Reports,
514.)
Transhipment
will take the
place of re-
shipment.
The author
here predicts
what actually
happened in
the Bermuda,
and foresees
the decision of
the United
States Prize
Court.
58
The effect of
the Concessions
to the
AVeutrals.
Mischief to
which “ Rule
of 1756” first
applied:
enemy used
neutral ships
to sail under
his own flag.
Disappear-
ance of
enemy flag :
Neutral flag
has replaced
flags of France
and Holland :
produce of the hostile colonies to any part of Europe,
will not be wanting, nor will there be any dearth of
means for amply supplying those colonies with the
manufactures of their parent states, so long as both
are permitted not only to be brought to, but ex-
ported from, a neutral country according to the
existing instruction.
Having shewn how much has been indulgently
conceded to the neutral flag, in respect of the colonial
trade of our enemies, and how much more it has
licentiously and fraudulently assumed, I proceed to
notice, as briefly as possible, the highly alarming
effects.
The mischief, to correct which the rule of the war
1756 was first applied, was of a partial and limited
kind. In that war neutral ships, though admitted
into some of the colonial ports of France, were by
no means the sole carriers of their produce or sup-
plies. The enemy continued to employ his own
commercial flag, as far as his inadequate power of
protecting it extended ; and neutrals were rather
partners in, than assignees of, the national monopoly.
In the American war their participation in this
commerce was still more limited.
But during the last war, and in the present, a
far more comprehensive innovation has taken place.
France and Holland have totally ceased to trade
under their own flags, to or from the ports of any
of their colonies ; and have apparently assigned the
whole of these branches of their commerce, to the
merchants of neutral states.
59
Spain, though with more hesitation, and by gradual
advances, has nearly made as entire a transfer of all
her trade with her colonies on the Atlantic ; and if
any reservation now remains, it is in respect of some
part only of the specie and bullion, for conveying
which a ship of war or two may be occasionally
risqued. Even those most valuable exports, have
been intrusted to the neutral flag at Vera Cruz,
Carthagena, La Plata, and other ports; while the still
more important commerce of the Havannah, and of
Cuba in general, has known no other protection.*
Of the French colonies in the Antilles, of Cayenne,
and Dutch Guiana, while that country was hostile
to us, of the Isles of France and Bourbon, of Ba-
tavia, Manilla, and of all other Asiatic settlements
which have remained under a flag hostile to this
country, it may be truly affirmed that neutrals have
been their only carriers. The mercantile colours of
their respective countries, and of their confederates,
have been absolute strangers in their ports. Even
the gum trade of Senegal has been made over to
neutrals, and its garrison supplied by them in
return.**
But why should I enumerate the particulars of
this unprecedented case, when it may be truly
affirmed in few words, that not a single merchant ship
tunder a flag imimical to Great Britain, now crosses the
equator, or traverſes the Atlantic Ocean.
Though to the generality of my readers this pro-
position may seem extraordinary, and perhaps too
strange to be believed, yet it forms only part of a
still more comprehensive and singular truth—With
and also flag
of Spain.
Neutrals the
Only carriers
from the
enemy
colonies.
Enemy
merchantmen
have vanished
from the seas.
* Cases of the Flora, Arnold, Gladiator, Emelia, Vera Cruz, &c.,
&c., at the Cockpit.
** Case of the Juliana, Carsten, at the Cockpit, I 805.
Except a
60
portion of the the exception only of a very small portion of the coasting
sº trade of our enemies, not a mercantile sail of any descrip-
mercé is under tion, now enters or clears from their ports in any part of
**& the globe, but under neutral colours (E). My more
immediate business however is with that colonial
trade, which subsists by our indulgence alone ; and
which fraud and perjury could not rescue from our
cruizers, if we did not forbear to exercise our clear
belligerent rights. -
The commerce which thus eludes the grasp of our
#. naval hostilities, is not only rich and various, but of
enemy a truly alarming magnitude.
colonial trade tº & 3. g
which we The mercantile registers at Lloyd's alone, might
permit. sufficiently manifest its great extent; for they
announce every week, and almost every day, nu-
merous arrivals of ships from America in the ports
of Holland and France ; and it is notorious that
they are freighted, for the most part, with sugar,
coffee, and the other rich productions of the French
and Spanish West Indies. Indeed, when the harvests
of Europe have not failed so much as to occasion a
large demand for the flour andgrain of North America,
that country has scarcely any native commodities,
tobacco excepted, that can be the subjects of such a
American commerce. These vessels return chiefly in ballast :
:..." but the portion of goods which they obtain as return
ports with cargoes, are stores and manufactures, destined for the
º * supply of the hostile colonies, though previously to
colonies. pass through the neutralizing process in America.
Enormous is the amount of the produce of the
new world, thus poured into the south, as well as
the north of Europe, under cover of the neutral
flag At Cadiz, at Barcelona, and the other Spanish
ports, whether within or without the Mediterranean,
(E) See Appendix.
61
neutral vessels are perpetually importing, unless
when interrupted by our blockades, the sugar of the
Havannah, the cocoa, indigo, and hides of South
America, the dollars and ingots of Mexico and Peru;
and returning with European manufactures, chiefly
the rivals of our own. East India goods, are also
imported by these commercial auxiliaries into
Spain ; but still more copiously, into Holland and
France.
Nor is it only in their own ports, that our enemies
receive the exports of America, and of Asia, in con-
tempt of our maritime efforts.--Hamburgh, Altona,
Embden, Gottenburgh, Copenhagen, Lisbon, and
various other neutral markets, are supplied, and even
glutted with the produce of the West Indies, and
the fabrics of the East, brought from the prosperous
colonies of powers hostile to this country. By the
rivers and canals of Germany and Flanders, they are
floated into the warehouses of our enemies, or circu-
lated for the supply of their customers in neutral
countries. They supplant, or rival the British
planter and merchant, throughout the continent of
Europe, and in all the ports of the Mediterranean.
They supplant even the manufacturers of Man-
chester, Birmingham, and Yorkshire; for the looms
and forges of Germany are put in action by the
colonial produce of our enemies, and are rivalling
us, by the ample supplies they send under the
neutral flag, to every part of the New World.
Antwerp, a happy station for the exchange of such
merchandize, is now rapidly thriving under the
fostering care of Buonaparte. His efforts for the
restoration of its commerce, during the short interval
of peace, produced no very splendid effects ; but the
neutral flags have proved far more auspicious to
Neutral ports
glutted with
produce of
enemy
colonies,
thence going
to the enemy,
supplanting
British planter
and merchant
on the
Continent.
Prosperity of
Antwerp
fostered by
Bonaparte ;
62
the rising hopes of the Scheldt, than the colours
of Holland and France. Its port has become a
favourite haunt of the American West Indiamen,
and profits in various ways by the sale of their
valuable cargoes (F).
If we look beyond the Atlantic, and into the
Eastern Ocean, we shall find the sources of this
commerce, under the same benign auspices of the
neutral flag, in the most thriving and productive
state. Buonaparte has recently boasted, that Mar-
tinique and Guadaloupe are flourishing, in despite
of our hostilities, so much beyond all former ex-
perience, that, since 1789, they have actually doubled
their population.* Had he said the same also of
their produce, the boast perhaps would have been
far less unfounded than his assertions usually are :
but he ought to have added, that since the first
notice of the war, the French flag has not brought
them a barrel of flour, nor exported a hogshead of
their sugar. Even the ships in their harbours, that
had been laden before the new hostilities were
announced, were ostensibly transferred with their
cargoes to neutral merchants, and sailed under
neutral colours. -
He has vaunted also, and with truth, the pros-
perous state of Cayenne, and of the Isles of France
and Reunion, once called Bourbon, whose prosperity
is owing to the same efficacious cause ; aided by
their becoming warehouses for the commerce of
Batavia. -
The Spanish government is not so ostentatious ;
but its colonies are quietly reaping the fruit of that
(F) See Appendix.
the haunt of
United States
merchantmen.
Commerce
of French
colonies flour-
ishes under
neutral flag.
Spanish
colonies also
prosperous
under neutral
flag.
* Extract from the Moniteur in the London Papers of Sep-
tember 2d. See Editor's Appendix, No. 4. .
63
fortunate revolution, the suspension of their pro-
hibitory laws. The neutral flag gives to them not
only protection, but advantages before unknown.
The gigantic infancy of agriculture in Cuba, far
from being checked, is greatly aided in its portentous
growth during the war, by the boundless liberty of
trade, and the perfect security of carriage (G). Even
slaves from Africa are copiously imported there, and
doubtless also into the French islands, under Ameri-
can colours.-America indeed has prohibited this
commerce, and wishes to suppress it ; but our
enemies can find agents as little scrupulous of
violating the law of their own country, as the law
of war ; and so wide has been our complaisance to
depredators on our belligerent rights, that even the
slave-trading smuggler has been allowed to take
part of the spoil.”
To the Spanish continental colonies also, war has
changed its nature : it has become the handmaid
of commerce, and the parent of plenty. Even the
distant province of La Plata, has been so glutted
with European imports, that the best manufactures
have sold there at prices less than the prime cost in
the distant country from which they came.**
In short, all the hostile colonies, whether Spanish,
French, or Batavian, derive from the enmity of
Great Britain, their ancient scourge and terror, not
inconvenience but advantage : far from being im–
poverished or distressed by our hostilities, as formerly,
they find in war the best sources of supply, and
(G) See Appendix.
* Cases of the Oxholm, Chance, &c. at the Cockpit. ,
** This fact has appeared in the evidence brought before our
prize tribunals, in the case of the Gladiator, Turner, at the Cockpit,
in 1802, and in other causes. -
Slave-traders
join in the
traffic.
Spanish
continental
colonies share
in general
prosperity.
64
Intervention
of the neutral
has enabled
Bonaparte
to promote
prosperity of .
his colonies.
new means of agricultural, as well as commercial
prosperity.
Happy has it been for them, and their parent
states, that the naval superiority of their enemy has
been too decisive to be disputed. -
“Una salus victis, nullam sperare salutem.”
A fortunate despair, has alone saved them from all
the ruinous consequences of an ineffectual struggle ;
and given them advantages greater than they could
have hoped from a successful maritime war. They
may say to each other as Themistocles to his children,
when enriched, during his exile, by the Persian
monarch, “We should have been ruined, if we had
“ not been undone.” .
It is singular enough, that the same policy which
the most celebrated French writers on colonial affairs,
earnestly recommended to Buonaparte, soon after
the peace of Amiens, as the best means of promoting
his favourite object, the restoration of the colonies
and the marine ; is that which the war has benig-
nantly forced upon him.* He was as hostile as they
wished, to the liberty of the negroes ; but all their
persuasion did not suffice, to induce him to unfetter
for a while the colonial trade, till their powerful
arguments were seconded by a new maritime war.
Perhaps it may be supposed that we are at least
able to diminish the immediate profit of that com-
merce, which we generously forbear to obstruct, by
obliging our enemies to import their colonial produce
on dearer terms than formerly, into the European
markets.
But let it be considered, that in a mercantile view,
* See Barre Saint Venant, des Colonies Modernes, etc., and
Memoirs sur les Colonies, par V. P. Malouet.
65
relative, not positive, expence on importation, is the
criterion of loss or gain. If the price of the com-
modity rises in proportion to the advance in that
expence, the importer loses nothing : and if the war
inhances the freight and other charges to the British,
more than to the French, or Spanish merchant, then
the latter may derive a positive advantage from the
general rise in the neutral markets; while, even in
respect of the home consumption, there will, in a
national view, be a balance of belligerent incon-
venience against us.
Now I fear the fact is, however strange it may
seem, that the advance made by the war in the
expence of importation into this country from the
British colonies, in respect of freight, insurance, and
all other charges taken together, is fully equal, if not
superior, to that to which our enemies have been
subjected in their covert and circuitous trade.
The average freight from the British Leeward
Islands for sugars, immediately prior to the present
war, was four shillings and sixpence per cwt. ; it is
now about eight shillings : an advance of above 77
per cent.
The peace freights from the French and Spanish
colonies, were rather higher, on an average, than from
our own ; but I am unable to state in what degree
they are advanced by the war : for, in the circuitous
mode of conveyance under neutral colours, by which
alone the produce of the colonies now passes to Europe,
the cargo is always either represented as belonging to
the owner of the ship, and, consequently not subject
to freight ; or as laden in pursuance of a charter
party, in which the ship is ostensibly freighted on
account of some other neutral merchant, for a sum
in gross. If genuine bill of lading or charter party
F
Freights and
charges from
British colo-
nies greater
than those
for circuitous
voyage from
enemy
colonies
neutral
ships.
Comparison
of freights.
66
is discovered, the freight is mixed up with a neutral-
izing commission, from which it cannot be
distinguished.
It may, however, be safely affirmed, that the
freight, independently of the commission, is con-
siderably less in neutral than in British ships, on
account of the comparative cheapness of the terms on
which the former are purchased and fitted out.
A comparison of the expence of insurance, at these
different periods, to our enemies, and to our own
merchants respectively, will be easier and more
material ; for the advance in the rates of insurance,
when made against war risques, is a most decisive
criterion of the effect of a maritime war. Here I
have facts to submit to the reader, which an English-
man cannot state without mortification, though they
are too important to be withheld.
Immediately prior to the present war, the pre-
mium of insurance from the Leeward Islands to
London, in a British ship, was two per cent. ; from
Jamaica, four per cent. : at present, the former is
eight, to return four if the ship sails with convoy and
arrives safe ; the latter ten, to return five, on the
same condition. Single or running ships, if unarmed,
can scarcely be insured at all—if armed, the premium
varies so much according to the different estimates of
the risque, that an average is not easily taken.
At the former period, the insurance from the
French Windward Islands to Bourdeaux, was three
per cent. ; from St. Domingo it was as high as five,
and even six ; from the Havannah to Spain, four
per cent. in ships of the respective countries. The
existing premium on these direct voyages cannot be
stated ; since they are never openly insured in this
country; and as to the French and Spanish
67
commercial flags, they can nowhere be the subjects
of insurance ; having vanished, as already observed,
from the ocean : but at Lloyd's Coffee House,
cargoes brought by the indirect voyage from those
now hostile colonies, under neutral colours, are
insured as follows : from Havannah, to a port in
North America, 3 per cent. ; from North America
to Spain, the like premium ; together 6 per cent.*:
and I apprehend there is little or no difference, in the
insurance of a like circuitous voyage from the French
Windward Islands to France. Of course, when the
voyage is really to end at a neutral, instead of a belli–
gerent port, in Europe, the premium on the latter
branch of it, is rather lessened than increased.
The compound premium of insurance with convoy,
or the long premium, as it is called, is not easily
reducible to its proper absolute value, for the pur-
pose of this comparison ; since the risque of missing
convoy, is compounded of too many chances, and
combinations of chances, of various kinds, physical,
commercial, and political, to be averaged by any
calculation : but since the assured, in the case of loss,
as well as in that of missing convoy, has no return of
premium, and the return is always, with deduction
of the difference between pounds and guineas, or 5
per cent. which is retained by the underwriter or
broker, the premium of IO to return 5, may be
estimated at near 7 per cent., and that of 8 to return
4, about I per cent. lower.
The consequence of these premises is, that the
* This statement has reference to the month of August last,
when the author can with confidence assert that these were the
current premiums. He understands that they have since been
raised, in consequence of the recent decisions in the Prize Court,
which have been already noticed. See Appendix (H).
Insurance of
ships under
convoy.
Insurance for
68
Cuba sugar
less than for
Jamaica Sugar.
British trade
burdened with
additional
convoy duty.
sugars of Cuba are insured on their circuitous
carriage to Spain at a less expence in the proportion
of 6 to 7, than the sugars of Jamaica to England;
and those of Martinique and Guadaloupe, probably,
are insured by a like route to France, on terms
nearly equal to the value of the long premium,
on the direct voyage from our own Leeward Islands.
But this is a conclusion far short of the true result
of the comparison : for the English merchant or
planter, has also to pay the convoy duty, which is
evidently an additional price of his insurance from
the war risques of the passage."
The convoy duty on the outward voyage to the
West Indies, is no less than four per cent. ; on the
homeward voyage, there is at present no duty
expressly for the protection of convoy; but a new
war tax by way of advance on the amount of old
duties, has been imposed on sugars imported, and on
all other articles of West India produce ; part of
which advance was understood to be a substitute for
an express convoy duty, and on that principle, it is
not wholly drawn back on exportation.
It would require an intricate calculation, as well as
data not easy to obtain, to determine what is the
amount of this charge to the importer, if reduced
into a specific tax for the protection of convoy. I
will, therefore, suppose it to be equal to the convoy
duty on the outward voyage : or, what will equally
T EDITOR’s NOTE.—The “convoy duties” were imposed in 1798, by
38 Geo. III. c. 76, passed to prevent ships Sailing without convoy, and in
order “to defray the extraordinary expence arising from the protection
given to the increased and extended commerce of these kingdoms.” A
customs duty was imposed, according to a tariff, on all goods imported
and exported ; and a tonnage duty on all ships clearing from the United
Ringdom, varying from sixpence to one shilling a ton, according to the
voyage, rising to two shillings and sixpence for the Cape of Good Hope,
and three shillings for the East Indies.
69
serve our purpose, let the insurance on an outward
voyage to the West Indies be supposed to be the
same in point of premium, as in fact it nearly, if not
exactly is, with the insurance homeward : then the
whole price of protection to the English West India
shipper, compared with that for which the enemy
planter or merchant, is insured by the same under-
writers, on the passage of his goods to or from the
immediate neighbourhood of the same islands, is,
in the Jamaica trade, as II to 6, and in the Leeward
Island trade, as IO to 6, a difference against us, com-
puting on the higher premium of above 45 per cent.
in the former case, and 40 per cent. in the latter.
But if we separate the price of the sea risque, or
the warranty against those dangers which are common
both to peace and war, from the war risque, or price
of the insurance against detention or capture by an
enemy, the difference will be found still more highly
adverse to that shipper, whose sovereign is master of
the sea : for as the premium of insurance from
Martinique to France, before the war, was 3 per
cent., while, from the British islands in the same part
of the West Indies it was only 2 ; the advance
occasioned by the war to the British shipper, convoy
duty being reckoned as insurance, is no less than
eight-tenths of the whole existing charge, or a rise on
the peace premium of 400 per cent. ; while to the
enemy, the advance is only three-sixths, or Ioo per
cent. On the same mode of computation.
An objection here may naturally arise, to which
I regret that a shameful but conclusive answer, can
be given. Since the rates of insurance which I have
mentioned as the current prices of protection to the
commerce of our enemies, when carried on under
neutral colours, are those which are paid in this
Further
comparison
of insurance
charges.
Insurance of .
British under-
writers of
enemy goods
under neutral
flag.
70
** Neutraliz-
ing” was the
term applied
to the loan
of the neutral
flag to the
enemy. It
is discussed
later, on pp.
77 et seq.
Insurance
effected at
country, to British underwriters, and an insurance
on the property of enemies is illegal, the hostile
proprietor may be thought not to be effectually
secured ; for should his secret be, as in the event
of capture it sometimes is, discovered, the insurance
will be void. .
Neutralizing agents, I first answer, are not so
incautious, after twelve years experience in their
business, and in the practice of the British prize
courts, as to expose their constituents very fre-
quently to detection. But such as this risque is,
the masqueraders have found an effectual means of
avoiding it. Though a strange and opprobrious
truth, it is at Lloyd's Coffee House perfectly
notorious, that our underwriters consent to stand
between the naval hostilities of their country, and
the commerce of her disguised enemies, by giving
them an honorary guarantee against the perils of
capture and discovery.
The mode of the transaction is this—A policy
is executed, such as may be producible in any court
of justice; for the property is insured as neutral : .
but a private instrument is afterwards signed by
the underwriters, by which they pledge themselves,
that they will not, in case of loss, dispute the
neutrality of the property, or avail themselves of
any sentence pronouncing it to be hostile. Some-
times, a verbal engagement to this effect, is thought
sufficient, but it has now become a very general
practice to reduce it into writing ; and in the one
mode, or the other, these releases of the warranty
or representation of neutrality, are almost universal.
It is true, such stipulations are not binding in point
of law : but every one knows, that at Lloyd's
Coffee House, as well as at the Stock Exchange
71
and Newmarket, those contracts, which the law will
not enforce, are on that very account, the most
sacred in the estimate of the parties, and the most
inviolably observed.
The enemy, therefore, has as full security for his
low premium as the British importer for his high
one ; nor is the comparative result of our premises
shaken by the expence of this special addition to
the policy; for in the rates of insurance which
I have given, the extra charge of the honorary
stipulations are included. For six per cent. the
British underwriter will warrant Spanish property,
knowing it to be such, from the Havannah to Spain,
by way of America ; though he receives what is
equal to seven, on British property, of the same
description, carried with convoy, and in far better
bottoms, from Jamaica to London.
The proportion of this premium, which may be
reckoned as the price of the secret undertaking, is,
I understand, one per cent. It cannot be much
more ; since the excess of the whole war premium
above that which was paid on the direct voyage
in time of peace, is only two per cent. The point
is of no importance to our calculation ; but it is
striking to reflect, how small an additional premium
is enough to compensate the insurer for the risque
of the detection of hostile property under the
neutral cover, in this commodious new invented
course of the colonial trade. Can we wonder that
Buonaparte should be indignant and clamorous at
the late attempts of our prize court to restrain it.
The underwriters of America have pretty nearly
agreed with our own, in the appreciation of the
trivial danger from British hostilities, in this great
branch of commerce. In July and August last,
Lloyd's
on neutral
carriers,
with waiver of
“warranty
of neutrality "
Value of
assistance of
neutral flag
tested by
insurance
rateS.
72
Insurance by
British under-
writers of
neutral vessels
is an insurance
of enemy pro-
perty against
British
hostilities.
the average premiums at New York and Phila-
delphia, on the separate branches of the double
West India voyage, without any warranty of neu-
trality, were about 3% per cent. or 7 in the whole,
from the West Indies by way of America to Europe.
Insurance in that country, is naturally a little dearer
than in England ; and the rates of premiums at
Lloyd's, probably regulate, with an advance of about
one per cent. in general, the price of insurance in
the United States.
It is impossible here to abstain from some
digressive remarks, on the conduct of the British
underwriters. They are, certainly, in general, very
respectable men ; and comprise within their body,
merchants of great eminence in the most honourable
walks of commerce. It is fair to presume, therefore,
that their common concurrence in any practice con-
trary to the duties of good subjects, and upright
men, can only proceed from inadvertency or mistake.
I would intreat them then to reflect seriously, on
the nature and consequences of these honorary en-
gagements, falsely so called, into which the secret
agents of our enemies have seduced them."
Let me remind them of the moral obligation, of
obeying, in substance, as well as in form, the law
T EDITOR’s NOTE. –The Maria Magdalena (1799, Hay and Marriott's
Rep., p. 247) seems to have been a bad illustration of the practice to
which the author refers. Merchants in England had cleared the vessel
out of the Thames with false bills of lading, and destroyed the clearances.
They swore that the goods were shipped for Ostend, whereas they were
shipped in reality for Nantz, the capital port for the rebel American trade.
After having severely criticised the insurers (see Editor's Note on p. 76)
the Judge continued: “I feel the utmost pain in this cause. I have a
personal respect for some of the names I see in the claims and affidavits
annexed, and am willing to be persuaded that in the immense hurry of
other business, or by the dissipation of the pleasures of the times they
have been led into a most dangerous error, in imagining that affidavits are
nothing but forms . . . they are made with levity, and sworn to with
rashness.” --
73
of their country; and that the rule which forbids
the insurance of an enemy's property, not having
been founded solely on a regard to the safety of
the underwriter's purse, they have no private right
to wave its application.
Some persons, perhaps, may find an excuse or
palliation of this practice, to satisfy their own con-
sciences, in a doubt of the public utility of the law,
which they thus violate or evade ; for specious
arguments have been heretofore offered, to prove
that a belligerent state, may advantageously permit
its subjects to insure the goods of an enemy from
capture; and that pestilent moral heresy, the bane
of our age, which resolves every duty into expedi-
ency, may possibly have its proselytes at Lloyd's,
as well as at Paris. With such men as have imbibed
this most pernicious error, I have not time to reason
on their own false principles ; though the notion
that it is politic to insure an enemy, against our own
hostilities, is demonstrably erroneous ; and seems
as strange a paradox as any that the vain predilec-
tion for oblique discovery ever suggested. I can
only offer to them a short argument, which ought
to be decisive, by observing, that the wisdom of the
legislature, and of our ablest statesmen in general,
has concluded against these insurances on political
grounds; otherwise they would have been permitted,
instead of being, as they are, prohibited by law.”
* The prohibition of the last war, 33 George II. cap. 27, s. 4, §
has not, I believe, yet been renewed. Perhaps, during the pres-
sure of parliamentary business, which has prevailed ever since the
commencement of the present war, it has escaped the attention
of government. The illegality of insuring hostile property,
stands, however, on common law principles, independent of any
positive statute ; as has long since been solemnly decided. The
use of that act was not to invalidate the policy, but to impose
§ [Probably
31 Geo. II. c.
27, renewing
25 Geo. II. c.
26, an Act
** to restrain
the making
insurances on
foreign ships
bound to or
from the East
Indies.”—
ED.]
74
The offence
of British
underwriters.
Release of
“warranty
of neutrality”
in effect con-
nivance at the
frauds of the
neutral flag.
But I conjure the British underwriters to reflect,
that there is a wide difference, both political and
moral, between the insurance of an enemy's property
fairly passing on the seas as such, in his own name;
and the insurance of the same property under a
fraudulent neutral disguise. By the former trans-
action, indeed, the law is more openly violated ;
but in the latter, the law–breaking and clandestine
contract, is, in effect, a conspiracy of the underwriter
with the enemy and his agents, to cheat our gallant
and meritorious fellow subjects, the naval captors;
as well as to frustrate the best hopes of our country,
in the present very arduous contest.
Besides, by what means is the safety of the
underwriters in these secret contracts consulted
It will not, it cannot, be denied, that instead of the
paltry considerations for which they now consent
to release the warranty of neutrality, they would
require more than double the open premium for
that release, if they did not rely on the effect of
those perjuries and forgeries by which capture or
condemnation is avoided. The underwriter, there-
fore, who enters into the clandestine compact, is an
accessary to those crimes.
But is this all 2 Does he not directly contract
for, and suborn, as well as abet them P For whose
benefit, and at whose instigation are those false
affidavits, and fictitious documents, transmitted from
the neutral country, which are laid before the courts
of prize in these cases, as evidence of the property,
after a decree for further proofs The claimant
specific penalties on the insurer of an enemy’s goods ; and if it
should be revived, the indirect method of accomplishing the
illegal object by a secret undertaking will, I trust, be made at
least equally penal with the direct and open offence.
75
receives the sum insured from the underwriter, and
allows the latter to prosecute the claim for his own
reimbursement; and for that purpose the necessary
evidence is furnished by the one, and made use of
by the other, to support at Doctors' Commons the
fact of a representation, which at Lloyd's Coffee
House is known to be false.
It may indeed, be alleged, that there are often
other reasons with the assured, for asking the under-
writer to wave the question of neutral property,
than a consciousness that the goods belong in fact
to an enemy. Courts, it may be said, are liable to
be mistaken on that point ; and the delay attending
its investigation, may be injurious.
Pretences like these can never be wanting, to
palliate any indirect and disingenuous transaction,
that has for its object the concealment of an illegal
purpose. To the gamester, the stock jobber, and
the usurer, they are perfectly familiar. Should it,
however, be admitted, that such specious reasons are
sometimes the real motives of the assured, and that
they are commonly held forth to the underwriters
as such, (which, I admit, is probable enough ; for it
is not likely that the enemy's agent often needlessly
violates decorum, so far as to announce openly the
true character of his principal,) still the defence
would be extremely weak. That enemies, very
often at least, are the real proprietors in these cases,
is too natural, and too frequently confirmed by actual
detection, to be seriously doubted : besides, our
London insurers are not so ill informed, as to be at
a loss for a shrewd guess in regard to the national
character of the true owners in the policy, from
the nature of the transaction itself, and the known
connections of the agents. In the insurances on
Underwriters
cannot be
unconscious
that the goods
are not
neutral.
76
property engaged in the collusive commerce which I
have described, the secret engagement has become
almost universal. If, then, any considerable part of
this property is known to be hostile ; how can our
underwriters be excused by the assertion, supposing
it true, that much of it is really neutral (I)
This bad and dangerous practice, however, is not
peculiar to the policies on colonial produce and
supplies, but extends to almost every other species
of insurance upon commerce, that is now fraudulently
carried on under neutral colours. Almost every
contest in our prize courts, respecting property so
insured, becomes an unnatural struggle between
British captors, fairly asserting their rights under the
law of war; and British underwriters, clandestinely
opposing those rights under cover of neutral names.
Every sentence of condemnation, in such cases, is a
blow, not to the hostile proprietor, but to our own
fellow subjects."
If the danger of disloyal correspondence, in order
to prevent or defeat a capture, if the augmented
means of imposition on the courts of prize, or if the
cheap and effectual protection given to the enemy,
be considered, in either view, this bad practice ought
to be immediately abolished.
(I) See Appendix.
* EDITOR’s NOTE.-The insurance of goods of the enemy (or of property
which was only doubtfully neutral) was strongly animadverted on by Sir
George Hay as far back as 1779. In the Maria Magdalena (Hay and
Marriott's Rep., at p. 253), he said: “In regard to insuring I have a clear
opinion, that as the insuring of His Majesty's life is not to be permitted,
because it may be a temptation to some one to take it away; so insuring
against the arms of the British nation is an inducement perpetually to
betray them ; it is an aiding, abetting, and comforting of the King’s
enemies, and a prolonging of the war . . . There seems little or no doubt
but the claimants are insurers; not the ultimate owners, at all events; and
the affidavit of one of the claimants clearly shows how the bargains are
made between the shipper here by commission and the consignee in France,
as to the risque on the sea and on the land.”
77
But there is a still more important and sacred
reason for its suppression. If neutral merchants
will violate the obligations of truth and justice, in
order to profit unduly by the war, the societies to
which they belong, will soon feel the poisonous
effects, in the deterioration of private morals ; for
habits of fraud and perjury, will not terminate with
the neutralizing employments that produced them.
But with the profit which redounds to them and
their employers, let them also monopolise the
crimes. Let us not suffer at once, in our belligerent
interests, and in what is far more valuable, our
private morals, by sharing the contamination; let us
not be the accomplices, as well as victims of the guilt.
Since it is not enough, that the engagements in
question are void in law, they ought to be prohibited,
under severe penalties, as well on the broker, who
negotiates, as on the underwriter, who subscribes
them.
Returning from this digression, let us resume for
a moment our comparative view of English, and
French or Spanish commerce, as to the expence of
carriage during war between the West Indies and
Europe.
There is one remaining head of expence attending
the importation of colonial produce, under which it
may possibly be supposed, that the enemy sustains
a loss, more than equivalent to his comparative
advantages in other respects: I mean the commission,
or factorage; for it cannot be disputed, that the
fraudulent must be compensated more liberally, than
the honourable service. d
I cannot pretend with certainty to state the average
price of that collusive agency, the business of which
is called “neutralization,” either in this or any other
Comparative
view of Eng-
lish, French,
and Spanish
COImmerce
resumed.
The come
mission on
“neutraliza-
tion.”
78
Colonial pro-
duce carried
on enemy
aCCOunt
ostensibly as
neutral
property.
The enormous
American
trade for the
enemy, who
has not one
merchant keel
on the ocean.
branch of trade ; but there is every reason to con-
clude, that it is by no means equal to those differences
in the rate of insurance, which have been shewn
to be so favourable to the enemy. I am credibly
informed, that in some European branches of trade,
it is reduced to two, and even to one, per cent. on
the amount of the invoice ; and there seems no
reason why the price of conscience should be higher
in one transaction of this kind than another, except
in proportion to the profit derived by the purchaser.
But here it may perhaps be objected, that I am
building on an hypothesis, the truth of which has
not hitherto been proved ; namely, that the colonial
produce, the subject of the commerce in question,
though ostensibly neutral property, is carried on the
enemy's account.
Independently of the discoveries frequently made
in the prize courts, there are strong presumptive
grounds for supposing that this is commonly the
case, not only in the colonial trade, but in every
other new branch of commerce, which the neutral
merchants have acquired during the war. The
general views and interests of the parties to these
transactions, must strongly incline them to that
fraudulent course ; and the facility of concealing it,
is become so great, that nothing, for the most part,
can induce them to ship boma fide on neutral account,
but a principle which, unhappily, experience proves
to be extremely rare among them—respect for the
obligation of truth.
Besides, where can America, and the other neutral
countries, be supposed to have suddenly found a
commercial capital, or genuine commercial credit,
adequate to the vast magnitude of their present
investments P
79
By what means, could the new merchants of the
United States, for instance, be able to purchase all the
costly exports of the Havannah, and the other Spanish
ports in the West Indies, which now cross the Atlantic
in their names Yet what are these, though rich and
ample, when compared to the enormous value of that
property which is now carried, under the flag of this
new power, to and from every region of the globe
Those who are but superficially acquainted with
the subject, may perhaps be ready to suppose, that
the frauds which they hear imputed to neutral mer-
chants at this period, are like those which have always
prevailed in every maritime war; but the present
case, in its extent and grossness at least, is quite
without a precedent.
Formerly, indeed, neutrals have carried much of
the property of our enemies; and great part of what
they carried was always ostensibly their own ; but Neutrals carry
now they carry the whole of his exports and imports, ºols
and allege the whole to be neutral. It rarely, if ever, enemy trade.
happens that the property of a single bale of goods
is admitted by the papers to be hostile property.
We are at war with all those who, next to ourselves,
are the chief commercial nations of the whole world;
and yet the ocean does not sustain a single keel,
ships of war excepted, in which we can find any
merchandize that is allowed to be legitimate prize."
T EDITOR’s NOTE.-Mahan emphasises the importance of the United
States carrying trade in the Mediterranean. At the end of the eighteenth
century the enterprise of their merchants had taken up the trade in those
waters which the British had lost, and it had developed in subsequent
years to such an extent that, he says, the Order in Council of January, 1807,
which prohibited trade by neutrals between two hostile ports, “bore par-
ticularly hard upon American ships which were in the habit of going from
place to place in Europe, either seeking markets or gathering a cargo.”
American trade in the Mediterranean was swept away by seizures and
condemnations under it.
The author’s prophecy (see p. 18), that the rise of the United States was
80
Enemy
merchants
have become
mere factors
for neutral
merchants.
France, Spain, Holland, Genoa, and the late
Austrian Netherlands, and all the colonies and trans-
marine dominions of those powers, do not, collec-
tively, at this hour, possess a single merchant ship,
or a merchant, engaged on his own account in ex-
terior commerce, or else the neutral flag, is now
prostituted, to a degree very far beyond all former
example. t - -
Those who dispute the latter conclusion, must ask
us to believe, that all the once eminent mercantile
houses of the great maritime countries now hostile
to England, are become mere factors, who buy and
sell on commission, for the mighty though new-born
merchants of Denmark, Prussia, and America; for
in all the numberless ports and territories of our
enemies, there is not one man who now openly
sustains the character of a foreign independent trader,
even by a single adventure. Not a pipe of brandy
is cleared outwards, nor a hogshead of sugar entered
inwards, in which any subject of those unfortunate
realms, has an interest beyond his commission.
If the extravagance of this general result, did
not sufficiently shew the falsehood, in a general
view, of the items of pretence which compose it,
I might further satisfy, and perhaps astonish the
reader, by adducing particular examples of the gross
calculated to give a new and vast importance to every question of neutral
rights, was, therefore, almost immediately fulfilled. Measures were taken
in the very first Congress for developing American shipping; and Mahan
says that at the beginning of 1803 the merchant tonnage of the United
States was inferior in quantity to that of no other country except Great
Britain.
In connection with the development of its navigation in the Mediter-
ranean, it is interesting to note that the United States concluded a Treaty
of Peace and Friendship, which included trading rights, with the Dey of
Algiers (Sept. 5, 1795), and with the Bey of Tripoli (Nov. 4, 1796). The
Treaty with Spain (Oct. 27, 1795) settled, among other things, the limits of
Louisiana, but also secured mutual navigation rights, and access to ports.
81
fictions, by which the claims of neutral property
are commonly sustained in the prize court. -
Merchants who, immediately prior to the last
war, were scarcely known, even in the obscure
seaport towns at which they resided, have suddenly
started up as sole owners of great numbers of ships,
and sole proprietors of rich cargoes, which it would
have alarmed the wealthiest merchants of Europe,
to hazard at once on the chance of a market, even
in peaceable times. A man who, at the breaking
out of the war, was a petty shoemaker, in a small
town of East Friesland, had, at one time, a hundred
and fifty vessels navigating as his property, under
Prussian colours.
It has been quite a common case, to find in-
dividuals, who confessedly had but recently
commenced business as merchants, and whose com—
mercial establishments on shore were so insignificant,
that they sometimes had not a single clerk in their
employment, the claimants of numerous cargoes,
each worth many thousand pounds ; and all destined
at the same time, with the same species of goods,
to the same precarious markets.”
The cargoes of no less than five East Indiamen,
all composed of the rich exports of Batavia, to-
gether with three of the ships, were cotemporary
purchases, on speculation, of a single house at
Providence in Rhode Island, and were all bound,
as asserted, to that American port ; where, it is
scarcely necessary to add, no demand for their
cargoes existed.**
Sudden
wealth
acquired by
unknown
traders.
The small
shoemaker
who ‘‘ owned”
I5o ships
under the
Prussian flag.
* Cases of the Bacchus, the Bedford, the London Packet, the
Pigou, &c., &c., claimed for houses in Boston and George Town in
Maryland, at the Cockpit, last war.
* Case of the Reemsdyke.
G
Further
examples.
82
Exorbitant
profits of
the neutral
merchants.
Adventures not less gigantic, were the subjects
of voyages from the colonies of Dutch Guiana, to
the neutral ports of Europe ; and from the Spanish
West Indies, to North America. Vessels were sent
out from the parsimonious northern ports of the
latter country, and brought back in abundance,
the dollars and gold ingots of Vera Cruz and La
Plata. Single ships have been found returning
with bullion on board, to the value of from a
hundred to a hundred and fifty thousand Spanish
dollars, besides valuable cargoes of other colonial
exports.” - - .
Yet even these daring adventurers have been
eclipsed. One neutral house has boldly contracted
for all the merchandize of the Dutch East India
Company at Batavia ; amounting in value to no
less than one million seven hundred thousand
pounds sterling.** - -
But have not, it may be asked, the means of
payment, for all the rich cargoes which have been
captured, undergone a judicial investigation f Yes,
such slender investigation as the prize court (which
of necessity proceeds on the ex parte evidence of
the claimants themselves) has power to institute ;
the effect of which has been, to produce a tribe
of subsidiary impostures, not less gross than the
principal frauds, which they were adduced to
support.
Sometimes a single outward shipment, has been
made fructify so exuberantly in a hostile market,
as to produce three return cargoes, far richer in
kind than the parent stock; with two additional
ships, purchased from the enemy, to assist in carry-
* Cases of the Gladiator, the Flora, &c., at the Cockpit.
** Case of the Rendsbborg, 4 Robinson 12. -
83
ing home the harvest. In other cases it has been
pretended, that bills of exchange, or letters of
credit, remittances which usually travel from Europe
to the colonies, and scarcely ever in the reverse
of that direction, were carried to the East Indies,
or to a West India island, and applied there in
the purpose of the captured cargoes ; or that the
master or supercargo, a mere stranger, perhaps in
the place, found means to negotiate drafts to a
large amount on his owners.
A pretence still more convenient and comprehen-
sive, has been in pretty general use—that of having
an agent in the hostile port, whose ostensible account
current may obviate all difficulties, by giving credit
for large funds remaining in his hands, the imaginary
proceeds of former consignments, which he invests
in the colonial exports.
In other cases, the master or supercargo, in order
to give colour to the pretended payment, has really
drawn bills of exchange in the colony, payable at
the port of destination ; but then there has been a
secret undertaking that they shall be given up, on
delivery of the cargo to the agent of the hostile pro-
prietor ; and sometimes, to guard against breach of
faith by the holders of such bills, and possible in-
convenience to the drawers, they have been made
payable at a certain period after the arrival of the
ship and cargo ; so that in the event of capture and
condemnation, they would be of no effect.
A still grosser device has at other times been
employed, and was in very extensive use, by the
planters of the Dutch West Indies resident in
Europe, before the conquest of Surinam, and their
other colonies in Guiana. Contracts were made in
Holland with neutral merchants, for the sale of large
The
machinery
by which the
trade was
carried on.
Contracts
with neutral
84
merchants
which state of
the market
showed to be
fictitious.
Nature of
colonial trade
did not admit
of such con-
tracts being
made.
quantities of sugar, coffee, and other produce, at
stipulated prices, which were supposed to be paid in
Europe ; and, thereupon, directions were sent to
the attornies or managers of the estate in the colony,
to deliver the produce so sold to the order of the
neutral purchasers.-Vessels, chartered by the latter,
were sent out, chiefly in ballast, with a competent
number of these orders on board ; by means of
which, the valuable cargoes of produce received in
the colony, were ostensibly acquired. The same
pretences were also adopted by some Spanish
colonists of Cuba.
A man must be profoundly ignorant of the nature
of such commodities, and of the colonial trade in
general, to suppose that these contracts could be
sincere. Such are the varieties in the quality, and,
consequently, in the value, of sugar and other West
India produce ; and so greatly unequal are different
parcels, the growth even of the same plantation and
season, to each other ; that, to fix the price while the
particular quality is unknown, would be preposter-
ous ; and would place the buyer quite at the mercy
of the seller or his agents.--Besides, from the quick
fluctuations of price in the European markets, such
prospective contracts as these, would be downright
gaming ; unmixed with any portion of Sober com-
mercial calculation.—A man might as well bargain
for English omnium in Japan.
Without enumerating any more of these coarse
impostures, I would remark, that the resort to them,
is a striking proof of the difficulty these neutralisers
found in making out a credible case ; and that which
gave occasion for them in the colonial trade, forms
alone, a strong presumption against the general truth
of their claims. I mean the known fact, that the
85
cargoes carried to the hostile colonies, in general, are
utterly insufficient to pay for the rich returns. In
the trade of the sugar islands; especially if the
whole imports from Europe and America were taken
collectively, they would hardly be equal in value to
one-sixth part of the exports (K).
For what purpose, it may be reasonably demanded,
should the planter sell more of his produce in the
colony than is requisite to pay for his supplies —It
is not there, that his debts are to be paid, or his
savings laid by ; but in the mother country; and it
is in that country also, or in some part of Europe
alone, that his produce can be advantageously sold.
If, then, he sells more of his produce in the colony,
than will serve to defray the expenses of his estate,
it can only be to avoid the risk of sending it speci-
fically on his own account, to Europe.—But if a
fictitious sale will almost equally avoid that risk, it
is obviously a far more advantageous expedient than
the other; for in what form can he remit the pro-
ceeds, that of bills of exchange excepted, without
encountering an equal danger on the passage 2 yet
in taking bills, especially from such persons as
usually conduct this trade, he may sustain a risk
more formidable than that of capture and discovery;
while he relinquishes to the drawer, the benefit of
the European market.
“But,” it may be said, “these claims of neutral
“property have often been established by the decrees
“of the supreme tribunal of prize — they were
“therefore believed, by those who were the most
“competent judges, to be true.”—I admit that they
have been so established, and even in some of the
cases which I have instanced as peculiarly gross ;
(K) See Appendix.
Colonial ex-
ports largely
exceed the
imports.
86
Prize courts but not because they were believed—it was only
...', because they were supported by such direct and
insufficient positive testimony, as judges bound to decide accord-
evidence. ing to the evidence before them, are not at liberty
to reject.
The collusion The presumption that great part of the colonial
..., produce goes to Europe on account of the enemy, is
“double, strongly fortified by the frequency of those collusive
ºs, double voyages, the nature of which has been fully
- explained. r
Let it be admitted, that a real neutral speculator
in West Indian produce, might wish to buy in the
colony, as well as to sell in Europe; still there
– seems no adequate reason for his choosing to send
forward to the latter, at a considerable risk in the
event of detection, the identical produce which he
bought in the former, after it has been actually
landed in his own country; when he might commute
it, by sale or barter, for other produce of the same
description, which might be exported with perfect
security, and without the expence of perjury or
falsehood. -
On the other hand, supposing the property to
remain in the enemy planter, from whom it was
ostensibly purchased, the obstinate adherence to
these double voyages, and the artifices employed for
their protection are perfectly natural. To exchange
his produce in the American market, would be a
trust too delicate to be willingly reposed by the
planter in his neutralizing agent: and besides, the
identity of the goods shipped in the West Indies,
with those which shall be ultimately delivered to
himself or his consignee in Europe, must be essential
not only to his satisfaction and security ; but also to
the obtaining those abatements or privileges on the
87
importation into the mother country, to which the
produce of its own colonies are entitled. -
After all, let it not be supposed that the important
conclusions to which I reason, depend on the fact,
that the trade in question is carried on chiefly, or
in some degree, on account of our enemies. Were
the contrary conceded, very little, if any, deduction
need, on that score, be made from the sum of the
mischiefs here ascribed to the encroachments of the
neutral flag.
If the hostile colonies are supplied with all
necessary imports, and their produce finds its wa
to market, the enemy is effectually relieved from the
chief pressure of the war; even though both branches
of the trade should pass into foreign hands, in reality,
as well as in form : nor is this always, perhaps, the
least advantageous course.
Let it be supposed, that the neutral merchants
really buy on their own account, at Martinique
and the Havannah, the sugars which they sell at
The relief to
the enemy
from the
pressure of
our hostilities:
benefit derived
from colonial
trade.
Bourdeaux and at Cadiz. In that case, their in-
ducement is found in the hope of a commercial
profit, instead of a factor's commission ; and it
evidently depends on the average extent of that
profit, compared with the ordinary commission on
neutralization, whether the enemy is less advan-
tageously assisted in this mode, than the other.
Let the common commission, for instance, be
supposed to be 5 per cent.; then, if sugars bought
for IOOO dollars at the Havannah, nett, on an
average, Io;o dollars, clear of freight and all other
expences, in the market of Cadiz, it is indifferent
between the enemy and the neutral merchant,
whether the latter imports on his own account, or as
agent for a Spanish subject. The service done to
88
Trading
rofits less
than “neutral-
ization”
commission.
the individual enemy, and to the hostile state, is, in
both cases, exactly the same ; and so is the detriment
sustained by the adverse belligerent, against whom
the commerce of the colony was protected. -
Is it, then, likely, that neutrals trading on their
own account, would obtain a larger average profit,
than the amount of a neutralizing commission ?—
Rather, I conceive, the reverse : for it is the natural
and speedy effect of competition, in every branch of
trade, to reduce the average profits of the adventurers,
taken collectively, to the lowest rate at which any
competitor can well afford to prosecute the business;
and even below that level. More especially is this
the event, when the gains are very precarious, and
very unequally divided : for the gaming propensity,
induces men to give for chances in commerce, as
well as in the lottery, much more than they are
intrinsically worth.-Now, the enemy who exports
from the colony, and imports into the mother country,
produce of his own growth, paying a neutralizing
commission on the carriage, is a competitor with the
genuine neutral speculator in the same market, on
equal terms, the difference of that commission ex-
cepted ; and as the planter, in sending home his
own produce, looks to no mercantile gain on the
voyage, but merely to the remittance of his property,
the commission must soon become the measure of
the average profit to neutral importers in general;
and the gains of the speculator, will even have a
tendency to fall below, though they will not perma-
nently exceed, that standard. The commission will
also feel the depreciating effect of competition ; so
that this regulator will, itself, progressively decline;
but its fall will, at the same time, further depress
the speculator's profit, and in an equal degree.
89
If this reasoning, which seems to stand on the
plainest principles of commercial arithmetic, be just,
the profits of the genuine neutral merchants in his
trade, must at present be very low : for let it be
considered, that it has now been prosecuted by every
neutral nation, no less than twelve years ; a brief
interruption during the late peace excepted ; so that
competition has had ample time to work its natural
effects. The enemy, probably therefore, is a gainer
at present, rather than a loser, when delivered from
the necessity of being his own exporter and importer,
by a real sale to, and repurchase from, the neutral
merchant.
That this commerce, however conducted, is not a
very costly vehicle for the colonial produce of a bel-
ligerent inferior at sea, is manifest from a single and
highly important fact, to which I would next par-
ticularly call the reader's attention (L).
The produce of the West Indies sells cheaper at
present, clear of duties, in the ports of our enemies, than
in our own.”
Though the preceding statements and calculations
naturally lead to this result ; it will, perhaps, be
regarded with some astonishment. But the emo-
tions that it ought to excite, are rather those of
indignation and alarm.
(L) See Appendix.
* This statement also has reference to the month of August
last, since which period, I believe, the late decisions in our prize
courts have occasioned a material change. At that time, and for
many preceding months, it was generally a losing game to export
West India produce from this country to Amsterdam or Flanders,
even when the whole duty was drawn back; for the importer of
French and Spanish produce of a like description, could afford to
sell on cheaper terms; yet the latter had paid considerable duties
in the colonies it came from, which had not been drawn back.
Enemy re-
lieved from
exporting
colonial
produce.
90
Enemy can
trade in spite
of our fleet
Supremacy by
help of the
neutral flag.
Disastrous
effect on
British
colonial trade.
Depression in
British West
Indian trade.
We defend our colonies at a vast expence—we
maintain, at a still greater expence, an irresistible
navy; we chase the flag of every enemy from every
sea ; and at the same moment the hostile colonies
are able, from the superior safety and cheapness of
their new-found navigation, to undersell us in the
continental markets of Europe.
Where is the partial compensation now, that our
planters used to find, for the heavy burthens and
dangers of war 2 If the cost of their supplies were
enormously enhanced, if war taxes pressed them hard,
if freight and insurance were doubled or trebled, if
their interior defence became expensive as well as
laborious, and if they were sometimes invaded or
plundered by a hostile force, still their rivals and
enemies in the neighbouring islands were in no
capacity to mock at, or profit by, these disasters. On
the contrary, the superior pressure of the war upon
the hostile colonies, insured to our own, the benefit
of markets more than commonly advantageous.
While the benefit of the drawback gave them at
least equality with their rivals, in the foreign and
neutral markets of Europe, in regard to fiscal charges;
in other respects the differences were all in their
favour. The foreign sales, therefore, were highly
beneficial; and the home market, relieved by a
copious exportation from all temporary repletions,
gave them in its large and ever advancing prices,
some indemnity for the evils of the war.
By the present unprecedented and artificial state
of things this compensation has been narrowed, and
is likely to be totally lost. Much of the embarrass-
ment under which our West India merchants and
planters have laboured, and much of that silently
progressive ruin in our old colonies, the nature and
91
extent of which are too little known in England,
may be traced perhaps to this singular source. By
circumstances which it would be too digressive to
explain, the evil has been much retarded in its pro-
gress, and is only now beginning to operate with its
natural force ; but, unless the cause is removed, it
will soon be severely felt.
I am well informed, that the business of the sugar
refiner, the great customer of the West India mer-
chant, has, of late, been very unsuccessful. Instead
of obtaining a large annual profit as formerly, his
accounts for the last season have been wound up
with a serious loss.
A symptom more clearly indicatory than this of the
ill effects which I wish to expose cannot be required.
—From what sources result the chief gain of the sugar
refiner From an advance, pending his process, in
the prices of the raw, and, of course, of the refined
commodity ; and this is chiefly occasioned by an in-
crease in the difference of price between the home and
the foreign market, when that difference is favour-
able to exportation: for the foreign, in great measure
regulates the home, demand. When, therefore, the
price of sugar in the continental markets is progres-
sively declining in the proportion it bears to the
existing price in this country, which, of course, will
naturally happen when the supply from the foreign
colonies is progressively either enlarged or cheapened,
the British refiner will find, as he has lately done,
a loss instead of a profit on his business. The con-
sequences of such a progress, if continued, are not
less obvious than alarming.
-º-
It appears, then, on the whole, that our enemies summary of
92
enemy benefits
72°om 7262//ra/
assistance.—
Enemy
colonial com-
merce carried
cheaply and
safely,
Enemy
treasuries
Supplied
without cost
of defending
colonial trade.
Enemy
enabled to
use his own
transports for
projected
invasion of
England.
The author in
this paragraph
emphasises
the fact which
underlies the
whole ques-
tion of neutral
trade with
enemy colo-
nies : that it
is a benefit to
the enemy and
may therefore
be destroyed
in war.
carry on their colonial commerce under the neutral
flag, cheaply as well as safely; that they are enabled,
not only to elude our hostilities, but to rival our
merchants and planters, in the European markets ;
and that their comparative, as well as positive advan-
tages, are such, as to injure our manufacturers, and
threaten our colonies with ruin.
That the hostile treasuries are fed by the same
means with a copious stream of revenue, without any
apparent pressure on the subject; a revenue which
otherwise would be cut off by the war, or even
turned into our own coffers, is a most obvious and
vexatious consequence. Without the charge of
defending his colonies, or their trade, by a single
squadron or convoy, the enemy receives nearly all
the tribute from them, that they would yield under
the most expensive protection. -
Let it not be supposed, that even such produce
as is imported bona fide into neutral countries, and
sold there without re-shipment, fails to yield its
portion of revenue to the hostile state.
To prevent such a loss, our enemies have had
recourse to various expedients; but chiefly to those,
of either charging and receiving duties in the
colony, on the exportation of the produce from
thence ; or taking bonds from persons resident in
the mother country, in respect of every ship clearing
out for, or intended to carry produce from the
colonies, with condition either to land such produce
in a port of the mother country, or pay the duties
there.
Sometimes, in order to encourage the perform-
ance of engagements to import into the mother
country, which the proprietor, though a subject,
might, for greater safety, wish to violate, the bond
93
has been conditioned for payment of double ton-
nage or duties, in the event of the cargo being
landed in any foreign port.*
But Buonaparte, finding, I suppose, that the best
way of securing an importation into France, was
the actual previous payment of the whole French
import duties, appears now to have prescribed that
course. By custom-house certificates, found on
board a Gallo-American East Indiaman, from the
Isle of France, lately condemned in the Admiralty,
it appeared, that the proprietors had actually paid
all the French import duties in advance, in the
colony, and were, therefore, to be allowed to import
the cargo into Nantz, duty free. Yet this ship, as
usual, was ostensibly destined for New York.**
Of the Spanish treasure shipped from South
America, a great part may be reasonably regarded
as nett revenue passing on the king's account ; and
whatever wealth the new world pours in this or
any other form into his treasury, is, no doubt, an
immediate source of supply to the war-chest of
Buonaparte. We went to war with Spain for the
sake, in great measure, of preventing this evil, yet
suffer the encroachment of neutral commerce to
defeat that great object of the quarrel. We cannot
stop the subsidies on the Pyrennes, and if we are
to be prevented by the neutral flag from stopping
them on the Atlantic, our rupture with the court
of Madrid, however just, seems to have been im-
provident and useless. His Spanish majesty is not
even at a loss to convert into specie, and draw over
* Cases of the Wrow Margaretta, Marcusson; Speculation, Roelofs,
&c., at the Cockpit, I 801.
* Case of the Commerce, Park, master, at the Admiralty,
August, I 805.
French import
duties paid
although
vessel osten-
sibly destined
to New York.
Protection of
neutral flag
to Spanish
COIIllner Ce.
94
Transfer of
enemy mer-
chantmen to
neutrals.
to Europe, those more cumbrous subjects of
revenue, which he receives beyond the Atlantic ;
or to commute them there, in such a manner as
may serve for the support of the colonial govern-
ment, by the aid of his neutral merchants. To a
single commercial house, he sold, or pretended to
sell, all the tobacco in the royal warehouses in three
of his South American provinces, for payment in
dollars, or in such goods as could easily and
advantageously be converted into specie in that
country.* -
After attending to these facts, it will not be easy
to discover in what way the hostile governments
feel the pressure of the war, in regard to their
colonial commerce.
The private merchants, even, scarcely seem to
sustain any serious loss, except that their ships are
unemployed. But transfers, real or ostensible, to
neutrals, have, for the most part, obviated this in-
convenience : and the government itself has, no
doubt, been a liberal freighter, or purchaser, of
such disengaged native bottoms as were fits for the
invasion of England ; a service for which our
neutral friends have obligingly set them at leisure.
The usurper, therefore, might perhaps, be as popu-
lar among his merchants, as he seems anxious to
be, if it were not for those naval blockades, against
which he is incessantly raving. If the British courts
of admiralty would in that respect obligingly adopt
his new code of maritime law, the commerce of
France might cease to labour under any uneasy
reStra1nt.
Bonaparte's
** new code
of maritime
law.
3 J.
* Case of the Anna Catharina, 4. Robinson, Io'7. See
Appendix (M).
-º-
95
Hitherto, we have considered the abuse of neutral
rights, chiefly, as a protection unduly imparted to
our enemies, in respect of their colonial interests,
their trade, and commercial revenues.4|
Were this great frustration of our maritime efforts
in the war, the only prejudice we sustain, the evil
would be sufficiently great. It would still be a
wrong highly dangerous to our future safety, and
adverse to the best hopes of our allies ; for to
protect the financial means of Buonaparte and his
confederates, is to nourish a monster that threatens
desolation, not to England only, but to Europe.
The mischief, however, by no means terminates
in sustaining the French exchequer; it strikes in
various directions at the very vitals of our national
security; it tends powerfully and directly to the
depression of our maritime power, and to the
exaltation of the navy of France.
Let it be considered, in the first place, that by
this licentious use of the neutral flags, the enemy
iſ EDITOR’s NOTE. —In connection with this statement it is interesting to
turn to the Declaration of the Regent of April 21, 1912, dealing with the
repeal of the Orders in Council of 1807, which also refers to Bonaparte's
new code of maritime law. He demanded the admission of the following
principles: that the goods of an enemy, carried under a neutral flag, shall
be treated as neutral: that neutral property under the flag of an enemy
shall be treated as hostile : that arms and warlike stores alone (to the
exclusion of ship-timber and other articles of naval equipment) shall be
regarded as contraband of war: and that no ports shall be considered as
lawfully blockaded, except such as are invested and besieged, in the pre-
Sumption of their being taken, and into which a merchant ship cannot
enter without danger. “Such are the demands by which Great Britain is
summoned to submit to the abandonment of its most ancient, essential,
and undoubted maritime rights. Such is the code by which France hopes,
under the cover of the neutral flag, to render her commerce unassailable
by sea.” It was, of course, not, strictly speaking, a “new code,” for the
Second Armed Neutrality of 1800 strove to force on England the adoption
of the principles which the First, in 1780, had attempted to insist on. The
Treaty with Russia, June 5, 1801, had, however, practically nullified
Bonaparte's efforts to destroy our maritime power by the compulsory
adoption of this code; for Russia renounced the claim, which perimeates all
maritime history, that the neutral flag should protect enemy property.
Abuse of the
neutral flag
not only
frustrates our
maritime
efforts, but
liberates
Bonaparte's
navy for
concentrated
offensive
operations;
96
while the
British navy
is dispersed
over the
globe.
This furthers
Bonaparte's
ambition to
make the
allies’ navies
supreme.
is able to employ his whole military marine, in
purposes of offensive war.
He is not obliged to maintain a squadron, or
a ship, for the defence of his colonial ports ; nor
does he, in fact, station so much as a frigate, in the
East or West Indies, except for the purpose of
cruizing against our commerce. The numerous and
frequent detachments of the convoy service, are also
totally saved. • .
While a great dispersion of his maritime force,
and the consequent risk of its defeat and capture, in
detail, are thus avoided, he obtains by its concentra-
tion near the seat of empire a most formidable
advantage ; since the British navy has to guard our
colonies, and our commerce, in all its branches, and
is, consequently, widely dispersed in every quarter
of the globe.
During the last war, such considerations might
seem of little moment, because the united marine
of France and her confederates, was reduced to so
very feeble a state, and so little effort was made
for its restoration, that no advantage of this kind
could raise it from contempt ; much less render it
a subject of serious apprehension.
But now, the case is widely different. The re-
establishment of the French navy, and those of
Spain and Holland, is a work on which Buonaparte
is not only eagerly intent; but in which he has
already made a very alarming progress. Already,
the great inferiority of the confederates, in point
of actual force, has begun to disappear ; and so
vast are their means of naval structure and equip-
ment, that except through the precarious diversion
of the approaching continental war, we cannot long
expect to be superior to their united navies in the
97
number of our ships, though we may hope long to
be so in the skill and bravery of our seamen.*
On our own side, also, I admit, improvement
is to be expected ; for our Admiralty is happily
placed under the auspices of a most able and active
minister, who is indefatigable in his efforts for the
increase of the navy; and whose comprehensive
knowledge of the whole business of the marine
department, in all its ramifications, peculiarly well
qualifies him for that momentous work.
The venerable age of Lord Barham has been
supposed to be a drawback on his qualifications for
office, by those only who are ignorant of his still
energetic powers, both of body and mind. It may
even be truly said, that the lapse of years, during
which his knowledge of the civil business of the
In praise of
Lord Barham
at the
Admiralty.
Admiralty had been matured by observation and -
experience, has made him the fitter for his present
most arduous station. He resembles the old, but
sound and healthy oak, which time has qualified
for the most important uses of our navy, by en-
larging its girth and its dimensions, without having
at all impaired its strength or elasticity.
In calculating, therefore, on the effect of the
enemy's exertions, I allow for every possible counter-
action in our own. I suppose that not one slip in
our public dockyards, or in those of the merchants,
which is fit to receive the keel of a man-of-war,
* It is right to remind the reader that this passage is reprinted
from an edition published before the battle of Trafalgar; but
let not even that glorious event render us indifferent to con-
siderations like these. It is not enough in the present times,
that our enemy is in all points greatly inferior at sea; while that
inferiority, on the degree of which our national safety perhaps
depends, can be encreased, and rendered more hopeless.
H
Our own
dockyards
fully occupied,
98
Scarcity of
naval timber.
Bonaparte
commands
larger supplies
of timber.
Ship-building
at Antwerp.
Naval stores
in Baltic pur-
chased by
produce of
enemy colo-
nies conveyed
in neutral
vessels.
will be left unoccupied by the Admiralty, except
from the want of means to employ it. But there
are limits to the power of rapidly increasing in our
navy, of which the public at large is not perhaps
fully aware. All the knowledge and activity of
Lord Barham cannot immediately replenish our
magazines with certain materials necessary in the
construction of large ships, of which there is a great
and increasing scarcity, not only in England, but in
every other maritime country; and which nature
can but slowly reproduce.
Buonaparte, from the immense extent of those
European regions, which are now either placed under
his yoke, or subjected to his irresistible influence,
and from the effects of that commerce, falsely called
neutral, which we fatally tolerate, is well supplied
with the largest and best timber, and with abundance
of all other materials for ship building, especially in
his northern ports—Witness the grand scale of his
preparations at Antwerp ; where he has at this
moment on the stocks, eight ships of the line, and
many of inferior dimensions. In this new port, the
destined rival of Brest and Toulon, he is rapidly
forming large naval magazines, which the interior
navigation alone may very copiously supply ; and
which he purchases in the countries of the North,
chiefly with the wine and brandy of France, and
with the produce of the hostile colonies, carried
in neutral bottoms. I am well informed that the
stores which he purchased in the Baltic alone, in
the year 1804, amounted in value to eighty millions
of livres. In short, he is, conformably to the boast
already quoted, employing all the resources of his
power and his policy for the augmentation of his
marine ; and has not incredibly declared, that before
99
the commencement of a new year, he would add
thirty line-of-battle ships to the navy of France.
It is not easy to suppose, that the utmost exertions
of our government can enable us to keep pace in
the multiplication of ships, with all our united
enemies; especially while they are enabled, by the
neutralizing system, to preserve all the men-of-war
they progressively acquire ; keeping them safely in
port, until deemed numerous enough to enter on
offensive operations. Even when that critical period
arrives, they will, no doubt, still choose to commit
their commerce to the safe keeping of their neutral
friends; and not hoist again their mercantile flags, till
they have attempted to overpower, by concentrated
attacks, the scattered navy of England.
There is, however, another grand requisite of
naval war, not less essential than ships ; and that is,
a competent body of seamen to man them.
Here also the increase of our navy beyond ordin-
ary bounds, is found to be no easy work; and here
Buonaparte, happily for us, is not less at a loss;
but that pestilent and copious source of evils, the
abuse of neutral rights, in this most momentous
point also, largely assists our enemies, and impairs
our maritime strength.
The worst consequence, perhaps, of the inde-
pendence and growing commerce of America is the
seduction of our seamen. We hear continually of
clamours in that country, on the score of its sailors
being pressed at sea by our frigates. But how have
these sailors become subjects of the United States ?
By engaging in their merchant service during the
last or the present war; or at most by obtaining
that formal naturalization which they are intitled to
receive by law after they have sailed two years from
Difficulty in
supplying
seamen for
new ships on
|both sides.
Impressment
of British
Sailors on
American
ships (which
afterwards
became one
of the causes
of the war
with the
United States
in 1812).
The counter
100
an American port, but the fictitious testimonials of
which are to be bought the moment they land in
the country, and for a price contemptible even in
the estimate, of a common sailor (N). If those who
by birth, and by residence and employment, prior
to 1793 $, were confessedly British, ought still to be
regarded as his Majesty's subjects, a very consider-
able part of the navigators of American ships are
such at this moment ; though, unfortunately, they
are not easily distinguishable from genuine American
seamen." '
This is a growing, as well as a tremendous evil;
the full consideration of which would lead me too
far from the main object of these sheets. I must
confine myself to its immediate connection with the
abuse of neutral rights; and content myself with
merely hinting in regard to its more comprehensive
relations, that it is a subject on which our municipal
code is extremely defective.
The unity of language, and the close affinity of
manners, between English and American seamen,
complaint:
British sailors
engaged on
American
ships con-
verted into
American
citizens.
§ probably
1783 : [see
Editor's
Note.]
(N) See Appendix.
* EDITOR’s NOTE.-Although the impressment of sailors on American
ships was given a very prominent place in the President's Message to
Congress just before the declaration of war by the United States in 1812,
the correspondence on the subject, which began as far back as 1792,
was couched on both sides in a most conciliatory spirit. It seems to have
been regarded by Jefferson rather as “a peculiar custom’ of Great Britain,
which had been too largely exercised, and which, therefore, required to
be restrained within proper bounds. The position at first taken up was
that as to three classes there could be no difficulty : Z. native citizens of the
United States: £7, citizens, wherever born, who were such at the Treaty
of Peace; and iii, foreigners. But it was recognised that in regard to
British-born subjects some “pretence of right” to impress them could be
advanced, and attempts were made to adjust the dispute by protecting from
impressment British subjects who had been naturalized in the United
States, and those who had served three years on American ships. By the
use of the word “confessedly” it would appear that the author was
referring to this admission ; and it is probable that “ 1793.” is a misprint
for “ 1783,” the date of the Treaty of Peace.
*
101
are the strong inducements with our sailors, for
preferring the service of that country, to any other
foreign employment ; or, to speak more correctly,
these circumstances remove from the American
service, in the minds of our sailors, those subjects
of aversion which they find in other foreign ships ;
and which formerly counteracted, effectually, the
general motives to desert from, or avoid, the naval
service of their country.
What these motives are, I need not explain.
They are strong, and not easy to be removed ;
though they might perhaps be palliated, by altera-
tions in our naval system : but the more difficult
it is to remove this dangerous propensity in our
seamen ; the more mischievous, obviously, is any
new combination, which increases the disposition
itself, or facilitates its indulgence. If we cannot
remove the general causes of predilection for the
American service, or the difficulty of detecting and
reclaiming British seamen when engaged in it; it
is, therefore, the more unwise, to allow the mer-
chants of that country, and other neutrals, to
encroach on our maritime rights in time of war;
because we thereby greatly, and suddenly, increase
their demand for mariners in general ; and enlarge
their means, as well as their motives, for seducing
the sailors of Great Britain.
There is no way of ascertaining how many sea-
men were in the employ of the powers at present
neutral, at the breaking out of the last war ; and
how many at this time navigate under their flags ;
but could these data be obtained, I doubt not, it
would appear, that they have been multiplied at
least tenfold ; * and to the increase, whatever be
* The ships and vessels of East Friesland, of Ioo tons burthen,
Tendency of
sailors to pre-
fer American
service.
102
Neutral
carriers being
so largely
employed, we
are prejudiced
by their large
demands for
sailors.
its amount, the relaxation of our belligerent rights
has, certainly, in a great degree, contributed.
The legal and ordinary enlargement of neutral
commerce, in time of war, would, indeed, have
added greatly to the stock of American, as well as
of Prussian, and Danish mariners ; but when the
great magnitude and value of the colonial trade
are considered, and the many branches of naviga-
tion that, directly or indirectly, spring from it; the
admission into that commerce may, perhaps, be
fairly estimated to have given to those neutral
nations in general, but pre-eminently to America,
two thirds of the whole actual increase in their
shipping. This extensive trade, it may further be
observed, has, in the medium length of the voyages,
and other known circumstances, peculiar attractions
for our seamen ; and, what is still more important,
it enables the merchant, by the richness of the
cargoes in general, to earn a high neutralizing
freight, and consequently to offer a tempting rate
of wages. -
It is truly vexatious to reflect, that, by this
abdication of our belligerent rights, we not only
give up the best means of annoying the enemy,
but raise up, at the same time, a crowd of danger-
ous rivals for the seduction of our sailors, and put
bribes into their hands for the purpose. We not
only allow the trade of the hostile colonies to pass
safely, in derision of our important warfare, but to
be carried on by the mariners of Great Britain.
The neutral
carrying trade
largely assisted
by British
Sailors.
and upwards, prior to the present war, were estimated at I 50 ;
now they are supposed greatly to exceed 2000. In these,
however, I presume, that few, if any, English mariners are
engaged.
103
This illegitimate and noxious navigation, there-
fore, is nourished with the life-blood of our
navy.
Here again our views would be very inadequate,
if they were not extended from our own direct
losses, to the correspondent gains of the enemy.
The hostile navies, are more easily manned,
through the same injurious cause which defrauds
our own of its seamen. Having no commercial
marine, their sailors can find no native employment,
privateering excepted, but in the public service ;
and it is notorious that very few of them are found
on board neutral vessels.” The capacity therefore
of Buonaparte and his confederates to man their
fleets, must, in some points, be greater than if they
were our equals at sea. -
In former wars, our prisons were generally
crowded with the mariners of France and Spain,
taken for the most part on board of their merchant-
men ; but now, this drawback on their maritime
resources, is wholly avoided. Except at the com-
mencement of hostilities, we make not a single
prisoner of war in any commercial bottom. As to
their ships of war, they are so rarely to be found
out of port, except when making depredations on
our commerce, in the absence of any protecting
force, that if the present system continues much
longer, the British seamen, prisoners of war in
* This is a striking fact, well known to those who are con-
versant with the business of the prize courts. In the colonial
trade especially, the chief subject of these remarks, it is rare to
find among the private mariners on board a prize who happens
to be examined, a single Frenchman or a Spaniard ; though a
large proportion of those who are taken on board American
vessels, avow themselves to have been by birth, and by domicil
anterior to the war, subjects of Great Britain.
Bonaparte
had more
men for his
navy, having
no merchant-
Iſleil,
104
hostile countries, will far outnumber their enemies
of the same description, in our hands.
In the East and West Indies, the effects of these
advantages, on the side of the enemy, begin already
to be severely felt. Buonaparte has often, and not
untruly, boasted, that the injury done to our com-
merce by the privateers of the Isle of France, of
Martinique, and Guadaloupe, has been extremely
great. He might also have praised his good allies
of Cuba, for equal activity. The little port of
Baracoa alone, on the east end of that island, has
no less than twelve privateers, who are continually
annoying our trade in the Windward Passage.*
Curacoa also and the harbour of Santo Domingo,
are become most troublesome neighbours to Jamaica.
Can we wonder that the colonial ports should
furnish so many cruizers It will be a much
greater cause of surprise, if they should not soon be
multiplied tenfold. Nothing but the small degree
of encouragement given by the Spanish government
to offensive enterprises during the last war, and the
known state of the French colonies at that period,
could have saved our merchants and underwriters
from sooner smarting in this way very severely,
through our complaisance to the neutral flag.
Let it be considered, that the Creole seamen
domiciled in the hostile colonies, who are employed
in time of peace in what may be called the interior
navigation of the West Indies, and the mariners of
the isles of France and Bourbon, who usually pursue
their occupation in the oriental seas, can now have
no civil employment in those regions under their
Privateers
furnished
by enemy
colonies ;
* See an authentic account of their particular descriptions
and force in the London Papers of September 17th, 1805. [See
Editor’s App. V.]
105
own flags; for the intercourse between the different
colonies of the same state, as well as the colonial
traffic with neighbouring foreigners, is, like the
intercourse with Europe, carried on wholly in neutral
vessels.
These seamen, though pretty numerous, espe-
cially in the Spanish settlements, very rarely engage
under a foreign commercial flag; of which their
religious prejudices as bigotted papists, and their
personal insecurity, as being mostly of African
extraction, are probably the principal causes. The
entering on board privateers therefore, for the pur-
pose of cruising against our commerce in the seas
which they usually navigate, is with them a necessary,
as well as lucrative occupation. -
If it be asked, how are a sufficient number of
vessels of war, and the means of equipping them,
procured in the colonial ports of the enemy
answer, that many of our merchant ships, which they
take, are easily adapted to the privateering service ;
and that though we have not yet allowed neutrals to
carry naval stores to the enemy, a sufficient quantity
of them are clandestinely introduced by those
obliging friends, under cover of their general trade.
This is another collateral ill effect of our fatal
indulgence to neutral commerce; for it is easy to
conceal, under a general cargo of permitted goods,
small parcels of a contraband kind ; and so extensive
is the trade of the colonies, in proportion to their
demand of naval stores, that contributions from each
neutral ship that arrives, small enough to pass as
part of her own provision for the voyage, will make
up an adequate total.
But so great has been the audacity of the neutral
merchants, that they have actually sent ships con-
manned
by Creole
Sea,I\} eI].
The question
of making
naval stores
contraband
of war was
always a sub-
ject of great
controversy.
Ships ready
to receive
106
guns supplied
by neutrals
held not to be
contraband.
Art. xviii, of
the Jay Treaty,
1794.
British policy
vests prizes in
captors.
Prejudicial
reduction of
number of .
prizes and
therefore of
prize-money
resulting from
the neutral
trade.
structed solely for the purposes of war, and pierced
for the reception of guns, to the Havannah, and
other ports of our enemies, for sale ; and though it
may astonish the reader, American claims for such
vessels, when taken on the voyage, have been
pertinaciously prosecuted, not only in our vice ad-
miralty courts, but afterwards in the court of appeals.”
The argument was, that, though by our treaty with
America, the materials of naval architecture are
prohibited goods, yet ships ready built, not being
expressly enumerated in the contraband catalogue,
might be lawfully sent to our enemies, whether for
carriage or sale.
Let us next regard this spurious neutral commerce
in another view, as a great discouragement to our
naval service. -
The wise, liberal, and efficacious policy of this
country, has been, to vest the property of maritime
prizes wholly in the captors ; and hence, much of
the vigilance, activity, and enterprize, that have so
long characterized the British navy.
Let us give full credit to our gallant officers,
for that disinterested patriotism, and that love of
glory, which ought to be the main springs of
military character, and which they certainly possess
in a most eminent degree. But it would be roman-
tic and absurd, to suppose that they do not feel
the value of that additional encouragement, which
his Majesty and the legislature hold out to them, in
giving them the benefit of the captures they make.
What else is to enable the veteran naval officer,
to enjoy in the evening of his life, the comforts
of an easy income ; the father to provide for his
Advantages of
prize-money.
* Case of the Brutus, Rutherford, master, at the Cockpit, July,
18o3. - :
107
children ; or the husband for an affectionate wife,
who, from the risques he runs in the service of
his country, is peculiarly likely to survive him
By what other means, can a victorious admiral, when
raised, as a reward of his illustrious actions, to civil
and hereditary honours, hope to support his well
earned rank, and provide for an ennobled posterity ?
The pension he may obtain will be temporary, and
scarcely adequate even to his own support, in his
new and elevated station. It is from the enemies
of his country, therefore, that he hopes to wrest
the means of comfortably sustaining those honours,
which he has gained at their expence.
As to the common seamen and mariners, the
natural motives of dislike to the naval service, are
in their breasts far more effectually combated by
the hope of prize money, than by all the other
inducements that are or can be proposed to them.
The nautical character is peculiarly of a kind to be
influenced by such dazzling, but precarious pros-
pects. They reason, however, and calculate on the
chances and the value of success ; witness the
proverbial remark, that a Spanish war is the best
means of manning our navy.
Never, surely, was the encouragement of our
naval service more important than at the present
period ; and never were the rewards of that service
more meritoriously or gloriously earned.—Yet what
are now the rational hopes of our seamen, in regard
to the benefit of prizes On whatever station they
may be placed, and whatever sea they may be
crossing, they look out in vain for any subject of
safe and uncontested capture.
Are they sent to the East or West Indies 2
These, though sickly, used to be lucrative stations;
Prospect of
prize-money
OVer CO mºleS
objection to
naval service.
108
All cargoes
from enemy
colonies
carried under
neutral flag.
The neutral
flag pervades
the seas.
especially in a war with Spain : but now the rich
exports of the hostile colonies present to them only
the cup of Tantalus. They see the same valuable
cargoes passing continually under their sterns,
which used formerly to make the fortunes of the
captors; but the ensigns of neutrality now wave
over them all, and prohibit a seizure.
Do they, in concert with the land forces, attack
and conquer a hostile island, the reward of their
successful valour is still wrested from them in the
same vexatious way. They find none but neutral
flags in the harbour, and none but property alleged
to be neutral afloat.* . •
In short, except a small privateer or two, of little
more value than may suffice to pay the charges of
condemnation and sale, the richest seas of the globe,
though bordered and thickly studded with the most
flourishing colonies of our enemies, have no safe
booty to yield to the seamen of the British navy.
. It is painful to reflect, that these brave men lose
the ancient fruits of distant service, while enduring
more than its ordinary hardships. In the West
Indies, particularly, they suffer far more by the
ravages of disease, than when the Spanish galleons,
and the convoys from the French Antilles, consoled
them and rallied their spirits. Then too, victory,
either in possession or prospect, often enlivened
that languid service, and reanimated the sickly
crews ; but now, they meet no enemy worthy of
their valour. Their only, but most disheartening
foes, are the fever and the neutral flag.
If we look nearer home, the reverse, in the
* The merchantmen taken by Lord St. Vincent and Sir
Charles Grey, at Martinique and Guadaloupe, were all of this
description, and, with their cargoes, were ultimately restored.
109
situation of our seamen, is not less singular or
discouraging. The Mediterranean, the Bay of
Biscay, the Channel, the German Ocean, are covered
with the exports of Spain, Holland, and France,
and their colonies, and with shipping bound to
their ports ; but where are the prizes of war
Our cruizers search for them in vain, even on the
hostile coasts –for even there, vessels, impudently
called neutral, conduct, for the most part, that
domestic intercourse between different parts of the
same hostile kingdom, which is called the coasting
trade. r -
The examination of our disguised enemies at
sea is become every where, in general, a fruitless
task; since they have grown far too expert to be
detected, by such a scrutiny as can be made by a
visiting officer on shipboard. Yet, if they are sent
into port, it is at the captor's peril. Should a
commanding officer, relying on the notoriety of
some fraudulent practice, or on private information,
venture to take that course, he and his shipmates
well know the difficulties they will have to en-
counter in obtaining a condemnation ; and that after
a tedious contest in the original and appellate juris–
diction, they are likely at last to sit down with the
loss of their expences and costs. -
The consequence naturally is, that but a very few
of those pseudoneutrals, which are met with and
examined at sea, are brought in for judicial enquiry;
and that a still smaller proportion of them, are
prosecuted as prize ; though the law officers of the
crown in the Admiralty, in a great majority of the
cases which they examine, have scarcely a doubt that
the property is hostile. They know by experience
the fraudulent nature of the papers ; but they know
The Order in
Council of
January 1807
struck at
neutral par-
ticipation in
the enemy
coasting trade.
As to the
effect of the
Order on
American
vessels in
the Mediter-
ranean, Jéé
Editor’s Note,
p. 79.
The costs of
Prize Court
proceedings
falling on the
captors if
unsuccessful,
a further
protection
afforded to
neutral
carriers from
seizure.
Fraudulent
papers make
II.0
failure only
too probable
[see Editor's
Note, p. 47.]
Condemna-
tions long
delayed and
Tare,
Even seizures
for breach of
blockade con-
tested.
also the artful and elaborate perjury by which those
papers will be supported, and which, however un-
satisfactory out of court, it will be impossible judicially
to resist.—Even when discoveries are made, such
as will clearly justify a prosecution, the practice
of letting in explanatory affidavits on the part of
claimants, for the most part secures an ultimate
acquittal, and frustrates the hopes of the captors.
At the best, as every bottom, and every bale of
goods, is now infallibly claimed by the neutralizing
agents, and every claim, however clear the detection
of its falshood may be, is pertinaciously prosecuted,
the rare event of a final condemnation can only
be obtained through the medium of a long contest at
law—an evil peculiarly unpleasant to the sanguine
mind of a sailor. It may be safely affirmed, that one
prize taken, as in former wars, under the colours
of an enemy, and therefore promptly condemned
and distributed without litigation, would do more
towards a war, barren of gain, is peculiarly pro-
ductive of the encouragement of our navy, than
five prizes of equal value, tardily, and with difficulty
secured, as at present, by the detection of neutral
1mpostures.
Almost the only class of captures, on which our
seamen can now with any safety rely, are those
which are founded on the breach of a blockade.
Even those, however, are rarely adjudged without
an obstinate litigation in the Admiralty, if not also
in the superior court. But the ordinary value of
such prizes is small ; and, on the whole, they are so
far from making any amends to our navy at large
for the loss of its legitimate prey in the colonial trade,
that they are a very inadequate recompence to
the squadrons employed in the blockades, for the
III
extraordinary severity of that service. Here also,
hardships, and privations, to our gallant defenders.
These discouragements have been very patiently
borne : our loyal and generous tars well know the
difficulties of their country, and are content to defend
it under every disadvantage that the exigencies of
the times may impose on them. But if the present
commerce with the hostile colonies be plainly such as
we have a right to interdict, and if the great national
considerations before suggested concur in calling for
its prohibition, the interests of our gallant officers
and seamen may most reasonably fortify the call.
—They ought not, without a clear obligation of
national duty, or a plain and strong preponderance
of public good, to be shut out from their ancient
advantages, to be jostled by every neutral in the
chase of their lawful game, and to sit down in
poverty at the next peace, after sustaining, during
two long wars, the dominion of the sea, against three
of the wealthiest of commercial nations.
Far different is the case with the navy of our
enemies.
The field of capture to them is entirely open, and
as fertile as British commerce can make it. What-
ever enterprise or courage they display, has the
promise of a brilliant reward ; and even when
flying from the name of Nelson, with nearly double
his force, they could stumble on and seize a rich
West India convoy in their way.—Unless their
cowardly haste really led them to destroy the booty,
they may boast, perhaps, of commercial spoils more
valuable than the hero, who intrepidly pursued them,
has met with in both his wars.”
* Alas! on the very day when these sheets first met the eye of
the public, that illustrious character ceased to have any interest
The case of the
sailors fortifies
the general
argument.
The enemy
sailors have
far more
lucrative
employment
on account of
the number
of British
merchantmen
at Sea.
Referring to
the capture
by Villeneuve
of fourteen
British mer-
chantmen off
Antigua, on
The death of
Nelson.
112
June 8, 1805,
while Nelson
was chasing
him across the
Atlantic to the
West Indies.
If France persists in her new system, if she does
not again quite abandon the sea to us, this strange
and most unnatural contrast will have serious effects.
Our navy will still be loyal and active, but the
difficulty of adding to its force will be formidably
increased ; while the enemy, when he begins in
earnest to assail our commerce, will be powerfully
assisted in manning his ships, by the prospect of lucra-
tive captures. The sea abounds with adventurers, who
have no settled national character, and these men, in
general, will naturally flock to his standard.
Already the injurious influence of this cause in one
species of maritime war, is very visible.
From the days of Elizabeth to the present time,
much has always been done to the annoyance of our
commercial enemies by the enterprize of private
subjects. Our own commerce, at the same time, has
derived no inconsiderable, though an accidental
protection, from the same source ; since the hostile
cruizers have been kept in check, or taken, and our
merchantmen, when captured, often rescued from the
enemy, by our private ships of war.
But the unparalleled licence of the neutral flag, has
so discouraged privateering, that the practice of it is
nearly extinguished. It may be safely affirmed, that
in any war with Spain, prior to the last, one of our
vice-admiralty courts alone, could have produced a
longer list of commissions, taken out, not for armed
merchantmen, but for efficient privateers, than all
those judicatures, and the High Court of Admiralty
together, can now collectively furnish. The decline
of this cheap and useful, though inferior, species of
marine, is so natural an effect of the great surrender
Decline
of British
privateering
resulting
from abuse of
neutral flag;
which enemy
privateering
IIl Crea.SéS.
in their subject; but the circumstances in which he is known to
have died, strikingly confirm these reflections. -
113
which has been made of our belligerent rights, that
the only ground of surprise is, to find a single cruizer
still in commission. Few though they now are, and
very inconsiderable in force, their owners can only
be influenced by that excessive spirit of adventure,
which will sometimes prompt men to play the most
disadvantageous and ruinous game.
The enemy, on the other hand, abounds, as has
been already noticed, in this irregular species of
force. -
In no former war, perhaps, were so many privateers
fitted out from the colonies of France and Spain as
now ; and their number is daily increasing ; for,
not only the mariners of those colonies, but all the
freebooters in their neighbourhood, are easily induced
to man them. They are, in general, very small ; but
the fitter on that account, in the West India seas,
and in the narrow channels of the Antilles, to escape
from the pursuit of our frigates; nor are they the
less able to seize on our merchantmen ; who, having
now nothing better than an escape, to expect from
the expence of carrying guns, and a letter of marque,
are generally quite defenceless. The navigation of
those seas was, perhaps, never so dangerous to
British merchantmen sailing without convoy, as at
present ; and even our packets, are sometimes taken
by French privateers, on their passage from island to
island.
The catalogue of evils produced by the same
mischievous cause, might be still further enlarged.
I might shew in it a powerful inducement to that
selfish neutrality, by which one, at least, of the con-
tinental states, has enhanced the common danger of
Europe. The vain glory, and the popularity, attendant
on a vast, though visionary, enlargement of commerce,
I
Enemy
colonial
privateers.
Referring to
Prussia which
refused to
join the
coalition
against
Bonaparte,
114
may naturally have charms for a monarch not
ambitious of more solid renown.
I might also notice the great discouragement given
to various important branches of our own exterior
commerce ; and, above all, might insist on the
permanent detriment likely to be sustained by our
commercial marine. The forced artificial growth of
neutral shipping, both supposititious and real, will,
no doubt, shrink back again, in great measure, at a
peace ; but will not be entirely lost. In America,
especially, the vast excrescence is daily absorbed into,
and enlarges the natural body, which, in various quar-
ters, is peculiarly likely to displace, by its extended
dimensions, the maritime interests of England.
Where is the political providence, which dictated
that wise measure, the Register Act of Lord Liver-
pool P He justly called the Navigation Act, “a
“noble strain of commercial policy, and one which
“alone had fortunately outweighed all our national
“follies and extravagancies.” Aſ Though no indis-
criminate admirer of his lordship's commercial prin-
but whose
neutrality
was doubtful.
The Register
Act of 1786,
26 Geo. III,
c. 60, by
which the
registration of
British ships
was first put
on a system-
atic basis.
§ written
in 1757.
† see p. Io.
* Discourse on the Conduct of the Government of Great
Britain in respect to Neutral Nations.;
* EDITOR’s NOTE.-Speaking broadly, the two points of the new policy
which were antagonistic to the Navigation Act were: the admission of
neutral ships to British ports, and the enrolment of foreign sailors in the
crews of British merchantmen. The Act of Navigation of 1660, 12 Car.
II, c. 18, “for the Encouraging and Increasing of Shipping and Navi-
gation,” was based on the Commonwealth Act of 1651. Its first and
grand object seems to have been the Alantation 7%rade. For securing this
to the Mother Country, it was ordained that no goods or commodities
should be imported into, or exported out of, any lands, islands, planta-
tions, or territories, to His Majesty belonging, or in his possession, in
Asia, Africa, or America, in any other ship or vessel, but in such ships
or vessels as do truly, and without fraud, belong only to the people of
England or Ireland, the dominion of Wales, or town of Berwick-upon-
Tweed, or are of the build of, and belonging to, any of the said lands,
islands, plantations, or territories, as proprietors and right owners thereof,
and whereof the master, and three fourths of the mariners, at least are
English, upon pain of forfeiture. The condition as to the nationality of
115
ciples, I do him the justice to say, that the act
known by his name, was an essential and well-timed
support to the great law he justly celebrates ; and
the best preventative that human ingenuity could
have devised, of that decay, with which our navigation
was threatened by the independency of America.
But vain was this and every other effort to guard
our maritime interests by law, if, by a surrender of
our belligerent rights, the carrying trade of the globe
is to be thrown into the hands of our rivals ; and a
hot-bed made for the navigation of America, at the
cost of the British navy. -
In the contemplation, however, of those nearer
and more fatal consequences, the utter frustration of
our hostilities against the commerce and revenue of
France, and the danger of losing our superiority at
sea, during this momentous contest, all minor and
distant evils lose their terrors. I will, therefore,
Search no further into the extent of this baneful and
prolific mischief.
2. Of the Remedy for these Evils, and the Right of
applying it.
For that grand evil, which it is my main object
to consider, and which is one great source of all the
rest, the remedy is sufficiently obvious.
the master and three fourths of the crew was imposed in the other parts
of the Act which related to the European trade, and to the Asia, Africa
and America trade. By the 13 & 14 Car. II, c. 4, s. 6, it was provided
that any of His Majesty’s subjects of England, Ireland, or the Plantations
were “to be accounted English”; and the better opinion was that the
subjects of Scotland were also included. Liberty to employ foreign
seamen was always taken during war: as in 1740, 1755, 1779, and in
the French wars (Reeves, History of the Law of Navigation).
As to the
development
of the ship-
ping of the
United States
see Editor's
Note, p. 79.
II.
The suggested
A'emzedy, and
the Right to
azail our-
selves of it.
116
Neutral carry-
ing trade the
result of our
concessions,
commencing
in I794.
The author
suggests their
withdrawal.
Then our
Supremacy at
sea would
meet its legiti-
mate reward ;
for the enemy
would have
to sail under
his own flag,
and his fleet
be obliged to
protect his
merchantmen.
The “circuit-
ous voyages"
would be
easily dis-
coverable;
and the
neutral flag,
ceasing to be
a protection,
would dis-
appear.
If neutrals have no right, but through our own
gratuitous concession, to carry on the colonial trade
of our enemies, we may, after a reasonable notice,
withdraw that ruinous indulgence ; and, meantime,
hold those who claim the benefit of it, to a strict
compliance with its terms. If, after the revocation
of the licence, the commerce shall be still continued,
we may justifiably punish the violators of our
belligerent rights, by the seizure and confiscation of
such ships as shall be found engaged in the offence,
together with their cargoes. -
That this is an allowable course, will not be dis–
puted, by those who admit the trade to be illegal.
It is the present mode of proceeding, against such
neutrals as are detected in voyages still held to be
prohibited ; and has, in their case, I believe, ceased to
occasion complaint, by the states to which they belong.
This remedy also, cannot fail to be effectual.
There will be no room for fictitious pretences, when
the immediate voyage itself, in respect to the place
of departure, or destination, is a sufficient cause of
forfeiture; for the illegal fact must be known to
every man on board, must appear from the papers,
unless all the public, as well as private instruments
are fictitious ; and besides, would, for the most
part, be discoverable, not only from the place of
capture, and the course the ship is steering, but from
the nature of the cargo on board.
The use, therefore, of neutral bottoms, in the
colonial trade, would soon be found by our enemies,
to yield them no protection. They would hoist
again their own commercial colours ; and either
restore to us all the fair fruits of an unresisted naval
superiority, or, by sending out convoys for the pro-
tection of their trade, open to us again that ancient
117
field of offensive war, in which we are sure to be
victorious. Our seamen would be enriched, our
imports would be very largely increased, and every
western breeze would waft into the channel, not a
neutral sail or two, to furnish diplomatic squabbles,
and litigation in the admiralty ; but numerous and
valuable prizes, and sometimes entire fleets of
merchantmen, with their convoys, taken from open
enemies, and under hostile colours. The captive
flags of France, Holland, and Spain, would again be
incessantly seen at Plymouth and Spithead, drooping
below the British ensigns; and the spectacle would
recruit for our navy, far better than the most liberal
bounties.
Then, too, the enemy would be often obliged, to
hazard his squadrons and fleets, for the relief of his
colonies, as was usual in former wars; and the
known partiality of Buonaparte to these possessions,
especially to the Windward Antilles, would, perhaps
induce him to incur risques for their protection,
greater than those which their value in a national
view, might warrant.* .
* Here dwell the native and nearest connections of his august
consort ; and at Martinique, her imperial highness the empress
mother, ci devant Madame Lapagerie, has a court, and all the
other splendid appendages of royalty, to the great local exaltation
of that illustrious house. -
At Guadaloupe too, it is said, the emperor owns, in right of
his consort, a flourishing plantation, the only dowry she has
brought to the throne of the Bourbons; except a gang of negroes,
improved in number, no doubt, since the restitution of the slave
trade. Their fate has been directly the reverse of that of the
Roman slaves; who were always enfranchised on the elevation of
their lord to the purple ;but though they do not
“Pursue the triumph, and partake the gale,”
they are cherished, with the rest of the patrimony in the Antilles;
perhaps, with the providence of the visier Alibeg, when he pre-
Prizes would
Once again
fall to the
British flag,
and the enemy
fleet forced to
protect his
COINT IIſlerCe.
118
At least, the real importance of these, and the other
hostile colonies, would compel the enemy to expose
his marine frequently in their defence, when the
rampart of neutral navigation no longer protected
them from urgent distress and ruin. We should
therefore, by the measure I have proposed, not only
remedy most of the great and complicated evils
which have been noticed, but restore to our navy,
the chance of frequently finding a hostile fleet, to
combat and conquer.
In a word, by restoring the colonial trade of our
enemies to its proper shape, and its native channels,
we should recover very much, though by no means
all, of those natural advantages in the war, which a
belligerent, so decidedly superior at sea, ought justly
served his shepherd's pipe and crook; and may they be an equal
consolation on a descent from imperial fortunes. For my part
I see not why Buonaparte should not be as happy on his wife's
estate at Guadaloupe, as Dionysius in his school at Athens.
I would ask the reader’s pardon for detaining him with such
trifles, if it were not for the secret connection they may have
with the affairs of nations. I offer it as a serious opinion, that the
court, the revenues, and feelings of the Lapageries, give to Martinique
and Guadaloupe, at present, much adventitious importance; and I
will even hazard a conjecture, that they had some share in pro-
ducing the only great maritime enterprize of the war, the strange
expedition to the Windward Islands. Martinique was strongly
reinforced, the Diamond Rock was retaken, troops and arms were
landed at Guadaloupe, and the combined fleets returned. Such
were the effects of an enterprise, in which so much was hazarded ;
and Europe has been at a loss to discover unaccomplished objects,
less disproportionate to the means employed. Perhaps, if we knew
the force of local predilections in the breast of the empress, and
the influence of this Juno and her friends in the councils of the
French Olympus, the wanderings of the Toulon, like those of
the Trojan, fleet, would, if not quite explained, be rendered less
mysterious.
II9
to enjoy; but which are at present most strangely
reversed.
But is this a case in which we have a right to any
remedy at all In other words, is not the engaging
in the colonial trade of our enemies lawful to neutral
merchants, independently of the permission given by
the royal instructions ; and are not the evils which
have been shewn to arise from the practice such as
we are bound to submit to, as flowing from the
exercise of a right which we cannot justly restrain
In short, is not this mischief, in the language of
lawyers, “ dammum abs?ue injuria *"
This, if attended with doubt, would be indeed
a most important question. If it cannot be satis-
factorily answered on the part of our country, there
should be an end to every thought of resistance, if
not also to complaint. In that case, let the noble
conduct of the Athenian people, on a well known
occasion, be a pattern for our own. Nothing can
be more advantageous for us than the suppression
of this commerce ; but if, like the advice censured
by Aristides, it requires a breach of justice, let us
inflexibly abstain.
Would to God (for that sacred name may be
allowably invoked in behalf of the virtue he loves)
would to God, I say, that nations always prized the
obligations of moral duty, far beyond every specious
advantage, however great, that opposed them ;
however seemingly essential even to the care of
self-preservation. The sacrifice, though noble in
design, would in its effect, not be costly ; for never
Enquiry how
far enemy
colonial trade
by neutrals
is of right.
120
General
acquiescence
in the ‘‘ Rule
of 1756,” by
admission of
lawfulness of
seizures on
direct voyages
to enemy
colonies.
in the affairs of nations, was solid security, or true
prosperity, purchased at the cost of virtuous principle.
The page of history, if carefully read for the pur-
pose, would establish this important truth, and teach
us to deride those shallow statesmen, who dream to
the contrary ; though, like Caiaphas, a great master
of their school, they are vain of their pernicious
counsels, and say disdainfully to others, “Ye know
nothing at all.” --
But in this case, moral right and visible
expediency, will be found entirely to harmonize.
The neutral powers, it should first be observed,
have all assented to the rule of the war 1756, in
point of principle, by submitting to its partial
application. 4
Their ships, when taken in a direct voyage to or
from the hostile countries and their colonies, or in
a trade between the latter and any other neutral
country than their own, have been always condemned
by our prize courts, both in the last and the present
war : and the practice, during many years, has ceased
to occasion complaint. Yet these restrictions can be
warranted by no other principle, than that on which
they were expressly founded, “the unlawfulness
“of trading with the colonies of a belligerent in
‘ſ EDITOR’s NOTE.—The author's opinion that there was a general ac-
quiescence in the validity of the “Rule of I756” was probably based on
Lord Loughborough’s statement in the Wilhelmina (in 1801) [printed
in Appendix to 4 C. Rob.], referring to the Instructions of 1793, that
France, by opening her colonial trade to foreigners in order to avoid the
application of the orders to seize neutral vessels engaged in it, showed
manifestly that “the principle itself was thoroughly understood by that
Government to be agreeable to the law of nations.” Mahan also points
out that by the treaty with Russia in 1801, by which Russia conceded
that enemy colonial produce could not be carried directly by neutrals from
the colonies to the mother countries, “Great Britain obtained an explicit
acknowledgement of the ‘Rule of 1756' from the most formidable of the
maritime Powers.” It is probable that the author also held these views
many years before Mahan wrote. [See also Editor’s Note on p. 20.]
121
“time of war, in a way not permitted in time of
“peace.” -
On what other principle than this, could Great
Britain be allowed to say to a Dane or an American,
the owner of produce bought in a hostile colony, and
passing on the high seas under his own flag, in the
one case, “You shall not carry it to America; ” in
the other, “You shall not carry it to Europe P”
The right can plainly stand on no other foundation
than this, that Great Britain might lawfully have
prohibited the taking the cargo on board at the place
of shipment, on any destination whatever, and, con-
sequently, in waving the general prohibition, she had
a right to prescribe to what places it should be carried.
If I should dictate to a neighbour, that in crossing
a certain field which lay between our respective tene-
ments, he and his servants should confine themselves
to a certain path which I had marked out for the
purpose, and if he should for years comply with the
restriction, or submit to be treated as a trespasser
whenever he deviated from it; I might, consistently
enough, if I found the passage a nuisance, shut it up
altogether ; but it would be grossly inconsistent in
him, thereupon to deny my right to the field, and
pretend that it was common land.
Should it, however, be thought that the tacit ad-
mission of the principle, ought not to preclude the
neutral powers from disputing, though inconsistently
in point of theory, a practical application of it, more
extensive than that in which they have so long acqui-
esced, it must at least be admitted, that in reverting
to the rule of the war 1756, Great Britain would
have to assert no new claim of right; and would be
only bound to assign a fair reason for withdrawing
a voluntary modification of its use.
The ‘‘ Rule
of 1756,”
based on
belligerent’s
right to
destroy his
enemy's
COIn Iſler CC.
122
Withdrawal
of concessions
to neutrals
advocated on
account of
their abuse.
Neutrals have
no right to
destroy our
chance of
victory. They
could not do
In Ore Were
they allies of
France.
This of itself
sufficient
Now, in the first place, we may truly allege as a
reason for withdrawing the indulgence, that it has
been very grossly abused : and in the next place,
what is enough to create a right, and much more
to defend the strict use of a right already existing,
that self-preservation demands from us the revocation
of the licence we gave.
It would be a most extraordinary and unprece-
dented situation for two friendly powers to stand
in, if the one had a right to do anything which is
destructive to the other. Yet, since the trade in
question has been shewn to be ruinous to our hopes
in the war, and may eventually give a superiority
at sea, to an enemy already enormously superior to
us in land forces, and bent on our destruction, either
the neutral powers and Great Britain stand in that
strange predicament in relation to each other, or
we have a right to restrain this trade. If we have
no such right, then those states with whom we are
in perfect friendship, have a right to persevere in a
conduct which may, in its natural consequences,
make England a province of France.
If such be the offices of peace and amity, how
differ they from those of war The harsh rights
of war may, indeed, be exercised in a different
manner ; but their extreme extent, is to inflict on
an enemy all the mischiefs that may be necessary
to his subjugation ; and I do not see how these
powers, if confederates of France, could contribute
more effectual means to that end, than those they
at present employ. “I
Waving then, for a moment, the objections that
arise to this commerce, in respect of its origins and
T EDITOR’s NOTE. –“While Great Britain rules the sea, every neutral
is the ally of her enemy.”—Mahan.
123
objects, and supposing both to be unexceptionably
lawful; still, if its further prosecution be incon-
sistent with our safety, the obligations of peace
and amity, call on the neutral powers to abstain
from it. When conflicting rights arise between
nations, one party must give way, or war must be
the issue ; a right, therefore, which is essential to
the existence of the possessor, ought to prevail
over one which is not of such vital importance.
Now, the neutral powers can subsist without this
newly-acquired commerce ; but Great Britain can-
not long exist as a nation, if bereft of her ancient
means of offensive maritime war.
That we are engaged in a contest, an adverse
issue of which may be fatal to our national safety
and independence, will hardly be denied ; if then
a necessary mean of preventing such an issue, be
the cutting off of the colonial resources of our
enemies, to dispute our right of doing so, is, in
effect, to dispute the right of self-defence.
It is by no means necessary, however, to resort
to this primary law of nature and nations; for in
truth there are, in the case before us, no conflicting
rights. Should we even consent to wave the
ground of precedent and acquiescence, and examine
in the fullest manner the original merits of this
question, there will be found clear belligerent right,
on the one side, and nothing but palpable encroach-
ment on the other.
The true principles on which the rule of the war
1756 was founded, have been already stated and
inforced, in a manner which it would be easy to
amplify, but difficult to improve.*
I will not hazard such an attempt; but rather
* See supra, pp. 12 to 14.
reason for
neutrals ab-
staining from
the traffic.
Great Britain’s
existence de-
pends on it.
“Rule of
1756” based
on right of
self-defence,
and on clear
belligerent
right.
124
The countries
at war with
England have
always pro-
claimed her
the “Tyrant
of the Seas.”
The author
is referring to
Bonaparte's
favourite
principle, the
immunity
of private
property
at Sea.
§ [see the pas-
Sage in the
AMonzáñezer,
content myself with considering briefly, the most
specious objections that have been offered on the
other side.
To the vague general invectives of the French
government on this subject, no serious reply can
be due. Buonaparte declaims on the maritime
despotism of England, with the same good grace,
with which he imputed assassinating principles
to the Duc D'Enghien, perfidy to Toussaint, and
ambition to the House of Austria. It is his peculiar
style, in all cases, not merely to defame his enemies,
but to impute to them the very crimes, which he
is himself, at the same moment, perpetrating ; and
of which they are the intended victims. He is
quite in character, therefore, when he accuses us of
trampling on the maritime rights of other nations,
while he, by the aid of those very nations, is
subverting our own.
He calls us the “tyrants of the sea; ” but if the
throne is ours, he has filched away the sceptre;
and our naval diadem, like his own iron crown of
Lombardy, is, in a commercial view, cumbersome
and worthless. This empire is not like his own ;
for the imperial family are less favoured in it than
their enemies. We traverse the ocean at a greater
charge, even for security on the passage, than those
who have no share in the domain.
The usurper's favourite topic, of late, has been
the liberty of navigation : he would be thought
the champion of the common rights of all maritime
states. What I has he forgot, or does he expect
Europe or America to forget, the recent conduct
of France Nothing, it is obvious, but his own
crafty policy, prevents his recurring, at this moment,
to the full extent of that extravagant pretension
125
on which the neutral powers were so shamefully
plundered during the last war ; and for a release
of which his minister, M. Talleyrand, demanded
beaucoup d'argent from America—I mean the mon-
strous pretension of a right to confiscate every
neutral ship and cargo, in which one bale of English
merchandize was found.
Yes | he will clamour for the freedom of the seas,
as he did for the freedom of France, till his neutral-
izing friends shall have placed him in a position to
destroy it. But should his marine be ever restored
by their means, they will feel, as Frenchmen have
done, the heavy yoke of a jealous new-erected
despotism, instead of those mild and ancient laws,
which they were foolishly persuaded to reject.
The only liberty which this impostor will for a
moment patronize or tolerate, either at sea or on
shore, is that liberty which consists solely in the
absence of order, and in the power of invading with
impunity the long-established rights of others. It
is a jacobin liberty only which he would give to
navigation, till his own iron bonds for it are forged.
I decline also engaging with those objectors, who,
without copying the invectives of Buonaparte, dis-
pute, like him, our right to suppress the commerce
in question, on principles that impeach the practice
of maritime capture at large.* -
Those who have sublimated their imaginations so
far, as really to think that war ought, in justice and
mercy, to be banished from the boisterous ocean,
that it may prey the more and the longer on the
* If the reader wishes to be informed of the full extent of these
revolutionary doctrines, he may find them compendiously stated,
and ably and learnedly refuted, in Mr. Ward’s Treatise on the
Rights and Duties of Belligerent and Neutral Powers. §
Editor's Ap-
pendix, V.]
The reference
is to the
Decree of the
Directory of
January, I798,
declaring law-
ful prize all
vessels found
at sea having
any English
merchandise
on board.
§ [published
in 18OI, and
republished
by Lord
Stanley of
Alderley,
in 1875.]
126
The full claim
of neutral
right was that
“free ships
make free
goods,” peri-
odically advo-
cated by the
neutrals.
[see Ed. Note
on p. 95.]
The modified
claim was
that the limit
of belligerent
right of seizure
of neutral
ships or goods
was for carry-
ing contra-
band of war
to the enemy
and for breach
of blockade.
The neutral
arguments
examined.
They claim
extra benefits
from war to
compensate
them because
it affects their
general trade.
social cities, or quiet plains; are not likely to descend
with me into the regions of sober investigation.
To those idolaters of the neutral flag also, who
hold a yard of bunting on the poop of a merchant-
man, more sacred than the veil of a vestal, I have
nothing to offer. If this inviolable emblem, ought
absolutely to arrest the arms of contending nations,
and preserve, in all cases, the contents of its sanc-
tuary from capture, it may with equal reason, I
admit, receive under its safeguard the colonial
commerce, as the general property, of a belligerent.
But there are some champions of neutral pre-
tensions, who, without openly contending for these
extravagant doctrines, maintain stoutly that neutral
merchants have a right to trade on their own account,
with the powers at war, wherever, and in whatsoever
commodities, they please. If contraband goods, and
blockaded places be graciously excepted, this is the
utmost extent of their abstinence. All other neutral
commerce, they hold to be unquestionably legal.
Such persons naturally enough quarrel with the
rule of the war 1756, and they attempt to encounter
the powerful arguments which I have quoted on its
behalf, by objecting—
First—“That neutral nations always suffer in their
“ordinary trade through the wars of those maritime
“friends with whom they have any commercial rela-
“tions; and therefore may be reasonably allowed to
“acquire some compensatory advantages on the other
“hand, by the opening of new branches of commerce.”
If neutrals were really losers by the wars of their
neighbours, it would, perhaps, be fortunate for man-
kind; but would give them no right to indemnify
themselves, by accepting, in the form of commerce,
a bribe from the weaker party, to protect him from
127
the arms of the stronger. But in the last and present
war, at least, this pretence has no shadow of founda–
tion. Let the neutral powers confess that their late
vast apparent increase of commerce, is fictitious, and
that the frauds also are gratuitous ; or let them
admit that independently of the trade in question,
they have enormously profited by wars, which to
their friends have been highly disastrous. There is
no escaping from this dilemma ; for they possessed
not the colonial trade in time of peace, and now
they ostensibly possess that and every other branch
of commerce which our enemies formerly enjoyed.
The neutral, however, has many fair indemnities,
without any trespass on belligerent rights.-The com—
parative cheapness of his navigation, gives him in
every open market a decisive advantage. In the
commerce of other neutral countries, he cannot fail
to supplant the belligerents; and the latter will
naturally give him the carriage of such of his own
commodities, as he before usually supplied them
with, partly or wholly through their own naviga-
tion. What they used formerly to buy in his ports,
they will now be content to purchase from him, at an
advanced price, in their own. -
He obtains also a still larger increase of commerce,
by purchasing from the one belligerent, and selling
to his enemy, the merchandize for which in time
of peace, they mutually depended on each other.
The decay of his old branches of trade, therefore,
if any such decay arises from the war, is on the
whole amply compensated.
It has further been objected, “that allowing the
“acquisition of this trade to be a gratuitous benefit
“to neutrals, arising out of the war, they obtain it
“by the gift of an independent nation, to which at
The compen-
sations which
neutrals actu-
ally derive
from war.
128
The argument
confusing
attacks on
colonial com-
merce with
attacks on
the colonies
themselves.
The author
asserts as a
fundamental
principle that
though the
enemy may
buy and
therefore the
neutral may
sell, yet the
belligerent
may destroy.
“the moment of that gift it still belonged, and there-
“fore may lawfully accept the boon, without leave
“of the adverse belligerent. France, it is said, still
“retains possession of her colonies; and, therefore
“has a clear legislative right to regulate their com—
“merce : Great Britain is not even attempting the
“reduction of those hostile territories ; nor are our
“ships now blockading their ports ; to profit, there-
“fore, by the change in their commercial laws, by
“trading with them when invited to do so, is not
“a violation of neutrality.” “I
This argument is plainly evasive. It is not the
right of a belligerent, to impart a benefit of this kind,
but the right of a neutral, to accept it, that is the
point in controversy.
The carrying of contraband to the enemy, or of
provisions to a besieged place, might be defended in
the same way; for the belligerent has an undoubted
right to buy those articles if carried to him, or to
contract previously for their transmission by the
neutral. But the belligerent has one set of obliga-
tions, and his neutral friend has another, of a very
different kind ; it is fallacious, therefore, to reason
from the rights of the one, to the rights or duties
of the other.
If the legality of any branch of commerce, as
between the enemy and a neutral, could entitle it
to protection from our hostilities, its illegality, e con-
verso, might reasonably subject it to capture and
condemnation. But neutral merchants know to
their great advantage, that the latter is not the
doctrine of the British prize court. Property to an
T EDITOR’s NOTE. –It is probable that the author, both here and on
pp. 126, 127, is refuting arguments which had attracted public attention
in print. I have, however, not been able to trace them.
129
immense value was restored during the last war,
which was avowedly the subject of a commerce with
Spanish territories, contraband at the time of the
transaction, by the law of Spain. If our belligerent
rights cannot be enlarged by any regard to the com-
mercial law of the enemy, considered merely as such,
neither can they be abridged by it.
Did the transfer in question create no prejudice
to the adverse belligerent, its lawfulness could not
be disputed ; but if, on the other hand, its direct
tendency is to enable our enemy to elude our lawful
hostilities, and to deliver him from the pressure of
a maritime war; and if these were manifestly his
only objects in the measure ; to allege the right, or
power of the enemy, to change his system, in justifi-
cation of his neutral accomplice, is to offer in defence
of a wrongful act, no more than that there was an
opportunity given for its perpetration.
It is quite immaterial, whether we are attempting
to conquer the hostile colonies, or what is more
doubtful perhaps, whether we might not successfully
have made such attempts, if not prevented by the
effects of the very measure in question ; for the
commerce, not the sovereignty of the colonies, is that
object of hostile interest, which is wrongfully pro-
tected against us. The apologist, therefore, should
go on to allege, if he can, that the colonial naviga-
tion and commerce, as well as the territory, were
perfectly safe from our arms.
If France should cede to the United States, the
island of Martinique, or Spain the province of
Mexico, it might perhaps be a material defence for
their accepting the grant, though adverse to our
interests in the war, that the enemy remained in
possession when he made it; and that the colony
K
The essence
of belligerent
policy is the
attack on the
commerce,
not on the
colonies.
130
Freedom of
the sea subject
to limitations
like all other
freedoms,
as of the
highway.
The existence
of the colonial
monopoly
shows the
Ineutral to
have no right.
was not besieged or invaded ; but since the cession
now complained of, is not of the territory, but of
its maritime trade, the foundation of the argument
fails; for the enemy is not in possession, much less
in an uncontested possession, of the commerce,
which he affects to surrender. He still holds,
indeed, the key of his colonial ports ; but the way
to them, is occupied by an enemy, whom he can
neither resist nor escape. It is not the mere
right of landing and taking on board of goods,
in the harbour of St. Pierre or Vera Cruz, but the
right of carriage from the colony to the trans-
marine market, that is the subject of the grant to
the neutral ; and of this important franchise, the
enemy found himself incapable to defend the
possession, before he relinquished the right.
The geographical way itself, indeed, is common
to all nations: and we are perpetually told, that
the sea is open and free. But a right of carriage
may be restrained, in respect of the articles that
are carried, and the places to or from which they
pass, as well as in respect of the path-way itself.
The road from London to York, is open and
common to all his Majesty's subjects ; but not for
the carriage of a mail-bag, to or from any part of
the realm, for the profit of private persons. The
right of such carriage, notwithstanding the general
freedom of the York road, belongs exclusively to
the Post-office ; and so did the carriage of colonial
produce or supplies, to the parent state, notwith-
standing the general freedom of the sea. In this
respect, the passage was not open in time of peace ;
to allege the common right of navigating the ocean,
therefore, in defence of the insidious assignment of
the right of carriage, is not less preposterous, than
131
if the freedom of the post-roads, should be offered
as an excuse for the unlawful acquisition or transfer
of a post-office contract.
To give the argument we are considering, all
possible scope, let it be supposed that the enemy
was in full immediate possession, not only of his
colonies, but of his ordinary commerce with them,
at the time of relaxing his monopoly. This, is
certainly to concede much more than is due ; since
he durst not, at the time, send a ship, under his own
colours, to or from the colonial ports; and there-
fore, the possession of the commercial franchise, by
its actual exercise, the only mode of possession of
which it is susceptible, was suspended. But sup-
posing the reverse; still this great branch of
commerce became a known subject of belligerent
contest, on the commencement of a maritime war;
for it would be trifling to go about to prove, that
Great Britain must always look to the colonial trade
of France and Spain, as the first object of her
hostilities. When we drew the sword, it was notice
to every neutral power, that this commerce was no
longer an uncontested possession of our enemies;
but rather a prize set up within the lists of war, the
seizure or defence of which would be a principal aim
of the combatants. If so, how can the assisting our
enemies to withdraw the rich stake from the field,
be reconciled with the duties of neutrality ?
Let it be supposed, that a large fleet of French
and Spanish merchantmen, with their owners on
board, were passing the sea under convoy; and that,
receiving information on their way, of the position
of the British squadron sent out to take them, by
which they must infallibly be intercepted in a few
hours, they should avail themselves of an opportunity
Enemy could
not cede free
right of com-
merce because
he had no free
right himself
when belli-
gerent could
destroy it.
132
Case of
transfer of
ship or cargo
at sea to avoid
capture.
[The transfer
of enemy
merchantmen
to neutrals
was dealt with
by Order in
Council, Nov.
1807, which
provided that
such trans-
ferred ships
should be
lawful prize.
—Ed.]
Analogies
drawn from
municipal
law
to sell the ships and cargoes to some neutral mer-
chants, whom they met with at the moment at sea ;
it will hardly be thought that such a transfer would
be valid against the British captors, if the squadron
should afterwards fall in with and capture the fleet.
Yet what principle of natural justice makes it
otherwise, that does not equally apply to the case
of the colonial trade : The purchase of ships and
cargoes at sea, is not a wider departure from the
ordinary course of commerce, than trading in sugar
and coffee under foreign flags, in the West Indies ;
the right of the owner to sell, in the one instance,
might be alleged as plausibly as the right of the
hostile state to open its ports, in the other ; and the
motive is in both cases the same.
But when we advert to the principles, on which
the trade in question is defended, this illustration is
far too weak, to shew their injustice. There is not
one of them, that would not serve to justify the sale
of the merchantmen in the supposed case to the
neutral, if made after the British squadron had come
up, and when it was on the point of taking the
convoy.
The justice of municipal law, may furnish us here
with some fair analogies.
Is property of any kind, when the specific subject
of litigation, aliened by the party in possession,
pending a suit for its recovery, and to a person who
has notice of that suit; the acceptance of it, is a
wrong to the adverse party ; and he may assert
against the grantee, though a purchaser at an ade-
quate price, the same specific rights which he had
against his first opponent. With equal reason, Great
Britain may exercise against this commerce, though
assigned to neutrals, the right of maritime capture.
133
Should it be objected, that there is no specific
title vested in the adverse belligerent, but only a
general right of seizure; I answer, that this distinc-
tion, though often allowed in favour of commercial
convenience, is not held by municipal law to affect
the equity of the rule, when the intent of the trans-
action is to defeat such general rights ; as might be
shewn by reference to the bankrupt laws, and other
parts of our code. -
In the case, for instance, of goods removed by a
tenant from his leasehold premises, to avoid a distress
for rent, and sold for that purpose to a third person
privy to the fraud, the landlord may follow and seize
them within a limited time, even in the hands of the
purchaser. The latter also, if an accomplice in the
contrivance, is regarded as a criminal, and punished
by a forfeiture of double the value of the goods.
To this, I apprehend, as in the former case, the
rule of American law is comformable to that of
England ; but should the natural equity of it appear
at all doubtful, let the following further circum-
stances, be added to the illegal transaction. Let
it be supposed, that the tenant, in consequence of
previous distresses, or from other causes, has no
means of sending his own corn or hay to market,
by his own waggons, as formerly, so as to avoid
a seizure by the landlord ; and therefore, contrary
to all ordinary usage, and to the necessary Ceconomy
of his business, offers to sell them in the stack
to his neighbours, at a low price, to be conveyed
by them, on their own account, in their own
vehicles, from the premises. Should they, knowing
his necessities, and his dishonest views, take the
proffered advantage, and send their own carts and
waggons into his farm-yard for the purpose ; surely
134
The argu-
ment, “You
have been
moderate,
therefore you
ought to
extend your
moderation.”
Moderation
to neutrals
only justified
if detrimental
to enemy.
the justice of the rule of law would, in such a case,
be readily admitted. The application is sufficiently
obvious. -
It has been further objected to the rule of the
war 1756, “that neutrals are allowed, without
“opposition, in other cases, to avail themselves of
“various alterations in the laws of the belligerent
“states, to which the policy of war has given birth,
“and by virtue of which they are admitted into
“several branches of trade, with the metropolitan
“country itself, which were not open before, as well
“as encouraged to engage more extensively in others,
“by greater privilege and favour than the pacific
“system allowed. In some cases, therefore, it is
“argued, we ourselves admit, that it is lawful to
“trade with an enemy in time of war, in a way not
“permitted in time of peace; and should we now
“assert a contrary principle, many well-established
“branches of neutral commerce in the European
“seas, and even with Great Britain herself, might
“be on the same ground abolished.”
This is an argument of the same family with
those modern political sophisms, by which nations
have been convulsed, and kingdoms overthrown.
To confound practical moderation, with theologi-
cal inconsistency, to reject all principles that cannot
be followed into their extreme consequences, and to
justify one excess by the inconveniences of another,
are effectual weapons for the assault of every legal
or political system, and for the defence of every
1nn OVation. - -
I admit that partial changes in the commercial
laws of a belligerent state, are occasionally made
in favour of neutral commerce ; and that when
such changes are calculated to produce an effect
I35
on the war, advantageous to the party who makes
them, and detrimental to his opponent, they fall
in strictness within the principle of the rule of the
war 1756, though the commerce of the mother
country only, not of the colonies, should be their
subject.
But of what nature have been these alterations
Not an unqualified admission, as in the colonial
case, of neutral ships, into ports where no foreign
prow could enter for any commercial end before ;
not an entire surrender of a national privilege, or
monopoly, which, in time of peace, was always
jealously maintained ; much less, an invocation of
neutrals, wholly to conduct a commerce essential to
the existence of one part of the empire, and which
must, otherwise, be totally lost; but for the most
part, only a reduction or remission of duties ; and
at the utmost, a permission to import or export
specific articles, to or from some foreign country,
in a manner not allowed before.
I except, of course, that indiscriminate admission
into every branch of the commerce of our enemies,
including even their coasting trade, which has now
taken place. The comprehensive enormity of the
existing wrong itself, will hardly be objected, in
defence of its most exceptionable branch ; besides,
as to the coasting trade, the employment of neutral
vessels in it, is treated by our prize tribunals as
illegal, though the extreme penalty of confiscation,
has not yet been applied.* Perhaps his Majesty's
government, finding the more lenient sanctions of a
forfeiture of freight and expences, and such further
discouragements as have been hitherto applied, to
be wholly ineffectual, ought to consider this as a
* Case of the Immanuel, Soderstrom, 4 Robinson 296.
Limited
nature of
modifications
made.
The practice
had been not
to exact the
extreme
penalty of
forfeiture of
ship, but to
allow freight.
In the coast-
ing trade
freight was
not allowed
to neutrals
when seized.
136
Extreme
penalty of
forfeiture of
ship for breach
of “Rule of
branch of illicit trade, to which the forfeiture of
ship and cargo should in future be annexed, and
to issue an instruction for that purpose.*
In all other, and ordinary innovations of this
kind, the change has rather been in the enlargement
of an existing intercourse, than the opening of one
which had been quite interdicted before. But the
change in the colonial commerce, has amounted, in
respect of the flag and the voyage, to an entire
revolution. Except in certain privileged ports, and
in some special cases, the entry of a foreign vessel
into a colonial port, for any mercantile purpose, is
a kind of commercial adultery, to which, till the
divorce occasioned by war, no colonizing power
submitted (O).
This distinction is important, in regard not only
to the nature and extent of the wrong, but to the
convenience of the remedy. t
The redress which the injured belligerent obtains,
by the seizure of the offending vessels, is naturally
offensive in its mode, and liable to abuse in its
application. The right of capture, therefore, ought
not to be exercised against neutrals, but in cases
which admit of being broadly and clearly defined ;
for it is better to submit to many palpable encroach-
* The fact of hostile property in this trade, as in the rest, is
covered by such abundant and accurate perjury, that unless a
judge were at liberty to act on the firm persuasion of his mind,
arising from general presumptions, against the fullest possible
testimony, the cargoes can rarely be condemned; and consequently
forfeiture of freight, is a penalty that can rarely be applied. The
other discouragements here alluded to, are the privation of such
indulgences, in respect of the admission of further evidence, in
cases of doubt, as claimants of property taken in a fair and lawful
trade are entitled to.
(O) See Appendix.
137
ments on the confines of our belligerent rights, than
to guard them with a strictness which may be in-
convenient to our peaceable neighbours. If it were
resolved to apply the rule of the war 1756, to all
the branches and modes of European commerce
with our enemies, to which neutrals have been
admitted during the war, and in consequence of
the war, it would be a line of conduct, difficult to
draw with precision, even in the cabinet; nor, how-
ever carefully delineated by specific instructions to
our cruizers, would its practical application be easy.
It would also give birth to endless distinctions in
judgment, and to an infinity of petty and intricate
disputes with neutral nations : for let it be remem-
bered, that not the novelty of the trade only, but
the motive of its permission by the enemy, is
essential to the rule in question.
And here let me point out by the way, a new
reason for not allowing the particular manner and
intent of an importation into a neutral country, to
determine the right of re-exporting the same goods
to a foreign market, or its liability to seizure on
the way. If a trade between the hostile countries
and their colonies is to be legalised by nice dis-
tinctions, the fact of which a visiting officer can
never with certainty discover, it would be better
at once to give up the whole of that important rule
for which I contend, and allow the trade to be
conducted in a direct and single voyage.
* The colonial trade, however, is further distin-
guishable from those other branches of commerce,
T EDITOR’s NOTE. –From this point to p. 143 the author advances
a subsidiary argument which will be probably difficult to understand at the
present day, although his premises are still partly true in the case of the
Smaller Crown Colonies. The point which he seeks to establish is that
1756” should
be applied
with dis-
cretion.
The motive of
the enemy's
permission to
the neutral
to trade was
the assistance
he received ;
this was the
motive of
the Rule.
If we allow
the re-export
trade we
might as well
allow the
direct trade.
138
Distinction
between
colonial trade
and ordinary
trade.
which have been the subjects of a like belligerent
policy, in some very essential features.
It differs from them, not only in the peculiar
strictness, and broad generical character, of the
monopoly by the parent state during peace, which
is fraudulently suspended in war; but in the nature
of those interests which it involves, and in the
principles on which it is, in its natural course,
conducted.
Strictly speaking, it is not commerce ; though,
in conformity to common usage, and for want of
an appropriate term, I have hitherto given it that
appellation; and I cannot help thinking, that the diffi-
culty (if to any impartial mind there really appears
any difficulty at all, attendant on this plain question)
would never have been imagined, if the anomalous
intercourse between a mother country and its colony,
had not been confounded in idea, through the use of
a vague general name, with ordinary commerce or
trade.
Commerce, in its proper signification, implies both
buying and selling ; and in a commercial voyage,
goods are usually either transmitted from the seller
in one country, to the buyer in another ; or sent on
the buyer's account, for sale in a different market.
even if it could be successfully maintained that a belligerent has no right
to stop neutral commerce with the enemy, because of such principles as
“neutral trade is free,” yet this colonial commerce ought to be stopped
because it differs in many essential particulars from true trade. These
differences are, first : that colonial agriculture depends on capital invested
by the owner of the estates, or his mortgagees, in the mother country:
secondly, that the produce is remitted by the agent of the estates as
interest and profits: thirdly, that the main bulk of the actual trade con-
sists of commodities purchased by the owner at home, and sent out for the
use of the estate and its labourers. Therefore, he contends, that whatever
may be said in regard to belligerent interference with trade as ordinarily
understood, the stopping of this special trade hits the owners of colonial
plantations at home, making them feel the full effects of war, and so is a
direct blow at the enemy mother country.
I39
But what is the general object of shipments in
time of peace, from Europe to a West-India island P
To send for sale, merchandise which has been pur-
chased or ordered, on account either of the shipper
Distinction
between
colonial trade
and ordinary
trade.
or consignee ? No such thing—If we except small
quantities of provisions, clothing, and other necessaries,
destined for the supply of the few white inhabitants,
which are bought in Europe by the agents of the
West India store-keepers, and sent to them on their
account, to be retailed in their stores or shops ; the
outward cargoes are all shipped by planters, or
the agents of planters, and consigned to them, their
attornies, or managers, for the use of their estates.
Again, on the return voyages, are the cargoes
composed of goods, the subjects of mercantile enter-
prise, which have been shipped by merchants in
the colony on their own account, or on account of
merchants in Europe, by whom they have been
ordered By no means—they consist almost uni-
versally, of the produce of the plantations, sent by
the planters to their own agents in the mother
country ; or which is much more common, to the
planter himself in that country, by his own manager
in the colony.
Am I asked how such transactions differ from
commerce : I answer—In the same degree that a
man sending his own wine, from his cellar in London
to his house in the country, differs from commerce;
and in the same degree that a gentleman farmer who
sends his own corn to his factor in the market town,
differs from a merchant.
In these cases, indeed, inland carriage is used, and
in the former, a passage by sea, which, from habitual
association of ideas, seems to us to give a mercantile
character to the transaction ; but let us divest our-
140
Distinction
between
colonial trade
and ordinary
trade.
selves for a moment of this prejudice, and that
transmission of goods across the Atlantic by the
owners, which we call the colonial trade, will be
seen to be, in its general nature, no more commercial,
than the carriage of the wine or the corn, in the cases
I have mentioned.
The plantation stores, indeed, are purchased by
the planter, previous to their shipment; and the
produce will be sent to the market by the consignee,
and sold, after its arrival : but the commercial trans-
action in the one case, was finished before the
commencement of the voyage ; in the other, it does
not commence, till after the voyage has ended. Till
the planter or his agent, sends the produce from the
warehouse to the market, it is not in any sense the
subject of trade ; and even the ultimate sale, on
account of the grower of the commodity, cannot
strictly be regarded as a mercantile transaction. If
it be such, every farmer is a merchant.
These are far from mere verbal distinctions.
They go to the root of the pretences, such as they
are, by which the neutral intercourse between the
enemy and his colonies is defended ; for if the
subject of acquisition by the neutral, is not of a
commercial nature, or was not such till made so for
the purpose of enabling him to acquire it, there is
an end of all the arguments or declamations that
turn on the variable and assignable nature of com-
merce in time of peace ; and to all the supposed
analogies between this commerce, and other new-
born branches of neutral navigation. This is not,
like the other cases, merely the carrying-on of a
trade in foreign bottoms, and on foreign account,
which before was carried on in native bottoms, and
on native account ; but it is the converting into a
\
141
trade, of that which before was a mere removal of Distinction
goods, without any transfer of property.
A new character, as well as a new conveyance, is
given to the exports and imports of the colonies.
The alleged right to protect them, is founded on
their being commercial ; but they were first made
commercial, in order to be protected ; and if the
neutral merchant really carries them on his own
account, he does more than was done by the enemy
merchant, before the war. Not only the ancient
system of navigation, therefore, but the ancient
course of colonial economy, is inverted, for the sake
of eluding our hostilities.
But there is another, and perhaps a still stronger
ground of distinction, between this and all the other
branches of commerce, which neutrals have been
allowed to conduct in time of war.
The capital employed in colonial agriculture be-
longs, for the most part, to the mother country,
where the owners or mortgagees reside ; and the
produce sent to Europe is chiefly the interest or profit
of that capital: consequently the mother country has
a beneficial interest in the remittance, quite distinct
from its commercial use, and which equals, or bears
a large proportion to, its entire value. It is not
merely a medium or vehicle of commercial gain, or
a subject of manufacturing profit; but is, abstractedly
from its specific form and use, substantial wealth and
revenue. It differs from ordinary commercial imports,
as corn-rent paid to a landholder, differs from the
purchased corn of the miller or speculator in grain.
Let the effects of this difference, as to the perils of
carriage in war, be fairly considered. -
In other branches of trade, to destroy the com—
mercial profit of an enemy, or highly aggravate the
between
colonial trade
and ordinary
trade.
142
Distinction price of a particular commodity consumed by him, is
. trade to make him feel effectually the pressure of the wars;
and ordinary and these ends may possibly be accomplished, not-
trade. withstanding his resort to the protection of neutral
flags.
In respect of goods which he buys to sell again to
foreigners, either in the same or a meliorated state,
and even in respect of manufactures for foreign
markets, of which a native commodity is the basis,
the enhanced price of maritime carriage may be fatal
to his hopes of profit. You ruin the trade, when
you cut off the gains of the merchant. But his
colonial produce is, for the most part, the returns of
a transmarine capital already laid out and invested.
The importation of it, therefore, cannot cease to be
beneficial to him, unless you could raise by your
hostilities the price of carriage, till it became equal to
the entire gross value of the commodity. Nothing
else, except the actual interception of the produce by
capture, can make him feel the full effect of the war.
In other cases also, to force him out of his ordinary
methods, or established channels of trade, might be
to destroy the trade itself. If he could no more
import raw silk or cotton, by his own navigation into
France, or could no longer buy goods in the Levant
or the East Indies, to sell them again in the north of
Europe, his factories at Smyrna and Canton might
be abandoned. But the case is very different in
respect of the returns of his colonial capital. As long
as French or Spanish sugar and coffee, can pass from
the West Indies, under neutral colours, or even on
neutral account, to any market on earth, so long the
colonial interests of the planter, and of the state, will
be partially, if not wholly, protected from the ruinous
effects of war : the value of the produce will find its
143
way to France and Spain, though the produce itself
should be excluded.
I infer, then, from these essential distinctions, that
if we were bound to submit to all the other encroach-
ments of the neutral flag, their admission into the
ports of the hostile colonies, might still be fairly and
consistently resisted.
Perhaps these flimsy defences may not be thought
worthy of the time that has been spent in their
refutation ; and yet I know of none more specious
that the apologists of neutral encroachments have
offered. In general, a vague and senseless clamour,
is their substitute for argument. “Piratical depreda-
tions,” and “maritime despotism,” are phrases which
they incessantly repeat ; and like the vociferations of
“stop thief,” by a pickpocket, it is a species of logic,
which if it proves not their innocence, at least favours
their escape.
After all that has been, or can be said, on this
important subject, one plain question will probably
be felt to be decisive, by every equitable mind.
Quo Animo 3–With what intention, did the
enemy open the ports of his colonies to foreign
flags
If it was with commercial views, or for the mere
sake of imparting a benefit to friendly powers, their
acceptance of the boon may, perhaps, be justifiable :
but if the single, manifest, undissembled, object was,
to obtain protection and advantage in the war, to
preserve his colonial interests without the risk of de-
fending them, and to shield himself in his most vul-
nerable part, against the naval hostilities of England;
I say, if such was the manifest, and known purpose
of the measure, I see not how any dispassionate
mind can doubt for a moment, that a co-operation in
Distinction
between
colonial trade
and ordinary
trade.
The general
argument
resumed.
The enemy's
intention in
opening his
colonial ports
was to shield
himself from
our naval
hostilities;
co-operation
by friendly
Powers was
therefore
inconsistent
with duties
of neutrality.
144
Absence of
hostile intent
on their part
does not
excuse them.
They assist,
for the sake
of gain, the
enemy's
Stratagem,
and so
become his
accomplices.
After Peace
of Amiens
colonial trade
was closed, to
the disadvant-
age of neutrals
engaged in it.
such an expedient, by powers in amity with England,
was a violation of the duties of neutrality.
The motive, indeed, on their part, may not have
been hostile; it was the covetous desire, perhaps,
only of commercial gain ; but if they give effect to
a belligerent stratagem of our enemy, whether of an
offensive, or defensive kind, knowing it to be such,
they become instruments of his insidious purpose,
and accomplices in his hostile act. If the commercial
motive, can defend them from the charge of inimical
conduct, then let the hired assassin, who acts without
malice to the victim, be absolved from the guilt of
the murder. -
Is it then a doubt, I will not say with any states-
man, but with any individual merchant, in America,
Prussia, or Denmark, that security and advantage in
the war, were the sole objects of this measure with
the belligerent governments that adopted it They
themselves have never lent their neutral accomplices
so much countenance, as to pretend the contrary.
Some of them did not scruple even to recite the
obvious truth, in the public instruments, by which
their ports were opened.
But the avowal was unnecessary ; and could a
doubt on this subject have existed during the last
war, it would have been precluded in the present, by
the intermediate conduct of those powers, after the
peace of Amiens. So far was the change of system
from being permanent, as was argued, on behalf of
the neutral claimants in the last war, that orders were
sent to reverse it, the moment the sword was
sheathed. Even those foreigners, who had a right to
remove their property from the hostile colonies, within
a limited time, by virtue of the treaty of Amiens,
could not obtain liberty to use their own ships for the
145
purpose : nay, Buonaparte, with all his predilection
for the slave trade, refused permission to the planters
of Tobago, to import negroes on their own account
in foreign bottoms.
On the other hand, the first advices of a new war with
Great Britain, were accompanied, in all the colonies,
with orders to open their ports again to all the former
eXtent.
The hardiest champion of this commerce then,
will now scarcely venture to deny, that it not onl
grew out of, but is to end with the war. Should we,
however, hear again of any doubt on that point, or
of the title to commercial advantages under a grant
from our enemies, let the grant itself be produced ;
let a treaty between our enemies and any neutral power
be shewn, by which the possession of these
advantages is secured for a single moment.
Some engagement of that kind, might seem
necessary, even to the security of the neutral
merchants, if they really carry on the colonial trade,
as they pretend, with their own capitals, and on their
own account : for how are they to collect and bring
away the immense funds, which they are continually
representing, in our prize courts, to have been
intrusted by them to their correspondents in the
colonies, and to purchasers of their outward cargoes,
resident there, if the ports, on the cessation of war,
are suddenly subjected again to the ancient monopoly?
We have, however, I admit, heard of no incon-
venience having arisen from this source, subsequent
to the treaty of Amiens. The doors were suddenly
shut, but there have been no complaints that any
neutral wealth was shut in. It had vanished, no
doubt, like the gold and jewels of an Arabian tale,
on the reversal of the talisman that produced it.
L
On revival of
war colonial
ports again
opened.
Neutral trade
with enemy
colonies was
thus a creation
of, and
dependent
on, the war.
Neutral
wealth was
not locked up
in the colonies
at Peace of
Amiens.
146
The service
to the enemy
is the guid pro
gzzo for the
right to trade;
and it not only
protects but
strengthens
the enemy.
If then this trade has not the promise, or hope,
of existing beyond the war that gave it birth, the
advantage arising from it in the war, is the palpable
and only object of the enemy in opening it ; and
the neutral cannot in this, as in former cases, pre-
tend that there was a different, or even a concurrent
motive, such as may excuse his acceptance of the
benefit. The service to the enemy, in a belligerent
view, is the rent paid for the possession of a com—
merce, which is strangely pretended to be neutral:
and the term is by tacit compact to cease, when
that rent can be rendered no longer.
But, it is not only in its motive and purpose,
that the transaction is of a hostile character. I
have shewn, also, that the effects actually produced,
are of a kind most directly hostile and injurious ;
that the commerce in question, not only protects, but
strengthens our enemies, and puts maritime arms
again into their hands, for our future annoyance
and ruin.
This neutrality, is like that of the poetic deities,
who, when it is unlawful to them, to engage in the
battle, not only cover their favourite hero with a
cloud, and withdraw him from the pursuit of his
opponent, but restore to him the sword, which he
had previously lost in the combat.
Let me, however, refer our Christian, though
very unreasonable friends, to a better standard,
than that of poetic divinity. St. Paul holds him-
self an accomplice in the murder of Stephen, though
he took no active part in it, beyond keeping the
clothes of the assassins : but on the principle of
the pretensions I am combating, this was neutrality.
Nay, St. Paul might have innocently gone much
further, than thus to facilitate the act, by the
147
accommodation of those who were engaged in it. He
might not only have taken care of their clothes,
but furnished them with stones for their purpose.
Without attempting further to illustrate this very
plain, though controverted subject, I conclude, that
the illegality of this commerce, is as certain as its
mischievous tendency; that to engage in it, is to
interpose in the war, for the purpose of rescuing
our enemy from the pressure of our superior naval
force, or, in the terms of an expressive metaphor
sometimes applied to it, “hosti imminenti eripere
hostem ; ” and that the merchants who thus grossly
violate the duties, have no claim to the rights, of
neutrality.
Such is the obvious remedy for this grand evil
in the war, and such our right of applying it.
The other abuses of the neutral flag, a particular
examination of which does not belong to my
present plan, admit not of so simple a cure ; for
they chiefly consist in the fraudulent carriage of
hostile property, under the cloak of a fictitious
neutrality, in voyages which fall within the lawful
range of neutral navigation. To these, therefore,
no general remedy can be applied, unless a method
could be found of either increasing, in the minds
of neutral merchants, respect for the obligation of
veracity, or obviating in our courts of prize, the
deceptious influence of falsehood.
In truth, the unprecedented extent and success
of fraudulent claims, is a natural and almost un-
avoidable effect of the long duration of maritime
war, especially in a war, the circumstances of which
Those who
engage in
enemy colo-
nial trade
interpose in
the war, and
the “Rule of
1756” applies
to them.
Other forms
of abuse of
neutral flags
not so easily
dealt with.
148
Even the
standing inter-
rogatories of
the Court do
not prevent
fraud ; the
2.I] SW6'rS 2 re
often carefully
prepared.
[See Editor’s
Note, p. 47.]
Justification
of sub-title
of pamphlet,
** Frauds of
the Neutral
Flags.”
The frauds
practised are:
preparation of
have excited, beyond all former example, the efforts
of deceit, in our enemies and their neutralizing
agents.
To make this truth perfectly intelligible and
clear, it would be necessary to spend more time
than I or my readers can spare, in an exposition
of the practice of the prize courts. I must be
contented with observing, that the original evidence
which is to justify a capture, and lead to condemna-
tion, must be obtained from the captured vessel,
either in the papers which are put on board by the
alleged owners and shippers themselves, or in the
testimony of the master and the other persons on
board, when examined on standing interrogatories.
Since then the evidence all proceeds from the osten-
sible proprietors themselves, or from their agents,
or witnesses in their service and pay, it cannot be
supposed that facts will often be brought to light
intentionally, which the true owners may desire to
conceal. It may even create surprise, that a captor
is ever able to establish a case in point of evidence,
which will entitle him to a favourable sentence :
nor would this often happen, if the standing in-
terrogatories were not very numerous and close,
and so wisely framed by the light of progressive
experience, that it is difficult for a witness, not
previously apprized of their terms, so to answer
them all, as to support consistently, in all its parts,
the necessary tale of falsehood.
But, unhappily, after a war has lasted long, the
neutralizing agents, and the masters and officers
they employ, become perfectly well acquainted with
the nature of this ordeal of the prize court; so
that the witnesses have a preconcerted answer ready
to give to every interrogatory that is proposed to
149
them. It is a well-known fact, that in certain
eminent neutralizing ports on the continent, the
master and other officers, usually interrogated in
the Admiralty, are carefully and repeatedly examined
by their employers, before the vessel sails, on our
standing interrogatories, till they have learnt to
answer in all points, promptly and accurately, and
consistently with the colourable case which is in the
event of capture to be supported.
With equal skill and care, are those affidavits and
documents now prepared in neutral countries, which
the British prize court usually requires on a decree
for further proofs.-In short, every neutralizer of
eminence, is become almost as expert in the rules of
our Admiralty, in regard to evidence, as a proctor
at Doctors' Commons.
It is evidently not easy to remedy evils like these;
and the more difficult it is, the more indispensably
necessary is it not to widen their range, by suffering
that of the neutral flag to be unlawfully extended.
The growing cunning and dexterity, of those who
are the ordinary and fraudulent suitors in the prize
court, can only be in any degree counteracted, by an
increasing vigilance and patience of investigation, as
well as increasing experience, in the judges; and for
this, as well as other reasons, it was wise to appoint
men of professional talents, with salaries adequate to
the full value of their time, to preside in the vice-
admiralty courts.
Is there after all, it may reasonably be demanded,
no other redress for violations of neutral duties, than
capture and condemnation in the prize court I
answer, that though the offending party certainly
ought to be punished by his own government, on
the complaint of the injured belligerent, yet mutual
evidence for
the Prize
Court, which
must depend
on evidence
from the
captured
vessel’s crew
and owners.
The author
here makes a
point in favour
of the Prize
Court estab-
lished by the
belligerent,
the injured
party.
150
convenience has given rise to the usage of leaving
the latter, in ordinary cases, to avenge himself, by
treating as hostile the property which is engaged in
the offence; for otherwise, the trespasses of indi-
viduals might furnish endless occasions of diplomatic
controversy between friendly nations.
New or extreme cases, however, generally demand
a departure from ordinary rules ; and the unprece-
dented grossness of the abuses which now exist,
seems to me to demand, in this instance, an appeal
to the justice of the neutral states against their
offending subjects. Such a resort seems to be the
more proper and necessary, on account of the que-
rulous and contentious disposition which is said to
have been lately exhibited by some of those powers,
notwithstanding the extreme licence in which they
have been hitherto indulged.4| -
It is highly disadvantageous for an accused, but
much injured party, to stand wholly on the defen-
sive, and in a case like this, it tends perhaps to give
colour to the accusation in the eyes of indifferent
[It is to be
noted that
in the Armed
Neutrality
treaties the
Northern
Powers under-
took to take
steps to pre-
vent their sub-
jects trading
in contraband
of war.—Ed.]
* EDITOR’s NOTE. –It is possible that the author is referring to a prac-
tice explained by the Court in Za Prosperite [1778—reported in Hay and
Marriott, at p. 167], that “whenever the scales were even, a neutral was
to have the turn in his favour; for that this Court was to judge uprightly
between this nation and all others; and it must lean, for the honour of
English justice (as well as bravery) against every possible charge or sus-
picion of any selfish national prejudice. He would not therefore shut the
office against neutral general carriers.” And again in the Vung/re Maria
[1779—at p. 285], where the new lenity to neutral carriers, of restoring
their ship at once and charging the freight upon the cargo, was empha-
sized : “This is an unusual lenity to claimants. . . . The neutral gets
immediately his ship discharged; he goes away in good humour, and we
stand a chance of seeing him here again. The Dutch East Frieslanders,
the Swedes, Danes, and Hanse Townsmen, are the great carriers of
Europe; the former have furnished us with the greatest part of our trans-
ports to America. The carrier masters are most of them good, plain,
honest men. When the scale hangs equal in judgment between them and
an Englishman, it is the duty and it is the disposition of this Court to turn
it in favour of the neutrals, so long as they do not prevaricate and
conceal.”
I5]
judges; nay, the people of the neutral country itself
may be misled, by the reiterated and noisy complaints
of their own merchants, and of the disguised agents
of our enemies resident among them, when unop-
posed by any expostulation on our part, or any
exposure of our wrongs.”
Their ambassadors and consuls in England also,
are perpetually solicited and stimulated by the cap-
tured neutralizers, of whose frauds they are no doubt
ignorant, to represent their imaginary wrongs." These
parties are always more troublesome than the genuine
neutral merchant; and are the most clamorous as-
serters of the respect due to their flag, for the same
reason that a fashionable sharper is, in his quarrels,
often more punctilious than a real gentleman, in
maintaining the point of honour. It is not his
Sentiment, but his trade. The neutral ministers, in
consequence, present memorials and remonstrances ;
and their governments, perhaps, are induced to take
up the dispute. But if abuses of the neutral flag
were made grounds not merely of defence, but of
voluntary and original accusation, and if the punish-
* There is great reason to believe, that the ministers or emis-
saries of the French government, procure the insertion in the
American newspapers of many of those false and incendiary para-
graphs, by which England, in spite of her extreme indulgence, is
insulted and defamed in that country.
ºf EDITOR’s NoTE. —In the Minerza [1779—Hay and Marriott's Rep. at
p. 242], the Judge made remarks which bear out the author's statement :
“Foreign Ministers would do well to be very cautious how they suffered
themselves to be teized and imposed upon by the false representations of
the low people, masters of vessels, who resort to them, and who endeavour
to make the most respectable characters of the corps diplomatique instru-
ments of attempting to protect frauds upon both Governments. Memorials
are presented, Ministers are drawn in to be agents ; and instead of the
decisions of causes in the regular course of justice being forwarded, as they
otherwise would be, they become, by the interference of the Ambassadors
and Envoys, delayed, perplexed, and subjects of mutual complaints and
distrust between Courts the most friendly disposed to each other.”
The inter-
vention of
ambassadors
in support of
the neutral-
izer's claims.
152
Confiscation
of property
the remedy
ment of the offenders were firmly demanded, the
latter would often deem it prudent to be silent ;
while the neutral government and their ministers, if
they had serious and frequent complaints to answer,
would have less leisure, and less inclination, to com—
plain ; they ought therefore, I think, under present
circumstances, to be put in their turn on the
defensive.
Our only effectual remedy, however, must be
found in that ancient and just resort, the seizure and
for all abuses confiscation of the property, which is the subject of
A//
7%e Prudence
of resorting to
the A’emedy of
Confiscation.
illicit transactions.
3d. Of the Prudence of applying the proposed Remedy,
in regard to the Colonial Trade.
It remains only to consider, as I proposed to do in
the last place, whether it is prudent to resort to that
remedy for the evils which have been delineated, our
right of applying which has, I trust, been sufficiently
shewn.
In this, as in most other questions of practical
policy, especially in the present very difficult times,
it is vain to expect that the alternative to existing
evil, should be complete and unqualified good. We
are sailing in a tempestuous unknown sea, surrounded
with rocks and shoals ; and the question is not,
whether, by changing our course, we shall certainly
have a prosperous voyage ; but whether the ship
will labour less, and the breakers in sight be
avoided.
It has been shown, that the extreme licence of the
153
neutral flags, teems with mischiefs of a ruinous and
fatal tendency to our commerce, to our colonies, to
our wooden walls themselves, and to our best hopes
in the war ; and it remains to see, what new evils or
dangers must be encountered, should this pernicious
licence be restrained.
The sum of all these opposing considerations
seems to be this, “we may provoke a quarrel with
“the neutral powers.” I propose, therefore, briefly to
consider, first, the degree of this danger ; and next,
whether the evils of such a quarrel would be greater
than those to which we at present submit.
It is certain, that should his Majesty's government
think fit to recall the indulgent instruction that has
been so much abused, and revert to the rule of the
war I 756, with such modifications only as can be
safely allowed, great clamours would immediately
arise in the neutral countries. The neutralizing
agents, deprived of a large portion of their fraudu-
lent gains, would exclaim aloud against the measure;
and even such merchants as have carried on the
colonial trade on their own account, would not be
well satisfied to find their field of commerce ma-
terially narrowed by the assertion of our belligerent
rights.
The neutral governments therefore would no
doubt complain and remonstrate ; “but would they,
if firmly, though temperately, resisted, push the
controversy into a quarrel ? would they maintain
their pretensions to the trade in question, at the
expence of a war with Great Britain P’’ I firmly
believe they would not ; because I am sure they
ought not, whether they regard their honour, their
duty, or their interest.
Much though the principles of justice are un-
The fear of
offending
neutrals
examined as
a motive
of policy.
The author’s
prescience is
here at fault :
the United
States de-
clared war on
these grounds
in 1812.
154
[The
American
Government
was as angry
with the
French as
with the
British
Government;
and appeared
to be indif.
ferent to the
causes of the
war.—Ed.]
happily made to bend to political convenience in the
conduct of nations, they have not yet wholly lost
their force. Like the merits of an honorary quarrel
among gentlemen, they may at least serve for a basis
of conciliation, between parties who have no very
urgent motive, or determined inclination, to fight.
They will save the point of honour; for a nation
cannot be disgraced by receding from pretensions
which are demonstrably groundless and unjust.
I cannot help hoping, however, that with our late
fellow subjects of America at least, the equity of our
cause will have a more direct and powerful influence ;
for I have marked as an auspicious omen, in this
vernal season of their power, a reverence for moral
principle prevailing in their supreme representative
assembly, and triumphing, in matters of interior
legislation at least, over the suggestions of an
ungenerous policy.
It cannot be supposed, that the great body of the
American people are at this period partial to France,
or inimically disposed to Great Britain. If they are
insensible to the ties of a common extraction, and
if the various sympathies of religion, language, and
manners, that ought to incline them favourably
towards us, have lost their natural influence, they
still cannot be regardless of the interesting fact, that
we alone, of all the nations in the old world, now
sustain the sinking cause of civil liberty, to which
they are so fondly attached." They see that the
T EDITOR’s NOTE.—The author is here expressing what I believe was
the hope common in England at the time he wrote. It prevailed to the
last minute ; for the Declaration of the Regent in January, 1813, con-
cluded with these words: “Whilst contending against France, in defence
‘‘ not only of the liberties of Great Britain but of the world, Great Britain
‘‘ was entitled to look for a far different result. From their common
“origin, from their common interest, from their professed principles of
155
iron yoke of a military despotism is now rivetted on
the neck of that powerful people, which aspires to
universal domination, and which has already de-
prived its defenceless neighbours of the freedom
they formerly enjoyed; nor can they doubt that
the subjugation of England, would be fatal to the
last hope of liberty in Europe.
Is the Atlantic thought a sufficient rampart for
themselves, against the same despotic system : The
people of America, are neither so ungenerous, nor so
unwise, as to act on that mistaken confidence. They
will advert to the state of things, which a disastrous
issue of the present war might produce. They will
contemplate the possible approach of a political
prodigy, more terrific than any that earth has yet
beheld—France lord of the navies, as well as the
armies, of Europe. They will look to the South,
and see the resources of the Spanish American
empire, in the hand of this Colossus ; they will look
behind them, and regard a large country, in which,
were the British government subverted, religion,
extraction, and language, would favour the ambition
of France. Nor will they forget, that this unprin-
cipled power is crafty, as well as audacious ; that she
well knows how to divide those whom she means to
subdue ; and has already broken confederations as
sacred, as that of the American states.
It will not be thought, that the new world has no
adequate temptations to attract the ambition of the
French government, or to excite it to arduous efforts.
The armies of St. Domingo will be remembered.
Nor will the constrained and prudent cession of
“freedom and independence, the United States were the last Power in
“which Great Britain could have expected to find a willing instrument
‘‘ and abettor of French tyranny.”
The danger
to the United
States if
England were
defeated by
Bonaparte.
San Domingo,
Louisiana and
the Antilles
were to have
been the
bases of
Bonaparte's
colonial
system.
156
Louisiana
was sold to
the United
States for
80,000,000
fes. in April,
1803.
Early in
I805 it was
rumoured
that Louis
Bonaparte
was to be
Ring of
Holland.
Louisiana, efface the recollection of that alarming
line of policy, by which it was acquired.
But should America be safe, in her distance, in her
unanimity, and in her interior defensive resources,
still what would become of her commerce, if France
were enabled to give law to the maritime world
Is it supposed, that Buonaparte, or his imperial
successors, will tolerate in their ports, a moment
longer than is necessary, a republican flag Vain
imagination. Had he even no antipathy to freedom,
the plague, or the yellow fever, would have less
terrors for him, than such a mischievous memento
to “his best and greatest of peoples.” At this
moment, he relies on the evident necessity of re-
moving such dangerous examples, as a sufficient
apology to Europe for putting crowns on the heads
of the nominal republics around him.*
The citizens of the United States are a sagacious
people, and will reflect on these things. They will
see that they have a commercial interest, at least, if
not interests of far greater importance, which forbid
their aiding France at this alarming conjuncture, to
overthrow the independence of Europe.
Widely different was the face of affairs in 1794
and 1795, when their commerce with the French
colonies was a subject of dispute with Great Britain.
It was natural at that period, that the people of
America should have good wishes for the liberty
of France, and some jealousy of the confederated
powers. Yet even then, they were too wise, and
too just, to rush into a quarrel with this country, in
support of their present extreme and unfounded
pretensions ; though the instructions of November,
I 793, had, as I have already admitted, given them
[see p. 32.]
* See one of his answers to the Austrian manifesto.
157
some specious grounds of complaint. The legal
merits of the question were then, as I fear they still
are, very little understood in America; but the
wisdom and moderation of Mr. Jay found a middle
point of agreement; and though, unfortunately, the
same spirit did not prevail among his constituents,
so far as to induce them to ratify the treaty through-
out, we may reasonably regard the conduct of the
American government at that time, as a proof of the
pacific temper of the people ; and as a pledge, that
the strong equity of our present case will not, under
the more favourable circumstances of the times, be
- #
-:-
obstinately disregarded. º
Happily, we have not here to do with a people,
to whose understandings and feelings no open appeal
can be made. -
I regard as not the least perilous circumstance in
the present situation of Europe, that by the unprece-
dented despotism exercised over the press in France,
in a positive, as well as negative mode, an ardent
and intelligent people can not only be kept in
profound ignorance of the true nature of public
events, and the real conduct of their government
towards foreign nations, but be impressed with a
belief of facts diametrically opposite to the truth ;
for by these means they can be made to engage
cordially in any measures that the government may
chuse to adopt, however contrary to their own
honour and interest, as well as to the safety of their
neighbours. The case seems absolutely new ; not
only in degree, but in species; for the ministers of
France, professing only to direct an official corner in
one of their many newspapers, are in truth the
political editors of all; and they even oblige such
foreign prints, as they allow to be brought into the
The Jay
Treaty was
concluded in
I794, and
temporarily, at
least, removed
SOIT) e CallSeS
of friction
between the
United States
and Great
Britain [see
p. 20).
f :
158
Under the
United States
Constitution
war is
declared
by Congress.
country, to usher in, or confirm, their own men-
dacious statements ; so that a curious public is
actually starved into the digestion of their poisonous
intelligence, from the want of any other food.
Under other despotic governments, if the people
have had no means, they have had as little inclination,
to canvass affairs of state. Ignorant and indifferent,
their bodies have been at the disposal of the
sovereign ; but popular opinion, and feeling, are
powerful engines in the hands of a government,
which their character could not supply ; and hence
the strength of an absolute, has been counterpoised
by the spirit and energy of a free constitution : but
by inviting a highly civilised people to reason, and
cheating them with fallacious premises, both these
advantages are formidably united. The public, in
this unnatural state, becomes a centaur, in which
brutal force is monstrously associated with the powers
of a rational agent. -
But in America, the government, if it could be
supposed to feel the wish, has not the power, so to
influence popular opinion. The grounds of every
public measure, more especially a measure so awfully
serious as war, must be fairly known, and freely
canvassed by the people. They will hear, and
examine, the reasons which demonstrate the commerce
in question to be an invasion of the rights, and
dangerous to the security of England ; and if, less
generous than the Carthaginians, they feel no wish
to succour their parent country, when fighting for her
liberty and her existence, they will at least desist
from positive wrongs, which augment her dangers,
and frustrate her defensive efforts.
On the probable feelings and conduct of the neutral
courts in Europe, I forbear to hazard so confident
159
an opinion. While I write, every wind wafts over
from the continent rumours of new wars, new
alliances, new declarations of neutrality," and new
breaches of those declarations; so that it is impossible
for any private judgment to foresee, whether any, and
what European powers will sustain the neutral
character, when these sheets issue from the press.
Beyond doubt, the accession of new parties to the
war, will materially affect the tone of neutral preten-
sions on this side of the Atlantic ; and, I trust, not
unfavourably to the true principles of the maritime
code. The generous and magnanimous policy of our
allies, will induce them to respect the rights of neutral
nations ; but they can have no wish to favour abuses,
which tend to feed the revenues of France, and to
defeat the best efforts in offensive war, that can be
contributed on the part of Great Britain. It is their
part, chiefly to oppose the armies of the common
enemy in the field; it is ours, to diminish greatly the
resources by which those armies are maintained $, and
to make the French people feel, in their commerce,
the evils of war, in spite of their lying gazettes ;
but to countenance the present encroachment of the
neutral powers, would be to forbid that essential
assistance ; and to render our active co-operation
feeble, if not absolutely useless. -
Both in Europe, however, and in America, we
T EDITOR’s NOTE.-The Treaty of Concert between Great Britain and
Russia was signed 30 March/II April, 1805; Austria adhered on 28
July/9 August; and a convention between Great Britain and Sweden,
with the guarantee of Russia, was signed on 31 August. On 21 Sep-
tember Bonaparte concluded a Treaty of Neutrality with the King of the
Two Sicilies, who thereby promised “de rester neutre pendant le cours
de la guerre actuelle entre la France, d'une part, et l’Angleterre, la Russie,
et toutes les Puissances belligerantes de l'autre part.” Bonaparte with-
drew his troops from the kingdom of Naples. On 30 March, 1806, he
declared his brother Joseph King of Naples and Sicily.
§ By the
fleet and the
blockade.
The interest
160
have still stronger grounds of hope, that our just
rights, if firmly asserted, will not be resisted at the
cost of a war; for the plain interest of the neutral
powers themselves will incline them to an opposite
course. -
What, after all, is to them the value of this new
commerce, by which our enemies profit so largely
A few merchants, or pretended merchants, are en-
riched by it, chiefly through fraudulent means ; but
their ill-gotten wealth, will, with the common fate
of opulence suddenly and unjustly acquired, speedily
vanish away ; without leaving any lasting effect on
the commerce of their country, except the taint of
their immoral practices, and their exotic luxury of
IIla.111162FS.
In North America especially, such will be the
certain result. A great many of her most eminent
neutralizers, and West-India merchants, are natives,
either of the belligerent countries with which they
trade, or of other parts of Europe; and when the
business of the war is finished, they will not stay
to contend, in the permanent commerce of America,
with her frugal and industrious citizens ; but return
to more congenial regions, with the fortunes they
have rapidly acquired (P). Even with the native
of the neutral
Powers lies
in peace.
The benefit
derived by
neutrals from
the frauds of
their flags is
not national
but individual.
The enemy
had intro-
duced his
subjects into
the United
States as
merchants.
(P) See Appendix.
* EDITOR’s NOTE.-Mahan is of opinion that the continental nations
were really in sympathy with Great Britain : “Throughout the five years
or more that the continental blockade was in force, the continental nations
saw the British trying everywhere, with more or less success, to come to
their relief—to break through the iron barrier which Napoleon had estab-
lished. During great part of that time a considerable intercourse did
prevail, and the mutual intelligence thus maintained made clear to all
parties the community of interests that bound them together, notwithstand-
ing political hostilities. Nothing appears more clearly, between the lines
of the British diplomatic correspondence, than the conviction that the
people were ready to further their efforts to circumvent the measures of
Napoleon.”
16]
Americans themselves, the effect of wealth forced
in this commercial hotbed, will be a strong dis-
position to migrate, when peace puts an end to
their trade ; for it is not to be dissembled, that
this new country has not such attractions as Europe,
for merchants who have grown suddenly rich in it,
by means of exterior connections.
Far superior in every country, but especially in
one that is newly and imperfectly settled, is the
value of that commerce which is the natural growth
of the place, which feeds on, or sustains, its manu-
factures, its agriculture, and the industry of its
people, and is therefore permanently affixed, as it
were, to the soil; to that of a commerce temporary
and extraneous, which is prosecuted to and from
a foreign land, and has no connexion with the
country of the merchant, but that of mere passage
and sale. Yet, in the neutral countries, the former
and more estimable species of commerce, is im-
peded in its growth, and even reduced in its extent,
by the artificial increase of the latter. That which
may be called the native commerce of the country,
is kept down and discouraged, by the diversion of
capitals, the increase of freight and wages, the
The
expansion
of neutral
COIY) merce
caused by
the war
prejudicial
to normal
COIſ) IſlerCe
advanced price of warehouse-room, and inland
carriage, and of the other various expences attendant
on the importation or exportation of goods ; all
which are necessary effects of a great and sudden
increase of mercantile operations, at a neutral port,
through its trade with belligerent countries.
Besides, it unavoidably happens, that the frauds
which are committed in the new branches of com—
merce opened with belligerents, fall heavily, in their
effects, on the honest part of the mercantile body
in the neutral country, even when conducting their
Aſ
The bona
fide United
States trader
seriously
162
affected by
the fraudu-
lent war-
commerce ;
and innocent
ships inevit-
ably seized
On suspicion.
Complaints of
the Prussian
ãona ſide
trader.
ancient and natural commerce. Their ships and
cargoes are involved in the general suspicion de-
servedly attached to their flags, to their com-
mercial documents, and the public testimonials
they carry.
They are consequently seized, brought into port,
and, perhaps, on examination, discharged. But
they have sustained considerable loss by detention ;
and what is to be done : Is a captor to be punished
for suspecting the truth of documents, which, in a
great majority of similar cases, are notoriously false
It would be like punishing an officer for taking up.
on suspicion an honest man, but a stranger to him,
whom he found in company with felons. Were
captors to pay costs and damages in such cases, it
would be charity to our naval officers to renounce
altogether the right of maritime capture; yet, if
the capture is held justifiable, a fair trader smarts
for the sins of his countrymen—the rate of insur-
ance, as well as other charges, is consequently raised
on neutral shipments in general. #
The old and genuine Prussian merchants, as I am
well informed, complain greatly of these evils ; and
murmur at the improper use that is made of their
flag, as freely as they dare.
But in the case of America, able as she is to
enlarge her permanent commercial establishments
in various directions, to the utmost extent that her
capital or credit can afford, and unable, from the
want of hands, to promote sufficiently that vital
interest, the extension of her agriculture, the en-
couragement of a temporary carrying trade, at the
expence of her native commerce, must be peculiarly
impolitic. It is, as if a landholder should take a
scanty provision of manure from his freehold lands,
163
which are in urgent want of it, to dress a field of
which he is tenant at will.
I cannot believe, therefore, that the intelligent
citizens of the United States, unengaged in the
new-found colonial commerce, would be very sorry
to see it restrained ; much less that they would
tenaciously defend it, at the cost of an evil so
destructive to their growing prosperity, as a war
with Great Britain (Q).
Let it be considered, that the trade in question is
but a part of that new and lucrative commerce,
which the war has conferred on the neutral nations
in general. Were their trade with the colonies
of our enemies wholly cut off, many other very
valuable branches of commerce would remain, which
they hold by no other tenure than the neutrality of
their flag.
But it is not my purpose to recommend a total
and unqualified prohibition, of even the colonial
trade ; I have maintained, indeed, our right to
interdict it without reserve, on the assumption that
it was wholly prohibited by the enemy in time of
peace ; a proposition generally true, but which is
liable to an exception, that I have hitherto forborne
to notice.
At certain free ports in the French islands, the
importation and exportation of some specified com—
modities under a foreign flag, were allowed, before
the commencement or contemplation, of the last
war. Several articles of provisions, lumber, and
two or three more enumerated commodities, produce
of North America, and with which the West India
islands are usually supplied from that country alone,
could be imported by foreigners in their own vessels;
(Q) See Appendix.
A wise dis-
cretion in
using
the right
to restrain
neutral trade
with the
enemy
advocated,
164
and they could receive in return, those inferior articles
of colonial produce, rum, taffia, and molasses. Thus
far, therefore, an exception to the rule of the war
1756 is, perhaps, demanded by the principle of that
rule, in favour of the free ports ; and it seems due
also in respect of all the ports of the hostile West
India Islands, on another score ; for we have relaxed
our own colonial monopoly, in an irregular manner,
during the last and present war, in all our islands,
to the extent of permitting the importation of
American provisions and lumber, and the exporta-
tion of rum and molasses, in vessels of the United
States ; and it is right to admit in such cases the
principle of reciprocity.—“ In jure belli, quod quis
“sibi sumit, hostibus tribuendum est.”
This maxim, indeed, can apply no longer than
while we persevere in permitting the irregular prac-
tices which now prevail in the ports of our own
islands, especially as the enemy, in concert with the
neutral merchants, began the innovation ; and by the
great extent to which it was carried, absolutely obliged
us to follow in some small degree the same line of
policy. But we might, as a voluntary sacrifice to
amity with the neutral powers, allow this limited
commerce to be permanent, and general throughout
the West Indies; and might even without any very
serious mischief, extend to all the ports of the hostile
colonies, the privileges enjoyed by foreigners at the
French free-ports, in time of peace (R).
By such concessions, it is true, our belligerent
rights would be narrowed, and the hostile colonies,
in some measure, relieved from the pressure of the
war; but if the more valuable articles of their pro-
duce, their sugar, coffee, cotton, cocoa, indigo, and
and a modi-
fication of the
rigid enforce-
ment of the
“Rule of
1756.”
Modifications
admitted in
Our OWIl
colonies.
Reasonable
concessions
might legiti-
mately be
made.
(R) See Appendix.
165
bullion, were prevented from eluding our hostili-
ties under the neutral flags, the greater part of
the existing evils would be remedied ; and the
landholders of America, having the same markets
for their produce, as under the present licentious
system, would all find their interests on the side of
conciliation and peace.
If permitted to retain such a portion of the trade
in question, together with all the residue of their
existing commerce, as far as it is the fair fruit of
their neutrality, in every quarter of the globe, what
motive could these nations find for asserting their
further, and unjust pretensions, by arms ? To
suppose that commercial interest, would excite them
to do so, is to suppose that, for the sake of a part,
they would wilfully sacrifice the whole.
The neutralizing agents themselves, would be the
first to shrink from a definitive quarrel.—They would
clamour, while they hoped to prevail in extorting
from our fears or our prudence, acquiescence in all
their lucrative encroachments ; but when convinced
by our firmness that this end is not attainable, they
would become, instead of sticklers for war, the
staunchest advocates for peace. They will not be so
simple as to ruin their own business, by exchanging
the neutral, for the belligerent character.
I rely not, however, on these men, but on the
equity and good sense of their countrymen at large,
who know how to distinguish between the selfish
clamours of individuals, and the dictates of national
prudence. Our brethren of America, especially,
know how to value the blessings of peace ; and the
wise government of that country has shewn itself, in
this and all other points, in unison with the sense of
the people. They will not, therefore, suffer their
The fear of
offending
neutrals ap-
pears to be
exaggerated.
The author
reiterates his
belief that
there could be
no war with
the United
States.
166
A quarrel
with neutral
Powers con-
sidered.
Such a quarrel
better than a
sacrifice of
our maritime
rights; for
this must in-
volve our ruin.
passions to be inflamed by groundless suggestions,
and plunge into a war, against the clearest dictates
both of policy and justice.
Since, however, it is right, in so important a case,
to calculate on every chance, and to be prepared for
every possible consequence, of a change of system,
I will, in the last place, suppose, that the only
alternative to the sacrifice of our maritime rights, is
a quarrel with the neutral powers.
If so, the question is, which of these two great
evils is the worst ; and I hesitate not to answer,
beyond all comparison, the former.
The arms of the powers now neutral, added to
those of the present confederates, if so monstrous a
coalition could be imagined, would add something,
no doubt, to our immediate dangers ; but acquies-
cence in the present abuses, must, unless the power
of France be broken on the continent, ultimately
insure our ruin. Looking forward, as we are bound
in prudence to do, to a long-protracted war, it is
demonstrable, from the premises I have shewn, that
we must, before the close of it, lose our naval
superiority, if the enemy is allowed to retain, and
still continues to improve, his present oppressive
advantages. -
While he is preparing the means of active maritime
enterprizes, we are reduced at sea, as well as on shore,
to a mere defensive war. While our colonies, and
our colonial commerce, are labouring under great and
increasing burthens, those of the enemy, comparatively
167
unencumbered, are thriving at their expence. While
freight, war duties, and insurance, are advancing
in England, the expence of neutralization is daily
diminishing in France, Holland, and Spain. Com-
petition, and the safety of neutral carriage, are
reducing it every day. Mean time, the hostile navies
are nursed, augmented, and reserved in Safety for
a day of advantageous trial ; while our own is sus-
taining all the most laborious duties of war, with
scarcely any of its ancient encouragements ; our
seamen, also, are debauched into foreign employ, to
carry on the trade of our enemies. In what must
this progress end ?
“But our trade, would be materially injured by
“a war with the neutral powers.” It would, prob-
ably, be so in some degree ; at least in the begin-
ning ; nor am I insensible of the great importance
of such an inconvenience, in a view to immediate
revenue.
But these considerations, important though they
are, may be justly superseded by others. To sacri-
fice our maritime rights, for the sake of our custom-
house-entries, would be like keeping up the pulse
of a hectic patient, at the expence of his vital organs,
instead of that more rational treatment, which,
though weakening at the moment, can alone lead
to a Cure. -
Our two great rival statesmen, though their
views unhappily do not often coincide, have agreed
in declaring our unexhausted means of finance to
be still copious ; and their concurrence in such an
opinion is highly consoling. But, if we dare not
assert our essential maritime rights, for fear of
reducing our exports, they are both greatly mis-
taken. We are already at the end of our resources.
Nelson was
chafing at
his enforced
inaction in
the Mediter-
ranean, while
the French
fleet was in
Toulon.
Pitt and Fox.
168
A quarrel
with neutral
Powers would
not seriously
affect our
trade.
It is idle to say that we are still able to carry on
the war, if we cannot carry it on without re-
nouncing, for the sake of revenue, the means of
making war with effect. It is like a soldier selling
his arms, to enable him to continue his march.
The notion, however, that any great diminution
of our trade, would result from the supposed
quarrel, is not better founded than the fear of the
quarrel itself.
ls it asked, “who would afterwards carry our
“manufactures to market " I answer, our allies,
our fellow subjects, our old and new enemies them-
selves. In the last war, nothing prevented the
supplying of Spanish America with British manu-
factures, in British bottoms, even when they were
liable to confiscation by both the belligerent parties
for the act, but that the field of commerce was
preoccupied, and the markets glutted by the im–
portations under neutral flags. * -
“But would I advise a toleration of these new
“modes of relieving the hostile colonies : " Its
toleration would not be necessary. Even your own
hostilities would not be able to overcome the ex-
pansive force of your own commerce, when delivered
from the unnatural and ruinous competition, of
its present privileged enemies. You might often
capture the carriers of it, and condemn their car-
goes ; but the effect would chiefly be to raise the
price upon the enemy, and the difference would
go into the purses of your seamen. The prize
goods themselves, would find their way from your
colonies into the hostile territories. -
But I do not affirm, that it would be necessary
or proper in the case supposed, absolutely, and
* Case of the Chesterfield, at the Cockpit, 1804.
169
universally, to refuse protection to British merchan-
dize, when passing to the enemy, or colonial
produce received in exchange for it, in British, or
even in hostile bottoms.
At present, the royal prerogative of suspending
the rights of war, in favour of particular branches
of commerce, or particular merchants, is very
liberally exercised.* Papal dispensations, were not
more easily obtained in the days of Luther, than
dispensations from the law of war now are from
his majesty's government; but let it be remem-
bered, that when the Pope thus relaxed the ancient
war of the church against sin, he shook his own
supremacy; and these salt-water indulgences, tend
perhaps to produce a similar effect, on the maritime
greatness of England. I am far from blaming the
exercise of this wholesome prerogative, in a moder–
ate degree, and upon well investigated grounds ; as
for instance, when it enabled our merchants to
import corn, during a scarcity, from Holland; 44 but
"I EDITOR’s NoTE.—A licence was a special permission to an individual
to carry on a traffic forbidden by law—trading with the enemy—granted
for a specific voyage ; and it was usually granted when measures had
been taken to increase the severity of that law. Thus what is generally
known as the “Licence System ’’ arose after the issue of the Orders in
Council in 1807, when it was developed to a tremendous, and, as it was
contended, dangerous extent. The attack on the Orders was in large
measure based on what was called the iniquity of the system. It is to
be noted that the licence was granted as often to neutral vessels as to
those of British subjects, and it was one of the methods by which the
Government fostered British trade to the Continent during the Napoleonic
Wars. But the practice first arose during the War of American Inde-
pendence in 1780, and it was continued from 1793, during the whole of
the wars with France. Mahan says that the true origin of the licence
trade is to be found in the supremacy and omnipresence of the British
navy, which made it impossible for vessels under the enemy flag to keep
the sea (Vol. II, p. 308). It was thus clear for the development of the
commercial policy of the Government, and the unfettered employment of
neutral vessels. The licence protected the vessel against British cruisers,
and authorised her free passage through blockading squadrons.
‘IT EDITOR’s NOTE.-By the Instruction of 29 June, 1805, “in con-
sideration of the present state of commerce” the fleet was directed not to
The system
of licences to
trade with the
enemy is here
referred to and
considered.
The author
considers that
a moderate
use of licences.
is often ex-
pedient; in
spite of its
inconsistency.
170
when it is used for the mere convenience and
profit of every merchant who chuses to apply for
it, and who can offer some flimsy ex-parte suggestion
of public utility, in his petition for a licence ; the
practice becomes a new and dangerous inroad on
that great maritime system, which it behoves us
So much to maintain.
Should, however, the neutral powers be insane
enough to go to war with us for the sake of the
colonial trade, the well regulated use of this pre-
rogative, would soon shew them their folly; and
obviate every inconvenience to which our own
commerce might, in consequence of the new war,
be exposed. Though I cannot undertake to defend
the consistency of licensing to British subjects a
trade with the enemy, from which we claim a right
to exclude neutral nations, yet should those nations
attempt to compel a surrender of that important
right, by cutting off our commerce, the remedy
would be consistent and just. The distress of the
hostile colonies would soon present most tempting
markets for our merchandize ;-the demand also
seize neutral vessels trading, without having obtained a special licence,
directly or circuitously, between the United Kingdom and the enemy's
ports in Europe, which were not blockaded, having on board, inter alia,
grain from France and Holland, and wool from Spain, the property of
British subjects for import into the United Kingdom. Certain goods were
also allowed to be exported to France, Holland, and Spain. The Lords
of the Council were authorised to alter or add to the lists.
The Instruction of I February, 1805, may also be noted in illustration of
the author’s contention that a wise discretion should be exercised in our
dealings with neutral trade with the enemy. It was as follows: “Whereas
We have judged it expedient that interruption should not be given to the
Supplying the Kingdom of Spain, in its present distress, with grain, not-
withstanding the existing hostilities: We enjoin the Commanders not to
molest any Neutral vessel laden solely with grain, and going to Spain, to
whomsoever the said grain may belong, unless it be brought from, or be
destined to a blockaded port.”
These Instructions are taken from a unique collection of the Instructions
issued to the Fleet from 1803 onwards, preserved in the Library of the
Royal United Service Institution. -
171
would be great in the United States ; and America
would be unable to prevent even our own mer-
chants, from being the carriers of British manufactures
to her own ill-guarded coast, as well as to the ports
of our present enemies. If the strict revenue laws,
and naval force of Great Britain, cannot prevent
smuggling and trading with an enemy by her own
subjects, how is this new power, with its lax govern-
ment and feeble marine, to restrain its merchants
from similar practices (S);
Should it be found necessary in the case sup-
posed, to licence any commerce of this kind, whether
in British, or foreign bottoms, we might, as far as
respects the trade of the hostile colonies, have the
benefit, without the disadvantage, of the present
traffic. Not a hogshead of sugar, in the case
supposed, ought to be protected from the hostile
West Indies, except in its way to the British
market; there to be taxed in such a degree, as would
preclude the present superiority of the enemy in
a competition with our own planters. Neither
ought a single article to be carried by licence to
those colonies, that can serve to extend their existing
scale of cultivation.
I protest, in every event, on behalf of the British
planter, against the further settlement of Cuba, by
a relaxation in any mode, of the rules of maritime
war. During the last war, the produce of that
vast island was at least doubled ; and if the present
system continues, it will soon be doubled again,
to the destruction of our own sugar colonies ; for
the consumption of West India produce in Europe,
has natural limits ; and the Jamaica Assembly has
satisfactorily shewn that those limits are scarcely
(S) See Appendix.
It would be
a powerful
weapon for
defending and
increasing
British trade.
Prosperity of
Cuba, owing to
neutral trade
prejudicial
to British
colonies.
172
now wide enough to receive the actual supply, at
such prices as the British planter can possibly afford
to accept.
The same observations which I have offered as
to the new channels of commerce, which we might
have to explore in our transatlantic trade, apply
equally to Europe. Besides, there would here, still
remain friendly territory on the continent, the
ports of our co-belligerents, and even maritime
powers, neutral in relation to them, whose countries
would be entrepôts for our commerce. The bugbear
of a non-importation agreement by America, is
liable to the same remarks, and would be a measure
more absurd even than war, on the part of that
country ; for it would injure herself alone."
After all, what am I endeavouring to combat
The notion, that manufactures in demand all over
the globe, for their superiority in quality, in cheap-
ness, and, even in the case supposed, for safety in
maritime carriage, can be effectually excluded from
the commercial countries in which they are at
present consumed !—I might have more briefly
appealed to the first principles of commercial
science.4 iſ I might have appealed even to the im–
Manufactures
superior both
in quality and
price cannot
be excluded
from consum-
ing countries.
T EDITOR’s NoTE.—The United States, in July, 1807, passed a Non-
Importation Act ; and in December, an Embargo Act was passed, for-
bidding American vessels from leaving ports except for coastwise trade,
in order to protect them from the action at sea taken by both belligerents.
In 1809, the Embargo Act was repealed and replaced by a Non-Inter-
course Act.
*|| EDITOR’s NOTE. –Mahan uses the same argument. Great Britain
having destroyed the enemy's shipping, and denied to neutrals the right
to carry to them many articles of first importance, and so isolated them,
created within their borders a demand for the prohibited merchandise
which raised its price and made the supplying of it extremely profitable.
“When commercial intercourse is thus refused its usual direct roads, it
seeks a new path, by the nearest circuitous course, with all the persistency
of a natural force. The supply will work its way to the demand, though
in diminished volume, through all the obstacles interposed by man "
(Vol. II, p. 377).
173
potent attempts of France in the last and present
war. I might further support myself by the fact,
that in the utmost latitude given to neutral com-
merce in the colonies of Spain, there was an express
and anxious exception of British merchandize, which
was almost wholly without effect.* But the intelli-
gent reader will dispense with all such arguments.
He may not, indeed, be able to foresee clearly what
will be the new channels of our trade, when the
old are forcibly obstructed ; but he can look down
on the level below, the regions of the existing
demand and consumption, and be certain that there
the stream will soon meet his eye again, in spite a
of the new artificial mounds and embankments. *
g
In a word, take care of your maritime system, The
ſº te fundamental
and your commerce will take care of itself.4| §maxim—
e #Take care of
* Cases of the Vera Cruz and the Emelia. your maritime
rights, your
T EDITOR’s NoTE.—The attack on the trade between the French, commerce
West Indian colonies and the mother country, which took the form of will take care
seizing neutral as well as enemy vessels which carried it, led the French of itself.
first, to take retaliatory measures against British colonial trade in the #
same region : and secondly, to attack, by more violent measures than ever;
England had adopted, neutral carriers of her enemy's goods. English:
goods and manufactures in France were confiscated and burnt; neutral ºf
ships and their entire cargoes were seized if they contained the smallest
parcel of English or English colonial goods. This most extravagant
decree of the Directory was modified by Bonaparte; but his settled policy
took the form of refusing the ports of France to neutrals with English
goods on board. The more this prohibition was insisted on, and it was
enforced in all the countries occupied by Bonaparte's troops, the more
the British Government fostered the neutral trade to English ports. This
policy suited the neutrals who were driven from the French ports, and
succeeded. In Mahan's pithy sentence, “Every blow at a neutral was
really, though not seemingly, a blow for Great Britain.” But from this
British belligerent policy Pitt’s commercial policy gradually developed,
subsidiary to, but dependent on, its success. Great Britain was to become
the toll-gate and storehouse of the world’s commerce. This first took
definite shape in the Instructions of 1798, which extended the concession
already granted in 1794 to the United States, to trade with the enemy
colonies to neutral countries in Europe, so long as the carrying vessel
belonged to the country of destination. They were also allowed to bring
the colonial produce to a British port, and it was thence re-exported to
the Continent. From the neutral countries it gradually passed into France,
174
Were it not necessary to hasten to a conclusion,
I might shew, that the commerce of this country,
is much more endangered by the existence of the
present abuses, than it could possibly be by any
effects of their correction. The case of our colonial
trade, has been the only commercial evil which I
have distinctly considered ; but that of the mer-
chants trading with Germany and Flanders might
afford another striking instance of the mischiefs of
a licentious neutrality : it has been lately stated to
the public, in a compendious, but forcible manner,
on the part of the suffering merchants, and appar-
ently by one of their body.*
It may be right to notice another alarm, that has
been grafted on the idea of a quarrel with the United
States. America, it has been said, is much indebted
to our merchants ; and she will confiscate their
property. America, I answer, is too wise, and, I
believe, also, too observant of national honour and
justice, to adopt so opprobrious a measure. It
would be an act subversive of all future faith and
confidence, between herself and the merchants of
Europe; it would not only stain her character, but
materially retard the growth of her commercial
interests, in every part of the globe. She will now,
The conse-
quences of
war with the
United States
again
discussed.
* See some essays in the Times, in September last.
which was suffering from the want of these commodities, as well as of
everything else, owing to the British blockade. To this trade was added,
from the same cause, the export in neutral vessels of British manufactures.
As it had been in 1798, when, in spite of the decree of the Directory,
“British commerce continued to thrive, and British goods abounded in all
parts of Europe ’’ through the assistance of the neutral carriers, so it was
in 1806, when “in spite of every prohibition, British goods continued to
find their way in vast quantities into France.” To such an extent was this
the case, that Mahan, from whom I have taken these quotations, recalls the
statement of a French writer, that during the winter campaign against .
Russia, 1806–1807, the French army was clothed and shod with British
goods, imported by the French Minister at Hamburg (Vol. II, p. 273.)
I75
should a quarrel ensue, have no pretence for any
other resort, than that of honourable war. At the
period of 1794, she pretended, with some shew of
reason, that she had been unfairly surprised, by an
order to capture her vessels, without previous notice
or complaint : but no room, of course, will be given
for such a charge at this time, should our government
wisely resolve to assert our belligerent rights.” If
the citizens of the United States, can possibly be
persuaded to think, that we are bound to submit to
the ruinous effects of that assistance to our enemies,
which they chuse to call neutral commerce, at least
it will be felt, that our resistance is no act of wanton
enmity, much less a provocation to more than
legitimate war."
There is, however, another security against such
an injurious and disgraceful act on the part of
America; or rather against any quarrel whatever
* Let it not be supposed, however, that there is any shadow of
ground for the complaints now making, of want of notice re-
specting the collusive double voyages: the judgments in the cases
of the Eſsex, the Enoch, and Rozwena were founded on a rule
already known in America ; and which the claimants were
fraudulently attempting to elude.
T EDITOR’s NOTE.-Three sets of Instructions were issued in 1793:—
(I) February I4, to ships with letters of marque, authorising the seizure of all
ships and merchandise belonging to France; (2) June 8, to ships of war
and privateers, to detain all ships laden with corn, flour, or meal bound to
any port in France; (3) November 6, to the same, to seize all ships laden
with produce of, or supplies for, the French colonies.
It is significant of the importance attached to the attack on the enemy's
colonial trade by the neutral United States that, although in principle the
second and third orders did not differ, the dispute with England arose over
the November Instructions, under which several hundred vessels were seized
and carried into the West Indies. Mahan says that the order was not made
public till the end of December, and that before the United States Minister
had time to protest, new Instructions were issued on January 5, 1794,
limiting the order for seizure to vessels bound from the French colonies to
Europe. The concession to the United States went further ; and it was
provided in the Jay Treaty of 1794, that a Commission should sit to award
compensation for seizures made under the November Instructions.
The Instruc-
tions of No-
vember, I793,
were issued
without notice
to the United
States, and
this might
have been a
grievance.
This was
in fact the
American
contention,
that our attack
on the enemy's
colonial com-
merce inter-
fered with
their right
to trade.
[see pp. 52,
53.]
176
Danger to
United States
of war with
Great Britain.
The statement
repeated, that
a quarrel
with neutral
Powers a
lesser evil than
the existing
abuses.
with that power at the present conjuncture. The
property under the American flag, which would be
now exposed to our hostilities in every part of the
world, is immense. In 1794, the merchants of the
United States were few and poor; now, they are
many and rich ; then, the collective value of their
property at sea, might be very small in comparison
with what they owed to our merchants ; at this time,
after the large deductions that ought to be made
for property which is but nominally their own, the
former must bear a large proportion to the latter.
But America, though rich in commerce, is not
so in revenue; and were her trade destroyed by the
effects of a rupture with this country, a great burthen
of war taxes must be immediately imposed on the
landholders ; who have no debts to English mer-
chants to retain ; who, as I have shewn, would have
no interest in the war; and who are neither very
able, nor very well disposed, to submit to a heavy
taxation (S).
Those, in short, who suppose that America would
be easily now brought to engage in a war with any
great maritime power of Europe, know little of the
commerce, and less of the interior state of that
country. -
Such are my reasons for believing, that a quarrel
with the neutral powers would not be the price of
asserting our maritime rights in respect of the colo-
nial trade ; and for concluding that such a quarrel,
if certain, would be a less formidable evil, than
those to which we at present submit.
Should any reader be disposed to dissent from
both these propositions ; he will, perhaps subscribe
to a third—It would be better, by an express and
(S) See Appendix.
177
entire surrender of that ancient maritime system
on which all our greatness has been founded, to
put ourselves on a par with the enemy, as to the
advantages and disadvantages of neutral commerce ;
than continue to submit to these ruinous innova-
tions, of which all the benefit is his, and all the evil
OUIT OWI 1.
Let us subscribe at once to the extravagant
doctrines of Schlegel, or to those of Buonaparte
himself; let us admit the old pretension of “free
“ships free goods,” and that the seizing hostile
property under a neutral flag, is piracy, or maritime
despotism—then, following the example of our
enemies, let us suspend our navigation laws, that
we also may have the benefit of neutral carriage,
in all the branches of our trade—let brooms be put
at the mast-heads of all our merchantmen, and
their seamen be sent to the fleets.
By no means short of these, can we be delivered
from the ruinous inequalities under which we at
present labour ; and these, alarming though their
novel aspect may be, would in truth be less evils,
than those which the present system, if long per-
severed in, must unavoidably produce.
It would, however, be a still better expedient, if
the enemy would kindly concur in it, to abjure, on
both sides, the right of capturing the merchant ships,
or private effects of an enemy—in other words, to
reconcile, as some visionaries have proposed, a naval
war with a commercial peace. Our neutral friends
might then be dismissed by both parties ; and would,
perhaps, in the next war, be content to gather up the
chief part of the spoils of the weaker belligerent,
without wrangling, as now, for the whole.
But the French government is, probably, too
N
Better to
surrender our
maritime
rights than
continue to
submit to the
frauds of the
neutral flags.
Better at
once admit
Bonaparte's
“new code
[see p. 95]
and suspend
our Naviga-
tion Laws,
[see p. II4]
than submit to
a continuance:
of existing
system.
A naval war
inconsistent
with com-
mercial peace
178
The long war
foreseen.
conscious of its present advantages, to concur in this
arrangement : nor would it, I verily believe, consent
to respect British property, when passing under
neutral flag, if we were disposed to an equal the
forbearance.
What then remains to be done –to make peace
with Buonaparte
It is the utter impracticability of such an
expedient, that gives to any subject its most anxious
and awful importance. His power and his pride
may possibly be broken by a new war on the con-
tinent, or new revolutions may deliver France from
his yoke; but if not, we are only at the commence-
ment of a war, which our long-continued maritime
efforts alone can bring to a safe, much less a prosper-
ous close. You may make treaties with Buonaparte,
but you cannot make peace.
He may sheath the sword, but the olive-branch is
not in his power. Austria may have peace with
France, Russia may have peace with France, but
Great Britain can have no real peace with that power,
while the present, or any other military usurper,
brandishes the iron sceptre he has formed, and is in
a condition to hope for our ruin.
Am I asked what is the insuperable obstacle I
answer, “the British constitution.” I can repeat,
ex animo, with the church, that we are “fighting for
“our liberty and our laws”; for I believe that their
surrender alone could obtain more than a nominal
peace.
France, under her ancient monarchy, could look
across the streights of Dover without envy or discon-
tent; for her golden chains, burnished as they were
by the splendour of genuine royalty, rivetted by the
gentle hand of time, and hallowed by a reverence for
179
ancient hereditary right, were worn with pride, rather
than humiliation or dislike. The throne stood
upon foundations too strong, as its possessors fully
thought, to be endangered by the example, or by the
contagious sentiment of freedom.
But can the new dynasty, entertain a similar con-
fidence —Let Buonaparte's conduct and language
attest, that he at least, is not so simple. During that
brief term of pretended peace, to which he reluctantly
submitted, what was his employment out of France,
as well as within that country, but the subversion of
every thing which approached the nature, or bore
the name, of freedom P In his treatment of the little
states around him, he was even Ostentatious of his
contempt of the civil liberty they enjoyed or boasted,
and he does not scruple now to avow, in the face of
Europe, the very principle I am ascribing to him,
though in different language, in his apology for his
treatment of Genoa and the Italian republic.
English liberty was happily beyond his reach ;
and it was necessary to temporize, while a contest
with the negroes suspended those preparations for a
new war, which he would soon have made in the
western world, and in India ; but his gazettes ex-
hibited incessantly, not only his hostile mind, but the
true cause of its hostility. Our freedom, especially
the freedom of our press, was the subject of frequent
and bitter invective. By political hints, lectures,
and addresses, he laboured incessantly to convince
Frenchmen, that there is no possible medium in
society, between anarchy and his own military
despotism; but, as the known case of England was
an unlucky knot in this theory, which he could not
immediately cut asunder with his sword, his next,
and anxious purpose, was to confound our freedom
Bonaparte's
attitude be-
tween 18or
and 1803 to
the small
States of
Europe.
In San
Domingo.
Bonaparte's
real enemy
was England
and her
freedom.
180
with licentiousness, to render it odious, and to hint,
as he broadly did, that it is incompatible with the
common peace and security of Europe.
Had he not even the audacity to remonstrate to
his Majesty's Government, against the freedom of
our newspapers, and to demand that our press should
be restrained 24. But we cannot be surprised at
this—Darkness, as well as chains, is necessary for
his system ; and while it is light at Dover, he knows
it cannot be quite dark at Calais. -
The enmity of this usurper, then, is rooted in a
cause which, I trust, will never be removed, unless
by the ruin of his power. He says, “there is
“room enough in the world both for himself and
“us.” 'Tis false—there is not room enough in it,
for his own despotism, and the liberties of England.
He will cant, however, and even treat, perhaps, in
order to regain the opportunity which he threw
away by his folly and guilt at St. Domingo, and his
splenetic temper at Paris.-He would make peace,
I doubt not, anew, that he might recover the means
of preparing better for war; but would be impatient
and alarmed, till he could again place the fence of
national enmity, between the people of England and
France.
These prospects, I admit, are cheerless ; but let
* EDITOR’s NOTE.-In May, 1802, the English Government was
informed that if the press were not controlled from censuring Bonaparte
there must be war to the death. Cobbett was pointed out as a libeller
to be punished, as well as certain French refugees. In the summer six
requisitions were made, one of which was that the press must be con-
trolled. The reply was that the English press was free. Nevertheless
influence was brought to bear on the editors to modify the rancour of their
pens. The discussion continued into 1803; and in February, Lord Whit-
worth had a long interview with the Emperor at the Tuileries, when he
complained bitterly of the attacks still made upon him by the press, and
he protested that he had executed the Treaty of Amiens with scrupulous
fidelity. War was again declared on May 16, 1803.
181
us not make them quite desperate, by surrendering
our natural arms. There are conjunctures in which
“Fear, admitted into public councils,
“Betrays like treason.”
—But the reins are in no timid hands º–and, after
all, unless we mean to abandon all that remains yet
unsurrendered of our maritime rights, peace is more
likely to be maintained with the neutral powers, by
a firm, than a pusillanimous conduct ; for experience
has shewn that they will not be content, while any
restriction whatever remains on their intercourse with
the enemy, which fraud cannot wholly elude.
To conclude.—A temperate assertion of the true
principles of the law of war in regard to neutral com-
merce, seems, as far as human foresight can penetrate,
essential to our public safety.
In HIM, at whose command “nations and empires
“rise and fall, flourish and decay,” let our humble
confidence be placed ; and may we be convinced,
that to obey his righteous laws, is the soundest
political wisdom, the best provision we can make for
our national safety, at this momentous and awful
period
But, if he wills the end, he wills also the adequate
means—Let us not, therefore, abandon the best
means of defence he has given ; let us cherish our
Volu NTEERs, our NAVY, AND MARITIME RIGHTs.
* I trust this proposition is still true, Were it otherwise, I
should echo the dying exclamation of the great man to whom the
passage alluded, and say, O my country / with a sigh, not of anxiety,
but despair. -
The conclu-
sion of the
whole matter :
a temperate
assertion of
belligerent
rights in
regard to
neutrals
essential to
our safety.
Temporary
permission
to trade
with enemy
colonies:
August, 18O3.
A PPE N DIX.
—sº-
(A), p. 4o.
THERE is an instruction of the present war which authorizes, for
a limited time, the carrying on trade “directly from the colonies
“ of the enemy to the ports of this kingdom, in neutral ships, laden
“solely with the property of inhabitants of the neutral country to
“which the ship belongs.” This instruction issued on the 17th
day of August last ; but the author thought it unnecessary to
notice it in his first edition, because it was expressly limited to such
ships “as had already cleared out, or should clear out, from the
“hostile colonies, prior to the first day of November" then next.
It therefore evidently arose from some special and temporary
consideration ; and not from any design of renewing generally in
favour of this branch of trade, the licence of the last war.
The ground, it is said, on which his Majesty's government
thought fit to accord this brief indulgence, beyond the limits of
the subsisting general instruction as to the colonial trade, was an
error into which certain merchants were alleged to have been led
by the terms of a late act of parliament; an error, under the
influence of which they had innocently ordered shipments from
the Havannah directly for England, supposing the trade to be
legal; and had not time to recal their orders. The author cannot
undertake confidently, or clearly, to explain the case which was
proved or represented on this occasion ; but it is plain that the
instruction could only be meant to sanction adventures actually
depending; since the time allowed was too short, especially at that
season of the year, for the transmission of funds, or even of letters,
so as to obtain shipments from the West Indies which had not
been previously ordered and prepared.
—sº-
(B), p. 5 I.
This statement, I understand, has been objected to, on the
ground that the law of the United States on this subject is general,
I83
and makes no distinction between the trade with the belligerent
colonies, and any other branch of commerce, in which goods liable
to duties, are entered with a view to re-exportation. I admit that
the law is general ; but the fact nevertheless plainly is, that it was
framed to give facility to this trade with the colonies of our
enemies, in which alone, generally speaking, goods are imported
into the United States with a view to re-exportation, except such
trade from the British East Indies, under the treaty of 1794, as
is carried on in a like indirect course to the continent of Europe,
and is the subject of the same commercial policy.
The numerous and elaborate provisions of the act of March,
I799, Scarcely specify any other articles, than such as are the
ordinary and peculiar subjects of trade between Europe and the
West-India colonies.—These, are the only examples given in their
forms of entry, &c. : and when a proviso was made in sect. 75,
enabling the exporter, in cases of need, to alter or renew the
packages in which the goods were imported, without prejudice to
the drawback, so exclusively was the colonial trade in the con-
templation of the legislature, that coffee, cocoa, unrefined sugars, and
/iquors in casks, (in which last description, wines and brandies, most
important subjects of shipment from France and Spain to their
colonies, were no doubt chiefly in view,) are the only articles in
respect of which that necessary indulgence is given. In short, it
is impossible to read this act, the longest, perhaps, and most com-
plex in the whole American code, without perceiving that the
leading, if not the only object of its authors, was to make the most
of those large concessions of this country which were contained in
the Royal instruction of the preceding year, by giving every legal
facility to the indirect trade in question, that consisted with the
security of the duties on imports consumed in America.
The act gives one positive encouragement to the importer,
which is, if I mistake not, a novelty in fiscal legislation. On
giving bond for the duties, he receives from the Custom House a
debenture for their amount, although nothing has been paid ; and
this instrument is expressly made negotiable by indorsement, like
a bill of exchange, and if not duly paid, bears an interest of £6
per cent. against the original holder or indorser. It is not indeed
payable at the Custom House till the bond in respect of which it
issued has been paid ; but as this bond is conditioned, for either
the payment of duties, or re-exportation, within twelve months, the
merchant by this arrangement obtains, without any advance, the
use of a kind of government paper currency for that period, as
Law of the
United States
as to draw-
back on re-
exportation.
184
The decision
in the case
of the Essex.
a bonus on his adventure, beyond the ordinary commercial induce-
ments to engage in the colonial trade. (See sections 75, 80, 81.)
The state, however, has some share in the profit; for one and a
half per cent. on the amount of the duties was by this act retained
on the exportation ; and this reservation has since, I find, by an
act of May, 1800, been raised to a percentage, also on the duties,
of three and three quarters.
The charge, however, is still very moderate, for I am well
informed, that, with the addition of custom-house fees, it does not
exceed, on an average, 1} per cent. on the value of the commodities.
It should further be observed, that an importer who chuses to
report, absolutely, for re-exportation, and who therefore is not
allowed to land the cargo, wholly avoids this charge ; for he gives a
bond conditioned simply that the goods shall not be landed. But
this, the reader will observe, would not satisfy the British courts
of Admiralty. Is it not fair then to conclude, that so many
anxious regulations to provide for the case of an importer who
wishes to land the goods, with a power of re-exportation, would
not have been made, but for the very purpose of facilitating the
collusive voyages in question ? .
If the author is not misinformed, a recent act of the United
States has given such additional accommodations to this branch of
trade, as make the design of eluding the rules of our prize court,
still more conspicuous.
—sº-
(C), p. 56.
Since the first edition of this work was published, an attempt
has been made to mislead the public, and to support the pretence
that the decisions above explained were an unjust surprise on the
American merchants, by the publication of a report made by his
Majesty’s advocate general, in March, 1801, and transmitted by
the secretary of state to Mr. King, the American minister, in
consequence of a complaint made by the latter against the vice-
admiralty court of New Providence. (See the Times, and other
newspapers of October 31.)
The report, and the correspondence which produced it, were
published without a comment ; which, if not the fairest, was at
least the most prudent course ; for though a hasty and ill-informed
reader, might perhaps be led to apprehend from that confident
mode of publication, or from some single member of a sentence,
185
which his eye might carelessly detach, that these papers really
gave colour to the complaints in support of which they were
adduced, it is absolutely impossible to reason upon them, or apply
them to the case in controversy, without discovering that they
have a directly opposite effect.
The King's advocate, had he expressed himself incorrectly or
obscurely, would have deviated strangely from his general habits ;
but it seems impossible to compare his report on the subject in
question, with the account I have of the principles of judgment,
and course of decisions, in the prize court, without perceiving
that they are perfectly in unison with each other.
At the date of this report, the case of the Polly,–Lasky (supra
p. 48) was the last decision on the subject of the double voyages;
and our prize courts had not yet discovered the futility of the
pretence of paying duties in America ; or the unsoundness of the
inference that had been drawn from that misrepresented fact, and
the circumstance of landing the cargo, in favour of the original
intention of the importer. At that time, therefore, the King's
advocate naturally reported as follows:
“What is a direct trade, or what amounts to an intermediate
“importation into the neutral country, may sometimes be a
“question of some difficulty. A general definition of either,
“agreeable to all cases, cannot well be laid down. The question
“must depend upon the particular circumstances of each case.
“Perhaps the mere touching in the neutral country to take fresh
“clearances, may properly be considered as a fraudulent evasion,
“and is in effect the direct trade ; but the high court of
“admiralty has expressly decided (and I see no reason to
“expect that the court of appeal will vary the rule) that
“landing the goods, and paying the duties in the neutral
“country, breaks the continuity of the voyage, and is such an
“importation as legalizes the trade, although the goods be re-
“shipped in the same vessel, and on account of the same neutral
“proprietors, and be forwarded for sale to the mother country or
“the colony.”
The preceding part of this report had expressly stated the
general principles of law arising on the royal instructions, as
they have been stated in this work ; and in what manner do
the above passages, jar with the account which has been given of
the judicial application of these principles :
The question is not whether the advocate general, if he had
foreseen the frauds which have since come to light, could have
I86
more explicitly guarded his opinion against any forced and artful
construction which might be unfairly made in favour of those
frauds; but whether his language can fairly be construed to
mean, that landing the goods, and paying the duties, would
legalize a transaction, the detected and indisputable object of
which was, to use his own words, “a fraudulent evasion ” of the
legal rules and principles which he had immediately before laid
down. Now, what sense can possibly be put on the former part
of the above extract, that will consist with this construction ?
How could the effect of an intermediate importation depend in
point of law, “on the particular circumstances of each case,” if
the general circumstances of landing and paying duties, were
enough in every case, and without respect to the motive of the
importer, to legalize the subsequent voyage : The meaning
undeniably is, that the legal effect of the importation, turned on
the question of fact, whether the transaction was evasive or in-
genuous ; but that a recent decision had held the facts of landing
and paying of duties to be, in general, sufficient evidence that it
was ingenuous and not evasive, when the only circumstances
leading to an opposite conclusion, were such as the report de-
scribes, namely, “a reshipment in the same vessel, on account of
“the same neutral proprietors, and a sending forward for sale to
“the mother country, or the colony.”
This is so far from implying that landing and paying duties
would, under all circumstances, be sufficient, that it evidently
implies the contrary. Can it be said, for instance, that the
charty-party of the ship being for an entire voyage from the
colony to Europe, (which was the case of the Enoch,) is not a
a circumstance, which, in conjunction with those which are here
specified, might, consistently with this opinion, repel the favour-
able presumptions arising from the landing and paying duties in
America : If not, into what can this part of the opinion be
resolved, but a mere specification of the evidence which, under
given circumstances, might suffice to satisfy our Courts of Prize
of the fair intent of the importer
Supposing, however, that the language would fairly bear a
different construction, I am still at a loss to discover what benefit
the American neutralizers can plausibly claim from this opinion.
They have landed their cargoes ; but have they truly performed
the other condition : Have they paid the duties 2 -
The King’s advocate, like the court to whose decision he
alluded, had been led by fallacious evidence to suppose that the
I87
large duties imposed on West India produce in America were
really paid in that country by the importers, whose case he was
considering ; and the consequence was, a reasonable presumption
that the importer, who submitted to that charge originally, meant
to take the benefit of it by a sale in the neutral country. But
it turns out on better information, that the duties are not paid—
that a trifling percentage on them only, is received by the
American custom-house. If the opinion therefore had meant to
give a substantive effect to the payment of duties, still the trade
in question can derive no sanction from this opinion ; and it is
preposterous to claim on this ground, any right of previous notice,
before these fraudulent transactions can be equitably treated as
illegal.
—sº-
(D), p. 57.
This contrivance has in fact already become very common :
but it has been a still more frequent precaution, to prepare the
means of sustaining, in case of need, that pretence which was
found effectual in the case of the Eagle,_Weeks (see supra, 47),
by offering the vessels and cargoes for sale by public advertisement.
Whoever will take the pains to examine the files of American
newspapers published in the last summer, may find that the sale
of a newly-arrived West Indiaman, with her entire cargo, had
in that country, however strange it may seem to the English
merchant, become ostensibly a very common transaction. Un-
luckily, in a late case at the Admiralty, newspapers were found
on board, which offered the vessel and cargo for sale, after the
date of those documents which were made up for the voyage to
Europe. r -
I understand that in the insurances on the latter branch of
these voyages, it is now beginning to be customary, to warrant
that the goods were not imported into America on account of the
assured.
—sº-
(E), p. 6o.
The author was not surprised to find that this great general
fact, however notorious in our Prize Courts, and among the
officers of our navy, excited astonishment in the minds of many
of his readers. It has been the fate of the great subject of our
Change
of property
in neutral
country to
prevent ap-
plication of
doctrine of
‘‘continuous
voyage.”
Absence
of enemy
merchantmen
on the Sea.
188
Flourishing
trade of
Antwerp.
Prosperity
of Cuba.
maritime system in general, as well as the most important facts
that relate to it, to be misrepresented abroad, and misunderstood
and neglected at home.
In 1805, the British public was surprised to hear that there
was not a hostile merchant flag, a few coasters excepted, to be
found on the ocean ; yet so early as 1799, the fact was officially
and publicly avowed, and in a less qualified way by our enemies
themselves ; for in an address of the Executive Directory of
France to the Council of Five Hundred, in January, 1799, they
distinctly stated, that not a single French ship had passed the
Sound in the whole of the preceding year; and that there was not
at that period a single merchant vessel navigating under their flag.
“Dans la dermier &tat publié par les gazettes du Nord du nombre des
“zaisseaux qui ont pasſé le Sund, depuis un an, on me frouze pas um feu/
“mazºire Français.”
And again, “Et quand il est malheureuſement trop zºrai, qu’il n'ya
“pas um ſeul vaisſeau merchand, maziguant sous pavillon Frangais, gue/
“autre moyen d'exportation avons mous, que l'emploi des vaisſeaux
“neutres P’ Code des Prises, Tom. II. p. 385.-See also a valu-
able note in the Appendix to Dr. Robinson’s 2d vol. of Admiralty
Reports, p. 378, to which I am indebted for this extract.
—sº-
(F), p. 62.
Such is the flourishing state of the trade of Antwerp, that in
the course of 1804 no fewer than 2 I42 vessels were entered in-
wards : and during the three first quarters only of the last year,
the trade had increased so much, that the number entered was
2513. Supposing the last quarter equally productive, the whole
number of vessels during 1805 would be 335o. See these facts
extracted from the Dutch Gazettes in the London newspapers of
October 30, 1805.
—sº-
(G), p. 63.
The following extract of a letter intercepted in its passage from
the Havannah to St. Croix, will furnish some means of estimating
the present importance of Cuba as a sugar colony. The letter is
dated the 2d April, 1805, and is addressed by a Spanish house at
the Havannah, to its confidential agent in the Danish Islands.
189
“Our products are uncommonly abundant. Our present crop
“will exceed 3oo, Ooo Boxes, and since the beginning of the year,
“the exportation has not exceeded 35,000 boxes. In a word we
“estimate our crop will amount to 12 millions of dollars.”
[Extract of letter from the firm of WIDow PoEY and HERNANDEz,
fo a merchant in St. Croix, found on board the CHARLEs,
STILES, master, a prize to H.M.S. L’EPERVIER, condemned
at Tortola. The papers are now in the Registry of the
Appellate Jurisdiction at Doctors’ Commons.]
The average weight of boxes of sugar from the Havannah is
about 4 cwt. I quarter English : 3oo,ooo boxes therefore are
about 1,275,000 cwt. and this it appears was the estimated pro-
duce of Cuba, in the present year, in sugar alone. Its other
products, especially indigo and cotton, though comparatively
small, are by no means inconsiderable ; and its agriculture in
general is very rapidly increasing.
But the quality of the produce is also to be considered : and
here Jamaica is very inferior to its formidable neighbour. The
sugar exported from Cuba is principally clayed, by which process
it becomes more valuable than brown sugar of the same growth,
by about twenty per cent.
Even the brown sugar however of Cuba is superior in quality
to that of Jamaica. The respective prices of each, and of other
sugars, in the Hambro', Antwerp, and Amsterdam markets in
August last, were as follows:
Prices Current of Sugar in August, 1805.

HAMBURGH. AMSTERIDA.M. ANTWERP.
Havannah. Havannah. Havannah.
White . . . 17 to 19 White . . . 17% to 22} | White . . . 66 to 68
Brown . . . 13% to 15 Brown . . . I 5% to 18 Brown . . . 52
Jamaica . . . I2 to 14 | English Colonies 14 to 17% Jamaica . . . 5o to 47
Martinique. Martinique. Martinique . . 46 to 43
Brown . . . II} to 14% Brown . . . I3% to 174 || Bengal . . . 50 to 6o
St. Domingo . . 13 to 14% Danish Colonies 13% to 17%
Surinam . . . Ir to 13% | East India . . I5 to 18%
East India. . . 12 to 16 The above are in guilders
These prices are groots banco | These are in groots per lb. per Too lb, duties and
per lb. Dutch. charges included.
From these prices it appears, that the brown sugar of Cuba not
only exceeds that of Jamaica in quality, very considerably, but
190
has every where a preference to all other produce of the same
description, that of the East Indies excepted.
The following extract of another intercepted letter from a
respectable house at New York, dated the 16th September last,
may serve, like many others which might be cited, to shew how
these valuable crops of Cuba are disposed of.
The letter is addressed to an eminent house at Amsterdam, and
after giving advice of a shipment of 593 boxes of Havannah Sugar
to that house, imported, as usual, through America, the writers
add—“The importation of sugar from the Havannah is im–
“mense, and will continue while the port remains open. We
“may expect large supplies of coffee during the winter, and next
“spring, all of which will go to Europe, and principally to your port.”
(Letter No. 22, found on board the Ambition, Freeman, master,
lately under adjudication in the High Court of Admiralty.)
Among the many advantages which this great Island now
possesses over its British rivals, may be reckoned one, of which
every colonist and merchant will feel the great importance—the
reduction of the rate of exchange with Europe.
It appears by an intercepted letter from a merchant at the
Havannah to his correspondent at Cadiz, of the 3d of August
last, that the premium on the best bills of exchange upon Spain,
had then fallen to 4 per cent. At the same time bills drawn on
England from Jamaica bore a premium of about 7% per cent.,
and the exchange at our Windward and Leeward Islands, as far as
it is capable of being averaged, was above £190. for ſIoo. Sterling ;
whereas the par is £175. Last war our colonists sometimes could
not find good bills to purchase at 2 oo per cent., and the premium
at Jamaica was as high as IO or 12 per cent. But the same letter
from which I cite the fact, gives the true and natural cause of this
new advantage of Spanish colonial commerce. “The person who
“gave me this bill of exchange (a bill for I 5,764 dollars, bought
“at the above premium, which he encloses) enjoys the highest
“credit and reputation in this place. He has remitted large parcels
“of sugar through the channel of the Americans to the drawee thereof,
“ and has juſt received intelligence of the departure from Boſton for
“Santander of about three thousand five hundred boxes of sugar by
“different zessels for which reason I had no difficulty in de-
“livering him your money, &c.” (Letter found on board the
Unanimity, Wilson, master, brought into port in November last,
and examined in the High Court of Admiralty, No. 44.)
This bill was drawn on a house at Madrid, and payable at fifty
*
191
days after sight; whereas bills for such large sums are never
drawn from our Islands at less than ninety days, and are commonly
at much longer sights. Such a bill, therefore, would have borne
an extra premium at Jamaica, or St. Kitt's.
– sº-
(H), p. 67.
The premiums of insurance have advanced very considerably
since the period referred to in this work, not only in consequence
of an apprehension that this country will not in future submit to
the gross wrongs which she has so long patiently endured ; but
also from the season of the year, by which the sea risques are of
course greatly increased. It is not easy therefore to determine
what part of the advance may fairly be ascribed to the cause first
assigned ; but I understand, that policies on ships bound from
North America to Europe with produce of the hostile colonies,
which in August last were made at 3, and last winter at 6 per
cent. have lately borne a premium of Io.
It is highly curious and important, to compare by this decisive
standard of insurance, the effect of our hostilities in the present
war, with that of the wise and energetic measures of the war
1756, when the great principle that I contend for was fully
asserted ; and this comparison I have been enabled, through the
courtesy of a friend, to make, since the first edition of this work
was published.
A little French tract has been put into my hands, which was
published in 1779, and is intitled “ConsiderATIONs sur L’ADMISSION
“DES NAVIREs NEUTREs Aux Colonies FRANÇoises DE L’AMERIQUE EN
“TEMS DE GUERRE ; ” it is avowedly a mere transcript, the addi-
tion of a few notes excepted, of a manuscript memorial written
during the war 1756; the object of which, was to dissuade the
French government from persisting in an experiment which had
been found ineffectual, and in many respects pernicious to France
herself.
It must be confessed, that the author gives very powerful reasons
in support of his advice; but on what do they chiefly turn ?
Why, on the facts, that Great Britain had not respected the
neutral flags, when engaged in conducting the colonial trade, but
had seized and condemned them, with their cargoes; that the
neutral powers had not thought fit to quarrel with Great Britain
for this proceeding ; and that in consequence, the carriage in
Advance of
premium on
II].SUlra.]]C6.
British in-
surance of
neutral trade.
192
neutral bottoms had become more hazardous and expensive, than
the carriage in ships openly navigated under the flag of France.
The author, in reply to an antagonist who had urged a sup-
posed saving in the premiums of insurance, in favour of the
neutralizing plan, has this important passage :-* On suppose, je
* ne sais pourquoi, l'assurance sur les navires François à 8o pour
* cent ; mais dans le tems que l'auteur ecrivoit, les assurances se
* faisoient couramment à 5o pour cent ; et depuis, sur les seules
* espérances d'une protection prochaine " (he alludes to a design
of furnishing convoys) * elles baissérent à 35 et à 33 pour cent.
* Les deux chambres formées à Bourdeaux depuis la guerre, firent
* à cette époque pour plusieurs millions d'assurance à ce prix :
* ce ne fut que quand on vit que tout étoit désespéré du côté de
la protection, que les primes montérent successivement à 4o, 45,
5o, et jusqu'à 6o et 65 pour cent ; mais elles ne passérent
point ce dernier prix, pour les navires qu'on savoit ne pas tarder
d'arriver, et qui, n'avoient que les risques ordinaires à courir.
Il ne semble donc que dans un pareil calcul, il n'étoit pas pos-
sible d'établir la prime au-dessus de 5o pour cent, au lieu de
8o, ce qui fait une difference de 3o pour cent.
* 2° On établit la prime sur les vaisseaux étrangers à I 5 pour
* cent. On sait qu'elle n'a été à ce prix, qu'autant de tems que les
* Anglois ne prenoient point les neutres, ce qui n'a pas été bien long ;
mais aussi-tôt qu'ils ont commencé à les arrêter, les primes ont monté
successivement à 2 5, 3o, 35, jusqu'à 6o pour cent; et enfin on n'a
trouvé à les faire assurer à aucun prix, et beaucoup moins que les
vaisseaux François,º p. 48, 49.
We obtain here, from this French author and his opponent,
two very striking facts : Ist, That the maritime superiority of
this country, such as it was, even in the war of 1756, was so de-
structive to the commerce of our enemies, as to oblige them to
pay in the colonial trade 6o per cent. for insurance on common
risques, and 8o in extraordinary cases. 2d, The expedient to
which they in consequence resorted, became, by the firm asser-
tion of our belligerent rights, so ineffectual, that the premium
soon again rose to the same rates, till neither in French or neutral
bottoms, could they obtain any insurance at all.
Let these facts be compared with the effects of the same strata-
gem in the late and present war, when unresisted on the part of
Great Britain. What would these French politicians have said,
if assured that the measure in dispute would reduce the premium
of war insurance in the same trade to 6 per cent. and to a lower
(.
6
6
4 6
4
6
4 %
6
6
6
(
6 4
6
(
6
6
C
(.
6
(
193
rate even than that to which their triumphant enemies were
subject : There would have been an end at once of the contro-
versy; and they would have united to applaud the happy new
expedient, which, as this cotemporary writer tells us, “fat annoncé
“et exalte, avec une chaleur et um enthousiaſme, qui m'ont peutéire
“famais eu d'exemple.”
-º-
(I), p. 76.
It was stated in the first edition, that a large part of all the
property engaged in the collusive commerce carried on with the
hostile colonies, by means of the double voyages, was insured in
England.
This, the Author finds, has been objected to ; being understood
as an assertion that not only “the greater part,” but “nearly the
“whole,” was so insured. Such a construction exceeds the sense
which was meant to be conveyed ; and seems also to exceed the
natural import of the words “a large part”; but perhaps the use
of any comparative or fractional terms whatever was incorrect,
since the proportion which the part of this commerce so insured
bears to the whole, cannot be stated, both the quantities being
unknown, and incapable of being, by any means in the author’s
power, ascertained. *
It may be true, that more of the property engaged in this trade
is insured in America, than in England. That a large part of it
is insured in that country, the Author well knows, and did not
withhold that fact. The American underwriters found it, no
doubt, so profitable a subject of adventure, even at the low
premiums of the last summer, that they chose to rival our mer-
chants largely, in this, as well as in other speculations; and the
Author heartily wishes they had taken the whole of it. It is
enough for his argument, and too much for his satisfaction, that
the British underwriters have certainly partaken very freely of
these insurances, and added to them a secret release of the neutral
warranty.
The policies negotiated at Lloyd's, on ships and cargoes in this
trade, but more especially on the cargoes, and in the European
branch of the voyage, have been very numerous ; and their collec-
tive value, during the last and present war, has been immense; but
none of the Author’s conclusions depend at all, either on the rela-
tive or positive amount of these insurances ; and therefore he
O
Comparison
of imports
and exports
of the sugar
islands.
§ [see p. 7I.]
194
Relative
price of
West Indian
produce in
British and
enemy ports.
Commercial
policy
of Spain.
has, in the present edition, wholly omitted the words in question,
without the substitution of any others in their stead.
—sº-
(K), p. 85.
In this comparative estimate of the value of the imports and
exports of the sugar colonies, the differences in respect of the state
of society and manners, between the foreign and British islands
ought to be considered. If the estimate were applied only to the
British sugar islands, a much greater balance in favour of the
exports ought, I conceive, to be stated ; and in the Dutch agri-
cultural colonies the case was not very different ; but the imports
from Europe, and during the last and present war, from America
too, into the French islands, and into Cuba, have borne a much
larger proportion in value to the exports, than is common in the
West India trade.—The latter, however, are everywhere vastly
superior to the former.
—sº-
(L), p. 89.
By late accounts from the Havannah it appears, that sugar and
other produce were selling there in July and August last at such
prices, that the American merchants could not purchase to sell
again in their own country, without sustaining a loss.-Their
genuine trade would have been ruined by excess of competition
therefore, if some check had not been given to the facility and
safety of the collusive double voyages.
Indeed the fact stated as to the rate of exchange in note G,
supra, seems a sufficient proof that genuine neutral trade could
have little encouragement; for Spaniards, shipping on their own
account, under cover of neutral names, could, as we have seen,
not only obtain credit on the score of their consignments, but in
drawing on the funds which they so remitted to the mother
country, could afford to sell their bills at the low premium of
four per cent.
If the author rightly remembers the true principles of that
difficult and intricate subject, “the course of exchange,” as he
once learnt them from Mr. Thornton’s valuable Treaties on Paper
Credit, this price of Spanish bills on Madrid, shews that the
195
means of remitting mercantile commodities on Spanish account
to Spain, were cheap and copious ; and if so, the real neutral
merchant could scarcely expect to buy to much advantage from
the merchants or planters of Cuba.
-Q-
(M), p. 94.
It is perhaps worthy of remark, that the European goods which
were to be received in pursuance of this contract, and which were
in consequence shipped from neutral ports in Europe, for La
Guayra and other ports in South America, were all continental
manufactures, and such as are the most dangerous rivals of our
own in the colonies of Spain. Great progress, it is to be feared,
has at length been made towards the execution of a plan openly
avowed by the Spanish government during the last and present
war; that of wholly excluding our linens, cottons, and other
manufactures from the ports of its colonies, while articles the
fittest for supplanting them, are allowed to be imported freely in
neutral vessels.-In the confidential letter from which an extract
has already been given in note G, the Spanish writers at the
Havannah inform their correspondent at a neutral island, that
their port is now opened for the importation of dry goods, and
mention the articles which may advantageously be sent for the
consumption of Cuba.--‘‘German linens (say they) are still
“in demand, and command quick sales.”—Other articles are
mentioned, but not a word of any British manufactures.
-º-
(N), p. Ioo.
Certificates of naturalization are often produced by our seamen,
which they admit to be fictitious, and which have been given
to them in America, by the landlords of the public-houses which
they frequent in the ports of that country, or by the companions
they meet in such places—When sold, the price is perhaps a
measure of ale, or of grog, or some equally paltry consideration
in money.—The instrument imports an oath, but no oath is in
general taken.—Sometimes the name of some other seaman is
erased from a real certificate, which the true owner can renew at
pleasure, and that of the English stranger inserted in its stead ;
Contract for
sale of Royal
Spanish
tobacco.
Fictitious
American
naturalization
papers for
British sailors.
I96
Monopoly of
colonial trade
the universal
policy.
and sometimes, no doubt, the whole instrument is forged. These
practices are quite notorious.
-º-
(O), p. 136.
A fuller or stronger confirmation of this statement cannot be
desired, than is contained in the valuable little French tract written
during the war 1756, from which an extract has already been given
(see note H supra). These are the author’s words: “L’histoire ne
“fourmit aucun exemple d’une nation qui ait cédé l'exploitation de
“son commerce et de ses colonies, sous aucun prétexte; pas même
“ de la guerre plus malheureuse. Espagnols, Portugais, Danois,
“Anglois, Hollandois, tous ont été unanimes sur cet objet im-
“ portant d'adminstration, qui ne pourroit raisonnablement souffrir
“ d’exception, qu'autant, qu'il y auroit réciprocité, et que la liberté
“seroit indéfinie pour tous les peuples que possédent des colonies,”
(p. 79).
Perhaps the reader may suppose, that France having, since this
tract was written, thrice reversed this ancient and universal maxim
of policy, to suit her convenience in time of war, now looks on the
maxim itself as erroneous, or of little importance ; and would not
be very unwilling to dismiss it from her pacific system ; at least,
if other colonizing powers would concur in such liberality. But
our modern enemies have no idea of countenancing their neutral
accomplices, or vindicating their own consistency or moderation,
at any such price. Their attachment to the principle of the
colonial monopoly is as strong, may stronger, than ever. They
would not now admit even that exception, which the champion of
the principle from whom the above extract is taken, was willing to
allow. They would not agree to throw open their colonial trade
in time of peace to other nations, if every other colonizing power
in Europe, were willing to grant a reciprocal freedom to them.
Nay they would not do it, at the price of a commercial confederacy
against Great Britain.
If these propositions seem strange, let the reader attend to the
following extracts from the famous work of M. Hauterize, and be
convinced that, however strange, they are true. In that official pub-
lication, for such, though not openly avowed, it certainly was, M.
Hauterive, the French under secretary of state in the year 1800, de-
veloped the system and the views which his government had then
adopted, and in which it wished all the nations on the continent to
197
concur, for the attainment of “that liberty and equality’’ on the
seas, about which Buonaparte has ever since continued to rave : in
other words, for ruining the commerce and marine of this country.
The conduct and the language of the Usurper concur to demon-
strate, that at this moment he still adheres to the views opened by
Hauterive , and still hopes, notwithstanding the refutation of that
libellous and mendacious work by the pen of M. Gentz, that the
continental powers may be persuaded to adopt them. Let us see
then what these views are in respect of the colonial trade.
“All those evils,” (i.e. the evils which the author ascribes to the
maritime preponderance of England) “ought to be terminated by
“two regulations, which should form the maritime law of nations for
“ the nineteenth century.”
M. Hauterive’s first remedy, is the abolition of maritime capture,
in respect of property passing under the neutral flags. His second,
is the repeal of all prohibitory laws by which commerce is restrained,
in time of peace; but with an express exception of the coasting trade,
and of the colonial monopoly. He shall speak, however, for himself.
“Ist. Cruizing is abolished. In time of war, the sovereignty of
“territory is transferred, with all its rights, to the flags of nations
“which take no part in the war.
“2d. In time of peace, the navigation from one people to an-
“other is subject to no prohibitory laws: this regulation should
“have but one exception, that which relates to coaſting from one port
“ to another belonging to the ſame nation, and the navigation between the
“colonies and their mother country” (De L’Etat de la France, à la Fin
de l’An viii. Goldsmith's translation, p. 163).
Here we see that this French statesman, and the government by
which he was employed, did not chuse to relinquish the colonial
monopoly in time of peace, even in consideration of absolute and
unlimited protection to their commerce under the neutral flags in
time of war ; nor even as part of a new system which was to ruin
the power of England.
His scheme, in general, is a federal association of commercial
states, who are in favour of each other, to throw down the pale of
their prohibitory laws, and admit, among the members of this
commercial league, a perfect freedom of trade, excluding therefrom
only Great Britain, and any other powers that may be obstinate
enough to adhere to their ancient restrictions, till we shall be com-
pelled to repeal our navigation laws, and accede to the new
“maritime code of the nineteenth century.”
But though it seems, that in favour of this federal union, he
198
Enemy
merchants
in neutral
countries.
would throw open even the coasting trade, he would still cleave
fast to the darling colonial monopoly. “I except,” he says, “from
“this law of reciprocity, the navigation between the colonies and the mother
“country; which, IN THE BEST OF TIMEs, ought to continue privileged; but
“ distant or foreign importations, and the coasting, as zwell as exportation,
“ought not to be subjected to greater ſetters fºr allied commerce, than
“for national commerce.” (Same translation, p. 172—see also Mr.
Cobbett’s Annual Register, I vol. p. 234, &c., in the account of
a speech of Dr Lawrence, who pointed out these and other
important passages to the notice of parliament, in 1802.)
It is to be hoped, that Mr. Hauterive’s “best of times” will
never arrive ; but should that golden age, the reign of the
“new maritime code of the nineteenth century,” be realised,
we are here plainly told what will be the consequence.—France,
in clothing herself with the colonial spoils of England, will
reserve to herself, in time of peace, that little peculium out of
the general community of trade ; but in time of war, should
she still find a maritime enemy, will again consign it to the
safe-keeping of the neutral flag. The colonial ports, like the
temple of Janus, will still open and shut at every alternation of
war and peace; or, to borrow an illustration from the French
author first quoted, the colonial trade will be like a tennis ball,
which Frenchmen and foreigners will alternately keep up. “C'est
“qu’à chaque révolution de guerre, le commerce des colonies passe aux
“mégocians trangers, pour revenir & chague révolution de paix aux
“ négocians François, comme une balle de jeu de paume revient au
“foueur,” p. 78. This, the reader is requested to observe, was
the original conception of the plan in the war of 1756.
– sº-
(P), p. 16o.
Many of the enemy merchants are now become too provident
to lose the amount of the neutralizing commissions, by employing
strangers as their agents. It has of late been a very ordinary
practice with them, to send a partner, or a relation, to the
neutral country to which they trade, where he soon becomes,
according to the indulgent rules of our prize courts, a neutral
subject, either by domicil or naturalization, or both ; and then
acts as general agent for the house with which he is connected
in the belligerent state. A great many of the most eminent
neutralizers in America, are persons of this description ; and
199
some of them who had actually removed with their whole pro-
perty to their native countries, during the last short-lived peace,
have again modestly returned, for the benefit of neutral character,
to the United States. -
-—ssº-
(Q), p. 163.
The example of the neutral powers of Europe, in the war
1756, may here furnish a useful precedent for America ; and
the reasons of their conduct, as given by the intelligent French
writer before quoted, so exactly agree with the ideas suggested
in this work, that the Author cannot forbear quoting the passage.
Speaking of an expectation which the friends of the new strata-
gem had entertained, that if England resisted the innovation by
capturing the neutral carriers, their governments would quarrel
with her for that proceeding, he says—“Il faut bien aimer a se
“faire illusion pour se persuader pareille chose. On le Sait, les
“Anglois ont pris indistinctement tous les vaisseaux qu'ils ont
“rencontrés, et toute l’Europe les a vu faire sans s'en mettre en
“ peine. Mais pouvoit-on l’imaginer autrement Quelle appa-
“rence, en effet, que des Etats qui ont de si grands intérêts à
“concilier, et tant de mesures à garder, se determinassent à entrer
“ dans une guerre toujours ruineuse, pour ſoutemir que/gueſ-uns de
“leurs negocians, qui auroient entrepris de faire un commerce prohibé;
“commerce que ces mémes Etat; me pouvoient regarder, quelqu'avantageux
“qu’il fut, que comme précaire et momentané, pour leurs suffets!” p. 26.
—
(R), p. 164.
It was stated in the first edition, that the Americans could,
before the commencement or contemplation of the last war,
import into certain free ports of the French West India islands, their
native provisions and lumber ; but this admission, since it had
no reference to the irregular proceedings in those islands, which
took place in 1792, (see supra, p. 27) was too extensive. The
liberty of trade at the French free ports, prior to those revolu-
tionary changes, did not extend to the importation of provisions
generally, but only to certain enumerated articles, among which
wheat flour, the great staple of North America, was not included.
Some obscurity has hung upon the nature of this commercial
Attitude
of neutral
Powers in
Europe when
the “Rule of
1756” was
first enforced
American
trade with
French West
Indies prior
to I?93.
200
intercourse in point of law, from the peculiar manner in which
the subject has been regulated.
It has often been asserted on the part of America, that she
was entitled by treaty to the trade she possessed with the French
West India colonies before the war; but no treaty is to be
found, that has any reference to the subject, except the general
treaty of amity and commerce of February, 1778.
In the 3oth article of this treaty we find the following words:
“His Majesty will also continue to the subjects of the said
“States, the free ports which have been, and are open in the
“French islands of America ; of all which free ports the said
“subjects of the United States shall enjoy the use agreeable to
“the regulations which relate to them.”
Two articles, which do not now appear in the treaty, were
originally inserted in it, and agreed to by both parties ; but
were afterwards by mutual consent rescinded—They formed the
I Ith and 12th articles; and their effect was, an agreement by
France, that no duty should ever be imposed on the exportation
of molasses sold in her islands to subjects of the United States;
in consideration of which it was stipulated on the part of the
latter, that no duties on any kind of merchandize whatever, which
the subjects of France should purchase in America for the use of
their sugar colonies, should ever be imposed on the exportation
thereof from the American ports. -
The enormous inequality of this agreement, was no doubt
the cause that it gave discontent in America, and that France
at that very critical conjuncture did not think it prudent to
insist on the advantage which she had gained ; the two articles
therefore cancelled in the following September, and the treaty
was published, with a new enumeration of the articles as they
at present appear. As it now stands, the only stipulations re-
specting the West India trade, were plainly nugatory, since it
depended on one of the contracting parties alone, to give to them
whatever effect he thought fit, or to render them wholly fruitless.
The clause in question of course could not be construed to
disable France from regulating the general trade of her own free
ports at her discretion ; nor was such a strange construction ever
contended for on the part of America. On the contrary, the
royal orders of the court of Versailles, made during pleasure,
continued, without complaint from the government of the United
States, to regulate and alter the limited trade of the free ports,
from the time of this treaty to the revolution, as well as since
201
that period. Arrêts of 1784 and 1785 contained the principal
regulations ; and it does not appear that the subjects of the
United States ever had any privilege beyond other foreigners ;
except that from the nature of the commodities allowed to be
imported, they alone perhaps, among all the nations now neutral,
were in possession of the free-port trade.
This commerce therefore, narrowly limited as it was, rested on
a voluntary and precarious licence; when the war came and
opened every port in the French colonies, to every neutral nation.
On the commencement of the last war, Citizen Genet, the
ambassador from the French revolutionary government to America,
obligingly proposed, not only to remedy the former defect, but
instead of a paltry trade to the free ports, to give to the United
States, by treaty, a full and perpetual admission into all the
colonial ports of the republic; provided they would in return
enter into such intimate federal engagements with her, as he did
not scruple to liken to the family compact, and one of the avowed
objects of which new compact was “the breaking up the colonial
“ and monopolizing systems of all nations.”
The American government had too much wisdom and justice
to enter into the proffered league ; but offered to negotiate a new
commercial treaty ; which the rulers of France and their successors,
finding the United States deaf to their fraternal overtures, thought
it best to decline. .
From this explanation, added to the facts in the text, it will
appear, that the claim which America and other neutral states
might speciously set up to a qualification of the rule of the war
I756, on the score of relaxations, prior to the late or present war,
in the colonial system of France, is of a very narrow extent ; and
far short of what the author suggested as a proper subject of
amicable concession on the part of this country.
Waving the consideration, that the special privileges of free
ports, cannot reasonably be regarded as relaxations of the colonial
monopoly in general, so as at all to affect the principle in question,
in respect of places not within the limits of those privileged
districts; the utmost latitude of the trade allowed in those free
ports to foreigners, was the exportation of rum, taffia, and molasses,
and the importation of enumerated articles ; and the latter, as has
been observed, did not include the grand staple of North America,
flour, in finding a market, for which, the landholders of that
country are more largely interested, perhaps, than in all the rest
of the commerce that passes under their flag.
202
Probability of
hostile action
by the United
States
discussed.
The enumerated articles of importation were, wood or lumber,
pit coal, live animals, fatted beef, salted fish, rice, Indian corn,
vegetables, green hides, peltry, turpentine, and tar : but the last
ordinance, that of 1785, materially abridged the commerce in one
of the chief articles, salted fish, by imposing heavy duties on that
commodity when imported by foreigners, and giving bounties on
its importation from the national fisheries ; which, together,
would have amounted to a prohibition of the former, if natives
could have fully supplied the demand.
As to the principal staples of the West Indies, sugar, coffee,
cotton, &c. the privileges even of the free ports, in no degree
extended to them ; nor were they ever at any time exported in
time of peace in foreign bottoms, unless by smugglers. So far, we
see, were the United States from raising their views to a trade in
these valuable articles, that when they agreed to give an unlimited
and perpetual right of exportation from their ports to the French
colonists, duty free, in respect of all merchandize whatsoever, they
bargained only in return for the free exportation of molasses.
—sº-
(S), p. 17 I.
It would be difficult to notice without ridicule, if the gravity of
the subject, and respect for the government and people of the
United States, did not restrain all risible emotions, a menace to
which the neutralisers have lately resorted.
These French and Spanish agents gravely tell us, that if we do
not acquiesce in their own injurious pretensions, “the government
“of America will prohibit the exportation of flour and other provisions
“ to the British West Indies, and starve our sugar colonies.”
Asking pardon of that wise and highly respectable government,
for admitting, for argument’s sake, the supposition of such a
preposterous attempt, how, I would ask these gentlemen, do they
hope to make the prohibition in any degree effectual :
America, during the last war, indignant, not at imaginary
wrongs, not at the temperate resistance of her own unneutral
conduct, but at gross, unprovoked, insulting, multiplied injuries
from France, interdicted all commerce whatever with that country
and its colonies, armed at great expence to obtain redress, com-
menced even some actual hostilities, and in every part of the
United States the public feelings heartily engaged in the quarrel ;
yet the prohibitory law was widely and openly evaded, and the
203
French islands were perhaps never more copiously supplied with
American provisions, carried in American bottoms. Their ships
cleared out for St. Bartholomew and ran into Guadaloupe ; they
cleared out for Baracoa in Cuba, or Jamaica, and ran into ports of
St. Domingo, even into ports occupied by Rigaud, the most furious
partisan of the French government. They returned to America
with cargoes shipped in those colonies, disguising the contraband
transaction, in all cases, only by the flimsiest veils.
These facts are sufficiently attested by the records of our Court
of Appeals in Prize Causes ; for great numbers of these smugglers
were captured by our ships of war, from an opinion that, on
account of the inchoate hostilities between the United States and
France, they were lawful prize, as being engaged in a trade with
a common enemy.
These alarmists might be further posed by another case, still
more closely applicable in its circumstances, to that with which
they threaten us.
The countries now composing the United States, were once
hostile to our sugar islands, and the direct commercial intercourse
between these enemies was cut off by mutual prohibitions. Yet
the latter were not starved. The advocates of the revolted colonies
then predicted that dreadful consequence, but were wholly dis-
appointed. The prices of American provisions and lumber, were
not even advanced to the same dearth which they have attained
during the last and present war. Let it be observed too, that at
that period our own laws rigidly excluded the direct trade in
question, and were well inforced, but the neutral islands were the
convenient magazines in which the American cargoes were
deposited, and from which our planters were supplied.
In that unhappy case, the possibility of which is for the argu-
ment’s sake supposed, the same entrepôts would be an effectual
resource ; and the supply of our islands would be restored to the
very same channels, through which, by the effects of the American
intercourse act, it now always flows in time of peace. But this is
said only on the supposition that his Majesty’s government might
not choose to admit of the trade in hostile bottoms. Should our
ports be opened to them, with safe conducts, the vessels of the
United States would bring in their native commodities as freely as
at this moment, in spite of war and prohibitions. The only differ-
ence would be, that our planters would be much more cheaply
supplied than at present ; for in the case supposed, the trade to
the hostile colonies would be in great measure cut off by our
204
cruizers, and the produce of the United States therefore would
find scarcely any other safe West India markets than our own.
One of the many disadvantages which our colonies sustain in the
present state of things, is that the permission to ship sugar, coffee,
and cotton, naturally induces the neutrals to prefer the ports of
our own islands, by which the former obtain a pre-emption of
the outward cargoes, and their price in the latter is raised.
The menace to which these remarks are opposed, would in truth
have far more terrors for the American farmers than for our own
planters, were it capable of being carried into effect. To tell that
numerous and important class of American citizens, that they should
not send their produce to market, would be like bidding them
“hold their breath and die.”
And under what circumstances, is the American government
supposed to adopt and enforce so strong a measure ? It must be at
a juncture the most difficult and alarming that can be imagined ; at
a time when, by the ruin of its commerce and its commercial
revenue (infallible consequences of a war with this country) it
would have no resources for the great and extraordinary demands
of maritime war, but very heavy interior taxation.
By the Report of the Secretary of the Treasury of the United
States to Congress in December, 1801, the public revenue of every
description was estimated annually to produce from 1802 to 1809,
inclusively, as follows:—
Dollars.
Duties on merchandize and tonnage . tº . 9,500,000
Internal duties (stamps excepted) tº g . 650,000
Proceeds of the sales of public lands . * . 4OO,Ooo
Duties on postage º tº 5O,Ooo
Io,6oo,ooo
The ordinary establishment was estimated at } -
3,5 Oo,OOO
per annum . © e gº
Which would leave a surplus of . . e . 7, IOO,OOO
dollars for the payment of interest and reduction of the principal
of the public debt.
From these premises it appears that external commerce con-
tributes more than nine-tenths of the whole revenue of the country;
and that if this source of supply were cut off, all the present in-
ternal duties, with the aid of the proceeds of public lands, would
be so far from sufficing to keep down the interest of the subsisting
205
debt, that they would not satisfy one third of the expences of the
peace establishment; there would remain a deficit of 2,400,ooo
dollars to be provided for, beyond the interest of the public debt,
before any war fund could be raised.
Now that the exterior commerce of America, if not wholly cut
off, would be soon reduced to a very low ebb by a war with Great
Britain, cannot be doubted : internal taxes therefore would be
necessary to supply the loss of revenue, and to raise from the
stocks a navy capable of annoying the commerce of this country,
as well as to provide for the other expensive services of war. Let
it be considered, that under the present system, and from its natural
effects, we are obliged to convoy even now all our trade on the
Atlantic, by a force which ships of the line only can assail. America
therefore could hope to annoy us only by means of a public marine,
and consequently very heavy burthens must be laid on a people,
who in the interior are poor in every thing but landed possessions,
who do not now contribute to the state, the postage duties included,
above 700,000 dollars, and among whom a small excise duty, a
few years ago, produced a serious rebellion.
The author is far indeed from wishing to depreciate the
power, or the public spirit of the American people ; for whom,
as a nation, he feels great predilection and esteem. Their
strength is of the best kind ; it is defensive and internal ; and
their spirit, he doubts not, will, like that of the race from which
they sprung, rise superior to every difficulty, when the public
safety or honour requires its exertion : but the self-interested
men, who would push them into an unjust quarrel, must not
be suffered, without contradiction, to magnify by these pre-
posterous threats, their powers of annoyance, in the hope of
inflaming one great people, and intimidating another.
These idle menaces seemed the more to demand notice, be-
cause they have lately been sent to our newspapers in the form
of an extract from an American print, with the imposing title
of “American State Paper” in front, and with a scandalous
insinuation, that the paper was published under the sanction
of the executive government of the United States. (See the
London papers of Dec. the 16th.)
There can scarcely be a fouler libel on that very respectable
government, than to ascribe to it such a senseless and insolent
composition as this ; which is plainly of French manufacture,
or else the work of some neutralizing French agent, who has
caught the style of his employers.
206
The dignity, as well as wisdom of the American government
insures to us, that if it saw cause of complaint or expostulation,
the channel would not be a newspaper essay ; nor the manner,
the vague abuse, and absurd menaces, contained in this pretended
“State Paper l’” The subject of complaint would be better defined
than by the old jargon of “lawless violence,” &c. the great
principles in controversy, would be calmly discussed, and an
appeal would be made to our understanding and our justice ;
not to our avarice, and our fears.
FINIS.
C. WHITTINGHAM, Printer, Dean Street.
APPENDIX B7^ THE EDITOR
-- ^-
--
| (I) p. 3.
Extract from the Moniteur " of August, I 5, 18o5.
Extrait du Morning Post, du 2 août, 18o5.
On dit qu'on a reçu hier l'avis que l'escadre de Rochefort avait
été vue à la hauteur du Cap-Clear. Les avis reçus par le
Gouvernement lui donne lieu de croire que l'ennemi tentera
quelque chose contre l'Irlande, et que l'attaque dont il ménace
la Grande Bretagne ne sera pas retardée au-delà de trois
semaines, à dater de ce moment. Les préparatifs de l'ennemi,
au Texel, à Brest, au Ferrol, et même dans tous les autres ports,
sont connus pour être très avancés, et Bonaparte est sur le point
de se rendre sur la côte.
La tentative contre l' Irlande doit d'abord avoir lieu dans le
dessein de faire diversion au grand effort qu'on doit tenter contre
l'Angleterre, et qui doit être simultané par les ports de la Manche
et de la Hollande. Quelle que soit notre anxiété à ce sujet, nous
n'éprouvons certainement aucune crainte. Que l'ennemi vienne
quand il voudra, il nous trouvera préparés à châtier sa témérité, et
à changer son audacieuse entreprise en une destruction certaine
pour lui-même.(")
Nos lettres de Deal, par la poste d'hier, disent que tout est en
alerte sur la côte de France, et que 2 à 3oo chaloupes canonnières
des ennemis sont sorties dans la rade extérieure de Boulogne. En
conséquence de cette nouvelle, une escadre formidable a fait voile
des Dunes sur-le-champ pour épier les mouvemens de l'ennemi.
(º) Et pourquoi l'ennemi de vient il pas ? Nous verrions de qui l'événement
châtierait la témérité. Nous connaissons votre généralissime : nous l'avons vu
*| The full title of this official Gazette, published daily in Paris, was Gazette
Nationale, ou Le Moniteur Universel. It gave fairly long extracts from foreign
newspapers, especially the English. Editorial comments, supposed to be
officially inspired, were printed in small type footnotes, which I have followed
in reprinting them. I have unfortunately been unable to trace all the references
made in the pamphlet.
208
à Hondscoot et en Hollande : le tiers de l'armée de Boulogne suffirait pour
changer ses audacieuses enterprises en une destruction certaine. Mais quoique vous
en disiez, vous savez, comme nous, ce que vous pouvez attendre d'une lutte
sur terre. Quand à la guerre de mer, vous avez acquis sans doute, et vous
avez conservé jusqu'à ce jour, une véritable supériorité, mais vous ne l'avez
due, mais vous ne la devez qu'à la trahison. C'est la trahison qui vous a livré
3o vaisseaux français à Toulon ; la trahison du prince d'Orange vous a valu
12 vaisseaux hollandais : la trahison enfin a détruit à Quiberon tout ce qui
existait des officiers de notre ancienne marine. Malgré ces avantages si odieuse-
ment obtenus, et que nous vous contestons pas, nos escadres vous attaquent sur
vos propres côtes. Le Shannon est blocqué, non par de petite bâtimens, comme
vous le dites, mais par une bonne et belle escadre. Vos colonies avaient
déjà rédigé leur capitulation, et envoyé des agens à Villeneuve pour traiter ;
mais ce n'était point là l'objet de sa mission, et malgré les contrariétés qu'il
a éprouvées en revenant en Europe, quoique sa navigation ait été de plus de
cinquante jours ; quoique les vents contraires lui en aient fait perdre vingt, il a
marché sur le corps de vos escadres, et opéré sa jonction. Son objet ne fut
pas d'attaquer votre commerce, et il vous a fait pour 2o million de dommages.
Dans les Indes une seule division française a fait sur vous des prises pour une
valeur encore plus considérable. Un seul bricq du côté des Orcades a capturé
tout un convoi de Terre-Neuve. Nos frégates parcourent toutes les mers ; il
n'y a pas de jours qu'il n'en entre quelqu'une dans nos ports, et vous n'en
avez pas encore pris une seule. Enfin vous vous vantiez d'empêcher la jonction
de nos flottilles, elles sont toutes réunies : et quand vous avez voulu vous
opposer à leur marche, elles vous ont battus ; vous vous vantiez d'attaquer
notre ligne d'embossage, et c'est elle qui plusieurs fois a attaqué vos croisières,
loin des batteries, jusqu'à mi-canal, et de manière que vos vaisseaux, vos frégates,
vos corvettes ont cherché leur sureté dans la supériorité de leur marche. Mais
il y a deux ans qu'on prépare la descente èt la descente n'arrive pas ! Elle
arrivera si vous ne faites pas la paix. Elle arrivera peut être dans un an, peut
être dans deux, peut être dans trois ; mais avant les cinq années soient expirées,
quelqu'évènement qui puisse survenir, nous aurons raison de votre orgeuil et
de cette supériorité que des trahisons vous ont donnée. Quant au Continent, ne
croyez pas que vous y ayiez des alliés. Vous êtes l'ennemi de tous les peuples,
et tous les peuples se réjouiraient de votre humiliation. Mais parvinssiez-vous
à corrompre quelques femmes ou quelques ministres, les résultats ne seraient
pas pour vous ; nous aurions sûrement acquis de nouvelles côtes, de nouveaux
ports, de nouvelles contrées, et nous reduirions vos alliés à un tel point, que
nous pourrions ensuite nous livrer tout entier à la guerre maritime. C'est
un singulier orgeuil que celui qui vous a fait penser que nous prétendions en
un jour, en un mois, en un an venir à bout de votre puissance colossale. Le
tems est un des moyens, un des élémens nécessaires de nos calculs. Ayez
recours dans une telle position à des complots, à des assassinats ; à la bonne
heure. Cette sorte de guerre ne vous est point étrangère. On dit déjà que
Drake songe à revenir à Munich ; Spencer Smith, à Stuttgard, et Taylor à
Cassel. La France ne souffrira pas qu'ils mettent le pied non seulement sur le
Continent, mais dans les lieux où en cinq à six marches peuvent se porter ses
armées. Les diplomates assassins sont hors du droit des gens.
Nous nous étions attendus à des malheurs quand vous avez déclaré la guerre.
Nous pouvions perdre la Martinique, la Guadeloupe, les Iles-deFrance et de la
Réunion ; qu'avez vous fait ? Vous vous êtes réduits à un triste systême de
blocus qui n'empêche pas nos escadres de parcourir les mers. Persistez à
209
bloquer nos ports, mais ayez les yeux fixés sur les signaux de vos côtes, et vivez
dans de perpétuelles alarmes.
Si votre nation indignée continuant á être la dupe de quelques hommes qui
se sont partagés le gouvernement de l'Angleterre, ne parvient pas à obliger vos
olygarques à faire la paix, et à leur persuader enfin que nous ne somme plus ces
Français si long-tems vendus et trahis par des ministres faibles, des rois fainéans,
ou des maitresses avides, vous marchez vers une inévitable et funeste destinée.
Nous désirons la paix du Continent, parcequ'il se trouve placé comme nous
avons voulu qu'il fût. Nous aurions pu augmenter notre puissance, et affaiblir
celle de nos rivaux si nous l'avions trouvé convenable. S'il est quelque Etat
qui veuille troubler le Continent, il sera la première victime, et sa défaite
retombant sur vous-mêmes, rendra vos périls plus imminens et votre chute plus
assurée. Nous le répétons ; une paix juste et raisonnable peut seule vous
sauver. Un de nos adages et déjà prouvé, et puisque vous n'espérez le salut que
dans le eoncours d'une pUissance du Continent, seuls vous ne pouvez donc rien
contre la France, et la France ne souffrira pas que seuls vous ayiez des vaisseux
sur les mers ; les mers sont la domaine de tous les peuples.
(II) p. 4.
The following is an extract from the speech of M. Bacher,
French Chargé d'Affaires at Ratisbon, pointing out to Austria the
error of her ways, as reported in the Moniteur, Sept. I 1, 18o5.
Dans les circonstances présentes où les préparatifs et les
mouvemens de la Maison d'Autriche ménacent le Continent
d'une guerre nouvelle, S. M. L'EMPEREUR DES FRANÇAIS,
ROI D'ITALIE, sent le besoin d'exposer, dans une déclaration
franche et solennelle, les sentimens qui l'ont animé et qui
l'animent, afin de mettre les contemporains et la postérité à la
portée de juger avec connaissance de cause, dans le cas où la
guerre viendrait à éclater, quel aura été l'agresseur.
Tout ce que [l'Autriche] a fait de contraire à l'esprit et à la
lettre des traités L'EMPEREUR 1'a souffert . . .
L'EMPEREUR a évacué la Suisse rendue tranquille et heureuse
par l'acte de médiation ; il n'a laissé en Italie que le nombre de
troupes indispensable pour soutenir les positions qu'il devait
occuper à l'extrémité de la péninsule, dans la vue de protéger
son commerce du Levant, et de s'assurer un objet de compensa-
tion qui put déterminer l'Angleterre à évacuer Malte, et la
Russie à évacuer Corfou : il n'a laissé sur le Rhin et dans
P
210
l'intérieur de son Empire, que le nombre de troupes indispensable
pour la garde des places.
Livré tout entier aux opérations d'une guerre qu'il n'a point
provoquée, qu'il soutient autant pour les intérêts de l'Europe que
pour les siens, et dans laquelle son principal but est le rétablisse-
ment de l'équilibre dans le commerce et l'égale souveraineté de
tous les pavillons sur les mers, il a réuni toutes ses forces dans des
camps sur les bords de l'Océan, loin des frontières autrichiennes ;
il a employé toutes les ressources de son Empire à construire des
flottes, à lever des marins, à creuser des ports ; et c'est dans le
moment même, oû il se repose avec une entière confiance sur
l'exécution des traités qui ont rétabli la paix sur le Continent,
que l'Autriche sort tout à coup de l'état de repos, organise ses
forces sur le pied de la guerre, envoie une armée dans les Etats
de l'Italie, en établit une autre tout aussi considérable dans le
Tyrol ; c'est dans ce moment qu'elle fait des levées de chevaux,
qu'elle forme des magasins, qu'elle fait travailler à des fortifica-
tions de campagne ; qu'elle éffraie par tous ces préparatifs les
peuples de la Bavière, de la Souabe, et de la Suisse, et découvre
ainsi l'intention évidente de faire une diversion aussi rééllement
favorable à l'Angleterre, et plus nuisiblement hostile envers la
France, que ne pourraient l'être une campagne ouverte, et une
guerre declarée. Dans d'aussi grave circonstances L'EMPEREUR
DES FRANÇAIS a pensé qu'il était de son devoir de tout tenter
pour ramener la Cour de Vienne au sentiment de ses véritables
intérêts.
Toutes les démarches qu'un ardent amour de la paix pouvait
suggérer, ont été faites avec instance, et plusieurs fois renouvelées.
La Cour de Vienne a protesté hautement de son respect pour les
traités qui l'unissent à la France ; mais ses préparatifs militaires
n'ont fait que se developper avec une plus active célérité, dans le
tems même où ses déclarations devenaient de plus en plus
pacifiques. L'Autriche a declaré qu'elle n'avait aucune inten-
tion hostile contre lea Etats de , S. M. L'EMPEREUR DES
FRANÇAIS. Contre qui dirige-t-elle donc ses préparatifs ?
Est-ce contre la Suisse ? Est-ce contre la Bavière ? Serait-ce
enfin contre l'Empire Germanique lui-même ?
S. M. L'EMPEREUR DES FRANÇAIS a chargé le soussigné
de faire connaître qu'elle considérera comme déclaration de guerre
formellement dirigée contre elle-même, toute aggression qui serait
portée contre le corps germanique, et spécialement contre la
Bavière.
211
S. M. L'EMPEREUR DES FRANÇAIS ne séparera jamais
les intérêts de son Empire de ceux des princes d'Allemagne qui
lui sont attachés. Aucun des maux qui les atteignent, aucun des
dangers qui les ménacent ne seront jamais étrangers à son solicitude.
:# :% :# :k # :%
Quand tout aura été vainement tenté pour amener l'Autriche
aux procédés, ou d'une paix sincère, ou d'une loyale inimitié,
S. M. L'EMPEREUR DES FRANÇAIS remplira tous ses
devoirs qui lui imposent sa dignité et sa puissance ; il portera ses
efforts partout où la France aura été menacée. La Providence
lui a donné assez de force pour combattre d'une main l'Angleterre,
et pour défendre de l'autre l'honneur de ses aigles et les droits de
ses alliés.
:# :# :# # # #
-•s©-
(III) p. Io.
Extract from the Moniteur of August 16, 18o5.
Extrait du Sun, du 8 août.
Nous avons enfin la malheureuse confirmation de la destruction
du convoi d'Antigoa.
On doit regretter que la nature particulière de cette guerre
force le Gouvernement à des actes de précaution contraire à sa
manière généreuse habituelle pour tout ce qui concerne le
commerce. Nous avons appris qu'un ordre avait été envoyé il
a quelques jours dans tous les ports, commandant à nos croiseurs
d'arrêter tous les bâtimens Américains qui ont à bord des
cargaisons qui ne proviennent pas des Etats-Unis.(") Cet ordre
a déjà reçu quelque éxécution, et plusieurs bâtimens ont été
arrêtés. Le consul Americain s'est adressé, dit-on, hier au
Gouvernement pour obtenir une explication : mais nous
ignorons la réponse qu'il a reçue.
(*) Le commerce d'un seul peuple prospérait. Étranger à l'Europe, étranger
à la guerre présente, ce peuple exerçait la libre industrie qui doit appartenir à
un Etat indépendant. L'Angleterre s'est enfin lasser d'oublier à son égard
cette supériorité maritime qui lui permet d'opprimer toutes les mers et tous
les peuples ; et le commerce américain a été frappé. Le sucre et le café
212
vien ent d'entrer dans la nomenclature des marchandises prohibées. Il est
tout aussi coupable aux yeux d'Angleterre de transporter du sucre etdu café,
que des armes et des munitions de guerre. Ce n'est pas assez qu'en corrom-
pant quelques ministres infidèles elle ait imposé à plusieurs princes puissans
une législation barbare ; que par des ménaces elle ait dicté les mêmes lois à
des princes plus faibles dont elle aurait pu dédaignés de corrompre les ministres.
Elle ne met aujourd'hui plus de bornes à ses violences. Personne désormais
ne pourra naviguer que pour son compte, et pour colporter les seules denrées
de son commerce. Et cet ordre de choses, si humiliant pour tous les États,
ne fixerait pas l'attention des Puissances du Monde ! C'est là ce que voulait
l'Angleterre lorsqu'elle précipitait la Russie dans de fausses démarches. Tant
que les puissances du Nord ont eu quelque sentiment de leur indépendance
commerciale, les Anglais ont été forcés de garder une certaine mesure ; mais
lorsque la Cour de Saint-Pétersbourg, influencée par des intrigans corrompus,
a porté la condescendance jusqu'à donner un caractère officiel aux plus
méprisables pamphlets des plus mauvais gazetiers Anglais, le cabinet de
Londres n'a plus douté que les yeux ne fussent fermés pour long-tems.
Lorsque l'Angleterre a cru même être sure de l'Autriche, qu'elle précipite vers
la guerre en la portant à faire dans le Tyrol et en Italie des armemens qu'on
ne peut considérer que comme un commencement d'hostilités, elle a cessé de
craindre qu'aucun Etat revint au sentiment de sa dignité ; elle a levé le masque
aussi-tôt, et c'est par les Américains qu'elle a commencée l'application de ses
nouvelles prétensions. L'Europe opprimée n'a plus qu'un désir raisonnable à
former, et ne doit placer ses ressources que dans une seule espérance, le
rétablissement de la puissance maritime de la France. Avant peu de mois,
les outrages faits au commerce des Etats dont les dispositions pacifiques
étaient les mieux connues de l'Angleterre, seront quadruplés. Voilà ce que la
Suède aura préparé par ses diatribes et par une politique d'enfant ; voilà ce
qu'aura gagné l'Autriche, qui se montre si peu jalouse de l'honneur de son
pavillon. Depuis que les Vénétiens ont arboré l'aigle impériale, ils ont
éprouvé plus d'outrages que quand ils naviguaient sous le signe déchu du lion
de Saint-Marc. Le Gouvernement de Venise était faible ; il était arrivé à
l'age de la décrépitude, et cependant il protégait encore son commerce ; il
obtenait quelque respect pour son pavillon. Mais l'Angleterre a l'avantage
funeste et passager d'aveugler tous les Etats sur leurs propres intérêts. Plus
elle opprime, plus on crie contre l'oppression de la France. Heureusement la
France ne se laisse point imposer par ces cris ; elle en connait l'impuissance.
»-ms©=-rº #r
(IV) p. 62.
The following is the extract from the Times of Sept. 5, 18o5.
From the French papers.
Paris, Aug. 22.
The last news received from the islands of Martinique and
Guadeloupe is of the I4th July. These Colonies could not be
213
in a better position. Since 1789 the number of Blacks has been
doubled in both Colonies, and they could still employ 30,000
II]. Of €.
*—sº-
(V) p. Ioa.
Extract from the Times, Sept. 17, 1805.
AMERICAN NEWSPAPERS.
New York, Aug. Io.
A Gentleman who was for some time a prisoner in Barracoa
(Cuba), has lately arrived in Baltimore, from that place ; he
furnishes the following account of the privateers fitting out at
that port, with a request that it might be published for the
information of those concerned in the West India Trade.
La Baugourt, commanded by a woman, carries 2 18-pounders,
4 sixes, 2 short carronades, and Ioo men, 18 of whom American,
and rows 4o sweeps painted black.
La Superbe, Capt. DEMICK, 6 9-pounders, 95 men (15 Ameri-
cans), 4o sweeps, painted black ; with white bottom ; sails
remarkably ſast, and cruizes generally close in with Cape François.
La Conftance, Capt. FURIs, 2 9-pounders, 45 men, and 26
sweeps, painted black.
Woltaire, Capt. JACK, 2 9-pounders, 49 men, and 26 sweeps,
painted black.
Marblanc, Capt. , 4 6-pounders, 43 men, 20 sweeps,
painted black, with yellow bottom.
Defiance, Capt. , 2 6-pounders, 4o men, 20 sweeps, painted
black, with a yellow bottom.
La Bologne, Capt. , 2 9-pounders, 45 men, 28 sweeps,
painted black.
Beauty, Capt. , 2 6-pounders, 4o men, 20 sweeps.
Two feluccas, one pounder each, and 22 men, and two
Schooners, to carry 2 guns each, and 4o men.
Several American vessels have been taken and carried into
Barracoa, by French privateers, but ordered out by the Governor.
~<>--
214
(VI) p. 6.
The following are instances of the * gifts* exacted by Bonaparte
from the Italian States in return for peace and * neutrality,'º
referred to in the Note on p. 6. The documents are contained
in De Martensº Collection of Treaties, vol. vi.
The Duke of Parma was required to pay * une contribution
militaire de 2 millions de livres, monnoye de France, payée soit
en Lettres-de-Change sur Gênes, soit en Argenterie, soit en
monnoye * : also * 12oo chevaux de trait, harnachés avec colliers ;
4oo de Dragons, harnachés ; et Ioo de selle pour les Officiers
supérieurs de l'Armée " ; also * vingt Tableaux au choix du
Général en Chef, parmi ceux existans aujourd'hui, dans le
Duché " ; also, within fifteen days, to send to the Commissariat
Department, * Io,ooo Quintaux de Bled, 5ooo d'Avoine," in
addition to _ 2,ooo oxen. * Moyennant la Contribution ci-
dessus, les Etats du Duc de Parme seront traités comme Etats
Neutres, jusqu'à la fin des négociations, qui vont s'entamer à
Paris.**
The Duke of Modena was constrained to contribute * 7,5oo,ooo
livres, monnoie de France," and * 2,5oo,ooo livres en denrées,
poudre ou autres munitions de guerre " ; and further * sera tenu
de livrer vingt tableaux à prendre dans sa galerie ou dans ses
états, au choix des citoyens qui seront à cet effet commis.º
The armistice with the Duke of Modena was concluded on
May 12, 18o6, but was revoked by General Bonaparte on
October 8. It does not seem probable, however, that the pictures
were spared.
The Pope, in like manner, purchased peace and neutrality at
the price (in addition to the surrender of Avignon, and the
Legations of Bologna, Ferrara and Romagna) of 2 I,ooo,ooo
livres, * dont I 5,5oo,ooo livres en espèces ou lingots d'or ou
d'argent, et les 5,5oo,ooo livres restans en denrées, merchandises,
chevaux, bœufs, d'après la désignation q'en feront les agens de
la République Française.º And further : * Le Pape livrera à la
République Française cent tableaux, bustes, vases, ou statues, au -
choix des commissaires qui seront envoyés à Rome : parmi lesquels
objets seront notamment compris le buste de bronze de Junius
215
Brutus & celui en marbre de Marcus Brutus, tous les deux
placés au capitole ; & 5oo manuscrits au choix des mêmes
commissaires.º -
By the treaty confirming the armistice in I797, five out of
the fifteen million livres were to be paid * en diamans & autres
effets précieux."
The German States seem to have been in like case. The
peace-offerings of the Marggrave of Baden were stipulated with
| great precision. His military contribution was the comparatively
small sum of * 2,ooo,ooo de livres de France en numéraire.º
But in addition he was to furnish * Iooo chevaux, dont 6oo de
trait & 4oo de cavallerie, de la taille de huit à douze pouces, &
de l'age de cinq à huit ans . . . 5oo bœufs du poids de 5oo
livres . . . 25,ooo quintaux de grains, deux tiers forment, un
tiers seigle, 12,ooo sacs d'avoine, le sac de douze boisseaux,
5o,ooo quintaux de foin " ; and finally * 2 5,ooo paires de
souliers sous le délai d'un mois. Si ces souliers ne pouvaient
être fournis dans le délai fixé, ils seront payés à cinq livres la
paire.º
There is apparently a misprint in regard to the height of the
Baden horses ! The 9oo which were exacted from the Elector
of Bavaria, for * dragons, hussards, chasseurs* were stipulated as
* taille de 4 pieds 7 à 9 pouces." The Elector, among other
stores, had to furnish, within one month, * 3o,ooo aunes de drap
pour officiers, suivant les échantillons qui seront fournis, dont
25,ooo en bleu & 5,ooo en verd’; also, within six weeks,
* Ioo,ooo paires de souliers, à trois mesures, & Io,ooo paires de
| bottes ; moitié à l'écuyère, moitié à la hongraise."
Et ainsi de suite.
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