Danish Privateering: 1807-11

Danish Privateering: 1807-11

Mr. Erving to Mr. De Rosenkrantz. Danish First Minister of State: June 7, 1811

By Tom Holmberg

Copenhagen, June 7, 1811

Sir:

With my note of yesterday I transmitted to your excellency a list of the "convoy cases," twelve in number; the two last in that list are not depending on appeal before the high court, as is mentioned in a memorandum opposite to their names; the first eight vessels of the remaining ten were bound immediately from Petersburg and Cronstadt to the United States; they had all paid their Sound dues, and several of them had been examined before the Danish marine tribunals on entering the Baltic; and they were all arrested in going out by a British force, and compelled to join convoy. When that convoy was attacked by His Majesty's gun brigs, the Americans, not conscious of any illegality in the nature of their voyages, or of any irregularity in their own conduct, made not any efforts to escape. They were captured and brought into port. No question has been made as to the genuine American character of the vessels in question; but they have been condemned under the authority of the article "D," in the eleventh clause of His Majesty's instructions for privateers, issued on the 10^th of March, 1810, which declares to be good prize all vessels "which have made use of British convoy either in the Atlantic or the Baltic." At the time of this declaration, these vessels were in Russia, on the point of sailing, and wholly ignorant of it. This is a brief history of the "convoy cases." It is now my duty to protest against the principle assumed in the instruction referred to, upon which they have been condemned. I shall endeavor to show to your excellency that it is wholly new, not founded in or supported by any reasoning to be derived from the law of nations; not even countenanced by precedents; and as wholly repugnant to the doctrines heretofore held by Denmark itself, as it is to the rights and to the interests of the United States.

That the belligerent has a right to ascertain the neutrality of vessels which he may meet with at sea, and, therefore, under certain suspicious circumstances, to bring such vessels into port for examination, I am not disposed to deny; it may also be allowed that the being found under enemy's convoy does afford such reasonable ground of suspicion against the vessels so found, as to authorize their being sent into port for examination; but this is the full extent of the belligerent right on this point. The examination had, and the vessels being found bona fide neutral, must be acquitted. To say that the neutral shall be condemned on the mere fact that he was found under enemy's convoy, is to impose upon him a necessity of sailing without protection, even against his own separate enemies; for the case might well happen, indeed has happened, that, though neutral with regard to the belligerent Powers, he has had an enemy against whom either of the belligerent was disposed to protect him. Of such protection the American commerce has often availed itself during the war between the United States and the Barbary Powers; nor was it ever supposed, by either of the great belligerent Powers, that such commerce, so protected by its enemy, had thus become liable to capture and confiscation. The case might also occur, that of two allied belligerent Powers, a third Power should be enemy as to one, and neutral as to the other; in that case, his seeking the protection of the common enemy of these allied Powers against that of them to which he was an enemy, could not subject him to capture and confiscation by the allied Power with respect to which he was neutral; his right in either of these and in all cases to protect himself against his enemy, by availing himself of whatever convoy offers, in unquestionable. I state these arguments against the broad ground taken in the royal instructions above quoted; but it will be said that the belligerent, having also an unquestionable right to ascertain the neutrality of vessels, and belligerent rights being paramount to neutral rights, where the two happen to be in collision; hence the attempt of the neutral to deprive the belligerent of his right by putting himself under convoy, forms of itself a ground of capture and confiscation. To this I answer,

Firstly. That the belligerent rights, where they come into collision with those of neutrals, are not to be deemed, in all cases, paramount, and that nothing can establish such a general rule but force, which is not law or justice.

Secondly. That no presumption necessarily arises against the neutral from the mere circumstance of his being found under enemy's convoy; but that this point will depend upon the peculiar circumstances of each case.

Thirdly. That where the belligerent and neutral rights conflict, all other circumstances being equal, the plea of necessity ought to decide the question in favor of the neutral. In the case supposed, the belligerent is seeking the mere exercise of a right, but the neutral is occupied in his self-preservation.

Fourthly. Superadded to this reason, in favor of the neutral right, is one springing out of the immutable principles of equity; for since, according to modern practice, the neutral has no representative in the judicature by which his cause is tried, that it is no longer an umpirage or a court of arbitration, so his claim to a favorable leaning towards his right in all questionable cases is very much strengthened.

But it is also proper to inquire whether the vessels in question did in fact put themselves under convoy with a view to avoid examination by Danish cruisers. Now it appears, in the first place, that they did not seek convoy for any purpose, but that they were forced into it. Apart, however, from that question, there were not any Danish laws or ordinances which they knew of subjecting them to capture. Nor could they apprehend or anticipate any such; the less, as they had previously passed through the Sound or Belt in safety, and without convoy; hence they had not any motive to seek convoy as a protection against Danish cruisers. They had, indeed, other inducements to put themselves under convoy; the decrees of His Majesty the Emperor of France (since, happily for the harmony between the United States and France, repealed) were then in force; that system, working against the English orders in council, produced such a state of things with regard to the commerce of America, that scarcely one of its ships could move on the face of the ocean without being exposed, under this unfortunate cooperation of hostile systems, to capture and confiscation; hence it is not surprising if American vessels have, from time to time, been terrified into the convoy now of one party, now of the other. But had this happened in the cases before us, yet it would not have formed a just ground of capture and confiscation; for the merits or demerits of the Berlin and Milan decrees out of the question, those decrees have not been adopted by Denmark.

Indeed, at the time the vessels were taken, His Majesty had not assumed any course with respect to the American commerce from which evil was to be apprehended; hence, beg leave to repeat, that the vessels in question cannot be presumed to have sought protection under British convoy for the purpose of avoiding his cruisers. But if the contrary had been proved, if it stood confessed that they had sought convoy against Danish cruisers, in that case they would have been liable to capture, certainly; but it is equally certain that they would not have been liable to condemnation.

I must again totally deny that the rule laid down in the article of the royal instructions above cited is supported by any principle to be found in the law; and I can confidently ask your excellency to show me any authorities in its favor. If the writers be silent on the subject, then their silence is to be construed favorably for the neutral; it supposes that his right to sail under convoy, in all cases, is indisputable; what is not expressed against his claim cannot be implied; but I will add that all the analogies to be drawn from the law are in favor of the neutral. In this view the rule laid down in the instructions, by its sweeping latitude, forms its own condemnation; for it would comprise not only vessels which might accidentally be within sight of, or at any indefinite distance from an enemy's convoy, but vessels found in enemy's harbors under cover of his guns; but the law says. that neutral goods so found under his forts, within his territory, or even on board his vessels at sea, which is to be as immediately and totally under his protection as is possible; that these are not liable to confiscation, but shall be restored to the neutral owners. The doctrine laid down by Grotius, in the "De Jure Belli ac Pacis," on this point, has never been refuted, but has, on the contrary, been adopted by subsequent writers. Treaties, indeed, may have said otherwise; but treaties change not the law; they bind only the parties to them.

I may equally ask your excellency to show me examples in the practice of nations, countenancing the rule laid down in the royal order; and I can quote in favor of the neutral right the example of England, a power which neither your excellency nor myself are disposed to extol for her moderation in the exercise of her belligerent rights, or for any dispositions which she has manifested favorable to those of neutrals. England herself has never gone to the extent of condemning vessels upon the mere ground of their having been taken under enemy's convoy; but she has captured them in that situation, and acquitted them.

I might occupy your excellency's attention by expatiating on the conduct of Denmark in former times, by carrying back your view to a consideration of that great system of neutral rights which she so boldly adopted and so ably supported in the year 1780, which are again recognized in her convention with Sweden in 1794, which she has subsequently co-operated with Russia to establish, and the leading feature of which still appears in the very royal instructions on which I have been commenting. But it would be an ungrateful task, and not necessary to be undertaken, because the mere mention of the subject carries conviction to the mind on the point to which I would apply it, and because on every other I have already said more than enough to establish the chief position with which I began; viz: that nothing to be found in the law will authorize the condemnation of neutral property upon the mere fact of its being found under enemy's convoy, and that, therefore, on due proof of its neutrality, it must be acquitted.

I consider it to be a propitious circumstance that, in acting upon this very important question, His Majesty's Government is unembarrassed by the claims of privateersmen, and that the cases of these vessels are thus presented in the plainest form, unmixed with any extraneous matter; the captures having been made by public ships, leaving the fullest scope to the magnanimity and justice of His Majesty's disposition.

I am, &c.

GEORGE W. ERVING

To His Excellency Mr. De Rosenkrantz, First Minister of State, &c.

Note:

George W. Erving (1771-1850) served as consul in London, in 1804 he was appointed secretary of legation to Spain, where he remained until 1810. In 1811 he was appointed special minister to Denmark, and commissioned to resolve the difficulties arising from the Danish privateers' captures of United States vessels. From 1814 until 1819 he served as United States minister to Spain.

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Danish Privateering: 1807-11 Mr. Erving to Mr. De Rosenkrantz. Danish First Minister of State: June 7, 1811 By Tom Holmberg Copenhagen, June 7, 1811 Sir: With my note of yesterday I transmitted to your excellency a list of the "convoy cases," twelve in number; the two last in that list are not depending on appeal before the high court, as is mentioned in a memorandum opposite to their names; the first eight vessels of the remaining ten were bound immediately from Petersburg and Cronstadt to the United States; they had all paid their Sound dues, and several of them had been examined before the Danish marine tribunals on entering the Baltic; and they were all arrested in going out by a British force, and compelled to join convoy. When that convoy was attacked by His Majesty's gun brigs, the Americans, not conscious of any illegality in the nature of their voyages, or of any irregularity in their own conduct, made not any efforts to escape. They were captured and brought into port. No question has been made as to the genuine American character of the vessels in question; but they have been condemned under the authority of the article "D," in the eleventh clause of His Majesty's instructions for privateers, issued on the 10^th of March, 1810, which declares to be good prize all vessels "which have made use of British convoy either in the Atlantic or the Baltic." At the time of this declaration, these vessels were in Russia, on the point of sailing, and wholly ignorant of it. This is a brief history of the "convoy cases." It is now my duty to protest against the principle assumed in the instruction referred to, upon which they have been condemned. I shall endeavor to show to your excellency that it is wholly new, not founded in or supported by any reasoning to be derived from the law of nations; not even countenanced by precedents; and as wholly repugnant to the doctrines heretofore held by Denmark itself, as it is to the rights and to the interests of the United States. That the belligerent has a right to ascertain the neutrality of vessels which he may meet with at sea, and, therefore, under certain suspicious circumstances, to bring such vessels into port for examination, I am not disposed to deny; it may also be allowed that the being found under enemy's convoy does afford such reasonable ground of suspicion against the vessels so found, as to authorize their being sent into port for examination; but this is the full extent of the belligerent right on this point. The examination had, and the vessels being found bona fide neutral, must be acquitted. To say that the neutral shall be condemned on the mere fact that he was found under enemy's convoy, is to impose upon him a necessity of sailing without protection, even against his own separate enemies; for the case might well happen, indeed has happened, that, though neutral with regard to the belligerent Powers, he has had an enemy against whom either of the belligerent was disposed to protect him. Of such protection the American commerce has often availed itself during the war between the United States and the Barbary Powers; nor was it ever supposed, by either of the great belligerent Powers, that such commerce, so protected by its enemy, had thus become liable to capture and confiscation. The case might also occur, that of two allied belligerent Powers, a third Power should be enemy as to one, and neutral as to the other; in that case, his seeking the protection of the common enemy of these allied Powers against that of them to which he was an enemy, could not subject him to capture and confiscation by the allied Power with respect to which he was neutral; his right in either of these and in all cases to protect himself against his enemy, by availing himself of whatever convoy offers, in unquestionable. I state these arguments against the broad ground taken in the royal instructions above quoted; but it will be said that the belligerent, having also an unquestionable right to ascertain the neutrality of vessels, and belligerent rights being paramount to neutral rights, where the two happen to be in collision; hence the attempt of the neutral to deprive the belligerent of his right by putting himself under convoy, forms of itself a ground of capture and confiscation. To this I answer, Firstly. That the belligerent rights, where they come into collision with those of neutrals, are not to be deemed, in all cases, paramount, and that nothing can establish such a general rule but force, which is not law or justice. Secondly. That no presumption necessarily arises against the neutral from the mere circumstance of his being found under enemy's convoy; but that this point will depend upon the peculiar circumstances of each case. Thirdly. That where the belligerent and neutral rights conflict, all other circumstances being equal, the plea of necessity ought to decide the question in favor of the neutral. In the case supposed, the belligerent is seeking the mere exercise of a right, but the neutral is occupied in his self-preservation. Fourthly. Superadded to this reason, in favor of the neutral right, is one springing out of the immutable principles of equity; for since, according to modern practice, the neutral has no representative in the judicature by which his cause is tried, that it is no longer an umpirage or a court of arbitration, so his claim to a favorable leaning towards his right in all questionable cases is very much strengthened. But it is also proper to inquire whether the vessels in question did in fact put themselves under convoy with a view to avoid examination by Danish cruisers. Now it appears, in the first place, that they did not seek convoy for any purpose, but that they were forced into it. Apart, however, from that question, there were not any Danish laws or ordinances which they knew of subjecting them to capture. Nor could they apprehend or anticipate any such; the less, as they had previously passed through the Sound or Belt in safety, and without convoy; hence they had not any motive to seek convoy as a protection against Danish cruisers. They had, indeed, other inducements to put themselves under convoy; the decrees of His Majesty the Emperor of France (since, happily for the harmony between the United States and France, repealed) were then in force; that system, working against the English orders in council, produced such a state of things with regard to the commerce of America, that scarcely one of its ships could move on the face of the ocean without being exposed, under this unfortunate cooperation of hostile systems, to capture and confiscation; hence it is not surprising if American vessels have, from time to time, been terrified into the convoy now of one party, now of the other. But had this happened in the cases before us, yet it would not have formed a just ground of capture and confiscation; for the merits or demerits of the Berlin and Milan decrees out of the question, those decrees have not been adopted by Denmark. Indeed, at the time the vessels were taken, His Majesty had not assumed any course with respect to the American commerce from which evil was to be apprehended; hence, beg leave to repeat, that the vessels in question cannot be presumed to have sought protection under British convoy for the purpose of avoiding his cruisers. But if the contrary had been proved, if it stood confessed that they had sought convoy against Danish cruisers, in that case they would have been liable to capture, certainly; but it is equally certain that they would not have been liable to condemnation. I must again totally deny that the rule laid down in the article of the royal instructions above cited is supported by any principle to be found in the law; and I can confidently ask your excellency to show me any authorities in its favor. If the writers be silent on the subject, then their silence is to be construed favorably for the neutral; it supposes that his right to sail under convoy, in all cases, is indisputable; what is not expressed against his claim cannot be implied; but I will add that all the analogies to be drawn from the law are in favor of the neutral. In this view the rule laid down in the instructions, by its sweeping latitude, forms its own condemnation; for it would comprise not only vessels which might accidentally be within sight of, or at any indefinite distance from an enemy's convoy, but vessels found in enemy's harbors under cover of his guns; but the law says. that neutral goods so found under his forts, within his territory, or even on board his vessels at sea, which is to be as immediately and totally under his protection as is possible; that these are not liable to confiscation, but shall be restored to the neutral owners. The doctrine laid down by Grotius, in the "De Jure Belli ac Pacis," on this point, has never been refuted, but has, on the contrary, been adopted by subsequent writers. Treaties, indeed, may have said otherwise; but treaties change not the law; they bind only the parties to them. I may equally ask your excellency to show me examples in the practice of nations, countenancing the rule laid down in the royal order; and I can quote in favor of the neutral right the example of England, a power which neither your excellency nor myself are disposed to extol for her moderation in the exercise of her belligerent rights, or for any dispositions which she has manifested favorable to those of neutrals. England herself has never gone to the extent of condemning vessels upon the mere ground of their having been taken under enemy's convoy; but she has captured them in that situation, and acquitted them. I might occupy your excellency's attention by expatiating on the conduct of Denmark in former times, by carrying back your view to a consideration of that great system of neutral rights which she so boldly adopted and so ably supported in the year 1780, which are again recognized in her convention with Sweden in 1794, which she has subsequently co-operated with Russia to establish, and the leading feature of which still appears in the very royal instructions on which I have been commenting. But it would be an ungrateful task, and not necessary to be undertaken, because the mere mention of the subject carries conviction to the mind on the point to which I would apply it, and because on every other I have already said more than enough to establish the chief position with which I began; viz: that nothing to be found in the law will authorize the condemnation of neutral property upon the mere fact of its being found under enemy's convoy, and that, therefore, on due proof of its neutrality, it must be acquitted. I consider it to be a propitious circumstance that, in acting upon this very important question, His Majesty's Government is unembarrassed by the claims of privateersmen, and that the cases of these vessels are thus presented in the plainest form, unmixed with any extraneous matter; the captures having been made by public ships, leaving the fullest scope to the magnanimity and justice of His Majesty's disposition. I am, &c. GEORGE W. ERVING To His Excellency Mr. De Rosenkrantz, First Minister of State, &c. Note: George W. Erving (1771-1850) served as consul in London, in 1804 he was appointed secretary of legation to Spain, where he remained until 1810. In 1811 he was appointed special minister to Denmark, and commissioned to resolve the difficulties arising from the Danish privateers' captures of United States vessels. From 1814 until 1819 he served as United States minister to Spain. [ Military Index \| Battles Index \| More on Danish Privateering ]

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