Danish Privateering: 1807-11

Danish Privateering: 1807-11

Mr. Erving's Response to Mr. Rosenkrantz's Letter of June 28, 1811: June 30, 1811

By Tom Holmberg

Copenhagen, June 30, 1811.

The undersigned, special minister of the United States of America, has received the note which his excellency M. De Rosenkrantz, First Minister of State and chief of the Department of Foreign Affairs, was pleased to address to him on the 28^th instant, in reply to the representations made by the undersigned, on the 6^th and 7^th instant, respecting the reclamations with which he is charged. He shall immediately transmit his excellency's said note to the Government of the United States, and is persuaded that the President will receive, with great satisfaction, the reciprocation which His Majesty has therein offered of the friendly sentiments which the undersigned was ordered to express. These dispositions, and the just and liberal views of His Majesty, with regard to the neutral commerce of the United States, as declared in his excellency's note, since they leave not the least doubt but that His Majesty has been wholly unaware of the great injuries which that commerce has lately sustained within his dominions, afford to the undersigned the happy presage of a favorable termination to the business with which he is entrusted, and a sure pledge that the harmony which has hitherto always subsisted between the two Governments will still be maintained in its full extent and perfection.

Thus assured of meeting, on the part of His Majesty's Government, with no dispositions but those which are of the most just and friendly character, it is with more than ordinary pleasure that the undersigned proceeds in the performance of his duty.

His excellency the Minister of State, after showing the causes which have occasioned the capture of so many vessels under the American flag, observes, that in all cases where the Supreme Tribunal of Admiralty has found that the papers on board such vessels prove their American character, and where their neutrality has not been abused by any attempt to cover enemy's property under simulated papers, both vessels and cargoes have been released. Such is undoubtedly the impression on the mind of His Majesty, who has been convinced that the inquiries pointed out by his instructions have been conducted with all the impartiality by which those instructions were dictated; but it can be shown, in a multiplicity of cases, that the high court has entered into matter entirely irrelevant to the object of the instructions; that it has given weight to evidence entirely inadmissible, and has resorted to pretexts for condemnation entirely insufficient. It shall be shown t His Majesty, that thus, contrary to his royal intention, a great mass of American property has been unjustly condemned in the high court, whether by a misconstruction or mal-application of His Majesty's regulations, the undersigned will not undertake to say; perhaps it may not be important to inquire, since be the source of this evil what it may, to the royal sense of justice only the injured now have to look, and they look with confidence, for redress. The details upon this subject will be voluminous. The undersigned will here point only to one, and that a recent decision, (being the first which presents itself,) by way of exemplification.

In the case of the American ship "Swift," Champlin.

In the high court, on the 11^th March, 1811, this ship was condemned on an allegation that Captain Champlin had thrown some papers overboard; which allegation had no better or other support than the oaths of seven of the privateersmen who captured her.

It is be observed on this sentence:

First, as to the alleged fact. The royal instructions of March 1810, after stating what shall be deemed causes of condemnation, in the twelfth section states what shall be cause of suspicion and subject vessels to further examination; and in the article E, specifies the throwing overboard or destroying papers. This throwing overboard or destroying papers, then, constitutes ground of suspicion only, and authorizes further examination with a view to ascertain whether that fact can implicate the neutral character of the vessel. Now in the course of the further examination on this trial, the neutrality of the ship and the fairness of her voyage were fully established; the alleged circumstances with respect to her papers therefore remained naked, and unsupported by any sort of ground or pretext for condemnation, and yet she was condemned!

Secondly, to the evidence. The American master objected that it was contrary to all the principles of justice and law to admit the evidence of privateersmen, who were parties interested in his condemnation; but the court decided that they were not interested, and that their evidence must be admitted, and that the evidence of the crew of the American ship should not be admitted to rebut it. The American master then went on to show that the witnesses were interested, and produced a contract made between them and the owners of the privateer, (the authenticity of which was acknowledged,) by which it appeared that the equipage of the privateer were to receive half of the next prize which they might take. Still the court determined that they were not interested in the condemnation of this ship, and that their evidence should be admitted! The American master then went on to prove that it was impossible they should have sworn truly; they had declared that the papers thrown overboard were of the size of about six inches square, and had been passed through a certain opening in the after part of the ship. The American master proved, by the examination and declaration of two Danish masters, that the privateersmen could not have seen them drop into the water as they had stated; and further, that the hole pointed out was not large enough for them so to have been passed through. But neither did these proofs produce any effect in favor of the American; he was predestined to condemnation; the court had no disposition to reject the evidence of the privateersmen, though the same privateersmen had produced two other men to swear that they had seen this same ship "Swift" at Liverpool; and Captain Champlin proved, that one day after the day in which this evidence stated that he was at Liverpool, he spoke to His Majesty's gun brig the "Sea Gull."

The undersigned trusts that any comment whatever upon such a sentence would be entirely superfluous—a sentence in direct violation of His Majesty's instructions; he will only add that the property thus condemned is valued at one hundred thousand Spanish dollars.

The explanation which the Minister of State gives as the objection made by the tribunals to French certificates of origin, and the order which His Majesty has now been pleased to issue on that subject, though applying only to two of the cases, viz: the "Nimrod" and the "Richmond," named in the list transmitted to his excellency on the 6^th instant, and both lately acquitted, cannot fail of being satisfactory; but observing therein that the notification made by the French Government was not till the 22^nd September, the undersigned cannot refrain from again adverting to the conduct of the high court, which, in a sentence given on the 22^nd December, in the case of the "Agent," Row, justified the capture of that ship in the month of June, upon the ground that a sum of five hundred rix-dollars should be paid to the captors; precisely the same decision was given about the same time in the case of the "Julian," Abbot.

In the order which His Majesty has now issued with respect to the eleven cases pending in the high court, and as specified in the Minister of States's note, the undersigned recognizes the determination of His Majesty to ensure justice to the American claims, and he has the honor to assure his excellency the minister that the President will receive with peculiar satisfaction the declaration of His Majesty, accompanying this act, and charging the undersigned to communicate to his Government His Majesty's invariable disposition to cultivate the good intelligence and friendly intercourse which ought always to subsist between the two.

When on every other point there is the pleasing prospect of a perfect accord, it is with regret that the undersigned feels the necessity imposed on him of differing in opinion with his excellency Mr. De Rozenkrantz [sic] on the subject of the convoy cases, and of contesting some of the doctrines which the minister has laid down as applicable to those cases.

His excellency has not thought proper to reply to the reasoning upon which the undersigned bases his reclamation, which therefore remains in its entire force; nor has he produced any thing which can be deemed satisfactory in support of the principle assumed in the royal instruction to which that reasoning has been applied. The Minister of State has produced, in favor of the principle in question, the single argument, that he who puts himself under the protection of another, does thereby take side with his protector, and renounces the advantages which belong to the quality of friend, as to him against whom he seeks protection. In vain are the books examined to discover the source from which this argument is drawn; in vain are history and the records of diplomacy resorted to, for authority or for any countenance given to the doctrine which it embraces. But these books and these records, have they lost their title to respect? Have they become a dead letter? His Majesty certainly does not assume to act on principles unknown to them, to originate a practice at once undefined in its limits, and rigorous in its character beyond all precedent; in hostility, also, with the ancient doctrines of Denmark, and a stranger to all her maritime codes; so much a stranger, as that it is not found even in the royal instructions issued on the 14^th September, 1807. His excellency the Minister of State supposes an acquiescence in this new rule, upon the consideration that it is applied to Danish ships as well as to strangers. Certainly the united States will never dispute the equity or propriety of any law emanating from His Majesty's authority, and applied to his own subjects; but it is equally certain that they found their rights upon the public law only, and cannot consent to place them at the disposition of any partial authority, or to limit them by the convenience of the belligerent Powers. It is not readily conceived how Danish ships, or ships of the allies of Denmark, being subject to the capture of the enemy, can be found under his convoy; vessels carrying such flags and so found cannot but be enemy's property; but if, by whatever means, His Majesty's subjects do put themselves under enemy's convoy, they are doubtless guilty of a high crime, and richly merit all the punishment which his laws inflict. But is the same rule to be applied to the property and to the citizens of a neutral and independent Power?

Thus much the undersigned has found it his duty to say, in addition to what has been before stated, and remains unanswered, respecting the principle assumed in the royal instruction of March, 1810; but he finds one part of the minister's note which, as he apprehends, goes much beyond that instruction, and which would preclude the neutral from any kind of justification for being found under enemy's convoy.

If were a gross dereliction of the interests of the United States should the undersigned leave the least room for his excellency to suppose that the American Government will accede to the fiction propounded by his excellency, viz: that neutral vessels found under enemy's convoy "have eo facto lost their original quality of neutrals." This idea was certainly more fully and distinctly expressed in conversation; and seeing that there are parts of his excellency's note which favor a different conclusion, he eagerly seizes the hope that it is not really intended to carry the doctrine to such an extent; yet, as in a matter of such importance nothing should remain equivocal, the undersigned, desirous of laying it before the President in the most distinct manner, requests that he may be favored with an explanation as to whatever is susceptible of misconstruction.

His excellency, pursuing the idea above cited, in mentioning the instructions which His Majesty has now given to his tribunals to direct their examinations on American vessels found under enemy's convoy, says, "que les preuves les plus évidentes seront réquises pour prouver qu'un navire sous pavillon Americain ait été sous convoi anglois." ["that the most patent evidence will be required to prove that a ship under American flag was under English convoy."] Yet it is hoped that the words ait été are not intended to be connected with what is above quoted, but rather that they are to be governed by a sense of the words "s'étre mis sous la protection," found in the same sentence; by the words "la recherche et l'usage faits," in the paragraph preceding; by the words "se faits protéger," which will bear the same construction in the paragraph following; and, finally, by the words in the article "D," clause 2, of the royal instructions of March 1810, construed "using convoy," which must be supposed to mean a voluntary use of convoy, and cannot intend vessels which have been forced into, or have accidentally found themselves in, convoy. For to condemn vessels under such unfortunate circumstances, is that the course of a Power friendly to the neutral? This reflection so strengthens the above construction of the words used in the royal order of March 10^th, as not to leave a possibility of supposing that His Majesty intended that such innocent vessels should be affected by it.

The undersigned cannot conclude this note without expressing his full confidence that the friendly dispositions professed by His Majesty will dispose him so to regulate the conduct of his tribunals upon the convoy cases, as to satisfy the just claims of the United States; or without assuring his excellency the Minister of State, in reply to the last observation in his note, that the American Government is also fully sensible of the value of the commercial and friendly relations which have always subsisted between the two centuries.

G. W. E.

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

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Danish Privateering: 1807-11 Mr. Erving's Response to Mr. Rosenkrantz's Letter of June 28, 1811: June 30, 1811 By Tom Holmberg Copenhagen, June 30, 1811. The undersigned, special minister of the United States of America, has received the note which his excellency M. De Rosenkrantz, First Minister of State and chief of the Department of Foreign Affairs, was pleased to address to him on the 28^th instant, in reply to the representations made by the undersigned, on the 6^th and 7^th instant, respecting the reclamations with which he is charged. He shall immediately transmit his excellency's said note to the Government of the United States, and is persuaded that the President will receive, with great satisfaction, the reciprocation which His Majesty has therein offered of the friendly sentiments which the undersigned was ordered to express. These dispositions, and the just and liberal views of His Majesty, with regard to the neutral commerce of the United States, as declared in his excellency's note, since they leave not the least doubt but that His Majesty has been wholly unaware of the great injuries which that commerce has lately sustained within his dominions, afford to the undersigned the happy presage of a favorable termination to the business with which he is entrusted, and a sure pledge that the harmony which has hitherto always subsisted between the two Governments will still be maintained in its full extent and perfection. Thus assured of meeting, on the part of His Majesty's Government, with no dispositions but those which are of the most just and friendly character, it is with more than ordinary pleasure that the undersigned proceeds in the performance of his duty. His excellency the Minister of State, after showing the causes which have occasioned the capture of so many vessels under the American flag, observes, that in all cases where the Supreme Tribunal of Admiralty has found that the papers on board such vessels prove their American character, and where their neutrality has not been abused by any attempt to cover enemy's property under simulated papers, both vessels and cargoes have been released. Such is undoubtedly the impression on the mind of His Majesty, who has been convinced that the inquiries pointed out by his instructions have been conducted with all the impartiality by which those instructions were dictated; but it can be shown, in a multiplicity of cases, that the high court has entered into matter entirely irrelevant to the object of the instructions; that it has given weight to evidence entirely inadmissible, and has resorted to pretexts for condemnation entirely insufficient. It shall be shown t His Majesty, that thus, contrary to his royal intention, a great mass of American property has been unjustly condemned in the high court, whether by a misconstruction or mal-application of His Majesty's regulations, the undersigned will not undertake to say; perhaps it may not be important to inquire, since be the source of this evil what it may, to the royal sense of justice only the injured now have to look, and they look with confidence, for redress. The details upon this subject will be voluminous. The undersigned will here point only to one, and that a recent decision, (being the first which presents itself,) by way of exemplification. In the case of the American ship "Swift," Champlin. In the high court, on the 11^th March, 1811, this ship was condemned on an allegation that Captain Champlin had thrown some papers overboard; which allegation had no better or other support than the oaths of seven of the privateersmen who captured her. It is be observed on this sentence: First, as to the alleged fact. The royal instructions of March 1810, after stating what shall be deemed causes of condemnation, in the twelfth section states what shall be cause of suspicion and subject vessels to further examination; and in the article E, specifies the throwing overboard or destroying papers. This throwing overboard or destroying papers, then, constitutes ground of suspicion only, and authorizes further examination with a view to ascertain whether that fact can implicate the neutral character of the vessel. Now in the course of the further examination on this trial, the neutrality of the ship and the fairness of her voyage were fully established; the alleged circumstances with respect to her papers therefore remained naked, and unsupported by any sort of ground or pretext for condemnation, and yet she was condemned! Secondly, to the evidence. The American master objected that it was contrary to all the principles of justice and law to admit the evidence of privateersmen, who were parties interested in his condemnation; but the court decided that they were not interested, and that their evidence must be admitted, and that the evidence of the crew of the American ship should not be admitted to rebut it. The American master then went on to show that the witnesses were interested, and produced a contract made between them and the owners of the privateer, (the authenticity of which was acknowledged,) by which it appeared that the equipage of the privateer were to receive half of the next prize which they might take. Still the court determined that they were not interested in the condemnation of this ship, and that their evidence should be admitted! The American master then went on to prove that it was impossible they should have sworn truly; they had declared that the papers thrown overboard were of the size of about six inches square, and had been passed through a certain opening in the after part of the ship. The American master proved, by the examination and declaration of two Danish masters, that the privateersmen could not have seen them drop into the water as they had stated; and further, that the hole pointed out was not large enough for them so to have been passed through. But neither did these proofs produce any effect in favor of the American; he was predestined to condemnation; the court had no disposition to reject the evidence of the privateersmen, though the same privateersmen had produced two other men to swear that they had seen this same ship "Swift" at Liverpool; and Captain Champlin proved, that one day after the day in which this evidence stated that he was at Liverpool, he spoke to His Majesty's gun brig the "Sea Gull." The undersigned trusts that any comment whatever upon such a sentence would be entirely superfluous—a sentence in direct violation of His Majesty's instructions; he will only add that the property thus condemned is valued at one hundred thousand Spanish dollars. The explanation which the Minister of State gives as the objection made by the tribunals to French certificates of origin, and the order which His Majesty has now been pleased to issue on that subject, though applying only to two of the cases, viz: the "Nimrod" and the "Richmond," named in the list transmitted to his excellency on the 6^th instant, and both lately acquitted, cannot fail of being satisfactory; but observing therein that the notification made by the French Government was not till the 22^nd September, the undersigned cannot refrain from again adverting to the conduct of the high court, which, in a sentence given on the 22^nd December, in the case of the "Agent," Row, justified the capture of that ship in the month of June, upon the ground that a sum of five hundred rix-dollars should be paid to the captors; precisely the same decision was given about the same time in the case of the "Julian," Abbot. In the order which His Majesty has now issued with respect to the eleven cases pending in the high court, and as specified in the Minister of States's note, the undersigned recognizes the determination of His Majesty to ensure justice to the American claims, and he has the honor to assure his excellency the minister that the President will receive with peculiar satisfaction the declaration of His Majesty, accompanying this act, and charging the undersigned to communicate to his Government His Majesty's invariable disposition to cultivate the good intelligence and friendly intercourse which ought always to subsist between the two. When on every other point there is the pleasing prospect of a perfect accord, it is with regret that the undersigned feels the necessity imposed on him of differing in opinion with his excellency Mr. De Rozenkrantz [sic] on the subject of the convoy cases, and of contesting some of the doctrines which the minister has laid down as applicable to those cases. His excellency has not thought proper to reply to the reasoning upon which the undersigned bases his reclamation, which therefore remains in its entire force; nor has he produced any thing which can be deemed satisfactory in support of the principle assumed in the royal instruction to which that reasoning has been applied. The Minister of State has produced, in favor of the principle in question, the single argument, that he who puts himself under the protection of another, does thereby take side with his protector, and renounces the advantages which belong to the quality of friend, as to him against whom he seeks protection. In vain are the books examined to discover the source from which this argument is drawn; in vain are history and the records of diplomacy resorted to, for authority or for any countenance given to the doctrine which it embraces. But these books and these records, have they lost their title to respect? Have they become a dead letter? His Majesty certainly does not assume to act on principles unknown to them, to originate a practice at once undefined in its limits, and rigorous in its character beyond all precedent; in hostility, also, with the ancient doctrines of Denmark, and a stranger to all her maritime codes; so much a stranger, as that it is not found even in the royal instructions issued on the 14^th September, 1807. His excellency the Minister of State supposes an acquiescence in this new rule, upon the consideration that it is applied to Danish ships as well as to strangers. Certainly the united States will never dispute the equity or propriety of any law emanating from His Majesty's authority, and applied to his own subjects; but it is equally certain that they found their rights upon the public law only, and cannot consent to place them at the disposition of any partial authority, or to limit them by the convenience of the belligerent Powers. It is not readily conceived how Danish ships, or ships of the allies of Denmark, being subject to the capture of the enemy, can be found under his convoy; vessels carrying such flags and so found cannot but be enemy's property; but if, by whatever means, His Majesty's subjects do put themselves under enemy's convoy, they are doubtless guilty of a high crime, and richly merit all the punishment which his laws inflict. But is the same rule to be applied to the property and to the citizens of a neutral and independent Power? Thus much the undersigned has found it his duty to say, in addition to what has been before stated, and remains unanswered, respecting the principle assumed in the royal instruction of March, 1810; but he finds one part of the minister's note which, as he apprehends, goes much beyond that instruction, and which would preclude the neutral from any kind of justification for being found under enemy's convoy. If were a gross dereliction of the interests of the United States should the undersigned leave the least room for his excellency to suppose that the American Government will accede to the fiction propounded by his excellency, viz: that neutral vessels found under enemy's convoy "have eo facto lost their original quality of neutrals." This idea was certainly more fully and distinctly expressed in conversation; and seeing that there are parts of his excellency's note which favor a different conclusion, he eagerly seizes the hope that it is not really intended to carry the doctrine to such an extent; yet, as in a matter of such importance nothing should remain equivocal, the undersigned, desirous of laying it before the President in the most distinct manner, requests that he may be favored with an explanation as to whatever is susceptible of misconstruction. His excellency, pursuing the idea above cited, in mentioning the instructions which His Majesty has now given to his tribunals to direct their examinations on American vessels found under enemy's convoy, says, "que les preuves les plus évidentes seront réquises pour prouver qu'un navire sous pavillon Americain ait été sous convoi anglois." ["that the most patent evidence will be required to prove that a ship under American flag was under English convoy."] Yet it is hoped that the words ait été are not intended to be connected with what is above quoted, but rather that they are to be governed by a sense of the words "s'étre mis sous la protection," found in the same sentence; by the words "la recherche et l'usage faits," in the paragraph preceding; by the words "se faits protéger," which will bear the same construction in the paragraph following; and, finally, by the words in the article "D," clause 2, of the royal instructions of March 1810, construed "using convoy," which must be supposed to mean a voluntary use of convoy, and cannot intend vessels which have been forced into, or have accidentally found themselves in, convoy. For to condemn vessels under such unfortunate circumstances, is that the course of a Power friendly to the neutral? This reflection so strengthens the above construction of the words used in the royal order of March 10^th, as not to leave a possibility of supposing that His Majesty intended that such innocent vessels should be affected by it. The undersigned cannot conclude this note without expressing his full confidence that the friendly dispositions professed by His Majesty will dispose him so to regulate the conduct of his tribunals upon the convoy cases, as to satisfy the just claims of the United States; or without assuring his excellency the Minister of State, in reply to the last observation in his note, that the American Government is also fully sensible of the value of the commercial and friendly relations which have always subsisted between the two centuries. G. W. E. To His Excellency M. De Rosenkrantz, First Minister of State, &c. [ Military Index \| Battles Index \| More on Danish Privateering ]

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