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The Acts & Orders in Council

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The Acts, Orders in Council, &c. of Great Britain [on Trade], 1793 - 1812

By Tom Holmberg

Introduction.

The capture of a ship belonging to one belligerent by another has long been considered one of the fortunes of war, but when neutrals become involved the situation becomes much more complicated. In Britain the Court of Admiralty had exercised prize jurisdiction since the 14th century and exercising undisputed jurisdiction since 1616. Admiralty law in Britain and the Continent was based on the Consolato del Mare, as well as Rhodian sea law, the laws of Oléron, of Wisbury, and of the Hanse Towns.  The Catalan Consolato del Mare originally drawn up in the twelfth century, was founded upon the Roman maritime law and customary Mediterranean practices, dealt with matters of war only briefly.

Influential seventeenth century legal scholar Hugo Grotius upheld the right of neutral access to blockaded ports except for contraband. In 1635 the equally famous English jurist John wrote his Mare Clausum in rebuttal to Grotius, initiating a debate on maritime law that was to extend into the nineteenth century. At the opening of the eighteenth century Cornelius Van Bynkershoek also held that a neutral is "allowed to maintain a friendly intercourse with our friends, even if they are at war with each other, provided that we rigidly abstain from supplying them with contraband or conveying anything to blockaded places."  Emmerich de Vattel in the middle of the eighteenth century conversely upheld the rights of belligerents to restrict neutral trade, impressment, search of neutral vessels on the high seas and disallowed indemnities for unlawfully seized vessels and cargoes.

Britain's protectionist Navigation Acts, which were to become a major grievance in the American War for Independence, protected Britain's trade and insured Britain's maritime supremacy by excluding foreign vessels from trading or carrying colonial produce. Britain's "Rule of 1756" barred neutrals from trading with enemy ports normally closed to them in time of peace, allowing the British to virtually control the trade routes of the world in times of war. This policy had become, in British eyes, "its most ancient, essential, and undoubted maritime rights." During the American War for Independence the Dutch, former allies of the British against the French, were angered by Britain's treatment of their merchantmen.  Catherine II of Russia issued a Declaration of Neutral Rights in 1780 to protect neutral ships from British depredations and was joined by Sweden and Denmark in a League of Armed Neutrality, a policy that would be repeated during the Napoleonic era.  When Britain became aware that the Dutch had opened negotiations to join the League, they declared war on the Dutch in December 1780.

With the outbreak of war between Britain and France, both nations demanded that neutrals not trade with each other's enemies and that to freely submit to their counterpart's restrictions would violate its neutral status. (In 1807 future Prime Minister Spencer Perceval stated: "The neutral who would control their hostility by those rules and laws which their enemy refuses to recognize, and which such neutral does not compel that enemy to observe, ceases to be neutral by ceasing to observe that impartiality which is the very life and soul of neutrality."  Joseph Marryat, a Member of Parliament, in 1812 noted, "The Americans suffered great hardships by the Orders in Council; they were obliged to send their ships into British ports, and pay a certain centage, and which, if they did, they were certain of confiscation in the Enemy's ports."))   The British Foreign Office, on 28 December 1793, recorded the concerns of the American minister, "Mr. Pinckney called; much agitated in consequence of the new instruction to commanders of ships of war and privateers…[He] insisted strongly on the injustice of such a measure, and on the destructive consequences it must entail on his country, which now would be deprived of every means of exporting its produce, as the Act of Navigation shut them out from our islands, and this new instruction would equally shut them out from those of France; so that nothing but a few inconsiderable markets would be left to them."

The Order of 6 November 1793 was issued in light of Britain's attempt to conquer the French colony of St. Domingue.  The revoking Order, intended, according to Stanley Elkin and Eric McKitrick, to arrive in America at the same time as the original Order, was delayed.  All segments of American society were enraged by the Order which was "carried out by the British naval officers with even more their usual callous brutality."  In 25 April 1795 American grain shipments to France were seized under a "secret" Order in Council that wouldn't be published until the Twentieth Century when it was discovered in the files of the Foreign Office.

Between 1803 and 1806 Pres. Jefferson attempted to negotiate an agreement with Britain that would govern the maritime issues, only to be told by the British Foreign Secretary that these difference "were not of an urgent nature on either side."  Monroe observed that if the United States submitted to the British restrictions on trade without taking action, even "the most feeble and vulnerable of all powers…will insult us, encroach on our rights, and plunder us if they can do it with impunity."  Monroe recognized, in the words of biographer Harry Ammon, "the opportunistic character of British policy, which altered according to the circumstances of the war."  When Britain was weak, it adopted a conciliatory attitude, but when strong, Britain "had not hesitated to impose stiffer restrictions on the neutrals."  Despite these restrictions, by the end of the Wars of the French Revolution the United States had become the world's largest neutral carrier.

Admiralty Court in the Polly case of 1800 had virtually negated the "Rule of 1756."  The Polly was an American-owned ship seized while on a voyage from Marblehead, Massachusetts to Bilboa.  The British captor claimed that since the cargo consisted of Havana sugar and Caracas cocoa being shipped to Spain it was lawful prize.  The owners argued that the cargo, bought in Havana, had been entered at the customs house at Marblehead and duties paid.  The pointed out that the cargo had been off-loaded, the ship put on stocks for repairs, new insurance taken and new clearances obtained; therefore the voyage was not direct. The court found for the owners. But in the Essex case, 23 July 1805, the British Admiralty court reversed itself.  The Essex had loaded a cargo in Barcelona.  The cargo had been landed at Salem, Massachussetts, bond obtained for the duties, the ship repaired and the cargo then reloaded.  Though the facts in the case were largely the same as in the Polly case, the Judge decided that since the cargo had been intended for Havana all along the voyage was direct.  By this decision the Court put an end to the legal fiction of the "broken voyage" (more than half of U.S. exports in 1805 would have fallen victim under this new rule).  American ships transporting goods from French or Spanish colonies would have to unload in a United States port and pay an import duty before the produce could be shipped to another port, adding an extra cost to American transported goods.  In the two months following the case more than 50 U. S. vessels were seized.

Recognizing the commercial rivalry the United States offered, in October 1805 James Stephen (1758-1832) published an influential pamphlet, War in Disguise; or, The Frauds of the Neutral Flags, (Joseph Marryat produced a similar pamphlet with the more inflammatory title, Concessions to America the Bane of Britain) advocating rigorous action against neutral (i.e., American) trade.  British merchants, Stephen argued, would reap handsome rewards by displacing neutrals from the carrying trade.  Though not an official document, ministers had supplied Stephen with materials for its composition and had vetted the finished manuscript.  Madison, who said the book was "written in the spirit of a lawyer stimulated by that of a merchant," had published an anonymous pamphlet, An Examination of the British Doctrine, which Subjects to Capture a Neutral Trade, Not Open in Time of Peace, attacking as outside of international law Britain's "Rule of '56" and outlining the United States view of neutral rights.

With the onset of the Napoleonic Wars, the strategy of economic blockade was more often and more rigorously turned to.  Blockade is, in the words of legal historian L. A. Atherley-Jones, "the interdiction by force of all intercourse by sea between the blockaded littoral, its ports, havens, estuaries, and rivers, and the rest of the world.  A siege differs from a blockade in that a siege necessarily involves the notion of attack and ultimate capture by means of siege works or assault….The purpose of blockade is, primarily, by subjecting [a belligerent] to privation, to coerce it to seek peace on terms acceptable to the other belligerent."  To be legal a "blockade must be of so strict a character as to render access to the blockaded area impossible, or at least of such a character as to expose vessels attempting to pass to the effective fire of guns placed in position.  Famed Admiralty Judge Sir William Scott, in the 1798 case of the Betsy, ruled that a blockade must be rigorous enough as to "constitute a danger to vessels attempting to enter the interdicted port, and …the blockading ships be so near together as to render it dangerous for a vessel to attempt exit or entrance."  In 1800, Russia and Sweden, in their treaty establishing the Armed Neutrality, declared that for a blockade to be legal it must be such that "entrance is evidently dangerous on account of the sufficient proximity to each other of the blockading vessels."

 

With the Order in Council (an "order in council" is "an order issued by the sovereign on the advice of the privy council, or more usually on the advice of a few selected members thereof… It is opposed to the statute because it does not require the sanction of parliament; it is issued by the sovereign by virtue of the royal prerogative. But although theoretically orders in council are thus independent of parliamentary authority, in practice they, are only issued on the advice of ministers of the crown, who are, of course, responsible to parliament for their action in the matter.") of May 1806 (Fox's Blockade) ports from Brest to the Elbe were placed under blockade.  Napoleon responded with his Berlin Decree, a much more rigorous policy than France had previously employed. The British retaliated with new Orders in Council in November 1807 banning neutrals from trading with France and its allies.  Spencer Perceval succinctly summed up the intent of these new Orders, "either [the neutral] countries will have no trade, or they must be content to accept it through us."

The Opposition in Britain opposed the mercantilist policies of the government without success.  "Canning and his colleagues," Historian Walter Fitzpatrick wrote, "seem to have believed that their Orders in Council would give British merchants a monopoly of commerce on the high seas.  The leaders of the Opposition, especially Lords Grenville and Auckland, who had learned political economy from Adam Smith, denounced them as founded on an immortal principle, and furthering the policy of Napoleon, with disastrous consequences for Great Britain." In Parliament Lord Erskine in March 1808 said, "Up to the very date of your Orders in Council...every advantage flowed into your lap. America ... continued to smuggle your goods into France, for her own interest, and France contrived to buy them for hers.  The people huzzaed their emperor in the Tuilleries every day, but they broke his laws every night.  This was our condition before the 11th of November England had the trade of the whole world, whilst France had only an empty libel stuck up on the p[issin]g posts of Paris."

Lord Bathurst, President of the Board of Trade, who tried to reform or at least mitigate the British system, ran into entrenched interests who supported stringent methods.  He pointed out that Britain's Orders in Council not only restricted trade further than Napoleon had in his Berlin Decree, but risked widening the war.  "The object of the proposed order," Bathurst said, "…is in fact nothing but the colonial trade carried on through America; and by making [the Orders] general we unite Russia in defence of a trade with which she has no concern or any interest to defend…[W]e might therefore have to fight for a rule of law, new, the policy of which would be questionable, to support an interest which would be the first to suffer by the war…" According to Bathurst, the Advocate-General's, as well as the Admiralty Court's Sir William Scott's profits "depend much on privateers and the litigations" of the prize system.    Historian Henry Adams observed that "many members of the British government and nearly the whole British navy were growing rich on the plunder of American commerce."

The Orders in Council of Nov 1807 dismayed not only the neutrals but the merchants and manufacturers of London and Liverpool, who petitioned Parliament for their repeal in March 1808.  The petitioners complained that the Orders were "productive of...fatal consequences to the interest not only of the petitioners, but of the commerce and manufactures of the empire at large; and...likely to interrupt our peace with the United States of America, our intercourse with which, at all times valuable, is infinitely more so since we are excluded from the continent of Europe..."  The petitioners observed that "the neutrality of America has been the means of circulating, to a large amount, articles of the produce and manufactures of this country in the dominions of our enemies..." Countering the mercantilist views of the Ministry, the merchants and manufacturers pointed out that since "the annual value of British manufactures exported to the United States exceeds ten millions sterling; and that, as our consumption of the produce of that country falls far short of that amount, the only means [of America] paying us must arise from the consumption of the produce of America in other countries, which the operation of the Orders in Council must...in most instances totally destroy...[And therefore] be disabled from paying their debts to this country, which may be fairly estimated to amount to the enormous sum of 12 millions sterling..." Agitation against the Orders in Council was to arise again during the economic downturn in 1812.  Historian Harold Perkins notes "a clear line of development...from the campaign against the Orders in Council in 1812 to the Anti-Corn Law agitation [of the post-war decades]."

As Atherley-Jones has observed, France's placing "the whole of the British territories in a state of blockade, succeeded by a counter declaration by Great Britain placing French territory in a similar situation, is outside the serious consideration of the law of blockade, for it is evident that the main condition precedent of a lawful blockade was absent, in that no effective blockade de facto could possibly have been maintained in either case."

Thomas Jefferson explained the American view of these new, more stringent Orders, Britain "forbade us to trade with any nation without entering and paying duties in their ports on both the outward and inward cargo. Thus, to carry a cargo of cotton from Savannah to St. Mary's, and take returns in fruits, for example, our vessel was to go to England, enter and pay a duty on her cottons there, return to St. Mary's, then go back to England to enter and pay a duty on her fruits, and then return to Savannah, after crossing the Atlantic four times, and paying tributes on both cargoes to England, instead of the direct passage of a few hours."

At the same time Britain complained of American merchants getting special treatment by the French.  Lord Castlereagh complain on February 1807 that the United States "has, by a secret understanding with the French government, contrived to take her shipping out of the operation of the [Berlin] decree…" But by August with the condemnation of the American merchantman the Horizon by the French Napoleon signaled a new, more stringent application of the Continental System.

Britain issued 14 Orders in Council in 1807.  That of January reaffirmed the Fox Blockade, and those of November ordered neutrals to stop trading at ports from which British merchants were barred, that vessels bearing cargoes of non-British origin were liable to seizure for circumventing the British Orders, and that enemy-built ships would be condemned regardless of the flag they flew under. The British proclamation of 16 October 1807 on British seamen "enticed" into foreign service was issued in response to American outrage over the Chesapeake/Leopard affair.  The British warship HMS Leopard stopped the USS Chesapeake. When the captain of the Chesapeake refused to let British officers board and search the American vessel, the Leopard opened fire on the American ship, boarded her and removed four sailors believed to be Royal Navy deserters.  The ministerial paper, the Morning Post wrote, "though the British Government,…may, however irritated by her conduct, display magnanimous forbearance toward so insignificant a Power as America, they will not,…suffer our proud sovereignty of the ocean to be mutilated by any invasion of its just rights and prerogatives….[T]he sovereignty of the seas in the hands of Great Britain is an established, legitimate sovereignty…"  The same paper later remarked, "A few short months of war would convince these desperate politicians of the folly of measuring the strength of a rising but still infant and puny, nation with the colossal power of the British empire."

In protest to the Orders in Council and the proclamation requiring the Royal Navy to more stringently enforce its policy on impressment, the United States passed the 1807 Embargo Act prohibiting all exports.  A Tennessee Congressmen expressed the Republican view of the Embargo, exclaiming, "We may complain because we cannot sell for a good price our surplus provisions and other productions; they will suffer because they cannot produce a sufficient quantity of those articles to subsist upon—to support life."  Critic John Randolph on the other hand likened the measure to "cure corns by cutting off the toes."  Randolph was to be proved right, within a year 80% of American trade had disappeared.  The Embargo Act, while harming U.S. commerce, did little to change the policies of Britain and France. Embargo Act was replaced with the Non-Intercourse Act of March 1809, which prohibited trade only with the main belligerents, Great Britain and France.  Macon's Bill No. 2, enacted in May 1810, removed all restrictions on commerce, but continued to bar foreign warships.

The United States was not the only neutral to feel the increasingly rigorous strictures of the British war on trade.  In July 1807 the British demanded that Denmark turn over its fleet to Britain or suffer it being seized.  The Danes, who had the power to inconvenience British trade in the Baltic, were attacked, Copenhagen bombarded and its fleet seized.  Britain eventually modified its Orders by the practice of issuing licenses.  By means of these licenses, on historian opined, "The practical British planned to make their economic war with France a paying proposition, to help defray the costs of the military war."  French grain was allowed into Britain and American grain continued to feed Wellington's soldiers even after war was declared.  At the same time British specie filled French and American coffers.

The Order in Council of April 1809 eased the restrictions imposed in 1807.  Though France and its satellites were still under blockade Germany and the Baltic was opened to the licensed trade and reduced customs duties on goods landed in England for re-export.  When at virtually the same time the British government rejected an agreement negotiated between it and the United States pledging to revoke the 1807 Orders, any positive effect of the new Orders was lost on the Americans.

In November 1811 Madison invoked the non-intercourse provision of Macon's Bill No. 2 on the basis of the Cadore Letter from France announcing that the Berlin and Milan Decrees were revoked for American shipping.  Though the Cadore Letter was conditional on the British repeal of its Orders in Council, Madison attempted unsuccessfully to use the Cadore Letter and the non-intercourse policy as a lever to impel the British to revoke its Orders.  The British, doubting American resolve and the legitimacy of French claims that the Berlin Decree was not in force, persisted in enforcing its Orders.

In Britain by 1812 workmen in the north of England and elsewhere, idled by the effects of the long economic war, were breaking stocking-frames, spinning-jennies and mules and seizing grain.  The militia was called out to oppose the Luddite rebellion. Manufacturers were again petitioning for the repeal of the Orders in Council.  A petition from Birmingham bore twenty thousand signatures.  Henry Brougham in Parliament on 3 March 1812 laid out the case against the Orders, attacking it as harmful and ineffective. "In the year 1810, a sum of between nine and ten millions, of the property of British merchants," Brougham noted, "was transferred to the French treasury. Here was the secret of Buonaparté's relaxations [of the Continental system]. A sum exceeding by 2 or 3 millions the whole amount of the Droits of Admiralty, accumulated in a period of eighteen years by the plunder taken from Spaniards, from French, from Danes, from our Dutch allies, from Toulon...&c. was, as it were, in a moment added to the funds of our enemy..." Brougham went on to observe, "It does appear most extraordinary that they who are in the constant practice of characterizing [Napoleon] as abandoned to the most profligate principles, as the blood-thirsty destroyer of his kind, the foul murderer of his companions in arms...that these men could have ever made up their minds to propose to parliament a measure that, by depriving the French soldiers of bark, was to alarm and prey upon Buonaparté's tender feelings."

In the fall of 1811 the United States was handed Napoleon's St. Cloud Decree, which had been backdated to 28 April, formally repealing the Berlin and Milan Decrees.  The St. Cloud Decree gave Britain a justification to revoke its Orders in Council, which it did in June 1812, too late to prevent war. The United States, unaware of the repeal of the Orders in Council, declared war on Britain two days after their repeal.  Between 1807 and 1812 France, Britain and their allies had seized more than 900 American ships.

The Acts, Orders in Council, &c. of Great Britain

1793, March 25: Extract from the Russian treaty.

1793, May 25: Extract from the Spanish treaty.

1793, July 14: Extract from the Prussian treaty.

1793, August 30:  Extract from the Austrian treaty.

1793, June 8: Additional instructions to the commanders of His Majesty's ships of war and privateers that have or may have letters of marque against France

1793, November 6: Additional instructions to the commanders of all our ships of war and privateers that have or may have letters of marque against France. Detention of neutral vessels, laden with French colonial productions, &c.

1794, January 8: Revocation of the last order, and the enactment of other regulations.

1798, January 25: Revocation of the last order, and the enactment of new regulations.

1799, March 22: Blockade of all the ports of Holland.

1799, November 27: Suspension of the blockade of Holland.

1803, June 24: Direct trade between neutrals and the colonies of enemies not to be interrupted, unless, upon the outward voyage, contraband supplies shall have been furnished by the neutrals.

1804, April 12: Instructions concerning blockades, communicated by Mr. Merry.

1804, April 12: Conversion of the siege of Curaçoa into a blockade.

1804, August 9: Blockade of Frécamp, &c.

1805. August 17: Direct trade with enemy's colonies subjected to restrictions, &c.

1806, April 8: Blockade of the Ems, Weser, &c.

1806, May 16: Blockade from the Elbe to Brest.  

1806, September 25: Discontinuance of the last blockade in part.

1807, January 7: Interdiction of the trade, from port to port, of France.

1807, June 26: Blockade of the Ems, &c.

1807, October 16: Proclamation recalling seamen.

1807, November 11: Order in council -- Restricitions on point of trade and navigation with His Majesty's enemies

1807, November 11: Order in council -- Third country ships trading with the enemy and with Great Britain.

1807, November 11: Order in council -- On sale of enemy ships to neutrals

1807, November 25: Order in council -- Setting date on when the November 11, 1807 went into effect throughout the world.   

1807, November 25: Order in council -- Setting which ports of entry ships may use.

1807, November 25: Order in council -- Concerning trade with Gibraltar and Malta.

1807, November 25: Order in council -- Exclusion of goods

1807, November 25: Order in council -- Exclusion of goods from Prussia and Lubeck from the November 11, 1807 order.

1807, November 25: Order in council -- Exclusion of goods from Portugal from the November 11, 1807 order.

1808, January 2: Blockade of Carthagena, &c.

1808, March 28: Act of Parliament for carrying orders of council into effect. [On exportation of certain neutral products, (forced into British markets,) amounting to prohibition, imposed by act of Parliament.]

1808, April 11: Order in council permitting neutral vessels, without papers, to carry supplies to the West Indies.

1808, April 14: Act of Parliament for prohibiting exportation of cotton, wool, &c.

1808, April 14: Act of Parliament for making valid certain orders in council.

1808, May 4: Blockade of Copenhagen and of the island of Zealand.

1808, June 23: Act of Parliament regulating trade between the United States and Great Britain.

1808, October 14: Admiral Cochrane's blockade of French Leeward islands.

1809, April 26: Order in Council blockading France and its satellites.

1809, May 24: Order in Council temporarily suspends the blockade of Holland for American vessels.

1812, April 21: Declaration of the intent to revoke the previous Orders in Council when the French repeal their Berlin and Milan decrees.

1812, April 21: Order in Council declaring the intent to revoke the previous Orders in Council when the French repeal their Berlin and Milan decrees.

1812, June 23: Order in Council revoking the previous Orders in Council.

1812, November 9: Order in Council authorizing the granting of licenses to merchants in the United States.

 

Note: See also "Documents upon the Continental System."  For information on Britain's Orders in Council, see "Orders in Council and Licenses." For a copy of the U.S. Embargo Act, see "The Embargo Act of 1807."

Source:

American State Papers: Documents, Legislative and Executive, of the Congress of the United States. Class I.: Foreign Relations. Selected and edited under the authority of Congress. Washington, DC: Gales and Seaton, 1832-1861.

Placed on the Napoleon Series April 2003

 

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