The British Case Against America (1805)

BY JAMES STEPHEN

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 t fade with the colonies of our enemy, directly to or 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? . . .

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 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. . . .

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 the European, and not the American market, was that in which atone the ultimate profit could be reaped, or the neutralizing commission secured. . . .

From these causes it has naturally happened that 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 commodities 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. . . .

It seems scarcely necessary to shew, that, by this practice, the licence accorded by the British government was grossly abused. . . .

By the merchants, and custom-house officers of the United States, the line of neutral duty in this case was evidently not misconceived; for the departures from it, were carefully 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 declarations 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 condition to defy the scrutiny of any British cruizer, by which she should be stopped and examined in the course of her passage to Europe. . . .

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. . . .

Those who are conversant with the business of the prize court, well know, that affidavits in further proof, are never wanting to support every case that a claimant may be allowed to set up. . . .

Accordingly, in the class of cases we are considering, 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 terminate in the neutral country. . . .

The landing the cargo in America, and re-shipping it in the same bottom, were no very costly precautions for better securing the merchant against the peril of capture and detection in the latter branch of these important voyages. . . .

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 destination; 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 port officers and government 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 warehouses, 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 given, in which no mention was made that the cargo consisted of bonded or debentured goods, which had previously been entered for re-exporta-tion; but the same general forms were used, as on an original shipment of goods which had actually paid duties in America. Nor was this all; for, in the event of capture and further inquiry respecting the importation into America, the collectors and other officers were accommodating enough solemnly 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. . . .

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 purposes of imposition and fraud. The lords commissioners of appeal, therefore, finding it manifest in a recent case, that the alleged importation into Salem, of a cargo which had been shipped in Spain, and afterwards 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. . . .

The payment or non-payment of duties in a neutral country cannot, of itself, vary our belligerent rights; nor can the mere landing and reshipment of goods, without a change of property or intention, give to the owner any right of carriage which 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 presumptions against the fairness and legality of the voyage. It would therefore have been inconsistent and preposterous, 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 presumptions, which they had been once supposed to repel. . . .

. . . our prize courts . . . finding themselves to have been deceived for years past by fallacious evidence, have resolved to be cheated in the same way no longer. It is on this account only, and the consequent capture of some America West Indiamen supposed to be practising the old fraud, that we are accused of insulting the neutral powers, of innovating on the acknowledged taw of nations, and of treating as contraband of war, the produce of the West India Islands. . . .

The worst consequence, perhaps, of the independence 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 when, and how, have these sailors become Americans?—By engaging in her merchant service during the last and the present war; and sometimes by obtaining that formal naturalization, which is gratuitously given, after they have sailed two years from an American port. 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 considerable part of the navigators of American ships, are such at this moment; though, unfortunately, they are not easily distinguishable from genuine American seamen. . . .

The unity of language, and the close affinity of manners, between English and American seamen, 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 alterations in our naval system . . . 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 merchants 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. . . .

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 dangerous 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 impotent warfare, but to be carried on by the mariners of Great Britain. This illegitimate and noxious navigation, therefore, is nourished with the life blood of our navy.

[James Stephen], (London, 1805), 36–121 passim.