Power, Law and the End of Privateering

J. Lemnitzer

• Publisher: Palgrave Macmillan
• Year: 2014
• Print ISBN: 9781349337385, 9780230301856
• eBook ISBN: 9781137318633
• Topic: Politics & International Relations
• Subtopic: European History
• Index: Politics & International Relations

This book offers an exciting new take on the relationship between law and power. The 1856 Declaration of Paris marks the precise moment when international law became universal, and was an aggressive and successful British move to end privateering forever – then the United States' main weapon in case of war with Britain.

1

‘More Serious than the Eastern Question Itself’ – The Crimean War Compromise

The story of the Declaration of Paris begins in Sweden, where a well-timed piece of political blackmail triggered a flurry of diplomatic activity that resulted in the most liberal set of rules ever granted to neutrals. When it became increasingly likely that an Anglo-French coalition would be fighting Russia in early 1854 in what is now called the Crimean War, the Swedish government realised that the Baltic would be a warzone, and that the substantial shipping of the Kingdom of Sweden-Norway was under threat of belligerent interference, particularly by the Royal Navy under its controversial interpretation of the right of search. While Britain and France hoped to secure Sweden as an ally, Russia demanded that all Swedish ports should be closed for belligerents. That would have made it extremely hard to supply a large allied fleet in the Baltic, and Sweden knew that the Western powers would be eager to prevent this. Therefore it joined forces with the Danes, the custodians of the narrow gateway to the Baltic, and attempted to build an alliance of neutral powers that might join them in their demand for undisturbed neutral navigation.¹ By contacting smaller maritime powers about a joint defence of the ‘free ships, free goods’ principle, the Scandinavians were effectively reviving the struggles over neutral rights of the Napoleonic era, and planned a third Armed Neutrality. They could offer the promise of unhindered port access, but the initiative remained a clear provocation to the British.²

On 2 January 1854, Sweden and Denmark set out their demands in a joint despatch to London, Paris and St. Petersburg. Going much further than the original Armed Neutrality, they insisted not only on the freedom of enemy goods on neutral vessels but also on the immunity of neutral property on enemy ships.³ This meant an additional challenge to France, which traditionally captured such goods under the flag principle. Sweden also approached the Netherlands, Belgium, Sardinia, Spain and Prussia, but Prussia had declined to openly commit to a new Armed Neutrality before war had been declared and, without Prussia, the Netherlands was sympathetic but unwilling to publicly adhere.⁴ Even before the USA had responded, a surprisingly friendly despatch from Foreign Secretary Lord Clarendon reached Stockholm: after all, the Scandinavians might have challenged British principles, but the promise to keep Swedish ports open for belligerent vessels despite Russian protests meant a potentially decisive advantage for the Royal Navy.⁵ The French Ambassador in London, Alexandre Walewski, also urged Clarendon to abandon the old rules and make the constant quarrels about the right of search disappear overnight. Britain could please the neutrals, avoid a dangerous conflict with the USA and serve the interests of British trade. Walewski thought that both Clarendon and Lord John Russell⁶ understood the desirability of renouncing the traditional British principles but found it difficult to abandon a doctrine that had been established by renowned statesmen and virtually sanctified by generations of publicists.⁷

As the Queen’s Advocate, Sir John Harding, politely put it, ‘some declaration on part of Her Majesty’s government’ would have to be made to explain the decision to the public if the British principles were abandoned.⁸ It was First Lord of the Admiralty Sir James Graham who volunteered to provide the arguments: in a lengthy memorandum, he argued that in contrast with earlier wars, Britain was now not only the most important naval power but also the greatest commercial trader. Industrial production depended on the steady inflow of raw material imports, if necessary on board foreign vessels. The traditional practice of stopping every neutral ship and searching for enemy goods would therefore now harm British industry. Moreover, Russia was the most important source of important naval stores, such as hemp or tallow. Finally, if the Royal Navy was relieved of this task, there would be no necessity to employ privateers against Russian commerce. Naval vessels could be concentrated for a close blockade of the Russian coastline, which would compensate for the loss in military effectiveness caused by the abandonment of traditional prize rules.⁹

French Foreign Minister Édouard Drouyn de Lhuys tried to build a bridge for the British Cabinet and suggested a compromise in which each side accepted the more liberal aspects of the practice of the other. The British concession in swallowing the ‘free ships, free goods’ principle was, of course, greater than France conceding the freedom of neutral goods on enemy ships, but a compromise this generous would secure considerable goodwill from neutrals. The idea was made even more appealing to London since Drouyn de Lhuys suggested a compromise for the duration of the war, avoiding the need to permanently give up national principles.¹⁰ The latter restriction had been urged by French Navy Minister Theodore Ducos,¹¹ who was sceptical about the abandonment of established French naval traditions. Ducos would ideally have preferred a separate declaration by the Emperor to reaffirm the French principles, independent of British policy. Drouyn de Lhuys pointed out that this would guarantee a severe conflict with London and undermine the alliance before the war had even started. The need for unity in the coalition had been perfectly understood by the British and should be used to extract as many concessions as possible. In a final sentence, he told his colleague that Napoleon III thought exactly the same on this matter, strongly hinting that no further comments from Ducos were required.¹²

By late February, however, Drouyn de Lhuys became increasingly anxious as to whether Clarendon had the necessary will and political clout to achieve such a dramatic change in British policy. Repeated attempts by Walewski to obtain a decision proved to be unsuccessful,¹³ and Clarendon had made a statement in Parliament implying that in case of disagreement, Britain would simply issue a separate declaration.¹⁴ In response, Drouyn de Lhuys urged an understanding between the allies before any further announcements were made in public, and Clarendon promised to obtain a positive decision from the Cabinet within days.¹⁵ Clarendon failed to fulfil his promise, and soon faced pressure not only from France and the neutrals but also from anxious merchants who were increasingly successful in shaping British public opinion.

These fears were fuelled by a reply given by the British Consul in Riga to an enquiry by local merchants that seemed to announce a return of the old British rules on neutral trade. The note from the Consul had been authorised by Clarendon, which raised the question of whether it was meant to be a simple restatement of the present law or an indication of the course that would be followed in the conflict with Russia. If the latter was true, Milner Gibson warned Clarendon, this ‘might bring this country into a collision with the United States of America’.¹⁶ Facing further questioning in the House of Lords, Clarendon tried to calm merchants by explaining that while the neutral flag would not protect enemy goods, even if owned by British subjects resident in Russia, rerouting them via Prussia would be legal if the ownership of the wares changed on the way.¹⁷ Still, the only way to reassure Parliament proved to be a strong hint about future policy: Clarendon stated that in this first war alongside an ally, Britain had to be very clear about the principles to be applied and ‘the departure which we shall sanction from our former law and practice’. In these matters the government would act ‘with utmost liberality’.

It is important to point out that the ‘liberality’ so urged upon the government was not necessarily an expression of liberalism as a political ideology. One of the first newspapers to demand liberal rules to please the neutrals was The Times,¹⁸ and among the first speakers to respond to Clarendon’s announcement was a Conservative who represented the shipping interests of his Liverpool constituency. Thomas Horsfall demanded a quick resolution based on what Clarendon had promised: already, increased expenses were being placed upon the shipping industry, as uncertainty about the prize rules and the role of privateers in the coming war had caused insurers to demand soaring premiums. Rising prices for consumers would soon follow, and a speedy clarification was therefore in the interest of the country as a whole, as was a treaty with France and the USA that banned privateering once and for all.¹⁹ John Bright suggested that such a treaty should also include the ‘free ships, free goods’ principle, because if US ships were searched for enemy property, this would almost certainly provoke war with Washington. Leader of the House John Russell finally asked for ‘a few days of forbearance’.²⁰

Russell was unable to reveal that a draft declaration had already been agreed by the Cabinet because the French had not yet replied after it had been sent to Paris. One day earlier, Clarendon had read it to US Minister James Buchanan, who was highly pleased to hear that the British were willing to accept the ‘free ships, free goods’ principle as well as sparing neutral goods on enemy ships, and assured Clarendon that the draft would be ‘highly gratifying’ to the US government.²¹ Yet if the Cabinet believed that its concession would lead to a swift conclusion of the negotiations, it was wrong. The French demanded a number of changes, the first one being an objection by Navy Minister Ducos: while the British draft supported the permanent abolition of privateering, the French Navy had doubts about giving up this particular weapon. On 20 March, Drouyn de Lhuys reported to Ducos that Britain had backed down and now only requested that no letters of marque should be issued in the coming war, which he deemed ‘acceptable’.²² In addition, Drouyn de Lhuys demanded two changes that both further extended neutral rights.²³ The immunity of neutral convoys from searches was agreed without much discussion,²⁴ but the second demand almost caused the negotiations to collapse.

Drouyn de Lhuys had declared that a provision that prevented neutral vessels from taking over Russia’s coastal trade was totally unacceptable. His reasons had little to do with present trade between Russian ports but instead lay in the distant past as well as in concerns about the immediate future. According to mercantilist principles, colonial and coastal trade were reserved for a nation’s citizens. In the Seven Years War of 1756–63, France had lifted this ban and transferred much of its colonial trade to neutrals to circumvent British maritime dominance. Britain had replied by introducing the so-called rule of 1756, which declared all neutral trade during war to be illegal if the activity had been forbidden in peacetime. With liberal economic principles gaining more and more currency, Britain had since abolished any restrictions on its own colonial trade in 1849 and would open coastal trade to foreigners by the end of the month.²⁵ France and Russia, however, had not liberalised their markets, and a British concession in the war against Russia would have obvious implications for a future war against France. For this reason, the memorandum by James Graham mentioned earlier urged that the ‘rule of 1756’ should be maintained under all circumstances.²⁶

France, on the other hand, wanted to allow neutral coastal trade if a special licence had been granted, and absolutely refused to accept a rule which it had consistently declared to be illegal ever since the Seven Years War.²⁷ Furthermore, the National Assembly would have to change French laws, and in any case the government believed that an application of the rule would lead to war with the USA. Drouyn de Lhuys argued that all Russian ports could easily be blockaded, while British insistence on the ‘rule of 1756’ would have serious implications for commerce between the Russian Pacific coast and Russian-Alaska, as the state-owned Russian trade company would transfer its business to US vessels which had a legal right to coastal trade in wartime according to a French-US treaty of 1778. If the Cabinet in London were to stick to its position, France would not be able to assent to a joint declaration on maritime principles.

The reason why Drouyn de Lhuys was so willing to up the stakes and at the same time so certain what the US position would be was that the American Minister in Paris, John Mason, had begun to develop considerable initiative regarding neutral rights. Despite being a former Admiralty judge, he had not previously featured in the negotiations: new to his post and unable to speak French, much of the Anglo-French deliberations had escaped his attention, and unlike Buchanan in London he had not realised the potential of the British privateering scare for political blackmail.²⁸ Both issues were soon looked after by Vincent Rumpff, the delegate for the Hanseatic towns, who informed Mason that Drouyn de Lhuys wanted to talk to him about neutral rights and urged the use of privateering fears to exact more concessions.²⁹ In return, Mason promised to spearhead the efforts of other neutrals in pressuring the British.³⁰

In an interview with Drouyn de Lhuys, Mason noted that privateering was ‘the point on which most apprehension is felt’, and responded with a thinly veiled threat: as long as the allies allowed for profitable neutral trade during the war, American merchants would hardly be tempted to accept Russian letters of marque. If not, his government would surely find it hard to restrain their ‘bold and adventurous seafarers’. Drouyn de Lhuys emphatically agreed with Mason’s assessment that the USA would never accept harassment of its merchant fleet and suggested a bilateral treaty that would guarantee extensive neutral rights, although Mason suspected that it might also include a bilateral ban on privateering: ‘I have indirectly, from the Minister of Foreign Affairs, an assurance that he will send out, by the steamer which will take this, a proposition to the United States, to regulate these interesting questions by convention.’³¹

Shortly afterwards, Cowley went to Mason to find out whether he would be as delighted with the British proposal as Buchanan in London. Unlike Buchanan, Mason felt strongly about the inclusion of the ‘rule of 1756’ and declared the draft to be totally unacceptable. Cowley was surprised and found Mason suspiciously well prepared, and assumed Drouyn de Lhuys had seen the American before him. As Drouyn de Lhuys had also ca...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• List of Tables
• Acknowledgements
• List of Abbreviations
• Introduction: Power, Law and the Declaration of Paris
• 1. ‘More Serious than the Eastern Question Itself’ – The Crimean War Compromise
• 2. The Crimean War and Maritime Law
• 3. ‘Catching Brother Jonathan in the Trap which He Laid for Us’ – The Genesis of the Declaration of Paris
• 4. ‘That Moral League of Nations Against the United States’ – The Declaration of Paris and the Marcy Amendment
• 5. ‘The United States Have a Vote in Framing the Maritime Law of this Age’ – The Cass Memorandum and Bremen’s Campaign for the Marcy Amendment
• 6. The Declaration of Paris and the American Civil War
• 7. ‘Announcing Our Withdrawal from the Declaration’ – The Declaration of Paris and the Franco-German War of 1870
• Conclusion: The Rise and Fall of the Declaration of Paris
• Notes
• Bibliography
• Index