‘In apparent disagreement with all law of nations in the world’: Negotiating neutrality for shipping and trade during the French Revolutionary and Napoleonic Wars

Introduction

The eighteenth century was marked by the globalization of commerce, colonial development, consumer revolutions and the consequent increase of volumes and values of trade and shipping – in short, by a commercial expansion that transformed the world and paved the way for nineteenth-century industrialization. Yet it was also a period of long, drawn-out wars between France and Britain (1689–1815), and an era of upheavals and revolutions in the Americas (1775–1783, 1791–1804) and Western Europe (1787–1815), which modified trade patterns substantially.

Did warfare and violence have disruptive effects on the expansion of global trade? Historians do not agree on this issue. Some argue that eighteenth-century wars seriously disrupted all kinds of commerce and slowed economic development. Others highlight the complementarity of warfare and trade in the eighteenth-century economic environment. ¹ It seems to us that the role played by neutral states provides an important argument for the complementarity thesis. Neutral trade and shipping channelled commodity flows between both belligerents and neutrals and thereby mitigated the negative effects of warfare upon trade. In doing so, neutrals profited from the wartime niches and enriched themselves. They also made it possible for belligerents to sustain war efforts, and to keep at least some of their peacetime commercial links even when their enemies controlled most of the sea lanes. Neutrals, moreover, possibly reduced the tensions and imbalances that mercantilist colonial empires generated, thus making them viable over the longer term. ² Rather than speculating on counterfactual scenarios in which war did not occur, we decided to focus on how maritime trade and warfare coexisted. Accordingly, this Forum deals with the trade and shipping conducted by Atlantic neutral states in Southern Europe during the French Revolutionary and Napoleonic Wars, when the longstanding conflict between France and Britain came to a climax, making the question of neutrality extremely controversial.

Scholars have examined global trade and shipping in wartime conditions, but they have largely failed to conceptualize the specific role of neutral trade and shipping from a broader wartime perspective. This is partly because they have generally focused their research on the great powers and their commerce, whereas neutrals were usually middle-range maritime states without large colonies and companies. At the same time, neutrality as a political and legal phenomenon has attracted increasing scholarly interest in recent years. ³ This Forum builds on this recent research to address the question of neutral trade in times of war. All five articles share the conviction that in order to understand the role of neutral trade and shipping, we should adopt an actor-based perspective. We intend therefore to look more concretely here at how agents of maritime trade based in neutral states – shipowners, merchants, captains – adapted to the wartime disruptions, and how they practically made use of neutrality through ongoing negotiations with belligerents. The adoption of this approach avoids the risk of substantialising the notion of neutrality and obliges us instead to consider neutrality as the product of interactions among economic actors and legal authorities – two levels of activity that were connected to each other in surprising ways. Most consuls, for instance, who intervened in prize cases, were themselves merchants, whereas some members of the courts judging on the validity of prizes, especially in first instances, invested money in privateering. Local interest in profit making might far exceed any consideration of the possible diplomatic or legal consequences of the court decisions, as shown by Eric Schnakenbourg with regard to prizes judged in Nantes. At a wider level, belligerent states wanted to harm enemy interests, but at the same time they needed neutral trade and shipping, and were more or less disposed, depending on specific contingencies, to adopt a benevolent attitude towards neutrals’ array of options in using their flags. Under such circumstances, legal arguments were constantly reinterpreted. We contend that there was no clear cut divide between neutral and belligerent trade, or between legal and illegal neutral practices, but that such a divide was the constantly reassessed product of negotiations which took place at all levels.

In dealing with the issue of neutral shipping and trade, we combined three approaches. We ought to apply an economic-historical approach to understand the swift adaptation of trade flows between belligerents and neutrals, and to assess the overall significance of trade under neutral flags. Yet, we also need to reconstruct the foreign policies of neutrals and belligerents that shaped the broader context which ultimately determined the possibility or otherwise of neutral trade. Finally, we ought to understand the legal and ideological complexities of practices of neutral trade and prize-taking, as they emerge in prize cases, diplomatic correspondence and legal publications. The latter aspect, we believe, was particularly relevant in enabling actors to define the margins of the activities that were definitely possible under neutral flags – which, as the articles in this Forum show, varied in time and according to the respective position of each belligerent and neutral state in a given moment and area. The detailed studies of prize cases presented in Beaurepaire’s and Schnakenbourg’s articles illustrate the complexity of the elements that led to a decision or its reversal by appeal. The status of any given neutral flag, moreover, depended on relations with other actors and flags. We claim that neutrality in this context should be conceived both as a negotiation process and as a system.

Although the Forum articles combine these three approaches, we are not aiming to cover the issue of neutral trade and shipping in the Revolutionary Wars exhaustively. We wish, however, to demonstrate the benefits of combining these three approaches and to conceive neutrality systemically. We focus in particular on three neutral flags – the United States, Sweden and Denmark – and on their trade and carrying business in Southern Europe and the Mediterranean, an area that was particularly complex because of the continuous interactions between individuals who could use multiple identities, and in which virtually all European maritime nations were present. Moreover, Barbary corsairing adds an interesting variable in the game, as the legal framework European belligerents imposed on neutral Western carriers incorporated exceptions as far as the Barbary States were concerned, as other legal principles prevailed there.

This Forum focuses on the French Revolutionary and Napoleonic Wars, that is to say to the last and the longest period of conflict during the ‘long’ eighteenth century (1689–1815), which some historians have labelled ‘the Second Hundred Years War’. Although recourse to economic policies to harm the enemy was not new as such, it became a central feature of this conflict. Belligerents were intent on diminishing their enemy’s capacity to sustain the war effort in this ‘First Total War’, a conflict that required a massive capacity to mobilise troops worldwide, and to maintain connections between the belligerent country and the outside world in order to sustain the domestic economy. ⁴ We therefore afforded particular attention to French and British policies, which reflected their demands and interests, and the fact that their commercial needs largely shaped neutral trade and shipping. This was precisely because belligerents needed neutral trade, but were conscious that neutrals advantaged their enemies as well, and that neutral trade and shipping was constantly being redefined on the ground and at sea.

Benefits and risks of neutral shipping

Historical research has mainly focused on the shipping interests of major maritime and colonial powers (Britain, France, Spain, Portugal, the Dutch Republic), without addressing the roles of warfare and neutrality in the growth of merchant fleets. As a matter of fact, in the late eighteenth century the Dutch and Scandinavian merchant fleets – including Norway and Finland – were among the largest in Europe, only surpassed by the British and French. How relevant was neutrality in the growth of shipping in the smaller states?

By 1800, the Swedes and Danes were the main European carriers. The Dutch, who had managed to remain neutral since the beginning of the eighteenth century, had lost their neutrality in the Fourth Anglo-Dutch War (1780–1784), and were unable to maintain it after 1793. ⁵ In the 1790s and 1800s, the United States merchant fleet rapidly expanded to become one of the biggest carriers in the world. ⁶ From the 1750s, ships under traditionally neutral flags could be found in waters from China to the West Indies, but their presence in colonial trades and in Europe depended on prevailing restrictions on foreign trade and on their implementation. In this respect, Southern Europe and the Mediterranean are particularly interesting to study, not only because of the economic significance of this area (which was commercially developed, and densely populated), but also because it was relatively unregulated and open to ships under foreign flags. The situation that neutrals encountered in wartime increased business without radically altering peacetime patterns of trade and shipping.

In times of conflict, trade and shipping increased both risks and profit-making opportunities. The Forum articles provide evidence from the United States, Denmark and Sweden to indicate that gains exceeded risks, and that all neutrals increased their shipping activities significantly in wartime. Conflict opened new markets for shipping, and freight rates increased considerably. In addition, commodity prices diverged because of the difficulties and risks involved in transport, making neutral trade extremely profitable whenever cargoes arrived safely at their destination.

What were the risks? The practices of neutral trade and shipping were deeply contested. Neutrals could be, and were, considered as supplying the enemy, and there were concerted attempts to prevent them from doing so, both by naval forces and private interests. Privateering was a well-established component of maritime warfare and it threatened neutrals as well as belligerents. By the late eighteenth century, the extent of privateering and prize taking was regulated in detail and followed clearly determined legal procedures in each country. ⁷ At the same time, however, there was no internationally recognized practice regarding the rights of neutrals and privateers – a fluid situation that generated an enormous amount of legal, diplomatic, political and private documentation relating to the issue of neutrality. Such documents form the bulk of the sources used here. The quite unpredictable fate of neutral ships in courts deliberating on the validity of prizes yields the hypothesis that, despite the existence of regular procedure and a vast body of legal texts and precedents, the ultimate decision depended on other factors.

In addition to the risk of being taken by belligerent great powers, Mediterranean and Southern European waters were rendered hazardous by the activities of Barbary corsairs. Sweden, Denmark and the United States reduced such risk through peace treaties with Tunis, Tripoli, Algiers and Morocco, but occasionally conflicts occurred, giving a comparative advantage to those who were still at peace with the Barbary States. The French Revolutionary Wars witnessed a number of conflicts between Danes, Swedes, Americans and the North African states, which made it more difficult to take advantage of war-affected markets for those flags who remained neutral vis-à-vis the European conflict, but not in relation to the Barbary States.

Neutrality and neutral shipping

During the early modern era, neutrality in war was highly contested. According to Hugo Grotius, any connection with one of the belligerents could be perceived as a more or less obvious support of that state. Only purely impartial neutrality was just. Consequently, true neutral trade should only occur between neutral ports and neutral merchants. However, this was far from the reality. In practice, a large part of neutral trade and shipping was conducted with belligerents, which meant that contests about the true nationality of ships and cargoes were at the centre of discourses on neutral shipping. As well as affecting its modalities – diverting vessels and captains from certain areas, or pushing them to sail in convoy or together with other ships – this discourse produced huge volumes of legal literature. Debates concerned three main issues in particular: the principle of ‘free ships make free goods’; the definitions of contraband of war; and the effective blockade of enemy’s ports or coasts.

The rule ‘free ships make free goods’ implied that the neutral flag of the ship protected its cargo, regardless of the nationality of its owner. This standpoint, which was originally Dutch, became broadly accepted in the eighteenth century, with the important exception of the British, who claimed the right to search neutral ships, to investigate the character of the cargo, and to seize enemy’s property aboard neutral vessels. This situation entailed high probability of conflict, especially if the neutral ship was sailing in a convoy under the naval escort of a neutral state. Following the instructions of their Admiralties, neutral warships had to refuse the right of belligerent vessels to search conveyed merchantmen. Such issues could therefore easily develop into armed engagement. British privateers and the Royal Navy were aware of such instructions and in general avoided direct confrontation with convoys. Yet, understanding of the situation was political and could evolve according to changes in the overall political situation. The convoy conflicts between Britain and neutral Sweden and Denmark in 1798–1800, studied in Pourchasse’s and Müller’s articles, perfectly illustrate this point.

The definition of contraband of war was another issue that lay at the core of neutral shipping. Bilateral trade treaties between European states explicitly allowed neutral trade in commodities that were not considered as directly useful to the enemy war effort. However, the definition of the nature of contraband of war differed from treaty to treaty, and from country to country. Should Swedish iron or Danish food supplies be considered as necessary to the enemy war efforts? Could the character of goods evolve over time, as the wars became more ‘maritime’? Could the concept be expanded to encompass food supplies?

The attitude of belligerents varied according to the different neutrals. Just to take an example, Britain’s late eighteenth-century standpoint with regard to Swedish neutral shipping was governed by the treaty of 1661, which defined contraband of war very loosely. In principle, Swedish exports like iron, tar, pitch and boards were not contraband of war. But from the mid-eighteenth century, the British interpretation of the character of these goods shifted so that Swedish cargoes of iron and naval stores were condemned as lawful prize. The British refused to re-negotiate this understanding of contraband with Sweden, ⁸ whereas their attitude towards Danish neutral shipping was friendlier, with a much narrower definition of contraband of war making it relatively easy for the Danes to sail in times of war. ⁹ It is likely that such differences in British attitude towards Sweden and Denmark had to do with Sweden’s long-term alliance with France, which did entail French subsidies but not Sweden’s engagement in the French wars, with the only exception being 1757–1763. However, the British attitude towards Danes hardened in the 1790s, and especially in 1798–1800, as highlighted by Pierrick Pourchasse.

The third major issue concerned the blockade of enemy’s coasts and ports. ¹⁰ It was generally admitted that neutral ships could enter anywhere but blockaded ports. While belligerents could declare all enemy’s coasts and ports under blockade, the neutrals argued that only effective blockade was legitimate, whereas ‘paper’ blockades were not. In May 1806, British went so far as to declare the whole coast between Brest and the River Elbe under blockade – a task that even the largest naval power in the world could not perform. The question of the conditions of legitimacy of a declared blockade was crucial, as it could be used to justify the seizure of any neutral ships sailing to or from a port under blockade even when no belligerent ships of war were at sight.

In all these key issues concerning neutral shipping, neutrals argued for their rights to trade with whomsoever they wanted, and to sail wherever they wanted to – ‘the right of commerce and the liberty of the seas’ (Thomas Paine). ¹¹ They claimed also the right to trade in all commodities, with exception of a strictly defined contraband of war. They argued that this was in agreement with natural law. This argument can be followed in political and legal writings, from seventeenth-century Hugo Grotius and Samuel Pufendorf, to the Danish lawyers Martin Hübner and Johan F. W. Schlegel and up to the Neapolitan economist Ferdinando Galiani in the second half of the eighteenth century. ¹² The British contested neutral rights and based their argument in general on bilateral treaties, peace conference arrangements and national law codes – apparently refusing natural law as an argument in neutrality issues. However, as Leos Müller’s article shows, there seemed to be a shift toward their acceptance of an international body of law in the 1790s under the pressure of political and economic contingencies. ¹³

It is important to stress that these philosophical and legal discourses on neutrality and law of nations, which might be perceived as abstract, were instrumental in the exchange of arguments in prize cases. Theoretical works can be better understood by replacing them in their historical context. For example, Martin Hübner’s De la saisie des batimens neutres, a key eighteenth-century work on the rights of neutrals based on natural law argument, was published in 1759, during the Seven Years’ War, at a time when neutral Danish shipping was booming. His argument also played a role in shaping the First League of Armed Neutrality in 1780–1783. Galiani’s work, Dei doveri dei principi neutrali, was published in 1782, during the American War of Independence. The Kingdom of Naples was neutral during this conflict, and a member of the northern League of Armed Neutrality. ¹⁴ The upsurge in publications on the issue of neutrality in 1799–1801 is related to the crisis between Scandinavian neutrals and Britain and is reviewed in Leos Müller’s contribution to this Forum. ¹⁵ In essence, neutral shipping was a practice that concerned merchants, captains and naval officers, as well as politicians and lawyers, and although they did not share the same convictions, their different points of view were intertwined.

Both legal arguments and practices are embedded in past traditions and experiences. For a better understanding of neutral shipping during the French Revolutionary Wars, it is useful to recall the activities of neutrals during the Seven Years’ War and the American War of Independence. The first conflict was characterised by the expansion of Dutch and Danish shipping between Europe and the West Indies, channelling French colonial trade under neutral flag. The British countered this booming neutral shipping by the so-called Rule of the War of 1756 and the Doctrine of Continuous Voyage, two rules which were maintained. ¹⁶ The first rule stated that the enemy could not authorise in wartime any trade which it forbade to foreigners in peace times. This rule targeted specifically the neutral carrying business of French colonial produce and the opening of French colonial ports to foreign shipping. As such, it did not consistently affect shipping in Southern Europe and the Mediterranean. The doctrine of Continuous Voyage claimed that a ship’s voyage between two enemy ports should be considered as a single, continuous voyage even if the ship made a call in between in a neutral port. This doctrine was, indeed, relevant for European and Mediterranean trades.

In the American War of Independence, Danish and Swedish neutral shipping was confronted with a new situation, for two major reasons. First, in 1780, the leading neutral power, the Dutch Republic, was involved in the war against Britain, leaving Denmark and Sweden as the major European neutral carriers. The same situation occurred in 1793, when the Swedes and Danes, together with the Americans, were again the leading neutral carriers. Second, the position of neutrals was relatively strong, in contrast to the Seven Years’ War. Britain was weakened in the American War of Independence, which it fought against a large coalition and with virtually no allies. Moreover, neutrals defended their rights jointly, through the so-called League of Armed Neutrality (1780–1783), a collaboration between three unlikely partners in Northern Europe: Denmark, Sweden and Russia. ¹⁷ Denmark and Sweden were third-rank states with strong maritime interests and large available merchant fleets. Russia, on the contrary, was a European great power without a merchant fleet. Although Russian neutrality in the conflict and its interest in defending the rights of neutral trade were difficult to understand, even for the contemporaries in London, Paris and Vienna, the League made it more difficult for the British to harass neutral shipping.

In 1793, at the outset of the French Revolutionary War, the Nordic neutrals adopted a similar stance, with Sweden and Denmark signing a treaty regarding joint defence of neutral shipping and trade. The United States was invited to join, but declined. ¹⁸ The numbers of Swedish and Danish ships sailing to Southern Europe boomed, whereas the Danes and the Americans were also deeply engaged in channelling Dutch and French colonial produce from the West Indies and the Indian Ocean (Mauritius, Java, Ceylon). But the general character of the Revolutionary Wars differed from the previous war. Over time, the conflict between France and the shifting coalitions developed into a new kind of war in which the economic component became central. This made neutrality less and less viable. The tensions in 1798–1801, and the overall situation from the end of 1807 (the November Order in Council, Napoleon’s Milan decrees, Jefferson’s Embargo Act), illustrate such a shift.

The British became less willing to accept neutral shipping in Southern Europe. Swedish and Danish ships were considered as supplying France with all kind of goods. On the Swedish side, harassment culminated in 1798 when two convoys were taken by the Royal Navy in the Channel on their way to the Mediterranean. On the Danish side, tensions with the British culminated in the summer of 1800 when, after a fire exchange between the Danish frigate Freya and the Royal Navy, the Danish convoy and Freya were taken to a British port. The convoy crisis and its outcome are covered in detail in two Forum articles. Tension between France and the United States after Britain and the United States signed the Jay treaty in 1794 almost provoked a conflict with France in the late 1790s, until the Mortefontaine Treaty put an end to this ‘Quasi-War’ in 1800.

Neutrals were experiencing increasing difficulties as time passed. While both Sweden and Denmark continued to trade and carry neutral cargoes, their neutrality became ultimately impossible in the hegemonic wars between the French Empire and Britain. Denmark was one of the few continental territories to escape annexation or integration into Napoleon’s dynastic reconfiguration of Europe. But it did not escape military attacks, as the British fought at Copenhagen in 1801 and 1807, and occupied the island of Helgoland, which they used for intelligence and smuggling. The Danish king adhered to Napoleon’s Continental System. Sweden was drawn into a devastating war against Russia in 1808–1809. The consequence was the loss of Finland (a third of the nation’s territory and a fourth of its population) followed by enforced alliance with France and a ‘phoney’ war against Britain. European neutrality became increasingly difficult. Other neutral flags that are not discussed in the Forum – such as Venice, Genoa, Ragusa (today’s Dubrovnik) in the Mediterranean – simply disappeared, as their territories were occupied and annexed. In a total war on the continent, neutrality became impossible, a position which was openly assumed by Napoleon, who in 1810 ordered that neutrals should not be recognized. ¹⁹

The situation of the United States differed to some extent, as American leaders had possibly more scope to manoeuvre in order to defend their independence and neutrality vis-à-vis France and Britain, and were less dependent on shipping conditions in European waters, as they could – and did – sail worldwide. However, in contrast to the Scandinavians, they had no experience of neutrality in time of war, nor on the best ways to protect it efficiently. They also had to learn the complexity of the Mediterranean world at their own expense: peace with the Barbary regencies was not achieved before the mid-1790s, and it remained precarious, as the war with Tripoli (1801–1805) demonstrated. If the United States managed to preserve its neutrality with regard to European conflicts up to 1812, belligerent attacks on their ships led them to embargo their own shipping to Europe in December 1807. Despite such a situation, the United States’ merchant fleet and foreign trade experienced an unprecedented growth, as Marzagalli’s article asserts, as did Danish and Swedish commerce, as shown by Pourchasse and Müller.

Taken together, the five articles that comprise this Forum offer new insights and fresh hypotheses in a reconsideration of the issue of neutrality in time of war from a maritime, rather than a legal, theoretical or diplomatic, perspective.