Four Neutral Ships

The voyage from the Spanish port of La Coruña to San Sebastián was frequently undertaken by Biscayan traders and followed a route of 281 nautical miles almost due east along the coast of northern Spain. On 12 August 1756, as the Spanish ship Jesús, Maria, y José was sailing along this well-travelled route, she met with the British privateer, Britannia. Encountering no resistance, the Britannia took the Spanish ship and brought her into Bristol, with a view to having her declared lawful prize by the Admiralty courts. According to the crew of the Britannia, the Jesús, Maria, y José was carrying a cargo of French East India goods and French property. Four months later, the High Court of Admiralty determined that there was just cause for the seizure and condemned part of the cargo as contraband and, therefore, lawful prize of the crew of the Britannia. The ship itself and the rest of the goods were restored to the master of the Spanish ship. Neither party were satisfied with the outcome and both lodged an appeal.

Almost a year later, the Biscayan-owned ship San Juan Baptista was captured on 10 June 1757, by the Bristol privateer Tartar, near the end of her journey from Pasaia (a town slightly east of San Sebastián) to Nantes. Her cargo was similarly made up of French East India goods. On 23 September 1757, the High Court of Admiralty condemned the goods as lawful prize but restored the ship as Spanish property. The master (and part owner) of the San Juan Baptista, was not satisfied with the outcome and lodged an appeal.

The Jesús, Maria, y José and the San Juan Baptista were the first two Spanish ships to come before the Court of Prize Appeal during the Seven Years’ War that had any bearing on Anglo-Spanish relations.Footnote ¹ As the two cases moved through the prize court system, political relations between Spain and Britain deteriorated. Even with the best efforts of British ministers to use the court proceedings to help stabilise Anglo-Spanish relations through favourable judgments for Spanish ships, the two countries descended into war by 1762. Spanish neutrality, which British ministers considered strategically valuable in the war against France, was lost.

The Maria Theresa was a Dutch cargo ship captained by Tyerck Byaart. In August 1757, the ship undertook a voyage from Amsterdam to Cork, then from Cork to St Eustatius in the West Indies, and from St Eustatius back to Amsterdam. At St Eustatius, the Maria Theresa took on cargo before departing for Amsterdam. On the voyage across the Atlantic, the British privateer Duke of Cornwall, captained by David Jenkins, took the Maria Theresa as prize on 6 May 1758, and brought her into Falmouth. On 17 August, the prize case came before the High Court of Admiralty, where the goods were condemned as lawful prize. The ship was pronounced to belong to Dutch owners and was restored. The Dutch captain launched an appeal and, less than a year later, the case was heard by the Court of Prize Appeal on 22 March 1759. It was the first Dutch case to come before the appellate court in the Seven Years’ War.

A few weeks after the Maria Theresa was taken by the Duke of Cornwall, HMS Squirrel was sailing in the North Sea slightly north-west of Amsterdam when she came across the Dutch ship America, captained by Louis Ferret. The captain of the Squirrel, Hyde Parker, ordered a shot to be fired so that the Dutch ship would heave to and Captain Parker could question her captain. Parker discovered that the ship had come from the French West Indies colony of St Domingue, and that there were no bills of lading or passes on board. Parker detained the ship on presumption of being French and took her as prize. Five months later, on 21 October 1758, the case went before the High Court of Admiralty, where the ship and cargo were condemned as French property. Ferret appealed the decision, and on 12 April 1759, the Court of Prize Appeal was convened to hear the case.

Because the two Dutch ships were the first Dutch cases to come before the Court of Prize Appeal, and in fairly close succession, the sentences that were passed carried implications of precedent for other Dutch cases that might come before the court during the war. As both cases moved through the British prize court system, political relations over neutral rights between Britain and the Dutch Republic descended into crisis. The British ministry used the cases of the two Dutch ships in the Court of Prize Appeal to help end the crisis, and to both restore Dutch faith in Britain’s commitment to Dutch neutral rights and the British prize court system’s ability to be the safeguard of those rights.

The cases of the Jesús, Maria, y José, the San Juan Baptista, the Maria Theresa, and the America were four of the first cases to be brought before the Court of Prize Appeal during the Seven Years’ War. They were intentionally used to establish how, and under what circumstances, the appellate court would protect and define Dutch and Spanish neutral rights. They were also used to establish the extent to which the appellate court would protect the rights of British warships and privateers. The journeys of these four ships through the prize court system unfolded within the contexts of British, Spanish, and Dutch maritime and political strategies of the mid-to-late eighteenth century. The sometimes neglected and downplayed actors in these imperial wars were the neutral nations, whose role was smaller than that of the belligerents, but vital in shaping strategic thinking.

In the maritime wars of the eighteenth century, neutral nations often served as the packhorses of belligerent commerce, both European and colonial. The role of a neutral nation was not passive, nor was it free from intervention. Neutrality meant only that a country was not an official belligerent; it did not mean that it was not heavily involved in the conflict, nor deeply engaged in continual negotiations with the belligerents to protect its own interests. During the Seven Years’ War, these negotiations were especially critical for Britain in maintaining Dutch and Spanish neutrality. Equally important, and closely connected to diplomacy and strategy, were the sentences handed down by British prize courts, especially the Court of Prize Appeal in London. The court played a significant role within Britain’s three-pronged maritime strategy for the war: maintaining foreign confidence in British maritime law and its court system, balancing the interests of British privateers and neutral carriers of commerce in the courts, and destroying French seaborne trade through commerce predation.

As a way to examine the singular role of the Court of Prize Appeal in maintaining Dutch and Spanish neutrality during the Seven Years’ War, the particular fates of the first two Dutch and first two Spanish ships to come before the appellate court are chronicled in this book as they passed through the prize court system. Information gathered from the first-hand accounts of ministers and judges, court records, diplomatic and naval correspondence, pamphlets, and news articles is presented and analysed to show how the Court of Prize Appeal was crucial to both negotiations over neutrality and to British strategic thinking during the war. The wartime events surrounding the four ships and their journeys through the Court of Prize Appeal are also examined within their diplomatic, legal, and historical contexts.

The book seeks to argue that international law and domestic law – as expressed through the Court of Prize Appeal – were vital and complementary components of British maritime strategic thinking during the second half of the eighteenth century. British, French, Dutch, and Spanish strategic thinking during this period was influenced by ideas of a balance of power among Europe’s maritime empires. This balance, however, was largely subjective and the strategic thinkers of each country sought to tip the balance in their favour without destabilising the entire system. It could be a delicate and fickle process where success was sometimes achieved through law and/or diplomacy, sometimes through war, sometimes all three. Balancing power in a time of war did not only mean striving for a new balance between belligerents; it also meant seeking an advantageous balance among belligerents and neutral nations without drawing the neutrals into the conflict as enemies. This could only be achieved if the actions taken by belligerents to alter the balance of power with neutrals during a war were accepted and seen by those same neutral nations as legitimate and grounded in the philosophies of international law. A legal consequence of pursuing legitimacy in the attempt to alter the balance of power was the creation of new rules, norms, and precedents within the British prize-law system. These new rules, norms, and precedents (introduced in Chapter 2) would serve to clarify and cement British interpretations of neutral rights without altering existing treaties or creating new legislation. Jurists in Britain’s future maritime wars would turn to these rules, norms, and precedents to inform their own decisions in prize affairs and create a sense of consistency and legitimacy in prize court adjudications. This book also seeks to show that Dutch and Spanish neutrality was fragile, and its maintenance heavily dependent on the personalities, friendships, interests, and particular circumstances that worked to either hold it up or tear it apart.

British Strategic Thinking during the Seven Years’ War

Britain sought to exploit the relationship between sea power and law during the Seven Years’ War in an attempt to emerge from the conflict as the nation whose maritime courts, laws, and norms were accepted by other seaborne empires as internationally binding. A vital aspect of Britain’s maritime strategy, and its connection with international law, was a focus on relations with neutral maritime nations who might become French allies and British enemies. The Seven Years’ War was a period in which British maritime hegemony in the Atlantic world was ascending, but before strategic thinking and international law in war are usually considered to have emerged as formal disciplines. This does not mean, however, that strategic thinking and international law were absent from the conduct of war. The writings of international law philosophers such as Hugo Grotius, Cornelius van Bynkershoek, and Emmer de Vattel are widely acknowledged to have had a shaping influence on the European development of international maritime law. Their influence on the thinking and development of maritime strategic thinking during the Seven Years’ War, however, is largely absent from histories of the conflict outside of some legal scholarship. Legal scholars such as Tara Helfman have used the Seven Years’ War to explore the development of international legal scholarship, but the link to strategy and strategic thinking during the war are absent because it is not the purpose of the scholarship.Footnote ² Similarly, scholarship on maritime strategic thinking has a tendency to ignore maritime strategic thought before the era of Clausewitz and the emergence of a ‘modern’, published, and European corpus on strategic thinking. Corbett, of course, is a notable exception to this, given his work on the Seven Years’ War. However, even Corbett’s writing does not necessarily make clear that the men who led Britain during the Seven Years’ War – such as William Pitt and the Earl of Hardwicke – engaged in collective maritime strategic thinking. If, as Hew Strachan suggests, strategic theory in the pre-1945 era was knowingly retrospective, but strategy in practice is ultimately pragmatic,Footnote ³ then it makes sense to study the actions and thoughts of the men who prosecuted early-modern warfare as creators and inheritors of strategic thought. This remains the case even if those actions and thoughts were not collected into publications on war or strategy. More recent scholarship has begun to challenge this tendency such as Beatrice Heuser’s book on strategy before the era of Clausewitz.Footnote ⁴ What is still missing, however, is a study of how maritime strategic thinking and international law were developed symbiotically during the Seven Years’ War by the network of ministers and legal and naval minds who were charged with the conduct of the war. Without understanding these connections, and understanding how strategic thinking and law influenced one another, we cannot fully understand sea power in the eighteenth century.

In order to defeat France at sea during the Seven Years’ War and therefore be in a position to achieve an advantageous shift in the European balance of power during peace negotiations, Britain needed to curtail the ability of neutral maritime nations like Spain and the Dutch Republic to carry French seaborne trade. Maritime commerce predation had been an element of British strategy for the entire period of colonial and imperial expansion. Because that strategy involved neutral nations and their maritime rights, negotiations over what constituted the rights of neutral nations were also central to British strategic thinking. Negotiations over neutral rights had clear strategic objectives for belligerents and neutrals during the Seven Years’ War. From the British perspective, the strategic aim was to use negotiations over treaties of neutrality to manoeuvre the Dutch and Spanish governments into accepting an interpretation of neutral rights that limited the ability of neutral ships to carry French goods and gave British warships and privateers greater scope to police neutral ships. From the Dutch and Spanish perspectives, the strategic aim of negotiations over neutral rights was to prevent the British from interfering with their shipping generally and, specifically, their ability to carry French trade freely during times of war. It was also in the interest of Spain and the Dutch Republic that neither Britain nor France come out of the conflict with a strong enough position at the peace negotiations such that the balance of power could be dramatically shifted in either empire’s favour.

As in many previous wars, it was paramount for Britain to keep France from obtaining a foothold in the Netherlands and setting up naval bases next to the Straights of Dover (the shortest crossing to England and a direct trade route into the Baltic).Footnote ⁵ As a maritime power without a particularly powerful army, Britain’s best mode of securing the Netherlands against France was through diplomacy, and by making sure that the Dutch played the role of a neutral nation. At sea, Britain enjoyed superiority over France, which meant that when fighting in the colonies, where amphibious warfare and commerce predation were key factors, Britain had the upper hand. However, if Spain, with its large colonial presence in the Americas, became an ally of France, Britain’s maritime superiority would come under threat.

Spanish and Dutch neutrality was not necessarily a given when colonial hostilities began between Britain and France in 1754. Spain, like France, had an absolutist Bourbon king, and the two kingdoms were natural allies against a Protestant and parliamentary power like Britain. The Dutch, who were, in many respects, culturally closer to Britain than to France, did not wish for either country to emerge as the hegemonic victor.Footnote ⁶ If Britain had been perceived by other European powers as the aggressor and instigator of the conflict, it very well could have pushed Spain and the Dutch Republic into an alliance with France (a Franco-Spanish alliance was eventually formed in 1761). Such alliances would have changed the balance of power at sea and, in the case of the Dutch, given the French access to the Netherlands.Footnote ⁷ Once war was declared in 1756, however, both Spain and the Dutch Republic proclaimed their neutrality. The Dutch signed an agreement with France that kept the French out of the Low Countries and ensured that the Dutch would carry French trade in return.Footnote ⁸ Britain then focused on defeating the French at sea and, through her Prussian ally, defeating France on land in Europe. Britain’s maritime predation strategy throughout the war would, however, be plagued by the constant task of maintaining Dutch and Spanish neutrality. This task was made increasingly difficult by what Julian Corbett called the ‘law of maritime warfare’ – the direct correlation between a country’s increasing command of the sea and the likelihood of neutral powers becoming enemies.Footnote ⁹

The first years of the war were not a resounding success for Britain in the maritime sphere but, by the end of 1759, France’s colonial commerce had been all but eradicated. French Canada was under British control; France’s navy was defeated, if not eliminated, in the battle of Quiberon Bay; and the islands of the French West Indies were falling prey to British invasion. Britain’s increasing dominance over France at sea and in the colonial sphere directly affected the relationships between Britain, Spain, and the Dutch Republic. In order to ensure their neutrality, any rights or privileges enjoyed by the ships of neutral countries whilst at sea had to be upheld by the navies and privateers with whom they crossed paths on their voyages. Britain’s increased maritime hegemony through the Seven Years’ War meant that the warships and privateers with which neutral ships were most likely to interact, were British.

The behaviour of Britain’s warships and privateers when interacting with neutral ships was, ostensibly, governed by bilateral treaties such as the Anglo-Dutch treaty of 1674, and the Anglo-Spanish treaty of 1667. However, it was ultimately impossible to control or police the actions of Britain’s representatives at sea. Events between ships at sea were often completely isolated and the only witnesses were those involved in the encounter. News of an encounter could take weeks to reach authorities in Europe or London, by which time there was little that could be done to deter any diplomatic damage which the actions of British or neutral citizens might have sparked during a seaborne encounter. As a result, contentious incidents that occurred between British and Dutch ships, or British and Spanish ships, and which ended up in the prize courts, could not be treated as isolated incidents. They became an integral part of the reactive negotiations over neutrality and of Anglo-Dutch or Anglo-Spanish relations in general during the war.

Anglo-Dutch Relations in Context

At the end of the third Anglo-Dutch War, the marine treaty of 1674 was signed and, along with a previous treaty of 1667, re-established the Grotian principle of ‘free ships make free goods’ as a guiding principle for how neutral rights were understood between the two nations.Footnote ¹⁰ The treaty defined what goods were to be considered contraband and therefore not covered by the ‘free ships, free goods’ principle. Subsequent Anglo-Dutch defensive treaties of 1678 and 1716 established a link between the armies of Britain and the Dutch Republic. In the event that Britain, or the king’s possession of Hanover, was attacked, the Dutch were to provide a token fighting force of 600 men. If the Dutch were attacked, Britain would join the fighting as a Dutch ally.Footnote ¹¹

Disputes between the two countries arose during the Seven Years’ War soon after the Dutch declared their neutrality and British privateers and warships began to take Dutch merchant ships as prizes. Because Britain deemed France the aggressor and attacker in the war, British ministers expected the Dutch to honour the treaty of 1678 and to deliver 600 troops. The Dutch, however, prevaricated over their obligation to Britain, and were more interested in keeping the French out of the Low Countries by not showing favour to Britain. For many British ministers and legal minds, the refusal of the Dutch to adhere to the treaty of 1678 was a good thing, because it made British adherence to the earlier treaty of 1674 moot. If the Dutch refused to honour one treaty, then Britain was under no obligation to honour the other previous treaty. The intellectual exercise of interpreting and disputing the two treaties preoccupied the minds of politicians and diplomats whilst at the same time the treaties were also being interpreted and acted upon in the prize courts across Britain and its colonies. The sentences passed on Dutch ships in these courts mainly focused on whether their cargo was being legally carried (i.e. whether the Dutch ships were violating the treaty and their neutrality by aiding the French, or whether the cargo being shipped was legal under the circumstances prescribed by the treaty). As the war progressed, the factions of the Dutch government that were anti-British, and the Dutch merchants mostly concentrated in Amsterdam and Rotterdam, became increasingly frustrated by the treatment of Dutch ships in the British prize courts. They began to doubt that the British prize system could, or would, protect their neutral rights.

By 1758, Anglo-Dutch relations had reached what Richard Pares called the ‘Anglo-Dutch crisis’.Footnote ¹² The crisis, from 1758 to early spring of 1759, encompassed the straining of Anglo-Dutch relations due to the condemnation of Dutch ships in the British prize courts and the inability of the two countries to agree how to define the neutral rights to be enjoyed by the Dutch. With no agreement outside of the prize courts on what constituted Dutch neutral rights, and with sentencing throughout the prize court system seen as inconsistent and arbitrary, the justice and due process of the prize courts were regarded with suspicion and contested by the Dutch government. The crisis, which almost led to open hostilities, was eventually resolved when Dutch grievances over neutral rights were allayed, largely, by the first two Dutch cases to come before the Court of Prize Appeal in March of 1759.

The Court of Prize Appeal worked to alleviate the Anglo-Dutch crisis by overturning or upholding sentences from lower prize courts involving Dutch ships, as necessary, to restore Dutch trust in the British government’s commitment and ability to defend Dutch neutrality from the abuses of British warships and British privateers. It was in these early Dutch cases that one of the most important legal norms for defining neutral rights was brought into existence by the Court of Prize Appeal: the Rule of the War of 1756. This rule started to clarify how the British prize court system would understand the limits of neutral rights and begin to set legal precedents with the cases of the Maria Theresa and the America. The work of the Court of Prize Appeal was not limited to Dutch cases however, and the court, as well as the Rule, played an equally important role in Anglo-Spanish relations over neutral rights, though unforeseen circumstances such as the death of kings and competition over resources in the Americas made the task of placating the Spanish immensely more complicated.

Anglo-Spanish Relations in Context

Anglo-Spanish relations followed a very different path from Anglo-Dutch relations during the Seven Years’ War. The most glaring difference was that Britain pre-emptively declared war on Spain, in 1762, after Spain entered into an alliance with France. The Spanish empire, like many mercantilist states, did not open its colonial trade to extranational merchants except occasionally, during times of war, when enemy commerce predation made it a necessity. Britain’s legal trade with the Spanish empire, therefore, could only go to, or through, the Iberian Peninsula. The Anglo-Spanish treaty of 1750 determined that Britain’s trade could go through Cádiz and gave British merchants advantageous terms regarding tariffs. However, the 1750 treaty did not settle certain grievances that were left over from the War of Austrian Succession, such as the behaviour of British and Spanish privateers towards merchant ships, and whether British subjects had a right to make settlements and harvest logwood on the coast of Honduras. These issues were left in a murky state and continued to inflame diplomatic relations between the two empires.Footnote ¹³

Like the Dutch Republic, Spain declared its neutrality after war broke out between Britain and France in 1756, but the interests linking Spain, France, and Britain were very different. France and Spain were closely related by their ruling families, both Bourbon, and both Catholic states. If France could convince Spain to join the war against Britain, their combined naval strength would surpass Britain’s and the balance of power in the Americas would be dramatically shifted. Many of France’s foreign policy efforts during the war were, therefore, spent trying to make an ally of Spain. For Britain, keeping Spain neutral was an important wartime strategic aim; a Spanish alliance with France could disrupt British aims to subdue France at sea and in the colonies, as well as cut off British trade through Cádiz, which was worth a lot of capital to the British government and to merchants, neither of whom wanted Spain as an enemy.

Spain, like most maritime countries, had grievances with Britain over its treatment of neutral shipping. Britain’s war with France brought the opportunity for Spanish merchants to carry French trade in their neutral ships and provided British warships and privateers the opportunity to capture Spanish ships carrying French goods as potential prizes. British privateers showed an unfortunate zeal for taking Spanish prizes despite the efforts of British ministers to curb their excessive predatory actions.Footnote ¹⁴ The Spanish government and merchants retained little faith in the British prize court system as the war developed. By 1761, the skilful tactics of French ministers, the death of a trusted British foreign minister to Spain, and the accession of a new Spanish monarch who was staunchly anti-British, meant Spain was ready to renounce her neutrality and to enter into an alliance with France despite British efforts to maintain Spanish neutrality. The Franco-Spanish alliance in turn, led to the pre-emptive declaration of war by Britain against Spain.Footnote ¹⁵ It was, ultimately, the culmination of years of frustrated Anglo-Spanish negotiations. Whilst British ministers had tried to use diplomatic negotiations and the Court of Prize Appeal to restore Spanish confidence in the prize court system and Britain’s commitment to neutral rights, it was not enough to bridge the gap between the two countries created by a host of long-running grievances and unfortunate circumstances. Spain, wary of Britain’s rising maritime hegemony, sought redress for its complaints in the arms of a French alliance and an Anglo-Spanish war which it hoped could shift the balance of power in the Americas in Spain’s favour. British strategic thinking with regard to Spain, realised through the Court of Prize Appeal, failed to secure neutrality for the duration of the Seven Years’ War, but it did delay Spanish belligerence until after France had been crushed at sea, rendering the threat of a Franco-Spanish alliance in the maritime sphere surmountable. From a legal point of view, the Spanish cases that came before the Court of Prize Appeal helped to establish the Rule of the War of 1756 as applicable outside of an Anglo-Dutch context and thus a more universally relevant principle of British international legal thought. The early Spanish cases also proved important in establishing clear thinking and legal reasoning based on the doctrines of continuous voyage, transhipment, and adoption, that would shape British prize court decisions and strategic thinking in the American War of Independence, the French Revolutionary War, and the Napoleonic Wars.

British Maritime Hegemony, Neutrality, and Prize Law in Historical Context

The growth of British maritime hegemony in the eighteenth century meant that British prize law increasingly became the international norm by which neutral maritime rights were governed. As Sophus Reinert remarked in the essay Rivalry: Greatness in Early Modern Political Economy, ‘a growing fear in eighteenth century Europe was that it would be Great Britain to give the world its laws, either through the power of its navies or of its manufactures’.Footnote ¹⁶ If the British prize court system was to be an arbiter in disagreements over maritime neutral rights in any conflict that involved British sea power, then the neutral nations had to trust that the system was fair, legitimate, and would protect the rights of their seaborne citizens. If this trust and legitimacy were lost, if the prize courts failed to uphold neutral rights, then Corbett’s law of maritime warfare would come to its natural conclusion, and neutral nations in Britain’s wars would become belligerents.

The concept of trust and legitimacy is crucial when looking at British attempts to define and uphold neutral rights in order to suit strategic aims during the war. Xabier Lamikiz, in his book Trade and Trust in the Eighteenth-Century Atlantic World, argued that in early-modern commerce, trust was largely dependent first on the ‘efficiency of the legal system in enforcing contracts and second, on the availability of information, which was closely linked, but not exclusively linked, to the frequency and quality of communications’.Footnote ¹⁷ Lamikiz’s argument can be easily translated to apply to prize courts and neutrality. Efficiency in upholding and enforcing neutral rights through the prize court system was paramount to fostering trust in Britain’s ability to be considered a legitimate international arbiter of neutrality. During the Seven Years’ War, maintaining Dutch and Spanish trust in the prize court system to assure their neutrality was, therefore, a critical part of the larger British maritime strategy of commerce predation, which was dependent on the neutrality of other nations that were significant players in the maritime sphere.

In the mid-eighteenth century, neutral rights were negotiated and interpreted mainly through bilateral treaties which were supposed to be upheld by both signatories in times of war. The concept of maritime neutrality, as expressed in the treaties which governed Anglo-Dutch and Anglo-Spanish relations during the Seven Years’ War, began to emerge around 1650, with treaties containing the Grotian principle that ‘free ships make free goods’;Footnote ¹⁸ that is, goods carried in neutral ships, except those goods designated as contraband of war, were free from confiscation, even if those goods belonged to an ‘enemy’. These treaties usually contained stipulations that a belligerent had the right to board neutral merchant ships and search for contraband goods.Footnote ¹⁹

The principle of ‘free ships make free goods’ was derived from the concept of the law of nations, of which there were two kinds. The first is contractual in nature; it arose from an ‘agreement between states and is therefore binding only upon states that are actually parties to the agreement in question’.Footnote ²⁰ The other was also contractual in nature, but was of ‘universal application, arising out of a “general agreement” between states’.Footnote ²¹ The law of nations was a man-made law that applied only between man-made states, as distinct from a natural law which was derived from the divine will and the idea that God had granted the ‘boons of creation’ to all of humanity collectively. Natural law could be divided into categories based on how humans derived ownership of the boons of creation without harming others or taking possession of that which was already owned.Footnote ²² These definitions were derived from the work of seventeenth-century writers on law and war, the Spaniard Francisco Suárez and the Dutchman Hugo Grotius.Footnote ²³ It was through Grotius’s publication On the Law of War and Peace of 1625, that the concept of the law of nations came into popular use.Footnote ²⁴ It would be almost exclusively Grotian principles that were used and interpreted by jurists in the Court of Prize Appeal to justify and legitimise their decisions.

Another Dutch legal thinker, Cornelius Van Bynkershoek, is important to note because of his place in some of the legal historiography of the Seven Years’ War. Writing in the first half of the eighteenth century, he produced his Dissertation on the Dominion of the Sea in 1703 and Questions of Public Law in 1737. Both works were relevant to discussions over maritime neutrality. In contrast to Grotius, Bynkershoek argued in Questions of Public Law that the seizure of enemy property in times of war for the purpose of destroying an enemy was just, but not linked to natural law. For Bynkershoek, war meant that normal social obligations no longer applied and any means used to destroy an enemy was just: ‘the reason that justifies war justifies every method of destroying the enemy’.Footnote ²⁵ As far as the activities of neutrals were concerned, he argued that a neutral nation had every right to protect their commercial interests and that belligerents and neutrals must come to an agreement on how each other’s rights were to be acknowledged and legitimised.Footnote ²⁶ In their work, Tara Helfman and Koen Stapelbroek argue for the influence of Bynkershoek’s ideas on the development of ideas and doctrines within the British prize court system during the Seven Years’ War.Footnote ²⁷ Helfman in particular argues that a shift occurred during the course of the war from the ideas of Grotius and the natural law tradition to the ideas of Bynkershoek and the beginnings of modern legal positivism.Footnote ²⁸ Her argument is largely founded on examining British pamphlets produced during the war and the examination of some Anglo-Dutch diplomatic correspondence. Whilst her argument is convincing in terms of the pamphlets reflecting much of Bynkershoek’s thinking on neutrality, she does not delve into the archival material of the prize court cases themselves. The arguments made in this book rely more heavily on the ideas of Grotius because it is his ideas that are discussed in the notes of the judges and lawyers examined in the following chapters. There is almost no mention, and no direct engagement, with Bynkershoek in the court cases here examined.

In England, the standard in matters of maritime law was Charles Molloy’s 1676 book De Jure Maritimo et Navali which went through ten editions, the last of which appeared in 1778. Molloy presented the idea that, in accordance with the law of nations, neutral property found on board an enemy ship did not belong to the enemy and could not, therefore, be considered the legitimate prize (property) of the captor.Footnote ²⁹ In 1758, Emerich de Vattel, a Swiss scholar, published his Droit des gens in which he argued that the property of neutrals found in an enemy ship should be returned to the original owners if the enemy ship were captured as prize. The captors had no right to confiscate the neutral goods.Footnote ³⁰ Vattel sought to make natural law philosophy more accessible to practitioners, such as diplomats, who might find it useful in their negotiations. Vattel believed that the law of nations had its foundation in natural law but that it was also a positive law.Footnote ³¹ The ability of states to exert their ‘neutral’ rights during a time of war was therefore governed by a combination of natural law tradition and legal positivism.

The diplomats and politicians of the second half of the eighteenth century who were negotiating and interpreting the bilateral treaties that dealt with maritime neutrality were likely to be well versed in the law of nations and the concept of ‘free ships, free goods’ as discussed and interpreted by men like Grotius, Bynkershoek, and Vattel, and they used these principles to define how neutral goods and ships were to be treated when captured during times of war. When it came to enforcing the law of nations and protecting neutrality, it was the prize courts of various nations that largely took on the task. Britain’s prize courts were very active in this regard, as the nation was almost continually involved in maritime wars with other European nations from the 1650s through 1815.

The ability of British prize courts to enforce the law of nations and treaties on neutrality as fledgling international law was rooted in the independence of the courts. In 1692, the first British Prize Act was passed and it guaranteed that a captor had the legal right to present his case in a prize court in which adjudication was free from political interference.Footnote ³² In terms of neutral rights, this meant that the British government was, technically, unable to interfere in cases of captured neutral ships or cargo at the request of the neutral nation’s government. The prize courts in Britain were, at least on paper, independent from politics, and served only to carry out the letter of the law as prescribed by treaties dealing with neutrality. In practice, however, the independence was not complete, nor was following the letter of the law always a clear-cut matter. Before the War of the Austrian Succession (1740–8), treaty provisions about ‘free ships, free goods’ were not widely enforced and, even after 1740, there was political interference in the enforcement.Footnote ³³

After the War of the Austrian Succession, the Seven Years’ War, and the American War of Independence, all of which were global wars involving European maritime empires, many treaties involving neutrality were simply renewed by Britain. Consequently, by the time of the French Revolutionary and Napoleonic Wars, the main treaties regarding neutrality still in place were from the seventeenth century. However, each conflict did produce cases and arguments that could serve as precedents in future conflicts. Even cases that were ‘dropped’ by the court or where the appeal was ultimately withdrawn, could produce a large amount of written opinion and discussion from the judges and advocates that contributed to the formation of a collective thinking, or communis opinio, that could be called upon in future cases. Thus, the corpus of legal thought that helped judges interpret and enforce prize law grew with each war even as the treaties remained stagnant. During the Seven Years’ War it was the Anglo-Dutch treaty of 1674 and the Anglo-Spanish treaty of 1667 that had the most bearing on Spanish and Dutch neutrality, whilst the most important developments in legal precedents and legal thinking about neutral rights would emerge in the form of the Rule of the War of 1756 and the doctrines of continuous voyage, transhipment, and adoption.

A Case-Study Approach

To analyse the inner workings, successes, and failures of the Court of Prize Appeal as a facilitator of both wartime strategy and negotiations over neutrality, the first two Dutch, and the first two Spanish, prize cases to come before the appellate court were selected as case studies. This case-based research allowed for an in-depth study of the Court of Prize Appeal, the men involved in it, the men running it, and how they all related to one another. Each case is a microcosm of British wartime strategy in action. Each court case spanned several years, and was shaped by factors specific to the case, but also general in nature. The judges, particularly Lord Hardwicke, took great care to use these first cases in order to aid negotiations over neutral rights and to establish guiding precedents and principles that the court would use throughout the Seven Years’ War – and the Napoleonic Wars. The four ships are unique in their exact circumstances and trajectories, whilst also being illustrative of how the court carried out its legal and political work. The case studies also illustrate how the interpersonal and professional relations of men on the court or in government were of paramount importance to the success or failure of a strategy that tried to maintain a balance between maritime neutral rights and maritime predation.

A case-study methodology complements previous statistical studies with large samples that have been previously carried out. David Starkey, in his research on privateering and prize law during the eighteenth century, used a very large selection of evidence from the records of the High Court of Admiralty. Richard Pares selected sources from the High Court of Admiralty, the Court of Prize Appeal, and the colonial Vice Admiralty courts in his work on the colonial blockade and maritime warfare in the West Indies. E. S. Roscoe, in his extensive works on the history of prize law and prize courts, used Admiralty and High Court of Admiralty records.Footnote ³⁴ These historians have made valuable and extensive contributions to the history of the prize courts. Their work on trends, developments, and consistencies in eighteenth-century prize courts and prize-taking has laid a foundation from which a much more nuanced and detailed research approach can be launched without the fear of coming to general erroneous conclusions based on too small a sample. The detailed examination of the first prize appeal cases to come before the court offers information regarding the inner workings and politics of the Court of Prize Appeal and presents compelling evidence for the court’s role in the strategic aims of keeping Spain and the Dutch Republic neutral throughout the Seven Years’ War. It also offers the ability to trace how, and why, the foundations for precedents and principles that shaped British conceptions of neutral rights and international maritime law for more than fifty years, were laid in these first four cases.

In order to put together the micro-histories of the four court cases, several avenues of investigation had to be explored. The first task was to explore the connections between ministers, judges, civil law lawyers, merchants, and foreign diplomats; a veritable who’s who of prize law and foreign policy for the war. The search began in the official and private correspondences of government ministers and judges who were invested in the Court of Prize Appeal. As the first four cases to come before the court stirred debate in political and legal circles, these connections emerged in letters between ministers and confidants, in official memorandums for certain departments, or private memorandums written for future reference. The book relies heavily on the notes of Lord Hardwicke as the leading judicial voice on the Court of Prize Appeal. His notes on the court cases are also the most complete and thorough. The limitation of relying on Hardwicke’s notes for parts of the analysis is that they represent the thinking of the Court of Prize Appeal as understood by one man. In order to mitigate this, the correspondence of other influential members of the court have been used wherever possible in order to illustrate their own thoughts and ideas. Ministerial writing was plagued by veiled references and an aversion to proper nouns. In almost all instances, the names of the neutral ships involved in Court of Prize Appeal cases did not appear in personal correspondence or memorandums. Despite rarely mentioning names, however, ministers were usually scrupulous in dating their letters and memorandums. Putting together the dates, the facts of the case under discussion, and the people involved, it was possible to assemble a clear trail of the four court cases through the correspondence of the men involved.

A second line of investigation was a close review of contemporary public sources. Through the use of the seventeenth– and eighteenth–century-focused Burney Collection Digital Newspaper Archive, and the Eighteenth-Century Digital Database (two research tools recently compiled by the British Library and not available to most prior prize-law historians) it was possible to find a wide variety of public references and debates about the court cases and the issue of neutral rights. The names of specific ships sometimes appeared in articles applauding and condemning the actions of the courts and ministers. Pamphlets published by judges and lawyers (not coincidently, at the same time the cases were being tried) either defended or condemned Britain’s strategy regarding neutral maritime countries.

A methodological problem that arises when using newspapers as sources is how to sort through the material that was printed in newspapers during the Seven Years’ War. It is sometimes thought that the answer to this question is provided to historians when institutions like the British Library began to digitise their newspaper collections and make them searchable through OCR (optical character recognition) technology. The problem is the unreliability and frequent inaccuracy of OCR.Footnote ³⁵ The accuracy of OCR is dependent on the quality of the image available, and many of the images that make up the digital collections used in this book are of a poor quality. Research based on search hit-rates to make an argument is, therefore, largely suspect, if using the digital collections.Footnote ³⁶ For this book, however, the newspapers that needed to be searched were bounded by time, and whether they discussed maritime affairs and neutrality. This greatly limited the number of newspapers that had to be read and searched. It was possible, therefore, to read the publications in their entirety and search for articles without relying heavily on OCR searches.Footnote ³⁷

In terms of court material, there is a considerable amount still extant on each ship in both the High Court of Admiralty and Court of Prize Appeal records. These records are held at the UK National Archives. Additional archives which supported the case studies include the Hardwicke Papers at the British Library and the New York Public Library; the Shelburne Papers at the Clements Library at the University of Michigan, which includes a wealth of letters and documents on Anglo-Spanish relations during the Seven Years’ War from colonial, official, and mercantile perspectives; the Archivo General de Indias in Seville, which contains correspondence between Spanish ministers and colonial ministers; and the Archivo Histórico Nacional in Madrid, which contains correspondence between Spanish ministers. Consequently, it has been possible to reconstruct the court cases amid the political, legal, personal, maritime, wartime, and commercial factors that contributed to their specific outcomes with a level of detail and understanding not previously found in the historiographies of prize affairs that are based on much broader, quantitative, data samples.

The micro-histories of the four court cases demonstrate how British strategy and law regarding neutrals was developed and implemented through the mechanism of the Court of Prize Appeal. These histories also demonstrate the necessary links between diplomacy, strategic thinking, domestic legal systems, and international law philosophy, in order to negotiate the terms of neutrality and how neutral rights were actually interpreted. These four cases are important to study not because they dramatically changed legal history or drastically revolutionised strategic or legal thinking, but because they were considered vitally important to the success of British strategic aims at the time. That success was seen to depend on whether Spain and the Dutch Republic could be convinced that their neutral rights were being protected by the Court of Prize Appeal. The first few cases offer the possibility of understanding the concerns and thinking of the ministers, diplomats, judges, and advocates and how their work laid the foundation for how neutral rights would be conceived of and treated for the rest of the Seven Years’ War and subsequent conflicts.

Structure

The body of this book is divided into three parts. Part I, ‘Sea Power and Its Relationship to Strategy and Law’, contains Chapters 1 and 2. These are dedicated to analysing the relationship between sea power, strategy, and law and how this relationship has been considered by sea power theorists. Part II, ‘The Dutch Case Studies’, is dedicated to the case studies of the Dutch ships, the Maria Theresa and the America, and their progression through the prize court system. In this part, Chapter 3 presents the wider context of Anglo-Dutch relations during the Seven Years’ War and introduces the two Dutch prize court cases and their participants. Chapters 4 and 5 analyse the Dutch court cases as they passed first through the High Court of Admiralty and then the Court of Prize Appeal, culminating in the end of the Anglo-Dutch crisis and continued Dutch neutrality. Part III, ‘The Spanish Case Studies’, is dedicated to the case studies of the Spanish ships, the San Juan Baptista and the Jesús, Maria, y José. Chapter 6 introduces the context of Anglo-Spanish relations during the Seven Years’ War and how it differed from the Anglo-Dutch context. Chapters 7–9 follow the two Spanish ships through the High Court of Admiralty and the Court of Prize Appeal and demonstrate how the policy of upholding neutral rights in the prize courts, which worked to ease Anglo-Dutch tensions, was not sufficient to resolve Anglo-Spanish conflicts.

The conclusion notes the contrast between the outcomes of Britain’s negotiations with these two neutral nations and serves to show that a strategy of upholding neutral rights through the Court of Prize Appeal, which was so successful with the Dutch, could not be successfully applied in all circumstances. The nuances of the negotiations, legal arguments, court proceedings, unforeseen national events, and the interpersonal relations of the men involved were critical elements of success or failure. The case studies presented in the following chapters are microcosms of those relationships and the negotiations upon which the attempt to build a successful British strategy concerning neutral nations depended.