ANNA BRINKMAN

International agreements are often touted as great achievements of a nation’s foreign policy and are usually accompanied by great fanfare. Peace treaties, meant to offer some form of conflict resolution, and treaties which govern the conduct of neutral nations during times of war are no exception. Once the fanfare has subsided, however, there remains the problem of enforcement and interpretation. In a time of fanfare around the Paris Climate deal, Britain’s EU referendum, and America’s changing relationship with Iran, it is perhaps apposite to look to the late 18th Century when the balance of power within Europe’s empires, and the treaties which governed it, witnessed shifts as dramatic as those we are experiencing today.

The opening of hostilities between Britain and her North American colonies in 1775, followed over the subsequent five years by ruptures with France, Spain, and Holland, created an increasingly hostile environment in the West Indies. Since the Seven Years’ War (1756 -1763) commerce between two of the largest colonial empires, Britain and Spain, had supposedly been regulated by the 1763 Treaty of Paris which was partly written to codify the rights and limits of neutrality should one signee enter a war in which the other declared itself neutral. The treaty failed in its most basic task because neutrality in the Americas was almost impossible to enforce. When the War of American Independence began Spain declared itself neutral. However, the war raging in North America opened up very lucrative smuggling opportunities for Spanish and British merchants operating in the West Indies: the rebels needed military supplies which came mostly from Europe through the West Indies and the British islands needed food from the mainland American colonies to feed their slave populations.

18th century colonial wars were usually detrimental to merchants and planters but those who were already adept at smuggling in Europe or the West Indies were keen to make a profit during North America’s rebellion. The ministers in London prosecuting the war against the American rebels wanted two things in the West Indies: to isolate the rebels from foreign aid, and to maintain Spain’s neutrality. A rebellion might be quashed but war with a European power was to be avoided. Britain’s foreign policy in the Americas, therefore, was a balancing act: the Royal Navy, privateers, and existing treaties were employed to shut down wartime smuggling through commerce predation, whilst being instructed not to overstep the bounds of the 1763 treaty. Unfortunately for all European colonial powers the ability to directly control or oversee the actions of their citizens and representatives whilst abroad or at sea was minimal. Britain’s policy was at the mercy and whim of officials and subjects of all nations who twisted international treaties to their advantage. Incidents involving neutral rights were therefore mostly resolved after the fact by politicians in Europe scrambling to ameliorate the diplomatic damage done at sea or in the colonies. Normally, any event involving neutrality, smuggling, and the capture of foreign vessels was resolved in Admiralty courts which were notorious for their lengthy proceedings and legal incompetence. In an attempt to lend credence and consistency to their enforcement of neutral rights British ministers often settled disputes extra-judicially to avoid lengthy trials and accusations of violating the neutrality of other nations.

The 1763 Treaty of Paris was partially intended to resolve the disputes over which Spain and Britain went to war in 1761. Satisfactory resolution, however, proved ellusive. One of the points of contention which remained unresolved was the violation of Spanish neutrality through illegal seizures of Spanish and British merchant shipping. The admiralty courts of both countries had addressed the issue erratically and by the end of the Seven Years’ War neither country had faith in the others court system. Spain’s mistrust, however, extended beyond Britain’s Admiralty courts. Throughout the 18th Century the Spanish Court believed that British aims in the America’s were to expand commercial influence, oppose the commerce of other powers, and to invade their colonies. As such, they were greatly concerned with the balance of power in the Americas and constantly feared that it would tip in favour of the British as it had during the Seven Years’ War when, after a humiliating defeat the Spanish King Charles III became bent on pursuing imperial commercial reform, building up the Spanish naval forces, and strengthening defences in America.

Just as Britain experienced difficulty exerting control over it’s officials on the spot, Spain’s ill-intentioned, protestations of support and neutrality vis a vis Britain and the rebellious colonies were not always followed by its colonial representatives. On the 17th of April, 1777, The Spanish Governor of Louisiana, Bernardo de Gálvez, ordered his Guards out in the dead of night to proceed quietly up the Mississippi River and seize eleven British merchant vessels which were anchored there. The ships were then taken down to New Orleans where the masters and seamen were imprisoned under the charge of smuggling in Spanish territory. This was but the latest in a series of underhand schemes Gálvez had instigated which violated Spanish neutrality.

On the 4th of May, 1777 the Captain of the HMS Atalanta, Thomas Lloyd, wrote a letter to Gálvez demanding that the British ships be returned and the sailors released. He remarked that it was his ‘Duty, as a commander of one of his Britannic Majesty’s Ships of War, obliging me to take cognizance of such public matters as affect the commerce of his subjects.’ He then pointed out that the seizure of the British ships was illegal because it violated the Peace Treaty of 1673 in which Spain had agreed free navigation of the Mississippi river to British ships. This meant that even had the British ships been trading with Spaniards, which Lloyd denied, it was still illegal for Spanish authorities to detain them. After intervention from more senior British colonial officals Gálvez was obliged to admit that

‘it was done in the Heat of Resentment, (one of his Britannic Majesty’s Sloops of War, the West-Florida, having seized a Spanish smuggling-boat, in some of the British Lakes, with twenty or thirty Barrels of Tar;) that had he, the Spanish Governor, reflected, he should not have done it; but, having sent an account thereof to the Court of Spain, and cause for representation must be there determined.’

He also sent an account of the affair to the Court of Spain, thereby making it impossible for the dispute to be settled by officials in the West-Indies. It seems plausible that he did it both as a stalling tactic, since the Court system in Spain was notorious for being slow to adjudicate cases, and as a way to take the decision out of his hands. Removing the decision to Spain kept the captured British ships within his jurisdiction and local British pressure at bay. The affair, however, never made it to the Spanish court system: it was handled by Spanish ministers and the eventual decision was presented as one taken by the Spanish Court rather than Spanish courts of law. It is possible that this was done in order to put a speedy end to the issue.

News of the capture reached London in July of 1777 and one of the merchants whose ships had been captured met with Lord George Germain, Secretary of State for America, to demand of him what was being done to resolve the issue. In December a similar petition was made to Lord Weymouth, the Secretary of State for the Southern Department, who was known for both drunkenness and laziness, in an attempt to redress the wrongs done them by the Spanish Governor. Weymouth’s reply was that nothing could be done until the Spanish Court gave a decision upon the matter. His answer indicated that he was aware that the affair would not be decided by the due course of law but by ministerial authority.

The Court’s decision arrived in London in February of 1778. Spain’s ministers declared that the seizure of the British ships had been justified since they were illegally trading with Spaniards in a Spanish port. Accepting Spain’s judgement, Weymouth wrote to the British merchants ‘That the state of public affairs was such that, Nothing could be done in this business.’ Five months later, in August of 1778, after continued pressure from the British merchants, Weymouth wrote to the British ambassador of Spain to inquire over the affair and the possibility of a different resolution. The Court of Spain gave no answer to the ambassador’s enquiries. Frustrated by the entire affair, one of the British merchants made an application to the Admiralty for the detention of Spanish property. His ship, Fortune, had captured a Spanish vessel and he wanted to hold it hostage until the Mississippi ships were restored. His application was denied despite the legality of the action under the Prize Act because Weymouth, with the support of other ministers, thought ‘it was not a time to quarrel with the Court of Spain.’ There the affair came to rest despite continued entreaties from British merchants.

Concerned about provoking Spain, the British ministry’s response to Spain’s flagrant violation of neutrality and the Treaty of Paris of 1763 was toothless. Though appeasing Spain supported one pillar of Britain’s policy in the Americas it did little to discourage continued violations of neutrality in the West Indies and therefore encouraged illegal trading with the rebellious colonies. The actions of Gálvez perfectly exploited the weakness of Britain’s position in the Americas in terms of enforcing neutrality. The British navy was largely incapable of enforcing neutrality by preventing the seizure of British shipping and captains like Lloyd could therefore only protest and demand that treaties be observed after the fact. However, when Gálvez refused to engage with the British captain and instead sent the matter back to Spain, Lloyd was left powerless. Any belligerent action against New Orleans to free the ships would have been viewed as a violation of Spain’s neutrality as the case was supposedly being handled through legitimate channels in Spain. By the same token, Lloyd was left without any negotiating power because Gálvez had left himself without any authority over the matter. Spanish neutrality was enforced neither in the Americas nor in Europe.

Britain’s two pronged policy in the Americas of maintaining Spanish neutrality whilst preventing smuggled aid from reaching the rebels was largely a failure because the Treaty of 1763 was unenforceable in the West Indies without granting British officials sweeping belligerent powers. Had such powers been granted by the British the other European empires would likely have perceived the move as a threat to the balance of power in America and opposed it. With the rebellion in North America and concerned about provoking a European war, strict enforcement of neutrality in colonial waters was not worth the risk. When problems over neutrality arose, it was quicker, and easier, to settle them quietly outside of the legal system and maintain the facade that the Treaty of 1763 governed all Anglo-Spanish colonial interactions.

Image: “A new map of North America” – produced following the Treaty of Paris in 1763, via wikimedia commons.