Chapter 13

FROM JAY'S TREATY TO THE ORDERS IN COUNCIL

1794-1807

While there were many matters in dispute between the two countries, the particular occasion of Jay's mission to London in 1794 was the measures injurious to the commerce of the United States, taken by the British Government on the outbreak of war with France, in 1793. Neutrals are certain to suffer, directly and indirectly, from every war, and especially in maritime wars; for then the great common of all nations is involved, under conditions and regulations which by general consent legalize interference, suspension, and arrest of neutral voyages, when conflicting with acknowledged belligerent rights, or under reasonable suspicion of such conflict. It was held in the United States that in the treatment of American ships Great Britain had transcended international law, and abused belligerent privilege, by forced construction in two particulars. First, in June, 1793, she sent into her own ports American vessels bound to France with provisions, on the ground that under existing circumstance these were contraband of war. She did indeed buy the cargoes, and pay the freight, thus reducing the loss to the shipper; but he was deprived of the surplus profit arising from extraordinary demand in France, and it was claimed besides that the procedure was illegal. Secondly, in November of the same year, the British Government directed the seizure of "all ships laden with goods the produce of any colony belonging to France, or carrying provisions or other supplies for the use of any such colony." Neutrals were thus forbidden either to go to, or to sail from, any French colony for purposes of commercial intercourse. For the injuries suffered under these measures Jay was to seek compensation.

The first order raised only a question of contraband, of frequent recurrence in all hostilities. It did not affect the issues which led to the War of 1812, and therefore need not here be further considered. But the second turned purely on the question of the intercourse of neutrals with the colonies of belligerents, and rested upon those received opinions concerning the relations of colonies to mother countries, which have been related in the previous chapters. The British Government founded the justification of its action upon a precedent established by its own Admiralty courts, which, though not strictly new, was recent, dating back only to the Seven Years' War, 1756-63, whence it had received the name of the Rule of 1756. At that time, in the world of European civilization, all the principal maritime communities were either mother countries or colonies. A colonial system was the appendage of every maritime state; and among all there obtained the invariable rule, the formulation of which by Montesquieu has been already quoted, that "commercial monopoly is the leading principle of colonial intercourse," from which foreign states were rigorously excluded. Dealing with such a recognized international relation, at a period when colonial production had reached unprecedented proportions, the British courts had laid down the principle that a trade which a nation in time of peace forbade to foreigners could not be extended to them, if neutrals, in time of war, at the will and for the convenience of the belligerent; because by such employment they were "in effect incorporated in the enemy's navigation, having adopted his commerce and character, and identified themselves with his interests and purposes."[108]

During the next great maritime war, that of American Independence, the United States were involved as belligerents, and the only maritime neutrals were Holland and the Baltic States. These drew together in a league known historically as the Armed Neutrality of 1780, in opposition to certain British interpretations of the rights of neutrals and belligerents; but in their formulated demands that of open trade with the colonies of belligerents does not appear, although there is found one closely cognate to it,--an asserted right to coasting trade, from port to port, of a country at war. The Rule of 1756 therefore remained, in 1793, a definition of international maritime law laid down by British courts, but not elsewhere accepted; and it rested upon a logical deduction from a system of colonial administration universal at that period. The logical deduction may be stated thus. The mother country, for its own benefit, reserves to itself both the inward and outward trade; the products of the colony, and the supplying of it with necessaries. The carriage of these commodities is also confined to its own ships. Colonial commerce and navigation are thus each a national monopoly. To open to neutrals the navigation, the carriage of products and supplies, in time of war, is a war measure simply, designed to preserve a benefit endangered by the other belligerent. As a war measure, it tends to support the financial and naval strength of the nation employing it; and therefore, to an opponent whose naval power is capable of destroying that element of strength, the stepping in of a neutral to cover it is clearly an injury. The neutral so doing commits an unfriendly act, partial between the two combatants; because it aids the one in a proceeding, the origin and object of which are purely belligerent.

When the United States in 1776 entered the family of nations, she came without colonies, but in the war attendant upon her liberation she had no rights as a neutral. In the interval of peace, between 1783 and 1793, she had endeavored, as has been seen, to establish between herself and the Caribbean region those conditions of open navigation which were indicated as natural by the geographical relations of the two and their several products. This had been refused by Great Britain; but France had conceded it on a restricted scale, plainly contrived, by the limitation of sixty tons on the size of vessels engaged, to counteract any attempt at direct carriage from the islands to Europe, which was not permitted. Under these circumstances the United States was brought into collision with the Rule of 1756, for the first time, by the Order in Council of November 6, 1793. A people without colonies, and with a rapidly growing navigation, could have no sympathy with a system, coextensive with Europe, which monopolized the carriage of colonial products. The immediate attitude assumed was one of antagonism; and the wrong as felt was the greater, because the direct intercourse between the United States and the then great French colonies was not incidental to war, but had been established in peace. In principle, the Rule rested for its validity upon an exception made in war, for the purposes of war.

The British Government in fact had overlooked that the Rule had originated in European conditions; and, if applicable at all to the new transatlantic state, it could only be if conditions were the same, or equivalent. Till now, by universal usage, trade from colonies had been only to the mother country; the appearance of an American state with no colonies introduced two factors hitherto non-existent. Here was a people not identified with a general system of colonial exclusiveness; and also, from their geographical situation, it was possible for a European government to permit them to trade with its colonies, without serious trespass on the privileges reserved to the mother country. The monopoly of the latter consisted not only in the commerce and carrying trade of the colony, but in the _entrepôt_; that is, in the receipt and storage of the colonial produce, and its distribution to less favored European communities,--the profit, in short, of the middleman, or broker. France had recognized, though but partially, this difference of conditions, and in somewhat grudging manner had opened her West Indian ports to American vessels, for intercourse with their own country. This trade, being permitted in peace, did not come under the British Rule; therefore by its own principle the seizures under it were unlawful. Accordingly, on January 8, 1794, the order was revoked, and the application limited to vessels bound from the West Indies direct to Europe.

This further Order in Council preserved the principle of the Rule of 1756, but it removed the cause of a great number of the seizures which had afflicted American shipping. There were nevertheless, among these, some cases of vessels bound direct to France from French colonies, laden with colonial produce; one of which was the first presented to Jay on his arrival in London. In writing to the Secretary of State he says, "It unfortunately happens that this is not among the strongest of the cases;" and in a return made three years later to Congress, of losses recovered under the treaty, this vessel's name does not appear. In the opinion of counsel, submitted to Jay, it was unlikely that the case would be reversed on appeal, because it unequivocally fell under the Rule.[109] It is therefore to be inferred that this principle, the operation of which was revived so disastrously in 1805, was not surrendered by the British Government in 1794. In fact, in the discussions between Mr. Jay and the British Minister of Foreign Affairs, there seems to have been on both sides a disposition to avoid pronouncements upon points of abstract right. It remained the constant policy of British negotiators, throughout this thorny period, to seek modes of temporary arrangement, which should obviate immediate causes of complaint; leaving principles untouched, to be asserted, if desirable, at a more favorable moment. This was quite contrary to the wishes of the United States Government, which repeatedly intimated to Jay that in the case of the Rule of 1756 it desired to settle the question of principle, which it denied. To this it had attached several other topics touching maritime neutral rights, such as the flag covering the cargo, and matters of contraband.[110]

Jay apparently satisfied himself, by his interviews and observation of public feeling in England, that at the moment it was vain for a country without a navy to expect from Great Britain any surrender of right, as interpreted by her jurists; that the most to be accomplished was the adoption of measures which should as far as possible extend the immediate scope of American commerce, and remove its present injuries, presenting withal a probability of future further concessions. In his letter transmitting the treaty, he wrote: "That Britain, at this period, and involved in war, should not admit principles which would impeach the propriety of her conduct in seizing provisions bound to France, and enemy's property on board neutral vessels, does not appear to me extraordinary. The articles, as they now stand, secure compensation for seizures, and leave us at liberty to decide whether they were made in such cases as to be warranted by the _existing_ law of nations."[111] The italics are Jay's, and the expression is obscure; but it seems to imply that, while either nation, in their respective claims for damages, would be bound by the decision of the commissioners provided for their settlement by the treaty, it would preserve the right to its own opinion as to whether the decision was in accordance with admitted law, binding in the future. In short, acceptance of the Rule of 1756 would not be affected by the findings upon the claims. If adverse to Great Britain, she could still assert the Rule in times to come, if expedient; if against the United States, she likewise, while submitting, reserved the right of protest, with or without arms, against its renewed enforcement.

"As to the principles we contend for," continued Jay, "you will find them saved in the conclusion of the twelfth article, from which it will appear that we still adhere to them." This conclusion specifies that after the termination of a certain period, during which Great Britain would open to American vessels the carrying trade between her West India Islands and the United States, there should be further negotiation, looking to the extension of mutual intercourse; "and the said parties will then endeavor to agree whether, in any, and what, cases neutral vessels shall protect enemy's property; and in what cases provisions and other articles, not generally contraband, may become such. But in the meantime, their conduct towards each other in these respects shall be regulated by the articles hereinafter inserted on those subjects."[112] The treaty therefore was a temporary arrangement, to meet temporary difficulties, and involved no surrender of principle on either side. Although the Rule of 1756 is not mentioned, it evidently shared the same fate as the other American propositions looking to the settlement of principles; the more so that subsequent articles admitted, not only the undoubted rule that the neutral flag did not cover enemy's goods, but also the vehemently disputed claim that naval stores and provisions were, or might be, contraband of war. Further evidence of the understanding of Great Britain in this matter is afforded by a letter of the law adviser of the Crown, transmitted in 1801 by the Secretary for Foreign Affairs to Mr. King, then United States Minister. "The direct trade between the mother country and its colonies has not during this present war been recognized as legal, either by his Majesty's Government or by his tribunals."[113]

It is to be inferred that the Administration and the Senate, while possibly thinking Jay too yielding as a negotiator, reached the conclusion that his estimate of British feeling, formed upon the spot, was correct as to the degree of concession then to be obtained. At all events, the treaty, which provided for mixed commissions to adjudicate upon the numerous seizures made under the British orders, and, under certain conditions, admitted American vessels to branches of British trade previously closed to them, was ratified with the exception of the twelfth article. This conferred on Americans the privilege, long and urgently desired, of direct trade between their own country and the British West Indies on the same terms as British ships, though in vessels of limited size. Greatly desired as this permission had been, it came coupled with the condition, not only that cargoes from the islands should be landed in the United States alone, but also, while the concession lasted, American vessels should not carry "molasses, sugar, coffee, cocoa, or cotton" from the United States to any part of the world. By strict construction, this would prevent re-exporting the produce of French or other foreign colonies; a traffic, the extent of which during this war may be conceived by the returns for a single year, 1796, when United States shipping carried to Europe thirty-five million pounds of sugar and sixty-two million pounds of coffee, products of the Caribbean region. This article was rejected by the Senate, and the treaty ratified without it; but the coveted privilege was continued by British executive order, the regulations in the matter being suspended on account of the war, and the trade opened to American as well as British ships. Ostensibly a favor, not resting on the obligations of treaty, but on the precarious ground of the Government's will, its continuance was assured under the circumstances of the time by its practical utility to Great Britain; for the trade of that country, and its vital importance in the prevailing wars, were developing at a rate which outstripped its own tonnage. The numbers of native seamen were likewise inadequate, through the heavy demands of the Navy for men. The concurrence of neutrals was imperative. Under the conditions it was no slight advantage to have the islands supplied and the American market retained, by the services of American vessels, leaving to British the monopoly of direct carrying between the colonies and Europe.

Although vexations to neutrals incident to a state of war continued subsequent to this treaty, they turned upon points of construction and practice rather than upon principle. Negotiation was continuous; and in September, 1800, towards the close of Adams's administration, Mr. John Marshall, then Secretary of State, summed up existing complaints of commercial injury under three heads,--definitions of contraband, methods of blockade, and the unjust decisions of Vice-Admiralty Courts; coupled with the absence of penalty to cruisers making unwarranted captures, which emboldened them to seize on any ground, because certain to escape punishment. But no formal pronouncement further injurious to United States commerce was made by the British Government during this war, which ended in October, 1801, to be renewed eighteen months later. On the contrary, the progress of events in the West Indies, by its favorable effect upon British commerce, assisted Pitt in taking the more liberal measures to which by conviction he was always inclined. The destruction of Haiti as a French colony, and to a great degree as a producer of sugar and coffee, by eliminating one principal source of the world's supply, raised values throughout the remaining Caribbean; while the capture of almost all the French and Dutch possessions threw their commerce and navigation into the hands of Great Britain. In this swelling prosperity the British planter, the British carrier, and the British merchant at home all shared, and so bore without apparent grudging the issuance of an Order, in January, 1798, which extended to European neutrals the concession, made in 1795 to the United States, of carrying West Indian produce direct from the islands to their own country, or to Great Britain; not, however, to a hostile port, or to any other neutral territory than their own.

Although this Order in no way altered the existing status of the United States, it was embraced in a list of British measures affecting commerce,[114] transmitted to Congress in 1808. From the American standpoint this was accurate; for the extension to neutrals to carry to their own country, and to no other, continued the exclusion of the United States from a direct traffic between the belligerent colonies and Europe, which she had steadily asserted to be her right, but which the Rule of 1756 denied. The utmost the United States had obtained was the restitution of privileges enjoyed by them as colonists of Great Britain, in trading with the British West Indies; and this under circumstances of delay and bargain which showed clearly that the temporary convenience of Great Britain was alone consulted. No admission had been made on the point of right, as maintained by America. On the contrary, the Order of 1798 was at pains to state as its motive no change of principle, but "consideration of the present state of the commerce of Great Britain, as well as of that of neutral countries," which makes it "expedient."[115]

Up to the preliminaries of peace in 1801, nothing occurred to change that state of commerce which made expedient the Order of January, 1798. It was renewed in terms when war again began between France and Great Britain, in May, 1803. In consideration of present conditions, the direct trade was permitted to neutral vessels between an enemy's colony and their own country. The United States remained, as before, excluded from direct carriage between the West Indies and Europe; but the general course of the British Administration of the moment gave hopes of a line of conduct more conformable to American standards of neutral rights. Particularly, in reply to a remonstrance of the United States, a blockade of the whole coast of Martinique and Guadaloupe, proclaimed by a British admiral, was countermanded; instructions being sent him that the measure could apply only to particular ports, actually invested by sufficient force, and that neutrals attempting to enter should not be captured unless they had been previously warned.[116] Although no concession of principle as to colonial trade had been made, the United States acquiesced in, though she did not accept, the conditions of its enforcement. These were well understood by the mercantile community, and were such as admitted of great advantage, both to the merchant and to the carrying trade. In 1808, Mr. Monroe, justifying his negotiations of 1806, wrote that, even under new serious differences which had then arisen, "The United States were in a prosperous and happy condition, compared with that of other nations. As a neutral Power, they were almost the exclusive carriers of the commerce of the whole world; and in commerce they flourished beyond example, notwithstanding the losses they occasionally suffered."[117]

Under such circumstances matters ran along smoothly for nearly two years. In May, 1804, occurred a change of administration in England, bringing Pitt again into power. As late as November 8 of this year, Jefferson in his annual message said, "With the nations of Europe, in general, our friendship and intercourse are undisturbed; and, from the governments of the belligerent powers, especially, we continue to receive those friendly manifestations which are justly due to an honest neutrality." Monroe in London wrote at the same time, "Our commerce was never so much favored in time of war."[118] These words testify to general quietude and prosperity under existing conditions, but are not to be understood as affirming absence of subjects of difference. On the contrary, Monroe had been already some time in London, charged to obtain from Great Britain extensive concessions of principle and practice, which Jefferson, with happy optimism, expected a nation engaged in a life and death struggle would yield in virtue of reams of argument, maintaining views novel to it, advanced by a country enjoying the plenitude of peace, but without organized power to enforce its demands.

About this time, but as yet unknown to the President, the question had been suddenly raised by the British Government as to what constituted a direct trade; and American vessels carrying West Indian products from the United States to Europe were seized under a construction of "direct," which was affirmed by the court before whom the cases came for adjudication. As Jefferson's expressions had reflected the contentment of the American community, profiting, as neutrals often profit, by the misfortunes of belligerents, so these measures of Pitt proceeded from the discontents of planters, shippers, and merchants. These had come to see in the prosperity of American shipping, and the gains of American merchants, the measure of their own losses by a trade which, though of long standing, they now claimed was one of direct carriage, because by continuous voyage, between the hostile colonies and the continent of Europe. The losses of planter and merchant, however, were but one aspect of the question, and not the most important in British eyes. The products of hostile origin carried by Americans to neutral or hostile countries in Europe did by competition reduce seriously the profit upon British colonial articles of the same kind, to the injury of the finances of the kingdom; and the American carriers, the American ships, not only supplanted so much British tonnage, but were enabled to do so by British seamen, who found in them a quiet refuge--relatively, though not wholly, secure--from the impressment which everywhere pursued the British merchant ship. It was a fundamental conviction of all British statesmen, and of the general British public, that the welfare of the navy, the one defence of the empire, depended upon maintaining the carrying trade, with the right of impressment from it; and Pitt, upon his return to office, had noted "with considerable concern, the increasing acrimony which appears to pervade the representations made to you [the British Minister at Washington] by the American Secretary of State on the subject of the impressment of seamen from on board American ships."[119]

The issue of direct trade was decided adversely to the contention of the United States, in the test case of the ship "Essex," in May, 1805, by the first living authority in England on maritime international law, Sir William Scott. Resting upon the Rule of 1756, he held that direct trade from belligerent colonies to Europe was forbidden to neutrals, except under the conditions of the relaxing Orders of 1798 and 1803; but the privilege to carry to their own country having been by these extended, it was conceded, in accordance with precedent, that products thus imported, if they had complied with the legal requirements for admission _to use_ in the importing country, thenceforth had its nationality. They became neutral in character, and could be exported like native produce to any place open to commerce, belligerent or neutral. United States shippers, therefore, were at liberty to send even to France French colonial products which had been thus Americanized. The effect of this procedure upon the articles in question was to raise their price at the place of final arrival, by all the expense incident to a broken transit; by the cost of landing, storing, paying duties, and reshipping, together with that of the delay consequent upon entering an American port to undergo these processes. With the value thus enhanced upon reaching the continent of Europe, the British planter, carrier, and merchant might hope that British West India produce could compete; although various changes of conditions in the West Indies, and Bonaparte's efforts at the exclusion of British products from the continent, had greatly reduced their market there from the fair proportions of the former war. In the cases brought before Sir William Scott, however, it was found that the duties paid for admission to the United States were almost wholly released, by drawback, on re-exportation; so that the articles were brought to the continental consumer relieved of this principal element of cost. He therefore ruled that they had not complied with the conditions of an actual importation; that the articles had not lost their belligerent character; and that the carriage to Europe was by direct voyage, not interrupted by an importation. The vessels were therefore condemned.

The immediate point thus decided was one of construction, and in particular detail hitherto unsettled. The law adviser of the Crown had stated in 1801, as an accepted precedent, "that landing the goods and paying the duties in the neutral country breaks the continuity of the voyage;"[120] but the circumstance of drawback, which belonged to the municipal prerogative of the independent neutral state, had not then been considered. The foundation on which all rested was the principle of 1756. The underlying motive for the new action taken--the protection of a British traffic--linked the War of 1812 with the conditions of colonial dependence of the United States, which was a matter of recent memory to men of both countries still in the vigor of life. The American found again exerted over his national commerce a control indistinguishable in practice from that of colonial days; from what port his ships should sail, whither they might go, what cargoes they might carry, under what rules be governed in their own ports, were dictated to him as absolutely, if not in as extensive detail, as before the War of Independence. The British Government placed itself in the old attitude of a sovereign authority, regulating the commerce of a dependency with an avowed view to the interest of the mother country. This motive was identical with that of colonial administration; the particular form taken being dictated, of course, then as before, by the exigencies of the moment,--by a "consideration of the present state of the commerce of this country." Messrs. Monroe and Pinkney, who were appointed jointly to negotiate a settlement of the trouble, wrote that "the British commissioners did not hesitate to state that their wish was to place their own merchants on an equal footing in the great markets of the continent with those of the United States, by burthening the intercourse of the latter with severe restrictions."[121] The wish was allowable; but the method, the regulation of American commercial movement by British force, resting for justification upon a strained interpretation of a contested belligerent right, was naturally and accurately felt to be a re-imposition of colonial fetters upon a people who had achieved their independence.

The motive remained; and the method, the regulation of American trade by British orders, was identical in substance, although other in form, with that of the celebrated Orders in Council of 1807 and 1809. Mr. Monroe, who was minister to England when this interesting period began, had gone to Spain on a special mission in October, 1804, shortly after his announcement, before quoted, that "American commerce was never so much favored in time of war." "On no principle or pretext, so far, has more than one of our vessels been condemned." Upon his return in July, 1805, he found in full progress the seizures, the legality of which had been affirmed by Sir William Scott. A prolonged correspondence with the then British Government followed, but no change of policy could be obtained. In January, 1806, Pitt died; and the ministry which succeeded was composed largely of men recently opposed to him in general principles of action. In particular, Mr. Fox, between whom and Pitt there had been an antagonism nearly lifelong, became Secretary for Foreign Affairs. His good dispositions towards America were well known, and dated from the War of Independence. To him Monroe wrote that under the recent measures "about one hundred and twenty vessels had been seized, several condemned, all taken from their course, detained, and otherwise subjected to heavy losses and damages."[122] The injury was not confined to the immediate sufferers, but reacted necessarily on the general commercial system of the United States.

In his first conversations with Monroe, Fox appeared to coincide with the American view, both as to the impropriety of the seizures and the general right of the United States to the trade in dispute, under their own interpretation of it; namely, that questions of duties and drawbacks, and the handling of the cargoes in American ports, were matters of national regulation, upon which a foreign state had no claim to pronounce. The American envoy was sanguine of a favorable issue; but the British Secretary had to undergo the experience, which long exclusion from office made novel to him, that in the complications of political life a broad personal conviction has often to yield to the narrow logic of particular conditions. It is clear that the measures would not have been instituted, had he been in control; but, as it was, the American representative demanded not only their discontinuance, but a money indemnity. The necessity of reparation for wrong, if admitted, stood in the way of admitting as a wrong a proceeding authorized by the last Government, and pronounced legal by the tribunals. To this obstacle was added the weight of a strong outdoor public feeling, and of opposition in the Cabinet, by no means in accord upon Fox's general views. Consequently, to Monroe's demands for a concession of principle, and for pecuniary compensation, Fox at last replied with a proposition, consonant with the usual practical tone of English statesmanship, never more notable than at this period, that a compromise should be effected; modifying causes of complaint, without touching on principles. "Can we not agree to suspend our rights, and leave you in a satisfactory manner the enjoyment of the trade? In that case, nothing would be said about the principle, and there would be no claim to indemnity."[123]

The United States Government, throughout the controversy which began here and lasted till the war, clung with singular tenacity to the establishment of principles. To this doubtless contributed much the personality of Madison, then Secretary of State; a man of the pen, clear-headed, logical, incisive, and delighting like all men in the exercise of conscious powers. The discussion of principles, the exposure of an adversary's weakness or inconsistencies, the weighty marshalling of uncounted words, were to him the breath of life; and with happy disregard of the need to back phrases with deeds, there now opened before him a career of argumentation, of logical deduction and exposition, constituting a condition of political and personal enjoyment which only the deskman can fully appreciate. It was not, however, an era in which the pen was mightier than the sword; and in the smooth gliding of the current Niagara was forgotten. Like Jefferson, he was wholly oblivious of the relevancy of Pompey's retort to a contention between two nations, each convinced of its own right: "Will you never have done with citing laws and privileges to men who wear swords?"

To neither President nor Secretary does it seem to have occurred that the provision of force might lend weight to argument; a consideration to which Monroe, intellectually much their inferior, was duly sensible. "Nothing will be obtained without some kind of pressure, such a one as excites an apprehension that it will be increased in case of necessity; and to produce that effect it will be proper to put our country in a better state of defence, by invigorating the militia system and increasing the naval force." "Victorious at sea, Great Britain finds herself compelled to concentrate her force so much in this quarter, that she would not only be unable to annoy us essentially in case of war, but even to protect her commerce and possessions elsewhere, which would be exposed to our attacks."[124] Most true when written, in 1805; the time had passed in 1813. "Harassed as they are already with war, and the menaces of a powerful adversary, a state of hostility with us would probably go far to throw this country into confusion. It is an event which the ministry would find it difficult to resist, and therefore cannot, I presume, be willing to encounter."[1] But he added, "There is here an opinion, which many do not hesitate to avow, that the United States are, by the nature of their Government, incapable of any great, vigorous, or persevering exertion."[125] This impression, for which it must sorrowfully be confessed there was much seeming ground in contemporary events, and the idiosyncrasies of Jefferson and Madison, in their full dependence upon commercial coercion to reduce Great Britain to concede their most extreme demands, contributed largely to maintain the successive British ministries in that unconciliatory and disdainful attitude towards the United States, which made inevitable a war that a higher bearing might have averted.

Monroe had been instructed that, if driven to it, he might waive the practical right to sail direct from a belligerent colony to the mother country, being careful to use no expression that would imply yielding of the abstract principle. But the general insistence of his Government upon obtaining from Great Britain acknowledgment of right was so strong that he could not accept Fox's suggestion. The British Minister, forced along the lines of his predecessors by the logic of the situation, then took higher ground. "He proceeded to insist that," to break the continuity of the voyage, "our vessels which should be engaged in that commerce must enter our ports, their cargoes be landed, and the duties paid."[126] This was the full extent of Pitt's requirements, as of the rulings of the British Admiralty Court; and made the regulation of transactions in an American port depend upon the decisions of British authorities. Monroe unhesitatingly rejected the condition, and their interview ended, leaving the subject where it had been. The British Cabinet then took matters into its own hands, and without further communication with Monroe adopted a practical solution, which removed the particular contention from the field of controversy by abandoning the existing measures, but without any expression as to the question of right or principle, which by this tacit omission was reserved. Unfortunately for the wishes of both parties, this recourse to opportunism, for such it was, however ameliorative of immediate friction, resulted in a further series of quarrels; for the new step of the British Government was considered by the American to controvert international principles as much cherished by it as the right to the colonial trade.

Monroe's interview was on April 25. On May 17 he received a letter from Fox, dated May 16, notifying him that, in consequence of certain new and extraordinary means resorted to by the enemy for distressing British commerce, a retaliatory commercial blockade was ordered of the coast of the continent, from the river Elbe to Brest. This blockade, however, was to be absolute, against all commerce, only between the Seine and Ostend. Outside of those limits, on the coast of France west of the Seine, and those of France, Holland, and Germany east of Ostend, the rights of capture attaching to blockades would be forborne in favor of neutral vessels, bound in, which had not been laden at a port hostile to Great Britain; or which, going out, were not destined to such hostile port.[127] No discrimination was made against the character of the cargo, except as forbidden by generally recognized laws of war. This omission tacitly allowed the colonial trade by way of American ports, just as the measure as a whole tacitly waived all questions of principle upon which that difference had turned. After this, a case coming before a British court would require from it no concession affecting its previous rulings. By these the vessel still would stand condemned; but she was relieved from the application of them by the new Order, in which the Government had relinquished its asserted right. The direct voyage from the colony to the mother country was from a hostile port, and therefore remained prohibited; but the proceedings in the United States ports, as affecting the question of direct voyage, though held by the Court to be properly liable to interpretation by itself on international grounds, if brought before it, was removed from its purview by the act of its own Government, granting immunity.

The first impressions made upon Monroe by this step were favorable, as it evidently relieved the immediate embarrassments under which American commerce was laboring. There would at least be no more seizures upon the plea of direct voyages. While refraining from expressing to Fox any approbation of the Order of May 16, he wrote home in this general sense of congratulation; and upon his letters, communicated to Congress in 1808, was founded a claim by the British Minister at Washington in 1811, that the blockade thus instituted was not at the time regarded by him "as founded on other than just and legitimate principles." "I have not heard that it was considered in a contrary light when notified as such to you by Mr. Secretary Fox, nor until it suited the views of France to endeavor to have it considered otherwise."[128] Monroe, who was then Secretary of State, replied that with Fox "an official formal complaint was not likely to be resorted to, because friendly communications were invited and preferred. The want of such a document is no proof that the measure was approved by me, or no complaint made."[129] The general tenor of his home letters, however, was that of satisfaction; and it is natural to men dealing with questions of immediate difficulty to hail relief, without too close scrutiny into its ultimate consequences. It may be added that ministers abroad, in close contact with the difficulties and perplexities of the government to which they are accredited, recognize these more fully than do their superiors at home, and are more susceptible to the advantages of practical remedies over the maintenance of abstract principle.

The legitimacy of the blockade of May 16, 1806, was afterwards sharply contested by the United States. There was no difference between the two governments as to the general principle that a blockade, to be lawful, must be supported by the presence of an adequate force, making it dangerous for a vessel trying to enter or leave the port. "Great Britain," wrote Madison, "has already in a formal communication admitted the principle for which we contend." The difficulty turned on a point of definition, as to what situation, and what size, of a blockading division constituted adequacy. The United States authorities based themselves resolutely on the position that the blockaders must be close to the ports named for closure, and denied that a coast-line in its entirety could thus be shut off from commerce, without specifying the particular harbors before which ships would be stationed. Intent, as neutrals naturally are, upon narrowing belligerent rights, usually adverse to their own, they placed the strictest construction on the words "port" and "force." This is perhaps best shown by quoting the definition proposed by American negotiators to the British Government over a year later,--July 24, 1807. "In order to determine what characterizes a blockade, that denomination is given only to a _port_, where there is, by the disposition of the Power which blockades it _with ships stationary_, an evident danger in entering."[130] Madison, in 1801, discussing vexations to Americans bound into the Mediterranean, by a Spanish alleged blockade of Gibraltar, had anticipated and rejected the British action of 1806. "Like blockades might be proclaimed by any particular nation, enabled by its naval superiority to distribute its ships at the mouth of that or any similar sea, _or across channels or arms of the sea_, so as to make it dangerous for the commerce of other nations to pass to its destination. These monstrous consequences condemn the principle from which they flow."[131]

The blockade of May 16 offered a particularly apt illustration of the point at issue. From the entrance of the English Channel to the Straits of Dover, the whole of both shore-lines was belligerent. On one side all was British; on the other all French. Evidently a line of ships disposed from Ushant to the Lizard, the nearest point on the English coast, would constitute a very real danger to a vessel seeking to approach any French port on the Channel. Fifteen vessels would occupy such a line, with intervals of only six miles, and in combination with a much smaller body at the Straits of Dover would assuredly bring all the French coast between them within the limits of any definition of danger. That these particular dispositions were adopted does not appear; but that very much larger numbers were continually moving in the Channel, back and forth in every direction, is certain. As to the remainder of the coast declared under restriction, from the Straits to the Elbe,--about four hundred miles,--with the great entrances to Antwerp, Rotterdam, Amsterdam, the Ems, the Weser, and the Elbe, there can be no doubt that it was within the power of Great Britain to establish the blockade within the requirements of international law. Whether she did so was a question of fact, on which both sides were equally positive. The British to the last asserted that an adequate force had been assigned, "and actually maintained,"[132] while the blockade lasted.

The incident derived its historical significance chiefly from subsequent events. It does not appear at the first to have engaged the special attention of the United States Government, the general position of which, as to blockades, was already sufficiently defined. The particular instance was only one among several, and interest was then diverted to two other leading points,--impressment and the colonial trade. Peculiar importance began to attach to it only in the following November, when Napoleon issued his Berlin decree. Upon this ensued the exaggerated oppressions of neutral commerce by both antagonists; and the question arose as to the responsibility for beginning the series of measures, of which the Berlin and Milan Decrees on one side, and the British Orders in Council of 1807 and 1809 on the other, were the most conspicuous features. Napoleon contended that the whole sprang from the extravagant pretensions of Great Britain, particularly in the Order of May 16, which he, in common with the United States, characterized as illegal. The British Government affirmed that it was strictly within belligerent rights, and was executed by an adequate force; that consequently it gave no ground for the course of the French Emperor. American statesmen, while disclaiming with formal gravity any purpose to decide with which of the two wrong-doers the ill first began,[133] had no scruples about reiterating constantly that the Order of May 16 contravened international right; and in so far, although wholly within the limits of diplomatic propriety, they supported Napoleon's assertion. Thus it came to pass that the United States was more and more felt, not only in Europe, but by dissentients at home, to side with France; and as the universal contest grew more embittered, this feeling became emphasized.

While these discussions were in progress between Monroe and Fox, the United States Government had taken a definite step to bring the dispute to an issue by commercial restriction. The remonstrances from the mercantile community, against the seizures under the new ruling as to direct trade, were too numerous, emphatic, and withal reasonable, to be disregarded. Congress therefore, before its adjournment on April 23, 1806, passed a law shutting the American market, after the following November 15, against certain articles of British manufacture, unless equitable arrangements between the two countries should previously be reached. This recourse was in line with the popular action of the period preceding the War of Independence, and foreshadowed the general policy upon which the Administration was soon to enter on a larger scale. The measure was initiated before news was received of Pitt's death, and the accession of a more friendly ministry; but, having been already recommended in committee, it was not thought expedient to recede in consequence of the change. At the same time, the Administration determined to constitute an extraordinary mission, for the purpose of "treating with the British Government concerning the maritime wrongs which have been committed, and the regulation of commercial navigation between the parties." For this object Mr. William Pinkney, of Maryland, was nominated as colleague to Monroe, and arrived in England on June 24.

The points to be adjusted by the new commissioners were numerous, but among them two were made pre-eminent,--the question of colonial trade, already explained, and that of impressment of seamen from American vessels. These were named by the Secretary of State as the motive of the recent Act prohibiting certain importations. The envoys were explicitly instructed that no stipulation requiring the repeal of that Act was to be made, unless an effectual remedy for these two evils was provided. The question of impressment, wrote Madison, "derives urgency from the licentiousness with which it is still pursued, and from the growing impatience of this country under it."[134] When Pinkney arrived, the matter of the colonial trade had already been settled indirectly by the Order of May 16, and it was soon to disappear from prominence, merged in the extreme measures of which that blockade was the precursor; but impressment remained an unhealed sore to the end.

To understand the real gravity of this dispute, it is essential to consider candidly the situation of both parties, and also the influence exerted upon either by long-standing tradition. The British Government did not advance a crude claim to impress American seamen. What it did assert, and was enforcing, was a right to exercise over individuals on board foreign merchantmen, upon the high seas, the authority which it possessed on board British ships there, and over all ships in British ports. The United States took the ground that no such jurisdiction existed, unless over persons engaged in the military service of an enemy; and that only when a vessel entered the ports or territorial waters of Great Britain were those on board subject to arrest by her officers. There, as in every state, they came under the law of the land.

The British argument in favor of this alleged right may be stated in the words of Canning, who became Foreign Secretary a year later. Writing to Monroe, September 23, 1807, he starts from the premise, then regarded by many even in America as sound, that allegiance by birth is inalienable,--not to be renounced at the will of the individual; consequently, "when mariners, subjects of his Majesty, are employed in the private service of foreigners, they enter into engagements inconsistent with the duty of subjects. In such cases, the species of redress which the practice of all times has admitted and sanctioned is that of taking those subjects at sea out of the service of such foreign individuals, and recalling them to the discharge of that paramount duty, which they owe to their sovereign and to their country. That the exercise of this right involves some of the dearest interests of Great Britain, your Government is ready to acknowledge.... It is needless to repeat that these rights existed in their fullest force for ages previous to the establishment of the United States of America as an independent government; and it would be difficult to contend that the recognition of that independence can have operated any change in this respect."[135]

Had this been merely a piece of clever argumentation, it would have crumbled rapidly under an appreciation of the American case; but it represented actually a conviction inherited by all the British people, and not that of Canning only. Whether the foundation of the alleged right was solidly laid in reason or not, it rested on alleged prescription, indorsed by a popular acceptance and suffrage which no ministry could afford to disregard, at a time when the manning of the Royal Navy was becoming a matter of notorious and increasing difficulty. If Americans saw with indignation that many of their fellow-citizens were by the practice forced from their own ships to serve in British vessels of war, it was equally well known, in America as in Great Britain, that in the merchant vessels of the United States were many British seamen, sorely needed by their country. Public opinion in the United States was by no means united in support of the position then taken by Jefferson and Madison, as well as by their predecessors in office, proper and matter-of-course as that seems to-day. Many held, and asserted even with vehemence, that the British right existed, and that an indisputable wrong was committed by giving the absentees shelter under the American flag. The claim advanced by the United States Government, and the only one possible to it under the circumstances, was that when outside of territorial limits a ship's flag and papers must be held to determine the nation, to which alone belonged jurisdiction over every person on board, unless demonstrably in the military service of a belligerent.

As a matter involving extensive practical consequences, this contention, like that concerning the colonial trade, had its origin from the entrance into the family of European nations of a new-comer, foreign to the European community of states and their common traditions; indisposed, consequently, to accept by mere force of custom rules and practices unquestioned by them, but traversing its own interests. As Canning argued, the change of political relation, by which the colonies became independent, could not affect rights of Great Britain which did not derive from the colonial connection; but it did introduce an opposing right,--that of the American citizen to be free from British control when not in British territory. This the United States possessed in common with all foreign nations; but in her case it could not, as in theirs, be easily reconciled with the claim of Great Britain. When every one whose native tongue was English was also by birth the subject of Great Britain, the visitation of a foreign neutral, in order to take from her any British seamen, involved no great difficulty of discrimination, nor--granting the theory of inalienable allegiance--any injustice to the person taken. It was quite different when a large maritime English-speaking population, quite comparable in numbers to that remaining British, had become independent. The exercise of the British right, if right it was, became liable to grievous wrong, not only to the individuals affected, but to the nation responsible for their protection; and the injury was greater, both in procedure and result, because the officials intrusted with the enforcement of the British claim were personally interested in the decisions they rendered. No one who understands the affection of a naval officer for an able seaman, especially if his ship be short-handed, will need to have explained how difficult it became for him to distinguish between an Englishman and an American, when much wanted. In short, there was on each side a practical grievance; but the character of the remedy to be applied involved a question of principle, the effect of which would be unequal between the disputants, increasing the burden of the one while it diminished that of the other, according as the one or the other solution was adopted.

Except for the fact that the British Government had at its disposal overwhelming physical force, its case would have shared that of all other prescriptive rights when they come into collision with present actualities, demanding their modification. It might be never so true that long-standing precedent made legal the impressment of British seamen from neutral vessels on the open sea; but it remained that in practice many American seamen were seized, and forced into involuntary servitude, the duration of which, under the customs of the British Navy, was terminable certainly only by desertion or death. The very difficulty of distinguishing between the natives of the two countries, "owing to similarity of language, habits, and manners,"[136] alleged in 1797 by the British Foreign Secretary, Lord Grenville, to Rufus King, the American Minister, did but emphasize the incompatibility of the British claim with the security of the American citizen. The Consul-General of Great Britain at New York during most of this stormy period, Thomas Barclay, a loyalist during the War of Independence, affirms from time to time, with evident sincerity of conviction, the wishes of the British Government and naval officers not to impress American seamen; but his published correspondence contains none the less several specific instances, in which he assures British admirals and captains that impressed men serving on board their ships are beyond doubt native Americans, and his editor remarks that "only a few of his many appeals on behalf of Americans unlawfully seized are here printed."[137] This, too, in the immediate neighborhood of the United States, where evidence was most readily at hand. The condition was intolerable, and in principle it mattered nothing whether one man or many thus suffered. That the thing was possible, even for a single most humble and unknown native of the United States, condemned the system, and called imperiously for remedy. The only effectual remedy, however, was the abandonment of the practice altogether, whether or not the theoretic ground for such abandonment was that advanced by the United States. Long before 1806, experience had demonstrated, what had been abundantly clear to foresight, that a naval lieutenant or captain could not safely be intrusted with a function so delicate as deciding the nationality of a likely English-speaking topman, whom, if British, he had the power to impress.

The United States did not refuse to recognize, distinctly if not fully, the embarrassment under which Great Britain labored by losing the services of her seamen at a moment of such national exigency; and it was prepared to offer many concessions in municipal regulations, in order to exclude British subjects from American vessels. Various propositions were advanced looking to the return of deserters and to the prevention of enlistments; coupled always with a renunciation of the British claim to take persons from under the American flag. There had been much negotiation by individual ministers of the United States in the ordinary course of their duties; beginning as far back as 1787, when John Adams had to remonstrate vigorously with the Cabinet "against this practice, which has been too common, of impressing American citizens, and especially with the aggravating circumstances of going on board American vessels, which ought to be protected by the flag of their sovereign."[138] Again, in 1790, on hostilities threatening with Spain, a number of American seamen were impressed in British ports. The arrests, being within British waters, were not an infringement of American jurisdiction, and the only question then raised was that of proving nationality. Gouverneur Morris, who afterwards so violently advocated the British claim to impress their own subjects in American vessels on the seas,[139] was at this time in London on a special semi-official errand, committed to him by President Washington. There being then no American resident minister, he took upon himself to mention to the Foreign Secretary "the conduct of their pressgangs, who had taken many American seamen, and had entered American vessels with as little ceremony as those belonging to Britain;" adding, with a caustic humor characteristic of him, "I believe, my Lord, this is the only instance in which we are not treated as aliens." He suggested certificates of citizenship, to be issued by the Admiralty Courts of the United States. This was approved by the Secretary and by Pitt; the latter, however, remarking that the plan was "very liable to abuse, notwithstanding every precaution."[140] Various expedients for attaching to the individual documentary evidence of birth were from time to time tried; but the heedless and inconsequent character and habits of the sailor of that day, and the facility with which the papers, once issued, could be transferred or bought, made any such resource futile. The United States was thus driven to the position enunciated in 1792 by Jefferson, then Secretary of State: "The simplest rule will be that the vessel being American shall be evidence that the seamen on board of her are such."[141] If this demand comprehended, as it apparently did, cases of arrest in British harbors, it was clearly extravagant, resembling the idea proceeding from the same source that the Gulf Stream should mark the neutral line of United States waters; but for the open sea it formulated the doctrine on which the country finally and firmly took its stand.

The history of the practice of impressment, and of the consequent negotiations, from the time of Jefferson's first proposition down to the mission of Monroe and Pinkney, had shown conclusively that no other basis of settlement than that of the flag vouching for the crew could adequately meet and remove the evil of which the United States complained; an evil which was not only an injury to the individuals affected, but a dishonor to the nation which should continue to submit. The subject early engaged the care of Rufus King, who became Minister to Great Britain in 1796. In 1797, Lord Grenville and he had a correspondence,[142] which served merely to develop the difficulties on both sides, and things drifted from bad to worse. Not only was there the oppression of the individual, but the safety of ships was endangered by the ruthless manner in which they were robbed of their crews; an evil from which British merchant vessels often suffered.[143] On October 7, 1799, King again presented Grenville a paper,[144] summarizing forcibly both the abuses undergone by Americans, and the inconsistency of the British principle of inalienable allegiance with other British practices, which not only conferred citizenship upon aliens serving for a certain time in their merchant ships, but even attributed it compulsorily to seamen settled or married in the land.[145] No satisfactory action followed upon this remonstrance. In March, 1801, Grenville having resigned with Pitt, King brought the question before their successors, referring to the letter of October, 1799, as "a full explanation, requiring no further development on the present occasion."[146] At the same time, by authority from his Government, he made a definite proposal, "that neither party shall upon the high seas impress seamen out of the vessels of the other." The instructions for this action were given under the presidency of John Adams, John Marshall being then Secretary of State. On the high seas the vessels of the country were not under British jurisdiction for any purpose. The only concession of international law was that the ship itself could be arrested, if found by a belligerent cruiser under circumstances apparently in violation of belligerent rights, be brought within belligerent jurisdiction, and the facts there determined by due process of law. But in the practice of impressment the whole procedure, from arrest to trial and sentence, was transferred to the open sea; therefore to allow it extended thither a British jurisdiction, which possessed none of the guarantees for the sifting of evidence, the application of law, or the impartiality of the judge, which may be presumed in regular tribunals.

Yet, while holding clearly the absolute justice of the American contention, demonstrated both by the faulty character of the method and the outrageous injustice in results, let us not be blind to the actuality of the loss Great Britain was undergoing, nor to her estimate of the compensation offered for the relinquishment of the practice. The New England States, which furnished a large proportion of the maritime population, affirmed continually by their constituted authorities that very few of their seamen were known to be impressed. Governor Strong of Massachusetts, in a message to the Legislature, said, "The number of our native seamen impressed by British ships has been grossly exaggerated, and the number of British seamen employed by us has at all times been far greater than those of all nations who have been impressed from our vessels. If we are contending for the support of a claim to exempt British seamen from their allegiance to their own country, is it not time to inquire whether our claim is just?"[147] It seems singular now that the fewness of the citizens hopelessly consigned to indefinite involuntary servitude should have materially affected opinion as to the degree of the outrage; but, after making allowance for the spirit of faction then prevalent, it can be readily understood that such conditions, being believed by the British, must color their judgment as to the real extent of the injustice by which they profited. At New York, in 1805, Consul-General Barclay,[148] who had then been resident for six years, in replying to a letter from the Mayor, said, "It is a fact, too notorious to have escaped your knowledge, that many of his Majesty's subjects are furnished with American protection, to which they have no title." This being brought to Madison's attention produced a complaint to the British Minister. In justifying his statements, Barclay wrote there were "innumerable instances where British subjects within a month after their arrival in these states obtain certificates of citizenship." "The documents I have already furnished you prove the indiscriminate use of those certificates."[149] Representative Gaston of North Carolina, whose utterances on another aspect of the question have been before quoted,[150] said in this relation, "In the battle, I think of the President and the Little Belt, a neighbor of mine, now an industrious farmer, noticed in the number of the slain one of his own name. He exclaimed, 'There goes one of my protections.' On being asked for an explanation, he remarked that in his wild days, when he followed the sea, it was an ordinary mode of procuring a little spending money to get a protection from a notary for a dollar, and sell it to the first foreigner whom it at all fitted for fifteen or twenty." But, while believing that the number of impressed Americans "had been exaggerated infinitely beyond the truth," Gaston added, with the clear perceptions of patriotism, "Be they more or less, the right to the protection of their country is sacred and must be regarded."[151]

The logic was unimpeachable which, to every argument based upon numbers, replied that the question was not of few or many, but of a system, under which American seamen--one or more--were continually liable to be seized by an irresponsible authority, without protection or hearing of law, and sent to the uttermost part of the earth, beyond power of legal redress, or of even making known their situation. Yet it can be understood that the British Government, painfully conscious of the deterioration of its fighting force by the absence of its subjects, and convinced of its right, concerning which no hesitation was ever by it expressed, should have resolved to maintain it, distrustful of offers to exclude British seamen from the American merchant service, the efficacy of which must have been more than doubtful to all familiar with shipping procedures in maritime ports. The protections issued to seamen as American citizens fell under the suspicion which in later days not infrequently attached to naturalization papers; and, if questioned by some of our own people, it is not to be wondered that they seemed more than doubtful to a contrary interest.

In presenting the proposition, "that neither party should impress from the ships of the other," King had characterized it as a temporary measure, "until more comprehensive and precise regulations can be devised to secure the respective rights of the two countries." Nevertheless, the United States would doubtless have been content to rest in this, duly carried out, and even to waive concession of the principle, should it be thus voided in practice. As King from the first foresaw,[152] acceptance by the British Cabinet would depend upon the new head of the Admiralty, Lord St. Vincent, a veteran admiral, whose reputation, and experience of over fifty years, would outweigh the opinions of his colleagues. In reply to a private letter from one of St. Vincent's political friends, sent at King's request, the admiral wrote: "Mr. King is probably not aware of the abuses which are committed by American Consuls in France, Spain, and Portugal, from the generality of whom every Englishman, knowing him to be such, may be made an American for a dollar. I have known more than one American master carry off soldiers, in their regimentals, arms, and accoutrements, from the garrison at Gibraltar; and there cannot be a doubt but the American trade is navigated by a majority of British subjects; and a very considerable one too." However inspired by prejudice, these words in their way echo Gaston's statements just quoted; while Madison in 1806 admitted that the number of British seamen in American merchant ships was "considerable, though probably less than supposed."

Entertaining these impressions, the concurrence of St. Vincent seemed doubtful; and in fact, through the period of nominal peace which soon ensued, and continued to May, 1803, the matter dragged. When the renewal of the war was seen to be inevitable, King again urged a settlement, and the Foreign Secretary promised to sign any agreement which the admiral would approve. After conference, King thought he had gained this desired consent, for a term of five years, to the American proposition. He drew up articles embodying it, together with the necessary equivalents to be stipulated by the United States; but, before these could be submitted, he received a letter from St. Vincent, saying that he was of the opinion that the narrow seas should be expressly excepted from the operation of the clause, "as they had been immemorially considered to be within the dominions of Great Britain." Since this would give the consent of the United States to the extension of British jurisdiction far beyond the customary three miles from the shore, conceded by international law, King properly would not accept the solution, tempting as was the opportunity to secure immunity for Americans in other quarters from the renewed outrages that could be foreseen. He soon after returned to the United States, where his decision was of course approved; for though the Gulf Stream appeared to Jefferson the natural limit for the neutral jurisdiction of America, the claim of Great Britain to the narrow seas was evidently a grave encroachment upon the rights of others.

In later years Lord Castlereagh, in an interview with the American chargé d'affaires, Jonathan Russell, assured him that Mr. King had misapprehended St. Vincent's meaning; reading, from a mass of records then before him, a letter of the admiral to Sir William Scott, Judge of the High Court of Admiralty, "asking for counsel and advice, and confessing his own perplexity and total incompetency to discover any practical project for the safe discontinuance of the practice." "You see," proceeded Lord Castlereagh, "that the confidence of Mr. King on this point was entirely unfounded."[153]

Wherever the misunderstanding lay, matters had not advanced in the least towards a solution when Monroe reached England, in 1803, as King's successor. Up to that time, no tabular statement seems to have been prepared, showing the total number of seamen impressed from American vessels during the first war, 1793-1801; nor does the present writer think it material to ascertain, from the fragmentary data at hand, the exact extent of an injury to which the question of more or less was secondary. The official agent of the American Government, for the protection of seamen, upon quitting his post in London in 1802, wrote that he had transferred to his successor "A list of 597 seamen, where answers have been returned to me, stating that, having no documents to prove their citizenship, the Lords Commissioners of the Admiralty could not consent to their discharge." Only seven cases then remained without replies, which shows at the least a decent attention to the formalities of intercourse; and King, in his letter of October 7, 1799, had acknowledged that the Secretary to the Admiralty had "given great attention to the numerous applications, and that a disposition has existed to comply with our demands, when the same could be done consistently with the maxims and practice adopted and adhered to by Great Britain." The Admiralty, however, maintained that "the admission of the principle, that a man declaring himself to belong to a foreign state should, upon that assertion merely, and without direct or very strong circumstantial proof, be suffered to leave the service, would be productive of the most dangerous consequences to his Majesty's Navy." The agent himself had written to the Secretary of the Admiralty, "I freely confess that I believe many of them are British subjects; but I presume that all of them were impressed from American vessels, and by far the greater proportion are American citizens, who, from various causes, have been deprived of their certificates, and who, from their peculiar situation, have been unable to obtain proofs from America."[154]

When Mr. Monroe arrived in England in 1803, after the conclusion of the Louisiana purchase from France, war had just re-begun. Instructions were sent him, in an elaborate series of articles framed by Madison, for negotiating a convention to regulate those matters of difference which experience had shown were sure to arise between the two countries in the progress of the hostilities. Among them, impressment was given the first place; but up to 1806, when Pinkney was sent as his associate, nothing had been effected, nor does urgency seem to have been felt. So long as in practice things ran smoothly, divergences of opinion were easily tolerable. Soon after the receipt of the instructions, in March, 1804,[155] the comparatively friendly administration of Addington gave way to that of Pitt; and upon this had followed Monroe's nine-months absence in Spain. Before departure, however, he had written, "The negotiation has not failed in its great objects, ... nor was there ever less cause of complaint furnished by impressment."[156] The outburst of seizure upon the plea of a constructively direct trade, already mentioned, had followed, and, with the retaliatory non-importation law of the United States, made the situation acute and menacing. Further cause for exasperation was indicated in a report from the Secretary of State, March 5, 1806, giving, in reply to a resolution of the House, a tabulated statement, by name, of 913 persons, who "appear to have been impressed from American vessels;" to which was added that "the aggregate number of impressments into the British service since the commencement of the present war in Europe (May, 1803) is found to be 2,273."[157]

Confronted by this situation of wrongs endured, by commerce and by seamen, the mission of Monroe and Pinkney was to negotiate a comprehensive treaty of "amity, commerce, and navigation," the first attempted between the two countries since Jay's in 1794. When Pinkney landed, Fox was already in the grip of the sickness from which he died in the following September. This circumstance introduced an element of delay, aggravated by the inevitable hesitations of the new ministry, solicitous on the one hand to accommodate, but yet more anxious not to incense British opinion. The Prime Minister, in room of Mr. Fox, received the envoys on August 5, and, when the American demand was explained to him, defined at once the delicacy of the question of impressment. "On the subject of the impressment of our seamen, he suggested doubts of the practicability of devising the means of discrimination between the seamen of the two countries, within (as we understood him) their respective jurisdictions; and he spoke of the importance to the safety of Great Britain, in the present state of the power of her enemy, of preserving in their utmost strength the right and capacity of Government to avail itself in war of the services of its seamen. These observations were connected with frequent professions of an earnest wish that some liberal and equitable plan should be adopted, for _reconciling the exercise_ of this essential right with the just claims of the United States, and for removing from it all cause of complaint and irritation."[158]

In consequence of Mr. Fox's continued illness two negotiators, one of whom, Lord Holland, was a near relative of his, were appointed to confer with the American envoys, and to frame an agreement, if attainable. The first formal meeting was on August 27, the second on September 1.[159] As the satisfactory arrangement of the impressment difficulty was a _sine quâ non_ to the ratification of any treaty, and to the repeal of the Non-Importation Act, this American requirement was necessarily at once submitted. The reply was significant, particularly because made by men apparently chosen for their general attitude towards the United States, by a ministry certainly desirous to conciliate, and to retain the full British advantage from the United States market, if compatible with the preservation of an interest deemed greater still. "It was soon apparent that they felt the strongest repugnance to a formal renunciation, or the abandonment, of their claim to take from our vessels on the high seas such seamen as should appear to be their own subjects, and they pressed upon us with much zeal a provision" for documentary protection to individuals; "but that, subject to such protections, the ships of war of Great Britain should continue to visit and impress on the main ocean as heretofore."

In the preliminary discussions the British negotiators presented the aspect of the case as it appeared to them and to their public. They "observed that they supposed the object of our plan to be to prevent the impressment at sea of American seamen, and not to withdraw British seamen from the naval service of their country in times of great national peril, for the purpose of employing them ourselves; that the first of these purposes would be effectually accomplished by a system which should introduce and establish a clear and conclusive distinction between the seamen of the two countries, which on all occasions would be implicitly respected; that if they should consent to make our commercial navy a floating asylum for all the British seamen who, tempted by higher wages, should quit their service for ours, the effect of such a concession upon their maritime strength, on which Great Britain depended, not only for her prosperity but for her safety, might be fatal; that on the most alarming emergency they might be deprived, to an extent impossible to calculate, of their only means of security; that our vessels might become receptacles for deserters to any amount, and when once at sea might set at defiance the just claims of the service to which such deserters belonged; that, even within the United States, it could not be expected that any plan for recovering British deserters could be efficacious; and that, moreover, the plan we proposed was inadequate in its range and object, inasmuch as it was merely prospective, confined wholly to deserters, and in no respect provided for the case of the vast body of British seamen _now_ employed in our trade to every part of the world."

To these representations, which had a strong basis in fact and reason, if once the British principle was conceded, the American negotiators replied in detail as best they could. In such detail, the weight of argument and of probability appears to the writer to rest with the British case; but there is no adequate reply to the final American assertion, which sums up the whole controversy, "that impressment upon the high seas by those to whom that service is necessarily confided must under any conceivable guards be frequently abused;" such abuse being the imprisonment without trial of American citizens, as "a pressed man," for an indefinite period. Lord Cochrane, a British naval officer of rare distinction, stated in the House of Commons a few years later that "the duration of the term of service in his Majesty's Navy is absolutely without limitation."[160]

The American envoys were prevented by their instructions from conceding this point, and from signing a treaty without some satisfactory arrangement. Meantime, impressed by the conciliatoriness of the British representatives, and doubtless in measure by the evident seriousness of the difficulty experienced by the British Government, they wrote home advising that the date for the Non-Importation Act going into operation, now close at hand, should be postponed; and, in accordance with a recommendation from the President, the measure was suspended by Congress, with a provision for further prolongation in the discretion of the Executive. On September 13 Fox died, an event which introduced further delays, esteemed not unreasonable by Monroe and Pinkney. Their next letter home, however, November 11,[161] while reporting the resumption of the negotiation, announced also its failure by a deadlock on this principal subject of impressment: "We have said everything that we could in support of our claim, that the flag should protect the crew, which we have contended was founded in unquestionable right.... This right was denied by the British commissioners, who asserted that of their Government to seize its subjects on board neutral vessels on the high seas, and also urged that the relinquishment of it at this time would go far to the overthrow of their naval power, on which the safety of the state essentially depended." In support of the abstract right was quoted the report from a law officer of the Crown, which "justified the pretension by stating that the King had a right, by his prerogative, to require the services of all his seafaring subjects against the enemy, and to seize them by force wherever found, not being within the territorial limits of another Power; that as the high seas were extra-territorial, the merchant vessels of other Powers navigating on them were not admitted to possess such a jurisdiction as to protect British subjects from the exercise of the King's prerogative over them."

This was a final and absolute rejection of Madison's doctrine, that merchant vessels on the high seas were under the jurisdiction only of their own country. Asserted right was arrayed directly and unequivocally against asserted right. Negotiation on that subject was closed, and to diplomacy was left no further resort, save arms, or submission to continued injury and insult. The British commissioners did indeed submit a project,[162] in place of that of the United States, rejected by their Government. By this it was provided that thereafter the captain of a cruiser who should impress an American citizen should be liable to heavy penalties, to be enacted by law; but as the preamble to this proposition read, "Whereas it is not lawful for a belligerent to impress or carry off, from on board a neutral, seafaring persons _who are not the subjects of the belligerent_," there was admitted implicitly the right to impress those who were such subjects, the precise point at issue. The Americans therefore pronounced it wholly inadmissible, and repeated that no project could be adopted "which did not allow our ships to protect their crews."

The provision made indispensable by the United States having thus failed of adoption, the question arose whether the negotiation should cease. The British expressed an earnest desire that it should not, and as a means thereto communicated the most positive assurances from their Government that "instructions have been given, and will be repeated and enforced, for the observance of the greatest caution in the impressing of British seamen; that the strictest care shall be taken to preserve the citizens of the United States from molestation or injury; and that prompt redress shall be afforded upon any representation of injury."[163] To this assurance the American commissioners attached more value as a safeguard for the future than past experience warranted; but in London they were able to feel, more accurately than an official in Washington, the extent and complexity of the British problem, both in actual fact and in public feeling. They knew, too, the anxious wish of the President for an accommodation on other matters; so they decided to proceed with their discussions, having first explicitly stated that they were acting on their own judgment.[164] Consequently, whatever instrument might result from their joint labors would be liable to rejection at home, because of the failure of the impressment demand.

The discussions thus renewed terminated in a treaty of amity, commerce, and navigation, signed by the four negotiators, December 31, 1806. Into the details of this instrument it is unnecessary to go, as it never became operative. Jefferson persisted in refusing approval to any formal convention which did not provide the required stipulation against impressment. He was dissatisfied also with particular details connected with the other arrangements. All these matters were set forth at great length in a letter[165] of May 20, 1807, from Mr. Madison to the American commissioners; in which they were instructed to reopen negotiations on the basis of the treaty submitted, endeavoring to effect the changes specified. The danger to Great Britain from American commercial restriction was fully expounded, as an argument to compel compliance with the demands; the whole concluding with the characteristic remark that, "as long as negotiation can be honorably protracted, it is a resource to be preferred, under existing circumstances, to the peremptory alternative of improper concessions or inevitable collisions." In other words, the United States Government did not mean to fight, and that was all Great Britain needed to know. That she would suffer from the closure of the American market was indisputable; but, being assured of transatlantic peace, there were other circumstances of high import, political as well as commercial, which rendered yielding more inexpedient to her than a commercial war.

At the end of March, 1807, within three months of the signature at London, the British Ministry fell, and the disciples of Pitt returned to power. Mr. Canning became Foreign Secretary. Circumstances were then changing rapidly on the continent of Europe, and by the time Madison's letter reached England a very serious event had modified also the relations of the United States to Great Britain. This was the attack upon the United States frigate "Chesapeake" by a British ship of war, upon the high seas, and the removal of four of her crew, claimed as deserters from the British Navy. Unofficial information of this transaction reached England July 25, just one day after Monroe and Pinkney had addressed to Canning a letter communicating their instructions to reopen negotiations, and stating the changes deemed desirable in the treaty submitted. The intervention of the "Chesapeake" affair, to a contingent adjustment of which all other matters had been postponed, delayed to October 22 the reply of the British Minister.[166] In this, after a preamble of "distinct protest against a practice, altogether unusual in the political transactions of states, by which the American Government assumes to itself the privilege of revising and altering agreements concluded and signed on its behalf by its agents duly authorized for that purpose," Canning thus announced the decision of the Cabinet: "The proposal of the President of the United States for proceeding to negotiate anew, upon the basis of a treaty already solemnly concluded and signed, is a proposal wholly inadmissible. And his Majesty has therefore no option, under the present circumstances of this transaction, but to acquiesce in the refusal of the President of the United States to ratify the treaty signed on December 31, 1806." The settlement of the "Chesapeake" business having already been transferred to Washington, by the appointment of a special British envoy, this rejection of further consideration of the treaty closed all matters pending between the two governments, except those appertaining to the usual duties of a legation, and Monroe's mission ended. A fortnight later he sailed for the United States. His place as regularly accredited Minister to the British Court was taken by Pinkney, through whom were conducted the subsequent important discussions, which arose from the marked extension given immediately afterwards by France and Great Britain to their several policies for the forcible restriction of neutral trade.

Those who have followed the course of the successive events traced in this chapter, and marked their accelerating momentum, will be prepared for the more extreme and startling occurrences which soon after ensued as a matter of inevitable development. They will be able also to understand how naturally the phrase, "Free Trade and Sailors' Rights," grew out of these various transactions, as the expression of the demands and grievances which finally drove the United States into hostilities; and will comprehend in what sense these terms were used, and what the wrongs against which they severally protested. "Free Trade" had no relation of opposition to a system of protection to home industries, an idea hardly as yet formulated to consciousness, except by a few advanced economists. It meant the trade of a nation carried on according to its own free will, relieved from fetters forcibly imposed by a foreign yoke, in which, under the circumstances of the time, the resurrection of colonial bondage was fairly to be discerned. "Sailors' Rights" expressed not only the right of the American seaman to personal liberty of action,--in theory not contested, but in practice continually violated by the British,--but the right of all seamen under the American flag to its protection in the voluntary engagements which they were then fulfilling. It voiced the sufferings of the individual; the personal side of an injury, the reverse of which was the disgrace of the nation responsible for his security.

It was afterwards charged against the administrations of Jefferson and Madison, under which these events ran their course to their culmination in war, that impressment was not a cause of the break between the two countries, but was adduced subsequently to swell the array of injuries, in which the later Orders in Council were the real determinative factor. The drift of this argument was, that the Repeal of the Orders, made almost simultaneously with the American Declaration of War, and known in the United States two months later, should have terminated hostilities. The British Government, in an elaborate vindication of its general course, published in January, 1813, stated that, "in a manifesto, accompanying their declaration of hostilities, in addition to the former complaints against the Orders in Council, a long list of grievances was brought forward; but none of them such as were ever before alleged by the American Government to be grounds for war." In America itself similar allegations were made by the party in opposition. The Maryland House of Delegates, in January, 1814, adopted a memorial, in which it was said that "The claim of impressment, which has been so much exaggerated, but which was never deemed of itself a substantive cause of war, has been heretofore considered susceptible of satisfactory arrangement in the judgment of both the commissioners, who were selected by the President then in office to conduct the negotiation with the English ministry in the year 1806."[167] The words of the commissioners in their official letters of November 11, 1806,[168] and April 22, 1807,[169] certainly sustain this statement as to their opinion, which was again deliberately affirmed by Monroe in a justificatory review of their course, addressed to Madison in February, 1808,[170] after his return. Gaston, speaking in the House in February, 1814, said: "Sir, the question of seamen was not a cause of this war. More than five years had passed over since an arrangement on this question, perfectly satisfactory to our ministers, [Monroe and Pinkney] had been made with Great Britain; but it pleased not the President, and was rejected. Yet, during the whole period that afterwards elapsed until the declaration of war, no second effort was made to adjust this cause of controversy."[171]

Gaston here is slightly in error as to fact, for the attack upon the "Chesapeake" was made by the Government the occasion for again demanding an abandonment of the practice of impressment from American merchant ships; but, accepting the statements otherwise, nothing more could be required of the Administration, so far as words went, than its insistence upon this relinquishment as a _sine quâ non_ to any treaty. Its instructions to its ministers in 1806 had placed this demand first, not only in order, but in importance, coupling with it as indispensable only one other condition, the freedom of trade; the later and more extreme infringements of which were constituted by the Orders in Council of 1807. After protracted discussion, the American requirement as to impressment had been refused by Great Britain, deliberately, distinctly, and in the most positive manner; nor does it seem possible to concur with the opinion of our envoys that the stipulations offered by her representatives, while not sacrificing the British principle, did substantially and in practice secure the American demands. These could be satisfactorily covered only by the terms laid down by the Administration. Thereafter, any renewal of the subject must come from the other side; it was inconsistent with self-respect for the United States again to ask it, unless with arms in her hands. To make further advances in words would have been, not to negotiate, but to entreat. This, in substance, was the reply of the Government to its accusers at home, and it is irrefutable.

It is less easy--rather, it is impossible--to justify the Administration for refraining from adequate deeds, when the impotence of words had been fully and finally proved. In part, this was due to miscalculation, in itself difficult to pardon, from the somewhat sordid grounds and estimates of national feeling upon which it proceeded. The two successive presidents, and the party behind them, were satisfied that Great Britain, though standing avowedly and evidently upon grounds considered by her essential to national honor and national safety, could be compelled to yield by the menace of commercial embarrassment. That there was lacking in them the elevated instinct, which could recognize that they were in collision with something greater than a question of pecuniary profits, is in itself a condemnation; and their statesmanship was at fault in not appreciating that the enslaved conditions of the European continent had justly aroused in Great Britain an exaltation of spirit, which was prepared to undergo every extreme, in resistance to a like subjection, till exhaustion itself should cause her weapons to drop from her hands.

The resentment of the United States Government for the injuries done its people was righteous and proper. It was open to it to bear them under adequate protest, sympathizing with the evident embarrassments of the old cradle of the race; or, on the other hand, to do as she was doing, strain every nerve to compel the cessation of outrage. The Administration preferred to persist in its military and naval economies, putting forth but one-half of its power, by measures of mere commercial restriction. These impoverished its own people, and divided national sentiment, but proved incapable within reasonable time to reduce the resolution of the opponent. That that finally gave way when war was clearly imminent proves, not that commercial restriction alone was sufficient, but that coupled with military readiness it would have attained its end more surely, and sooner; consequently with less of national suffering, and no national ignominy.

Entire conviction of the justice and urgency of the American contentions, especially in the matter of impressment, and only to a less degree in that of the regulation of trade by foreign force, as impeaching national independence, is not enough to induce admiration for the course of American statesmanship at this time. The acuteness and technical accuracy of Madison's voluminous arguments make but more impressive the narrowness of outlook, which saw only the American point of view, and recognized only the force of legal precedent, at a time when the foundations of the civilized world were heaving. American interests doubtless were his sole concern; but what was practicable and necessary to support those interests depended upon a wide consideration and just appreciation of external conditions. That laws are silent amid the clash of arms, seems in his apprehension transformed to the conviction that at no time are they more noisy and compulsive. Upon this political obtuseness there fell a kind of poetical retribution, which gradually worked the Administration round to the position of substantially supporting Napoleon, when putting forth all his power to oppress the liberties of Spain, and of embarrassing Great Britain at the time when a people in insurrection against perfidy and outrage found in her their sole support. During these eventful five years, the history of which we are yet to trace, the bearing of successive British ministries towards the United States was usually uncompromising, often arrogant, sometimes insolent, hard even now to read with composure; but in the imminent danger of their country, during a period of complicated emergencies, they held, with cool heads, and with steady hands on the helm, a course taken in full understanding of world conditions, and with a substantially just forecast of the future. Among their presuppositions, in the period next to be treated, was that America might argue and threaten, but would not fight. There was here no miscalculation, for she did not fight till too late, and she fought wholly unprepared.

FOOTNOTES:

[108] Wheaton's International Law, p. 753.

[109] American State Papers, Foreign Relations, vol. i. p. 476.

[110] American State Papers, Foreign Relations, vol. i. pp. 472-474.

[111] Ibid., p. 503.

[112] American State Papers, Foreign Relations, vol. i. p. 522.

[113] American State Papers, Foreign Relations, vol. ii. p. 491.

[114] American State Papers, Foreign Relations, vol. iii. p. 263.

[115] American State Papers, Foreign Relations, vol. iii. p. 265.

[116] Ibid., p. 266.

[117] Ibid., p. 175.

[118] American State Papers, Foreign Relations, vol. iii. p. 98.

[119] History of the United States, by Henry Adams, vol. ii. p. 423.

[120] American State Papers, Foreign Relations, vol. ii. p. 491.

[121] Ibid., vol. iii. p. 145.

[122] American State Papers, Foreign Relations, vol. iii. p. 114.

[123] Monroe to Madison, April 28, 1806. American State Papers, vol. iii. p. 117.

[124] American State Papers, Foreign Relations, vol. iii. p. 111.

[125] American State Papers, Foreign Relations, vol. iii. pp. 109, 107.

[126] Ibid., p. 118.

[127] For the text of this measure, see American State Papers, Foreign Relations, vol. iii. p. 267.

[128] American State Papers, Foreign Relations, vol. iii. p. 443.

[129] American State Papers, Foreign Relations, vol. iii. p. 446.

[130] American State Papers, Foreign Relations, vol. iii. p. 195. Author's italics.

[131] Ibid., p. 371.

[132] See, particularly, Foster to Monroe, July 3, 1811. American State Papers, Foreign Relations, vol. iii. p. 436.

[133] Ibid., pp. 428, 439.

[134] The Instructions to Monroe and Pinkney are found in American State Papers, Foreign Relations, vol. iii. p. 120.

[135] American State Papers, Foreign Relations, vol. iii. pp. 200, 201.

[136] American State Papers, Foreign Relations, vol. ii. p. 148.

[137] Correspondence of Thomas Barclay, edited by George L. Rives, New York, 1894. For instances, see Index, Impressment.

[138] Works of John Adams, vol. viii. p. 456.

[139] Ante, p. 6.

[140] American State Papers, Foreign Relations, vol. i. pp. 123-124.

[141] Jefferson's Works, Letter to T. Pinckney, Minister to Great Britain, June 11, 1792.

[142] American State Papers, Foreign Relations, vol. ii. pp. 145-150.

[143] See, for example, Naval Chronicle, vol. xxvi. pp. 215-221, 306-309.

[144] Life and Correspondence of Rufus King, vol. iii. p. 115.

[145] American State Papers, Foreign Relations, vol. ii. p. 150.

[146] Ibid., p. 493.

[147] Niles' Register, vol. v. p. 343.

[148] Correspondence, p. 210.

[149] Correspondence, p. 219.

[150] Ante, p. 7.

[151] Niles' Register, vol. v. Supplement, p. 105.

[152] King to Thomas Erskine. Life of King, vol. iii. p. 401.

[153] Russell to the Secretary of State, Sept. 17, 1812. American State Papers, Foreign Relations, vol. iii. p. 593.

[154] American State Papers, Foreign Relations, vol. ii. pp. 427, 473.

[155] Ibid., vol. iii. p. 90.

[156] Ibid., p. 98.

[157] American State Papers, Foreign Relations, vol. ii. pp. 776-798.

[158] American State Papers, Foreign Relations, vol. iii. p. 131. Author's italics.

[159] For the American report of these interviews, see Ibid., pp. 133-135.

[160] Cobbett's Parliamentary Debates, vol. xxvi. p. 1103.

[161] American State Papers, Foreign Relations, vol. iii. pp. 137-140.

[162] American State Papers, Foreign Relations, vol. iii. p. 140.

[163] American State Papers, Foreign Relations, vol. iii. p. 140.

[164] Ibid., p. 139.

[165] Ibid., pp. 166-173.

[166] American State Papers, Foreign Relations, vol. iii. p. 198.

[167] Niles' Register, vol. v. p. 377.

[168] American State Papers, Foreign Relations, vol. iii. p. 139.

[169] Ibid., p. 161.

[170] Ibid., p. 173.

[171] Niles' Register, vol. v. Supplement, p. 102.