Chapter 14

FROM THE ORDERS IN COUNCIL TO WAR

1807-1812

When the treaty of December 31, 1806, was about to be signed, the British negotiators delivered to the Americans a paper, of the general character of which they had been forewarned, but which in precise terms then first came before them. Its origin was due to a pronouncement of the French Emperor, historically known as the Decree of Berlin, which was dated November 21, while the negotiations were in progress, but had become fully known only when they had reached a very advanced stage. The pretensions and policy set forth in the Decree were considered by the British Government to violate the rights of neutrals, with a specific and far-reaching purpose of thereby injuring Great Britain. It was claimed that acquiescence in such violations by the neutral, or submission to them, would be a concurrence in the hostile object of the enemy; in which case Great Britain might feel compelled to adopt measures retaliatory against France, through the same medium of neutral navigation. In such steps she might be fettered, should the present treaty take effect. In final ratification, therefore, the British Government would be guided by the action of the United States upon the Berlin Decree. Unless the Emperor abandoned his policy, or "the United States by its conduct or assurances will have given security to his Majesty that it will not submit to such innovations on the established system of maritime law, ... his Majesty will not consider himself bound by the present signature of his commissioners to ratify the treaty, or precluded from adopting such measures as may seem necessary for counteracting the designs of his enemy."[172] The American representatives transmitted this paper to Washington, with the simple observation that "we do not consider ourselves a party to it, or as having given it in any the slightest degree our sanction."[173]

The Berlin Decree was remarkable not only in scope and spirit, but in form. "It had excited in us apprehensions," wrote Madison to the United States minister in Paris, "which were repressed only by the inarticulate import of its articles, and the presumption that it would be executed in a sense not inconsistent with the respect due to the treaty between France and the United States." It bore, in fact, the impress of its author's mind, which, however replete with knowledge concerning conventional international law, defined in accordance with the momentary and often hasty impulses of his own will, and consequently often also with the obscurity attendant upon ill-digested ideas. The preamble recited various practices of Great Britain as subversive of international right; most of which were not so, but in accordance with long-standing usage and general prescription. The methods of blockade instituted by her were more exceptionable, and were given prominence, with evident reference to the Order of May 16, declaring the blockade of a long coast-line. It being evident, so ran the Emperor's reasoning, that the object of this abuse of blockade was to interrupt neutral commerce in favor of British, it followed that "whoever deals on the Continent in English merchandise favors that design, and becomes an accomplice." He therefore decreed, as a measure of just retaliation, "that the British Islands were thenceforward in a state of blockade; that all correspondence and commerce with them was prohibited; that trade in English merchandise was forbidden; and that all merchandise belonging to England, or" (even if neutral property) "proceeding from its manufactories and colonies, is lawful prize." No vessel coming directly from British dominions should be received in any port to which the Decree was applicable. The scope of its intended application was shown in the concluding command, that it should be communicated "to the Kings of Spain, of Naples, of Holland, of Etruria, and to our allies, whose subjects, like ours, are the victims of the injustice and barbarism of the English maritime laws."[174]

The phrasing of the edict was ambiguous, as Madison indicated. Notably, while neutral vessels having on board merchandise neutral in property, but British in origin, were to be seized when voluntarily entering a French port, it was not clear whether they were for the same reason to be arrested when found on the high seas; and there was equal failure to specify whether the proclaimed blockade authorized the capture of neutrals merely because bound to the British Isles, as was lawful if destined to a seaport effectively blockaded. Again, some of the proposed measures, such as refusal of admission to vessels or merchandise coming to French ports from British, were matters of purely local concern and municipal regulation; whereas the seizure of neutral property, because of English manufacture, was at least of doubtful right, if exercised within municipal limits, and certainly unlawful, if effected on the high seas. Whether such application was intended could not certainly be inferred from the text. The genius of the measure, as a whole, its inspiring motive and purpose, was revealed in the closing words of the preamble: "This decree shall be considered as the fundamental law of the Empire, until England has acknowledged that the rights of war are the same an land and on sea; that it [war] cannot be extended to any private property whatever; nor to persons who are not military; and until the right of blockade be restrained to fortified places, actually invested by competent forces." These words struck directly at measures of war resting upon long-standing usage, in which the strength of a maritime state such as Great Britain was vitally implicated.

The claim for private property possesses particular interest; for it involves a play upon words to the confusion of ideas, which from that time to this has vitiated the arguments upon which have been based a prominent feature of American policy. Private property at a standstill is one thing. It is the unproductive money in a stocking, hid in a closet. Property belonging to private individuals, but embarked in that process of transportation and exchange which we call commerce, is like money in circulation. It is the life-blood of national prosperity, upon which war depends; and as such is national in its employment, and only in ownership private. To stop such circulation is to sap national prosperity; and to sap prosperity, upon which war depends for its energy, is a measure as truly military as is killing the men whose arms maintain war in the field. Prohibition of commerce is enforced at will where an enemy's army holds a territory; if permitted, it is because it inures to the benefit of the conqueror, or at least from its restricted scope does not injure him. It will not be doubted that, should a prohibition on shore be disregarded, the offending property would be seized in punishment. The sea is the great scene of commerce. The property transported back and forth, circulating from state to state in exchanges, is one of the greatest factors in national wealth. The maritime nations have been, and are, the wealthy nations. To prohibit such commerce to an enemy is, and historically has been, a tremendous blow to his fighting power; never more conspicuously so than in the Napoleonic wars. But prohibition is a vain show, in war as it is in civil government, if not enforced by penalties; and the natural penalty against offending property is fine, extending even to confiscation in extreme cases. The seizure of enemy's merchant ships and goods, for violating the prohibition against their engaging in commerce, is what is commonly called the seizure of private property. Under the methods of the last two centuries, it has been in administration a process as regular, legally, as is libelling a ship for an action in damages; nor does it differ from it in principle. The point at issue really is not, "Is the property private?" but, "Is the method conducive to the purposes of war?" Property strictly private, on board ship, but not in process of commercial exchange, is for this reason never touched; and to do so is considered as disgraceful as a common theft.

Napoleon, as a ruler, was always poverty-stricken. For that reason he levied heavy contributions on conquered states, which it is needless to say were paid by private taxpayers; and for the same reason, by calling French ships and French goods "private property," he would compel for them the freedom of the sea, which the maritime preponderance of Great Britain denied them. He needed the revenue that commerce would bring in. So as to blockades. In denying the right to capture under a nominal blockade, unsupported by an effective force, he took the ground which the common-sense of nations had long before embodied in the common consent called international law. But he went farther. Blockade is very inconvenient to the blockaded, which was the rôle played by France. Along with the claim for "private property," he formulated the proposition that the right of blockade is restrained to fortified places; to which was afterwards added the corollary that the place must be invested by land as well as by sea. It is to be noticed that here also American policy showed a disposition to go astray, by denying the legitimacy of a purely commercial blockade; a tendency natural enough at that passing moment, when, as a weak nation, it was desired to restrict the rights of belligerents, but which in its results on the subsequent history of the country would have been ruinous. John Marshall, one of the greatest names in American jurisprudence, when Secretary of State in 1800, wrote to the minister in London:

On principle it might well be questioned whether this rule [of blockade] can be applied to a place not completely invested, by land as well as by sea. If we examine the reasoning on which is founded the right to intercept and confiscate supplies designed for a blockaded town, it will be difficult to resist the conviction that its extension to towns invested by sea only is an unjustifiable encroachment on the rights of neutrals. But it is not of this departure from principle (a departure which has received some sanction from practice) that we mean to complain.[175]

In 1810, the then Secretary of State enclosed to the American minister in London the letter from which this extract is taken, among other proofs of the positions maintained by the United States on the subject of blockade. The particular claim cited was not directly indorsed; but as its mention was unnecessary to the matter immediately in hand, we may safely regard its retention as indicative of the ideal of the Secretary, and of the President, Mr. Madison. In consequence, we find the minister, William Pinkney, in his letter of January 14, 1811, adducing Marshall's view to the British Foreign Secretary:

It is by no means clear that it may not fairly be contended, on principle and early usage, that a maritime blockade is incomplete, with regard to States at peace,[176] unless the place which it would affect is invested by land, as well as by sea. The United States, however, have called for the recognition of no such rule. They appear to have contented themselves, etc.[177]

The error into which both these eminent statesmen fell is military in character, and proceeds from the same source as the agitation in favor of exempting so-called private property from capture. Both spring from the failure to recognize a function of the sea, vital to the maintenance of war by states which depend upon maritime commerce. To forbid the free use of the seas to enemy's merchant ships and material of commerce, differs in no wise in principle from shutting his ports to neutral vessels, as well as to his own, by blockade. Both are aimed at the enemy's sources of supply, at his communications; and the penalty inflicted by the laws of war in both cases is the same,--forfeiture of the offending property. With clear recognition of this military principle involved, and of the importance of sustaining it by Great Britain, British high officials repeatedly declared that the Berlin Decree was to be regarded, not chiefly in its methods, but in its object, or principle, which was to deprive Great Britain of her principal weapon. This purpose stood avowed in the words, "this decree shall be considered the fundamental law of the Empire until England has acknowledged," etc. British statesmen correctly paraphrased this, "has renounced the established foundations, admitted by all civilized nations, of her maritime rights and interests, upon which depend the most valuable rights and interests of the nation."[178] The British authorities understood that, by relinquishing these rights, they would abandon in great measure the control of the sea, so far as useful to war. The United States have received their lesson in history. If the principle contended for by their representatives, Marshall and Pinkney, had been established as international law before 1861, there could have been no blockade of the Southern coast in the Civil War. The cotton of the Confederacy, innocent "private property," could have gone freely; the returns from it would have entered unimpeded; commerce, the source of national wealth, would have flourished in full vigor; supplies, except contraband, would have flowed unmolested; and all this at the price merely of killing some hundred thousands more men, with proportionate expenditure of money, in the effort to maintain the Union, which would probably have failed, to the immeasurable loss of both sections.

The British Government took some time to analyze the "inarticulate import" of the Berlin Decree. Hence, in the paper presented to Monroe and Pinkney, stress was laid upon the methods only, ignoring the object of compelling Great Britain to surrender her maritime rights. In the methods, however, instinct divined the true character of the plotted evil. There was to be formed, under military pressure, a vast political combination of states pledged to exclude British commerce from the markets of the Continent; a design which in execution received the name of the Continental System. The Decree being issued after the battle of Jena, upon the eve of the evident complete subjugation of Prussia, following that of Austria the year before, there was room to fear that the predominance of Napoleon on the Continent would compel in Europe universal compliance with these measures of exclusion. It so proved, in fact, in the course of 1807, leading to a commercial warfare of extraordinary rigor, the effects of which upon Europe have been discussed by the author in a previous work.[179] Its influence upon the United States is now to be considered; for it was a prominent factor in the causes of the War of 1812.

Although in a military sense weak to debility, and politically not welded as yet into a nation, strong in a common spirit and accepted traditions, the United States was already in two respects a force to be considered. She possessed an extensive shipping, second in tonnage only to that of the British Islands, to which it was a dangerous rival in maintaining the commercial intercourse of Europe; while her population and purchasing power were so increased as to constitute her a very valuable market, manufacturing for which was chiefly in the hands of Great Britain. It became, therefore, an object with Napoleon, in prosecution of the design of the Berlin Decree, to draw the United States into co-operation with the European continental system, by shutting her ports to Great Britain; while the latter, confronted by this double danger, sought to impose upon neutral navigation--almost wholly American--such curtailment as should punish the Emperor and his tributaries for their measures of exclusion, and also neutralize the effect of these by forcing the British Islands into the chain of communication by which Europe in general was supplied. To retaliate the Berlin Decree upon the enemy, and by the same means to nourish the trade of Great Britain, was the avowed twofold object. The shipping of the United States found itself between hammer and anvil, crushed by these opposing policies. Napoleon banned it from continental harbors, if coming from England or freighted with English goods; Great Britain forbade it going to a continental port, unless it had first touched at one of hers; and both inflicted penalties of confiscation, when able to lay hands on a vessel which had violated their respective commands.

The lack of precision in the terms of the Berlin Decree exposed it from the first to much latitude of interpretation; and the Emperor remaining absent from France for eight months after its promulgation, preoccupied with an arduous warfare in Eastern Europe, the construction of the edict by the authorities in Paris made little alteration in existing conditions. Nevertheless, the impulse to retaliate prevailed; and the British ministry with which Monroe and Pinkney had negotiated, though comparatively liberal in political complexion, would not wait for more precise knowledge. The occasion was seized with a precipitancy which lent color to Napoleon's assertion, that the leading aim was to favor their own trade by depressing that of others. This had already been acknowledged as the motive for interrupting American traffic in West India produce. Now again, one week only after stating to Monroe and Pinkney that they "could not believe that the enemy will ever seriously attempt to enforce such a system," and without waiting to ascertain whether neutral nations, the United States in particular, would, "contrary to all expectations, acquiesce in such usurpations,"[180] the Government on January 7, 1807, with no information as to the practical effect given to the Decree in operation, issued an Order in Council, which struck Americans directly and chiefly. Neutrals were forbidden to sail from one port to another, both of which were so far under the control of France or her allies that British vessels might not freely trade thereat. This was aimed immediately at trade along the coast of Europe, but it included, of course, the voyages from a hostile colony to a hostile European port already interdicted by British rulings, of which the new Order was simply an extension. It fell with particular severity on Americans, accustomed to go from port to port, not carrying on local coasting, but seeking markets for their outward cargoes, or making up a homeward lading. It is true that the Cabinet by which the Order was issued did not intend to forbid this particular procedure; but the wording naturally implied such prohibition, and was so construed by Madison,[181] who communicated his understanding to the British minister at Washington. Before this letter could reach London, the ministry changed, and the new Government refrained from correcting the misapprehension. For this it was taken to task in Parliament, by Lords Holland and Grenville.[182]

Monroe had once written to the British Foreign Secretary that "it cannot well be conceived how it should be lawful to carry on commerce from one port to another of the parent country, and not from its colonies to the mother country."[183] This well meant argument, in favor of opening the colonial trade, gave to the new step of the British Cabinet a somewhat gratuitous indorsement of logical consistency. A consciousness of this may have underlain the remarkable terms in which this grievous restriction was imparted to the United States Government, as evincing the singular indulgence of Great Britain. Her minister in Washington, in conveying the Order to the State Department, wrote: "His Majesty, with that forbearance and moderation which have at all times distinguished his conduct, has determined for the present to confine himself to exercising his decided naval superiority in such a manner only as is authorized by the acknowledged principles of the laws of nations, and has issued an Order for preventing all commerce from port to port of his enemies; comprehending in this Order not only the ports of France, but those of other nations, as, either in alliance with France, or subject to her dominion, have, by measures of active offence or by the exclusion of British ships, taken part in the present war."[184] These words characterized the measure as strictly retaliatory. They implied that the extra-legal action of the enemy would warrant extra-legal action by Great Britain, but asserted expressly that the present step was sanctioned by existing law,--"in such a manner only as is authorized by the acknowledged principles of the law of nations." The prohibition of coasting trade could be brought under the law of nations only by invoking the Rule of 1756, forbidding neutrals to undertake for a state at war employment denied to them in peace. Of this, coasting was a precise instance; but to call the Rule an acknowledged principle of the law of nations was an assumption peculiarly calculated to irritate Madison, who had expended reams in refutation. He penned two careful replies, logical, incisive, and showing the profound knowledge of the subject which distinguished him; but in a time of political convulsion he contended in vain against men who wore swords and thought their country's existence imperilled.

The United States authorities argued by text and precedent. To the end they persisted in shutting their eyes to the important fact, recognized intuitively by Great Britain, that the Berlin Decree was no isolated measure, to be discussed on its separate merits, but an incident in an unprecedented political combination, already sufficiently defined in tendency, which overturned the traditional system of Europe. It destroyed the checks inherent in the balance of power, concentrating the whole in the hands of Napoleon, to whom there remained on the Continent only one valid counterweight, the Emperor of Russia, whom he soon after contrived to lead into his scheme of policy. The balance of power was thus reduced to the opposing scales of Great Britain and France, and for five years so remained. The Continental System, embracing all the rest of Europe, was arrayed against Great Britain, and might well look to destroy her, if it could command the support of the United States. Founded upon armed power, it proposed by continuous exertion of the same means to undermine the bases of British prosperity, and so to subvert the British Empire. The enterprise was distinctly military, and could be met only by measures of a similar character, to which existing international law was unequal. The corner-stone was the military power of Napoleon, which, by nullifying the independence of the continental states, compelled them to adopt the methods of the Berlin Decree contrary to their will, and contrary to the wishes, the interests, and the bare well-being of their populations. "You will see," wrote an observant American representative abroad, "that Napoleon stalks at a gigantic stride among the pygmy monarchs of Europe, and bends them to his policy. It is even an equal chance if Russia, after all her blustering, does not accede to his demands without striking a blow."[185] To meet the danger Great Britain opposed a maritime dominion, equally exclusive, equally founded on force, and exercised in equally arbitrary fashion over the populations of the sea.

At the end of March, 1807, the British Cabinet with which Monroe and Pinkney had negotiated went out of office. Their successors came in prepared for extreme action in consequence of the Berlin Decree; but their hand was for the moment stayed, because its enforcement remained in abeyance, owing to the Emperor's continued absence in the field. Towards the claims of the United States their attitude was likely to be uncompromising; and the Secretary for Foreign Affairs, Canning, to whom fell the expression of the Government's views and purposes, possessed an adroitness in fastening upon minor weaknesses in a case, and postponing to such the consideration of the important point at issue, which, coupled with a peremptoriness of tone often bordering on insolence, effected nothing towards conciliating a people believed to be both unready and unwilling to fight. The American envoys, at their first interview, in April, met him with the proposition of their Government to reopen negotiations on the basis of the treaty of December 31. Learning from them that the treaty would not be ratified without a satisfactory arrangement concerning impressment, Canning asked what relations would then obtain between the two nations. The reply was that the United States Government wished them placed informally on the most friendly footing; that is, that an understanding should be reached as to practical action to be expected on either side, without concessions of principle.[186] As final instructions from Washington were yet to come, it was agreed that the matter should be postponed. When they arrived, on July 16, the envoys drew up a letter, submitting the various changes desired; but conveying also the fixed determination of the President "to decline any arrangement, formal or informal, which does not comprise a provision against impressments from American vessels on the high seas, and which would, notwithstanding, be a bar to legislative measures by Congress for controlling that species of aggression."[187]

This letter was dated July 24, but by the time it could be delivered news arrived which threw into the background all matters of negotiation and illustrated with what respect British naval officers regarded "the instructions, repeated and enforced, for the observance of the greatest caution in impressing British seamen."[188] It is probable, indeed, that the change of ministry, and the well-understood tone of the new-comers, had modified the influence of these restraining orders; and Canning evidently felt that such an inference was natural, for Monroe reported his noticeable desire "to satisfy me that no new orders had been issued by the present ministry to the commandant of the British squadron at Halifax," who was primarily responsible for the lamentable occurrence which here traversed the course of negotiation. It had been believed, and doubtless correctly, that some deserters from British ships of war had found their way into the naval service of the United States. In June, 1807, the American frigate "Chesapeake," bearing the broad pendant of Commodore James Barron, had been fitting for sea in Hampton Roads. At this time two French ships of war were lying off Annapolis, a hundred miles up Chesapeake Bay; and, to prevent their getting to sea, a small British squadron had been assembled at Lynnhaven Bay, just within Cape Henry, a dozen miles below the "Chesapeake's" anchorage. They were thus, as Jefferson said, enjoying the hospitality of the United States. On June 22 the American frigate got under way for sea, and as she stood down, one of the British, the "Leopard" of fifty guns, also made sail, going out ahead of her. Shortly after noon the "Chesapeake" passed the Capes. When about ten miles outside, a little after three o'clock, the "Leopard" approached, and hailed that she had a despatch for Commodore Barron. This was brought on board by a lieutenant, and proved to be a letter from the captain of the "Leopard," enclosing an order from Vice-Admiral Berkeley, in charge of the Halifax station, "requiring and directing the captains and commanders of his Majesty's vessels under my command, in case of meeting the American frigate, the 'Chesapeake,' at sea, without the limits of the United States, to show her captain this order, and to require to search his ship for deserters from certain British ships," specified by name. Upon Barron's refusal, the "Leopard" fired into the "Chesapeake," killed or wounded twenty-one men, and reduced her to submission. The order for search was then enforced. Four of the American crew, considered to be British deserters, were taken away. Of these, one was hanged; one died; and the other two, after prolonged disputation, were returned five years later to the deck of the "Chesapeake," in formal reparation.

Word of this transaction reached the British Government before it did Monroe, who was still sole American minister for all matters except the special mission. Canning at once wrote him a letter of regret, and spontaneously promised "prompt and effectual reparation," if upon receipt of full information British officers should prove culpable. Four days later, July 29, Monroe and Canning met in pursuance of a previous appointment, the object of which had been to discuss complaints against the conduct of British ships of war on the coast of the United States. The "Chesapeake" business naturally now overshadowed all others. Monroe maintained that, on principle, a ship of war could not be entered to search for deserters, or for any purpose, without violating the sovereignty of her nation. Canning was very guarded; no admission of principle could then be obtained from him; but he gave Monroe to understand that, in whatever light the action of the British officer should be viewed by his Government, the point whether the men seized were British subjects or American citizens would be of consideration, in the question of restoring them, now that they were in British hands. Monroe, in accordance with the position of his Government on the subject of impressment, replied that the determining consideration was not the nationality of the men, but of the ship, the flag of which had been insulted.

The conference ended with an understanding that Monroe would send in a note embodying his position and claims. This he did the same day;[189] but his statements were grounded upon newspaper accounts, as the British Government had not yet published Berkeley's official report. He would not await the positive information that must soon be given out, but applied strong language to acts not yet precisely ascertained; and he mingled with the "Chesapeake" affair other very real, but different and minor, subjects of complaint, seemingly with a view to cumulative effect. He thus made the mistake of encumbering with extraneous or needless details a subject which required separate, undivided, and lucid insistence; while Canning found an opportunity, particularly congenial to his temperament, to escape under a cloud of dignified words from the simple admission of wrong, and promise of reparation, which otherwise he would have had to face. He could assume a tone of haughty rebuke, where only that of apology should have been left open. His reply ran thus:

I have the honor to acknowledge your official note of the 29th ultimo, which I have lost no time in laying before the King.

As _the statement_ of the transaction to which this note refers is not brought forward either by the authority of the Government of the United States, _or with any precise knowledge of the facts on which it is founded_, it might have been sufficient for me to express to you his Majesty's readiness to take the whole of the circumstances of the case, _when fully disclosed_, into his consideration, and to make reparation for any _alleged injury_ to the sovereignty of the United States, whenever it should be _clearly shown_ that such injury has been _actually sustained_, and that such reparation is _really due_.

Of the existence of such a disposition on the part of the British Government, you, Sir, cannot be ignorant; I have already assured you of it, though in an unofficial form, by the letter which I addressed you on the first receipt of the intelligence of this unfortunate transaction; and I may, perhaps, be permitted to express my surprise, after such an assurance, at the tone of that representation which I have just had the honor to receive from you.

But the earnest desire of his Majesty to evince, in the most satisfactory manner, the principles of justice and moderation by which he is uniformly actuated, has not permitted him to hesitate in commanding me to assure you, that his Majesty neither does, nor has at any time maintained the pretension of a right to search ships of war, in the national service of any State, for deserters.

_If_, therefore, _the statement in your note should prove to be correct_, and to contain all the circumstances of the case, upon which the complaint is intended to be made, and it shall appear that the action of his Majesty's officers rested on no other grounds than the simple and unqualified assertion of the pretension above referred to, his Majesty has no difficulty in disavowing the act, and will have no difficulty in manifesting his displeasure at the conduct of his officers.

With respect to the other causes of complaint, (whatever they may be,) which are hinted at in your note, I perfectly agree with you, in the sentiment which you express, as to the propriety of not involving them in a question, which of itself is of sufficient importance to claim a separate and most serious consideration.

_I have only to lament that the same sentiment did not induce you to abstain from alluding to these subjects_, on an occasion which you were yourself of opinion was not favorable for pursuing the discussion of them.[190]

I have the honor to be, with great consideration, your most obedient, humble servant

GEORGE CANNING.

JAMES MONROE, ESQ. &C.

While the right of the occasion was wholly with the American nation, the honors of the discussion, the weight of the first broadside, rested so far with the British Secretary; the more so that Monroe, by his manner of adducing his "other causes of complaint," admitted their irrelevancy and yet characterized them irritatingly to his correspondent. "I might state other examples of great indignity and outrage, many of which are of recent date, to which the United States have been exposed off their own coast, and even within several of their harbors, from the British squadron; but it is improper to mingle them with the present more serious causes of complaint." This invited Canning's retort,--You do mingle them, in the same sentence in which you admit the impropriety. And why, he shrewdly insinuated, precipitate action ahead of knowledge, when the facts must soon be known? The unspoken reason is evident. Because a government, which by its own fault is weak, will try with big words to atone to the public opinion of its people for that which it cannot, or will not, effect in deeds. Bluster, whether measured or intemperate in terms, is bluster still, as long as it means only talk, not act.

Monroe comforted himself that, though Canning's note was "harsh," he had obtained the "concession of the point desired."[191] he had in fact obtained less than would probably have resulted from a policy of which the premises were assured, and the demands rigorously limited to the particular offence. Canning's note set the key for the subsequent British correspondence, and dictated the methods by which he persistently evaded an amends spontaneously promised under the first emotions produced by an odious aggression. He continued to offer it; but under conditions impossible of acceptance, and as discreditable to the party at fault as they were humiliating to the one offended. In themselves, the first notes exchanged between Monroe and Canning are trivial, a revelation chiefly of individual characteristics. Their interest lies in the exemplification of the general course of the American administration, imposed by its years of temporizing, of money-getting, and of military parsimony. President Jefferson in America met the occasion precisely as did Monroe in London, with the same result of a sharp correspondence, abounding in strong language, but affording Canning further opportunity to confuse issues and escape from reparations, which, however just and wise, were distasteful. It was a Pyrrhic victory for the British minister, destroying the last chance of conciliating American acquiescence in a line of action forced upon Great Britain by Napoleon; but as a mere question of dialectics he had scored a success.

When the news of the "Chesapeake" outrage was received in Washington, Jefferson issued a proclamation, dated July 2, 1807, suited chiefly for home consumption, as the phrase goes. He began with a recitation of the various wrongs and irritations, undeniable and extreme, which his long-suffering Administration had endured from British cruisers, and to which Monroe alluded in his note to Canning. Upon this followed an account of the "Chesapeake" incident, thus inextricably entangled with other circumstances differing from it in essential feature. Then, taking occasion by a transaction which, however reprehensible, was wholly external to the territory of the United States,--unless construed to extend to the Gulf Stream, according to one of Jefferson's day-dreams,--action was based upon the necessity of providing for the internal peace of the nation and the safety of its citizens, and consequently of refusing admission to British ships of war, as inconsistent with these objects. Therefore, "all armed vessels, bearing commissions under the Government of Great Britain, now within the harbors of the United States, are required immediately and without any delay to depart from the same; and entrance of all the said harbors and waters is interdicted to the said armed vessels, and to all others bearing commissions under the authority of the British Government." Vessels carrying despatches were excepted.

This procedure had the appearance of energy which momentarily satisfies a public demand that something shall be done. It also afforded Canning the peg on which to hang a grievance, and dexterously to prolong discussion until the matter became stale in public interest. By the irrelevancy of the punishment to the crime, and by the intrusion of secondary matters into the complaint, the "Chesapeake" issue, essentially clear, sharp, and impressive, became hopelessly confused with other considerations. Upon the proclamation followed a despatch from Madison to Monroe, July 6, which opened with the just words, "This enormity is not a subject for discussion," and then proceeded to discuss at length. Demand was to be made, most properly, for a formal disavowal, and for the restoration of the seamen to the ship. This could have been formulated in six lines, and had it stood alone could scarcely have been refused; but to it was attached indissolubly an extraneous requirement. "As a security for the future, an entire abolition of impressment from vessels[192] under the flag of the United States, if not already arranged, is also to make an _indispensable part of the satisfaction_."[193]

This made accommodation hopeless. Practically, it was an ultimatum; for recent notorious discussion had demonstrated that this the British Government would not yield, and as it differed essentially from the point at issue in the "Chesapeake" affair, there was no reason to expect a change of attitude in consequence of that. Great as was the wrong to a merchant vessel, it has not the status of a ship of war, which carries even into foreign ports a territorial immunity resembling that of an ambassador, representing peculiarly the sovereignty of its nation. Further, the men taken from the "Chesapeake" were not seized as liable to impressment, but arrested as deserters; the case was distinct. Finally, Great Britain's power to maintain her position on impressment had certainly not waned under the "Chesapeake" humiliation, and was not likely to succumb to peremptory language from Madison. No such demand should have been advanced, in such connection, by a self-respecting government, unless prepared to fight instantly upon refusal. The despatch indeed contains cautions and expressions indicating a sense of treading on dangerous ground; an apprehension of exciting hostile action, though no thought of taking it. The exclusion of armed vessels was justified "by the vexations and dangers to our peace, experienced from these visits." The reason, if correct, was adequate as a matter of policy under normal conditions; but it became inconsistent with self-respect when the national flag was insulted in the attack on the "Chesapeake." Entire composure, and forbearance from demonstrations bearing a trace of temper, alone comport with such a situation. To distinguish against British ships of war at such a moment, by refusing them only, and for the first time, admission into American harbors, was either a humiliating confession of impotence to maintain order within the national borders, or it justified Canning's contention that it was in retaliation for the "Leopard's" action. His further plea, that it must therefore be taken into the account in determining the reparation due, was pettifogging, reducing a question of insult and amends to one of debit and credit bookkeeping; but the American claim that the step was necessary to internal quiet was puerile, and its precipitancy carried the appearance of petulance.

Monroe received Madison's despatch August 30, and on September 3 had an interview with Canning. In it he specified the redress indicated by Madison. With this was coupled an intimation that a special mission to the United States ought to be constituted, to impart to the act of reparation "a solemnity which the extraordinary nature of the aggression particularly required." This assertion of the extraordinary nature of the occasion separated the incident from the impressment grievance, with which Madison sought to join it; but what is more instructively noticeable is the contrast between this extreme formality, represented as requisite, and the wholly informal, and as it proved unreal, withdrawal by Napoleon of his Decrees, which the Administration of Madison at a later day maintained to be sufficient for the satisfaction of Great Britain.

In this interview[194] Canning made full use of the advantages given him by his adversaries' method of presentation and action. "He said that by the President's proclamation, and the seizure and detention of some men who had landed on the coast to procure water, the Government seemed to have taken redress into its own hands." To Monroe's statement that "the suppression of the practice of impressment from merchant vessels had been made indispensable by the late aggression, for reasons which were sufficiently known to him," he retorted, "that the late aggression was an act different in all respects to the former practice; and ought not to be connected with it, as it showed a disposition to make a particular incident, in which Great Britain was in the wrong, instrumental to an accommodation in a case in which his Government held a different doctrine." The remark went to the root of the matter. This was what the Administration was trying to do. As Madison afterwards put it to Rose, the President was desirous "of converting a particular incident into an occasion for removing another and more extensive source of danger to the harmony of the two countries." This plausible rendering was not likely to recommend to a resolute nation such a method of obtaining surrender of a claimed right. The exclusion proclamation Monroe represented to be "a mere measure of police indispensable for the preservation of order within the United States." Canning declined to be shaken from his stand that it was an exhibition of partiality against Great Britain, the vessels of which alone were excluded, because of an outrage committed by one of them outside of American waters. The time at which the proclamation issued, and the incorporation in it of the "Chesapeake" incident, made this view at least colorable.

This interview also was followed by an exchange of notes. Monroe's of September 7, 1807, developed the American case and demand as already given. That of Canning, September 23, stated as follows the dilemma raised by the President's proclamation: Either it was an act of partiality between England and France, the warships of the latter being still admitted, or it was an act of retaliation for the "Chesapeake" outrage, and so of the nature of redress, self-obtained, it is true, but to be taken into account in estimating the reparation which the British Government "acknowledged to have been originally due."[195] To the request for explanation Monroe replied lamely, with a statement which can scarcely be taken as other than admitting the punitive character of the proclamation. "There certainly existed no desire of giving a preference;" but,--"_Before, this aggression_ it is well known that His Britannic Majesty's ships of war lay within the waters of the Chesapeake, and enjoyed all the advantages of the most favored nation; it cannot therefore be doubted that my Government will be ready _to restore them to the same situation as soon as it can be done consistently with the honor and rights of the United States_."[196]

In closing his letter of September 23, Canning asked Monroe whether he could not, consistently with his instructions, separate the question of impressment from that of the "Chesapeake." If not, as it was the fixed intention of his Government not to treat the two as connected, the negotiation would be transferred to Washington, and a special envoy sent. "But in order to avoid the inconvenience which has arisen from the mixed nature of your instructions, he will not be empowered to entertain, as connected with this subject, any proposition respecting the search of merchant vessels."[197] Monroe replied that his "instructions were explicit to consider the whole of this class of injuries as an entire subject."[198] To his inquiry as to the nature of the special mission, in particulars, Canning replied that it would be limited in the first instance to the question of the "Chesapeake." Whether it would have any further scope, he could not say.[199]

Mr. George Henry Rose was nominated for this mission, and sailed from England in November. Before his departure, the British Government took a further step, which in view of the existing circumstances, and of all that had preceded, emphasized beyond the possibility of withdrawal the firmness of its decision not to surrender the claim to impress British subjects from foreign merchant vessels. On October 16, 1807, a Royal Proclamation was issued, recalling all seafaring persons who had entered foreign services, whether naval or merchant, directing them to withdraw at once from such service and return home, or else to ship on board any accessible British ship of war. Commanders of naval vessels were ordered to seize all such persons whenever found by them on board foreign merchantmen. In the case of British-born subjects, known to be serving on board foreign men-of-war,--which was the case of the "Chesapeake,"--the repetition of the outrage was implicitly forbidden, by prescribing the procedure to be observed. Requisition for the discharge of such persons was to be made on the foreign captain, and, in case of refusal, the particulars of the case were to be transmitted to the British minister to the nation concerned, or to the British home authorities; "in order that the necessary steps may be taken for obtaining redress ... for the injury done to us by the unwarranted detention of our natural-born subjects in the service of a foreign state." The proclamation closed by denying the efficacy of letters of naturalization to discharge native British from their allegiance of birth.

Rose's mission proved abortive. Like Monroe's, his instructions were positive to connect with his negotiation a matter which, if not so irrelevant as impressment, was at least of a character that a politic foreign minister might well have disregarded, in favor of the advantage to be gained by that most conciliatory of actions, a full and cordial apology. Rose was directed not to open his business until the President had withdrawn the proclamation excluding British ships of war. Having here no more option than Monroe as to impressment, the negotiation became iron-bound. The United States Government went to the utmost limit of concession to conclude the matter. Receding from its first attitude, it agreed to sever the question of impressment from that of the "Chesapeake;" but, with regard to the recalling of the President's proclamation, it demanded that Rose should show his cards, should state what was the nature and extent of the reparation he was empowered to offer, and whether it was conditioned or unconditioned. If this first outcome were such as to meet the just expectations of the Administration, revocation of the proclamation should bear the same date as the British act of reparation. Certainly, more could not be offered. The Government could not play a blind game, yielding point after point in reliance upon the unknown contents of Rose's budget. This, however, was what it was required to do, according to the British envoy's reading of his orders, and the matter terminated in a fruitless exchange of argumentation.[200] In April, 1808, Rose quitted the country, and redress for the "Chesapeake" injury remained in abeyance for three years longer. Interest in it had waned under more engrossing events which had already taken place, and it was relegated by both Governments to the background of diplomacy. Admiral Berkeley had been recalled, as a mark of his Majesty's disapproval. He arrived in England in the beginning of 1808, some six months after the outrage, accompanied by the "Leopard." Her captain was not again given a ship; but before the end of the year the chief offender, the admiral, had been assigned to the important command at Lisbon. To Pinkney's observation upon this dissatisfying proceeding, Canning replied that it was impossible for the Admiralty to resist his claim to be employed (no other objection existing against him) after such a lapse of time since his return from Halifax, without bringing him to a court-martial.[201] In the final settlement, further punishment of Berkeley was persistently refused.

Although standing completely apart from the continuous stream of connected events which constituted contemporaneous history,--perhaps because of that very separateness,--the "Chesapeake" affair marks conspicuously the turning-point in the relations of the two countries. In point of time, its aptness as a sign-post is notable; for it occurred just at the moment when the British ministry, under the general exigencies of the situation, and the particular menace of the Tilsit compacts between Napoleon and the Czar, were meditating the new and extraordinary maritime system by which alone they might hope to counteract the Continental system that now threatened to become truly coextensive with Europe. But to the writer the significance of the "Chesapeake" business is more negative than positive; it suggests rather what might have been under different treatment by the Portland ministry. The danger to Great Britain was imminent and stupendous, and her measures of counteraction needed to correspond. These were confessedly illegal in the form they took, and were justified by their authors only on the ground of retaliation. Towards neutrals, among whom the United States were by far the chief, they were most oppressive. Yet for over four years not only did the American Government endure them, but its mercantile community conformed to the policy of Great Britain, found profit in so doing, and deprecated resort to war. At a later day Jefferson asserted bitterly that under British influence one fourth of the nation had compelled the other three fourths to abandon the embargo. Whether this be quite a fair statement may be doubted; but there was in it so much of truth as to suggest the possibility, if not of acquiescence in the Orders in Council, at least of such abstention from active resentment as would have been practically equivalent.

The acquiescence, if possible even the co-operation, of America was at this time momentous to Great Britain as well as to Napoleon. To complete his scheme for ruining his enemy, by closing against her commerce all the ports of Europe, the Emperor needed to deprive her also of access to the markets of the United States; while the grave loss to which Great Britain was exposed in the one quarter made it especially necessary to retain the large and increasing body of consumers across the Atlantic. In the United States there was a division of public opinion and feeling, which offered a fair chance of inclining national action in one direction or the other. Although the Treaty of Commerce and Navigation of December 31, 1806, had been rejected by the Administration, and disapproved by the stricter followers of Jefferson and Madison, it was regarded with favor in many quarters. Its negotiators had represented the two leading parties which divided the nation. Monroe was a republican, traditionally allied to Jefferson; Pinkney was a federalist. Although in it the principles of the United States had not been successfully asserted, as regarded either impressment or the transport of colonial produce, the terms of compromise had commanded their signatures, because they held that in effect the national objects were obtained; that impressment would practically cease, and the carrying trade, under the restrictions they had accepted, would not only nourish, but be as remunerative as before. Monroe, who had a large personal following in his state and party, maintained this view in strong and measured language after his return home; and it found supporters in both political camps, as well as upon the floor of the two houses of Congress. Then, and afterwards, it was made a reproach to the Administration that it had refused a working arrangement which was satisfactory in its substantial results and left the principles of the country untouched for future assertion. Whatever may be thought, from an American standpoint, of the justice or dignity of this position, it showed grave divergences of sentiment, from which it is the skill of an opposing diplomatist to draw profit. It is impossible to estimate the effect upon the subsequent course of America, if the British ministry, with a certain big-heartedness, had seized the opportunity of the "Chesapeake" affair; if they had disclaimed the act of their officers with frankness and cordiality, offering ungrudging regret, and reparation proportionate to the shame inflicted upon a community too weak in military power to avenge its wrongs. As it was, at a moment when the hostilities she had provoked would have been most embarrassing, Great Britain escaped only by the unreadiness of the American Government.

Left unatoned, the attack on the "Chesapeake" remained in American consciousness where Jefferson and Madison had sought to place it,--an example of the outrages of impressment. The incidental violence, which aroused attention and wrath, differed in nothing but circumstance from the procedure when an unresisting merchant vessel was deprived of men. In both cases there was the forcible exaction of a disputed claim. Canning, indeed, was at pains to explain that originally the British right extended to vessels of every kind; but "for nearly a century the Crown had forborne to instruct the commanders of its ships of war to search foreign ships of war for deserters, ... because to attack a national ship of war is an act of hostility. The very essence of the charge against Admiral Berkeley, as you represent it, is the having taken upon himself to commit an act of hostility without the previous authority of his Government." Under this construction, the incident only served to emphasize the fundamental opposition of principle, and to exasperate the war party in the United States. To deprive a foreign merchant vessel of men was not considered a hostile act; and the difference in the case of ships of war was only because the Crown chose so to construe. The argument was, that to retain seamen of British birth, when recalled by proclamation, was itself hostile, because every such seaman disobeying this call was a deserter. It was to be presumed that a foreign Power would not countenance their detention, and on this presumption no search of its commissioned ships was ordered. "But with respect to merchant vessels there is no such presumption."[202]

While the "Chesapeake" affair was still in its earlier stages of discussion, the passage of events in Europe was leading rapidly to the formulation of the extreme British measures of retaliation for the Berlin Decree. On June 14 Napoleon defeated the Russians at the battle of Friedland; and on June 22, the day the "Leopard" attacked the "Chesapeake," an armistice was signed between the contending parties. Upon this followed the Conventions of Tilsit, July 8, 1807, by which the Czar undertook to support the Continental system, and to close his ports to Great Britain. The deadly purpose of the commercial warfare thus reinforced was apparent; and upon the Emperor's return to Paris, soon afterwards, the Berlin Decree received an execution more consonant to its wording than was the construction hitherto given it by French officials. In May, an American ship, the "Horizon," bound from England to Peru, had been wrecked upon the coast of France. Her cargo consisted in part of goods of British origin. Up to that time, no decisions contrary to American neutral rights had been based upon the Decree by French courts; but final action in the case of the "Horizon" was not taken till some time after the Emperor's return. Meanwhile, on August 9, General Armstrong, the American minister, had asked that Spain, which had formally adopted the Berlin Decree as governing its own course, should be informed of the rulings of the French authorities; "for a letter from the _chargé des affaires_ of the United States at Madrid shows that the fate of sundry American vessels, captured by Spanish cruisers, will depend, not on the construction which might be given to the Spanish decree by Spanish tribunals, but on the practice which shall have been established in France."[203] This letter was referred in due course--August 21--to the Minister of Marine, and a reply promised when his answer should be received. Under Napoleon's eye, doubts not entertained in his absence seem to have occurred to the ministers concerned, and on September 24 Armstrong learned that the Emperor had been consulted, and had said that, as he had expressed no exceptions to the operation of his Decree, French armed vessels were authorized to seize goods of English origin on board neutral vessels. This decision, having the force of law, was communicated to the tribunals, and under it so much of the "Horizon's" cargo as answered to this description was condemned. The rest was liberated.[204]

When this decision became known, it was evident that within the range of Napoleon's power there would henceforth be no refuge for British manufactures, or the produce of British colonies; that neutral ownership or jurisdiction would be no protection against force. Even the pity commonly extended to the shipwrecked failed, if his property had been bought in England. Recognition of the increased danger was shown in the doubling and trebling of insurance. The geographical sweep intended to be given to the edict was manifested by the action of state after state whither arms had extended Napoleon's influence; or, as Armstrong phrased it, "having settled the business of belligerents, with the exception of England, very much to his own liking, he was now on the point of settling that of neutrals in the same way." In July, Denmark and Portugal, as yet at peace, had been notified that they must choose between France and England, and had been compelled to exclude English commerce. August 29, a French division entered Leghorn, belonging to the nominally independent Kingdom of Etruria, took possession of the harbor and forts, ordered the surrender of all British goods in the hands of the inhabitants, and laid a general embargo upon the shipping, among which were many Americans. In Lower Italy, the Papal States and Naples underwent the same restrictions. Prussia yielded under obvious constraint, and Austria acceded from motives of policy, distinguishable in form only from direct compulsion. Russia, as already said, had joined immediately after decisive defeat in the field. The co-operation of the United States, the second maritime nation in the world, was vital to the general plan. Could it be secured? Already, at an audience given to the diplomatic corps on August 2, the Danish minister had taken Armstrong aside and asked him whether any application had been made to him with regard to the projected _union of all commercial states against Great Britain_. Being answered in the negative, he said, "You are much favored, but it will not last."[205] Armstrong characterized this incident as not important; but in truth the words italicized defined exactly the menacing scheme already matured in the Emperor's mind, for the execution of which, as events already showed, and continued to prove, he relied upon the force of arms. To this the United States was not accessible; but to coerce or cajole her by other means became a prominent feature of French policy, which was powerfully abetted by the tone of Great Britain speaking through Canning.

To appreciate duly the impending measures of the British ministry, attention should fasten upon the single decisive fact that this vast combination was not the free act of the parties concerned, but a submission imposed by an external military power, which at the moment, and for five succeeding years, they were unable to resist. It is one thing to deny the right of any number of independent communities to join in a Customs Union; it is another to maintain the obligations upon third parties of such a convention, when extorted by external compulsion. Either action may be resisted, but means not permissible in the one case may be justified in the other. In the European situation the subjected states, by reason of their subjection, disappeared as factors in diplomatic consideration. There remained only their master Napoleon, with his momentary lieutenant the Czar, and opposed to them Great Britain. "It is obvious," said the French Minister of Foreign Affairs, Champagny, to Armstrong, "that his Majesty _cannot permit_ to his allies a commerce which he denies to himself. This would be at once to defeat his system and oppress his subjects."[206] A few days later he wrote formally, "His Majesty considered himself bound to _order_ reprisals on American vessels _not only in his territory, but likewise in the countries which are under his influence_,--Holland, Spain, Italy, Naples."[207] The Emperor by strength of arms oppressed to their grievous injury those who could not escape him; what should be the course of those whom he could not reach, to whom was left the choice between actual resistance and virtual co-operation? The two really independent states were Great Britain and the United States. In the universal convulsion of civilization, the case of the several nations recalls the law of Solon, that in civil tumults the man who took neither side should be disfranchised.

The United States chose neutrality, and expected that it would be permitted her. She chose to overlook the interposition of Napoleon, and to regard the exclusion laws, forced by him upon other states, as instances of municipal regulation, incontestable when freely exercised. Not only would she not go behind the superficial form, but on technical grounds of international law she denied the right of another to do so. Great Britain had no choice. She was compelled to resistance; the question was as to methods. Direct military action was impossible. The weapon used against her was commercial prohibition, which meant eventual ruin, unless adequately parried by her own action. From Europe no help was to be expected. If the United States also decided so far to support Napoleon as to prosecute her trade subject to his measures, accepting as legal regulations extorted by him from other European countries, the trade of Europe would be transferred from Great Britain to America, and the revenues of France would expand in every way, while those of Great Britain shrank,--a result militarily fatal. In this the British Government would not acquiesce. It chose instead war with the United States, under the forms of peace.

That the tendency of the course pursued by the United States was to destroy British commerce, and that this tendency was successfully counteracted by the means framed by the British Government,--the Orders in Council,--admits of little doubt. When the American policy had worked out to its logical conclusion, in open trade with France, and complete interdict of importation from Great Britain, Joel Barlow, American Minister to France in 1811-12, and an intimate of Jefferson and Madison, wrote thus to the French Minister of Foreign Affairs: "In adopting the late arrangements with France the United States could not contemplate the deprivation of revenue. They really expected to draw from this country and from the rest of continental Europe the same species of manufactures, and to as great an amount as they were accustomed to do from England. They calculated with the more confidence on such a result as they saw how intimately it was combined with the great and essential interests of the Imperial Government. They perceived that _it would promote in an unexpected degree the Continental system_, which the Emperor has so much at heart.... The Emperor now commands nearly all the ports of continental Europe. The whole interior of the Continent must be supplied with American products. These must pass through French territory, French commercial houses, canals, and wagons. They must pay" toll to France in various ways, "and thus render these territories as tributary to France as if they were part of her own dominions."[208] But Napoleon replied that his system, as it stood, had greatly crippled British commerce, and that if he should admit American shipping freely to the Continent, trade could not be carried on, because the English under the Orders in Council would take it all, going or coming.[209]

"The peril of the moment is truly supposed to be great beyond all former example," wrote Pinkney, now American minister in London, when communicating to his Government the further Orders in Council adopted by Great Britain, in response to the attempted "union of all the commercial states" against her. As defined by Canning to Pinkney,[210] "the principle upon which the whole of this measure has been framed is that of refusing to the enemy those advantages of commerce which he has forbidden to this country. The simplest method of enforcing this system of retaliation would have been to follow the example of the enemy, by prohibiting altogether all commercial intercourse between him and other states." America then would not be allowed to trade with the countries under his Decrees. It was considered, however, more indulgent to neutrals--to the second parties in commercial intercourse with the enemy--to allow this intercourse subject to duties in transit to be paid in Great Britain. This would raise the cost to the continental consumer and pay revenue to Great Britain.

The Orders in Council of November 11, 1807, therefore forbade all entrance to ports of the countries which had embraced the Continental system. It was not pretended that they would be blockaded effectively. "All ports from which the British flag is excluded shall from henceforth be subject to the same restrictions, in point of trade and navigation, with the exceptions hereinafter mentioned, _as if the same were actually blockaded_ in the most strict and rigorous manner by his Majesty's naval forces." The exception was merely that a vessel calling first at a British port would be allowed to proceed to one of those prohibited, after paying certain duties upon her cargo and obtaining a fresh clearance. This measure was instituted by the Executive, in pursuance of the custom of regulating trade with America by Orders in Council, prevalent since 1783; but it received legislative sanction by an Act of Parliament, March 28, 1808, which fixed the duties to be paid on the foreign goods thus passing through British custom-houses. Cotton, for instance, was to pay nine pence a pound, an amount intended to be prohibitory; tobacco, three halfpence. These were the two leading exports of United States domestic produce. In the United States this Act of Parliament was resented more violently, if possible, than the Order in Council itself. In the colonial period there had been less jealousy of the royal authority than of that of Parliament, and the feeling reappears in the discussion of the present measures. "This," said a Virginia senator,[211] "is the Act regulating our commerce, of which I complain. An export duty, which could not be laid in Charleston because forbidden by our Constitution, is laid in London, or in British ports." It was literally, and in no metaphorical sense, the reimposition of colonial regulation, to increase the revenues of Great Britain by reconstituting her the _entrepôt_ of commerce between America and Europe. "The Orders in Council," wrote John Quincy Adams in a public letter, "if submitted to, would have degraded us to the condition of colonists."[212]

This just appreciation preponderated over other feelings throughout the middle and southern states. Adams, a senator from Massachusetts, had separated himself in action and opinion from the mass of the people in New England, where, although the Orders were condemned, hatred of Napoleon and his methods overbore the sense of injury received from Great Britain. The indignation of the supporters of the Administration was intensified by the apparent purpose of the British Government to keep back information of the measure. Rose had sailed the day after its adoption, Monroe two days later, but neither brought any official intimation of its issuance, although that was announced in the papers of the day. "The Orders in Council," wrote Adams, "were not merely without official authenticity. Rumors had been for several weeks in circulation, derived from English prints and from private correspondence, that such Orders were to issue,[213] and no inconsiderable pains were taken to discredit the facts. Suspicions were lulled by declarations equivalent as nearly as possible to positive denial, and these opiates were continued for weeks after the embargo was laid, until Mr. Erskine received orders to make official communication of the Orders themselves, in proper form, to our Government."[214] This remissness, culpable as it certainly was in a matter of such importance, was freely attributed to the most sinister motives. "These Orders in Council were designedly concealed from Mr. Rose, although they had long been deliberated upon, and almost matured, before he left London. They were the besom which was intended to sweep, and would have swept, our commerce from the ocean. Great Britain in the most insidious manner had issued orders for the entire destruction of our commerce."[215]

The wrath was becoming, but in this particular the inference was exaggerated. The Orders, modelled on the general plan of blockades, provided for the warning of a vessel which had sailed before receiving notification; and not till after a first notice by a British cruiser was she liable to capture. Mention of such cases occurs in the journals of the day.[216] Some captains persisted, and, if successful in reaching a port under Napoleon's control, found themselves arrested under a new Decree,--that of Milan,--for having submitted to a visit they could not resist. Such were sequestered, subject to the decision of the United States to take active measures against Great Britain. "Arrived at New York, March 23, [1808], ship 'Eliza,' Captain Skiddy, 29 days from Bordeaux. All American vessels in France which had been boarded by British cruisers were under seizure. The opinion was, they would so remain till it was known whether the United States had adjusted its difficulties with Great Britain, in which case they would be immediately condemned. A letter from the Minister of Marine was published that the Decree of Milan must be executed severely, strictly, and literally."[217] Independent of a perpetual need to raise money, by methods more consonant to the Middle Ages than to the current period, Napoleon thus secured hostages for the action of the United States in its present dilemma.

The Orders in Council of November 11, having been announced in English papers of the 10th, 11th, and 12th, appeared in the Washington "National Intelligencer" of December 18.[218] The general facts were therefore known to the Executive and to the Legislature; and, though not officially adduced, could not but affect consideration, when the President, on December 18, 1807, sent a message to Congress recommending "an inhibition of the departure of our vessels from the ports of the United States." With his customary exaggerated expression of attendance upon instructions from Congress, he made no further definition of wishes which were completely understood by the party leaders. "The wisdom of Congress will also see the necessity of making every preparation for whatever events may grow out of the present crisis." Accompanying the message, as documents justificatory of the action to be taken, were four official papers. One was the formal communication to the French Council of Prizes of Napoleon's decision that goods of English origin were lawful prize on board neutral vessels; the second was the British proclamation directing the impressment of British seamen found on board neutral ships. These two were made public. Secrecy was imposed concerning the others, which were a letter of September 24, from Armstrong to the French Minister of Exterior Relations, and the reply, dated October 7. In this the minister, M. Champagny, affirmed the Emperor's decision, and added a sentence which, while susceptible of double meaning, certainly covertly suggested that the United States should join in supporting the Berlin Decree. "The decree of blockade has now been issued eleven months. The principal Powers of Europe, far from protesting against its provisions, have adopted them. They have perceived that its execution must be complete to render it more effectual, and it has seemed easy to reconcile these measures with the observance of treaties, especially at a time when the infractions by England of the rights of _all maritime_ Powers render their interests common, and tend to _unite them in support of the same cause_."[219] This doubtless might be construed as applicable only to the European Powers; but as a foremost contention of Madison and Armstrong had been that the Berlin Decree contravened the treaty between France and the United States, the sentence lent itself readily to the interpretation, placed upon it by the Federalists, that the United States was invited to enforce in her own waters the continental system of exclusion, and so to help bring England to reason.

This the United States immediately proceeded to do. Though the motive differed somewhat, the action was precisely that suggested. On the same day that Jefferson's message was received, the Senate passed an Embargo Bill. This was sent at once to the House, returned with amendments, amendments concurred in, and bill passed and approved December 22. This rapidity of action--Sunday intervened--shows a purpose already decided in general principle; while the enactment of three supplementary measures, before the adjournment of Congress in April, indicates a precipitancy incompatible with proper weighing of details, and an avoidance of discussion, commendable only on the ground that no otherwise than by the promptest interception could American ships or merchandise be successfully jailed in port. The bill provided for the instant stoppage of all vessels in the ports of the United States, whether cleared or not cleared, if bound to any foreign port. Exception was made only in favor of foreign ships, which of course could not be held. They might depart with cargo already on board, or in ballast. Vessels cleared coastwise were to be deterred from turning foreign by bonds exacted in double the value of ship and cargo. American export and foreign navigation were thus completely stopped; and as the Non-Importation Act at last went into operation on December 14,[220] there was practical exclusion of all British vessels, for none could be expected to enter a port where she could neither land her cargo nor depart.

In communicating the embargo to Pinkney, for the information of the British Government,[221] Madison was careful to explain, as he had to the British minister at Washington, that it was a measure of precaution only; not to be considered as hostile in character. This was scarcely candid; coercion of Great Britain, to compel the withdrawal of her various maritime measures objectionable to the United States, was at least a silent partner in the scheme, as formulated to the consciousness of Jefferson and his followers.[222] The motive transpired, as such motives necessarily do; but, even had it not, the operation of the Act, under the conditions of the European war, was so plainly partial between the two belligerents, as to amount virtually to co-operation with Napoleon by the preponderance of injury done to Great Britain. It deprived her of cotton for raw material; of tobacco, which, imported in payment for British manufactures, formed a large element in her commerce with the Continent; of wheat and flour, which to some extent contributed to the support of her people, though in a much less degree than many supposed. It closed to her the American market at the moment that Napoleon and Alexander were actively closing the European; and it shut off from the West Indies American supplies known to be of the greatest importance, and fondly, but mistakenly, believed to be indispensable.

All this was well enough, if national policy required. Great Britain then was scarcely in a position to object seriously to retaliation by a nation thinking itself injured; but to define such a measure as not hostile was an insult to her common-sense. It was certainly hostile in nature, it was believed to be hostile in motive, and it intensified feelings already none too friendly. In France, although included in the embargo, and although her action was one of the reasons alleged for its institution, Napoleon expressed approval. It was injurious to England, and added little to the pressure upon France exerted by the Orders in Council through the British control of the ocean. Senator Smith of Maryland, a large shipping merchant, bore testimony to this. "It has been truly said by an eminent merchant of Salem, that not more than one vessel in eight that sailed for Europe within a short time before the embargo reached its destination. My own experience has taught me the truth of this; and as further proof I have in my hand a list of fifteen vessels which sailed for Europe between September 1 and December 23, 1807. Three arrived; two were captured by French and Spaniards; one was seized in Hamburg; and nine carried into England. But for the embargo, ships that would have sailed would have fared as ill, or worse. Not one in twenty would have arrived." Granting the truth of this anticipation, Great Britain might have claimed that, so far as evident danger was concerned, her blockades over long coast-lines were effective.

The question speedily arose,--If the object of embargo be precaution only, to save our vessels from condemnation under the sweeping edicts of France and Great Britain, and seamen from impressment on American decks, why object to exporting native produce in foreign bottoms, and to commerce across the Canada frontier? If, by keeping our vessels at home, we are to lose the profits upon sixty million dollars' worth of colonial produce which they have heretofore been carrying, with advantage to the national revenue, why also forbid the export of the forty to fifty million dollars' worth of domestic produce which foreign ship-owners would gladly take and safely carry? for such foreigners would be chiefly British, and would sail under British convoy, subject to small proportionate risk.[223] Why, also, to save seamen from impressment, deprive them of their living, and force them in search of occupation to fly our ports to British, where lower wages and more exposure to the pressgang await them? On the ground of precaution, there was no reply to these questions; unless, perhaps, that with open export of domestic produce the popular suffering would be too unequally distributed, falling almost wholly on New England shipping industries. Logically, however, if the precaution were necessary, the suffering must be accepted; its incidence was a detail only. The embargo was distinctly a hostile measure; and more and more, as people talked, in and out of Congress, was admitted to be simply an alternative for open war.

As such it failed. It entailed most of the miseries of war, without any of its compensations. It could not arouse the popular enthusiasm which elevates, nor command the popular support that strengthens. Hated and despised, it bred elusion, sneaking and demoralizing, and so debased public sentiment with reference to national objects, and individual self-sacrifice to national ends, that the conduct of the many who now evaded it was reproduced, during the War of 1812, in dealings with the enemy which even now may make an American's head hang for shame. Born of the Jeffersonian horror of war, its evil communication corrupted morals among those whose standards were conventional only; for public opinion failed to condemn breaches of embargo, and by a natural declension equally failed soon after to condemn aid to the enemy in an unpopular war. Was it wonderful that an Administration which bade the seamen and the ship-owners of the day to starve, that a foreign state might be injured, and at the same time refused to build national ships to protect them, fell into contempt? that men, so far as they might, simply refused to obey, and wholly departed from respect? "I have believed, and still do believe," wrote Mr. Adams, "that our internal resources are competent to establish and maintain a naval force, if not fully adequate to the protection and defence of our commerce, at least sufficient to induce a retreat from these hostilities, and to deter from the renewal of them by either of the harrying parties;" in short, to compel peace, the first object of military preparation. "I believed that a system to that effect might be formed, ultimately far more economical, and certainly more energetic than a three years' embargo. I did submit such a proposition to the Senate, and similar attempts had been made in the House of Representatives, but equally discountenanced."[224] This was precisely the effect of Jefferson's teaching, which then dominated his party, and controlled both houses. At this critical moment he wrote, "Believing, myself, that gunboats are the only water defence which can be useful to us, and protect us from the ruinous folly of a navy, I am pleased with everything which promises to improve them."[225]

Not thus was a nation to be united, nor foreign governments impressed. The panacea recommended was to abandon the sea; to yield practical submission to the Orders in Council, which forbade American ships to visit the Continent, and to the Decrees of Napoleon, which forbade them entrance to any dominion of Great Britain. By a curious mental process this was actually believed to be resistance. The American nation was to take as its model the farmer who lives on his own produce, sternly independent of his neighbor; whose sons delved, and wife span, all that the family needed. This programme, half sentiment, half philosophy, and not at all practical, or practicable, was the groundwork of Jefferson's thought. To it co-operated a dislike approaching detestation for the carrying trade; the very opposite, certainly, of the other ideal. American shipping was then handling sixty million dollars' worth of foreign produce, and rolling up the wealth which for some reason follows the trader more largely than the agriculturist, who observed with ill-concealed envy. "I trust," wrote Jefferson, "that the good sense of our country will see that its greatest prosperity depends on a due balance between agriculture, manufactures, and commerce, and not on this protuberant navigation, which has kept us in hot water from the commencement of our government. This drawback system enriches a few individuals, but lessens the stock of native productions, by withdrawing all the hands [seamen] thus employed. It is essentially necessary for us to have shipping and seamen enough to carry our surplus products to market, but beyond that I do not think we are bound to give it encouragement by drawbacks or other premiums." This meant that it was unjust to the rest of the community to allow the merchant to land his cargo, and send it abroad, without paying as much duty as if actually consumed in the country. "This exuberant commerce brings us into collision with other Powers in every sea, and will force us into every war with European Powers." "It is now engaging us in war."[226]

Whether for merchant ships or navies the sea was odious to Jefferson's conception of things. As a convenient medium for sending to market surplus cotton and tobacco, it might be tolerated; but for that ample use of it which had made the greatness of Holland and England, he had only aversion. This prepossession characterized the whole body of men, who willingly stripped the seaman and his employers of all their living, after refusing to provide them with an armed protection to which the resources of the state were equal. Up to the outbreak of the war not a ship was added to the navy. With this feeling, Great Britain, whose very being was maritime, not unnaturally became the object of a dislike so profound as unconsciously to affect action. Napoleon decreed, and embargoed, and sequestered, with little effect upon national sentiment outside of New England. "Certainly all the difficulties and the troubles of the Government during our time proceeded from England," wrote Jefferson soon after quitting office,[227] to Dearborn, his Secretary of War. "At least all others were trifling in comparison." Yet not to speak of the Berlin Decree, by which ships were captured for the mere offence of sailing for England,[228] Bonaparte, by the Bayonne Decree, April 17, 1808, nearly a year before Jefferson left office, pronounced the confiscation of all American vessels entering ports under his control, on the ground that under the existing embargo they could not lawfully have left their own country; a matter which was none of his business. Within a year were condemned one hundred and thirty-four ships and cargoes, worth $10,000,000.[229]

That Jefferson consciously leaned to France from any regard to Napoleon is incredible; the character and procedures of the French Emperor were repugnant to his deepest convictions; but that there was a still stronger bias against the English form of government, and the pursuit of the sea for which England especially stood, is equally clear. Opposition to England was to him a kind of mission. His best wish for her had been that she might be republicanized by a successful French invasion.[230] "I came into office," he wrote to a political disciple, "under circumstances calculated to generate peculiar acrimony. I found all the offices in the possession of a political sect, who wished to transform it ultimately into the shape of their darling model, the English government; and in the meantime to familiarize the public mind to the change, by administering it on English principles, and in English forms. The elective interposition of the people had blown all their designs, and they found themselves and their fortresses of power and profit put in a moment in the hand of other trustees."[231]

These words, written in the third of the fifteen embargo months, reveal an acrimony not wholly one-sided. It was perceived by the parties hardest hit by this essentially Jeffersonian scheme; by the people of New England and of Great Britain. In the old country it intensified bitterness. In the following summer, at a dinner given to representatives of the Spanish revolt against Napoleon, the toast to the President of the United States was received with hisses,[232] "and the marks of disapprobation continued till a new subject drew off the attention of the company." The embargo was not so much a definite cause of complaint, for at worst it was merely a retaliatory measure like the Orders in Council. Enmity was recognized, alike in the council boards and in the social gatherings of the two peoples; the spirit that leads to war was aroused. Nor could this hostile demonstration proceed from sympathy with the Spanish insurgents; for, except so far as might be inferred from the previous general course of the American Administration, there was no reason to believe that they would regard unfavorably the Spanish struggle for liberty. Yet they soon did, and could not but do so.

It is a coincidence too singular to go unnoticed, that the first strong measure of the American Government against Great Britain--Embargo--was followed by Napoleon's reverses in Spain, which, by opening much of that country and of her colonies to trade, at once in large measure relieved Great Britain from the pressure of the Continental system and the embargo; while the second, the last resort of nations, War, was declared shortly before the great Russian catastrophe, which, by rapidly contracting the sphere of the Emperor's control, both widened the area of British commerce and deprived the United States of a diversion of British effort, upon which calculation had rightly been based. It was impossible for the American Government not to wish well to Napoleon, when for it so much depended upon his success; and to wish him well was of course to wish ill to his opponents, even if fighting for freedom.

Congress adjourned April 25, having completed embargo legislation, as far as could then be seen necessary. On May 2 occurred the rising in Madrid, consequent upon Napoleon's removal of the Spanish Royal Family; and on July 21 followed the surrender of Dupont's corps at Baylen. Already, on July 4, the British Government had stopped all hostilities against Spain, and withdrawn the blockade of all Spanish ports, except such as might still be in French control. On August 30, by the Convention of Cintra, Portugal was evacuated by the French, and from that time forward the Peninsula kingdoms, though scourged by war, were in alliance with Great Britain; their ports and those of their colonies open to her trade.

This of itself was a severe blow to the embargo, which for coercive success depended upon the co-operation of the Continental system. It was further thwarted and weakened by extensive popular repudiation in the United States. The political conviction of the expediency, or probable efficacy, of the measure was largely sectional; and it is no serious imputation upon the honesty of its supporters to say that they mustered most strongly where interests were least immediately affected. Tobacco and cotton suffered less in keeping than flour and salt fish; and the deterioration of these was by no means so instant as the stoppage of a ship's sailing or loading. The farmer ideal is realizable on a farm; but it was not so for the men whose sole occupation was transporting that which the agriculturist did not need to markets now closed by law. Wherever employment depended upon commerce, distress was immediate. The seamen, improvident by habit, first felt the blow. "I cannot conceive," said Representative [afterwards Justice] Story, "why gentlemen should wish to paralyze the strength of the nation by keeping back our naval force, and particularly now, when many of our native seamen (and I am sorry to say from my own knowledge I speak it) are starving in our ports."[233] The Commandant of the New York Navy Yard undertook to employ, for rations only, not wages, three hundred of those adrift in the streets; the corporation of the city undertaking to pay for the food issued.[234] They moved off, as they could get opportunity, towards the British Provinces; and thus many got into the British service, by enlistment or impressment. "Had your frigate arrived here instead of the Chesapeake," wrote the British Consul General at New York, as early as February 15, 1808, "I have no doubt two or three hundred able British seamen would have entered on board her for his Majesty's service; and even now, was your station removed to this city, I feel confident, _provided the embargo continues_, you would more than complete your complement."[235] Six months later, "Is it not notorious that not a seaport in the United States can produce seamen enough to man three merchant ships?"[236] In moving the estimates for one hundred and thirty thousand seamen a year later (February, 1809), the Secretary of the Admiralty observed that Parliament would learn with satisfaction that the number of seamen now serving in the navy covered, if it did not exceed, the number here voted.[237] It had not been so once. Sir William Parker, an active frigate captain during ten years of this period, wrote in 1805, "I dread the discharge of our crew; for I do not think the miserable wretches with which the ships lately fitted out were manned are equal to fight their ships in the manner they are expected to do."[238] The high wages, which the profits of the American merchant service enabled it to pay, outbade all competition by the British navy. "Dollars for shillings," as the expression ran. The embargo stopped all this, and equivalent conditions did not return before the war. The American Minister to France in 1811 wrote: "We complain with justice of the English practice of pressing our seamen into their service. But the fact is, and there is no harm in saying it, there are at present more American seamen who seek that service than are forced into it."[239]

After the seamen followed the associated employments; those whose daily labor was expended in occupations connected with transportation, or who produced objects which men could not eat, or with which they could dispense. Before the end of the year testimony came from every quarter of the increase of suffering among the deserving poor; and not they only, but those somewhat above them as gainers of a comfortable living. They were for the most part helpless, except as helped by their richer neighbors. Work for them there was not, and they could not rebel. Not so with the seafarers, or the dwellers upon the frontiers. On the great scale, of course, a sure enforcement of the embargo was possible; the bulk of the shipping, especially the bigger, was corralled and idle. In the port of New York, February 17, 1808, lay 161 ships, 121 brigs, and 98 smaller sea-going vessels; in all 380 unoccupied, of which only 11 were foreign. In the much smaller port of Savannah, at this early period there were 50. In Philadelphia, a year later, 293, mostly of large tonnage for the period. "What is that huge forest of dry trees that spreads itself before the town?" asked a Boston journal. "You behold the masts of ships thrown out of employment by the embargo."[240] "Our dismantled, ark-roofed vessels are indeed decaying in safety at our wharves, forming a suitable monument to the memory of our departed commerce. But where are your seamen? Gone, sir! Driven into foreign exile in search of subsistence."[241] Yet not all; for illicit employment, for evading the Acts, enough remained to disconcert the Government, alike by their numbers and the boldness of their movements.

"This Embargo law," wrote Jefferson to Gallatin, August 11, 1808, "is certainly the most embarrassing we ever had to execute. I did not expect a crop of so sudden and rank growth of fraud, and open opposition by force, could have grown up within the United States."[242] Apostle of pure democracy as he was, he had forgotten to reckon with the people, and had mistaken the convictions of himself and a coterie for national sentiment. From all parts of the country men began silently and covertly to undermine the working of the system. Passamaquoddy Bay on the borders of New Brunswick, and St. Mary's on the confines of Florida, remote from ordinary commerce, became suddenly crowded with vessels.[243] Coasters, not from recalcitrant New England only, but from the Chesapeake and Southern waters, found it impossible to reach their ports of destination. Furious gales of wind drove them from their course; spars smitten with decay went overboard; butts of planking started, causing dangerous leaks. Safety could be found only by bearing up for some friendly foreign port, in Nova Scotia or the West Indies, where cargoes of flour and fish had to be sold for needed repairs, to enable the homeward voyage to be made. Not infrequently the vessel's name had been washed off the stern by the violence of the waves, and the captain could remember neither it nor his own. The New York and Vermont frontiers became the scene of widespread illegal trade, the shameful effects of which upon the patriotism of the inhabitants were conspicuous in the following war. A gentleman returning from Canada in January, 1809, reported that he had counted seven hundred sleighs, going and returning between Montreal and Vermont.[244] This on one line only. A letter received in New York stated that, during the embargo year, 1808, thirty thousand barrels of potash had been brought into Quebec.[245] "While our gunboats and cutters are watching the harbors and sounds of the Atlantic," said a senator from his place, "a strange inversion of business ensues, and by a retrograde motion of all the interior machinery of the country, potash and lumber are launched upon the lakes, and Ontario and Champlain feel the bustle of illicit traffic.... Violators of the laws are making fortunes, while the conscientious observers of them are suffering sad privations."[246] Not the conscientious only, but the unlucky. Unlike New York, North Carolina had not a friendly foreign boundary nigh to her naval stores.

Under these circumstances the blow glanced from the British dominions. At the first announcement of the embargo, prices of provisions and lumber rose heavily in the West Indies; but reaction set in, as the leaks in the dam became manifest and copious. The British Government fostered the rebellious evasions of American citizens by a proclamation, issued April 11, directing commanders of cruisers not to interrupt any neutral vessel laden with provisions or lumber, going to the West Indies; no matter to whom the property belonged, nor whether the vessel had any clearance, or papers of any kind. A principal method of eluding the embargo, Gallatin informed Jefferson, was by loading secretly and going off without clearing. "Evasions are chiefly effected by vessels going coastwise."[247] The two methods were not incompatible. Besides the sea-going vessels already mentioned as lying in New York alone, there were there over four hundred coasters. It was impossible to watch so many. The ridiculous gunboats, identified with this Administration, derisively nicknamed "Jeffs"[248] by the unbelieving, were called into service to arrest the evil; but neither their numbers nor their qualities fitted them to cope with the ubiquity and speed of their nimble opponents. "The larger part of our gunboats," wrote Commodore Shaw[249] from New Orleans, "are well known to be dull sailers." "For enforcing the embargo," said Secretary Gallatin, "gunboats are better calculated as a stationary force, and for the purpose of stopping vessels in certain places, than for pursuit."[250] A double bond was a mockery, when in West Indian ports the cargo was worth from four to eight times what it was at the place of loading. These were the palmier days of the embargo breakers; the ease and frequency with which they escaped soon brought prices down. Randolph, in the House, asserted that in the first four months of embargo one hundred thousand barrels of flour had been shipped from Baltimore alone; and the West India planters, besides opening new sources of supply, devoted part of their ground to raising food. They thus turned farmer, after the Jefferson ideal, supporting themselves off their own grounds; an economical error, for sugar was their better crop, but unavoidable in the circumstances. With all this, the difficulty in the way of exportation so cheapened articles in the United States as to maintain a considerable disproportion in prices there and abroad, which kept alive the spirit of speculation, and maintained the opportunity of large profits,[251] at the same time that it distressed the American grower.

Upon the whole, after making allowance for the boasts which succeeded the first fright in the West Indies, the indications seem to be that they escaped much better than had been expected, either by themselves or by the American Government. Just before adjourning, Congress had passed a supplementary measure, which, besides drawing restrictions tighter, authorized the President to license vessels to go abroad in ballast, in order to bring home property belonging to American citizens. These dispersed in various directions, and in very large numbers.[252] Many doubtless remained away; but those which returned brought constant confirmation of the numerous American shipping in the various ports of the West Indies, and the general abundance of American produce. A letter from Havana, September 12, said: "We have nearly one hundred American vessels in port. Three weeks ago there were but four or five. If the property, for which these vessels were ostensibly despatched, had been really here, why have they been so long delayed? The truth is, the property is not here. A host of people have been let loose, who could not possibly have had any other motive than procuring freight and passengers from merchants of this country, or from the French, who are supposed to be going off with their property [in consequence of the Spanish outbreak]. The vast number of evasions and smugglers which the embargo has created is surprising. For some days after the last influx of American vessels, the quays and custom-house were every morning covered with all kinds of provisions, which had been landed during the preceding night."[253]

To Quebec and Halifax the embargo was a positive boon, from the diversion upon them of smuggling enterprise, by the lakes and by land, or by coasters too small to make the direct voyage to the West Indies. In consequence of the embargo, these towns became an _entrepôt_ of commerce, such as the Orders in Council were designed to make the British Islands. There was, of course, a return trade, through them, of British manufactures smuggled into the United States. These imports seem to have exceeded the exports by the same route. A New Bedford town meeting, in August, affirmed that gold was already at a premium, from the facility with which it was transported through the country, and across the frontier, in payment of purchases.[254] At the end of the summer one hundred and fifty vessels were despatched from Quebec with full cargoes, and it may be believed they had not arrived empty. "From a Canada price current now before us, it will be seen that since the embargo was laid the single port of Quebec has done more foreign business than the whole United States. In less than eleven months there cleared thence three hundred and thirty-four vessels."[255] An American merchant visiting Halifax wrote home: "Our embargo is an excellent thing for this place. Every inhabitant of Nova Scotia is exceedingly desirous of its continuance, as it will be the making of their fortunes."[256] Independent of the _entrepôt_ profit, the British provinces themselves produced several of the articles which figured largely among the exports of the middle and eastern states; not to the extent imagined by Sheffield, sufficient to supply the West Indies, but, in the artificial scarcity caused by the embargo, the enhanced prices redounded directly to their advantage. Sir George Prevost, governor of Nova Scotia, summed up the experience of the year by saying that "the embargo has totally failed. New sources have been resorted to with success to supply deficiencies produced by so sudden an interruption of commerce, and the vast increase of export and import of this province proves that the embargo is a measure well adapted to promote the true interests of his Majesty's American colonies."[257]

Upon the British Islands themselves the injury was more appreciable and conspicuous. It was, moreover, in the direction expected by Jefferson and his supporters. The supply of cotton nearly ceased. Mr. Baring, March 6, 1809, said in the House of Commons that raw material had become so scarce and so high, that in many places it could not be procured. "In Manchester during the greatest part of the past year, only nine cotton mills were in full employment; about thirty-one at half work, and forty-four without any at all."[258] Flaxseed, essential to the Irish linen manufactures, and of which three fourths came from America, had risen from £2-½ to £23 the quarter.[259] The exports for the year 1808 had fallen fifteen per cent; the imports the same amount, involving a total diminution in trade of £14,000,000. An increase of distress was manifested in the poor rates. In Manchester they had risen from £24,000 to £49,000. On the other hand, the harvest for the year, contrary to first anticipation, had been very good; and, in part compensation for intercourse with the United States, there was the opening of Spain, Portugal, and their extensive colonies, the effect of which was scarcely yet fully felt.

There was, besides, the relief of American competition in the carrying trade. This was a singularly noteworthy effect of the embargo; for this industry was particularly adverse to United States navigation, and particularly benefited by the locking up of American shipping. On April 28, 1808, there was not in Liverpool a vessel from Boston or New York.[260] The year before, four hundred and eighty-nine had entered, paying a tonnage duty of £36,960.[261] In Bristol at the same time there were only ten Americans. In consequence of the loss of so much tonnage, "those who have anything to do with vessels for freight or charter are absolutely insolent in their demands. For a ship of 330 tons from this to St. Petersburg and back £3,300 have been paid; £2,000 for a ship of 199 tons to Lisbon and back."[262] At the end of August, in Liverpool, the value of British shipping had increased rapidly, and vessels which had long been laid up found profitable employment at enormous freights.[263]

Thus, while the effect of the embargo doubtless was to raise prices of American goods in England, it stopped American competition with the British carrying trade, especially in West India produce. This occurred also at the time when the revolt of Spain opened to British navigation the colonies from which Americans hitherto had been the chief carriers. The same event had further relieved British shipping by the almost total destruction of French privateering, thenceforth banished from its former ports of support in the Caribbean. From all these causes, the appreciation quoted from a London letter of September 5 seems probably accurate. "The continuance of the embargo is not as yet felt in any degree adequate to make a deep impression on the public mind.... Except with those directly interested [merchants in the American trade], the dispute with the United States seems almost forgotten, or remembered only to draw forth ironical gratitude, that the kind embargo leaves the golden harvest to be reaped by British enterprise alone."[264]

Upon the whole, through silent popular resistance, and the concurrence of the Spanish revolution, the United States by cutting its own throat underwent more distress than it inflicted upon the enemy. Besides the widespread individual suffering,[265] already mentioned, the national revenue, dependent almost wholly on customs, shrank with the imports. Despite the relief afforded by cargoes bound home when the embargo passed, and the permits issued to bring in American property abroad, the income from this source sank from over $16,000,000 to $8,400,000.[266] "However dissimilar in some respects," wrote Gallatin in a public report, "it is not believed that in their effect upon national wealth and public revenue war and embargo would be materially different. In case of war, some part of that revenue will remain; but if embargo and suspension of commerce continue, that which arises from commerce will entirely disappear."[267] Jefferson nevertheless clung to the system, even to the end of his life, with a conviction that defied demonstration. The fundamental error of conception, of course, was in considering embargo an efficient alternative for war. The difference between the two measures, regarded coercively, was that embargo inflicted upon his own people all the loss that war could, yet spared the opponent that which war might do to him. For the United States, war would have meant, and when it came did mean, embargo, and little more. To Great Britain it would have meant all that the American embargo could do, plus the additional effort, expense, and actual loss, attendant upon the increased exposure of her maritime commerce, and its protection against active and numerous foes, singularly well fitted for annoyance by their qualities and situation. War and embargo, combined, with Napoleon in the plenitude of his power, as he was in 1808, would sorely have tried the enemy; even when it came, amid the Emperor's falling fortunes, the strain was severe. But Jefferson's lack of appreciation for maritime matters, his dislike to the navy, and the weakness to which he had systematically reduced it, prevented his realizing the advantages of war over embargo, as a measure of coercion. To this contributed also his conviction of the exposure of Canada to offensive operations, which was just, though fatally vitiated by an unfounded confidence in untrained troops, or militia summoned from their farms. Neither was there among his advisers any to correct his views; rather they had imbibed their own from him, and their utterances in debate betray radical misapprehension of military considerations.

Among the incidents attendant upon the embargo was the continuance abroad of a number of American vessels, which were there at the passage of the Act. They remained, willing exiles, to share the constant employment and large freights which the sudden withdrawal of their compatriots had opened to British navigation. They were doubtless joined by many of those which received permission to sail in quest of American property. One flagrant instance of such abuse of privilege turned up at Leghorn, with a load of tropical produce;[268] and the comments above quoted from an Havana letter doubtless depended upon that current acquaintance with facts which men in the midst of affairs pick up. It was against this class of traders specifically that Napoleon launched the Bayonne Decree, April 17, 1808. Being abroad contrary to the law of the United States, he argued, was a clear indication that they were not American, but British in disguise. This they were not; but they were carrying on trade under the Orders in Council, and often under British convoy.[269] The fact was noteworthy, as bearing upon the contention of the United States Government soon after, that the Non-Intercourse Law was adequate security for the action of American merchant vessels; a grotesque absurdity, in view of the embargo experiences. That it is not consonant with national self-esteem to accept foreign assistance to carry out national laws is undeniable; but it is a step further to expect another nation to accept, as assured, the efficiency of an authority notoriously and continually violated by its own subjects.

Under the general conditions named, the year 1808 wore on to its close. Both the British Orders in Council and the Decrees of the French Emperor continued in force and received execution;[270] but so far as the United States was concerned their effect was much limited, the embargo retaining at home the greater part of the nation's shipping. The vessels which had remained abroad, and still more those which escaped by violation of the law, or abuse of the permission to sail unloaded to bring back American property, for the most part purchased immunity by acquiescence in the British Orders. They accepted British licenses, and British convoy also, where expedient. It was stated in Congress that, of those which went to sea under permission, comparatively few were interrupted by British cruisers.[271] Napoleon's condemnations went on apace, and in the matter of loss,--waiving questions of principle,--were at this moment a more serious grievance than the British Orders. Nor could it be said that the grounds upon which he based his action were less arbitrary or unjust. The Orders in Council condemned a vessel for sailing for an enemy's port, because constructively blockaded--a matter as to which at least choice was free; the Milan Decree condemned because visited by a British cruiser, to avoid which a merchant ship was powerless. The American brig "Vengeance" sailed from Norfolk before the embargo was laid, for Bilboa, then a port in alliance with France. On the passage the British frigate "Iris" boarded her, and indorsed on her papers that, in accordance with the orders of November 11, she must not proceed. That night the "Vengeance" gave the cruiser the slip, and pursued her course. She was captured off Bilboa by a French vessel, sent in as a prize, and condemned because of the frigate's visit.[272] This case is notable because of the pure application of a single principle, not obscured by other incidental circumstances, as often happens. The brig "George", equally bound to Bilboa, after visitation by a British vessel had been to Falmouth, and there received a British license to go to her destination. She was condemned for three offenses: the visit, the entrance to Falmouth, and the license.[272a] These cases were far from isolated, and quite as flagrant as anything done by Great Britain; but, while not overlooked, nor unresented, by the supporters of the embargo, there was not evident in the debates of Congress any such depth of feeling as was aroused by the British measures. As was said by Mr. Bayard, an Opposition Senator, "It may be from the habit of enduring, but we do not feel an aggression from France with the same quickness and sensibility that we do from England."[273]

Throughout the year 1808, the embargo was maintained by the Administration with as much vigor as was possible to the nature of the administrator, profoundly interested in the success of a favorite measure. Congress had supplemented the brief original Act by a prohibition of all intercourse with foreign territories by land, as well as by sea. This was levelled at the Florida and Canada frontiers. Authority had been given also for the absolute detention of all vessels bound coastwise, if with cargoes exciting suspicion of intention to evade the laws. Part of the small navy was sent to cruise off the coast, and the gunboats were distributed among the maritime districts, to intercept and to enforce submission. Steps were taken to build vessels on Lakes Ontario and Champlain; for, in the undeveloped condition of the road systems, these sheets of water were principal means of transportation, after snow left the ground. To the embargo the Navy owed the brig "Oneida", the most formidable vessel on Ontario when war came. All this restrictive service was of course extremely unpopular with the inhabitants; or at least with that active, assertive element, which is foremost in pushing local advantages, and directs popular sentiment. Nor did feeling in all cases refrain from action. April 19, the President had to issue a proclamation against combinations to defy the law in the country about Champlain. The collector at Passamaquoddy wrote that, with upwards of a hundred vessels in port, he was powerless; and the mob threatened to burn his house.[274] A Kennebec paper doubted whether civil society could hang together much longer. There were few places in the region where it was safe for civil officers to execute the laws.[274a] Troops and revenue vessels were despatched to the chief centres of disturbance; but, while occasional rencounters occurred, attended at times with bloodshed, and some captures of smuggled goods were effected, the weak arm of the Government was practically powerless against universal connivance in the disaffected districts. Smuggling still continued to a large extent, and was very profitable; while the determination of the smugglers assumed the character commonly styled desperate.

Such conditions, with a falling revenue, and an Opposition strong in sectional support, confronted the supporters of the Administration when Congress again met in November. Confident that embargo was an efficient coercive weapon, if relentlessly wielded, the President wished more searching enactments, and power for more extensive and vigorous enforcement. This Congress proceeded to grant. Additional revenue cutters were authorized; and after long debate was passed an Act for the Enforcement of the Embargo, approved January 9, 1809.[275] The details of this law were derived from a letter[276] addressed to a Committee of Congress by Gallatin, the Secretary of the Treasury, upon whom the administration of the embargo system chiefly fell. The two principal difficulties so far encountered were the evasions of vessels bound coastwise, and departure without clearance. "The infractions thus practised threaten to prostrate the law and the Government itself." Even to take cargo on board should not be permitted, without authorization from the collector of the district. "The great number of vessels now laden and in a state of readiness to depart shows the necessity of this provision."

It was therefore enacted that no vessel, coasting or registered, should load, without first having obtained permission from the custom-house, and given bond, in six times the value of the cargo, that she would not depart without a clearance, nor after clearing go to any foreign port, or transfer her lading to any other vessel. The loading was to be under the inspection of revenue officers. Ships already loaded, when notice of the Act was received, must unload or give bonds. Further to insure compliance, vessels bound coastwise must, within two months after sailing, deposit with the collector at the port of clearance a certificate from the collector at the port of destination, that they had arrived there. If going to New Orleans from the Atlantic coast, four months were allowed for this formality. Failing this, proof of total loss at sea would alone relieve the bond. "Neither capture, distress, nor any other accident, shall be pleaded or given in evidence." Collectors were empowered to take into custody specie and goods, whether on vessels or land vehicles, when there was reason to believe them intended for exportation; and authority was given to employ the army and navy, and the militia, for carrying out this and the other embargo legislation. A further provision of thirty armed vessels, to stop trade, was made by this Congress; which otherwise, like its predecessors and successors, was perfectly faithful to the party tradition not to protect trade, or seek peace, by providing a navy.

All this was sitting on the safety valve. However unflattering to national self-esteem it might be to see national legislation universally disregarded, the leakage of steam by evasion had made the tension bearable. The Act also opened to a number of subaltern executive officers, of uncertain discretion, an opportunity for arbitrary and capricious action, to which the people of the United States were unaccustomed. Already a justice of a circuit court had decided in opposition to instructions issued by the President himself. The new legislation was followed by an explosion of popular wrath and street demonstrations. These were most marked in the Eastern states, where the opposition party and the shipping interest were strongest. Feeling was the more bitter, because the revolt of Spain, and the deliverance of Portugal, had exempted those nations and their extensive colonies from the operation of the British Orders in Council, had paralyzed in many of their ports the edicts of Napoleon, and so had extended widely the field safe for neutral commerce. It was evident also that, while the peninsula everywhere was the scene of war, it could not feed itself; nor could supplies for the population, or for the British armies there, come from England, often narrowly pressed herself for grain. Cadiz was open on August 26; all neutrals admitted, and the British blockade raised. Through that portal and Lisbon might flow a golden tide for American farmers and shipmen. The town meetings of New England again displayed the power for prompt political agitation which so impressed the imagination of Jefferson. The Governor of Connecticut refused, on constitutional grounds, to comply with the President's request to detail officers of militia, to whom collectors could apply when needing assistance to enforce the laws. The attitude of the Eastern people generally was that of mutiny; and it became evident that it could only be repressed by violence, and with danger to the Union.

Congress was not prepared to run this risk. On February 8, less than a month after the Enforcement Act became law, its principal supporter in the Senate[277] introduced a resolution for the partial repeal of the Embargo Act. "This is not of my choice," he said, "nor is the step one by which I could wish that my responsibility should be tested. It is the offspring of conciliation, and of great concession on my part. On one point we are agreed,--resistance to foreign aggressions. The points of difficulty to be adjusted,--and compromised,--relate to the extent of that resistance and the mode of its application. In my judgment, if public sentiment could be brought to support them, wisdom would dictate the combined measures of embargo, non-intercourse, and war. Sir, when the love of peace degenerates into fear of war, it becomes of all passions the most despicable." It was not the first time the word "War" had been spoken, but the occasion made it doubly significant and ominous; for it was the requiem of the measure upon which the dominant party had staked all to avoid war, and the elections had already declared that power should remain in the same hands for at least two years to come. Within four weeks Madison was to succeed his leader, Jefferson; with a Congressional majority, reduced indeed, but still adequate.

The debate over the new measure, known as the Non-Intercourse Act, was prolonged and heated, abounding in recriminations, ranging over the whole gamut of foreign injuries and domestic misdoings, whether by Government policy or rebellious action; but clearer and clearer the demand for war was heard, through and above the din. "When the late intelligence from the northeast reached us," said an emotional follower of the Administration,[278] "it bore a character most distressful to every man who valued the integrity of the Government. Choosing not to enforce the law with the bayonet, I thought proper to acknowledge to the House that I was ready to abandon the embargo.... The excitement in the East renders it necessary that we should enforce it by the bayonet, or repeal. I will repeal, and could weep over it more than over a lost child." There was, he said, nothing now but war. "The very men who now set your laws at defiance," cried another, "will be against you if you go to war;" but he added, "I will never let go the embargo, unless on the very same day on which we let it go, we draw the sword."[279]

Josiah Quincy, an extremist on the other side, gave a definition of the position of Massachusetts, which from his ability, and his known previous course on national questions, is particularly valuable. In the light of the past, and of what was then future, it may be considered to embody the most accurate summary of the views prevailing in New England, from the time of the "Chesapeake" affair to the war. He "wished a negotiation to be opened, unshackled with the impedimenta which now exist. As long as they remained, people in the part of the country whence he came would not deem an unsuccessful attempt at negotiation cause for war. If they were removed, and an earnest attempt at negotiation made, unimpeded by these restrictions, and should not meet with success, they would join heartily in a war. They would not, however, go to war to contest the right of Great Britain to search American vessels for British seamen; for it was the general opinion with them that, if American seamen were encouraged, there would be no need for the employment of foreign seamen."[280] Quincy therefore condemned the retaliatory temper of the Administration, as shown in the "Chesapeake" incident by the proclamation excluding British ships of war, and in the embargo as a reply to the Orders in Council. The oppression of American trade, culminating in the Orders, was a just cause of war; but war was not expedient before a further attempt at negotiation, favored by a withdrawal of all retaliatory acts. He was willing to concede the exercise of British authority on board American merchantmen on the high seas.

In the main these were the coincident opinions of Monroe, although a Virginian and identified with the opposite party. At this time he wrote to Jefferson privately, urging a special mission, for which he offered his services. "Our affairs are evidently at a pause, and the next step to be taken, without an unexpected change, seems likely to be the commencement of war with both France and Great Britain, unless some expedient consistent with the honor of the Government and Country is adopted to prevent it." To Jefferson's rejection of the proposition he replied: "I have not the hope you seem still to entertain that our differences with either Power will be accommodated under existing arrangements. The embargo was not likely to accomplish the desired effect, if it did not produce it under the first impression.... Without evidence of firm and strong union at home, nothing favorable to us can be expected abroad, and from the symptoms in the Eastern states there is much cause to fear that tranquillity cannot be secured at present by adherence only to the measures which have heretofore been pursued."[281] Monroe had already[282] expressed the opinion--not to Jefferson, who had refused to ratify, but to a common intimate--that had the treaty of December 31, 1806, signed by himself and Pinkney, been accepted by the Administration, none of the subsequent troubles with France and Great Britain would have ensued; that not till the failure of accommodation with Great Britain became known abroad was there placed upon the Berlin Decree that stricter interpretation which elicited the Orders in Council, whence in due sequence the embargo, the Eastern commotions, and the present alarming outlook. In principle, Quincy and Monroe differed on the impressment question, but in practical adjustment there was no serious divergence. In other points they stood substantially together.

Under the combined influences indicated by the expressions quoted, Congress receded rapidly from the extreme measures of domestic regulation embodied in the various Embargo Acts and culminating in that of January 9. The substitute adopted was pronouncedly of the character of foreign policy, and assumed distinctly and unequivocally the hostile form of retaliation upon the two countries under the decrees of which American commerce was suffering. It foreshadowed the general line of action followed by the approaching new Administration, with whose views and purposes it doubtless coincided. Passed in the House on February 27, 1809, it was to go into effect May 20, after which date the ports of the United States were forbidden to the ships of war of both France and Great Britain, except in cases of distress, or of vessels bearing despatches. Merchant vessels of the two countries were similarly excluded, with a provision for seizure, if entering. Importation from any part of the dominions of those states was prohibited, as also that of any merchandise therein produced. Under these conditions, and with these exceptions, the embargo was to stand repealed from March 15 following; but American and other merchant vessels, sailing after the Act went into operation, were to be under bonds not to proceed to any port of Great Britain or France, nor during absence to engage in any trade, direct or indirect, with such port. From the general character of these interdictions, stopping both navigation and commerce between the United States and the countries proscribed, this measure was commonly called the Non-Intercourse Act. Its stormy passage through the House was marked by a number of amendments and proposed substitutes, noticeable principally as indicative of the growth of warlike temper among Southern members. There were embodied with the bill the administrative and police clauses necessary for its enforcement. Finally, as a weapon of negotiation in the hands of the Government, there was a provision, corresponding to one in the original Embargo Act, that in case either France or Great Britain should so modify its measures as to cease to violate the neutral commerce of the United States, the President was authorized to proclaim the fact, after which trade with that country might be renewed. In this shape the bill was returned to the Senate, which concurred February 28. Next day it became law, by the President's signature.

The Enforcement Act and the Non-Intercourse Act, taken together and in their rapid sequence, symbolize the death struggle between Jefferson's ideal of peaceful commercial restriction, unmitigated and protracted, in the power of which he had absolute faith, and the views of those to whom it was simply a means of diplomatic pressure, temporary, and antecedent to war. Napoleon himself was not more ruthless than Jefferson in his desired application of commercial prohibition. Not so his party, in its entirety. The leading provisions of the Non-Intercourse Act, by partially opening the door and so facilitating abundant evasion, traversed Jefferson's plan. It was antecedently notorious that their effect, as regarded Great Britain, would be to renew trade with her by means of intermediary ports. Yet that they were features in the policy of the men about to become prominent under the coming Administration was known to Canning some time before the resolution was introduced by Giles; before the Enforcement Act even could reach England. Though hastened by the outburst in New England, the policy of the Non-Intercourse Act was conceived before the collapse of Jefferson's own measure was seen to be imminent.

On January 18 and 22 Canning, in informal conversations with Pinkney, had expressed his satisfaction at proceedings in Congress, recently become known, looking to the exclusion of French ships equally with British, and to the extension of non-importation legislation to France as well as Great Britain.[283] He thought that such measures might open the way to a withdrawal of the Orders in Council, by enabling the British Government to entertain the overture, made by Pinkney August 23, under instructions, that the President would suspend the embargo, if the British Government would repeal its orders. This he conceived could not be done, consistently with self-respect, so long as there was inequality of treatment. In these anticipations he was encouraged by representations concerning the attitude of Madison and some intended members of his Cabinet, made to him by Erskine, the British Minister in Washington, who throughout seems to have cherished an ardent desire to reconcile differences which interfered with his just appreciation even of written words,--much more of spoken.

In the interview of the 22d Pinkney confined himself to saying everything "which I thought consistent with candor and discretion to confirm him in his dispositions." He suggested that the whole matter ought to be settled at Washington, and "that it would be well (in case a special mission did not meet their approbation) that the necessary powers should be sent to Mr. Erskine."[284] He added, "I offered my intervention for the purpose of guarding them against deficiencies in these powers."[285] The remark is noteworthy, for it shows Pinkney's sense that Erskine's mere letter of credence as Minister Resident, not supplemented by full powers for the special transaction, was inadequate to a binding settlement of such important matters. In the sequel the American Administration did not demand of Erskine the production either of special powers or of the text of his instructions; a routine formality which would have forestalled the mortifying error into which it was betrayed by precipitancy, and which became the occasion of a breach with Erskine's successor.

The day after his interview with Pinkney, Canning sent Erskine instructions,[286] the starting-point of which was that the Orders in Council must be maintained, unless their object could be otherwise accomplished. Assuming, as an indispensable preliminary to any negotiation, that equality of treatment between British and French ships and merchandise would have been established, he said he understood further from Erskine's reports of conversations that the leading men in the new Administration would be prepared to agree to three conditions: 1. That, contemporaneously with the withdrawal of the Orders of January 7 and November 11, there would be a removal of the restrictions upon British ships and merchandise, leaving in force those against French. 2. The claim, to carry on with enemies' colonies a trade not permitted in peace, would be abandoned for this war. 3. Great Britain should be at liberty to secure the operation of the Non-Intercourse measures, still in effect against France, by the action of the British Navy, which should be authorized to capture American vessels seeking to enter ports forbidden them by the Non-Intercourse Act. Canning justly remarked that otherwise Non-Intercourse would be nugatory; there would be nothing to prevent Americans from clearing for England or Spain and going to Holland or France. This was perfectly true. Not only had a year's experience of the embargo so demonstrated, but a twelvemonth later[287] Gallatin had to admit that "the summary of destinations of these exports, being grounded on clearances, cannot be relied on under existing circumstances. Thus, all the vessels actually destined for the dominions of Great Britain, which left the United States between April 19 and June 10, 1809, cleared for other ports; principally, it is believed, for Sweden." Nevertheless, the proposition that a foreign state should enforce national laws, because the United States herself could not, was saved from being an insult only by the belief, extracted by Canning from Erskine's report of conversations, that Madison, or his associates, had committed themselves to such an arrangement. He added that Pinkney "recently (but for the first time)" had expressed an opinion to the same effect.

The British Government would consent to withdraw the Orders in Council on the conditions cited; and for the purpose of obtaining a distinct and official recognition of them, Canning authorized Erskine to read his letter _in extenso_ to the American Government. Had this been done, as the three concessions were a _sine quâ non_, the misunderstanding on which the despatch was based would have been at once exposed; and while its assumptions and tone could scarcely have failed to give offence, there would have been saved the successive emotions of satisfaction and disappointment which swept over the United States, leaving bitterness worse than before. Instead of communicating Canning's letter, Erskine, after ascertaining that the conditions would not be accepted, sent in a paraphrase of his own, dated April 18,[288] in which he made no mention of the three stipulations, but announced that, in consequence of the impartial attitude resulting from the Non-Intercourse Act, his Majesty would send a special envoy to conclude a treaty on all points of the relations between the two countries, and meanwhile would be willing to withdraw the Orders of January 7 and November 11, so far as affecting the United States, in the persuasion that the President would issue the proclamation restoring intercourse. This advance was welcomed, the assurance of revocation given, and the next day Erskine wrote that he was "authorized to declare that the Orders will have been withdrawn as respects the United States on the 10th day of June next." The same day, by apparent preconcertment, in accordance with Canning's requirement that the two acts should be coincident, Madison issued his proclamation, announcing the fact of the future withdrawal, and that trade between the United States and Great Britain might be renewed on June 10.

Erskine's proceeding was disavowed instantly by the British Government, and himself recalled. A series of unpleasant explanations followed between him and the members of the American Government,[289] astonished by the interpretation placed upon their words, as shown in Canning's despatch. Canning also had to admit that he had strained Erskine's words, in reaching his conclusions as to the willingness of Madison and his advisers to allow the enforcement of the Non-Intercourse Act by British cruisers;[290] while Pinkney entirely disclaimed intending any such opinion as Canning imagined him to have expressed.[291] The British Secretary was further irritated by the tone of the American replies to Erskine's notes; but he "forbore to trouble"[292] Pinkney with any comment upon them. That would be made through Erskine's successor; an unhappy decision, as it proved. No explanation of the disavowal was given; but the instructions sent were read to Pinkney by Canning, and a letter followed saying that Erskine's action had been in direct contradiction to them. Things thus returned to the momentarily interrupted condition of American Non-Intercourse and British Orders in Council; the British Government issuing a temporary order for the protection of American vessels which might have started for the ports of Holland in reliance upon Erskine's assurances. From America there had been numerous clearances for England; and it may be believed that there would have been many more if the transient nature of the opportunity had been foreseen. August 9, Madison issued another proclamation, annulling the former.

While Erskine was conducting his side negotiation, the British Government had largely modified the scope of the restrictions laid upon neutral trade. In consequence of the various events which had altered its relations with European states and their dependencies, the Orders of November, 1807, were revoked; and for them was substituted a new one, dated April 26, 1809,[293] similar in principle but much curtailed in extent. Only the coasts of France itself, of Holland to its boundary, the River Ems, and those of Italy falling under Napoleon's own dominion, from Orbitello to Pesaro, were thenceforth to be subject to "the same restrictions as if actually blockaded." Further, no permission was given, as in the former Orders, to communicate with the forbidden ports by first entering one of Great Britain, paying a transit duty, and obtaining a permit to proceed. In terms, prohibition was now unqualified; and although it was known that licenses for intercourse with interdicted harbors were freely issued, the overt offence of prescribing British channels to neutral navigation was avoided. Within the area of restriction, "No trade save through England" was thus converted, in form, to no trade at all. This narrowing of the constructive blockade system, combined with the relaxations effected by the Non-Intercourse Act, and with the food requirements of the Spanish peninsula, did much to revive American commerce; which, however, did not again before the war regain the fair proportions of the years preceding the embargo. The discrepancy was most marked in the re-exportation of foreign tropical produce, sugar and coffee, a trade dependent wholly upon war conditions, and affecting chiefly the shipping interest engaged in carrying it. For this falling off there were several causes. After 1809 the Continental system was more than ever remorselessly enforced, and it was to the Continent almost wholly that Americans had carried these articles. The Spanish colonies were now open to British as well as American customers; and the last of the French West Indies having passed into British possession, trade with them was denied to foreigners by the Navigation Act. In 1807 the value of the colonial produce re-exported from the United States was $59,643,558; in 1811, $16,022,790. The exports of domestic productions in the same years were: 1807, $48,699,592; in 1811, $45,294,043. In connection with these figures, as significant of political conditions, it is interesting to note that of the latter sum $18,266,466 went to Spain and Portugal, chiefly to supply demands created by war. So with tropical produce; out of the total of $16,022,790, $5,772,572 went to the Peninsula, and an equal amount to the Baltic, that having become the centre of accumulation, from which subsequent distribution was made to the Continent in elusion of the Continental System. The increasing poverty of the Continent, also, under Napoleon's merciless suppression of foreign commerce, greatly lessened the purchasing power of the inhabitants. The great colonial trade had wasted under the combined action of British Orders and French Decrees, supplemented by changes in political relations. The remote extremities of the Baltic lands and the Spanish peninsula now alone sustained its drooping life.

Coincident with Erskine's recall had been the appointment of his successor, Mr. Francis J. Jackson, who took with him not only the usual credentials, but also full powers for concluding a treaty or convention.[294] He departed for his post under the impulse of the emotions and comments excited by the manner and terms in which Erskine's advances had been met, with which Canning had forborne to trouble Pinkney. Upon his arrival in Washington, disappointment was expressed that he had no authority to give any explanations of the reasons why his Government had disavowed arrangements, entered into by Erskine, concerning not only the withdrawal of the Orders in Council,--as touching the United States,--but also the reparation for the "Chesapeake" business. This Erskine had offered and concluded, coincidently with the revocation of the Orders, though not in connection with it; but in both instances his action was disapproved by his Government. After two verbal conferences, held within a week of Jackson's arrival, the Secretary of State, Mr. Robert Smith, notified him on October 9 that it was thought expedient, for the present occasion, that further communication on this matter should be in writing. There followed an exchange of letters, which in such circumstances passed necessarily under the eyes of President Madison, who for the eight preceding years had held Smith's present office.

This correspondence[295] presents an interesting exhibition of diplomatic fencing; but beyond the discussion, pro and con, of the matters in original and continuous dispute between the two countries, the issue turned upon the question whether the United States had received the explanation due to it,--in right and courtesy,--of the reasons for disavowing Erskine's agreements. Smith maintained it had not. Jackson rejoined that sufficient explanation had been given by the terms of Canning's letter of May 27 to Pinkney, announcing that Erskine had been recalled because he had acted in direct contradiction to his instructions; an allegation sustained by reading to the American minister the instructions themselves. In advancing this argument, Jackson stated also that Canning's three conditions had been made known by Erskine to the American Government, which, in declining to admit them, had suggested substitutes finally accepted by Erskine; so that the United States understood that the arrangement was reached on another basis than that laid down by Canning. This assertion he drew from the expressions of Erskine in a letter to Canning, after the disavowal. Smith replied that Erskine, while not showing the despatch, had stated the three stipulations; that they had been rejected; and that the subsequent arrangement had been understood to be with a minister fully competent to recede from his first demand and to accept other conditions. Distinctly he affirmed, that the United States Government did not know, at any time during the discussion preceding the agreement, that Erskine's powers were limited by the conditions in the text of his instructions, afterwards published. That he had no others, "is now for the first time made known to this Government," by Jackson's declaration.

Jackson had come prepared to maintain, not only the British contention, but the note set by Canning for British diplomatic correspondence. He was conscious too of opposing material force to argument, and had but recently been amid the scenes at Copenhagen, which had illustrated Nelson's maxim that a fleet of ships of the line were the best negotiators in Europe. The position has its advantages, but also its dangers, when the field of warfare is that of words, not deeds; and in Madison, who superintended the American case, he was unequally matched with an adversary whose natural dialectical ability had been tempered and sharpened in many campaigns. There is noticeable, too, on the American side, a labored effort at acuteness of discrimination, an adroitness to exaggerate shades of difference practically imperceptible, and an aptitude to give and take offence, not so evident under the preceding Administration. These suggest irresistibly the absence, over Madison the President, of a moderating hand, which had been held over Madison the Secretary of State. It may be due also to the fact that both the President and his Cabinet were somewhat less indisposed to war than his predecessor had been.

In his answer to Smith Jackson reiterated, what Smith had admitted, that Erskine had made known the three conditions. He added, "No stronger illustration of the deviation from them which occurred can be given than by a reference to the terms of the agreement." As an incidental comment, supporting the contention that Erskine's departure from his sole authority was so decisive as to be a sufficient explanation for the disavowal of his procedure, the words were admissible; so much so as to invite the suspicion that the opponent, who had complained of the want of such explanation, felt the touch of the foil, and somewhat lost temper. Whatever impression of an insinuation the phrase may have conveyed should have been wholly removed by the further expression, in close sequence, "You are already acquainted with the instruction given; and _I have had_[296] the honor of informing you it was the only one." Smith's knowledge that Erskine's powers were limited to the one document is here attributed explicitly to Jackson. The Secretary (or President) saw fit not to recognize this, but took occasion to administer a severe rebuke, which doubtless the general tone of Jackson's letter tended to provoke. "I abstain, sir, from making any particular animadversions on several irrelevant and improper allusions in your letter.... But it would be improper to conclude the few observations to which I purposely limit myself, without adverting to your repetition of a language implying a knowledge, on the part of this Government, that the instructions of your predecessor did not authorize the arrangement formed by him. After the explicit and peremptory asseveration that this Government had no such knowledge, and that with such a knowledge no such arrangement would have been entered into, the view which you have again presented of the subject makes it my duty to apprise you that such insinuations are inadmissible in the intercourse of a foreign minister with a Government that understands what it owes to itself."

Whatever may be thought of the construction placed upon Jackson's words by his opponent, this thrust should have made him look to his footing; but arrogance and temper carried the day, and laid him open to the fatal return which he received. By drawing attention to the qualifying phrase, he could have shown that he had been misunderstood, but he practically accepted the interpretation; for, instead of repelling it, he replied: "In my correspondence with you I have carefully avoided drawing conclusions that did not necessarily follow from the premises advanced by me, and least of all should I think of uttering an insinuation where I was unable to substantiate a fact. To facts, such as I have become acquainted with them, I have scrupulously adhered, and in so doing I must continue, whenever the good faith of his Majesty's Government is called in question," etc. To this outburst the reply was: "You have used language which cannot but be understood as reiterating, and even aggravating, the same gross insinuation. It only remains, in order to preclude opportunities which are thus abused, to inform you that no further communications will be received from you, and that the necessity for this determination will, without delay, be made known to your Government." Jackson thereupon quitted Washington for New York, leaving a _chargé d'affaires_ for transacting current business.

Before leaving the city, however, Jackson, through the channel of the _chargé_, made a statement to the Secretary of State. In this he alleged that the facts which he considered it his duty to state, and to the assertion of which, as facts, exception was taken, and his dismissal attributed, were two. One was, that the three conditions had been submitted by Mr. Erskine to the Secretary of State. This the Secretary had admitted. "The other, namely: that that instruction is the only one, in which the conditions were prescribed to Mr. Erskine, for the conclusion of an arrangement on the matter to which it related, is known to Mr. Jackson by the instructions which he has himself received." This he had said in his second letter; if somewhat obscurely, still not so much so but that careful reading, and indisposition to take offence, could have detected his meaning, and afforded him the opportunity to be as explicit as in this final paper. If Madison, who is understood to have given special supervision to this correspondence,[297] meant the severe rebuke conveyed by his reply as a feint, to lead the British minister incautiously to expose himself to a punishment which his general bearing and that of his Government deserved, he assuredly succeeded; yet it may be questioned who really came best out of the encounter. Jackson had blundered in words; the American Administration had needlessly intensified international bitterness.

Prepossession in reading, and proneness to angry misconception, must be inferred in the conduct of the American side of this discussion; for another notable and even graver instance occurs in the despatch[298] communicating Jackson's dismissal to Pinkney, beyond whose notice it probably was not allowed to go. Canning, in his third rejected condition, had written:

Great Britain, for the purpose of securing _the operation of_ the embargo, and _of_ the bonâ fide intention of America to prevent her citizens from trading with France, and the Powers adopting and acting under the French decrees, is to be considered as being at liberty to capture all such American vessels as shall be found attempting to trade with the ports of such Powers;[299]

and he explained that, unless such permission was granted, "the raising of the embargo nominally as to Great Britain, would raise it, in fact, with respect to all the world," owing to the evident inability of the United States to enforce its orders beyond its own ports.

In the passage quoted, both the explanatory comment and the syntax show that the object of this proposed concession was to secure _the operation_, the effectual working, of the _bonâ fide_ intention expressly conceded to the American Government. The repetition of the preposition "of," before _bonâ fide_, secures this meaning beyond peradventure. Nevertheless Smith, in labored arraignment of the whole British course, wrote to Pinkney as follows:

In urging this concession, Mr. Canning has taken a ground forbidden by those principles of decorum which regulate and mark the proceedings of Governments towards each other. In his despatch the condition is stated to be for the purpose of _securing the bonâ fide intention_ of America, to prevent her citizens from trading with France and certain other Powers; in other words to secure a pledge to that effect against the _malâ fide_ intention of the United States. And this despatch too was authorized to be communicated _in extenso_ to the Government, of which such language was used.[300]

Being addressed only to Pinkney, a man altogether too careful and shrewd not to detect the mistake, no occasion arose for this grave misstatement doing harm, or receiving correction. But, conjoined with the failure to note that Jackson in his second letter had attributed to his own communication the American Government's knowledge that Erskine had no alternative instructions, the conclusion is irresistible that the President acted, perhaps unconsciously, under impulses foreign to the deliberate care which should precede and accompany so momentous an act as the refusal to communicate with an accredited foreign minister. It will be remembered that this action was taken on grounds avowedly independent of the reasonableness or justice of the British demands. It rested purely on the conduct of the minister himself.

This incident powerfully furthered the alienation of the two nations, for the British Government not only refused to disapprove Jackson's conduct, but for nearly two years neglected to send a successor, thus establishing strained diplomatic relations. Before finally leaving this unlucky business, it is due to a complete appreciation to mention that, in its very outset, at the beginning of Erskine's well-meant but blundering attempt, the United States Government had overpassed the limits of diplomatic civility. Canning was a master of insolence; he could go to the utmost verge of insult and innuendo, without absolutely crossing the line which separates them from formal observance of propriety; but it cannot be said that the American correspondence in this instance was equally adroit. In replying to Erskine's formal offer of reparation for the "Chesapeake" affair, certain points essential to safeguarding the position of the United States were carefully and properly pointed out; then the reparation, as tended, was accepted. There the matter might have dropped; acceptance is acceptance; or, if necessary, failure of full satisfaction on the part of the United States might have been candidly stated, as due to itself. But the Secretary[301] proceeded to words--and mere words--reflecting on the British Sovereign and Government. "I have it in express charge from the President to state, that, while he forbears to insist upon the further punishment of the offending officer, he is not the less sensible of the justice and utility of such an example, nor the less persuaded that it would best comport with what is due from his Britannic Majesty to his own honor."

To the writer nothing quite as bad as this occurs in Jackson's letters, objectionable as they were in tone. With the opinion he agrees; the further employment of Berkeley was indecent, nor was he a man for whom it could be claimed that he was indispensable; but it is one thing to hold an opinion, and another to utter it to the person concerned. Had Madison meant war, he might have spoken as he did, and fought; but to accept, and then to speak words barren of everything but useless insult, is intolerable. Jackson very probably believed that the American Government was lying when it said it did not know the facts as to Erskine's instructions.[302] It would be quite in character that he should; but he did not say so. There was put into his mouth a construction of his words which he heedlessly accepted.

Jackson's dismissal was notified to the British Government through Pinkney, on January 2, 1810.[303] Some time before, a disagreement within the British Cabinet had led to a duel between Castlereagh and Canning, in which the latter was severely wounded. He did not return to the Foreign Office, but was succeeded by the Marquis Wellesley, brother of the future Duke of Wellington. After presenting the view of the correspondence taken by his Government, Pinkney seems to betray a slight uneasiness as to the accuracy of the interpretation placed on Jackson's words. "I willingly leave your Lordship to judge whether Mr. Jackson's correspondence will bear any other construction than that it in fact received; and whether, supposing it to have been erroneously construed, his letter of the 4th of November should not have corrected the mistake, instead of confirming and establishing it."

Wellesley, with a certain indolent nonchalance, characteristic of his correspondence with Pinkney, delayed to answer for two months, and then gave a reply as indifferent in manner as it was brief in terms. Jackson had written, "There appears to have prevailed, throughout the whole of this transaction [Erskine's], a fundamental mistake, which would suggest that his Majesty had proposed to propitiate the Government of the United States, to consent to the renewal of commercial intercourse; ... as if, in any arrangement, his Majesty would condescend to barter objects of national policy and dignity for permission to trade with another country." The phrase was Canning's, and summarized precisely the jealous attitude towards its own prestige characteristic of the British policy of the day. It also defined exactly the theory upon which the foreign policy of the United States had been directed for eight years by the party still in power. Madison and Jefferson had both placed just this construction upon Erskine's tender. "The British Cabinet must have changed its course under a full conviction that an adjustment with this country had become essential."[304] "Gallatin had a conversation with Turreau at his residence near Baltimore. He professes to be confident that his Government will consider England broken down, by the examples she has given in repealing her Orders."[305] "By our unyielding adherence to principle Great Britain has been forced into revocation."[306] Canning and his associates intuitively divined this inference, which after all was obvious enough. The feeling increased their discontent with Erskine, who had placed his country in the false light of receding under commercial pressure from America, and probably enough prepossessed them with the conviction that the American Government could not but have realized that Erskine was acting beyond his powers.

Wellesley, after his manner,--which was not Canning's,--asserted equally the superiority of the British Government to concession for the sake of such advantage. His Majesty regretted the Jackson episode, the more so that no opportunity had been given for him to interpose, which "was the usual course in such cases." Mr. Jackson had written positive assurances that it was not his purpose to give offence; to which the reply was apt, that in such matters it is not enough to intend, but to succeed in avoiding offence.[307] "His Majesty has not marked, with any expression of his displeasure, the conduct of Mr. Jackson, who does not appear, on this occasion, to have committed any intentional offence against the Government of the United States." A _chargé_ would be appointed to carry on the ordinary intercourse, but no intention was expressed of sending another minister. Persistence in this neglect soon became a further ground of bad feeling.

By its own limitations the Non-Intercourse Act was to expire at the end of the approaching spring session of the new Congress, but it was renewed by that body to the end of the winter session. During the recess the Jackson episode occurred, and was the first subject to engage attention on reassembling, November 27, 1809. After prolonged discussion in the lower house,[308] a joint resolution was passed approving the action of the Executive, and pledging to him the support of the nation. Despite a lucid exposition by Josiah Quincy, that the offence particularly attributed to the British minister was disproved by a reasonable attention to the construction of his sentences, the majority persisted in sustaining the party chief. That disposed of, the question of commercial restriction was again taken up.

It was conceded on all sides that Non-Intercourse had failed, and precisely in the manner predicted. On the south, Amelia Island,--at the mouth of the St. Mary's River, just outside the Florida boundary,--and on the north Halifax, and Canada in general, had become ports of deposit for American products, whence they were conveyed in British ships to Great Britain and her dependencies, to which the Act forbade American vessels to go. The effect was to give the carrying of American products to British shipping, in precise conformity with the astute provisions of the Navigation Acts. British markets were reached by a broken voyage, the long leg of which, from Amelia and Halifax to Europe and elsewhere, was taken by British navigation. It was stated that there were at a given moment one hundred British vessels at Amelia,[309] the shores of which were encumbered with American goods awaiting such transportation. The freight from the American ports to Amelia averaged a cent a pound, from Amelia to England eight cents;[310] the latter amount going to British pockets, the former to Americans who were debarred from full transatlantic freight by the prohibitions of the Non-Intercourse Act. The absence of competition necessarily raised the prices obtainable by the British shipper, and this, together with the additional cost of transshipment and delays, attendant upon a broken voyage, fell upon the American agriculturist, whose goods commanded just so much less at their place of origin. The measure was even ingeniously malaprop, considered from the point of view of its purpose towards Great Britain, whether retaliatory or coercive. Upon France its effect was trivial, in any aspect. There was no French navigation, and the Orders in Council left little chance for American vessels to reach French ports.

All agreed that the Non-Intercourse Act must go; the difficulty was to find a substitute which should not confessedly abandon the whole system of commercial restrictions, idealized by the party in power, but from which it was being driven foot by foot. A first measure proposed was to institute a Navigation Act, borrowed in broad outline from that of Great Britain, but in operation applied only to that nation and France, in retaliation for their injurious edicts.[311] Open intercourse with the whole world should be restored; but British and French merchant ships, as well as vessels of war, should be excluded from American harbors. British and French products could be imported only in vessels owned wholly by American citizens; and after April 15, 1810, could be introduced only by direct voyage from the place of origin. This was designed to prevent the continuance of trade by way of Amelia or Halifax. It was pointed out in debate, however, that French shipping practically did not exist, and that in the days of open trade, before the embargo, only about eight thousand tons of British shipping yearly entered American ports, whereas from three hundred thousand to four hundred thousand American tons visited Great Britain.[312] Should she, by a strict retaliation, resent this clumsy attempt at injuring her, the weight of the blow would fall on Americans. American ships would be excluded from British ports; the carrying trade to Amelia and Halifax would be resumed, to the detriment of American vessels by a competition which otherwise would not exist, and British manufactures would be introduced by smuggling, to the grievous loss of the revenue, as had been notoriously and abundantly the case under the Non-Intercourse Act. In truth, a purely commercial war with Great Britain was as injurious as a military war, and more hopeless.

The bill consequently failed in the Senate, though passed by the House. In its stead was adopted an Act which repealed that of Non-Intercourse, but prescribed that in case either Great Britain or France, before March 3, 1811, should so revoke or modify its edicts as that they should cease to violate the neutral commerce of the United States, the President should declare the fact by proclamation; and if the other nation should not, within three months from the date of such proclamation, in like manner so modify or revoke its edicts, there should revive against it those sections of the Non-Intercourse Act which excluded its vessels from American ports, and forbade to American vessels importation from its ports, or of its goods from any part of the world whatsoever. The determination of the fact of revocation by either state was left to the sole judgment of the President, by whose approval the Act became law May 1, 1810.[313]

As Great Britain and France, by the Orders in Council and the Berlin and Milan Decrees, were then engaged in a commercial warfare, in which the object of each was to exhaust its rival, the effect of this Act was to tender the co-operation of the United States to whichever of them should embrace the offer. In terms, it was strictly impartial between the two. In fact, forasmuch as France could not prevent American intercourse with Great Britain, whereas Great Britain, in furtherance of her purposes, could and did prevent American trade with France, the latter had much more to gain; and particularly, if she should so word her revocation as to save her face, by not appearing the first to recede,--to show weakening,--as Great Britain had been made for the moment to seem by Erskine's arrangement. Should this ingenious diplomacy prove satisfactory to the President, yet fail so to convince Great Britain as to draw from her the recall of the Orders in Council, the United States, by the simple operation of the law itself, would become a party to the Emperor's Continental system, in its specific aim of reducing his opponent's strength.

At this very moment Napoleon was putting into effect against the United States one of those perverse and shameless interpretations of international relations, or actions, by which he not infrequently contrived to fill his pockets. The Non-Intercourse Act, passed March 3, 1809, had decreed forfeiture of any French or British ship, or goods, which should enter American waters after May 20, of the same year. The measure was duly communicated to the French Government, and no remonstrance had been made against a municipal regulation, which gave ample antecedent warning. There the matter rested until March 23, 1810, when the Emperor, on the ground of the Act, imposing these confiscations and forbidding American vessels to visit France, signed a retroactive decree that all vessels under the flag of the United States, which, since May 20, 1809, had entered ports of his empire, colonies, or of the countries occupied by his arms, should be seized and sold. Commissioners were sent to Holland to enforce there this edict, known as the Decree of Rambouillet, which was not actually published till May 14.[314] It took effect upon vessels which, during a twelvemonth previous, unwarned, had gone to France, or the other countries indicated. Immediately before it was signed, the American minister, Armstrong, had written to Champagny, Duke of Cadore, the French Minister of Foreign Affairs, "Your Excellency knows that there are not less than one hundred American ships within his Majesty's possession, or that of his allies;" and he added that, from several sources of information, he felt warranted in believing that not a single French vessel had violated the Non-Intercourse law, and therefore none could have been seized.[315]

The law of May 1 was duly communicated to the two states concerned, by the United States ministers there resident. Great Britain was informed that not only the Orders in Council, but the blockade of May, 1806,[316] were included among the edicts affecting American commerce, the repeal of which was expected, as injurious to that commerce. France was told that this demand would be made upon her rival;[317] but that it was also the purpose of the President not to give the law effect favorable to herself, by publishing a proclamation, if the late seizures of the property of citizens of the United States had been followed by absolute confiscation, and restoration were finally refused.[318] This referred not to the Rambouillet Decree, as yet unknown in America, but to the previous seizures upon various pretexts, mentioned above by Armstrong. Ultimately this purpose was not adhered to; but the Emperor was attentive to the President's intimation that "by putting in force, agreeably to the terms of this statute, the non-intercourse against Great Britain, the very species of resistance would be made which France has constantly been representing as most efficacious."[319] Thus, the co-operation of America to the Continental System was no longer asked, but offered.

The Emperor did not wait even for information by the usual official channels. By some unexplained delay, Armstrong's first knowledge was through a copy of the Gazette of the United States containing the Act, which he at once transmitted to Champagny, who replied August 5, 1810.[320] His Majesty wished that the acts of the United States Government could be more promptly communicated; not till very lately had he heard of the Non-Intercourse,--a statement which Armstrong promptly denied, referring Champagny to the archives of his own department.[321] In view of the Act of May 1, the Emperor's decision was announced in a paragraph of the same letter, in the following words:

In this new state of things I am authorized to declare to you, Sir, that the Decrees of Berlin and Milan are revoked, and that after the first of November they will cease to have effect; it being understood that, in consequence of this declaration, the English shall revoke their Orders in Council, and renounce the new principles of blockade, which they have wished to establish; or that the United States, conformably to the Act which you have just communicated, shall cause their rights to be respected by the English.

Definition is proverbially difficult; and over this superficially simple definition of circumstances and conditions, under which the Decrees of Berlin and Milan stood revoked, arose a discussion concerning construction and meaning which resembled the wrangling of scholars over a corrupt text in an obscure classical author. Clear-headed men became hopelessly involved, as they wrestled with each others' interpretations; and the most got no farther than sticking to their first opinions, probably reached in the majority of cases by sheer prepossession. The American ministers to France and Great Britain both accepted the words as a distinct, indisputable, revocation; and Madison followed suit. These hasty conclusions are not very surprising; for there was personal triumph, dear to diplomatists as to other men, in seeing the repeal of the Decrees, or of the Orders, result from their efforts. It has been seen how much this factor entered into the feelings of Madison and Jefferson in the Erskine business, and to Armstrong the present turn was especially grateful, as he was about quitting his mission after several years buffeting against wind and tide. His sun seemed after all about to set in glory. He wrote to Pinkney, "I have the honor to inform you that his Majesty, the Emperor and King, has been pleased to revoke his Decrees of Berlin and Milan."[322] Pinkney, to whom the recall of the British Orders offered the like laurels, was equally emphatic in his communication to Wellesley; adding, "I take for granted that the revocation of the British Orders in Council of January and November, 1807, April, 1809, and all other orders dependent upon, or analogous, or in execution of them, will follow of course."[323] The British Government demurred to the interpretation; but Madison accepted it, and on November 2 proclaimed it as a fact. In consequence, by the terms of the Act, non-intercourse would revive against Great Britain on February 2, 1811.

When Congress met, distrust on one side and assertion on the other gave rise to prolonged and acute discussion. Napoleon had surprised people so often, that no wonder need be felt at those who thought his words might bear a double meaning. The late President, who did not lack sagacity, had once written to his successor, "Bonaparte's policy is so crooked that it eludes conjecture. I fear his first object now is to dry up the sources of British prosperity, by excluding her manufactures from the Continent. He may fear that opening the ports of Europe to our vessels will open them to an inundation of British wares."[324] This was exactly Bonaparte's dilemma, and suggested the point of view from which his every action ought to be scrutinized. Then there was the recent deception with Erskine, which, if it increased the doubts of some concerning the soundness of Madison's judgment, made it the more incumbent on others to show that on this occasion at least he had not been precipitate. Certainly, as regards the competency of the foreign official in either case, there was no comparison. A simple Minister Resident should produce particular powers or definite instructions, to guarantee his authority for concluding so important a modification of national policy as was accepted from Erskine; but by common usage the Minister of Foreign Affairs, at a national capital, is understood to speak for the Chief Executive. The statement of Champagny, at Paris, that he was "authorized" to make a specific declaration, could be accepted as the voice of Napoleon himself. The only question was, what did the voice signify?

In truth, explicit as Champagny's words sound, Napoleon's memoranda,[325] on which they were based, show a deliberate purpose to avoid a formal revocation, for reasons analogous to those suggested by Jefferson. Throughout he used "_rapporter_" instead of "_révoquer_." In the particular connection, the words are nearly synonymous; yet to the latter attaches a natural fitness and emphasis, the avoidance of which betrays the bias, perhaps unconscious, towards seeking escape from self-committal on the matter in hand. His phrases are more definite. July 31 he wrote, "After much reflection upon American affairs, I have decided that to withdraw (_rapporter_) my decrees of Berlin and Milan would conduce to nothing (_n'aurait aucun effet_); that it is better you should address a note to Mr. Armstrong, in which you will acquaint him that you have placed before me the details contained in the American gazette, ... and since he assures us it may be regarded as official, he may depend (_compter_) that my decrees of Berlin and Milan will not receive execution (_n'auront aucun effet_) dating from November 1; and that he should consider them as withdrawn (_rapportés_) in consequence of the Act of the American Congress; provided," etc. "This," he concludes, "seems to me more suitable than a decree, which would cause disturbance and would not fulfil my aim. This method seems to me more conformable to my dignity and to the serious character of the business." The Decrees, as touching the United States alone, were to be quietly withdrawn from action, but not formally revoked. They were to be dormant, yet potential. As convenience might dictate, it would be open to say that they were revoked [in effect], or not revoked [in form]. The one might, and did, satisfy the United States; the other might not, and did not, content Great Britain, against whom exclusion from the continent remained in force. The two English-speaking peoples were set by the ears. August 2 the Emperor made a draft of the note to be sent to Armstrong. This Champagny copied almost verbatim in the declaration quoted; substituting, however, "_révoquer_" for "_rapporter_."

It would be intolerable to attempt to drag readers through the mazes of analysis, and of comparison with other papers, by which the parties to the discussion, ignorant of the above memoranda, sought to establish their respective views. One thing, however, should have been patent to all,--that, with a man so subtle and adroit as Napoleon, any step in apparent reversal of a decided and cherished policy should have been complete and unequivocal, both in form and in terms. The Berlin Decree was put forth with the utmost formality with which majesty and power could invest it; the asserted revocation, if apparently explicit, was simply a paragraph in ordinary diplomatic correspondence, stating that revocation had taken place. If so, where was it? An act which undoes another, particularly if an injury, must correspond fully in form to that which it claims to undo. A private insult may receive private apology; but no private expression can atone for public insult or public wrong. In the appreciation of Mr. Madison, in 1807, so grave an outrage as that of the "Chesapeake" called for a special envoy, to give adequate dignity to the proffered reparation. Yet his followers now would have form to be indifferent to substantial effect. Champagny's letter, it is true, was published in the official paper; but, besides being in form merely a diplomatic letter, it bore the signature of Champagny, whereas the decree bore that of Napoleon. The Decree of Rambouillet, then less than six months old, was clothed with the like sanction. Even Pinkney, usually so clear-headed, and in utterance incisive, suffered himself here to be misled. Does England find inadequate the "manner" of the French Revocation? he asked. "It is precisely that in which the orders of its own Government, establishing, modifying, or removing blockades, are usually proclaimed." But the Decree of Berlin was no mere proclamation of a blockade. It had been proclaimed, in the Emperor's own name, a fundamental law of the Empire, until England had abandoned certain lines of action. This was policy against policy, to which the blockade was incidental as a method. English blockades were announced and withdrawn under identical forms of circular letter; but when an Order in Council, as that of November, 1807, was modified, as in April, 1809, it was done by an Order in Council, not by a diplomatic letter. In short, Champagny's utterance was the declaration of a fact; but where was the fact itself?

Great Britain therefore refused to recognize the letter as a revocation, and could not be persuaded that it was by the opinion of the American authorities. Nor was the form alone inadequate; the terms were ambiguous, and lent themselves to a construction which would deprive her of all benefit from the alleged revocation. She had to look to her own battle, which reached its utmost intensity in this year 1810. Except the helpless Spanish and Portuguese insurgents, she had not an open friend in Europe; while Napoleon, freed from all opponents by the overthrow of Austria in 1809, had organized against Great Britain and her feeble allies the most gigantic display of force made in the peninsula since his own personal departure thence, nearly two years before. The United States had plain sailing; so far as the letter went, the Decrees were revoked, conditional on her executing the law of May 1. But Great Britain must renounce the "new" principles of blockade. What were these principles, pronounced new by the Decree? They were, that unfortified ports, commercial harbors, might be blockaded, as the United States a half century later strangled the Southern Confederacy. Such blockades were lawful then and long before. To yield this position would be to abandon rights upon which depended the political value of Great Britain's maritime supremacy; yet unless she did so the Berlin Decree remained in force against her. The Decree was universal in application, not limited to the United States commerce, towards which Champagny's letter undertook to relax it; and British commerce would remain excluded from neutral continental ports unless Great Britain not only withdrew the Orders in Council, but relinquished prescriptive rights upon which, in war, depended her position in the world.

In declining to repeal, Great Britain referred to her past record in proof of consistency. In the first communication of the Orders in Council, February 23, 1808,[326] Erskine had written, "I am commanded by his Majesty especially to represent to the Government of the United States the earnest desire of his Majesty to see the commerce _of the world_ restored once more to that freedom which is necessary for its prosperity, and his readiness to abandon the system which has been forced upon him, _whenever the enemy shall retract the principles_ which have rendered it necessary." The British envoy in these sentences reproduced _verbatim_ the instructions he had received,[327] and the words italicized bar expressly the subsequent contention of the United States, that revocation by one party as to one nation, irrespective of the rest _of the world_, and that in practice only, not in principle, entitled the nation so favored to revocation by the other party. They exclude therefore, by all the formality of written words at a momentous instant, the singular assertion of the American Government, in 1811, that Great Britain had pledged herself to proceed "_pari passu_"[328] with France in the revocation of their respective acts. As far as can be ascertained, the origin of this confident assumption is to be found in letters of February 18 and 19, 1808,[329] from Madison, then Secretary of State, to Armstrong and Pinkney. In these he says that Erskine, in communicating the Orders,[330] expressed his Majesty's regrets, and "assurances that his Majesty would readily follow the example, in case the Berlin Decree should be rescinded, or would proceed _pari passu_ with France in relaxing the rigor of their measures." By whichever of the colloquists the expression was used, the contrast between this report of an interview and the official letter quoted sufficiently shows the snare latent in conversations, and the superior necessity of relying upon written communications, to which informal talk only smooths the way. On the very day of Madison's writing to Armstrong, February 18, the Advocate General, who may be presumed to have understood the purposes of the Government, was repudiating such a construction in the House of Commons. "Even let it be granted that there had been a public assurance to America that she alone was to be excepted from the influence of the Berlin Decree, would that have been a sufficient ground for us not to look further to our own interest? What! Because France chooses to exempt America from her injurious decrees, are we to consent to their continuance?"[331] Where such a contradiction exists, to assert a pledge from a Government, and that two years after Erskine's singular performance of 1809, which led to his recall, is a curious example of the capacity of the American Administration, under Madison's guidance, for putting words into an opponent's mouth. In the present juncture, Wellesley replied[332] to Pinkney's claim for the revocation of the Orders in Council by quoting, and repeating, the assurance of Erskine's letter of February 23, 1808, given above.

Yet, unless the Orders in Council were repealed, Napoleon's concessions would not go far to relieve the United States. The vessels he would admit would be but the gleanings, after British cruisers had reaped the ocean field. Pinkney, therefore, had to be importunate in presenting the demands of his Government. Wellesley persisted in his method of procrastination. At last, on December 4, he wrote briefly to say that after careful inquiry he could find no authentic intelligence of the repeal, nor of the restoration of the commerce of neutral nations to its previous conditions. He invited, however, a fresh statement from Pinkney, who then, in a letter dated December 10,[333] argued the case at length, under the three heads of the manner, or form, the terms, and the practical effect of the alleged repeal. Having completed the argument, he took incidental occasion to present the views of the United States concerning the whole system of the Orders in Council; animadverting severely, and emphasizing with liberal italics. The Orders went far beyond any intelligible standard of _retaliation_; but it soon appeared that neutrals might be permitted to traffic, if they would submit with a dependence _truly colonial_ to carry on their trade through British ports, to pay such duties as the British Government might impose, and such charges as British agents might make. The modification of April 26, 1809, was one of appearance only. True, neutrals were no longer compelled to enter British ports; their prohibition from interdicted ports was nominally absolute; but it was known that by coming to Great Britain they could obtain a license to enter them, so that the effect was the same; and by forged papers this license system was so extended "that the commerce of _England_ could advantageously find its way to those ports."[334]

Wellesley delayed reply till December 29.[335] He regretted the intrusion of these closing remarks, which might tend to interfere with a conciliatory spirit, but without further comment on them addressed himself to the main question. His Government did not find the "notification" of the repeal of the French Decrees such as would justify it in recalling the Orders in Council. The United States having demanded the formal revocation of the blockade of May, 1806, as well as of the Orders in Council, he "must conclude, combining your requisition with that of the French Minister, that America demands the revocation of that order of blockade, as a practical instance of our renunciation of those principles of blockade which are condemned by the French Government." This inference seems overstrained; but certainly much greater substantial concession was required of Great Britain than of France. Wellesley intimated that this concert of action was partial--not neutral--between the two belligerents. "I trust that the justice of the American Government will not consider that France, by the repeal of her obnoxious decrees, _under such a condition_,[336] has placed the question in that state which can warrant America in enforcing the Non-Intercourse Act against Great Britain, and not against France." He reminded Pinkney of the situation in which the commerce of neutral nations had been placed by many recent acts of the French Government; and said that its system of violence and injustice required some precautions of defence on the part of Great Britain. In conclusion, his Majesty stood ready to repeal, when the French Decrees should be repealed without conditions injurious to the maritime rights and honor of the United Kingdom.

Unhappily for Pinkney's argument on the actuality of Napoleon's repeal, on the very day of his own writing, December 10, the American _chargé_[337] in Paris, Jonathan Russell, was sending Champagny a remonstrance[338] upon the seizure of an American vessel at Bordeaux, under the decrees of Berlin and Milan, on December 1,--a month after their asserted repeal. That the Director of Customs at a principal seaport should understand them to be in force, nearly four months after the publication of Champagny's letter in the "Moniteur," would certainly seem to imply some defect in customary form;[339] and the ensuing measures of the Government would indicate also something misleading in the terms. Russell told Champagny that, since November 1, the alleged day of repeal, this was the first case to which the Berlin and Milan Decrees could apply; and lo! to it they were applied. Yet, "to execute the Act of Congress against the English requires the previous revocation of the decrees." It was, indeed, ingeniously argued in Congress, by an able advocate of the Administration, that all the law required was the revocation in terms of the Decrees; their subsequent enforcement in act was immaterial.[340] Such a solution, however, would scarcely content the American people. The French Government now took a step which clearly showed that the Decrees were still in force, technically, however honest its purpose to hold to the revocation, if the United States complied with the conditions. Instructions to the Council of Prizes,[341] from the proper minister, directed that the vessel, and any others falling under the same category of entry after November 1, should "remain suspended" until after February 2, the period at which the United States should have fulfilled its obligation. Then they should be restored.

The general trend of argument, pro and con, with the subsequent events, probably shook the confidence of the Administration, and of its supporters in Congress, in the certainty of the revocation, which the President had authenticated by his proclamation. Were the fact unimpeachable, the law was clear; non-intercourse with Great Britain would go into effect February 2, without further action. But the doubts started were so plausible that it was certain any condemnation or enforcement under the law would be carried up to the highest court, to test whether the fact of revocation, upon which the operativeness of the statute turned, was legally established. Even should the court decline to review the act of the Executive, and accept the proclamation as sufficient evidence for its own decision, such feeble indorsement would be mortifying. A supplementary Act was therefore framed, doing away with the original, and then reviving it, as a new measure, against Great Britain alone. In presenting this, the member charged with its introduction said: "The Committee thought proper that in this case the legislature should step forward and decide; that it was not consistent with the responsibility they owed the community to turn over to judicial tribunals the decision of the question, whether the Non-Intercourse was in force or not."[342] The matter was thus taken from the purview of the courts, and decided by a party vote. After an exhausting discussion, this bill passed at 4 A.M., February 28, 1811. It was approved by the President, March 2.

For the settlement of American litigation this course was adequate; not so for the vindication of international procedure. The United States at this time had abundant justification for war with both France and Great Britain, and it was within the righteous decision of her own policy whether she should declare against either or both; but it is a serious impeachment of a Government's capacity and manfulness when, with such questions as Impressment, the Orders in Council, Napoleon's Decrees, and his arbitrary sequestrations, war comes not from a bold grappling with difficulties, but from a series of huckstering attempts to buy off one antagonist or the other, with the result of being fairly overreached. The outcome, summarily stated, had been that a finesse of the French Government had attached the United States to Napoleon's Continental System. She was henceforth, in effect, allied with the leading feature of French policy hostile to Great Britain. It was perfectly competent and proper for her so to attach herself, if she saw fit. The Orders in Council were a national wrong to her, justifying retaliation and war; still more so was Impressment. But it is humiliating to see one's country finally committed to such a step through being outwitted in a paltry bargain, and the justification of her course rested, not upon a firm assertion of right, but upon the refusal of another nation to accept a manifestly unequal proposition. The course of Great Britain was high-handed, unjust, and not always straightforward; but it was candor itself alongside of Napoleon's.

There remained but one step to complete the formal breach; and that, if the writer's analysis has been correct, resulted as directly as did the final Non-Intercourse Act from action erroneously taken by Mr. Madison's Administration. Jackson's place, vacated in November, 1809, by the refusal to communicate further with him, remained still unfilled. This delay was thought deliberate by the United States Government, which on May 22 wrote to Pinkney that it seemed to manifest indifference to the character of the diplomatic intercourse between the two countries, arising from dissatisfaction at the step necessarily taken with regard to Mr. Jackson. Should this inference from Wellesley's inaction prove correct, Pinkney was directed to return to the United States, leaving the office with a _chargé d'affaires_, for whom a blank appointment was sent. He was, however, to exercise his own judgment as to the time and manner. In consequence of his interview with Wellesley, and in reply to a formal note of inquiry, he received a private letter, July 22, 1810, saying it was difficult to enter upon the subject in an official form, but that it was the Secretary's intention immediately to recommend a successor to Jackson. Still the matter dragged, and at the end of the year no appointment had been made.

In other ways, too, there was unexplained delay. In April Pinkney had received powers to resume the frustrated negotiations committed first to him and Monroe. Wellesley had welcomed the advance, and had accepted an order of discussion which gave priority to satisfaction for the "Chesapeake" affair. After that an arrangement for the revocation of the Orders in Council should be attempted. On June 13 Pinkney wrote home that a verbal agreement conformable to his instructions had been reached concerning the "Chesapeake," and that he was daily expecting a written overture embodying the terms. August 14 this had not been received,--to his great surprise, for Wellesley's manner had shown every disposition to accommodate. Upon this situation supervened Cadore's declaration of the revocation of the French Decrees, Pinkney's acceptance of the fact as indisputable, and his urgency to obtain from the British Government a corresponding measure in the repeal of the Orders. Through all ran the same procrastination, issuing in entire inaction.

Pinkney's correspondence shows a man diplomatically self-controlled and patient, though keenly sensible to the indignity of unwarrantable delays. The rough speaking of his mind concerning the Orders in Council, in his letter of December 10, suggests no loss of temper, but a deliberate letting himself go. There appeared to him now no necessity for further endurance. To Wellesley's rejoinder of December 29 he sent an answer on January 14, 1811, "written," he said, "under the pressure of indisposition, and the influence of more indignation than could well be suppressed."[343] The questions at issue were again trenchantly discussed, but therewith he brought to an end his functions as minister of the United States. Under the same date, but by separate letter, he wrote that as no steps had been taken to replace Jackson by an envoy of equal rank, his instructions imposed on him the duty of informing his lordship that the Government of the United States could not continue to be represented in England by a minister plenipotentiary. Owing to the insanity of the King, and the delays incident to the institution of a regency, his audience of leave was delayed to February 28; and it is a noticeable coincidence that the day of this formal diplomatic act was also that upon which the Non-Intercourse Bill against Great Britain passed the House of Representatives. In the course of the spring Pinkney embarked in the frigate "Essex" for the United States. He had no successor until after the War of 1812, and the Non-Intercourse Act remained in vigor to the day of hostilities.

On February 15, a month after Pinkney's notification of his intended departure, Wellesley wrote him that the Prince Regent, whose authority as such dated only from February 5, had appointed Mr. Augustus J. Foster minister at Washington. The delay had been caused in the first instance, "as I stated to you repeatedly," by the wish to make an appointment satisfactory to the United States, and afterwards by the state of his Majesty's Government; the regal function having been in abeyance until the King's incapacity was remedied by the institution of the Regent. Wellesley suggested the possibility of Pinkney reconsidering his decision, the ground for which was thus removed; but the minister demurred. He replied that he inferred, from Wellesley's letter, that the British Government by this appointment signified its intention of conceding the demands of the United States; that the Orders in Council and blockade of May, 1806, would be annulled; without this a beneficial effect was not to be expected. Wellesley replied that no change of system was intended unless France revoked her Decrees. The effect of this correspondence, therefore, was simply to place Pinkney's departure upon the same ground as the new Non-Intercourse Act against Great Britain.

Mr. Augustus John Foster was still a very young man, just thirty-one. He had but recently returned from the position of minister to Sweden, the duties of which he had discharged[344] during a year very critical for the fortunes of that country, and in the event for Napoleon and Europe. Upon his new mission Wellesley gave him a long letter of instructions,[345] in which he dealt elaborately with the whole course of events connected with the Orders in Council and Bonaparte's Decree, especially as connected with America. In this occurs a concise and lucid summary of the British policy, which is worth quoting. "From this view of the origin of the Orders in Council, you will perceive that the object of our system was not to crush the trade of the continent, but to counteract an attempt to crush British trade; that we have endeavored to permit the continent to receive as large a portion of commerce as might be practicable through Great Britain, and that all our subsequent regulations, and every modification of the system, by new orders, or modes of granting or withholding licenses, have been calculated for _the purpose of encouraging the trade of neutrals through Great Britain_,[346] whenever such encouragement might appear advantageous to the general interests of commerce and consistent with the public safety of the nation,--the preservation of which is the primary object of all national councils, and the paramount duty of the Executive power."

In brief, the plea was that Bonaparte by armed constraint had forced the continent into a league to destroy Great Britain through her trade; that there was cause to fear these measures would succeed, if not counteracted; that retaliation by similar measures was therefore demanded by the safety of the state; and that the method adopted was retaliation, so modified as to produce the least possible evil to others concerned. It was admitted and deplored that prohibition of direct trade with the ports of the league injuriously affected the United States. That this was illegal, judged by the law of nations, was also admitted; but it was justified by the natural right of retaliation. Wellesley scouted the view, pertinaciously urged by the American Government, that the exclusion of British commerce from neutral continental ports by the Continental System was a mere municipal regulation, which the United States could not resist. Municipal regulation was merely the cloak, beneath which France concealed her military coercion of states helpless against her policy. "The pretext of municipal right, under which the violence of the enemy is now exercised against neutral commerce in every part of the continent, will not be admitted by Great Britain; nor can we ever deem the repeal of the French Decrees to be effectual, until neutral commerce shall be restored to the conditions in which it stood, previously to the commencement of the French system of commercial warfare, as promulgated in the Decrees."

Foster's mission was to urge these arguments, and to induce the repeal of the Non-Intercourse law against Great Britain, as partial between the two belligerents; who, if offenders against accepted law, were in that offenders equally. The United States was urged not thus to join Napoleon's league against Great Britain, from which indeed, if so supported, the direst distress must arise. It is needless to pursue the correspondence which ensued with Monroe, now Secretary of State. By Madison's proclamation, and the passage of the Non-Intercourse Act of March 2, 1811, the American Government was irretrievably committed to the contention that France had so revoked her Decrees as to constitute an obligation upon Great Britain and upon the United States. To admit mistake, even to one's self, in so important a step, probably passes diplomatic candor, and especially after the blunder in Erskine's case. Yet, even admitting the adequacy of Champagny's letter, the Decrees were not revoked; seizures were still made under them. In November, 1811, Monroe had to write to Barlow, now American minister to France, "It is not sufficient that it should appear that the French Decrees are repealed, in the _final decision_ of a cause brought _before a French tribunal_. An active prohibitory policy should be adopted _to prevent seizures_ on the principle."[347] This was in the midst of his correspondence with Foster. The two disputants threshed over and over again the particulars of the controversy, but nothing new was adduced by either.[348] Conditions were hopeless, and war assured, even when Foster arrived in Washington, in June, 1811.

One thing, however, was finally settled. In behalf of his Government, in reparation for the "Chesapeake" affair, Foster repeated the previous disavowal of Berkeley's action, and his consequent recall; and offered to restore to the ship herself the survivors of the men taken from her. Pecuniary provision for those who had suffered in the action, or for their families, was also tendered. The propositions were accepted, while denying the adequacy of Berkeley's removal from one command to another. The men were brought to Boston harbor, and there formally given up to the "Chesapeake."

Tardy and insufficient as was this atonement, it was further delayed, at the very moment of tendering, by an incident which may be said to have derived directly from the original injury. In June, 1810, a squadron of frigates and sloops had been constituted under Commodore John Rodgers, to patrol the coast from the Capes of the Chesapeake northward to the eastern limit of the United States. Its orders, generally, were to defend from molestation by a foreign armed ship all vessels of the United States within the marine league, seaward, to which neutral jurisdiction was conceded by international law. Force was to be used, if necessary, and, if the offender were a privateer, or piratical, she was to be sent in. So weak and unready was the nominal naval force of the United States, that piracy near her very shores was apprehended; and concern was expressed in Congress regarding vessels from Santo Domingo, thus converted into a kind of local Barbary power. To these general instructions the Secretary of the Navy attached a special reminder. Recalling the "Chesapeake" affair, as a merely exaggerated instance of the contumely everywhere heaped upon the American flag by both belligerents, he wrote: "What has been perpetrated may be again attempted. It is therefore our duty to be prepared and determined at every hazard to vindicate the injured honor of our navy, and revive the drooping spirit of the nation. It is expected that, while you conduct the force under your command consistently with the principles of a strict and upright neutrality, you are to maintain and support at every risk and cost the dignity of our flag; and that, offering yourself no unjust aggression, you are to submit to none, not even a menace or threat from a force not materially your superior."

Under such reminiscences and such words, the ships' guns were like to go off of themselves. It requires small imagination to picture the feelings of naval officers in the years after the "Chesapeake's" dishonor. In transmitting the orders to his captains, Rodgers added, "Every man, woman, and child, in our country, will be active in consigning our names to disgrace, and even the very vessels composing our little navy to the ravages of the worms, or the detestable transmigration to merchantmen, should we not fulfil their expectations. I should consider the firing of a shot by a vessel of war, of either nation, and particularly England, at one of our public vessels, whilst the colors of her nation are flying on board of her, as a menace of the grossest order, and in amount an insult which it would be disgraceful not to resent by the return of two shot at least; while should the shot strike, it ought to be considered an act of hostility meriting chastisement to the utmost extent of all your force."[349] The Secretary indorsed approval upon the copy of this order forwarded to him. Rodgers' apprehension for the fate of the navy reflected accurately the hostile views of leaders in the dominant political party. Demoralized by the gunboat system, and disorganized and browbeaten by the loud-mouthed disfavor of representative Congressmen, the extinction of the service was not unnaturally expected. Bainbridge, a captain of standing and merit, applied at this time for a furlough to make a commercial voyage to China, owing to straitened means. "I have hitherto refused such offers, on the presumption that my country would require my services. That presumption is removed, and even doubts entertained of the permanency of our naval establishment."[350]

The following year, 1811, Rodgers' squadron and orders were continued. The British admirals of adjacent stations, acting doubtless under orders from home, enjoined great caution upon their ships of war in approaching the American coast.[351] While set not to relax the Orders in Council, the ministry did not wish war by gratuitous offence. Cruising, however, continued, though charged with possibilities of explosion. Under these circumstances Rodgers' ship, the "President" frigate, and a British sloop of war, the "Little Belt," sighted each other on May 16, 1811, fifty miles east of Cape Henry. Independent of the general disposition of ships of war in troublous times to overhaul and ascertain the business of any doubtful sail, Rodgers' orders prescribed the capture of vessels of certain character, even outside the three-mile limit; and, the "Little Belt" making sail from him, he pursued. About 8 P.M., it being then full dark, the character and force of the chase were still uncertain, and the vessels within range. The two accounts of what followed differ diametrically; but the British official version[352] is less exhaustive in matter and manner than the American, which rests upon the sworn testimony of numerous competent witnesses before a formal Court of Inquiry.[353] By this it was found proved that the "Little Belt" fired the first gun, which by Rodgers' statement cut away a backstay and went into the mainmast. The batteries of both ships opened, and an engagement followed, lasting twelve or fifteen minutes, during which the "Little Belt," hopelessly inferior in force, was badly cut up, losing nine killed and twenty-three wounded. Deplorable as was this result, and whatever unreconciled doubts may be entertained by others than Americans as to the blame, there can be no question that the affair was an accident, unpremeditated. It was clearly in evidence that Rodgers had cautioned his officers against any firing prior to orders. There was nothing of the deliberate purpose characterizing the "Chesapeake" affair; yet Mr. Foster, with the chariness which from first to last marked the British handling of that business, withheld the reparation authorized by his instructions until he had received a copy of the proceedings of the court.

On July 24, 1811, the President summoned Congress to meet November 4, a month before the usual time, in consequence of the state of foreign affairs. His message spoke of ominous indications; of the inflexible hostility evidenced by Great Britain in trampling upon rights which no independent nation can relinquish; and recommended legislation for increasing the military force. As regarded the navy, his words were indefinite and vague, beyond suggesting the expediency of purchasing materials for ship-building. The debates and action of Congress reflected the tone of the Executive. War was anticipated as a matter of course, and mentioned freely in speeches. That the regular army should be enlarged, and dispositions made for more effective use of the militia, was granted; the only dispute being about the amount of development. In this the legislature exceeded the President's wishes, which were understood, though not expressed in the message. Previous Congresses had authorized an army of ten thousand, of which not more than five thousand were then in the ranks. It was voted to complete this; to add twenty-five thousand more regulars, and to provide for fifty thousand volunteers. Doubts, based upon past experience, and which proved well founded, were expressed as to the possibility of raising so many regular troops, pledged for five years to submit to the restrictions of military life. It was urged that, in the economical conditions of the country, the class did not exist from which such a force could be recruited.

This consideration did not apply to the navy. Seamen could be had abundantly from the merchant shipping, the activities of which must necessarily be much curtailed by war with a great naval power. Nevertheless, the dominance of Jefferson, though in this particular already shaken, remained upon the mass of his party. The new Secretary of the Navy was from South Carolina, not reckoned among the commercial states; but, however influenced, he ventured to intimate doubts as to the gunboat system. Of one thing there was no doubt. On a gunboat a gun cost twelve thousand dollars a year; the same on a frigate cost but four thousand.[354] In the House of Representatives, the strongest support to the development of the navy as a permanent force came from the Secretary's state, backed by Henry Clay from Kentucky, and by the commercial states; the leading representative of which, Josiah Quincy, expressed, however, a certain diffidence, because in the embittered politics of the day the mere fact of Federalist support tended rather to damage the cause.

So much of the President's message as related to the navy--three lines, wholly non-committal--was referred to a special committee. The report[355] was made by Langdon Cheves of South Carolina, whose clear and cogent exposition of the capabilities of the country and the possibility of providing a force efficient against Great Britain, under her existing embarrassments, was supported powerfully and perspicuously by William Lowndes of the same state. The text for their remarks was supplied by a sentence in the committee's report: "The important engine of national strength and national security, which is formed by a naval force, has hitherto been treated with a neglect highly impolitic, or supported by a spirit so languid, as, while it has preserved the existence of the establishment, has had the effect of loading it with the imputations of wasteful expense, and comparative inefficiency.... Such a course is impolitic under any circumstances." This was the condemnation of the party's past. Clay found his delight in dealing with some of the oratory, which on the present occasion still sustained--and for the moment successfully sustained--the prepossessions of Jefferson. Carthage, Rome, Venice, Genoa, were republics with free institutions and great navies; Carthage, Rome, Venice, and Genoa had lost their liberties, and their national existence. Clearly navies, besides being very costly, were fatal to constitutional freedom. Not in reply to such _non sequitur_, but quickened by an insight which was to receive earlier vindication than he could have anticipated, Quincy prophesied that, amid the diverse and contrary interests of the several states, which the lack of a common object of affection left still imperfectly unified in sentiment, a glorious navy, identified with the whole country because of its external action, yet local to no part, would supply a common centre for the enthusiasm not yet inspired by the central government, too closely associated for years back with a particular school of extreme political thought, narrowly territorial and clannish in its origin and manifestation. Within a twelvemonth, the "Constitution," most happily apt of all names ever given to a ship, became the embodiment of this verified prediction.

The report of the committee was modest in its scope. "To the defence of your ports and harbors, and the protection of your coasting trade, should be confined the present objects and operations of any navy which the United States can, or ought, to have." To this office it was estimated that twelve ships of the line and twenty frigates would suffice. Cheves and Lowndes were satisfied that such a fleet was within the resources of the country; and to insure the fifteen thousand seamen necessary to man it, they would be willing to limit the number of privateers,--a most wholesome and necessary provision. By a careful historical examination of Great Britain's past and present exigencies, it was shown that such a force would most probably keep clear the approaches to all American ports, the most critical zone for shipping, whether inward or outward bound; because, to counteract it, the enemy would have to employ numbers so largely superior that they could not be spared from her European conflict. The argument was sound; but unhappily Cheves, Lowndes, Clay, and Quincy did not represent the spirit of the men who for ten years had ruled the country and evolved the gunboat system. These, in their day of power, not yet fully past, had neither maintained the fleet nor accumulated material, and there was no seasoned timber to build with. The Administration which expired in 1801 had left timber for six 74-gun ships, of which now remained only enough for four. The rest had been wasted in gunboats, or otherwise. The committee therefore limited its recommendations to building the frigates, for which it was believed materials could be procured.

Even in this reduced form it proved impossible to overcome the opposition to a navy as economically expensive and politically dangerous. The question was amply debated; but as, on the one hand, little doubt was felt about the rapid conquest of Canada by militia and volunteers, so, on the other, the same disposition to trust to extemporized irregular forces encouraged reliance simply upon privateering. Private enterprise in such a cause undoubtedly has from time to time attained marked results; but in general effect the method is a wasteful expenditure of national resources, and, historically, saps the strength of the regular navy. In the manning of inefficient privateers--and the majority were inefficient and ineffective--were thrown away resources of seamen which, in an adequate naval force, organized and directed as it would have been by the admirable officers of that period, could have accomplished vastly more in the annoyance of British trade,--the one offensive naval undertaking left open to the nation. Even with the assistance of the Federalists the provision for the frigates could not be carried, though the majority was narrow--62 to 59. The same fate befell the proposition to provide a dockyard. All that could be had was an appropriation of six hundred thousand dollars, distributed over three successive years, for buying timber. These votes were taken January 27, 1812, in full expectation of war, and only five months before it was declared.

Early in April, Congress, in secret session, passed an Act of Embargo for ninety days, which became law on the fourth by the President's signature. The motive was twofold: to retain at home the ships and seamen of the nation, in anticipation of war, to keep them from falling into the hands of the enemy; and also to prevent the carriage of supplies indispensably necessary to the British armies in Spain. Both objects were defeated by the action of Quincy, in conjunction with Senator Lloyd of Massachusetts and Representative Emott of New York. Learning that the President intended to recommend the embargo, these gentlemen, as stated by Quincy on the floor of the House, despatched at once to Philadelphia, New York, and Boston, expresses which left Washington March 31, the day before Madison's letter was dated. Four or five days' respite was thus secured, and the whole mercantile community set zealously to work to counteract the effects of the measure. "Niles' Register," published in Baltimore, said: "Drays were working night and day, from Tuesday night, March 31, and continued their toil till Sunday morning, incessantly. In this hurly-burly to palsy the arm of the Government all parties united. On Sunday perhaps not twenty seamen, able to do duty, could be found in all Baltimore." A New York paper is quoted as saying, "The property could not have been moved off with greater expedition had the city been enveloped in flames." From that port forty-eight vessels cleared; from Baltimore thirty-one; Philadelphia and Alexandria in like proportions. It was estimated that not less than two hundred thousand barrels of flour, besides grain in other shapes, and provisions of all kinds, to a total value of fifteen million dollars, were rushed out of the country in those five days, when labor-saving appliances were nearly unknown.[356]

Jonathan Russell, who was now _chargé d'affaires_ at London, having been transferred from Paris upon the arrival of Armstrong's successor, Joel Barlow, wrote home, "The great shipments of provisions, which were hurried from America in expectation of the embargo, have given the Peninsula a supply for about two months; and at the expiration of that period the harvest in that region will furnish a stock for about three months more.... The avidity discovered by our countrymen to escape from the embargo, and the disregard of its policy, have encouraged this Government to hope that supplies will still continue to be received from the United States. The ship 'Lady Madison,' which left Liverpool in March, has returned thither with a cargo taken in off Sandy Hook without entering an American port. There are several vessels now about leaving this country with the intention not only of procuring a cargo in the same way, but of getting rid, illicitly, of one they carry out."[357]

It was, indeed, a conspicuous instance of mercantile avidity, wholly disregardful of patriotic considerations, such as is to be found in all times and in all countries; strictly analogous to the constant smuggling between France and Great Britain at this very time. Its significance in the present case, however, is as marking the widespread lack of a national patriotism, as distinct from purely local advantage and personal interests, which unhappily characterized Americans at this period. Of this Great Britain stood ready to avail herself, by extending to the United States the system of licenses, by which, combined with the Orders in Council, she was combating with a large degree of success Napoleon's Continental System. She hoped, and the sequel showed not unreasonably, that even during open hostilities she could in the same manner thwart the United States in its efforts to keep its own produce from her markets. Less than a fortnight after the American Declaration of War was received, Russell, who had not yet left England, wrote to the Secretary of State that the Board of Trade had given notice that licenses would be granted for American vessels to carry provisions from the United States to Cadiz and Lisbon, for the term of eight months; and that a policy had been issued at Lloyds to a New York firm, insuring flour from that port to the peninsula, warranted free from British capture, and from capture or detention by the Government of the United States.[358]

The British armies were thus nourished and dependent, both in Spain and in Canada. The supplying of the latter scarcely fell short of treason, and decisively affected the maintenance of the war in that quarter. It is difficult to demonstrate a moral distinction between what was done there, disregardful of national success, in shameful support of the enemy, and the supplying of the peninsula; but an intuitive sympathy extends to the latter a tolerance which the motives of the individual agents probably do not deserve, and for which calm reason cannot give a perfectly satisfactory account. But it was the misfortune of American policy, as shaped by the Administration, that it was committed to support Napoleon in his iniquitous attack upon the liberties of Spain; that it saw in his success the probable fulfilment of its designs upon the Floridas;[359] and that its chosen ground for proceeding against Great Britain, rather than France, was her refusal to conform her action to a statement of the Emperor's, the illusory and deceptive character of which became continually more apparent.

To declare war because of the Orders in Council was a simple, straightforward, and wholly justifiable course; but the flying months made more and more evident, to the Government and its agents abroad, that it was vain to expect revocation on the ground of Napoleon's recall of his edicts, for they were not recalled. Having entered upon this course, however, it seemed impossible to recede, or to acknowledge a mistake, the pinch of which was nevertheless felt. Writing to Russell, whose service in Paris, from October, 1810, to October, 1811, and transfer thence to London, made him unusually familiar, on both sides of the Channel, with the controversy over Champagny's letter of August 5, 1810, Madison speaks "of the delicacy of our situation, having in view, on the one hand, the importance of obtaining from the French Government confirmation of the repeal of the Decrees, and on the other that of not weakening the ground on which the British repeal was urged."[360] That is, it would be awkward to have the British ministry find out that we were pressing France for a confirmation of that very revocation which we were confidently asserting to them to be indisputable, and to require in good faith the withdrawal of their Orders. Respecting action taken under the so-called repeal, Russell had written on March 15, 1811, over three months after it was said to take effect, "By forbearing to condemn, or to acquit, distinctly and loyally, [the vessels seized since November 1], this Government encourages us to persevere in our non-importation against England, and England to persist in her orders against us. This state of things appears calculated to produce mutual complaint and irritation, and cannot probably be long continued without leading to a more serious contest, ... which is perhaps an essential object of this country's policy."[361] July 15, he expressed regret to the Duke of Bassano, the French Minister of Foreign Affairs, that the proceedings concerning captured American vessels "had been so partial, and confined to cases which from their peculiar circumstances proved nothing conclusively in relation to the revocation of the French Edicts."[362]

Russell might have found some light as to the causes of these delays, could he have seen a note addressed by the Emperor to the Administration of Commerce, April 29. In this, renewing the reasoning of the Bayonne Decree, he argued that every American vessel which touched at an English port was liable to confiscation in the United States; consequently, could be seized by an American cruiser on the open sea; therefore, was equally open to seizure there by a French cruiser--the demand advanced by Canning[363] which gave such just offence; and if by a French cruiser at sea, likewise in a French port by the French Government. She was in fact no longer American, not even a denationalized American, but an English vessel. Under this supposition, Napoleon luminously inferred, "It could be said: The Decrees of Berlin and Milan are recalled as to the United States, but, as every ship which has stopped in England, or is destined thither, is a ship unacknowledged (_sans aveu_), which American laws punish and confiscate, she may be confiscated in France." The Emperor concluded that should this theory not be capable of substantiation, the matter might for the present be left obscure.[364] On September 13 the ships in question had not been liberated.

Coincidently with his note to Bassano, Russell wrote to Monroe, "It is my conviction that the great object of their policy is to entangle us in a war with England. They therefore abstain from doing any act which would furnish clear and unequivocal testimony of the revocation of their decrees, lest it should induce the extinction of the British Orders, and thereby appease our irritation against their enemy. Hence, of all the captured vessels since November 1, the three which were liberated were precisely those which had not violated the Decrees."[365] Yet, such were the exigencies of the debate with England, those three cases were transmitted by him at the same time to the American _chargé_ in London as evidence of the revocation.[366] To the French Minister he wrote again, August 8, "After the declarations of M. de Champagny and yourself, I cannot permit myself to doubt the revocation; ... but I may be allowed to lament that no fact has yet come to my knowledge of a character unequivocally and incontrovertibly to confirm that revocation." "That none of the captured vessels have been condemned, instead of proving the extinction of the edicts, appears rather to be evidence, at best, of a commutation of the penalty from prompt confiscation to perpetual detention."[367] The matter was further complicated by an announcement of Napoleon to the Chamber of Commerce, in April of the same year, that the Berlin and Milan Decrees were the fundamental law of the Empire concerning neutral commerce, and that American ships would be repelled from French ports, unless the United States conformed to those decrees, by excluding British ships and merchandise.[368] Under such conditions, argument with a sceptical British ministry was attended with difficulties. The position to which the Government had become reduced, by endeavoring to play off France and Great Britain against each other, in order to avoid a war with either, was as perplexing as humiliating. "Great anxiety,"[369] to which little sympathy can be extended, was felt in Washington as to the evidence for the actuality of the repeals.

The situation was finally cleared up by a clever move of the British Cabinet, forcing Napoleon's hand at a moment when the Orders in Council could with difficulty be maintained longer against popular discontent. On March 10, 1812, the French Minister of Foreign Affairs, in a report to the Senate, reiterated the demands of the Decrees, and asserted again that, until those demands were conceded by England, the Decrees must be enforced against Powers which permitted their flags to be denationalized. The position thus reaffirmed was emphasized by a requirement for a large increase of the army for this object. "It is necessary that all the disposable forces of France be available for sending everywhere where the English flag, and other flags, denationalized or convoyed by English ships of war, may seek to enter."[370] No exceptions in favor of the United States being stated, the British ministry construed the omission as conclusive proof of the unqualified continuance of the Decrees;[371] and the occasion was taken to issue an Order in Council, defining the Government's position, both in the past and for the future. Quoting the French minister's Report, as removing all doubts of Napoleon's persistence in the maintenance of a system, "as inconsistent with neutral rights and independence as it was hostile to the maritime rights and commercial interests of Great Britain," the Prince Regent declared that, "if at any time thereafter the Berlin and Milan Decrees should be absolutely and unconditionally repealed, by some authentic act of the French Government, publicly promulgated, then the Orders in Council of January, 1807, and April, 1809, shall without any further order be, and the same are hereby declared from thenceforth to be, wholly and absolutely revoked."[372] No exception could be taken to the phrasing or form of this Order. The wording was precise and explicit; the time fixed was definite,--the date of the French Repeal; the manner of revocation was the same as that of promulgation, an Order in Council observant of all usual formalities.

In substance, this well-timed State Paper challenged Champagny's letter of August 5, 1810, and the American Non-Importation Act based upon it. Both these asserted the revocation of the French Decrees. The British Cabinet, seizing a happy opportunity, asked of the world the production of the revocation, or else the justification of its own course. The demand went far to silence the growing discontents at home, and to embarrass the American Government in the grounds upon which it had chosen to base its action. It was well calculated also to disconcert the Emperor, for, unless he did something more definite, dissension would increase in the United States, where, as Barlow wrote, "It is well known to the world, for our public documents are full of it, that great doubts exist, even among our best informed merchants, and in the halls of Congress itself, whether the Berlin and Milan Decrees are to this day repealed, or even modified, in regard to the United States." The sentence is taken from a letter[373] which he addressed to the French Minister of Foreign Affairs, May 1, 1812, when he had received the recent British Order. He pointed out how astutely this step was calculated to undo the effect of Champagny's letter, and to weaken the American Administration at the critical moment when it was known to be preparing for war. He urged that the French Government should now make and publish an authentic Act, declaring the Berlin and Milan Decrees, as relative to the United States, to have ceased in November, 1810. "Such an act is absolutely necessary to the American Government; and, though solicited as an accommodation, it may be demanded as a right. If it was the duty of France to cease to apply those Decrees to the United States, it is equally her duty to promulgate it to the world in as formal a manner as we have promulgated our law for the exclusion of British merchandise. She ought to declare and publish the non-application of these Decrees in the same forms in which she enacted the Decrees. The President has instructed me to propose and press this object."

At last the demand was made which should have been enforced eighteen months before. After sending the letter, Barlow had "a pretty sharp conversation" with Bassano, in which he perceived a singular reluctance to answer his letter. At last the Duke placed before him a Decree, drawn up in due and customary form, dated a year before,--April 28, 1811,--declaring that "the Decrees of Berlin and Milan are definitively, and to date from the first day of November last, [1810], considered as not having existed in regard to American vessels."[374] This Decree, Bassano said, had been communicated to Russell, and also sent to Serrurier, the French minister at Washington, with orders to convey it to the American Government. Both Russell and Serrurier denied ever having received the paper.[375]

Barlow made no comment upon the strange manner in which this document was produced to him, and confined himself to inquiring if it had been published. The reply could only be, No; a singular admission with regard to a formal paper a year old, and of such importance to all concerned. He then asked that a copy might be sent him. Upon receipt, he at once hastened it to Russell in London, by the sloop of war "Wasp," then lying in a French port. He wrote, "You will doubtless render an essential service to both Great Britain and the United States by communicating it without loss of time to the Foreign Secretary. If by this the cause of war should be removed, there is an obvious reason for keeping the secret, if possible, so long as that the "Wasp" may not bring the news to this country in any other manner but in your despatch. This Government, as you must long have perceived, wishes not to see that effect produced; and I should not probably have obtained the letter and documents from the Minister, if the Prince Regent's Declaration had not convinced this Government that the war was now become inevitable."[376]

Russell transmitted the Decree to the British Foreign Secretary May 20, 1812. The Government was at the moment in confusion, through the assassination, May 11, of Mr. Perceval, the Prime Minister; who, though not esteemed of the first order of statesmanship by his contemporaries and colleagues, had been found in recent negotiations the only available man about whom a cabinet could unite. A period of suspense followed, in which the difficulty of forming a new government, owing to personal antagonisms, was complicated by radical differences as to public policy, especially in the cardinal point of pursuing or relinquishing the war in the peninsula. Not till near the middle of June was an arrangement reached. The same ministry, substantially, remained in power, with Lord Liverpool as premier; Castlereagh continuing as Foreign Secretary. This retained in office the party identified with the Orders in Council, and favoring armed support to the Spanish revolt.

The delay in settling the government afforded an excuse for postponing action upon the newly discovered French Decree. It permitted also time for reflection. Just before Perceval's death, Russell had noted a firm determination to maintain the Orders in Council, conditioned only by the late Declaration of April 21; but at the same time there was evident apprehension of the consequences of war with the United States.[377] This, he carefully explained, was due to no apprehension of American military power. Even Lord Grenville, one of the chief leaders of the Opposition, was satisfied that the United States could not conquer Canada. "We are, indeed, most miserably underrated in Europe." "It is not believed here, notwithstanding the spirited report of the Committee on Foreign Relations, that we shall resort to any definitive measures. We have indeed a reputation in Europe for saying so much and doing so little that we shall not be believed in earnest until we act in a manner not to be mistaken." "I am persuaded this Government has presumed much on our weakness and divisions, and that it continues to believe that we have not energy and union enough to make effective war. Nor is this confined to the ministry, but extends to the leaders of the Opposition." "Mr. Perceval is well known to calculate with confidence that even in case of war we shall be obliged to resort to a license trade for a supply of British manufactures." "He considers us incapable even of bearing the privations of a state of hostility with England, and much more incapable of becoming a formidable enemy." On March 3 Perceval in a debate in the House had indicated the most positive intentions of maintaining the Orders, and asserted that, in consequence of Napoleon's Decrees, Great Britain was no longer restrained by the law of nations in the extent or form of retaliation to which she may resort upon the enemy. "I cannot perceive the slightest indication of apprehension of a rupture with the United States, or any measure of preparation to meet such an event. Such is the conviction of our total inability to make war that the five or six thousand troops now in Canada are considered to be amply sufficient to protect that province against our mightiest efforts."[378] A revolution of sentiment was to be noted even in the minds of former advocates. Castlereagh, at a levee on March 12, said to Russell that the movements in the United States appeared to him to be nothing but party evolutions.

There was, however, another side to the question which occasioned more concern to the British ministry. "It is the increasing want of our intercourse," wrote Russell May 9, "rather than the apprehension of our arms which leads to a conciliatory spirit" which he had recently noticed. "They will endeavor to avoid the calamity of war with the United States by every means which can save their pride and their consistency. The scarcity of bread in this country, the distress of the manufacturing towns, and the absolute dependency of the allied troops in the Peninsula on our supplies, form a check on their conduct which they can scarcely have the hardihood to disregard."[379] Two days after these words were written, the murder of Perceval added political anarchy to the embarrassments of the Government. The crisis then impending was indeed momentous. War between France and Russia was certain. Upon its outcome depended the fall of the Continental System, or its prevalence over all Europe in an extent and with a rigor never yet reached. "Some of the Powers of Europe," said the Emperor, "have not fulfilled their promise with respect to the Continental System. I must force them to it." In carrying this message to the Senate, the Minister of Foreign Affairs said: "In whatever port of Europe a British ship can enter there must be a French garrison to prevent it;"[380] an interesting commentary upon the neutral regulations to which the United States professed that neither she nor Great Britain had any claim to object, because municipal. Great Britain had already touched ruin too nearly to think lightly of the conditions. By her Orders in Council she had so retorted Napoleon's Decrees as to induce him, in order still further to enforce them, into the Peninsular War, and now into that with Russia. To uphold the latter, her busy negotiators, profiting by his high-handedness, had obtained for the Czar peace with Sweden and Turkey. More completely to sustain him, it was essential to support in fullest effect the powerful diversion which retained three hundred thousand French troops in Spain. To do this, the assistance of American food supplies was imperative.

If peace with the United States could be maintained, the triumph of British diplomacy would be unqualified. The announcement of the alleged Decree of April 28, 1811, came therefore most opportunely to save their pride and self-consistency. On June 23 Castlereagh transmitted to Russell an Order in Council published that day, revoking as to the United States the celebrated Orders of January 7, 1807, and April 26, 1809. "I am to request you," ran his letter, "that you will acquaint your Government that the Prince Regent's ministers have taken _the earliest opportunity, after the resumption of the Government_, to advise his Royal Highness to the adoption of a measure grounded upon the document communicated by you to this office on the 20th ultimo;"[381] that is upon the Decree of April 28. No one affected to believe that this had been framed at the date it bore. "There was something so very much like fraud on the face of it," wrote Russell, "that in several conversations which I have since had with Lord Castlereagh, particularly at a dinner at the Lord Mayor's, when I was placed next his lordship, I have taken care not to commit the honor of my Government by attempting its vindication. When his lordship called it a strange proceeding, a new specimen of French diplomacy, a trick unworthy of a civilized government, I have merely replied that the motives or good faith of the Government which issued it, or the real time when it was issued, were of little importance as to the effect which it ought to have here; that it was sufficient that it contained a most precise and formal declaration that the Berlin and Milan Decrees were revoked, in relation to America, from November 1, 1810."[382]

This was true; but the contention of the British Government had been that the system of the Decrees was one whole; that its effect upon America could not be dissociated from that upon continental neutral states, where it was enforced under the guise of municipal regulations; and that it must be revoked as a whole, in order to impose the repeal of the Orders in Council. This position had been reaffirmed in the recent Order of April 21. Opinion will therefore differ as to the ministry's success in escaping, under the cover of the new Decree, from the dilemma in which they were placed by the irresistible agitation against the Orders in Council spreading through the nation, and the necessity of avoiding war with the United States, if possible, because of the affairs of the Peninsula. They made the best of it by alleging, as it were, the spirit of the Order of April 21; the disposition "to take such measures as may tend to re-establish the intercourse between neutral and belligerent nations upon its accustomed principles." For this reason, while avowing explicitly that the tenor of the Decree did not meet the requirements of the late Order, the Orders in Council were revoked from August 1 next following; and vessels captured after May 20, the date of Russell's communicating the Decree, would be released. The ministry thus receded gracefully under compulsion; and for their own people at least saved their face.

Superficially the British diplomatic triumph for the moment seemed complete. They had withdrawn their head from the noose just as it began to tighten; and they had done so not on any ground of stringent requirement, but with expressions of desire to go even farther than their just claims, in order to promote conciliation. Russell naturally felt a moment of bitter discomfiture. "In yielding, the ministers appear to have been extremely perplexed in seeking for a subterfuge for their credit. All their feelings and all their prejudices revolted at the idea of publicly bending to the Opposition, or truckling to the United States, and they were compelled to seize on the French Decree of April 28, 1811, as the only means of saving themselves from the degradation of acknowledging that they were vanquished. Without this decree they would have been obliged to yield, and I almost regret that it existed to furnish a salvo, miserable as it is, for their pride. Our victory, however, is still complete, and I trust that those who have refused to support our Government in the contest will at least be willing to allow it the honors of a triumph."[383]

Russell wrote under the mistaken impression that the repeal of the Orders had come in time to save war; in which event the yielding of the British ministry, identified as it was with the Orders in Council, might be construed as a triumph for the system of peaceable coercion, by commercial restrictions, which formed the whole policy of Jefferson and Madison. The triumph claimed by him must be qualified, however, by the reflection that it was obtained at the expense of becoming the dupe of a French deception, on its face so obvious as to deprive mistake of the excuse of plausibility. The eagerness of the Government, and of its representatives abroad, for a diplomatic triumph, had precipitated them into a step for which, on the grounds taken, no justification existed; and they had since then been dragged at the wheels of Napoleon's chariot, in a constant dust of mystification, until he had finally achieved the end of his scheming and landed them in a war for which they were utterly unprepared, and which it had been the chief object of commercial reprisals to avoid. Thus considered, the triumph was barren.

On June 1, 1812, President Madison sent to Congress a message,[384] reciting the long list of international wrongs endured at the hands of Great Britain, and recommending to the deliberations of Congress the question of peace or war. On June 4 the House of Representatives, by a vote of seventy-nine yeas to forty-nine nays, declared that a state of war existed between the United States and Great Britain. The bill then went to the Senate, where it was discussed, amended, and passed on June 17, by nineteen yeas to thirteen nays. The next day the House concurred in the Senate's amendments, and the bill thus passed received the President's signature immediately. The war thus began, formally, on June 18, 1812, five days before the repeal of the British Orders in Council.

While the Declaration of War was still under debate, the Secretary of War, Eustis, on June 8 reported to the Senate that of the ten thousand men authorized as a peace establishment, there were in service six thousand seven hundred and forty-four. He was unable to state what number had been enlisted of the twenty-five thousand regulars provided by the legislation of the current session; a singular exhibition of the efficiency of the Department. He had no hesitation, however, in expressing an unofficial opinion that there were five thousand of these recruits. It is scarce necessary to surmise what the condition of the army was likely to be, with James Wilkinson as the senior general officer of consecutive service, and with Dearborn, a man of sixty, and in civil life ever since the War of Independence, as the first major-general appointed under the new legislation. The navy had a noble and competent body of officers, in the prime of life, a large proportion of whom had seen instructive service in the Barbary conflict; but, as has been seen, Congress had no faith in a navy, and refused it any increase. In this distrust the Administration shared.

Mr. Monroe, indeed, probably through his residence abroad, had attained a juster view of the influence of a navy on foreign relations. He has already been quoted in this connection,[385] but in a letter to a friend, two years before 1812, he developed his opinions with some precision. "I gave my opinion that our naval force ought to be increased. In advising this, I urged that the naval force of the United States ought not to be regulated by reference to the navies of the Great Powers, but to the strength of the squadrons which they usually stationed in time of war on our coasts, at the mouths of great rivers, and in our harbors. I thought that such a force, incorporated permanently with our system, would give weight at all times to our negotiations, and by means thereof prevent wars and save money."[386] Monroe at this time was not in the Administration. Such a policy was diametrically opposed to that of Jefferson, Madison, and Gallatin; and when war came, ships had not been provided. Under the circumstances the disposition of the Government was to put the ships they had under a glass case.

"At the commencement of the war," wrote Monroe to Jefferson, "I was decidedly of your opinion, that the best disposition which could be made of our little navy would be to keep it in a body in a safe port, from which it might sally, only on some important occasion, to render essential service. Its safety, in itself, appeared an important object; as, while safe, it formed a check on the enemy in all operations along our coast, and increased proportionately his expense, in the force to be kept up, as well to annoy our commerce as to protect his own. The reasoning against this, in which all naval officers have agreed, is that, if stationed together in a port,--New York, for example,--the British would immediately block up this, by a force rather superior, and then harass our coast and commerce, without restraint, and with any force, however small. In that case a single frigate might, by cruising along the coast, and menacing continually different parts, keep in motion great bodies of militia; that, while our frigates are at sea, the expectation that they may be met together will compel the British to keep in a body, whenever they institute a blockade or cruise, a force equal at least to our own whole force; that they, [the American vessels] being the best sailors, hazard little by cruising separately, or together occasionally, as they might bring on an action, or avoid one, as they saw fit; that in that measure they would annoy the enemy's commerce wherever they went, excite alarm in the West Indies and elsewhere, and even give protection to our own trade by drawing the enemy's squadron from our own coast.... The reasoning in favor of each plan is so nearly equal that it is hard to say which is best."[387] It is to be hoped that the sequel will show which was best, although little can be hoped when means, military and naval, have been allowed to waste as they had under the essentially unmilitary Administrations since 1801.

On November 25, 1811, seven months before the war began, the Secretary of the Treasury, Gallatin, communicated to the Senate a report on the State of the Finances,[388] in which he showed that since 1801, by economies which totally crippled the war power of the nation, the public debt had been diminished from $80,000,000 to $34,000,000,--a saving of $46,000,000, which lessened the annual interest on the debt by $2,000,000. A good financial showing, doubtless; but, had there been on hand the troops and the ships, which the saved money represented, the War of 1812 might have had an issue more satisfactory to national retrospect. Gallatin also showed, in this paper, that by the restrictive system, enforced against Great Britain in consequence of the Administration's decision that Napoleon's revocation of his Decrees was real, the revenue had dropped from $12,000,000 to $6,000,000; leaving the nation with a probable deficiency of $2,000,000, on the estimate of a year of peace for 1812.

FOOTNOTES:

[172] American State Papers, Foreign Relations, vol. iii. p. 152.

[173] Ibid., p. 147.

[174] American State Papers, Foreign Relations, vol. iii. p. 290.

[175] American State Papers, Foreign Relations, vol. ii. p. 488.

[176] That is, as restrictive of neutral shipping.

[177] American State Papers, Foreign Relations, vol. iii. p. 410.

[178] Wellesley, Minister of Foreign Affairs, to Pinkney, Dec. 29, 1810; also, Feb. 11, 1811. American State Papers, Foreign Relations, vol. iii. pp. 409, 412. See also Sir Wm. Scott, in the Court of Admiralty, Ibid., p. 421.

[179] Influence of Sea Power upon the French Revolution and Empire, chaps. xvii., xviii.

[180] Declaration of the King's reservations, Dec. 31, 1806. American State Papers, vol. iii. p. 152.

[181] American State Papers, Foreign Relations, vol. iii. p. 159.

[182] Cobbett's Parliamentary Debates, vol. x. p. 1274.

[183] Aug. 12, 1805. American State Papers, Foreign Relations, vol. iii. p. 104.

[184] American State Papers, Foreign Relations, vol. iii. p. 158.

[185] Jonathan Russell to the Secretary of State, Nov. 15, 1811. U.S. State Department MSS.

[186] American State Papers, Foreign Relations, vol. iii. pp. 154, 160.

[187] Ibid., p. 166.

[188] The British Commissioners to Monroe and Pinkney, Nov. 8, 1806. Ibid., p. 140.

[189] American State Papers, Foreign Relations, vol. iii. p. 187.

[190] American State Papers, Foreign Relations, vol. iii. p. 188. Author's italics.

[191] Monroe to Madison, Aug. 4, 1807. American State Papers, Foreign Relations, vol. iii. p. 186.

[192] That is, all vessels, including merchantmen.

[193] American State Papers, Foreign Relations, vol. iii. pp. 183-185. Author's italics.

[194] American State Papers, Foreign Relations, vol. iii. pp. 191-193.

[195] American State Papers, vol. iii. pp. 199, 200.

[196] American State Papers, vol. iii. p. 202. Author's italics.

[197] Ibid., Foreign Relations, vol. iii. p. 201.

[198] Ibid., p. 202.

[199] Ibid., p. 203.

[200] The principal part of the correspondence between Rose and Madison will be found in American State Papers, Foreign Relations, vol. iii. pp. 213-220. Rose's instructions from Canning were first published by Mr. Henry Adams, History of the United States, vol. iv. pp. 178-182. They were of a character that completely justify the caution of the American Government in refusing to go further without knowing their contents, concerning which, indeed, Madison wrote that a glimpse had been obtained in the informal interviews, which showed their inadmissibility. Madison to Pinkney, Feb. 19, 1808, U.S. State Department MSS.

[201] American State Papers, Foreign Relations, vol. iii. p. 300.

[202] American State Papers, Foreign Relations, vol. iii. p. 200.

[203] American State Papers, Foreign Relations, vol. iii. p. 243.

[204] Ibid., pp. 244-245.

[205] American State Papers, Foreign Relations, vol. iii. p. 243.

[206] Armstrong to Smith, U.S. Secretary of State, Jan. 28, 1810. Ibid., p. 380. Author's italics.

[207] American State Papers, vol. iii. p. 380. Author's italics.

[208] Barlow to Bassano, Nov. 10, 1811. U.S. State Department MSS. Author's italics.

[209] Barlow to Monroe, Dec. 19, 1811. U.S. State Department MSS.

[210] Feb. 22, 1808. American State Papers, Foreign Relations, vol. iii. p. 206.

[211] Giles, Annals of Congress, 1808-09, pp. 123-125.

[212] N.Y. Evening Post, May 12, 1808.

[213] Jefferson, under date of Nov. 15, 1807, alludes to such a report. (Jefferson's Works, vol. v. p. 211.) Already, indeed, on Aug. 19, 1807, an Order in Council, addressed to vessels bearing the neutral flags of Mecklenburg, Oldenburg, Papenburg, or Kniphausen, had been issued, which, though brief, imposed precisely the same restrictions as the later celebrated ones here under discussion. (Annual Register, 1807, State Papers, p. 730; Naval Chronicle, vol. xviii. p. 151.) The fact is interesting, as indicative of the date of formulating a project, for the execution of which the "Horizon" decision probably afforded the occasion.

[214] Erskine's communication was dated Feb. 23, 1808. (American State Papers, vol. iii. p. 209.) Pinkney, however, had forwarded a copy of the Orders on November 17. (Ibid., p. 203.) Canning's letter, of which Erskine's was a transcript, was dated Dec. 1, 1807. (British Foreign Office Archives.)

[215] Senator Giles of Virginia. Annals of Congress, 1808-09, p. 218.

[216] The following are instances: Philadelphia, February 23. The ship "Venus," King, hence to the Isle of France, has returned to port. January 17, Lat. 25° N., Long. 34° W., fell in with an English merchant fleet of thirty-six sail, under convoy of four ships of war. Was boarded by the sloop of war "Wanderer," which endorsed on all her papers, forbidding to enter any port belonging to France or her allies, they all being declared in a state of blockade. Captain King therefore put back. (N.Y. Evening Post, Feb. 24, 1808.) Salem, Mass., February 23. Arrived bark "Active," Richardson. Sailed hence for Malaga, December 12. January 2, Lat. 37° N., Long. 17° W., boarded by a British cruiser, and papers endorsed against entering any but a British port. The voyage being thus frustrated, Captain Richardson returned. Marblehead, February 29. Schooner "Minerva" returned, having been captured under the Orders in Council, released, and come home. Ship "George," from Amsterdam, arrived at New York, March 6, via Yarmouth. Was taken by an English cruiser into Yarmouth and there cleared. (Evening Post, March 6.)

[217] N.Y. Evening Post, March 24, 1808.

[218] Letter of John Quincy Adams to Harrison Gray Otis.

[219] American State Papers, Foreign Relations, vol. iii. p. 245. Author's italics.

[220] Correspondence of Thomas Barclay, p. 272.

[221] American State Papers, Foreign Relations, vol. iii. p. 206.

[222] "We expected, too, some effect from coercion of interest." (Jefferson to Armstrong, March 5, 1809. Works, vol. v. p. 433.) "The embargo is the last card we have to play short of war." (Jefferson to Madison, March 11, 1808. Ibid., p. 258.) "The coercive experiment we have made." (Monroe to John Taylor. Works, vol. v. p. 89.) "I place immense value on the experiment being fully made how far an Embargo may be an _effectual weapon_ in future, as well as on this occasion." (Jefferson. Works, vol. v. p. 289.) "Bonaparte ought to be particularly satisfied with us, by whose unyielding adherence to principle England has been forced into the revocation of her Orders." (Jefferson to Madison, April 27, 1809. Works, vol. v. p. 442.) This revocation was not actual, but a mistake of the British minister at Washington. "I have always understood that there were two objects contemplated by the Embargo Laws. The first, precautionary; the second, coercive, operating upon the aggressive belligerents, by addressing strong appeals to the interests of both." (Giles of Virginia, in Senate, Nov. 24, 1808.) "The embargo is not designed to affect our own citizens, but to make an impression in Europe." (Williams of South Carolina, in House of Representatives, April 14, 1808.)

[223] The writer, in a previous work (Sea Power in the French Revolution), believes himself to have shown that the losses by capture of British traders did not exceed two and one half per cent.

[224] Letter to Otis.

[225] To Thomas Paine, concerning an improved gunboat devised by him. Sept. 6, 1807. (Jefferson's Works, vol. v. p. 189.)

[226] Jefferson's Works, vol. v. pp. 417, 426.

[227] June 14, 1809. Works, vol. v. p. 455.

[228] An American ship putting into England, leaky, reported that on Dec. 18, 1807, she had been boarded by a French privateer, which allowed her to proceed because bound to Holland. The French captain said he had captured four Americans, all sent into Passage, in Spain; and that his orders were to bring in all Americans bound to English ports. (N.Y. Evening Post, March 1, 1808.) This was under the Berlin Decree, as that of Milan issued only December 17. The Berlin Decree proclaimed the British Islands under blockade, but Napoleon for a time reserved decision as to the mere act of sailing for them being an infringement. Mr. James Stephen, in Parliament, stated that in 1807 several ships, not less than twenty-one, he thought, were taken for the mere fact of sailing between America and England; in consequence, insurance on American vessels rose 50 per cent, from 2-½ to 3-¾. (Parliamentary Debates, vol. xiii. p. xxxix. App.) In the Evening Post of March 3, 1808, will be found, quoted from a French journal, cases of four vessels carried into France, apparently only because bound to England.

[229] Henry Adams's History of the United States, vol. v. p. 242.

[230] "Nothing can establish firmly the republican principles of our government but an establishment of them in England. France will be the apostle for this." (Jefferson's Works, vol. iv. p. 192.) "The subjugation of England would be a general calamity. Happily it is impossible. Should invasion end in her being only republicanized, I know not on what principles a true republican of our country could lament it." (Ibid., p. 217; Feb. 23, 1798.)

[231] Jefferson to Richard M. Johnson, March 10, 1808. Works, vol. v. p. 257.

[232] London Times of August 6, quoted in N.Y. Evening Post of Oct. 10, 1808.

[233] Annals of Congress, 1808-09, p. 1032.

[234] Captains' Letters, U.S. Navy Department MSS. Jan. 11, 1808.

[235] Thomas Barclay's Correspondence, p. 274. Author's italics.

[236] N.Y. Evening Post, Sept. 1, 1808.

[237] Cobbett's Parliamentary Debates, vol. xii. p. 326.

[238] Life of Sir William Parker, vol. i. p. 304.

[239] Barlow to Bassano, Nov. 10, 1811. U.S. State Department MSS.

[240] N.Y. Evening Post, Feb. 18, June 30, 1808; Feb. 24, 1809.

[241] Senator White of Delaware. Annals of Congress, 1808-09, p. 52.

[242] Works, vol. v. p. 336.

[243] "Trinidad, July 1, 1808. We have just received 15,000 barrels of flour from Passamaquoddy, and not a week passes but some drops in from Philadelphia, Norfolk, etc. Cargo of 1,000 barrels would not now command more than twelve dollars; a year ago, eighteen." (N.Y. Evening Post, July 25.)

[244] N.Y. Evening Post, Jan. 17, 1809.

[245] Ibid., February 6.

[246] Mitchill of N.Y. Annals of Congress, 1808-09, pp. 86, 92.

[247] Jefferson's Works, vol. v. pp. 298, 318.

[248] N.Y. Evening Post, Aug. 31, 1808.

[249] Feb. 17, 1812. Captains' Letters, U.S. Navy Department MSS.

[250] American State Papers, Finance, vol. ii. p. 306.

[251] With flour varying at short intervals from $30 to $18, and $12, a barrel, it is evident that speculation must be rife, and also that only general statements can be made as to conditions over any length of time.

[252] Orchard Cook, of Massachusetts, said in the House of Representatives that 590 vessels sailed thus by permission. Annals of Congress, 1808-09, p. 1250.

[253] N.Y. Evening Post, Oct. 3, 1808.

[254] Ibid., Sept. 2, 1808.

[255] N.Y. Evening Post, Feb. 28, 1809.

[256] Ibid., Sept. 21, 1808.

[257] Ibid., Dec. 8, 1808.

[258] Cobbett's Parliamentary Debates, vol. xii. p. 1194.

[259] Lord Grenville in House of Lords. Ibid., p. 780.

[260] N.Y. Evening Post, June 28, 1808.

[261] Ibid., April 8.

[262] Ibid., June 28.

[263] Ibid., October 27. The same effect, though on a much smaller scale, was seen in France. Deprived, through the joint operation of the embargo and the Orders in Council, of colonial produce brought by Americans, a number of vessels were fitted out, and armed as letters of marque, to carry on this trade. These adventures were very successful, though they by no means filled the void caused by the absence of American carriers. See Evening Post of Dec. 29, 1808, and March 22 and 28, 1809. One of these, acting on her commission as a letter of marque, captured an American brig, returning from India, which was carried into Cayenne and there condemned under the Milan Decree. Ibid., Dec. 6, 1808.

[264] N.Y. Evening Post, Nov. 23, 1808.

[265] For some instances see: Annals of Congress, 1808-09, p. 428; N.Y. Evening Post, Feb. 5, 8, 12; May 13; Aug. 26; Sept. 27, 1808. Gallatin, in a report dated Dec. 10, 1808, said, "At no time has there been so much specie, so much redundant unemployed capital in the country;" scarcely a token of prosperity in so new a country. (American State Papers, Finance, vol. ii. p. 309.)

[266] American State Papers, Finance, vol. ii. pp. 307, 373, 442. The second figure is an average of the two years, 1808, 1809, within which fell the fifteen months of embargo.

[267] Ibid., p. 309 (Dec. 10, 1808).

[268] "The schooner 'John,' Clayton, from La Guayra, with two hundred thousand pounds of coffee, has been seized at Leghorn, and it was expected would be condemned under the Bayonne Decree. The 'John' sailed from Baltimore for La Guayra, by permission, under the fourth supplementary Embargo Act. By some means or other she found her way to Leghorn, where it was vainly hoped she might safely dispose of her cargo." (N.Y. Evening Post, Dec. 20, 1808.) "The frigate 'Chesapeake,' Captain Decatur, cruising in support of the embargo, captured off Block Island the brig 'Mount Vernon' and the ship 'John' loaded with provisions. Of these the former, at least, is expressly stated to have cleared 'in ballast,' by permission." (Ibid., Aug. 15, 1808.)

[269] Two or three quotations are sufficient to illustrate a condition notorious at the time. "Jamaica. Nine Americans came with the June fleet, (from England) with full cargoes. At first it was thought these vessels would not be allowed to take cargoes, (because contrary to Navigation Act); but a little reflection taught the Government better. Rum is the surplus crop of Jamaica, and to keep on hand that which they do not want is too much our way (_i.e._ embargo). The British admiral granted these vessels convoy without hesitation, which saved them from five to seven and one half percent in insurance." (N.Y. Evening Post, Aug. 2, 1808.) "Gibraltar. A large number of American vessels are in these seas, sailing under license from Great Britain, to and from ports of Spain, without interruption. Our informant sailed in company with eight or ten, laden with wine and fruit for England." (Ibid., June 30.) Senator Hillhouse, of Connecticut: "Many of our vessels which were out when the embargo was laid have remained out. They have been navigating under the American flag, and have been constantly employed, at vast profit." (Annals of Congress, 1808, p. 172.)

[270] "At Gibraltar, between January 1 and April 15, eight vessels were sent in for breach of the Orders, of which seven were condemned." (N.Y. Evening Post, May 25, 1808.) "Baltimore, Sept. 30. 1808. Arrived brig. 'Sophia' from Rotterdam, July 28, _via_ Harwich, England. Boarded by British brig 'Phosphorus', and ordered to England. After arrival, cargo (of gin) gauged, and a duty exacted of eight pence sterling per gallon. Allowed to proceed, with a license, after paying duty. In company with the 'Sophia', and sent in with her, were three vessels bound for New York, with similar cargoes." (Ibid., Oct. 3.) "American ship 'Othello,' from New York for Nantes, with assorted cargo. Ship, with thirty hogsheads of sugar condemned on ground of violating blockade;" _i.e._ Orders in Council. (Naval Chronicle, vol. xx. p. 62.) Besides the 'Othello' there are two other cases, turning on the Orders, by compliance or evasion. From France came numerous letters announcing condemnations of vessels, because boarded by British cruisers. (N.Y. Evening Post, Sept. 10, Oct. 5, Oct. 27, Dec. 6, Dec. 10, 1808; March 17, 1809.) Proceedings were sometimes even more peremptory. More than one American vessel, though neutral, was burned or sunk at sea, as amenable under Napoleon's decrees. (Ibid., Nov. 3 and Nov. 5, Dec. 10, 1808.) See also affidavits in the case of the "Brutus", burned, and of the "Bristol Packet", scuttled. (Ibid., April 5 and April 7, 1808.)

[271] Hillhouse in the Senate (Annals of Congress, 1808, p. 172), and Cook, of Massachusetts, in the House. "Of about five hundred and ninety which sailed, only eight or ten have been captured." (Ibid., 1808-09, p. 1250.) Yet many went to Guadaloupe and other forbidden French islands. At Saint Pierre, Martinique, in the middle of September, were nearly ninety American vessels. "Flour, which had been up to fifty dollars per barrel, fell to thirty dollars, in consequence of the number of arrivals from America." (N.Y. Evening Post, Sept. 20, 1808.) This shows how the permission to sail "in ballast" was abused.

[272] N.Y. Evening Post, Sept. 7, 1808.

[273] Annals of Congress, 1808-09, p. 406.

[274] N.Y. Evening Post, May 4 and 13, 1808.

[275] For the text of the Act see Annals of Congress, 1808-09, pp. 1798-1803.

[276] Ibid., p. 233.

[277] Giles of Virginia. Annals of Congress, 1808-09, pp. 353-381.

[278] Williams of South Carolina. Annals of Congress, 1808-09, p. 1236.

[279] Nelson of Maryland. Annals of Congress, 1808-09, p. 1258.

[280] Annals of Congress, 1808-09, pp. 1438-1439.

[281] Monroe to Jefferson, Jan. 18 and Feb. 2, 1809. Monroe's Works, vol. v. pp. 91, 93-95.

[282] To John Taylor, January 9. Ibid., p. 89.

[283] Pinkney, in connection with these, speaks of the "expected" Act of Congress. American State Papers, Foreign Relations, vol. iii. p. 299.

[284] American State Papers, Foreign Relations, vol. iii. p. 299.

[285] This sentence was omitted in the papers when submitted to Congress.

[286] State Papers, p. 300.

[287] February 7, 1810. American State Papers, Commerce and Navigation, vol. i. p. 812.

[288] The correspondence between Erskine and the Secretary of State on this occasion is in American State Papers, Foreign Relations, vol. iii. pp. 295-297.

[289] American State Papers, Foreign Relations, vol. iii. pp. 304-308.

[290] Ibid., p. 303.

[291] Ibid.

[292] Ibid., p. 301.

[293] American State Papers, Foreign Relations, vol. iii. p. 241.

[294] American State Papers, Foreign Relations, vol. iii. p. 318.

[295] American State Papers, Foreign Relations, vol. iii. pp. 308-319.

[296] Author's italics.

[297] See Madison's Works, vol. ii. p. 499.

[298] American State Papers, Foreign Relations, vol. iii. 319-322.

[299] The italics in this quotation (American State Papers, vol. iii. p. 300) are introduced by the author, to draw attention to the words decisive to be noted.

[300] The italics are Smith's. They serve exactly, however, to illustrate just wherein consists the perverseness of omission (the words "operation of"), and the misstatement of this remarkable passage.

[301] Secretary Smith subsequently stated that this sentence was added by express interposition of the President. (Smith's Address to the American people.)

[302] Canning in his instructions to Jackson (No. 1, July 1, 1809, Foreign Office MSS.) wrote: "The United States cannot have _believed_ that such an arrangement as Mr. Erskine consented to accept was conformable to his instructions. _If_ Mr. Erskine availed himself of the liberty allowed to him of communicating those instructions in the affair of the Orders in Council, they must have _known_ that it was not so." My italics.

[303] American State Papers, Foreign Relations, vol. iii. p. 352.

[304] Writings of James Madison. Published by Order of Congress, 1865. Vol. ii. p. 439.

[305] Ibid., p. 440. Turreau was the French minister.

[306] Works of Jefferson, vol. v. pp. 442-445.

[307] "When Lord Wellesley's answer speaks of the offence imputed to Jackson, it does not say he gave no such cause of offence, but simply relied on his repeated asseverations that he did not mean to offend." Pinkney to Madison, Aug. 13, 1810. Wheaton's Life of Pinkney, p. 446.

[308] Annals of Congress, 1809-10.

[309] Ibid., January 8, 1810, pp. 1164, 1234.

[310] Ibid., p. 1234.

[311] Annals of Congress, 1809-10, pp. 754, 755.

[312] Ibid., pp. 606, 607.

[313] Annals of Congress, 1810, p. 2582.

[314] For Armstrong's letter and the text of the Decree, see American State Papers, Foreign Relations, vol. iii. p. 384.

[315] Armstrong to Champagny, March 10, 1810. American State Papers, Foreign Relations, vol. iii. p. 382.

[316] American State Papers, Foreign Relations, vol. iii. p. 362.

[317] Ibid., p. 385.

[318] Ibid.

[319] The Secretary of State to Armstrong, June 5, 1810. American State Papers, Foreign Relations, vol. iii. p. 385.

[320] American State Papers, Foreign Relations, vol. iii. p. 386.

[321] Ibid., p. 387.

[322] American State Papers, Foreign Relations, vol. iii. p. 364.

[323] Ibid., p. 365.

[324] Jefferson to Madison, April 27, 1809. Works, vol. v. p. 442.

[325] Correspondance de Napoléon. Napoleon to Champagny, July 31, and August 2, 1810, vol. xx. p. 644, and vol. xxi. p. 1.

[326] American State Papers, Foreign Relations, vol. iii. p. 209. Author's italics.

[327] Canning to Erskine, Dec. 1, 1807, transmitting the Orders in Council of November 11. British Foreign Office MSS.

[328] Monroe to Foster, Oct. 1, 1811. American State Papers, Foreign Relations, vol. iii. p. 445. See also, more particularly, ibid., pp. 440, 441.

[329] U.S. State Department MSS., and State Papers, vol. iii. p. 250.

[330] That is, verbally, before his formal letter of February 23.

[331] Cobbett's Parliamentary Debates, vol. x. p. 669. A search through the correspondence of Canning and Erskine, as well as through the debates of Parliament upon the Orders in Council, January-April, 1808, reveals nothing confirmatory of the _pari passu_ claim, put forth in Madison's letters quoted, and afterwards used by Monroe in his arguments with Foster. But in Canning's instructions to Jackson, July 1, 1809 (No. 3), appears a sentence which may throw some light on the apparent misunderstanding. "As to the willingness or ability of neutral nations to resist the Decrees of France, his Majesty has always professed ... _a disposition to relax or modify his measures of retaliation and self-defence in proportion as those of neutral, nations_ should come in aid of them and take their place." This would be action _pari passu_ with a neutral; and if the same were expressed to Erskine, it is far from incredible, in view of his remarkable action of 1809, that he may have extended it verbally without authority to cover an act of France. My italics.

[332] Wellesley to Pinkney, Aug. 31, 1810. American State Papers, Foreign Relations, vol. iii. p. 366.

[333] American State Papers, Foreign Relations, vol. iii. p. 376.

[334] The American flag was used in this way to cover British shipping. For instances see American State Papers, Foreign Relations, vol. iii. p. 342.

[335] American State Papers, Foreign Relations, vol. iii. p. 408.

[336] Author's italics.

[337] Armstrong had sailed for the United States two months before.

[338] American State Papers, Foreign Relations, vol. iii. p. 391.

[339] Russell on November 17 wrote that he had reason to believe that the revocation of the Decrees had not been notified to the ministers charged with the execution of them. On December 4 he said that, as the ordinary practice in seizing a vessel was to hold her sequestered till the papers were examined in Paris, this might explain why the local Custom-House was not notified of the repeal. Russell to the Secretary of State, U.S. State Department MSS.

[340] Langdon Cheves of South Carolina. Annals of Congress, 1810-11, pp. 885-887.

[341] American State Papers, Foreign Relations, vol. iii. p. 393.

[342] Annals of Congress, 1810-11, p. 990.

[343] Pinkney to the Secretary of State, Jan. 17, 1811. American State Papers, Foreign Relations, vol. iii. p. 408.

[344] Foster had succeeded as _chargé d'affaires_ in May, 1809, by the departure of Merry, formerly minister to the United States. He was afterwards appointed minister; but in June, 1810, under pressure from Bonaparte, Sweden requested him to leave the country.

[345] Pearce, Life and Correspondence of the Marquis Wellesley, vol. iii. p. 193.

[346] Author's italics.

[347] American State Papers, Foreign Relations, vol. iii. p. 514. Author's italics.

[348] Ibid., p. 435.

[349] Rodgers to Secretary of the Navy, Aug. 4, 1810. Captains' Letters.

[350] Bainbridge to the Secretary of the Navy, May 3, 1810. Captains' Letters. The case was not singular.

[351] Orders of Admiral Sawyer to the Captain of the "Little Belt." American State Papers, Foreign Relations, vol. iii. p. 475.

[352] American State Papers, vol. iii. p. 473. In the absence of the British admiral, the senior officer at Halifax assembled a board of captains which collected what his letter styles the depositions of the "Little Belt's" officers. Depositions would imply that the witnesses were sworn, but it is not so said in the report of the Board, where they simply "state." In the case of honorable gentlemen history may give equal credit in either case; but the indication would be that inquiry was less particular. The Board reports no question by itself; the "statements" are in the first person, apparently in reply to the request "tell all you know," and are uninterrupted by comment.

[353] The proceedings of this court are printed in American State Papers, Foreign Relations, vol. iii. pp. 477-497.

[354] Annals of Congress, 1811-12, p. 890.

[355] Dec. 17, 1811. American State Papers, Naval Affairs, vol. i. p. 247.

[356] Niles' Register, vol. ii. pp. 101-104.

[357] Russell to Monroe, May 30, 1812. U.S. State Department MSS.

[358] Russell to Monroe, August 15 and 21, 1812. U.S. State Department MSS.

[359] See Jefferson's Works, vol. v. pp. 335, 337, 338, 339, 419, 442-445.

[360] Madison to Russell, Nov. 15, 1811. U.S. State Department MSS.

[361] Russell to Robert Smith, March 15, 1811. U.S. State Department MSS.

[362] Russell to the Secretary of State, July 15, 1811. Ibid.

[363] Ante, p. 217.

[364] Note dictée en conseil d'Administration du Commerce, April 29, 1811. Correspondance de Napoléon, vol. xxii. p. 144.

[365] Russell to Monroe, July 13, 1811. U.S. State Department MSS.

[366] Russell to J.S. Smith, July 14, 1811. American State Papers, Foreign Relations, vol. iii. p. 447.

[367] Russell to Bassano, Aug. 8, 1811. U.S. State Department MSS.

[368] Russell to Robert Smith, April, 1811. Ibid.

[369] Monroe to Russell, June 8, 1811. Ibid.

[370] Reports of the Ministers of Foreign Relations and of War, March 10, 1812. Moniteur, March 16.

[371] Russell to Monroe, April 19, 1812. U.S. State Department MSS.

[372] The copy of this Order in Council which the author is here using is in the Naval Chronicle, vol. xxvii. p. 466.

[373] This letter, which is given in a very mutilated form in the American State Papers, Foreign Relations, vol. iii. p. 602, has been published in full by the Bureau of Historical Research, Carnegie Institution, Washington. Report on the Diplomatic Archives of the Department of State, 1904, p. 64.

[374] American State Papers, Foreign Relations, vol. iii. p. 603.

[375] Barlow's interview with Bassano, and the letters exchanged, will be found in American State Papers, Foreign Relations, vol. iii. p. 602-603. Russell's denial is on p. 614. Serrurier's is mentioned in a Report made to the House by Monroe, Secretary of State, ibid., p. 609.

[376] Barlow to Russell, May 10, 1812. U.S. State Department MSS.

[377] Russell to Monroe, May 9, 1812. Ibid.

[378] The passages cited above are from Russell's correspondence with the State Department, under the dates of January 10, February 3 and 19, March 4 and 20, 1812. U.S. State Department MSS.

[379] Russell to Monroe, May 9, 1812. U.S. State Department MSS.

[380] Barlow to Monroe, March 15, 1812. Ibid. Published by Bureau of Historical Research, Carnegie Institution, 1904, p. 63.

[381] American State Papers, Foreign Relations, vol. iii. p. 433. Author's italics.

[382] Russell to Monroe, June 30, 1812. U.S. State Department MSS.

[383] Russell to Monroe, June 30, 1812. U.S. State Department MSS.

[384] American State Papers, Foreign Relations, vol. iii. p. 405.

[385] Ante, p. 106.

[386] To John Taylor, Sept. 10, 1810. Works of James Monroe, vol. vi. p. 128.

[387] Monroe to Jefferson, Monroe's Works, vol. v. p. 268.

[388] Annals of Congress, 1811-12, p. 2046.