Sea Power in its Relations to the War of 1812. Volume 1

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, 1806,³¹⁸ 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;³¹⁹ 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.³²⁰ 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."³²¹ 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, 1810.³²² 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.³²³ 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."³²⁴ 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."³²⁵ 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."³²⁶ 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,³²⁷ 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, 1808,³²⁸ 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,³²⁹ 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"³³⁰ 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, 1808,³³¹ from Madison, then Secretary of State, to Armstrong and Pinkney. In these he says that Erskine, in communicating the Orders,³³² 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?"³³³ 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 replied³³⁴ 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 10,³³⁵ 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."³³⁶

Wellesley delayed reply till December 29.³³⁷ 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,³³⁸ 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 chargé³³⁹ in Paris, Jonathan Russell, was sending Champagny a remonstrance³⁴⁰ 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;³⁴¹ 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.³⁴² 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,³⁴³ 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."³⁴⁴ 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."³⁴⁵ 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 discharged³⁴⁶ 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,³⁴⁷ 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,³⁴⁸ 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."