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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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