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

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

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

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

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

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

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

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

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

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

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

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

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

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

In consequence of Mr. Fox's continued illness two negotiators, one of whom, Lord Holland, was a near relative of his, were appointed to confer with the American envoys, and to frame an agreement, if attainable. The first formal meeting was on August 27, the second on September 1.¹⁵⁹ As the satisfactory arrangement of the impressment difficulty was a sine quâ non to the ratification of any treaty, and to the repeal of the Non-Importation Act, this American requirement was necessarily at once submitted. The reply was significant, particularly because made by men apparently chosen for their general attitude towards the United States, by a ministry certainly desirous to conciliate, and to retain the full British advantage from the United States market, if compatible with the preservation of an interest deemed greater still. "It was soon apparent that they felt the strongest repugnance to a formal renunciation, or the abandonment, of their claim to take from our vessels on the high seas such seamen as should appear to be their own subjects, and they pressed upon us with much zeal a provision" for documentary protection to individuals; "but that, subject to such protections, the ships of war of Great Britain should continue to visit and impress on the main ocean as heretofore."

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

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

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