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

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

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

The discussions thus renewed terminated in a treaty of amity, commerce, and navigation, signed by the four negotiators, December 31, 1806. Into the details of this instrument it is unnecessary to go, as it never became operative. Jefferson persisted in refusing approval to any formal convention which did not provide the required stipulation against impressment. He was dissatisfied also with particular details connected with the other arrangements. All these matters were set forth at great length in a letter¹⁶⁵ of May 20, 1807, from Mr. Madison to the American commissioners; in which they were instructed to reopen negotiations on the basis of the treaty submitted, endeavoring to effect the changes specified. The danger to Great Britain from American commercial restriction was fully expounded, as an argument to compel compliance with the demands; the whole concluding with the characteristic remark that, "as long as negotiation can be honorably protracted, it is a resource to be preferred, under existing circumstances, to the peremptory alternative of improper concessions or inevitable collisions." In other words, the United States Government did not mean to fight, and that was all Great Britain needed to know. That she would suffer from the closure of the American market was indisputable; but, being assured of transatlantic peace, there were other circumstances of high import, political as well as commercial, which rendered yielding more inexpedient to her than a commercial war.

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

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

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

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

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

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

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

CHAPTER IV
FROM THE ORDERS IN COUNCIL TO WAR

1807-1812

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

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

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

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

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

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

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

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

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

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