The Influence of Sea Power upon the French Revolution and Empire 1793-1812, Vol II

The serious nature of the difficulties that had already arisen determined the government to send an extraordinary envoy to England. John Jay was nominated to this office, and reached London in June, 1794. The British government, having already receded from its first position, as well as revoked the order of June 8, 1793, for the seizure of provisions, found no difficulty in assuming a conciliatory attitude. The result of Jay's mission was a treaty of Commerce and Navigation, concluded November 19, 1794, the first contracted between the two countries since the separation. The injuries done to American commerce, under the orders of November 6, were to be submitted to a joint commission. The report of the latter was not made until 1804, but by it compensation was made for most of the seizures; and it was claimed in the following year by Mr. Monroe, then envoy in London, that the decision of the commission definitely disposed of the principle of the Rule of 1756. It does not appear, however, that its power extended further than the settlement of the cases. There, its decision was to be final; but it had no power to commit either government to any general principle of international law not otherwise established. 310 The Rule of 1756 was not mentioned in the treaty, and the failure to do so may be construed as a tacit acquiescence, or at least submission, on the part of the United States. 311 On the other hand, considerable commercial advantages were obtained. Great Britain conceded to American ships the privilege of direct trade between their own country and the British East and West Indies, but they were precluded from carrying the produce of those colonies to other foreign ports. Indeed, so great was the anxiety of the British ministers to prevent coffee and sugar from being taken to Europe, indirectly, by neutral ships, that they insisted upon, and Jay admitted, a stipulation that while the trade with the British West Indies was permitted, the United States would not allow the carrying of any molasses, sugar, coffee, cocoa, or cotton in American vessels to any other part of the world than to the United States. This would have stopped a profitable trade already open to American merchants, who first imported, and then re-exported to France, the produce of the French islands; the broken voyage being considered to purge the origin of the commodities. This article (the twelfth) was accordingly rejected by the Senate, and only as thus modified was the treaty ratified by both powers.

The French government had viewed with distrust the negotiation between Great Britain and the United States. Although assured by Mr. Jay, through the American minister at Paris, that the treaty contained an express stipulation guarding the existing conventions between France and his own country, the Directory had the insolence to demand a copy of the instrument, to which it considered itself entitled, although it had not yet been communicated to the United States government. When the terms finally became known, its indignation passed bounds. The principal points to which it took exception were two, wherein the United States admitted conditions favoring the interests of belligerents relatively to neutrals, and against which the chief efforts of the weaker maritime states had been addressed. The first of these was the well-settled principle that a neutral ship did not protect property belonging to an enemy, laden on board it. The United States had always admitted this as valid, while trying to introduce, as an innovation, the contrary rule. In the treaty of 1778 with France, the two countries had stipulated that in any future war in which one of them should be engaged the belligerent should respect his enemy's property, if under the flag of the other party to the compact; but the United States did not think that this agreement between two nations overturned for all others a settled usage. The interests of Great Britain indisposed her to accept the proposed change, and the old principle was explicitly accepted in the seventeenth article of Jay's treaty. The other point objected to by France referred to the definitions of contraband of war. This has always been, and still is, one of the most difficult problems of international law; for an article may be of the first importance in the wars of one age or one country, and of slight consequence in another century or a different scene. By Jay's treaty the United States allowed that naval stores were, and under some circumstances provisions might be, contraband of war, and therefore liable to seizure. A free trade in these articles was of great importance to the Americans; but they were weak then, as in a military sense they, with far less excuse, are now; and then, as now, they must submit in questions of doubtful right. The material interests of United States citizens, as distinguished from the national self-respect, were in part saved by Great Britain undertaking to pay for provisions when seized as contraband. All these conditions bore against the wishes of the French, who regarded the Americans as owing an undischarged debt of gratitude to them for the scanty, though certainly most important, aid extended in the Revolutionary struggle by the monarch whom his people had since beheaded; and from this time the arrogance with which the French government had treated that of the United States became tinged with acrimony. It refused to see the difficulties and weakness of the new and still scarcely cemented body of states; or that, indirectly, the bargain struck by the latter was upon the whole as advantageous to France herself as could be expected, when Great Britain had an absolute control over the sea and all that floated upon it. To imperious rebukes and reproaches succeeded a series of measures, outraging neutral and treaty rights, which finally led to hostilities between the two countries.

From the time of Jay's treaty to the peace of Amiens, and until the year 1804 in the following war, the relations between Great Britain and the United States remained on a fairly settled basis. Innumerable vexations, indeed, attended neutral commerce at the hands of cruisers who were willing on slight grounds to seize a prize, taking the chance of the courts deciding in their favor, and the delays of prize courts added greatly to the annoyance; but upon the whole American trade throve greatly. In June, 1797, the Secretary of State reported, in reply to a resolution of the House, that "captures and losses by British cruisers, it is presumed, have not been numerous; for the citizens of the United States having, these three years past, been accustomed to look to the government for aid in prosecuting these claims, it is not to be doubted that, generally, these cases have been reported to the Department." In 1801 there was an outbreak of lawless seizure in the West Indies. 312 The American vessels engaged in that trade were small, and, as legal expenses were the same for a large as for a small prize, the cost of a contest amounted to a sum very disproportionate to the value of the ship; so the captors hoped, by the well-known delays of procedure, to extort a compromise. An abuse of this kind, however outrageous, is different in principle from the direct action of a government; nor are such cases the only ones in which men have been willing to take dishonest advantage of the imperfections, ambiguities, or delays of the law. 313 The Secretary of State, in transmitting a report on the subject to the House of Representatives, said, "Neither the communications from our minister at London, nor my conversations with the Chargé d'Affaires of his Britannic Majesty in the United States, would lead to an opinion that any additional orders have lately been given by the British government, authorizing the system of depredation alluded to." 314

In fact, at this time Pitt's government seems to have considered all trade, which did not go direct to hostile countries, an advantage to Great Britain, and especially if it could be drawn to pass through her own ports. Accordingly, in January, 1798, a further relaxation of the Rule of 1756 was promulgated, extending to European neutrals the concession made in 1794 to the United States. British cruisers were now directed not to capture neutral ships, bound from the hostile colonies to Europe and laden with colonial produce, provided the latter had become neutral property and its destination was to their own country, or to a port of Great Britain. The final clause foreshadowed the policy of the Orders in Council of ten years later, towards which Great Britain, under the stress of war, was steadily gravitating. The law of self-preservation, divined by the instinct of the state, demanded that the United Kingdom should become, for that war, the storehouse of the world's commerce. The more thriving that commerce, the better for her, if it could be concentrated in her own borders. Thus France and the whole world should become tributary to a wealth and to a power by which, not Great Britain only, but the world should be saved. It was a great conception, of slow growth and gradual realization; it was disfigured in its progress by imperfections, blunders, and crimes; but it was radically sound and in the end victorious, for upon Great Britain and upon commerce hung the destinies of the world.

The action of France towards neutral, and especially towards American, vessels reflected the instability and excitement of the successive French governments, the violent passions of the time, and the uncertainty necessarily attendant upon the course of a nation which, having cut adrift from fixed principles and precedents, is guided only by changing impressions of right and wrong. The decree of the 9th of May, 1793, arresting vessels laden with provisions or carrying enemy's goods, was revoked as regards the United States on the 23d of the same month, because contrary to the treaty of 1778. On the 28th, five days later, the revocation was revoked, and the original order established. 315 On the first of July the decision was again reversed and the treaty ordered to be observed; notwithstanding which the United States minister found it impossible to obtain the release of vessels seized contrary to its terms, and on the 27th of the month the last decision was again repealed. 316 On the 22d of September the American minister writes: "I understand it is still in contemplation to repeal the decree I complained of, and that in the mean time it has not been transmitted to the tribunals. In effect, it can do very little harm; because the fleets of this country are confined by the enemy, and the privateers by a decree of the Convention." 317 Here matters rested during the Reign of Terror and until November 15, 1794, after the fall of Robespierre, when the Directory issued its first edict on the subject; reiterating that enemy's goods under the neutral flag would be considered liable to seizure, until the powers, enemies of France, should declare French property free on board neutral ships. This made the treatment of cargoes on American vessels depend, not upon the formal engagements of France with the United States, but upon the conduct of Great Britain; and it was succeeded, on the 3d of January, 1795, by a decree of revocation. Enemy's goods under neutral flags now remained exempt from capture until the 2d of July, 1796; when proclamation was issued, notifying neutral powers that the ships of the French Republic would be used against their merchant vessels, were it for the purpose of confiscation, search or detention, in the same manner that they suffered the English to act in regard to them. Great Britain was thus made supreme arbiter of the conduct of France towards neutrals.

This last step of the French government was directly traceable to its dissatisfaction with Jay's treaty, the ratifications of which had been exchanged at London on the 28th of October, 1795. On the 16th of February, 1796, the Minister of Foreign Affairs told Mr. Monroe, the American minister, that his government considered the alliance between the two countries, formed by the treaty of 1778, to be terminated, ipso facto, by Jay's treaty; and on the 7th of October he was further informed that the minister to the United States had been recalled and would not be replaced. Meanwhile President Washington, being dissatisfied with Monroe's conduct, had summoned him home and sent out Mr. Pinckney as his relief; but the Directory, on the 11th of December, refused to receive any minister plenipotentiary from the United States until the grievances it had alleged were redressed, 318 and on the 25th of January, 1797, Pinckney was ordered to leave the country as an unauthorized foreigner.

France was now fully embarked on a course of violence toward the United States, which arose, not from any reasonable cause of discontent given, but from the disposition, identical with that shown toward the weaker European nations, to compel all countries to follow the dictates of the French policy. The utterly loose terms of the decree of July 2, 1796, authorized the seizure of any neutral vessel by a French captain, if, in his judgment, the conduct of Great Britain toward the neutral justified it; and left the ultimate fate of the prize to a tribunal governed only by its own opinion upon the same subject. "You are mistaken," said a French deputy, "if you think that a privateer sails furnished with instructions from the Minister of Marine, who ought to direct their action. The instructions are drawn up by his owners; they indicate to the captain what he may seize and what release. They compile for him his duties under all the rules, under all the laws, contradictory or otherwise, from the year 1400 up to the law of Nivôse 29, An 6" (Jan. 18, 1798). 319

In the West Indies the French agents, practically removed from all control of the home government by the British command of the sea, issued on the 27th of November, 1796, a decree for the capture of Americans bound to, or coming from, British ports. They had already, on the first of August, directed that all vessels having contraband goods on board should be seized and condemned, whatever their destination, and although the accepted law condemned only the contraband articles themselves, not the ship nor the rest of the cargo. On the first of the following February the same commissioners ordered the capture of all neutrals sailing for the French islands which had surrendered to the enemy, and declared them good prize. That these acts fairly represented the purpose of the Directory may be inferred from the capture of American ships in European waters under the decree of July 2, and from the fact that the French consuls at Malaga and Cadiz interpreted the decree to authorize seizure and condemnation for the single circumstance of being destined for a British port. 320 Over three hundred American vessels were thus seized, and most of them condemned. Envoys sent from the United States to treat concerning these matters said, in October, 1797, that France had violently taken from America over fifteen million dollars. 321 "At no period of the war," wrote they again, February 7, 1798, "has Britain undertaken to exercise such a power. At no period has she asserted such a right." 322 "Was there ever anything," said the deputy before quoted, "like the injustice of the condemnations in the Antilles?"

These irregular and arbitrary proceedings are chiefly significant as showing the lack of any fixed principles of action on the part of the French government and its agents; and they were closely connected with similar courses towards neutral vessels in French ports. At the outbreak of hostilities in 1793, one hundred and three American ships were embargoed at Bordeaux and detained more than a year, without any reason given; nor had the owners been indemnified in 1796. 323 Cargoes were forcibly taken from vessels and payment either refused or offered in kind, and so delayed that in the West Indies alone the American losses were calculated at two million dollars. Besides these acts, which had the character of spoliations, the contracts and other financial obligations of the French government and its agents with citizens of the United States remained undischarged. The irritation between the two governments, and on the part of American merchants, continued to increase rapidly. The decree of July 2, the essence of which was the formal repudiation of a clause of the treaty of 1778, at the time when alone it became applicable, remained in force; and was rendered more obnoxious by a further order, of March 2, 1797, making more stringent the proofs of neutrality to be adduced before French tribunals and requiring papers which had long been disused.

At this time the astonishing successes of Bonaparte's Italian campaigns were approaching their triumphant conclusion. The battle of Rivoli had been fought on the 14th of January, 1797, 324 Mantua capitulated on the 2d of February, and the Pope had been compelled to sue for peace. To Austria there remained only the hope of contesting the approach to her German dominions. The confidence of the Directors knew no bounds, and they now began to formulate the policy toward British commerce which Napoleon inherited from them. The design was formed of forcing the United States to recede from the obnoxious conventions of Jay's treaty; and the government of Holland, then entirely dependent upon that of France, was pressed to demand that Dutch property on board American vessels should be protected against British seizure, and to suggest the concurrence of the three republics against Great Britain. 325 The Dutch accordingly represented "that, when circumstances oblige our commerce to confide its interests to the neutral flag of American vessels, it has a just right to insist that that flag be protected with energy;"326 in other words, that, when the British control of the sea forced the Dutch ships from it, Dutch trade should be carried on under the American flag, and that the United States should fight to prevent the seizure of the Dutch property, although it admitted that the traditional law of nations would not justify it in so doing. On the 6th of May, 1797, Spain also, doubtless under the dictation of France, made the same demand.327 Similar representations were made to the other neutral country, Denmark. Here is seen the forerunner of Napoleon's contention that, as against Great Britain's control of the sea, no state had a right to be neutral. Soon afterward the idea was carried farther. Denmark was requested to close the mouth of the Elbe to British commerce. "The French," wrote our minister to London on the 12th of March, 1797, "assign our treaty with England as the cause of their maritime conduct toward us, but they have recently demanded of Hamburg and Bremen to suspend all commerce with England. These have not complied, and the French minister has been recalled from Hamburg. The same demand has been made at Copenhagen, and the refusal has produced a sharp diplomatic controversy. These powers have made no late treaty with England." 328

Hostilities with Austria had ceased by the preliminaries of Leoben, April 18, followed, after long negotiations, by the treaty of Campo Formio, October 17, 1797. Of the coalition against France, Great Britain alone remained upright and defiant. She had in 1797, after Austria had yielded, offered to negotiate; but the terms demanded were such that she refused to accept them, and her envoy was ordered out of France as peremptorily as Mr. Pinckney had been a few months before. The Directory thought that the time was now come when she could be brought to unconditional surrender, and the weapon by which her commerce should be annihilated was already forged to its hand. On the 31st of October, 1796 (Brumaire 10, An 5), 329 a law had been passed by the Legislature forbidding entirely the admission of any British manufactured goods, directing that all persons who already had such in possession should declare them within three days, and that they should be at once packed and stored for re-exportation. In order to insure the execution of the statute, domiciliary visits were authorized everywhere within three leagues of the frontiers or sea-board, and throughout France the dwellings of all tradesmen were also open to search. Laws of similar purpose had been passed early in the war; 330 but they either had been found insufficient or were no longer applicable to the changed conditions of affairs. "Now that," to use the words of a deputy, "the flags of the Republic or those of its allies float over the sea from Embden to Trieste, and almost all the ports of the European seas are closed to England, we must stop the voluntary subsidies which are paid her by the consumers of English merchandise." 331 With Belgium annexed, with Spain and Holland vassals rather than allies, with the greater part of Italy in military occupation, it seemed possible to repel the entrance points of British goods to the Continent far from the French frontier, and by strict watchfulness to close the latter against such as worked their way to it.

The expectation, however, was deceived; the superior quality and abundance of British manufactures created a demand which evaded all watchfulness and enlisted all classes against the officials. The Directory therefore determined, toward the end of 1797, to put the law into force with all severity and to introduce another and final rigor into its maritime prize code. On the 4th of January, 1798, a message was sent to the council of Five Hundred, announcing that "on that very day the municipal administrators, the justices of the peace, the commissaries of the Directory, and the superintendents of customs, are proceeding in all the chief places of the departments, in all the ports, and in all the principal communes, to seize all English merchandise now in France in contravention of the law of Brumaire 10, An 5. Such is the first act by which, now that peace is given to the Continent, the war declared long since against England is about to assume the real character that belongs to it." But more was needed. Neutral vessels were in the habit of entering British ports, shipping British goods, and carrying on British trade; they were even known, when opportunity offered, to introduce articles of British manufacture, directly or indirectly, into France. By so doing they aided Great Britain and actually took part in the war. "The Directory, therefore, thinks it urgent and necessary to pass a law declaring that the character of vessels, rela tive to their quality of neutral or enemy, shall be determined by their cargo; … in consequence, that every vessel found at sea, having on board English merchandise as her cargo, in whole or in part, shall be declared lawful prize, whosoever shall be the proprietor of this merchandise, which shall be reputed contraband for this cause alone, that it comes from England or her possessions." This decree was adopted without discussion, in the very terms of the Directory's message, on the 18th of January, 1798. From that time forward, to use the expression of a French deputy, speaking a year later on the proposed repeal of the law, "if a handkerchief of English origin is found on board a neutral ship, both the rest of the cargo and the ship itself are subject to condemnation." It is, perhaps, well to point out that this differed from the Rule of 1756, by forbidding a trade which at all times had been open to neutrals, in peace as in war. It differed from the old rule condemning enemy's property found in neutral bottoms, by condemning also neutral property of hostile origin, together with the whole cargo and the ship, as contaminated by the presence of any British goods.

Nevertheless, British commerce continued to thrive, and was rather benefited than injured by the new law. What the indomitable purpose, unlimited power, and extraordinary mental and physical activity of Napoleon could only partially accomplish, proved to be wholly beyond the weak arm of the Directory. When war first shut the ports of France to Great Britain, her trade thither passed through the Netherlands and Holland. When the Netherlands were overrun, Amsterdam monopolized the traffic. With the fall of Holland, it passed away to Bremen and Hamburg. The latter port, being farther east and more remote from the French armies, naturally drew the greater part and became the real heir of Amsterdam. 332 It was the emporium of Northern Germany, through which poured the colonial produce of the world and the manufactures of the British Islands, and from which they were distributed over the Continent. The enormous subsidies paid by the United Kingdom to Germany found their way back, in part at least, by the increased purchasing power of the belligerent countries, 333 which consumed the manufactures of Great Britain and the coffee and sugar which had passed through her ports and paid toll to her revenues. 334 The shipping clearing for Hamburg from British ports, which was naught in 1793, rose to fifty-three thousand tons in 1795; and in 1798, the year during which the new French law operated, increased to seventy-four thousand. But, while Hamburg was the great centre, all the northern German ports shared the same prosperity. After Prussia retired from the war against France, in April, 1795, a neutral North German territory was established, behind a line agreed upon between the two countries. The total tonnage entering the ports of this region increased from one hundred and twenty thousand in 1792 to two hundred and six thousand in 1795; and in 1798 reached three hundred and three thousand. The value of merchandise imported rose from £2,200,000 in 1792, to £8,300,000 in 1795, £11,000,000 in 1798, and £13,500,000 in 1800. 335