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

Jay apparently satisfied himself, by his interviews and observation of public feeling in England, that at the moment it was vain for a country without a navy to expect from Great Britain any surrender of right, as interpreted by her jurists; that the most to be accomplished was the adoption of measures which should as far as possible extend the immediate scope of American commerce, and remove its present injuries, presenting withal a probability of future further concessions. In his letter transmitting the treaty, he wrote: "That Britain, at this period, and involved in war, should not admit principles which would impeach the propriety of her conduct in seizing provisions bound to France, and enemy's property on board neutral vessels, does not appear to me extraordinary. The articles, as they now stand, secure compensation for seizures, and leave us at liberty to decide whether they were made in such cases as to be warranted by the existing law of nations."111 The italics are Jay's, and the expression is obscure; but it seems to imply that, while either nation, in their respective claims for damages, would be bound by the decision of the commissioners provided for their settlement by the treaty, it would preserve the right to its own opinion as to whether the decision was in accordance with admitted law, binding in the future. In short, acceptance of the Rule of 1756 would not be affected by the findings upon the claims. If adverse to Great Britain, she could still assert the Rule in times to come, if expedient; if against the United States, she likewise, while submitting, reserved the right of protest, with or without arms, against its renewed enforcement.

"As to the principles we contend for," continued Jay, "you will find them saved in the conclusion of the twelfth article, from which it will appear that we still adhere to them." This conclusion specifies that after the termination of a certain period, during which Great Britain would open to American vessels the carrying trade between her West India Islands and the United States, there should be further negotiation, looking to the extension of mutual intercourse; "and the said parties will then endeavor to agree whether, in any, and what, cases neutral vessels shall protect enemy's property; and in what cases provisions and other articles, not generally contraband, may become such. But in the meantime, their conduct towards each other in these respects shall be regulated by the articles hereinafter inserted on those subjects."112 The treaty therefore was a temporary arrangement, to meet temporary difficulties, and involved no surrender of principle on either side. Although the Rule of 1756 is not mentioned, it evidently shared the same fate as the other American propositions looking to the settlement of principles; the more so that subsequent articles admitted, not only the undoubted rule that the neutral flag did not cover enemy's goods, but also the vehemently disputed claim that naval stores and provisions were, or might be, contraband of war. Further evidence of the understanding of Great Britain in this matter is afforded by a letter of the law adviser of the Crown, transmitted in 1801 by the Secretary for Foreign Affairs to Mr. King, then United States Minister. "The direct trade between the mother country and its colonies has not during this present war been recognized as legal, either by his Majesty's Government or by his tribunals."113

It is to be inferred that the Administration and the Senate, while possibly thinking Jay too yielding as a negotiator, reached the conclusion that his estimate of British feeling, formed upon the spot, was correct as to the degree of concession then to be obtained. At all events, the treaty, which provided for mixed commissions to adjudicate upon the numerous seizures made under the British orders, and, under certain conditions, admitted American vessels to branches of British trade previously closed to them, was ratified with the exception of the twelfth article. This conferred on Americans the privilege, long and urgently desired, of direct trade between their own country and the British West Indies on the same terms as British ships, though in vessels of limited size. Greatly desired as this permission had been, it came coupled with the condition, not only that cargoes from the islands should be landed in the United States alone, but also, while the concession lasted, American vessels should not carry "molasses, sugar, coffee, cocoa, or cotton" from the United States to any part of the world. By strict construction, this would prevent re-exporting the produce of French or other foreign colonies; a traffic, the extent of which during this war may be conceived by the returns for a single year, 1796, when United States shipping carried to Europe thirty-five million pounds of sugar and sixty-two million pounds of coffee, products of the Caribbean region. This article was rejected by the Senate, and the treaty ratified without it; but the coveted privilege was continued by British executive order, the regulations in the matter being suspended on account of the war, and the trade opened to American as well as British ships. Ostensibly a favor, not resting on the obligations of treaty, but on the precarious ground of the Government's will, its continuance was assured under the circumstances of the time by its practical utility to Great Britain; for the trade of that country, and its vital importance in the prevailing wars, were developing at a rate which outstripped its own tonnage. The numbers of native seamen were likewise inadequate, through the heavy demands of the Navy for men. The concurrence of neutrals was imperative. Under the conditions it was no slight advantage to have the islands supplied and the American market retained, by the services of American vessels, leaving to British the monopoly of direct carrying between the colonies and Europe.

Although vexations to neutrals incident to a state of war continued subsequent to this treaty, they turned upon points of construction and practice rather than upon principle. Negotiation was continuous; and in September, 1800, towards the close of Adams's administration, Mr. John Marshall, then Secretary of State, summed up existing complaints of commercial injury under three heads,—definitions of contraband, methods of blockade, and the unjust decisions of Vice-Admiralty Courts; coupled with the absence of penalty to cruisers making unwarranted captures, which emboldened them to seize on any ground, because certain to escape punishment. But no formal pronouncement further injurious to United States commerce was made by the British Government during this war, which ended in October, 1801, to be renewed eighteen months later. On the contrary, the progress of events in the West Indies, by its favorable effect upon British commerce, assisted Pitt in taking the more liberal measures to which by conviction he was always inclined. The destruction of Haiti as a French colony, and to a great degree as a producer of sugar and coffee, by eliminating one principal source of the world's supply, raised values throughout the remaining Caribbean; while the capture of almost all the French and Dutch possessions threw their commerce and navigation into the hands of Great Britain. In this swelling prosperity the British planter, the British carrier, and the British merchant at home all shared, and so bore without apparent grudging the issuance of an Order, in January, 1798, which extended to European neutrals the concession, made in 1795 to the United States, of carrying West Indian produce direct from the islands to their own country, or to Great Britain; not, however, to a hostile port, or to any other neutral territory than their own.

Although this Order in no way altered the existing status of the United States, it was embraced in a list of British measures affecting commerce,114 transmitted to Congress in 1808. From the American standpoint this was accurate; for the extension to neutrals to carry to their own country, and to no other, continued the exclusion of the United States from a direct traffic between the belligerent colonies and Europe, which she had steadily asserted to be her right, but which the Rule of 1756 denied. The utmost the United States had obtained was the restitution of privileges enjoyed by them as colonists of Great Britain, in trading with the British West Indies; and this under circumstances of delay and bargain which showed clearly that the temporary convenience of Great Britain was alone consulted. No admission had been made on the point of right, as maintained by America. On the contrary, the Order of 1798 was at pains to state as its motive no change of principle, but "consideration of the present state of the commerce of Great Britain, as well as of that of neutral countries," which makes it "expedient."115

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

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1

Order in Council was a general term applied to all orders touching affairs, internal as well as external, issued by the King in Council. The particular orders here in question, by their extraordinary character and wide application, came to have a kind of sole title to the expression in the diplomatic correspondence between the two countries.

2

Instructions of Madison, Secretary of State, to Monroe, Minister to Great Britain, January 5, 1804. Article I. American State Papers, vol. iii. p. 82.

3

Diary and Letters of Gouverneur Morris, vol. ii. pp. 508, 546.

4

Annals of Congress. Thirteenth Congress, vol. ii. pp. 1563; 1555-1558.

5

Niles' Register, vol. iv. p. 234. Author's italics.

6

Diary and Letters, vol. ii. p. 553.

7

Ibid., p. 560. Those unfamiliar with the subject should be cautioned that the expression "right of search" is confined here, not quite accurately, to searching for British subjects liable to impressment. This right the United States denied. The "right of search" to determine the nationality of the vessel, and the character of the voyage, was admitted to belligerents then, as it is now, by all neutrals.

8

King John, Act II. Scene 1.

9

King Richard II., Act II. Scene 1.

10

Inquiry into the Nature and Causes of the Wealth of Nations. Edited by J.E. Thorold Rogers. Oxford, 1880, pp. 35-38. In a subsequent passage (p. 178), Smith seems disposed somewhat to qualify the positive assertion here quoted, on the ground that the Navigation Act had not had time to exert much effect, at the period when some of the most decisive successes over the Dutch were won. It is to be observed, however, that a vigorous military government, such as Cromwell's was, can assert itself in the fleet as well as in the army, creating an effective organization out of scanty materials, especially when at war with a commercial state of weak military constitution, like Holland. It was the story of Rome and Carthage repeated. Louis XIV. for a while accomplished the same. But under the laxity of a liberal popular government, which England increasingly enjoyed after the Restoration, naval power could be based securely only upon a strong, available, and permanent maritime element in the civil body politic; that is, on a mercantile marine.

As regards the working of the Navigation Act to this end, whatever may be argued as to the economical expediency of protecting a particular industry, there is no possible doubt that such an industry can be built up, to huge proportions, by sagacious protection consistently enforced. The whole history of protection demonstrates this, and the Navigation Act did in its day. It created the British carrying trade, and in it provided for the Royal Navy an abundant and accessible reserve of raw material, capable of being rapidly manufactured into naval seamen in an hour of emergency.