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

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

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

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

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

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

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

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

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

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

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.