A special mission sent to England—Concessions made in the
Colonial trade—Blockades in the Colonies, and of the French
ports in the Channel—The dispute concerning the trade
with the French Colonies—What is a direct trade—Reversal
of the law in England—Effect in America—Instructions to
Commissioners—Proceedings of the shipowners of New York—Duties of
neutrals—Views of the New York shipowners—Conditions with respect
to private armed vessels—Authorities on the subject—Negotiations
for another treaty—Circuitous trade—Commercial
stipulations—Violation of treaties—Complaints of the Americans
against the French—Language of the Emperor—Bayonne Decree, April
17, 1808—American Non-intervention Act, March 1, 1809—Intrigues in
Paris against England—Hostile feelings in United States against
England—Diplomatic proceedings in Paris—Convention with Great
Britain—Retaliatory Acts to be enforced conditionally—Hostile
legislation against Great Britain—Bonds required—Treaty
negotiations renewed—Dutch reciprocity—Bremen reciprocity.
Although there is reason to fear that the shipowners of America, having
made the profits of a war in Europe a matter of deliberate calculation,
paid less attention than they might otherwise have done to the
remonstrances of the British government against their piratical acts,
they had, on the other hand, some reason for complaining of the conduct
of British cruisers. The Americans complained that their vessels were
searched on the high seas, not merely for enemies’ goods, but, as
already noticed, for seamen to man the British navy, a practice which
they alleged was derogatory to them, and tended to destroy all cordial
friendship between the two countries. In reply, the English government
held that no State had such jurisdiction over its merchant vessels
upon the high seas as to prevent a belligerent from searching them for
contraband of war, or for the persons and property of enemies; and if,
in the exercise of that right, the belligerents should discover on
board of a neutral vessel any of their subjects who had withdrawn from
their lawful allegiance, they asked upon what grounds could the neutral
refuse to give them up.
But the public mind was so inflamed in the United States by stories of
thousands of Americans forced to serve in the British Navy; of American
ships upon the high seas deprived of their hands by British cruisers,
and compelled to put into the nearest port for want of seamen to
pursue the voyage; and of other outrages still more extraordinary and
unpardonable, that, looking only to the alleged abuses of the right,
their popular leaders went to the extreme of denying its existence
altogether. A Bill upon this principle was consequently brought into
Congress, but it was rejected by the Senate.[321]
[Sidenote: A special mission sent to England.]
When, however, the American government determined to send a special
mission to England for the adjustment of differences between the two
nations, the British habit of impressing on the high seas was stated as
the foremost of the American grievances, and their plenipotentiaries
were instructed to urge the abandonment of a practice “so disgraceful
and injurious to their country, as the point most essential to its
peace, honour, and tranquillity.”
[Sidenote: Concessions made in the colonial trade.]
[Sidenote: Blockades in the colonies, and of the French ports in the
Channel.]
As the second ground of complaint, the alleged violation of neutral
rights by seizing and condemning their merchantmen though engaged in
lawful commerce, involves a variety of important considerations, which
were incessantly the subjects of dispute, it may be desirable to state
the substance of the views of the American government and of English
jurisconsults on so important a question. England had conceded to the
Americans, in the previous war, permission to trade with the colonies
of the enemy for articles intended for their own domestic consumption;
and in case no market was found in the United States for articles
imported with that intention, she had permitted them to re-export
those articles to any part of the world not invested by her blockading
squadrons. In 1804 certain ports of Martinique and Guadaloupe, French
colonies, were declared to be in a state of blockade, and the siege of
Curaçoa was also converted into a blockade. In August of the same year
a rigorous blockade was declared to be established at the entrances
of the ports of Fécamp, St. Valery, Caux, Dieppe, Treport, the Somme,
Etaples, Boulogne, Calais, Gravelines, Dunkirk, Nieuport, and Ostend.
Bonaparte at that moment was threatening England with invasion, and
England was putting forth all her strength to repel the attempt and
to circumvent his designs. America looked calmly on, and profited,
as we have seen, by the struggle, pushing forward her pretensions
and alleged grievances with the view of annoying as much as she
could both belligerents, and especially Great Britain. England, as is
well known, had constantly refused the Americans permission to trade
directly between the colonies of the enemy and the mother-country,
but had tolerated the indirect communication above mentioned, on the
supposition that the goods so transmitted had been intended originally
for American consumption, and would not have been re-exported, but for
want of a market in the United States.
[Sidenote: The dispute concerning the trade with the French colonies.]
“It is now distinctly understood,” said his Majesty’s Advocate-General,
in a report officially communicated by Lord Hawkesbury to the
American government, and transmitted to all the Vice-Admiralty Courts
aboard,[322] “and so decided by our highest tribunals, that the produce
of the colonies of the enemy may be imported by a neutral into his own
country, and may be re-exported from thence, even to the mother-country
of such colony; and in like manner the produce and manufactures of the
mother-country may, in this circuitous mode, legally find their way to
the colonies. The _direct_ trades, however, between the mother-country
and its colonies have not, I apprehend, been recognised as legal,
either by his Majesty’s government, or by his tribunals. What is a
_direct_ trade, or what amounts to an intermediate importation into
a neutral country, may sometimes be a question of some difficulty: a
general definition of either, applicable to all cases, cannot well be
laid down. The question must depend upon the particular circumstances
of each case. Perhaps the mere touching at a neutral country to
take fresh clearances may properly be considered as a fraudulent
evasion, and as, in effect, the _direct_ trade; but the High Court of
Admiralty[323] has expressly decided that landing the goods and paying
the duties in the neutral country breaks the continuity of the voyage,
and is such an importation as legalises the trade, although the goods
be re-shipped in the same vessel, and on account of the same neutral
proprietor, and be forwarded for sale to the mother-country or the
colony.”
But his Lordship admitted that the decision of Sir William Scott by
no means went so far; that distinguished judge remarking in the most
guarded manner that it was not his business to determine “what was a
_bonâ fide_ importation.” However, from Lord Hawkesbury’s commentary
upon the judgment, presuming that he indorsed the Judge-Advocate’s
opinion, by sending it to America as an extract, it came to be
universally understood in the United States that the mere landing
of the goods, and paying the duties in the neutral country, were
sufficient to break the continuity of the voyage and to legalise
the trade; whereas the landing and the payment of the duties were
only deemed the best criteria or the best evidence obtainable of a
_bonâ fide_ importation. This distinction became afterwards of great
importance, although the peace of Amiens put an end for a time to all
controversies on the subject. But when hostilities recommenced between
France and England, the American merchants, recollecting the footing
on which the trade had been placed at the conclusion of the previous
war, embarked in it without apprehension, as a commerce perfectly
lawful. An immense amount of tonnage was employed in this trade, which
was carried on without interruption till the summer of 1805, when a
decision on new grounds was adopted by the English Admiralty Courts,
which suddenly, and without the smallest warning, exposed the whole of
the American merchant vessels to seizure and condemnation.
[Sidenote: Reversal of the law in England.]
It was now decided that the proof of payment of duties in America
was no evidence of a _bonâ fide_ importation into that country,[324]
because payment of duties did not mean that the duties had been
actually paid in money, but that they had been secured by bonds; and
from the peculiar system of revenue laws established in the United
States, the merchant who re-exported goods previously imported,
gained a profit by his transactions with the custom-house, instead of
suffering any loss or deduction from his gains. The importer, when the
duties were ascertained, gave bonds for the amount; but if the next day
he should enter the goods for exportation again, he became entitled
to debentures from the custom-house, payable on the same day with the
bonds, and made out for the same sums, with a deduction of only three
and a half per cent., which was retained for the government. The bonds
given originally by the merchant remained unissued in the custody
of the revenue officers; while the debentures became an assignable
and transferable security for money, capable of being recovered by a
summary process; and if the importer failed, enjoyed a priority before
all private demands. The result of the whole operation, therefore, was
that the government lent to the private credit of the merchant the
character of a public security, in lieu of his bonds deposited at the
custom-house, and received three and a half per cent. on the amount of
these bonds in return for the accommodation it afforded. Now, however
admirable this system may be in reference to the trade of the United
States, it utterly broke down when adduced as evidence of a _bonâ fide_
importation, or as a proof that the duties had been paid or secured in
the United States according to law; as, in point of fact, the merchant
gained by repeating the transaction.
[Sidenote: Effect in America.]
[Sidenote: Instructions to commissioners.]
The English courts, therefore, acting in perfect consistency with the
principle of their former decisions, when these facts were made known
to them, refused any longer to admit the payment of duties in America
as a proof of a _bonâ fide_ operation. On the other hand, the merchants
of America, without looking at the legal grounds of former decisions,
had trusted to Lord Hawkesbury’s communication made during the previous
war, which led the American government to believe that “landing the
goods and paying the duties legalised the trade,” and had consequently
embarked their capital and ships in a commerce they felt assured was
a legal and permitted trade. When, therefore, they saw their vessels
captured by the British cruisers, without any previous warning, and
brought into the Vice-Admiralty Courts for adjudication, they naturally
complained of the violent and inconsistent conduct of England, and
loudly accused her of robbery and injustice. Indignation meetings,
as they have since been termed, were convened in all the principal
commercial cities of America; declarations and resolutions were voted;
and petitions and remonstrances were addressed to the President and
Legislature. Congress, as was natural, caught the flame with which it
was surrounded, and after a multitude of injudicious and inflammatory
resolutions, passed a non-importation Act[325] against the manufactures
of Great Britain, to take effect in the ensuing month of November. In
the meantime the commissioners sent to negotiate with Great Britain
were instructed to obtain from the government a clear and precise rule
for regulating their trade with the colonies of the enemy, which should
not be liable to be changed by Orders in Council or instructions to
cruisers.
[Sidenote: Proceedings of the shipowners of New York.]
[Sidenote: Duties of Neutrals.]
Before examining the third point of the complaints urged by the
Americans, it will conduce to the general comprehension of the whole
scope of the quarrel if reference is made to the proceedings of the
merchants and shipowners at New York shortly before this period.
It requires very little penetration to perceive that the arming of
vessels in the ports of the United States, under pretence of being
bound to the East Indies, was a mere cloak for privateering. There
were then plenty of freebooters under the American flag, who cared
but little which side they espoused, so as they could succeed in a
very profitable maritime adventure. In fact their depredations on the
seas rose to such a height that Congress was at last compelled to
take cognisance of their proceedings, and a Bill was brought forward
to restrain merchant vessels of the United States from sailing in an
armed condition. The shipowners of New York upon that occasion put upon
record their sentiments, and some of the principles they expounded
are well deserving reflection and attention. They[326] acknowledged
with satisfaction that since the commencement of the existing war the
commerce of the United States had not, to their knowledge, suffered any
injuries which could justly be attributed to the governments of Europe.
They disclaimed explicitly any intention to derive unfair advantages
from the misfortunes of the belligerent nations; and they solemnly
engaged to support with all their influence any regulations enjoined by
treaties or by the established usages of civilised States. They only
desired to foster their native genius for enterprise. The duties of
neutral merchants, as understood by them, consisted in the observance
of the following rules:—
1st. Not to protect under false appearances the ships or property of
the subjects of belligerent nations.
2nd. Not to resist reasonable visitation and search by the ships of war
of belligerent nations.
3rd. Not to supply either party with articles contraband of war; and,
4th. Not to enter ports in a state of blockade.
[Sidenote: Views of the New York shipowners.]
They did not consider it a duty or usage of neutral nations to enforce
by legal sanction the observance of these rules, but merely to
apprise their citizens of the nature of their obligations, arising
under treaties or under the general law of nations, by which they
would be subjected to such penalties as custom had established. These
penalties, the New York merchants asserted, could only be rightfully
inflicted by regular tribunals, established by the belligerent nations
in such fashion that they should not exceed the right of condemning
the property attempted to be illegally concealed or transported:
they would, accordingly, cheerfully submit to a law for restraining
the armament of private merchantmen, except in conformity with the
following principles:
[Sidenote: Conditions with respect to private armed vessels.]
1st. That the vessels should wholly belong to citizens of the United
States.
2nd. That the cargoes laden on board such vessels shall wholly belong
to citizens of the United States, and except necessary munitions and
merchandise to and from ports eastward of the Cape of Good Hope, and
westward of Cape Horn, shall in no degree consist of articles declared
contraband of war, either by the general law of nations, or by treaties
with the United States.
3rd. That the owners of armed vessels be required to give bonds for a
reasonable amount that they shall not sell or charter such vessels in
the dominions of any foreign state or nation, in America or elsewhere,
to the subjects of the belligerent parties.
4th. That the masters and chief officers of all armed vessels be
required to give bonds that they will not enter a blockaded port, and
that they will not resist lawful visitation and search by a national
ship of any European belligerent power; while, if deemed expedient,
the masters and chief officers may be further rendered liable to such
personal penalties as the wisdom of Congress may prescribe.
It will be seen that the New York merchants, who might then be presumed
to represent the most influential body of the shipowners and merchants
of the Union, never attempted to impeach any of the principles which
had been held by all civilised nations, as establishing the law of
nations, especially as regards the right of search. Indeed the highest
authorities in the United States have laid down, “that the right of
visitation and search of neutral vessels at sea is a belligerent right
essential to the exercise of the right of capturing enemy’s property,
contraband of war, and vessels committing a breach of blockade.”[327]
Text writers generally concur in recognising the existence of this
right. Sir W. Scott remarks, “All writers upon the law of nations
_unanimously_ acknowledge it, without the exception of even _Hubner_
himself, the great champion of neutral privileges.” In fact the many
European treaties which have reference to this right deal with it as
pre-existing, and merely regulate the exercise of it.
[Sidenote: Authorities on the subject.]
These authoritative expositions of the law, as drawn from American as
well as European text writers, notwithstanding the long period which
has elapsed since the eventful struggle at the commencement of the
present century, are the more necessary to be here quoted as there
are unfortunately still recurrences of these disputes respecting the
exercise of the right of search, and it must be conducive to a good
understanding between England and all other nations, that an accurate
interpretation of the law of nations should be generally established
and observed.
[Sidenote: Negotiations for another treaty.]
The scope of this work will not admit of entering into all the
details of the conferences in respect of the treaty which was shortly
afterwards entered into between Great Britain and the United States,
and which had become the more necessary after the unfortunate
encounter[328] between the _Chesapeake_ and H.M.S. _Leopard_ in
Hampton Roads, where England was held by various authorities to be
in the wrong. It is now generally admitted that the commissioners
on both sides were animated by a sincere desire to establish a firm
and lasting friendship between the two countries, on terms mutually
advantageous, though it is deeply to be lamented that their efforts
at negotiation were at times much thwarted by popular clamour on both
sides the water.[329] Considering the state of public opinion in
America, and the instructions which they appear to have received from
their government, the American commissioners, in particular, evinced
in the strongest manner their disposition to conciliation, when, after
many fruitless conferences held in the hope of devising some adequate
substitute for the practice of impressing on the high seas, they
consented, contrary to their instructions, to proceed with the other
articles of the treaty, pledging the government of Great Britain “to
issue instructions for the observance of the greatest caution in the
impressment of seamen, and of the greatest care to preserve citizens
of the United States from any molestation or injury, and to afford
immediate redress upon any representation of injury sustained by them;”
engaging besides at any future period “to entertain the discussion of
any plan that should be devised to secure the interests of both States,
without any injury to rights to which they are respectively attached.”
[Sidenote: Circuitous route.]
In the other questions between the two countries, the negotiators were
more fortunate in bringing their labours to a successful issue. On
the subject of the circuitous trade permitted to the United States,
between the colonies of the enemy and other parts of the world, an
article was framed which satisfied the American commissioners. A
clear rule for the regulation of that commerce was substituted in
place of the uncertain and variable system under which it had been
previously conducted. The principle was taken from Lord Hawkesbury’s
communication, to which reference has just been made, which defined
the difference between a continuous and an interrupted voyage; but,
besides requiring that the goods should be landed and the duties paid
in the neutral country, this article expressly stipulated that, on
re-exportation, there should remain, after the drawback, a duty to
be paid of one per cent. _ad valorem_ on all articles of the growth,
produce, and manufacture of Europe; and on all articles of colonial
produce a duty of not less than two per cent. The maritime jurisdiction
of the United States was guaranteed by the 12th article, against the
alleged encroachments and violations of his Majesty’s cruisers; and
on account of the peculiar circumstances of the American coast, an
extension of maritime jurisdiction, to the distance of five miles from
shore in American waters, was mutually conceded by both parties, with
certain limitations, having reference to other powers, expressed in the
treaty.[330]
[Sidenote: Commercial stipulations.]
The commercial stipulations contained in this treaty seem to have
been framed on the fairest and most liberal principles of reciprocal
advantages to both countries; but before the treaty reached the United
States for the requisite ratification, and indeed before it was signed
in London, the celebrated Berlin Decree[331] had been issued, and the
position of England was thereby very greatly altered in respect to
neutrals.
[Sidenote: Violation of treaties.]
But treaties, in those days of national convulsions, were of little
avail; they were too frequently made only to be broken; and from
the experience of the past, and the wholesale destruction of the
private property alike of neutrals and belligerents during periods of
hostility, we may learn that it is unsafe to rely, in similar cases,
on the validity and security of any paper pledges without the general
guarantee of nations. Although France, as well as England, had entered
into treaties of amity with the United States, which were in force
between 1803 and 1809 inclusive, no less than thirteen hundred and
three American merchant vessels were captured between those dates by
the cruisers of both nations.
Although nominally captured under the operations of the French Decrees
and English Orders in Council, many of these captures were made in
direct violation of existing treaties, and not a few in obedience
simply to the will of the Emperor on the one hand, and that of the
English Council on the other. Of the five hundred and thirteen
American merchantmen taken by the French, and the forty-seven by the
Neapolitans, antecedent to the Berlin and Milan Decrees, one hundred
and seventy-four were condemned and burnt, four were compromised, and
twenty-one acquitted; while two hundred and nine captured during the
operation of these decrees were condemned and burnt, thirty-three
released or compromised, and eighty-eight altogether acquitted. Of the
vessels captured by the Neapolitans, forty-one were confiscated or
condemned, two restored, and four not accounted for. In the category
of the vessels burnt at sea no fewer than thirty-seven were destroyed
in order to keep secret the movements of the French squadron; and a
large number because they had touched at ports in England on their way
to continental ports, some of them having done so only through stress
of weather. To recompense the losses thus sustained, the Americans
claimed from the French government eighty millions of francs, a demand
which proved so serious a cause of dispute as almost to embroil the two
countries in war.
But the captures by the English of American merchant vessels in the
same period amounted to seven hundred and forty-five, and of those
taken before the issue of the Orders in Council two hundred and
forty-three were condemned, one hundred and fifty acquitted, and
eighty-eight released; while out of the number subsequently taken two
hundred were condemned, one hundred and ninety-one acquitted, and
ninety-three restored to their owners.
[Sidenote: Complaints of the Americans against the French.]
America, had she had the power, would undoubtedly have resented by
force of arms many of these captures; but between two such belligerents
she was helpless, and had to submit, though not altogether in silence,
to proceedings against her shipowners, too frequently as unjust as
they were unjustifiable. While the rigorous enforcement of the right
of search on the part of the English, and the decrees of the French
excluding from their ports every neutral vessel which had English
goods on board, or had touched at any of the ports of that country,
remained in force, it was impossible for the shipowners of the United
States of America to carry on an oversea trade with any prospect of
success. French cruisers, scattered over the seas, with orders to sink
or burn any ship which might reveal their route to the English (who,
with all their naval force, could not control the immensity of the
seas), captured American vessels for contraventions committed a few
days after, and sometimes before, the publication of the decrees. As
the news of each seizure reached the American minister in Paris, he
complained with increasing energy. He invoked the principles alike of
international and civil law, appealing to the convention by which the
rights of neutrals were guaranteed, forbidding the application of laws
until they could have become known, and, in the name of his outraged
government, declared that “such proceedings, and the continuation of
such acts, could not fail to interrupt the good understanding, which
had so long subsisted between the two Powers, and had been mutually
advantageous, which it would be unwise to destroy for the sake of
pillaging a few merchant vessels.”[332]
[Sidenote: Language of the Emperor.]
But Napoleon understood perfectly well his own policy. Casting aside
all those rules which restrain constitutional governments, his aim
was to excite the Americans to open war against England; and whilst
thus trampling upon the rights of America, the French minister
was instructed _to proclaim those of neutrals_ in the name of the
Emperor! In a letter from M. Champigny to Mr. Armstrong, 12th Feb.,
1808, it is stated that “A merchant vessel is a floating colony; any
act of violence committed against such a vessel is an attack on the
independence of its government. The seas belong to no nation; they
are the common property, the domain of all.” In spite, however, of
the enunciation of these just and liberal principles, and while
admitting that the Berlin and Milan Decrees were flagrant violations
of them, Napoleon incessantly threw the entire blame upon England,
who, he alleged, had provoked these orders, and by setting up the
indisputable dogma that the independence of the flag was a right common
to all powers, he attempted to coerce the Americans into resisting by
force the retaliatory measures to which England, in defence of her
own commerce, was compelled to resort. Indeed M. de Champigny[333]
explicitly says, “the Emperor has no doubt that the United States,
considering the position in which _England has placed the continent_,
particularly since its decree of the 11th of November, _will declare
war against her_:” adding, “War does exist, _de facto_, between England
and the United States, and the Emperor considers it as having been
declared on the day on which England issued its orders. With this view,
the Emperor, willing to consider the United States as engaged in the
same cause with all the Powers who have to defend themselves against
England, has adopted no definite measure with regard to the American
vessels which may have been brought into the French ports. He has
ordered them to be retained under sequestration until a determination
could be taken with regard to them, which determination would depend
upon the disposition manifested by the American government.”
[Sidenote: Bayonne Decree, April 17, 1808.]
Such language could only be interpreted in one way: “Make war against
the mistress of the seas without delay, and then I will consider
whether I will release the American vessels which in violation of the
laws of nations I have seized.” Language such as this, supported by the
tempting promise to restore the American ships he had captured, could
only be the result of a deliberately planned policy on the part of
Napoleon. By his Bayonne Decree, 17th April, 1808, he had given orders
to seize all American vessels then in the ports of France, and such as
should come in thereafter; and in an explanatory note of the 25th of
April, 1808, addressed to the American minister at Paris, had stated
that the decree of the 17th instant directed the seizure of vessels
coming into the ports of France after that date, because no vessel of
the United States could then navigate the seas without infringing their
own laws, thus furnishing a presumption that they did so on British
account or in British connection.
Finding that the French seizures were incessant, the American minister
at Paris in the beginning of 1808 declared that the conduct of France
towards the United States, instead of advancing the views of the
Emperor, had an entirely contrary effect, and was calculated to defeat
them. Whilst admitting[334] that the United States were ready to go
to war with Great Britain for the purpose of avenging certain alleged
outrages committed on American rights as a neutral nation, he reminded
M. de Champigny that the French had also most grievously invaded
those rights, showing at the same time that the reparation of those
injuries, by relieving the American property from sequestration, and by
renouncing for the future the right of seizure in such cases, would be
the most efficient means of forming new and more intimate connections
between the United States and France.
[Sidenote: American Non-intervention Act, March 1, 1809.]
[Sidenote: Intrigues in Paris against England.]
As the American shipowners had set at defiance the embargo imposed
on the ports of the United States, their government on the 1st of
March, 1809, replaced it by the Act of Non-intervention, whereby all
intercourse between America, France, and England was interdicted under
severe penalties, and the ports of America closed against the armed
vessels of both belligerents. In communicating this act to the French
government, General Armstrong took care to call special attention
to its conditional character, and to disavow all hostile views and
intentions, declaring it to be a measure of precaution in order to
preserve the vessels of the United States from the numerous dangers
to which they were exposed by the continuance of their intercourse
with France. He subsequently added that “the Non-intercourse Act was a
fresh appeal _to the wisdom and justice_ of the Emperor, as a simple
modification of the imperial decrees relating to the right of neutrals
would instantly restore the commerce between the United States and
France. The United States,” he continued, “did not in fact require a
repeal of these decrees, having the greatest deference for the dignity
of the chief of a great empire; and declared they would be satisfied
if an interpretation were given to them which would thenceforward free
American vessels from harassments and capture; finally, entering into
the views which the Emperor had so often manifested”—that is to say,
a league to humble the power and destroy the commercial navy of Great
Britain. Indeed General Armstrong declared “that he was authorized, in
case France should give the required explanation, and England should
refuse a sufficient explanation, to state that the President of the
United States _would recommend an instant declaration of war against
the latter Power_.” These insidious propositions were not accepted
by France. The Emperor persisted in requiring a repeal of the orders
of the British Council before he would revoke the imperial decree,
and left it with the United States to obtain such repeal by their own
efforts. This attempt at reconciliation with France was then abandoned
by the Americans, and the Non-intercourse Act remained in full vigour.
[Sidenote: Hostile feelings in United States against England.]
[Sidenote: Diplomatic proceedings in Paris.]
But while the feelings of the people of the United States were
becoming daily more hostile to Great Britain, the American government,
under some strange delusion, insisted upon the sincerity of France
in the early repeal of her decrees. Quiescent under the outrages
committed by the French upon their merchantmen, they were furious
against the English. Every little incident was seized upon to inflame
the public mind against Great Britain. Indeed the President sent a
message to Congress stating “that the continued evidence afforded of
the hostile policy of the British government against our national
rights strengthens the considerations recommending and urging the
preparation of adequate means for maintaining them.” The resolutions
for this object were carried by such large majorities in the House of
Representatives, that war became unavoidable. Both parties boasted of
their moderation and forbearance; both alleged the reason and justice
of their cause; nevertheless both were determined by motives of state
policy operating respectively upon the interests of each country. In
the beginning of the year, in order to leave no pretext for England,
the American minister at Paris pressed the French government to issue
an official or authentic Act; and at length, on the 10th of May, 1812,
he received, as we have seen, a copy of _a decree dated 28th April,
1811_, by which the Berlin and Milan Decrees were repealed, so that the
knowledge of this decree was withheld from the United States for more
than a year,[335] and was only brought to light and publicly avowed
when Napoleon had so far wrought upon the Americans as to commit them
to the unfortunate war with Great Britain.
[Sidenote: Convention with Great Britain.]
Peace was happily concluded on the 24th of Dec., 1814, and in 1815
a convention was signed in London between the United States and
Great Britain to regulate the commerce and navigation between their
respective countries.[336] It was framed upon the model of the English
reciprocity treaties, which were the first steps taken by her towards
a future greater freedom of trade. By the terms of the 2nd article,
the equalisation of the duties on tonnage and imports was extended to
the vessels of both nations, as far as related to their intercourse
with the British dominions in Europe and the United States. By that
convention the English confirmed to the United States vessels a free
direct communication with their dominions in the East Indies, with
liberty during peace to trade in any articles not entirely prohibited.
Pursuant to this convention, the vessels of Great Britain, and the
merchandise imported therein, when they entered the ports of the United
States were exempted from the payment of extra duties of tonnage
and import; provided the vessels arrived from, and the merchandise
consisted of the growth, produce, and manufacture of, the British
dominions in Europe. The same reciprocity was conferred upon American
vessels proceeding to Great Britain laden with merchandise of similar
character. But at the end of Article 2 there was a special proviso,
that “the intercourse between the United States and his Britannic
Majesty’s possessions in the West Indies, and on the continent of
North America, shall not be affected by any of the provisions of this
Article, but each party shall remain in the complete possession of its
rights, with respect to such an intercourse.”[337]
[Sidenote: Retaliatory Acts, to be enforced conditionally.]
In retaliation, Congress on the 1st of March, 1817, passed an Act
providing that “on and after the 30th of June of that year a duty of
two dollars per ton” should be paid “on all foreign vessels which
should enter in the United States, from any foreign place to and with
which the vessels of the United States are not ordinarily permitted
to enter and trade.” And it was further enacted, in almost the exact
words of the English Navigation Laws, that after the 30th of September,
1817, no merchandise should be imported into the United States from
any foreign place except in vessels of the United States, or in
“such foreign vessels as wholly belong to the citizens or subjects
of that country of which the merchandise is the growth, production,
or manufacture, or from which it can only be, or most usually is,
first shipped for transportation.” Adding that, “the regulations
aforesaid are only applicable to the vessels of such foreign nations
as have adopted or may adopt similar provisions;” and providing that
“merchandise imported into the United States contrary to the Act
aforesaid,[338] and the vessel in which the same is imported, are
forfeited to the United States.” It was further determined that “the
coasting trade is only allowed in vessels of the United States”; and
that “merchandise imported from one port into another port in the
United States, in a vessel belonging wholly or in part to a subject of
any foreign power, unless such merchandise shall have been imported in
such vessel from a foreign port, and that the same shall not have been
unladen, is forfeited to the United States.”
[Sidenote: Hostile legislation against Great Britain.]
In 1818 Congress made their navigation laws still more stringent by
enacting,[339] “That from and after the 30th of September next, the
ports of the United States shall be and remain closed against every
vessel owned, wholly or in part, by a subject or subjects of his
Britannic Majesty, coming or arriving from any port or place in a
colony or territory of his Britannic Majesty, that is or shall be, by
the ordinary laws of navigation and trade, closed against vessels owned
by citizens of the United States; and such vessel, that in the course
of the voyage shall have touched at, or cleared out from, any port or
place in a colony or territory of Great Britain, which shall or may be,
by the ordinary laws of navigation and trade aforesaid, open to vessels
owned by citizens of the United States, shall nevertheless be deemed to
have come from the port or place in the colony or territory of Great
Britain, closed as aforesaid against vessels owned by citizens of the
United States, from which such vessel cleared out and sailed before
touching at and clearing out from an intermediate and open port or
place as aforesaid; and every such vessel, so excluded from the ports
of the United States, that shall enter or attempt to enter the same in
violation of this Act, shall, with her tackle, apparel, and furniture,
together with the cargo on board such vessel, be forfeited to the
United States.”
[Sidenote: Bonds required.]
“After the date above mentioned, no vessel owned wholly or in part
by subjects of his Britannic Majesty, though the same may have been
duly entered in the United States, and the duties on goods, wares, and
merchandise imported duly paid, can be cleared out laden with articles
the growth, produce, or manufacture of the United States, before the
owner or consignee shall have given bond and sureties, in double the
value of the articles aforesaid, that they shall not be landed in any
port or place in a colony or territory of his Britannic Majesty, which
by the ordinary laws of navigation and trade is closed against vessels
owned by citizens of the United States.”
[Sidenote: Treaty negotiations renewed.]
Such was the mode adopted by the Americans to coerce Great Britain into
the relinquishment of her exclusive colonial trade. But at the very
same time a negotiation was opened in London to carry out the views
of the government of the United States, to settle all the differences
relating to impressments, the fisheries and boundaries, and to secure a
fresh treaty and convention on terms of reciprocity. Prior to entering
upon the negotiations, it was agreed that the subsisting convention
should be continued for a term of not less than eight years.
[Sidenote: Dutch reciprocity.]
In 1818 a reciprocity treaty was concluded between the United States
and the King of the Netherlands on the same basis as the convention
subsisting with Great Britain. The Dutch colonial trade was not,
however, included within the conditions of the treaty.
[Sidenote: Bremen reciprocity.]
The President of the United States, in his proclamation dated the 24th
of July, 1818, announced that he had received satisfactory proof that
the burgomasters and senators of the free Hanseatic city of Bremen
had abolished, after the 12th of May, 1815, all discriminating and
countervailing duties, so far as they operated to the disadvantage
of the United States; and accordingly he declared that the American
Tonnage Duties Acts were repealed in so far as they affected Bremen.
A very considerable trade in tobacco and other American productions
resulted from this first step towards freedom of trade with Germany.
Though England for a time rejected the principles of reciprocity in
the form offered by the government of the United States to the nations
of Europe and accepted by the Netherlands, it was found impossible
to conduct to advantage the rapidly increasing commerce of the world
in the face of these constantly recurring retaliatory measures.
Consequently in 1820 she found it not merely necessary, but to her
interest, to adopt a more liberal maritime policy, and to relax in some
measure her stringent navigation laws.
FOOTNOTES:
[321] _Vide_ ‘Annual Register,’ 1806, p. 246.
[322] _Vide_ ‘Annual Register,’ 1806, and ‘American State Papers,’
Foreign Relations, 1801, vol. ii. p. 491.
[323] This decision is called the “_Polly_” case, for which see
‘Robinson’s Reports,’ vol. ii. p. 368, for the judgment of Sir William
Scott (Lord Howell).
[324] This point was first decided in the case of the _Essex_, May
1805; and after an elaborate argument, the same decision was pronounced
in the case of the _William_, March 1806.
[325] Act of April 18, 1806.
[326] This very interesting document (December 21, 1804) will be found
in United States ‘State Papers,’ Commerce and Navigation, vol. i. p.
582.
[327] Wheaton’s ‘Elements of International Law,’ Rights of war as to
Neutrals, vol. ii. ch. iii., 1836.
[328] Holmes’ ‘Annals of America,’ vol. ii. p. 434.
[329] It may be reasonably doubted whether Captain Humphreys, of the
_Leopard_, was guilty of anything beyond going slightly beyond his
instructions in taking from the _Chesapeake_ three men who had deserted
from the _Melampus_, but who were not actually named in the order sent
to him by the Admiral of the Station, the Hon. G. C. Berkeley. That his
order from Admiral Berkeley completely justified his firing into the
_Chesapeake_ cannot be questioned; but whether it was wise for Admiral
Berkeley to issue such an order is another matter. The surrender of the
_Chesapeake_ took place in March 1807; and on the news reaching London,
together with a Proclamation from Jefferson, the English government at
once disavowed the act of Admiral Berkeley, and recalled him. It is
further clear that if the captain of the _Chesapeake_ had answered the
hail of Captain Humphreys honestly and truly, his ship would not have
been fired into.
[330] This document will be found in ‘Parl. Papers,’ 1808, vol. xiv.
It will be found also in American ‘State Papers,’ together with a most
voluminous correspondence.
[331] November 21, 1806.
[332] Mr. Armstrong’s letter to M. Champigny, at Paris, ‘American
Foreign Relations,’ vol. iii. There is a vast number of letters.
[333] Letter, August 22, 1809, to Mr. Armstrong.
[334] General Armstrong’s letter, February 4, 1808.
[335] ‘Diplomacy of the United States,’ p. 133.
[336] The convention was signed on the 3rd of July, 1815 (_vide_
‘Hertslet’s Treaties,’ vol. ii. p. 386); but so far as regards the
great questions on which differences had arisen it settled nothing. It
professed, indeed, to adjust the question of the north-east boundary;
but this point was not arranged until many years afterwards, the
two countries having been previously on the point of rupture. The
north-west boundary, afterwards known as the Oregon dispute, was
left _in statu quo_. Neither party cared to agitate the impressment
question, although the Americans had at one period made this the chief
ground for going to war. Both parties made a barren declaration, that
they were desirous of continuing their efforts to promote the entire
abolition of the slave-trade. The vapourings about neutral rights, with
which the world had been nauseated for a number of years, were buried
in silence, to be resuscitated whenever a national cry of agitation
might be necessary for electioneering purposes. The question about
blockade was set aside just in the like manner. The American claims
relating to the impressment of seamen fell to the ground; and, with the
exception of the Paris Declaration of 1856, the rights of neutrals, to
a large extent, remain undecided to this day. The boundary question was
deferred, not decided upon; and in 1834, as the award of the empire,
the King of the Netherlands, did not satisfy either party, both refused
to abide by it, and it was only settled by the award of the Emperor of
Germany in 1872.
[337] The United States, in 1816, enacted “that so much of an Act as
imposes a higher duty of tonnage or of import on vessels, and articles
imported in vessels of the United States, contrary to the provisions
of the countries between the United States and his Britannic Majesty,
the ratifications whereof were mutually exchanged the 22nd of December,
1815, be, from and after the date of the ratification of the said
convention, and during the continuance thereof, deemed and taken to be
of force and effect.”
[338] Act, March 1, 1817.
[339] Act, April 1818.