CHAPTER XI.

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board of a neutral vessel any of their subjects who had withdrawn from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.

History of merchant shipping and ancient commerce, Volume 2 (of 4) · 第 11 / 16 章