WHILE Congress recoiled from the problem of West Florida, and
by a single voice decreed that the United States Bank should cease to
exist, nothing had yet been decided in regard to England and France.
This delay was not due to negligence. From the first day of the session
anxiety had been great; but decision, which even in indifferent matters
was difficult for the Eleventh Congress, became impossible in so
complicated a subject as that of foreign relations. The President’s
proclamation named Feb. 2, 1811, as the day when intercourse with
England was to cease. Congress had been six weeks in session, and had
barely a fortnight to spare, when at last the subject was brought
before the House, January 15, by John W. Eppes of Virginia, chairman of
the committees of Ways and Means and Foreign Relations, who reported
a bill for regulating commercial intercourse with Great Britain. As
a third or fourth commercial experiment,--a companion to the partial
Non-intercourse Act of April, 1806; the embargo of December, 1807; and
the total Non-intercourse Act of March, 1809,--the new bill promised
more discontent in America than it was ever likely to create in
England. The measure was not a non-intercourse, but a non-importation,
severe and searching, in some ways almost as violent as the embargo;
and was to be passed by a Congress elected expressly for the purpose of
repealing the embargo.
The proposed bill lay on the Speaker’s table. February approached, and
still Congress did nothing; yet this delay substituted in place of the
Constitution a system of government by proclamation. In two instances
involving not only foreign war, but also more than half the foreign
trade and several principles of fundamental law, the country depended
in February, 1810, on two Executive proclamations, which rested on two
assertions of fact that no one believed to be true. In spite of Madison
and his proclamations, West Florida was not a part of Louisiana;
Napoleon had not withdrawn his decrees,--and Congress was unwilling to
support either assertion.
Unless the Berlin and Milan Decrees were repealed Nov. 1, 1810, as
Cadore’s letter was held to promise, neither President nor Congress
could reasonably take the ground that Cadore’s letter, of itself,
revived the non-intercourse against England. The United States had the
right to make war on England with or without notice, either for her
past spoliations, her actual blockades, her Orders in Council other
than blockades, her Rule of 1756, her impressments, or her attack on
the “Chesapeake,” not yet redressed,--possibly also for other reasons
less notorious; but the right to make war did not carry with it the
right to require that the world should declare to be true an assertion
which the world knew to be false. Unless England were a shrew to be
tamed, President Madison could hardly insist on her admitting the sun
to be the moon; and so well was Congress aware of this difficulty that
it waited in silence for two months, until, February 2, the President’s
proclamation went into effect; while the longer Congress waited, the
greater became its doubts.
Only one proof could be admitted as sufficient evidence that the French
Decrees were repealed. The Emperor had violated American rights by
decree, and until he restored them by decree no municipal order of
his subordinates could replace the United States in the position they
claimed. For this reason the President and Congress waited anxiously
for news from Paris to November 1, when the decree of appeal should
have issued. The news came, but included no decree. The President then
assumed that at least the Decrees of Berlin and Milan would not be
enforced in France after November 1; but letters from Bordeaux, dated
Dec. 14, 1810, brought news that two American vessels which entered
that port about December 1 had been sequestered. No other American
vessels were known to have arrived in French ports except with French
licenses.
This intelligence was a disaster. The President communicated it to
Congress in a brief message;[273] January 31; and so serious was
its effect that on February 2, when the non-intercourse revived by
proclamation, Eppes rose in the House and moved to recommit his bill
on the ground that the behavior of France gave no excuse for action
against England. “The non-intercourse went into operation to-day,” he
said. “It had been considered by the Committee of Foreign Relations
that in the present state of our affairs it would be better to provide
for the relief of our own citizens and suspend the passage of the law
for enforcing the non-intercourse until the doubts hanging over our
foreign relations were dissipated.”
The opposition would have done well to let Eppes struggle with his
difficulties as he best could without interference; but Randolph, who
liked to press an advantage, professing a wish to relieve the President
“from the dilemma in which he must now stand,” moved the repeal of the
Non-intercourse Act of March 1, 1809,--a step which if taken would have
repealed also the President’s proclamation. The motion brought on a
premature debate. Out-reasoned, out-manœuvred, and driven to the wall,
the Republicans could only become dogged and defiant. They took the
ground that retreat was impossible. Eppes avowed that he considered the
national faith pledged to France; and although he would not enforce the
non-intercourse against England until he had certain knowledge that
the French Decrees were withdrawn, he must have unequivocal evidence
that France had “violated the faith pledged to this nation” before
he would vote to repeal the law. Apologetic throughout, he admitted
that indemnity for the French seizures had always been considered an
essential part of any arrangement with Napoleon, yet held that the
national faith was pledged to that arrangement, although an essential
part of the Emperor’s obligation was omitted. Every speaker on the
Republican side, with the exception of Dr. Samuel L. Mitchill of
New York, asserted with increasing vehemence that the Act of May
1, 1810, created a contract with France, made perfect by Cadore’s
letter of August 5. This legal view of Napoleonic statesmanship had
much force with the Republican lawyers of the Eleventh Congress,
although its necessary consequence followed its announcement; for
since law, whatever lawyers might sometimes seem to assert, was not
politics,--differing especially in the point that law had a sanction of
force, while international politics had none,--and since Napoleon could
in no way be controlled by any sanction, and still less be trusted, the
so-called contract, while binding on America, in no way bound France.
Even Langdon Cheves, the new member from South Carolina, maintained
that the United States could no longer break their compact with the
Emperor. “Was it not better,” he asked, “that the nation should
preserve all it had left,--its good faith? Its property and honor
had been sacrificed, and all that was left was its good faith.”
Cheves admitted that his doctrine of “good faith” had an ulterior
motive, which was to force a conflict with England. “He had never
been satisfied with the wisdom or propriety of the law of May last in
any other view than one. He believed it would make the country act a
part worthy of its character; it would precipitate us on a particular
enemy,--and this, he believed, the country required.” He went so far as
to assert “that the decrees were removed, and that if the violation of
our rights continued to-morrow, yet the decrees were so revoked on the
1st of November last as that they did cease to violate our commerce.
If our rights are now violated, it is a violation independent of the
decrees, by the mere will of an arbitrary and powerful government.”
Rhea of Tennessee went further still. “If any compact,” said he, “can
be of greater dignity than a treaty, the law of May 1, made by the
constituted authorities of the United States, and agreed to and acted
on by the constituted authorities of France, forms that compact.”
When one nation is agreed in the policy of fighting another any pretext
will answer, and Government need not even be greatly concerned to give
any reason at all; but in the condition of America in 1810, grave
dangers might result from setting aside the four or five just issues
of war with England in order to insist on an issue that revolted
common-sense. If ingenuity had been provoked to suggest the course
which would rouse most repugnance in the minds of the largest possible
number of Americans, no device better suited for its purpose than the
theory of Eppes, Cheves, and Rhea could have been proposed; and if
they wished to exasperate the conscience of New England in especial
to fanatical violence, they came nearest their end by insisting on an
involuntary, one-sided compact, intended to force Massachusetts and
Connecticut to do the will of the man whom a majority of the people in
New England seriously regarded as anti-Christ. Even on the floor of the
House no Republican could stand a moment before John Randolph without
better protection than this compact with France, which France herself
did not recognize.
“This is the 2d of February,” said Randolph. “The time
has arrived, the hour now is, when gentlemen by their own
arguments, if their arguments be just, are bound to fulfil the
contract, which I do not undertake to expound, but which they
say has been made--certainly in a manner very novel to our
Constitution--between the House of Representatives on the one
hand and Bonaparte on the other,--a bargain which, like the
bargains of old with the Devil, there is no shaking off. It is a
bargain which credulity and imbecility enter into with cunning
and power.... I call upon gentlemen to make good their promise
to his Majesty the Emperor of the French and King of Italy; to
redeem their pledge; to cut off in fact nearly the whole of our
existing trade in return for the liberty of trading by license
from the three favored ports which it has pleased his Imperial
Majesty to privilege. No man believes--I beg pardon, sir; I
was going to say, but I will not, that no man believes one
syllable of this breach of faith on our part. I have too much
confidence in the honor of gentlemen not to be convinced that
they have persuaded themselves to this effect, although it is
incomprehensible to me. Bound, sir, to whom? To Bonaparte? Bound
to Shylock? Bound to render up not only the pound of flesh, but
every jot of blood in the Constitution? Does he come forward
with his pockets swelled with American treasure; do his minions,
fattened upon our soil, whether obtained by public rapine or
private extortion, do they come forward, calling upon us to
make sacrifices of our best interest on the shrine of their
resentments, in the name, too, of good faith?”
The majority showed its usual weakness in debate, but rejected
Randolph’s motion by a vote of sixty-seven to forty-five; and after
rejecting it, knew not what to do. Eppes reported a new bill to suspend
for a time the operation of the non-intercourse, and a new debate
began. February 9 Eppes rejoiced the House by opening a fresh hope of
some decided policy. A new French minister was soon to arrive in place
of Turreau, and further legislation must wait his arrival.
“He has left France,” said Eppes, “at a time to bring us certain
information on this question. I have no wish to enter on this
interesting question with a bandage round my eyes. Whether
France has complied with her engagements, whether France has
failed in her engagements, cannot be a subject of ingenious
speculation many days longer.”
Further proceedings were suspended until Congress should learn what
Napoleon’s agent would say.[274]
The new minister arrived almost immediately. Unlike Turreau, Serurier
was a diplomate by profession. He had last served as French minister
at the Hague, where, by no fault of his own, he drove King Louis of
Holland from his throne. February 16 he was presented to the President,
and the next day had a long interview with Robert Smith, who learned
that he brought no instructions or information of any kind on the one
subject that engrossed diplomatic attention. The scene with Francis
James Jackson was repeated with the French minister. Again and again
Smith pressed his inquiries, which Serurier politely declined to answer
except by resenting any suggestion that the Emperor would fail to keep
his word.[275]
After this interview, on the same day, the President apparently held
a Cabinet meeting, and probably also consulted certain party leaders
in Congress; but no record of such conferences has been preserved, nor
is anything known of the arguments that ended in the most hazardous
decision yet risked. If disagreement took place,--if Gallatin, Eppes,
Robert Smith, or Crawford remonstrated against the course pursued, not
a whisper of their arguments was heard beyond the Cabinet. Serurier
himself is the only authority for inferring that some conference was
probably held; but he knew so little, that in giving to his Government
an account of his first day in Washington he closed the despatch by
reporting in a few lines the decision, of which he could have hardly
suspected the importance. His interview with Robert Smith took place
on the morning of February 17; the afternoon was probably passed by the
President and Cabinet in conference; in the evening Mrs. Madison held a
reception, where Serurier was received with general cordiality:--
“In coming away, Mr. Smith--probably intending to say something
agreeable, and something that I might regard as the effect of
our first conversations--assured me that he was authorized to
give me the pledge that if (_pour peu que_) England should
show the least new resistance to the withdrawal of her orders,
the Government had decided to increase the stringency of the
non-intercourse, and to give that measure all the effect it
ought to have.”
The decision to enforce and re-enforce the non-intercourse against
England implied that the President considered Napoleon’s Decrees to
be withdrawn. February 17, at latest, the decision was made. February
19 the President sent to Congress a Message containing two French
documents.[276] The first was a letter, dated December 25, from the
Duc de Massa, Minister of Justice, to the President of the Council of
Prizes, which recited the words of Cadore’s letter and the measures
taken by the American government in consequence, and ordered that all
captured American vessels should thenceforward not be judged according
to the principles of the Decrees of Berlin and Milan, which “shall
remain suspended;” but such captured vessels should be sequestrated,
“the rights of the proprietors being reserved to them until the 2d of
February next, the period at which the United States, having fulfilled
the engagement to cause their rights to be respected, the said captures
shall be declared null by the Council.” The second letter, of the same
date, was written by Gaudin, Duc de Gaete, Minister of Finance, to the
Director-General of the Customs, directing him thenceforward not to
enforce the Berlin and Milan Decrees against American vessels.
On these letters, not on any communications from Scrurier, the
President rested his decision that the Decrees of Berlin and Milan were
so revoked as no longer to violate the neutral commerce of the United
States. Obviously they failed to prove more than that the decrees
were partially suspended. According to these orders the decrees were
not under any circumstances to be revoked, but their operation upon
American commerce in France was to cease in case the Emperor should
be satisfied that America had previously enforced against England
the principles of the decrees. This was the converse of the American
demand, and was in effect the attitude of England. The same packet
which brought Jonathan Russell’s despatch containing the two letters of
the French ministers brought also the “Moniteur” of December 15, which
contained the Duc de Cadore’s official Report on Foreign Relations,--a
paper understood to express the Emperor’s own language, and to be
decisive as to the meaning of his foreign policy:--
“Sire, as long as England shall persist in her Orders in
Council, your Majesty will persist in your decrees; will oppose
the blockade of the Continent to the blockade of the coast, and
the confiscation of British merchandise on the Continent to the
pillage on the seas. My duty obliges me to say to your Majesty,
You cannot henceforward hope to recall your enemies to more
moderate ideas except by perseverance in this system.”
These documents, combined with a knowledge of the license system,
showed the true scope and meaning of Cadore’s pledge so clearly as
to leave no possibility of doubt. If America chose to accept these
limitations of her neutral rights, she was at liberty to do so; but she
could hardly require England to admit that the Berlin and Milan Decrees
were in any sense revoked because American ships were thenceforward to
be admitted to France subject to the system of those decrees. Napoleon
concealed neither his policy nor his motives, and as these did not
warrant the assertion that France had ceased to violate the neutral
rights of America, President Madison was obliged to assume that the
Emperor meant to do more. A month after his decision was made, he
wrote to Jefferson a letter of speculation as to the reasons that
prevented the Emperor from taking the action assumed to belong to his
plans:[277]--
“It is, as you remark, difficult to understand the meaning
of Bonaparte toward us. There is little doubt that his want
of money and his ignorance of commerce have had a material
influence. He has also distrusted the stability and efficacy of
our pledge to renew the non-intercourse against Great Britain,
and has wished to execute his in a manner that would keep pace
only with the execution of ours, and at the same time leave
no interval for the operation of the British Orders without a
counter-operation in either his or our measures. In all this his
folly is obvious.”
Such language was not only inconsistent with the doctrine that the
French Decrees stood repealed in such a manner as no longer to
violate American commerce, but it also showed that Madison deceived
himself as to Napoleon’s character and his policy. Of all theories
on which to found political action, the least reasonable was that of
assuming Napoleon to be foolish; yet his “obvious folly” was Madison’s
explanation of an ingenious and successful device to enforce the
Continental system.
Having adopted a policy, Madison could not but carry it to its
practical results. Robert Smith came to him February 20 with the
draft of a note addressed to Serurier, asking for information as to
the withdrawal of the decrees,--a course similar to that adopted with
Jackson. “I was, to my astonishment, told by him that it would not be
expedient to send to Mr. Serurier any such note. His deportment during
this interview evinced a high degree of disquietude, which occasionally
betrayed him into fretful expressions.”[278]
Smith did not understand the uselessness of asking Serurier for
information he could not give, after deciding to act on such
information as though it had been given. Although every one knew
privately that Serurier would say nothing on the subject, the President
could not afford to give the silence official emphasis; and he probably
regarded Smith’s attempt to do so as a part of his general effort to
discredit the whole system of commercial restrictions. The proposed
letter to Serurier could be of no use except to embarrass Congress in
legislating against England. Already the first steps for this purpose
had been arranged, and the next day, February 21, Eppes moved in the
House to amend his bill by substituting two new sections, which revived
the non-intercourse of March, 1809, against England in respect to all
vessels which left a British port after Feb. 2, 1811, and forbade the
courts to entertain the question whether the French edicts were or were
not revoked.
Nothing short of a revolution in the form of government could force
such a bill through Congress at so late an hour; but the Republican
party having decided on the measure, did not shrink from employing the
means.
February 23 the House went into committee and took up Eppes’s new
bill. That it was unsatisfactory could not be denied. Robert Wright of
Maryland--a new member, of the war party--moved to amend by requiring
from England an arrangement about impressments as an additional
condition of restoring intercourse, and had the Government intended to
make war its ultimate object it would have adopted Wright’s motion; but
the House had no such object. Impressment was not one of the grievances
which of late had been urged against England; indeed, the subject had
somewhat fallen out of sight, and so little did the House care to
insist upon it, that only twenty-one votes supported Wright’s motion.
On the other hand, the conduct of France was hotly discussed, but only
by Federalists. The Republicans sat silent.
After one day’s debate the bill was reported, and February 26 the
true struggle began. The House sat eighteen hours, while the minority
consumed time by long speeches and dilatory motions. During the last
four hours no quorum was present, and the Speaker decided that in the
absence of a quorum no compulsory process could be issued. When the
House reassembled at half-past ten on the morning of February 27, long
speeches were resumed. The evening session began at six o’clock, when
on both sides patience was exhausted. Randolph made two successive
motions to postpone. Eppes declared that Randolph’s motive was to delay
and defeat the bill; Randolph retorted by the lie direct, and for a
time the House fell into confusion, while Eppes wrote a challenge on
the spot, and sent it by Richard M. Johnson to Randolph, who left the
House to instruct his second.
Until half-past two o’clock in the morning of February 28 time was
consumed in these tactics,--about eighty members being present, and
the majority keeping silence. At that hour Barent Gardenier was on the
floor making another diffuse harangue, when Thomas Gholson of Virginia
called for the previous question on the last motion before the House.
According to the rules, Speaker Varnum stated the motion: “Shall the
main question be now put?” It was decided in the affirmative. Gardenier
immediately attempted to speak on the main question, when Gholson
called him to order. Then followed the _coup d’état_.
“The Speaker decided that according to the late practice of the
House it was in order to debate the main question after the
previous question had been taken. He said that this practice had
been established by the House by a decision two years ago, in
opposition to an opinion which he himself had always entertained
and had then declared. His decision on that occasion was
reversed, and he felt himself bound by that expression of the
House.”
Gholson appealed. The Speaker decided that the appeal was debatable,
but his decision was reversed by a vote of sixty-six to thirteen. The
House then, without a division, reversed his first ruling, and ordered
that thenceforth, after the motion for the previous question should
have been decided in the affirmative, the main question should not be
debated.
By this means and by persistent silence the majority put an end to
debate. When Randolph returned to the hall and heard what had been
done, he burst into reproaches that the House had disgraced itself;
but his outcry, which like his language to Eppes was attributed to
drink, received no answer except cries to order. Further resistance was
not carried to extremes; perhaps the dilatory tactics of later times
were hardly applicable to so small a body as the House of 1811, or
needed time for development; at all events the bill was forced to its
passage, and at about five o’clock on the morning of February 28 the
House passed it by a vote of sixty-four to twelve. March 2 it passed
the Senate, and was approved by the President. Of all the Republicans,
Macon alone in the House and Bradley of Vermont in the Senate voted
against it. Matthew Lyon, who also opposed it, left the House in
disgust without voting.
The rule of the previous question thus adopted has been the subject
of much criticism, and doubtless tended among other causes to affect
the character of the House until in some respects it became rather a
court of registration than a deliberative body. With few exceptions
in history, this result has proved inevitable in large assemblies
whose cumbrous inefficiency has obstructed public needs or interests;
and perhaps the House of Representatives in 1811 was not to blame for
seeking to correct vices inherent in its character. Such great and
permanent changes implied a sufficient cause behind them, even though
they led to worse evils. The previous question was a rude expedient for
removing wanton obstruction, and might have been the source of benefit
rather than of injury to the public service had the House succeeded
in giving its new character systematic improvement; but in American
history the previous question became an interesting study, because it
marked deterioration. Of all the defences provided by the Constitution
for special or feeble interests, the right of debate was supposed to
be the most valuable; and nowhere was this right so necessary as in
Congress. Not even in the courts of justice was deliberation more
essential than in the House of Representatives. The Republicans came
into office in 1801 to protect special and feeble interests, and had
no other reason for existence than as the enemies of centralized
power; yet circumstances drove them to impose silence on the voice
of a minority that wanted only to prevent an improper act, and they
did so by methods substantially the same as those used by Cromwell or
Napoleon. In neither case was the minority consulted or its protest
regarded. The difference was rather in the character of the actors. The
great usurpers of history had in one sense a sufficient motive, for
they needed the power they seized, and meant to use it. The Republican
majority in the Eleventh Congress neither needed power nor meant to use
it. Their object was not to strengthen government, or to prepare for
war, or even to suppress popular liberties for their own pleasure, but
merely to carry out an Executive scheme which required no haste, and
was to be followed by no strong measures. As far as human intelligence
could be called blind, the intelligence which guided the House was the
blind instinct of power.
The same instinct was shown in the behavior of Congress toward other
matters of legislation. Under Executive pressure, the Acts authorizing
or approving the seizure of East and West Florida, the admission of
Louisiana as a State, and the revival of non-intercourse against
England were passed; and this series of measures seemed to a large
minority a domestic revolution preliminary to foreign war. Naturally
the Federalists and independent Republicans looked for the measures
to be taken in order to meet or to escape the dangers thus invited.
The Federalists had no small share of English respect for whatever was
fixed, and they needed only to be satisfied that the Union was strong
in order to yield whatever obedience it required; but they wondered how
Madison with his weak Cabinet and Eppes with his still less intelligent
majority meant to create and handle the weapons that were to drive Old
England from the ocean and to hold New England on the land. They could
not believe that a government would fling itself headlong out of the
window in order to oblige the people to save it from breaking its neck.
So far from grasping at weapons, Congress and the Executive seemed bent
only on throwing away the weapons they held. The Bank perished almost
with the same breath that revived the non-intercourse against England.
By abolishing the Bank, Congress threw away a large sum of money which
Gallatin hoped to employ for his current demand and for possible war.
By forbidding the importation of English merchandise, Congress further
struck off one half the annual revenue. Gallatin foresaw the danger to
the Treasury long before it was realized, and January 28 wrote a letter
to Eppes advising a general increase of duties on such importations
as might be permitted by law. February 6 Eppes reported from the Ways
and Means Committee a bill to this effect; but the House failed to act
upon it. Congress would consent to no new taxation; and as the Treasury
could not be allowed to fail in its engagements, the House authorized a
loan of five million dollars.
Such financial expedients looked toward any result except a policy of
vigor, and the rest of the winter’s legislation bore out the belief
that no vigor was in the mind of Government. The Tenth Congress had
increased the military establishment, until in 1808 the appropriations
exceeded $4,700,000. The Eleventh Congress reduced them in 1809–1810
to about $3,100,000; in 1811 Congress appropriated barely $3,000,000.
The naval appropriations in 1809 reached nearly $3,000,000; in 1810
they were reduced to about $1,600,000; in 1811 Congress appropriated
$1,870,000. Even in a time of profound peace, when no thought of war
disturbed the world, such armaments would have been hardly sufficient
for purposes of police on the coasts and in the territories.
A short debate took place at the last moment of the session, on a
bill authorizing the President to accept a corps of fifty thousand
volunteers. The measure had been reported by Crawford of Georgia in the
Senate, from a committee appointed to consider the occupation of West
Florida. March 1 the Senate passed the bill without a division, for it
implied neither a new principle nor any necessary expense; while the
President, without such authority, would find himself helpless to deal
with any trouble that might arise from the affairs of Florida. When the
bill reached the House, John Dawson of Virginia urged its adoption;
“it was incumbent on them,” he said, “to do something to provide for
defence.” Matthew Lyon said he had frequently voted for such bills
when there was no prospect of war; “and now, when we were going to war
[with Spain], and giving the provocation ourselves, he was of opinion
it ought to be passed.” The House, without a division, indefinitely
postponed the bill; and thus refusing to do more business of any kind,
toward midnight of Sunday, March 3, the Eleventh Congress expired,
leaving behind it, in the minds of many serious citizens, the repute
of having brought Government to the last stage of imbecility before
dissolution.