When Mr. Monroe arrived in England in 1803, after the conclusion of the Louisiana purchase from France, war had just re-begun. Instructions were sent him, in an elaborate series of articles framed by Madison, for negotiating a convention to regulate those matters of difference which experience had shown were sure to arise between the two countries in the progress of the hostilities. Among them, impressment was given the first place; but up to 1806, when Pinkney was sent as his associate, nothing had been effected, nor does urgency seem to have been felt. So long as in practice things ran smoothly, divergences of opinion were easily tolerable. Soon after the receipt of the instructions, in March, 1804,[155] the comparatively friendly administration of Addington gave way to that of Pitt; and upon this had followed Monroe's nine-months absence in Spain. Before departure, however, he had written, "The negotiation has not failed in its great objects, ... nor was there ever less cause of complaint furnished by impressment."[156] The outburst of seizure upon the plea of a constructively direct trade, already mentioned, had followed, and, with the retaliatory non-importation law of the United States, made the situation acute and menacing. Further cause for exasperation was indicated in a report from the Secretary of State, March 5, 1806, giving, in reply to a resolution of the House, a tabulated statement, by name, of 913 persons, who "appear to have been impressed from American vessels;" to which was added that "the aggregate number of impressments into the British service since the commencement of the present war in Europe (May, 1803) is found to be 2,273."[157]

Confronted by this situation of wrongs endured, by commerce and by seamen, the mission of Monroe and Pinkney was to negotiate a comprehensive treaty of "amity, commerce, and navigation," the first attempted between the two countries since Jay's in 1794. When Pinkney landed, Fox was already in the grip of the sickness from which he died in the following September. This circumstance introduced an element of delay, aggravated by the inevitable hesitations of the new ministry, solicitous on the one hand to accommodate, but yet more anxious not to incense British opinion. The Prime Minister, in room of Mr. Fox, received the envoys on August 5, and, when the American demand was explained to him, defined at once the delicacy of the question of impressment. "On the subject of the impressment of our seamen, he suggested doubts of the practicability of devising the means of discrimination between the seamen of the two countries, within (as we understood him) their respective jurisdictions; and he spoke of the importance to the safety of Great Britain, in the present state of the power of her enemy, of preserving in their utmost strength the right and capacity of Government to avail itself in war of the services of its seamen. These observations were connected with frequent professions of an earnest wish that some liberal and equitable plan should be adopted, for reconciling the exercise of this essential right with the just claims of the United States, and for removing from it all cause of complaint and irritation."[158]

In consequence of Mr. Fox's continued illness two negotiators, one of whom, Lord Holland, was a near relative of his, were appointed to confer with the American envoys, and to frame an agreement, if attainable. The first formal meeting was on August 27, the second on September 1.[159] As the satisfactory arrangement of the impressment difficulty was a sine qua non to the ratification of any treaty, and to the repeal of the Non-Importation Act, this American requirement was necessarily at once submitted. The reply was significant, particularly because made by men apparently chosen for their general attitude towards the United States, by a ministry certainly desirous to conciliate, and to retain the full British advantage from the United States market, if compatible with the preservation of an interest deemed greater still. "It was soon apparent that they felt the strongest repugnance to a formal renunciation, or the abandonment, of their claim to take from our vessels on the high seas such seamen as should appear to be their own subjects, and they pressed upon us with much zeal a provision" for documentary protection to individuals; "but that, subject to such protections, the ships of war of Great Britain should continue to visit and impress on the main ocean as heretofore."

In the preliminary discussions the British negotiators presented the aspect of the case as it appeared to them and to their public. They "observed that they supposed the object of our plan to be to prevent the impressment at sea of American seamen, and not to withdraw British seamen from the naval service of their country in times of great national peril, for the purpose of employing them ourselves; that the first of these purposes would be effectually accomplished by a system which should introduce and establish a clear and conclusive distinction between the seamen of the two countries, which on all occasions would be implicitly respected; that if they should consent to make our commercial navy a floating asylum for all the British seamen who, tempted by higher wages, should quit their service for ours, the effect of such a concession upon their maritime strength, on which Great Britain depended, not only for her prosperity but for her safety, might be fatal; that on the most alarming emergency they might be deprived, to an extent impossible to calculate, of their only means of security; that our vessels might become receptacles for deserters to any amount, and when once at sea might set at defiance the just claims of the service to which such deserters belonged; that, even within the United States, it could not be expected that any plan for recovering British deserters could be efficacious; and that, moreover, the plan we proposed was inadequate in its range and object, inasmuch as it was merely prospective, confined wholly to deserters, and in no respect provided for the case of the vast body of British seamen now employed in our trade to every part of the world."

To these representations, which had a strong basis in fact and reason, if once the British principle was conceded, the American negotiators replied in detail as best they could. In such detail, the weight of argument and of probability appears to the writer to rest with the British case; but there is no adequate reply to the final American assertion, which sums up the whole controversy, "that impressment upon the high seas by those to whom that service is necessarily confided must under any conceivable guards be frequently abused;" such abuse being the imprisonment without trial of American citizens, as "a pressed man," for an indefinite period. Lord Cochrane, a British naval officer of rare distinction, stated in the House of Commons a few years later that "the duration of the term of service in his Majesty's Navy is absolutely without limitation."[160]

The American envoys were prevented by their instructions from conceding this point, and from signing a treaty without some satisfactory arrangement. Meantime, impressed by the conciliatoriness of the British representatives, and doubtless in measure by the evident seriousness of the difficulty experienced by the British Government, they wrote home advising that the date for the Non-Importation Act going into operation, now close at hand, should be postponed; and, in accordance with a recommendation from the President, the measure was suspended by Congress, with a provision for further prolongation in the discretion of the Executive. On September 13 Fox died, an event which introduced further delays, esteemed not unreasonable by Monroe and Pinkney. Their next letter home, however, November 11,[161] while reporting the resumption of the negotiation, announced also its failure by a deadlock on this principal subject of impressment: "We have said everything that we could in support of our claim, that the flag should protect the crew, which we have contended was founded in unquestionable right.... This right was denied by the British commissioners, who asserted that of their Government to seize its subjects on board neutral vessels on the high seas, and also urged that the relinquishment of it at this time would go far to the overthrow of their naval power, on which the safety of the state essentially depended." In support of the abstract right was quoted the report from a law officer of the Crown, which "justified the pretension by stating that the King had a right, by his prerogative, to require the services of all his seafaring subjects against the enemy, and to seize them by force wherever found, not being within the territorial limits of another Power; that as the high seas were extra-territorial, the merchant vessels of other Powers navigating on them were not admitted to possess such a jurisdiction as to protect British subjects from the exercise of the King's prerogative over them."

This was a final and absolute rejection of Madison's doctrine, that merchant vessels on the high seas were under the jurisdiction only of their own country. Asserted right was arrayed directly and unequivocally against asserted right. Negotiation on that subject was closed, and to diplomacy was left no further resort, save arms, or submission to continued injury and insult. The British commissioners did indeed submit a project,[162] in place of that of the United States, rejected by their Government. By this it was provided that thereafter the captain of a cruiser who should impress an American citizen should be liable to heavy penalties, to be enacted by law; but as the preamble to this proposition read, "Whereas it is not lawful for a belligerent to impress or carry off, from on board a neutral, seafaring persons who are not the subjects of the belligerent," there was admitted implicitly the right to impress those who were such subjects, the precise point at issue. The Americans therefore pronounced it wholly inadmissible, and repeated that no project could be adopted "which did not allow our ships to protect their crews."

The provision made indispensable by the United States having thus failed of adoption, the question arose whether the negotiation should cease. The British expressed an earnest desire that it should not, and as a means thereto communicated the most positive assurances from their Government that "instructions have been given, and will be repeated and enforced, for the observance of the greatest caution in the impressing of British seamen; that the strictest care shall be taken to preserve the citizens of the United States from molestation or injury; and that prompt redress shall be afforded upon any representation of injury."[163] To this assurance the American commissioners attached more value as a safeguard for the future than past experience warranted; but in London they were able to feel, more accurately than an official in Washington, the extent and complexity of the British problem, both in actual fact and in public feeling. They knew, too, the anxious wish of the President for an accommodation on other matters; so they decided to proceed with their discussions, having first explicitly stated that they were acting on their own judgment.[164] Consequently, whatever instrument might result from their joint labors would be liable to rejection at home, because of the failure of the impressment demand.

The discussions thus renewed terminated in a treaty of amity, commerce, and navigation, signed by the four negotiators, December 31, 1806. Into the details of this instrument it is unnecessary to go, as it never became operative. Jefferson persisted in refusing approval to any formal convention which did not provide the required stipulation against impressment. He was dissatisfied also with particular details connected with the other arrangements. All these matters were set forth at great length in a letter[165] of May 20, 1807, from Mr. Madison to the American commissioners; in which they were instructed to reopen negotiations on the basis of the treaty submitted, endeavoring to effect the changes specified. The danger to Great Britain from American commercial restriction was fully expounded, as an argument to compel compliance with the demands; the whole concluding with the characteristic remark that, "as long as negotiation can be honorably protracted, it is a resource to be preferred, under existing circumstances, to the peremptory alternative of improper concessions or inevitable collisions." In other words, the United States Government did not mean to fight, and that was all Great Britain needed to know. That she would suffer from the closure of the American market was indisputable; but, being assured of transatlantic peace, there were other circumstances of high import, political as well as commercial, which rendered yielding more inexpedient to her than a commercial war.

At the end of March, 1807, within three months of the signature at London, the British Ministry fell, and the disciples of Pitt returned to power. Mr. Canning became Foreign Secretary. Circumstances were then changing rapidly on the continent of Europe, and by the time Madison's letter reached England a very serious event had modified also the relations of the United States to Great Britain. This was the attack upon the United States frigate "Chesapeake" by a British ship of war, upon the high seas, and the removal of four of her crew, claimed as deserters from the British Navy. Unofficial information of this transaction reached England July 25, just one day after Monroe and Pinkney had addressed to Canning a letter communicating their instructions to reopen negotiations, and stating the changes deemed desirable in the treaty submitted. The intervention of the "Chesapeake" affair, to a contingent adjustment of which all other matters had been postponed, delayed to October 22 the reply of the British Minister.[166] In this, after a preamble of "distinct protest against a practice, altogether unusual in the political transactions of states, by which the American Government assumes to itself the privilege of revising and altering agreements concluded and signed on its behalf by its agents duly authorized for that purpose," Canning thus announced the decision of the Cabinet: "The proposal of the President of the United States for proceeding to negotiate anew, upon the basis of a treaty already solemnly concluded and signed, is a proposal wholly inadmissible. And his Majesty has therefore no option, under the present circumstances of this transaction, but to acquiesce in the refusal of the President of the United States to ratify the treaty signed on December 31, 1806." The settlement of the "Chesapeake" business having already been transferred to Washington, by the appointment of a special British envoy, this rejection of further consideration of the treaty closed all matters pending between the two governments, except those appertaining to the usual duties of a legation, and Monroe's mission ended. A fortnight later he sailed for the United States. His place as regularly accredited Minister to the British Court was taken by Pinkney, through whom were conducted the subsequent important discussions, which arose from the marked extension given immediately afterwards by France and Great Britain to their several policies for the forcible restriction of neutral trade.

Those who have followed the course of the successive events traced in this chapter, and marked their accelerating momentum, will be prepared for the more extreme and startling occurrences which soon after ensued as a matter of inevitable development. They will be able also to understand how naturally the phrase, "Free Trade and Sailors' Rights," grew out of these various transactions, as the expression of the demands and grievances which finally drove the United States into hostilities; and will comprehend in what sense these terms were used, and what the wrongs against which they severally protested. "Free Trade" had no relation of opposition to a system of protection to home industries, an idea hardly as yet formulated to consciousness, except by a few advanced economists. It meant the trade of a nation carried on according to its own free will, relieved from fetters forcibly imposed by a foreign yoke, in which, under the circumstances of the time, the resurrection of colonial bondage was fairly to be discerned. "Sailors' Rights" expressed not only the right of the American seaman to personal liberty of action,—in theory not contested, but in practice continually violated by the British,—but the right of all seamen under the American flag to its protection in the voluntary engagements which they were then fulfilling. It voiced the sufferings of the individual; the personal side of an injury, the reverse of which was the disgrace of the nation responsible for his security.

It was afterwards charged against the administrations of Jefferson and Madison, under which these events ran their course to their culmination in war, that impressment was not a cause of the break between the two countries, but was adduced subsequently to swell the array of injuries, in which the later Orders in Council were the real determinative factor. The drift of this argument was, that the Repeal of the Orders, made almost simultaneously with the American Declaration of War, and known in the United States two months later, should have terminated hostilities. The British Government, in an elaborate vindication of its general course, published in January, 1813, stated that, "in a manifesto, accompanying their declaration of hostilities, in addition to the former complaints against the Orders in Council, a long list of grievances was brought forward; but none of them such as were ever before alleged by the American Government to be grounds for war." In America itself similar allegations were made by the party in opposition. The Maryland House of Delegates, in January, 1814, adopted a memorial, in which it was said that "The claim of impressment, which has been so much exaggerated, but which was never deemed of itself a substantive cause of war, has been heretofore considered susceptible of satisfactory arrangement in the judgment of both the commissioners, who were selected by the President then in office to conduct the negotiation with the English ministry in the year 1806."[167] The words of the commissioners in their official letters of November 11, 1806,[168] and April 22, 1807,[169] certainly sustain this statement as to their opinion, which was again deliberately affirmed by Monroe in a justificatory review of their course, addressed to Madison in February, 1808,[170] after his return. Gaston, speaking in the House in February, 1814, said: "Sir, the question of seamen was not a cause of this war. More than five years had passed over since an arrangement on this question, perfectly satisfactory to our ministers, [Monroe and Pinkney] had been made with Great Britain; but it pleased not the President, and was rejected. Yet, during the whole period that afterwards elapsed until the declaration of war, no second effort was made to adjust this cause of controversy."[171]

Gaston here is slightly in error as to fact, for the attack upon the "Chesapeake" was made by the Government the occasion for again demanding an abandonment of the practice of impressment from American merchant ships; but, accepting the statements otherwise, nothing more could be required of the Administration, so far as words went, than its insistence upon this relinquishment as a sine qua non to any treaty. Its instructions to its ministers in 1806 had placed this demand first, not only in order, but in importance, coupling with it as indispensable only one other condition, the freedom of trade; the later and more extreme infringements of which were constituted by the Orders in Council of 1807. After protracted discussion, the American requirement as to impressment had been refused by Great Britain, deliberately, distinctly, and in the most positive manner; nor does it seem possible to concur with the opinion of our envoys that the stipulations offered by her representatives, while not sacrificing the British principle, did substantially and in practice secure the American demands. These could be satisfactorily covered only by the terms laid down by the Administration. Thereafter, any renewal of the subject must come from the other side; it was inconsistent with self-respect for the United States again to ask it, unless with arms in her hands. To make further advances in words would have been, not to negotiate, but to entreat. This, in substance, was the reply of the Government to its accusers at home, and it is irrefutable.

It is less easy—rather, it is impossible—to justify the Administration for refraining from adequate deeds, when the impotence of words had been fully and finally proved. In part, this was due to miscalculation, in itself difficult to pardon, from the somewhat sordid grounds and estimates of national feeling upon which it proceeded. The two successive presidents, and the party behind them, were satisfied that Great Britain, though standing avowedly and evidently upon grounds considered by her essential to national honor and national safety, could be compelled to yield by the menace of commercial embarrassment. That there was lacking in them the elevated instinct, which could recognize that they were in collision with something greater than a question of pecuniary profits, is in itself a condemnation; and their statesmanship was at fault in not appreciating that the enslaved conditions of the European continent had justly aroused in Great Britain an exaltation of spirit, which was prepared to undergo every extreme, in resistance to a like subjection, till exhaustion itself should cause her weapons to drop from her hands.

The resentment of the United States Government for the injuries done its people was righteous and proper. It was open to it to bear them under adequate protest, sympathizing with the evident embarrassments of the old cradle of the race; or, on the other hand, to do as she was doing, strain every nerve to compel the cessation of outrage. The Administration preferred to persist in its military and naval economies, putting forth but one-half of its power, by measures of mere commercial restriction. These impoverished its own people, and divided national sentiment, but proved incapable within reasonable time to reduce the resolution of the opponent. That that finally gave way when war was clearly imminent proves, not that commercial restriction alone was sufficient, but that coupled with military readiness it would have attained its end more surely, and sooner; consequently with less of national suffering, and no national ignominy.

Entire conviction of the justice and urgency of the American contentions, especially in the matter of impressment, and only to a less degree in that of the regulation of trade by foreign force, as impeaching national independence, is not enough to induce admiration for the course of American statesmanship at this time. The acuteness and technical accuracy of Madison's voluminous arguments make but more impressive the narrowness of outlook, which saw only the American point of view, and recognized only the force of legal precedent, at a time when the foundations of the civilized world were heaving. American interests doubtless were his sole concern; but what was practicable and necessary to support those interests depended upon a wide consideration and just appreciation of external conditions. That laws are silent amid the clash of arms, seems in his apprehension transformed to the conviction that at no time are they more noisy and compulsive. Upon this political obtuseness there fell a kind of poetical retribution, which gradually worked the Administration round to the position of substantially supporting Napoleon, when putting forth all his power to oppress the liberties of Spain, and of embarrassing Great Britain at the time when a people in insurrection against perfidy and outrage found in her their sole support. During these eventful five years, the history of which we are yet to trace, the bearing of successive British ministries towards the United States was usually uncompromising, often arrogant, sometimes insolent, hard even now to read with composure; but in the imminent danger of their country, during a period of complicated emergencies, they held, with cool heads, and with steady hands on the helm, a course taken in full understanding of world conditions, and with a substantially just forecast of the future. Among their presuppositions, in the period next to be treated, was that America might argue and threaten, but would not fight. There was here no miscalculation, for she did not fight till too late, and she fought wholly unprepared.

FOOTNOTES:

[108] Wheaton's International Law, p. 753.

[109] American State Papers, Foreign Relations, vol. i. p. 476.

[110] American State Papers, Foreign Relations, vol. i. pp. 472-474.

[111] Ibid., p. 503.

[112] American State Papers, Foreign Relations, vol. i. p. 522.

[113] American State Papers, Foreign Relations, vol. ii. p. 491.

[114] American State Papers, Foreign Relations, vol. iii. p. 263.

[115] American State Papers, Foreign Relations, vol. iii. p. 265.

[116] Ibid., p. 266.

[117] Ibid., p. 175.

[118] American State Papers, Foreign Relations, vol. iii. p. 98.

[119] History of the United States, by Henry Adams, vol. ii. p. 423.

[120] American State Papers, Foreign Relations, vol. ii. p. 491.

[121] Ibid., vol. iii. p. 145.

[122] American State Papers, Foreign Relations, vol. iii. p. 114.

[123] Monroe to Madison, April 28, 1806. American State Papers, vol. iii. p. 117.

[124] American State Papers, Foreign Relations, vol. iii. p. 111.

[125] American State Papers, Foreign Relations, vol. iii. pp. 109, 107.

[126] Ibid., p. 118.

[127] For the text of this measure, see American State Papers, Foreign Relations, vol. iii. p. 267.

[128] American State Papers, Foreign Relations, vol. iii. p. 443.

[129] American State Papers, Foreign Relations, vol. iii. p. 446.

[130] American State Papers, Foreign Relations, vol. iii. p. 195. Author's italics.

[131] Ibid., p. 371.

[132] See, particularly, Foster to Monroe, July 3, 1811. American State Papers, Foreign Relations, vol. iii. p. 436.

[133] Ibid., pp. 428, 439.

[134] The Instructions to Monroe and Pinkney are found in American State Papers, Foreign Relations, vol. iii. p. 120.

[135] American State Papers, Foreign Relations, vol. iii. pp. 200, 201.

[136] American State Papers, Foreign Relations, vol. ii. p. 148.

[137] Correspondence of Thomas Barclay, edited by George L. Rives, New York, 1894. For instances, see Index, Impressment.

[138] Works of John Adams, vol. viii. p. 456.

[139] Ante, p. 6.

[140] American State Papers, Foreign Relations, vol. i. pp. 123-124.

[141] Jefferson's Works, Letter to T. Pinckney, Minister to Great Britain, June 11, 1792.

[142] American State Papers, Foreign Relations, vol. ii. pp. 145-150.

[143] See, for example, Naval Chronicle, vol. xxvi. pp. 215-221, 306-309.

[144] Life and Correspondence of Rufus King, vol. iii. p. 115.

[145] American State Papers, Foreign Relations, vol. ii. p. 150.

[146] Ibid., p. 493.

[147] Niles' Register, vol. v. p. 343.

[148] Correspondence, p. 210.

[149] Correspondence, p. 219.

[150] Ante, p. 7.

[151] Niles' Register, vol. v. Supplement, p. 105.

[152] King to Thomas Erskine. Life of King, vol. iii. p. 401.

[153] Russell to the Secretary of State, Sept. 17, 1812. American State Papers, Foreign Relations, vol. iii. p. 593.

[154] American State Papers, Foreign Relations, vol. ii. pp. 427, 473.

[155] Ibid., vol. iii. p. 90.

[156] Ibid., p. 98.

[157] American State Papers, Foreign Relations, vol. ii. pp. 776-798.

[158] American State Papers, Foreign Relations, vol. iii. p. 131. Author's italics.

[159] For the American report of these interviews, see Ibid., pp. 133-135.

[160] Cobbett's Parliamentary Debates, vol. xxvi. p. 1103.

[161] American State Papers, Foreign Relations, vol. iii. pp. 137-140.

[162] American State Papers, Foreign Relations, vol. iii. p. 140.

[163] American State Papers, Foreign Relations, vol. iii. p. 140.

[164] Ibid., p. 139.

[165] Ibid., pp. 166-173.

[166] American State Papers, Foreign Relations, vol. iii. p. 198.

[167] Niles' Register, vol. v. p. 377.

[168] American State Papers, Foreign Relations, vol. iii. p. 139.

[169] Ibid., p. 161.

[170] Ibid., p. 173.

[171] Niles' Register, vol. v. Supplement, p. 102.



CHAPTER IV

FROM THE ORDERS IN COUNCIL TO WAR

1807-1812

When the treaty of December 31, 1806, was about to be signed, the British negotiators delivered to the Americans a paper, of the general character of which they had been forewarned, but which in precise terms then first came before them. Its origin was due to a pronouncement of the French Emperor, historically known as the Decree of Berlin, which was dated November 21, while the negotiations were in progress, but had become fully known only when they had reached a very advanced stage. The pretensions and policy set forth in the Decree were considered by the British Government to violate the rights of neutrals, with a specific and far-reaching purpose of thereby injuring Great Britain. It was claimed that acquiescence in such violations by the neutral, or submission to them, would be a concurrence in the hostile object of the enemy; in which case Great Britain might feel compelled to adopt measures retaliatory against France, through the same medium of neutral navigation. In such steps she might be fettered, should the present treaty take effect. In final ratification, therefore, the British Government would be guided by the action of the United States upon the Berlin Decree. Unless the Emperor abandoned his policy, or "the United States by its conduct or assurances will have given security to his Majesty that it will not submit to such innovations on the established system of maritime law, ... his Majesty will not consider himself bound by the present signature of his commissioners to ratify the treaty, or precluded from adopting such measures as may seem necessary for counteracting the designs of his enemy."[172] The American representatives transmitted this paper to Washington, with the simple observation that "we do not consider ourselves a party to it, or as having given it in any the slightest degree our sanction."[173]

The Berlin Decree was remarkable not only in scope and spirit, but in form. "It had excited in us apprehensions," wrote Madison to the United States minister in Paris, "which were repressed only by the inarticulate import of its articles, and the presumption that it would be executed in a sense not inconsistent with the respect due to the treaty between France and the United States." It bore, in fact, the impress of its author's mind, which, however replete with knowledge concerning conventional international law, defined in accordance with the momentary and often hasty impulses of his own will, and consequently often also with the obscurity attendant upon ill-digested ideas. The preamble recited various practices of Great Britain as subversive of international right; most of which were not so, but in accordance with long-standing usage and general prescription. The methods of blockade instituted by her were more exceptionable, and were given prominence, with evident reference to the Order of May 16, declaring the blockade of a long coast-line. It being evident, so ran the Emperor's reasoning, that the object of this abuse of blockade was to interrupt neutral commerce in favor of British, it followed that "whoever deals on the Continent in English merchandise favors that design, and becomes an accomplice." He therefore decreed, as a measure of just retaliation, "that the British Islands were thenceforward in a state of blockade; that all correspondence and commerce with them was prohibited; that trade in English merchandise was forbidden; and that all merchandise belonging to England, or" (even if neutral property) "proceeding from its manufactories and colonies, is lawful prize." No vessel coming directly from British dominions should be received in any port to which the Decree was applicable. The scope of its intended application was shown in the concluding command, that it should be communicated "to the Kings of Spain, of Naples, of Holland, of Etruria, and to our allies, whose subjects, like ours, are the victims of the injustice and barbarism of the English maritime laws."[174]

The phrasing of the edict was ambiguous, as Madison indicated. Notably, while neutral vessels having on board merchandise neutral in property, but British in origin, were to be seized when voluntarily entering a French port, it was not clear whether they were for the same reason to be arrested when found on the high seas; and there was equal failure to specify whether the proclaimed blockade authorized the capture of neutrals merely because bound to the British Isles, as was lawful if destined to a seaport effectively blockaded. Again, some of the proposed measures, such as refusal of admission to vessels or merchandise coming to French ports from British, were matters of purely local concern and municipal regulation; whereas the seizure of neutral property, because of English manufacture, was at least of doubtful right, if exercised within municipal limits, and certainly unlawful, if effected on the high seas. Whether such application was intended could not certainly be inferred from the text. The genius of the measure, as a whole, its inspiring motive and purpose, was revealed in the closing words of the preamble: "This decree shall be considered as the fundamental law of the Empire, until England has acknowledged that the rights of war are the same an land and on sea; that it [war] cannot be extended to any private property whatever; nor to persons who are not military; and until the right of blockade be restrained to fortified places, actually invested by competent forces." These words struck directly at measures of war resting upon long-standing usage, in which the strength of a maritime state such as Great Britain was vitally implicated.

The claim for private property possesses particular interest; for it involves a play upon words to the confusion of ideas, which from that time to this has vitiated the arguments upon which have been based a prominent feature of American policy. Private property at a standstill is one thing. It is the unproductive money in a stocking, hid in a closet. Property belonging to private individuals, but embarked in that process of transportation and exchange which we call commerce, is like money in circulation. It is the life-blood of national prosperity, upon which war depends; and as such is national in its employment, and only in ownership private. To stop such circulation is to sap national prosperity; and to sap prosperity, upon which war depends for its energy, is a measure as truly military as is killing the men whose arms maintain war in the field. Prohibition of commerce is enforced at will where an enemy's army holds a territory; if permitted, it is because it inures to the benefit of the conqueror, or at least from its restricted scope does not injure him. It will not be doubted that, should a prohibition on shore be disregarded, the offending property would be seized in punishment. The sea is the great scene of commerce. The property transported back and forth, circulating from state to state in exchanges, is one of the greatest factors in national wealth. The maritime nations have been, and are, the wealthy nations. To prohibit such commerce to an enemy is, and historically has been, a tremendous blow to his fighting power; never more conspicuously so than in the Napoleonic wars. But prohibition is a vain show, in war as it is in civil government, if not enforced by penalties; and the natural penalty against offending property is fine, extending even to confiscation in extreme cases. The seizure of enemy's merchant ships and goods, for violating the prohibition against their engaging in commerce, is what is commonly called the seizure of private property. Under the methods of the last two centuries, it has been in administration a process as regular, legally, as is libelling a ship for an action in damages; nor does it differ from it in principle. The point at issue really is not, "Is the property private?" but, "Is the method conducive to the purposes of war?" Property strictly private, on board ship, but not in process of commercial exchange, is for this reason never touched; and to do so is considered as disgraceful as a common theft.

Napoleon, as a ruler, was always poverty-stricken. For that reason he levied heavy contributions on conquered states, which it is needless to say were paid by private taxpayers; and for the same reason, by calling French ships and French goods "private property," he would compel for them the freedom of the sea, which the maritime preponderance of Great Britain denied them. He needed the revenue that commerce would bring in. So as to blockades. In denying the right to capture under a nominal blockade, unsupported by an effective force, he took the ground which the common-sense of nations had long before embodied in the common consent called international law. But he went farther. Blockade is very inconvenient to the blockaded, which was the role played by France. Along with the claim for "private property," he formulated the proposition that the right of blockade is restrained to fortified places; to which was afterwards added the corollary that the place must be invested by land as well as by sea. It is to be noticed that here also American policy showed a disposition to go astray, by denying the legitimacy of a purely commercial blockade; a tendency natural enough at that passing moment, when, as a weak nation, it was desired to restrict the rights of belligerents, but which in its results on the subsequent history of the country would have been ruinous. John Marshall, one of the greatest names in American jurisprudence, when Secretary of State in 1800, wrote to the minister in London:

On principle it might well be questioned whether this rule [of blockade] can be applied to a place not completely invested, by land as well as by sea. If we examine the reasoning on which is founded the right to intercept and confiscate supplies designed for a blockaded town, it will be difficult to resist the conviction that its extension to towns invested by sea only is an unjustifiable encroachment on the rights of neutrals. But it is not of this departure from principle (a departure which has received some sanction from practice) that we mean to complain.[175]

In 1810, the then Secretary of State enclosed to the American minister in London the letter from which this extract is taken, among other proofs of the positions maintained by the United States on the subject of blockade. The particular claim cited was not directly indorsed; but as its mention was unnecessary to the matter immediately in hand, we may safely regard its retention as indicative of the ideal of the Secretary, and of the President, Mr. Madison. In consequence, we find the minister, William Pinkney, in his letter of January 14, 1811, adducing Marshall's view to the British Foreign Secretary:

It is by no means clear that it may not fairly be contended, on principle and early usage, that a maritime blockade is incomplete, with regard to States at peace,[176] unless the place which it would affect is invested by land, as well as by sea. The United States, however, have called for the recognition of no such rule. They appear to have contented themselves, etc.[177]

The error into which both these eminent statesmen fell is military in character, and proceeds from the same source as the agitation in favor of exempting so-called private property from capture. Both spring from the failure to recognize a function of the sea, vital to the maintenance of war by states which depend upon maritime commerce. To forbid the free use of the seas to enemy's merchant ships and material of commerce, differs in no wise in principle from shutting his ports to neutral vessels, as well as to his own, by blockade. Both are aimed at the enemy's sources of supply, at his communications; and the penalty inflicted by the laws of war in both cases is the same,—forfeiture of the offending property. With clear recognition of this military principle involved, and of the importance of sustaining it by Great Britain, British high officials repeatedly declared that the Berlin Decree was to be regarded, not chiefly in its methods, but in its object, or principle, which was to deprive Great Britain of her principal weapon. This purpose stood avowed in the words, "this decree shall be considered the fundamental law of the Empire until England has acknowledged," etc. British statesmen correctly paraphrased this, "has renounced the established foundations, admitted by all civilized nations, of her maritime rights and interests, upon which depend the most valuable rights and interests of the nation."[178] The British authorities understood that, by relinquishing these rights, they would abandon in great measure the control of the sea, so far as useful to war. The United States have received their lesson in history. If the principle contended for by their representatives, Marshall and Pinkney, had been established as international law before 1861, there could have been no blockade of the Southern coast in the Civil War. The cotton of the Confederacy, innocent "private property," could have gone freely; the returns from it would have entered unimpeded; commerce, the source of national wealth, would have flourished in full vigor; supplies, except contraband, would have flowed unmolested; and all this at the price merely of killing some hundred thousands more men, with proportionate expenditure of money, in the effort to maintain the Union, which would probably have failed, to the immeasurable loss of both sections.

The British Government took some time to analyze the "inarticulate import" of the Berlin Decree. Hence, in the paper presented to Monroe and Pinkney, stress was laid upon the methods only, ignoring the object of compelling Great Britain to surrender her maritime rights. In the methods, however, instinct divined the true character of the plotted evil. There was to be formed, under military pressure, a vast political combination of states pledged to exclude British commerce from the markets of the Continent; a design which in execution received the name of the Continental System. The Decree being issued after the battle of Jena, upon the eve of the evident complete subjugation of Prussia, following that of Austria the year before, there was room to fear that the predominance of Napoleon on the Continent would compel in Europe universal compliance with these measures of exclusion. It so proved, in fact, in the course of 1807, leading to a commercial warfare of extraordinary rigor, the effects of which upon Europe have been discussed by the author in a previous work.[179] Its influence upon the United States is now to be considered; for it was a prominent factor in the causes of the War of 1812.

Although in a military sense weak to debility, and politically not welded as yet into a nation, strong in a common spirit and accepted traditions, the United States was already in two respects a force to be considered. She possessed an extensive shipping, second in tonnage only to that of the British Islands, to which it was a dangerous rival in maintaining the commercial intercourse of Europe; while her population and purchasing power were so increased as to constitute her a very valuable market, manufacturing for which was chiefly in the hands of Great Britain. It became, therefore, an object with Napoleon, in prosecution of the design of the Berlin Decree, to draw the United States into co-operation with the European continental system, by shutting her ports to Great Britain; while the latter, confronted by this double danger, sought to impose upon neutral navigation—almost wholly American—such curtailment as should punish the Emperor and his tributaries for their measures of exclusion, and also neutralize the effect of these by forcing the British Islands into the chain of communication by which Europe in general was supplied. To retaliate the Berlin Decree upon the enemy, and by the same means to nourish the trade of Great Britain, was the avowed twofold object. The shipping of the United States found itself between hammer and anvil, crushed by these opposing policies. Napoleon banned it from continental harbors, if coming from England or freighted with English goods; Great Britain forbade it going to a continental port, unless it had first touched at one of hers; and both inflicted penalties of confiscation, when able to lay hands on a vessel which had violated their respective commands.

The lack of precision in the terms of the Berlin Decree exposed it from the first to much latitude of interpretation; and the Emperor remaining absent from France for eight months after its promulgation, preoccupied with an arduous warfare in Eastern Europe, the construction of the edict by the authorities in Paris made little alteration in existing conditions. Nevertheless, the impulse to retaliate prevailed; and the British ministry with which Monroe and Pinkney had negotiated, though comparatively liberal in political complexion, would not wait for more precise knowledge. The occasion was seized with a precipitancy which lent color to Napoleon's assertion, that the leading aim was to favor their own trade by depressing that of others. This had already been acknowledged as the motive for interrupting American traffic in West India produce. Now again, one week only after stating to Monroe and Pinkney that they "could not believe that the enemy will ever seriously attempt to enforce such a system," and without waiting to ascertain whether neutral nations, the United States in particular, would, "contrary to all expectations, acquiesce in such usurpations,"[180] the Government on January 7, 1807, with no information as to the practical effect given to the Decree in operation, issued an Order in Council, which struck Americans directly and chiefly. Neutrals were forbidden to sail from one port to another, both of which were so far under the control of France or her allies that British vessels might not freely trade thereat. This was aimed immediately at trade along the coast of Europe, but it included, of course, the voyages from a hostile colony to a hostile European port already interdicted by British rulings, of which the new Order was simply an extension. It fell with particular severity on Americans, accustomed to go from port to port, not carrying on local coasting, but seeking markets for their outward cargoes, or making up a homeward lading. It is true that the Cabinet by which the Order was issued did not intend to forbid this particular procedure; but the wording naturally implied such prohibition, and was so construed by Madison,[181] who communicated his understanding to the British minister at Washington. Before this letter could reach London, the ministry changed, and the new Government refrained from correcting the misapprehension. For this it was taken to task in Parliament, by Lords Holland and Grenville.[182]

Monroe had once written to the British Foreign Secretary that "it cannot well be conceived how it should be lawful to carry on commerce from one port to another of the parent country, and not from its colonies to the mother country."[183] This well meant argument, in favor of opening the colonial trade, gave to the new step of the British Cabinet a somewhat gratuitous indorsement of logical consistency. A consciousness of this may have underlain the remarkable terms in which this grievous restriction was imparted to the United States Government, as evincing the singular indulgence of Great Britain. Her minister in Washington, in conveying the Order to the State Department, wrote: "His Majesty, with that forbearance and moderation which have at all times distinguished his conduct, has determined for the present to confine himself to exercising his decided naval superiority in such a manner only as is authorized by the acknowledged principles of the laws of nations, and has issued an Order for preventing all commerce from port to port of his enemies; comprehending in this Order not only the ports of France, but those of other nations, as, either in alliance with France, or subject to her dominion, have, by measures of active offence or by the exclusion of British ships, taken part in the present war."[184] These words characterized the measure as strictly retaliatory. They implied that the extra-legal action of the enemy would warrant extra-legal action by Great Britain, but asserted expressly that the present step was sanctioned by existing law,—"in such a manner only as is authorized by the acknowledged principles of the law of nations." The prohibition of coasting trade could be brought under the law of nations only by invoking the Rule of 1756, forbidding neutrals to undertake for a state at war employment denied to them in peace. Of this, coasting was a precise instance; but to call the Rule an acknowledged principle of the law of nations was an assumption peculiarly calculated to irritate Madison, who had expended reams in refutation. He penned two careful replies, logical, incisive, and showing the profound knowledge of the subject which distinguished him; but in a time of political convulsion he contended in vain against men who wore swords and thought their country's existence imperilled.

The United States authorities argued by text and precedent. To the end they persisted in shutting their eyes to the important fact, recognized intuitively by Great Britain, that the Berlin Decree was no isolated measure, to be discussed on its separate merits, but an incident in an unprecedented political combination, already sufficiently defined in tendency, which overturned the traditional system of Europe. It destroyed the checks inherent in the balance of power, concentrating the whole in the hands of Napoleon, to whom there remained on the Continent only one valid counterweight, the Emperor of Russia, whom he soon after contrived to lead into his scheme of policy. The balance of power was thus reduced to the opposing scales of Great Britain and France, and for five years so remained. The Continental System, embracing all the rest of Europe, was arrayed against Great Britain, and might well look to destroy her, if it could command the support of the United States. Founded upon armed power, it proposed by continuous exertion of the same means to undermine the bases of British prosperity, and so to subvert the British Empire. The enterprise was distinctly military, and could be met only by measures of a similar character, to which existing international law was unequal. The corner-stone was the military power of Napoleon, which, by nullifying the independence of the continental states, compelled them to adopt the methods of the Berlin Decree contrary to their will, and contrary to the wishes, the interests, and the bare well-being of their populations. "You will see," wrote an observant American representative abroad, "that Napoleon stalks at a gigantic stride among the pygmy monarchs of Europe, and bends them to his policy. It is even an equal chance if Russia, after all her blustering, does not accede to his demands without striking a blow."[185] To meet the danger Great Britain opposed a maritime dominion, equally exclusive, equally founded on force, and exercised in equally arbitrary fashion over the populations of the sea.

At the end of March, 1807, the British Cabinet with which Monroe and Pinkney had negotiated went out of office. Their successors came in prepared for extreme action in consequence of the Berlin Decree; but their hand was for the moment stayed, because its enforcement remained in abeyance, owing to the Emperor's continued absence in the field. Towards the claims of the United States their attitude was likely to be uncompromising; and the Secretary for Foreign Affairs, Canning, to whom fell the expression of the Government's views and purposes, possessed an adroitness in fastening upon minor weaknesses in a case, and postponing to such the consideration of the important point at issue, which, coupled with a peremptoriness of tone often bordering on insolence, effected nothing towards conciliating a people believed to be both unready and unwilling to fight. The American envoys, at their first interview, in April, met him with the proposition of their Government to reopen negotiations on the basis of the treaty of December 31. Learning from them that the treaty would not be ratified without a satisfactory arrangement concerning impressment, Canning asked what relations would then obtain between the two nations. The reply was that the United States Government wished them placed informally on the most friendly footing; that is, that an understanding should be reached as to practical action to be expected on either side, without concessions of principle.[186] As final instructions from Washington were yet to come, it was agreed that the matter should be postponed. When they arrived, on July 16, the envoys drew up a letter, submitting the various changes desired; but conveying also the fixed determination of the President "to decline any arrangement, formal or informal, which does not comprise a provision against impressments from American vessels on the high seas, and which would, notwithstanding, be a bar to legislative measures by Congress for controlling that species of aggression."[187]

This letter was dated July 24, but by the time it could be delivered news arrived which threw into the background all matters of negotiation and illustrated with what respect British naval officers regarded "the instructions, repeated and enforced, for the observance of the greatest caution in impressing British seamen."[188] It is probable, indeed, that the change of ministry, and the well-understood tone of the new-comers, had modified the influence of these restraining orders; and Canning evidently felt that such an inference was natural, for Monroe reported his noticeable desire "to satisfy me that no new orders had been issued by the present ministry to the commandant of the British squadron at Halifax," who was primarily responsible for the lamentable occurrence which here traversed the course of negotiation. It had been believed, and doubtless correctly, that some deserters from British ships of war had found their way into the naval service of the United States. In June, 1807, the American frigate "Chesapeake," bearing the broad pendant of Commodore James Barron, had been fitting for sea in Hampton Roads. At this time two French ships of war were lying off Annapolis, a hundred miles up Chesapeake Bay; and, to prevent their getting to sea, a small British squadron had been assembled at Lynnhaven Bay, just within Cape Henry, a dozen miles below the "Chesapeake's" anchorage. They were thus, as Jefferson said, enjoying the hospitality of the United States. On June 22 the American frigate got under way for sea, and as she stood down, one of the British, the "Leopard" of fifty guns, also made sail, going out ahead of her. Shortly after noon the "Chesapeake" passed the Capes. When about ten miles outside, a little after three o'clock, the "Leopard" approached, and hailed that she had a despatch for Commodore Barron. This was brought on board by a lieutenant, and proved to be a letter from the captain of the "Leopard," enclosing an order from Vice-Admiral Berkeley, in charge of the Halifax station, "requiring and directing the captains and commanders of his Majesty's vessels under my command, in case of meeting the American frigate, the 'Chesapeake,' at sea, without the limits of the United States, to show her captain this order, and to require to search his ship for deserters from certain British ships," specified by name. Upon Barron's refusal, the "Leopard" fired into the "Chesapeake," killed or wounded twenty-one men, and reduced her to submission. The order for search was then enforced. Four of the American crew, considered to be British deserters, were taken away. Of these, one was hanged; one died; and the other two, after prolonged disputation, were returned five years later to the deck of the "Chesapeake," in formal reparation.

Word of this transaction reached the British Government before it did Monroe, who was still sole American minister for all matters except the special mission. Canning at once wrote him a letter of regret, and spontaneously promised "prompt and effectual reparation," if upon receipt of full information British officers should prove culpable. Four days later, July 29, Monroe and Canning met in pursuance of a previous appointment, the object of which had been to discuss complaints against the conduct of British ships of war on the coast of the United States. The "Chesapeake" business naturally now overshadowed all others. Monroe maintained that, on principle, a ship of war could not be entered to search for deserters, or for any purpose, without violating the sovereignty of her nation. Canning was very guarded; no admission of principle could then be obtained from him; but he gave Monroe to understand that, in whatever light the action of the British officer should be viewed by his Government, the point whether the men seized were British subjects or American citizens would be of consideration, in the question of restoring them, now that they were in British hands. Monroe, in accordance with the position of his Government on the subject of impressment, replied that the determining consideration was not the nationality of the men, but of the ship, the flag of which had been insulted.

The conference ended with an understanding that Monroe would send in a note embodying his position and claims. This he did the same day;[189] but his statements were grounded upon newspaper accounts, as the British Government had not yet published Berkeley's official report. He would not await the positive information that must soon be given out, but applied strong language to acts not yet precisely ascertained; and he mingled with the "Chesapeake" affair other very real, but different and minor, subjects of complaint, seemingly with a view to cumulative effect. He thus made the mistake of encumbering with extraneous or needless details a subject which required separate, undivided, and lucid insistence; while Canning found an opportunity, particularly congenial to his temperament, to escape under a cloud of dignified words from the simple admission of wrong, and promise of reparation, which otherwise he would have had to face. He could assume a tone of haughty rebuke, where only that of apology should have been left open. His reply ran thus:

I have the honor to acknowledge your official note of the 29th ultimo, which I have lost no time in laying before the King.

As the statement of the transaction to which this note refers is not brought forward either by the authority of the Government of the United States, or with any precise knowledge of the facts on which it is founded, it might have been sufficient for me to express to you his Majesty's readiness to take the whole of the circumstances of the case, when fully disclosed, into his consideration, and to make reparation for any alleged injury to the sovereignty of the United States, whenever it should be clearly shown that such injury has been actually sustained, and that such reparation is really due.

Of the existence of such a disposition on the part of the British Government, you, Sir, cannot be ignorant; I have already assured you of it, though in an unofficial form, by the letter which I addressed you on the first receipt of the intelligence of this unfortunate transaction; and I may, perhaps, be permitted to express my surprise, after such an assurance, at the tone of that representation which I have just had the honor to receive from you.

But the earnest desire of his Majesty to evince, in the most satisfactory manner, the principles of justice and moderation by which he is uniformly actuated, has not permitted him to hesitate in commanding me to assure you, that his Majesty neither does, nor has at any time maintained the pretension of a right to search ships of war, in the national service of any State, for deserters.

If, therefore, the statement in your note should prove to be correct, and to contain all the circumstances of the case, upon which the complaint is intended to be made, and it shall appear that the action of his Majesty's officers rested on no other grounds than the simple and unqualified assertion of the pretension above referred to, his Majesty has no difficulty in disavowing the act, and will have no difficulty in manifesting his displeasure at the conduct of his officers.

With respect to the other causes of complaint, (whatever they may be,) which are hinted at in your note, I perfectly agree with you, in the sentiment which you express, as to the propriety of not involving them in a question, which of itself is of sufficient importance to claim a separate and most serious consideration.

I have only to lament that the same sentiment did not induce you to abstain from alluding to these subjects, on an occasion which you were yourself of opinion was not favorable for pursuing the discussion of them.[190]

I have the honor to be, with great consideration, your most obedient, humble servant

GEORGE CANNING.

JAMES MONROE, ESQ. &C.

While the right of the occasion was wholly with the American nation, the honors of the discussion, the weight of the first broadside, rested so far with the British Secretary; the more so that Monroe, by his manner of adducing his "other causes of complaint," admitted their irrelevancy and yet characterized them irritatingly to his correspondent. "I might state other examples of great indignity and outrage, many of which are of recent date, to which the United States have been exposed off their own coast, and even within several of their harbors, from the British squadron; but it is improper to mingle them with the present more serious causes of complaint." This invited Canning's retort,—You do mingle them, in the same sentence in which you admit the impropriety. And why, he shrewdly insinuated, precipitate action ahead of knowledge, when the facts must soon be known? The unspoken reason is evident. Because a government, which by its own fault is weak, will try with big words to atone to the public opinion of its people for that which it cannot, or will not, effect in deeds. Bluster, whether measured or intemperate in terms, is bluster still, as long as it means only talk, not act.

Monroe comforted himself that, though Canning's note was "harsh," he had obtained the "concession of the point desired."[191] he had in fact obtained less than would probably have resulted from a policy of which the premises were assured, and the demands rigorously limited to the particular offence. Canning's note set the key for the subsequent British correspondence, and dictated the methods by which he persistently evaded an amends spontaneously promised under the first emotions produced by an odious aggression. He continued to offer it; but under conditions impossible of acceptance, and as discreditable to the party at fault as they were humiliating to the one offended. In themselves, the first notes exchanged between Monroe and Canning are trivial, a revelation chiefly of individual characteristics. Their interest lies in the exemplification of the general course of the American administration, imposed by its years of temporizing, of money-getting, and of military parsimony. President Jefferson in America met the occasion precisely as did Monroe in London, with the same result of a sharp correspondence, abounding in strong language, but affording Canning further opportunity to confuse issues and escape from reparations, which, however just and wise, were distasteful. It was a Pyrrhic victory for the British minister, destroying the last chance of conciliating American acquiescence in a line of action forced upon Great Britain by Napoleon; but as a mere question of dialectics he had scored a success.

When the news of the "Chesapeake" outrage was received in Washington, Jefferson issued a proclamation, dated July 2, 1807, suited chiefly for home consumption, as the phrase goes. He began with a recitation of the various wrongs and irritations, undeniable and extreme, which his long-suffering Administration had endured from British cruisers, and to which Monroe alluded in his note to Canning. Upon this followed an account of the "Chesapeake" incident, thus inextricably entangled with other circumstances differing from it in essential feature. Then, taking occasion by a transaction which, however reprehensible, was wholly external to the territory of the United States,—unless construed to extend to the Gulf Stream, according to one of Jefferson's day-dreams,—action was based upon the necessity of providing for the internal peace of the nation and the safety of its citizens, and consequently of refusing admission to British ships of war, as inconsistent with these objects. Therefore, "all armed vessels, bearing commissions under the Government of Great Britain, now within the harbors of the United States, are required immediately and without any delay to depart from the same; and entrance of all the said harbors and waters is interdicted to the said armed vessels, and to all others bearing commissions under the authority of the British Government." Vessels carrying despatches were excepted.

This procedure had the appearance of energy which momentarily satisfies a public demand that something shall be done. It also afforded Canning the peg on which to hang a grievance, and dexterously to prolong discussion until the matter became stale in public interest. By the irrelevancy of the punishment to the crime, and by the intrusion of secondary matters into the complaint, the "Chesapeake" issue, essentially clear, sharp, and impressive, became hopelessly confused with other considerations. Upon the proclamation followed a despatch from Madison to Monroe, July 6, which opened with the just words, "This enormity is not a subject for discussion," and then proceeded to discuss at length. Demand was to be made, most properly, for a formal disavowal, and for the restoration of the seamen to the ship. This could have been formulated in six lines, and had it stood alone could scarcely have been refused; but to it was attached indissolubly an extraneous requirement. "As a security for the future, an entire abolition of impressment from vessels[192] under the flag of the United States, if not already arranged, is also to make an indispensable part of the satisfaction."[193]

This made accommodation hopeless. Practically, it was an ultimatum; for recent notorious discussion had demonstrated that this the British Government would not yield, and as it differed essentially from the point at issue in the "Chesapeake" affair, there was no reason to expect a change of attitude in consequence of that. Great as was the wrong to a merchant vessel, it has not the status of a ship of war, which carries even into foreign ports a territorial immunity resembling that of an ambassador, representing peculiarly the sovereignty of its nation. Further, the men taken from the "Chesapeake" were not seized as liable to impressment, but arrested as deserters; the case was distinct. Finally, Great Britain's power to maintain her position on impressment had certainly not waned under the "Chesapeake" humiliation, and was not likely to succumb to peremptory language from Madison. No such demand should have been advanced, in such connection, by a self-respecting government, unless prepared to fight instantly upon refusal. The despatch indeed contains cautions and expressions indicating a sense of treading on dangerous ground; an apprehension of exciting hostile action, though no thought of taking it. The exclusion of armed vessels was justified "by the vexations and dangers to our peace, experienced from these visits." The reason, if correct, was adequate as a matter of policy under normal conditions; but it became inconsistent with self-respect when the national flag was insulted in the attack on the "Chesapeake." Entire composure, and forbearance from demonstrations bearing a trace of temper, alone comport with such a situation. To distinguish against British ships of war at such a moment, by refusing them only, and for the first time, admission into American harbors, was either a humiliating confession of impotence to maintain order within the national borders, or it justified Canning's contention that it was in retaliation for the "Leopard's" action. His further plea, that it must therefore be taken into the account in determining the reparation due, was pettifogging, reducing a question of insult and amends to one of debit and credit bookkeeping; but the American claim that the step was necessary to internal quiet was puerile, and its precipitancy carried the appearance of petulance.

Monroe received Madison's despatch August 30, and on September 3 had an interview with Canning. In it he specified the redress indicated by Madison. With this was coupled an intimation that a special mission to the United States ought to be constituted, to impart to the act of reparation "a solemnity which the extraordinary nature of the aggression particularly required." This assertion of the extraordinary nature of the occasion separated the incident from the impressment grievance, with which Madison sought to join it; but what is more instructively noticeable is the contrast between this extreme formality, represented as requisite, and the wholly informal, and as it proved unreal, withdrawal by Napoleon of his Decrees, which the Administration of Madison at a later day maintained to be sufficient for the satisfaction of Great Britain.

In this interview[194] Canning made full use of the advantages given him by his adversaries' method of presentation and action. "He said that by the President's proclamation, and the seizure and detention of some men who had landed on the coast to procure water, the Government seemed to have taken redress into its own hands." To Monroe's statement that "the suppression of the practice of impressment from merchant vessels had been made indispensable by the late aggression, for reasons which were sufficiently known to him," he retorted, "that the late aggression was an act different in all respects to the former practice; and ought not to be connected with it, as it showed a disposition to make a particular incident, in which Great Britain was in the wrong, instrumental to an accommodation in a case in which his Government held a different doctrine." The remark went to the root of the matter. This was what the Administration was trying to do. As Madison afterwards put it to Rose, the President was desirous "of converting a particular incident into an occasion for removing another and more extensive source of danger to the harmony of the two countries." This plausible rendering was not likely to recommend to a resolute nation such a method of obtaining surrender of a claimed right. The exclusion proclamation Monroe represented to be "a mere measure of police indispensable for the preservation of order within the United States." Canning declined to be shaken from his stand that it was an exhibition of partiality against Great Britain, the vessels of which alone were excluded, because of an outrage committed by one of them outside of American waters. The time at which the proclamation issued, and the incorporation in it of the "Chesapeake" incident, made this view at least colorable.

This interview also was followed by an exchange of notes. Monroe's of September 7, 1807, developed the American case and demand as already given. That of Canning, September 23, stated as follows the dilemma raised by the President's proclamation: Either it was an act of partiality between England and France, the warships of the latter being still admitted, or it was an act of retaliation for the "Chesapeake" outrage, and so of the nature of redress, self-obtained, it is true, but to be taken into account in estimating the reparation which the British Government "acknowledged to have been originally due."[195] To the request for explanation Monroe replied lamely, with a statement which can scarcely be taken as other than admitting the punitive character of the proclamation. "There certainly existed no desire of giving a preference;" but,—"Before, this aggression it is well known that His Britannic Majesty's ships of war lay within the waters of the Chesapeake, and enjoyed all the advantages of the most favored nation; it cannot therefore be doubted that my Government will be ready to restore them to the same situation as soon as it can be done consistently with the honor and rights of the United States."[196]

In closing his letter of September 23, Canning asked Monroe whether he could not, consistently with his instructions, separate the question of impressment from that of the "Chesapeake." If not, as it was the fixed intention of his Government not to treat the two as connected, the negotiation would be transferred to Washington, and a special envoy sent. "But in order to avoid the inconvenience which has arisen from the mixed nature of your instructions, he will not be empowered to entertain, as connected with this subject, any proposition respecting the search of merchant vessels."[197] Monroe replied that his "instructions were explicit to consider the whole of this class of injuries as an entire subject."[198] To his inquiry as to the nature of the special mission, in particulars, Canning replied that it would be limited in the first instance to the question of the "Chesapeake." Whether it would have any further scope, he could not say.[199]

Mr. George Henry Rose was nominated for this mission, and sailed from England in November. Before his departure, the British Government took a further step, which in view of the existing circumstances, and of all that had preceded, emphasized beyond the possibility of withdrawal the firmness of its decision not to surrender the claim to impress British subjects from foreign merchant vessels. On October 16, 1807, a Royal Proclamation was issued, recalling all seafaring persons who had entered foreign services, whether naval or merchant, directing them to withdraw at once from such service and return home, or else to ship on board any accessible British ship of war. Commanders of naval vessels were ordered to seize all such persons whenever found by them on board foreign merchantmen. In the case of British-born subjects, known to be serving on board foreign men-of-war,—which was the case of the "Chesapeake,"—the repetition of the outrage was implicitly forbidden, by prescribing the procedure to be observed. Requisition for the discharge of such persons was to be made on the foreign captain, and, in case of refusal, the particulars of the case were to be transmitted to the British minister to the nation concerned, or to the British home authorities; "in order that the necessary steps may be taken for obtaining redress ... for the injury done to us by the unwarranted detention of our natural-born subjects in the service of a foreign state." The proclamation closed by denying the efficacy of letters of naturalization to discharge native British from their allegiance of birth.

Rose's mission proved abortive. Like Monroe's, his instructions were positive to connect with his negotiation a matter which, if not so irrelevant as impressment, was at least of a character that a politic foreign minister might well have disregarded, in favor of the advantage to be gained by that most conciliatory of actions, a full and cordial apology. Rose was directed not to open his business until the President had withdrawn the proclamation excluding British ships of war. Having here no more option than Monroe as to impressment, the negotiation became iron-bound. The United States Government went to the utmost limit of concession to conclude the matter. Receding from its first attitude, it agreed to sever the question of impressment from that of the "Chesapeake;" but, with regard to the recalling of the President's proclamation, it demanded that Rose should show his cards, should state what was the nature and extent of the reparation he was empowered to offer, and whether it was conditioned or unconditioned. If this first outcome were such as to meet the just expectations of the Administration, revocation of the proclamation should bear the same date as the British act of reparation. Certainly, more could not be offered. The Government could not play a blind game, yielding point after point in reliance upon the unknown contents of Rose's budget. This, however, was what it was required to do, according to the British envoy's reading of his orders, and the matter terminated in a fruitless exchange of argumentation.[200] In April, 1808, Rose quitted the country, and redress for the "Chesapeake" injury remained in abeyance for three years longer. Interest in it had waned under more engrossing events which had already taken place, and it was relegated by both Governments to the background of diplomacy. Admiral Berkeley had been recalled, as a mark of his Majesty's disapproval. He arrived in England in the beginning of 1808, some six months after the outrage, accompanied by the "Leopard." Her captain was not again given a ship; but before the end of the year the chief offender, the admiral, had been assigned to the important command at Lisbon. To Pinkney's observation upon this dissatisfying proceeding, Canning replied that it was impossible for the Admiralty to resist his claim to be employed (no other objection existing against him) after such a lapse of time since his return from Halifax, without bringing him to a court-martial.[201] In the final settlement, further punishment of Berkeley was persistently refused.

Although standing completely apart from the continuous stream of connected events which constituted contemporaneous history,—perhaps because of that very separateness,—the "Chesapeake" affair marks conspicuously the turning-point in the relations of the two countries. In point of time, its aptness as a sign-post is notable; for it occurred just at the moment when the British ministry, under the general exigencies of the situation, and the particular menace of the Tilsit compacts between Napoleon and the Czar, were meditating the new and extraordinary maritime system by which alone they might hope to counteract the Continental system that now threatened to become truly coextensive with Europe. But to the writer the significance of the "Chesapeake" business is more negative than positive; it suggests rather what might have been under different treatment by the Portland ministry. The danger to Great Britain was imminent and stupendous, and her measures of counteraction needed to correspond. These were confessedly illegal in the form they took, and were justified by their authors only on the ground of retaliation. Towards neutrals, among whom the United States were by far the chief, they were most oppressive. Yet for over four years not only did the American Government endure them, but its mercantile community conformed to the policy of Great Britain, found profit in so doing, and deprecated resort to war. At a later day Jefferson asserted bitterly that under British influence one fourth of the nation had compelled the other three fourths to abandon the embargo. Whether this be quite a fair statement may be doubted; but there was in it so much of truth as to suggest the possibility, if not of acquiescence in the Orders in Council, at least of such abstention from active resentment as would have been practically equivalent.

The acquiescence, if possible even the co-operation, of America was at this time momentous to Great Britain as well as to Napoleon. To complete his scheme for ruining his enemy, by closing against her commerce all the ports of Europe, the Emperor needed to deprive her also of access to the markets of the United States; while the grave loss to which Great Britain was exposed in the one quarter made it especially necessary to retain the large and increasing body of consumers across the Atlantic. In the United States there was a division of public opinion and feeling, which offered a fair chance of inclining national action in one direction or the other. Although the Treaty of Commerce and Navigation of December 31, 1806, had been rejected by the Administration, and disapproved by the stricter followers of Jefferson and Madison, it was regarded with favor in many quarters. Its negotiators had represented the two leading parties which divided the nation. Monroe was a republican, traditionally allied to Jefferson; Pinkney was a federalist. Although in it the principles of the United States had not been successfully asserted, as regarded either impressment or the transport of colonial produce, the terms of compromise had commanded their signatures, because they held that in effect the national objects were obtained; that impressment would practically cease, and the carrying trade, under the restrictions they had accepted, would not only nourish, but be as remunerative as before. Monroe, who had a large personal following in his state and party, maintained this view in strong and measured language after his return home; and it found supporters in both political camps, as well as upon the floor of the two houses of Congress. Then, and afterwards, it was made a reproach to the Administration that it had refused a working arrangement which was satisfactory in its substantial results and left the principles of the country untouched for future assertion. Whatever may be thought, from an American standpoint, of the justice or dignity of this position, it showed grave divergences of sentiment, from which it is the skill of an opposing diplomatist to draw profit. It is impossible to estimate the effect upon the subsequent course of America, if the British ministry, with a certain big-heartedness, had seized the opportunity of the "Chesapeake" affair; if they had disclaimed the act of their officers with frankness and cordiality, offering ungrudging regret, and reparation proportionate to the shame inflicted upon a community too weak in military power to avenge its wrongs. As it was, at a moment when the hostilities she had provoked would have been most embarrassing, Great Britain escaped only by the unreadiness of the American Government.

Left unatoned, the attack on the "Chesapeake" remained in American consciousness where Jefferson and Madison had sought to place it,—an example of the outrages of impressment. The incidental violence, which aroused attention and wrath, differed in nothing but circumstance from the procedure when an unresisting merchant vessel was deprived of men. In both cases there was the forcible exaction of a disputed claim. Canning, indeed, was at pains to explain that originally the British right extended to vessels of every kind; but "for nearly a century the Crown had forborne to instruct the commanders of its ships of war to search foreign ships of war for deserters, ... because to attack a national ship of war is an act of hostility. The very essence of the charge against Admiral Berkeley, as you represent it, is the having taken upon himself to commit an act of hostility without the previous authority of his Government." Under this construction, the incident only served to emphasize the fundamental opposition of principle, and to exasperate the war party in the United States. To deprive a foreign merchant vessel of men was not considered a hostile act; and the difference in the case of ships of war was only because the Crown chose so to construe. The argument was, that to retain seamen of British birth, when recalled by proclamation, was itself hostile, because every such seaman disobeying this call was a deserter. It was to be presumed that a foreign Power would not countenance their detention, and on this presumption no search of its commissioned ships was ordered. "But with respect to merchant vessels there is no such presumption."[202]