and he explained that, unless such permission was granted, "the raising of the embargo nominally as to Great Britain, would raise it, in fact, with respect to all the world," owing to the evident inability of the United States to enforce its orders beyond its own ports.

In the passage quoted, both the explanatory comment and the syntax show that the object of this proposed concession was to secure the operation, the effectual working, of the bona fide intention expressly conceded to the American Government. The repetition of the preposition "of," before bona fide, secures this meaning beyond peradventure. Nevertheless Smith, in labored arraignment of the whole British course, wrote to Pinkney as follows:

In urging this concession, Mr. Canning has taken a ground forbidden by those principles of decorum which regulate and mark the proceedings of Governments towards each other. In his despatch the condition is stated to be for the purpose of securing the bona fide intention of America, to prevent her citizens from trading with France and certain other Powers; in other words to secure a pledge to that effect against the mala fide intention of the United States. And this despatch too was authorized to be communicated in extenso to the Government, of which such language was used.[300]

Being addressed only to Pinkney, a man altogether too careful and shrewd not to detect the mistake, no occasion arose for this grave misstatement doing harm, or receiving correction. But, conjoined with the failure to note that Jackson in his second letter had attributed to his own communication the American Government's knowledge that Erskine had no alternative instructions, the conclusion is irresistible that the President acted, perhaps unconsciously, under impulses foreign to the deliberate care which should precede and accompany so momentous an act as the refusal to communicate with an accredited foreign minister. It will be remembered that this action was taken on grounds avowedly independent of the reasonableness or justice of the British demands. It rested purely on the conduct of the minister himself.

This incident powerfully furthered the alienation of the two nations, for the British Government not only refused to disapprove Jackson's conduct, but for nearly two years neglected to send a successor, thus establishing strained diplomatic relations. Before finally leaving this unlucky business, it is due to a complete appreciation to mention that, in its very outset, at the beginning of Erskine's well-meant but blundering attempt, the United States Government had overpassed the limits of diplomatic civility. Canning was a master of insolence; he could go to the utmost verge of insult and innuendo, without absolutely crossing the line which separates them from formal observance of propriety; but it cannot be said that the American correspondence in this instance was equally adroit. In replying to Erskine's formal offer of reparation for the "Chesapeake" affair, certain points essential to safeguarding the position of the United States were carefully and properly pointed out; then the reparation, as tended, was accepted. There the matter might have dropped; acceptance is acceptance; or, if necessary, failure of full satisfaction on the part of the United States might have been candidly stated, as due to itself. But the Secretary[301] proceeded to words—and mere words—reflecting on the British Sovereign and Government. "I have it in express charge from the President to state, that, while he forbears to insist upon the further punishment of the offending officer, he is not the less sensible of the justice and utility of such an example, nor the less persuaded that it would best comport with what is due from his Britannic Majesty to his own honor."

To the writer nothing quite as bad as this occurs in Jackson's letters, objectionable as they were in tone. With the opinion he agrees; the further employment of Berkeley was indecent, nor was he a man for whom it could be claimed that he was indispensable; but it is one thing to hold an opinion, and another to utter it to the person concerned. Had Madison meant war, he might have spoken as he did, and fought; but to accept, and then to speak words barren of everything but useless insult, is intolerable. Jackson very probably believed that the American Government was lying when it said it did not know the facts as to Erskine's instructions.[302] It would be quite in character that he should; but he did not say so. There was put into his mouth a construction of his words which he heedlessly accepted.

Jackson's dismissal was notified to the British Government through Pinkney, on January 2, 1810.[303] Some time before, a disagreement within the British Cabinet had led to a duel between Castlereagh and Canning, in which the latter was severely wounded. He did not return to the Foreign Office, but was succeeded by the Marquis Wellesley, brother of the future Duke of Wellington. After presenting the view of the correspondence taken by his Government, Pinkney seems to betray a slight uneasiness as to the accuracy of the interpretation placed on Jackson's words. "I willingly leave your Lordship to judge whether Mr. Jackson's correspondence will bear any other construction than that it in fact received; and whether, supposing it to have been erroneously construed, his letter of the 4th of November should not have corrected the mistake, instead of confirming and establishing it."

Wellesley, with a certain indolent nonchalance, characteristic of his correspondence with Pinkney, delayed to answer for two months, and then gave a reply as indifferent in manner as it was brief in terms. Jackson had written, "There appears to have prevailed, throughout the whole of this transaction [Erskine's], a fundamental mistake, which would suggest that his Majesty had proposed to propitiate the Government of the United States, to consent to the renewal of commercial intercourse; ... as if, in any arrangement, his Majesty would condescend to barter objects of national policy and dignity for permission to trade with another country." The phrase was Canning's, and summarized precisely the jealous attitude towards its own prestige characteristic of the British policy of the day. It also defined exactly the theory upon which the foreign policy of the United States had been directed for eight years by the party still in power. Madison and Jefferson had both placed just this construction upon Erskine's tender. "The British Cabinet must have changed its course under a full conviction that an adjustment with this country had become essential."[304] "Gallatin had a conversation with Turreau at his residence near Baltimore. He professes to be confident that his Government will consider England broken down, by the examples she has given in repealing her Orders."[305] "By our unyielding adherence to principle Great Britain has been forced into revocation."[306] Canning and his associates intuitively divined this inference, which after all was obvious enough. The feeling increased their discontent with Erskine, who had placed his country in the false light of receding under commercial pressure from America, and probably enough prepossessed them with the conviction that the American Government could not but have realized that Erskine was acting beyond his powers.

Wellesley, after his manner,—which was not Canning's,—asserted equally the superiority of the British Government to concession for the sake of such advantage. His Majesty regretted the Jackson episode, the more so that no opportunity had been given for him to interpose, which "was the usual course in such cases." Mr. Jackson had written positive assurances that it was not his purpose to give offence; to which the reply was apt, that in such matters it is not enough to intend, but to succeed in avoiding offence.[307] "His Majesty has not marked, with any expression of his displeasure, the conduct of Mr. Jackson, who does not appear, on this occasion, to have committed any intentional offence against the Government of the United States." A charge would be appointed to carry on the ordinary intercourse, but no intention was expressed of sending another minister. Persistence in this neglect soon became a further ground of bad feeling.

By its own limitations the Non-Intercourse Act was to expire at the end of the approaching spring session of the new Congress, but it was renewed by that body to the end of the winter session. During the recess the Jackson episode occurred, and was the first subject to engage attention on reassembling, November 27, 1809. After prolonged discussion in the lower house,[308] a joint resolution was passed approving the action of the Executive, and pledging to him the support of the nation. Despite a lucid exposition by Josiah Quincy, that the offence particularly attributed to the British minister was disproved by a reasonable attention to the construction of his sentences, the majority persisted in sustaining the party chief. That disposed of, the question of commercial restriction was again taken up.

It was conceded on all sides that Non-Intercourse had failed, and precisely in the manner predicted. On the south, Amelia Island,—at the mouth of the St. Mary's River, just outside the Florida boundary,—and on the north Halifax, and Canada in general, had become ports of deposit for American products, whence they were conveyed in British ships to Great Britain and her dependencies, to which the Act forbade American vessels to go. The effect was to give the carrying of American products to British shipping, in precise conformity with the astute provisions of the Navigation Acts. British markets were reached by a broken voyage, the long leg of which, from Amelia and Halifax to Europe and elsewhere, was taken by British navigation. It was stated that there were at a given moment one hundred British vessels at Amelia,[309] the shores of which were encumbered with American goods awaiting such transportation. The freight from the American ports to Amelia averaged a cent a pound, from Amelia to England eight cents;[310] the latter amount going to British pockets, the former to Americans who were debarred from full transatlantic freight by the prohibitions of the Non-Intercourse Act. The absence of competition necessarily raised the prices obtainable by the British shipper, and this, together with the additional cost of transshipment and delays, attendant upon a broken voyage, fell upon the American agriculturist, whose goods commanded just so much less at their place of origin. The measure was even ingeniously malaprop, considered from the point of view of its purpose towards Great Britain, whether retaliatory or coercive. Upon France its effect was trivial, in any aspect. There was no French navigation, and the Orders in Council left little chance for American vessels to reach French ports.

All agreed that the Non-Intercourse Act must go; the difficulty was to find a substitute which should not confessedly abandon the whole system of commercial restrictions, idealized by the party in power, but from which it was being driven foot by foot. A first measure proposed was to institute a Navigation Act, borrowed in broad outline from that of Great Britain, but in operation applied only to that nation and France, in retaliation for their injurious edicts.[311] Open intercourse with the whole world should be restored; but British and French merchant ships, as well as vessels of war, should be excluded from American harbors. British and French products could be imported only in vessels owned wholly by American citizens; and after April 15, 1810, could be introduced only by direct voyage from the place of origin. This was designed to prevent the continuance of trade by way of Amelia or Halifax. It was pointed out in debate, however, that French shipping practically did not exist, and that in the days of open trade, before the embargo, only about eight thousand tons of British shipping yearly entered American ports, whereas from three hundred thousand to four hundred thousand American tons visited Great Britain.[312] Should she, by a strict retaliation, resent this clumsy attempt at injuring her, the weight of the blow would fall on Americans. American ships would be excluded from British ports; the carrying trade to Amelia and Halifax would be resumed, to the detriment of American vessels by a competition which otherwise would not exist, and British manufactures would be introduced by smuggling, to the grievous loss of the revenue, as had been notoriously and abundantly the case under the Non-Intercourse Act. In truth, a purely commercial war with Great Britain was as injurious as a military war, and more hopeless.

The bill consequently failed in the Senate, though passed by the House. In its stead was adopted an Act which repealed that of Non-Intercourse, but prescribed that in case either Great Britain or France, before March 3, 1811, should so revoke or modify its edicts as that they should cease to violate the neutral commerce of the United States, the President should declare the fact by proclamation; and if the other nation should not, within three months from the date of such proclamation, in like manner so modify or revoke its edicts, there should revive against it those sections of the Non-Intercourse Act which excluded its vessels from American ports, and forbade to American vessels importation from its ports, or of its goods from any part of the world whatsoever. The determination of the fact of revocation by either state was left to the sole judgment of the President, by whose approval the Act became law May 1, 1810.[313]

As Great Britain and France, by the Orders in Council and the Berlin and Milan Decrees, were then engaged in a commercial warfare, in which the object of each was to exhaust its rival, the effect of this Act was to tender the co-operation of the United States to whichever of them should embrace the offer. In terms, it was strictly impartial between the two. In fact, forasmuch as France could not prevent American intercourse with Great Britain, whereas Great Britain, in furtherance of her purposes, could and did prevent American trade with France, the latter had much more to gain; and particularly, if she should so word her revocation as to save her face, by not appearing the first to recede,—to show weakening,—as Great Britain had been made for the moment to seem by Erskine's arrangement. Should this ingenious diplomacy prove satisfactory to the President, yet fail so to convince Great Britain as to draw from her the recall of the Orders in Council, the United States, by the simple operation of the law itself, would become a party to the Emperor's Continental system, in its specific aim of reducing his opponent's strength.

At this very moment Napoleon was putting into effect against the United States one of those perverse and shameless interpretations of international relations, or actions, by which he not infrequently contrived to fill his pockets. The Non-Intercourse Act, passed March 3, 1809, had decreed forfeiture of any French or British ship, or goods, which should enter American waters after May 20, of the same year. The measure was duly communicated to the French Government, and no remonstrance had been made against a municipal regulation, which gave ample antecedent warning. There the matter rested until March 23, 1810, when the Emperor, on the ground of the Act, imposing these confiscations and forbidding American vessels to visit France, signed a retroactive decree that all vessels under the flag of the United States, which, since May 20, 1809, had entered ports of his empire, colonies, or of the countries occupied by his arms, should be seized and sold. Commissioners were sent to Holland to enforce there this edict, known as the Decree of Rambouillet, which was not actually published till May 14.[314] It took effect upon vessels which, during a twelvemonth previous, unwarned, had gone to France, or the other countries indicated. Immediately before it was signed, the American minister, Armstrong, had written to Champagny, Duke of Cadore, the French Minister of Foreign Affairs, "Your Excellency knows that there are not less than one hundred American ships within his Majesty's possession, or that of his allies;" and he added that, from several sources of information, he felt warranted in believing that not a single French vessel had violated the Non-Intercourse law, and therefore none could have been seized.[315]

The law of May 1 was duly communicated to the two states concerned, by the United States ministers there resident. Great Britain was informed that not only the Orders in Council, but the blockade of May, 1806,[316] were included among the edicts affecting American commerce, the repeal of which was expected, as injurious to that commerce. France was told that this demand would be made upon her rival;[317] but that it was also the purpose of the President not to give the law effect favorable to herself, by publishing a proclamation, if the late seizures of the property of citizens of the United States had been followed by absolute confiscation, and restoration were finally refused.[318] This referred not to the Rambouillet Decree, as yet unknown in America, but to the previous seizures upon various pretexts, mentioned above by Armstrong. Ultimately this purpose was not adhered to; but the Emperor was attentive to the President's intimation that "by putting in force, agreeably to the terms of this statute, the non-intercourse against Great Britain, the very species of resistance would be made which France has constantly been representing as most efficacious."[319] Thus, the co-operation of America to the Continental System was no longer asked, but offered.

The Emperor did not wait even for information by the usual official channels. By some unexplained delay, Armstrong's first knowledge was through a copy of the Gazette of the United States containing the Act, which he at once transmitted to Champagny, who replied August 5, 1810.[320] His Majesty wished that the acts of the United States Government could be more promptly communicated; not till very lately had he heard of the Non-Intercourse,—a statement which Armstrong promptly denied, referring Champagny to the archives of his own department.[321] In view of the Act of May 1, the Emperor's decision was announced in a paragraph of the same letter, in the following words:

In this new state of things I am authorized to declare to you, Sir, that the Decrees of Berlin and Milan are revoked, and that after the first of November they will cease to have effect; it being understood that, in consequence of this declaration, the English shall revoke their Orders in Council, and renounce the new principles of blockade, which they have wished to establish; or that the United States, conformably to the Act which you have just communicated, shall cause their rights to be respected by the English.

Definition is proverbially difficult; and over this superficially simple definition of circumstances and conditions, under which the Decrees of Berlin and Milan stood revoked, arose a discussion concerning construction and meaning which resembled the wrangling of scholars over a corrupt text in an obscure classical author. Clear-headed men became hopelessly involved, as they wrestled with each others' interpretations; and the most got no farther than sticking to their first opinions, probably reached in the majority of cases by sheer prepossession. The American ministers to France and Great Britain both accepted the words as a distinct, indisputable, revocation; and Madison followed suit. These hasty conclusions are not very surprising; for there was personal triumph, dear to diplomatists as to other men, in seeing the repeal of the Decrees, or of the Orders, result from their efforts. It has been seen how much this factor entered into the feelings of Madison and Jefferson in the Erskine business, and to Armstrong the present turn was especially grateful, as he was about quitting his mission after several years buffeting against wind and tide. His sun seemed after all about to set in glory. He wrote to Pinkney, "I have the honor to inform you that his Majesty, the Emperor and King, has been pleased to revoke his Decrees of Berlin and Milan."[322] Pinkney, to whom the recall of the British Orders offered the like laurels, was equally emphatic in his communication to Wellesley; adding, "I take for granted that the revocation of the British Orders in Council of January and November, 1807, April, 1809, and all other orders dependent upon, or analogous, or in execution of them, will follow of course."[323] The British Government demurred to the interpretation; but Madison accepted it, and on November 2 proclaimed it as a fact. In consequence, by the terms of the Act, non-intercourse would revive against Great Britain on February 2, 1811.

When Congress met, distrust on one side and assertion on the other gave rise to prolonged and acute discussion. Napoleon had surprised people so often, that no wonder need be felt at those who thought his words might bear a double meaning. The late President, who did not lack sagacity, had once written to his successor, "Bonaparte's policy is so crooked that it eludes conjecture. I fear his first object now is to dry up the sources of British prosperity, by excluding her manufactures from the Continent. He may fear that opening the ports of Europe to our vessels will open them to an inundation of British wares."[324] This was exactly Bonaparte's dilemma, and suggested the point of view from which his every action ought to be scrutinized. Then there was the recent deception with Erskine, which, if it increased the doubts of some concerning the soundness of Madison's judgment, made it the more incumbent on others to show that on this occasion at least he had not been precipitate. Certainly, as regards the competency of the foreign official in either case, there was no comparison. A simple Minister Resident should produce particular powers or definite instructions, to guarantee his authority for concluding so important a modification of national policy as was accepted from Erskine; but by common usage the Minister of Foreign Affairs, at a national capital, is understood to speak for the Chief Executive. The statement of Champagny, at Paris, that he was "authorized" to make a specific declaration, could be accepted as the voice of Napoleon himself. The only question was, what did the voice signify?

In truth, explicit as Champagny's words sound, Napoleon's memoranda,[325] on which they were based, show a deliberate purpose to avoid a formal revocation, for reasons analogous to those suggested by Jefferson. Throughout he used "rapporter" instead of "revoquer." In the particular connection, the words are nearly synonymous; yet to the latter attaches a natural fitness and emphasis, the avoidance of which betrays the bias, perhaps unconscious, towards seeking escape from self-committal on the matter in hand. His phrases are more definite. July 31 he wrote, "After much reflection upon American affairs, I have decided that to withdraw (rapporter) my decrees of Berlin and Milan would conduce to nothing (n'aurait aucun effet); that it is better you should address a note to Mr. Armstrong, in which you will acquaint him that you have placed before me the details contained in the American gazette, ... and since he assures us it may be regarded as official, he may depend (compter) that my decrees of Berlin and Milan will not receive execution (n'auront aucun effet) dating from November 1; and that he should consider them as withdrawn (rapportes) in consequence of the Act of the American Congress; provided," etc. "This," he concludes, "seems to me more suitable than a decree, which would cause disturbance and would not fulfil my aim. This method seems to me more conformable to my dignity and to the serious character of the business." The Decrees, as touching the United States alone, were to be quietly withdrawn from action, but not formally revoked. They were to be dormant, yet potential. As convenience might dictate, it would be open to say that they were revoked [in effect], or not revoked [in form]. The one might, and did, satisfy the United States; the other might not, and did not, content Great Britain, against whom exclusion from the continent remained in force. The two English-speaking peoples were set by the ears. August 2 the Emperor made a draft of the note to be sent to Armstrong. This Champagny copied almost verbatim in the declaration quoted; substituting, however, "revoquer" for "rapporter."

It would be intolerable to attempt to drag readers through the mazes of analysis, and of comparison with other papers, by which the parties to the discussion, ignorant of the above memoranda, sought to establish their respective views. One thing, however, should have been patent to all,—that, with a man so subtle and adroit as Napoleon, any step in apparent reversal of a decided and cherished policy should have been complete and unequivocal, both in form and in terms. The Berlin Decree was put forth with the utmost formality with which majesty and power could invest it; the asserted revocation, if apparently explicit, was simply a paragraph in ordinary diplomatic correspondence, stating that revocation had taken place. If so, where was it? An act which undoes another, particularly if an injury, must correspond fully in form to that which it claims to undo. A private insult may receive private apology; but no private expression can atone for public insult or public wrong. In the appreciation of Mr. Madison, in 1807, so grave an outrage as that of the "Chesapeake" called for a special envoy, to give adequate dignity to the proffered reparation. Yet his followers now would have form to be indifferent to substantial effect. Champagny's letter, it is true, was published in the official paper; but, besides being in form merely a diplomatic letter, it bore the signature of Champagny, whereas the decree bore that of Napoleon. The Decree of Rambouillet, then less than six months old, was clothed with the like sanction. Even Pinkney, usually so clear-headed, and in utterance incisive, suffered himself here to be misled. Does England find inadequate the "manner" of the French Revocation? he asked. "It is precisely that in which the orders of its own Government, establishing, modifying, or removing blockades, are usually proclaimed." But the Decree of Berlin was no mere proclamation of a blockade. It had been proclaimed, in the Emperor's own name, a fundamental law of the Empire, until England had abandoned certain lines of action. This was policy against policy, to which the blockade was incidental as a method. English blockades were announced and withdrawn under identical forms of circular letter; but when an Order in Council, as that of November, 1807, was modified, as in April, 1809, it was done by an Order in Council, not by a diplomatic letter. In short, Champagny's utterance was the declaration of a fact; but where was the fact itself?

Great Britain therefore refused to recognize the letter as a revocation, and could not be persuaded that it was by the opinion of the American authorities. Nor was the form alone inadequate; the terms were ambiguous, and lent themselves to a construction which would deprive her of all benefit from the alleged revocation. She had to look to her own battle, which reached its utmost intensity in this year 1810. Except the helpless Spanish and Portuguese insurgents, she had not an open friend in Europe; while Napoleon, freed from all opponents by the overthrow of Austria in 1809, had organized against Great Britain and her feeble allies the most gigantic display of force made in the peninsula since his own personal departure thence, nearly two years before. The United States had plain sailing; so far as the letter went, the Decrees were revoked, conditional on her executing the law of May 1. But Great Britain must renounce the "new" principles of blockade. What were these principles, pronounced new by the Decree? They were, that unfortified ports, commercial harbors, might be blockaded, as the United States a half century later strangled the Southern Confederacy. Such blockades were lawful then and long before. To yield this position would be to abandon rights upon which depended the political value of Great Britain's maritime supremacy; yet unless she did so the Berlin Decree remained in force against her. The Decree was universal in application, not limited to the United States commerce, towards which Champagny's letter undertook to relax it; and British commerce would remain excluded from neutral continental ports unless Great Britain not only withdrew the Orders in Council, but relinquished prescriptive rights upon which, in war, depended her position in the world.

In declining to repeal, Great Britain referred to her past record in proof of consistency. In the first communication of the Orders in Council, February 23, 1808,[326] Erskine had written, "I am commanded by his Majesty especially to represent to the Government of the United States the earnest desire of his Majesty to see the commerce of the world restored once more to that freedom which is necessary for its prosperity, and his readiness to abandon the system which has been forced upon him, whenever the enemy shall retract the principles which have rendered it necessary." The British envoy in these sentences reproduced verbatim the instructions he had received,[327] and the words italicized bar expressly the subsequent contention of the United States, that revocation by one party as to one nation, irrespective of the rest of the world, and that in practice only, not in principle, entitled the nation so favored to revocation by the other party. They exclude therefore, by all the formality of written words at a momentous instant, the singular assertion of the American Government, in 1811, that Great Britain had pledged herself to proceed "pari passu"[328] with France in the revocation of their respective acts. As far as can be ascertained, the origin of this confident assumption is to be found in letters of February 18 and 19, 1808,[329] from Madison, then Secretary of State, to Armstrong and Pinkney. In these he says that Erskine, in communicating the Orders,[330] expressed his Majesty's regrets, and "assurances that his Majesty would readily follow the example, in case the Berlin Decree should be rescinded, or would proceed pari passu with France in relaxing the rigor of their measures." By whichever of the colloquists the expression was used, the contrast between this report of an interview and the official letter quoted sufficiently shows the snare latent in conversations, and the superior necessity of relying upon written communications, to which informal talk only smooths the way. On the very day of Madison's writing to Armstrong, February 18, the Advocate General, who may be presumed to have understood the purposes of the Government, was repudiating such a construction in the House of Commons. "Even let it be granted that there had been a public assurance to America that she alone was to be excepted from the influence of the Berlin Decree, would that have been a sufficient ground for us not to look further to our own interest? What! Because France chooses to exempt America from her injurious decrees, are we to consent to their continuance?"[331] Where such a contradiction exists, to assert a pledge from a Government, and that two years after Erskine's singular performance of 1809, which led to his recall, is a curious example of the capacity of the American Administration, under Madison's guidance, for putting words into an opponent's mouth. In the present juncture, Wellesley replied[332] to Pinkney's claim for the revocation of the Orders in Council by quoting, and repeating, the assurance of Erskine's letter of February 23, 1808, given above.

Yet, unless the Orders in Council were repealed, Napoleon's concessions would not go far to relieve the United States. The vessels he would admit would be but the gleanings, after British cruisers had reaped the ocean field. Pinkney, therefore, had to be importunate in presenting the demands of his Government. Wellesley persisted in his method of procrastination. At last, on December 4, he wrote briefly to say that after careful inquiry he could find no authentic intelligence of the repeal, nor of the restoration of the commerce of neutral nations to its previous conditions. He invited, however, a fresh statement from Pinkney, who then, in a letter dated December 10,[333] argued the case at length, under the three heads of the manner, or form, the terms, and the practical effect of the alleged repeal. Having completed the argument, he took incidental occasion to present the views of the United States concerning the whole system of the Orders in Council; animadverting severely, and emphasizing with liberal italics. The Orders went far beyond any intelligible standard of retaliation; but it soon appeared that neutrals might be permitted to traffic, if they would submit with a dependence truly colonial to carry on their trade through British ports, to pay such duties as the British Government might impose, and such charges as British agents might make. The modification of April 26, 1809, was one of appearance only. True, neutrals were no longer compelled to enter British ports; their prohibition from interdicted ports was nominally absolute; but it was known that by coming to Great Britain they could obtain a license to enter them, so that the effect was the same; and by forged papers this license system was so extended "that the commerce of England could advantageously find its way to those ports."[334]

Wellesley delayed reply till December 29.[335] He regretted the intrusion of these closing remarks, which might tend to interfere with a conciliatory spirit, but without further comment on them addressed himself to the main question. His Government did not find the "notification" of the repeal of the French Decrees such as would justify it in recalling the Orders in Council. The United States having demanded the formal revocation of the blockade of May, 1806, as well as of the Orders in Council, he "must conclude, combining your requisition with that of the French Minister, that America demands the revocation of that order of blockade, as a practical instance of our renunciation of those principles of blockade which are condemned by the French Government." This inference seems overstrained; but certainly much greater substantial concession was required of Great Britain than of France. Wellesley intimated that this concert of action was partial—not neutral—between the two belligerents. "I trust that the justice of the American Government will not consider that France, by the repeal of her obnoxious decrees, under such a condition,[336] has placed the question in that state which can warrant America in enforcing the Non-Intercourse Act against Great Britain, and not against France." He reminded Pinkney of the situation in which the commerce of neutral nations had been placed by many recent acts of the French Government; and said that its system of violence and injustice required some precautions of defence on the part of Great Britain. In conclusion, his Majesty stood ready to repeal, when the French Decrees should be repealed without conditions injurious to the maritime rights and honor of the United Kingdom.

Unhappily for Pinkney's argument on the actuality of Napoleon's repeal, on the very day of his own writing, December 10, the American charge[337] in Paris, Jonathan Russell, was sending Champagny a remonstrance[338] upon the seizure of an American vessel at Bordeaux, under the decrees of Berlin and Milan, on December 1,—a month after their asserted repeal. That the Director of Customs at a principal seaport should understand them to be in force, nearly four months after the publication of Champagny's letter in the "Moniteur," would certainly seem to imply some defect in customary form;[339] and the ensuing measures of the Government would indicate also something misleading in the terms. Russell told Champagny that, since November 1, the alleged day of repeal, this was the first case to which the Berlin and Milan Decrees could apply; and lo! to it they were applied. Yet, "to execute the Act of Congress against the English requires the previous revocation of the decrees." It was, indeed, ingeniously argued in Congress, by an able advocate of the Administration, that all the law required was the revocation in terms of the Decrees; their subsequent enforcement in act was immaterial.[340] Such a solution, however, would scarcely content the American people. The French Government now took a step which clearly showed that the Decrees were still in force, technically, however honest its purpose to hold to the revocation, if the United States complied with the conditions. Instructions to the Council of Prizes,[341] from the proper minister, directed that the vessel, and any others falling under the same category of entry after November 1, should "remain suspended" until after February 2, the period at which the United States should have fulfilled its obligation. Then they should be restored.

The general trend of argument, pro and con, with the subsequent events, probably shook the confidence of the Administration, and of its supporters in Congress, in the certainty of the revocation, which the President had authenticated by his proclamation. Were the fact unimpeachable, the law was clear; non-intercourse with Great Britain would go into effect February 2, without further action. But the doubts started were so plausible that it was certain any condemnation or enforcement under the law would be carried up to the highest court, to test whether the fact of revocation, upon which the operativeness of the statute turned, was legally established. Even should the court decline to review the act of the Executive, and accept the proclamation as sufficient evidence for its own decision, such feeble indorsement would be mortifying. A supplementary Act was therefore framed, doing away with the original, and then reviving it, as a new measure, against Great Britain alone. In presenting this, the member charged with its introduction said: "The Committee thought proper that in this case the legislature should step forward and decide; that it was not consistent with the responsibility they owed the community to turn over to judicial tribunals the decision of the question, whether the Non-Intercourse was in force or not."[342] The matter was thus taken from the purview of the courts, and decided by a party vote. After an exhausting discussion, this bill passed at 4 A.M., February 28, 1811. It was approved by the President, March 2.

For the settlement of American litigation this course was adequate; not so for the vindication of international procedure. The United States at this time had abundant justification for war with both France and Great Britain, and it was within the righteous decision of her own policy whether she should declare against either or both; but it is a serious impeachment of a Government's capacity and manfulness when, with such questions as Impressment, the Orders in Council, Napoleon's Decrees, and his arbitrary sequestrations, war comes not from a bold grappling with difficulties, but from a series of huckstering attempts to buy off one antagonist or the other, with the result of being fairly overreached. The outcome, summarily stated, had been that a finesse of the French Government had attached the United States to Napoleon's Continental System. She was henceforth, in effect, allied with the leading feature of French policy hostile to Great Britain. It was perfectly competent and proper for her so to attach herself, if she saw fit. The Orders in Council were a national wrong to her, justifying retaliation and war; still more so was Impressment. But it is humiliating to see one's country finally committed to such a step through being outwitted in a paltry bargain, and the justification of her course rested, not upon a firm assertion of right, but upon the refusal of another nation to accept a manifestly unequal proposition. The course of Great Britain was high-handed, unjust, and not always straightforward; but it was candor itself alongside of Napoleon's.

There remained but one step to complete the formal breach; and that, if the writer's analysis has been correct, resulted as directly as did the final Non-Intercourse Act from action erroneously taken by Mr. Madison's Administration. Jackson's place, vacated in November, 1809, by the refusal to communicate further with him, remained still unfilled. This delay was thought deliberate by the United States Government, which on May 22 wrote to Pinkney that it seemed to manifest indifference to the character of the diplomatic intercourse between the two countries, arising from dissatisfaction at the step necessarily taken with regard to Mr. Jackson. Should this inference from Wellesley's inaction prove correct, Pinkney was directed to return to the United States, leaving the office with a charge d'affaires, for whom a blank appointment was sent. He was, however, to exercise his own judgment as to the time and manner. In consequence of his interview with Wellesley, and in reply to a formal note of inquiry, he received a private letter, July 22, 1810, saying it was difficult to enter upon the subject in an official form, but that it was the Secretary's intention immediately to recommend a successor to Jackson. Still the matter dragged, and at the end of the year no appointment had been made.

In other ways, too, there was unexplained delay. In April Pinkney had received powers to resume the frustrated negotiations committed first to him and Monroe. Wellesley had welcomed the advance, and had accepted an order of discussion which gave priority to satisfaction for the "Chesapeake" affair. After that an arrangement for the revocation of the Orders in Council should be attempted. On June 13 Pinkney wrote home that a verbal agreement conformable to his instructions had been reached concerning the "Chesapeake," and that he was daily expecting a written overture embodying the terms. August 14 this had not been received,—to his great surprise, for Wellesley's manner had shown every disposition to accommodate. Upon this situation supervened Cadore's declaration of the revocation of the French Decrees, Pinkney's acceptance of the fact as indisputable, and his urgency to obtain from the British Government a corresponding measure in the repeal of the Orders. Through all ran the same procrastination, issuing in entire inaction.

Pinkney's correspondence shows a man diplomatically self-controlled and patient, though keenly sensible to the indignity of unwarrantable delays. The rough speaking of his mind concerning the Orders in Council, in his letter of December 10, suggests no loss of temper, but a deliberate letting himself go. There appeared to him now no necessity for further endurance. To Wellesley's rejoinder of December 29 he sent an answer on January 14, 1811, "written," he said, "under the pressure of indisposition, and the influence of more indignation than could well be suppressed."[343] The questions at issue were again trenchantly discussed, but therewith he brought to an end his functions as minister of the United States. Under the same date, but by separate letter, he wrote that as no steps had been taken to replace Jackson by an envoy of equal rank, his instructions imposed on him the duty of informing his lordship that the Government of the United States could not continue to be represented in England by a minister plenipotentiary. Owing to the insanity of the King, and the delays incident to the institution of a regency, his audience of leave was delayed to February 28; and it is a noticeable coincidence that the day of this formal diplomatic act was also that upon which the Non-Intercourse Bill against Great Britain passed the House of Representatives. In the course of the spring Pinkney embarked in the frigate "Essex" for the United States. He had no successor until after the War of 1812, and the Non-Intercourse Act remained in vigor to the day of hostilities.

On February 15, a month after Pinkney's notification of his intended departure, Wellesley wrote him that the Prince Regent, whose authority as such dated only from February 5, had appointed Mr. Augustus J. Foster minister at Washington. The delay had been caused in the first instance, "as I stated to you repeatedly," by the wish to make an appointment satisfactory to the United States, and afterwards by the state of his Majesty's Government; the regal function having been in abeyance until the King's incapacity was remedied by the institution of the Regent. Wellesley suggested the possibility of Pinkney reconsidering his decision, the ground for which was thus removed; but the minister demurred. He replied that he inferred, from Wellesley's letter, that the British Government by this appointment signified its intention of conceding the demands of the United States; that the Orders in Council and blockade of May, 1806, would be annulled; without this a beneficial effect was not to be expected. Wellesley replied that no change of system was intended unless France revoked her Decrees. The effect of this correspondence, therefore, was simply to place Pinkney's departure upon the same ground as the new Non-Intercourse Act against Great Britain.

Mr. Augustus John Foster was still a very young man, just thirty-one. He had but recently returned from the position of minister to Sweden, the duties of which he had discharged[344] during a year very critical for the fortunes of that country, and in the event for Napoleon and Europe. Upon his new mission Wellesley gave him a long letter of instructions,[345] in which he dealt elaborately with the whole course of events connected with the Orders in Council and Bonaparte's Decree, especially as connected with America. In this occurs a concise and lucid summary of the British policy, which is worth quoting. "From this view of the origin of the Orders in Council, you will perceive that the object of our system was not to crush the trade of the continent, but to counteract an attempt to crush British trade; that we have endeavored to permit the continent to receive as large a portion of commerce as might be practicable through Great Britain, and that all our subsequent regulations, and every modification of the system, by new orders, or modes of granting or withholding licenses, have been calculated for the purpose of encouraging the trade of neutrals through Great Britain,[346] whenever such encouragement might appear advantageous to the general interests of commerce and consistent with the public safety of the nation,—the preservation of which is the primary object of all national councils, and the paramount duty of the Executive power."

In brief, the plea was that Bonaparte by armed constraint had forced the continent into a league to destroy Great Britain through her trade; that there was cause to fear these measures would succeed, if not counteracted; that retaliation by similar measures was therefore demanded by the safety of the state; and that the method adopted was retaliation, so modified as to produce the least possible evil to others concerned. It was admitted and deplored that prohibition of direct trade with the ports of the league injuriously affected the United States. That this was illegal, judged by the law of nations, was also admitted; but it was justified by the natural right of retaliation. Wellesley scouted the view, pertinaciously urged by the American Government, that the exclusion of British commerce from neutral continental ports by the Continental System was a mere municipal regulation, which the United States could not resist. Municipal regulation was merely the cloak, beneath which France concealed her military coercion of states helpless against her policy. "The pretext of municipal right, under which the violence of the enemy is now exercised against neutral commerce in every part of the continent, will not be admitted by Great Britain; nor can we ever deem the repeal of the French Decrees to be effectual, until neutral commerce shall be restored to the conditions in which it stood, previously to the commencement of the French system of commercial warfare, as promulgated in the Decrees."

Foster's mission was to urge these arguments, and to induce the repeal of the Non-Intercourse law against Great Britain, as partial between the two belligerents; who, if offenders against accepted law, were in that offenders equally. The United States was urged not thus to join Napoleon's league against Great Britain, from which indeed, if so supported, the direst distress must arise. It is needless to pursue the correspondence which ensued with Monroe, now Secretary of State. By Madison's proclamation, and the passage of the Non-Intercourse Act of March 2, 1811, the American Government was irretrievably committed to the contention that France had so revoked her Decrees as to constitute an obligation upon Great Britain and upon the United States. To admit mistake, even to one's self, in so important a step, probably passes diplomatic candor, and especially after the blunder in Erskine's case. Yet, even admitting the adequacy of Champagny's letter, the Decrees were not revoked; seizures were still made under them. In November, 1811, Monroe had to write to Barlow, now American minister to France, "It is not sufficient that it should appear that the French Decrees are repealed, in the final decision of a cause brought before a French tribunal. An active prohibitory policy should be adopted to prevent seizures on the principle."[347] This was in the midst of his correspondence with Foster. The two disputants threshed over and over again the particulars of the controversy, but nothing new was adduced by either.[348] Conditions were hopeless, and war assured, even when Foster arrived in Washington, in June, 1811.

One thing, however, was finally settled. In behalf of his Government, in reparation for the "Chesapeake" affair, Foster repeated the previous disavowal of Berkeley's action, and his consequent recall; and offered to restore to the ship herself the survivors of the men taken from her. Pecuniary provision for those who had suffered in the action, or for their families, was also tendered. The propositions were accepted, while denying the adequacy of Berkeley's removal from one command to another. The men were brought to Boston harbor, and there formally given up to the "Chesapeake."

Tardy and insufficient as was this atonement, it was further delayed, at the very moment of tendering, by an incident which may be said to have derived directly from the original injury. In June, 1810, a squadron of frigates and sloops had been constituted under Commodore John Rodgers, to patrol the coast from the Capes of the Chesapeake northward to the eastern limit of the United States. Its orders, generally, were to defend from molestation by a foreign armed ship all vessels of the United States within the marine league, seaward, to which neutral jurisdiction was conceded by international law. Force was to be used, if necessary, and, if the offender were a privateer, or piratical, she was to be sent in. So weak and unready was the nominal naval force of the United States, that piracy near her very shores was apprehended; and concern was expressed in Congress regarding vessels from Santo Domingo, thus converted into a kind of local Barbary power. To these general instructions the Secretary of the Navy attached a special reminder. Recalling the "Chesapeake" affair, as a merely exaggerated instance of the contumely everywhere heaped upon the American flag by both belligerents, he wrote: "What has been perpetrated may be again attempted. It is therefore our duty to be prepared and determined at every hazard to vindicate the injured honor of our navy, and revive the drooping spirit of the nation. It is expected that, while you conduct the force under your command consistently with the principles of a strict and upright neutrality, you are to maintain and support at every risk and cost the dignity of our flag; and that, offering yourself no unjust aggression, you are to submit to none, not even a menace or threat from a force not materially your superior."

Under such reminiscences and such words, the ships' guns were like to go off of themselves. It requires small imagination to picture the feelings of naval officers in the years after the "Chesapeake's" dishonor. In transmitting the orders to his captains, Rodgers added, "Every man, woman, and child, in our country, will be active in consigning our names to disgrace, and even the very vessels composing our little navy to the ravages of the worms, or the detestable transmigration to merchantmen, should we not fulfil their expectations. I should consider the firing of a shot by a vessel of war, of either nation, and particularly England, at one of our public vessels, whilst the colors of her nation are flying on board of her, as a menace of the grossest order, and in amount an insult which it would be disgraceful not to resent by the return of two shot at least; while should the shot strike, it ought to be considered an act of hostility meriting chastisement to the utmost extent of all your force."[349] The Secretary indorsed approval upon the copy of this order forwarded to him. Rodgers' apprehension for the fate of the navy reflected accurately the hostile views of leaders in the dominant political party. Demoralized by the gunboat system, and disorganized and browbeaten by the loud-mouthed disfavor of representative Congressmen, the extinction of the service was not unnaturally expected. Bainbridge, a captain of standing and merit, applied at this time for a furlough to make a commercial voyage to China, owing to straitened means. "I have hitherto refused such offers, on the presumption that my country would require my services. That presumption is removed, and even doubts entertained of the permanency of our naval establishment."[350]

The following year, 1811, Rodgers' squadron and orders were continued. The British admirals of adjacent stations, acting doubtless under orders from home, enjoined great caution upon their ships of war in approaching the American coast.[351] While set not to relax the Orders in Council, the ministry did not wish war by gratuitous offence. Cruising, however, continued, though charged with possibilities of explosion. Under these circumstances Rodgers' ship, the "President" frigate, and a British sloop of war, the "Little Belt," sighted each other on May 16, 1811, fifty miles east of Cape Henry. Independent of the general disposition of ships of war in troublous times to overhaul and ascertain the business of any doubtful sail, Rodgers' orders prescribed the capture of vessels of certain character, even outside the three-mile limit; and, the "Little Belt" making sail from him, he pursued. About 8 P.M., it being then full dark, the character and force of the chase were still uncertain, and the vessels within range. The two accounts of what followed differ diametrically; but the British official version[352] is less exhaustive in matter and manner than the American, which rests upon the sworn testimony of numerous competent witnesses before a formal Court of Inquiry.[353] By this it was found proved that the "Little Belt" fired the first gun, which by Rodgers' statement cut away a backstay and went into the mainmast. The batteries of both ships opened, and an engagement followed, lasting twelve or fifteen minutes, during which the "Little Belt," hopelessly inferior in force, was badly cut up, losing nine killed and twenty-three wounded. Deplorable as was this result, and whatever unreconciled doubts may be entertained by others than Americans as to the blame, there can be no question that the affair was an accident, unpremeditated. It was clearly in evidence that Rodgers had cautioned his officers against any firing prior to orders. There was nothing of the deliberate purpose characterizing the "Chesapeake" affair; yet Mr. Foster, with the chariness which from first to last marked the British handling of that business, withheld the reparation authorized by his instructions until he had received a copy of the proceedings of the court.

On July 24, 1811, the President summoned Congress to meet November 4, a month before the usual time, in consequence of the state of foreign affairs. His message spoke of ominous indications; of the inflexible hostility evidenced by Great Britain in trampling upon rights which no independent nation can relinquish; and recommended legislation for increasing the military force. As regarded the navy, his words were indefinite and vague, beyond suggesting the expediency of purchasing materials for ship-building. The debates and action of Congress reflected the tone of the Executive. War was anticipated as a matter of course, and mentioned freely in speeches. That the regular army should be enlarged, and dispositions made for more effective use of the militia, was granted; the only dispute being about the amount of development. In this the legislature exceeded the President's wishes, which were understood, though not expressed in the message. Previous Congresses had authorized an army of ten thousand, of which not more than five thousand were then in the ranks. It was voted to complete this; to add twenty-five thousand more regulars, and to provide for fifty thousand volunteers. Doubts, based upon past experience, and which proved well founded, were expressed as to the possibility of raising so many regular troops, pledged for five years to submit to the restrictions of military life. It was urged that, in the economical conditions of the country, the class did not exist from which such a force could be recruited.

This consideration did not apply to the navy. Seamen could be had abundantly from the merchant shipping, the activities of which must necessarily be much curtailed by war with a great naval power. Nevertheless, the dominance of Jefferson, though in this particular already shaken, remained upon the mass of his party. The new Secretary of the Navy was from South Carolina, not reckoned among the commercial states; but, however influenced, he ventured to intimate doubts as to the gunboat system. Of one thing there was no doubt. On a gunboat a gun cost twelve thousand dollars a year; the same on a frigate cost but four thousand.[354] In the House of Representatives, the strongest support to the development of the navy as a permanent force came from the Secretary's state, backed by Henry Clay from Kentucky, and by the commercial states; the leading representative of which, Josiah Quincy, expressed, however, a certain diffidence, because in the embittered politics of the day the mere fact of Federalist support tended rather to damage the cause.

So much of the President's message as related to the navy—three lines, wholly non-committal—was referred to a special committee. The report[355] was made by Langdon Cheves of South Carolina, whose clear and cogent exposition of the capabilities of the country and the possibility of providing a force efficient against Great Britain, under her existing embarrassments, was supported powerfully and perspicuously by William Lowndes of the same state. The text for their remarks was supplied by a sentence in the committee's report: "The important engine of national strength and national security, which is formed by a naval force, has hitherto been treated with a neglect highly impolitic, or supported by a spirit so languid, as, while it has preserved the existence of the establishment, has had the effect of loading it with the imputations of wasteful expense, and comparative inefficiency.... Such a course is impolitic under any circumstances." This was the condemnation of the party's past. Clay found his delight in dealing with some of the oratory, which on the present occasion still sustained—and for the moment successfully sustained—the prepossessions of Jefferson. Carthage, Rome, Venice, Genoa, were republics with free institutions and great navies; Carthage, Rome, Venice, and Genoa had lost their liberties, and their national existence. Clearly navies, besides being very costly, were fatal to constitutional freedom. Not in reply to such non sequitur, but quickened by an insight which was to receive earlier vindication than he could have anticipated, Quincy prophesied that, amid the diverse and contrary interests of the several states, which the lack of a common object of affection left still imperfectly unified in sentiment, a glorious navy, identified with the whole country because of its external action, yet local to no part, would supply a common centre for the enthusiasm not yet inspired by the central government, too closely associated for years back with a particular school of extreme political thought, narrowly territorial and clannish in its origin and manifestation. Within a twelvemonth, the "Constitution," most happily apt of all names ever given to a ship, became the embodiment of this verified prediction.

The report of the committee was modest in its scope. "To the defence of your ports and harbors, and the protection of your coasting trade, should be confined the present objects and operations of any navy which the United States can, or ought, to have." To this office it was estimated that twelve ships of the line and twenty frigates would suffice. Cheves and Lowndes were satisfied that such a fleet was within the resources of the country; and to insure the fifteen thousand seamen necessary to man it, they would be willing to limit the number of privateers,—a most wholesome and necessary provision. By a careful historical examination of Great Britain's past and present exigencies, it was shown that such a force would most probably keep clear the approaches to all American ports, the most critical zone for shipping, whether inward or outward bound; because, to counteract it, the enemy would have to employ numbers so largely superior that they could not be spared from her European conflict. The argument was sound; but unhappily Cheves, Lowndes, Clay, and Quincy did not represent the spirit of the men who for ten years had ruled the country and evolved the gunboat system. These, in their day of power, not yet fully past, had neither maintained the fleet nor accumulated material, and there was no seasoned timber to build with. The Administration which expired in 1801 had left timber for six 74-gun ships, of which now remained only enough for four. The rest had been wasted in gunboats, or otherwise. The committee therefore limited its recommendations to building the frigates, for which it was believed materials could be procured.

Even in this reduced form it proved impossible to overcome the opposition to a navy as economically expensive and politically dangerous. The question was amply debated; but as, on the one hand, little doubt was felt about the rapid conquest of Canada by militia and volunteers, so, on the other, the same disposition to trust to extemporized irregular forces encouraged reliance simply upon privateering. Private enterprise in such a cause undoubtedly has from time to time attained marked results; but in general effect the method is a wasteful expenditure of national resources, and, historically, saps the strength of the regular navy. In the manning of inefficient privateers—and the majority were inefficient and ineffective—were thrown away resources of seamen which, in an adequate naval force, organized and directed as it would have been by the admirable officers of that period, could have accomplished vastly more in the annoyance of British trade,—the one offensive naval undertaking left open to the nation. Even with the assistance of the Federalists the provision for the frigates could not be carried, though the majority was narrow—62 to 59. The same fate befell the proposition to provide a dockyard. All that could be had was an appropriation of six hundred thousand dollars, distributed over three successive years, for buying timber. These votes were taken January 27, 1812, in full expectation of war, and only five months before it was declared.

Early in April, Congress, in secret session, passed an Act of Embargo for ninety days, which became law on the fourth by the President's signature. The motive was twofold: to retain at home the ships and seamen of the nation, in anticipation of war, to keep them from falling into the hands of the enemy; and also to prevent the carriage of supplies indispensably necessary to the British armies in Spain. Both objects were defeated by the action of Quincy, in conjunction with Senator Lloyd of Massachusetts and Representative Emott of New York. Learning that the President intended to recommend the embargo, these gentlemen, as stated by Quincy on the floor of the House, despatched at once to Philadelphia, New York, and Boston, expresses which left Washington March 31, the day before Madison's letter was dated. Four or five days' respite was thus secured, and the whole mercantile community set zealously to work to counteract the effects of the measure. "Niles' Register," published in Baltimore, said: "Drays were working night and day, from Tuesday night, March 31, and continued their toil till Sunday morning, incessantly. In this hurly-burly to palsy the arm of the Government all parties united. On Sunday perhaps not twenty seamen, able to do duty, could be found in all Baltimore." A New York paper is quoted as saying, "The property could not have been moved off with greater expedition had the city been enveloped in flames." From that port forty-eight vessels cleared; from Baltimore thirty-one; Philadelphia and Alexandria in like proportions. It was estimated that not less than two hundred thousand barrels of flour, besides grain in other shapes, and provisions of all kinds, to a total value of fifteen million dollars, were rushed out of the country in those five days, when labor-saving appliances were nearly unknown.[356]

Jonathan Russell, who was now charge d'affaires at London, having been transferred from Paris upon the arrival of Armstrong's successor, Joel Barlow, wrote home, "The great shipments of provisions, which were hurried from America in expectation of the embargo, have given the Peninsula a supply for about two months; and at the expiration of that period the harvest in that region will furnish a stock for about three months more.... The avidity discovered by our countrymen to escape from the embargo, and the disregard of its policy, have encouraged this Government to hope that supplies will still continue to be received from the United States. The ship 'Lady Madison,' which left Liverpool in March, has returned thither with a cargo taken in off Sandy Hook without entering an American port. There are several vessels now about leaving this country with the intention not only of procuring a cargo in the same way, but of getting rid, illicitly, of one they carry out."[357]

It was, indeed, a conspicuous instance of mercantile avidity, wholly disregardful of patriotic considerations, such as is to be found in all times and in all countries; strictly analogous to the constant smuggling between France and Great Britain at this very time. Its significance in the present case, however, is as marking the widespread lack of a national patriotism, as distinct from purely local advantage and personal interests, which unhappily characterized Americans at this period. Of this Great Britain stood ready to avail herself, by extending to the United States the system of licenses, by which, combined with the Orders in Council, she was combating with a large degree of success Napoleon's Continental System. She hoped, and the sequel showed not unreasonably, that even during open hostilities she could in the same manner thwart the United States in its efforts to keep its own produce from her markets. Less than a fortnight after the American Declaration of War was received, Russell, who had not yet left England, wrote to the Secretary of State that the Board of Trade had given notice that licenses would be granted for American vessels to carry provisions from the United States to Cadiz and Lisbon, for the term of eight months; and that a policy had been issued at Lloyds to a New York firm, insuring flour from that port to the peninsula, warranted free from British capture, and from capture or detention by the Government of the United States.[358]

The British armies were thus nourished and dependent, both in Spain and in Canada. The supplying of the latter scarcely fell short of treason, and decisively affected the maintenance of the war in that quarter. It is difficult to demonstrate a moral distinction between what was done there, disregardful of national success, in shameful support of the enemy, and the supplying of the peninsula; but an intuitive sympathy extends to the latter a tolerance which the motives of the individual agents probably do not deserve, and for which calm reason cannot give a perfectly satisfactory account. But it was the misfortune of American policy, as shaped by the Administration, that it was committed to support Napoleon in his iniquitous attack upon the liberties of Spain; that it saw in his success the probable fulfilment of its designs upon the Floridas;[359] and that its chosen ground for proceeding against Great Britain, rather than France, was her refusal to conform her action to a statement of the Emperor's, the illusory and deceptive character of which became continually more apparent.

To declare war because of the Orders in Council was a simple, straightforward, and wholly justifiable course; but the flying months made more and more evident, to the Government and its agents abroad, that it was vain to expect revocation on the ground of Napoleon's recall of his edicts, for they were not recalled. Having entered upon this course, however, it seemed impossible to recede, or to acknowledge a mistake, the pinch of which was nevertheless felt. Writing to Russell, whose service in Paris, from October, 1810, to October, 1811, and transfer thence to London, made him unusually familiar, on both sides of the Channel, with the controversy over Champagny's letter of August 5, 1810, Madison speaks "of the delicacy of our situation, having in view, on the one hand, the importance of obtaining from the French Government confirmation of the repeal of the Decrees, and on the other that of not weakening the ground on which the British repeal was urged."[360] That is, it would be awkward to have the British ministry find out that we were pressing France for a confirmation of that very revocation which we were confidently asserting to them to be indisputable, and to require in good faith the withdrawal of their Orders. Respecting action taken under the so-called repeal, Russell had written on March 15, 1811, over three months after it was said to take effect, "By forbearing to condemn, or to acquit, distinctly and loyally, [the vessels seized since November 1], this Government encourages us to persevere in our non-importation against England, and England to persist in her orders against us. This state of things appears calculated to produce mutual complaint and irritation, and cannot probably be long continued without leading to a more serious contest, ... which is perhaps an essential object of this country's policy."[361] July 15, he expressed regret to the Duke of Bassano, the French Minister of Foreign Affairs, that the proceedings concerning captured American vessels "had been so partial, and confined to cases which from their peculiar circumstances proved nothing conclusively in relation to the revocation of the French Edicts."[362]

Russell might have found some light as to the causes of these delays, could he have seen a note addressed by the Emperor to the Administration of Commerce, April 29. In this, renewing the reasoning of the Bayonne Decree, he argued that every American vessel which touched at an English port was liable to confiscation in the United States; consequently, could be seized by an American cruiser on the open sea; therefore, was equally open to seizure there by a French cruiser—the demand advanced by Canning[363] which gave such just offence; and if by a French cruiser at sea, likewise in a French port by the French Government. She was in fact no longer American, not even a denationalized American, but an English vessel. Under this supposition, Napoleon luminously inferred, "It could be said: The Decrees of Berlin and Milan are recalled as to the United States, but, as every ship which has stopped in England, or is destined thither, is a ship unacknowledged (sans aveu), which American laws punish and confiscate, she may be confiscated in France." The Emperor concluded that should this theory not be capable of substantiation, the matter might for the present be left obscure.[364] On September 13 the ships in question had not been liberated.

Coincidently with his note to Bassano, Russell wrote to Monroe, "It is my conviction that the great object of their policy is to entangle us in a war with England. They therefore abstain from doing any act which would furnish clear and unequivocal testimony of the revocation of their decrees, lest it should induce the extinction of the British Orders, and thereby appease our irritation against their enemy. Hence, of all the captured vessels since November 1, the three which were liberated were precisely those which had not violated the Decrees."[365] Yet, such were the exigencies of the debate with England, those three cases were transmitted by him at the same time to the American charge in London as evidence of the revocation.[366] To the French Minister he wrote again, August 8, "After the declarations of M. de Champagny and yourself, I cannot permit myself to doubt the revocation; ... but I may be allowed to lament that no fact has yet come to my knowledge of a character unequivocally and incontrovertibly to confirm that revocation." "That none of the captured vessels have been condemned, instead of proving the extinction of the edicts, appears rather to be evidence, at best, of a commutation of the penalty from prompt confiscation to perpetual detention."[367] The matter was further complicated by an announcement of Napoleon to the Chamber of Commerce, in April of the same year, that the Berlin and Milan Decrees were the fundamental law of the Empire concerning neutral commerce, and that American ships would be repelled from French ports, unless the United States conformed to those decrees, by excluding British ships and merchandise.[368] Under such conditions, argument with a sceptical British ministry was attended with difficulties. The position to which the Government had become reduced, by endeavoring to play off France and Great Britain against each other, in order to avoid a war with either, was as perplexing as humiliating. "Great anxiety,"[369] to which little sympathy can be extended, was felt in Washington as to the evidence for the actuality of the repeals.

The situation was finally cleared up by a clever move of the British Cabinet, forcing Napoleon's hand at a moment when the Orders in Council could with difficulty be maintained longer against popular discontent. On March 10, 1812, the French Minister of Foreign Affairs, in a report to the Senate, reiterated the demands of the Decrees, and asserted again that, until those demands were conceded by England, the Decrees must be enforced against Powers which permitted their flags to be denationalized. The position thus reaffirmed was emphasized by a requirement for a large increase of the army for this object. "It is necessary that all the disposable forces of France be available for sending everywhere where the English flag, and other flags, denationalized or convoyed by English ships of war, may seek to enter."[370] No exceptions in favor of the United States being stated, the British ministry construed the omission as conclusive proof of the unqualified continuance of the Decrees;[371] and the occasion was taken to issue an Order in Council, defining the Government's position, both in the past and for the future. Quoting the French minister's Report, as removing all doubts of Napoleon's persistence in the maintenance of a system, "as inconsistent with neutral rights and independence as it was hostile to the maritime rights and commercial interests of Great Britain," the Prince Regent declared that, "if at any time thereafter the Berlin and Milan Decrees should be absolutely and unconditionally repealed, by some authentic act of the French Government, publicly promulgated, then the Orders in Council of January, 1807, and April, 1809, shall without any further order be, and the same are hereby declared from thenceforth to be, wholly and absolutely revoked."[372] No exception could be taken to the phrasing or form of this Order. The wording was precise and explicit; the time fixed was definite,—the date of the French Repeal; the manner of revocation was the same as that of promulgation, an Order in Council observant of all usual formalities.

In substance, this well-timed State Paper challenged Champagny's letter of August 5, 1810, and the American Non-Importation Act based upon it. Both these asserted the revocation of the French Decrees. The British Cabinet, seizing a happy opportunity, asked of the world the production of the revocation, or else the justification of its own course. The demand went far to silence the growing discontents at home, and to embarrass the American Government in the grounds upon which it had chosen to base its action. It was well calculated also to disconcert the Emperor, for, unless he did something more definite, dissension would increase in the United States, where, as Barlow wrote, "It is well known to the world, for our public documents are full of it, that great doubts exist, even among our best informed merchants, and in the halls of Congress itself, whether the Berlin and Milan Decrees are to this day repealed, or even modified, in regard to the United States." The sentence is taken from a letter[373] which he addressed to the French Minister of Foreign Affairs, May 1, 1812, when he had received the recent British Order. He pointed out how astutely this step was calculated to undo the effect of Champagny's letter, and to weaken the American Administration at the critical moment when it was known to be preparing for war. He urged that the French Government should now make and publish an authentic Act, declaring the Berlin and Milan Decrees, as relative to the United States, to have ceased in November, 1810. "Such an act is absolutely necessary to the American Government; and, though solicited as an accommodation, it may be demanded as a right. If it was the duty of France to cease to apply those Decrees to the United States, it is equally her duty to promulgate it to the world in as formal a manner as we have promulgated our law for the exclusion of British merchandise. She ought to declare and publish the non-application of these Decrees in the same forms in which she enacted the Decrees. The President has instructed me to propose and press this object."

At last the demand was made which should have been enforced eighteen months before. After sending the letter, Barlow had "a pretty sharp conversation" with Bassano, in which he perceived a singular reluctance to answer his letter. At last the Duke placed before him a Decree, drawn up in due and customary form, dated a year before,—April 28, 1811,—declaring that "the Decrees of Berlin and Milan are definitively, and to date from the first day of November last, [1810], considered as not having existed in regard to American vessels."[374] This Decree, Bassano said, had been communicated to Russell, and also sent to Serrurier, the French minister at Washington, with orders to convey it to the American Government. Both Russell and Serrurier denied ever having received the paper.[375]

Barlow made no comment upon the strange manner in which this document was produced to him, and confined himself to inquiring if it had been published. The reply could only be, No; a singular admission with regard to a formal paper a year old, and of such importance to all concerned. He then asked that a copy might be sent him. Upon receipt, he at once hastened it to Russell in London, by the sloop of war "Wasp," then lying in a French port. He wrote, "You will doubtless render an essential service to both Great Britain and the United States by communicating it without loss of time to the Foreign Secretary. If by this the cause of war should be removed, there is an obvious reason for keeping the secret, if possible, so long as that the "Wasp" may not bring the news to this country in any other manner but in your despatch. This Government, as you must long have perceived, wishes not to see that effect produced; and I should not probably have obtained the letter and documents from the Minister, if the Prince Regent's Declaration had not convinced this Government that the war was now become inevitable."[376]

Russell transmitted the Decree to the British Foreign Secretary May 20, 1812. The Government was at the moment in confusion, through the assassination, May 11, of Mr. Perceval, the Prime Minister; who, though not esteemed of the first order of statesmanship by his contemporaries and colleagues, had been found in recent negotiations the only available man about whom a cabinet could unite. A period of suspense followed, in which the difficulty of forming a new government, owing to personal antagonisms, was complicated by radical differences as to public policy, especially in the cardinal point of pursuing or relinquishing the war in the peninsula. Not till near the middle of June was an arrangement reached. The same ministry, substantially, remained in power, with Lord Liverpool as premier; Castlereagh continuing as Foreign Secretary. This retained in office the party identified with the Orders in Council, and favoring armed support to the Spanish revolt.

The delay in settling the government afforded an excuse for postponing action upon the newly discovered French Decree. It permitted also time for reflection. Just before Perceval's death, Russell had noted a firm determination to maintain the Orders in Council, conditioned only by the late Declaration of April 21; but at the same time there was evident apprehension of the consequences of war with the United States.[377] This, he carefully explained, was due to no apprehension of American military power. Even Lord Grenville, one of the chief leaders of the Opposition, was satisfied that the United States could not conquer Canada. "We are, indeed, most miserably underrated in Europe." "It is not believed here, notwithstanding the spirited report of the Committee on Foreign Relations, that we shall resort to any definitive measures. We have indeed a reputation in Europe for saying so much and doing so little that we shall not be believed in earnest until we act in a manner not to be mistaken." "I am persuaded this Government has presumed much on our weakness and divisions, and that it continues to believe that we have not energy and union enough to make effective war. Nor is this confined to the ministry, but extends to the leaders of the Opposition." "Mr. Perceval is well known to calculate with confidence that even in case of war we shall be obliged to resort to a license trade for a supply of British manufactures." "He considers us incapable even of bearing the privations of a state of hostility with England, and much more incapable of becoming a formidable enemy." On March 3 Perceval in a debate in the House had indicated the most positive intentions of maintaining the Orders, and asserted that, in consequence of Napoleon's Decrees, Great Britain was no longer restrained by the law of nations in the extent or form of retaliation to which she may resort upon the enemy. "I cannot perceive the slightest indication of apprehension of a rupture with the United States, or any measure of preparation to meet such an event. Such is the conviction of our total inability to make war that the five or six thousand troops now in Canada are considered to be amply sufficient to protect that province against our mightiest efforts."[378] A revolution of sentiment was to be noted even in the minds of former advocates. Castlereagh, at a levee on March 12, said to Russell that the movements in the United States appeared to him to be nothing but party evolutions.

There was, however, another side to the question which occasioned more concern to the British ministry. "It is the increasing want of our intercourse," wrote Russell May 9, "rather than the apprehension of our arms which leads to a conciliatory spirit" which he had recently noticed. "They will endeavor to avoid the calamity of war with the United States by every means which can save their pride and their consistency. The scarcity of bread in this country, the distress of the manufacturing towns, and the absolute dependency of the allied troops in the Peninsula on our supplies, form a check on their conduct which they can scarcely have the hardihood to disregard."[379] Two days after these words were written, the murder of Perceval added political anarchy to the embarrassments of the Government. The crisis then impending was indeed momentous. War between France and Russia was certain. Upon its outcome depended the fall of the Continental System, or its prevalence over all Europe in an extent and with a rigor never yet reached. "Some of the Powers of Europe," said the Emperor, "have not fulfilled their promise with respect to the Continental System. I must force them to it." In carrying this message to the Senate, the Minister of Foreign Affairs said: "In whatever port of Europe a British ship can enter there must be a French garrison to prevent it;"[380] an interesting commentary upon the neutral regulations to which the United States professed that neither she nor Great Britain had any claim to object, because municipal. Great Britain had already touched ruin too nearly to think lightly of the conditions. By her Orders in Council she had so retorted Napoleon's Decrees as to induce him, in order still further to enforce them, into the Peninsular War, and now into that with Russia. To uphold the latter, her busy negotiators, profiting by his high-handedness, had obtained for the Czar peace with Sweden and Turkey. More completely to sustain him, it was essential to support in fullest effect the powerful diversion which retained three hundred thousand French troops in Spain. To do this, the assistance of American food supplies was imperative.

If peace with the United States could be maintained, the triumph of British diplomacy would be unqualified. The announcement of the alleged Decree of April 28, 1811, came therefore most opportunely to save their pride and self-consistency. On June 23 Castlereagh transmitted to Russell an Order in Council published that day, revoking as to the United States the celebrated Orders of January 7, 1807, and April 26, 1809. "I am to request you," ran his letter, "that you will acquaint your Government that the Prince Regent's ministers have taken the earliest opportunity, after the resumption of the Government, to advise his Royal Highness to the adoption of a measure grounded upon the document communicated by you to this office on the 20th ultimo;"[381] that is upon the Decree of April 28. No one affected to believe that this had been framed at the date it bore. "There was something so very much like fraud on the face of it," wrote Russell, "that in several conversations which I have since had with Lord Castlereagh, particularly at a dinner at the Lord Mayor's, when I was placed next his lordship, I have taken care not to commit the honor of my Government by attempting its vindication. When his lordship called it a strange proceeding, a new specimen of French diplomacy, a trick unworthy of a civilized government, I have merely replied that the motives or good faith of the Government which issued it, or the real time when it was issued, were of little importance as to the effect which it ought to have here; that it was sufficient that it contained a most precise and formal declaration that the Berlin and Milan Decrees were revoked, in relation to America, from November 1, 1810."[382]

This was true; but the contention of the British Government had been that the system of the Decrees was one whole; that its effect upon America could not be dissociated from that upon continental neutral states, where it was enforced under the guise of municipal regulations; and that it must be revoked as a whole, in order to impose the repeal of the Orders in Council. This position had been reaffirmed in the recent Order of April 21. Opinion will therefore differ as to the ministry's success in escaping, under the cover of the new Decree, from the dilemma in which they were placed by the irresistible agitation against the Orders in Council spreading through the nation, and the necessity of avoiding war with the United States, if possible, because of the affairs of the Peninsula. They made the best of it by alleging, as it were, the spirit of the Order of April 21; the disposition "to take such measures as may tend to re-establish the intercourse between neutral and belligerent nations upon its accustomed principles." For this reason, while avowing explicitly that the tenor of the Decree did not meet the requirements of the late Order, the Orders in Council were revoked from August 1 next following; and vessels captured after May 20, the date of Russell's communicating the Decree, would be released. The ministry thus receded gracefully under compulsion; and for their own people at least saved their face.