Jackson had come prepared to maintain, not only the British contention, but the note set by Canning for British diplomatic correspondence. He was conscious too of opposing material force to argument, and had but recently been amid the scenes at Copenhagen, which had illustrated Nelson's maxim that a fleet of ships of the line were the best negotiators in Europe. The position has its advantages, but also its dangers, when the field of warfare is that of words, not deeds; and in Madison, who superintended the American case, he was unequally matched with an adversary whose natural dialectical ability had been tempered and sharpened in many campaigns. There is noticeable, too, on the American side, a labored effort at acuteness of discrimination, an adroitness to exaggerate shades of difference practically imperceptible, and an aptitude to give and take offence, not so evident under the preceding Administration. These suggest irresistibly the absence, over Madison the President, of a moderating hand, which had been held over Madison the Secretary of State. It may be due also to the fact that both the President and his Cabinet were somewhat less indisposed to war than his predecessor had been.

In his answer to Smith Jackson reiterated, what Smith had admitted, that Erskine had made known the three conditions. He added, "No stronger illustration of the deviation from them which occurred can be given than by a reference to the terms of the agreement." As an incidental comment, supporting the contention that Erskine's departure from his sole authority was so decisive as to be a sufficient explanation for the disavowal of his procedure, the words were admissible; so much so as to invite the suspicion that the opponent, who had complained of the want of such explanation, felt the touch of the foil, and somewhat lost temper. Whatever impression of an insinuation the phrase may have conveyed should have been wholly removed by the further expression, in close sequence, "You are already acquainted with the instruction given; and I have had[296] the honor of informing you it was the only one." Smith's knowledge that Erskine's powers were limited to the one document is here attributed explicitly to Jackson. The Secretary (or President) saw fit not to recognize this, but took occasion to administer a severe rebuke, which doubtless the general tone of Jackson's letter tended to provoke. "I abstain, sir, from making any particular animadversions on several irrelevant and improper allusions in your letter.... But it would be improper to conclude the few observations to which I purposely limit myself, without adverting to your repetition of a language implying a knowledge, on the part of this Government, that the instructions of your predecessor did not authorize the arrangement formed by him. After the explicit and peremptory asseveration that this Government had no such knowledge, and that with such a knowledge no such arrangement would have been entered into, the view which you have again presented of the subject makes it my duty to apprise you that such insinuations are inadmissible in the intercourse of a foreign minister with a Government that understands what it owes to itself."

Whatever may be thought of the construction placed upon Jackson's words by his opponent, this thrust should have made him look to his footing; but arrogance and temper carried the day, and laid him open to the fatal return which he received. By drawing attention to the qualifying phrase, he could have shown that he had been misunderstood, but he practically accepted the interpretation; for, instead of repelling it, he replied: "In my correspondence with you I have carefully avoided drawing conclusions that did not necessarily follow from the premises advanced by me, and least of all should I think of uttering an insinuation where I was unable to substantiate a fact. To facts, such as I have become acquainted with them, I have scrupulously adhered, and in so doing I must continue, whenever the good faith of his Majesty's Government is called in question," etc. To this outburst the reply was: "You have used language which cannot but be understood as reiterating, and even aggravating, the same gross insinuation. It only remains, in order to preclude opportunities which are thus abused, to inform you that no further communications will be received from you, and that the necessity for this determination will, without delay, be made known to your Government." Jackson thereupon quitted Washington for New York, leaving a chargé d'affaires for transacting current business.

Before leaving the city, however, Jackson, through the channel of the chargé, made a statement to the Secretary of State. In this he alleged that the facts which he considered it his duty to state, and to the assertion of which, as facts, exception was taken, and his dismissal attributed, were two. One was, that the three conditions had been submitted by Mr. Erskine to the Secretary of State. This the Secretary had admitted. "The other, namely: that that instruction is the only one, in which the conditions were prescribed to Mr. Erskine, for the conclusion of an arrangement on the matter to which it related, is known to Mr. Jackson by the instructions which he has himself received." This he had said in his second letter; if somewhat obscurely, still not so much so but that careful reading, and indisposition to take offence, could have detected his meaning, and afforded him the opportunity to be as explicit as in this final paper. If Madison, who is understood to have given special supervision to this correspondence,[297] meant the severe rebuke conveyed by his reply as a feint, to lead the British minister incautiously to expose himself to a punishment which his general bearing and that of his Government deserved, he assuredly succeeded; yet it may be questioned who really came best out of the encounter. Jackson had blundered in words; the American Administration had needlessly intensified international bitterness.

Prepossession in reading, and proneness to angry misconception, must be inferred in the conduct of the American side of this discussion; for another notable and even graver instance occurs in the despatch[298] communicating Jackson's dismissal to Pinkney, beyond whose notice it probably was not allowed to go. Canning, in his third rejected condition, had written:

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 bonâ fide intention expressly conceded to the American Government. The repetition of the preposition "of," before bonâ fide, secures this meaning beyond peradventure. Nevertheless Smith, in labored arraignment of the whole British course, wrote to Pinkney as follows:

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 chargé 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:

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 "révoquer." 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 (rapportés) 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, "révoquer" 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 chargé[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 chargé 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.