War of 1812 Bicentennial

Chapter III.

The Relation in which the affairs of America stood with those of France as regarded Great Britain,—Great Britain fully succeeds in annihilating the Commerce &c of France merely by following the footsteps of that Go­vernment—Issuing of the "Berlin Decree"—That Decree executed with inexorable Force—Passing of the British "Orders in Council" in retaliation—The Or­ders in Council fully justified by the Law of Nations—Blockade of the British Islands an open Violation of the Law of Nations—Rights of Neutral Nations the same in War as in Peace.

The measures adopted by France, as set forth in the foregoing chapter, had a twofold connection with the affairs of America. In the first place, the American statesman entertained much the same feelings with respect to the commercial and naval greatness of England with their friends in France; their understandings were in general of the same character, and their tempers equally as vio­lent. They, as well as the French politicians, wished to render their country great by commerce; and as the established ascendancy of Great Britain appeared to them to stand in their way, they scrupled not about the means which might be employed to remove it. Their minds were not susceptible of a generous emulation; envy was the only feeling which a near view of the na­val and commercial greatness of England could excite in their bosoms. They had no dread of France, who had in the course of the war lost her commerce, her colonies and her ships; whose power never came into contact with their own; whose resources of all kinds were ex­clusively devoted in the prosecution of a war, in the result of which, they vainly thought that America had no interest. But they hated England, her commerce and her power, as cordially even as the members of the French government did: and had America been as little dependent on commerce as France, had her citizens been as indifferent to its real interests, or had her rulers pos­sessed the same despotic sway over their fortunes, which the French government had assumed over those of its own subjects, it is probable that Mr. Madison and his auxiliaries would at once have followed the example of Buonaparte, by prohibiting all commercial intercourse with the British empire. But the Americans had not yet been wholly overawed by their rulers; and it became necessary to pursue a more indirect and insidious course with them, than that which had been followed by Buonaparte in his dealings with a people whom he head entirely subdued.

The measures pursued by France in the execution of her anti-commercial system, suspended for a while the international law of Europe, and afforded to the rulers of America the pretext which they had so long desired, for gratifying their animosity against England. The com­mercial hostility of France during the peace, although never considered by Great Britain as a ground for war, was not however forgotten when hostilities were renewed: and the English ministers therefore determined to employ the naval power which was at their command, to the annihilation of the foreign commerce of their enemy. These measures were such as the interests of the British empire demanded, and which a state of hostility fully justified; and they completely succeeded in accomplishing the object which they had in view. The foreign commerce of France was annihilated; her industry checked; her resources wasted; and her ruler discovered, when it was too late, how gross were the errors which he had committed. It was however, impossible to re­tract; and he resolved to carry his commercial war to the utmost pitch of fury. In this temper did Buonaparte issue his famous Berlin Decree, which renewed all the old prohibitory regulations, and ludicrously declared the British Islands to be in a state of blockade, at the very moment when the fleets of Great Britain actually blockaded all the ports of France and her dependencies. Neutral vessels bound to, or returning from a British port, were made liable to capture by this singular decree Matters remained for some time in this state, the French ruler being unable to execute his decree, and the British government being averse to advance further in so bar­barous a warfare. But having again proved successful in his northern campaign. Buonaparte resumed with fresh vigor his prohibitory system; he confirmed all the provisions of the Berlin Decree; excluded the merchandize of Great Britain and her dependencies, and accompanied these prohibitions with the severest penal­ties.

Every article of British produce was searched for, seized and committed to the flames; while the most cru­el punishments were inflicted on the subjects of France, who dared to violate these arbitrary laws. This violent system had now reached its height, and it seemed to be the determination of the French ruler to have it execu­ted with the utmost rigor; the British government, there­fore, could no longer, either in prudence or honour, delay the retaliation which its power enabled it to inflict. The famous Orders in Council were therefore issued; all trade to France or her dependencies was strictly prohibited; all vessels, of whatever nation, which ven­tured to engage in this trade, were declared liable to seizure, and France and her dependencies were thus reduced to that state of blockade, with which she had vainly threatened the British Islands. The Orders in Council admitted but of one single exception to this general blockade of the French empire. The French decrees had declared all vessels liable to seizure which had touched at a British port, the Orders in Council, to counteract this provision, declared, on the other hand, that only such ships as were in that situation should be permitted to sail for France. Thus did the utter extinc­tion of the foreign trade of France result as a natural consequence of the very measures of her own govern­ment; measures, which no despotism, how ignorant soever, would have ventured to adopt, had it not trusted to a power which effectually silenced all popular opinion.

Two questions have been put on these Orders in Council, were they founded in justice, and were they supported by reasons of expediency? On the first point, with which alone foreign powers had any concern, the advocates of these measures had a very easy task to perform; for nothing surely can be more obvious to those who know any thing of the law of nations, than the right of Great Britain to retaliate on her enemies their own violence and injustice. What has been called the rule 1756, forms the first link in that chain of commercial restrictions, which in the sequel became so complicated; and the perfect equity of this rule has always appeared manifest to the most enlightened minds. France, like the other European powers who possessed distant colo­nies, endeavored to secure for herself the monopoly of their markets; and during peace strictly prohibited ail strangers from carrying on trade with them. When she goes to war with England, however, the superiority of her enemy's naval power compels her to relax the rigour of her colonial policy; and she is willing that neutral vessels should bring home the produce of her American settlements. By the interference of these neutrals, however, the British are manifestly deprived of the advantages which their naval power would otherwise secure to them; of the chance of captures, and the certainty of reducing colonies without striking a blow.

But no neutral can, upon any pretext, claim greater advantages after, than she enjoyed before the war; she has a right to insist that her relative condition to the belligerents shall not be rendered worse by the hostilities in which they may engage, but she can have no right to demand that it should be improved. By admission, however, to the colonial trade of France during war, a trade from which neutrals are excluded by France herself during peace, the condition of the neutral is manifestly improved; it is improved at the expence of England, who is deprived of the chance of captures and conquests, which her power would otherwise give her; and it is improved to the great gain of France, whom the interference of neutrals protects against the over­whelming power of her enemy. There can be no doubt as to the equity of the rule of the war 1756, that rule of which France and America have so loudly com­plained. The Orders in Council of January, 1807, which was not issued till after the Berlin Decree had been published by Buonaparte, was also justiciable on the very same principles; it went merely to exclude neutrals during war from a branch of the enemy's trade to which they had no access in time of peace. So far then the measures adopted by the British government rested on the clearest principles of international law.

And what were the measures adopted by France? had they any foundation in the acknowledged principles and usages of public law? The decree of Berlin pro­hibited all commerce in British commodities; France indeed had a right to do this, however fatal the measure might be to her own interest, and that of her dependencies; and had the Berlin Decree gone no further, although it might have had the effect of embit­tering the hostile spirit of the two countries, it neither could have justified, nor would it have been met by any specific act of retaliation on the part of England. But the French ruler, in a moment of despair, ventured to declare the British islands in a state of blockade, and to interdict all neutrals from trading with a British port. This was a violent infringement of the law of nations; a daring insult on neutral rights; an act of mad injustice, which loudly called upon all parties to avenge themselves of its authors. The honour of Great Britain pre-emi­nently demanded that she should repel this outrage with becoming spirit; and although she at first seemed willing to treat so impotent a measure with contempt alone, and to wait its result on the conduct of America, yet it will not be denied that the right still remained to her of exercising retaliation when the proper season should arrive. The date of the publication of the Milan Decree appeared to her to be that season; time enough had been allowed to the different neutral powers to remonstrate against the enemy; they had failed to improve the opportunity afforded them; and England could not longer remain silent when a new decree was issued, more unjust and insulting than its predecessor, more absurd and barbarous than any thing which had ever occurred among civilized nations. She therefore, issued her Orders in Council, which in effect reduced the French empire to a state of blockade, and cut off the whole commerce which neutral nations had hitherto carried on with the enemy. Of these measures France of course had no right to complain, and a very little reflection will suffice to shew that if America had any just grounds of remonstrance, she should have offered them to France alone, and not to England, against whom she was so prompt to bring forward her accusations.

France was the first of the belligerents to violate the law of nations. She issued the Berlin Decree, and followed it up by the other, dated at Milan, by both of which, the Americans and all other neutrals were prevented from maintaining their usual intercourse with England. These measures were in their principle a direct invasion of neutral rights, and it was therefore the duty of neutral powers to have remonstrated against them with firmness. But America did not thus resist; and she in this manner committed herself with the enemy. It was a principle tenaciously maintained by Buonaparte on all occasions, that those who did not resist an injury offered them by either of the belligerents, were no longer to be considered as neutrals; that by their acquiescence, they made themselves parties to the cause of the enemy, and that of course, they were to be treated in the same way as if they had actually declared war against the nation to whose interest they stood opposed. It was on some principle of this kind, that he declared the ships of all neutrals which submitted to what he called the tyranny of the English, denationalized—an uncouth and barbarous word invented to serve the occa­sion of these unhappy times, when Europe was no longer under the guidance of wise and sound principles.

To submit to any thing which France pretended to call a departure from the international law of Europe, was therefore held sufficient to denationalize the ships of neutral powers; and although the application of this principle may frequently have been erroneous, there can be no doubt that the principle itself was just. If France violated the law of nations, as she unquestionably did by her Berlin Decree; and if America calmly acquiesced in this insulting invasion of her rights, there can be no sort of doubt that she thus made herself a party in the quarrel which France had with England; that she in effect conspired with the common enemy, and that her ships were, to use the jargon of the French government, clearly "denationalized." Hod England therefore me­ditated hostility towards America; had she been anxious to avail herself of a pretext for a quarrel; had she been desirous of exacting from a secret enemy the full penal­ties of her accession to the cause of the other belligerent; she might very well have proceeded, on the simple fact of American acquiescence in French violence, at once to have treated the Americans as enemies.

A candid exposition, therefore, of the rights and duties of belligerents and neutrals, must completely exculpate England from all blame in issuing her Orders in Council. It is the doctrine of all jurists, that the rights of neutrals during war are exactly the same as during peace; the neutral powers are entitled to demand of either belliger­ents that in their intercourse with the other, they shall not be subjected to greater restraints than they experi­enced during a season of tranquility; but no neutral is, by any means, entitled to require more than this, or can expect that a belligerent should sacrifice to the conven­ience of the neutral, any of the just rights she may acquire by a state of war. The principle of this doctrine is obvious; no nation can expect that a foreign power is to sacrifice its own immediate interest to her convenience or advantage. When we come to consider these gene­ral principles, with reference to the case of America, their force seems to be irresistible. Suppose that America had been entirely out of the question, that her name were unknown in Europe, and that she had still remained in her ancient state of dependence on the British empire; suppose for a moment, that the question had arisen entirely between Great Britain and France; that France had violated the law of nations, by presuming to declare the British islands in a state of blockade, and then let any impartial person say what is the policy which Great Britain would have been entitled and called upon to pursue? She would clearly and evidently have had a right to do the same thing to France, which France had attempted to do to her, that is, she would have been entitled to declare the French empire in a state of block­ade with all possible vigor. Such then was her undoubted right; and will it be pretended that America—that a foreign nation was entitled to interfere with her, in the exercise of her rights? It is of no importance to the thing in hand to enquire, whether the blockade of France was, or was not, on the whole beneficial to England; that was a matter for England alone to consider; it was a question with which America had no sort of concern; and it is of the rights of America alone that we now speak. America, then, had no right to complain of the exercise of the powers which England possessed by her superiority, as one of the great European belligerents; which she derived immediately from that state of hostili­ties, in which she, and not America, was involved and, which, of course, she had a right to improve to her own advantage, and the annoyance of her enemies.

There is still another light in which this momentous question may be considered, with reference to the es­tablished law of nations. It is in the power of England to exclude America or any other nation from trading with herself, and it is in the power of France to do the same. Suppose, then, that both nations had mu­tually agreed to treat America in this manner, could she have ventured to complain? But it is the same thing whether these powers do so directly, and in con­junction, or indirectly by means not less efficacious; whether they exclude the Americans by the operation of a peaceful league between themselves, or by a series of measures adopted during war. If France, by attempting to exclude all neutrals from British ports, communicated to her enemies a right to retaliate, can the Americans interfere; or are they in a worse condition than if the belligerents had separately, and in a time of profound peace, determined to renounce all commercial intercourse with them? Surely not; they could not, with the slightest appearance of justice, complain; they could not demand that their condition should be improved by a state of European warfare; they could not claim the forbearance of England towards her enemies, for the sole purpose of conferring a favor upon neutrals; they could not, in short, upon any sound principle, object to the Orders in Council.

Different opinions were entertained on the question as to their expediency; and although these famous measures are said to have been, in the first instance, strongly pressed upon ministers by the mercantile interest, there can be no doubt that the government was in some measures deserted by this powerful body, before the Orders in Council were finally repealed. The discussions which at intervals ensued on this subject, were signalized by the uncommon zeal and acuteness of the advocates on both sides; and an account of them, in the order in which they occurred, will, it is believed, form an interesting subject to introduce the history of the war, and will tend to exhibit the agitated state of the public mind on this question, at this period in Great Britain; and show from whence the American government inferred the extreme poverty of the British mercantile and manufacturing interests, from the effect of those edicts.