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 In spite of Madison and his proclamations, West Florida was not a part of Louisiana; Napoleon had not withdrawn his decrees,—and Congress was unwilling to support either assertion.
Unless the Berlin and Milan Decrees were repealed Nov. 1, 1810, as Cadore’s letter was held to promise, neither President nor Congress could reasonably take the ground that Cadore’s letter, of itself, revived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