CHAPTER XX.
Hardly had Henry Clay seated himself again in the Speaker’s chair and appointed the select committee on military affairs, when the process of reorganizing the government on a new and energetic footing began. November 19, David R. Williams, chairman of the military committee, reported a bill raising the soldiers’ pay to eight dollars a month, and exempting them from arrest for debt. At any previous moment in national history such a bill would have aroused paroxysms of alarm, but the Republicans of 1812 were obliged to accept it without a protest, and with grave doubts whether it would prove effective; while the Federalists tried only to strike out the clause which allowed minors above eighteen years of age to enlist without the consent of their parents, guardians, or masters. On this subject Josiah Quincy made a vehement speech, which ruffled the temper of David R. Williams. Quincy was defeated in the House; but the Senate by a vote of twenty-six to four saved the rights of parents, guardians, and masters, without reducing the age of enlistments. The bill became law December 12, and was quickly followed by another bill raising the bounty and organizing the recruiting service.
Before this matter was finished, the naval committee reported a bill for increasing the navy; and the two Houses vied with one another in their enthusiasm for this recently unpopular branch of the public service. Here and there an old Republican protested that he could not in conscience violate every fixed idea of his political existence by voting for a large naval establishment; but when the House was asked to appropriate money for four ships-of-the-line and six forty-four-gun frigates, although the Federalists were much divided as to the wisdom of building seventy-fours, and debated the subject at great length with contradictory votes, the House closed the discussion, December 23, by passing the bill as it stood. In the minority of fifty-six were several warm friends of the navy, who thought Congress needlessly extravagant.
“Frigates and seventy-fours,” wrote Jefferson,[376] “are a sacrifice we must make, heavy as it is, to the prejudices of a part of our citizens.” No one who saw the quickness of this revolution could doubt that whatever evils war might cause, it was a potent force to sweep nations forward on their destined way of development or decline. Madison, Monroe, Gallatin, as well as Jefferson and the whole Republican party accepted a highly paid mercenary army, a fleet of ships-of-the-line, a great national debt at high interest, and a war of conquest in coincidence with the wars of Napoleon, on ground which fifteen years before had been held by them insufficient to warrant resistance to France.
More serious suggestions were offered by the failure of Congress to act its intended part as the controlling branch of government. The founders of the Constitution had not expected the legislative power whose wishes the President was created to carry out, and which was alone responsible for the policy of government, to prove imbecile; yet every one saw that Congress was sinking, or had already sunk, low in efficiency. Before the declaration of war, this condition of the Legislature was concealed by the factiousness which caused it; but the first meeting of Congress during the war disclosed one of the commonplaces of history,—that no merely legislative body could control a single, concentrated Executive, even though it were in hands as little enterprising as those of President Madison. The declaration of war placed Congress in a new position. Although the sessions were unchanged in character, they became suddenly unimportant compared with Executive acts. Congress no longer counteracted directly the Executive will, or refused what the President required; the wishes expressed in his Annual Message were for the first time carried out like orders. On the other hand the country was excited by a reorganization of the Cabinet, and Congress seemed to feel itself superfluous, while the President decided upon the conflicting claims of politicians to act as channels for dispensing his power.
The exceptions to the newly-established discipline were chiefly found among the war leaders themselves, who had done most to make it necessary. As the demands of the government became greater, they interfered with favorite interests or prejudices. This was particularly the case with the required financial measures. Gallatin made in his annual report no direct recommendations; he contented himself with a brief statement of receipts and estimates; but in a letter to the Committee of Ways and Means, dated November 18, he suggested a resource which might to the extent of a few millions relieve the Treasury from its immediate burden. The resource was accidental. Immediately after the repeal of the British Orders in Council, British merchandise to a great amount was shipped to America in reliance on the Act of Congress of March 2, 1811, which declared that the repeal of the British Orders, at any time, should of itself put an end to the American non-importation. The declaration of war, five days before the British repeal, rendered inoperative the Act of March 2, 1811, so that the importers became liable not only to capture by the public and private armed vessels of both countries, but also to confiscation of their property by the government on its arrival in the United States. Both events occurred. Some vessels were captured at sea, and sent in; but these and all the rest were alike seized on their arrival, and libelled by the government without distinction. The question then arose, what should be done with them.
Under the law of forfeiture, one half was vested in the custom-house officers or informers, the other half in the United States; and the power to remit, in whole or in part, was vested in the Secretary of the Treasury. No one expected the government to exact the full forfeiture, for the importations had been made in good faith, and the property was chiefly American. As though to protect the owners the courts interfered, and in certain districts compelled the collectors to release the cargoes on receiving bonds to their appraised value. The action of the courts obliged the President to make the rule general. All the cargoes were released, the goods passed into the market, and only bonds to the amount of near eighteen million dollars, besides duties to the amount of five millions, remained in charge of the Treasury. The five millions were safe; but the bonds were by no means as good as the gold.
Gallatin expressed to the Committee of Ways and Means the opinion, that in view of the extraordinary profits of the importers, who had no right to any profit at all, substantial justice would be done by remitting that half of the forfeitures which would otherwise fall to the collectors, and by exacting for the public only an equivalent for unexpected war profits. His plan aimed at placing the importers, as nearly as possible, in the condition they had expected, on the withdrawal of the non-importation, when they ordered the importations to be made.[377]
Gallatin’s views were explained more fully in the course of the debate. The importers had been aware of their risk, and had not taken it without much hesitation, after consulting Jonathan Russell, then in charge of the legation at London. The Government held non-importation to be more effective than armies or fleets in bringing England to terms, and the non-importation was still in force as a war measure. Gallatin’s orders, which admitted these goods for sale, violated the law and the policy of government; but if the goods had been admitted, as was the case, at least they should not be used to diminish the government’s receipts from internal taxation. The duties already levied to the amount of five million dollars did not exceed twenty-five per cent on their cost, while the goods themselves commanded war prices, and no other goods of the same kind were allowed to enter the country. The profits could hardly fail to be great, and no small part of these profits, besides the invested capital, was British. Finally, within the wider questions of equity, law, and policy remained the fact that bankruptcy in one form or another stood directly before the Treasury, and that four or five million dollars might be the means of national salvation.
If objections were to be made, one might have supposed that Cheves, Clay, and Calhoun would have resisted Gallatin’s idea because it offered too much encouragement to mercantile speculation resting on violation of law; but nothing was more uncertain than the moral sensitiveness of a political body. What seemed to one statesman a right and proper act seemed evident dishonesty to another; nor had the science of ethics made sensible progress toward the invention of practical tests. Statesmen who saw nothing improper in the seizure of West Florida, the attacks on East Florida, or the campaign of Tippecanoe; who maintained the doctrine that the admission of Louisiana dissolved the Union, or that Champagny’s letters satisfied the demands of government and the Acts of Congress,—war Democrats and Federalists alike, representing the morality and the energy of the country, joined in attacking Gallatin’s plan. Langdon Cheves, chairman of the Ways and Means Committee, after reporting from the committee, November 25, a resolution to leave the subject to the Secretary of the Treasury, began a speech, December 4, by declaring that he trembled for the consequences of the measure; it would shake the party to pieces; it would make angels weep.
“I trust in God,” cried Cheves, “no man who may be thus consigned by this House to the Secretary of the Treasury to await his decision and to supplicate his clemency, will so far forget what he owes to his own true interests and to his character as a free citizen as to give an equivalent for that sum of money which may be demanded as the government’s share of the profits. I would rather see the objects of the war fail,—I would rather see the seamen of the country impressed on the ocean and our commerce swept from its bosom,—than see the long arm of the Treasury indirectly thrust into the pocket of the citizen through the medium of a penal law.”
Henry Clay admitted and favored total confiscation, but not the idea of a compromise:—
“The law ought to be enforced or not. He thought a compromise in the case dangerous and undignified; indeed, he felt shocked at the idea of an equivalent. Already are our laws too openly violated or fraudulently eluded. Shall we degrade them still further by carrying them into the market and fixing a price upon their violation? Extend the principle of an equivalent, from cases of prohibition merely, to instances of moral turpitude,—to felony and homicide,—and every gentleman will see its enormity. No, sir! Let us not pollute our hands with this welt-gild!”
Calhoun would not allow that the government could properly act at all:—
“If our merchants are innocent,” he said, “they are welcome to their good fortune; if guilty, I scorn to participate in its profits. I will never consent to make our penal code the basis of our Ways and Means, or to establish a partnership between the Treasury and the violators of the Non-importation Law.”
William Lowndes fortified his position by an argument showing that “if the plan of confiscation and of a rigid execution of the law were dismissed, no just principles of policy and not even the interests of the Treasury could sanction an exaction which would resolve itself into a tax.” Josiah Quincy found himself for once in accord with his chief opponents, and declared that in his opinion highway robbery stood a little higher in point of courage, and was a little less in point of iniquity, than this Treasury attempt to make calumny the basis of plunder. Felix Grundy said: “Gentlemen have assumed a strange, high-minded position in this argument, the force of which, I confess, is beyond my comprehension.”
December 11 the House in Committee of the Whole, by a vote of fifty-two to forty-nine, rejected Gallatin’s suggestion. December 15 a bill came from the Senate remitting all forfeitures on goods owned by Americans and shipped from England before September 15, when the declaration of war became known there. After a sharp debate this bill passed by a vote of sixty-four to sixty-one,—Calhoun, Cheves, and Lowndes voting with the Federalists and securing its passage. This decision closed one source of revenue for the year.
The course taken by Cheves, Calhoun, and Lowndes was largely due to their dislike of the non-importation system on which the proposed forfeiture rested. They wished to abolish commercial restrictions; they were anxious to avoid internal taxation, and to supply the Treasury with revenue by admitting British goods under heavy duties. So earnest was Cheves in pursuit of this object that he hardly tolerated any other, and made no secret of his hope that the failure to exact these forfeitures and to lay internal taxes would compel Congress to depend upon imports for resources.
“How are the exigencies of the government for the next year to be supplied?” he asked as early as December 4. “Is the deficiency to be derived from [internal] taxes? No! I will tell gentlemen who are opposed to them, for their comfort, that there will be no taxes imposed for the next year. It was said last session that you would have time to lay them for this session, but I then said it was a mistake. You now find this to be the fact. By your indecision then, when the country was convinced they were necessary, you have set the minds of the people against taxes; but were it otherwise, you have not time now to lay them for next year.”
Calhoun also laid down emphatic principles on this point, dwelling in strong language on what he held to be the radical error of Virginia statesmanship.
“At the end of the last session,” said Calhoun, December 8, “I recommended high duties as a substitute for the Non-importation Act. High duties have no pernicious effects, and are consistent with the genius of the people and the institutions of the country. It is thus we would combine in the highest degree the active resources of the country with the pressure on the manufactures of the enemy. Your army and navy would feel the animating effect.... The non-importation as a redress of wrongs is radically defective. You may meet commercial restrictions with commercial restrictions, but you cannot safely confront premeditated insult and injury with commercial restrictions alone.... It sinks the nation in its own estimation; it counts for nothing what is ultimately connected with our best hopes,—the Union of these States. Our Union cannot safely stand on the cold calculation of interest alone; it is too weak to withstand political convulsions; we cannot without hazard neglect that which makes man love to be a member of an extensive community,—the love of greatness, the consciousness of strength.”
The three South Carolinians—Calhoun, Cheves, and Lowndes—had a financial policy of their own, in which they received some private sympathy, if not much active support, from the Treasury. Gallatin, in his own way, stood in a position almost as solitary as that of John Randolph; but condemned as he was to support the burden of a war which Congress had insisted upon, with only such financial means as Congress left him, he could feel little sympathy with any financial scheme, for all were more or less clumsy and inefficient. As far as he could see, nothing but peace could save the Treasury. In June, at the time of declaring war, he urged taxation; but the party feared taxation, and preferred to wait the chances of military success. In December these expected successes turned into disasters; the country showed an unforeseen hostility to the war. Taxation might easily be fatal, for the war found little real support except in Kentucky, Tennessee, and the Southern States, precisely where internal taxation would excite deepest resistance. The war leaders would not hear of laying taxes at such a moment, and they had no great difficulty in carrying their point. Gallatin himself could afford to wait. The accidental importations from England after the repeal of the British orders brought five million dollars into the Treasury,—a sum so much greater than had been expected, and so ample for meeting the interest on old and new loans, that Gallatin could not think himself obliged to exhaust his influence and risk that of his party in order to wring taxes from a timid Congress. The secretary’s attitude brought upon him a fair and just rebuke from John Randolph, that he had trifled with the dignity of the House.[378] Had Gallatin been inclined to retort, he would have replied that so far as the Treasury knew, the House had no dignity to trifle with; but Gallatin never lost control of his temper or his tongue, and after having been the readiest and boldest adviser of his party he had become a master in the art of silence. He expressed once more his belief in the necessity of taxation;[379] but this done he let Congress go its own gait.
Cheves aspired to abolish the remains of Jeffersonian statesmanship,—non-importations, embargoes, and restrictions,—and to restore the freedom of commerce; and in support of this scheme he obtained from Gallatin a letter dated Feb. 9, 1813,[380] expressing the decided opinion that Congress must not only impose war taxes, both external and internal, but must also repeal the non-importation, if the increased expenditures authorized by law were to be met. February 15 Cheves introduced a bill carrying out the secretary’s opinion so far as to suspend the Non-importation Act in part, though continuing it against articles specially enumerated. Two days afterward the House, by a vote of sixty-nine to forty-seven, instructed the Committee of Ways and Means to report tax-bills, although Cheves complained that the instruction was deceptive, and that no system of taxation could possibly be adopted within the fortnight that remained of the session. Apparently Cheves looked on the motion as a manœuvre to save the Non-importation Act; but he could hardly have been prepared to see the Federalist member, Elisha Potter of Rhode Island, rise, February 20, and declare that his constituents had invested a capital of four or five million dollars in manufactures protected by non-importation, and that Cheves’s bill, sacrificing as it did the interests of the manufacturing States, ought not to pass.
Such a change of attitude foreshadowed a revolution. New England had her price. The system which Jefferson forced upon her at the cost of the Southern States had begun to work its intended effect. Under the pressure of Virginia legislation, New England was abandoning commerce and creating manufactures. While every Federalist newspaper in the country denounced the restrictive system without ceasing, nearly every Federalist in the House voted with Potter in its favor. By seventy-nine votes to twenty-four, the Committee of the Whole struck out Cheves’s proposed relaxation, and converted his bill into a measure for the stricter enforcement of non-importation. Cheves and Lowndes were then obliged to vote against their own bill, so amended, in a minority of forty-five to sixty-seven.
Nothing remained but to depend upon loans and call an extra session to consider the taxes. The loan bill, passed January 26, authorized the President to borrow sixteen million dollars on any terms he could obtain, provided only that the nominal capital might be repaid at the end of twelve years. Attempts to limit the rates of interest and discount were defeated, and the bill passed by a vote of seventy-five to thirty-eight. Another bill immediately followed, authorizing the issue of treasury notes bearing interest at five and two fifths per cent, to be redeemed in one year. Five millions in such notes were to be issued at all events, and five millions more in case the loan should prove less advantageous than the notes. By these means Congress proposed to supply the needed twenty-one million dollars, although no one could say with confidence how much these millions would cost, or whether they could be obtained at any price.
There ended the financial work of the session. The military and naval results were more considerable. Besides the Act increasing the soldiers’ pay to eight dollars a month, Congress authorized the President to raise twenty new regiments of infantry for one year’s service, with full pay, bounty of sixteen dollars, and invalid pensions of five dollars a month. Six new major-generals and an equal number of brigadiers were authorized February 24; the departments of the commissary and quartermaster-general were placed on a better footing; the general staff was organized with comparative liberality,—until, March 3, 1813, the last day of Madison’s first term, the President, who had begun his career of power in an Administration which in effect abolished army and navy, commanded a regular force consisting by law of fifty-eight thousand men,[381] and was surrounded by major-generals and brigadiers by the dozen, instead of the solitary brigadier Wilkinson who had been left to command the frontier garrisons of 1801, while four ships-of-the-line, six forty-fours, and six sloops-of-war were building to reinforce the six frigates and the rest of the navy actually in service; and in addition to all this, an unlimited order had been issued for flotillas on the lakes.
With each new Act, John Randolph showed how his old friends were giving the lie to their old political professions; but by common consent party consistency was admitted to be no longer capable of defence. The party which had taken power in 1801 to carry out the principle that the hopes of society and the rights of the States must not be risked by war for points of pride or profits of commerce, declared with equal energy in 1812 that the country had no choice but to sacrifice hopes and rights because England would not expressly abandon a point of pride. Doubtless this momentary position was far beyond the conscious convictions of the party, but it made a precedent; and although political parties were apt to think that precedents could be ignored, history seldom failed to show that they decided the course of law. As far as concerned the old Republican party, the triumph of the national movement was for the time complete.
Yet the government was not so rigid in its logic, even in regard to municipal legislation, as it professed to be. If the dispute about impressment was to be settled, it must be settled by a general consent to abandon the practice. Whether governments consented expressly or tacitly, by a preliminary agreement, by treaty, by legislation, or by simply ceasing to impress, was a matter of little concern provided the practice was stopped. The United States were not obliged to wage war on England or France merely because, under old international law, those governments claimed what they called a right to seize their subjects on the high seas. Indeed, the cause of war would not have been removed by an express surrender of impressment on the high seas, though it had been accompanied by an equally express surrender of the right of search. The difficulty lay deeper and extended further than the American flag had ability to go. Much the larger number of impressments took place on shore or within British waters. Many of the American seamen for whose sake the war continued to be fought were American only in the sense that they carried American papers. They were British-born, in British service, and were impressed in the grog-shops of London or Liverpool. The American government could hardly concede to its seamen the liberty refused to its ships,—of carrying double sets of papers, and appearing as American or British at will; yet if the American protection had legal meaning, it entitled the seaman to complete immunity, no matter where he might be, or might have been in the past, or might intend to be in the future, even though he had never been in the United States in his life. The British officer could not be allowed to disregard the protection, even though such a system would make seamen a privileged class, with double nationality and no allegiance.
Annoyed by this insuperable obstacle to an arrangement, Monroe offered the British government to prohibit by Act of Congress the employment of British seamen in the public or private marine of the United States.[382] The offer was meant as an inducement for England to sacrifice her seamen already naturalized in America, on the chance of recovering those who might not carry American papers; but it bore to England the look of an evasion, and was received by Lord Castlereagh in that sense.[383] The subject had reached this stage when it was brought before Congress by the President’s Annual Message, and was referred by the House to the Committee of Foreign Relations. January 29 Felix Grundy made a report from the committee,[384] doubtless written in concert with Monroe and intended to support his position, since it approved what the secretary had done and gave authority to his views. The report asserted with emphasis that impressment alone prevented an armistice. More than once, as though this were the weak point of the government’s situation, Grundy returned to the theme that impressment “must be provided for in the negotiation; the omission of it in a treaty of peace would not leave it on its former grounds,—it would in effect be an absolute relinquishment.”
The danger of thus committing the government to a sine qua non which might need to be abandoned was becoming more evident every day, for already Napoleon was known to have suffered some great disaster in Russia, and his power in Spain was evidently threatened with overthrow. After Napoleon should have been routed in Russia and Spain, and the American armies should have abandoned the hope of conquering Canada, the chance of driving England into an express surrender of impressments would vanish. Wisdom dictated caution; but Monroe’s letters and Grundy’s report, while committing the government to a sine qua non preliminary to negotiation, proposed to escape the inevitable difficulty by an expedient less dignified than the country had a right to expect. Grundy reported a bill to serve as the groundwork for peace.
This bill began by a prospective, reciprocal prohibition, “from and after the termination of a treaty of peace,” to employ on any vessel, public or private, any but actual citizens, “or persons who being resident within the United States at the time of such treaty, and having previously declared agreeably to existing laws their intention to become citizens of the United States, shall be admitted as such within five years thereafter in the manner prescribed by law.” With these exceptions, Congress was to dismiss all foreign seamen from the American service, and to forbid forever the sea as a livelihood to persons coming into the country with the intention of acquiring citizenship, after the treaty of peace.
The objections to this measure were evident. It seemed tacitly to admit the right of impressment; it denied to one class of citizens rights in which all others were protected, and its Constitutionality was at least doubtful; it trenched on Executive functions and the treaty-making power; it placed American merchants under great disadvantages, depriving them of seamen, and under many circumstances making it impossible for an American ship to return from a distant port. Yet perhaps its worst practical fault consisted in pressing upon England, as an ultimatum, terms of peace which she had again and again rejected and was certain to reject. Indeed, the only argument of weight advanced in favor of the bill was that its rejection by England would heal the divisions of America. Unfortunately, even this argument seemed to have little foundation.
The bill passed the House by a vote of eighty-nine to thirty-three, and February 12 went to the Senate. There Giles took it in hand, and after sharp opposition it was amended and passed, February 27, by a vote of eighteen to twelve. In its adopted form the Act did not contain the clause that roused most opposition, but reached the same result in a less direct way:—
“From and after the termination of the war,” ran the new statute, “it shall not be lawful to employ on board any of the public or private vessels of the United States any person or persons except citizens of the United States, or persons of color, natives of the United States.... No person who shall arrive in the United States from and after the time when this Act shall take effect shall be admitted to become a citizen of the United States who shall not for the continued term of five years next preceding his admission as aforesaid have resided within the United States, without being at any time within the said five years out of the territory of the United States.”
The subject of impressment was so difficult to understand, even in its simpler facts, that the practical workings of this measure could not be foreseen. No one knew how many naturalized British seamen were in the American service, or how many British seamen not naturalized; and there was no sufficient evidence to serve as the foundation for a probable guess as to the number of impressments from American ships, or how they were distributed among the three classes,—(1) native American citizens; (2) naturalized British seamen; and (3) seamen avowedly British subjects. According to a report made from the Department of State, Feb. 18, 1813,[385] the supposed number of seamen registered in the United States since 1796 amounted to about one hundred and forty thousand. The actual number in any one year was unknown. In 1805 Gallatin estimated them, from the registered tonnage, at fifty thousand.[386]
Foreign seamen served chiefly in the foreign trade; and since the registered tonnage in foreign trade increased from 750,000 tons in 1805 to 984,000 tons in 1810, the number of seamen increased proportionately from 45,000 to 60,000 or thereabout. In 1807 Gallatin estimated the increase at five thousand a year, more than half being British sailors.[387] Probably fifteen thousand seamen, or one fourth of the whole number employed in 1810,[388] were of foreign origin, and might or might not carry American papers. If they did not, the reason could only be that they knew the worthlessness of such papers. Genuine American protections could be bought in any large port for two dollars apiece, while forged protections were to be had by the gross.[389] A large proportion of the British seamen in American service carried no evidence of American citizenship.
According to Lord Castlereagh’s statement in Parliament, the number of seamen claiming to be Americans in the British service amounted to three thousand five hundred in January, 1811, and to something more than three thousand in February, 1813, at the time he was speaking.[390] Of these, he said, only about one in four, or some eight hundred, could offer proof of any sort, good or bad, of their citizenship; the others had no evidence either of birth or of naturalization in America. If this was true, and the closest American calculation seemed rather to favor Castlereagh’s assertion, the new Act of Congress sacrificed much to obtain little; for it authorized the President to expel from American service five or ten thousand seamen, and to forbid future employment or naturalization to all British seamen, if England in return would cease to employ five or six hundred impressed Americans.
The concession was immense, not only in its effect on legitimate American commerce and shipping, but also on the national character. America possessed certainly the right, which England had always exercised, of naturalizing foreign seamen in her service, and still more of employing such seamen without naturalization. In denying herself the practice she made a sacrifice much greater in material cost, and certainly not less in national character, than she ever made by tolerating impressments under protest. The impressments cost her about five hundred seamen a year, of whom only a fraction were citizens; of these such as were natives could in most cases obtain release on giving evidence of their citizenship, while five times the number of native British seamen annually deserted the British service for the American. Thus England was much the greater sufferer from the situation; and America preserved her rights by never for an instant admitting the British doctrine of impressment, and by retaining the ability to enforce at any moment her protest by war. All these advantages were lost by Monroe’s new scheme. Under the Act of 1813 America would save her citizens to whatever number they amounted, but she would do so by sacrificing her shipping, by abandoning the practice if not the right of employing and naturalizing British seamen, and by tacitly admitting the right of impressment so far as to surrender the use of undoubted national rights as an equivalent for it.
Numbers of leading Republicans denounced the measure as feeble, mischievous, and unconstitutional. Only as an electioneering argument against the extreme Federalists, and as a means of satisfying discontented Republicans, was it likely to serve any good purpose; but the dangers of discord and the general apathy toward the war had become so evident as to make some concession necessary,—and thus it happened that with general approval the law received the President’s signature, and the next day the Twelfth Congress expired. With it expired President Madison’s first term of office, leaving the country more than ever distracted, and as little able to negotiate as to conquer.
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