The legitimacy of the blockade of May 16, 1806, was afterwards sharply contested by the United States. There was no difference between the two governments as to the general principle that a blockade, to be lawful, must be supported by the presence of an adequate force, making it dangerous for a vessel trying to enter or leave the port. "Great Britain," wrote Madison, "has already in a formal communication admitted the principle for which we contend." The difficulty turned on a point of definition, as to what situation, and what size, of a blockading division constituted adequacy. The United States authorities based themselves resolutely on the position that the blockaders must be close to the ports named for closure, and denied that a coast-line in its entirety could thus be shut off from commerce, without specifying the particular harbors before which ships would be stationed. Intent, as neutrals naturally are, upon narrowing belligerent rights, usually adverse to their own, they placed the strictest construction on the words "port" and "force." This is perhaps best shown by quoting the definition proposed by American negotiators to the British Government over a year later,—July 24, 1807. "In order to determine what characterizes a blockade, that denomination is given only to a port, where there is, by the disposition of the Power which blockades it with ships stationary, an evident danger in entering."[130] Madison, in 1801, discussing vexations to Americans bound into the Mediterranean, by a Spanish alleged blockade of Gibraltar, had anticipated and rejected the British action of 1806. "Like blockades might be proclaimed by any particular nation, enabled by its naval superiority to distribute its ships at the mouth of that or any similar sea, or across channels or arms of the sea, so as to make it dangerous for the commerce of other nations to pass to its destination. These monstrous consequences condemn the principle from which they flow."[131]
The blockade of May 16 offered a particularly apt illustration of the point at issue. From the entrance of the English Channel to the Straits of Dover, the whole of both shore-lines was belligerent. On one side all was British; on the other all French. Evidently a line of ships disposed from Ushant to the Lizard, the nearest point on the English coast, would constitute a very real danger to a vessel seeking to approach any French port on the Channel. Fifteen vessels would occupy such a line, with intervals of only six miles, and in combination with a much smaller body at the Straits of Dover would assuredly bring all the French coast between them within the limits of any definition of danger. That these particular dispositions were adopted does not appear; but that very much larger numbers were continually moving in the Channel, back and forth in every direction, is certain. As to the remainder of the coast declared under restriction, from the Straits to the Elbe,—about four hundred miles,—with the great entrances to Antwerp, Rotterdam, Amsterdam, the Ems, the Weser, and the Elbe, there can be no doubt that it was within the power of Great Britain to establish the blockade within the requirements of international law. Whether she did so was a question of fact, on which both sides were equally positive. The British to the last asserted that an adequate force had been assigned, "and actually maintained,"[132] while the blockade lasted.
The incident derived its historical significance chiefly from subsequent events. It does not appear at the first to have engaged the special attention of the United States Government, the general position of which, as to blockades, was already sufficiently defined. The particular instance was only one among several, and interest was then diverted to two other leading points,—impressment and the colonial trade. Peculiar importance began to attach to it only in the following November, when Napoleon issued his Berlin decree. Upon this ensued the exaggerated oppressions of neutral commerce by both antagonists; and the question arose as to the responsibility for beginning the series of measures, of which the Berlin and Milan Decrees on one side, and the British Orders in Council of 1807 and 1809 on the other, were the most conspicuous features. Napoleon contended that the whole sprang from the extravagant pretensions of Great Britain, particularly in the Order of May 16, which he, in common with the United States, characterized as illegal. The British Government affirmed that it was strictly within belligerent rights, and was executed by an adequate force; that consequently it gave no ground for the course of the French Emperor. American statesmen, while disclaiming with formal gravity any purpose to decide with which of the two wrong-doers the ill first began,[133] had no scruples about reiterating constantly that the Order of May 16 contravened international right; and in so far, although wholly within the limits of diplomatic propriety, they supported Napoleon's assertion. Thus it came to pass that the United States was more and more felt, not only in Europe, but by dissentients at home, to side with France; and as the universal contest grew more embittered, this feeling became emphasized.
While these discussions were in progress between Monroe and Fox, the United States Government had taken a definite step to bring the dispute to an issue by commercial restriction. The remonstrances from the mercantile community, against the seizures under the new ruling as to direct trade, were too numerous, emphatic, and withal reasonable, to be disregarded. Congress therefore, before its adjournment on April 23, 1806, passed a law shutting the American market, after the following November 15, against certain articles of British manufacture, unless equitable arrangements between the two countries should previously be reached. This recourse was in line with the popular action of the period preceding the War of Independence, and foreshadowed the general policy upon which the Administration was soon to enter on a larger scale. The measure was initiated before news was received of Pitt's death, and the accession of a more friendly ministry; but, having been already recommended in committee, it was not thought expedient to recede in consequence of the change. At the same time, the Administration determined to constitute an extraordinary mission, for the purpose of "treating with the British Government concerning the maritime wrongs which have been committed, and the regulation of commercial navigation between the parties." For this object Mr. William Pinkney, of Maryland, was nominated as colleague to Monroe, and arrived in England on June 24.
The points to be adjusted by the new commissioners were numerous, but among them two were made pre-eminent,—the question of colonial trade, already explained, and that of impressment of seamen from American vessels. These were named by the Secretary of State as the motive of the recent Act prohibiting certain importations. The envoys were explicitly instructed that no stipulation requiring the repeal of that Act was to be made, unless an effectual remedy for these two evils was provided. The question of impressment, wrote Madison, "derives urgency from the licentiousness with which it is still pursued, and from the growing impatience of this country under it."[134] When Pinkney arrived, the matter of the colonial trade had already been settled indirectly by the Order of May 16, and it was soon to disappear from prominence, merged in the extreme measures of which that blockade was the precursor; but impressment remained an unhealed sore to the end.
To understand the real gravity of this dispute, it is essential to consider candidly the situation of both parties, and also the influence exerted upon either by long-standing tradition. The British Government did not advance a crude claim to impress American seamen. What it did assert, and was enforcing, was a right to exercise over individuals on board foreign merchantmen, upon the high seas, the authority which it possessed on board British ships there, and over all ships in British ports. The United States took the ground that no such jurisdiction existed, unless over persons engaged in the military service of an enemy; and that only when a vessel entered the ports or territorial waters of Great Britain were those on board subject to arrest by her officers. There, as in every state, they came under the law of the land.
The British argument in favor of this alleged right may be stated in the words of Canning, who became Foreign Secretary a year later. Writing to Monroe, September 23, 1807, he starts from the premise, then regarded by many even in America as sound, that allegiance by birth is inalienable,—not to be renounced at the will of the individual; consequently, "when mariners, subjects of his Majesty, are employed in the private service of foreigners, they enter into engagements inconsistent with the duty of subjects. In such cases, the species of redress which the practice of all times has admitted and sanctioned is that of taking those subjects at sea out of the service of such foreign individuals, and recalling them to the discharge of that paramount duty, which they owe to their sovereign and to their country. That the exercise of this right involves some of the dearest interests of Great Britain, your Government is ready to acknowledge.... It is needless to repeat that these rights existed in their fullest force for ages previous to the establishment of the United States of America as an independent government; and it would be difficult to contend that the recognition of that independence can have operated any change in this respect."[135]
Had this been merely a piece of clever argumentation, it would have crumbled rapidly under an appreciation of the American case; but it represented actually a conviction inherited by all the British people, and not that of Canning only. Whether the foundation of the alleged right was solidly laid in reason or not, it rested on alleged prescription, indorsed by a popular acceptance and suffrage which no ministry could afford to disregard, at a time when the manning of the Royal Navy was becoming a matter of notorious and increasing difficulty. If Americans saw with indignation that many of their fellow-citizens were by the practice forced from their own ships to serve in British vessels of war, it was equally well known, in America as in Great Britain, that in the merchant vessels of the United States were many British seamen, sorely needed by their country. Public opinion in the United States was by no means united in support of the position then taken by Jefferson and Madison, as well as by their predecessors in office, proper and matter-of-course as that seems to-day. Many held, and asserted even with vehemence, that the British right existed, and that an indisputable wrong was committed by giving the absentees shelter under the American flag. The claim advanced by the United States Government, and the only one possible to it under the circumstances, was that when outside of territorial limits a ship's flag and papers must be held to determine the nation, to which alone belonged jurisdiction over every person on board, unless demonstrably in the military service of a belligerent.
As a matter involving extensive practical consequences, this contention, like that concerning the colonial trade, had its origin from the entrance into the family of European nations of a new-comer, foreign to the European community of states and their common traditions; indisposed, consequently, to accept by mere force of custom rules and practices unquestioned by them, but traversing its own interests. As Canning argued, the change of political relation, by which the colonies became independent, could not affect rights of Great Britain which did not derive from the colonial connection; but it did introduce an opposing right,—that of the American citizen to be free from British control when not in British territory. This the United States possessed in common with all foreign nations; but in her case it could not, as in theirs, be easily reconciled with the claim of Great Britain. When every one whose native tongue was English was also by birth the subject of Great Britain, the visitation of a foreign neutral, in order to take from her any British seamen, involved no great difficulty of discrimination, nor—granting the theory of inalienable allegiance—any injustice to the person taken. It was quite different when a large maritime English-speaking population, quite comparable in numbers to that remaining British, had become independent. The exercise of the British right, if right it was, became liable to grievous wrong, not only to the individuals affected, but to the nation responsible for their protection; and the injury was greater, both in procedure and result, because the officials intrusted with the enforcement of the British claim were personally interested in the decisions they rendered. No one who understands the affection of a naval officer for an able seaman, especially if his ship be short-handed, will need to have explained how difficult it became for him to distinguish between an Englishman and an American, when much wanted. In short, there was on each side a practical grievance; but the character of the remedy to be applied involved a question of principle, the effect of which would be unequal between the disputants, increasing the burden of the one while it diminished that of the other, according as the one or the other solution was adopted.
Except for the fact that the British Government had at its disposal overwhelming physical force, its case would have shared that of all other prescriptive rights when they come into collision with present actualities, demanding their modification. It might be never so true that long-standing precedent made legal the impressment of British seamen from neutral vessels on the open sea; but it remained that in practice many American seamen were seized, and forced into involuntary servitude, the duration of which, under the customs of the British Navy, was terminable certainly only by desertion or death. The very difficulty of distinguishing between the natives of the two countries, "owing to similarity of language, habits, and manners,"[136] alleged in 1797 by the British Foreign Secretary, Lord Grenville, to Rufus King, the American Minister, did but emphasize the incompatibility of the British claim with the security of the American citizen. The Consul-General of Great Britain at New York during most of this stormy period, Thomas Barclay, a loyalist during the War of Independence, affirms from time to time, with evident sincerity of conviction, the wishes of the British Government and naval officers not to impress American seamen; but his published correspondence contains none the less several specific instances, in which he assures British admirals and captains that impressed men serving on board their ships are beyond doubt native Americans, and his editor remarks that "only a few of his many appeals on behalf of Americans unlawfully seized are here printed."[137] This, too, in the immediate neighborhood of the United States, where evidence was most readily at hand. The condition was intolerable, and in principle it mattered nothing whether one man or many thus suffered. That the thing was possible, even for a single most humble and unknown native of the United States, condemned the system, and called imperiously for remedy. The only effectual remedy, however, was the abandonment of the practice altogether, whether or not the theoretic ground for such abandonment was that advanced by the United States. Long before 1806, experience had demonstrated, what had been abundantly clear to foresight, that a naval lieutenant or captain could not safely be intrusted with a function so delicate as deciding the nationality of a likely English-speaking topman, whom, if British, he had the power to impress.