The chief present interest in this question, referring as it does to an obsolete colonial policy, is as illustrative of one of those dead-locks, which, occurring at a critical moment, when passion or interest is aroused, offer no solution but by war. It was useless to point out that Great Britain relaxed in every direction her own peace regulations, for the advantage of British commerce in the present contest. The reply was perfectly apt, that she did not dispute the right of her enemy to avail himself of any help the neutral could give; she only asserted the determination not to permit the neutral to extend it with impunity. There was no doubt, in the mind of any considerable body of Englishmen, as to the perfect soundness of the English doctrine. Lord Howick, who, as Mr. Grey, had embarrassed his party in 1792 by the exuberance of his liberalism, [303] as foreign minister in 1807 wrote: "Neutrality, properly considered, does not consist in taking advantage of every situation between belligerent states by which emolument may accrue to the neutral, whatever may be the consequences to either belligerent party; but in observing a strict and honest impartiality, so as not to afford advantage in the war to either; and, particularly, in so far restraining its trade to the accustomed course which it held in time of peace, as not to render assistance to one belligerent in escaping the effects of the other's hostilities." [304] An agreement among any number of the subjects of the interested nation proves nothing as to the right of the question, but the irreconcilable divergence of views at this time shows most clearly the necessity, under which every country lies, to be ready to support its own sense of its rights and honor by force, if necessary.
Under the order of November 6, some hundreds of American ships were seized and brought into West Indian ports by British cruisers. [305] The application of the order to them was, however, liable to two serious objections, even admitting the principle. In the first place, it was made without warning, under a rule that was at least not generally accepted; and in the second place, the trade between the French West India Islands and the United States had been permitted, before the war, in vessels of sixty tons and upwards. [306] In the year ending September 30, 1790, fifty-seven thousand tons of American shipping entered home ports from the French colonies. The trade, therefore, was one that existed prior to the war, and so did not come under the rule of 1756. [307] The order of November 6 was not made public until nearly the end of the year; the United States minister in London not receiving a copy until Christmas Day. He hastened at once to protest, but before he could obtain an audience a second was issued, January 8, 1794, revoking the former and limiting the operations of the rule to vessels bound from the colonies direct to Europe. Although the principle was maintained by the new order, and not admitted by the United States, still, as their own trade was excepted, much dissatisfaction was removed.
The serious nature of the difficulties that had already arisen determined the government to send an extraordinary envoy to England. John Jay was nominated to this office, and reached London in June, 1794. The British government, having already receded from its first position, as well as revoked the order of June 8, 1793, for the seizure of provisions, found no difficulty in assuming a conciliatory attitude. The result of Jay's mission was a treaty of Commerce and Navigation, concluded November 19, 1794, the first contracted between the two countries since the separation. The injuries done to American commerce, under the orders of November 6, were to be submitted to a joint commission. The report of the latter was not made until 1804, but by it compensation was made for most of the seizures; and it was claimed in the following year by Mr. Monroe, then envoy in London, that the decision of the commission definitely disposed of the principle of the Rule of 1756. It does not appear, however, that its power extended further than the settlement of the cases. There, its decision was to be final; but it had no power to commit either government to any general principle of international law not otherwise established. [308] The Rule of 1756 was not mentioned in the treaty, and the failure to do so may be construed as a tacit acquiescence, or at least submission, on the part of the United States. [309] On the other hand, considerable commercial advantages were obtained. Great Britain conceded to American ships the privilege of direct trade between their own country and the British East and West Indies, but they were precluded from carrying the produce of those colonies to other foreign ports. Indeed, so great was the anxiety of the British ministers to prevent coffee and sugar from being taken to Europe, indirectly, by neutral ships, that they insisted upon, and Jay admitted, a stipulation that while the trade with the British West Indies was permitted, the United States would not allow the carrying of any molasses, sugar, coffee, cocoa, or cotton in American vessels to any other part of the world than to the United States. This would have stopped a profitable trade already open to American merchants, who first imported, and then re-exported to France, the produce of the French islands; the broken voyage being considered to purge the origin of the commodities. This article (the twelfth) was accordingly rejected by the Senate, and only as thus modified was the treaty ratified by both powers.
The French government had viewed with distrust the negotiation between Great Britain and the United States. Although assured by Mr. Jay, through the American minister at Paris, that the treaty contained an express stipulation guarding the existing conventions between France and his own country, the Directory had the insolence to demand a copy of the instrument, to which it considered itself entitled, although it had not yet been communicated to the United States government. When the terms finally became known, its indignation passed bounds. The principal points to which it took exception were two, wherein the United States admitted conditions favoring the interests of belligerents relatively to neutrals, and against which the chief efforts of the weaker maritime states had been addressed. The first of these was the well-settled principle that a neutral ship did not protect property belonging to an enemy, laden on board it. The United States had always admitted this as valid, while trying to introduce, as an innovation, the contrary rule. In the treaty of 1778 with France, the two countries had stipulated that in any future war in which one of them should be engaged the belligerent should respect his enemy's property, if under the flag of the other party to the compact; but the United States did not think that this agreement between two nations overturned for all others a settled usage. The interests of Great Britain indisposed her to accept the proposed change, and the old principle was explicitly accepted in the seventeenth article of Jay's treaty. The other point objected to by France referred to the definitions of contraband of war. This has always been, and still is, one of the most difficult problems of international law; for an article may be of the first importance in the wars of one age or one country, and of slight consequence in another century or a different scene. By Jay's treaty the United States allowed that naval stores were, and under some circumstances provisions might be, contraband of war, and therefore liable to seizure. A free trade in these articles was of great importance to the Americans; but they were weak then, as in a military sense they, with far less excuse, are now; and then, as now, they must submit in questions of doubtful right. The material interests of United States citizens, as distinguished from the national self-respect, were in part saved by Great Britain undertaking to pay for provisions when seized as contraband. All these conditions bore against the wishes of the French, who regarded the Americans as owing an undischarged debt of gratitude to them for the scanty, though certainly most important, aid extended in the Revolutionary struggle by the monarch whom his people had since beheaded; and from this time the arrogance with which the French government had treated that of the United States became tinged with acrimony. It refused to see the difficulties and weakness of the new and still scarcely cemented body of states; or that, indirectly, the bargain struck by the latter was upon the whole as advantageous to France herself as could be expected, when Great Britain had an absolute control over the sea and all that floated upon it. To imperious rebukes and reproaches succeeded a series of measures, outraging neutral and treaty rights, which finally led to hostilities between the two countries.
From the time of Jay's treaty to the peace of Amiens, and until the year 1804 in the following war, the relations between Great Britain and the United States remained on a fairly settled basis. Innumerable vexations, indeed, attended neutral commerce at the hands of cruisers who were willing on slight grounds to seize a prize, taking the chance of the courts deciding in their favor, and the delays of prize courts added greatly to the annoyance; but upon the whole American trade throve greatly. In June, 1797, the Secretary of State reported, in reply to a resolution of the House, that "captures and losses by British cruisers, it is presumed, have not been numerous; for the citizens of the United States having, these three years past, been accustomed to look to the government for aid in prosecuting these claims, it is not to be doubted that, generally, these cases have been reported to the Department." In 1801 there was an outbreak of lawless seizure in the West Indies. [310] The American vessels engaged in that trade were small, and, as legal expenses were the same for a large as for a small prize, the cost of a contest amounted to a sum very disproportionate to the value of the ship; so the captors hoped, by the well-known delays of procedure, to extort a compromise. An abuse of this kind, however outrageous, is different in principle from the direct action of a government; nor are such cases the only ones in which men have been willing to take dishonest advantage of the imperfections, ambiguities, or delays of the law. [311] The Secretary of State, in transmitting a report on the subject to the House of Representatives, said, "Neither the communications from our minister at London, nor my conversations with the Chargé d'Affaires of his Britannic Majesty in the United States, would lead to an opinion that any additional orders have lately been given by the British government, authorizing the system of depredation alluded to." [312]
In fact, at this time Pitt's government seems to have considered all trade, which did not go direct to hostile countries, an advantage to Great Britain, and especially if it could be drawn to pass through her own ports. Accordingly, in January, 1798, a further relaxation of the Rule of 1756 was promulgated, extending to European neutrals the concession made in 1794 to the United States. British cruisers were now directed not to capture neutral ships, bound from the hostile colonies to Europe and laden with colonial produce, provided the latter had become neutral property and its destination was to their own country, or to a port of Great Britain. The final clause foreshadowed the policy of the Orders in Council of ten years later, towards which Great Britain, under the stress of war, was steadily gravitating. The law of self-preservation, divined by the instinct of the state, demanded that the United Kingdom should become, for that war, the storehouse of the world's commerce. The more thriving that commerce, the better for her, if it could be concentrated in her own borders. Thus France and the whole world should become tributary to a wealth and to a power by which, not Great Britain only, but the world should be saved. It was a great conception, of slow growth and gradual realization; it was disfigured in its progress by imperfections, blunders, and crimes; but it was radically sound and in the end victorious, for upon Great Britain and upon commerce hung the destinies of the world.
The action of France towards neutral, and especially towards American, vessels reflected the instability and excitement of the successive French governments, the violent passions of the time, and the uncertainty necessarily attendant upon the course of a nation which, having cut adrift from fixed principles and precedents, is guided only by changing impressions of right and wrong. The decree of the 9th of May, 1793, arresting vessels laden with provisions or carrying enemy's goods, was revoked as regards the United States on the 23d of the same month, because contrary to the treaty of 1778. On the 28th, five days later, the revocation was revoked, and the original order established. [313] On the first of July the decision was again reversed and the treaty ordered to be observed; notwithstanding which the United States minister found it impossible to obtain the release of vessels seized contrary to its terms, and on the 27th of the month the last decision was again repealed. [314] On the 22d of September the American minister writes: "I understand it is still in contemplation to repeal the decree I complained of, and that in the mean time it has not been transmitted to the tribunals. In effect, it can do very little harm; because the fleets of this country are confined by the enemy, and the privateers by a decree of the Convention." [315] Here matters rested during the Reign of Terror and until November 15, 1794, after the fall of Robespierre, when the Directory issued its first edict on the subject; reiterating that enemy's goods under the neutral flag would be considered liable to seizure, until the powers, enemies of France, should declare French property free on board neutral ships. This made the treatment of cargoes on American vessels depend, not upon the formal engagements of France with the United States, but upon the conduct of Great Britain; and it was succeeded, on the 3d of January, 1795, by a decree of revocation. Enemy's goods under neutral flags now remained exempt from capture until the 2d of July, 1796; when proclamation was issued, notifying neutral powers that the ships of the French Republic would be used against their merchant vessels, were it for the purpose of confiscation, search or detention, in the same manner that they suffered the English to act in regard to them. Great Britain was thus made supreme arbiter of the conduct of France towards neutrals.
This last step of the French government was directly traceable to its dissatisfaction with Jay's treaty, the ratifications of which had been exchanged at London on the 28th of October, 1795. On the 16th of February, 1796, the Minister of Foreign Affairs told Mr. Monroe, the American minister, that his government considered the alliance between the two countries, formed by the treaty of 1778, to be terminated, ipso facto, by Jay's treaty; and on the 7th of October he was further informed that the minister to the United States had been recalled and would not be replaced. Meanwhile President Washington, being dissatisfied with Monroe's conduct, had summoned him home and sent out Mr. Pinckney as his relief; but the Directory, on the 11th of December, refused to receive any minister plenipotentiary from the United States until the grievances it had alleged were redressed, [316] and on the 25th of January, 1797, Pinckney was ordered to leave the country as an unauthorized foreigner.
France was now fully embarked on a course of violence toward the United States, which arose, not from any reasonable cause of discontent given, but from the disposition, identical with that shown toward the weaker European nations, to compel all countries to follow the dictates of the French policy. The utterly loose terms of the decree of July 2, 1796, authorized the seizure of any neutral vessel by a French captain, if, in his judgment, the conduct of Great Britain toward the neutral justified it; and left the ultimate fate of the prize to a tribunal governed only by its own opinion upon the same subject. "You are mistaken," said a French deputy, "if you think that a privateer sails furnished with instructions from the Minister of Marine, who ought to direct their action. The instructions are drawn up by his owners; they indicate to the captain what he may seize and what release. They compile for him his duties under all the rules, under all the laws, contradictory or otherwise, from the year 1400 up to the law of Nivôse 29, An 6" (Jan. 18, 1798). [317]
In the West Indies the French agents, practically removed from all control of the home government by the British command of the sea, issued on the 27th of November, 1796, a decree for the capture of Americans bound to, or coming from, British ports. They had already, on the first of August, directed that all vessels having contraband goods on board should be seized and condemned, whatever their destination, and although the accepted law condemned only the contraband articles themselves, not the ship nor the rest of the cargo. On the first of the following February the same commissioners ordered the capture of all neutrals sailing for the French islands which had surrendered to the enemy, and declared them good prize. That these acts fairly represented the purpose of the Directory may be inferred from the capture of American ships in European waters under the decree of July 2, and from the fact that the French consuls at Malaga and Cadiz interpreted the decree to authorize seizure and condemnation for the single circumstance of being destined for a British port. [318] Over three hundred American vessels were thus seized, and most of them condemned. Envoys sent from the United States to treat concerning these matters said, in October, 1797, that France had violently taken from America over fifteen million dollars. [319] "At no period of the war," wrote they again, February 7, 1798, "has Britain undertaken to exercise such a power. At no period has she asserted such a right." [320] "Was there ever anything," said the deputy before quoted, "like the injustice of the condemnations in the Antilles?"