Facing the palpable fact that British seamen were deserting just when they were most needed and were making American merchantmen and frigates their asylum, the British naval commanders, with no very nice regard for legal distinctions, extended their search for deserters to the decks of American vessels, whether in British waters or on the high seas. If in time of war, they reasoned, they could stop a neutral ship on the high seas, search her for contraband of war, and condemn ship and cargo in a prize court if carrying contraband, why might they not by the same token search a vessel for British deserters and impress them into service again? Two considerations seem to justify this reasoning: the trickiness of the smart Yankees who forged citizenship papers, and the indelible character of British allegiance. Once an Englishman always an Englishman, by Jove! Your hound of a sea-dog might try to talk through his nose like a Yankee, you know, and he might shove a dirty bit of paper at you, but he couldn't shake off his British citizenship if he wanted to! This was good English law, and if it wasn't recognized by other nations so much the worse for them. As one of these redoubtable British captains put it, years later: "'Might makes right' is the guiding, practical maxim among nations and ever will be, so long as powder and shot exist, with money to back them, and energy to wield them." Of course, there were hair-splitting fellows, plenty of them, in England and the States, who told you that it was one thing to seize a vessel carrying contraband and have her condemned by judicial process in a court of admiralty, and quite another thing to carry British subjects off the decks of a merchantman flying a neutral flag; but if you knew the blasted rascals were deserters what difference did it make? Besides, what would become of the British navy, if you listened to all the fine-spun arguments of landsmen? And if these stalwart blue-water Britishers could have read what Thomas Jefferson was writing at this very time, they would have classed him with the armchair critics who had no proper conception of a sailor's duty. "I hold the right of expatriation," wrote the President, "to be inherent in every man by the laws of nature, and incapable of being rightfully taken away from him even by the united will of every other person in the nation."
In the year 1805, while President Jefferson was still the victim of his overmastering passion, and disposed to cultivate the good will of England, if thereby he might obtain the Floridas, unforeseen commercial complications arose which not only blocked the way to a better understanding in Spanish affairs but strained diplomatic relations to the breaking point. News reached Atlantic seaports that American merchantmen, which had hitherto engaged with impunity in the carrying trade between Europe and the West Indies, had been seized and condemned in British admiralty courts. Every American shipmaster and owner at once lifted up his voice in indignant protest; and all the latent hostility to their old enemy revived. Here were new orders-in-council, said they: the leopard cannot change his spots. England is still England—the implacable enemy of neutral shipping. "Never will neutrals be perfectly safe till free goods make free ships or till England loses two or three great naval battles," declared the Salem Register.
The recent seizures were not made by orders-in-council, however, but in accordance with a decision recently handed down by the court of appeals in the case of the ship Essex. Following a practice which had become common in recent years, the Essex had sailed with a cargo from Barcelona to Salem and thence to Havana. On the high seas she had been captured, and then taken to a British port, where ship and cargo were condemned because the voyage from Spain to her colony had been virtually continuous, and by the so-called Rule of 1756, direct trade between a European state and its colony was forbidden to neutrals in time of war when such trade had not been permitted in time of peace. Hitherto, the British courts had inclined to the view that when goods had been landed in a neutral country and duties paid, the voyage had been broken. Tacitly a trade that was virtually direct had been countenanced, because the payment of duties seemed evidence enough that the cargo became a part of the stock of the neutral country and, if reshipped, was then a bona fide neutral cargo. Suddenly English merchants and shippers woke to the fact that they were often victims of deception. Cargoes would be landed in the United States, duties ostensibly paid, and the goods ostensibly imported, only to be reshipped in the same bottoms, with the connivance of port officials, either without paying any real duties or with drawbacks. In the case of the Essex the court of appeals cut directly athwart these practices by going behind the prima facie payment and inquiring into the intent of the voyage. The mere touching at a port without actually importing the cargo into the common stock of the country did not alter the nature of the voyage. The crucial point was the intent, which the court was now and hereafter determined to ascertain by examination of facts. The court reached the indubitable conclusion that the cargo of the Essex had never been intended for American markets. The open-minded historian must admit that this was a fair application of the Rule of 1756, but he may still challenge the validity of the rule, as all neutral countries did, and the wisdom of the monopolistic impulse which moved the commercial classes and the courts of England to this decision.*
* Professor William E. Lingelbach in a notable article on
"England and Neutral Trade" in "The Military Historian and
Economist" (April, 1917) has pointed out the error committed
by almost every historian from Henry Adams down, that the
Essex decision reversed previous rulings of the court and
was not in accord with British law.
Had the impressment of seamen and the spoliation of neutral commerce occurred only on the high seas, public resentment would have mounted to a high pitch in the United States; but when British cruisers ran into American waters to capture or burn French vessels, and when British men-of-war blockaded ports, detaining and searching—and at times capturing—American vessels, indignation rose to fever heat. The blockade of New York Harbor by two British frigates, the Cambrian and the Leander, exasperated merchants beyond measure. On board the Leander was a young midshipman, Basil Hall, who in after years described the activities of this execrated frigate.
"Every morning at daybreak, we set about arresting the progress of all the vessels we saw, firing of guns to the right and left to make every ship that was running in heave to, or wait until we had leisure to send a boat on board 'to see,¹ in our lingo, 'what she was made of.' I have frequently known a dozen, and sometimes a couple of dozen, ships lying a league or two off the port, losing their fair wind, their tide, and worse than all their market, for many hours, sometimes the whole day, before our search was completed."*
* "Fragments of Voyages and Travels," quoted by Henry Adams,
in "History of the United States", vol. III, p. 92.
One day in April, 1806, the Leander, trying to halt a merchantman that she meant to search, fired a shot which killed the helmsman of a passing sloop. The boat sailed on to New York with the mangled body; and the captain, brother of the murdered man, lashed the populace into a rage by his mad words. Supplies for the frigates were intercepted, personal violence was threatened to any British officers caught on shore, the captain of the Leander was indicted for murder, and the funeral of the murdered sailor was turned into a public demonstration. Yet nothing came of this incident, beyond a proclamation by the President closing the ports of the United States to the offending frigates and ordering the arrest of the captain of the Leander wherever found. After all, the death of a common seaman did not fire the hearts of farmers peacefully tilling their fields far beyond hearing of the Leander's guns.
A year full of troublesome happenings passed; scores of American vessels were condemned in British admiralty courts, and American seamen were impressed with increasing frequency, until in the early summer of 1807 these manifold grievances culminated in an outrage that shook even Jefferson out of his composure and evoked a passionate outcry for war from all parts of the country.
While a number of British war vessels were lying in Hampton Roads watching for certain French frigates which had taken refuge up Chesapeake Bay, they lost a number of seamen by desertion under peculiarly annoying circumstances. In one instance a whole boat's crew made off under cover of night to Norfolk and there publicly defied their commander. Three deserters from the British frigate Melampus had enlisted on the American frigate Chesapeake, which had just been fitted out for service in the Mediterranean; but on inquiry these three were proven to be native Americans who had been impressed into British service. Unfortunately inquiry did disclose one British deserter who had enlisted on the Chesapeake, a loud-mouthed tar by the name of Jenkin Ratford. These irritating facts stirred Admiral Berkeley at Halifax to highhanded measures. Without waiting for instructions, he issued an order to all commanders in the North Atlantic Squadron to search the Chesapeake for deserters, if she should be encountered on the high seas. This order of the 1st of June should be shown to the captain of the Chesapeake as sufficient authority for searching her.