At the outbreak of the French wars, Nov. 6, 1793, the British government issued instructions directing all British armed vessels to seize every neutral ship they should meet, loaded with the produce of a French colony or carrying supplies for its use.[227] These orders were kept secret for several weeks, until the whole American commerce with the Antilles, and all American ships found on the ocean, laden in whole or in part with articles of French colonial produce or for French colonial use, were surprised and swept into British harbors, where they were condemned by British admiralty courts, on the ground known as the “Rule of the War of 1756,”—that because trade between the French colonies and the United States was illegal in peace, it was illegal in war. From the point of view in which European Powers regarded their colonies, much could be said in support of this rule. A colony was almost as much the property of its home government as a dockyard or a military station. France and Spain could hardly complain if England chose to treat the commerce of such governmentstations as contraband; but a rule which might perhaps be applied by European governments to each other worked with great injustice when applied to the United States, who had no colonies, and made no attempt to build up a navy or support an army by such means. Taken in its broadest sense, the European colonial system might be defined by the description which the best of British commentators gave to that of England,[228]—a “policy pursued for rendering the foreign trade of the whole world subservient to the increase of her shipping and navigation.” American Independence was a protest against this practice; and the first great task of the United States was to overthrow and destroy the principle, in order to substitute freedom of trade. America naturally objected to becoming a martyr to the rules of a system which she was trying to revolutionize.
When these British instructions of Nov. 26, 1793, became known in the United States, the Government of President Washington imposed an embargo, threatened retaliation, and sent Chief-Justice Jay to London as a last chance of maintaining peace. On arriving there, Jay found that Pitt had already voluntarily retreated from his ground, and that new Orders, dated Jan. 8, 1794, had been issued, exempting from seizure American vessels engaged in the direct trade from the United States to the French West Indies. In the end, the British government paid the value of the confiscated vessels. The trade from the United States to Europe was not interfered with; and thus American ships were allowed to carry French colonial produce through an American port to France, while Russian or Danish ships were forbidden by England to carry such produce to Europe at all, although their flags and harbors were as neutral as those of the United States. America became suddenly a much favored nation, and the enemies of England attributed this unexpected kindness to fear. In truth it was due to a natural mistake. The British Treasury calculated that the expense and trouble of carrying sugar and coffee from Martinique or St. Domingo to Boston, of landing it, paying duties, re-embarking it, receiving the drawback, and then carrying it to Bordeaux or Brest, would be such as to give ample advantages to English vessels which could transship more conveniently at London. The mistake soon became apparent. The Americans quickly proved that they could under these restrictions carry West Indian produce to Europe not only more cheaply than British ships could do it, but almost as quickly; while it was a positive advantage on the return voyage to make double freight by stopping at an American port. The consequence of this discovery was seen in the sudden increase of American shipping, and was largely due to the aid of British seamen, who found in the new service better pay, food, and treatment than in their own, and comparative safety from the press-gang and the lash. At the close of the century the British flag seemed in danger of complete exclusion from the harbors of the United States. In 1790 more than 550 British ships, with a capacity of more than 115,000 tons, had entered inward and outward, representing about half that number of actual vessels; in 1799 the custom-house returns showed not 100 entries, and in 1800 about 140, representing a capacity of 40,000 tons. In the three years 1790–1792, the returns showed an average of some 280 outward and inward entries of American ships with a capacity of 54,000 tons; in 1800 the entries were 1,057, with a capacity of 236,000 tons. The Americans were not only beginning to engross the direct trade between their own ports and Europe, but were also rapidly obtaining the indirect carrying-trade between the West Indies and the European continent, and even between one European country and another. The British government began to feel seriously uneasy. At a frightful cost the people of England were striving to crush the navies and commerce of France and Spain, only to build up the power of a dangerous rival beyond the ocean.
Doubtless the British government would have taken measures to correct its mistake, if the political situation had not hampered its energies. Chief-Justice Jay, in 1794, negotiated a treaty with Lord Grenville which was in some respects very hard upon the United States, but was inestimably valuable to them, because it tied Pitt’s hands and gave time for the new American Constitution to acquire strength. Ten years of steady progress were well worth any temporary concessions, even though these concessions exasperated France, and roused irritation between her and the United States which in 1798 became actual hostility. The prospect that the United States would become the ally of England was so fair that Pitt dared not disturb it. His government was in a manner forced to give American interests free play, and to let American shipping gain a sudden and unnatural enlargement. His liberality was well paid. For a moment France drove the United States to reprisals; and as the immediate consequence, St. Domingo became practically independent, owing to the support given by the United States to Toussaint. Even the reconciliation of France with America effected by Bonaparte and Talleyrand in 1800 did not at first redress the balance. Not till the Peace of Amiens, in 1802, did France recover her colonies; and not till a year later did Bonaparte succeed, by the sacrifice of Louisiana, in bringing the United States back to their old attitude of jealousy toward England.
Nevertheless, indications had not been wanting that England was aware of the advantage she had given to American commerce, and still better of the advantages which had been given it by Nature. All the Acts of Parliament on the statute-book could not prevent the West Indies from being largely dependent on the United States; yet the United States need not be allowed the right to carry West Indian produce to France,—a right which depended only on so-called international law, and was worthless unless supported by the stronger force. A new Order was issued, Jan. 25, 1798, which admitted European neutrals to enemies’ colonies, and allowed them to bring French colonial produce to England or to their own ports. This Order was looked upon as a side-blow at American shipping, which was not allowed the same privilege of sailing direct from the Antilles to Europe. The new Order was justified on the ground that the old rule discriminated in favor of American merchants, whose competition might be injurious to the commercial interests of England.[229]
Further than this the British government did not then go; on the contrary, it officially confirmed the existing arrangement. The British courts of admiralty conformed closely to the rules of their political chiefs. Sir William Scott, better known as Lord Stowell, whose great reputation as a judge was due to the remarkable series of judgments in which he created a new system of admiralty law, announced with his usual clearness the rules by which he meant to be guided. In the case of the “Emmanuel,” in November, 1799, he explained the principle on which the law permitted neutrals to carry French produce from their own country to France. “By importation,” he said, “the produce became part of the national stock of the neutral country; the inconveniences of aggravated delay and expense were a safeguard against this right becoming a special convenience to France or a serious abridgement of belligerent rights.” Soon afterward, in the case of the “Polly,” April 29, 1800, he took occasion to define what he meant by importation into a neutral country. He said it was not his business to decide what was universally the test of a bona fide importation; but he was strongly disposed to hold that it would be sufficient if the goods were proved to have been landed and the duties paid; and he did accordingly rule that such proof was sufficient to answer the fair demands of his court.
Rufus King, then American minister in London, succeeded in obtaining from Pitt an express acceptance of this rule as binding on the government. On the strength of a report[230] from the King’s Advocate, dated March 16, 1801, the British Secretary of State notified the American minister that what Great Britain considered as the general principle of colonial trade had been relaxed in a certain degree in consideration of the present state of commerce. Neutrals might import French colonial produce, and convey it by re-exportation to France. Landing the goods and paying the duties in America legalized the trade, even though these goods were at once re-shipped and forwarded to France on account of the same owners.
With this double guaranty Jefferson began his administration, and the American merchants continued their profitable business. Not only did they build and buy large numbers of vessels, and borrow all the capital they could obtain, but doubtless some French and Spanish merchants, besides a much greater number of English, made use of the convenient American flag. The Yankees exulted loudly over the decline of British shipping in their harbors; the British masters groaned to see themselves sacrificed by their own government; and the British admirals complained bitterly that their prize-money was cut off, and that they were wearing out their lives in the hardest service, in order to foster a commerce of smugglers and perjurers, whose only protection was the flag of a country that had not a single line-of-battle ship to fly it.
Yet President Jefferson had reason to weigh long and soberly the pointed remark with which the King’s Advocate began his report,—that the general principle with respect to the colonial trade had been to a certain extent relaxed in consideration of the present state of commerce. No doubt the British pretension, as a matter of international law, was outrageous. The so-called rule of 1756 was neither more nor less than a rule of force; but when was international law itself anything more than a law of force? The moment a nation found itself unable to show some kind of physical defence for its protection, the wisdom of Grotius and Bynkershoek could not prevent it from being plundered; and how could President Jefferson complain merely because American ships were forbidden by England to carry French sugars to France, when he looked on without a protest while England and France committed much greater outrages on every other country within their reach?
President Jefferson believed that the United States had ample means to resist any British pretension. As his letters to Paine and Logan showed, he felt that European Powers could be controlled through the interests of commerce.[231] He was the more firmly convinced by the extraordinary concessions which Pitt had made, and by the steady encouragement he gave to the American merchant. Jefferson felt sure that England could not afford to sacrifice a trade of some forty million dollars, and that her colonies could not exist without access to the American market. What need to spend millions on a navy, when Congress, as Jefferson believed, already grasped England by the throat, and could suffocate her by a mere turn of the wrist!
This reasoning had much in its favor. To Pitt the value of the American trade at a time of war with France and Spain was immense; and when taken in connection with the dependence of the West Indian colonies on America, it made a combination of British interests centring in the United States which much exceeded the entire value of all England’s other branches of foreign commerce. Its prospective value was still greater if things should remain as they were, and if England should continue to undersell all rivals in articles of general manufacture. England could well afford to lose great sums of money in the form of neutral freights rather than drive Congress to a protective system which should create manufactures of cotton, woollen, and iron. These were motives which had their share in the civility with which England treated America; and year by year their influence should naturally have increased.