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]