When, however, the American government determined to send a special mission to England for the adjustment of differences between the two nations, the British habit of impressing on the high seas was stated as the foremost of the American grievances, and their plenipotentiaries were instructed to urge the abandonment of a practice “so disgraceful and injurious to their country, as the point most essential to its peace, honour, and tranquillity.”

Concessions made in the colonial trade.

Blockades in the colonies, and of the French ports in the Channel.

As the second ground of complaint, the alleged violation of neutral rights by seizing and condemning their merchantmen though engaged in lawful commerce, involves a variety of important considerations, which were incessantly the subjects of dispute, it may be desirable to state the substance of the views of the American government and of English jurisconsults on so important a question. England had conceded to the Americans, in the previous war, permission to trade with the colonies of the enemy for articles intended for their own domestic consumption; and in case no market was found in the United States for articles imported with that intention, she had permitted them to re-export those articles to any part of the world not invested by her blockading squadrons. In 1804 certain ports of Martinique and Guadaloupe, French colonies, were declared to be in a state of blockade, and the siege of Curaçoa was also converted into a blockade. In August of the same year a rigorous blockade was declared to be established at the entrances of the ports of Fécamp, St. Valery, Caux, Dieppe, Treport, the Somme, Etaples, Boulogne, Calais, Gravelines, Dunkirk, Nieuport, and Ostend. Bonaparte at that moment was threatening England with invasion, and England was putting forth all her strength to repel the attempt and to circumvent his designs. America looked calmly on, and profited, as we have seen, by the struggle, pushing forward her pretensions and alleged grievances with the view of annoying as much as she could both belligerents, and especially Great Britain. England, as is well known, had constantly refused the Americans permission to trade directly between the colonies of the enemy and the mother-country, but had tolerated the indirect communication above mentioned, on the supposition that the goods so transmitted had been intended originally for American consumption, and would not have been re-exported, but for want of a market in the United States.

The dispute concerning the trade with the French colonies.

“It is now distinctly understood,” said his Majesty’s Advocate-General, in a report officially communicated by Lord Hawkesbury to the American government, and transmitted to all the Vice-Admiralty Courts aboard,[322] “and so decided by our highest tribunals, that the produce of the colonies of the enemy may be imported by a neutral into his own country, and may be re-exported from thence, even to the mother-country of such colony; and in like manner the produce and manufactures of the mother-country may, in this circuitous mode, legally find their way to the colonies. The direct trades, however, between the mother-country and its colonies have not, I apprehend, been recognised as legal, either by his Majesty’s government, or by his tribunals. What is a direct trade, or what amounts to an intermediate importation into a neutral country, may sometimes be a question of some difficulty: a general definition of either, applicable to all cases, cannot well be laid down. The question must depend upon the particular circumstances of each case. Perhaps the mere touching at a neutral country to take fresh clearances may properly be considered as a fraudulent evasion, and as, in effect, the direct trade; but the High Court of Admiralty[323] has expressly decided that landing the goods and paying the duties in the neutral country breaks the continuity of the voyage, and is such an importation as legalises the trade, although the goods be re-shipped in the same vessel, and on account of the same neutral proprietor, and be forwarded for sale to the mother-country or the colony.”

But his Lordship admitted that the decision of Sir William Scott by no means went so far; that distinguished judge remarking in the most guarded manner that it was not his business to determine “what was a bonâ fide importation.” However, from Lord Hawkesbury’s commentary upon the judgment, presuming that he indorsed the Judge-Advocate’s opinion, by sending it to America as an extract, it came to be universally understood in the United States that the mere landing of the goods, and paying the duties in the neutral country, were sufficient to break the continuity of the voyage and to legalise the trade; whereas the landing and the payment of the duties were only deemed the best criteria or the best evidence obtainable of a bonâ fide importation. This distinction became afterwards of great importance, although the peace of Amiens put an end for a time to all controversies on the subject. But when hostilities recommenced between France and England, the American merchants, recollecting the footing on which the trade had been placed at the conclusion of the previous war, embarked in it without apprehension, as a commerce perfectly lawful. An immense amount of tonnage was employed in this trade, which was carried on without interruption till the summer of 1805, when a decision on new grounds was adopted by the English Admiralty Courts, which suddenly, and without the smallest warning, exposed the whole of the American merchant vessels to seizure and condemnation.

Reversal of the law in England.

It was now decided that the proof of payment of duties in America was no evidence of a bonâ fide importation into that country,[324] because payment of duties did not mean that the duties had been actually paid in money, but that they had been secured by bonds; and from the peculiar system of revenue laws established in the United States, the merchant who re-exported goods previously imported, gained a profit by his transactions with the custom-house, instead of suffering any loss or deduction from his gains. The importer, when the duties were ascertained, gave bonds for the amount; but if the next day he should enter the goods for exportation again, he became entitled to debentures from the custom-house, payable on the same day with the bonds, and made out for the same sums, with a deduction of only three and a half per cent., which was retained for the government. The bonds given originally by the merchant remained unissued in the custody of the revenue officers; while the debentures became an assignable and transferable security for money, capable of being recovered by a summary process; and if the importer failed, enjoyed a priority before all private demands. The result of the whole operation, therefore, was that the government lent to the private credit of the merchant the character of a public security, in lieu of his bonds deposited at the custom-house, and received three and a half per cent. on the amount of these bonds in return for the accommodation it afforded. Now, however admirable this system may be in reference to the trade of the United States, it utterly broke down when adduced as evidence of a bonâ fide importation, or as a proof that the duties had been paid or secured in the United States according to law; as, in point of fact, the merchant gained by repeating the transaction.

Effect in America.