The diplomacy of the war of 1812

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Chapter I

■"^ The fundamental cause of the War of 1812 was the irreconcilable conflict of the British navigation acts with the commercial development of the United States. The more concrete causes, all of which were connected with the British naval and commercial policy, were the right of search for deserters on neutral vessels and the impressment of American seamen upon the high seas, restrictions upon American trade through the revival by Great Britain of the "Rule of 1756," and the promulgation of orders which established the principles of blockade against neutral commerce where, in fact, no legal blockade existed.

The treaty of peace of 1783 failed to bring about an amicable relationship between Great Britain and the United States. John Adams, the first American minister to Great Britain, wrote to the American Secretary of Foreign Affairs a few weeks after his arrival in London, as follows : " The popular pulse seems to beat high against America. The people are deceived by numberless falsehoods industriously circulated by the gazettes and in conversation, so that there is too much reason to believe that, if this nation had another hundred milhon to spend, they would soon force the ministry into a war against us. . . . Their present system, as far as I can penetrate it, is to maintain a determined peace with all Europe, in order that they may war singly against America, if they should think it necessary."^ In another letter written August 6, 1785, Adams said : " Britain has ventured to begin commercial hostilities. I call them hostilities, because their direct object is not so much the increase of their own wealth, ships, or sailors, as the diminution of ours. A jealousy of our naval power is the true motive, the real passion which actuates them ; they consider the United States as their rival, and the most dangerous rival they have in the world."- Later, on October 15, Adams wrote: "I have the honor to agree fully with you in your opinion, that ' it is manifestly as much the interest of this country to be well with us, as for us to be well with them;' but this is not the judgment of the English nation ; it is not the judgment of Lord North and his party; it is not the judgment of the Duke of Portland and his friends ; and it does not appear to be the judgment of Mr. Pitt and the present set. Li short, it does not at present appear to be the sentiment of

1 Adams to Jay, July 19, 1785 ; Works of John Adams, VIII., 282.

2 Adams to Jay, Aug. 6, 1785; Works of John Adams, VIII., 290-291.

anybody ; and, I am much inclined to believe, they will try the issue of importance with us."^ In Adams's last two letters to the Secretary of State, one in November and the other in December, 1787, we find , the following passages : " If they can bind Holland in their shackles, and France, by her internal distractions, is unable to interfere, she [Great Britain] will make war immediately against us." " No answer is made to any of my memorials or letters to the ministry, nor do I expect that any thing will be done while I stay."*

Great Britain failing to send a minister to the United States, Adams, at his own request, was recalled in February, 1788. It was not until 1792 that his post was filled. Thomas Pinckney was then appointed minister to Great Britain, a position which he retained only two years. The causes of friction between Great Britain and the United States steadily grew in volume during the next two decades, culminating at last in the War of 1812. The most aggravating and the most persistent of these causes was impressment. For twenty years it was the object of serious diplomatic negotiations.

As early as 1792 we find Thomas Jefferson, Secretary of State, advising Thomas Pinckney, American

3 Adams to Jay, Oct. 15, 1785; Works of John Adams, VIII., 320.

4 Adams to Jay, Nov. 30, 1787; Works of John Adams, VIII., 463. Adams to Jay, Dec. 16, 1787; Works of John Adams, VIII., 467-468.

minister at London, to confer with the British Foreign Secretary in order to make some satisfactory arrangement upon the subject of impressment. The British Government had proposed that American seamen should be required always to carry about with them a certificate of citizenship. Jefferson was opposed to this requirement as it would be impracticable always to carry such certificates. He upheld the position that the vessel outside of foreign jurisdiction protected the men on board, yet, in order to prevent a vessel from becoming an asylum for fugitives, he was willing that the number of men to a vessel should be limited in proportion to the tonnage of the vessel and that one or two officers be allowed to board a vessel to ascertain the number of men on board. No press gang should be allowed to go on board until it should be found that there were more than the stipulated number of seamen on board, and until the masters had refused to deliver the extra men, who were to be named by the master himself. Even under these circumstances the American consul, in every instance, was to be called in.^

Later, in referring to Pinckney certain complaints, made by the merchants of Virginia, of sailors being taken from American vessels on the coast of Africa by the commander of a British armed vessel, Jefferson

5 Jeiiferson to Pinckney, June ii, 1792; American State Papers, For. Rel, III., 574- wrote: "So many instances of this kind have happened, that it is quite necessary that their Government should explain themselves on the subject, and be led to disavow and punish such conduct."^ A month later he writes again with respect to the exercise of the practice and says: "It is unnecessary to develop to you the inconveniences of this conduct, and the impossibility of letting it go on."''

The inconveniences of impressment were brought to the attention of the American minister not alone through the correspondence of the Secretary of State, but through the hundreds of letters addressed to him by prisoners in the various prisons in England and in prison ships on the British coasts imploring his efforts for their release. Pinckney was successful in securing the discharge of most of the persons thus impressed, but he was unable to secure from the British Government any assurance of the discontinuance of the practice.

When, in 1794, Jay was engaged in the negotiations relating to""!, convention for indemnities and for commercial arrangements, he alluded to the hardships suffered by American citizens under the practice of impressment. He expressed his confidence that the

^Jefferson to Pinckney, Oct. 12, 1792; American State Papers, For. Rel., III., 574.

^Jefferson to Pinckney, Nov. 6, 1792; American State Papers, For. Rel., III., 574.

O IMPRESSMENT

\ justice and benevolence of the King would lead him, j immediately, to liberate American citizens wrongfully detained and that His Majesty's officers, in the future, would abstain from such proceedings.V'

Lord Grenville replied that if American seamen had been impressed into the King's service, it had been contrary to the King's desire, though he admitted such cases might happen, owing to the difficulty of discriminating between British and American seamen. , American citizens, he stated, were invariably released and British officers understood that they were to use proper precaution.*^ No statement, however, upon impressment was contained in the treaty which was signed by Jay and Grenville.

Impressment still continuing, the United States, in order to make all possible accommodation to prevent the excuse for the practice, passed a law. May 28, 1796, which provided for certification of American seamen. Pickering, Secretary of State, transmitting this law to Rufus King, American minister at London, urged the importance of obtaining satisfaction from the British Government upon the subject of impressment. He expressed the opinion, as Jefferson had before, that the vessel should protect the seamen on

8 Jay to Grenville, July 30, 1794 ; American State Papers, For. Rel., I., 481.

9 Grenville to Jay, Aug. i, 1794; American State Papers, For. Rel., I., 481-482.

board ; but stated that he would regard it as a great advance if this principle could be secured merely on the high seas.^**

He argued that the principle was needed in the interest of humanity, for the withdrawal of seamen on the ocean exposed hves and property to destruction as well as vessels, inasmuch as vessels usually carried no more sailors than they actually needed. The same principle, it was maintained, should operate also in the British colonies and especially in the West Indies, because here the detention in consequence of impressment was attended with serious loss of life and property due to climatic conditions. The remoteness of these districts from the place of supreme authority made the danger of abuse greater than elsewhere. In lieu of impressment, it was suggested that a law might be passed requiring every master of a vessel, upon his arrival in any port of the British colonies, to report his crew at the proper office. If afterwards any additions were made in the way of British subjects, these might be taken away. Impressment of British subjects found in ports of Great Britain and Ireland might be admitted, but this should be controlled by proper regulations to prevent insults and injuries and to insure prompt relief when mistakes occurred.^^

^° Pickering to King, June 8, 1796 ; American State Papers, For. Rel., III., 574-575- 11 Ibid.

Pickering differentiated three classes of men whom Great Britain had no right whatever to impress. These were native American citizens, American citizens wherever born who were such at the time of the definitive treaty of peace, and foreigners other than British subjects saiHng in American vessels. A fourth class in connection with the question of impressment consisted of British born subjects who had become American citizens subsequent to the treaty of peace, or might thereafter be admitted to the rights of citizenship. These were not to be abandoned by the United States, but certain classes especially deserved the protection of the American Government, such as those who had served in American vessels public or private for the same term of years as that in which foreigners serving in British vessels acquired the rights of British subjects, which was understood to be three years, and those persons, originally British subjects, who had resided in the United States for five years and had been formally admitted to the rights of citizenship according to the laws of the United States. Inasmuch as sailors were likely to lose their certificates, Pickering believed that some provision should be made for the admission of other reasonable proof of their citizenship, such as their own oaths with those of their masters, mates, or other credible witnesses. He proposed that the rolls of the crew should be authenticated by the collector of customs and that these then should be admitted with equal validity with the individual certificates.^^

When reporting to King several cases of impress- x ment of seamen from American vessels in the fall of 1796, Pickering again urged the importance of taking up the question with the British Government.^^ In a letter to King, October 26, 1796, he pointed out that the British naval officers had impressed Swedes, Danes, Portuguese, and French, which showed that impressment of sailors was not confined to Americans, who were claimed to resemble Englishmen so closely that it was impossible always to distinguish.^* He complained that Americans were not so promptly released as hitherto owing to the fact that writs of habeas corpus taken out by American agents were no longer given recognition by the British authorities.

In order to avoid the friction attendant upon the impressment of American citizens under the supposition that they were British subjects. Minister King proposed to the British Government that American consuls should be authorized to grant certificates of citizenship to such American seamen as should prove themselves entitled to receive them, and British naval officers

12 Pickering to King, June 8, 1796; American State Papers, For. Rel., III., 574-575-

13 Pickering to King, Sept. 10, 1796; American State Papers, For. Rel., III., 575-

1* Pickering to King, Oct. zd, 1796 ; American State Papers, For. Rel., III., 575-

V lO IMPRESSMENT

should be instructed by their Government to respect such certificates.^^

The British Government objected to King's proposal as afifording no sufficient security that British subjects would not be protected under the guise of American citizenship. They similarly objected to the general law that Congress had passed with regard to certification of American seamen and also to the order which the President had issued to the collectors of the several districts prescribing the evidence on which certificates of citizenship might be granted by such collectors. It was held that the proposed method was subject to the greatest possible abuse and that practice founded on this arrangement " would not differ at all in its effect and consequences, though in name and appearance it might, from a resolution to discharge at once every British seaman on his own assertion, that he is an American citizen."^®

In the spring of 1799 King again protested to Lord Grenville, as he had on former occasions, against the indiscriminate seizure of seamen from American vessels on the high seas. Grenville gave no satisfaction that it would stop, but promised that all Americans who by mistake had been seized should be discharged

15 King to Grenville, Jan. 28, 1797 ; American State Papers, For. Rel., II., 147-148.

16 Grenville to King, March 27, 1797; American State Papers, For. Rel., II., 148-150.

IMPRESSMENT II

upon application. The American minister considered this of Uttle account. Indeed, said he, " to acquiesce

in it is to give up the right."^^

^ The following year John Marshall, then Secretary of State, wrote a most able letter to King in which he discussed the American position upon the subject of impressment. He said : " The United States therefore require positively that their seamen who are not British subjects, whether born in America or elsewhere, shall be exempt from impressments. The case of British subjects, whether naturalized or not, is more questionable ; but the right even to impress them is denied. . . . Alien seamen, not British subjects, engaged in our merchant service, ought to be equally exempt with citizens from impressment."^^ Here we have set forth the two principal objections which the United States maintained to the British practice of impressment. One was the actual seizure of American seamen under the claim of taking British deserters, and the second was the right of searching neutral vessels on the high seas for deserting seamen. 1 If these two points could have been kept distinct throughout the negotiations, it might have been easier to come to an agreement upon the subject of impressment. As to the impressment of American seamen. Great Britain, in general, dis-

i''^ King to Pickering, March 15, 1799; American State Papers, For. Rel., Ill, 583.

18 Marshall to King, Sept. 20, 1800; American State Papers, For. Rel, II., 486-490.

claimed any such intention, so that it should not have been impossible to adjust that point. With respect to the right of search, each nation might have agreed to enact a law compelling the commanders or masters of vessels to surrender deserters to the nation from which they had deserted.

Complaint was made by the British Government to the so-called "protections" given American seamen, on the ground that they were frequently fraudulent in their intentions and were granted without a proper examination of facts by inferior magistrates and notaries. These, it was held, could easily be procured by natural born British subjects who wished to desert the service of their own country. Under such circumstances it was not to be expected that the commanders of British ships of war should pay any regard to such papers. As a means of allaying the present trouble it was proposed that there be no refuge allowed in the territory or vessel of either party to deserters from the other state, and that all such deserters be delivered up on demand to the commander of the vessel from which the desertion had been made or to the commanding officers of the ships of war of the respective nations, or to such other persons as might be duly authorized to make requisition on their behalf, provided proof were made that the deserters so demanded were actually part of the crew of the vessel in question. Consuls and vice-consuls, it was stated, might cause the arrest i of those who had deserted from their country, applying to the courts for the necessary power, to be granted upon proper proofs. Neither of the parties was to demand the delivery of any sailors or subjects or citizens belonging to the other party who had been employed on board the vessels of either of the nations, and who had in time of war voluntarily entered the service of their own sovereign or nation, or who had been compelled to enter such service. It was proposed that the two states should agree to adopt effectual measures for the apprehension and delivery of deserting seamen, and that public ships of war, forts, garrisons, or posts should not forcibly be entered to compel the delivery of such persons as might have deserted. ^^ This proposal would have appeared to recognize the pretensions of the British claims to impressment with reference to merchant vessels. The American Secretary of State, being desirous of acceding to the main proposition but unwilling to grant an indirect sanction to the principle always denied by the American Government, offered a counter-project which contained reciprocal engagements for the surrender of deserters upon condition that the practice of impressment should be discontinued in respect to private vessels as well as public vessels.^"

i» Listen to Pickering, Feb. 4, 1800; American State Papers, For. Rel., III., 5/6-577.

20 Pickering to Liston, May 3, 1800; American State Papers, For. Rel., III., 577-578.

The purpose of the proposed scheme for the mutual restoration of deserting seamen being so desirable in order to remove the alleged necessity of Great Britain'^ resorting to impressment, the President submitted the question to the other members of his Cabinet for suggestions. Secretary Wolcott of the Treasury thought that the British proposal did not sufficiently provide against the impressment of seamen, and he proposed a counter-project similar to that of the Secretary of State. He suggested that the proof of desertion should be required within two years from its occurrence. He thought that the commander or other officers should not be empowered to enter a public or private vessel of the other party on the high seas ; and that it should be " expressly declared to be the understanding of the contracting parties, that the mutual restitutions of persons claimed as deserters shall only be made by the free and voluntary consent of the military officers employed in the land service, or the commanders of the public or private ships or vessels of the two parties, or in pursuance of the decisions of the courts.""^ The Secretary of War objected to the British minister's proposal that the United States should demand the delivery of such seamen as had been employed on board British vessels and who had in time of war or threatened hostilities voluntarily entered the British service,

21 Wolcott to Adams, April 14, 1800; American State Papers, For. Rel., III., 579.

or who had been compelled to enter it according to the law and practice of Great Britain.^^ The Attorney-General expressed his concurrence with the project as drawn by the Secretary of the Treasury.^^ The Secretary of the Navy agreed with the proposed reply of the Secretary of State. He considered that the British proposal secured to Great Britain all that it could desire, but that it afforded no security to the United States against the practice of which the United States complained. The Secretary of the Navy preferred to have no article rather than not to include in it the prohibition of impressment from merchant vessels on the high seas.^* The opinions of the Cabinet displayed the degree of unity of American sentiment upon the subject of impressment. Great Britain, however, paid little attention to American feeling, and the proposal of the Secretary of State was rejected; but when the general pacification of Europe occurred in 1801, and the treaty of Amiens brought a respite to British ships of war, impressment ceased for the time as there was no need of the practice to secure sailors.

Minister King, who during the war had endeavored V^

22McHenry to Adams, April 18, 1800; American State Papers, For. Rel., III., 579-580.

23 Lee to Adams, April 30, 1800; American State Papers, For. Rel., III., 581.

24 Stoddart to Adams, April 23, 1800; American State Papers, For. Rel., III., 580.

to obtain an agreement that, after hostilities should cease, neither party would upon the high seas impress or take any seamen or other persons out of the vessels of the other, continued to urge the subject upon the British Government. When it appeared likely that war between Great Britain and France would be renewed, King prevailed upon Lord Hawkesbury, British Secretary of Foreign Affairs, and Lord Vincent, First Lord of the Admiralty, to consent to a convention which provided against impressment in the following terms: " No seamen nor seafaring person shall, upon the high seas and without the jurisdiction of either party, be demanded or taken out of any ship or vessel belonging to the citizens or subjects of one of the parties, by the public or private armed ships or men of war belonging to, or in the navy of the other party ; and strict orders shall be given for the due observance of this engagement."^^ Each state was to prohibit its citizens or subjects from carrying away from the territories or colonial possessions of the other any seamen belonging to such other ports. The treaty was to be in force for five years.

Before this treaty was actually signed the British commissioners, after consultation with Sir William Scott, the Judge of the High Court of Admiralty, proposed that the narrow seas should be excepted in the

25 King to Secretary of State, July, 1803; American State Papers, For. Rel., II., 503-504- operation of the article. With that exception they expressed their willingness to sign the convention. King considered this action as a mere subterfuge and an extravagant pretension for Great Britain to revive the doctrine of mare clausum. He felt compelled "to abandon the negotiation, rather than to acquiesce in the doctrine it proposed to establish." King returned to the United States in the summer of 1803 and was succeeded by James Monroe, who had been appointed April 18 of that year.

In the instructions given to Monroe with reference to a treaty, which it was hoped that he might be able to negotiate, all other questions in dispute were to be omitted, if only agreement could be secured on impressment, blockades, visit and search, contraband, and trade with the enemies' colonies. ^^

The Secretary of State enclosed a projet of a treaty giving the articles both as the American Government would prefer that they should be, and also as they might ultimately be agreed upon, if the British Government insisted. The first article of the projet dealt with impressment. In the preferred form it was provided that no person should " upon the high seas and without the jurisdiction of either party, be demanded or taken out of any ship or vessel belonging to citizens or subjects of one of the parties, by the public or

2*5 Madison to Monroe, Jan. 5, 1804; American State Papers, For. Rel., III., 81-89.

f private armed ships belonging to, or in the service of, the other, unless such person be at the time in the military service of an enemy of such other party."^'^ In the article used as an ultimatum it was provided, in addition to the foregoing statement, " it is to be understood that this article shall not exempt any person on board the ships of either of the parties from being taken therefrom by the other party, in cases where they may be liable to be so taken according to the laws of nations, which liability, however, shall not be construed to extend in any case to seamen, or seafaring persons being actually part of the crew of the vessel in which they may be, nor to persons of any description passing from one port to another port of either of the parties." A second article provided that subjects or citizens of one state, being in the dominions of the other, should not be compelled to serve on board of any vessel public or private belonging to the other party; and all subjects or citizens serving under compulsion should be liberated forthwith.

In communicating this project. Secretary Madison discussed the alleged right of impressment on the part of Great Britain. The right was denied, first, because no treaties, British or other, could be found to sanction it. ! Whilst treaties " admit a contraband of war by enumerating its articles, and the effect of a

2'^ Madison to Monroe, Jan. S, 1804; American State Papers, For. Rel., III., 81-89.

real blockade by defining it, in no instance do they afifirm or imply a right in any sovereign to enforce his claims to the allegiance of his subjects on board neutral vessels on the high seas ; on the contrary, whenever a belligerent claim against persons on board a neutral, vessel is referred to in treaties, enemies in military! service alone are excepted from the general immunity of persons in that situation; and this exception con-* firms the immunity of those who are not included \ in it."28

If there be a right of allegiance in time of war, it v^ was averred, the same must exist in time of peace, and the exercise of sovereign rights outside of the nation's jurisdiction in time of war would imply a corresponding exercise of power in time of peace. The law of allegiance upon which the principle of impressment was built up by Great Britain, Madison maintained, was a municipal law and as such was not rightfully enforceable outside of the jurisdiction of Great Britain; that if it might be enforced on board foreign vessels on the high seas with regard to persons, it might with equal propriety be enforced against articles of property if these were exported in violation of a domestic law. Thus every commercial regulation in time of peace as well as of war would be obligatory upon foreigners and their vessels, not only within the

28 Madison to Monroe, Jan. 5, 1804; American State Papers, For. Rel., III., 81-89.

jurisdiction of a given state, but in every sea, at an) distance, where an armed vessel might be met with. The admission of the practice of impressment, it was shown, impHed the right of search for such subjects, and this was the source of serious inconvenience. Madison argued that the alleged right was not only unsupported by treaties, but that every principle of justice and reason was against the practice. By its exercise persons were deprived of a regular trial which was granted when property was involved, and decisions were left to the caprice and personal interest of officers, when such decisions in the case of property were made by an impartial court, not by the captain himself.^^

It was pointed out that the very resemblance of American and British seamen, which the British Government alleged as one of the reasons for the enforcement of impressment, made it more important not to leave the decision to interested officers. Madison declared that, if the practice were to be allowed, the most obvious and just rule would be to require that proof of allegiance be made, instead of the reverse which had been the British practice. The inconsistency of Great Britain's action with reference to impressment was clearly shown. She had herself refused to give up American seamen who had voluntarily engaged in

29 Madison to Monroe, Jan. S, 1804; American State Papers, For. Rel., III., 81-89.

her service ; she had also refused to release impressed American citizens if they had either settled or married within British dominions.^''

The Secretary of State held that the British practice of impressment was much less needful than was commonly supposed, as the number of British seamen employed upon American vessels was never large. Of the 2059 cases of impressment from 1797 to 1801 only 102 had been detained as being British subjects; 1042 were discharged as not being British subjects ; while 805 others were detained for further proof, with the presumption in favor of American citizenship. Thus it was evident that for every British seaman gained through impressment ten others were made victims of this system. Monroe was instructed not to admit the narrow sea jurisdiction which had been proposed in the former negotiation.^^ 1_

In a letter a few weeks later Madison notified s^ Monroe that the boundary treaty negotiated by King with Lord Hawkesbury, May 12, 1803, had been ratified with the exception of the fifth article. Monroe was instructed to proceed to the exchange of ratifications if the British Government consented to accede to the change.^^ The objection made to the fifth article

30 Madison to Monroe, Jan. 5, 1804; American State Papers, For. Rel, III., 8i-8g.

31 Ibid.

32 Madison to Monroe, Feb. 14, 1804; American State Papers, For. Rel., III., 89-90.

arose from the fact that the signature and ratifications of the treaty were made subsequent to the treaty with France ceding Louisiana to the United States, and it was feared that the line to be run in pursuance of the fifth article might be found to abridge the northern extent of the Louisiana acquisition. The British Government subsequently refusing to accede to this exception, the treaty remained unratified. V', Monroe, on April 2, 1804, informed Lord Hawkesbury of his instructions to negotiate a treaty covering the disputed maritime questions.] He found Hawkesbury friendly and apparently in sympathy with the objects proposed. Hawkesbury requested from Mon-> roe a projet of a treaty which he promised upon receiving to submit to the Cabinet. Monroe complied with the request, and submitted a projet in the form which Madison had directed. This provided against im-'i pressment on the high seas except in case of persons at the time in the military service of an enemy of the impressing state. , Provision was made against compelling a subject or citizen of one state being within another state to serve on board the vessels of the latter state; and all so held were to be liberated and given adequate compensation for their return home. As a complementary article to that upon impressment was one providing for the mutual restoration of deserters. The treaty also included articles upon the procedure in the exercise of the right of search and definition of blockaded ports. It was proposed that the treaty should be in force for five years.^^