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CHAPTER IV

THE WAR OF 1812

WAR MESSAGE OF PRESIDENT MADISON

President Madison in his war message to Congress of June 1, 1812,1 summarized the complaints of the United States against restraints on its neutral commerce. The outstanding issue of impressment, also considered in the message, is not included in the scope of this survey. He stated that "under pretended blockades, without the presence of an adequate force and sometimes without the practicability of applying one, our commerce has been plundered in every sea." These "mock blockades " had been enforced in the face of official communications from the British Government declaring as the true definition of a legal blockade "that particular ports must be actually invested and previous warning given to vessels bound to them not to enter." Not content with these occasional expedients for laying waste American neutral trade, the British Cabinet had resorted at length to the sweeping system of blockades under the name of orders in council. To remonstrances of the United States against the injustice of this innovation Great Britain first replied that the orders were reluctantly adopted in retaliation for decrees of her enemy proclaiming a general blockade of the British Isles at a time when the French naval force dared not issue from its own ports. She had been reminded without effect that her own prior blockades, unsupported by an adequate naval force actually applied and continued, were a bar to this plea. When deprived of this flimsy veil for a prohibition of our trade with her enemy, by the repeal of his prohibition of our trade with Great Britain, her Cabinet formally avowed a determination to persist in the orders in council against the United States until the markets of her enemy should be laid open to British products. It became sufficiently certain that the commerce of the United States was to be sacrificed, not as interfering with British belligerent rights, not as supplying the wants of her enemies, which she herself supplied, "but as interfering with the monopoly which she covets for her own commerce and navigation."

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INSTRUCTIONS TO COMMANDERS OF ARMED SHIPS

The instructions to commanders of private armed ships for the War of 1812 did not mention any of the controversial questions concerning neutral commerce.1 They merely provided that the commanders were to "pay the strictest regard to the rights of neutral powers, and the usages of civilized nations;" and in all proceedings toward neutral vessels were to cause as little interruption as would consist with the right of ascertaining their neutral character." Naval instructions were also general in nature and included a statement that the naval commanders were entitled to "every Belligerent right." 2

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The commanders of armed ships were thus left to determine for themselves, from general knowledge and such published authorities as were available to them, what were the neutral and belligerent rights in question, subject of course to adjudication by a prize court. These rights were determined by the standards of established international law, except as modified by treaties with particular countries.

INSTRUCTIONS TO PEACE COMMISSIONERS

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Secretary Monroe on April 15, 1813, instructed the American commissioners to negotiate peace with Great Britain. He stated that "the impressment of our Seamen and illegal Blockades, as exemplified more particularly in the Orders in Council, were the principal causes of the War." If Great Britain had not persevered obstinately in the violation of these important rights, the war would not have been declared, and it would cease as soon as these rights were respected. Almost every neutral right had been violated and its violation persisted in to the moment war was declared. Monroe hoped, therefore, that for the preservation of peace a satisfactory arrangement could be made respecting the following neutral rights: (1) Regarding blockades it was hoped that the British Government would unite in a more precise definition of a blockade. The British Government had recently given two definitions of blockade; one had been communicated to the Department of State in 1804,* and the other appeared in the Russo-British convention of June, 1801.5 Although the President preferred the first, he was willing to accept either. (2) In securing the United States against a repetition of the interference with American commerce between enemy colonies and their parent country, the commissioners were to "attend to " the eleventh article of the project of treaty between the United

Document 57, p. 280. 2 Ibid., footnote 1, p. 281.

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Document 58, p. 281. 'See p. 31.

See p. 26.

States and Great Britain and to the Department's instructions relating to that article, May 20, 1807.1 The capture by Great Britain of almost all the islands of her enemies diminished the importance of any regulation on the subject, but as they might be restored by the peace treaty, Monroe thought this merited particular attention. It was to be understood, however, that unless such a trade could be obtained in a proper extent and without a relinquishment of the principle contended for by the United States, it would be best that the treaty remain silent on the subject. (3) They were to endeavor to restrict contraband of war to the list contained in the fourth article of the treaty project sent Monroe at London.2

In general, it was considered highly important to obtain the definitions of neutral rights referred to above, especially of blockade, but it was not to be an indispensable condition of peace. In every case where they were unable to obtain a satisfactory definition of the neutral right, they were to enter into none respecting it. Finally Monroe stated that "a good intelligence between the United States and Russia respecting neutral rights" might have an important influence in securing them from violation in any future war and might even tend to prevent war; that the opportunity afforded by the Russian mediation to explain fully to the Russian Government the just views and concurring policy of the United States would presumably contribute much to the establishment of such an understanding.

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On April 27 the commissioners were authorized to enter into a treaty of amity and commerce with Russia. Monroe again mentioned the desirability of a good intelligence between the two countries in respect to neutral rights. In promoting peace these rights would come into view, and on each the Russian Government would probably express an opinion which doubtless would be sound and such as should be satisfactory to every other power. Whatever stipulations might be entered into with Russia on the subject of neutral rights, the commissioners were to "be careful not to commit the United States in any way to maintain and enforce those rights on other powers, or to prolong the present War with Great Britain."

The treaty of peace of December 31, 1814, was silent on the subject of neutral commerce, and the treaty of commerce with Russia was made the subject of further negotiations.*

STATEMENTS ON BLOCKADE

On June 29, 1814, President Monroe issued a proclamation concerning the blockade of the Atlantic Coast of the United States,

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which had been proclaimed by the enemy.1 The proclamation stated that such a blockade, nearly 2,000 miles in extent, could not be carried into effect by any adequate force stationed for the purpose; that by the daily arrival and departure of vessels it was certain that no such adequate force. had been so stationed; that a blockade thus destitute of the character of a regular and legal blockade, as defined and recognized by the established law of nations, formed no lawful obstacle to neutral and friendly vessels desiring to visit and trade with the United States. As it accorded with the interest and the amicable views of the United States to favor and promote so far as possible free commercial intercourse of all friendly nations, the President ordered all public and private armed vessels not to interrupt, detain, or otherwise molest any neutral vessels bound to any port within the jurisdiction of the United States, but on the contrary to render "aid and kind offices" to them.

A similar expression on the subject of an effective blockade was included in a note of March 20, 1816, to the Spanish Minister regarding the blockade of Spanish colonies in South America. On that date Secretary Monroe stated that no maxim of the law of nations was better established than that a blockade should be confined to particular ports and that an adequate force should be stationed at each.

COURT DECISIONS

One of the most important Supreme Court opinions arising from the War of 1812 was given in the case of The Nereide, March 11, 1815. Part of the opinion related to an interpretation of the treaty of 1795 with Spain which provided that free ships should make free goods but which did not mention the converse proposition that enemy ships should make enemy goods. In answering the question whether the treaty subjected the goods of either party, when neutral, to condemnation as enemy property if found by the other in an enemy vessel, the Court held: "The rule that the goods of an enemy found in the vessel of a friend are prize of war, and that the goods of a friend found in the vessel of an enemy are to be restored, is believed to be a part of the original law of nations, as generally, perhaps universally, acknowledged." This rule, which was founded on the simple and intelligible principle that war gave a full right to capture enemy. goods but gave no right to capture friendly goods, had been "fully and unequivocally recognized by the United States." Many nations had varied this simple principle of public law, and if they

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stipulated either that the neutral flag should cover enemy goods or that the enemy flag should infect friendly goods there appeared to be no necessity for implying a distinct stipulation not expressed by the parties.

Furthermore, the Court considered that the two principles were not indivisible. The armed neutrality had provided that free ships should make free goods but not for the converse maxim. Since then treaties of various powers, including the United States, had stipulated sometimes for one of the maxims, sometimes for the other, sometimes for neither, and sometimes for both. Finally, the Court stated, "It is therefore clearly understood in the United States, so far as an opinion can be formed on their treaties, that one principle is totally independent of the other."

In May, 1815, the United States Circuit Court gave an opinion in the case of Maisonnaire et al. vs. Keating on another disputed point relating to neutral trade.1 The Court held that although provisions were not in general contraband of war it was clear that they became so "when destined to a port of naval equipment of an enemy, and a fortiori, when destined for the supply of his army."

The Supreme Court in The Commercen decision of March, 1816, gave a similar opinion. It held that by the modern law of nations provisions were not in general deemed contraband, but might become so on account of the particular situation of the war or on account of their destination. If they were "destined for the army or navy of the enemy, or for his ports of naval or military equipment" they were deemed contraband.

INSTRUCTIONS TO THE MINISTERS IN RUSSIA AND GREAT BRITAIN

Secretary Monroe on May 10, 1816, instructed the Minister to Russia on the subject of a commercial treaty. Although in the instruction of April 27, 1813, the initiative in provisions regarding neutral rights was left to Russia, an outline of articles for the treaty was now put forward. The neutral rights of the parties were to be defined with the distinct understanding that the reciprocity of the stipulations should impose no obligation on the neutral party in respect to the belligerent, but the rights should be common to both, to be taken advantage of as circumstances permitted. From that point of view, a very just and liberal definition could be entered into respecting blockade," the freedom of the flag to the goods," contraband of war, trade with enemy colonies and between them and the parent country, and trade between enemy ports. Monroe stated that "a liberal code" of neutral rights suited both the United States and Document 64, p. 293. 3 Document 65, p. 294.

1 Document 62, p. 292.

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