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The question of a bonâ fide importation, like all others involving a question of intention, could be determined only by the character of the transactions attending it; but it was held generally that actual landing and storage, with payment of the duties, was sufficient proof, unless rebutted by other circumstances. Early in the war following the peace of Amiens, the British courts awoke to the fact that the duties paid on goods so imported were simply secured by a bond, and that on re-exportation a drawback was given, so that a very small percentage of the nominal duties was actually paid. ³⁶¹ Upon this ground a ship was condemned in May, 1805, and great numbers of American vessels carrying colonial produce to Europe were seized and brought into port, as well as others proceeding from the United States to the West Indies, with cargoes originating in the mother countries; and when, in the opinion of the court, the duties had been only nominally paid, they were condemned. It is hard to see the soundness of an objection to these decisions, based on the validity of the payments; but the action of the British government is open to severe censure in that no warning was given of its purpose no longer to accept, as proof of importation, the payment of duties by bond, on which drawback was given. Whether it had known the law of the United States or not, that law had been open to it, and ignorance of its provisions was due not to any want of publicity, but to the carelessness of British authorities. Under the circumstances, the first seizures were little short of robbery.

The reclamations of the United States met with little attention during Pitt's brief second administration; but after his death, in January, 1806, and the accession to office of Grenville and Fox, a more conciliatory attitude was shown,—especially by the latter, who became Minister of Foreign Affairs. Favorably inclined to the Americans since his opposition to the policy of the Revolutionary War, he seemed desirous of conceding their wishes; but the pressure from without, joined to opposition within the ministry, prevented a frank reversal of the course pursued. Instead of the Rule of 1756, Fox obtained an Order in Council, dated May 16, 1806, placing the coast of the Continent, from Brest to the Elbe, in a state of blockade. The blockade, however, was only to be enforced strictly between the mouth of the Seine and Ostend. Into ports between those two points no neutral would be admitted on any pretext, and, if attempting to enter, would be condemned; but on either side, neutral ships could go in and out freely, provided they "had not been laden at any port belonging to his Majesty's enemies, or, if departing, were not destined to any port belonging to his Majesty's enemies." The wording of the order was evidently framed to avoid all question as to the origin of cargoes, upon which the Rule of 1756 hinged. Not the origin of the cargo, but the port of lading, determined the admission of the neutral ship to the harbors partially blockaded; and if to them, then, a fortiori, to all open ports of the enemy. On the other hand, the strict blockade already established of the Elbe and Weser was by this order partially relieved, in the expectation that neutrals would carry British manufactures to those northern markets. In short, the Order was a compromise, granting something both to the mercantile interest and to the Americans, though not conceding the full demands of either. It is at best doubtful whether the British were able to establish an effective blockade over the extent of coast from Brest to the Elbe, but the United States and Napoleon had no doubts whatever about it; and it thus fell, by a singular irony of fate, to the most liberal of the British statesmen, the friend of the Americans and of Napoleon, as almost the last act of his life, to fire the train which led to the Berlin and Milan decrees, to the Orders in Council of 1807, and to the war with the United States six years later.

Fox died on the 13th of September, 1806, and was succeeded as Minister of Foreign Affairs by Lord Howick. On the 25th of the same month the partial restrictions still imposed on the Elbe and the Weser were removed; so that neutral ships, even though from the ports of an enemy of Great Britain, were able to enter. In the mean time, war had broken out between France and Prussia; the battle of Jena was fought October 14, and on the 26th Napoleon entered Berlin. The battle of Trafalgar, a twelvemonth before, had shattered all his confidence in the French navy and destroyed his hopes of directly invading Great Britain. On the other hand the short campaign of 1805 had overthrown the Austrian power, and that of 1806 had just laid Prussia at his feet. The dream of reducing Great Britain by the destruction of her commercial prosperity, long floating in his mind, now became tangible, and was formulated into the phrase that he "would conquer the sea by the land." Two of the great military monarchies were already prostrate. Spain, Holland, Italy, and the smaller German states were vassals, more or less unwilling, but completely under his control; there seemed no reason to doubt that he could impose his will on the Continent and force it to close every port to British trade. On the 21st of November, 1806, the emperor issued the famous Berlin Decree; and then, having taken the first in the series of fated steps which led to his ruin, he turned to the eastward and plunged with his army into the rigors of a Polish winter to fulfil his destiny.

CHAPTER XVIII

The Warfare against Commerce, 1806-1812

The Berlin and Milan Decrees of Napoleon, 1806 and 1807.—The British Orders in Council, 1807-1809.—Analysis of the Policy of these Measures of the two Belligerents.—Outline of Contemporary Leading Events.

NAPOLEON'S Berlin decree alleged many reasons and contained many provisions; but the essential underlying idea was to crush the commerce of Great Britain by closing the Continent to her products of every kind. ³⁶² The pretext was found in the Order in Council of May 16, 1806, issued by the ministry of Grenville and Fox, putting the coast of the Continent from Brest to the Elbe under blockade. Napoleon asserted that the right to blockade applied only to fortified, not to commercial, ports, which was not true; and further, that the united forces of Great Britain were unable to maintain so extensive an operation, which, if not certainly true, was at least plausible. Retaliating an abuse, if it were one, with a yet greater excess, the Berlin decree began by declaring the British islands blockaded, at a time when the emperor could not keep a ship at sea, except as a fugitive from the omnipresent fleets of his enemy. From this condition of phantom blockade it resulted that all commerce with the British Islands was forbidden; and consequently all merchandise exported from them, having been unlawfully carried, became good prize. Vessels from Great Britain could not be admitted into French ports. Further, as the British refused to surrender the old rule, by which the goods of individual enemies at sea were liable to capture, Napoleon decreed that not only the property of individual Englishmen on the Continent was to be seized, but also that of individual neutrals, if of British origin. The preamble ended with a clause defining the duration of the edict, by which the emperor burned his ships, laying down conditions which Great Britain would never accept until at her last gasp. "The present decree shall be considered as a fundamental principle of the Empire, until England has acknowledged that the law of war is one and the same on the land as on the sea; that it cannot be extended to private property of whatever kind, nor to the person of individuals not in the profession of arms, and that the right of blockade must be restricted to fortified places, actually invested by sufficient forces."

Having launched his missile, Napoleon became at once engaged in the campaign against Russia. The bloody and doubtful battle of Eylau was fought on the 8th of February, 1807, and for the next few months the emperor was too busily engaged, holding on by his teeth on the banks of the Vistula, to superintend the working of his decree. ³⁶³ Immediately upon its promulgation in Paris, the American minister demanded an explanation on several points from the Minister of Marine, who replied that he did not understand it to make any alterations in the laws respecting maritime captures, and that an American vessel could not be taken at sea merely on the ground that she was bound to, or coming from, a British port; this he inferred from the fact that such vessels were, by the seventh article, denied admission to French ports. ³⁶⁴ The inference, natural though it was, only showed how elastic and slippery the terms of Napoleon's orders could be. The whole edict, in fact, remained a dead letter until the struggle with Russia was decided. At first, British merchants desisted from sending to the Continent; but, as advices showed that the decree was inoperative, shipments by neutral vessels became as brisk as at any time before, and so continued until August or September, 1807. ³⁶⁵ The battle of Friedland, resulting in the total defeat of the Russian army, was fought on the 14th of June; on the 22d an armistice was signed; and on the 25th Alexander and Napoleon had their first interview upon the raft in the Niemen. On the 8th of July was concluded the remarkable and, to Europe, threatening Treaty of Tilsit. The czar recognized all the new states created by the emperor, and ceded to him the maritime positions of the Ionian Islands, and the mouths of the Cattaro in the Adriatic; in return for which Napoleon acquiesced in Russia's taking Finland from Sweden, and also, under certain conditions, the European provinces of the Turkish Empire as far as the Balkans. A further clause, buried in the most profound secrecy, bound Russia and France to make common cause in all circumstances; to unite their forces by land and sea in any war they should have to maintain; to take arms against Great Britain, if she would not subscribe to this treaty; and to summon, jointly, Sweden, Denmark, Portugal, and Austria to concur in the projects of Russia and France,—that is to say, to shut their ports to England and to declare war against her. ³⁶⁶

At the time the Berlin decree was issued, negotiations were proceeding in London, between the United States envoys and the British ministry, concerning the several matters in dispute between the two countries; and on the 31st of December, 1806, a commercial treaty was signed by the respective commissioners. The vexed question of the trade between the hostile countries and their colonies was arranged, by a stipulation that goods imported from the colonies to the United States might be re-exported, provided, after deducting the drawback, they had paid full two per cent duties, ad valorem, to the Treasury; and that articles coming from the mother countries might likewise be re-shipped to the colonies, provided they remained subject to one per cent duty, after recovering the drawback. These, as well as other features of the treaty, were not acceptable to the United States, and it was not ratified by that government.

Meantime the British ministry had been considering the terms of the Berlin decree, and, instead of waiting to see how far it would become operative, determined to retort by a measure of retaliation. On the 7th of January, 1807, an Order in Council was issued by the Whig ministers, which often returned to plague them in the succeeding years, when they, in opposition, were severely criticising the better known measures of the following November. The January Order, after quoting Napoleon's decree, avowed his Majesty's unwillingness to carry to extremes his undoubted right of retaliation; and therefore, for the present, went no further than to forbid all trade by neutral vessels "from one port to another, both of which ports shall belong to, or be in possession of, France or her allies, or shall be so far under their control as that British vessels may not freely trade thereat." ³⁶⁷ The direct object of this step was to stop the coastwise trade in Europe; its principle was the right of retaliation; in its effect, it was an extension of the prohibition laid by the Rule of 1756. The latter forbade the direct trade between hostile colonies and the mother countries; the order of January, 1807, extended the restriction to trade between any two hostile ports. It bore particularly hard upon American ships, which were in the habit of going from place to place in Europe, either seeking the best markets or gathering a cargo. Under it, "American trade in the Mediterranean was swept away by seizures and condemnations, and that in other seas threatened with the same fate." ³⁶⁸

Matters were in this state when Napoleon returned to Paris at the end of July, full of his projects against Great Britain, and against neutrals as the abettors of her prosperity. His aims were not limited to crushing her by commercial oppression; in the not distant future he intended to seize the navies of Europe and combine them in a direct assault upon her maritime power. On the 19th of July, while he was still at Dresden, Portugal was notified that she must choose between war with France or with Great Britain; and on the 31st, from Paris, a similar intimation was given to Denmark. ³⁶⁹ To constrain the latter, a corps under Bernadotte was collecting on her frontiers; while another, under Junot, was assembling in the south of France to invade Portugal. But in both countries Napoleon was anticipated by Great Britain. The ministry had received certain information ³⁷⁰ of the secret articles agreed to at Tilsit, and foresaw the danger of allowing the two navies of Denmark and Portugal to fall into the hands of the emperor. Early in August twenty-five sail-of-the-line entered the Baltic, convoying transports with twenty-seven thousand troops; the island on which Copenhagen stands was invested by the ships, and the town itself by the army. The Danish government was then summoned to surrender its fleet into the safe keeping of Great Britain, a pledge being offered that it, and all other maritime equipment delivered, should be held only as a deposit and restored at a general peace. The offer being refused, the city was bombarded from the 2d to the 5th of September, at the expiration of which time the terms demanded were yielded, the British took possession of eighteen sail-of-the-line besides a number of frigates, stripped the dockyards of their stores, and returned to England. The transaction has been visited with the most severe, yet uncalled-for, condemnation. The British ministry knew the intention of Napoleon to invade Denmark, to force her into war, and that the fleet would soon pass into his hands, if not snatched away. They avoided the mistake made by Pitt, in seizing the Spanish frigates in 1804; for the force sent to Copenhagen was sufficient to make opposition hopeless and to justify submission. To have receded before the obstinacy of the Danish government would have been utter weakness.

In Portugal Great Britain had to deal with a friendly nation, instead of the hostile prepossessions of Denmark. The French corps of invasion, under Junot, entered Spain on its way to Portugal on the 17th of October. Under the urgent and unsparing orders of Napoleon it made a march of extreme suffering with great rapidity, losing most of its numbers by the way from privation, exposure, or straggling; but when the handful that kept together entered Lisbon on the 30th of November, it found the Portuguese fleet gone, and that the court and its treasure had departed with it. The British government had for some time past expected such an attempt by Napoleon, and at the critical moment a squadron on the spot determined the vacillating regent to withdraw to Brazil.

Though foiled in his endeavors to seize the fleets, Napoleon had succeeded in formally closing the ports of the two countries to the introduction of British goods; while the bombardment at Copenhagen had served as a colorable pretext for the declaration of hostility against Great Britain made by Russia on the 20th of October. The mediation proposed by the czar had already been refused by the British ministry, unless the articles of the Treaty of Tilsit were first communicated to it; ³⁷¹ but those articles were not of a character to bear such an exposure. Prussia, under the compulsion of the two empires, closed her ports against Great Britain by a proclamation dated September 2d; no navigation nor trade with England or her colonies was to be permitted, either in British or in neutral vessels. ³⁷² Austria also acceded to the Continental System, and excluded British goods from her borders. ³⁷³ In Italy, the new kingdom of Etruria showed little zeal in enforcing Napoleon's commands to co-operate in his measures; the British carried on commerce at Leghorn, as freely as at any port in their own country. By the emperor's orders the viceroy of Italy therefore took possession of the city; and at the same time French detachments entered also the Papal States, occupied their coasts, and drove the British from them. Joseph Bonaparte being already king of Naples, the control of Napoleon and the exclusion of his enemies were thus extended over both coasts of Italy. Turkey being at this time involved in hostilities with Great Britain, the emperor was able to assert that "England sees her merchandise repelled by all Europe; and her ships, loaded with useless wealth, seek in vain, from the Sound to the Hellespont, a port open to receive them." ³⁷⁴ Decrees applying extreme rigor to the examination of vessels entering the Elbe and the Weser were issued on the 6th of August and 13th of November. ³⁷⁵ Napoleon had a special grudge against the two Hanseatic cities, Bremen and Hamburg, which had long mocked his efforts to prevent the introduction of British merchandise to the Continent; for which the commercial aptitudes of their merchants, their extensive intelligence abroad, and their noble rivers, afforded peculiar facilities. Despite all these efforts and the external appearances of universal submission, there still occurred wide-spread evasions of the emperor's orders, to which allusion must be made later. It is necessary, before doing so, to give the contemporary measures of other nations, in order that the whole situation, at once of public regulation and private disobedience, together with the final results, may come distinctly before the reader.

Great as was the power of Napoleon, it ceased, like that of certain wizards, when it reached the water. Enemies and neutrals alike bowed to his invincible armies and his superb genius when he could reach them by land; but beyond the water there was one enemy, Great Britain, and one neutral, America, whom he could not directly touch. The spirit of his course toward England and his initiatory steps have been given; it remained now to define his action toward the United States. Weak as the latter was, feeble to humiliation as had been the course of its government hitherto, and although the prepossessions of the party in power were undoubtedly strongly against Great Britain, the question was one of immense importance; but the emperor, who respected nothing but force, failed so to realize it. He stood just where the Directory stood at the end of 1797, every enemy but Great Britain overthrown, but seeing her defiant still and prosperous. Napoleon, however, had, what the Directory had not, experimental evidence of the results of such restrictions upon neutrals as were imposed by the law of January 18, 1798. It was possible to ascribe the disastrous effects to France of that measure, and its total failure to achieve the object intended, to one of two totally distinct causes. Either the law had been inadequately enforced, owing to the feeble executive efforts of the Directors and the comparatively limited extent of their influence, or else it was in its nature and essence so contrary to the true interest and policy of France that the very limitations imposed by defective power had saved her, and the ability to carry it further would have ended in utter ruin. Pursued somewhat further, the question became: Will it be possible, not for France only but for all Europe,—for the concurrence of all Europe is necessary to the effectual working of the scheme,—to dispense with the neutral carrier (whom it is the tendency of the Berlin decree to repel) for a length of time sufficient to ruin Great Britain? Can Europe forego external commerce for a longer time than Great Britain can spare the European market? Can the intercourse between the continental nations be so facilitated, the accustomed routes of import and export so modified, such changes introduced into the habits of manufacture and consumption, as will render bearable the demands made upon the patience of nations? If, as the Order in Council of January seems to indicate, Great Britain resent the attempt to keep neutrals from her ports, by retaliatory measures impeding their traffic with the Continent, upon whom will these combined French and English restrictions fall most heavily?—upon the state having a large body of merchant ships, to which neutrals are the natural rivals; or upon the nations whose shipping is small, and to whom therefore neutrals are useful, if not necessary, auxiliaries?

In a commercial war, as in any other, the question must be faced whether with ten thousand it is possible to meet him who is coming with twenty thousand. As a matter of fact, while Napoleon was contemplating a measure which would most injuriously affect neutrals, already largely employed in transporting British goods, the jealousy of British merchants and statesmen was keenly excited by the growth of this neutral carrying trade, ³⁷⁶ and they were casting about for a pretext and a means to cripple it. The Berlin decree revived the clamor of these men, who, being then in opposition, had condemned the Order of January, 1807, for not carrying retaliation far enough, and for directing it upon the coasting trade, which could only partially be reached, instead of upon the neutral carriage of colonial goods, which lay open everywhere to the British navy. A change of ministry in the latter part of March, 1807, brought this party again into power, after an absence from it of fourteen months since the death of Pitt. In the mean time, however, the decree had remained inoperative, through the absence of Napoleon in Poland, the decisions of the Minister of Marine as to its scope, and the connivance of the local authorities everywhere in its neglect. No further steps therefore had been taken by the new British ministry up to the time of the emperor's return to Paris. The latter at first only issued some additional regulations of a municipal character, to ensure a stricter observance, but he was soon called upon to give a momentous decision. The opinion of the Minister of Marine, as to the meaning of certain clauses of the decree, ³⁷⁷ was submitted to him by the Minister of Justice; and he stated that the true original intention was that French armed vessels should seize and bring into port neutrals having on board any goods of British origin, even though at the time neutral property. As to whether they should also arrest neutrals for the simple reason that they were going to, or coming from, the British Islands, his Majesty reserved his decision. This dictum of the emperor, which threw to the winds the ruling of the Minister of Marine, was given to the prize courts on the 18th of September, 1807, and shortly afterward the latter acted upon it in the case of an American ship wrecked upon the French coast; that part of her cargo which was of British origin was ordered to be sold for the benefit of the state. ³⁷⁸ The effect of Napoleon's pronouncements was at once seen in Great Britain. The insurance of neutral ships bound to continental ports, especially to those of Holland and Hamburg, rose from four guineas in August to eight and twelve in October, and some insurers refused to take risks even at twenty-five and thirty. In the two months of September and October sixty-five permits were issued by the Custom House to re-land and store cargoes that had actually been shipped for the Continent. ³⁷⁹ The Tory ministry now had the pretext it wanted for a far-reaching and exhaustive measure of retaliation.

Napoleon's decisions of September 18 were communicated to the Congress of the United States on December 18 by the President; who at the same time transmitted a proclamation from the king of Great Britain, dated October 16, directing the impressment of British seamen found serving on board any foreign merchant ship. ³⁸⁰ In view of the dangers to which American vessels were exposed by the action of the two belligerents, an embargo was recommended, to insure their safety by keeping them in their own ports; the real purpose, however, being to retaliate upon Great Britain, in pursuance of the policy of a Non-Importation Act directed against that country, which had gone into effect the previous July. An Act of Embargo was accordingly at once passed, and was approved on the 22d of December. ³⁸¹ All registered vessels belonging to the United States were forbidden to depart from the ports in which they were then lying, except upon giving bond that their cargoes would be landed in another port of the country. This continued in force throughout the year 1808 and until March 1, 1809, when it was repealed; and for it was substituted a Non-Intercourse Act, ³⁸² which allowed the merchant ships of the United States to go abroad in search of employment and to traffic between their own and other countries, except Great Britain and France and the colonies occupied by them, which were wholly forbidden to American vessels. They not only could not clear from home for those countries, but they were required to give bond that they would not, during the voyage, enter any of their ports, nor be directly or indirectly engaged in any trade with them. French or British ships entering a port of the United States were to be seized and condemned. This act was to continue in force until the end of the next session of Congress; and it accordingly remained the law governing the intercourse of the United States with Great Britain and France until May, 1810.

On the 11th of November, 1807, were published the great retaliatory measures of Great Britain, which for the moment filled the cup of neutrals. Setting forth the Berlin Decree as the justifying ground for their action, the Orders in Council of that date ³⁸³ proclaimed a paper blockade, of the barest form and most extensive scope, of all enemies' ports. "All ports and places of France and her allies, or of any other country at war with his Majesty, and all other ports or places in Europe from which, although not at war with his Majesty, the British flag is excluded, and all ports in the colonies of his Majesty's enemies, shall from henceforth be subject to the same restrictions, in point of trade and navigation, as if the same were actually blockaded in the most strict and rigorous manner." All trade in hostile colonial produce was likewise declared unlawful for neutrals.

An actual blockade, such as is here mentioned, requires the presence off the blockaded port of a force sufficient to make entrance or departure manifestly dangerous; in which case a vessel attempting to pass in either direction is, by that common consent of nations called International Law, justly liable to capture. To place such a force before each of the many and widely scattered harbors embraced by these Orders, was evidently beyond the power of even the vast numbers of the British navy. The object which could not be attained by the use of means acknowledged to be lawful, the British ministry determined to compass by sheer force, by that maritime supremacy which they unquestionably wielded, and which they could make effectual to the ends they had in view, namely: to maintain the commerce and shipping of Great Britain, upon which her naval strength depended, to force the enemy's trade to pass through her ports, and thus to raise her revenues to the point necessary to her salvation in the life and death struggle in which she was embarked. ³⁸⁴

The entire suppression of trade with the restricted coasts, whether by neutral carriers or in the articles of import or export the world needed, was in no sense whatever the object of the British ministers. To retaliate on their enemy was the first aim, to make him suffer as he had meant to make them; but, withal, to turn his own measures against him, so that while he was straitened, Great Britain should reap some amelioration for her own troubles. Throughout this stormy and woeful period, the instinct of the British nation recognized that the hearts of the continental peoples were with them rather than with Napoleon,—and for much the same reason that the United States, contrary alike to the general interests of mankind and to her own, sided upon the whole, though by no means unanimously, against Great Britain. In either case the immediate oppressor was the object of hatred. Throughout the five years or more that the Continental blockade was in force, the Continental nations saw the British trying everywhere, with more or less success, to come to their relief,—to break through the iron barrier which Napoleon had established. During great part of that time a considerable intercourse did prevail; and the mutual intelligence thus maintained made clear to all parties the community of interests that bound them together, notwithstanding the political hostilities. Nothing appears more clearly, between the lines of the British diplomatic correspondence, than the conviction that the people were ready to further their efforts to circumvent the measures of Napoleon.