Alfred Thayer Mahan - Sea Power in its Relations to the War of 1812. Volume 1

During the next great maritime war, that of American Independence, the United States were involved as belligerents, and the only maritime neutrals were Holland and the Baltic States. These drew together in a league known historically as the Armed Neutrality of 1780, in opposition to certain British interpretations of the rights of neutrals and belligerents; but in their formulated demands that of open trade with the colonies of belligerents does not appear, although there is found one closely cognate to it,—an asserted right to coasting trade, from port to port, of a country at war. The Rule of 1756 therefore remained, in 1793, a definition of international maritime law laid down by British courts, but not elsewhere accepted; and it rested upon a logical deduction from a system of colonial administration universal at that period. The logical deduction may be stated thus. The mother country, for its own benefit, reserves to itself both the inward and outward trade; the products of the colony, and the supplying of it with necessaries. The carriage of these commodities is also confined to its own ships. Colonial commerce and navigation are thus each a national monopoly. To open to neutrals the navigation, the carriage of products and supplies, in time of war, is a war measure simply, designed to preserve a benefit endangered by the other belligerent. As a war measure, it tends to support the financial and naval strength of the nation employing it; and therefore, to an opponent whose naval power is capable of destroying that element of strength, the stepping in of a neutral to cover it is clearly an injury. The neutral so doing commits an unfriendly act, partial between the two combatants; because it aids the one in a proceeding, the origin and object of which are purely belligerent.

When the United States in 1776 entered the family of nations, she came without colonies, but in the war attendant upon her liberation she had no rights as a neutral. In the interval of peace, between 1783 and 1793, she had endeavored, as has been seen, to establish between herself and the Caribbean region those conditions of open navigation which were indicated as natural by the geographical relations of the two and their several products. This had been refused by Great Britain; but France had conceded it on a restricted scale, plainly contrived, by the limitation of sixty tons on the size of vessels engaged, to counteract any attempt at direct carriage from the islands to Europe, which was not permitted. Under these circumstances the United States was brought into collision with the Rule of 1756, for the first time, by the Order in Council of November 6, 1793. A people without colonies, and with a rapidly growing navigation, could have no sympathy with a system, coextensive with Europe, which monopolized the carriage of colonial products. The immediate attitude assumed was one of antagonism; and the wrong as felt was the greater, because the direct intercourse between the United States and the then great French colonies was not incidental to war, but had been established in peace. In principle, the Rule rested for its validity upon an exception made in war, for the purposes of war.

The British Government in fact had overlooked that the Rule had originated in European conditions; and, if applicable at all to the new transatlantic state, it could only be if conditions were the same, or equivalent. Till now, by universal usage, trade from colonies had been only to the mother country; the appearance of an American state with no colonies introduced two factors hitherto non-existent. Here was a people not identified with a general system of colonial exclusiveness; and also, from their geographical situation, it was possible for a European government to permit them to trade with its colonies, without serious trespass on the privileges reserved to the mother country. The monopoly of the latter consisted not only in the commerce and carrying trade of the colony, but in the entrepôt ; that is, in the receipt and storage of the colonial produce, and its distribution to less favored European communities,—the profit, in short, of the middleman, or broker. France had recognized, though but partially, this difference of conditions, and in somewhat grudging manner had opened her West Indian ports to American vessels, for intercourse with their own country. This trade, being permitted in peace, did not come under the British Rule; therefore by its own principle the seizures under it were unlawful. Accordingly, on January 8, 1794, the order was revoked, and the application limited to vessels bound from the West Indies direct to Europe.

This further Order in Council preserved the principle of the Rule of 1756, but it removed the cause of a great number of the seizures which had afflicted American shipping. There were nevertheless, among these, some cases of vessels bound direct to France from French colonies, laden with colonial produce; one of which was the first presented to Jay on his arrival in London. In writing to the Secretary of State he says, "It unfortunately happens that this is not among the strongest of the cases;" and in a return made three years later to Congress, of losses recovered under the treaty, this vessel's name does not appear. In the opinion of counsel, submitted to Jay, it was unlikely that the case would be reversed on appeal, because it unequivocally fell under the Rule. 109 109 American State Papers, Foreign Relations, vol. i. p. 476. It is therefore to be inferred that this principle, the operation of which was revived so disastrously in 1805, was not surrendered by the British Government in 1794. In fact, in the discussions between Mr. Jay and the British Minister of Foreign Affairs, there seems to have been on both sides a disposition to avoid pronouncements upon points of abstract right. It remained the constant policy of British negotiators, throughout this thorny period, to seek modes of temporary arrangement, which should obviate immediate causes of complaint; leaving principles untouched, to be asserted, if desirable, at a more favorable moment. This was quite contrary to the wishes of the United States Government, which repeatedly intimated to Jay that in the case of the Rule of 1756 it desired to settle the question of principle, which it denied. To this it had attached several other topics touching maritime neutral rights, such as the flag covering the cargo, and matters of contraband. 110 110 American State Papers, Foreign Relations, vol. i. pp. 472-474.

Jay apparently satisfied himself, by his interviews and observation of public feeling in England, that at the moment it was vain for a country without a navy to expect from Great Britain any surrender of right, as interpreted by her jurists; that the most to be accomplished was the adoption of measures which should as far as possible extend the immediate scope of American commerce, and remove its present injuries, presenting withal a probability of future further concessions. In his letter transmitting the treaty, he wrote: "That Britain, at this period, and involved in war, should not admit principles which would impeach the propriety of her conduct in seizing provisions bound to France, and enemy's property on board neutral vessels, does not appear to me extraordinary. The articles, as they now stand, secure compensation for seizures, and leave us at liberty to decide whether they were made in such cases as to be warranted by the existing law of nations." 111 111 Ibid., p. 503. The italics are Jay's, and the expression is obscure; but it seems to imply that, while either nation, in their respective claims for damages, would be bound by the decision of the commissioners provided for their settlement by the treaty, it would preserve the right to its own opinion as to whether the decision was in accordance with admitted law, binding in the future. In short, acceptance of the Rule of 1756 would not be affected by the findings upon the claims. If adverse to Great Britain, she could still assert the Rule in times to come, if expedient; if against the United States, she likewise, while submitting, reserved the right of protest, with or without arms, against its renewed enforcement.