16th of May a similar declaration was made in respect of the whole coast of the continent, from the river Elbe to the port of Brest, inclusive. In the following September this blockade was declared to be discontinued as to the coast from the Elbe to the Ems.1 The Berlin Decree. In the mean time Napoleon had been meditating the adoption of further measures for the enforcement of his continental system. On the 14th of October 1806 he dispersed the Prussian army at Jena, and on the 27th of the same month entered Berlin. On the 21st of November, four days before setting out from the Prussian capital on his journey to Poland and Russia, he signed at the imperial camp the famous Berlin Decree, which significantly declared that its provisions would "continue to be looked upon as embodying the fundamental principles of the Empire" until England should return to the observance of the law of nations on land and sea. In the preamble to the decree it was recited that England did not recognize the law of nations; that she made prisoners of war of noncombatants, and confiscated private property; that she declared places in a state of blockade before which she had not even a single ship of war, and assumed to extend the right of blockade to entire coasts and the whole of an empire; that the object of these measures was to raise the commerce and industry of England upon the ruins of that of the continent; and consequently that whoever dealt on the continent in English goods rendered himself an accomplice of her designs. To oppose an enemy with such arms as he made use of was a natural right, and it was therefore decreed: 1. That the British Isles were in a state of blockade. 2. That all commerce and all correspondence with them were prohibited. 3. That every English subject found in the countries occupied by French troops, or by those of her allies, should be made a prisoner of war. 4. That all property or merchandise belonging to British subjects should be regarded as lawful prize. 5. That all trade in English goods was forbidden, and that all merchandise belonging to England, or coming from her factories or her colonies, was lawful prize. 6. That half the product of confiscation under the preceding articles should go to indemnify merchants for losses suffered by the capture of their merchant vessels by English cruisers. 7. That no vessel coming directly from England or from the English colonies, or which should have been there since the publication of the decree, should be received in any port. 8. That any vessel contravening the preceding provision by a false declaration should be seized, and the vessel and cargo confiscated as if they were English property. In all cases arising under the decree in the empire, or in the countries occupied by the French army, jurisdiction to pronounce final judgment and the Emperor of the French, it had been stipulated "that the ports of the North Sea, as well as all rivers running into it, shall be shut against the British ships and trade, in the same mauner as when the French troops occupied the State of Hanover." (Ann. Reg. 1806 (159).) On April 1 a proclamation was issued by the King of Prussia, taking definitive posses sion of Hanover. (Ann. Reg. 1806 (160).) Am. State Papers, For. Rel. III. 267. was vested in the Council of Prizes at Paris. The Council of Prizes at Milan was authorized to pronounce final judgment in cases arising" within our Kingdom of Italy." It was also ordered that the decree should be communicated by our minister of foreign affairs to the King of Spain, of Naples, of Holland, and of Etruria, and to our other allies whose subjects, like ours, are the victims of the unjust and barbarous maritime legislation of England." And, finally, it was declared that "our ministers of foreign affairs, of war, of marine, of finance, and of the police, and our directors-general of the ports are charged with the execution of the present decree so far as it affects them." Application of the When Armstrong, then minister of the United States at Paris, read this decree, he sought from Decrès, the minister of marine, an explanation of it. Decrès answered that he considered it "as thus far conveying no modification of the regulations at present observed in France with regard to neutral navigators, nor consequently of the convention of September 30, 1800, with the United States of America;" but he cautiously added that it would be proper for Armstrong to communicate with the minister of foreign affairs, Talleyrand, who might have more positive information on the subject'. Talleyrand was then absent. Literally and indeed naturally construed, the decree directly violated the twelfth, thirteenth, and fourteenth articles of the convention of 1800, which respectively guaranteed freedom of trade with the enemy in goods not contraband, restricted contraband to certain enumerated articles, and provided that free ships should make free goods. For a period of nine months the Government of the United States, by being kept in a state of hopeful uncertainty as to the effect of the decree, was led to appear to acquiesce in it. On the assumption that only the seventh and eighth articles of the decree, respectively prohibiting the entrance of vessels coming directly from English ports, and denouncing coufiscation in such case for the use of false papers, would be enforced against the United States, Armstrong as late as July 7, 1807, wrote to Monroe that it was admitted that the Berlin decree did not violate the convention of 1800. He also stated that of the rule respecting entrance into French ports, he had obtained modifications, so that (1) vessels leaving ports of the United States before the decree was known there were not subject to the rule; (2) vessels not coming directly from a British to a French port were not subject to it; (3) the cargoes of vessels coming directly from a British port to a French port were, on proof that the touching of the ship in England was involuntary, put in sequestration till His Majesty should have decided on the sufficiency of the proof of force majeure, the vessel meanwhile being free to go away. In the following September, however, the imperial purposes were partially disclosed, in such manner as to harmonize with what had actually been taking place. On the 18th of September 1807, Regnier, the minister of justice, writing to the imperial attorney-general for the Council of Prizes, communicated an imperial decision of the 4th of the month on certain questions touching the Berlin decree. Might vessels of war by virtue of the decree seize, on board of neutral vessels, either English property or merchandise proceeding from manufacturers in English territory? In answer, 1Adams's History of the United States, III. 390. it was said that His Majesty had "intimated that, as he had not thought proper to express any exception in his decree, there is no ground for making any in its execution." In the second place it was stated that His Majesty had "postponed a decision on the question, whether French armed vessels might capture neutral vessels bound to or from England, even when they have no English merchandise on board." The purport of this decision, which was also circulated by the director-general of the customs, was that every neutral vessel coming from an English port, with a cargo of English merchandise, or goods of English origin, might be lawfully seized by French armed vessels; and in this sense the Council of Prizes proceeded at once to apply it.2 cargoes # The practical value of the "modifications" which The Antwerp Cases. Armstrong obtained of the Berlin decree is well illustrated in what were known as the Antwerp cases. After the imperial decision of the 4th of September, several American vessels bound to Antwerp were sent away. Prior to that time, however, seven American vessels which had been compelled to touch in England, were admitted; and in accordance with the modified rule their cargoes were sequestered, the vessels themselves being permitted to depart. On August 9, 1807, Armstrong, writing to Champagny, said: "I learn that the are yet under sequestration, and that considerable loss as well by diminution of price in the articles, as by accumulation of interests and charges, has been already incurred." 3 By an order of July 2, 1808, Bonaparte ordered that the cargoes should be sold and the proceeds placed in the caisse d'amortissement, which was the depository of trust funds and securities, and that inquiry should be made as to whether the vessels were not British. The inquiry having elicited the clearest proof that the vessels and cargoes were exclusively owned by American citizens, the execution of the order of sale was postponed. But in 1810 the last of the cargoes was sold, and by an imperial order of July 22, 1810,+ the proceeds were taken from the caisse d'amortissement and turned into the public treasury. Thus the property was finally devoted to imperial uses without trial or condemnation.5 Orders in Council. To the imperial measures the British Government quickly responded. On January 7, 1807, Lord Howick, referring to the Berlin decree, issued an order in council by which neutral vessels were forbidden to trade from one port to another, both of which were in the possession or control of France or her allies. On the 11th of November further orders were issued. These orders, which were issued on the advice of Spencer Perceval and George Canning, and against the remonstrance of Lord Bathurst, the president of the board of trade, prohibited neutral vessels from trading with the ports of France and her allies, and with all ports in Europe from which, though they were not at war with His Britannic Majesty, the British flag was 1 Am. State Papers, For. Rel. III. 25, 244. 2 Am. State Papers, For. Rel. III. 245. 3 Am. State Papers, For. Rel. III. 243. 5 Am. State Papers, For. Rel. V. 284, et seq. excluded, unless such vessels should clear from a British port under regulations to be prescribed in the future. By these orders the ships were required to import their cargoes into England, subject to the laws regulating the payment of customs, and thus to carry on their commerce by way of England. Milan Decree. he declared: On the 17th of December 1807, Napoleon issued at Milan, in retaliation for the British orders in council of the 11th of the preceding November, a decree by which 1. That every ship that had submitted to be searched by an English ship, or had consented to a voyage to England, or had paid any tax to the English Government, was ipso facto denationalized, and was to be deemed good prize. 2. That the British islands were in a state of blockade, and that every ship that should sail from or be destined to a port in Great Britain or the British possessions, or in any country occupied by the British troops, should be good prize. Remonstrance. To the remonstrance of the United States the French Answer to American Government replied that, as the result of the orders in council of November 11, 1807, war existed in fact between England and the United States, and that the Emperor had ordered that the American vessels which might have been brought into the ports of France "should remain sequestered until a decision may be had thereon, according to the disposition which shall have been expressed by the Government of the United States."3 On February 17, 1808, Armstrong said it would appear, from a communication from the minister of marine, that the promise of forbearance would apply only to vessels sequestered in French ports, and not to such as had been captured at sea; and on the 22d of February he reported that two of the sequestered ships and their cargoes had been confiscated by a special decision of the Emperor. On the 18th of July he reported a demand which he had made for an avowal or disavowal of the destruction of four American ships and their cargoes on the high seas by Admiral Baudin." Embargo of 1807. On the 17th of March 1808 President Jefferson communicated to Congress an unofficial copy of the Milan decree, with the comment that the various decrees and orders in council wanted "little of amounting to a declaration that every neutral vessel found on the high seas, whatsoever be her cargo, and whatsoever foreign port be that of her departure or destination, shall be deemed lawful prize;" and that they proved "more and more the expediency of retaining our vessels, our seamen, and property within our own harbors, until the dangers to which they are exposed can be removed or lessened." This passage referred to the act of Congress of December 22, 6 1 Am. State Papers, For. Rel. III. 269-270; Walpole's Life of Spencer Perceval, II. 227. 2 Am. State Papers, For. Rel. III. 290. 3 Id. 249. 4 Id. 250. 5 Id. 253. 6 Id. 80. 1807, by which an embargo was laid on vessels in the ports of the United States. To the immediate operation of this measure an exception was made in favor of foreign vessels, which were allowed to depart either loaded or in ballast, on receiving notice of the act.' When this act took effect many American vessels The Bayonne Decree. were in foreign seas, and it was notorious that they subsequently remained abroad in order to escape the operation of the embargo. Nevertheless, Napoleon, exhaustless in resource, saw in the act a new opportunity. Up to this time the measures of the belligerents had applied equally to all neutral vessels. Napoleon now struck a blow at American commerce alone. By an edict of April 17, 1808, commonly known as the Bayonne Decree, he ordered the seizure of all American vessels which should enter the ports of France, Italy, or the Hause Towns. This measure he justified on the ingenious pretense that, since the laying of the embargo in the United States, no American vessel could navigate the seas without violating the laws of its own country, and thus furnishing a presumption that it was doing so on British account or in British connection.3 Nonintercourse Act of By an act of Congress of March 1, 1809,1 the embargo was repealed, and a policy of nonintercourse as to Great Britain and France was substituted for it. By this act public ships of those countries were forbidden to enter the ports of the United States; and their merchant vessels were forbidden to enter, on penalty of forfeiture, after the 20th of the following May. From and after the same date the importation of merchandise from British and French ports was forbidden. The President was authorized by proclamation to suspend these prohibitions in respect of either nation in case it should revoke or modify its orders or decrees so that they should cease to violate the neutral commerce of the United States. This act was to remain in force only to the end of the next session of Congress. It was continued in force by the act of June 28, 1809.5 Reprisals on American The act of March 1, 1809, was communicated by Armstrong to the French Government on the 29th of the next April. It provoked no remonstrance. On the contrary, moved partly by the fact that the imperial decrees were not operating to the advantage of France, partly by Erskine's arrangement for the suspension of the orders in council, and partly by the new British orders of April 26, 1809, by which a blockade of ports and places under the Government of France was substituted for the orders of November 11, 1807, Napoleon at one time contemplated an arrangement with the United 12 Stats. at L. 451, 452. This act was supplemented by acts of January 9, 1808, 2 Stats. at L. 453; March 12, 1808, 2 Stats. at L. 473; April 25, 1808, 2 Stats. at L. 499; January 9, 1809, 2 Stats. at L. 506. 2 Adams's History of the United States, IV. 303. 3 Am. State Papers, For. Rel. III. 291. 42 Stats. at L. 528. 52 Stats. at L. 550. 6 Am. State Papers, For. Rel. III. 324. |