The reason for these evasions and subterfuges becomes apparent when it is understood that the admiralty court held that, in case a vessel is forced to break blockade out of necessity, such, for instance, as need of repair or stress of weather, and does not deliver its cargo, it is not subject to capture.23

In the case of the James Cook the court held that it has been determined over and over again that a ship is not at liberty to go up to the mouth of a blockaded port even to make inquiry; that in itself is a consummation of the offense, and amounts to an actual breach of blockade. 24

On December 21, 1807, Congress passed the Embargo Act prohibiting the sailing of any vessel from any port of the United States to any foreign port, except foreign armed public ships and foreign merchant vessels in ballast.

On January 8, 1808, a supplementary act was passed requiring coasting and fishing vessels to give bonds to re-land their cargoes in the United States, and still later (March 13th) the provisions of the act were so extended as to include all vessels whether of the size required for registration or smaller.

As a result of the embargo, Napoleon on April 17, 1808, issued his Bayonne decree directing the confiscation of all American vessels in French ports, or which should arrive in them, reasoning that no American vessel could be on the ocean under the embargo, and that therefore those that pretended to be American were in reality British.25 There was some foundation for his assertion, because the American vessels which evaded the embargo did so often through the use of fraudulent British papers and registers.

The embargo becoming very unpopular with the American people, it was repealed, and in its place was substituted the Non-Intercourse Act, March 15, 1809. This act prohibited all commercial intercourse with Great Britain and France.

This was closely followed (April 26, 1809) by a British order in council

23 The Charlotta, June 20, 1810, Edwards' Admiralty Reports, 252.

24 The James Cook, July 3, 1810, Ibid., 264.

25 Am. State Papers, For. Rel. III, 291.

revoking the orders of the 11th of November, 1807, but declaring in their place a blockade of the ports of Holland, France and Italy.26

Napoleon now seemed to suffer one of his peculiar changes of front, and in June, 1809, he decreed that inasmuch as the United States had obtained the revocation of the British orders in council of November, 1807, the Milan decree should be withdrawn. In August, however, the Emperor, through another change of policy, issued a secret decree providing for the confiscation of any American ship that should enter the ports of Spain, France or Italy, and to these Holland was shortly added.27

Macon's Bill No. 2 repealed the Non-Intercourse Act and authorized the President to prohibit commerce with either one of the belligerents who should not recede from its policy of war on neutrals before March 3, 1810.28 This re-established freedom of commerce until one or the other of the belligerent states should withdraw its orders or decrees.

Or March 23, 1810, Napoleon issued his Rambouillet decree, as a remonstrance against the acts of the United States, in which he provided: 29

1. That all vessels navigating under the flag of the United States, or possessed in whole or in part by any citizen or subject of that Power, which, dating from May 20, 1809, may have entered or shall enter into the ports of our Empire, our colonies or the countries occupied by our armies, shall be seized, and the products of the sales shall be deposited in the surplus fund.

Vessels charged with dispatches were exempted.

Upon knowledge of this decree, the United States was almost ready to go to war with France; and it was probably the knowledge of lack of preparation which restrained the government from taking the step. The policy pursued by France up to this time was now found to injure that country more than it benefited her, and in August, 1810, Napoleon instructed his Foreign Minister, the Duc de Cadore, to notify the American Minister, General Armstrong, that after November 1, 1810, the Berlin and Milan decrees would cease to operate as far as the United

26 Anderson, Constitutions and Documents, France, 394-6.

27 E. Channing, The American Nation, Vol. 12, p. 243.

28 Ibid., 245.

29 Anderson, Constitutions and Documents, France, 396-397.

States was concerned.30 On the same day, however, Napoleon ordered that all American vessels which had arrived at French ports between May 20, 1809, and May 1, 1810, should be confiscated, and that no American ship arriving in a French port before November 1st, should be permitted to discharge its cargo without a license.3

31

Under the provisions of the Duc de Cadore's letter one case, that of the New Orleans Packet, was decided in favor of the United States, and this was now used in an attempt to have the British orders in council repealed. But obtaining no satisfaction from this source, Madison, who took the Duc's letter to mean what it said, on November 2, 1810, issued a proclamation cutting off all commercial intercourse with Great Britain.32

The British took the view that a decree officially instituted must be also officially revoked, and that the Duc de Cadore's letter was not such official revocation of the French decrees.33 They held also that the British orders would not expire of themselves on the revocation of the French decrees, but were dependant upon special repeal of the government. The authenticity of the Duc's letter was at the time questioned by the British High Court of Admiralty in the case of the Snipe and Others.34

In the case of the Fox 35 Justice Scott held that the British orders were just, so long as they were retaliatory, but that as soon as they ceased to be retaliatory, they ceased to be just; that, although a state

30 Letter of the Duc de Cadore. August 5, 1810. Edwards' Admiralty Reports. App., Part I, xxi. "I am authorized to declare that the Berlin and Milan decrees are revoked, and will cease to have their effect from the 1st of November: It being well understood that the English shall revoke their orders in council, and renounce their new principles of blockade, or that the United States will cause their rights to be respected by the English."

31 Channing, The American Nation, 249.

32 Ibid., 250.

33 "The declaration of the person styling himself Duc de Cadore, imports no revocation; for that declaration imports only a conditional retraction, and this upon conditions known to be impossible to be complied with. It has been urged that the American Government has considered it otherwise, and has so declared it for the regulation of the conduct of the people of that country." The Fox and Others, Edwards' Adm. Reports, 316, decided May 11, 1811.

34 Edwards' Adm. Reports, 383-395.

35 Am. St. Papers, For. Rel. III, 418 et seq.

is never at liberty to apply a rule harsher than that of the law of nations unless through a just provocation as a retaliatory measure, it is the duty of the court to carry out the measure and it is the duty of the state to decide when the provocation ceases. As a result of this decision, 28 vessels, valued at $254,300, with cargoes valued at $515,500, were declared confiscated by the British prize courts between June 18, 1811, and July 5, 1811, which probably more than any other circumstance made the breach between the United States and Great Britain irreparable.

On the 28th of April 1811, Napoleon officially revoked the Berlin and Milan decrees in consideration of the fact that the Congress of the United States had on the 2nd of March of the same year ordered the execution of the Non-Intercourse Act against Great Britain which had been proclaimed November 2, 1810, by President Madison, but the operation of which had been postponed.36

This was submitted to Lord Castlereagh by Mr. Russell in proof of the revocation of the French decrees on May 20, 1812, in an endeavor to have the British orders repealed; but it was not until June 23, 1812, that the orders of January, 1807, and April, 1809, were definitely revoked. The repeal, however, came too late, for on June 18, 1812, Congress had declared war upon Great Britain.

III. FINAL SETTLEMENTS

During the negotiations for peace carried on by the American diplomatic representatives at Ghent in 1814, the question of blockades was submitted to the British plenipotentiaries in a project of a treaty of peace (Nov. 10, 1814). This, however, is as far as the matter was carried, as it was declared inadmissible by the British delegates. The provisions contained in this proposed article were, that notification must be made directly to the vessel, and that confiscation should be allowable only upon an attempt to enter the blockaded port after such notification. The proposed definition of blockade was that of the Russian treaty of 1801.

In order to determine what characterizes a blockaded port, that denomination is given only to a port where there is, by the deposition of 36 Am. St. Papers, For Rel. III, 432.

the Power which attacks it with ships stationary or sufficiently near, an evident danger in entering.37

In the final treaty of peace of December 24, 1814, the subject did not even receive mention.

The losses suffered by American merchants through the operation of Napoleon's decrees were kept alive through diplomatic channels under the name of French Spoliation Claims, which were finally settled by the treaty of July 4, 1831. In November, 1816, Albert Gallatin brought the subject before the Duke de Richelieu, but the French Government was compelled in an unofficial way to reject the claims, because of financial and other embarrassment, but it considered this to be in no way an official answer. 38 Subsequent to this the claims were repeatedly admitted by the Duke de Richelieu, Vicount de Montmorency, M. de Villele and Count de le Ferronnays. But the French public officials tried continually to weaken them.39

Van Buren held

That the present Government of France is, by the established principles of public law, responsible for those acts, is not, at this day, an open question among civilized nations. The consequences of an opposite doctrine would strike at the root of all confidence in the dealings between different nations. 40

Rives, who negotiated the treaty for the United States, expressed the American point of view when he said:

The Berlin and Milan decrees being gross violations of the public law and faith of treaties [having special reference to the provisions of Articles XII to XXVI of the treaty of September 30, 1800,] are such acts as no sovereign can rightfully perform, and must, therefore, be regarded as null and void. 41

The matter was left to a French commission, which allowed the claims of the United States in the following cases:

1. Sequestration where the property had not been definitely condemned by the Council of Prizes.

37 Am. State Papers, For. Rel. III, 739.

38 Ex. Doc. 147, Vol. 3, p. 51. 22d Cong., 2nd sess., 1832-33.

39 Ibid., p. 20.

40 Ibid., p. 23. 41 Ibid., p. 76.