OF THE

UNITED STATES.

“WERE THE QUESTIONS INVOLVED IN THE FOREIGN
Wars OF THE UNITED STATES OF SUCH A
Nature THat THEY CouLp HAVE
BEEN SUBMITTED TO ARBITRA-

TION OR SETTLED WITHOUT
RECOURSE TO WAR?”

AN ADDRESS BY

HON. JOHN W. FOSTER.

  

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Reprinted from the Proceedings of the Conference of the American Society for
the Judicial Settlement of International Disputes, held in Washington, D. C.,
December 15, 1910.

THE FOREIGN WARS

OF THE

UNITED STATES.

 

The Presiding Officer, Dr. James Brown Scott, said:
It is frequently said that the existence of a court of justice
to which nations may submit their controversies will pre-
serve peace. It is also frequently said that the controversies
which have given rise to war were of such a nature that
they could not be settled by courts of justice or by peaceable
means. If, indeed, these controversies could not have been
settled by submission to tribunals, or by commissions of
arbitration, then our Society has in large part lost its reason
for being here, because .we believe that many of the causes
which in the past have produced war might have been
referred to a judicial tribunal and settled by judicial
methods, without producing armed conflict. For the suc-
cess of our cause it is necessary that we set our own house
in order, that we examine our own conduct in the past,
that we test the questions which produced the foreign wars
of the United States, in order to be sure of the rightfulness
of our position.

Ladies and gentlemen, I have the pleasure of introducing
to you to-night one who has served his country on the field
of battle and who knows from personal knowledge and
experience what war is and what it decides or rather. fails
to decide, who as a diplomat by profession is familiar with
the methods of diplomacy and the possibility of diplomatic
settlement of international controversies; who as a former
Secretary of State knows how nations may refer honorably
to arbitration their disputes which diplomacy has failed to
2

adjust, and who as representative of the United States has
actually conducted arbitrations to which his country was a
party, the Honorable John W. Foster.

ADDRESS OF HON. JOHN W. FOSTER.*

Mr. President, Ladies and Gentlemen: I have been re-
quested by the President of this Society to discuss the topic:
“Were the questions involved in the foreign wars of the
United States of such a nature that they could have been
submitted to arbitration and decided without recourse to
war?” The desired discussion embraces a consideration of
the War of 1812 with Great Britain, the War of 1846 with
Mexico, and the War of 1898 with Spain.

THE WAR OF 1812.

The causes of complaint on the part of our government
which resulted in the War of 1812 with Great Britain are
set forth at some length in what is known as the War Mes-
sage of President Madison, sent to Congress June 1, 1812.’
These causes as there enumerated may be briefly stated in
their order: (1) The visitation of American vessels on
the high seas and the impressment of members of their crews
for the British navy, (2) infringement of American waters
by British cruisers, (3) a sweeping system of blockades
coupled with the Orders in Council, and (4) inciting the
Indians to insurrection. It will be shown that the single

 

1 Before reading his paper Mr. Foster said he had made an address on a similar
topic some months before at a meeting of the American Peace Society in Hartford,
and that he had been severely criticised by a portion of the press for giving utter-
ance to unpatriotic sentiments and defaming his country. In view of this he asked
the indulgence of his audience for making a personal statement. He did not belong
to a “ peace-at-any-price” family. His great-grandfather went through the Revo-
lutionary War as a Virginia rifleman. His grandfather fought with Harrison at
Tippecanoe and in his Canadian campaign. Members of his family went to Kansas
with their rifles in the “ fifties” to save that territory to freedom. And he himself
gave nearly four of the best years of his life as a volunteer in the Civil War to
maintain the Union. He, therefore, claimed the right to discuss the historical
events of our country without being charged with disloyalty.

2 Messages and Papers of the Presidents, vol. I, 499.
3

question upon which the war was finally declared was that
of blockade, and that immediately after the war began the
question was transferred to impressment, both of which are
pure subjects of international law and practice.

It is difficult at this epoch in our history to understand
how the conduct of our government at that time can be
questioned, and why war was not unavoidable in order to
maintain the just rights of the country and the national
honor. The chief reason for this is that the development
of international law respecting the questions then in con-
troversy has been so great in the last hundred years that
we wonder how a discussion against the claims of the
United States could be maintained.

In view of the intense bitterness which that contest engen-
dered within our own borders, I shall confine my citation
of authorities to the historians who have recorded the events
of that period after the lapse of more than two generations,
who were free from prejudice, and who had access to the
European archives. Happily this material is abundant.
Henry Adams in his excellent History of the United States
during the Admimstration of Madison, has treated of this
war at great length; likewise Admiral Mahan, in his Sea
Power in its Relations to the War of 1812; also McMaster,
Schouler, Woodrow Wilson, Goldwin Smith, and Hart.

Before examining the questions of international law let
us consider some phases of the war, which may aid us in
determining whether the matters in controversy could have
been submitted to arbitration or decided without recourse
to war.

1. The War of 1812 was a partisan and sectional war.
In this respect it was quite different from the Mexican
and Spanish wars. While there was considerable opposi-
tion to both of the latter, the declarations of war were
voted by Congress with: practical unanimity, and they
received the support of the whole country. The vote by
which the War of 1812 was carried after a bitter and
4

prolonged debate was, in the House 79 to 49, and in the
Senate 19 to 13. The New England States were largely
against it; likewise New York, New Jersey and Delaware.
Pennsylvania, Maryland, Virginia, and North Carolina were
divided, but their votes for war predominated, and the other
Southern and all the Western States were solidly for war.
Schurz, in his Life of Henry Clay, remarks on this vote:
“So large a minority had an ugly: look. It signified that
there would be a peace party in the United States during
the war.” 1

The circumstances of the times indicated that the war
had been determined upon as a party measure, and that it
was not only a party measure but, as Henry Adams terms
it, “avowedly for purposes of conquest.” Henry Clay,
Speaker of the House, gathered around him a body of
ardent young members, known in history as the ‘ War
Hawks,” Calhoun, Grundy and others, and organized the
committees with the view of bringing on the war. Slight
disguise was made of the purpose to conquer Canada. As
early as January, 1811, Clay, in discussing a retaliatory bill
against Great Britain, declared: “’The conquest of Canada
is in your power. I trust I shall not be deemed pre-
sumptuous when I state that I verily believe that the militia
of Kentucky are alone competent to place Montreal and
Upper Canada at your feet.” His memorable speech on
the army bill, as epitomized by his biographer, anticipated
the results of the war. “It was to be an aggressive war, a
war of glorious conquest. He saw the battalions of the
Republic marching victoriously through Canada and laying
siege to doomed Quebec. His dream was of a peace dic-
tated at Halifax.” Grundy, in defending the report of the
Committee on Foreign Affairs favoring war, said, “We
shall drive'the British from our continent. . . . I feel
anxious not only to add the Floridas to the South, but

 

+ For table of votes, see 8 McMaster’s History of the People of the United States,
457; 1 Schurz, Life of Henry Clay, 85.
5

the Canadas to the North of this Empire.” Calhoun, par-
ticipating in the debate, expressed the belief “that in a
few weeks from the time that a declaration of war is heard
on our frontier the whole of Upper Canada and a part of
Lower Canada will be in our possession.” The comment
of John Randolph, after listening long and patiently to the
debate, was: “Ever since the report of the Committee on
Foreign Affairs came into the House we have heard but
one word—like the whippoorwill, but one monotonous
tone—Canada, Canada, Canada.” }

President Madison was by inclination a man of peace and
did not want war. In fact he showed such reluctance to
the program of the party leaders that it was openly charged
that he had been coerced into supporting hostilities by the
threat that he would not be renominated for the presidency
unless he yielded to their demands. This charge is not
substantiated, but the Congressional caucus (which at that
period made the nomination) was not called until, as
McMaster puts it, “ Madison had fully committed himself
to the war.” * Mr. Monroe, Secretary of State, explained
to the French minister Madison’s hesitating policy by say-
ing, “the President does indeed hold the rudder of the
Ship of State; he guides, but it is public opinion which
makes the vessel move.”

The government was not only unprepared to enter upon
hostilities with Great Britain, but the country had shown
itself reluctant to engage in it with enthusiasm. The call
for a large increase in the army, which had been made in
anticipation of war, had been but feebly responded to; only
half the popular loan had been subscribed ; and the resources
of the treasury were nearly exhausted. Woodrow Wilson

 

1 Henry Adams’ History of the United States, Ed. 1889, vol. V, 189; VI, 124, 141,
145, 154, 212, 229. Goldwin Smith’s Political History of the United States, 168,
170; 1 Schurz’ Life of Clay, 79; 3 Woodrow Wilson’s History of the American
People, Ed. 1902, p. 212.

23, W. Wilson’s History, etc, 207; G. Smith’s History, etc., 168, 172; 3, Me-
Master’s History, 449; 6, Adams’ History, etc., 213. 2, Schouler’s History of the
United States, 387.
6

reflects the views of the modern historians when he says:
“Tt was a foolhardy and reckless risk the Congress was
taking. . . . What was worse, the risk of the war was
not a whit more obvious than its deep impolicy.” Goldwin
Smith, in noticing the terms of peace at the conclusion of
the war, says: “It was a peace which showed that there
ought to have been no war, for no question was settled, nor
was anything surrendered on either side.” +

2. The War of 1812 presents the strange and unique
instance of a nation entering upon hostilities to redress the
injuries suffered by a portion of its inhabitants who were
bitterly opposed to the war and who did all within their
power short of treason to obstruct its success. ‘The vote
of Congress already cited shows that New England and
New York voted against the declaration of war. These
were the States which represented the ocean commerce of
the country, and the avowed object of the war was to
protect this commerce. The minority in Congress issued a
signed protest in which they denounced the anomaly of
waging war to redress the wrongs of a section which op-
posed it. The record of the historians is that “the very
States which had suffered most from impressments as well
as assaults on neutral commerce opposed the war most
bitterly ;’ which opposition, Henry Adams says, “left the
government bankrupt, and nearly severed the Union.” ?

38. The War of 1812 was declared before diplomatic
recourse had been exhausted.

This is manifest from the fact that on the day before war
was declared Parliament voted the repeal of the Orders in
Council, the announced cause of the war. Adams, who has
discussed this phase of the question fully, states that “ the
people of England never wanted war with the United
States ;” and this is confirmed by other historians. While

1°3, Wilson’s History, 216; 6, Adams’ History, 223; 1, Mahan’s Sea Power in its
Relation to the War of 1812, Ed. 1905, pp. 279-282.

? 3, McMaster’s History, 457; 18, The American Nation, a History, edited by
A. B. Hart, Ed. 1906, pp. 71, 77; 6, Adams’ History, 224.
7

that country was in a life-and-death struggle with Napoleon
the government was granted extreme powers, but when it
came to an issue of war with the United States Parliament
forced the ministry to yield to our contention.

William Pinkney, who was one of the ablest representa-
tives we ever sent to London, resigned his post and returned
to this country one year before war was declared, leaving
“the young secretary” in charge, and later Mr. Russell was
detailed from the legation in Paris as chargé d'affaires.
Mr. Adams states that “at that moment when the Prince
Regent announced his readiness to withdraw the Orders in
Council, when satisfied that the Berlin and Milan Decrees
were repealed, had the United States been so fortunate as
to enjoy the services of Pinkney in London, or any man
whose position and abilities raised him above the confusion
of party politics, he might have convinced them that
war was unnecessary. . . . Unfortunately the United
States had no longer a minister in London.”

Parliament met in January, 1812, and the speech from
the Throne “ was studiously moderate” in its references to
our affairs, closing with the declaration “that England
could bear more from America for peace’s sake than from
any other power on earth.” The debate which followed,
running through some months, indicated the growing weak-
ness of the ministry; and the state of the country, Adams
records, showed “that concessions were inevitable,” and
that accommodation with the United States could not long
be deferred. This condition of affairs in England was
known to intelligent and open-minded men in this country
and after the passage of the embargo bill, which was the
preliminary step toward war, it is understood that the
moderate men in the administration party had partially per-
suaded the President to send a special envoy to London.
Schouler states that had a suitable envoy, with fair cre-
dentials, been dispatched at this moment the War of 1812
would, in all probability, have been averted. McMaster’s
8

conclusion is that ‘‘ had the wishes of these men prevailed
James A. Bayard would have been dispatched to London,
would have laid an ultimatum before the Prince Regent,
and the war for commercial independence would never have
been fought. This Henry Clay defeated.” Adams sagely
remarks: “In secret, diplomacy flattered itself that war
would still be avoided; but it reckoned without taking into
account the temper of Congress.” 4

4. The War of 1812 was begun upon an erroneous
statement of vital facts.

The paper blockades of England and France and the
seizure and condemnation or destruction of American
vessels as a result thereof were the main, and finally the
single, cause of the war. President Madison based the
declaration on a French decree purporting to repeal the
objectionable French blockades, which decree was mani-
festly untrustworthy and proved to be fraudulent. These
blockades began with the British declarations of 1804 and
1806, followed by the Berlin Decree of 1806, the British
Orders in Council of November, 1807, and the Milan Decree
of December, 1807. As early as 1810 Napoleon’s minister
declared to the American minister in Paris that the Berlin
and Milan Decrees had been repealed as against American
commerce, but the seizure and condemnation of American
merchant vessels by French cruisers continued. After
much discussion between the French and American govern-
ments and the British and American governments as to the
fact of the repeal, finally the Prince Regent of Great Britain
issued an Order in Council, April 21, 1812, declaring that
if the Berlin and Milan Decrees should be absolutely and
unconditionally repealed, by some authentic act, publicly
promulgated, then the British Orders in Council would be
wholly and absolutely revoked.

This declaration was at once brought to the attention of

Adams’ History, V, 74; VI, 132, 189, 196, 216, 268, 282; 2 Schouler’s History,
389; 3, McMaster’s History, 450.
9

the French minister of foreign affairs by the American
minister, with a demand that he be furnished with authentic
evidence that the Berlin and Milan Decrees had been re-
pealed. “Then came,” says Henry Adams, “the climax
of Imperial diplomacy.” He adds that neither Talleyrand
or other French minister of the period had shown repug-
nance to falsehood, but that the act of Bassano, the minister
of foreign affairs, was a species of duplicity on which they
would hardly have ventured. He produced a decree signed
by Napoleon, purporting to be dated one year previous,
April 28, 1811, declaring the repeal of the Berlin and Milan
Decrees from November, 1810. Mr. Barlow, the American
miunister, in reporting the interview to Washington, says
Bassano “ showed a singular reluctance” to answering his
demand, “ but when he produced the decree of 1811, I made
no comment on the strange manner in which it had been so
long concealed from me. . . . I only asked him if the
decree had been published. He said no; but declared it
had been communicated” to the preceding American minister
and to the French minister in Washington. Both of these
officials denied that they had ever received it.

The circumstances attending the production of the belated
decree brought it at once under suspicion, and the continued
reprisals on American commerce proved its nullity; but
President Madison chose to accept its authenticity. He had
‘in his annual message of 1810 announced the repeal of the
Berlin and Milan Decrees, he repeated it in his annual
message of 1811, and reiterated it in his war message of
June 1, 1812. It will be shown later in this paper that the
war was declared upon the assumption that the French de-
crees had been repealed and that Great Britain refused to
repeal the Orders in Council. But it was manifest to the
world that such was an erroneous assumption. The oppo-
nents of the war in the United States openly proclaimed it.
Castlereagh, the British foreign secretary, declared that
“the decree was a trick disgraceful to any civilized nation.”
Io

Adams records the public sentiment of the day when he
says: “‘ President Madison had repeated, until the world
laughed in his face, that Napoleon no longer enforced his
decrees.”

The archives of the three governments now open to the
public make it plain that the document produced by Bassano
was fraudulent. Such is the verdict of the later historians.
Adams characterizes it as “a flagrant falsehood.” Mahan
terms it “ the spurious French decree,” “a French deception,
on its face so obvious as to deprive mistake of the excuse
of plausibility.” Recent investigation shows that while the
President was assuring Congress of the repeal of the French
decrees, he was talking in a different tone to the French
minister in Washington. At his New Year’s reception of
1812 the minister reports that the President manifested a
loss of patience and referred to the distressing news from
Europe of the American ships burned and others captured
and condemned by France. “ Such proceedings,” he said,
“were in his eyes as pronounced as were those of England,
against whom the Republic was at that moment taking
up arms.”

Secretary Monroe’s interviews with the French minister
manifestly revealed the feeling in the government. In
March, 1812, in remonstrating with the French minister
that while the government was preparing for war with
England the conduct of France was creating embarrassment
for it with Congress through the continuous seizure of
American vessels, he impetuously asked the minister, “ If
your decrees are in fact repealed, why this sequestration?”
Later in the same month the minister reports that Monroe,
greatly agitated and in a vehemence of reproach, broke out:
“ Well, sir, it is then decided that we are to receive nothing
but outrages from France! And at what a moment, too!
At the very instant that we are going to war with her
enemies.” A month passed and the situation with France
seemed to grow worse in Mr. Monroe’s eyes. He told the
II

niinister that the further seizures had produced a deep
impression in Congress and ‘“‘ seemed manifest proof that
the Imperial Decrees are not withdrawn; . . . that the
Executive, by inclination as much as system, had always
wished to believe in their repeal, without which it was im-
possible to make issue with England.” Even after the war
message had been sent to Congress and that body had de-
cided on hostilities, Monroe, the minister reports to his
government, “‘ renewed his complaints . . . these eter-
nal grumblings,” declaring that the Administration had for
eighteen months with constancy and firmness maintained the
repeal of the French decrees, notwithstanding the contrary
conduct of France; and the minister added that he said
“with a sort of political coquetry, that he was among his
friends obliged to admit that they had been too weak toward
France, and that perhaps they had been too quick in regard
to England.” .

Mr. Adams concludes his review of this phase of the
controversy as follows: “ No enemy could have devised
a worse issue than that on which the President placed the
war with England. Every act of Congress and every official
expression of Madison’s policy had been founded on the
withdrawal of the French Decrees as they affected American
commerce. This withdrawal could no longer be maintained,
and Madison merely shook confidence in his own good
faith by asserting it.” Admiral Mahan’s comment is that
the government was precipitated “into a step for which,
on the grounds taken no justification existed” and that it
“had been dragged at the wheels of Napoleon’s chariot, in
a constant dust of mystification, until he had finally achieved
the end of his scheming and landed it in a war for which
is was utterly unprepared.” Woodrow Wilson says: “ Na-
poleon was the enemy of the civilized world, had been
America’s enemy in disguise, and had thrown off the dis-
guise. England was fighting him almost alone, all Europe
thrown into the scale; . . . and now America had
I2

joined the forces of Napoleon, in fact if not in intention,
as he had subtilely planned.” ‘No one,” says Adams,
“ could explain the reasoning which led to a war with Eng-
land, on the ground selected by Madison, without a simul-
taneous declaration against France.” }

5. The issue upon which the War of 1812 was declared
was changed after hostilities were begun.

It is plain from the official and historical citations already
made that war was declared upon the ground that the Brit-
ish Orders in Council were still maintained, after the alleged
repeal of the Napoleonic decrees. It is also manifest that
had the British government yielded on this single point, all
other matters of difference would have been adjusted with-
out war. It has been shown that the discussion in Parlia-
ment and the state of affairs in England made it apparent
that the ministry would finally yield; and as a matter of
fact Parliament voted the repeal of the Orders in Council
on June 17, one day before the declaration of war was
made. This surrender of the British government, how-
ever, had no influence on Congress. As Goldwin Smith
graphically describes the situation, “‘ the fingers of the Ken-
tuckian were twined in the locks of hated England and
would not let go because the special ground of quarrel hap-
pened to be withdrawn.” The impressment of seamen was
deemed a sufficient cause for continuing hostilities, and,
with the battle cry of “ Sailors’ Rights,” the war went on.

A few historical citations will sustain the foregoing state-
ment. Late in 1808 a new British minister arrived in
Washington, a Liberal in politics, half American by mar-
riage, and very anxious to signalize his mission by an
adjustment of the differences between the two countries.
In 1809 he informed the American Secretary of State that
he was authorized to withdraw the Orders in Council, on

13, American State Papers, Foreign Relations, 602, 609, 614; 1, President’s Mes-
sages, 482, 491, 505; 1, Mahan’s Sea Power, 270, 272, 278; 6, Adams’ History, 184,
187, 189, 195, 196, 200, 217, 231, 232, 256, 282, 285; 3, Woodrow Wilson’s History,
216.
13

condition that the American non-intercourse act was like-
wise withdrawn. The proposition was accepted with alac-
rity. No inquiry was made as to the minister’s powers,
notwithstanding the French minister’s warning. Adams
thus describes the effect: “The United States heard with
delight that friendship with England had been restored.
Amid an outburst of joy commerce resumed its old paths.

No complaints were heard; not a voice was
raised about impressments; no regret was expressed that
war with France must follow reconciliation with England.”
The President convoked Congress in special session and
communicated the adjustment to that body with a high
spirit of satisfaction. Congress cheerfully enacted the leg-
islation necessary to carry the adjustment into effect. The
historian’s record is: “ Little was said and nothing done
about impressments.” In a few weeks it became known
that the minister had acted without authority, his conduct
was repudiated in London, and he was recalled. The inci-
dent, however, showed that the Orders in Council were
regarded as the sole obstacle to friendly relations.

The British minister up to the opening of hostilities wrote
his home government of the attitude of Secretary Monroe,
as disposed to settle “every other difference in the most
amicable manner, provided his Majesty’s Orders in Council
are revoked”; and at no time “did he or the President
inform the British government that any other cause of war
existed.”” Adams, in reciting the President’s persistent
statement that the French decrees had been repealed, and
that war must follow the failure of Great Britain to with-
draw the Orders in Council, states that during the negotia-
tions “he never suggested that America would fight for
her sailors. When he and his supporters in earnest took
up the grievances of the seamen, they seemed to do so as
an afterthought.” And the historian asserts that “at the
last moment the dispute seemed to narrow itself to the
single point of belligerent right to blockade a coast.” Wood--
14

row Wilson states that “ Mr. Jefferson had let impressment
go almost without protest. It was now clearly an after-
thought as a ground for war.” ‘The action of Parliament
came at last, ‘and the cause of war was taken away on
the very eve of its outbreak.” ?

The foregoing review of affairs preceding and attending
the outbreak of hostilities in 1812 must satify the thought-
ful statesman and enlightened patriot that the differences
with Great Britain might with ‘honor have been decided
without recourse to war. ‘This will, I think, become still
more apparent when we come to examine the questions of
international law involved in the controversy. ‘These were
of two kinds.

I. The blockades and the consequent restraint of neutral
commerce on the high seas which, as we have seen, brought
about the declaration of war against Great Britain. These
blockades were the result of the life-and-death struggle be-
tween Great Britain and the continental powers under
the domination of Napoleon. They were largely what are
known as “ paper blockades,” but so far as the controversy
between the United States and Great Britain was con-
cerned, it resolved itself into.'a question of the suffi-
ciency of the force employed in the maintenance of the
blockade. International law has in the past century under-
gone marked changes in the principles governing blockade.
The Declaration of Paris of 1856 was the most notable, but
further definitions were agreed upon by the Hague Peace
Conferences, and only last year in the Conference of Lon-
don still further codification of international law on the
subject was made by the maritime powers. But in 1812
the law of blockade was sufficiently established by text
writers and jurists to have enabled these two nations, with
a common basis of jurisprudence, to have submitted their
respective claims under international law to the adjudication

+1, Mahan’s Sea Power, 218; Adams’ History, V, 74, 80; VI, 45, 117, 221; 1,
President's Messages, 468; 3, Wilson’s History, 214.
15

of an international court of arbitration. That great jurist,
Lord Stowell (Sir William Scott), justly described by his
biographer as “ one of the ablest and most accomplished of
English judges, especially in international law,” was during
the whole period of this controversy sitting in the High
Court of Admiralty and passing judgment upon the Ameri-
can prize cases. Of his decisions Mr. Justice Story wrote:
“They ought to be the basis of the maritime law of every
civilized country of the world.” An examination of the
historical authorities will make it clear that judicial arbitra-
tion was a perfectly practical method of adjusting this
dispute as to international law.

Admiral Mahan, who discusses the question at length,
states that ‘‘ there was no difference between the two gov-
ernments as to the general principle that a blockade, to be
lawful, must be supported by an adequate force. The diffi-
culty turned on a point of definition as to what situation,
and what size of a blockading division, constituted ade-
quacy.” The British, for instance, contended that they
might so dispose their naval vessels about the Straits of
Dover, the Elbe, etc., as to make an effectual blockade, dan-
gerous to neutral vessels seeking entrance to ports on the
blockaded coasts. Mahan says: “There can be no doubt
that it was within the power of Great Britain to establish
such a blockade within the requirements of international
law. Whether she did so was a question of fact, on which
both sides were equally positive.” Henry Adams asserts
that ‘‘at the last moment the dispute seemed to narrow
itself to the single point of belligerent right to blockade a
coast.”

We shall see when we come to examine the question of
impressment, that the United States assumed a position
more than fifty years in advance of international law. Its
early declaration on the subject of blockade was not merely
in advance of the age, but one which could not be justified
in reason. No less a personage than John Marshall, when
16

Secretary of State in 1800, wrote to our minister in Lon-
don: “On principle it might be well questioned whether
this rule [of blockade] can be applied to a place not com-
pletely invested, by land as well as by sea. It will be diff-
cult to resist the conviction that its extension to towns
invested by sea only is an unjustifiable encroachment on
the rights of neutrals.’ Ten years later the letter from
which this extract was taken was sent by our Secretary of
State to Mr. Pinkney in London, among other statements
of the position of the United States on the subject of
blockades, and was by him submitted to the British gov-
ernment; but he added that while such a rule might be
contended for he did not ask for its recognition. It was
to take its place with the position of Mr. Jefferson that the
Gulf Stream should mark the limit of the territorial waters
of the United States, as among the unrealizable dreams of
American infancy.

But the extreme views of the young American nation
could not fail to unfavorably impress the British govern-
ment, especially when it felt that the influence of this
nation was being thrown on the side of Napoleon. The
bearing of the successive British ministries towards the
United States at this period is thus described by Mahan:
“Tt was usually uncompromising, often arrogant, some-
times insolent, hard even now to read with composure; but
in the immediate danger of their country, during a period of
complicated emergencies, they held, with cool heads, and
with steady hands on the helm, a course taken in full un-
derstanding of world conditions, and with a substantially
just forecast of the future.” +

II. The impressment of seamen did not bring on the
hostilities with Great Britain, but its abolition became the
avowed object of the war after the British government had
yielded on the question of blockade. It had long been the

1 Hall’s International Law, 6th Ed., p, 636; Encyclopaedia Britannica, Stowell; 1,
Mahan’s Sea Power, 110, 111, 112, 120, 140, 146; 6, Adams’ History; 221; 2, Am.
State Papers, For. Rel., 488, 3 ib. 400.
17

practice of the naval vessels of the European powers, es-
pecially in time of war, to visit and search neutral vessels -
and to take from them such seamen as were decided by the
search officers to be subjects of such powers, whether the
vessels were in port or on the high seas. From a report
sent to Congress in 1803 it appears that such visits and
impressments had been made from American vessels during
1802 by England, France, and allies of France.

For many generations the British government had been
accustomed largely to recruit the seamen for its navy by
“ press-gangs,” who would scour British ports and force
the seamen into service. During the wars with Napoleon
it was the practice of British seamen, both in the navy and
out of it, to escape military duty by taking service in the
American merchant marine. Thereupon the British gov-
ernment put into operation the practice of visit and search
of American vessels, and took therefrom large numbers of
seamen and impressed them into the naval service. In this
summary procedure a considerable number of native Ameri-
cans were impressed. This naturally brought forth strong
protests from the American government. The answer of
the British government was that it was not its intention to
molest American seamen, and that it would release all such
men when the fact was-established; but that in most in-
stances it found British subjects on American vessels pos-
sessed of papers of naturalization or fraduluent protection
papers, and that under such circumstances it was natural that
mistakes should be made.

The protest of the American government was, first
against the practice of visit and search of American vessels
on the high sea, as the flag should protect all on board; and,
second, that persons naturalized or protected by official
documents were exempt from arrest. The first ground
of protest was then a debatable question in international
law, was stoutly resisted by Great Britain for many years
after that war, and was not finally accepted by that gov-
18

ernment until 1860. Naturalization was a new feature in
the practice of nations introduced by the young American
“republic. At the beginning of the nineteenth century the
doctrine of inalienability of national allegiance was rigidly
enforced by the European governments. Even in the
United States there was a diversity of action between the
legislative and executive departments on the one hand and
the judicial on the other. So far as naturalization and pro-
tection papers were concerned, it was manifest that unblush-
ing frauds were openly committed, and that with the con-
nivance of American local officials.

It would seem that under the circumstances it was a
proper subject to submit to arbitration whether the claim
‘of the United States was justified by international law and
the comity of nations. While there is no doubt that the
British impressment had inflicted great hardship on bona
fide American citizens, it has been shown that the contro-
versy never reached such a point that our government was
ready to make it a cause of war. I invite attention to the
authorities which sustain the foregoing statements.

Hall, in his International Law, states the English prac-
tice at the beginning of the nineteenth century to be that if
a foreign naturalized Englishman “was met on the high
seas in a foreign merchant ship he could be taken out of it,
the territoriality of such ships not being recognized by
English law.” The practice then in force as stated by
Canning, foreign secretary, to the American negotiators
was that “when mariners, subjects of his Majesty, are
employed in the private service of foreigners
those subjects may be taken at sea out of the service at
such foreign individuals and recalled to that paramount
duty, which they owe their sovereign and their country.

It is needless to repeat that these rights existed
in their fullest force for ages previous to the establishment
of the United States of America; and it would be difficult
to contend that the recognition of that independence can
have operated any change in this respect.”
19

Hall states that “in the beginning of the present nine-
teenth century the doctrine of the inalienability of national
allegiance was rigidly enforced.” Adam says: “The law
of England, as declared from time out of mind by every
generation of her judges, held that allegiance of a subject
was indefeasible, and therefore that naturalization was
worthless.” In the United States there was a conflict of
opinion and practice on the subject. As early as 1802
Congress passed an act for the naturalization of foreigners,
and the executive department held that such naturalization
conferred the full rights and protection of citizenship; but
no act to that ‘effect was passed till 1868. On the other
hand the Supreme Court and the American text writers
followed the British rule. Chief Justice Ellsworth so ruled
in 1799, and Justice Story, as late as 1830, in delivering the
opinion of the Court, held, ‘“ the general doctrine is, that no
persons can by any act of their own, without the consent of
the government, put off their allegiance, and become aliens.”
Chancellor Kent, in his Commentaries on American Law,
first published in 1826, writes: “A citizen cannot renounce
his allegiance to the United States without the permission
of the government, to be declared by law.” It was not
until 1870 that the British government yielded the validity
of naturalization, and it finally became recognized by Euro-
pean nations.

The right of visitation and search was resisted by the
United States very soon after the constitutional organiza-
tion of its government. In 1792 Secretary Jefferson in-
structed our minister in Paris as to the position of the
United States: “ The simplest rule will be that the vessel
being American shall be evidence that the seamen on board
of her are such,” and this doctrine became the basis of the
American contention for more than sixty years. When
advanced later by Secretary Madison, the British secretary
for foreign affairs in an instruction to his minister in Wash-
ington, wrote: “ The pretension advanced by Mr. Madison
20

that the American flag should protect every individual sail-
ing under it on board of a merchant-ship is too extravagant
to require any serious refutation. In the exercise of a right,
which has been asserted by his Majesty and his predecessors
for ages, . . . irregularities must undoubtedly fre-
quently occur’; but he gave assurance that they would be
prevented and repressed as far as possible.

The question was not settled by the War of 1812, and
the American government continued to press for its ad-
justment. In the Webster-Ashburton negotiations of 1842,
Mr. Webster sought to have it considered, but Lord Ash-
burton “ put it aside as touching a principle which could
not be subjected to discussion.” Mr. Webster when criti-
cised for not effecting a settlement, replied that his assertion
to Ashburton must stand, to wit, that in every “American
vessel the crew who navigate it will find their protection in
the flag which is over them.” But it was not until 1860 that
the President was able to inform Congress that Great Brit-
ain had finally abandoned its claim of visitation and search.

The American government was greatly ermbarrassed in
securing recognition of its claim of exemption from im-
pressment during the period preceding the War of 1812 by
the wholesale frauds which were practiced as to naturaliza-
tion and papers of protection. Adams records that “ the
captain of any British frigate which might happen to run
into the harbor of New York, if he went ashore, was likely
to meet on his return to the wharf some of his boat’s crew
strolling about the town, every man supplied with papers
of American citizenship. . . . No pretense was made
of concealing the fraud, but these [papers] were issued in
any quantity, and were transferred for a few dollars from
hand to hand.” Mahan cites the case of a retired American
seaman of a North Carolina port, who stated that “it was
an ordinary mode of procuring a little spending money to
get a protection from a notary for a dollar, and sell it to the
first foreigner whom it at all fitted for fifteen or twenty.’
21

He also quotes the report of a British admiral in which he
wrote: “J have known more than one American master
carry off soldiers in their regimentals, arms, and accoutre-
ments, from the garrison of Gibraltar; and there cannot be
a doubt but the American trade is navigated by a majority
of British subjects.”

Woodrow Wilson finds that nearly every year from 1804
up to the embargo, owing to the flourishing American
trade, “four thousand two hundred additional men were
needed yearly to put crews into the new crafts, and it was
estimated that twenty-five hundred of the new men were in
fact British subjects, no small proportion of them unques-
tionably deserters from his Majesty’s navy.” Adams’ com-
ment on the unwillingness of the American government to
strictly observe its neutral obligations was that it preferred
to risk whatever England might do rather than discourage
desertion, or enact and enforce a strict naturalization law
or punish fraud. The national government was too weak
to compel the States to respect neutral obligations, even if it
had been disposed to make the attempt.” Under such cir-
cumstances, it could hardly be expected that the British
government need favorably consider a contention which was
contrary to its immemorable practice and which stood in
the way of success against a powerful enemy with which ic
was engaged in a terrible conflict."

Admiral Mahan and Henry Adams, whose works I have
most frequently cited, justify the War of 1812, as war-
ranted by the arbitrary conduct of Great Britain; but they
both show that the controversy was open to diplomatic set-
tlement, and that the war might have been avoided with

honor.

‘Halls International Law, 228, 229; 38 Victoria, Chap. 14, 1870; 3, American
State Papers, For. Rel., 200; Acts of Congress, April 14, 1802, July 27, 1868; 33
Victoria, Chap. 14, 18703 Wharton’s State Trials, 653; Shanks v. Dupont; 3, Peters,
242; 2, Kent’s Commentaries on American Law, Ed. 1854, p. 49; 6 Writings of
Thomas Jefferson, Ford, 76; 5, Webster’s Works, Ed. 1851, 146; 5, Presidents’
Messages, 507; 2, Adams’ History, 335, 337, 423; 1, Mahan’s Sed Power, 123, 124;

8, Wilson’s History, 218.
22

From the standpoint of international law the situation
on the eve of the War of 1812 was very similar to that
which followed the close of the Civil War and before the
Geneva arbitration. In the first instance American com-
merce had been greatly harassed and injured through the
violation by Great Britain of neutral rights; in the other,
the American commerce, much more valuable than that of
1812, was literally swept from the seas because of the neg-
lect by Great Britain of neutral duties. The claim of the
United States in both instances was in advance of the rec-
ognized international law of the respective periods. As in
1812, in 1865 and for several years afterwards the suc-
cessive British ministries denied the correctness in law of
the American position and refused, reparation for losses.
But finally patience won the day, and the Geneva arbitra-
tion stands as the brightest page in the history of the two
kindred nations.

THE MEXICAN WAR,

The war with Mexico followed immediately after the
annexation of Texas, and was caused by the forcible oc-
cupation by the army of the United States of territory
which was in dispute between Mexico and Texas at the
time of the annexation. President Tyler, in his message
to the House of Representatives recommending. annexation
by joint resolution, recognized that the dispute as to boun-
dary existed, and that it was “a question purposely left
open for negotiation with Mexico as affording the best op-
portunity for the most friendly and pacific arrangements.”’

Before the annexation was consummated the republic of
Texas had proposed to Mexico an adjustment of all differ-
ences between them, and the basis of settlement had been
agréed to by Mexico, but was not carried out because of the
annexation. One clause of this proposal was as follows:
“ Texas will be willing to submit disputed points respecting
territory and other matters to the arbitration of umpires.”
23

This basis of settlement was referred to in the annual mes-
sage of President Polk, of December, 1845, and a copy was
annexed for the information of Congress. ‘The first clause
of this basis of settlement stipulated for the recognition by
Mexico of the independence of Texas. President Polk
stated that this clause was binding upon Mexico, but made
no reference to the clause stipulating for the submission of
the boundary dispute to arbitration. On the contrary, he
ignored this clause by informing Congress that even before
the annexation had been perfected he had ordered the army
of the United States to take possession of the territory in
dispute. His language was: “Our army was ordered to
take position in the country between the Nueces and the Del
Norte, and to repel any invasion of the Texan territory
which might be attempted by the Mexican forces.” And
this overt act of aggression naturally brought on the war.

There can be no question that the announcement to Con-
gress of President Tyler, already cited, and the agreement
between Texas and Mexico, committed our government to 1
peaceful adjustment of the boundary question, and that the
precipitate dispatch of the army under General Taylor to
the Rio Grande was a breach of good faith and comity.
Our government was not only committed to the agreement
to submit the question of disputed territory and boundary
to arbitration, but it was an eminently fit subject for such
submission, and the practice has repeatedly been followed
by our country in its frequent disputes with Canada re-
specting boundaries. It is significant of the course which
should have been taken on the annexation of Texas, that
at this very moment the United States and Mexico are
engaged in an arbitration respecting a very valuable tract
of territory on the upper Rio Grande.

In his Memoirs forty years after the events, General U.
S. Grant wrote: “To this day I regard the war [which
resulted from the annexation of Texas | as one of the most
unjust ever waged by a stronger against a weaker nation.
24

It was an instance of a republic following the bad example
of European monarchies, in not considering justice in their
desire to acquire additional territory.” This is the judg-
ment also of historians, almost without exception, who have
written a generation or more after the war. Rhodes says:
““ Open hostilities would have been avoided had the conduct
of the administration been honorable. Such was the opin-
ion of Webster, Clay, Calhoun, Benton and Tyler.
Negotiations in the same spirit as that had with Great Brit-
ain would undoubtedly have settled the difficulty, but the
President arrogated the right of deciding the question.
Mexico was actually goaded on to the war.” Schouler’s
judgment is: “To provoke this feeble sister republic to
hostilties, at the same time putting on her the offense oi
shedding the first blood, was the step predetermined if she
would not sign away her domains for gold. This was the
program: to let loose the demon of war, and under the
smoke of defending the fourth part of Mexico we had just
snatched from her to despoil her of another. The program
succeeded, but the dark catastrophe locked up in our bloody
acquisitions was hidden for many years.” ?

THE SPANISH WAR.

President Taft has recently announced in a public ad-
dress in my hearing that the Spanish War was an altruistic
war. It must have been such, for only on that ground can
it be properly justified. I am not prepared to assert that
altruism is a fit subject for arbitration. Such a claim as
that made by the President might raise the query how far
altruism justifies armed force to overthrow the sovereignty
of a sister state, or what portion of “ the white man’s bur-

 

14, Presidents’ Messages, 324, 389; Senate Doc. No. 1, 29th Congress, Ist Ses-
sion, p. 88; 1, Personal Memoirs of U. S. Grant, 53; 1, Rhodes’ History of the
United States, 87; 4, Schouler’s History, 525; 4, Woodrow Wilson’s History, 122;
Schurz’s Life of Clay, 288; Hart, Foundations of American Foreign Policy, 72.
For opposite view, The Justice of the Mexican War, by ‘A. B. Owen, Ed. 1908.
25

den” has been allotted to the United States; but that inquiry
would be foreign to the present discussion.

It is, however, generally accepted that the explosion of
the Maine hastened the war, if it did not make it inevitable.
One of the most intelligent of the writers on the Spanish
War declares that just such events “render diplomacy im-
potent,’ and our minister in Madrid, General Woodford,
gives it that grave importance. It unquestionably was an
event which justified an impartial international investiga-
tion. Our government did not accept this step proposed by
Spain and refused to allow a joint investigation by Ameri-
can and Spanish experts. Only a year later at The Hague
the United States joined with the other powers of the world
in an arbitration treaty which provided for an international
commission of inquiry for just such cases; and soon there-
after we saw its great fitness and utility in the Dogger Bank
Commission of Great Britain and Russia. Such a court of
inquiry as to the Maine would have given time for diplo-
macy and the allaying of the war fever in our country and
in Congress.

It is well known that President McKinley was strongly
opposed to the war, and he was ably supported in striving
for peace by General Woodford, to whom too much praise
cannot be given for his conduct of the negotiations. It is
now apparent that had not the President yielded to the war
clamor in the country and the demands of Congress, the
war might have been averted. Twelve days before the
President’s fateful message to Congress, General Woodford
telegraphed the President: “I believe the ministry are
ready to go as far and as fast as they can and still save the
dynasty here in Spain. They know that Cuba is lost.”
Four days later he again telegraphed: “If you can still
give me time . . . Iwill get for you the peace you
desire so much and for which you have labored so hard.”
On the day before the message went to Congress, Woodford
by cable still pleaded for more time for negotiation, as-
26

suring the President: “ You will win the fight on your own
lines.””

Admiral Chadwick, who has given us the most complete
work yet published on this war, in reviewing this phase of
the situation, writes: ‘‘ President Grant, facing a situation
of like character in the ten years’ war, had, supported by Mr.
Fish, unyieldingly determined to keep hold of the reins of
diplomacy. President Cleveland had been equally firm in
holding a like course. Had either, in the critical moments
of their administrations, transferred the Cuban question to
Congress, war would have been the result. This, naturally,
was clear to President McKinley.” In the light of the Wood-
ford dispatches, we must conclude that had President Mc-
Kinley displayed the same firmness as Grant and Cleveland
and continued to “ keep hold of the reins of diplomacy,” the
Spanish War, with its long train of consequences, might
never have come upon us.?

I have discharged, Mr. President, the duty imposed upon
me. It is not a pleasant task for one who is proud of his
country and its achievements to rehearse the dark pages of
its history. But we who are jealous of its fair fame should
not shrink from exposing its errors, in the hope that its
people and their rulers may be led to avoid the mistakes of
the past. I do not say that we shall have no more foreign
wars, but I do say that our experience teaches that if we
exercise justice, forbearance, and patience, and seek peace
through the methods proposed by this Society, an honorable
way may be found of adjusting all our international differ-
ences.

22, Scott’s Hague Peace Conferences, p. 87, for ‘‘ Commissions of Inquiry”;
Foreign Relations of the United States in 1898, pp. 727, 782, 747; Chadwick’s
Relations of the United States and Spain, Diplomacy, Ed. 1909, p. 575.
BERESFORD, PR.,
608 F STREET, NORTHWEST,
CITY OF WASHINGTON.
Cornell University Library
JX 1963.F75

foreign wars of the United States.

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