Congress had similarly balked at cutting off the British-licensed trade that even after the start of the war allowed American ships to continue carrying flour to the nominally neutral ports of Cádiz and Lisbon to keep Wellington’s troops on the Peninsula supplied. Thousands of British licenses had been issued to American shippers since the start of the war between Britain and America; Augustus Foster had signed hundreds before he left the country, and British consuls and admirals in the region issued them too. The Baltimore mob attacked some vessels as they were being loaded with flour for Lisbon and threatened a rope around the neck for anyone sending “a Barrel of flour to the Enemy,” but there were plenty of Baltimore merchants—not to mention the many good Republican wheat farmers across the mid-Atlantic and western states—who were eager to keep the business going, war or no war. For the first eight months of the war, until the blockade shut down Baltimore’s access to the ocean, two-thirds of the sailings from the port were under British licenses. In both 1812 and 1813 licensed shipments of flour from American ports to the Peninsula totaled a million barrels a year, about 100,000 tons, ten times what it had been just three years before. In American port cities, signed British licenses—with spaces left blank for the name of the vessel and its master—fetched as much as $5,000 apiece.16
Jefferson repeatedly urged Madison not to interfere with such an important outlet for American farmers. He blithely explained the slightly cynical calculation behind keeping Britain well supplied with American wheat:
If she is to be fed at all events, why may we not have the benefit of it as well as others? … Besides, if we could, by starving the English armies, oblige them to withdraw from the peninsula, it would be to send them here; and I think we had better feed them for pay, than feed and fight them here for nothing. To keep the war popular, we must keep open the markets. As long as good prices can be had, the people will support the war cheerfully.17
Madison decided to take action against the licensed trade only after it became clear that Warren and British officials in the West Indies had been specifically instructed to favor the New England states with licenses as part of the British strategy to encourage a separate peace with, or even secession of, the Federalist strongholds; that was the same reason the British blockade had so far spared the Northeast. The president sent a message to Congress on February 24, 1813, denouncing the British licensing policy as an “insulting attempt on the virtue, the honor, the patriotism, and the fidelity of our brethren of the Eastern States,” and asked Congress to outlaw the acceptance of British licenses by any American vessel. The bill died in the Senate.18
American naval officers were generally furious over the continuing trade with the enemy, and relentlessly went after American merchant ships trading under British licenses on their own initiative, but it was a tricky business given that both the attorney general and the Treasury Department had issued rulings that the licensed trade was perfectly legal. Although common law forbade trading with the enemy in wartime, it was uncertain how American admiralty courts would rule in cases of American ships seized by their own navy as prizes for violating this traditional law.
Moreover, admiralty law laid down strict limitations on the right of ships of war to stop and search neutral or friendly merchant vessels, which often made it difficult to know if a ship was sailing under an enemy license. The basic rule was that a naval commander could halt any merchantman and examine her papers, but in the absence of clear indications of fraud or concealment in the representation of her cargo or destination, he had no right to search the ship for further evidence. Violating these rules was grounds for the court refusing to recognize the validity of the capture, potentially rendering the captor liable for considerable damages. All these rules were designed to regularize the capture of enemy shipping in wartime, to draw clear lines between the legitimate seizure of enemy property under the laws of war and the plunder of piracy, and to ensure fair treatment of innocent neutral parties. All of which meant that American shippers carrying British licenses took pains to present an innocent face and conceal their licenses from any American warships that stopped them, keeping the license to show only to British warships that stopped them.19
Approaching American merchantmen, American warships routinely followed the ruse Bainbridge had employed when stopping the brig South Carolina: hoist British colors, send over a boarding party that identified themselves as British, and otherwise keep up the charade to try to get the merchant captain to produce a British license. If the ruse worked, and a license appeared, the American ship would be seized and sent in as a prize to the United States. Given the similarity in warships, uniforms, and language between the American and British navies, it often worked. But in several early cases, federal district judges (who, under the Constitution, administer admiralty law) refused to go along with the condemnation of American ships thus seized. In February 1813 a federal judge in Philadelphia ordered the South Carolina restored to its owners and found Bainbridge liable for the damages they had suffered from their vessel’s capture and detention; “this vessel is, indisputably, an American ship,” the judge ruled, there was no intention to deceive, and her outward cargo of corn and flour carried to Lisbon was consigned to a Portuguese merchant.20
An even more draconian judgment was entered against John Rodgers in a ruling that threatened to make every American captain think twice about repeating the ruse de guerre of passing themselves off as British. Late on the night of October 16, 1812, the United States frigates President and Congress chased and halted an American schooner, the Eleanor, in squally weather off the Grand Bank. Congress sent over a lieutenant to fetch back the schooner’s master and first mate. The lieutenant identified his frigate as “His Majesty’s Ship Shannon,” and an ironic dialogue ensued in which one of the schooner’s men defiantly told the “British” lieutenant, “I wish the United States frigate President were along side” of his ship.
“Do you think she could do anything with her?” the lieutenant replied.
“Yes, I am sure of it.”
But after the Eleanor’s two top officers were rowed off, the crew, deciding they were about to become British prisoners, broke into the spirit locker and began to down as much liquor as they could hold. By the time the American officers on the Congress were convinced that the Eleanor was not sailing under a British license and dropped the charade, the damage had been done. The schooner’s crew refused to believe that the American ship was not British, told the master he was being duped by the officers who now said they were in fact American, and refused to work the ship. At two in the morning a storm struck, the mainmast fell straight aft, and a few seconds later the foremast went too. The drunken crew managed to rig a jury mast and small sail and approach the two frigates, but the deck had been holed by the falling mast and she was rapidly taking on water; the next morning she was taken under tow, but even with men working the pumps around the clock she began to settle in the water, and three days later she sank.
The Eleanor’s owner brought suit for the loss of the ship, and the district court agreed that Rodgers as squadron commander was responsible, at one point finding him personally liable for a $43,250 judgment. It was not until 1817 that the Supreme Court reversed the decision, unanimously holding that because the Eleanor had never been seized as a prize, her own crew had never been released from obligation to do their duty and that showing false colors was well within “the rights of war.”21
Several of the district court rulings that found in favor of American owners whose ships were seized carrying British licenses were reprinted in a Federalist pamphlet published in Philadelphia, perhaps at British instigation. But both the political and the legal tides were turning by spring 1813. In June, Justice Joseph Story, writing a circuit court decision that would become the definitive ruling on the issue when the Supreme Court affirmed it the following March, rejected an appeal by the owners of the brig Julia, which had been seized by the Chesapeake on December 31, 1812, on her return from Lisbon u
nder a British license. Story, a recognized authority on prize law, acknowledged that there was no direct precedent of a ship ever having been lawfully condemned on the basis of using an enemy license: “It is,” he wrote, “one of the many novel questions which may be presumed to arise out of the extraordinary state of the world.” But Story found ample related precedents in British and French prize law for concluding that “it is unlawful in any manner to lend assistance to the enemy, by attaching ourselves to his policy, sailing under his protection, facilitating his supplies, and separating ourselves from the common character of our country.” Trading with the enemy was prohibited under the law of nations not just for the direct injury it caused but because it “contaminates the commercial enterprizes” with purposes at odds with the policy of the nation, exposes individuals “to extraordinary temptations to succour the enemy by intelligence,” and corrupts their loyalties by effectively turning them into neutrals.22 With Story’s ruling having paved the way, Congress finally summoned the courage in the summer of 1813 to pass Madison’s requested legislation banning the use of all British licenses.
By that time Admiral Warren had also grown heartily sick of the licensed trade and the crazy contradictory complications it created; not least was the fact that under the cover offered by the dozens of licensed vessels that sailed from New York every day through Long Island Sound throughout the spring and summer of 1813, a steady stream of privateers and letters of marque slipped out past the British squadrons, and out to sea, as well.23
FOR THE better part of a year Captain Philip Broke of His Majesty’s frigate Shannon had “sauntered about off Boston,” as he at one point described the endless and frustrating duty of watching an enemy port, spoiling for a fight. He had been on the North American station since August 1811, and success had eluded him. Broke was heir to an estate in Surrey but far from rich; he was a navy man through and through, a veteran of the Battle of Cape St. Vincent at twenty-one, a post captain at twenty-five, commander of the Shannon ever since its commissioning in 1806, but at thirty-six he was now thoroughly tired of the life of the sea and longed for an honorable exit. He filled his hours writing letter after letter, day after day, to his wife back in England, knowing he would not receive answers for months, if at all. His letters were full of sentimental dreams of flowers and life in the country and reading poetry to his wife, who was less a real person than just another prop in this domestic fantasy; she was “my dear little wife,” “my sweet Looloo,” “my gentle Loo,” “my delightful angel,” who would comfort him “with all her mild resignation” in his rural retirement.
Broke had all the English aristocratic disdain for the “savages,” the “animals,” the “reptiles” he had the misfortune to be fighting. He bemoaned his ill luck with prizes, but he would give them all up for one stunning, brilliant victory that would provide him the release he ached for:
Shannon, off Boston,
September 14th 1812.
… I would give all our prizes for an American frigate, they are fighting in a bad cause my Loo, and I shall feel a satisfaction in beating them.… I see by the papers, our people at home have little idea of the bitterness and rancour with which the Americans have made war upon us; every overture of kindness we make to them, they consider as a submission, and become the more insolent to us: a year’s war will tame them much, they have not yet felt our Naval power.
Shannon, off Chesapeake,
February 14th.
… as to prizes I would never leave my lovely Loo for all our flag has ever taken: I have never been fortunate at all that way.… My being poor is no disappointment to me; to return without any successes to prove how we have been exerting ourselves so long and tiresome a pursuit (and which we feel conscious of deserving), is mortifying … Indeed you can’t imagine the pains I have bestowed on this graceless wooden wife of mine … I am sure the other wife will make me happy if I quit this game of honor.
Shannon, off Boston,
April 14th, 1813.
… Whilst we went (by order) to report our reconnaissance of Boston, one of their frigates (Chesapeake) got safe in, this is mortifying.… 8 years of my youth, and all my plans of rural quiet and domestic happiness, have faded away, or been cruelly interrupted by this imperious call of honor, but surely no man deserves to enjoy an estate in England, who will not sacrifice some of his prospects to his countrys welfare.
Shannon, off Boston,
May 5th, 1813.
… The enemy have sent me no frigate yet … but they seem by their papers, to have been much annoyed at our being so familiar with their harbour lately. They may prove our best friends yet, and favor me with an opportunity of retiring with honor to my gentle wife (if the Admiralty do not remove me before they are decided upon meeting us).… I must get home indeed to my tender Loo, I am heartily sick of this sea life.
Shannon, off Boston,
May 9th, 1813.
… I feel much mortified at President escaping us after watching so long and anxiously for him; God send us better fortune to finish my campaign creditably. The day those rogues sailed it was thick weather, we must have been very close to them but they did not seek us.… I hope Boston will soon be added to the ports under arrest, and we will pinch them into repentance for this wanton war of theirs.
Shannon, off Boston,
May 28th, 1813.
… We sill haunt this tiresome place without any success to reward us, indeed I have been so particularly anxious to watch the great ships, that it has thrown us much out of the way of the smaller, tho’ richer prizes. Since Rodgers escaped we have rarely hunted our game far from his den, which still contains another large wild beast; if all the nobler prey elude us, we must chace the vermin, but have great hopes yet of an honourable recontre.24
The “large beast” was the Chesapeake, which was undergoing a quick refit in Boston with orders that “not a moment should be lost” in getting to sea again for an independent cruise. Secretary Jones’s orders were for her to proceed to the mouth of the St. Lawrence and intercept British troop and store ships heading to reinforce the army in Canada, and then to continue on to Greenland and destroy the British whale fishery.
Her new commander was James Lawrence, promoted to captain by the Senate in February as a resolution of the bitter controversy that Charles Morris’s double promotion had engendered and then rewarded for his victory over the Peacock with the command of a frigate. On May 18, 1813, Lawrence arrived in Boston and found the ship in good order. But there was more than a little bad feeling in the air. Lawrence, in fact, had tried to decline the appointment, calculating there was more glory to be had in a smaller ship. Four of the lieutenants from the Chesapeake’s last cruise were sick or on indefinite leave. Many of the crew had reached the end of their two-year enlistments and had stayed on only because they had not yet been paid, their dissatisfaction made worse by the fact that they had not received the prize money they were due from their last cruise, either: all the prize money was frozen in a bank account because the ship’s agent had just learned that Stephen Decatur was threatening a lawsuit to claim the one-twentieth share he said he was due as squadron commander, even though he and the United States had been thousands of miles away, already returned to New York harbor, when the Chesapeake had taken the most valuable prize of her cruise in January.
Lawrence himself had had an unpleasant interview with Bainbridge upon his arrival in Boston over a similar dispute. Bainbridge told Lawrence that as his squadron commander he was due one-third of the prize money Lawrence was to receive out of the expected $25,000 to be awarded for the capture of the Peacock. The very morning that the Chesapeake was preparing to stand to sea with her new captain of ten days’ standing, the crew confronted Lawrence over their unpaid prize money; and Lawrence, no doubt displacing his own rancor over his contretemps with Bainbridge, furiously “damned them for a set of Rascals” and ordered them to their stations to weigh anchor.25
The day was June 1, a bright and clear morni
ng sweeping across Boston harbor, and the entire town was aware that Lawrence was planning to make straight for the Shannon in a showdown that had far more in common with an affair of honor than a stratagem of war. Broke had sent away his consort, the frigate Tenedos, and had tauntingly run in alone into the harbor near Boston Light, showing his colors and heaving to. And as the Chesapeake got under way, the Shannon fired a single signal gun to punctuate the challenge.
Although Lawrence never received the letter Broke had written him the day before and dispatched to Boston with a released prisoner—a letter that would subsequently become famous in Britain and be reprinted over and over as a model of latter-day English chivalry—he had no doubt about Broke’s intention to engage him in a single-ship duel. Broke had earlier sent similar messages by word of mouth to Rodgers; his written challenge to Lawrence was a final gamble to stake everything for the chance that had so far escaped him. “As the Chesapeake appears now ready for Sea,” he began, “I request you will do me the favor to meet the Shannon with her, Ship to Ship, to try the fortune of our respective Flags.” Broke offered to meet Lawrence anywhere within three hundred miles of Boston; he pledged to send every ship of his squadron far enough away that they would be unable to interfere; if Lawrence chose, he could keep Broke’s challenge a secret and name the place of their meeting; the two ships could even sail together under a flag of truce to any place Lawrence felt safest from encountering another British warship. Broke appealed to his American counterpart:
I entreat you, Sir, not to imagine that I am urged by mere personal vanity to the wish of meeting the Chesapeake, or that I depend only upon your personal ambition for acceding to the Invitation, we have both nobler motives,—you will feel it as a compliment if I say that the result of our meeting may be the most grateful Service I can render to my Country,—and I doubt not that you, equally confident of success, will feel convinced that it is only by continued triumphs in even combats, that your little Navy can now hope to console your Country for the loss of that Trade it can no longer protect.—favor me with a speedy reply,—we are short of Provisions and Water, and cannot stay long here.
Perilous Fight Page 29