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HOOK XI. Mr. Erskine, his majesty's minister, to offer to and congress of the United States deemed it to

America a reciprocal repeal of the probibitive be sufficiently conformable to the demands of Chap. III. Jaws on both sides, upon certain terms; namely, France, " that they should exclude British sbips

Ist. The enforcement of the non-intercourse and of war from their ports, and prohibit all impor1812.

non-importation acts against France. 2dly, The 'tation of British produce;" and France seemed renunciation, on the part of America, of all trade to consent to consider “ these restrictions as tau). with the enemy's colonies, from wbich she was tamount to causing the American Hlag to be reexcluded during peace. 3dly, Great Britain to spected, and as rescuing the American ships from enforce the American embargo against trade with the imputation of being denationalized.”. Upon France, or powers acting under ber decrees. this principle the president proclaimed the re

13. In the mean time, the French government, newal of the non-iniportation articles of the nonin a decree dated from Rambouillet, 23d of March, intercourse act against Great Britain on the 2d 1810, declared, “ that from the 20th of May, 1809, of November, 1810, and the congress enacted the all American vessels which should enter the same by law on the 28th of February, 1811. When French ports, or ports occupied by French troops, this act passed, the relations of peace and comshould be sold and sequestered. This act, how. mercial intercourse were restored between France ever, was not made known till the 14th of May, and America, and French ships were allowed to 1810.

enter into the American ports, at a time when 14. Notwithstanding these acts of violence on France still retained many millions of American the part of France, America could not be per- property, seized under the Rambovillet decree, suaded that her honor and interests demanded which had had a retrospective effect for the

space some immediate act of retaliation, and nothing of twelve months, and when the operation of the was done till the non-intercouse act expired, burning decree was carried into effect, without when an act of the congress was passed, ever any regard whether or not the produce of British tually renewing certain parts of the non-inter- industry, so destroyed, had legally become, by course act in certain events. By this act it was purchase or barter, the bona fide property of decreed, " that in case either of the belligerents neutral merchants. should cease to violate the neutral rights of Ame With respect to England, who by the act of the rica before the 2d of February, 1811, the non 28th of February, 1811, was put upon the footimportation articles of the non-intercourse act ing of an enemy, the only source of complaint should be revived against the other." By this which America possessed, was, that the blockade act, America still contemplated France and Eng- of the French coast was still persisted in and land equally injuring her commerce; and con enforced, as the only effectual means of retaliattented herself with merely complaining, through ing upon the violent and unjust decrees of the her minister, of the operation of the Rambouillet enemy. decree, though it was, at the same time, charac 17. On the 1st of November, 1811, Mr. Foster, terised by America “ as a signal aggression on bis majesty's minister in America, was at length the principles of justice and good faith."

enabled to bring to a conclusion the differences 15. The condition thus offered by America, which had arisen on the Chesapeake affair, withFrance determined speciously to accept; but in out sacrificing the rights of Great Britain, or deaccepting it to act in such a manner as still to rogating from the honor of his majesty's crown; reap the advantages accruing from her decrees, but it cannot be said, that the American governwithout relieving England from her part of the ment accepted the concession and atonement with pressure occasioned by them.

either dignity or grace.-- See page 887.) 16. As England could not, upon this insidious 19. While America was thus asserting that the offer, accept the first part of the alternative of French decrees were repealed, the minister of fered by France, America, in her turn, accepted foreign relations at Paris put an end to all doubt the second, and declared that she would cause on the subject, by an official report to the emher flag to be respected: but as there would be peror, dated the 10th of March, 1812, which set some inconvenience in demanding from England forth--first, an explanation of the maritime laws the abandonment of her most sacred maritime of the nations, viz.rights, such as the right of visiting and searching “ The fag covers merchandize; the goods of a neutral ship for enemy's property-the right of an enemy, under a nen?ral flag, are neutral; and blockading, by actual force, the ports and har the goods of a neutral, under an enemy's flag, bours and rivers of the enemy's coast, the right are enemy's goods. The only goods not covered of precluding a neutral from carrying ou, in time by the fag, is contrahand of war; and the only of war, the trade of a belligerent, to which she is contraband of war are arms and ammunition. In not admitted in time of peace--all of which, and visiting neutrals, a belligerent must send only a more indeed, was demanded by France, and ap few men in a boat; but the belligerent ship must parently acceded to by America) the government keep out of cannon shot. Neutrals may trade

between one enemy's port to another, and between engaging beforehand, “ that a proof of the ab- BOOK XI. enemy's and neutral ports. The only ports ex solute repeal of the French decrees, produced in cepted, are those' really blockaded, and ports an admiralty court, shall be held, in fact, to he a

CHAP. III. really blockaded, are those ouly which are actu- satisfactory proof of the absolute revocation of ally invested, besieged, and in danger of being the British orders in council.”—-(For this decla

1812. taken. Such are the duties of belligerents, and ration see the preceding chapter.) the rights of neutrals." The report then pro 21. Since this declaration, but before it reached ceeded to state, that the Berlin and Milao de- America, an embargo was laid on, by act of concrees “have rendered the manufacturing towns gress, for ninety days, from the 4th day of April, of Great Britain deserts; distress has succeeded 1812. prosperity; and the disappearance of money, and Thus the matter stood; and, until France re. the want of employment, endangers the public pealed her decrees, it was impossible that Great tranquillity." And then it denounced, that " until Britain could relinquish the principle of retaliaGreat Britain recals her orders in council, and tion. The repeal of the orders in council would submits to the principles of maritime law above- have had the following effects :mentioned, the French decrees must subsist 1. It would restore the American trade; and against Great Britain, and such neutrals as should that portion of manufactures, which are usually allow their flags to be denationalized.” And, consumed in America itself, would immediately fipally, the report avowed, that “nothing will revive. divert the French emperor from the objects of 2. It would open to England no other market these decrees; that he has already, for this pur for any branch of manufacturing whatsoever than pose, annexed to France, Holland, the Hanse the home market of America; for France having Towns, and the coasts from the Zuyder Zee to a right, by municipal regulations, to exclude Brithe Baltic; that no ports of the continent must tish articles from her territory, and to extend, for remain open, either to English trade or dena this purpose, her territory over the whole face of tionalized neutrals; and that all the disposeable Europe, any article of British produce and maforce of the French empire shall be directed to nufacture imported by an American, would be every part of the continent, where British and liable to be confiscated or burned. denationalized flags still find admittance; and, 3. France would be relieved from all the

presfinally, this system shall be persevered in, till sure she at this time felt. America would supply England, banished from the continent, and sepa

her with all kinds of raw materials, as well as of rated from all other countries, shall return to the colonial produce; and would convey to her, froin laws of nations recognized by the treaty of the distant parts of Europe, all kinds of stores Utrecht."

and timber, and the various materials of naval Thus the Berlin and Milan decrees were in strength. France would have just what trade full force, and would continue to be so, until she pleased to have; she would continue the proEngland should not only recal her orders in coun- hibition, all over Europe, of British manufaccil, but should also abandon all her great mari- tures, with a double view: first, to encourage her time rights; and that these decrees would subsist own; and next, to ruin those of Great Britain. against not England alone, but America, and all And all inconvenience and pressure being thus other countries which should not unite in an en removed from her, there would no longer bave deavour to overthrow the ancient system of ma existed any means or hopes of forcing her to a ritime law; and, further, that France considered system more equitable towards Great Britain. herself authorized to invade and seize any neutral 4. America would have become the carrier of territory whatsoever, for ibe sole object of exclud- the world; she and France would have divided ing all British trade from the continent; and that the trade of the globe; and Great Britain, with all his violent and outrageous usurpations in Hol all her command of the sea, would have had the land, Germany, and the shores of the Baltic, had; mortification to have seen the ocean covered with been prompted, and were attempted to be justi- the commerce of France, protected under the fied, by this motive.

American flag 22. In order to bring to a distinct issue the 5. The British shipping interest would have verbal discussion between England and Ame. been annibilated, and that of America would rica, and to place the relative measures of Eng-, have risen up in its stead. The East and West land and France clearly before the neutrals, the Indies, and the home coasting trade, would alone British government, on the 21st of April, 1812, put. have remained to England ; and the two former forth to the public a declaration and order in could not have been long retained, in competition council, detailing the present state of the contest with a rival whose means of ship-building were inbetween the two belligerents; and stating, “ that exhaustible; whose flag would have been the only as soon as the Berlin and Milan decrees are re neutral flag in the world; whose ships alone conld

BOOK XI. rope ; whose rates of freight and insurance would rica, there would have remained neither the means

have been proportionably small; in short, who nor motives of commercial enterprize. Chap. III. would have had all possible advantages, while 7. Nor would the American market itself have

Great Britain would have laboured with every been of the advantage to Great Britain as at first 1812. possible disadvantage.

imagined; much of the iron-work, and all the linens 6. All British produce and manufacture would of Germany, would have soon undersold the simibave declined and expired, except only those for lar articles of English or Irish manufacture; and American or home consumption ; because Ame the increased intercourse between America and rica, which would have brought the produce of France, would inevitably have obliged the merall other countries to France, would have returned chants of the former to take returns in the prowith the manufacture of France to all other coun duce of France, or the continent of Europe; and, tries. It might have been said, that England by degrees, the natural result of such an interwould have undersold France : and so she cer course would have been the advancement of matainly would have done in a fair state of trade; pufactures, and the influence of France, and the but, excluded from Europe, and rivalled by Ame decline of those of Great Britain.

CHAPTER IV.

The Prince-Regent's second Declaration respecting the Orders in Council.- Letters of Marque

and Reprisal issued against England.Declaration of War by America against England.Consequences.Case of the American Ship Snipe.

The following second declaration, wbich ap- regent, although he cannot consider the tenour of peared as a supplement to the London Gazette of the said instrument as satisfying the conditions Tuesday, June 23, is a further testimony of the set forth in the said order of the 21st of April pacific disposition of the British government to- last, upon which the said orders were to cease wards the United States :

and determine; is nevertheless disposed, on his “ At the court at Carlton-house, the 23d of part, to take such measures as may tend to re

June, 1812, present, bis Royal Highness the establish the intercourse between neutral and
Prince-Regent in council.

belligerent nations, upon its accustomed princi-
“Whereas his royal bighness the prince-regent ples. His royal highness the prince-regent, in
was pleased to declare, in the name and on the the name and on the behalf of his majesty, is
behalf of his majesty, on the 21st day of April, therefore pleased, by and with the advice of his
1812, that if at any time hereafter the Berlin majesty's privy council, to order and declare, and
and Milan decrees sball, by some authentic act of it is hereby ordered and declared, that the order
the French government, publicly promulgated, be in council, bearing date the 7th day of January,
absolutely and unconditionally repealed, then, and 1807, and the order in council, bearing date the
froin thenceforth, the order in council of the 7th 26th day of April, 1809, be revoked, so far as may
of January, 1807, and the order in council of the regard American vessels, and their cargoes, being
26th of April, 1809, shall, without any farther American property, from the 1st day of August
order, be, and the same are bereby declared from next.
thenceforth to be, wholly and absolutely revoked.' “But whereas by certain acts of the government

“ And whereas the chargé des affaires of the of the United States of America, all British armed United States of America, resident at this court, vessels are excluded from the harbours and waters did, on the 20th day of May last, transmit to Lord of the said United States, and the armed vessels Viscount Castlereagb, one of his majesty's prin- of France being permitted to enter therein; and cipal secretaries of state, a copy of a certain in- the commercial intercourse between Great Britain strument, then for the first time communicated to and the said United States is interdicted, the this court, purporting to be a decree passed by commercial intercourse between France and the the government of France, on the 28th day of said United States baving been restored; his Apriĩ

, 1811, by which the decrees of Berlin and royal highness the prince-regent is pleased hereby Milan are declared to be definitely no longer in farther to declare, in the name and on the behalf force, in regard to American vessels.

of his majesty, that if the government of the said “ And whereas bis royal highness the prince- United States shall not, as soon as may be, after

this order shall have been duly notified by his vernment had received any official intelligence BOOK XI. majesty's minister in America to the said govern- from their diplomatic agent in America. If war ment, revoke, or cause to be revoked, the said should take place, it was referable, in bis opinion, Char. IV. acts, this present order shall in that case, after due to the declaration published by the late govern

1819. notice signified by his majesty's minister in Ame ment in April. rica to the said government, be thenceforth null Lord Castlereagh said, that government had reand of no effect.

ceived advice from bis majesty's minister in Ame“ It is further ordered and declared, that all rica, that a warlike motion, of which the precise American vessels, and their cargoes, being Ame nature was not known, had passed the house of rican property, that shall have been captured representatives, and was carried to the upper subsequently to the 26th day of May last, for a house, where the consideration of it was for some breach of the aforesaid orders in council alone, time delayed, and the exact result not known. and which shall not have been actually con In the house of lords, July 21, the Duke of demned before the date of this order; and that Norfolk rose to ask a question before bis majesall ships and cargoes as aforesaid, that shall ty’s ministers left the house, respecting the rehenceforth be captured under the said orders, prior ports which had recently been in circulation, of a to the 1st day of August next, shall not be pro declaration of war on the part of the United ceeded against to condemnation till further orders; States of America against Great Britain. He but shall, in the event of this order not becoming wished to know whether those reports were true; null and of no effect, in the case aforesaid, be and, if true, whether bis majesty's ministers had forthwith liberated and restored, subject to such any consolation to offer under this unfortunate reasonable expences on the part of the captors as situation of affairs? shall have been justly incurred.

The Earl of Liverpool stated, that his majes“ Provided, that nothing in this order contained, ty's ministers had received information, through respecting the revocation of the orders herein an indirect channel, that the senate of the United mentioned, shall be taken to revive wholly, or in States had come to a vote concurring in the bill part, the orders in council of the 11th of Novem- proposed by the house of representatives, for deber, 1807, or any other order not herein-mention- claring war against Great Britain; but what meaed, or to deprive parties of any legal remedy to sures the president bad adopted in consequence of which they may be entitled under the order in this vote of the senate, his majesty's ministers were council of the 21st of April, 1812.

at present uninformed. He could not, therefore, “His royal highness the prince-regent is hereby at the present moment, enter into any further expleased further to declare, in the name and on the planation upon the subject. behalf of his majesty, that nothing in this present At length the following declaration of war, by order contained, shall be understood to preclude America, appeared in the British journals :his royal bighness the prince-regent, if circumstances shall so require, from restoring, after Message. To the Senate and House of Reprereasonable notice, the orders of the 7th of Janu

sentatives of the United States. ary, 1807, and 26th of April, 1809, or any part “ I communicate to congress certain docuthereof, to their full effect, or from taking such ments, being a continuation of those heretofore laid other measures of retaliation against the enemy before them, on the subject of our affairs with as may appear to his royal highness to be just and Great Britain. necessary

“ Without going beyond the renewal, in 1803, “ And the right honorable the lords commis of the war in which Great Britain is engaged, and sioners of his majesty's treasury, his majesty's omitting unrepaired wrongs of inferior magnitude, principal secretaries of state, the lords commis the conduct of her government presents a series sioners of the admiralty, and the judge of the high of acts hostile to the United States, as an indecourt of admiralty, and the judges of the courts pendent and neutral nation. of vice-admiralty, are to take the necessary mea “ British cruisers have been in the continued sures bereir., as to them may respectively apper- practice of violating the American flag on the tain.

" JAMES BULLER." great bighway of nations, and of seizing and car

rying off persons sailing under it; not in the exBefore this declaration was known to the ercise of a belligerent right, founded on the law United States, it was understood that the Ameri of nations, against an enemy, but of a municipal can government had authorised the issuing of prerogative over British subjects. British jurisletters of marque and reprisal against England. diction is thus extended to neutral vessels, in a In the house of commons, July 10, Mr. Brougham situation where no laws can operate but the law rose, and said, that it was rumoured that the house of nations, and the laws of the country to which of representatives had moved a resolution for war the vessels belong; and a self-redress is assumed, with England: he wished to know whether go- which if British subjects were wrongfully de

BOOK XI. tained and alone concerned, is that substitution of : tion of these predatory measures, they have been

force for a resort to the responsible sovereign, considered as in force from the dates of their notiChap. IV. which falls within the definition of war. Could fication; a retrospective effect being thus added, 1812.

the seizure of British subjects, in such cases, be as has been done in other important cases, to the regarded as within the exercise of a belligerent unlawfulness of the course pursued. And to renright, the acknowledged laws of war, (which forbid der the outrage the more signal, these mock blockan article of captured property to be adjudged, ades have been reiterated and enforced in the face without a regular investigation before a competent of official communications from the British governtribunal,) would imperiously demand the fairestment, declaring, as the true definition of a legal trial, where the sacred rights of persons were blockade, ó that particular ports must be actually at issue. In place of such trial," these rights invested, and previous warning given to vessels are subjected to the will of every petty com

bound to them not to enter.' mander.

“ Not content with these occasional expedients “ The practice, hence, is so far from affecting for laying waste our neutral trade, the cabinet of British subjects alone, that under the pretext of Great Britain resorted, at length, to the sweeping searching for these, thousands of American citizens, system of blockades, under the name of orders in under the safeguard of public laws, and of their council, which has been moulded and managed as national flag, have been torn from their country, might best suit its political views, its commercial and from every thing dear to them; have been jealousies, or the avidity of British cruisers. dragged on-board ships of war of a foreign nation, " To our remonstrances against the complicated and exposed, under ihe severities of their disci- and transcendent injustice of this innovation, the pline, to be exiled to the most distant and deadly first reply was, that the orders were reluctantly climes, to risk their lives in the battles of their op. adopted by Great Britain, as a necessary retaliapressors, and to be the melancholy instruments of tion on decrees of her enemy proclaiming a genetaking away those of their own brethren.

ral blockade of the British isles, at a time when “ Against this crying enormity, which Great the naval force of that enemy dared not to issue Britain would be so prompt to avenge, if com from his ports. She was reminded, without effect, mitted against herself, the United States have in that her own prior blockades, unsupported by an vain exhausted remonstrances and expostulations. adequate naval force actually applied and contiAnd that no proof might be wanting of their con nued, were a bar to this plea; that executed edicts ciliatory dispositions, and no pretext left for con- against millions of our property could not be retinuance of the practice, the British government taliation on edicts confessedly impossible to be was formally assured of the readiness of the executed; that retaliation, to be just, should fall United States to enter into arrangements, such on the party setting the guilty example, not on an as could not be rejected, if the recovery of the innocent party, which was not even chargeable British subjects were the real and the sole object. with an acquiescence in it. The communication passed without effect.

“ When deprived of this flimsy veil for a prohi“ British cruisers bave been in the practice also bition of our trade with Great Britain, ber cabinet, of violating the rights and the peace of our coasts. instead of a corresponding repeal of a practical They hover over and harass our entering and de- discontinuance of its orders, formally avowed a departing commerce. To the most insulting pre- termination to persist in them against the United tensions they have added lawless proceedings in States, until the markets of her enemy should be our very harbours, and have wantonly spilt Ame- laid open to British products; thus asserting rican blood within the sanctuary of our territorial

an obligation on a neutral power to require one jurisdiction. The principles and rules enforced belligerent to encourage, by its internal regulaby that nation, when a neutral nation, against tions, the trade of another belligerent, contradictarmed vessels of belligerents hovering near hering her own practice towards all nations in peace coasts, and disturbing her commerce, are well as well as in war; and betraying the insincerity known. When called on, nevertheless, by the of those professions which inculcated a belief, United States, to punish the greater offences com that, having resorted to her orders with regret, mitted by her own vessels, her government has be. she was anxious to find an occasion for putting stowed on their commanders additional marks of an end to them. honor and confidence.

“ Abandoning still more all respect for the neu“ Under pretended blockades, without the pre tral rights of the United States, and for its own sence of an adequate force, and sometimes without consistency, the British governmefit now demands, the practicability of applying one, our commerce as prerequisites to a repeal of its orders, as they has been plundered in every sea: thegreat staples of relate to the United States, that a formality should our country have been cut off from their legitimate be observed in the repeal of the French decrees no markets; and a destructive blow aimed at our wise necessary to their termination, nor exempliagricultural and maritime interests. In aggrava fied by British usage; and that the French repeal,

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