BOOK XI. perior commerce, and maritime power of Great Britain.

CHAP. VII.

1813.

"The same partiality towards France was observable in their negociations, as in their measures of alleged resistance.

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Application was made to both belligerents for a revocation of their respective edicts; but the terms in which they were made were widely different.

"Of France was required a revocation only of the Berlin and Milan decrees, although many other edicts, grossly violating the neutral commerce of the United States, had been promulgated by that power. No security was demanded, that the Berlin and Milan decrees, even if revoked, should not under some other form be reestablished: and a direct engagement was offered, that upon such revocation the American government would take part in the war against Great Britain, if Great Britain did not immediately rescind her orders. Whereas no corresponding engagement was offered to Great Britain, of whom it was required, not only that the orders in council should be repealed, but that no others of a similar nature should be issued, and that the blockade of May, 1806, should be also abandoned. This blockade, established and enforced according to accustomed practice, had not been objected to by the United States at the time it was issued. Its provisions were on the contrary represented by the American minister, resident in London at the time, to have been so framed, as to afford, in his judgment, a proof of the friendly disposition of the British cabinet towards the United States. "Great Britain was thus called upon to abandon one of her most important maritime rights; by acknowledging the order of blockade in question, to be one of the edicts which violated the commerce of the United States, although it had never been so considered in the previous negoeiations and although the president of the United States had recently consented to abrogate the non-intercourse act, on the sole condition of the orders in council being revoked; thereby distinctly admitting these orders to be the only edicts which fell within the contemplation of the law under which he acted.

"A proposition so hostile to Great Britain, could not but be proportionably encouraging to the pretensions of the enemy. As by their alleging that the blockade of May, 1806, was illegal, the American government virtually justified, so far as depended on them, the French decrees.

"After this proposition had been made, the French minister for foreign affairs, if not in concert with that government, at least in conformity with its views, in a dispatch, dated the 5th of August, 1810, and addressed to the American minister resident at Paris, stated that the Berlin and Milan decrees were revoked, and that their

operation would cease from the 1st day of November following, provided his majesty would revoke his orders in council, and renounce the new principles of blockade; or that the United States would cause their rights to be respected; meaning thereby, that they would resist the retaliatory measures of Great Britain.

"Although the repeal of the French decrees thus announced was evidently contingent, either on concessions to be made by Great Britain, (concessions to which it was obvious Great Britain could not submit,) or on measures to be adopted by the United States of America; the American president at once considered the repeal as absolute. Under that pretence the non-importation act was strictly enforced against Great Britain, whilst the ships of war, and merchant-ships of the enemy, were received into the harbours of America.

"The American government, assuming the repeal of the French decrees to be absolute and effectual, most unjustly required Great Britain, in conformity to her declarations, to revoke her orders in council. The British government denied that the repeal, which was announced in the letter of the French minister for foreign affairs, was such as ought to satisfy Great Britain; and, in order to ascertain the true character of the measure adopted by France, the government of the United States was called upon to produce the instrument, by which the alleged appeal of the French decrees had been effected. If these decrees were really revoked, such an instrument must exist, and no satisfactory reason could be given for withholding it.

"At length, on the 21st of May, 1812, and not before, the American minister in London did produce a copy, or at least what purported to be a copy, of such an instrument.

"It professed to bear date the 28th of April, 1811, long subsequent to the dispatch of the French minister of Foreign affairs of the 5th of August, 1810, or even the day named therein, viz. the 1st of November following, when the operation of the French decrees was to cease. This instrument expressly declared that these French decrees were repealed in consequence of the American legislature having, by their act of the 1st of March, 1811, provided that British ships and merchandize should be excluded from the ports and harbours of the United States.

"By this instrument, the only document produced by America as a repeal of the French decrees, it appears, beyond a possibility of doubt or cavil, that the alleged repeal of the French decrees was conditional, as Great Britain had asserted, and not absolute or final, as had been maintained by America: that they were not repealed at the time they were stated to be repealed by the American government: that they were

not repealed in conformity with a proposition simultaneously made to both belligerents; but that in consequence of a previous act on the part of the American government, they were repealed in favor of one belligerent, to the prejudice of the other: that the American government having adopted measures restrictive upon the commerce of both belligerents, in consequence of edicts issued by both, rescinded these measures, as they affected that power which was the aggressor, whilst they put them in full operation against the party aggrieved, although the edicts of both powers continued in force; and, lastly, that they excluded the ships of war belonging to one belligerent, whilst they admitted into their ports and barbours the ships of war belonging to the other, in violation of one of the plainest and most essential duties of a neutral nation.

"Although the instrument thus produced was by no means that general and unqualified revocation of the Berlin and Milan decrees which Great Britain had continually demanded, and had a full right to claim; and although this instrument, under all the circumstances of its appearance at that moment, for the first time, was open to the strongest suspicions of its authenticity; yet, as the minister of the United States produced it, as purporting to be a copy of the instrument of revocation, the government of Great Britain, desirous of reverting, if possible, to the ancient and accustomed principles of maritime war, determined upon revoking, conditionally, the orders in council. Accordingly, in the month of June last, his royal highness the prince-regent was pleased to declare in council, in the name and on the behalf of his majesty, that the orders in council should be revoked, as far as respected the ships and property of the United States, from the 1st of August following. This revocation was to continue in force, provided the govern ment of the United States should, within a time to be limited, repeal their restrictive laws against British commerce. His majesty's minister in America was expressly ordered to declare to the government of the United States, that this mea sure had been adopted by the prince-regent in the earnest wish and hope, either that the government of France, by further relaxations of its system, might render perseverance on the part of Great Britain, in retaliatory measures, unnecessary; or, if this hope should prove delusive, that his majesty's government might be enabled, in the absence of all irritating and restrictive regulations on either side, to enter, with the government of the United States, into amicable expla nations, for the purpose of ascertaining whether, if the necessity of retaliatory measures should unfortunately continue to operate, the particular measures to be acted upon by Great Britain

could be rendered more acceptable to the Ame- BOOK XI. rican government, than those hitherto pursued.' "In order to provide for the contingency of a CHAP. VII. declaration of war on the part of the United States, previous to the arrival in America of the 1813. said order of revocation, instructions were sent to his majesty's minister plenipotentiary, accredited to the United States (the execution of which instructions, in consequence of the discontinuance of Mr. Foster's functions, were, at a subsequent period, entrusted to Admiral Sir John Borlase Warren), directing him to propose a cessation of hostilities, should they have commenced; and, further, to offer a simultaneous repeal of the orders in council, on the one side, and of the restrictive laws on British ships and commerce, on the other.

"They were also respectively empowered to acquaint the American government, in reply to any inquiries with respect to the blockade of May, 1806, whilst the British government must continue to maintain its legality, that, in point of fact, this particular blockade had been discontinued for a length of time, having been merged in the general retaliatory blockade of the enemy's ports, under the orders in council; and that his majesty's government had no intention of recurring to this, or to any other of the blockades of the enemy's ports, founded upon the ordinary and accustomed principles of maritime law, which were in force previous to the orders in council, without a new notice to neutral powers, in the usual form.

"The American government, before they received intimation of the course adopted by the British government, had, in fact, proceeded to the extreme measure of declaring war, and issuing letters of marque,' notwithstanding they were previously in possession of the report of the French minister for foreign affairs, of the 12th of March, 1812, promulgating anew the Berlin and Milan decrees as fundamental laws of the French empire, under the false and extravagant pretext, that the monstrous principles therein contained were to be found in the treaty of Utrecht, and were therefore binding upon all states. From the penalties of this code no nation was to be exempt which did not accept it, not only as the rule of its own conduct, but as a law, the observance of which it was also required to enforce upon Great Britain.

"In a manifesto, accompanying their declara-tion of hostilities, in addition to the former complaints against the orders in council, a long list of grievances was brought forward; some trivial in themselves, others which had been mutually adjusted, but none of them such as were ever before alleged by the American government to be grounds for war.

BOOK XI.

1813.

"As if to throw additional obstacles in the way of peace, the American congress at the same CHAP. VII. time passed a law prohibiting all intercourse with Great Britain, of such a tenor as deprived the executive government, according to the president's own construction of that act, of all power of restoring the relations of friendly intercourse between the two states, so far, at least, as concerned their commercial intercourse, until congress should reassemble.

"The President of the United States has, it is true, since proposed to Great Britain an armistice; not, however, on the admission that the cause of war, hitherto relied on, was removed, but on condition that Great Britain, as a preliminary step, should do away a cause of war, now brought forward as such, for the first time, namely, that she should abandon the exercise of her undoubted right of search, to take from American merchant-vessels British seamen, the naturalborn subjects of his majesty; and this concession was required upon a mere assurance, that laws would be enacted by the legislature of the United States, to prevent such seamen from entering into their service; but, independent of the objection to an exclusive reliance on a foreign state, for the conservation of so vital an interest, no explanation was, or could be afforded by the agent, who was charged with this overture, either as to the main principles upon which such laws were to be founded, or as to the provisions which it was proposed they should contain.

"This proposition having been objected to, a second proposal was made, again offering an armistice, provided the British government would secretly stipulate to renounce the exercise of this right in a treaty of peace. An immediate and formal abandonment of its exercise, as preliminary to a cessation of hostilities, was not demanded; but his royal highness the prince-regent was required, in the name and on the behalf of his majesty, secretly to abandon what the former overture had proposed to him publicly to concede. "This most offensive proposition was also rejected, being accompanied, as the former had been, by other demands of the most exceptionable nature, and especially of indemnity for all American vessels detained and condemned under the orders in council, or under what were termed illegal blockades a compliance with which demands, exclusive of all other objections, would have amounted to an absolute surrender of the rights on which those orders and blockades were founded. "Had the American government been sincere in representing the orders in council as the only subject of difference between Great Britain and the United States, calculated to lead to hostilities, it might have been expected, so soon as the revocation of those orders had been officially made

known to them, that they would have spontaneously recalled their 'letters of marque,' and manifested a disposition immediately to restore the relations of peace and amity between the two powers. "But the conduct of the government of the United States by no means corresponded with such reasonable expectations.

"The orders in council of the 23d of June being officially communicated in America, the government of the United States saw nothing in the repeal of the orders in council, which should of itself restore peace, unless Great Britain were prepared, in the first instance, substantially to relinquish the right of impressing her own seamen, when found on-board American merchant-ships.

"The proposal of an armistice, and of a simultaneous repeal of the restrictive measures on both sides, subsequently made by the commanding officer of his majesty's naval forces on the American coast, were received in the same hostile spirit by the government of the United States. The suspension of the practice of impressment was insisted upon, in the correspondence which passed on that occasion, as a necessary preliminary to a cessation of hostilities: negociation, it was stated, might take place without any suspension of the exercise of this right, and also without any armistice being concluded; but Great Britain was required previously to agree, without any knowledge of the adequacy of the system which could be substituted, to negociate upon the basis of accepting the legislative regulations of a foreign state as the sole equivalent for the exercise of a right which she has felt to be essential to the support of her maritime power.

"If America, by demanding this preliminary concession, intends to deny the validity of that right, in that denial Great Britain cannot acquiesce; nor will she give countenance to such a pretension, by acceding to its suspension, much less to its abandonment, as a basis on which to treat. If the American government has devised, or conceives it can devise, regulations which may safely be accepted by Great Britain, as a substitute for the exercise of the right in question, it is for them to bring forward such a plan for consideration. The British government has never attempted to exclude this question from amongst those on which the two states might have to negociate: it has, on the contrary, uniformly professed its readiness to receive and discuss any proposition on this subject, coming from the American government: it has never asserted any exclusive right, as to the impressment of British seamen from American vessels, which it was not prepared to acknowledge, as appertaining equally to the government of the United States, with respect to American seamenwhen found on-board British merchant-ships. But it cannot, by acceding to such a basis in the