Page images

urging, on the ground of this new proof of the repeal of the French decrees, that the British orders in council should be repealed. Mr. Russell's note to lord Castlereagh bears date on the 20th May; lord Castlereagh’s reply on the 23d, in which he promised to submit the decree to the consideration of the prince regent. (See papers marked F.) It appears, however, that no encouragement was given at that time, to hope that the orders in council would be repealed, in consequence of that decree; and, that although it was afterwards made the ground of their repeal, the repeal was, nevertheless, to be ascribed to other causes. Their repeal did not take effect until the 23 June, more than a month after the French decree had been laid before the British government; a delay indicating in itself, at a period so momentous and critical, not merely neglect but disregard of the French decree. That the repeal of the British orders in council, was not produced by the French decree, other proofs might be adduced. I will state one, which, in addition to the evidence contained in the letters from Mr. Russell herewith communicated, (marked G.) is deemed conclusive. In the communication of Mr. Baker to Mr. Graham, on the 9th August, 1812, (marked H.) which was founded on instructions from his government, of as late date as the 17th June, in which he stated, that an official declaration would be sent to this country, proposing a conditional repeal of the orders in council, so far as they affected the United States, no notice whatever was taken of the French decree. One of the conditions then contemplated was, that the orders in council should be revived at the end of eight months, unless the conduct of the French government, and the result of the communications with the government of the United States, should be such, as, in the opinion of the British government, to render their revival unnecessary: a condition which proves incontestably that the French decree was not considered by the British government, a sufficient ground on which to repeal the orders in council; it proves also that on that day the British government had resolved not to repeal the orders on the basis of that decree; since the proposed repeal was to depend, not on what the French government had already done, but on what it might do, and on arrangeVOL. IX.


ments to be entered into with the United States, unconnected with the French repeal.

The French decree of the 28th April, 1811, was transmitted to the United States by the Wasp, a publick vessel, which had been long awaiting, at the ports of Great Britain and France, despatches from our ministers relating to these very important concerns with both governments. It was received at the department of state on the 13th July, 1812, nearly a month after the declaration of war against Great Britain. Intelligence of the repeal of the orders in council was not received until about the middle of the fol. lowing month. It was impossible therefore that either of these acts, in whatever light they might be viewed, should have taken into consideration, or have had any influence in deciding on that important event.

Had the British government been disposed to repeal its orders in council, in conformity with the principle on which it professed to have issued them, and on the condition which it had itself prescribed, there was no reason to delay the repeal until such a decree as that of the 28th April, 1811, should be produced. The declaration of the French government of August 5, 1810, had fully satisfied every claim of the British government according to its own principles on that point. By it the decrees of Berlin and Milan were declared to be repealed, the repeal to take effect on the 1st November following, on which day it did take effect. The only condition attached to it was, either that Great Britain should follow the example, and repeal her orders in council,or that the United States should carry into effect against her, their non-importation act. This condition was in its nature subsequent, not precedent, reserving a right in France to revive her decrees in case neither alternative was performed. By this declaration it was put completely in the power of Great Britain to terminate this controversy in a manner the most honourable to herself. France had yielded to her the ground on a condition, with which she had declared her willingness to comply. Had she complied, the non-importation act would not have been carried into effect, nor could the French decrees have been revived. By refusing to comply, she has made herself responsible for all that has since followed.

By the decree of the 28th April, 1811, the decrees of Berlin and Milan were said to be definitively repealed, and the execution of the non-importation act against Great Britain was declared to be the ground of that repeal. The repeal, announced by the declaration of the 5th August, 1810, was absolute and final, except as to the condition subsequent attached to it. This latter decree acknowledges that that condition had been performed, and disclaims the right to revive it in consequence of that performance, and, extending back to the 1st of November, confirms in every circumstance the preceding repeal. The latter act, therefore, as to the repeal, is nothing more than a confirmation of the former. It is in this sense that those two acts are to be understood in France. It is in the same sense that they are to be regarded by other powers.

In repealing the orders in council on the pretext of the French decree of the 28th of April, 1811, the British government has conceded that it ought to have repealed them on the declaration of the 5th August, 1810. It is impossible to discriminate between the two acts, or to separate them from each other, so as to justify, on sound and consistent principles, the repeal of the orders in council on the ground of one act, and the refusal to repeal them on that of the other. The second act makes the repeal definitive; but for what reason ? Because the nonimportation act had been put in force against Great Bri. tain, in compliance with the condition subsequent attached to the former repeal, and her refusal to repeal her orders in council. That act being still in force, and the decree , of the 28th April, 1811, being expressly founded on it, Great Britain repeals her orders in council on the basis of this latter decree. The conclusion is, therefore, irresistible, that by this repeal, under all the circumstances attending it, the British government has acknowledged the justice of the claim of the United States to a repeal on the former occasion. By accepting the latter repeal, it has sanctioned the preceding one; it has sanctioned also the conduct of this government in carrying into effect the non-importation act against Great Britain,

founded on the preceding repeal.

Other important consequences result from this repeal of the British government. By fair and obvious construction, the acceptance of the decree of the 28th April, 1811, as the ground of the repeal of the orders in council, ought to be construed to extend back to the 1st November, 1910, the day on which the preceding repeal took effect. The Secretary of State has full confidence that if this question could be submitted to the judgment of an impartial judicial tribunal, such would be its decision. He has equal confidence that such will be the judgment pronounced on it by the enlightened and impartial world. If, however, these two acts could be separated from each other, so as that the latter might be made the basis of the repeal of the orders in council, distinct from the former, it follows, that bearing date on the 28th April, 1811, the repeal ought to have relation to that date. In legal construction between nations as well as individuals, acts are to 'be respected from the time they begin to operate, and where they impose a moral or political obligation on another party, that obligation commences with the commencement of the act. But it has been urged, that the French decree was not promulgated or made known to the British government until a year after its date. This objection has no force. By accepting an act bearing date a year before it was promulgated, it is admitted that in the interval nothing was done repugnant to it. It cannot be presumed, that any government would accept from another, as the basis on which it was to found an important measure, an act of anterior and remote date, pledging itself to a certain course of conduct which that government had in the interval departed from and violated. If any government had violated an act, the injunctions of which it was bound to observe, by an anterior one in relation to a third party, and which it professed to have observed before its acceptance by the other, it could not be presumed that it would cease to violate it after the acceptance. The conclusion is irresistible, that if the other government did accept such act with a knowledge of its antecedent violation, as the foundation of any measure on its own part, such act must have been the ostensible only, and not the real motive 10 such measure,

The declaration of the prince regent of the 21st April, 1812, is in full confirmation of these remarks. By this act of the British government, it is formally announced, on the authority of a report of the secretary of foreign affairs to the conservative senate of France, that the French decrees were still in force, and that the orders in council should not be repealed. It cannot fail to excite considerable surprise that the British government should immediately afterwards, that is, on the 23d of June, repeal its orders in council, on the ground of the French decree of the 28th April, 1811. By this proceeding the British government has involved itself in manifest inconsistency. It has maintained by one act, that the French decrees were in full force, and by another that they were repealed during the same space of time. It admits also, that by no act of the French government, or of its cruisers, had any violation of the repeal announced by the declaration of the French government of the 5th August, 1810, been committed, or at least, that such violation had not had sufficient weight to prevent the repeal of the orders in council. · It was objected that the declaration of the French government of the 5th August, 1810, was not such an act as the British government ought to have regarded. The Secretary of State is thoroughly satisfied that this objection is altogether unfounded. It was communicated by the emperor through his highest official organ, the secretary of foreign affairs, to the minister plenipotentiary of the United States at Paris. It is impossible to conceive an act more formal, authentick or obligatory on the French government, than that alluded to. Does one government ever ask or expect from another to secure the performance of any duty, however important, more than its official pledge fairly and fully expressed? Can better security be given for its performance ? Had there been any doubt on this subject, the conduct of Great Britain herself, in similar cases, would have completely removed it. The whole his-, tory of her diplomatic intercourse with other powers, on the subject of blockade, is in accord with this proceeding of the French government. We know that when her government institutes a blockade, the secretary of foreign affairs announces it to the ministers of other powers at

« PreviousContinue »