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tion and fact by an adequate naval force. This was the justification of that blockade, until the period of time when the Orders in Council were issued.
The Orders in Council were founded on a distinct principle, that of defensive retaliation. France had declared a blockade of all the ports and coasts of Great-Britain, and her dependencies, without assigning, or being able to assign, any force to support that blockade. Such an act of the enemy would have justified a declaration of the blockade of the whole coast of France, even without the application of any particular force to that service. Since the promulgation of the Orders in Council, the blockade of May, 1806, has been sustained and extended by the more comprehensive system of defensive retaliation on which those regulations are founded. But if the Orders in Council should be abrogated, the blockade of May, 1806, could not continue under our construction of the law of nations, unless that blockade should be maintained by a due application of an adequate naval force.
America appears to concur with France in asserting that Great-Britain was the original aggressor in the attack on neutral rights, and has particularly objected to the blockade of May, 1806, as an obvious instance of that aggression on the part of Great-Britain.
Although the doctrines of the Berlin Decree, respecting the rights of blockade, are not directly asserted by the American government, Mr. Pinckney's correspondence would appear to countenance the principles on which those doctrines are founded. The objection directly stated by America against the blockade of May, 1806, rests on a supposition that no naval force which Great-Britain possessed, or could have employed for such a purpose, could have rendered that blockade effectual, and that therefore it was necessarily irregular, and could not possibly be maintained in conformity to the law of nations.
Reviewing the course of this statement, it will appear that the blockade of May, 1806, cannot be deemed contrary to the law of nations, either under the objections urged by the French, or under those declared or insinuated by the American government, because that blockade was maintained by a sufficient naval force; that the Decree of Berlin was not therefore justified either under the pretext alledged by
France, or under those supported by America; that the Orders in Council were founded on a just principle of defensive retaliation against the violation of the law of nations committed by France in the Decree of Berlin; that the blockade of May, 1806, is now included in the more extensive operation of the Orders in Council; and lastly, that the Orders in Council will not be continued beyond the effectual duration of the hostile decrees of France, nor will the blockade of May, 1806, continue after the repeal of the Orders in Council, unless his majesty's government shall think fit to sustain it by the special application of a sufficient naval force. This fact will not be suffered to remain in doubt, and if the repeal of the Orders in Council should take place, the intention of his majesty's government respecting the blockade of May, 1806, will be notified at the same time.
I need not recapitulate to you the sentiments of his ma jesty's government, so often repeated, on the subject of the French Minister's note to General Armstrong, dated the 6th of last August. The studied ambiguity of that note has since been amply explained by the conduct and language of the government of France, of which one of the most remarkable instances is to be found in the speech of the chief of the French government on the 17th of last month to certain deputies from the free cities of Hamburgh, Bremen, and Lubeck, wherein he declares that the Berlin and Milan Decrees shall be the public code of France as long as England maintains her Orders in Council of 1806, and 1807. Thus pronouncing as plainly as language will admit, that the system of violence and injustice of which he is the founder, will be maintained by him until the defensive measures of retaliation to which they gave rise on the part of Great-Britain shall be abandoned.
If other proofs were necessary to show the continued existence of those obnoxious Decrees, they may be discovered in the Imperial Edict dated at Fontainbleau, October 19, 1810; that monstrous production of violence, in which they are made the basis of a system of general and unexampled tyranny and oppression over all countries subject to, allied with, or within the reach of the power of France; in the report of the French minister for foreign affairs dated last December, and in the letter of the French minister of justice to the president of the council of prizes. To this
latter, sr, I would wish particularly to invite your attention; the date is the 25th December, the authority it comes from most unquestionable, and you will there find, sir, the Duke of Massa, in giving his instructions to the council of prizes in consequence of the President of the United States' proclamation of November 3, most cautiously avoiding to assert that the French Decrees were repealed, and ascribing not to such repeal, but to the ambiguous passage which he quotes at length from M. Champagny's letter of August 5, the new attitude taken by America; and you will also find an evidence in the same letter of the continued capture of American ships after November, and under the Berlin and Milan Decrees, having been contemplated by the French government, since there is a special direction given for judgment on such ships being suspended in consequence of the American proclamation, and for their being kept as pledges for its enforcement.
Can then, sir, these Decrees be said to have been repealed at the period when the proclamation of the President of the United States appeared, or when America enforced her non-importation act against Great-Britain? Are they so at this moment? To the first question, the state papers which I have referred to, appear to give a sufficient answer. For even supposing that the repeal has since taken place, it is clear that on November 3, there was no question as to that not being then the case; the capture of the ship NewOrleans Packet seized at Bordeaux, and the Grace-AnnGreen, seized at or carried into Marseilles, being cases arising under the French Decrees of Berlin and Milan, as is very evident. Great-Britain might therefore complain of being treated with injustice by America, even supposing that the conduct of France had since been unequivocal.
America contends that the French Decrees are revoked as it respects her ships upon the high seas, and you, sir, inform me, that the only two American ships taken under their maritime operation, as you are pleased to term it, since November 1, have been restored; but may not they have been restored in consequence of the satisfaction felt in France at the passing of the non-importation act in the American Congress, an event so little to be expected; for otherwise, having been captured in direct contradiction to the revocation, why were they not restored immediately?
The fears of the French navy, however, prevent many cases of the kind occurring on the ocean under the Decrees, of Berlin and Milan; but the most obnoxious and destructive parts of those Decrees are exercised with full violence not only in the ports of France, but in those of all other countries to which France thinks she can commit injustice with impunity.
Great-Britain has a right to complain that neutral nations should overlook the very worst features of these extraordinary acts, and should suffer their trade to be made a medium of an unprecedented, violent, and monstrous system of attack upon her resources; a species of warfare unattempted by any civilized nation before the present period. Not only has America suffered her trade to be moulded into the means of annoyance to Great-Britain under the provisions of the French Decrees, but as construing those Decrees as extinct, upon a deceitful declaration of the French Cabinet, she has enforced her non-importation act against GreatBritain......10 1.
Under these circumstances, I am instructed by my government, to urge to that of the United States, the injustice of thus enforcing that act against his majesty's dominions, and I cannot but hope that a spirit of justice will induce the United States' government to re-consider the line of conduct they have pursued, and at least to re-establish their former state of strict neutrality.
I have only to add, sir, that, on my part, I shall ever be ready to meet you on any opening which may seem to afford a prospect of restoring complete harmony between the two countries, and that it will at all times give me the greatest satisfaction to treat with you on the important concerns so interesting to both.
I have the honor to be, &c.
AUGUSTUS J. FOSTER.
Mr. Foster to Mr. Monroe.
WASHINGTON, July 11, 1811. SIR-In consequence of our conversation of yesterday, and the observations which you made respecting that part of my letter to you of the 3d inst. wherein I have alluded to the principle on which his majesty's Orders in Council were origanally founded, I think it right to explain myself, in or
der to prevent any possible mistake as to the present situation of neutral trade with his majesty's enemies.
It will only be necessary for me to repeat what has already, long since, been announced to the American gov ernment, namely, that his majesty's Order in Council of April 26, 1809, súperceded those of November, 1807, and releived the system of retaliation adopted by his majesty against his enemies from what was considered in this country as the most objectionable part of it; the option given to neutrals to trade with the enemies of Great-Britain, through British ports, on payment of a transit duty.
This explanation, sir, will, I trust, be sufficient to do away any impression that you may have received to the contrary from my observations respecting the effects which his majesty's Orders in Council originally had on trade of neutral nations. Those observations were merely meant as preliminary to a consideration of the question now at issue between the two countries.
I have the honor to be, with the highest consideration and respect, sir, your most obedient humble servant,
1 AUGUSTUS J. FOSTER.
Mr. Foster to Mr. Monroe.
WASHINGTON, July 14, 1811. SIR His majesty's packet boat having been sɔ long detained, and a fortnight having elapsed since my arrival at this capitol, his royal highness, the prince regent will necessarily expect that I should have to transmit to his royal highness some official communication as to the line of conduct the American government mean to pursue. I trust you will excuse me therefore, sir, if without pressing for a detailed answer to my note of the 3d inst. I anxiously desire to know from you what is the President's determination with respect to suspending the operation of the late Act of Congress prohibiting all importation from the British do
T'here have been repeated avowals lately made by the government of France, that the Decrees of Berlin and Milan were still in full force, and the acts of that government have corresponded with those avowals.
The measures of retaliation pursued by Great-Britain against those Decrees are consequently to the great regret of his royal highness still necessarily continued.