Kitabı oku: «Abridgement of the Debates of Congress, from 1789 to 1856 (4 of 16 vol.)», sayfa 73

What is the understanding of the French courts and officers, on this subject. I have already presented you with that part of the letter of the Duke of Cadore, of the 5th of August, in which he says, that since Congress have retraced their steps, by revoking the act of the first of March, "France is no longer interdicted to the Americans." Now, if this letter is in the form of a decree, it revokes or modifies the Rambouillet decree equally with those of Berlin and Milan, inasmuch, as long as the former continued in force, France was interdicted to the Americans. And yet we find, in a letter of the Duke of Cadore, of the 7th day of September, our Minister inquiring, "Has the decree of His Majesty of the 22d day of March last been recalled?" And General Armstrong, in his letter to Mr. Smith of the 10th of September, remarks, that this inquiry "may appear to have been useless, after the declaration, that American ships which will hereafter arrive in the ports of France shall not be subject to confiscation; but understanding from the Council of Prizes, that until some act be taken which had the effect of recalling, by name, the decree of the 23d of March, they must consider it both as existing and operative, and of course binding upon them," and he had presented the subject again.

Here, then, we have the opinion of the French court, most known and most important to us, the Court of Prizes, that the letter of the Duke of Cadore is not in the form of a decree, and has not the force and effect of a decree. In addition to this, we have the act of seizure of the brig New Orleans Packet, by the director of the customs at Bordeaux, in December last, under the Berlin and Milan decrees. As the letter of the Duke of Cadore had been published in France prior to this period, no one will believe that if it was in form of an edict of the Empire, the seizure would have been made.

But if the contents of this letter had been embodied in a formal act, would it have amounted to such a revocation or modification of the Berlin and Milan decrees, as that they ceased to violate our neutral commerce?

I remark first, that the revocation, if it be one, was a future and not a present revocation. "The decrees of Berlin and Milan are revoked, and, after the first of November, they will cease to have effect." Now, sir, although there is an affected obscurity in this sentence, the intent is most obvious. As long as a law continues in operation, so long it must be unrepealed, and as these decrees were to have effect until the 1st of November, it follows, that on no construction can they be considered as revoked until that period. Indeed, on this point the Duke of Cadore is quite explicit in his letter to General Armstrong of the 7th of September, in which he tells him, that American vessels arriving in France before the first of November, although not liable to confiscation, "will be subjected to all the effects of the Berlin and Milan decrees."

But, again: the revocation, if any, was not only future, but it was also conditional; "it being understood, that in consequence of this declaration, the English shall revoke their Orders in Council and renounce the new principles of blockade which they have wished to establish, or that the United States, conformably to the act you have just communicated, shall cause their rights to be respected by the English." A condition – a qualification – a restriction. Is it not obvious, from the very terms of the letter, that it contains a condition that the repeal is a qualified one? The words "it being understood," are not only expressive of this, but they are singularly appropriate. If, however, we were inclined to doubt, we must be satisfied by the letter of the Duke of Cadore to General Armstrong, of September 7th, in which it is said, that the Emperor "repeals his decrees of Berlin and Milan, under the conditions pointed out in my letter to you of the 5th of August."

Our Ministers, General Armstrong and Mr. Pinkney, appear to have puzzled themselves much about this condition, to discover whether it was a condition precedent, or a condition subsequent. To me, sir, the idea of a condition subsequent to a repeal, is rather novel; but it may nevertheless be just. In common understanding, it is believed, that when a law is repealed it is extinct, and if it be so, then its appendage, the condition, would seem to be at an end of course. But in the view which I am about to take of this subject, it is not necessary to settle this point, as it must be conceded, that whether we call the condition a condition precedent, or a condition subsequent, the same consequence will follow: if the condition is not complied with, the decrees must be in force still. Now, sir, it appears to me that the conditions, attached to this pretended or proposed repeal, are of a nature which have not, and will not be complied with.

First, sir, as to the conditions on the part of England: "The English shall revoke their Orders in Council, and renounce the new principles of blockade which they have wished to establish." With respect to the Orders in Council, I have nothing to say either as to their justice or their policy. Heaven knows they have been to us, from the moment of their inception, sore evils; the causes of great vexation, embarrassment, and losses; and I hope the period is not far distant when we shall be no longer disturbed by them. But, sir, I wish to call your particular attention to the other branch of the condition, that relating to blockades. We have been so long in the practice, and justly in the practice, of complaining of paper blockades, that at the first blush we are induced to believe the condition relates to them, and to them alone. Are these the blockades which are intended? Let the Emperor and King answer for himself. In the official note from Count Champagny to General Armstrong, of the 22d of August, 1809, we have this declaration: "A place is not truly blockaded until it is invested by land and by sea; it is blockaded to prevent it from receiving the succors which might retard its surrender. It is only then that the right of preventing neutral vessels from entering it exists." But we have it under the hand and seal of the Emperor himself, what he means by the "new principles of blockade." In the Berlin decree there is an enumeration of real or pretended interpolations, on the part of Great Britain, in the law of nations; among which we discover these: "that England does not admit the right of nations as universally acknowledged by all civilized people; that she extends to ports not fortified, to harbors and mouths of rivers, the right of blockade, which, according to reason and the usage of civilized nations, is applicable only to strong or fortified ports." And it is declared that "the decree shall be considered as the fundamental law of the Empire, until England has acknowledged that the rights of war are the same on land as at sea – and until the right of blockade be restrained to fortified places actually invested by competent forces."

There can be no misunderstanding on this subject. The Emperor offers to give up his Berlin and Milan decrees, if the British will renounce their new system of blockade; and in these very decrees he explains what he means by this new system; that, besides paper blockades, it is the attempt to blockade the mouths of rivers and harbors, and ports not fortified. Now, sir, I will admit, if we could prevail on Great Britain and France thus to limit the right of blockade, it would add much to our security at home; for as we have no fortified places, although we may have places with fortifications, it would follow that we should never be subject to a blockade. But is it true that according to the usages of nations this is a novel system, or one now, for the first time, put in use by the British? Or is it believed, that a nation like England, whose effective force for offence and defence is a maritime force, can or ought to subscribe to a system of blockade which confines its exercise and right to "fortified places actually invested?" What would be the effect of such a system in the present war? France has surely not to apprehend an invasion from England; and if any of the commercial places on her extensive coasts are fortified, the fortifications may be dismantled or destroyed with great safety. As soon as this is done they become "harbors and ports not fortified," and have no longer to apprehend any inconvenience from the pressure of a naval force. Is it not obvious that England will not comply with her part of the condition, and that the Emperor never expected that she would?

As to the conditions on the part of this country – "The United States, conformably to the act you have just communicated, shall cause their rights to be respected." What rights, Mr. Chairman? The right of not being vexed or endangered by paper blockades? Yes, sir, and more; the right of not being interrupted in a commercial intercourse with cities situated on rivers, as Antwerp for instance; or to carry on a free trade with all the continental ports and harbors not fortified, although the whole British navy may be cruising at the mouth of the river, or in sight of the port. But we have a further declaration of neutral rights which the French Emperor says he will allow when France has a marine proportioned to the extent of her coasts and her population, and which, so long as the British shall continue to be masters of the sea, he insists we shall claim and exercise. Thus, in the note from Count Champagny to General Armstrong, of the 22d of August, 1809, "France admits the principle that the flag covers the merchandise. A merchant vessel, sailing with all the necessary papers from its Government, is a floating colony. To do violence to such a vessel by visits, by searches, and by other acts of an arbitrary authority, is to violate the territory of a colony. This is to infringe on the independence of its Government." In other words, the flag is to protect the property, and search is not to be permitted. I pray you, sir, to bear in mind, that since the formation of this Government, and under every Administration, the right of blockading, by an actual present and efficient force, ports and places not fortified; the right of search, and the principle, that enemy property is not protected by the character of the vessel, has been recognized or conceded.

But how are we to cause these rights to be respected? By putting in force the non-importation law? Suppose the British should not believe themselves excessively injured by this measure; that, in fact, it operated to their advantage, and we are suffered to bring on premature decay and old age, by this political quackery. Would this satisfy the Emperor? No, sir. He would soon tell us that we had not caused our rights to be respected. It is idle to believe that he will deem the non-importation a compliance with his condition; nor, to me, does his language convey this idea. We are to oppose, or declare ourselves against the British, and in the spirit of our law and of his declaration, we are to cause our rights to be respected, not by self-destroying measures, but by actual force and open hostility, if the English nation will not, without it, subscribe to the terms which have been presented to it. Recollect the history of our embargo and former non-intercourse, the propositions made under them by our Government to the French Government, and how these propositions were received, and you will be satisfied of the nature and extent of the present condition.

And now, let me ask, whether we are prepared for these conditions? Whether we believe in all the rights which the French Emperor condescends to claim for us from the British, although he will not admit them himself? And whether we are prepared to go to war for them? To me the conditions, both on the part of this country and Great Britain, appear inadmissible. At all events, I think that the President, before he acted on a proposition so loose and general, which admits of so much doubt, and can, by fair construction, be carried to such extravagant lengths, ought to have asked and received explanations and particulars.

But it may be said that the letter of the Duke of Cadore, if not itself a decree, is evidence that there is a rescinding decree. To my mind, Mr. Chairman, it has internal marks to the contrary; but, without troubling the committee with any further comments on the letter, I observe, that viewing it as a mere matter of evidence, it may be fortified or explained by other evidence. I have already read to you parts of the letters from Secretary Smith to General Armstrong, of the 5th of June and the 5th of July, which declare the determination of the President not to carry the non-intercourse law into effect against England, unless France not only revoked her decrees, but restored our sequestered property. We are to presume that our Minister made known this determination to the French Court, as it was his duty so to do. Now, with this declaration before him, is it to be credited that the Emperor would revoke his decrees, when he was given to understand that the revocation would lead to no result on our part, inasmuch as he did not release our property? Is it not obvious, from this circumstance alone, that the letter is a mere proposition in answer to the one made by our Government, expressive of the views, and stating the terms on which the Emperor would revoke?

Again, sir, we have the letter of Mr. Russell to Secretary Smith, of the 11th of December, 1810, informing our Government that the brig New Orleans Packet had been seized at Bordeaux a few days before, under the Berlin and Milan decrees, by the director of the customs. And we have had communicated to us, by the President, the note from Mr. Russell to the Duke of Cadore, of the 10th of December, stating this seizure to have been made under the decrees, and giving an additional fact, that the case of this vessel was the first which had occurred after the first of November, to which the decrees could be applied. As this seizure was made under the decrees, it shows the impression in France to be, that they still are existing and in force; and the evidence is the stronger, as coming from the custom-house of one of the principal trading towns, where surely the revocation must have been officially known, if it had taken place. I am aware it is said that Mr. Russell must have been misinformed as to the cause of the seizure, or that the custom-house officer mistook his duty. But as to both of these suggestions, I will only remind you of the silence of the French Government. The remonstrance of Mr. Russell was handed to the French Minister on the 10th of December, and the vessel which bore the despatches, brought Paris accounts to the 27th of December, and did not leave France until the 1st of January. If Mr. Russell had any explanation or answer from the French Government it would have been communicated to us; but he had none. The silence of the French Minister is equal to an express affirmance of the act of the custom-house officer, and is an admission that the decrees have not been revoked.

Saturday, Feb. 9

Commercial Intercourse

On motion of Mr. Eppes all the orders of the day were laid on the table, and the House resolved itself into a Committee of the Whole on the bill supplementary to the act concerning commercial intercourse, &c.

Mr. Emott's motion being under consideration, to amend the bill so as to repeal the law of May last, &c., Mr. Rhea made a motion superseding that, viz: to strike out the whole of the bill.

Mr. Eppes said, that when, on a former day, this bill, designed only for the relief of our own citizens, was under discussion, subjects not at all connected with its merits were brought into view. A gentleman from New York (Mr. Emott) presented to the House on that occasion his view of our foreign relations, and exercised all his ingenuity to show, as it is but too often the practice here, that the Government of the United States is exclusively wrong, and the Government of Great Britain exclusively right. It seems that in this enlightened age new duties are assigned to a Representative. Under the pressure of every injury which foreign influence can inflict, a Representative is considered as discharging his duty, if, with a fine-spun web, he can present, under a suspicious aspect, either the motives or the acts of the Executive branch of his Government. No nation, ancient or modern, unless in the last stage of corruption, can be produced where, as in the United States, periods of difficulty have been seized by the Representatives, and the weight of their talents exclusively employed for increasing the public embarrassments. The speech of the gentleman from New York, however well he may have covered it under mildness of manner and a fine-spun argument, is designed to convey to the people an idea, that the Executive has manifested partiality towards France in the late arrangement. The gentleman tells us, that while the Minister of one foreign nation was denounced here for an implied insult, the letter of the Duc de Cadore to Mr. Armstrong is passed over almost in silence; that the Secretary of State, in a letter to General Armstrong, tells him that the President thinks it unnecessary to make any remarks on it. The gentleman ought to have gone further, and stated the whole fact: that the letter of General Armstrong in answer to the Duc de Cadore was approved by the President; that, by the approval, he adopts as his own the language and sentiments of that letter. The letter of General Armstrong, by the approval of the President, has become the act of his Government. For the sentiments contained in that letter the American Government is responsible, and not General Armstrong. The firm, manly, and eloquent reply of General Armstrong to the Duc de Cadore stands precisely on the same footing as if it had been originally written under the directions of the Government. General Armstrong did not wait for instructions. He repelled, in a style comporting with the dignity of his station, the charges of the Duc de Cadore. The President, through the Secretary of State, approves his letter, adopts it as his own, and says he has nothing to add. Well, indeed, sir, might he say so, because the Minister had already said, in a style as pleasing to his country as to his Government, all that the occasion demanded. But, sir, the gentleman from New York cannot agree with his colleague in considering the President of the United States correct in issuing his proclamation. Why, sir, does the gentleman disapprove of the President's proclamation? Because, says the gentleman, the letter of the Duc de Cadore, of August, was not a repeal of the Berlin and Milan decrees. It is a mere promise that on a certain day they shall be withdrawn. When, sir, the President received the declaration of Mr. Erskine, the British Minister, that, on a particular day, the Orders in Council would be withdrawn, and issued a proclamation founded solely on that declaration, his conduct was warmly approved by men of all parties. The gentleman from New York joined in the burst of applause heaped on that Executive act. Was the letter of Mr. Erskine a repeal of the British orders? Unfortunately, we know practically it was not. Was it such a repeal as the gentleman contends ought to have taken place of the Berlin and Milan decrees, viz: under the sign manual of the Emperor? No, sir, it was just such a letter as that of the Duc de Cadore. In both cases the word of the Minister was taken as a pledge, and, on examining the two letters, so far as they may be considered a pledge, the words are nearly the same. I approved of the arrangement with Mr. Erskine; so did the gentleman from New York. I cannot see any difference in the ground taken by the Executive, except that one arrangement was with Great Britain, and the other with France. The one affected the interests of Great Britain; the other affects the interests of France. The gentleman from New York, more nice in distinctions than myself, may, perhaps, satisfy himself and the people that these two cases are marked by lines so strong as to render the conduct of the Executive in the one case an object of applause and approbation for himself and his friends, and in the other of suspicion and censure. It is not, however, my intention to pursue the gentleman through his argument. There is one part of it which I consider it a duty to pass in review, inasmuch as it is calculated to give to the public an erroneous view of the grounds taken by the Executive in the recent negotiation with Great Britain. The gentleman says, the President has not only required of Great Britain to withdraw her orders, but her blockades also. This, he says, she cannot and never will yield. This declaration is made, too, in the presence of the agent of Great Britain, who must have heard with delight the American Executive held up to suspicion, and an American Representative declare, on the floor of Congress, that demands were made on Great Britain, not sanctioned by the law of the last session. In order, sir, to support this declaration, the gentleman gives a view of the demands of the Executive on Great Britain totally incorrect and contradicted by every part of the correspondence before us. The gentleman tells you, that we have demanded of Great Britain not a withdrawal of the Orders in Council only, as contemplated by the law of last session, but of her "novel blockades." To establish the demands of the Executive, he turns, not to the correspondence, but to the Berlin or Milan decrees, and takes for our demand on Great Britain the definition of blockade given by the French Emperor. The gentleman is entirely mistaken as to the demand made of Great Britain by the Executive. The revocation of but one blockade, viz: that of May, 1806, is included in the demand of the Executive. The features of this blockade render it different from all other blockades. It is, in fact, from its character, more like the Order in Council, a permanent regulation in commerce, than a blockade. I will, however, first show from the correspondence, that the President did not, under the act of the last session, require the revocation by Great Britain of any blockade except that of May, 1806; and then, that from the peculiar features of that blockade, it must have been included in the demand made under the act of the last session. In the Message of the President, at the commencement of the session, pages 4th and 5th, we find the demand stated in the following terms:

"Under the modification of the original orders of November, 1807, into the orders of April, 1809, there is, indeed, scarcely a nominal distinction between the orders and the blockades. One of these illegitimate blockades, bearing date in May, 1806, having been expressly avowed to be still unrescinded, and to be, in effect, comprehended in the Orders in Council, was too distinctly brought within the purview of the act of Congress, not to be comprehended in the explanation of the requisites to a compliance with it. The British Government was accordingly apprised by our Minister near it, that such was the light in which the subject was to be regarded."

This is the language of the President. In pages 38 and 39 of the correspondence, we find the declaration of Mr. Smith, our Secretary of State, to General Armstrong, in the following words:

"If the non-intercourse law, in any of its modifications, was objectionable to the Emperor of the French, that law no longer exists.

"If he be ready, as has been declared in the letter of the Duke of Cadore, of February 14, to do justice to the United States, in the case of a pledge on their part not to submit to the British edicts, the opportunity for making good the declaration is now afforded. Instead of submission, the President is ready, by renewing the non-intercourse against Great Britain, to oppose to her Orders in Council a measure which is of a character that ought to satisfy any reasonable expectation. If it should be necessary for you to meet the question, whether the non-intercourse will be renewed against Great Britain, in case she should not comprehend, in the repeal of her edicts, her blockades which are not consistent with the law of nations, you may, should it be found necessary, let it be understood, that a repeal of the illegal blockades of a date prior to the Berlin decree, namely, that of May, 1806, will be included in the condition required of Great Britain; that particular blockade having been avowed to be comprehended in, and, of course, identified with the Orders in Council. With respect to blockades, of a subsequent date or not, against France, you will press the reasonableness of leaving them, together with future blockades not warranted by public law, to be proceeded against by the United States in the manner they may choose to adopt."

In pages 45 and 46, we have the declaration of General Armstrong and the Duke de Cadore. Mr. E. then read the following:

From General Armstrong to Mr. Pinkney

Paris, January 25, 1810.

"Sir: A letter from Mr. Secretary Smith, of the first of December last, made it my duty to inquire of His Excellency the Duke of Cadore, what were the conditions on which his Majesty the Emperor would annul his decree, commonly called the Berlin decree; and whether, if Great Britain revoked her blockades, of a date anterior to that decree, his Majesty would consent to revoke the said decree? To these questions I have this day received the following answer, which I hasten to convey to you by a special messenger:

Answer. – "The only conditions required for the revocation, by his Majesty the Emperor, of the decree of Berlin, will be a previous revocation, by the British Government, of her blockades of France, or a part of France, (such as that from the Elbe to Brest, &c.,) of a date anterior to that of the aforesaid decree."

In page 47, we have the statement of Lord Wellesley to Mr. Pinkney:

"I have the honor to acknowledge the receipt of your note of the fifteenth ultimo, wherein you request to be informed whether any, and if any, what blockades of France, instituted by Great Britain during the present war, before the first day of January, 1807, are understood by his Majesty's government to be in force? I have now the honor to acquaint you, that the coast, rivers, and ports, from the river Elbe to Brest, both inclusive, were notified to be under the restrictions of blockade, with certain modifications, on the 16th of May, 1806; and that these restrictions were afterwards comprehended in the Order of Council of the 7th of January, 1807, which order is still in force."

In page 71 of the correspondence, Lord Wellesley declares, in a letter to Mr. Pinkney:

"The blockade, notified by Great Britain in May, 1806, has never been formally withdrawn. It cannot, therefore, be accurately stated, that the restrictions which it established rest altogether on the Order of Council of the 7th of January, 1807; they are comprehended under the more extensive restrictions of that order. No other blockade of the ports of France was instituted by Great Britain, between the 16th of May, 1806, and the 7th of January, 1807, excepting the blockade of Venice, instituted on the 27th of July, 1806, which is still in force."

From this, sir, it appears that if we are to credit the President, the Secretary of State, General Armstrong, the Duc de Cadore, and the British Minister, Lord Wellesley, the demand was confined to the blockade of 1806. Was this blockade such a violation of the neutral rights of the United States as to come decidedly within the act of the last session? Let us examine its features. This blockade is a compound one, presenting three distinct characters:

1. It obstructs a trade from one port to another of the same enemy – France for example. This trade has been denied latterly though not formerly, by Great Britain, to be free to neutrals. The United States assert the neutral right to it.

2. It obstructs a trade from the port of one enemy to the port of another – from a French to a Dutch port, for example. This is a principle not before asserted by Great Britain. The present Cabinet of Great Britain contended against its conformity to the law of nations, in opposition to their predecessors, who attempted to justify the orders of January, 1807, on that principle.

3. It obstructs the direct trade of neutrals from their own country to any part of the coast from the Elbe to Brest – a coast not less than a thousand miles. For this part of the blockade there can be no defence which is not applicable to the Orders in Council. This blockade has been continued for four or five years. No force, either adequate or inadequate, has been stationed for carrying it into effect. No new notification has been given. It is, in fact, like the Orders in Council, a permanent regulation of commerce, and has nothing of the character of a blockade, except the mere name. This blockade consists in great part of the same prohibition with the orders of January, 1807, in which it is said to be comprehended; that is, against a trade along the belligerent coast. If the orders be unlawful, therefore, the blockade must be so; and if the orders be repealed as a violation of neutral trade, in compliance with the act of Congress, the obligation to repeal the blockade, as a like violation, cannot be contested. This blockade of May, 1806, is in violation of the principles laid down by all authors on the subject of blockade. It is in violation of the principles laid down in all the treaties which attempted to define a blockade. It is in violation of the principles contended for by every Administration under the American Government, from the period of Washington to the present time. The correspondence under General Washington's Administration, between the Secretary of State and Mr. Hammond, may be referred to for the principles asserted under that Administration. In the correspondence before us we have the principles as laid down by General Marshall and Mr. King. To these I will refer.