Abridgement of the Debates of Congress, from 1789 to 1856 (4 of 16 vol.)

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.

Mr. E. then read the following extracts of letters from Mr. King and Mr. Marshall:

From Mr. King

"Seven or eight of our vessels, laden with valuable cargoes, have been lately captured, and are still detained for adjudication; these vessels were met in their voyages to and from the Dutch ports, declared to be blockaded. Several notes have passed between Lord Grenville and me upon this subject, with the view, on my part, of establishing a more limited and reasonable interpretation of the law of blockade, than is attempted to be enforced by the English Government. Nearly one hundred Danish, Russian, and other neutral ships have, within a few months, been, in like manner, intercepted, going to and returning from the United Provinces. Many of them, as well as some of ours, arrived in the Texel in the course of the last winter; the severity of which obliged the English fleet to return to their ports, leaving a few frigates only to make short cruises off the Texel, as the season would allow.

"My object has been to prove that, in this situation of the investing fleet, there can be no effective blockade, which, in my opinion, cannot be said to exist without a competent force, stationed and present at or near the entrance of the blockaded port."

Extract of a letter from Mr. King to Lord Grenville, dated

London, May 23, 1799.

"It seems scarcely necessary to observe, that the presence of a competent force is essential to constitute a blockade; and although it is usual for the belligerent to give notice to neutral nations when he institutes a blockade, it is not customary to give any notice of its discontinuance; and that consequently the presence of the blockading force is the natural criterion by which the neutral is enabled to ascertain the existence of the blockade, in like manner as the actual investment of a besieged place is the only evidence by which we decide whether the siege is continued or raised. A siege may be commenced, raised, recommenced and raised again, but its existence at any precise time must always depend upon the fact of the presence of an investing army. This interpretation of the law of blockade is of peculiar importance to nations situated at a great distance from each other, and between whom a considerable length of time is necessary to send and receive information."

Extract of a letter from Mr. Marshall, Secretary of State, to Mr. King, dated

September 20, 1800.

"The right to confiscate vessels bound to a blockaded port, has been unreasonably extended to cases not coming within the rule, as heretofore adopted.

"On this principle, it might well be questioned, whether this rule can be applied to a place not completely invested by land as well as by sea. If we examine the reasoning on which it is founded, the right to intercept and confiscate supplies, designed for a blockaded town, it will be difficult to resist the conviction that its extension to towns, invested by sea only, is an unjustifiable encroachment on the right of neutrals. But it is not of this departure from principle – a departure which has received some sanction from practice – that we mean to complain. It is, that ports, not effectually blockaded by a force capable of completely investing them, have yet been declared in a state of blockade, and vessels attempting to enter therein have been seized, and, on that account, confiscated."

I have shown, from the correspondence, that the blockade of May, 1806, was the only one included in the demand of the Executive. I have shown that it is not only a violation of our neutral rights, but of the principles contended for by men of all political parties under every administration of this country; and I cannot but express my regret that the gentleman from New York should consider that, under the law of the last session, this blockade ought not to have been included in the demand of the Executive on Great Britain; that he should declare in the hearing of the British agent that demands had been made by the Executive of the United States which it would be extremely convenient for us if Great Britain would allow, but which she never could yield. The gentleman from New York has entered into an argument to show that the Berlin and Milan decrees are not repealed. We have just heard of the arrival of a French Minister; he has left France at a time to bring us certain information on this question. I have no wish to enter on this interesting question, with a bandage round my eyes. Whether France has complied with her engagements; whether France has failed in her engagements, cannot be a subject of ingenious speculation many days longer. Whatever may be the information received, I shall endeavor to adhere to what I deem the real interests of my country, and, so far as I am able, to maintain its rights against the unprincipled aggressions of every foreign nation.

I will now make a few observations on the bill before the House. It contains but a single section, and exempts from forfeiture goods owned wholly by citizens of the United States, which shall have departed from a British port prior to the second day of February, 1811. When the report of the Secretary of the Treasury on the subject of modifications of the non-intercourse system was referred to the Committee on Foreign Relations, it appeared to be the unanimous sentiment of the committee, that goods which had left a British port, before the President's proclamation reached the port, ought to be exempt from the penalty of the non-intercourse law, although they might not arrive until after the 2d day of February. It was considered not inconsistent with an honest compliance with our engagements with France, and seemed to be required by that general principle of policy which is adhered to in all free countries, of allowing sufficient notice to its citizens of the commencement of penalties and forfeitures. The bill for enforcing the non-intercourse system was reported with that limited provision. After the bill was printed various statements were received by the committee, all tending to show that the orders of our merchants were sent out in September and October; that, from the change in the actual state of commercial capital in this country, goods were at present purchased with cash, and not only became the property of our citizens under the orders of merchants sent before the President's proclamation issued, but were at the risk of the purchasers; that these goods were actually paid for before the President's proclamation issued; that they could not be brought in before the second day of February. The committee having previously decided that time ought to be allowed for the President's proclamation to reach a British port, and taking into view the great injury our own citizens would sustain from a rigorous construction of the law, determined to extend the time to the ultimate period at which a citizen could put his property on board without infringing the laws of his country. It is not supposed that the construction put upon the law is strictly within its letter – it is, however, perfectly within its object. It was designed to operate on the nation refusing to modify or withdraw its edicts. To give it a construction which would either confiscate property bona fide American, or lock it up in British ports, would be to destroy our own resources, and produce no effect on Great Britain. Under the sixth section of the law, it is not made unlawful to put on board British manufactures with the intent to import them, until the expiration of the three months after the proclamation; its being unlawful after that period depended on Great Britain's following the example of France and revoking her edicts; according, therefore, as the citizen was more or less sanguine, his interest might be more or less involved by supposing that Great Britain would withdraw. Orders sent previous to the issuing of the President's proclamation violated no existing law. Those sent afterwards cannot be considered as given in violation of law, inasmuch as the commencement of the law depended on a contingency, viz: the modification or withdrawal of the British orders. There is another circumstance which operated on the committee: The law of the last session was not considered by the committee as a plain rule of action which every citizen could clearly comprehend, and so arrange his affairs as to avoid its penalties. The fourth section of the act of last session revives certain sections of another act, on the happening of a certain event, three months after that event shall have been proclaimed by the President. This reviving section does not declare that on and after three months from the date of the President's proclamation there shall be non-intercourse, but that particular sections of a former non-intercourse law shall be revived. Each of the revived sections contain the words "20th of May next," and it has been made a question whether these words are revived as part of the sections. It is not supposed by me that such is a proper construction of the law. It is only stated for the purpose of showing that the law was not in that clear, decided form in which penal statutes ought to be enacted. In the construction given to the law, more regard was paid to its objects and principles than to its strict letter. And if, for the purpose of affording relief in cases peculiarly hard and operating on our own citizens exclusively, we have placed on the law a construction not warranted by its letter, I hope we shall be justified by the purity of the motives under which we have acted.

Mr. Emott explained

Mr. Sturges said be was happy that he felt himself so situated that he could avoid that course of discussion upon the present occasion, so much reprobated by the honorable gentleman (Mr. Eppes) from Virginia. He said he should not undertake to enter into a discussion of our foreign relations, nor say much upon our restrictive system; that his friend from New York (Mr. Emott) had already done that fully and ably.