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

He said he was at present inclined to support the amendment proposed by the honorable gentleman, (Mr. Rhea, of Tennessee,) and if the words should be stricken out as proposed by that gentleman, (as one good turn deserved another,) he hoped he would be disposed to support a proposition, which he (Mr. S.) would then submit to the committee. If the committee should agree to strike out, Mr. S. would then propose to insert in lieu thereof, after the words "be it enacted" the following words, (which he read to the committee,) viz: "That an act entitled an act concerning the commercial intercourse between the United States and Great Britain and France, and their dependencies, and for other purposes, passed May 1, 1810, be and the same is hereby repealed."

Mr. S. said he was inclined to favor the amendment of the gentleman from Tennessee on another ground. He was not willing to imply by any vote of his a recognition of the efficacy of the non-intercourse law, so called, which could not, in his opinion, upon any principle, have any operative force, until the 20th of May next. He flattered himself, if gentlemen would be so good as to attend to him, that he should be able to demonstrate to their satisfaction the truth of this position; and that the chairman of the Committee of Foreign Relations, exercising his usual candor, would himself be satisfied. The law, passed March 1, 1809, contained a number of sections which went to prevent importations from Great Britain and France, and their dependencies. This law (containing a clause limiting its duration) was to expire at the end of the next session of Congress. The then next session of Congress ended the last of June, 1809. The law of March, 1809, therefore, then expired. The law of May 1st, 1810, enacted that certain sections of that of March, 1809, should be revived upon certain contingencies. Those sections, thus revived, are the 3d, 4th, 5th, 6th, 7th, 8th, 9th, 10th, and 18th. Mr. S. then recurred to those sections, and read the third, which is as follows:

[The section was here read.]

Mr. S. said it was unnecessary to read the other sections to which he had referred, as the phraseology, as to the time when they were to take effect, was the same as in the section which he had read. He said it would not answer the purpose of gentlemen who held a different opinion from him, to argue in such a case as the present, from the intention of the Legislature. He said it was a principle, in construing penal statutes, to construe them strictly. But he said it was not necessary for him, in support of his position, to resort to this rule of construction. The words of these sections are explicit, and the meaning plain. They are revived in the law of May, 1810. They must be considered as revived in todidem verbis– as the whole of the sections are revived generally, it is not competent to say that one part of the section is revived, and not the other part. If they had been transcribed verbatim, and incorporated in the law of May, 1810, there could have been no question; and there can be no difference as to this point between that case, and reviving them without excepting any part. Mr. S. therefore concluded, that as the expressions in the sections referred to were, that they were to take effect the 20th of May next; and the law reviving them passed the 1st of May, 1810; that they cannot have any efficacy until the 20th of May, 1811. And he said the gentleman from Virginia, (Mr. Eppes,) in attending to this point, had implied his doubts upon it by saying, that as there might be doubts among lawyers, though among unlearned men there could be none, the Committee of Foreign Relations, in reporting the bill now under consideration, were disposed to give a liberal construction to the meaning of the Legislature. But, said Mr. S., this cannot help the matter. No new law, in the nature of an explanatory law, can give efficacy to the former one, if that law would otherwise have no force. If, then, he was correct in his ideas upon the subject, and he thought every lawyer in the House must be of his opinion, Mr. S. asked, what is the consequence? He said that, from the 2d of February, any seizures which have been or shall be made by your custom-house officers, cannot be considered as legal. Your Federal courts cannot condemn property so seized; and in case they are made, your State courts will sustain actions of trover and trespass in favor of the owners thereof against such officers.

Mr. Wright. – Mr. Chairman: The gentleman from New York (Mr. Emott) labored yesterday for three hours on his proposed amendment to the bill under consideration, and exercised all his ingenuity to seduce us into a violation of the faith of the nation, pledged in the act entitled "An act concerning the commercial intercourse between the United States and Great Britain and France and their dependencies, and for other purposes." By this act the nation pledged itself to Great Britain and to France, "that if either of them should so revoke or modify their edicts that they should cease to violate the neutral commerce of the United States, that the President should, by proclamation, declare the same; and that, three months after the date of said proclamation, no goods, wares, or merchandise, the growth, produce, or manufacture of the other nation, her colonies or dependencies, should be imported into the United States." The Government, strictly preserving her neutral character, at the same moment presented to both nations the same proposition, and by the solemnity of that act, in the face of the world, pledged the faith of the nation to the faithful performance of the condition above stated, on their part to be performed, in the event of either Great Britain or France so revoking or modifying their edicts that they should cease to violate the neutral commerce of the United States.

France, on the 5th of August, 1810, did so revoke her edicts that they should cease to violate the neutral commerce of the United States, after the second day of November; and, although the fact has been established by the letter of the Duke of Cadore, of the 5th of August, to General Armstrong, our Minister at Paris, and by him communicated to the President of the United States; and, although the President did, by his proclamation, bearing date the second of November, in obedience to the said act of Congress, declare "that the edicts of France violating the neutral commerce of the United States had been so revoked or modified, that, from and after the second day of November, they would cease to violate the neutral commerce of the United States;" whereby, after the expiration of three months from the date of said proclamation, by virtue of the act aforesaid, "no goods, wares, or merchandise, the growth, produce, or manufacture of Great Britain, her colonies or dependencies, should be imported into the United States, unless she, before the expiration of that time, revoked her edicts." Yet, sir, this gentleman, to the bill on the table contemplating a faithful execution of the non-intercourse law against Great Britain, has proposed an amendment that "no vessel or merchandise shall be liable to seizure or forfeiture, on account of any infraction, or presumed infraction, of the provisions of the act to which this act is a supplement;" thereby substantially to repeal the non-intercourse act, although France has revoked her decrees, and Britain has refused to revoke her Orders in Council, and by the last information from our Minister in London, every spark of hope of their being revoked had been extinguished.

That gentleman, a representative of the American people, has proposed this direct breach of public faith, and as a pretext to the unprincipled act, has had the temerity to declare "that the President had no authority to issue his proclamation; that the assurances of France to our Government were deceptive; that the Berlin and Milan decrees were not revoked; and that the non-intercourse act is not in force;" and thus has arraigned the President for issuing his proclamation.

By the constitution, the Departments of the Government are distinctly marked, and the President authorized, as the legitimate organ, to discharge every function of the Executive. Besides, the non-intercourse act has expressly authorized and directed him, by proclamation, to declare the fact of the revocation or modification of the edicts which the belligerents were by that act invited to revoke.

As well might that gentleman question the legitimacy of a treaty after it had been ratified and declared by proclamation, or an act of Congress after it had passed the usual forms and been duly published. Sir, this act of the President, as to every fact stated, implies absolute verity, and, like any other record, can be tried only by itself.

Had the gentleman contented himself with the discharge of his legislative duties, and indulged the President in the exercise of his Executive functions, we should have been relieved from a long speech, calculated only to inculpate the President and expose the gentleman's devotion to Great Britain. How, I ask, could the President act a different part, from the evidence in the case? The Duke of Cadore, the French Minister of Foreign Relations at Paris, in writing, informed General Armstrong, the American Minister at that Court, on the fifth of August, "that he was authorized to declare to him, that the decrees of Berlin and Milan are revoked, and that after the first of November, they will cease to have effect; 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." General Armstrong immediately communicated it to the President, who, being thus in possession of the information, was not only authorized, but bound to issue this proclamation.

I would ask, if this diplomatic evidence, the established mode of communication between nations, is not to be received and respected, if national confidence is not destroyed, and an end put to all diplomatic intercourse? Was not the President, in good faith, bound to believe the fact, and, believing it, bound to act as he did?

Sir, if Great Britain had made the like communication through Lord Wellesley to Mr. Pinkney, and he to the President, who had, thereupon, issued his proclamation, what would have been the conduct and language of this gentleman and those who think with him in political opinion? They would, I have no doubt, been prepared to eulogize the President, and publicly approve the act. In this assertion I am not left to conjecture, but will prove it by the most unequivocal evidence, if the gentlemen are consistent with themselves. You will recollect that, by the act of the first of March, eighteen hundred and nine, interdicting the commercial intercourse between the United States and Great Britain and France, and their colonies and dependencies, after a certain period, unless they should so revoke or modify their edicts that they should cease to violate the neutral commerce of the United States, the President in the case of either power, so revoking or modifying their edicts, was authorized by proclamation to declare the same, whereby the interdictions were, as to the power so revoking, to be suspended, and in force only against the other; and I hope you never will forget the deep game that was played by Great Britain on that occasion, and the diplomatic trick that was practised on our Administration by Mr. Erskine's memorable treaty. The President then placed full faith in the act of the British Plenipotentiary, and, on the signing of that treaty which revoked the Orders in Council, immediately issued his proclamation, and thereby dissolved the commercial injunction, whereby Great Britain was supplied with the necessaries of her existence. Then the President acted promptly, as in the case of France; then he acted on the information of the British Minister as he did in the case of France on the information of the French Minister. Then the treaty revoking the Orders in Council was rejected by the British Government; but now, in the case of France, the revocation of her decrees is confirmed and carried into full effect. But the proclamation in the case of France is denounced by the gentleman from New York as neither formal, substantial, nor by authority, although by comparing it with the proclamation in the case of Great Britain, which I hold in my hand, it will be found formally and substantially a copy of it, varied only as to the Government to whose proceedings it relates. When I assure you that the President's proclamation in the case of Great Britain met with the approbation of the gentleman from New York and his political friends, you will feel surprised at their partiality; but, when you examine the resolution of the House of Representatives approbating the conduct of the President in that case, you will feel no doubt of the fact.

Sir, this gentleman has told us that the non-intercourse act is not in force, and that the American people will not submit to its execution, notwithstanding the revocation of the French decrees, the continuation of the British Orders in Council, and the President's proclamation. Whence does this gentleman derive the power of declaring an act of Congress not in force, declared by the President's proclamation to be in force? Or in what section of the Union does the gentleman presume to say the American people will not submit to the law? That that gentleman's speech was intended to sow sedition among the people, and to encourage insubordination to this law, is too obvious.

Sir, the decrees of France, now they are revoked, seem to be more obnoxious to that gentleman than the British Orders in Council, now in full force. He denounces the Emperor for the Rambouillet decree, issued the twenty-third of March, eighteen hundred and ten; which subjected the ships of America to condemnation entering the ports of France, which the Emperor declares was an act of retaliation; because Congress had by their act of March, eighteen hundred and nine, subjected the vessels of France to condemnation entering the ports of the United States, yet that gentleman, when speaking of the British blockading order of eighteen hundred and six, issued without even a pretext, which by proclamation without investment subjected our ships to condemnation entering the ports of France, says, "with respect to their Orders in Council I have nothing to say as to their justice or their policy." He is prepared to condemn France for her act of retaliation, but he is not prepared even to speak of Great Britain's new paper blockading system, much less to declare it unjust or impolitic; although Sir William Scott, in 1 Robinson's Rep. page 96, expressly declares, "that no vessel was liable to condemnation for entering a port alleged to be blockaded, unless it was invested by such a naval force as to make the entry therein hazardous."

Sir, I am no apologist for France – nor do I know how any American, particularly a member of Congress, can be the apologist for either, after France and England have both expressly admitted, that their Orders in Council and decrees were direct violations of the law of nations, and adopted from necessity, as a measure of retaliation against each other, and have each charged the other with the first aggressions on our neutral rights. On examining that subject, I find that England, by her Orders in Council of May, eighteen hundred and six, by proclamation had placed France in a state of blockade; that France in eighteen hundred and seven had placed the British isles in a like manner in a state of blockade; that England, by her Orders in Council of the eleventh of November, eighteen hundred and seven, laid a toll on neutral vessels, and made them pass through her ports; France, by her decree of the seventeenth of December, eighteen hundred and seven, declared the vessels submitting to that order denationalized, and lawful prize; so that by their new principle of blockade, and their unprincipled retaliations, the commerce of the United States was cut up by the roots. The American Government, anxious to preserve the remnant of the property of the American merchants, that had escaped the rapacity of the tyrant of the ocean, on the twenty-second of December, eighteen hundred and seven, passes the embargo law, which the seditious clamors of certain arch traitors in the Eastern States, the violation of the law by treason and cupidity, induced Congress on the first of March, eighteen hundred and nine, to repeal, and to pass the present non-intercourse law, continued, under which France has revoked her decrees of Berlin and Milan, and now expects us to fulfil the conditions which we voluntarily imposed on ourselves, in the event of either revoking their decrees.

Sir, while Great Britain finds such able advocates on this floor, she will find no necessity to redress our wrongs, but will wait the issue of our proceedings in Congress, to see if our remedial laws are not repealed, or our citizens excited to oppose their execution. But we ought not to be surprised at this, when we take a retrospective view of their conduct, their united and uniform opposition to the Administration for many years. They have reprobated every measure – Mr. Erskine's British treaty only excepted – and, as soon as that was rejected by the British Government, as being made contrary to instructions, our Administration was charged with making it, knowing that Mr. Erskine had no authority, and with seducing him to make it contrary to instructions. Afterwards, when Mr. F. J. Jackson, of Copenhagen memory, was sent over as a Minister, while his hands were yet stained with the innocent blood of the inhabitants of Copenhagen, and insulted the administration with the charge of making the treaty with Mr. Erskine, knowing that he had no authority to make it, and after the peremptory asseveration "that Government had no such knowledge, that with such knowledge no such arrangement would have been made," and "that no such insinuation could be admitted," he replied, "that he made no insinuation, without being able to substantiate a fact, and in that I must continue;" thereby persevering in the charge of falsehood in the Administration for which he was dismissed. Again our Government was expressly charged with knowing that Mr. Erskine had no authority, and with dismissing Mr. Jackson without any just cause; that his charge was true, and that in this the Government acted under the influence of France. In order to make such an impression on the public mind, Mr. Jackson is treated with uncommon attention. When he arrives at Baltimore he is surrounded by tories, royalists, Burrites, and British agents, and treated with great politeness – when he arrives in Philadelphia, he is overwhelmed by the civilities of refugees, tories, Burrites, and United States' Bank directors – when he arrives at New York, he is received with open arms by a set of beings of the same description, who invite him to a public dinner, and to test their attachment to the British Government treat him to "God save the King" – when he reaches Boston, there is great parade indeed; he is welcomed to the city by tories, traitors, disorganizers, and embargo-breakers, and Fanueil Hall, once the Council Chamber of the patriots of the Revolution, is prostituted to the disgraceful purpose of a public dinner to this disgraced Minister, and there we see a distinguished Senator of the United States testing his loyalty by the toast of "Britain's fast anchored isle, the world's last hope." After this hasty review of the past, we ought not to be surprised at any measures that may be taken against the Administration, when Great Britain is in the question.

Saturday, February 23

Commercial Intercourse

Mr. Milnor said: Mr. Chairman, when I take a view of the course which has been pursued in relation to this subject, during the present session, I confess I feel greatly surprised that we should be called upon to adopt the present measure. It will be recollected, sir, that, at a very early period, the honorable chairman of the Committee on Foreign Relations, reported a bill supplemental to the act of the 1st of May last. Although the gentleman did make one or two feeble attempts to call it up for consideration, yet it was manifest that there was a general indisposition to act upon it at that time. This, in the opinion of myself and many others, arose from a doubt in the good faith of the Emperor of the French. It was true that he had, through the Duke of Cadore, declared that the Berlin and Milan decrees were revoked on the 5th of August and that they should cease to have effect after the first of November; and it was also true that the President of the United States had, by his proclamation of the 2d of November, declared, not simply that this promise had been given, but that the decrees were revoked, and had ceased to operate. Notwithstanding this declaration of the President, the previous conduct of the French Emperor inspired an almost universal doubt of his good faith, and the curious character of the declaration made by Cadore, was calculated to increase it. The decrees of Berlin and Milan were revoked; that is, dead on the 5th of August, and ceased to have effect; that is, to live on the first of November; thus this creature had the wonderful faculty of being dead and alive at the same time; of ceasing to have effect, and acting with full vigor at the same instant. While all was doubt and hesitation, despatches were received from Mr. Russell, our Chargé d'Affaires at Paris, which made it apparent that the decrees which were to cease to have effect on the first of November, were, in the month of December, still in existence, and in full and practical operation. It is now evident that the President was duped by the French Emperor, and led to issue a proclamation on the faith of his promise, declaring a fact which did not exist. So convinced were the House that this was the true state of the case, that the honorable chairman of the Committee on Foreign Relations himself moved to recommit the bill he had previously introduced, and it was done. What, then, I would ask, sir, has since occurred to alter the face of affairs, to induce this new attempt to fasten on the restrictive system against our intercourse with Great Britain? Is there any thing in the last communication from the President, calculated to produce such an effect? On the contrary, it furnishes the most conclusive evidence of the treachery of Bonaparte, and ought to serve as a beacon to warn us against trusting him further. It is true that there is a letter from Mr. Pinkney to Lord Wellesley, dated December 10th, in which the former labors to prove, that Cadore's note to Armstrong is an absolute repeal of the French decrees, without any conditions precedent, and that therefore the British Government ought to be satisfied of its validity, and take immediate measures for revoking their orders and blockades, agreeably to their promise. But, it unfortunately happened that, on the same day on which our Minister at London was performing his duty, in transmitting his able but theoretical argument to the British Ministry, our Minister at Paris was also performing his duty in remonstrating against the practical operation of those very decrees, which were to have ceased to have effect on the first of November. [Here Mr. M. read the letter of Mr. Russell to the Duke of Cadore, dated December 10th, remonstrating against the seizure of the brig New Orleans Packet, it being the only case, as declared by Mr. Russell, to which the decrees could be applied subsequent to the first of November.]

I recollect, sir, when Mr. Russell's correspondence was communicated to this House, an apology was set up for the French Emperor. It was alleged that the President's proclamation had not arrived in France at the time of the seizure of the New Orleans Packet, and that Bonaparte, having received no evidence of the intention of the American Government to fulfil their engagement, had used the precautionary measure of seizing the vessel, until he should receive some evidence of our good faith; and we were exultingly told that the President's proclamation would put all to rights, by satisfying his doubting Majesty of our sincerity, and would induce him to release all property seized subsequent to the first of November, and once more to put an end to those nine-lived decrees. How has this prediction been verified? The President's proclamation was communicated to the French Government on the 12th of December, two days after Mr. Russell's remonstrance; and yet, for any thing we know, that remonstrance remains unanswered, and the New Orleans Packet remains under seizure to this very day. It is true that, after waiting thirteen days, His Majesty condescended to direct the partial suspension of the decrees, thereby giving the most positive proof not only of their existence, but of their active operation. On the 25th of December, the Dukes of Massa and of Gaete, by the direction of their master, severally wrote a letter to the officers connected with their respective departments, directing them to suspend the operation of those very decrees, so far as respected the condemnation of vessels and cargoes seized after the first of November; not only those then in custody, but such as should thereafter be seized. I will read a part of those letters for the purpose of refreshing the memories of gentlemen on the subject. The Duke of Massa writes to the President of the Council of Prizes as follows: "In consequence of this engagement entered into by the Government of the United States, to cause their rights to be respected, His Majesty orders that all the causes that may be pending in the Council of Prizes, of captures of American vessels, made after the first of November, and those that may in future be brought before it, shall not be judged according to the principles of the decrees of Berlin and Milan, but that they shall remain suspended; the vessels captured or seized to remain only in a state of sequestration, and the rights of the proprietors being reserved for them until the 2d February next, the period at which, the United States having fulfilled the engagement to cause their rights to be respected, the said captures shall be declared null by the Council – and the American vessels restored, together with their cargoes, to the proprietors." The letter of the Duke of Gaete is of a similar import. I will read a single paragraph, which is as follows: "His Majesty having seen in these two pieces" (the President's proclamation and Gallatin's circular to the collectors) "the enunciation of the measures which the Americans purpose taking on the second of February next, to cause their rights to be respected, has ordered me to inform you that the Berlin and Milan decrees must not be applied to any American vessels that have entered our ports since the first of November, or may enter in future; and that those which have been sequestered, as being in contravention of these decrees, must be the object of a special report."