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

Divested of technical expression, this is the abstract form of this section. It provides that a new commercial condition shall result, on the occurrence of a specified fact; which fact the President shall declare. On this state of the subject I observe that nothing in the act indicates whether the object of the United States, in providing for this eventual commercial condition, was its own benefit, convenience, or pleasure; or whether it was in the nature of a proffer to foreign nations. It will, however, be agreed on all sides, that the object was either the one or the other. If the object were our own benefit, convenience, or pleasure, it will not be pretended that we are under any obligation to continue the system. For that which was adopted, solely for either of these ends, may, whenever our views concerning them vary, be abandoned; it being the concern of no other. But it is said that the act was, in truth, a proffer to the two belligerents, of commerce to the obsequious nation, prohibition of commerce to the contumacious nation. If this were the case, I shall agree, for the sake of argument, that it ought to be fulfilled to the full extent of the terms. But inasmuch as there is, in the terms of the act, no indication of such a proffer, it follows that its nature must arise from the circumstances of the case; and that the whole of the obligation, whatever it is, grows out of an honorable understanding, and nothing else. As such, I admit, it should be honorably fulfilled. The nature of this proffer is that of a proposition upon terms. Now what I say is, and it is the foundation of my argument, that whoever claims an honorable compliance with such a proposition, must be able to show, on his part, an honorable acceptance and fulfilment of the terms. The terms our act proposed were – an act to be done; an effect to be produced. The act to be done was, the revocation or modification of the edicts. The effect to be produced was that this revocation or modification should be such as that these edicts should "cease to violate our neutral commerce." Now the questions which result are, has the act been done? If done, has it been so done as to amount to an honorable fulfilment or acceptance of our terms? The examination of these two points will explain the real situation of these United States, and the actual state of their obligations.

In considering the question whether the fact of revocation, or modification, has occurred, it is unfortunate that it does involve, at least in popular estimation, the propriety of the proclamation, issued on the second of November last, by the President of the United States. I regret, as much as any one, that such is the state of things, that the question, whether a foreign despot has done a particular act, seems necessarily to be connected with the question concerning the prudence and perspicacity with which our own Chief Magistrate has done another act. I say in popular estimation these subjects seem so connected. I do not think that, in the estimation of wise and reflecting men, they are necessarily thus connected. For the fact might not have occurred precisely in the form contemplated by the act of May, 1810, and yet the President of the United States, in issuing his proclamation, might be either justifiable or excusable. It might be justifiable. A power intrusted to a politician to be used on the occurrence of a particular event, for the purpose of obtaining a particular end, he may sometimes be justifiable in using, in a case which may not be precisely that originally contemplated. It may be effectually, though not formally, the same. It may be equally efficient in attaining the end. In such a case a politician never will, and perhaps ought not to hesitate at taking the responsibility, which arises from doing the act in a case not coming within the verbal scope of his authority. Thus, in the present instance. The President of the United States might have deemed the terms, in the letter of the Duke of Cadore, such as gave a reasonable expectation of acceptance on the part of Great Britain. He has taken the responsibility. He has been deceived. Neither Great Britain accepts the terms, nor France performs her engagements. The proclamation might thus have been wise, though unfortunate in its result. And as to excuse, will it be said that there is nothing of the sort in this case? Why, sir, our Administration saw the Great Napoleon, according to his own confession, over head and ears in love with the American people. At such a sight as this, was it to be expected of flesh and blood that they should hesitate to plunge into a sea of bliss, and indulge in joy with such an amorous Cyprian?

But, whether the fact has occurred, on which alone this proclamation could have legally issued, is a material inquiry and cannot be evaded, let it reach where or whom it will. For with this is connected the essential condition of this country; on this depends the multiplied rights of our fellow-citizens, whose property has been or may be seized or confiscated under this law: and hence result our obligations, if any, as is pretended, exist. It is important here to observe, that, according to the terms of the act of May 1, 1810, the law of March 1, 1809, revives on the occurrence of the fact required, and not on the proclamation issued. If the fact had not occurred, the proclamation is a dead letter, and no subsequent performance of the required fact, by either belligerent, can retroact so as to give validity to the previous proclamation. The course required by the act of the 1st of May, 1810, unquestionably is, that the fact required to be done should be precedent, in point of time, to the right accruing to issue the proclamation; and of consequence that, by no construction, can any subsequent performance of the fact required operate backward to support a proclamation issued previous to the occurrence of that fact? Whenever this fact is really done, a new proclamation is required to comply with the provisions of the act, and to give efficacy to them.

I am the more particular in referring to this necessary construction, resulting from the terms of the act of the first of May last, because it is very obvious that a different opinion did until very lately, and probably does now, prevail on this floor. We all recollect what a state of depression the conduct of Bonaparte in seizing our vessels, subsequent to the first of November, produced, as soon as it was known in this House, and what a sudden joy was lighted up in it, when the news of the arrival of a French Minister was communicated. Great hopes were entertained and expressed, that he would bring some formal revocation of his edicts, or disavowal of the seizures which might retroact and support the proclamation. It was confidently expected that some explanation, at least of these outrages, would be contained in his portmanteau; that under his powder-puff, or in his snuff box, some dust would be found to throw into the eyes of the American people, which might so far blind the sense, as to induce them to acquiesce in the enforcement of the non-intercourse, without any very scrupulous scrutiny into the performance of the conditions by Bonaparte. But, alas! sir, the Minister is as parsimonious as his master is voracious. He has not condescended to extend one particle, not one pinch of comfort to the Administration. From anything in the Messages of our President, it would not be so much as known that such a blessed vision, as was this new Envoy, had saluted his eyes. His communications preserve an ominous silence on the topic. Administration, after all their hopes, have been compelled to resort to the old specific, and have caused to be tipped upon our tables a cart-load of sand, grit, and sawdust, from our metaphysical mechanic, who seesaws at St. James', as they pull the wire here in Washington. Yes, sir, a letter written on the tenth day of December last, by our Minister in London, is seriously introduced to prove, by abstract reasoning, that the Berlin and Milan decrees had ceased to exist on the first of the preceding November, of whose existence, as late as the 25th of last December, we have, as far as the nature of things permit, ocular, auricular, and tangible demonstration. And the people of this country are invited to believe the logic of Mr. Pinkney in the face of the fact of a continued seizure of all the vessels which came within the grasp of the French custom-house, from the first of November, down to the date of our last accounts; and, in defiance of the declaration of our Chargé d'Affaires, made on the 10th of December, that "it will not be pretended that the decrees have in fact been revoked," and in utter discredit of the allegation of the Duke of Massa, made on the 25th of the same month, which, in effect, declares the Berlin and Milan decrees exist, by declaring "that they shall remain suspended." After such evidence as this, the question whether a revocation or modification of the edicts of France has so occurred "as that they cease to violate the neutral commerce of the United States," does no longer depend upon the subtleties of syllogistic skill, nor is to be disproved by any power of logical illation. It is an affair of sense and feeling. And our citizens, whose property has been, since the first of November, uniformly seized, and of which they are avowedly to be deprived three months, and which is then only to be returned to them on the condition of good behavior, may as soon be made to believe, by the teaching of philosophy, that their rights are not violated, as a wretch, writhing under the lash of the executioner, might be made by a course of reasoning to believe, that the natural state of his flesh was not violated, and that his shoulders, out of which blood was flowing at every stroke, were in the quiet enjoyment of cuticular ease.

Whether the revocation expressed in the letter of the Duke of Cadore, was absolute or conditional, or whether the conditions were precedent or subsequent, in the present state of our evidence, it seems scarcely important to inquire. Yet the construction of that celebrated passage, in his letter of the 5th of August, has been, as I have ever seen, given so much in the manner of lawyers, and so little in that of statesmen, that it deserves a short elucidation; how much the words "it being understood that," in their particular position are worth; and whether they have the effect of a condition precedent, or of a condition subsequent. A statesman will look at the terms contained in that letter in a different aspect, not for the purpose of ascertaining how much a court of law might be able to make of them, as to discern in what position of language the writer intended to intrench himself, and to penetrate his real policy, notwithstanding the veil in which he chose to envelope it. He will consider the letter in connection with the general course of French policy, and the particular circumstances which produced it. By these lights, it is scarcely possible to mistake the character and true construction of these expressions. Upon recurring to the Berlin and Milan decrees, it will be found that they contain a solemn pledge, that "they shall continue to be rigorously in force, as long as that (the English) Government does not return to the principle of the law of nations." Their determination to support this pledge, the French Government has uniformly and undeviatingly declared. They have told us constantly that they require a previous revocation on the part of Great Britain, as the condition of their rescinding those edicts. The question who should first revoke their edicts had come to be, notoriously, a sort of point of honor between the two belligerents. Perfectly acquainted with this state of things, we have been perpetually negotiating between the one and the other, and contending with each that it was his duty previously to revoke. At length the French Government, either tired with our solicitations, or more probably, seeing their own advantage in our anxiety to get rid of these decrees, which yet, as an essential part of its continental system of total commercial exclusion it never intended to abandon, devised this scheme of policy, which has been the source of so much contest, and has puzzled all the metaphysicians in England and the United States. Cadore is directed to say to Mr. Armstrong: "In this new state of things I am authorized to declare to you, sir, 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." In this curious gallimaufry of time present and time future, of doing and refraining to do, of declaration and understanding, of English duties and American duties, it is easy to trace the design, and see its adaptation to the past and present policy of the French Emperor. The time present was used, because the act of the United States required that previously to the proclamation the edicts "shall be" revoked. And this is the mighty mystery of time present being used, in expressing an act intended to be done in time future. For if, as the order of time, and the state of intention indicated, time future had been used, and the letter of Cadore had said the decrees shall be revoked on the first of November next, then the proclamation could not be issued, because the President would be obliged to wait to have evidence that the act had been effectually done. Now as the French Emperor never intended that it should be effectuated, and yet meant to have all the advantage of an effectual deed without performing it, this notable scheme was invented. And, by French finesse, and American acquiescence, a thing is considered as effectually done, if the declaration that it is done be made in language of time present, notwithstanding the time of performance is in the same breath declared to be in time future. Having thus secured the concurrence of the American administration, the next part of the scheme was so to arrange the expression that either the British Government should not accede, or if it did accede, that it should secure to France the point of honor – a previous revocation by the British; and if they did not accede, that there should be a color for seizures and sequestrations, and thus still further to bind the Americans over to their good behavior. All this is attained by this well-devised expression "it being understood that, in consequence of this declaration, the English shall revoke."

Now, Great Britain either would accede to the terms, or she would not. If she did, and did it as the terms required, in consequence of this declaration, then it must be done previous to the first of November, and then the point of honor was saved to France; so that thus France, by a revocation verbally present, effectually future, would attain an effectual previous revocation from the English. But if, as France expected Great Britain would not trust in such paper security, and therefore not revoke, previously to the first of November, then an apology might be found for France, to justify her in refusing to effectuate that present, future, and absolute, conditional revocation. And if ever the Duke of Cadore shall condescend, which it is probable he never will, to reason with our Government on the subject, he may tell them that they knew that the French Emperor had issued those decrees, upon the pledge that they were to continue until the British abandoned their maritime principles; that he told us, over, and over, and over again, that previous revocation by the British was absolutely required; that for the purpose of putting to trial the sincerity of the British, he had indeed declared that the French decrees "are revoked," on the first day of November ensuing; but then it was on the expressed condition that in consequence of that declaration, not of the revocation, but of that declaration, the British were to revoke, and, if they did not, the "understanding" was not realized; and his rights of enforcing his system remained to him. And I confess I do not well see what answer can be made to such an argument. Let us examine the case in common life. You, Mr. Speaker, have two separate tracts of land, each lying behind the farms of A and B, so that you cannot get to one of the tracts, without going over the farm of A, nor to the other tract without going over the farm of B. For some cause or other, both A and B have a mutual interest that you should enjoy the right of passage to your tract, over the farm of each respectively. A and B get into quarrels and wish to involve you in the dispute. You keep aloof, but are perpetually negotiating with each for your old right of passage-way, and telling each that it is owing to him that the other prohibits your enjoyment of it. At last A says "Come. We will put this B to trial. I on this fifth day of August, declare my prohibitions of passage-way are revoked, and, after the first day of November, my prohibitions shall cease to have effect; but, it is understood that B, in consequence of this declaration, shall also revoke his prohibition of passage-way." If B refuses, does A, under the circumstances of such a declaration, violate any obligation, should he refuse to permit the passage? Might not A urge with great color and force of argument, that this arrangement was the effect of your solicitation and assurance that B would be tempted by such a proffer, and that the revocation of B was required, by the terms, to be the consequence of A's declaration, for the very purpose of indicating that it must be anterior to the fact of A's effectual revocation? But let this be as it will; suppose that you, on the first of November, in consequence of A's assurance, had sent your servants and teams to bring home your products, and A should seize your oxen, and teams and products, and drive your servants, after having stripped them, from his farm, and should tell you, that he should keep this, and all other property of yours, on which he can lay his hands, for three months, and then he should restore it to you, or not, as he saw fit, according to his opinion of your good behavior. I ask, if, in any sense, you could truly say that on the first day of November the prohibitions or edicts of A were so revoked, that they ceased to violate your liberty of passage? Sir, when viewed in relation to common life, the idea is so absurd, that it would be absolutely abusive to ask the question. I refer the decision of so simple a case to the sound sense of the American people, and not to that of "scurvy politicians, who seem to see the things they do not." In a condensed form my argument is this. From a revocation merely verbal, no obligations result. By the terms of our act the revocation must be effectual, "so as the edict shall cease to violate our rights." Now the simple question is, whether a uniform seizure, since the first of November, under those edicts (for none other are pretended) of all their property, and holding it for three months, to see how they will behave, be or be not a violation of the rights of the American people? In relation to the revival by a formal declaration of the non-intercourse system, as is proposed in one of these sections, I offer this argument: Either the fact, on which the President's proclamation could alone have been issued, has occurred or it has not. If it has occurred, then the law of March, 1809, is revived, and this provision, by a declarative law, is unnecessary. If it have not occurred, then there is no obligation to revive it, for alone on the occurrence of the specified fact does our obligation depend. In such case the revival by declaration is a mere gratuity to Napoleon. This is in fact the true character of the law. As to the provisions for relief of our merchants against anticipated seizure, I hold them scarcely deserving consideration. Heaven be praised we have independent tribunals and intelligent juries. Our judges are not corrupt and our yeomanry will not be swayed in their decisions, by the hope of presidential favors, nor be guided by party influence. The harpies of your custom-house dare as soon eat off their own claws, as thrust them, in the present state of the law of March, 1809, into the fatness of their fellow-citizens. The timorous and light-shunning herd of spies and informers have too much instinct to pounce on such a prey.

But, in order to cause any obligation to result under the law of May 1, 1810, it is necessary, not only that the fact required be done, and the effect required produced; but also the terms of that act must be accepted. The proffer we made, if such be the character of that act, was only to revive the non-intercourse law against the contumacious belligerent, after three months had expired from the date of the proclamation. Now it is remarkable, that, so far from accepting the terms of the proposition contained in our act, as the extent of our obligations, Bonaparte expressly tells us that they mean something else; and something, too, that no man in this House will dare to aver they really intend. It is also remarkable that the terms of this celebrated letter from the Duke of Cadore, of the fifth of August, which have been represented as a relaxation in the rigor of the French Emperor's policy, are, in fact, something worse than the original terms of the Milan decree, and that, instead of having obtained a boon from a friend in this boasted letter, our Administration have only caught a gripe from a Tartar. By the terms of the Milan decree, it was to "cease with respect to all nations who compelled the English to respect their flag." By the terms of the letter of Cadore, it was to cease on condition that the United States "cause their rights to be respected." Now, as much as an obligation, of an indefinite extent, is worse than a definite obligation, just so much worse are the terms of the letter of Cadore, than the original terms of the Milan decree. Mr. Speaker, let us not be deceived concerning the policy of the French Emperor. It is stern, unrelenting, and unrelaxing. So far from any deviation from his original system being indicated in this letter of the Duke of Cadore, a strict adherence to it is formally and carefully expressed. Ever since the commencement of "his continental system," as it is called, the policy of Napoleon has uniformly been to oblige the United States to effectual co-operation in that system. As early as the 7th of October, 1807, his minister, Champagny, wrote to General Armstrong, that the interests of all maritime powers were common, to unite in support of their rights against England. After this followed the embargo, which co-operated effectually at the very critical moment, in his great plan of continental commercial restriction. On the 24th of the ensuing November, he resorts to the same language – "in violating the rights of all nations England has united them all by a common interest, and it is for them to have recourse to force against her." He then proceeds to invite the United States to take "with the whole continent the part of guaranteeing itself from her injustice, and in forcing her to a peace."

On the 15th of January, 1808, he is somewhat more pointed and positive, as to our efficient concurrence in his plan of policy. For his Minister, Champagny, then tells us, that "His Majesty has no doubt of a declaration of war against England by the United States," and he then proceeds to take the trouble of declaring war out of our hands, and volunteers his services, gratuitously, to declare it, in our name and behalf. "War exists then, in fact, between England and the United States; and His Majesty considers it as declared from the day on which England published her decrees." And in order to make assurance doubly sure, he sequesters our vessels in his ports, "until a decision may be had on the dispositions to be expressed by the United States," on his proposition of considering themselves "associated in the cause of all the powers," against England. Now in all this there is no deception, and can be no mistake, as to the purpose of his policy. He tells us, as plain as language can speak, that "by causing our rights to be respected," he means war, on his side, against Great Britain. That "our interests are common" – that he considers us already "associates in the war," and that he sequesters our property by way of security for our dispositions. This is his old policy. I pray some gentlemen on the other side of the House to point out in what it differs from the new. The letter of Cadore on the fifth of August tells us, it is expected that we "cause our rights to be respected, in conformity to our act," and the same letter also tells us what he understands to be the meaning of our act. "In short, Congress engages to oppose itself to that one of the belligerent powers which shall refuse to acknowledge the rights of neutrals." In other words, "by causing our rights to be respected," he means war on his side against Great Britain. In perfect conformity with this uniform, undeviating policy, his Minister, Turreau, tells our Government, in his letter of the 28th of November last, that "the modifications to be given to the present absolute exclusion of our products will not depend upon the chance of events, but will be the result of measures, firm and pursued with perseverance, which the two Governments will continue to adopt to withdraw from the monopoly and from the vexations of the common enemy a commerce loyal and necessary to France as well as the United States." And to the end, that no one feature of his policy should be changed, or even appear to be relaxed, his Excellency the Duke of Massa, and his Excellency the Duke of Gaete, in their respective letters of the 25th of December, declare, that the property taken, shall be "only sequestered until the United States have fulfilled their engagements to cause their rights to be respected." Now, Mr. Speaker, is there a man in this House bold enough to maintain, or with capacity enough to point out, any material variation between the policy of France to this country, subsequent to the Cadore letter, of the 5th of August, and its policy anterior to that period? The character of the policy is one and indivisible. Bonaparte had not yielded one inch to our Administration. Now, as he neither performed the act required by the law of May, 1810; nor produced the effect; nor accepted the terms it proposed; whence arise our obligations? How is our faith plighted? In what way are we bound again to launch our country into this dark sea of restriction; surrounded on all sides with perils and penalties?