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

The emphatic words of this law are, so revoke or modify, as that they cease to violate, &c. Here is a positive, unconditional, indispensable prerequisite, to be complied with before the President was authorized to exercise the power given to him; a specific fact was to exist, and he was empowered simply to make its existence known to the nation; no discretion was allowed; nothing left to doubtful construction – no conditional promissory note of a perfidious agent, of a more perfidious master, was contemplated by the law. The great question now is, does the fact on which the proclamation was alone to issue, and on which its legitimacy solely depends, exist, or does it not? The very doubt ought to decide the question – the burden of proof unquestionably ought to rest on those who call on us to pass this law; and in their own language, execute the contract, and violate not the faith so solemnly plighted to "Napoleon the Great" – unfortunately the evidence on which they rely disproves the fact, and we are enabled to do what can seldom be done, and ought never to be required – prove a negative.

The letter of the Duke de Cadore, of the 5th August, 1810, the proclamation of the 2d of November, and Mr. Pinkney's diplomatic special pleading in his letter to the Secretary of State, of the 10th of December, constitute the whole burden of proof upon which the advocates of this bill rest their defence, and the evidence of the fact on which alone it can be justified. I have stated the law, and what I conceive to be its obligations on the President and ourselves. It will now be proper to take a correct view of this famous letter of the Duc de Cadore of the 5th August, this honeyed charm, which has seduced us into a labyrinth, from whose gloomy cells and devious windings we are, I fear, not soon to be extricated. This letter, which contains but one sentence of plain truth, viz: "That the Emperor applauded the general embargo laid by the United States" – after asserting the most palpable falsehood, by denying that the Emperor had knowledge of our law of March, 1809, until very lately, and justifying the seizure and condemnation of all American property which had entered, not only the ports of France, but those of Spain, Naples and Holland, dating from the 20th of May, 1809; and declaring that reprisal was a right commanded by the dignity of France, a circumstance on which it was impossible to make a compromise – the letter proceeds: "Now Congress retrace their steps, they revoke the act of the first of March, the ports of America are open to French commerce, and France is no longer interdicted to the Americans. In short, Congress engages to oppose itself to that one of the belligerent powers which should refuse to acknowledge the rights of neutrals. 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, (remark, Mr. Speaker, this declaration, not this fact,) 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, conformable to the act you have just communicated, shall cause their rights to be respected by the English" – then follows in sweet accents His Majesty's declaration of love for the Americans, his solicitude for our prosperity, and the glory of France.

This is the gilded pill, in which lurks a most deadly venom, and which if we swallow, I fear all the political quackery of the nation cannot save us. On this letter, gentlemen rely for the revocation of the French edicts, and the freedom of our commerce with France. Allowing the most favorable construction to this letter, and abstracting it from circumstances and facts both before and after its date, it will not bear gentlemen out in their conclusion; it does not satisfy your law, and did not warrant the state of things which has been and is about to be produced. Instead of an existing and determined fact, we have a promise, and that too clogged with conditions, which it was well known to the Emperor would not or could not be complied with to the extent required by him. The conditions which depended on Great Britain, he knew, never would be yielded, and that which depended on ourselves was nothing short of war with England or our own citizens, by oppressing them with a perpetual embargo. Instead of an authenticated act of revocation, bearing the authority of the most ordinary law or edict of the French Empire, we have nothing but a letter from the agent of the Government, and which the Emperor may disavow at pleasure – as was done in the case of the Minister of Marine, in his explanations to General Armstrong of the intended operation of the Berlin decree – instead of the restoration of the immense amount of American property, of which your citizens have been most cruelly and unjustly robbed by this fell monster of the age – and which the President declared, through the Secretary of State, in letters to General Armstrong of the 5th of June and July, must precede an arrangement with France, and was an indispensable evidence of the just purpose of France towards the United States; instead of having forty or fifty millions' worth of our property restored, we are vauntingly told, that the property was confiscated as a measure of reprisal, that the principles of reprisal must be the law in that affair, and that a compromise would be inconsistent with the dignity of France – the plain English of which is, we have the property and we will keep it. Mr. Speaker, are we to be thus amused? Common honor and common sense revolt at the idea.

An honorable gentleman from South Carolina, (Mr. Cheves,) whom I am very much inclined to respect, in an ingenious argument which he made the other day, to prove that the French decrees were revoked, told you that the revocation of those decrees depended on the mere volition of the mind of the Emperor, not requiring authentication or form; and although they might be revived the next moment, or substituted by other regulations equally affecting our neutral rights, still they were revoked. Thus attributing an authority to Bonaparte, descriptive of the power of the God of nature – when he said, let there be light and there was light. And in reply to the gentleman from Massachusetts, (Mr. Quincy,) who contended that form was essential to the repeal of a decree, he remarked that the gentleman wanted form and not substance. From this course of reasoning, I conceive the gentleman has admitted, that this pretended revocation has neither form nor substance. An edict may be defined to be a law promulgated in such form as the institutions of the country require, or some act of sovereign authority, which has gone through the established forms of office, so as to become obligatory. The edicts of France have an appropriate form, their authority is attested by the Emperor and publicity is given, for the direction of those whose duty it is to carry them into effect. Sir, the decree of the most absolute monarch on earth is no decree till it is published. I contend that a revocation or modification of an edict requires the same or equal solemnities with its enactment; the fact must exist and be officially made known before it becomes obligatory – no declaration of an intention to revoke, can constitute an actual revocation. The act ought not only to be determined and public, but susceptible of authentication, and capable of being communicated to the nation and the world.

This opinion, if it needs authority, is supported by the instructions of the Secretary of State to our Ministers at Paris and London, of the 5th July. Mr. Pinkney is directed in these words – "If the British Government should accede to the overture contained in the act of Congress, by repealing or so modifying its edicts, as that they will cease to violate our neutral rights, you will transmit the repeal, properly authenticated, to General Armstrong, and if necessary, by a special messenger, and you will hasten to transmit it also to this Department – similar directions are given to General Armstrong."

Will it for a moment be contended, that the formal authentication required by the Administration, could mean a Jesuitical, insolent, equivocal, conditional letter, full of sound, and meaning nothing for our good? But, say gentlemen, the President received the evidence and issued his proclamation. This is true; but why has he done so, and how justified by the law under which alone he was authorized to act, is, to my mind, perfectly inexplicable; why, in the course of this arrangement with France, he has varied the ground which he first took – why dispensed with requisites at one time declared indispensable – why he advanced in exactions from Great Britain in proportion as he receded from demands on France, is left for himself and those who have more wisdom than myself, to determine. I trust, sir, I have a proper share of confidence in the Executive, and have no disposition to detract from his merit; but he is only man, and therefore subject to the frailties man is heir to. We have as yet no such maxim among us, as that the Executive is infallible – he can do no wrong. Whatever may be the disposition of other gentlemen, I am as yet too free, too much of a genuine Republican to subscribe to such a doctrine. I said, sir, that in the course of this arrangement with France, the Administration advanced in their demands on Great Britain and receded as to France.

I argue from the documents, which accompanied the President's Message at the opening of the present session of Congress. The first letter in the documents from the Secretary of State to Mr. Pinkney, of the 20th January, 1810, does not contain a word on the subject of blockades – on the contrary, the Orders in Council are alone required to be repealed, as preparatory to a treaty with Great Britain; and the British Government are assured of the cordial disposition "of the President to exercise any power with which he may be invested, to put an end to acts of Congress which would not be resorted to but for the Orders in Council, and at the same time of his determination to put them in force against France, in case her decrees should not also be repealed."

His letter of the 4th of May, which was the first after passing the act of the 1st of May last, that enclosed a copy of that act, is not published. On the 22d of May, another letter is sent enclosing a second copy of the act of Congress, in which there is not to be found any requisition of a repeal of the blockade which is now made a sine qua non to an arrangement with Great Britain. But on the 2d of July, after the arrival of the John Adams, which brought the correspondence between our Ministers at Paris and London, and the Agents of the British and French Governments, on the subject of the repeal of their several orders and decrees; and when it was known that the British Government would not abandon her system of blockade and adopt the principles contended for by France – in this letter, I say, is contained not only a demand of the repeal of the Orders in Council, but also of the blockading order of May, 1806. I have already shown, from the letters before me, of the 5th June and July, that the restoration of the property of our citizens, confiscated by the order of Bonaparte, was declared by the Executive as an indispensable prerequisite to an arrangement with the French Government. But the proclamation of the President has been issued without a cent of property being restored; nor is there the most distant prospect of our regaining a shilling from his iron grasp. Thus have the Administration changed the ground first taken, increased the demands on Great Britain, and abandoned what was deemed indispensable on the part of France.

So conscious was the President of the just expectation of the people of this country, that provision would be made for the restoration of their property, he informs Mr. Armstrong on the 2d of November, the day the proclamation was issued, that "in issuing the proclamation it has been presumed, that the requisition on the subject of the sequestered property will have been complied with." From what this presumption arose, I am at a loss to say – the letter of the Duc de Cadore to General Armstrong, of the 12th September, had been received here; we had been told there would be no compromise; the law of reprisal must govern. Sir, the law of reprisal, as recognized by the laws of nations, could never have authorized the seizure. Reprisals can only be resorted to in case of an act of hostility committed by one nation on the property or citizens of another, and after compensation for the injury has been demanded and refused; and even in that case, the property taken is to be held only in pledge, till satisfaction is made by the offending nation. The moment that confiscation takes place the principle of reprisal ceases and it becomes an act of war. We had done no injury to France; we had violated neither the rights of the persons or property of her subjects – no demand of indemnity was ever made; not a complaint whispered, till nearly twelve months after the passing of the law, (and after its expiration too,) which is made the pretext for this monstrous outrage. The law of reprisal had nothing to do with the affair, and the confiscation of our property excludes the idea of restoration. I confess I was astonished, and felt humbled as an American, when I heard the language of the President of the United States, in his Message to Congress at the opening of the present session on this subject. Instead of that high indignant tone, demanded by the honor and feelings of the nation, he, in the mildness of calm philosophy, says, "It was particularly anticipated that as a further evidence of just dispositions towards them, restoration would have been immediately made of the property" of our citizens, seized under a misapplication of the principles of reprisals, and a misconstruction of a law of the United States. This expectation has not been fulfilled. Thus the question as to the restoration seems to be abandoned; one kind, loving word from Napoleon the Great, (as he has been triumphantly called in this House,) this modern Alexander (without his virtues, with all his faults) disarms us of our rage, and we give millions for his embrace.

Mr. Speaker, the chairman of the committee (Mr. Eppes) who reported the bill, in reply to the very able speech of a gentleman from New York (Mr. Emott) who addressed you in the early stage of this discussion, appeared to me rather to question the purity of the source from which they came, than to have answered the arguments of that gentleman. This mode of reasoning may answer the purposes of gentlemen, but is surely unfavorable to fair investigation; it tends to abridge the freedom of debate, and prevent that firm, decisive, and candid exposition of those measures, which we conceive may vitally affect the happiness of the people. This is a privilege and a duty which I shall ever regard and ever perform. The same gentleman (Mr. Eppes) and several others, have reminded us of the arrangement made with Mr. Erskine; and offer it as a precedent for the justification of the President's proclamation and this bill, (which are substantially one and the same thing.) I had supposed that that unfortunate arrangement would have been kept out of sight by gentlemen on the other side of the House. It was to have been expected they would carefully avoid an attempt to make one bad precedent justify another; they must have forgotten how that arrangement militates against the proclamation, and the demand which is now so positively made of a revocation by Great Britain of her order of blockade of May, 1806. That arrangement, almost dictated by the Administration, and which was perfectly satisfactory to us all, did not contain one syllable, not the most distant information, relative to the repeal of that order, which now appears to excite so highly the indignation of gentlemen, and has been magnified into a cause of war. The order of blockade was at that time more recent, and if so injurious as now alleged, could not have escaped the attention of the Executive, and his vigilant Cabinet, when they were providing for the annulment of the Orders in Council of January and November, 1807. That arrangement was made without requiring a repeal of the blockade – now nothing can be done without a repeal, and thus we are to be blockaded both at home and abroad.

It may be further remarked, that by the law of February, 1808, the President was authorized to suspend the embargo as to France or Great Britain, on the same conditions pointed out by the act of May, 1810. In the exercise of that power, the President instructed Mr. Pinkney to propose to the British Government a repeal of the embargo as to that nation, and its continuation against France, if the Orders in Council of January and November, 1807, should be rescinded. At that time nothing was said, no demand was made, not even a proposition offered on the subject of the blockade in question. My attention, sir, has been somewhat drawn to this part of the subject by the importance which has been given to it in the document before me, and the arguments of gentlemen of this House, particularly the gentleman from Virginia, (Mr. Eppes,) who said much on this subject the other day, in answer to arguments which the gentleman from New York (Mr. Emott) did not make. He reiterated last night that his arguments were unanswered and unanswerable. I do not profess, sir, to be perfectly acquainted with the practical extent of the order of blockade of May, 1806, nor do I know the precise quantum of injury we have sustained by it, nor am I to be understood as attempting its justification – I should be the last to concede any principle or any right to which my country has a claim. But, sir, I am compelled to believe, that an artificial importance is at this moment given to the subject, which it has not received at any other period since the adoption of that regulation by the British Government. I have already shown that, in the negotiation of 1808, and in the arrangement with Mr. Erskine, the question was not even made a matter of contestation; and, sir, from an examination of the Executive papers, from the date of the order of the blockade, down to the present session of Congress, I have not been able to discover a single paper remonstrating against the order, or insisting on its revocation, nor do I know of a single case of the condemnation of an American vessel under its operation. On the contrary, at the time of its adoption, (during the administration of Mr. Fox, who was believed to be as friendly disposed towards us, as any man who ever administered the affairs of the British Cabinet,) this measure was spoken of by our Minister at London (Mr. Monroe) as a relaxation favorable to neutral commerce. It may not be improper to refer to the order itself, as communicated by Mr. Fox to Mr. Monroe, on the 16th of May, 1806; after the preamble this note states "that the King, taking into consideration the new and extraordinary means resorted to by the enemy for the purpose of distressing the commerce of his subjects, has thought fit to direct that necessary measures should be taken for the blockade of the coast, rivers, and ports, from the river Elbe to the port of Brest, both inclusive; and the said coast, rivers, and ports, are, and must be considered, as blockaded. But His Majesty is pleased to declare, that such blockade shall not extend to prevent neutral ships and vessels, laden with goods not being the property of His Majesty's enemies, and not being contraband of war, from approaching the said coasts and entering into and sailing from the rivers and ports, (save and except the coast, rivers, and ports, from Ostend to the river Seine, already in a state of strict and rigorous blockade, and which are to be considered as continued,) provided the said ships and vessels so approaching and entering (except as aforesaid,) shall not have been laden at any port belonging to, or in possession of, His Majesty's enemies, and that the said ships and vessels so sailing from the said rivers and ports, (except as aforesaid) shall not be destined to any port belonging to, or in possession of His Majesty's enemies, nor have previously broken the blockade." This order, then, only excludes from those ports vessels having enemies' property on board or articles contraband of war, in both of which cases they are liable to seizure by the law of nations, at least it has been long contended for on the part of Britain; it also prevents the direct carrying trade from one port to another of an enemy. If this latter extension is not recognized by the law of nations, it is generally the subject of treaty, and was provided for by our treaty with the British Government, and the late convention formed by Mr. Monroe with the British Government, but which was rejected principally because Great Britain required us not to submit to the Berlin decree – a requisition, sir, infinitely short of what we are now to comply with, at the dictation of France – by which colonial produce was required to be relanded in the United States before it would be admitted into the ports of the continent. By this order, bona fide neutral vessels, with neutral produce, sailing from our own country, never were affected.

The gentleman from Virginia (Mr. Eppes) has said this order of blockade has not a single feature of a regular blockade; in this, the gentleman is tolerably correct, and when he denounces, what in the fashionable cant of the day are called paper blockades, I join most heartily in the execration. It is true this order of May, 1806, has scarcely a feature of a regular blockade. It was not avowed at the time to be even a constructive blockade, nor was the right contended for of blockading without an actual investing force. It does not, like ordinary blockades, attempt a complete prohibition to all trade with those ports, but only to the particular objects and specified cases which I have mentioned. The previous measures of France are declared by Mr. Fox to be the cause of this order. What were those measures? They were no less, as regards ourselves, than a violation of the treaty which had been solemnly entered into between this country and France; by harassing our trade, seizing and confiscating our vessels in pursuing the commerce guaranteed to us by that treaty; she had usurped authority in almost every port and city from Elbe to Brest, and excluded the introduction of British products and merchandise, whether belonging to American citizens or British subjects.

Now, sir, let me state to you the language of our Minister (Mr. Monroe) at the time this order was issued. In his letter of the 17th of May, to the Secretary of State, speaking of the order, he says, "the note is couched in terms of restraint, and professes to extend the blockade further than it has heretofore done, nevertheless it takes it from many ports already blockaded, indeed all east of Ostend and west of the Seine, except in articles contraband of war and enemy's property, which are seizable without blockade; and in like form of exception, considering every enemy as one power, it admits the trade of neutrals within the same limits to be free, in the productions of enemy's colonies, in every but the direct route between the colony and parent country.

"It cannot be doubted but the note was drawn by the Government in reference to the question, and if intended by the Cabinet as a foundation on which Mr. Fox is authorized to form a treaty, and obtained by him for the purpose, it must be viewed in a very favorable light; it seems clearly to put an end to further seizures, on the principle which has heretofore been in contestation." This view of the subject, which surely is a fair one connected with the silence of the Administration for four years, must put an end to the clamor so often raised against this order, which has been the alleged cause of the Berlin decree, and charge against Great Britain, of having been the first aggressor on our neutral rights. Sir, we have indeed been insulted, injured, and abused by both nations, to an extent which would justify any measures in our power, but let us not palliate the crimes of one, and magnify those of the other; and, above all, let us not whip ourselves because they will not respect us; let us not become so Quixotic, as to act the part of a famous knight in the tales of chivalry, who tortured himself because his mistress would not be kind.