Sir: London, April 26, 1812.
I beg leave to hand you, herewith, a declaration and an order in council of this Government of the 21st of this month, and a copy of a notefrom Lord Castlereagh, accompanying the communication of them to me. I have already transmitted to you other copies of these documents, and have now to add a copy of the note which I have addressed in reply to that of his lordship.I have, fcc.
Mr. Russell to Lord Casllereagh
My Lord: 18 Bentinck Street, April 25, 1812.
I have the honor to acknowledge the receipt of the note which your lordship addressed to me on the 21st of this month, enclosing, by the command of His Royal Highness the Prince Regent, a copy of a declaration, accompanying an order in council, which had that day been passed.
It would have afforded me the highest satisfaction, in communicating that declaration and order to my Government, to have represented thein as conceived in the true spirit of conciliation, and with a due regard to the honor and interests of the United States. I regret, however, that so far from being able to perceive in them any evidence of the amicable sentiments which are professed to animate the councils of His Royal Highness, I am compelled to consider them as an unequivocal proof of the determination of His Britannic Majesty's Government to adhere to a system, which, both as to principle and fact, originated, and has been continued, in error; and against which the Government of the United Slates, so long as it respects itself and the essential rights of the nation over which it is placed, cannot cease to contend.
The United, States have never considered it their duty to inquire, nor do they pretend to decide, whether England or France was guilty, in relation to the other, of the first violation of the public law of nations; but they do consider it their most imperious duty to protect themselves from the unjust operation of the unprecedented measures of retaliation professed by both Powers to be founded on such violation. In this operation, by whichever party directed, the United States have never for a moment acquiesced, nor by the slightest indication of such acquiescence afforded a pretext for extending to them the evils by which England and France affect to retaliate on each other. They have, in no instance, departed from the observance of that strict impartiality which their peaceful position required, and which ought to have secured to them the unmolested enjoyment of their neutrality. To their astonishment, however, they perceived that both these belligerent Powers, under the pretence of annoying each other, adopted and put in practice new principles of retaliation, involving the destruction of those commercial and maritime rights, which the United States regard as essential and inseparable attributes of their independence. Although alive to all the injury and injustice of this system, the American Government resorted to no measures to oppose it, which were not of the most pacific and impartial character, in relation to both the aggressors. Its remonstrances, its restrictions of commercial intercourse, and its overtures for accommodation, were equally addressed to England and France; and if there is now an equality in the relations of the United Stales with these countries, it can only be ascribed to England herself, who rejected the terms proffered to both, while France accepted them; and who continues to execute her retaliatory edicts on the high seas, while those of France have there ceased to operate.
If Great Britain could not be persuaded,, by considerations of universal equality, to refrain from adopting any line of conduct, however unjust, for which she might discover a precedent in the conduct of her enemy, or to abandon an attempt of remotely and uncertainly annoying that enemy through the immediate and sure destruction of the vital interests of a neutral and unoffending State, yet it was confidently expected that she would be willing to follow that enemy, also, in his return towards justice, and, from a respect to her own declarations, to proceed pari passu with him in the revocation of the offending edicts. This just expectation has, however, been disappointed; and an exemption of the flag of the United States from the operation of the Berlin and Milan decrees has produced no corresponding modification of the Britisli orders in council. On the contrary, the fact of such exemption on the part of France, appears, by the declaration and order in council of the British Government on the 21st of this month, to be denied; and the engagement of the latter to proceed, step by step, with its enemy, in the work of repeal and relaxation, to be disowned or disregarded.
That France has repealed her decrees, so far as they concerned the United States, lias been established by declarations and facts satisfactory to them, and which, it was presumed, should have been equally satisfactory to the British Government. A formal and authentic declaration of the French Government, communicated to the minister plenipotentiary of the United States at Paris, on the 5th of August, 1810, announced that the decrees of Berlin and Milan were revoked, and should cease to operate cn the 1st of the succeeding November, provided that a condition presented to England, or another condition presented to the United States, should be peribrmed. The condition presented to the United States was performed; and this performance rendered absolute the repeal of the decrees. So far, therefore, from this repeal depending on conditions in which Great Britain could not acquiesce, it became absolute, independently of any act of Great Britain, the moment the act proposed for the performance of the United States was accomplished. Such was the construction given to this measure by the United States from the first; and that it was a correct one, has been sufficiently evinced by the subsequent practice of France.
Several instances of the acquittal of American vessels and cargoes, to which the decrees would have attached, if still in force against the United States, have, from time to time, been presented to His Britannic Majesty's Government. That these cases have been few, is to be ascribed to the few captures, in consequence of this repeal, made by French cruisers; and should no other such case occur, it will be owing to the efficacy of this repeal, and to the exact observance of it, even by the most wanton and irregular of those cruisers.
From the 1st of November, 1810, to the 29th of January of the present year, as appears by a note which I had the honor to address to the predecessor of your lordship, on the 8th of February last, the Berlin and Milan decrees had not been applied to American property; nor have I.heard that such application has since been made.
But against the authentic act of the French Government of the 5th of August, 1810, and the subsequent conduct of that Government, mutually explaining each other, and confirming the construction adopted by the United States, a report, said to be communicated by the French Miuister of Foreign Affairs to the Conservative Senate, is opposed. Without pretending to doubt the genuineness of that report, although it has reached this country only in a newspaper, yet it is to be lamented that as much form and evidence of authenticity have not been required in an act considered as furnishing cause for the continuance of the orders in council, as an act which, by the very terms of those orders, challenged their revocation. The act of the 5th of August, 1810, emanating from the Sovereign of France, officially communicated to the British Government, and satisfactorily expounded and explained by the practical comments of more than eighteen months, is denied to afford convincing evidence of the repeal of the French decrees, while full proof of their continuance is inferred from a report, which, from its very nature, must contain the mere opinions and speculations of a subject, which is destitute of all authority until acted upon by the body to which it was presented, which has found its way hither in no more authentic shape than the columns of the Moniteur, and for the proper understanding of whicli not a moment has been allowed. But even were the value thus assigned to the report just, it is still difficult to discover what inference can be fairly deduced from it incompatible with the previous declarations and conduct of the French Government, exempting the United States from the operation of its decrees. The very exception in that report, with regard to nations which do not suffer their flag to be denationalized, was undoubtedly made with a reference to the United States, and with a view to reconcile the general tenor of that report with the good faith with which it became France to observe the conventional repeal of those decrees in their favor. However novel may be the terms employed, or whatever may be their precise meaning, they ought to be interpreted to accord with the engagements of the French Government, and with justice and good faith.
Your lordship will, I doubt not, the more readily acknowledge the propriety of considering the report in this light, by a reference to similar reports made to the same Conservative Senate, on the 13th of December, 1810, by the Duke of Cadore, (the predecessor of the present French Minister of Exterior Relations,) and by the Count de Simonvillo. In these reports, they say to the Emperor, (which sufficiently proves that such reports are not to be considered as dictated by him,) "Sire, as long as England shall persist in her orders in council, so long your Majesty will persist in your decrees;" and, "the decrees of Berlin and Milan are an answer to the orders in council; the British cabinet has, thus to speak, dictated them to France. Europe receives them for her code, and this code shall become the palladium of the liberty of the seas." Surely this language is as strong as that of the report of the 10th of March, and still more absolute, for there is no qualification in it in favor of any nation; yet this language has, both by an explanation from the Duke of Cadore to me at the time, and by the uniform' conduct of the French Government since, been reconciled with the repeal of these decrees, so far as they concerned the United States.
Had the French decrees originally afforded an adequate foundation for the British orders, and been continued after these reports, in their full force and extent, surely, during a period in which above a hundred American vessels and their cargoes have fallen a prey to these orders, some one solitary instance of capture and confiscation must have happened under those decrees. That no such instance has happened incontrovertibly proves, either that those decrees are of themselves harmless, or thdt they have been repealed; and, in either case, they can afford no rightful plea or pretext to Great Britain for these measures of pretended retaliation, whose sole effect is to lay waste the neutral commerce of America.
With the remnant of those decrees, which is still in force, and which consists of municipal regulations, confined in their operation within the proper and undeniable jurisdiction of the States where they are executed, the United States have no concern. Nor do they acknowledge themselves to be under any particular obligation either to examine into the ends proposed to be attained by the surviving portion of the continental system, or to oppose their accomplishment.' Whatever may be intended to be done, in regard to other nations, by this system, cannot be imputed to the United States; nor are they to be made responsible, while they religiously observe the obligations of their neutrality, for the mode in which belligerent nations may choose to exercise their power for the injury of each other. When, however, these nations exceed the just limits of their power, by the invasion of the rights of peaceful States on the ocean, which is subject to the common and equal jurisdiction of all nations, the United States cannot remain indifferent, and, by quietly consenting to yield up their share of this jurisdiction, abandon their maritime rights. France has respected these rights, by the discontinuance of her edicts on the high seas; leaving no part of these edicts in operation, to the injury of the United States, and, of course, no part in which they can be supposed to acquiesce, or against which they can be required to contend. They ask of Great Britain, by a like respect for their rights, to exempt them from the operation of her orders in council. Should such exemption involve the total practical extinction of these orders, it will only prove that they were exclusively applied to the commerce of the United States, and that they had not a single feature of resemblance to the decrees against which they are professed to retaliate.
It is with patience and confidence that the Unitcd States have expected this exemption, and to which they believed themselves to be entitled by all these considerations of right and promise, which I have feebly stated to your lordship. With what disappointment, therefore, must they learn that Great Britain, in professing to do away their dissatisfaction, explicitly avows her intention to persevere in her orders in council, until some authentic act, hereafter to be promulgated by the French Government, shall declare the Berlin and Milan decrees to be expressly and unconditionally repealed! To obtain such an act, can the United States interfere? Would such an interference be compatible either with a sense of justice, or with what is due to their own dignity? Can they be expected to falsify the repeated declarations of their satisfaction with the act of the 5th of August, 1810, confirmed by abundant evidence of its subsequent observance, and, by now affecting to doubt of the sufficiency of that act, to demand another, which, in its form, its mode of publication, and its import, shall accord with the requisitions of Great Britain? And can it be supposed that the French Government would listen to such a proposal, made under such circumstances, and with such a view?
While, therefore, I can perceive no reason, in the report of the French minister of the 10th of March, to believe that the United States erroneously assumed the repeal of the French decrees to be complete, in relation to them, while aware that the condition on which the revocation of the orders in council is now distinctly made to depend, is the total repeal of both the Berlin and Milan decrees, instead, as formerly, of the Berlin decree only, and while I feel that to ask the performance of "this condition from others is inconsistent with the honor of the United States, and to perform it themselves beyond their power, your lordship will permit me frankly to avow that I cannot accompany the communication to my Government of the declaration and order in council of the 21st of this month, with any. felicitation on the prospect which this measure presents of an accelerated return of amity and mutual confidence between the two States.
It is with real pain that I make to your lordship this avowal; and I will seek still to confide in the spirit which your lordship, in your note and in the conversation of this morning, has been pleased to say actuates the councils of His Royal Highness in relation to America, and still to cherish a hope that this spirit will lead, upon a review of the whole ground, to measures of a nature better calculated to attain its object; and that this object will no longer be made to depend on the conduct of a third Power, or upon contingencies over which the United States have no control, but alone upon the rights of the United States, the justice of Great Britain, and the common interests of both.
I have the honor to be, my lord, your lordship's most obedient servant,
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