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It is only, therefore, under the other aspect of the decree, that it can have violated neutral rights : and this would have resulted from its execution on the high seas, whether on the pretext of a nominal blockade, or with a view to enforce a domestick regulation against foreign vessels, not within the domestick precincts, but under the authority and protection of the law of nations.
Had then the French decree been executed on the high seas against the commerce of the United States with Great Britain ; and have the United States acquiesced in the unlawful and injurious proceeding ?
I state, sir, on undeniable authority, that the first instance, in which that decree was put in force against the neutral rights of the United States, was that of the Hori zon, an American ship bound from Great Britain to Lima, wrecked within the territorial jurisdiction of France, but condemned under an exposition of the decree, extending to the high seas its operation against neutrals. This judicial decision took place as late as the 16th day of October, 1807, and was not officially known to the minister plenipotentiary of the United States at Paris till some time in November. At the date, therefore, of the first order of Great Britain, no injury whatever had been done to her, through an aggression on the commerce of the United. States. No presumption even had been sufficiently authorized, that the express stipulations in the treaty of France with the United States would not exempt their commerce, at least, from the operation of any edict incompatible with them. At the date even of the latter orders of November 11, it appears that the only aggression, which had then occurred, was pretty certainly unknown to the British government, and could therefore have had no share in producing this alleged retaliation.
To the fact, that the case of the ship Horizon was the first that occurred, of an execution of the French decree on the high seas, I am able to add, that as late as the 30th of November, no other case had been brought into the French court of prizes. From accounts which have lately appeared, it is more than probable that unlawful captures by French cruisers have since taken place; but it remains to be known whether they are to be referred to the concurrence of the French government in the judgment pronounced in the case of the Horizon, or not rather to a
French decree of the 17th of December last, professing to be a retaliation on the British orders of November 11.
I state with equal confidence, that at no time have the United States acquiesced in violations of their neutral rights injurious to Great Britain, or any other belligerent nation. So far were they, in particular, from acquiescing in the French decree of November, 1806, that the moment it was known to their minister at Paris, he called for explanations of its meaning in relation to the United States, which were favourable, and uncontradicted by the actual operation of the decree; that he steadily watched over the proceedings under it, with a readiness to interpose against any unlawful extension of them to the commerce of the United States; that no time was lost, after the decree came to the knowledge of the government here, in giving bim proper instructions on the subject; that he was equally prompt, on receiving the decision of the court in the case of the Horizon, in presenting to the French government a remonstrance in terms which can never be censured for a defect of energy; and that by the first opportunity, after that decision reached the President, the particular instructions required by it were forwarded to that minister. Nor is it to be forgotten, that previous to the British orders of November, it had been explicitly communicated to the British government, by the American minister at London, that explanations, uncontradicted by any overt act, had been given to our minister at Paris, which justified a reliance that the French decree would not be put in force against the United States; and that the communication was repeated to the British government immediately on the publication of those orders. What more could have been required on the
of the United States, to obviate retaliating pretensions of any sort on the part of Great Britain ? Retaliations are measures of rigour in all cases. Where they are to operate through a third and involuntary party, they will never be hastily re. sorted to, by a magnanimous or a just power; which will always allow to the third party, its right to discuss the merits of the case, and will never permit itself to enforce its measures without affordiny a reasonable time, for the use of reasonable means, for substituting another remedy. What would be the situation of neutral powers, if the first blow levelled through them by one belligerent against VOL. Vila
another, was to leave them no choice but between the retaliating vengeance of the latter, and an instant declaration of war against the former ? Reason revolts at this, as the sole alternative. The United States could no more be bound to evade the British orders, by an immediate war with France, than they were bound to atone for the burning of the French ship of war on the shore of North Carolina, by an immediate resort to arms against Great Britain.
With respect to the principle assumed by the British orders, it is perfectly clear, that it could not justify them in the extent given to their operation, if the facts erroneously assumed could have been fully sustained.
Retaliation is a specifick or equivalent return of injury, for injury received; and where it is to operate through the interests of a third party, having no voluntary participalion in the injury received, the return ought, as already observed, to be inflicted with the most forbearing hand.
This is the language of common sense, and the clearest equity. As the right to retaliate results merely for the wrong suffered, it cannot, in the nature of things, extend beyond the extent of the suffering. There may often be a difficulty in applying this rule with exactness, and a reasonable latitude may be allowable on that consideration. But a manifest and extravagant departure from the rule can find po apology.
What then is the extent of the injury experienced by Great Britain from the measures of her enemies, so far as the operation of those measures through the United States, can render them in any sense responsible ?
A mere declaration by a belligerent, without the intention or the means to carry it into effect against the rights and obligations of a neutral nation, and thence against the interests of another belligerent, could afford no pretext to the latter, to retaliate at the expense of the neutral. The declaration might give just offence to the neutral, but it would belong to him alone to decide on the course prescribed by the respect he owed to himself. No real damage accruing to the belligerent, no indemnity could accrue.
For the same reason, a declaration of a belligerent which he is known to be either not in a situation, or not to intend to carry, but partially, into execution against a neutral, to the injury of another belligerent, could never give more
than a right to a commensurate redress against the neutral. All remaining unexecuted, and evidently not to be executed, is merely ostensible; working no injury to any, unless it be in the disrespect to the neutral, to whom alone it belongs to resent or disregard it.
Bring the case before us to this plain and equitable test. The French decree of November, 1806, undertook to declare the British isles in a state of blockade, to be enforced, if you please, against the neutral commerce of the United States, on the high seas, according to the faculty possessed for the purpose. As far as it was actually enforced, or an effect resulted from an apprehension that it could and would be enforced, it was an injury to Great Britain, for which, let it be supposed, the United States were answerable. On the other hand, as far as it was not enforced, and evidently either would not or could not be enforced, no injury was experienced by Great Britain, and no remedy could lie against the United States.-Now, sir, it never was pretended that, at the date of the first British order, issued in January, 1807, any injury had accrued to, or was apprehended by Great Britain, from an execution of the French decree against the commerce of the United States, on the theatre of their neutral rights : so far from it, that the order stands self condemned as a measure of retaliation, by expressly stating that the fleets of France and her allies, instead of being able to enforce the blockade of the British isles, were themselves confined to their own ports, by the entire superiority of the British navy : converting thus, by the strangest of reasonings, the security of Great Britain against injury from the French decree, into a title to commit injury on a neutral party. In the November orders also, whilst it is admitted that the French decree could not be but imperfectly executed, for want of means, it is asserted that the intention of the French decree, and not the injury accruing from its operation through the commerce of the United States, is the scale by which the retaliating injury against them is to be measured.
Such are the pretexts, and such the principles, on which one great branch of the lawful commerce of this country became a victim to the first British order, and on which the last orders are now sweeping from the ocean all its most valuable remains.
Against such an unprecedented system of warfare ou neutral rights, and national independence, the common judgment and common feelings of mankind must for ever protest.
I touch, sir, with reluctance, the question, on which of the belligerent sides the invasion of neutral rights had its origin. As the United States do not acquiesce in these invasions by either, there could be no plea for involving them in the controversy. But as the British orders have made the decree of France, declaring, contrary to the law of nations, the British islands in a state of blockade, the immediate foundation of their destructive warfare on our commerce, it belongs to the subject to remind your government of the illegal interruptions and spoliations suffered, previous to that decree, by the neutral commerce of the United States, under the proceedings of British cruisers and courts, and for the most part, in consequence of express orders of the government itself. Omitting proofs of inferior note, I refer to the extensive aggressions on the trade of the United States, founded on the plea of blockades never legally established according to recognised definitions; to the still more extensive violations of our commerce, with ports of her enemies not pretended to be in a state of blockade ; and to the British order of council issued near the commencement of the existing war, This order, besides its general interpolation against the established law of nations, is distinguished by a special ingredient, violating that law as recognised by the course of decisions in the British courts. It subjects to capture and condemnation all neutral vessels, returning with lawful cargoes, on the sole consideration, that they had, in their outward voyage, deposited contraband of war at a hostile port.
If the commerce of the United States could, therefore, in any case, be reasonably made the victim and the sport of mutual charges and reproaches between belligerent parties, with respect to the priority of their aggressions on neutral commerce, Great Britain must look beyond the epoch she has chosen, for illegal acts of her adversary, in support of the allegation on which she founds her retaliating edicts against our commerce.
But the United States are given to understand, that the British government has, as a proof of its indulgent and