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If such a rule were to be admitted, it would become nearly impracticable for Great Britain to attempt the blockade of any port of the continent; and our submission to this perversion of the law of nations, while it would destroy one of the principal advantages of our naval superiority, would sacrifice the common rights and interests of all maritime states.
It was evident that the blockade of May, 1806, was the principal pretended justification of the decree of Berlin, though neither the principles on which that blockade was founded, nor its practicable operation, afforded any colour for the proceedings of France.
In point of date the blockade of May, 1806, preceded the Berlin decree; but it was a just and legal blockade according to the established law of nations, because it was intended to be maintained, and was actually maintained, by an adequate force appointed to guard the whole coast described in the notification, and consequently to enforce the blockade.
Great Britain has never attempted to dispute that in the ordinary course of the law of nations, no blockade can be justifiable or valid unless it be supported by an adequate force, destined to maintain it, and to expose to hazard all vessels attempting to evade its operation. The blockade of May, 1806, was notified by Mr. Secretary Fox, on this clear principle; nor was that blockade announced until he had satisfied himself, by a communication with his majesty's board of admiralty, that the admiralty possessed the means and would employ them, of watching the whole coast from Brest to the Elbe, and of effectually enforcing the blockade.
The blockade of May, 1806, was therefore (according to the doctrine maintained by Great Britain,) just and lawful in its origin, because it was supported both in intention and fact by an adequate naval force. This was the justification of that blockade, until the period of time when the orders in council were issued.
The orders in council were founded on a distinct principle; that of defensive retaliation. France had declared a blockade of all the ports and coasts of Great Britain, and her dependencies, without assigning, or being able to assign any force to support that blockade. Such an act of the enemy would have justified a declaration of the blockade of the whole coast of France, even without the application of any particular force to that service. Since the promulgation of the orders in council, the blockade of May, 1806, has been sustained and extended, by the more comprehensive system of defensive retaliation, on which those regulations are founded. But if the orders in council should be abrogated, the blockade of May, 1806, could not continue under our construction of the law of nations, unless that blockade should be maintained by a due application of an adequate naval force.
America appears to concur with France, in asserting that Great Britain was the original aggressor in the attack on neutral rights, and has particularly objected to the blockade of May, 1806, as an obvious instance of that aggression on the part of Great Britain.
Vol. III. +B
Although the doctrines of the Berlin decree, respecting the rights of blockade, are not directly asserted by the American government, Mr. Pinkney's correspondence would appear to countenance the principles on which those doctrines are founded. The objection directly stated by America against the blockade of May, 1806, rests on a supposition that no naval force which Great Britain possessed, or could have employed for such a purpose, could have rendered that blockade effectual, and that therefore it was necessarily irregular, and could not possibly be maintained in conformity to the law of nations.
Reviewing the course of this statement, it will appear, that the blockade of May, 1806, cannot be deemed contrary to the law of nations, either under the objections urged by the French, or under those declared, or insinuated by the American government, because that blockade was maintained by a sufficient naval force; that the decree of Berlin was not, therefore, justified either under the pretexts alleged by France, or under those supported by America; that the orders in council were founded on a just principle of defensive retaliation, against the violation of the law of nations, committed by France in the decree of Berlin; that the blockade of May, 1806, is now included in the more extensive operation of the orders in council; and lastly, that the orders in council will not be continued beyond the effectual duration of the hostile decrees of France, nor will the blockade of May, 1806, continue after the repeal of the orders in council, unless his majesty's government shall think fit to sustain it by the special application of a sufficient naval force. This fact will not be suffered to remain in doubt, and if the repeal of the orders in council should take place, the .intention of bis majesty's government respecting the blockade of May, 1806, will be notified at the same time.
I need not recapitulate to you the sentiments of his majesty's government, so often repeated, on the subject of the. French minister's note to Gen. Armstrong, dated the 5th of last August. The studied ambiguity of that note has since been amply explained by the conduct and language of the government of France, of which one of the most remarkable instances is to be found in the speech of the chief of the French government on the 17th of last month, to certain deputies from the free cities of Hamburgh, Bremen and Lubeck, wherein he declares that the Berlin and Milan decrees shall be the public code of France as long as England maintains her orders in council of 1806 and 1807. Thus pronouncing asplainly as language will admit, that the system of violence and injustice, of which he is the founder, will be maintained by him until the defensive measures of retaliation to which they gave rise, on the part of Great Britain, shall be abandoned.
If other proofs were necessary to show the continued existence of those obnoxious decrees, they may be discovered in the imperial edict dated at Fontainebleau in October 19, 1810, that monstrous production of violence, in which they are made the basis of a system of general and unexampled tyranny and oppression over mil countries subject to, allied with, or within reach of the power of France: in the report of the French minister for foreign affairs dated last December, and in the letter of the French minister of justice to the president of the council of prizes. To this latter, sir, I would wish particularly to invite your attention; the date is the 25th of December; the authority it comes from most unquestionable; and you will there find, sir, the duke of Massa, in giving his instructions to the council of prizes, in consequence of the president of the United States' proclamation of November 3d, most cautiously avoiding to assert that the French decrees were repealed, and ascribing, not to such repeal but to the ambiguous passage which he quotes at length from Mr. Champagny's letter of August 6th, the new attitude taken by America; and you will also find an evidence in the same letter of the continued capture of American ships after November 1st, and under the Berlin and Milan decrees, having been contemplated by the French government; since there is a special direction given for judgment on such ships being suspended in consequence of the American proclamation, and for their being kept as pledges for its enforcement.
Can then, sir, those decrees be said to have been repealed at the period when the proclamation of the president of the United States appeared, or when America enforced her non-importation act against Great Britain? Are they so at this moment? To the first question the state papers which I have referred to, appear to give a sufficient answer: for even supposing that the repeal had since taken place, it is clear that on November 3d, there was no question as to that not being then the case; the capture of the ship New Orleans Packet, seized at Bordeaux, and of the Grace Ann Green, seized at or carried into Marseilles, being cases arising under the French decrees of Berlin and Milan, as is very evident. Great Britain might, therefore, complain of being treated with injustice by America, even supposing that the conduct of France had since been unequivocal.
America contends that the French decrees are revoked as it respects her ships upon the high seas, and you, sir, inform me that the only two American ships taken under their maritime operation, as you are pleased to term it, since November 1 st, have been restored; but may not they have been restored in consequence of the satisfaction felt in France at the passing of the non-importation act in the American congress, an event so little to be expected; for otherwise, why, having been captured in direct contradiction to the supposed revocation, why where they not restored immediately?
The fears of the French navy, however, prevent many cases of the kind occurring on the ocean under the decrees of Berlin and Milan; but the most obnoxious and destructive parts of those decrees are exercised with full violence, not only in the ports of France, but in those of all other countries to which France thinks she can commit injustice with impunity.
Great Britain has a right to complain that neutral nations should overlook the very worst features of those extraordinary acts, and should suffer their trade to be made a medium of an unprecedented, violent and monstrous system of attack upon her resources; a species of warfare unattempted by any civilized nation before the present period. Not only has America suffered her trade to be moulded into the means of annoyance to Great Britain under the provisions of the French decrees, but construing those decrees as extinct upon a deceitful declaration of the French cabinet, she has enforced her non-importation act against Great Britain.
Under these circumstances I am instructed by my government to urge to that of the United States, the injustice of thus enforcing that act against his majesty's dominions; and I cannot but hope that a spirit of justice will induce the United States' government to reconsider the line of conduct they have pursued, and at least to reestablish their former state of strict neutrality.
I have only to add, sir, that on my part, I shall ever be ready to meet you on any opening which may seem to afford a prospect of restoring complete harmony between the two countries, and that it will, at all times, give me the greatest satisfaction to treat with you on the important concerns so interesting to both-. I hav« the honour to be, &c. »
(Signed) AUG. J. FOSTER.
To the honourable James Monroe, &c.
Mr. Foster to Mr. Monroe.
In consequence of our conversation of yesterday, and the observations which you made respecting that part of my letter to you of the 3d instant, wherein I have alluded to the principle, on which his majesty's orders in council were originally founded, I think it right to explain myself, in order to prevent any possible mistake, as to the present situation of neutral trade with his majesty's enemies.
It will only be necessary for me to repeat what has already long since been announced to the American government, namely, that his majesty's order in council of April 26, 1809, superseded those of November, 1807, and relieved the system of retaliation, adopted by his majesty against his enemies, from what was considered in this country as the most objectionable part of it—the option given to neutrals to trade with the enemies of Great Britain through British ports on payment of a transit duty.
This explanation, sir, will, I trust, be sufficient to do away any impression that you may have received to the contrary, from my observations respecting the effects which his majesty's orders in council originally had on the trade of neutral nations. Those observations were merely meant as preliminary to a consideration of the question now at issue between the two countries. I have the honour to be, &c. &e. &c.
(Signed) AUG. J. FOSTER.
The honourable James Monroe, &c. &c. &c.
Mr. Foster to Mr. Monroe.
His majesty's packet-boat having been so long detained, and a fortnight having elapsed since my arrival at this capital, his royal highness, the prince regent, will necessarily expect that I should have to transmit to his royal highness some official communication as to the line of conduct the American government mean to pursue. I trust you will excuse me, therefore, sir, if without pressing for a detailed answer to my note of the 3d instant, I anxiously desire to know from you what is the president's determination with respect to suspending the operation of the late act of congress prohibiting all importation from the British dominions.
There have been repeated avowals lately made by the government of France, that the decrees of Berlin and Milan were still in full force, and the acts of that government have corresponded with those avowals.
The measures of retaliation pursued by Great Britain against those decrees, are consequently to the great regret of his royal highness still necessarily continued.
I have had the honour to state to you the light in which his royal highness, the prince regent, viewed the proclamation of the president of last November, and the surprise with which he learnt the subsequent measures of congress against the British trade.
American ships seized under his majesty's orders in council, even after that proclamation appeared, were not immediately condemned, because it was believed that the insidious professions of France might have led the American government and the merchants of America into an erroneous construction of the intentions of France.
But when the veil was thrown aside, and the French ruler himself avowed the continued existence of his invariable system, it was not expected by his royal highness that America would have refused to retrace the steps she had taken.
Fresh proofs have since occurred of the resolution of the French government to cast away all consideration of the rights of nations, in the unprecedented warfare they have adopted.
America however still persists in her injurious measures against the commerce of Great Britain, and his royal highness has, in consequence, been obliged to look to means of retaliation against those measures which his royal highness cannot but consider as most unjustifiable.
How desirable would it not be, sir, if a stop could be put to any material progress in such a system of retaliation, which, from step