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though it is usual fop a belligerent to give notice to neutral nations when he intends to institute a blockade, it is possible that he may not act upon his intention at all, or that he may execute it insufficiently, or that he may discontinue his blockade, of which it is not customary to give any notice; that consequently the presence of the blockading force, is the natural criterion by which the neutral is enabled to ascertain the existence of the blockade at any given period, in like manner as the actual investment of a besieged place, is the evidence by which we decide whether the siege, which may be commenced, raised, recommenced and raised again, is continued or not; that of course a mere notification to a neutral minister shall not be relied upon, as affecting, with knowledge of the actual existence of a blockade, either his government or its citizens; that a vessel cleared or bound to a blockaded port, shall not be considered as violating in any manner the blockade, unless, on her approach towards such port, she shall have been previously warned not to enter it; that this view of the law, in itself perfectly correct, is peculiarly important to nations, situated at a great distance from the belligerent parties, and therefore incapable of obtaining other than tardy information of the actual state of their ports; that whole coasts and countries shall not be declared, (for they can never be more than declared) to be in a state of blockade, and thus the right of blockade converted into the means of extinguishing the trade of neutral nations; and lastly, that every blockade shall be impartial in its operation, or, in other words, shall not open and shut for the convenience of the party that institutes it, and at the same time repel the commerce of the rest of the world, so as to become the odious instrument of an unjust monopoly, instead of a measure of honorable war.
These principles are too moderate and just to furnish any motive to the British government for hesitating to revoke its orders in council, and those analogous orders of blockade, which the United States expect to be recalled. It can hardly be doubted that Great Britain will ultimately accede to them in their fullest extent; but if that be a sanguine calculation (as I trust it is not) it is still incontrovertible that a disinclination at this moment to acknowledge them, can suggest no rational inducement for declining to repeal at once what every principle disowns, and what must be repealed at last.
With regard to the rules of blockades which the French government expects you to abandon, I do not take upon me to decide whether they are such es your lordship supposes them to be or not. Your view of them may be correct; but it may also be erroneous; and it is wholly immaterial to the case between the United States and Great Britain whether it be the one or the other.
As to such British blockades as the United States desire you to relinquish, you will not, I am sure, allege that it is any reason for adhering to them that France expects you to relinquish others. If our demands are suited to the measure of our own rights, and of your obligations as they respect those rights, you cannot think of founding a rejection of them upon any imputed exorbitance in the theories of the French government, for which we are not responsible, and with which we have no concern. If, when you have done justice to the United States, your enemy should call upon you to go further, what shall prevent you from refusing? Your free agency will in no respect have been impaired. Your case will be better,in truth and in the opinion of mankind; and you will be, therefore, stronger in maintaining it, provided that, in doing so, you resort only to legitimate means, and do not once more forget the rights of others while you seek to vindicate your own.
Whether France will be satisfied with what you may do, is not to be known by anticipation, and ought not to be a subject of inquiry. So vague a speculation has nothing to do with your duties to nations at peace, and, if it had, would annihilate them. It cannot serve your interests; for it tends to lessen the number of your friends, without adding to your security against your enemies.
You are required, therefore, to do right, and to leave the consequences to the future, when by doing right you have every thing to gain and nothing to lose.
As to the orders in council, which professed to be a reluctant departure from all ordinary rules, and to be justified only as a system of retaliation for a pre-existing measure of France, their foundation (such as it was) is gone the moment that measure is no longer in operation. But the Berlin decree is repealed; and even the Milan decree, the successor of your orders in council, is repealed also. Why is it, then, that your orders have outlived those edicts, and that they are still to oppress and harass as before? Your lordship answers this question explicitly enough, but not satisfactorily. You do not allege that the French decrees are not repealed; but you imagine that the repeal is not to remain in force, unless the British government shall, in addition to the revocation of its orders in council, abandon its system of blockade. I am not conscious of having stated, as your lordship seems to think, that this is so, and I believe in fact that it is otherwise. Even if it were admitted, however, the orders in council ought nevertheless to be revoked. Can " the safety and honour of the British nation" demand that these orders shall continue to outrage the public law of the world, and sport with the undisputed rights of neutral commerce, after the pretext whichwas at first invented for them is gone? But you are menaced with a revival of the French system, and consequently may again be furnished with the same pretext! Be it so; yet still, as the system and the pretext are at present at an end, so, of course, should be your orders.
According to your mode of reasoning, the situation of neutral trade is hopeless indeed. Whether the Berlin decree exists or not, it is equally to justify your orders in council. You issued them before it was any thing but a shadow, and by doing so gave to it all the substance it could ever claim. It is at this moment nothing. It is revoked and has passed away, according to your own admission. You choose, however, to look for its re-appearance; and you make your own expectation equivalent to the decree itself. Compelled to concede that there is no anti-neutral French edict in operation upon the ocean, you think it sufficient to say that there .will be such an edict, you know not when; and in the meantime you do all you can to verify your own prediction, by giving to your enemy all the provocation in your power to resume the decrees which he has abandoned.
For my part, my lord, I know not what it is that the British government requires, with a view to what it calls its safety and its honour, as an inducement to rescind its orders in council. It does not, I presume, imagine that such a system will be suffered to ripen into law. It must intend to relinquish it, sooner or later, as one of those violent experiments for which time can do nothing, and to which submission will be hoped in vain. Yet, even after the professed foundation of this mischievous system is taken away, another and another is industriously procured for it; so that no man can tell at what time, or under what circumstances it is likely to have an end. When realities cannot be found, possibilities supply their place, and that, which was originally said to be retaliation for actual injury, becomes at last (if such a solecism can be endured or imagined) retaliation for apprehended injuries, which the future may or may not produce, but which it is certain have no existence now!
I do not mean to grant, for I do not think, that the edict of Berlin did at any time lend even a colour of equity to the British orders in council, with reference to the United States: but it might reasonably have been expected that they, who have so much relied upon it as a justification, would have suffered it and them to sink together. How this is forbidden by your safety or your-Aonour remains to be explained; and I am not willing to believe that either the one or the other is inconsistent with the observance of substantial justice, and with the prosperity and rights of peaceful states.
Although your lordship has slightly remarked upon certain recent acts of the French government, and has spoken in general terms of "the system of violence and injustice now pursued by France," as requiring " some precautions of defence on the part of Great Britain," I do not perceive that you deduce any consequence from these observations, in favour of a perseverance in the orders in council. I am not myself aware of any edicts of France which, now that the Berlin and Milan decrees are repealed, affect the rights of neutral commerce on the seas. And you will yourselves admit that if any of the acts of the French government, resting on territorial sovereignty, have injured, or shall hereafter injure, the U. States, it is for them, and for them only, to seek redress. In like manner it is for G. Britain to determine what precautions of defence those measures of France, which you denominate unjust and violent, may render it expedient for her to adopt. The United State* have only to insist that a sacrifice of their rights shall not be among the number of those precautions.
In replying to that passage in your letter, which adverts to the American act of non-intercourse, it is only necessary to mention the proclamation of the president of the United States, of the 2d of November last, and the act of congress which my letter of the 21st of September communicated, and to add that it is in the power of the British government to prevent the non-intercourse from being enforced against Great Britain.
Upon the concluding paragraph of your letter I will barely observe, that I am not in possession of any document, which you are likely to consider as authentic, showing that the French decrees are "absolutely revoked upon the single condition of the revocation of the British orders in council;" but that the information, which I have lately received from the American legation at Paris, confirms what I have already stated, and I think proved to your lordship, that those decrees are repealed and have ceased to have any effect. I will now trespass on you no further than to suggest that it would have given me sincere pleasure to be enabled to say as much of the British orders in council and of the blockades, from which it is impossible to distinguish them. I have the honour to be*, with great respect and consideration, my lord, your lorship's most obedient humble servant,
(Signed) WM. PINKNEY.
The most noble the Marquis Wellesley.
Extract of a letter from Mr. Pinkney, to the Secretary of State of the United States.
London, February 12, 1811. "I received a few hours since, a letter from Lord Wellesley (of which a copy is inclosed) in answer to mine of the 14th ultimo, respecting the British orders in council and blockades."
Lord Welleiley to Mr. Pinkney.
The letter which I had the honour to receive from you, under date the 14th of January, 1811, has been submitted to his royal highness the prince regent.
In communicating to you the orders which I have received from his royal highness on the subject of your letter, I am commanded to abstain from any course of argument, and from any expression, which (however justified by the general tenor of your observations) might tend to interrupt the good understanding, which it is the wish of his royal highness, on behalf of his majesty, to maintain with the government of the United States.
No statement contained in your letter appears to affect the general principles, which I had the honour to communicate to you in my letter of the 29th of December, 1810.
Great Britain has always insisted upon her right of self-defence against the system of commercial warfare pursued by France, and the British orders of council were founded upon a just principle of retaliation against the French decrees. The incidental operation of the orders of council upon the commerce of the United States, (although deeply to be lamented) must be ascribed exclusively to the violence and injustice of the enemy, which compelled this country to resort to adequate means of defence. It cannot now be admitted that the foundation of the original question should be changed, and that the measure of retaliation adopted against France should now be relinquished, at the. desire of the United States, without any reference to the actual conduct of the enemy.
The intention has been repeatedly declared of repealing the orders of council, whenever France shall actually have revoked the decrees of Berlin and Milan, and shall have restored the trade of neutral nations to the condition in which it stood previously to the promulgation of those decrees. Even admitting that France has suspended the operation of those decrees, or has repealed them, with reference to the United States, it is evident that she has not relinquished the conditions expressly declared in the letter of the French minister, under date the 5th of August, 1810. France, therefore, requires that Great Britain shall not only repeal the orders of council, but renounce those principles of blockade which are alleged in the same letter to be new; an allegation which must be understood to refer to the introductory part of the Berlin decree. If Great Britain shall not submit to these terms, it is plainly intimated in the same letter that France requires America to enforce them.
To these conditions, his royal highness, on behalf of his majesty, cannot accede. No principles of blockade have been promulgated or acted upon by Great Britain previously to the Berlin decree, which are not strictly conformable to the rights of civilized war, and to the approved usages and law of nations. The blockades established by the orders of council rest on separate grounds, and are justified by the principles of necessary retaliation in which they originated.
The conditions exacted by France, would require Great Britain to surrender to the enemy the most important maritime rights and interests of the united kingdoms.
I am commanded to inform you that his royal highness cannot consent to blend the question which has arisen upon the orders of council, with any discussion of the general principles of blockade.
This declaration does not preclude any amicable discussion upon the subject of any particular blockade, of which the circumstances may appear to the government of the United States to be exceptionable, or to require explanation. I have the honour to be, with great respect and consideration, sir, your most faithful and humble servant,
(Signed) WELLESLEY William Pinkney, Esq. &c. &c. fee.