I. Are the late Orders consistent with the law of nations? As no man can pretend that England has a right to seize neutral ships, unless they are found carrying contraband of war, or attempting to violate an actual blockade, the defenders of the Orders have the burden of the proof; and they must shew that there was a just cause, for, attacking in this manner the undoubted rights of neutral nations. The only cause which can be assigned, is that France had previously done the same, and that neutrals acquiesced init; therefore we are justified in retaliating upon France. This is however quite inconsistent with fact. France, by a decree, Nov. 21, 1806, declared generally, "that the British isles are in a state of blockade;" with several particular clauses, explaining what sort of blockade this was to be *. The seventh clause alone prohibits intercourse between England and neutrals; and that, only by ordering that no vessel from an English port, shall enter a French port. It does not even declare such vessel, if actually within a French port, to be seizeable. General Armstrong, the American minister at Paris, demanded, if the decree subjected to capture, neutral vessels found at * See Appendix. ea, on their voyage to, or from England? In short, he asked whether the term blockade, in the first article of the decree, was used in its ordinary sense? The answer of M. Décrès, the minister of marine, (dated Dec. 24.) was, that the decree did not subject such ships to seizure; and that nothing in the decree was intended to infringe on the rights of neutrals, as either established by treaties, or by the common law of nations *. In other words, the decree, as so explained, only prohibited neutral vessels from entering a French port after having cleared out at an English one. This prohibition is strictly consistent with the law of nations. It is infinitely more so than our rule of the war 1756; it is exactly in the nature of our Navigation Act. The explanation was acted upon at least down to last September, when an American vessel being captured, was released by the French courts in virtue of it. Some persons deny that it ever was departed from; but all are agreed, that time was not given for America to acquiesce or resist. In October, say some people, France condemned Americans taken in the voyage to and from England. If so, the same persons admit that America would probably have resented this See Appendix. breach of the law of nations. At any rate, long before it could be known that the intelligence of this illegal proceeding had been received in America, our orders are issued. Now upon America, we had no right to retaliate, until she should fully acquiesce in the new and confessedly illegal conduct of France. Indeed it cannot be pretended that the orders were issued in consequence of the French Government, acting upon a new construction of their decree; for it is perfectly well known that the report of this change of conduct had not reached England on the eleventh of November, nor until some days after the orders were published; and we are greatly misinformed if any of the King's Ministers, in conferences with the mercantile bodies who addressed them on the subject, ever hinted at the report alluded to, or cited, in justification of their measures, any thing further than the words of the original decree, as explained by themselves. They knew of no variation, or alleged variation, in the conduct of the enemy with respect to that decree, until after the orders were passed and promulgated. Far, therefore, from giving the neutrals time to acquiesce or resist, our government proceeded to retaliate before they themselves knew that the enemy had in the smallest degree deviated from the strict law of nations. -- But admitting that America should, (contrary to all probability) have acquiesced in the decree of November 21, 1806: The French blockade consisted of two parts, according to the explanation of it, for which the defenders of our orders contend, -a seizure of neutrals entering French ports, after clearing out from English ports, and a seizure of neutrals on the voyage to or from England. The former part France could execute; but she had perfect right to do so by the law of nations. The latter part she could not enforce, in any but the most trifling degree; and, though illegal, it was sure to become nugatory. Therefore, even if America had acquiesced in it, she would only have received an insult, which could injure herself but little, and England not at all. We have no right whatever to retaliate upon a neutral for suffering himself to be affronted, or for putting up with even an injury, unless that injury either benefits our enemy or hurts ourselves. This is involved in the very meaning of the neutral and belligerent relations. Further, our own rule of the war 1756, justifies the greater part of the French decree, admitting the explanation contended for. The trade which Americans (for example, ) carry on between almost all the belligerent countries and England is, during peace, illegal. By the navigation act, they may export English goods to those countries; but they cannot import their goods from thence. At the commencement of the war an act is passed authorizing the King to suspend this part of the navigation law, (43. Geo. III. c. 153.) Therefore, according to the rule 1756, this trade of the Americans may be stopped by France without any illegality, and should the Americans yield, still we have no right to complain. If we had any title to retaliate in the manner contended for, it could only be founded upon the right of annoying our enemy, or preventing the neutrals from assisting him. Therefore, it is utterly repugnant to the law of nations, to prevent the neutrals from trading directly with France, and then to allow them to trade from this country to France. We may blockade France if she has blockaded us, and neutrals have acquiesced; but we cannot force the Americans to trade with France through this country, merely because they have ceased to trade with this country at the requisition of France. The utmost we can demand is that they should suffer as much from us, as they bear from our |