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full benefit of this order shall be extended to any ship or cargo captured subsequent to such authentic act of repeal of the French Decrees, although antecedent to such repeal such ship or vessel shall have commenced and shall have been in the prosecution of a voyage, which, under the said Orders in Council, or one of them, would have subjected her to capture and condemnation; and the claimant of any ship or cargo which shall be captured or brought to adjudication, on account of any alleged breach of either of the said Orders in Council, at any time subsequent to such authentic act of repeal by the French government, shall without any further Order or Declaration on the part of his majesty's government on this subject, be at liberty to give in evidence in the high Courts of Admiralty, or any Court of Vice-Admiralty, before which such ship or cargo shall be brought for adjudication, that such repeal by the French government had been, by such authentic act, promulgated prior to such capture; and upon proof thereof, the voyage shall be deemed and taken to have been as lawful as if the said Orders in Council had never been made saving, nevertheless, to the captors, such protection and indemnity as they may be equitably entitled to in the judgment of the said Court, by reason of their ignorance, of uncertainty as to the repeal of the French Decrees, or of the recognition of such repeal by his majesty's government at the time of such capture.

His royal highness, however deems it proper to declare, that should the repeal of the French Decrees, thus anticipated and provided for, prove afterwards to have been illusory on the part of the enemy; and should the restrictions thereof be still practically enforced, or revived by the enemy; G. Britain will be compelled, however reluctantly, after reasonable notice, to have recourse to such measures of retaliation as may then appear to be just and necessary.

And the Right Honorable the lords commissioners of his Majesty's treasury, his Majesty's principal Secretaries of state, the lords Commissioners of the Admiralty, and the Judges of the high Court of Admiralty, and the Judges of the Courts of Vice-Admiralty, are to take the necessary measures therein as to them shall respectively appertain. CHETWYND.

70

Mr. Russell to Lord Castlereagh.

My Lord-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 command of his royal highness, the prince regent, a copy of a declaration accompanying an Order in Council which had this day been passed.

It would afford me the highest satisfaction, in communicating that declaration and order to my government, to have represented them, as conceived in the true spirit of conciliation and with a due regard to the honor and interests of the U. States. I regret, however, that so far from perceiving 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 Bannic 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 U. States, so long as it respects itself and the essential rights of the nation over which it is placed, cannot cease to contend.

The U. States have never considered it their duty to enquire, 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 measure of retaliation professed by both powers to be founded on such violation. In this operation, by whichever party directed, the U. 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 a 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 U. States regard as essential and inseperable attributes of their independence. Although alive to all the injury and injustice of

this system, the American government resorted to no mensures 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 inequality in the relations of the U. States with these countries, it can only be ascribed to England herself, who rejected the terms proffered to both, while France arce: ted them, and who continues to execute her retaliatory Edicts on the high seas, while those of France have here ceased to operate.

If G. Britain could not be persuaded by considerations of universal equality, to refrain from adopting any time of conduct, however unjust, for which she might discover a precedent in the conduct of her enemy, or to abaudon an attempt of remotely and uncertainly annoying that enemy through the immediate and sure destruction of the vital interest 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 U. States from the operation of the Berlin and Milan Decrees, has produced no corresponding modification of the British Orders in Council. On the contrary, he 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 engagements 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 respected the U..States, has 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 U. States at Paris, on the 5th of August, 1810, announced that the Decrees of Berlin and Milin were revoked, and should cease to operate on the 1st of the succeeding November, provided that a condition presented to Eng

land, or another condition presented to the U. States should be performed. The condition presented to the U. States was performed, and their performance rendered absolute the repeal of the Decrees. So far therefore, from this repeal depending upon a condition in which G. Britain could not acquiesce, it became absolute, independent of any act of G. Britain, the moment the act proposed for the performance of the U. States was accomplished. Such was the construction given to this measure by the U. States from the first; and that it was a correct one has been sufficiently evinced by the subsequent practice.

Several instances of the acquittal of American vessels and cargoes, to which the Decrees would have attached, if still in force against the U. 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 cruizers; and should no other such case occur, it would be owing to the efficacy of this repeal, and to the exact observance of it, even by the most wanton and irregular of those

cruizers.

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 August, 1810, and the subsequent conduct of the government, mutually explaining each other, and conforming the construction adopted by the U. States, a report said to be communicated by the French minister of Foreign affairs to the conservate 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, às an act which by the very terms of these Orders challenged their revocation.-The act of the 5th of August, 1810, emanating from the sovereign of France, officially commu nicated to the British government, and satisfactorily expound

ed 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 columps of the Moniteur, and for the proper understanding of which not a moment has been allowed.--But even were the cause 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 who do not suffer their flag to be denationalized, was undoubtedly made with reference to the U. 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 Dec. 1810, by the duke of Cadore (the predecessor of the present French minister of exterior relations) and by the count de Simonville. In these reports they say to the emperor, (which 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; or there is no qualification in it in favor of any nation; this language has both, by an explanation of the

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