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These inquiries embrace two distinct objects. The first relates to the conduct of the government of France in regard to this decree; the second, to that of the government of the United States. In satisfying the call of the house on this latter point, it seems to be proper to meet it in a two-fold view; first, as it relates to the conduct of this government in this transaction; secondly, as it relates to its conduct towards both belligerents, in some important circumstances connected with it. The resolutions do not call specially for a report of such extent, but as the measures of the executive, and the acts of congress founded on communications from the executive, which relate to one of the belligerents, have, by necessary consequence, an immediate relation to the other, such a report seems to be obviously comprised within their scope. On this principle the report is prepared, in the expectation that the more full the information given on every branch of the subject, the more satisfactory will it be to the house.
The secretary of state has the honour to report, in reply to these inquiries, that the first intelligence which this government received of the French decree of the 28th April, 1811, was communicated by Mr. Barlow, in a letter bearing date on the 12th of May, 1812, which was received by this department on the 13th of July following: that the first intimation to Mr. Barlow of the existence of that decree, as appears by his communications, was given by the duke of Bassano in an informal conference on some day between the 1st and 10th of *May, 1812, and that the official communication of it to Mr. Barlow was made on the 10th of that month, at his request: that Mr. Barlow transmitted a copy of that decree, and of the duke of Bassano's letter announcing it, to Mr. Russell, in a letter of May 11, in which he also informed Mr. Russell that the duke of Bassano had stated that the decret had been duly communicated to him: that Mr. Russell replied, in a letter to Mr. Barlow of the 29th of May, that his first knowledge of the decree was derived from his letter; and that he has repeatedly stated the same since to this government. The paper marked (A) is a copy of an extract of Mr. Barlow's letter to the department of state, of May 12, 1812; (B) of the duke of Bassano's letter to Mr. Barlow of the 10th of the same month; (C) of an extract of Mr. Barlow's letter to Mr. Russell, of May 11th; (D) of an extract of Mr. Russell's answer of the 29th May; and (E) of Mr. Russell's letter to the department of state of the 30th.
The secretary of state reports also, that no communication of the decree of the 28th April, 1811, was ever made to this
government by the minister of France, or other person, than as above stated, and that no explanation of the cause of its not having been communicated to this government and published, at the time of its date, was ever made to this government, or, so far as it is informed, to the representatives or agents of the United States in Europe. The minister of France has been asked to explain the cause of a proceeding apparently so extraordinary and exceptionable, who replied, that his first intelligence of that decree was received by the Wasp, in a letter from the duke of Bassano of May 10th, 1812, in which he expressed his surprise that a prior letter of May, 1811, in which he had transmitted a copy of the decree, for the information of this government, had not been received. Further explanations were expected from Mr. Barlow, but none were given. The light in which this transaction was viewed by this government, was noticed by the president in his message to congress, and communicated also to Mr. Barlow, in the letter of the 14th July, 1812, with a view to the requisite explanation from the French government. On the 9th of May, 1812, the emperor left Paris for the north, and in two days thereafter the duke of Bassano followed him. A negotiation for the adjustment of injuries, and the arrangement of our commerce, with the government of France, long depending, and said to have been brought nearly to a conclusion at the time of Mr. Barlow's death, was suspended by that event. His successor, lately appointed, is authorised to resume the
negotiation, and to conclude it. He is instructed to demand redress of the French government for every injury, and an explanation of its motive for withholding from this government a knowledge of the decree, for so long a time after its adoption.
It appears by the documents referred to, that Mr. Barlow lost no time, after having obtained a knowledge of the existence of the French decree of the 28th April, 1811, in demanding a copy of it, and transmitting it to Mr. Russell, who immediately laid it before the British government, urging, on the ground of this new proof of the repeal of the French decrees, that the British orders in council should be repealed. Mr. Russell's note to lord Castlereagh bears date on the 20th May ; lord Castlereagh's reply on the 23d, in which he promised to submit the decree to the consideration of the prince regent. (See papers marked F.) It appears, however, that no, encouragement was given, at that time, to hope that the orders in council would be repealed, in consequence of that decree ; and, that although it was afterwards made the ground of their repeal, the repeal was, nevertheless, to be ascribed to other causes. Their repeal did not take effect until the 23d June, more than a month after the French decree had been laid before the British government; a delay indicating in itself, at a period so momentous and critical, not merely neglect but disregard of the French decree. That the repeal of the British orders in council was not produced by the French decree, other proofs might be adduced. I will state one, which, in addition to the evidence contained in the letters from Mr. Russell, herewith communicated (marked G.), is deemed conclusive. In the communication of Mr. Baker to Mr. Graham, on the 9th August, 1812 (marked H.), which was founded on instructions from his government, of as late date as the 17th June, in which he stated, that an official declaration would be sent to this country, proposing a conditional repeal of the orders in council, so far as they affected the United States, no notice whatever was taken of the French decree. One of the conditions then contemplated was, that the orders in council should be revived at the end of eight months, unless the conduct of the French government, and the result of the communications with the government of the United States should be such, as, in the opinion of the British government, to render their revival unnecessary: a condition which proves incontestably that the French decree was not considered by the British government a sufficient ground on which to repeal the orders in council; it proves also that on that day the British government had resolved not to repeal the orders on the basis of that decree ; since the proposed repeal was to depend, not on what the French govern. ment had already done, but on what it might do, and on arrangements to be entered into with the United States, unconnected with the French repeal.
The French decree of the 28th April, 1811, was transmitted to the U. States by the Wasp, a public vessel, which had been long awaiting, at the ports of Great Britain and France, despatches from our ministers relating to these very important concerns with both governments. It was received at the department of state on the 13th July, 1812, nearly a month af. ter the declaration of war against Great Britain. Intelligence of the repeal of the orders in council was not received until about the middle of the following month. It was not impossible thererefore that either of these acts, in whatever light they may be viewed, should have been taken into consideration, or have had any influence on deciding on that important event.
Had the British government been disposed to repeal its orders in council, in conformity with the principle on which it professed to have issued them, and on the condition which it had itself prescribed, there was no reason to delay the repeal until such a decree as that of the 28th April, 1811, should be produced. The declaration of the French government of August 5, 1810, had fully satisfied every claim of the British government according to its own principles on that point. By it the decrees of the Berlin and Milan were declared to be repealed, the repeal to take effect on the 1st of November following, on which day it did take effect. The only condition attached to it was, either that Great Britain should fol. low the example, and repeal her orders in council, or that the United States should carry into effect against her their non-importation act. This condition was in its nature subsequent, not precedent, reserving a right in France to revive her decrees in case neither alternative was performed. By this declaration it was put completely in the power of Great Britain to terminate this controversy in a manner the most honourable to herself. France had yielded to her the ground on a condition, with which she had declared her willingness to comply. Had she complied, the non-importation act would not have been carried into effect, nor could the French decrees have been revived. By refusing to comply, she has made herself responsible for all that has since followed.
By the decree of the 28th April, 1811, the decrees of Berlin and Milan were said to be definitively repealed, and the execution of the non-importation act against Great Britain was declared to be the ground of that repeal. The repeal, announced by the declaration of the 5th of August, 1810, was absolute and final, except as to the condition subsequently attached to it. This latter decree acknowledges that that condition had been performed, and disclaims the right to revive it, in consequence of that performance, and extending back to the 1st of November, confirms in every circumstance the preceding repeal. The latter act, therefore, as to the repeal, is nothing more than confirmation of the former. It is in this sense that those two acts are to be understood in France. It is in the same sense that they are to be regarded by other powers.
In repealing the orders in council on the pretext of the French decree of April 28, 1811, the British government has conceded that it ought to have repealed them on the declaration of August 5, 1810. It is impossible to discriminate between the two acts, or to separate them from each other, so as to justify, on sound and consistent principles, the repeal of the orders in council on the ground of one act, and the refusal to repeal them on that of the other. The ad act makes the repeal definitive; but for what reason? Because the non-importation act had been put in force against Great Britain, in compliance with the condition subsequent attached to the former repeal, and her refusal to repeal her orders in council. That act being still in force, and the decree of the 28th April, 1811, being expressly founded on it, Great Britain repeals her orders in council on the basis of this latter decree. The conclusion is, therefore, irresistible, that by this repeal, under all the circumstances attending it, the British government has acknowledged the justice of the claim of the United States to a repeal on the former occasion. By accepting the latter repeal, it has sanctioned the preceding one; it has sanctioned also the conduct of this government in carrying into effect the non-importation act against Great Britain, founded on the preceding repeal.
Other important consequences result from this repeal of the British government. By fair and obvious construction, the acceptance of the decree of the 28th April, 1811, as the ground of the repeal of the orders in council, ought to be construed to extend back to the 1st November, 1810, the day on which the preceding repeal took effect. · The secretary of state has full confidence, that if this question could be submitted to the judgment of an impartial judicial tribunal, such would be its decision. He has equal confidence that such will be the judgment pronounced on it by the enlightened and impartial world. If, however, those two acts could be separated from each other, as that the latter might be made the basis of the repeal of the orders in council, distinct from the former, it follows, that, bearing date on the 28th April, 1811, the repeal ought to have relation to that date. In legal construction between nations as well as individuals, acts are to be respected from the time they begin to operate, and where they impose a moral or politicalobligation on another party, that obligation commences with the commencement of the act. But it has been urged, that the French decree was not promulgated or made known to the British government until a year after its date. This objection has no force. By accepting an act bearing date a year before it was promulgated, it is admitted that in the interval nothing was done repugnant to it. It depot be presumed that any government would accept from another, as the basis on which it was to found an important measure, an act of anterior and remote date, pledging itself to a certain course of conduct which that government had in the interval departed from and violated. If any government had violated an act, the injunctions of which it was bound to observe, by an anterior one in relation to a third party, and which it professed to have observed before its acceptance by the other, it could not be presumed that it would cease to violate it after the acceptance. The conclusion is irresistible;