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them, on its own individual merits. In this view it was important to inquire how far it was consistent with the principles of national law; and, in the next place, how far it was consonant with the maxims of sound policy. In the first place, he examined it in reference to national law, and here it was extremely important not to confound the law of retaliation with the law of self-preservation. The latter was paramount to all laws, and might justify even such a horrible act as the attack upon Copenhagen, provided the case was clearly and satisfactorily made out. The right of retaliation on the other hand, could only with justice be exercised upon an enemy, and could not be extended to the detriment of a neutral power. If a neutral power granted certain advantages to the enemy, then we had an undoubted right to insist upon being admitted to the same advantages; or if a neutral power acquiesced, from weakness, in the demands of the enemy, all that we could in justice require was, that in consequence of this demand the enemy should not be placed in a better situation in regard to her than we were. But we had no right, because the enemy violated the rights of one neutral, to violate the rights of all neutrals; for if this principle were once admitted, it would lead to an extension of hostilities over the whole civilized world. He then applied these general principles to the present case. The meaning of the French Decree was, he allowed, to put the ports of G. Britain in a state of blockade; but if a measure was to be founded upon it by the government of this country, it ought to be directed to its effects, not to the form in which it was expressed. The first question, then, which arose was, whether it had ever been executed against America, or acquiesced in by the government of the United States? for if it should turn out that it never had been applied to the commerce of America, and that it never had been submitted to by that power, the framers of the Orders in Council had not a foot of ground on which to stand. Now, his lordship asserted, that Denmark, immediately after the Decree was published, received explicit assurances from the French government that it did not go to capture the ships of neutrals trading upon the high seas, but that its object was merely to prescribe the terms on which the ships of foreign nations were to be admitted into the ports of France. The same explanation of the nature and tendency of the Decree was
given to America, and as a proof of the sincerity of the explanation, an American vessel, which was carried into a French port, was released by order of their court of admiralty. It was understood in the same manner in Spain, and a ship, which was carried into a port of that kingdom, under similar circumstances, was released by order of their court of prizes. But even supposing that the French decree did not admit of this mitigated construction, it would by no means follow that we had a right to publish orders which amounted to a total prohibition of American commerce, till we saw what steps America would take in consequence of it. The government of Denmark had submitted to the decree, which accounted for the spirited note written by his noble friend (earl Grey) on the occasion, in reply to a very insolent one that had been received (p. 402). But, a different language had been held to America, because her conduct was the reverse of that of Denmark; and because at that time a negotiation was then depending between this country and the United States by which all their differences were likely to be adjusted. Here the noble lord repelled the accusation which had been brought against his two noble friends who negociated the treaty, of their having made any unbecoming concessions in the course of that negociation. He ventured also to predict, that if there were any persons mad enough to be induced by the motive of obtaining a little temporary popularity to adopt a different tone from what at that time animated his majesty's councils, that they would find such popularity to be of very short duration. But to return to the subject immediately before the house, not only had M. Decrès, the minister of the French Marine, assured gen. Armstrong that it was not intended to execute the decree against America, than this assurance was fortified by the fact that it had never been executed. This matter, however, did not rest wholly either upon the assurance or the fact, or upon both together. In the President's speech at the opening of Congress, on the 19th of Feb. 1807, a document which had not reached the late ministers previous to their dismissal from office, but which must have been received by their successors about the end of last March, he had avowed his determination, to demand an explanation from the French government of the Decree, and an assurance that it was not intended by any of its provi
case of non-acquiescence in the Decree could be made out than the American government had to lay before the world. The late administration had requested information from the government of America of its intentions in consequence of the French Decree; but before an answer had been returned to this demand, the measures in question were adopted, in which a
sions to break in upon the existing treaty between France and America. Was it to be argued, then, that we were better judges than Mr. Jefferson of what trenched upon American rights or American interests? Or were we to set ourselves up and to say to the government of that country, that we did not like the terms on which the ruler of France had explained his intentions in regard to her? His lord-gross and flagrant violation of public faith ship particularly called the attention of the house to the preamble of the Orders, and to a document which had this day been laid upon the table. In this preamble the foundation of the Orders was stated to be, neutral states not having obtained the revocation of the French Decree, a circumstance, which, he contended, was of no importance whatever; for, if it was not executed, it was the same as if it had never been published. They did not dare to assert that America had acquiesced in it; and, indeed, how could they, since it appeared that as late as the 18th of Oct. last, they had received a Note from the two American Ministers, then in London, assuring them that France had uniformly conformed to the articles of the Treaty between that country and America, in the execution of the decree? And, notwithstanding this assurance, in three weeks after the date of this note, these Orders in Council were issued, by which the whole commerce of America was to be annihilated; because, forsooth, she had not obtained the revocation of a decree, which in regard to her was the same as if it never had been passed. Perhaps he should be told, that the fact as stated by the American ministers, was not true. But in the first place, he could scarcely believe that they would have hazarded a false assertion, and in the next place, if ministers did not believe them, why did they not contradict them, or at least call upon them for proofs of the truth of their declaration. It was remarkable, too, that this. Note was written in answer to a question, as if ministers had been determined to leave the injustice of their country on record. If any thing, after all the circumstances which he had enumerated, was necessary to evince the determination of America not to submit to any invasion of her rights on the part of France, the embargo lately laid upon her shipping, not after receiving the British Orders in Council, but after the receipt of advices from France, would be amply sufficient for that purpose. In short, he could not conceive that a more compleat VOL. X.
had been committed.-The noble lord next considered the Orders in Council as a violation of the municipal law of the country. He contended that they were violations of eight or ten positive statutes of the realm; of the Navigation Act; of the act for regulating the commerce of the Isle of Man; of the act for regulating the commerce of Guernsey and Jersey; and of the act for regulating the commerce of hostile (not of neutral) ports. If the lords of the privy council, at any future time, thought the laws not so good as they could make them, they had nothing to do but to follow the example set them in the present instance, and alter and suspend them at pleasure. The old arguments which were used in favour of the dispensing power, of raising ship-money, &c. were, like the present, justified upon the plea of necessity. He had always thought, however, that our ancestors had set these questions, and all of a similar nature, to rest at the time of the Revolution, when it was stipulated in the Bill of Rights that in every emergencywhich might render an alteration necessary in the established laws of the country, that alteration should be made by the king, lords, and commons in parliament assembled. In all cases in which this constitutional principle had been departed from, there had been three points required to be proved, 1. The existence of an urgent necessity; 2. The impossibility of assembling parliament in time to provide for it; and, 3. That the remedy did not overstep the demands of the necessity. In the present case, since the French Decree, there had been two sessions of parliament, and since the Orders in Council were published, parliament had been twice prorogued.-The noble lord next pointed out the unintelligibleness of the Orders. He would take upon himself to prove that in four clauses of the same paragraph they contained four direct contradictions. After much study, however, he believed that he had at last found out what they meant to express, and he was not a little proud of the solution of such a
problem, particularly as an eminent civi-, I had in the former cast been resorted to, he lian (Mr. Robinson,) had declined alto- approved of the principle upon which it gether to interpret them, and they had rested. When the French Decree was been misunderstood by the most eminent published there appeared to him two writer upon political economy now in the causes, one of which might have been country, and by Mr. Baring, in the pam- taken, either to consider that Decree as phlet which he had published upon the idle words, and to treat it with contempt, subject, and upon which his lordship be- or to look upon it as a substantial measure, stowed the most unqualified praise. The calculated to injure the interests of this noble lord proceeded to shew their ex- country, and justifying measures of retaliatreme impolicy. They went to effect a tion. The late ministers did not consider radical and fundamental change in the that Decree in the former light, or pass it whole commercial relations of the country, over in silence and contempt, though both with belligerent and neutral powers. they noticed it only by an abortive atThey tended to subject this country to a tempt at retaliation. The arguments that loss in the same proportion that they dis-had been urged by the noble lords opposite tressed the enemy, and in the same pro- in this instance, would apply with more portion that we gained from them, they force against their own measure. The afforded relief to the enemy. This prin- learned lord (Erskine) had said, that the ciple of forcing trade into our markets, Order of the 7th of Jan. was only a trifling would have disgraced the darkest ages of enlargement of the principle of the war monopoly. The impediments which it of 1756. But the principle of that war was was intended to throw in the way of the founded upon this, that neutrals should importation of cotton into France, would not be allowed, during war, to possess a have the effects of stimulating that go- trade which they had not enjoyed during vernment to encourage its cultivation in peace. Neither France nor Spain allowed quarters where it did not grow, of produc- neutrals to carry on their coasting trade ing a redundance of the article in the fo- during peace, and the principle of the war seigu market, of lowering its price, and of 1756 was that they should not carry it consequently of diminishing the cultiva- on in time of war. This, a belligerent tion. He then shewed that the orders de- had a right, upon the broad principle, to feated their own object, because by mak- resist and refuse. But though neutrals ing it necessary for every foreign ship to were not allowed to trade between Brest touch at a British port, to pay a certain and Bourdeaux, in time of peace they tribute, and this circumstance exposing were not prohibited from trading between every such ship to capture and confiscation Ferrol and Brest, and between the ports of by the French decree, it was obvious that France and Spain. This trade therefore no ship would submit to the ignominy, allowed during peace, they had a right to merely for the purpose of exposing itself to possess during war, and upon the general the subsequent danger. It was surely principle no belligerent had a right consistbetter then for ministers to retract what ently with the law of nations to take it from they had done, than to persist in an error them. This, however, the Order of the 7th to avoid the shame of retraction. of Jan. did take from them, and unless that Order could be defended, upon the principles of the law of nations, it was not to be justified at all. By the copy of an official dispatch found by his majesty's present ministers on their coming into office, it was evident that their predecessors entertained opinions similar to their own, on the justice of retaliating upon the enemy the measures of hostility which he might choose to adopt towards this country. We had a right to retaliate, we did retaliate. The extent of the powers with which we were at war, had no effect in depriving us of that right. If by that retaliation neutrals were incidentally injured, it was to be lamented, but could not tend to the diminution of that right. In the last war, the
Lord Hawkesbury vindicated the line of argument pursued by his noble and learned friend. If ever there had been a time, or a question, upon which it was proper to refer to past measures, to the persons by whom such measures had been adopted, and to the circumstances under which they had taken place, it was the present moment, and the question then under the consideration of their lordships. The preamble of the Orders in Council shewed that they were not founded upon any recent act, that they only were to carry into effect the principle laid down in a former act, which had been insufficient to its professed object. However he might differ as to the policy of the precise act which
.Elbe and the Weser were blockaded, although one side was occupied by neutrals, who must consequently have sustained material injury. The tenor of the French Decree had been admitted by the noble lords opposite themselves. As to the attempt made to insinuate, that its virulence had been abated by the explanation given by Decrès, the minister of marine, to general Armstrong, nothing could be more futile. How could any renunciation, but one as public and as formal as the Decree itself, be said to do away its effect? Was France to be left to blow hot and cold at pleasure? In cases tried in the admiralty court in England, the eminent person who presided in that court, declared that Decrè's explanation was nugatory. So much for the justice of the Orders in Council. With respect to their policy, the noble lord entered into an exposition of the advantages derivable from them. He compared the measure with that of the late administration, and contended that while by the Order of the 7th of Jan. the ordinary law of nations had been just as much violated as by the Orders of the 11th Nov. the latter secured to the country benefits which the former was not calculated to obtain. It was intolerable that England had enjoyed little advantage from her maritime superiority; and that France, who did not dare show a flag on the ocean, had carried on such a trade by neutral bottoms, that the people of that country consumed colonial produce at a much less rate than the English. To prevent this was the great object of the Orders in Council; and in doing this, so far was the trade of G. Britain from being injured, that the exports of the months of Dec. and Jan. last, had exceeded the exports of the corresponding months of the preceding year.
MINUTES.] Sir James Pulteney, from the select committee appointed to try and determine the merits of the petition of Joseph Garland, esq.; and also of the petition of sir Rd. Bickerton, bart.; severally complaining of an undue election and double return for the town and county of the town of Poole; informed the house, that the said committee had determined, That Joseph Garland, esq. and sir Richard Bickerton, bart. were not duly elected that John Jeffery, esq. was duly elected ; and that the last election for the said town and county, so far as respects the said Joseph Garland and sir Rd. Bickerton, was a void election: also, that the said petitions did not, either of them, appear to the said committee to be frivolous or vexatious. Col. Strutt presented a Declaration from Mr. Fuller, one of the members for Sussex, declaring that it was not his intention to defend his election against Lord Sidmouth was desirous that the the petitions of col. Sergison, and certain Orders might be referred to a committee, Freeholders. The consideration of the petiin order to give him an opportunity of tions was adjourned to the 24th of March. fully investigating, and making up his-In consequence of the ill health of sir mind upon this important subject, on which he had not yet been able to form a decided opinion.-The house then divided. Contents, 30....Proxies, 18— 48
The Earl of Lauderdale wished the Orders to be discussed on their own positive merits, and not on their comparative merits. He believed that they had been infinitely mischievous. They injured neutrals much more than they did the enemy; and were, in his opinion, tantamount to a declaration of war against America.
Home Popham, leave of absence was given to him for a month. Mr. Lushington, on the same ground, postponed the motion of which he had given notice for
PARL. DEBATES, FEB. 15, 180S.-Mr. Taylor's Motion relative to
would abstain from pronouncing any opinion till the papers which were to guide his judgment, as well as that of the house, EXPEDITION TO CONSTANTINOPLE.] Mr. should be properly considered. He would Taylor rose pursuant to notice, to move enumerate shortly the circumstances of the for papers necessary to give a proper un- transaction. The British fleet appeared derstanding of the particulars connected at the entrance of the Dardanelles on the with the Expedition to Constantinople. 29th of Jan. 1807, while the British amThe frequent references that had been bassador was still at Constantinople. The made to this transaction, in the discussions British fleet attacked the castles, and forcon the affair of Copenhagen, to which it ed its passage, burning a Turkish frigate. had been assimilated in principle, render- The British fleet remained 12 days before ed a more particular investigation neces- Constantinople, and then came back the sary. It was contended, that whatever same way without doing any thing fardifference there might be in appearance, ther. This situation was one in which no and certainly there was great difference in British officer would wish to remain, or point of execution and event, the principle ought to be suffered to remain, without of the right of attacking a neutral power was inquiry. The papers which he would exactly the same. But it was not merely move for would go to shew why the Brito estimate the comparative right and pro- tish squadron had gone to the Dardanelles, priety of these attacks on neutral powers, why it had come away, and what had that the papers he was about to move for, been done there. He concluded with ought to be before the house. It was moving, "That there be laid before the usual, when it had been thought right to house a Copy of the Treaty of Alliance, go to war with a power before friendly, to offensive and defensive, between his mamake some communication to parliament jesty and the Ottoman Porte, signed at with respect to the fact and the motives. Constantinople, January 5, 1799, by sir Now, we were involved in a war with Sidney Smith, and Mr. Spencer Smith; Turkey, brought on by that attack, and also a Copy of any Secret Articles of the no communication whatever had been said Treaty regulating the passage of made to parliament on the subject. It the Dardanelles by British ships of war; was no private nor party motive that had a copy of a Dispatch of lord Elgin, notifyinduced him to bring forward this motion. ing the exchange of the ratifications of the He was not connected with any party, and said Treaty; a copy of any Treaty existhe had communicated only with one or ing between the Porte and Russia on the two members on the subject. Having a 19th of Jan. 1807; copies of the Letters short time been resident in Turkey, and of the secretary of state to Mr. Arbuthconversant with the manners of the people not, his majesty's ambassador at Constanand their political attachments, his atten- tinople, at the time of the British squadtion was naturally engaged by the dis- ron proceeding to that place; and of Mr. patches from his majesty's ambassador Arbuthnot's Dispatches after the arrival of and commanders in the Dardanelles, and the squadron; copies of the Instructions iswith every attention that he was able to sued to lord Collingwood, and of those issued give, he could neither discover why the by him to sir John Duckworth; a copy of armament went, nor why it came away. a Letter from sir Sidney Smith to sir John Whatever might be the policy of the Co- Duckworth, relating to the burning a penhagen Expedition, it at least afforded Danish ship in the Dardanelles; and coan eminent example of judicious manage-pics, generally, of all the Correspondence ment and able execution. When a trans- of lord Collingwood, and the officers sent action of that kind was thought by some by him on this service.” to call for enquiry, he could not bring himself to think that a transaction in which the character of the navy, the favourite service of the country, was brought in question by ill-success, ought to beject, and therefore naturally supposed to suffered to pass without an investigation, which would fix the blame of the failure where it ought justly to fall. These were the motives which had induced him to bring this subject before the house. He
Mr. Secretary Canning, after waiting a few moments to see if any one would rise on the other side-the gentlemen there being particularly interested in this sub
be anxious to take the earliest opportunity of delivering their sentiments-felt himself now called upon, in consequence of their silence, to state what his sense of his duty suggested to him with respect to the