The Chancellor of the Exchequer
moved, that the house do resolve itself into a committee of ways and means, and that the Orders in Council, presented to the house on the 26th of Jan. (see p. 126.) be referred to the said committee.
§ Lord Henry Petty
had hoped, that before this motion should be brought forward, some explanatory papers would have been produced, and some explanatory statements made, to remove the doubts which existed as to the legality of the Orders themselves. Certainly, if there were doubts as to the legality, those doubts ought to be removed, before the sanction of parliament was asked for the Orders. His arguments in the present stage, would be directed solely to the legality; for the policy of the Orders could be more conveniently canvassed in the committee. He certainly felt great difficulty in entering into an argument on this head. Unlearned as he was in the law, like the majority of the members of that house, he was perhaps unfit to form an opinion on the strict legal right. But since the majority of the house must be made to feel and to 315 understand the legal right before they would consent to give their sanction, he, as well as any other might venture to state how far, according to his opinion, that legality might be doubted. He certainly felt how inadequate he was to oppose the right hon. gent. on a question of law, and particularly when supported by all the other high legal authorities, who must necessarily have been consulted on the drawing up of these Orders. But, no respect for any authority should deter him from opposing what he conceived to be contrary to the law of nations and the law of the land. The privy council was limited in respect to the Orders it might issue by the law of nations, as well as the Prize courts and the court of Admiralty; and there as well as every where else, the exercise of the prerogative was limited by fixed rules. This doctrine was sanctioned by the highest legal opinions. It would be found in the celebrated letter referred to in the duke of Newcastle's Paper respecting the Prussian ships, and signed by sir Dudley Ryder, and Mr. Murray the then attorney and solicitor general. It was expressly laid down by these great authorities, that the court of privy council was subject to the law of nations as well as the Prize court and the court of Admiralty. There was, besides, the principle, that government was never to interfere in such cases, and that no instructions were given to Judges. It was the opinion of lord Eldon, expressed on an appeal in the last war, that the Orders of Council were nothing but a definition of what was at that time held to be the law of nations. It was therefore now a fair matter of inquiry, how far the provisions of the Orders in Council now before the house were consistent with the law of nations and the law of the land. Whatever extraordinary doctrines might arise out of the circumstances of the times, and whatever extraordinary acts might arise out of those doctrines, it could never be allowed that the privy council should arrogate to itself what was the business of parliament. It was not consistent with the law of nations to seize the ships of neutrals, nor could a mere principle of retaliation upon a third party justify such a seizure. The Order in Council of the 7th Jan. last year, (p. 126) was in retaliation for a Decree of the French government. That decree consisted of two parts, one of which went to prevent the consumption or admission of English goods, and the other to place the British Islands 316 in a state of blockade. This last was indeed a vain boast: it was incapable of execution, and no attempt had been ever made to execute it. He understood it to be a doctrine held by the best writers on jurisprudence, that when a principle was laid down, and not acted upon, that, as to all practical effect, it ought to be considered as null and void. For this maxim he had the highest authority, that of sir William Scott, the Judge of the Admiralty court, who, if he might trust to Robinson's Reports (which from their accuracy were no less valuable to the students of law, than to the classical reader, by perpetuating the perspicuous, chaste and elegant style in which the judgments in that court were delivered), had laid it down as a part of the law of nations, that a simple declaration of placing a port in a state of blockade, did not constitute a blockade without some fact to support it. He wished to know therefore, whether Buonaparte's declaration had been supported by any fact between the time it was issued and the 11th of Nov. the date of the Orders in Council; and in particular, whether its operation had ever been extended to America, the power which was more immediately affected, both by his decree and the measures by which it had been combated on the part of the government of this country. As far as his information went, it never had been acted upon, and that, in an explanation given by M. Deeres to general Armstrong, the American minister at Paris, the latter had received an assurance, that it never was the intention of the French government to extend its operation to American ships. At any rate, it would not only have been wise in the government of this country, but it was absolutely incumbent on it to wait till it saw the event; and such was the spirit with which the Order in Council of the 7th of Jan. 1807, was dictated. It was impossible for neutrals to complain of this Order, because it was only carrying into rigorous effect the rule of war of 1756, which had been since relaxed, and it was at the same time, that kind of retaliation from which the enemy suffered the most, because it put an effectual stop to the whole of his coasting trade. Government, too, then reserved to itself the power of recurring to measures of still greater severity, should they be found to be necessary. But ministers thought it wise at that time, and he wished those now in power had followed their example, 317 to wait till the intentions of the enemy were still further developed, till the effect of the measure then adopted was fully tried, and till a case, not merely of right, but of expediency, was made out, for having recourse to others of a more extended and vigorous nature. For, even supposing that France had attempted to give effect to her decree, it did not follow that it would have been wise and proper to issue the Orders of the 11th of Nov. We had our interests as well as our passions to consult; and he was afraid that on the score of policy it would be as difficult to vindicate them as on the grounds of legality. But this was matter of after consideration. The question to which he now called the attention of the house, was simply whether they were lawful or not, and he contended, upon the doctrine he had laid down, and the authorities he had quoted in support of them, as long as Buonaparte did not carry his Decree into execution, they were not only not lawful but unnecessary. If he was rightly informed, the Decree never had been executed, but in as far as related to the interior of France and those countries immediately under her dominion and influence. In those countries all English property had been confiscated, but he did not even know that the measure of confiscation had been extended to the vessels in which it was imported. Now, a confiscation of enemies property was a measure which had been resorted to in other wars, and though it was a strong indication of a hostile mind in the party who resorted to it; he did not think that we had any great reason to complain of it, much less did it give us a right to call upon neutrals to interfere between us and the enemy. All that we could expect of America was, that she should resist the capture of American ships at sea, and this pretension was entirely renounced by M. Decres, in his explanation to general Armstrong. For as to the Decreee of the 18th of Sept, published under the authority of the chief judge Regnier, it certainly never had been acted upon; as a proof of it, the noble lord quoted Buonaparte's last Decree, issued at Milan, in consequence of the British Orders in Council, where he denationalizes, as he calls it, all ships that have touched at a British port; which he would not have thought it necessary to have done, had this been the intention and effect of his former Decree. Nothing therefore, he contended, could justify us in re- 318 taliating upon America an act of hostility, which was directed by our enemy, not against neutrals, but against us—his opponents in the contest. Nor was the measure more illegal in principle, than in several of its details. In looking into the Order, he found that neutrals were not to be permitted to re-export particular commodities therein enumerated, none of which were contraband of war, without a licence, which licence was to be granted by ministers, and paid for of course. And, which was a more extraordinary regulation still, that every ship carrying a certificate that the cargo was not British produce or manufacture, though according to the existing law of nations there might be no objection either to cargo or the place of her destination, was to be seized and brought into an English port. The government of France had decreed that every ship coming into a French port should bring a certificate attesting that her cargo was not the produce either of the British soil or of British industry: and what was our measure of retaliation? One would expect, that no ship should enter a British port without a certificate that her cargo was not French produce or manufacture. Instead of this, however, ministers had declared every ship carrying a certificate liable to capture; and this they termed a measure of retaliation! They would not surely assert that such a regulation was conformable to law: so far from it, that he was prepared to maintain, that it was not only contrary to many old existing statutes, but was incompatible with the spirit of the constitution. It was part of the liberty of the subject that he should have free access to strangers, and the better to secure this, that strangers should have free access to him. It was one of the express provisions of Magna Charta, that merchants should not be obstructed on the high seas; and sir Edward Coke, in his commentary on this clause, expressly stated, that if their entry into our ports was not prohibited by act of parliament, it was unconstitutional to prevent them from entering. In many subsequent laws, the same provision was made for the security of foreigners, a security which did not extend merely to their persons, but to their body and goods. In support of this doctrine, the noble lord quoted the 9th, 14th and 18th of Edw. III. and likewise the 28th of the same reign, where it was positively enacted, that no ship shall be arrested on the high 319 seas, or compelled to come to England, without the consent of the master of the ship or cargo. He would ask, then, if all these statutes, with many of a later date, had been repealed, or if they had not been infringed upon by the Orders in Council now before the house? There was another circumstance which he could not allow to pass unnoticed; viz. the time at which these Orders were issued. It would surely have been prudent, while a delicate and important negociation was pending with America, to have abstained from any proceedings which might tend to frustrate its object. It would have been prudent to have seen what effect might be produced by the reparation offered for the affair of the Chesapeake, before they excited fresh animosity by an act, inconsistent, not only with the law of nations, but with an existing treaty between this country and America. The treaty lately negociated in this country, and which had not been ratified by the president of the United States, was not before the house, and therefore he should not quote it. He would only remark, in passing, that the refusal of the president to ratify it, was no proof that it had not been ratified, because this depended, by the forms of the American Constitution, upon the Senate, and not upon the President. But without entering upon that subject now, he asserted that the Orders in Council were a positive infraction of the treaty concluded between lord Grenville and Mr. Jay, in which it was expressly stipulated, that from the circumstances of American ships not being supposed to know what ports were blockaded, and what not, they were to be allowed to proceed on their voyage, and were not to be brought into English ports; whereas by the Orders in Council they were to be detained and brought in. There was only one more high legal authority with which he would at present trouble the house by referring to, and that was the opinion of lord chief justice Hale, who was allowed to be one of the most learned and enlightened judges that ever graced the annals of this country. On this subject, that learned judge observed, that several acts of parliament having provided for and made it not only lawful, but advantageous, for foreigners to bring their ships and goods into the ports of this kingdom, unless an act of parliament should afterwards be made to shut them out, no other power in the country can do it; and having under such sanction and authority 320 entered into the ports of this kingdom, no power exists in it of preventing their going out of port again, but an act of parliament. In the present measures, the privy council had first done an act which nothing but parliament could do, and then by licence, they had given a power to dispense with that which their own order was meant to effect. In the event of any such cases, it was allowed, that it could only be suffered, in particular points, such as the importation of provisions, and similar acts of great necessity; but by no means did the law even countenance, much less tolerate, the receiving of money for the obtaining of licences. How could ministers expect their conduct to be sanctioned, by referring their acts to a committee of ways and means, when those acts were in opposition to the law of nations and the law of the land, to good policy, and the express stipulations of treaties, to the express rules of the prize courts, and the courts of admiralty? It was extremely improper, to bring forward a motion of the nature of that now before the house, till his majesty's ministers had obtained a Bill of Indemnity, and till the Orders in Council had themselves been sanctioned. Sir James Marriott, who had so long presided in the Admiralty Court, had declared, that the justice of that court was to be administered like all others, without reference to any orders or instructions from the crown, or to any limitations, except those imposed by act of parliament. Upon these established principles of public law, acknowledged as the standard of the conduct of the British courts of public administration, upon the acts and statutes, and authorities he had cited, he felt it his duty, leaving the policy of the measure out of the question, and reserving it for the committee, where it might be more conveniently brought forward, to declare against the Orders in Council. He considered it highly derogatory to the character of the country to see such things with indifference; things contrary to all law, and not to be justified by any principle of retaliation upon enemies. Till the right hon. gent. should convince the house of the propriety of these acts, by reference to books of public law and the statute book, till he and his colleagues should have submitted reasons to justify a Bill of Indemnity, and till such a bill should have been passed, the motion now offered was highly improper.
The Chancellor of the Exchequer
was ready to admit, that in the view the noble lord had taken, and conceiving as the noble lord did, that the law of nations and the municipal law of the land had been violated, the noble lord was right in requiring explanation on these heads, before he agreed to the Speaker's leaving the chair. The noble lord wished now to argue the legality of these Orders in Council, and to reserve the question of policy to another stage of the business. But as the legality was so far from being decisive as to the policy, in the noble lord's opinion, the policy might as well be discussed first, and the legality after. The objections in point of law would not be found so strong as the noble lord had stated them. With respect to the principle that the law of nations did not admit of any variation, not by the privy council, as the noble lord had by mistake stated, but by the king in council, he was ready to allow that the prerogative was in that case limited and regulated by the same rules of public law as in every other. It was the exercise of the king's prerogative of war. He was free to admit, that neither the prerogative of the king in council, nor yet an act of parliament, nor any other act of any individual nation, could change the general law of nations, established and acted upon by general consent. Thus, if the thing could be legally done at all, it was as legally done now as it could be with the consent of parliament. Whatever right there was, might be as fairly exercised by the prerogative of the crown, the nation being at war, as enforced by the legislative authority. The measures that were now in force were suggested by the propriety of retaliating the aggressions of the enemy. It was extraordinary, after the example set by the late administration, that the noble lord condemned in opposition what he had as a minister sanctioned and approved. The noble lord said, that what was done by the French Decree of Nov. was mere matter of regulation, affecting only the internal regulations with respect to British merchandize. If the noble lord thought really so, he was right in maintaining and defending his opinion. But, what was to be lamented was, that the noble lord was not of the same opinion now and when in office. The Order in Council, restricting the coasting trade of France by means of neutrals, was a proof that the late ministers conceived the Order to be executed 322 beyond the bounds of mere internal regulation. If this was the sentiment of the late ministers, then what had happened since to make them think differently? Was it the late decree? It was hard, indeed, that having the authority of those who professed mildness in justification of this rigour, those who had avowed the necessity of more active measures, should now be condemned for having followed up what that authority sanctioned. He referred to former times thus far, only to shew that the policy now enforced had been recognised and acted upon by the late ministers. The decree of Buonaparte declared the British islands in a state of blockade, and subjected British property to confiscation. This was certainly, as far as regarded the blockade, a vain and empty boast. The noble lord stated, on the misconceived authority of his learned friend (sir Wm. Scott), that a declaration of blockade, if not followed up by an actual blockade, was of no force in law. That might be the case with respect to a single port; but when a whole country was declared in a state of blockade, the inability to enforce that blockade in its full extent, proved that the declaration was intended to lay a ground for the infliction of the consequent penalties. The French decrees alledged as the ground on which they proceeded, the fact of our declaring and considering as blockaded, ports before which there was not a single Birtish ship of war, and on the extension of that principle they declared our whole empire to be blockaded. Not a step was taken on our part to counteract this principle, till it was acted upon and enforced by the enemy. The noble lord had no authority to bear him out. If the noble lord was prepared to contend, that the enemy's decree did not admit the meaning his majesty's ministers affixed to it, what did it mean? But when they saw how it was was worded and executed, it was too much to contend, that unless the decree for blockading the British islands was supported by a blockading force, encircling these islands, so as to make the approach to any port of them hazardous, it was not to be regarded as of force. France asserting, that we put ports in a state of blockade without a blockading force, and assuming the right of opposing an enemy with every art and every weapon he used, published the blockade of the whole British islands. What was to be inferred from this, but that, without ships to render 323 the approach to our coasts hazardous, the enemy would assume the right to detain vessels approaching them, whenever he could catch them. All trade in English goods was prohibited, and all such goods, wherever found, were declared lawful prize. But the noble lord said, this was of no moment, as the internal execution of the Decree in France, was all that was intended. It was rather singular, however, that the first news of the publication of the Decree at Berlin, reached this country with an account of its having been rigorously enforced at Hamburgh—Hamburgh then, as the noble lord hinted across the table, under the power of France, but reduced under that power for the express purpose of enforcing the extreme rigour of this Decree against British commerce and British goods. The sanctity of every neutral flag was, forsooth, to be most ceremoniously respected at sea; and every right and every principle of neutral territory was to be invaded and violated by land. The distinction of the noble lord was the more extraordinary, as the rigour of the terms of the Decree seemed to apply more to property at sea; and the execution was so rigorously enforced on land, where it might have been supposed not intended to be enforced at all. Let the house recollect the French minister Bourienne's declaration at Hamburgh, that all who carried on trade with England supported England; that it was on that account the French were compelled, however reluctantly, to take possession of Hamburgh; that all English goods must be produced by the Hamburghers for the purpose of being confiscated, and that in 48 hours, domiciliary visits would be paid, and military punishments inflicted on the disobedient. Was this confining the operations of the Decree to French territory? In what manner did Buonaparte himself explain the Decree in answer to the remonstrance from the merchants of Hamburgh, who stated, that a great part of the goods seized, actually belonged to them, and that the measures he was pursuing were pregnant with greater ruin to himself than to his enemy? "To destroy the commerce of the vile English," said he, "in every possible way, is my object. I have it in my power; I wish to ruin Hamburgh; for that would promote the destruction of English commerce." The construction put upon this Decree by other countries, by Spain for instance, in the manner in which she adopted the pro- 324 visions of it, sufficiently proved that no doubt was entertained by them on the subject. But it was contented that the whole of the reasoning deduce d from these facts was done away by the representation made by the French minister of Marine, Decres, to general Armstrong. This was the revocation with which neutrals ought to have been satisfied; which should have induced this country to refrain from any measure of retaliation! Decres stated it as his opinion (his opinion merely, not his knowledge), that the Decree did not alter the practise of neutral navigation; that it did not affect the American convention with France, nor alter the existing mode of maritime capture. After having stated this as his opinion, his unauthorized opinion, he proceeded to explain some of the secondary articles of the Decree, but on the most material point referred gen. Armstrong to the minister of external relations! It being evident, therefore, that the tendency of this French Decree was such as he had stated it, he maintained that we had a complete right to retaliate upon the enemy their own measures; that if the enemy declared we should have no trade; we had a right to declare that they should have no trade; that if the enemy proclaimed British manufactures good prize, we had a right to declare French manufactures and produce good prize. Who were interested in this subject and capable of appreciating it? In the first place, the enemy; secondly, the gentlemen opposite who formed the last administration; thirdly, the country at large, as existing in their representatives in that house; and fourthly, neutral nations. The opinion of the first was the least material, but still when it was considered how large a portion of the continent of Europe was under the dominion of the enemy, it became of some consequence to know what he had professed to be a principle of the law of nations. He had professed that by the law of nations a country had a right to oppose its enemy with his own weapons. As far, therefore, as Buonaparte was concerned, his majesty's government were warranted in their proceedings on the principles which he himself had professed; unless he founded his argument on the assertion that we had first infringed the law, by imposing a blockade. What he meant by that was not very evident; probably the blockade of unexampled extent, formed, and meritoriously formed, by the administration in 325 which the noble lord opposite bore so distinguished a part, from the Elbe to Brest.—He came now to the second opinion, that of the last administration. He was desirous to shew the house, that if there was meaning in words, or consistency in men, unless the Order of the 7th of Jan. could be interpreted away, as it had been attempted to interpret away the French Decree, his majesty's present government, in issuing the Orders under discussion, had a right to be perfectly satisfied, that however the policy of them might be questioned by those who were parties to the former Order, to the principle they could have no objection. He could also adduce the authority of that house in confirmation of his opinion. On his own motion for the formal production of the Order of the 7th of Jan. a long discussion had taken place. Not one word did he or any other member urge against the justice or the legality of that Order. It was distinctly argued as a question of policy; and it was contended by the gentlemen opposite, that the principle on which it proceeded was not further extended, because at that time a further extension was unnecessary, but that nothing would prevent such an extension should it become requisite. He read the preamble of the Order, which asserted precisely the right which his majesty's present ministers now asserted, the right of retaliation. Indeed, what else could it be? For all that recital could never have been made, merely for the purpose of asserting a right, which the ordinary usage of war enabled us to exercise. The arguments, therefore, of the noble lord, bore as strongly against the Order of the late administration as against the Orders of the present. Adverting to the noble lord's reference to the order of 1756, he contended, that he was completely mistaken in that reference. The coasting trade of France was prohibited in 1756, on this distinct ground, that neutrals had no right to carry on that coasting trade for France in war, which France would have carried on herself in peace. With respect to the nature of the retaliation, was it to be confined exactly to the course pursued by the enemy? If the principle of right to retaliate were admitted, it must also be admitted that we had a right to chuse our mode of retaliation; otherwise, in many instances, retaliation would only enforce the destruction of the power retaliating. Suppose a fortress was besieged, this fortress supplied 326 with water by two streams proceeding from a neutral country; and suppose that the besiegers entered the neutral country, and diverted the channel of one of these streams, would it be advisable retaliation for the besieged to enter the neutral country, and divert the channel of the other stream? The French had declared England should have no trade with them; We declared that then they should have no trade at all.—With regard to neutrals, it was an unfounded assertion, that though we had a right to injure the enemy, we had no right to injure the enemy by means that would be prejudicial to neutral powers. The last administration by their own Order acknowledged this assertion to be unfounded; that order was prejudicial to neutrals, but were they culpable for that? Certainly not. The question in a case of this kind was, is the injury to neutral Powers only consequential on measures directed against the enemy, or is the measure originally directed against neutral powers? The conduct of the last administration, in blocking up a whole river, one side of which was occupied by neutral powers, proved that they admitted the justice of this doctrine.—It had been contended, that we should have waited to see the effect of the French Decree on neutral powers; or whether France intended to put it in force. The last administration had not done so. Denmark had remonstrated against the Order of the 7th of Jan. as injurious to her trade, and went so far as to say she would resist it. In the speech of the president of the United States, it was described as a gross violation of the law of nations. If, therefore, the gentlemen opposite did not abandon their own principles, or say that they did not mean to put in force the measure which they had promulgated, they had no right to accuse his majesty's present ministers of precipitation.—He trusted he had satisfied the house, that the principle of these Orders in Council was completely justified by the law of nations, and that, as measures of war, they were also constitutionally justifiable, having been taken by the head of the executive government in the due exercise of his royal prerogative.—But the noble lord also contended, that these Orders were and a violation of Magna Charta, and the statutes of Edward III. His answer rested on the same grounds as to the former objections;—they were measures of war which the king was entitled by prerogative to take, and 327 with which it was never intended that those statutes should interfere. The king would not be justifiable in taking such measures for financial, for commercial, or for political expediency only. This interference with neutral property, had necessarily been the practice of all former wars, or how could any blockade have been effected? By every blockade we had interfered with neutral powers, since we had threatened the ships of neutral nations in the port blockaded with confiscation, if they attempted to quit it. If his Majesty's present ministers had violated the statutes of Edw. III. and particularly the 28th of Edw. III. to which the noble lord called his attention with so much emphasis, no less had they been violated by the noble lord and his friends. But, the fact was, by neither party had they been violated, for they related to a state of peace and not of war. With respect to the steps taken in consequence of the French Certificates of Origin, signed by a French consul, and given to neutral vessels, for the purpose of preventing their seizure by French cruisers; if by accepting these certificates neutrals gave effect to the measures of France, we had undoubtedly a right to retaliate. As to any interference which the Orders in Council might have with the navigation laws, he wished that subject to be distinctly argued; but not on that night. Considering the extent of those laws, it was not impossible but some part of them might, have been infringed. But if they were interfered with, it was only, as they frequently had been before, in instances in which parliament sometimes thought indemnity necessary for the measures that had been adopted, and sometimes recognized the legality of those measures. Even had he been aware, when those Orders were originally issued, that they violated some of the provisions of the navigation, laws, that would not have withheld him from their adoption.—Another topic on which the noble lord had declaimed was, that by these Orders we had violated our Treaty with America. Was that to be called a treaty which was not ratified—which was returned to this country, with a declaration that unless additional concessions on our part were introduced into it, it would not be ratified? Were we bound to adhere to the stipulations of this Treaty ere it was concluded, and while it was sailing backwards and forwards, from one quarter of the globe to the other?—In 328 imitation of the noble lord, he would say a few words, at present, on the policy of the Orders: What was the state of the two countries of G. Britain and France with respect to trade? Previous to the issuing of Orders in Council, France enjoyed, by the assistance of neutrals, as great advantages of trade as we possessed with our triumphant navy. Our navy, indeed, as belligerent, was neutralized, and rendered useless by neutral ships carrying to France all that it was important for France to obtain. This had been the case for so long a period, that even prior to the Decree of the 21st of Nov. it might have been matter of delicate inquiry, whether this country ought not to have resorted to the measure of 1756. But surely the noble lord must see, that after the issuing of the Decree of the 21st of Nov. a much stronger measure was necessary. Otherwise French property conveyed in neutral bottoms, would have been safe; British property in danger.—It had been declared, that the French Decree was a dead letter, and that it was easily evaded. He was well aware, that the certificates of origin gave opportunities, by the assistance of forgery and perjury, for the introduction of our goods on the continent. Such practices, however, were not to be encouraged; and so far from its being a dead letter, France was, from time to time, supplied by new provisions for the deficiencies of the Decree. The different coasts had been lined with troops, and other means of improvement from time to time recurred to.—Among the arguments which had been urged against the Orders in Council, it had been contended, that they were the cause of the distress which our manufacturers experienced. It had been said, that France had shut the door against our commerce, and that we had bolted it. But every one who was at all acquainted with the subject, must know that the pressure which our manufactures sustained, was antecedent to the promulgation of the Orders, and that it originated in the French Decree. If we entertained a hope, that the great inconvenience sustained by the continent for want of British manufactures, might produce a resistance to those measures of the French government, by which they were excluded, our policy evidently was by increasing that inconvenience, to endeavour to force a market. It was impossible to say to what extent the arbitrary power of France might compel the countries under her dominion to 329 consent to their own ruin. If France could exclude our goods from the continent, they wound have been excluded had our Orders never appeared. If they were excluded, we must look to the rest of the world, for the trade with which by those very Orders, we had secured a monopoly. By that trade we must endeavour to compensate ourselves for the loss of continental commerce.—With regard to the effect which these Orders might have on our relations with America, that was a most important subject. Some persons apprehended, that they might induce America to go to war with us. He trusted not; he believed not: no one would regret such an event more than himself. He was far from entertaining the mistaken idea, that we might redeem our own losses by the sufferings of America. Loss to America was loss to G. Britain. He wished to prevent war with America, for although the mischiefs which America would suffer by war, must first be felt by her, they would eventually be felt by us. The prosperity of America was the prosperity of Great Britain, and he was as anxious to preserve peace with America, consistently with the rights and interests of this country, as any man. As he hoped that peace might be preserved, so he believed that it would be preserved; for, if any enlightened view existed in America of the principle of the measures which we had adopted, it was impossible that they could be the cause of war. It was impossible that the Americans could look at the Orders in Council without perceiving in them many instances of caution not to injure America. There were various exceptions in diminution of the effect of those Orders, which showed that we were desirous of doing as little injury to America as possible. If the noble lord, on a review of the arguments that had just been urged, or on a recollection of his former impressions on the subject, came to doubt whether he was justified in charging the British Government with acts of violence towards neutral nations, it would be for him to consider, what kind of impression might be made on America, by the notion that a great part of the deliberative council of England were of opinion, that the act now under discussion was one against which, on every principle of honour and dignity, the Americans ought to take exception. If such an impression, under such an authority, were to go to America, the conse- 330 quences might be highly injurious to both countries. He recommended these considerations to the attention of any hon. gent. who might be preparing to support the noble lord's arguments. The British government had been actuated by no spirit of jealousy or hostility against neutral powers, more particularly against America. They had merely done that which it was it was their duty to do, in consequence of the measures that had been adopted by the enemy for the destruction of the country.
§ Dr. Laurence
contended, that all the arguments which had been used by his right hon. friend, made in favour of the principles maintained by his noble friend. If ever there was a crisis, when no measure of magnitude, that might affect the great interests of the country, ought to pass without the sedulous attention of parliament, it was the present. The Orders in Council should be considered in three points of view: 1st. As to their simplicity or complexity; 2dly, As to their legality according to the municipal law of the country; and 3dly, As to their legality according to the law of nations. The number and variety of the orders and explanatory orders created much complexity and confusion, and there were many objections to different parts of them, some of which even went to their legality. Their interference with the freedom and security of foreign merchants was inconsistent with the provisions of Magna Charta, which ordained, that every facility should be given to alien merchants trading in merchandise, 'nisi publice prohibiti,' that is, by positive law. But the illegality of the Orders in his mind, arose principally from the gross abuse of the Act of the 43d of his majesty: that proceeding on a precedent in the late war, which authorised the admission of certain articles, indispensable to us, direct from enemies ports, which articles were to be specified in the king's license. The specification under the late Orders was not confined to a few articles, but comprehended the whole book of rates, and thereby suspended all the navigation laws, which in the former case were but partially affected, and this under the shadow of an act, which let in but three or four.—In the arguments he should feel it his duty to use, he was not very solicitous about the defence of any administration; but yet he must think meanly of himself, if he could hesitate to declare, that he felt a fixed and rooted aver- 331 sion to a power which came in unconstitutionally; and which he thought was not exerted for the benefit or honour of the country. As to the system of morality which was to be adopted in the war with Buonaparte, instead of conjuring up from the infernal regions wicked spirit to contend against wicked spirit, he would rather that we should draw down from heaven the principles of virtue, justice, and true fortitude, to correct the wickedness of others. There was a species of courage which was as eminently displayed in the cabinet as in the field; but the present ministers, in their agonies and convulsive efforts, seemed to wish to prove that they had as much energy as Buonaparte. He was no defender of Buonaparte, but still, if he did any thing that was good, he was not ashamed to say that it was good. He was not ashamed to say, that some of the best laws in our Statute Book were enacted during the tyrannical reign of Richard the 3rd. He did not well know how neutrals could relish our law of retaliation. It seemed to be upon this principle: 'Buonaparte has flead you, and therefore we will cut you to the bone.' It behoved the legislature, before the Orders could have any effect upon foreign nations, to ascertain whether they were right. His right hon. friend had stated, that these Orders were in retaliation of the measures of the enemy, upon the same principle as the Order of the 7th of Jan. 1807. But he contended, that they could not be considered as measures of retaliation, because the French Decree of the 21st of Nov. 1806, had never been acted upon, so as to require such a retaliation. In proof of this he quoted the answer of the French minister of marine to the application of the American minister for an explanation of that Decree, in which it was stated, that the Decree did not alter the maritime law of France with respect to captures; that American ships would not be captured when passing between the ports of America and England, and that it was only the entrance of such vessels into the ports of France with English goods, which amounted to a breach of the blockade, that would subject them to capture. Another communication, on the same subject, dated the 24th of Dec. gave a positive explanation, as the previous one had a negative explanation, that neutral vessels, coming from England or her colonies, would not be received in the ports of France; and, if detected in endeavouring to evade this 332 decree by false papers, would be confiscated; so that the decree of the 21st of Nov. had not been acted upon in France, from the time of its publication up to September last, in any manner to call for the retaliation by her Orders in Council. The Decree had been adopted in Spain, and in that country too, it had not been executed, any more than in France, in any way, so as to authorize the measures that had been resorted to by this government. The case of the vessel, the Shepherdess, an American, with a cargo of English merchandize, which after an appeal to the Admiralty Court at Madrid, had been released from a Spanish port, he stated to demonstrate that fact. There was no justification of the Orders in Council therefore, in the conduct of the enemy. As to the case of America, it was his wish that we should relax in our rights in her favour as much as our circumstances would admit of; and here he was ready to deny the application of the principle, that we had no right to search neutral merchant vessels for any thing but contraband of war. The insult to a state could only be offered by searching a vessel of the state; the search of a private vessel might amount to a private injury, but could not be considered a public insult. As to the certificates of origin, his right hon. friend must know, that until lord Auckland's treaty, they were uniformly required in the ports of France, and in time of peace. On all these grounds he should agree with his noble friend in opposing the Speaker's leaving the chair, because he thought that this was a question upon which his majesty's ministers ought to fortify themselves with the strength of parliament and the sense of the nation, at a time when the eyes of the world were upon their proceedings.
The Master of the Rolls
said, he had listened with great attention to the arguments of his hon. and learned friend who had just sat down, and before he proceeded specifically to observe on them, he would beg leave to make one general observation in answer to a principle that appeared to him to be hastily adopted and applied in the reasoning of his hon. and learned friend. His hon. and learned friend had argued in favour of the necessity of delay; but it did appear to him, that no farther lapse of time was at all necessary to the due consideration of the subject now before the house. Considerable stress was laid by his hon. and learned friend on the various inconsistencies which, in his opinion, were 333 to be discovered in those orders; but before he went into that part of the argument he must take leave to say that, even admitting those inconsistencies in their full force, he could not see how that could be a ground for deferring their consideration. His hon. and learned friend had said, that his majesty's ministers ought to go forth on this occasion with the whole strength of the house of commons. It was about a twelve-month since, that a measure of this sort had been refused even to the inspection of the house of commons, and it had then been said, that to call for such a paper would be to interfere with the conduct of the war, and a denial of that just confidence which was due to ministers; that no ground could be laid for its production, and that parliament ought not to be possessed of it in a shape that could make it the subject of discussion. He was surprized, therefore, to find that his hon. and learned friend had refrained from giving his advice till this day upon the subject, and that, entertaining the opinions he did, he had not endeavoured to recal the late ministers from an act which he considered unjustifiable. His hon. and learned friend had admitted, that on a principle of retaliation, measures of this kind were justifiable, and he agreed with his hon. and learned friend, that when such measures were to operate upon innocent neutrals, it ought to be grave matter of consideration whether they should be resorted to. His hon. and learned friend had stated, that such measures ought to follow the acts of the enemy, or otherwise they would not be acts of retaliation. With this doctrine he agreed in part; but when the enemy departed from justice, he was of opinion that we were justified in retaliating in substance, and not bound to adhere to the form. And he was surprized, indeed, to hear the noble lord who opened this debate, put the construction he had done upon the French decree of 1806, because that construction took away all justification from the Order of the 7th of Jan. 1807. It was matter of astonishment to him to hear any one who had uttered a syllable in support of the Order of the 7th of Jan. 1807, objecting to the orders then under consideration. The very preamble of the former order was a refutation of the noble lord's arguments. That preamble stated the gross injustice of the French decree to be the foundation of the order. The noble lord and his learned friend contended, not that France did not understand 334 the decree, according to the construction upon which the orders proceeded; but that no person reading the decree could understand it so. For his part, he could not see what other construction could be put upon it; and certainly the government of France was not in the habit of making silly or inconsequential decrees. France had stated, that our departure from the maritime law, in declaring four kingdoms in a state of blockade, was the cause of their declaring this kingdom in a state of blockade, though without any act of blockade. The confiscation was a consequence of blockade, and therefore not necessary to be notified to neutrals. He would not deny that there were ambiguous expressions in the French decree; but these ambiguities enabled them to put their own construction upon the decree, as it might suit the occasion, either to relax in its execution, if neutral nations should make a spirited resistance, or to inforce it, if they submitted. Accordingly, notwithstanding the explanation given to the American minister, after the lapse of some time, when the neutrals had been deceived, the interpretation that had since been published of the decree declared, that all vessels coming from English ports should be captured. He was surprized that this interpretation, more sophistical than any other official paper, except the decree itself, had satisfied the Americans. But it had not, he was convinced, satisfied them; though here, where their interests were better argued than by themselves, that impression might be entertained. During the French revolution, he remembered, that the conduct of the revolutionists was defended in this country, upon grounds which they never thought of themselves, until they saw them in the accounts of the proceedings of the British parliament. He had seen an act of the American Congress, which did not refer in the slightest degree to that satisfaction. The French minister had said, that the Decree of the 21st of Nov. did not alter the maritime law of France. He did not know what law was meant here. There had been many such laws against neutrals during the revolution, and if the explanation referred to them, the decree did not alter them. The explanation, however, did give every satisfaction as to the construction of the restriction, or the extension of the decree, which was the most important information for America to receive. The single case that had been stated by his 335 learned friend, as it took place in Spain, went to the whole case, and shewed, that not even was the decree executed to the confiscation of British goods, which his learned friend had admitted to be within the provisions of the decree. It was upon that ground, that the late ministers had founded their Order, which in the debate this time twelvemonth they declared not to be a limited measure, but intended to be followed up by more vigorous measures, if France should persevere in her injustice. What was the Note delivered with the treaty to the American minister, but a declaration that we should retaliate to any extent which the conduct of France and the submission of Neutrals might render necessary? These Orders only declared the ports of France and her allies in a state of blockade, and their produce contraband of war; and France had done the same by this country. The exceptions were so many mitigations, which, perhaps, rendered the Orders more exceptionable. When the coast from Brest to the Elbe was declared last war in a state of blockade, commercial regulations were first connected with the blockade. From Brest to Ostend could be justly blockaded, but not the coast from Ostend to the Elbe. All vessels, therefore, not coming from or going to France, were permitted to pass unmolested to and from the ports between Ostend and the Elbe. The Orders in Council did not, could not, alter the law of nations. The king might issue his declaration, because he was not to leave his courts to infer what was the law of nations, but the king's declaration did not alter the law of nations, but was to be justified by that law. He had never heard nor ever read in any book upon the subject, that the parliament had ever enacted any thing upon the law of nations, or had ever complained of the king's right to declare war or contraband of war. Municipal law could never regulate upon this point. When the crown was intrusted with the power of making war, it should not be deprived of the means of carrying it on with vigour and effect. The question respecting the law of nations was out of the jurisdiction and competence of parliament, and much more now than last year, when the noble lord said that it would not be safe to lay papers of this kind before parliament. The words of an act of parliament might unintentionally trench upon the prerogative, so might the words of an Order of Council upon an act of parlia- 336 ment. The question therefore, was, not whether an indemnity was necessary, but whether the law of nations had been violated.—An allusion had been particularly made to one of the Orders, that respecting Certificates of Origin. The Decree requiring these certificates had been said by his learned friend to be a mere municipal regulation. He considered these certificates of origin as a prohibition of neutrals from carrying British goods, and contended that this was a breach of the law of nations; and that neutrals, by thus admitting that France had the power to legislate for them, made themselves her instruments against us. Persons entertained strange notions of the law of nations, when they supposed that a nation could not perform an act of vigour for its own preservation, without violating the rule of its conduct. But this could not be a violation of the rule, for the case was out of the rule. When the enemy abandoned the rule, it was our duty not to be bound by it, but to inflict that injury upon him which he intended for us, until we forced him to peace. If France could continue to enjoy all the advantages of commerce through neutral trade, whilst we were suffering every injury that could result from her decrees, she would have no motive to peace, and this country would soon be reduced to the alternative, either of submitting to peace upon any terms, or of continuing the war to an endless period. He thought that Europe might be made to feel, that a maritime power was much less dependant upon Europe than the continent was upon the maritime power. He would not suffer his country to perish, merely because the measures which were necessary for its preservation might press upon neutral commerce, which Buonaparte had before violated. There was no contract without a, reciprocal obligation, and if neutrals did not oblige the other party to adhere to the law of nations, they could not complain of us for not adhering to it. Upon these grounds, he saw no reason to question the propriety of these Orders in Council, which would not impeach the, Order of Jan. 1807, issued by an administration which certainly claimed to possess a great portion of all the talent, wisdom, and consideration, of the country. Such an administration could not have taken such a measure, without due deliberation. They could certainly not say now, if they had altered their opinion upon the question, that it was lawful for them alone to 337 violate the law of nations, and that the door was shut against all infraction of that law from the moment when they retired from office. It was now a time for indemnity for the Order of 1807, because upon that principle they should make reparation for all the measures that had been taken under that Order, restore all the ships captured, and repair all the losses sustained thereby. The noble lord had said, that the Order of 1807 was only a slight departure from the rule of 1756. But if ever so trifling, it was still a departure, and an alteration of the law. It was not to be supposed, that the late ministers bad adopted their measure in the dark. Theirs was the departure from the law of nations; the late Orders were only in conformity with that law, upon the principles of retaliation; and upon these grounds, he should support the motion of his right hon. friend, for referring the Orders to the committee of ways and means.
§ Mr. Windham
could not bring himself to think that the argument ad hominem, the continual allusion to, and comparison with, the measures of the late administration, as a justification of those pursued by the present, was a mode of argument consistent either with the importance of the subject under consideration, or the gravity of the person by whom it was urged. Still more was he surprised at the extent to which the right hon. and learned gent. seemed disposed to carry the new doctrines which he had broached that night. Much stress had been laid by both sides of the house on the due observance of the law of nations. It would however now appear, that, though the law of nations might be extremely valuable, yet it were absurd to be bound by them, when it was found convenient and useful to infringe them. But if that were the case, of what value could they be considered? Who could force nations to respect them, when they should appear contrary to the interests of nations? The same might be said of moral law. By what ties or restraints would the society of men be then regulated and bound? Must not such doctrine drive at the abrogation of all law; what would laws be more than those instituted at Highgate; laws which only enjoined a conditional observance? As absurd and ridiculous was the idea set up of retaliation. It would lead to the most strange and ludicrous effects, if carried to the extreme which was insi- 338 nuated, and which seemed to be intended. What! if a blind man chanced to thrust out your eye, would you in this spirit of retaliation, thrust out the eyes of the blind man? Such however, were the absurdities in which such doctrines were entangled; such the insane consequences to which we must be driven, if any utility, however slight, were to justify the infringement of the laws of nations. If Buonaparte enforced, for example, one of his mad decrees at Hamburgh, were we therefore justified in extending the same severity to the rest of the world? Was his conduct in that particular to be a rule for others to authorize them in adopting similar measures to an unlimited extent? It surely was not enough to consider how such measures of retaliation might operate on the two powers more immediately concerned. It should also be considered how they might affect a third party; and above all, how they might affect America. But hopes seemed somewhere to be entertained, that those measures might produce most distressing effects on the continent. We might, it seems, be able to starve the continent, and still be not affected ourselves. What! starve the continent and not be affected ourselves! was this then the manner in which these vigorous measures were to effectuate the salvation of the country? But it was likewise insisted, that such proceedings belonged to the prerogative of the crown, and that therefore parliament should have no controul over them. If that were true, why make them a subject of parliamentary discussion? Why not continue to enforce them, without question or inquiry? It was unquestionably the prerogative of the crown to make war or peace. No man would dispute it; yet had it not been the practice of parliament, and was it not in the nature of things, to inquire into the principle and justice of those wars, or the policy of the treaties by which they had been terminated? Upon old principles it was impossible to reason upon these new doctrines. His chief object in rising, was to express his entire disapprobation of such doctrines, and to entreat ministers to re-consider and revise these measures. They must own that they were exceedingly complicated, and he could not but think that a re-consideration and revision of them was the more necessary, when it appeared, that not only we did not understand our own measures, but that we were still unacquainted with the nature and ex- 339 tent of the French Decree upon which they were founded, and which they were intended to counteract.
§ Sir Arthur Piggott
said, that more pains had been taken to shew, that the Order in Council, issued by the late administration was wrong, than to prove that the Orders since issued by the present ministers were right. He was much deceived, or his majesty's government would in a month, perhaps in a week, regret the consequences to which these measures would give rise. He must therefore unite in the wish and advice of his right honourable friend, that before it was too late, ministers would consent to reconsider and revise them, and seriously examine how far, under the circumstances that were likely to arise, they should adopt or reject them. At all events, they ought not not be pressed now. The house should pause and reflect how ruinous their effects might prove to our trade; more especially how they might affect our intercourse with America, almost the only power with which we now had to remain in amity. If they, or any neutrals, could carry on any trade at all, the whole of that trade must be carried on through this country, and under such regulations as we might chuse to impose upon it. Why, then, hazard cutting up our trade altogether? As to the Order in Council of Jan. 1807, it never was intended to justify it on the principle of retaliation. It never was conceived in that spirit, or intended to be enforced on that principle. It was, therefore, with infinite surprize, that he had heard it compared with the measures that had since been adopted, and in support of which such monstrous doctrines had been broached and insisted on; and his surprize was further increased, when he found it asserted, that the said Order even went to a greater extent than the present Orders, and that their spirit and principle were deduced from it. Nothing could be more unfounded, and nothing could he deprecate more than a blind and hasty decision upon such important and critical points.
§ Mr. Eden
declared, that really he did expect that some case would be made out against America, before such a measure as the present would have been presented to the house for its adoption. As no such case was attempted to be shown, he found it his duty to oppose the motion.—The question was then put and carried.—The house then went into a committee, in which the Chancellor of the Exchequer 340 proposed certain duties on foreign produce exported from England. The resolutions were then agreed to pro forum, and the report ordered to be received on Monday.