Lords Sitting of 15 February 1808

Orders in Council.
Lord Aucklandrose, for the purpose of calling the atten-
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tion of their lordships to a subject, perhaps of as much importance as any that ever came before them. It must, he said, have occurred to every noble lord, that the issuing of these Orders in Council had set up a new and unprecedented system of warfare, which, from the immense magnitude and importance of the subject, required the most mature deliberation. In calling their lordships' attention to this subject, he wished them to bear in mind five points. He must suppose, in the first place, that ministers previous to issuing these Orders, had satisfied themselves with respect to their legality, both as relating to the law of nations and to the statute law; he must also suppose, secondly, that they were satisfied that there was a justifiable ground for issuing these Orders; thirdly, that they were also satisfied that it was expedient to apply that ground; fourthly, that the manner and time of issuing them were precisely those which Were proper: the fifth point was of a more trifling nature, but upon which their lordships, perhaps, might have a great deal of trouble; he meant the intelligibility of the Orders. Before, however, going into a discussion on these points, he thought it necessary to state the circumstances connected with the subject. On the 21st of Nov. 1806, the French Decree of Blockade was issued at Berlin. It was soon found, that however boasting the terms of this decree were, it was not intended to be executed. The American minister at Paris, general Armstrong, having made an application to the minister of marine, in the absence of the minister for foreign affairs, received for answer, on the 26th of Dec. that it was not intended to be applied to American vessels, nor to interfere With the Treaty of 1800 between France and the United States. On the 31st of Dec. the Treaty was signed between this country and the United States, previous to which, however, his noble friend (lord Holland) arid himself, received his majesty's commands to sign a declaration relative to the French decree, which was delivered to the American plenipotentiaries, and which was perfectly well known. Then came the Order in Council of the 7th of Jan. 1807. It had been said, that this Order contained expressions which recognised the principle assumed in the orders of the 11th Nov.; he contended, on the contrary, that the principle of the former order was merely the rule of 1756, according to which the

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enemy was not to be allowed in time of war the benefit of trade which had no existence in time of peace; thus, the object of that Order was to prevent neutrals from carrying on a trade between the ports of the enemy, including under the term enemy, those countries under his influence. This was the principle of that Order, and no abstract expressions in it ought to be taken for the purpose of making it appear to have any other object which it had not. On the 17th of Feb. a message was sent by the President of the United States to the Congress, stating the satisfactory explanation, with respect to American vessels, Which had been given of the French decree by the French government. In July a bill passed their lordships house for continuing the effect of the provisions of the former treaty with the United States, Without comment or observation. On the 26th of Oct. the Message from the President of the United States to Congress again stated the satisfactory explanation of the French government respecting the Decree, as affecting American vessels; but 8 days before that, the 18th, there was a Note from Messrs. Monro and Pinckney to Mr. Secretary Canning, which was before the house, and which purported that they were satisfied with respect to the explanation given of the French Decree. Notwithstanding this, however, the Order in Council of the 11th of November was issued, and upon what grounds?—it was said as a measure of retaliation: but the justification failed, inasmuch as the French Decree had not been executed. With respect however, in the first instance, to the legality, he apprehended that the Orders in Council were in violation of the law of nations, which clearly prescribed that neutral vessels should not be molested in entering the ports of an enemy, unless those ports were actually blockaded, or unless such vessels were carrying contraband of war. He apprehended, also, that they contained a breach of the statute law in the trade which was allowed to the islands of Guernsey and Jersey, and the Isle of Man. As to the grounds which he had heard alleged as the justification, or as proving the expediency of these Orders, he did not think that any one of them at all supported the measure. To talk of starving France, who was in possession of a continent producing every thing, appeared to him to be a most absurd proposition. How were we to effect it, and was it not
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to be apprehended that by attempting to starve France we might at length teach her to make those articles which she had previously bought of us? There could not, in his opinion, be a worse argument used than, that, because France had issued a decree against neutral commerce, therefore we were to do the same by way of retaliation. The French decree against neutrals could not be executed for want of power, and it seemed as if the effect of our Orders in Council would be to carry that decree into execution by destroying the trade of neutrals. Was it expected to derive any revenue from this measure? he did not think the revenue to be derived from it would be worth 500 l. We placed neutrals between confiscation and confiscation; if they went to an enemy's port without first paying duty here, they were to be captured by our cruizers, and if they came here and paid duty, then they would he confiscated if they went to the ports of the enemy. How, then, was it to be expected that any revenue could be derived to this country from such a measure, under such circumstances? There was something absurd in the very titles used with respect to this subject; thus, in the copy sent to him of the Orders in Council, they were stated to be the Orders for regulating the navigation of the seas, and now he had heard of the Continental Blockade bill. These were high sounding titles, but how would these measures really affect our commerce? He observed, from the returns on the table, that the exports from the United Kingdom, including Ireland, had, for the last 3 years, amounted to 125 millions. What they might amount to by the same period in 1808, under the influence of these Orders, was a subject to him of anxious consideration. In what manner did these Orders affect the West Indies? He thought that the obvious policy would have been to have precluded neutrals from trading in the produce of the enemy's colonies; and this upon the just principle, that a neutral had no right to a trade during war to which he was not entitled during peace. Ministers had, however, adopted a directly contrary principle, and had expressly allowed neutrals to trade with the enemy's colonies. An opposite policy would, he conceived, have tended to relieve the West India interest from that pressure which now affected them, in consequence of the superabundance of produce beyond the demand. The pro-

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vision in the Orders respecting the warning to be given to neutral vessels, he considered as tending to harass them, as well as that relative to certificates of origin, rendering vessels having them liable to capture, which he considered a peculiar hardship. The whole of this measure reminded him strongly of what was said several years ago respecting Frederic of Prussia, that it would not be surprising if, in the extravagance of his projects, he should issue an order directing all English vessels to come to Memel and pay duty, before they went any where else. His lordship instanced the supposed cases of six American vessels, under different circumstances, which would all, under the operation of these Orders, be liable to capture, detention, or the interruption of their voyages; and concluded by moving, "That the house should resolve itself into a committee, to consider of the Orders in Council."
Earl Bathurstrequested the indulgence of their lordships, whilst he endeavoured to explain the reasons and motives on which the Orders in Council were founded. With respect to the Order of the 7th of Jan. he contended that it did distinctly assert the right of his maj. to adopt further measures of retaliation, if France did not in the mean time recede from the violent pretensions on which the Decree of the 21st of Nov. was founded. France had not receded; but on the contrary, the head of the French government had ordered a more rigorous execution of the Decree, and therefore the Order of the 11th of Nov. and the subsequent Orders, became necessary. If the principle stated by the noble lord was to be taken as that of the Order of the 7th of Jan. then it went much farther than the Order of the 11th of Nov.; because the former asserted a permanent right of preventing, during war, all trade between one port of the enemy and another, whilst the latter measure arose out of the violence of the ruler of France, and with that would cease. The noble lord had quoted a letter from Messrs. Monro and Pinckney, for the purpose of proving that they were satisfied with the explanation of the French Decree; but that satisfaction arose out of the explanation given in Dec. and which was given without any authority, and was merely the opinion of the minister who gave it. Subsequently, upon an application made to the Grand Judge in August, it was stated, that the Decree applied equally to all neutrals, and
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that one neutral could not be distinguished from another. From this, and from other parts of the conduct of the French government it became manifest, that the Decree was to be rigorously executed. Under these circumstances his majesty's government thought it their duty to adopt a measure of retaliation, upon what he conceived to be a clear principle of right, that when one belligerent adopted measures for the purpose of embarrassing the commerce of another belligerent, the latter had manifestly the right of retaliating by embarrassing; the commerce of the former. It must have been in this principle that the Order of the 7th of Jan. was issued, and that Order affected neutrals in a much greater degree than that stated by the noble lord, because under that Order, which prohibited a trade between one of the enemy's ports and another, a neutral vessel trading, as was generally the case, with part of her cargo to one of these ports, and part to another, or taking in part of a cargo at one port, and intending to take the remainder at another, was liable to capture in thus going from port to port, or at least to be brought into one of our ports, and subjected to great delay and expence; and in most instances of this nature, which had come before the Board of Trade, it had been found expedient. not to break in upon the general principle adopted in that Order, and therefore not to grant licences for any voyages of that description. The Order was besides evaded, and turned to the advantage of the enemy in carrying on a circuitous trade through this country, as in the instance of a cargo of wine from Bourdeaux destined through this country for Amsterdam, the insurance was effected at 30 per cent. and the trade could be carried on through this country at 5 per cent. To prevent this, one measure might be adopted, which was to prevent the re-exportation; but great injury would result to commerce (he did not allude particularly to wine) if the merchant was not allowed to re-export on finding the market overstocked. It was therefore found expedient to regulate that trade which could not be prohibited, and with this view the Orders in Council were issued, which were, in fact, a compromise between belligerent rights and commercial interests. In the exercise of belligerent rights for the purpose of embarrassing the commerce of the enemy, and making him feel the effects of his own acts of violence, every possible attention had, at the

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same time, been paid to the commercial interests of the country. The noble lord had expressed some surprise at the trade with the enemy's colonies which was granted to the Americans; but it was, in fact, intended as a boon to the Americans, and must be to them of great value; because, when the intelligence arrived in America of the intention of the French government rigorously to execute the decree, and the embargo was in consequence resorted to, the general impression there was, that we should resort to measures by way of retaliation, which would amount to a prohibition of their trade with these colonies. It was intended that all American domestic produce should be allowed to pass through this country, without the payment of any duty, except the article of cotton. The importance of this trade to them would be evident from a statement of their exports, which according to the last return amounted to 104,000,000 dollars, 43,000,000 of which was domestic produce, and of which 8,000,000 was exported to the enemy's colonies,from whence they derived a re-export of 30,000,000. It was found that the surplus of the produce of our own colonies beyond our consumption, was not above a third of what was wanted for the supply of the continent, it was therefore thought expedient to admit of the trade with the enemy's colonies, with the intention, however, that the produce of such colonies, should, in the circuitous trade through this country, be subjected to a duty, sufficiently high, to prevent its having the advantages over our own colonial produce; and also, that the commerce of the enemy should be embarrassed. With respect to the warning, that was in conformity with the rules of blockade, and was merely applied in a more enlarged sense. As to the certificates of origin, they were documents prescribed by the French government, to shew that the property they covered was not of the manufacture or produce of G. Britain; they were therefore belligerent instruments, and shewed that the neutrals using them, acquiesced in the Decree, and confederated with the enemy, and were therefore good grounds of capture. The noble earl repeated, that the object of these Orders was to regulate that which could not be prohibited, the circuitous trade through this country.
concluded, that the Orders were a violation of the law of nations, and that we had no right to molest a neutral going to an enemy's ports, unless in the
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cases mentioned by his noble friend. The violent Decree of the French government, undoubtedly gave us a right to retaliate; but to retaliate upon the enemy and not upon neutrals. He denied the construction put by the noble earl, upon the Order of the 7th of Jan.; and contended that principles had been now attached to it, which were never in the contemplation of those who framed it. The noble earl had spoken of an impression in the United States; but upon whom, or upon what part of the people, was the impression? What was called a retaliation of the threatened blockade of France, he contended was much more than a blockade; and he would ask the noble and learned lord on the woolsack, whether this was not so? The principle of a blockade was to prevent the entrance of vessels into the blockaded ports—it went no farther: vessels having notice not to enter the blockaded ports, might proceed to any other port whatever that was not in a state of blockade. But here we not only extended the principle of blockade to ports not actually blockaded, which was all that was on any side contended France had done, but we would not permit the vessels thus excluded, to proceed to any other ports they pleased. We forced them to come in here. They might choose to make for Sweden or any other neutral country; but even this they were not allowed to do. And, therefore, these Orders in Council were not only contrary to the law of nations, but exceeded any thing that it was pretended France had done.—His lordship then went on to observe, that we had no right to alter the law of nations of our own authority. It was a question in which other nations were concerned, and they ought therefore to be consulted. We had no more right to alter it for our own convenience, than a judge here had to alter the law of the land without the authority of parliament. Suppose the lord chief baron, for whom he expressed a high respect, should take it into his head to say that smuggling had grown to such an extent, that he would permit no goods to be carried from one place to another without being first brought to London; and that to prevent all fraud, they .must come in by Westminster-bridge and go out by London-bridge. He might be told, that the common law of the land did not permit such a regulation, and that parliament must be applied to before it could be altered. Upon the authority of the principle

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which we were now setting up, that we had a right to alter the law of nations, so as to suit our own convenience, he might reply, that the evil was of such a nature that rendered it necessary for him to apply the remedy immediately, and that it would be very inconvenient to wait for parliamentary proceedings. But after all, what was the value of this decree, which Buonaparte, drunk with his victories, had issued? It was worth no more than the paper on which it was written. What was the use of talking of blockading G. Britain, when he had scarcely a ship on the ocean to enforce his Orders? He might as well have talked of blockading the moon [a laugh], and possessing himself of all the lunar influence. And then the Royal Society might imitate the example of ministers, and say, 'Good God, what a number of wrecks we shall have; let us think of some means of retaliating this dreadful blockade.' Their lordships laughed at this, but he declared he thought it the dullest thing on earth. Buonaparte might equally well have pretended to blockade the moon as to blockade this country, for he was as competent to do the one as the other.—His lordship then particularly directed the attention of the house to the injustice and the impolicy of inflicting a great injury on neutrals, in order to do a trifling one to our enemies. He felt a sort of enthusiasm in favour of America; not only on account of the origin of the people, but also on account of the noble stand they had made for their independence. How could they endure an act, now they were independent, which they could not have borne if they were still a colony? It was of the last importance, that both countries should continue in peace and amity with each other, and every thing ought carefully to be guarded against which disturbed their harmony. He was far from saying, that every thing should be given up to America; but he did say, that nothing but the last necessity could justify our engaging in hostilities with that country.
The Lord Chancelloragreed that the Orders in Council could not be defended, if they were a violation of the law of nations; and if their lordships could be persuaded that such was their character, there could be no occasion to urge their going into a committee, to consider of the propriety of addressing his majesty to check the operation of regulations which were contrary to the law of nations—that is, the natural justice which ought to be held sa-
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cred between nation and nation, as well as between one individual and another. Whatever was contrary to the spirit of the law of nations, he allowed could not be justly altered, even by parliament; but, at the same time, it was to be observed, that from the nature of the thing, there must necessarily be variations in the application of the principle to different circumstances. This was all that had been done by these Orders; nor did they trench more upon the municipal law than they did upon the, law of nations. That the crown had a right of its own authority to make regulations for the internal trade of the country, to intermeddle with the finances, &c. &c. would not be contended; but certainly it had been the practice for the crown, when the nation was at war, to affect the trade of neutrals, as far as that might be called for by the conduct of our enemies.—As it had been argued, that the previous measures of the enemy were only matters of internal regulation. or a farther extension of a navigation law, which they had a right to resort to if they pleased, his lordship proceeded to state his reasons why they ought to be regarded as a direct violation of the rights of neutrals and the law of nations. For this purpose he began with the preamble of the Decree of the 21st of Nov.; the preamble, as he said, being considered by lawyers as a key to the body of the enactment. From the words of this recital, and the nature of the complaints against G. Britain, which was charged with having put whole coasts and empires in a state of blockade, without having the power actually to execute that blockade, in the established form and manner, he contended that Buonaparte must have meant not only to exclude British produce and manufactures from his ports, but also to prevent all trade whatever in British commodities. This was a flagrant violation of the, rights of neutrals; for it was as much as to say, that whoever traded with G. Britain would be considered as an enemy by France. Coupling the preamble with the enactment, this was the obvious sense of the Decree. His lordship then adverted to the Order in Council of the 7th of Jan. last year; and argued also, from the plain construction of this Order, that the Decree must have been understood by the late ministers as extending farther than mere internal regulation which France had a right to adopt. It had been said that the present ministers were more ready to argue that their predecessors

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were in the wrong than that they themselves were in the right. This could not be imputed to him on the present occasion; for, as far as the Order of the 7th of Jan. went, it had his approbation. At least there was here a recognition of the injustice of France to neutrals, if not an approval of the principle of retaliation, by establishing a similiar system of nominal blockade. But the Order at all events extended further than the old mode of applying the law of nations. It might be said, that, according to the rule of 1756, we had a right to interrupt the coasting trade of France; but this interrupted the trade of Spain, &c. with France, and included those nations where France had such a controul as to enable her to enforce the exclusion of our ships. Any nation bad a right to exclude our ships; but the Order proceeded on the sound principle, that in fact the exclusion was owing not to the nation itself, hut. to France. To support this construction of the Order, his lordship cited the speech of the President of the United States, who, he observed, understood it in the same way; and for the justness of his construction of the French Decree, he cited the Spanish Decree. He also cited the pretensions and complaints of the Danes to the same effect. With regard to the opinion of M. Decres, in reply to gen. Armstrong, who consulted him about the application of the Decrees to America, he considered that as worth nothing. The whole answer evidently amounted to this, that Decres knew very little about the matter. This appeared from a sentence in the answer which he observed in a very excellent pamphlet on this subject, which, he knew not for what reason, was not published in the official letter. There Decres distinctly stated, that he had much less positive information on the point than the prince of Benevento, whom he advised gen. Armstrong to consult. The Court of Admiralty also had certainly adopted his construction of the French Decree. When a neutral was captured by an enemy, it was not the practice to grant salvage for releasing the vessel because she was in no danger of confiscation; but on an American vessel being seized for trading with this country, and released by one of our ships, one-eighth of the whole was granted as salvage. As to the question of the right of retaliation, his lordship contended, that when our own preservation required that we should take measures against our ene-
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my, the neutral had no right to complain; for the injury to her was consequential. He stated a variety of instances to prove the correctness of this position, and cited cases of blockades, embargoes, &c. as illustrations of the doctrine. As to the mode of the retaliation, he did not think it necessary to say a word on that subject.— With respect to the policy of the measure, he maintained that a false view of it had been taken, particularly with regard to America. We were not to consider merely the greatness of the advantages which we derived from an intercourse with America, but also what would be our situation if America should submit to the decrees of Buonaparte. To preserve peace with America no one could be more anxious than he was. He wished well to America, first, because it was his duty as a man to wish well to every nation; and next, because the welfare of America was materially connected with the interests of G. Britain. But he could not suffer the enemy both of G. Britain and America to make use of the one to destroy the other; and his duty to his own country was clearly paramount to his regard for any other. He hoped these orders would not be productive of a war with America. Do not, my lords, he said with earnestness, bring on such an event, by arguing the case upon any such supposition. America, I trust, will still listen to the voice of truth; she will see that the whole of this is owing to France; and perhaps she may be at last sensible of the policy of joining with us in opposition to the wild and extravagant pretensions of a power whose object is to crush us both.
Lord Kingcontended, that France had not put her decrees into execution, and that we had no proof that neutrals would submit to them. As to the argument, that we had a right to hurt our enemy though a neutral might be injured consequently, he denied that we ought to do a great injury to a neutral in order to hurt, our enemy a little. Buonaparte could never have put his decrees in execution if we had not assisted him, and stopped our own goods while finding their way to the continental markets. Commerce was much more necessary to us than to France, and therefore it was folly in us to act upon these Orders, which only secured the attainment of the objects of France. He also strongly insisted upon the inconsistency of the conduct of ministers, who, while they were the loudest in extolling

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the advantages of a commercial intercourse with South America, both in the case of Buenos Ayres and the Brazils, were so ready to put an end to our commerce with the continent, which was so much more valuable. He hoped the Orders would not be productive of a war with America, but even if they stopt short of this, they would be attended with most pernicious consequences.
Lord Grenville began with observing, that it was common for speakers, in order to arrest the attention of their audience, to exaggerate the importance of their subject; but, of the magnitude of the present subject, so far from its admitting of exaggeration, it was impossible for any eloquence to convey an adequate idea. He was glad to see that at last the public were becoming alive to its importance, and he ventured to predict, that the anxiety which was now felt concerning it would daily increase, as there was too much reason to dread that misfortune would be accumulated upon misfortune, should the, measures be persevered in which gave rise to this evening's discussion. He was decidedly of opinion that the house ought to go into a committee upon the Orders in Council, because of the variety of questions which grew out of them, involving their legality or illegality, their constitutional or unconstitutional tendency, their policy or impolicy—in a word, their bearings upon the prosperity and the very existence of the country. It was the duty of the house, and he conjured them not to lose sight of it at a moment so critical and perilous, to intervene between the country and the ruin by which it was threatened, by the rashness, improvidence and folly of the government. So pressing was the emergency, that the smallest delay might be attended with the most destructive consequences, and the most irremediable evils; he hoped therefore, that their intervention would take place before things arrived at a state in which it might no longer be effectual. Nothing to him was personally more painful, than being obliged to combat the sentiments of the noble lord opposite to him (earl Bathurst), for whom he entertained the highest esteem and respect, but the task was imposed upon him by an imperious sense of public duty, and he trusted that if any expression should escape him of a nature to give any unpleasant feelings to the noble lord, that he would believe that it would give him (lord G.) greater
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pain in uttering, than it could possibly give the -noble lord in hearing it. He should begin however, with what had fallen from the noble and learned lord (Eldon), who, he was happy to find, had abstained on this evening from justifying his own conduct, by attempting to criminate that of his predecessors, a very unsatisfactory mode of defence, which of late had been too much practised. Still, however, the noble and learned lord had not defended the Orders in Council upon their own merits; but, by way of calling off the attention of the house from the measure now before them, he had directed it to a measure of the late administration, for which he was disposed to give them credit, but between which and the present there was no analogy whatever, and which, if it was defensible, it was precisely because it rested on principles directly adverse to those by which the Orders in Council, dated last Nov. were dictated. The noble and learned lord had dwelt much upon the blockade of the French ports from the Elbe to Brest, that had been proclaimed in the decree issued by the late ministers, but all the conclusions which he attempted to deduce from it fell to the ground, when the single fact was stated, that this was not a fictitious, but a real blockade, perfectly conformable to the understood and acknowledged laws of war, and that the publication of the proclamation was accompanied with directions to the admiralty to carry it into effect. The late ministers in this case therefore, instead of violating the law of nations, upon any plea of necessity or convenience, or temporary expediency, had done nothing more than apply the principles of this law to the circumstances under which they were called to act. The noble and learned lord farther contended, that in the preamble of this Decree of blockade the principle of retaliation was set forth: he reminded, however, the noble and learned lord, that this principle was not acted upon; they had merely asserted, that they would have been justified in recurring to it, always understood, that it should be exercised within the law of nations, and instead of recurring to it they adopted a measure of quite a different nature. He intreated, however, their lordships to get out of the eternal circle of justifying one act by comparing it with another; to abstain from the petty warfare of crimination .and re-crimination, and to canvass the measure, now before

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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 ho 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
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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 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 he of very short duration.—But to return to the subject immediately before the house, not only had M. Decres, 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

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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 lordship 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
482
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 gross and flagrant violation of public faith 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 question, 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 emergency which 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

483
problem, particularly as an eminent civilian (Mr. Robinson,) had declined altogether to interpret them, and they had been misunderstood by the most eminent writer upon political economy now in the country; and by Mr. Baring, in the pamphlet which he had published upon the subject, and upon which his lordship bestowed the most unqualified praise. The noble lord proceeded to shew their extreme impolicy. They went to effect a radical and fundamental change in the whole commercial relations of the country, both with belligerent and neutral powers. They tended to subject this country to a loss in the same proportion that they distressed the enemy, and in the same proportion that we gained from them, they afforded relief to the enemy. This principle of forcing trade into our markets, would have disgraced the darkest ages of monopoly. The impediments which it was intended to throw in the way of the importation of cotton into France, would have the effects of stimulating that government to encourage its cultivation in quarters where it did not grow, of producing a redundance of the article in the foreign market, of lowering its price, and consequently of diminishing the cultivation.—He then shewed that the orders defeated their own object, because by making it necessary for every foreign ship to touch at a British port, to pay a certain tribute, and this circumstance exposing every such ship to capture and confiscation by the French decree, it was obvious that no ship would submit to the ignominy, merely for the purpose of exposing itself to the subsequent danger. It was surely better then for ministers to retract what they had done, than to persist in an error to avoid the shame of retraction.
Lord Hawkesburyvindicated 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 the 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
484
had in the former case been resorted to, he approved of the principle upon which it rested. When the French Decree was published there appeared to him two causes, one of which might have been taken, either to consider that Decree as idle words, and to treat it with contempt, or to look upon it as a substantial measure, calculated to injure the interests of this country, and justifying measures of retaliation. The late ministers did not consider that Decree in the former light, or pass it over in silence and contempt, though they noticed it only by an abortive attempt at retaliation. The arguments that had been urged by the noble lords opposite in this instance, would apply with more force against their own measure. The learned lord (Erskine) had said, that the Order of the 7th of Jan. was only a trifling enlargement of the principle of the war of 1756. But the principle of that war was founded upon this, that neutrals should not be allowed, during war, to possess a trade which they had not enjoyed during peace. Neither France nor Spain allowed neutrals to carry on their coasting trade during peace, and the principle of the war. of 1756 was that they should not carry it on in time of war. This, a belligerent had a right, upon the broad principle, to resist and refuse. But though neutrals were not allowed to trade between Brest and Bourdeaux, in time of peace they were not prohibited from trading between Ferrol and Brest, and between the ports of France and Spain. This trade therefore allowed during peace, they had a right to possess during war, and upon the general principle no belligerent had a right Consistently with the law of nations to take it from them. This, however, the Order of the 7th 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

485
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 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.
The Earl of Lauderdalewished 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.
Lord Sidmouthwas desirous that the Orders might be referred to a committee, in order to give him an opportunity of fully investigating, and making up his mind upon this important subject, on which he had not vet been able to form a decided opinion.—The house then divided.

Contents,

30

Proxies,

18— 48

486

Non-Contents,

61

Proxies,

45—106

Majority against the motion, 58.
Adjourned at four o'clock on Tuesday morning.

List of the Minority.

Gloucester,

Ellenborough,

Norfolk,

Ponsonby,

Bedford,

Carrington,

Argyle,

Lauderdale,

Stafford,

Hutchinson,

Derby,

Cassillis.

Jersey,

Proxies.

Cowper,

Bute,

Essex,

Thanet

Albemarle,

Shaftesbury,

Spencer,

Bulkeley,

Bristol,

Lucan,

Breadalbane,

Ossory,

Grey,

Carnarvon,

Sidmouth,

Blandford,

St, John,

Rosslyn,

Darnley,

Guilford,

King,

Buckinghamshire,

Besborough,

Stawell,

Moira,

Mendip,

Grenville.

St. Vincent,

Somers,

Braybrooke,

Auckland,

Yarborough,

Erskine,

Holland.