Lords Sitting of 26 February 1808

ORDERS IN COUNCIL.
Lord St. Johnrose, in pursuance of notice, to bring forward his Resolutions respecting the Orders in Council. His lordship took a review of the explanations given by the French government of the Decree, and of the documents shewing the manner in which it was understood by the American government, for the purpose of proving that the latter government never acquiesced in the French decree, considered as affecting neutrals, and thence concluding, that this government had no right to issue Orders affecting the American trade. He contended also, that there was no sufficient evidence of the execution of the French Decree, in making captures on the high seas, according to the terms of it, which could alone be evidence of such an execution of the decree as could be considered a violation of the law of nations. The information laid, on the table was in this point defective, and did not appear to him to afford any sufficient reason for issuing the Orders in Council, which he considered a gross violation of the law

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of nations, and fraught with great injustice towards Neutral States. His lordship concluded by reading the following Resolutions:—"1. That previous to the 11 th of Nov. last, his majesty's government was not in possession of any proof, nor supposed ground of belief, that the United States of America had acquiesced in or submitted to, or intended to acquiesce in or submit to, the execution of such parts of the Decree of the 21st of Nov. 1806, as purported to impose on Neutral Commerce, restraints inconsistent with the law of nations. 2. That it does not appear, that the said Decree, in so far as it may have been supposed to relate to captures at sea, was in any one instance carried into execution, by the Prize Courts of France, or her Allies, previous to the 11th of Nov. last. 3. That on the 18th of Oct. last, the ministers of the United States at this court, officially apprized his majesty's Secretary of State, that their government had received from that of France, satisfactory explanations and assurances, and that, in fact, the same never had been enforced against the Neutral Commerce of the United States. 4. That no official denial of the facts so asserted by the American ministers, appears to have been made on the part of his majesty's secretary of state; nor any grounds alledged by him in which the American ministers could be questioned. 5. That under such circumstances the issuing the Orders in Council of the 11th and 25th of Nov. last, which Orders purported to compel the trading vessels of the said United States in all their voyages to and from the Continent of Europe to touch at the ports of this country, and to be there subjected, by the authority of the British government, to many and grievous restrictions, and a manifest violation of the law of Nations, and of the rights and independence of a friendly Power."—On the first Resolution being put,
The Duke of Montroserose and said, he perfectly agreed with the noble lord, that although the subject had been already before the house, it was one that merited discussion. He had forborne as yet to deliver his sentiments upon it, from a wish not to make up his mind without giving it the fullest consideration; and having so done, he should not hesitate to give it as his firm opinion, that the Orders in Council were wise, politic, and calculated to answer the great purpose of defeating the designs of our enemy, and ultimately convincing him of his error in the unjust system he was pur-
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suing in carrying on the war. It was the government of France which had violated what was considered the law of nations, and it was prudent in that of this country to retaliate those measures that were aimed at our very existence; if the neutrals suffered any injury, it was France, and France alone, that they ought to look upon as the cause of that injury, and to which alone they ought to look for reparation. In his opinion, it was idle to talk of waiting to see whether the neutrals would have acquiesced in that Decree; for when the distance was considered, it would plainly appear that our forbearance might have continued 3, 6, nay even 9 months, during the whole of which time the enemy would have derived all the advantages they expected therefrom, and England sustained all the injuries that were levelled at her; for, light as some persons might treat the force of France, he could not but recollect that she had still fleets, frigates, and numerous privateers; from these, under that Decree, much injury might have been done, in defiance of that superiority which, he was thankful and happy G. Britain could boast. As to what the noble lord had urged relative to the answer which the minister of marine had given to general Armstrong, it amounted to nothing more than that he thought America was not to be included. But could any man suppose that the je pence of a French minister of marine was a sufficient security against a positive decree so plain and direct, that those who ran might read? No; the American Resident ought not to have rested satisfied with less than a formal renunciation, nor could our ministers consider less than that renunciation as a proof that the United States were not included. Nay, upon the question being afterwards put to another French officer, his reply was, that he saw no exceptions. For these among other reasons, he thought our executive government had acted wisely and politically in issuing those Orders in Council; that the Resolutions moved by the noble lord were unnecessary, and he therefore hoped the house would agree with him in his moving the previous question.
Lord Hollandobserved, that the Orders in Council fell far short of that clearness which would enable him who runs to read. He would not now enter into the question of the policy of these Orders, that being reserved for a subsequent discussion, but with respect to the question of the law of nations, he held a very different opinion

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from the noble duke. If a belligerent adopted a mode of conduct towards a neutral, which amounted to an act of hostility, and in which that neutral acquiesced, then he would admit the right of the other belligerent to retaliate. But in the case of the Berlin Decree, it had not only not been acquiesced in by America, but there was no proof of that part of it being executed which alone was a violation of the law of nations, namely, capturing neutrals on the high seas, for violating the terms of the decree. He contended, therefore, that on neither of these grounds was there any justification of the Orders in Council. His ldp. commented on the Note of Mr. Canning to the American ministers, stating, that it was the duty of the neutral to endeavour to procure the revocation of the obnoxious decrees, a doctrine which he considered as tending to produce endless warfare.
The Earl of Mulgravecontended, that the French government having endeavoured to execute its decree of blockade against this country, by the confiscation of all neutrals conveying British produce or manufactures, or trading from the ports of this country, it became the duty of this government to adopt some counteracting measure, which should force the enemy to raise the blockade of this country. That which had been resorted to, was the most mitigated measure that could be adopted with a view to the continuance of neutral trade, and compelling the enemy to receive neutral vessels into his ports trading from this country. If the French decree and the Orders in Council were both executed, then of course there could be no trade between this country and that part of the continent of Europe under the influence of the enemy, some injury would result to us, but the greatest privations must be indured by the enemy. With respect to Mr. Canning's Note, his ldp. referred to the Note of lord Howick, stating that the measures adopted by the Order in Council of the 7th of Jan. would be continued till the decree of the French government was formally repealed, for the purpose of proving that the language in this note was similar to that used by Mr. Canning. His lordship deprecated the conduct adopted by noble lords on the other side, in discussing different parts of the Orders, and called upon them to discuss the whole policy of the measure.
Lord Aucklanddeprecated a war with America, which he considered one of the
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worst misfortunes that could befal the country, and which he thought the Orders in Council tended to produce.
Lord Redesdalecontended that the Orders in Council of the 7th of Jan. and those of the 11th and 25th of Nov. were founded on the same principles, and were equally consistent with the law of nations.
The Earl of Lauderdaledeprecated the mode of argument adopted by the noble and learned lord, by justifying one measure by another. He contended, that the information on the table not only did not prove an increased rigour in the execution of the French decree, but that a great part of it rather proved a relaxation of the provisions of that decree, and he believed, that his noble friends, had they continued in administration, would rather upon such information have been inclined to revoke the order of the 7th of Jan. than to have resorted to any harsher measure. As to the objection, that they discussed parts of the Orders, each part formed a question of the greatest magnitude to the country, and if they were not all discussed together, it was the fault of noble lords on the other side, who had refused to go into a committee on the Orders in Council. A noble duke had quoted the letter of his noble friend to Mr. Rist, to shew that he threatened to put the coasts of the enemy into a state of blockade, as a matter of retaliation. If he had proceeded but four or five words farther, he would have seen that the noble lord's words were, "that G. Britain would have enforced such blockade by its maritime superiority," a thing which made the measure legitimate, and consistent with the law of nations; and there was not one word to shew that they meant it in mere retaliation.
The Earl of Westmorelandsaid, that noble lords made the inconsistencies of which they complained. They would not divide the question of the Orders in Council into two points of view, in which it ought to be considered—into that which the crown did from its prerogative of war, and what was agreeable to the municipal law of the land.—In adverting to America, he warmly contended that the measures of the late government caused that irritation which appeared in the disposition and councils of that country; and concluded by expressing a sentiment of amity and friendship towards that country, whose very existence he considered to depend upon the greatness and prosperity of this.
Earl Greyvindicated the late govern-

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ment from the aspersions that had been thrown upon them, by asserting that the Order of the 7th Jan. was an act of retaliation, and that it avowed the principle upon which the Order in Council of the 11th Nov. was founded. He distinctly shewed, that there was not the slightest similiarity, and he strongly animadverted on the disingenuous manner in which a noble and learned lord had partially quoted and misrepresented his note to Mr. Rist. He also explained the course of proceeding which had been taken with respect to America, and shewed that the declarations made to them by the late government, had been satisfactory, as would have been proved to the house, if the Answer to Mr. Madison had been laid upon the table. He observed, on the reparation made by the present ministers for the affair of the Chesapeake, that it had at least been tardy, since several months had elapsed before the departure of Mr. Rose, and he expressed his fears, that at the very time they were now debating the Orders in Council, as they applied to America, ministers might be in possession of the determination of the American government on the point.
Lord Hawkesburyentered at length into the pretended distinction between the Order of the 7th Jan. and the late Orders. He declared that he could not discover any difference in principle, and scarcely any difference in language. When noble lords said it was not an act of retaliation, they should look back to the Papers, where it was distinctly stated to be in retaliation of the enemy's Decree. But neither that measure nor the present, though in their consequences they touched neutrals, could be said to be against neutrals. They were against the enemy, and it was only by their consequences that they affected neutrals. This was the nature of all belligerent acts. A measure was taken by the enemy in hostility to us, and which in its result affected neutrals; we retaliated on the enemy and that also affected neutrals; but surely they could only complain of the original aggressor. With respect to the tardy reparation made to America for the affair of the Chesapeake, they had made instant reparation, even before any remonstrance or complaint was made. They expected that the American ministers would have been intrusted to settle the business here. And so they were; but their instructions were to mix so many other matters with it, that it was found to be impossible,
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and so at length they determined to send Mr. Rose to America. He defended the measure of the Orders in Council as indispensible on our part,and argued that the profs of the submission of neutrals to the Decree of the French were clear and manifest. The answer of M. Decres to the application of Mr. Asmstrong was by no means satisfactory. He stated only his own opinion, whereas he ought to have given the explanation of the government.
Lord Grenvillecombatted the arguments on the other side. His lordship reviewed the decrees of France against the trade of this country, and cited the few instances in which they had been fully enforced: he admitted the right of fair retaliation, provided it did not extend to the injury of neutral powers. He adverted to the calamities which must arise to our merchants and manufacturers by enforcing these orders in council; and the mischievous consequences to our West India colonies, should the differences between this country and America long subsist; and concluded, by advising his majesty's ministers to adopt those measures now that would be considered as acts of generosity and conciliation towards that country, rather than wait for the time when they must adopt them through necessity.
The Earl of Gallowaycontended, that the justification of ministers might be drawn from the speeches of noble lords on the other side of the house, who all made the reservation that the maintenance of our maritime rights ought to be paramount to every other consideration. The Orders in Council, he considered a just and a wise measure, which should therefore have his support.—The house then divided—For the

previous ques

66,

Proxies 71—137

Against it

24,

Proxies 23—47

Majority.

—90.