Monroe was singularly unfortunate in diplomacy. His disasters came not in any ordinary form of occasional defeat or disappointment, but in waves and torrents of ill-luck. No diplomatist in American history, except Monroe and Pinkney, ever signed a treaty in flagrant contradiction to orders, and at the same time submitted to be told that the opposite party to the contract reserved a right to break it; but if any other man had taken such a step it would have answered for a lifetime, and his mortifications would have ended there. No one could assume that the British ministry would care to do more, pending the ratification of its own treaty. Fox’s successor, one of the most liberal Whig noblemen, having imposed on the United States terms which would have been hard as the result of war, with the addition that even these terms were conditional on a declaration of hostilities between the United States and France, the liberal Whigs might be supposed willing to wait for some new pretext before publicly tearing their own treaty to pieces.
If Monroe flattered himself that he had for the moment checked British aggression, he quickly learned his error. The treaty had been signed barely a week when a new Order in Council appeared, which surpassed any belligerent measure of the Tories.[291] Beginning with the premise that Napoleon’s Berlin Decree “would give to his Majesty an unquestionable right of retaliation, and would warrant his Majesty in enforcing the same prohibition of all commerce with France which that Power vainly hopes to effect against the commerce of his Majesty’s subjects,” the order added that King George felt himself bound “to retort upon them the evils of their own injustice,” and therefore “ordered that no vessel shall be permitted to trade from one port to another, both which ports shall belong to, or be in the possession of, France or her allies.” In other words the Whig ministers, ignoring their fresh treaty with the United States and even the note appended to it, declared that they would not wait for America to resent the Berlin Decree, but that United States vessels must in future, as a retort for that decree, be deprived of the right to sail from one European port to another. The custom had hitherto prevailed among American shippers of seeking a market according to ruling prices, partly perhaps at Bilbao or Bordeaux, partly at some other French or Mediterranean port. Lord Howick’s order of Jan. 7, 1807, which cut short this coasting privilege, was a blow to American commerce sharper than the famous decision of Sir William Scott in the case of the “Essex.” Its apparent effect was to double the cost and risk of neutral commerce, while incidentally it asserted a right to prohibit such trade altogether.
Unfortunately more remained behind. The new order was not only an act of violence; it was, according to the Tories, also one of meanness. On its face it purported to be a measure of retaliation, taken in order to retort upon France the evils of Napoleon’s injustice. In the Parliamentary debate four weeks afterward, when the order was attacked, all parties argued it as a matter of retaliation. The King’s advocate, Sir John Nicholls, who defended it, took the ground that for the moment no severer retaliation was needed; while Spencer Perceval and Lord Castlereagh held that Napoleon’s decree should have been retaliated in full.
“You might turn the provisions of the French decree against themselves,” said Perceval;[292] “and as they have said that no British goods should sail freely on the seas, you might say that no goods should be carried to France except they first touched at an English port. They might be forced to be entered at the custom-house, and a certain entry imposed, which would contribute to advance the price and give a better sale in the foreign market to your own commodities.”
Sir John Nicholls replied:[293]—
“It was not denied that some steps in retaliation were necessary; and the question was how far the steps that had been taken were adequate.... It was necessary to allow a fair trial to what ministers had adopted.”
All this seemed clear and frank; it was equivalent to saying that the rules of international law were henceforth to be laid aside, and that the doctrine of retaliation was to be the measure of England’s rights. Yet this was not the form in which Lord Howick addressed President Jefferson.
“His Majesty,” wrote Lord Howick to Erskine,[294] “with that forbearance and moderation which have at all times distinguished his conduct, has determined for the present to confine himself to the exercise of the power given him by his decided naval superiority in such a manner only as is authorized by the acknowledged principles of the law of nations.”
In Parliament the measure was represented as an extra-legal act, justified by the illegality of the Berlin Decree. In diplomacy it was represented as an act “authorized by the acknowledged principles of the law of nations.” The reason of the self-contradiction was evident. Only a week before this letter was written, the ministers had concluded a treaty with the United States involving the rights of neutrals, and had attached to it a note to the effect that if the United States failed to resist the Berlin Decree England would acquire the right to retaliate, but had not hinted that retaliation was intended until the case of acquiescence should happen. As the matter stood, the British government had no right to retaliate, but was bound to wait for America to act; and Lord Howick’s order, from that point of view, could not be defended.
From every other point of view the Order was equally indefensible; and within a year the Whigs were obliged to take the ground that it was not an act of retaliation at all, but an application of the Rule of 1756. Strange to say, this assertion was probably true. Unlikely as it seemed that Earl Grey, Lord Holland, and Lord Grenville could be parties to a transaction so evasive, their own admissions left no doubt that Napoleon’s Berlin Decree was the pretext, not the cause, of Lord Howick’s order; that Lord Howick’s true intention was to go one step further than Pitt in applying the Rule of 1756 against United States commerce; that he aimed only at cutting off the neutral trade at one end of the voyage, as Pitt had cut it off at the other.