“This question, however, need not now be argued to the extent which was necessary to justify the assertion of the late Government; because whatever might be the doubts upon it when the decree of France first issued, and before it was known to what extent neutrals would resist or acquiesce in it, since those neutrals have acquiesced in it, or at least have not resisted or resented it to the extent of obtaining a formal recall of the decree and an open renunciation of the principle which dictated it, nor the abandonment of the practices which flow from it,—they by their acquiescence and submission have given to Great Britain a right to expect from them (when her interests require the exertion of measures of correspondent efficacy) a forbearance similar to that which they have shown toward her enemy.”
If Perceval’s two opening premises gave a strange idea of English statesmanship, his third was little creditable to the English bar. He took the ground that England might do what she would with American commerce, because America, whatever effort she might have made, had not already forced Napoleon to recall a decree from the application of which the United States notoriously had till within six weeks been exempted. Lord Castlereagh’s doctrine that America’s exemption aggravated her offence was a wide-minded argument by the side of Perceval’s assertion that America’s acquiescence was proved by the French decree itself. Considering that America had in this sense acquiesced in Sir William Scott’s decisions and the wholesale confiscation of her commerce, in the impressment of her native citizens and their compulsory service in the British navy, in the blockade of New York, in Fox’s paper blockade of the German coast, in Lord Howick’s Order in Council, and perhaps even in the “Chesapeake” outrage,—Perceval’s argument must have seemed convincing to Napoleon, if not to President Jefferson. If the law of nations thus laid down was sound, the continued presence of American citizens in British ships of war was alone sufficient proof of American acquiescence in impressment to warrant Napoleon in acting without regard to neutral rights. From a neutral or French point of view Perceval’s reasoning not only conceded the legality of the Berlin Decree, but barred his own right of retaliation, since England, as the first and worst offender, could not properly profit by her own misdeeds.
There Perceval rested his case, so far as concerned the law. His three grounds were—(1) That as a neutral the United States could complain of no retaliation between belligerents, unless this retaliation was avowedly adopted with a view to injure neutrals; (2) That America ceased to be a neutral from the moment that she wished England to observe rules which France refused to recognize, and which America did not at once compel France to recognize; and (3) That the continued existence and recent enforcement of the Berlin Decree were sufficient proof of the neutral’s acquiescence.
Thus a measure of vital consequence to England was proposed to the Cabinet on grounds which would hardly have been sufficient to warrant an injunction to restrain a private nuisance. So far as argument was concerned, Perceval had no more to say. Having in his opinion established his legal right to do what he pleased with American commerce, he next discussed the policy and extent of the proposed interference. His first idea was comparatively moderate.
“If we actually prohibit all intercourse between neutrals and the enemies’ colonies,” he continued, “or between neutrals and the enemies’ continental possessions, it would be such a severe blow upon the trade of America as might make it no unreasonable choice on her part to prefer the dangers and chances of war to such a restriction upon her trade. I should therefore wish to leave such advantages still to neutral trade as to make it quite clear to be the policy of America, if she is wise, to prefer the neutral trade that will be left to her to the total stoppage of her trade with the enemy and with ourselves which a war might occasion.... With this view, therefore, I would recommend to relax thus far in the rigor of our retaliatory prohibitions as to leave to neutral nations the right of trading directly in articles of their own growth, produce, and manufacture exported in their own vessels to enemies’ countries, and of importing from the enemies’ countries for their own use articles the growth, produce, and manufacture of such enemies’ countries; that is, leaving to them free the direct trade between the enemy and themselves in articles of their respective growth, etc., but to prohibit the re-exportation of any articles the growth, etc., of the enemies’ countries or their colonies, or the carriage of them to any other country but their own.”
Perceval’s first suggestion was far from being so radical as the measure at last adopted. He proposed to cut off France from her colonies and force all trade between those colonies and Europe to pass through British hands; but an American ship laden with American cotton or wheat might still sail from the United States direct to France and return to the United States, or might carry provisions and lumber to Martinique and Cuba, carrying French or Spanish sugar back to New York. This so-called “direct” trade was to be untouched; the “indirect” or carrying trade between the West Indies and the continent of Europe was to be permitted only under special licenses to be issued by British authorities.
In this shape Perceval sent his suggestions to the Prime Minister, the Duke of Portland, who gave his entire approval to the principle of retaliation as against France, but wished to retaliate against France alone:[63] “Considering the unpopularity which, it cannot be denied, we are held in throughout the Continent, I very much doubt whether we should limit this intercourse beyond the actual dominions of France. I am well aware that by admitting the intercourse with Holland and Spain, France will obtain circuitously those supplies which she will stand in want of.”
This disadvantage, the Duke thought, could be largely compensated by a rigid observance of the navigation laws. The Duke’s opinion was very short, and barely hinted at the American question.
John Fane, Earl of Westmoreland, Lord Privy Seal,—Sot Privé, or Privy Fool, as Canning afterward nicknamed him by a pun on the French word sceau,[64]—gave next his written opinion on the subject.[65] Going beyond either Perceval or Portland, he urged the expediency of stopping all trade with the enemy except through the medium of England,—“the effect of which must be either to distress them to such a degree as to induce a relaxation of their decrees, or to cause a great trade from this country. Its effect in case of an extension of hostility can certainly not be ascertained; but I am disposed to think that we cannot carry on war allowing our enemy advantages of commerce as in peace, and that if we only do what is right we must take our chance for the consequences.”
The next opinion was apparently that of Lord Hawkesbury, the Home Secretary, who was also clear that Perceval’s plan wanted energy. While supporting the Duke of Portland in narrowing its scope to France, or at the utmost to Holland, he favored harsher treatment of America:[66]