“It is indeed quite astonishing,” he said,[263] “to hear the word ‘retaliation’ twisted and perverted in a manner equally repugnant to grammar and common-sense.... It is a new application of the term, that if A strikes me, I may retaliate by striking B.... I cannot, my Lords, conceive anything more preposterous and senseless than the idea of retaliation upon a neutral on whom the decree has never been executed, because it is only by its execution on him that we can be injured.”
Erskine supported his positions by a long professional argument. Lord Chancellor Eldon replied by developing international law in a direction till then unexplored.[264]
“I would beg the House to consider what is meant by the law of nations,” he began. “It is formed of an accumulation of the dicta of wise men in different ages, and applying to different circumstances, but none resembling in any respect such a state of things as at present exists in the face of the world. Indeed, none of the writers upon the subject of this law appear to have such a state in their contemplation. But yet nothing is to be found in their writings which does not fully warrant the right of self-defence and retaliation. Upon that right the present ministers acted in advising those Orders in Council, and upon the same right their predecessors issued the order of the 7th of January.”
The doctrine that because international law wanted the sanction of a well-defined force it was, strictly speaking, no law at all, was naturally favored by the school of common law; but Lord Eldon’s doctrine went further, for he created a sanction of one-sided force by which international law might supersede its own principles. His brother, Sir William Scott, carried out the theory by contending in the House of Commons that “even if the French Decree was not acted upon (which rested with the other party to prove), it was nevertheless an injury, because it was an insult to the country,”[265]—a dictum which could hardly find a parallel as the foundation for an attack on the rights and property of an innocent third party.
Erskine’s Resolutions were of course rejected; but meanwhile the merchants of the chief cities began to protest. As the bill for carrying the orders into effect came to its engrossment, March 7, the resistance became hot. March 11 the bill passed the House by a vote of 168 to 68; but Brougham had yet to be heard, and no ordinary power was capable of suppressing Henry Brougham. As counsel for the American merchants of Liverpool, Manchester, and London, he appeared March 18 at the bar of the House, and for the next fortnight occupied most of its time in producing testimony to prove that the orders had ruinously affected the commercial interest. April 1 he summed up the evidence in a speech of three hours, which James Stephen thought pernicious and incendiary.[266] Perceval was obliged to produce witnesses on the other side; and Stephen, who had been brought into Parliament for the purpose, devoted himself to the task of proving that the orders had as yet been allowed no chance to produce any effect whatever, and that the commercial distress was due to the recent enforcement of the Berlin Decree. That much distress existed no one denied; but its causes might well be matter of dispute; and Parliament left the merchants to decide the point as they pleased. Brougham’s inquiry had no other effect.
Pinkney’s dealings with Canning were equally fruitless. January 26, when Pinkney received official news of the embargo, he went instantly to Canning, “who received my explanations with great apparent satisfaction, and took occasion to express the most-friendly disposition toward our country.”[267] Pinkney used this opportunity to remonstrate against the tax imposed on American cotton by the Orders in Council. A week afterward Canning sent for him, and gravely suggested a friendly arrangement. He wished to know Pinkney’s private opinion whether the United States would prefer an absolute interdict to a prohibitory duty on cotton intended for the continent.[268] The sting of this inquiry rested not so much in the alternative thus presented as in the seriousness with which Canning insisted that his overture was a concession to America. With all his wit, as Lord Castlereagh soon had reason to learn, Canning could not quite acquire tact or understand the insults he offered. Pinkney tried, with much good temper, to make him aware that his offer was in bad taste; but nothing could stop him in the path of conciliation, and February 22 he addressed to Pinkney a note announcing that the British government meant to prohibit the export of American cotton to the continent of Europe.
“I flatter myself,” he continued,[269] “that this alteration in the legislative regulations by which the Orders of Council are intended to be carried into execution, will be considered by you as a satisfactory evidence of the disposition of his Majesty’s government to consult the feelings as well as the interests of the United States in any manner which may not impair the effect of that measure of commercial restriction to which the necessity of repelling the injustice of his enemies has compelled his Majesty reluctantly to have recourse.”
“One object of all this is certainly to conciliate us,” wrote Pinkney to Madison.[270] On the day of Canning’s note Spencer Perceval carried out the promise by moving the House for leave to bring in a bill prohibiting the export of cotton, except by license. At the same time he extended the like prohibition to Jesuit’s bark, or quinine. Impervious to indignation and ridicule,—caring as little for the laughter of Sydney Smith as for the wrath of Lord Grenville,—Perceval pushed all his measures through Parliament, and by the middle of April succeeded in riveting his restrictive system on the statute-book. No power short of a new political revolution could thenceforward shake his grasp on American commerce.
Yet Perceval felt and dreaded the effects of the embargo, which threatened to paralyze the healthiest industries of England. To escape the effects of this weapon Perceval would have made every possible concession short of abandoning his great scheme of restrictive statesmanship. March 26 he submitted to his colleagues a paper containing suggestions on this point.[271] “It must be admitted,” he began, “that it is extremely desirable that America should relax her embargo at least as far as respects the intercourse with this country.” The Americans submitted to it with reluctance, chiefly because they feared the seizure of their vessels in case England or France should declare war. To profit by this situation Perceval proposed a new order, which should guaranty the safety of every merchant-vessel, neutral or belligerent, on a voyage to or from a British port. The advantages of this step were political as well as commercial. The British ministry was disposed to meet the wishes of the Boston Federalists. Such an order, Perceval said, “would have the appearance of a friendly act on the part of this government toward America, and would increase the embarrassment and difficulties of that government in prevailing upon their subjects to submit to the embargo.”
Lord Bathurst approved the suggestion; Lord Castlereagh opposed it, for reasons best given in his own words:[272]—