“As it appears at the same time, that in making this offer his Britannic Majesty derives a motive from the equality now existing in the relations of the United States with the two belligerent Powers, the President owes it to the occasion and to himself to let it be understood that this equality is a result incident to a state of things growing out of distinct considerations.”
If Madison knew precisely what “distinct considerations” had led Congress and the country to that state of things to which the Non-intercourse Act was incident, he knew more than was known to Congress; but even though he owed this statement to himself, so important an official note might have expressed his ideas more exactly. “A result incident to a state of things growing out of distinct considerations” was something unusual, and to say the least wanting in clearness, but seemed not intended to gratify Canning.
The second point challenged sharper criticism.
“With this explanation, as requisite as it is frank,” Smith’s note continued, “I am authorized to inform you that the President accepts the note delivered by you in the name and by the order of his Britannic Majesty, and will consider the same with the engagement therein, when fulfilled, as a satisfaction for the insult and injury of which he has complained. But I have it in express charge from the President to state that while he forbears to insist on the further punishment of the offending officer, he is not the less sensible of the justice and utility of such an example, nor the less persuaded that it would best comport with what is due from his Britannic Majesty to his own honor.”
According to Robert Smith’s subsequent account, the last sentence was added by Madison in opposition to his secretary’s wishes.[59] One of Madison’s peculiarities showed itself in these words, which endangered the success of all his efforts. If he wished a reconciliation, they were worse than useless; but if he wished a quarrel, he chose the right means. The President of the United States was charged with the duty of asserting in its full extent what was due to his own honor as representative of the Union; but he was not required, either by the laws of his country or by the custom of nations, to define the conduct which in his opinion best comported with what was due from his Britannic Majesty to the honor of England. That Erskine should have consented to receive such a note was matter for wonder, knowing as he did that Kings of England had never smiled on servants who allowed their sovereign’s honor to be questioned; and the public surprise was not lessened by his excuse.
“It appeared to me,” he said,[60] “that if any indecorum could justly be attributed to the expressions in the official notes of this Government, the censure due would fall upon them; and that the public opinion would condemn their bad taste or want of propriety in coldly and ungraciously giving up what they considered as a right, but which they were not in a condition to enforce.”
Under the impression that no “intention whatever existed in the mind of the President of the United States to convey a disrespectful meaning toward his Majesty by these expressions,” Erskine accepted them in silence, and Madison himself never understood that he had given cause of offence.
Having thus disposed of the “Chesapeake” grievance, Erskine took up the Orders in Council.[61] His instructions were emphatic, and he was in effect ordered to communicate these instructions in extenso to the President, for in such cases permission was equivalent to order. He disobeyed; in official sense he did not communicate his instructions at all. “I considered that it would be in vain,” he afterward said. This was his first exercise of discretion; and his second was more serious. After reading Canning’s repeated and positive orders to require from the American government “a distinct and official recognition” of three conditions, he decided to treat these orders as irrelevant. He knew that the President had no Constitutional power to bind Congress, even if Madison himself would patiently bear a single reading of three such impossible requirements, and that under these circumstances the negotiation had better never begin than end abruptly in anger. Erskine would have done better not to begin it; but he thought otherwise. Under more favorable circumstances, Monroe and Pinkney had made the same experiment in 1806.
Canning offered to withdraw the Orders in Council, on three conditions precedent:—
(1) That all interdicts on commerce should be revoked by the United States so far as they affected England, while they were still to be enforced against France. When Erskine submitted this condition to Robert Smith, he was assured that the President would comply with it, and that Congress would certainly assert the national rights against France, but that the President had no power to pledge the government by a formal act. Erskine decided to consider Canning’s condition fulfilled if the President, under the eleventh section of the Non-intercourse Act, should issue a proclamation renewing trade with Great Britain, while retaining the prohibition against France. This settlement had the disadvantage of giving no guarantee to England, while it left open the trade with Holland, which was certainly a dependency of France.