The immediate crisis called first for attention. Gallatin held that the Non-intercourse Act necessarily revived from the moment the supposed fact on which alone its suspension rested was shown not to have taken place. The remoter problem of Jackson’s mission seemed to the secretary simpler than the question of law:[84]—
“If we are too weak or too prudent to resist England in the direct and proper manner, I hope at least that we shall not make a single voluntary concession inconsistent with our rights and interest. If Mr. Jackson has any compromise to offer which would not be burdened with such, I shall be very agreeably disappointed. But judging by what is said to have been the substance of Mr. Erskine’s instructions, what can we expect but dishonorable and inadmissible proposals? He is probably sent out like Mr. Rose to amuse and to divide; and we shall, I trust, by coming at once to the point, bring his negotiation to an immediate close.”
The President heard the news with as much perplexity as anger, and even tried to persuade himself that Canning would be less severe than he threatened. Madison still clung to hope when he first replied to Gallatin’s summons:[85]—
“The conduct of the British government in protesting the arrangement of its minister surprises one in spite of all their examples of folly. If it be not their plan, now that they have filled their magazines with our supplies and ascertained our want of firmness in withholding them, to adopt openly a system of monopoly and piracy, it may be hoped that they will not persist in the scandalous course in which they have set out. Supposing Erskine to have misunderstood or overstrained his instructions, can the difference between our trading directly and indirectly with Holland account for the violent remedy applied to the case? Is it not more probable that they have yielded to the clamors of the London smugglers in sugar and coffee, whose numbers and impudence are displayed in the scandalous and successful demand from their government that it should strangle the lawful trade of a friendly nation lest it should interfere with their avowed purpose of carrying on a smuggling trade with their enemies? Such an outrage on all decency was never before heard of even on the shores of Africa.”
Madison exaggerated. The outrage on decency committed by the British government in May, 1809, was on the whole not so great as that of Sir William Scott’s decision in the case of the “Essex” in July, 1805; or that of the blockade of New York and the killing of Pierce in April, 1806; or that of Lord Howick’s Order in Council of January, 1807, when the signatures to Monroe’s treaty were hardly dry; or that of Spencer Perceval’s Orders in November, 1807, and the speeches made in their defence; or the mission of George Henry Rose in the winter of 1807–1808; or Erskine’s letter of February 23, or Canning’s letters of September 23, 1808,—for all these left the United States in a worse position than that created by the disavowal of Erskine. Indeed, except for the disgrace of submitting to acts of illegal force, the United States stood in a comparatively easy attitude after the orders of April 26, 1809, so long as Napoleon himself enforced within his empire a more rigid exclusion of neutral commerce than any that could be effected by a British blockade.
“Still, I cannot but hope,” continued Madison, “on the supposition that there be no predetermined hostility against our commerce and navigation, that things may take another turn under the influence of the obvious and striking considerations which advise it.”
The hope vanished when Erskine’s instructions became known, and was succeeded by consternation when the public read the reports made by Erskine and Canning of the language used by Madison, Gallatin, and Pinkney. For the first time in this contest, Englishmen and Americans could no longer understand each other’s meaning. Erskine had so confused every detail with his own ideas, and Canning’s course on one side the Atlantic seemed so little to accord with his tactics on the other, that neither party could longer believe in the other’s good faith. Americans were convinced that Canning had offered terms which he intended them to refuse. Englishmen were sure that Madison had precipitated a settlement which he knew could not be carried out. Madison credited Canning with fraud as freely as Canning charged Madison with connivance.
“I find myself under the mortifying necessity of setting out to-morrow morning for Washington,” wrote Madison to Jefferson, August 3.[86] “The intricate state of our affairs with England produced by the mixture of fraud and folly in her late conduct, and the important questions to be decided as to the legal effect of the failure of the arrangement of April on our commercial relations with her are thought by the heads of departments to require that I should join them.... You will see by the instructions to Erskine, as published by Canning, that the latter was as much determined that there should be no adjustment as the former was that there should be one.”
The President remained three days in Washington in order to sign, August 9, a Proclamation reviving the Non-intercourse Act against Great Britain. On the same day the Secretary of the Treasury enclosed this Proclamation to the Collectors of Customs in a circular, with instructions not to enforce the penalties of the law against vessels entering American ports on the faith of Erskine’s arrangement. This done, Madison returned to Montpelier, August 10, leaving Erskine to exchange apologetic but very unsatisfactory explanations with Robert Smith and Gallatin.
The Proclamation of August 9 was sharply criticised, and with reason; for Congress had given the President no express authority to revive the Non-intercourse Act, and he had clearly exceeded his powers, if not in the Proclamation which revived the Act, then certainly in the original Proclamation of April 19, which set it aside. Even this stretch of authority hardly equalled Gallatin’s assumption of the power to admit what vessels he pleased without regard to the Non-intercourse Act. Yet right or wrong the President had no choice but to use all the powers he needed. Evidently his original mistake in opening intercourse was a greater stretch of authority than any subsequent act could be, except that of leaving it open after the mistake was admitted. Sullenly and awkwardly the Government restored some degree of order to its system, and then President and Cabinet scattered once more, leaving the village of Washington to the solitude of August and September.