“As has been heretofore stated to you, a satisfactory provision for restoring the property lately surprised and seized, by the order or at the instance of the French government, must be combined with a repeal of the French edicts with a view to a non-intercourse with Great Britain, such a provision being an indispensable evidence of the just purpose of France toward the United States. And you will moreover be careful, in arranging such a provision for that particular case of spoliations, not to weaken the ground on which a redress of others may be justly pursued.”
The instructions of June 5 and July 5 went their way; but although Armstrong duly received them, and wrote to Cadore a letter evidently founded on the despatch of June 5, he made no express allusion to his instructions in writing either to the French government or to his own. Although he remained in Paris till September 12, and on that day received from Cadore an explicit avowal that the sequestered property would not be restored, but that “the principles of reprisal must be the law,” he made no protest.
Equally obscure was the conduct of Madison. Cadore’s letter of August 5 announcing that the French Decrees were withdrawn, on the understanding that the United States should by November 1 enforce their rights against England, reached Washington September 25, but not in official form. Nothing is known of the impression it produced on the Cabinet; nothing remains of any discussions that ensued. If Gallatin was consulted, he left no trace of his opinion. Hamilton and Eustis had little weight in deciding foreign questions. Robert Smith within a year afterward publicly attacked the President for the course pursued, and gave the impression that it was taken on Madison’s sole judgment. The President’s only authority to act at all without consulting Congress depended on the words of the law of May 1: “In case either Great Britain or France shall, before the third day of March next, so revoke or modify her edicts as that they shall cease to violate the neutral commerce of the United States, which fact the President of the United States shall proclaim by proclamation,” the non-intercourse of March 1, 1809, should at the end of three months revive against the nation which had not revoked its edicts. Under this authority, President Madison was required by Cadore’s letter to proclaim that France had revoked or modified her edicts so that they ceased to violate the neutral commerce of the United States.
Madison was doubtless a man of veracity; but how was it possible that any man of veracity could proclaim that France had revoked or modified her edicts so that they ceased to violate the neutral commerce of the United States when he had every reason to think that at least the Bayonne Decree, barely six months old, would not be revoked, and when within a few weeks he had officially declared that the revocation of the Bayonne Decree was “an indispensable evidence of the just purpose of France” preliminary to a non-intercourse with England? If the President in June and July thought that provision indispensable to the true intent of the law which he aided in framing, he would assume something more than royal dispensing power by setting the indispensable provision aside in November.
This objection was light in comparison with others. The law required the President to proclaim a fact,—that France had revoked or modified her decrees so that they ceased to violate the commerce of America. Of this fact Cadore’s letter was the only proof; but evidently Cadore’s letter pledged the Emperor to nothing. “I am authorized to declare to you,” wrote Cadore, “that the Decrees of Berlin and Milan are revoked, and that after November 1 they will cease to have effect, on the understanding that in consequence of this declaration ... the United States, conformably to the Act you have just communicated, shall cause their rights to be respected by the English.” Napoleon not only reserved to himself the right of judging whether the measures to be taken by the United States should “cause their rights to be respected,” but in doing so he reversed the process prescribed by the Act, and required the President to enforce his rights before the Emperor should withdraw his decrees.
From the standpoint of morality, perhaps the most serious objection of all was the danger of sacrificing national and personal self-respect by affecting to regard as honest a promise evidently framed to deceive, and made by a man whom Madison habitually characterized in terms that implied, to speak mildly, entire want of confidence. If America would consent to assert her rights against England in no way more straightforward than this, she might perhaps recover her neutral profits, but hardly her national self-respect.
A few months afterward, when Robert Smith gave to the world the amusing but not wholly new spectacle of a Secretary of State attacking his own President for measures signed by his own name, Joel Barlow wrote for the “National Intelligencer” a defence of the President’s course, in which he gave reasons supplied by Madison himself for holding that Cadore’s letter satisfied the conditions of Macon’s Act.
To the first objection, founded on the Rambouillet and Bayonne Decrees, Barlow replied that the American government had habitually distinguished between maritime edicts violating neutral rights and municipal edicts attacking private property. “We could not in strictness arraign such municipal spoliations under the head of violations of our neutral rights, nor of consequence regard them as contemplated by the Acts of Congress defining the acts whose revocation would satisfy the conditions of that Act.” This reasoning, though not quite convincing, might have had weight but for two objections. First, the President himself, in June and July, had declared these municipal spoliations to be contemplated by Macon’s Act as “an indispensable evidence of the just purpose of France;”[255] and, second, the President in November notified Armstrong, that,[256] “in issuing the proclamation, it has been presumed that the requisition contained in that letter [of July 5] on the subject of the sequestered property will have been satisfied.” Barlow’s idea of a municipal spoliation, independent of the jus gentium, was an afterthought intended to hide a miscalculation.
One other argument was advanced by Barlow. Erskine’s arrangement having been accepted without question of previous British spoliations, not only did impartiality require the same treatment for France, but a different rule “would have led to the embarrassment of obliging the Executive, in case the British government should be desirous of opening a free trade with the United States by repealing its orders, to make it a prerequisite that Great Britain also should indemnify for her respective spoliations.”
Such a prerequisite would have been proper, and ought to have been imposed; but Barlow’s argument was again answered by the President himself, who actually insisted on the demand against France, and assumed the demand to be satisfied. If this was partiality to England, the President was guilty of it. Probably at the time he saw reasons for thinking otherwise. The secrecy, the continuance, the pretext of the French seizures, their municipal and vindictive character and direct Imperial agency seemed to set them apart from those of England, which, although equally illegal, were always in the form of lawful trial and condemnation.