While Congress recoiled from the problem of West Florida, and by a single voice decreed that the United States Bank should cease to exist, nothing had yet been decided in regard to England and France.
This delay was not due to negligence. From the first day of the session anxiety had been great; but decision, which even in indifferent matters was difficult for the Eleventh Congress, became impossible in so complicated a subject as that of foreign relations. The President’s proclamation named Feb. 2, 1811, as the day when intercourse with England was to cease. Congress had been six weeks in session, and had barely a fortnight to spare, when at last the subject was brought before the House, January 15, by John W. Eppes of Virginia, chairman of the committees of Ways and Means and Foreign Relations, who reported a bill for regulating commercial intercourse with Great Britain. As a third or fourth commercial experiment,—a companion to the partial Non-intercourse Act of April, 1806; the embargo of December, 1807; and the total Non-intercourse Act of March, 1809,—the new bill promised more discontent in America than it was ever likely to create in England. The measure was not a non-intercourse, but a non-importation, severe and searching, in some ways almost as violent as the embargo; and was to be passed by a Congress elected expressly for the purpose of repealing the embargo.
The proposed bill lay on the Speaker’s table. February approached, and still Congress did nothing; yet this delay substituted in place of the Constitution a system of government by proclamation. In two instances involving not only foreign war, but also more than half the foreign trade and several principles of fundamental law, the country depended in February, 1810, on two Executive proclamations, which rested on two assertions of fact that no one believed to be true. In spite of Madison and his proclamations, West Florida was not a part of Louisiana; Napoleon had not withdrawn his decrees,—and Congress was unwilling to support either assertion.
Unless the Berlin and Milan Decrees were repealed Nov. 1, 1810, as Cadore’s letter was held to promise, neither President nor Congress could reasonably take the ground that Cadore’s letter, of itself, revived the non-intercourse against England. The United States had the right to make war on England with or without notice, either for her past spoliations, her actual blockades, her Orders in Council other than blockades, her Rule of 1756, her impressments, or her attack on the “Chesapeake,” not yet redressed,—possibly also for other reasons less notorious; but the right to make war did not carry with it the right to require that the world should declare to be true an assertion which the world knew to be false. Unless England were a shrew to be tamed, President Madison could hardly insist on her admitting the sun to be the moon; and so well was Congress aware of this difficulty that it waited in silence for two months, until, February 2, the President’s proclamation went into effect; while the longer Congress waited, the greater became its doubts.
Only one proof could be admitted as sufficient evidence that the French Decrees were repealed. The Emperor had violated American rights by decree, and until he restored them by decree no municipal order of his subordinates could replace the United States in the position they claimed. For this reason the President and Congress waited anxiously for news from Paris to November 1, when the decree of appeal should have issued. The news came, but included no decree. The President then assumed that at least the Decrees of Berlin and Milan would not be enforced in France after November 1; but letters from Bordeaux, dated Dec. 14, 1810, brought news that two American vessels which entered that port about December 1 had been sequestered. No other American vessels were known to have arrived in French ports except with French licenses.
This intelligence was a disaster. The President communicated it to Congress in a brief message;[273] January 31; and so serious was its effect that on February 2, when the non-intercourse revived by proclamation, Eppes rose in the House and moved to recommit his bill on the ground that the behavior of France gave no excuse for action against England. “The non-intercourse went into operation to-day,” he said. “It had been considered by the Committee of Foreign Relations that in the present state of our affairs it would be better to provide for the relief of our own citizens and suspend the passage of the law for enforcing the non-intercourse until the doubts hanging over our foreign relations were dissipated.”
The opposition would have done well to let Eppes struggle with his difficulties as he best could without interference; but Randolph, who liked to press an advantage, professing a wish to relieve the President “from the dilemma in which he must now stand,” moved the repeal of the Non-intercourse Act of March 1, 1809,—a step which if taken would have repealed also the President’s proclamation. The motion brought on a premature debate. Out-reasoned, out-manœuvred, and driven to the wall, the Republicans could only become dogged and defiant. They took the ground that retreat was impossible. Eppes avowed that he considered the national faith pledged to France; and although he would not enforce the non-intercourse against England until he had certain knowledge that the French Decrees were withdrawn, he must have unequivocal evidence that France had “violated the faith pledged to this nation” before he would vote to repeal the law. Apologetic throughout, he admitted that indemnity for the French seizures had always been considered an essential part of any arrangement with Napoleon, yet held that the national faith was pledged to that arrangement, although an essential part of the Emperor’s obligation was omitted. Every speaker on the Republican side, with the exception of Dr. Samuel L. Mitchill of New York, asserted with increasing vehemence that the Act of May 1, 1810, created a contract with France, made perfect by Cadore’s letter of August 5. This legal view of Napoleonic statesmanship had much force with the Republican lawyers of the Eleventh Congress, although its necessary consequence followed its announcement; for since law, whatever lawyers might sometimes seem to assert, was not politics,—differing especially in the point that law had a sanction of force, while international politics had none,—and since Napoleon could in no way be controlled by any sanction, and still less be trusted, the so-called contract, while binding on America, in no way bound France.
Even Langdon Cheves, the new member from South Carolina, maintained that the United States could no longer break their compact with the Emperor. “Was it not better,” he asked, “that the nation should preserve all it had left,—its good faith? Its property and honor had been sacrificed, and all that was left was its good faith.” Cheves admitted that his doctrine of “good faith” had an ulterior motive, which was to force a conflict with England. “He had never been satisfied with the wisdom or propriety of the law of May last in any other view than one. He believed it would make the country act a part worthy of its character; it would precipitate us on a particular enemy,—and this, he believed, the country required.” He went so far as to assert “that the decrees were removed, and that if the violation of our rights continued to-morrow, yet the decrees were so revoked on the 1st of November last as that they did cease to violate our commerce. If our rights are now violated, it is a violation independent of the decrees, by the mere will of an arbitrary and powerful government.” Rhea of Tennessee went further still. “If any compact,” said he, “can be of greater dignity than a treaty, the law of May 1, made by the constituted authorities of the United States, and agreed to and acted on by the constituted authorities of France, forms that compact.”
When one nation is agreed in the policy of fighting another any pretext will answer, and Government need not even be greatly concerned to give any reason at all; but in the condition of America in 1810, grave dangers might result from setting aside the four or five just issues of war with England in order to insist on an issue that revolted common-sense. If ingenuity had been provoked to suggest the course which would rouse most repugnance in the minds of the largest possible number of Americans, no device better suited for its purpose than the theory of Eppes, Cheves, and Rhea could have been proposed; and if they wished to exasperate the conscience of New England in especial to fanatical violence, they came nearest their end by insisting on an involuntary, one-sided compact, intended to force Massachusetts and Connecticut to do the will of the man whom a majority of the people in New England seriously regarded as anti-Christ. Even on the floor of the House no Republican could stand a moment before John Randolph without better protection than this compact with France, which France herself did not recognize.
“This is the 2d of February,” said Randolph. “The time has arrived, the hour now is, when gentlemen by their own arguments, if their arguments be just, are bound to fulfil the contract, which I do not undertake to expound, but which they say has been made—certainly in a manner very novel to our Constitution—between the House of Representatives on the one hand and Bonaparte on the other,—a bargain which, like the bargains of old with the Devil, there is no shaking off. It is a bargain which credulity and imbecility enter into with cunning and power.... I call upon gentlemen to make good their promise to his Majesty the Emperor of the French and King of Italy; to redeem their pledge; to cut off in fact nearly the whole of our existing trade in return for the liberty of trading by license from the three favored ports which it has pleased his Imperial Majesty to privilege. No man believes—I beg pardon, sir; I was going to say, but I will not, that no man believes one syllable of this breach of faith on our part. I have too much confidence in the honor of gentlemen not to be convinced that they have persuaded themselves to this effect, although it is incomprehensible to me. Bound, sir, to whom? To Bonaparte? Bound to Shylock? Bound to render up not only the pound of flesh, but every jot of blood in the Constitution? Does he come forward with his pockets swelled with American treasure; do his minions, fattened upon our soil, whether obtained by public rapine or private extortion, do they come forward, calling upon us to make sacrifices of our best interest on the shrine of their resentments, in the name, too, of good faith?”