Precisely on the Orders in Council Foster could offer no hope of concession or compromise. So far from withdrawing the orders, he was instructed to require that the United States should withdraw the Non-intercourse Act, under threat of retaliation; and he carried out his instructions to the letter. After protesting, July 2, against the seizure of West Florida, he wrote, July 3, a long protest against the non-importation.[40] His demand savored of Canning’s and Jackson’s diplomacy; but his arguments in its support were better calculated for effect, and his cry for justice claimed no little sympathy among men who shared in the opinion of Europe that France was the true object of attack, and that Napoleon’s overthrow, not the overthrow of England, was the necessary condition of restoring public order. Foster’s protest against including Fox’s blockade among the admittedly illegal Orders in Council, brought the argument to a delicate issue of law and fact.
“In point of date,” he said, “the blockade of May, 1806, preceded the Berlin Decree; but it was a just and legal blockade, according to the established law of nations, because it was intended to be maintained, and was actually maintained, by an adequate force appointed to guard the whole coast described in the notification, and consequently to enforce the blockade.”
In effect this argument conceded Madison’s principle; for the further difference between blockading a coast and blockading by name the several ports on a coast, was hardly worth a war; and the question whether an estuary, like the British Channel, the Baltic Sea, or Chesapeake Bay, could be best blockaded by a cruising or by a stationary squadron, or by both, called rather for naval than for legal opinion. Foster repudiated the principle of paper-blockades; and after showing that Fox’s blockade was defended only as far as it was meant to be legal, he made the further concession of admitting that since it had been merged in the Orders in Council, it existed only as a part of the orders; so that if the orders were repealed, England must either make Fox’s blockade effective, or abandon it. By this expedient, the issue was narrowed to the Orders in Council retaliatory on Bonaparte’s decrees, and intended to last only as long as those decrees lasted. Foster appealed to Napoleon’s public and official language to prove that those decrees were still in force, and therefore that the United States government could not, without making itself a party to Napoleon’s acts and principles, demand a withdrawal of the British Orders. If the orders were not to be withdrawn because they were illegal, they ought not to be withdrawn on the false excuse that Napoleon had withdrawn his decrees. Against such a demand England might reasonably protest:—
“Great Britain has a right to complain that ... not only has America suffered her trade to be moulded into the means of annoyance to Great Britain under the provisions of the French Decrees, but construing those decrees as extinct, upon a deceitful declaration of the French Cabinet, she has enforced her Non-importation Act against England. Under these circumstances I am instructed by my Government to urge to that of the United States the injustice of thus enforcing that Act against his Majesty’s dominions; and I cannot but hope that a spirit of justice will induce the United States government to reconsider the line of conduct they have pursued, and at least to re-establish their former state of strict neutrality.”
President Madison had put himself, little by little, in a position where he had reason to fear the popular effect of such appeals; but awkward as Madison’s position was, that of Monroe was many degrees worse. He had accepted office in April as the representative of Republicans who believed that Napoleon’s decrees were not repealed, and the objects of his ambition seemed to depend on reversing Madison’s course. In July he found himself in painful straits. Obliged to maintain that Napoleon’s decrees were repealed, he was reduced to sacrifice his own official agent in the effort. Foster reported, as a matter of surprise to himself, remarks of Monroe still more surprising to history.
“I have urged,” reported Foster, July 7,[41] “with every argument I could think of, the injustice of the Non-importation Act which was passed in the last session of Congress, while there were doubts entertained even here as to the repeal of the Berlin and Milan Decrees; but to my surprise I find it now maintained that there existed no doubt on the subject at the time of passing the Act, and Mr. Russell is censured by his Government for publicly averring that the ship ‘New Orleans Packet’ was seized under their operation,—not that it is denied, however, that she was seized under them by our construction. Mr. Monroe, indeed, though he qualified his blame of Mr. Russell by praising his zeal, yet allowed to me that much of their present embarrassment was owing to his statement.”
“It would be fatiguing to your Lordship,” continued Foster, “were I to describe the various shadows of argument to which the American minister had recourse in order to prove his statement of the decrees having been repealed in as far as America had a right to expect.”
These shadows of argument, however elaborately described, could be reduced to the compass of a few lines; for they all resulted in a doctrine which became thenceforward a dogma. Napoleon’s decrees, so viewed, had two characters,—an international, and a municipal. The international character alone could give the right of international retaliation; and the Emperor, since November 1, had ceased to enforce his edicts in this character. The municipal character, whether enforced or not, in no way concerned England.
Such was, indeed, Napoleon’s object in substituting customs regulations for the rules of his decrees in his own ports. After that change, he applied the decrees themselves to every other part of Europe, but made an apparent exception for American commerce with France, which was forced to conform to his objects by municipal licenses and prohibitory duties. Monroe took the ground that since November 2 the decrees stood repealed, and the “New Orleans Packet” had been seized under a “municipal operation” with which England had nothing to do. The argument, though perhaps casuistic, seemed to offer a sufficient excuse for England, in case she should wish to abandon her own system as she saw danger approaching; but it brought Monroe, who used it profusely, into daily mortification, and caused the President, who invented and believed it, a world of annoyance,—for Napoleon, as Monroe had personal reason to remember, never failed to sacrifice his allies, and was certain to fail in supporting a theory so infirm as this.
For the moment, Monroe made no written reply to Foster’s letter of July 3; he was tormented by the crisis of his career, and Foster ceased to be important from the moment he could do nothing toward a repeal of the orders. With the usual misfortune of British diplomatists, Foster became aggressive as he lost ground, and pushed the secretary vigorously into Napoleon’s arms. July 14 Foster wrote again, in a threatening tone, that measures of retaliation for the Act of March 2 were already before his Government, and if America persisted in her injurious course of conduct, the most unfriendly situation would result. While this threat was all that England offered for Monroe’s friendship, news arrived on the same day that Napoleon, May 4, had opened his ports to American commerce. Not till then did Monroe give way, and turn his back upon England and his old political friends. The course taken by Foster left no apparent choice; and for that reason chiefly Monroe, probably with many misgivings, abandoned the theory of foreign affairs which had for five years led him into so many mortifications at home and abroad.