No worse ground could have been found for Pinkney to stand upon. He was obliged to begin by asserting, what every public man in Europe knew to be untrue, that “every part of the French Decrees which violated the neutral rights” of America had been repealed by Cadore’s letter of August 5. His next contention, that coasts could not be blockaded, was at least open to dispute when the coast was that of the British Channel. Pinkney’s arguments became necessarily technical, and although technical reasoning might be easily understood in a Court of Admiralty, the attempt to treat politics as a branch of the profession of the law had the disadvantage of refining issues to a point which no large society could comprehend. When Wellesley, Dec. 4, 1810, asked for evidence that Napoleon’s Decrees were repealed, Pinkney replied, in a long note dated December 10,[7] that Cadore’s letter of August 5 stated two disjunctive conditions of repeal,—the first depending on Great Britain, the last on the United States; that although Great Britain had not satisfied the first condition, the United States would undoubtedly satisfy the last; therefore the French Decrees stood repealed. This proposition, not even easy to understand, was supported by a long argument showing that Cadore could not without absurdity have meant anything else. As for further proof, not only had Pinkney none to offer, but he gravely offered his want of evidence as evidence:—
“On such an occasion it is no paradox to say that the want of evidence is itself evidence. That certain decrees are not in force is proved by the absence of such facts as would appear if they were in force. Every motive which can be conjectured to have led to the repeal of the edicts invites to the full execution of that repeal, and no motive can be imagined for a different course. These considerations are alone conclusive.”
The argument might have escaped ridicule had not Jonathan Russell been engaged at the same moment[8] in remonstrating with the Duc de Cadore because the “New Orleans Packet” had been seized at Bordeaux under the Berlin and Milan Decrees; and had not the “Moniteur,” within a week, published Cadore’s official Report, declaring that the decrees would never be repealed as long as England maintained her blockades; and had not the Comte de Semonville, within another week, announced in the French Senate that the decrees were the palladium of the seas.
Wellesley answered Pinkney, December 29, in a note[9] comparatively short, and more courteous than any important State paper that had come from the British government since Fox’s death.
“If nothing more had been required from Great Britain than the repeal of our Orders in Council,” he said, “I should not have hesitated to declare the perfect readiness of this Government to fulfil that condition. On these terms the Government has always been sincerely disposed to repeal the Orders in Council. It appears, however, not only by the letter of the French minister, but by your explanation, that the repeal of the Orders in Council will not satisfy either the French or the American government. The British government is further required by the letter of the French minister to renounce those principles of blockade which the French government alleges to be new.... On the part of the American government, I understand you to require that Great Britain shall revoke her Order of Blockade of May, 1806.”
Wellesley declined to entertain this demand. He appealed to the justice of America not to force an issue on such ground, and he protested that the Government retained an anxious solicitude to revoke the Orders in Council as soon as the Berlin and Milan Decrees should be effectually repealed, without conditions injurious to the maritime rights of Great Britain.
To this declaration Pinkney replied, Jan. 14, 1811, in a letter[10] defending his own position and attacking the good faith of the British government. He began by defending the temper of his late remonstrances:—
“It would not have been very surprising nor very culpable, perhaps, if I had wholly forgotten to address myself to a spirit of conciliation which had met the most equitable claims with steady and unceasing repulsion; which had yielded nothing that could be denied, and had answered complaints of injury by multiplying their causes. With this forgetfulness, however, I am not chargeable; for against all the discouragements suggested by the past, I have acted still upon a presumption that the disposition to conciliate, so often professed, would finally be proved by some better evidence than a perseverance in oppressive novelties, as obviously incompatible with such a disposition in those who enforce them as in those whose patience they continue to exercise.”
America, continued Pinkney, was not a party, either openly or covertly, to the French requisition. “What I have to request of your Lordship is that you will take our views and principles from our own mouths.” The rejoinder was not so convincing as it would have been had Pinkney wholly discarded French views; but on the point of Fox’s blockade, the American and the French demand was the same. Pinkney was obliged to show that the two identical conditions rested on different grounds. At some length he laid down the law as the United States understood it.
“It is by no means clear,” he began, “that it may not be fairly contended, on principle and early usage, that a maritime blockade is incomplete with regard to States at peace unless the place which it would affect is invested by land as well as by sea. The United States, however, have called for the recognition of no such rule. They appear to have contented themselves with urging in substance that ports not actually blockaded by a present, adequate, stationary force employed by the Power which attacks them shall not be considered as shut to neutral trade in articles not contraband of war; ... that a vessel cleared or bound to a blockaded port shall not be considered as violating in any manner the blockade unless on her approach to such port she shall have been previously warned not to enter it; ... that whole coasts and countries shall not be declared (for they can never be more than declared) to be in a state of blockade; ... and lastly, that every blockade shall be impartial in its operation.”