Abridgment of the Debates of Congress, from 1789 to 1856, Vol. 4 (of 16)

by United States. Congress

Without asking for the evidence which the President had as to the repeal or modification of these decrees, I now put it to the committee whether every member of it is not perfectly convinced that if any modification, or suspension, or repeal, has taken place, it goes no farther than to restrain future seizures, leaving the property already seized to take the course of confiscation and sale? Do we not know, that, in the months of October and November, our vessels and merchandise have been brought under the hammer in pursuance of those decrees; and have we not lately seen, in our public journals, a list of some eighteen or twenty ships advertised by the French Government for sale at Bayonne, on the 5th of December? Nay, sir, the Executive was informed, before he issued his proclamation, by the letter from the Duke of Cadore to General Armstrong, of the 12th of September, 1810, that, "as to the merchandise confiscated, it having been confiscated as a measure of reprisal, the principles of reprisal must be the law in that affair." Words cannot be found which would more satisfactorily "evince an inflexible determination" to retain the property. As the principles of reprisal are to be the law, it follows that a restoration of the property depends on the discretion of the Emperor, and is not to be claimed by us as a matter of right, but of favor. And what have we to propose, according to the principles of reprisal, to obtain the restoration? Is it, that we have suffered the non-intercourse law to expire? Why, sir, this had taken place long before the letter of the Duke of Cadore. Is it a restoration of French property seized under the law of non-intercourse? This cannot take place; because, in truth, there was no such seizure.

We will now examine whether there has been such a revocation of the Berlin and Milan decrees as warranted the proclamation. And here let me remark that, when the President acted under this law, he was not exercising the treaty-making power. He was the mere agent of the Legislature, and as such agent, he was confined and limited by his letter of attorney, the law. He had not, therefore, as has been asserted, a discretion, nor had he any thing to do with considerations of comity or courtesy. He was to ascertain when there was an actual and practical revocation, and then make known the fact; the consequences were left with the legislature. Indeed, sir, this power to give publicity to a fact might have been committed to one of the Secretaries, or to a clerk in the offices, and if it had, we should have smiled at the suggestion that its exercise depended on considerations of courtesy.

Mr. Chairman, when the proclamation first appeared, my impression was, and such, too, I understood to be the general impression, that the President had some document unknown to the American people. The letter of the Duke of Cadore, of the 5th of August, was already before the public, but it was not credited that on this letter the proclamation had been issued. Since we have received the Message the subject is at rest. It is now known and acknowledged that the President had not, and to this moment has not, any other evidence of a revocation. Now, sir, in this letter, I see neither the form nor the substance of a revocation.

What is the understanding of the French courts and officers, on this subject. I have already presented you with that part of the letter of the Duke of Cadore, of the 5th of August, in which he says, that since Congress have retraced their steps, by revoking the act of the first of March, "France is no longer interdicted to the Americans." Now, if this letter is in the form of a decree, it revokes or modifies the Rambouillet decree equally with those of Berlin and Milan, inasmuch, as long as the former continued in force, France was interdicted to the Americans. And yet we find, in a letter of the Duke of Cadore, of the 7th day of September, our Minister inquiring, "Has the decree of His Majesty of the 22d day of March last been recalled?" And General Armstrong, in his letter to Mr. Smith of the 10th of September, remarks, that this inquiry "may appear to have been useless, after the declaration, that American ships which will hereafter arrive in the ports of France shall not be subject to confiscation; but understanding from the Council of Prizes, that until some act be taken which had the effect of recalling, by name, the decree of the 23d of March, they must consider it both as existing and operative, and of course binding upon them," and he had presented the subject again.

Here, then, we have the opinion of the French court, most known and most important to us, the Court of Prizes, that the letter of the Duke of Cadore is not in the form of a decree, and has not the force and effect of a decree. In addition to this, we have the act of seizure of the brig New Orleans Packet, by the director of the customs at Bordeaux, in December last, under the Berlin and Milan decrees. As the letter of the Duke of Cadore had been published in France prior to this period, no one will believe that if it was in form of an edict of the Empire, the seizure would have been made.

But if the contents of this letter had been embodied in a formal act, would it have amounted to such a revocation or modification of the Berlin and Milan decrees, as that they ceased to violate our neutral commerce?

I remark first, that the revocation, if it be one, was a future and not a present revocation. "The decrees of Berlin and Milan are revoked, and, after the first of November, they will cease to have effect." Now, sir, although there is an affected obscurity in this sentence, the intent is most obvious. As long as a law continues in operation, so long it must be unrepealed, and as these decrees were to have effect until the 1st of November, it follows, that on no construction can they be considered as revoked until that period. Indeed, on this point the Duke of Cadore is quite explicit in his letter to General Armstrong of the 7th of September, in which he tells him, that American vessels arriving in France before the first of November, although not liable to confiscation, "will be subjected to all the effects of the Berlin and Milan decrees."

But, again: the revocation, if any, was not only future, but it was also conditional; "it being understood, that in consequence of this declaration, the English shall revoke their Orders in Council and renounce the new principles of blockade which they have wished to establish, or that the United States, conformably to the act you have just communicated, shall cause their rights to be respected by the English." A condition—a qualification—a restriction. Is it not obvious, from the very terms of the letter, that it contains a condition that the repeal is a qualified one? The words "it being understood," are not only expressive of this, but they are singularly appropriate. If, however, we were inclined to doubt, we must be satisfied by the letter of the Duke of Cadore to General Armstrong, of September 7th, in which it is said, that the Emperor "repeals his decrees of Berlin and Milan, under the conditions pointed out in my letter to you of the 5th of August."

Our Ministers, General Armstrong and Mr. Pinkney, appear to have puzzled themselves much about this condition, to discover whether it was a condition precedent, or a condition subsequent. To me, sir, the idea of a condition subsequent to a repeal, is rather novel; but it may nevertheless be just. In common understanding, it is believed, that when a law is repealed it is extinct, and if it be so, then its appendage, the condition, would seem to be at an end of course. But in the view which I am about to take of this subject, it is not necessary to settle this point, as it must be conceded, that whether we call the condition a condition precedent, or a condition subsequent, the same consequence will follow: if the condition is not complied with, the decrees must be in force still. Now, sir, it appears to me that the conditions, attached to this pretended or proposed repeal, are of a nature which have not, and will not be complied with.

First, sir, as to the conditions on the part of England: "The English shall revoke their Orders in Council, and renounce the new principles of blockade which they have wished to establish." With respect to the Orders in Council, I have nothing to say either as to their justice or their policy. Heaven knows they have been to us, from the moment of their inception, sore evils; the causes of great vexation, embarrassment, and losses; and I hope the period is not far distant when we shall be no longer disturbed by them. But, sir, I wish to call your particular attention to the other branch of the condition, that relating to blockades. We have been so long in the practice, and justly in the practice, of complaining of paper blockades, that at the first blush we are induced to believe the condition relates to them, and to them alone. Are these the blockades which are intended? Let the Emperor and King answer for himself. In the official note from Count Champagny to General Armstrong, of the 22d of August, 1809, we have this declaration: "A place is not truly blockaded until it is invested by land and by sea; it is blockaded to prevent it from receiving the succors which might retard its surrender. It is only then that the right of preventing neutral vessels from entering it exists." But we have it under the hand and seal of the Emperor himself, what he means by the "new principles of blockade." In the Berlin decree there is an enumeration of real or pretended interpolations, on the part of Great Britain, in the law of nations; among which we discover these: "that England does not admit the right of nations as universally acknowledged by all civilized people; that she extends to ports not fortified, to harbors and mouths of rivers, the right of blockade, which, according to reason and the usage of civilized nations, is applicable only to strong or fortified ports." And it is declared that "the decree shall be considered as the fundamental law of the Empire, until England has acknowledged that the rights of war are the same on land as at sea—and until the right of blockade be restrained to fortified places actually invested by competent forces."