After the attack on the Chesapeake, in 1807, the President issued a proclamation excluding British war-vessels from the harbors of the United States. See supra, § 315 b, infra, § 331. This was regarded by Mr. Canning as an act of retaliation. See Mr. Canning to Mr. Monroe, Sept. 23, 1807. 3 Am. St. Pap. (For. Rel.), 200. For detail, see supra, § 315b; infra, § 331. See Mr. F. Jackson's attitude in this relation, supra, §§ 107, 150b. See as to invasion of territorial waters, supra, § 15. The House Committee of Foreign Affairs, on November 22, 1808, after reviewing the aggressions of both Great Britain and France on the commerce of the United States, reported in favor of prohibition of admis sion of vessels of Great Britain or France, or of "any other of the belligerent powers having in force orders or decrees violating the lawful commerce and neutral rights of the United States; and also the importation of any goods, wares, or merchandise, the growth, produce, or manufacture of the dominions of any of the said powers, or imported from any place in the possession of either." This conclusion, it is maintained, presented the only alternative to war. Mr. John Randolph's speech, in 1806, on the non-importation act is reviewed in the Edinburgh Review for October, 1807. (Vol. xi, 1.) Mr. Randolph's speech, which took the ground "that the only barrier between France and a universal dominion, before which America as well as Europe must fall, is the British navy," was republished and widely circulated in England. The Edinburgh Review, however, declared that Mr. Randolph was not to be regarded as representing the United States, and that he was "the orator of a party professedly in opposition to the Government." "The non-intercourse act of the United States (of 1809) put an entire stop, for the next two years, to all commerce with that country, during the most critical and important years of the war; and in its ultimate results, contributed to produce that unhappy irritation between the two countries, which has never yet, notwithstanding the strong bonds of mutual interest by which they are connected, been allayed." 10 Alison's Hist. of Europe, 650. "Whatever pleas may be urged for a disavowal of engagements formed by diplomatic functionaries in cases where, by the terms of the engagements, a mutual ratification is reserved, or where notice at the time may have been given of a departure from instructions, or in extraordinary cases essentially violating the principles of equity, a disavowal could not have been apprehended in a case where no such notice or violation existed, where no such ratification was reserved, and more especially where, as is now in proof, an engagement to be executed without any such ratification was contemplated by the instructions given, and where it had, with good faith, been carried into immediate execution on the part of the United States. "These considerations not having restrained the British Government from disavowing the arrangement by virtue of which its orders in council were to be revoked, and the event authorizing the renewal of commercial intercourse having thus not taken place, it necessarily became a question of equal urgency and importance, whether the act prohibiting that intercourse was not to be considered as remaining in legal force. This question being, after due deliberation, determined in the affirmative, a proclamation to that effect was issued. It could not but happen, however, that a return to this state of things from that which had followed an execution of the arrangement by the United States would involve difficulties. With a view to diminish these as much as possible, the instructions from the Secretary of the Treasury, now laid before you, were transmitted to the collectors of the several ports. If in permitting British vessels to depart without giving bonds not to proceed to their own ports, it should appear that the tenor of legal authority has not been strictly pursued, it is to be ascribed to the anxious desire which was felt that no individuals should be injured by so unforeseen an occurrence; and I rely on the regard of Congress for the equitable interests of our own citizens to adopt whatever further provisions may be found requisite for a general remission of penalties involuntarily incurred." President Madison, First Annual Message, 1809. It has already been noticed that Mr. Erskine, then British Minister at Washington, wrote to Mr. Smith, then Secretary of State, on April 17, 1809, saying that considering the act passed by Congress on the 1st of March, usually termed the non-intercourse act, to have produced a state of equality in the relations of the two belligerent powers, he offered an honorable reparation for the aggression that had been committed on the United States frigate Chesapeake. This proposition having been accepted the same day by the United States, Mr. Erskine, on April 18, 1809, wrote to Mr. Smith, saying: "The favorable change in the relations of His Majesty with the United States, which has been produced by the act (usually termed the non-intercourse act) passed in the last session of Congress was also anticipated by His Majesty, and has encouraged a further hope that a reconsideration of the existing differences might lead to their satisfactory adjustment." The subsequent correspondence is noticed supra, §§ 107, 150b. "The President, in his message at the opening of Congress, May 23, 1809, referred with great satisfaction to the renewal of the commercial intercourse with Great Britain, and stated that the arrangement with Mr. Erskine had been made the basis of communications to the French Government. It was, however, disavowed by the British Government, even as regarded the proposed reparation for the Chesapeake affair, and the trade, that had been opened by the President's proclamation, was again placed under the operation of the acts of Congress which had been suspended. Both Governments took measures to prevent, as far as possible, any inconvenience or detriment to the merchants who had acted on the supposed validity of the agreement. "Mr. Canning, in communicating on 27th of May, 1809, to Mr. Pinkney, the British order in council for that purpose, added: Having had the honor to read to you in extenso the instructions with which Mr. Erskine was furnished, it is not necessary for me to enter into any expla nation of those points in which Mr. Erskine has acted, not only not in conformity, but in direct contradiction to them. I forbear equally with troubling you with any comment on the manuer in which Mr. Erskine's communications have been received by the American Government, or upon the terms and spirit of Mr. Smith's share of the correspondence. Such observations will be communicated more properly through the minister whom His Majesty has directed to proceed to America; not on any special mission (which Mr. Erskine was not authorized to promise, except upon conditions not one of which he has obtained), but as the successor of Mr. Erskine, whom His Majesty has not lost a moment in recalling." Lawrence's Wheaton (ed. 1863), 249–251, citing Parliamentary papers relating to America, June 2, 1809, 2-4; Wait's St. Pap., vol. vii, 222, 230. See further as to negotiations in respect to the Chesapeake, supra, §§ 107, 180b, infra, §331. The respective policies of the United States and of Great Britain as to maritime restrictions in 1808, are discussed with great ability by Mr. Pinkney, minister to Great Britain, in his correspondence with Mr. Madison, Secretary of State, and Mr. Canning, foreign secretary in England. Mr. Pinkney's letters, which do not fall within the scope of the present volume to analyze and digest, will be found in 3 Am. St. Pap. (For. Rel.), 221 ff. See for further correspondence same vol., 299 ff. As to these negotiations see supra, §§ 107, 150b. "It seems to have been forgotten that from the time when Mr. Jefferson became President till the month of August, 1807, no actual ag gression on the neutral rights of America had been committed by France; whilst during the same period the nominal blockade of enemies' ports by England, and the annual actual blockade, as they have been called, of our own; the renewal, contrary to express and mutual explanations. of the depredations on the indirect colonial trade; the continued impressments of our seamen, and the attack on the Chesapeake had actually taken place. During that period the laws, the executive acts, the negotiations of the American Government could have been directed to that Government alone from whom injuries had been received. But from the time when the rights of the United States were invaded by both the belligerents, every public measure has equally embraced both; the like efforts, founded on the same basis, have uniformly, though without success, been made to obtain redress from both; and the correspondence now published furnishes at least irrefragable proofs of the earnest desire of Mr. Jefferson's administration to adjust the differences with Great Britain, and of their disposition to reserve for that purpose whatever might serve as the shadow of a pretense for a denial of justice on her part." Mr. Gallatin to the National Intelligencer, Apr. 24, 1810; 1 Gallatin's Works, 478. "As respects your other query, I must say that I am very adverse to restrictive commercial measures for any purpose whatever. Experience must have taught us, beginning with the non-importation restrictions and agreement which preceded the war of Independence, and ending with the various non-intercourse laws which were enacted between December, 1807, and June, 1812, how inefficient measures of this description generally are for the purpose of forcing another country to alter its policy. It is true that they may occasionally offer a pretense for it when that country already wishes to do it and only wants a pretense. Had the official notice of the repeal of the Milan and Berlin decrees (for which repeal some law of ours had offered a pretense) reached England two months earlier, it may be that a timely repeal of the orders in council would have prevented the war. Sometimes, also, if restrictions can be applied immediately to the object in dispute (a retaliating tonnage duty) so as to operate as direct reprisal, they may prove effective. In the present instance they cannot be so applied, and I would doubt their efficacy towards obtaining a prompt execution of the treaty. It would have been much preferable to have been fully aware of the great and intrinsic difficulties which stood between the signing of the treaty and its being carried into effect, and instead of increasing these to have used some further forbearance, and, without recurring to any coercive or restrictive measures, to have suffered the King of the French to manage the affair in his own way with the Chambers. Had that course been pursued, there is no doubt that he would have continued to make every exertion for obtaining their assent; and I am confident that the treaty must infallibly have been ultimately ratified. The fundamental error, on the part of our Government, consists in not having been seusible that, in the present situation of France, the real power is not with the King, but with the popular branch." Mr. Gallatin to Mr. Everett, Jan. 1835; 2 Gallatin's Writings, 492. On the subject of non-intercourse with France, as suggested by General Jackson on the spoliation issue, see supra, § 318. As to non-importation and non-exportation, see 1 John Adams's Works, 156, 157, The orders and decrees of the belligerent powers of Europe affecting the com- The correspondence in 1807-'08 between Mr. Armstrong, United States minister in The correspondence in 1808-'09, of Mr. Pinkney, United States minister at London, with his own Government, and with the British foreign secretary, in reference to British restrictions on the commerce of the United States, is given in 3 Am. St. Pap. (For. Rel.), 221 ff., 299 ff., 363 ff. See supra, § 148b. The history and character of the British claim in 1805, to interdict to neutrals commerce with her enemies, is given in a memorial to Congress of Jan. 21, 1806, known to have been prepared by Mr. William Pinkney. Wheaton's Life of Pinkney, 372. Infra, § 388. Mr. Calhoun's speech in the House on June 24, 1812, on the non-intercourse bill, is given in 2 Calhoun's Works, 20. "Anticipating that an attempt may possibly be made by the Canadian authorities in the coming season to repeat their unneighborly acts towards our fishermen, I recommend you to confer upon the Executive the power to suspend, by proclamation, the operation of the laws authorizing the transit of goods, wares, and merchandise in bond across the territory of the United States to Canada; and further, should such an extreme measure become necessary, to suspend the operation of any laws whereby the vessels of the Dominion of Canada are permitted to enter the waters of the United States." President Grant, Second Annual Message, 1870. Under the non-intercourse act of June 28, 1809 (2 Stat. L., 550), a vessel could not proceed to a prohibited port, even in ballast. Ship Richmond v. U. S., 9 Cranch, 102. Under the same statute, an American vessel from Great Britain had a right to lay off the coast of the United States to receive instructions from her owners in New York, and, if necessary, to drop anchor, and in case of a storm to make a harbor; and if prevented by a mutiny of her crew from putting out to sea again, might wait in the waters of the United States for orders. The U. S. r. The Cargo of the Fanny, 9 Cranch, 181. Fat cattle are provisions, or munitions of war, within the meaning of the act of Congress of the 6th of July, 1812 (2 Stat. L., 728), “to prohibit American vessels from proceeding to or trading with the enemies of the United States, and for other purposes." U. S. v. Barber, ibid., 243. A British ship, coming from a foreign port, not British, to a port of the United States, did not become liable to forfeiture under the nonintercourse act of April 18, 1818, by touching at an intermediate British closed port from necessity, in order to procure provisions, and without trading there. The Frances Eliza, 8 Wheat., 398. The non-intercourse act of the 18th of April, 1818, did not prohibit the coming of British vessels from a British closed port, through a foreign port, not British, where the continuity of the voyage was actually and fairly broken. The Pitt, 8 Wheat., 371. Purchases by neutrals, thongh bona fide for value, from persons who had purchased in contravention of the statute of July 13, 1861, and the subsequent proclamation of the President, making all commercial intercourse between any part of a State where insurrection against the United States existed and the citizens of the rest of the United States "unlawful," were invalid, and the property so purchased was able to capture. The Ouachita Cotton, 6 Wall., 521. |