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16 HISTORY OF THE WAR.

also been reimbursed, and is not included in th^
amount.

The decrease of revenue, arising- from the situation of
our commerce and the extraordinary expences which
have and may become necessary, must be taken into
view, in making- commensurate provisions for the
ensuing year. And I recommend to your considera-
tion the propriety of ensuring a sufficiency of aimual
revenue, at least to defray the ordinary expences of
government, and to pay the interest on the public debt,
including that on new loans which may be authorized.

[ cannot close this communication without expres-
sing my deep sense of the crisis in which you are as-
sembled ; my confidence in a wise and honourable
result to your deliberations, and assurances of the
faithful zeal with which my co-operating duties will
be discharged ; invoking at the same time, the bles-
sing of heaven on our beloved country, and on all the
means, that may be employed in vindicating its rights,
and advancing its welfare.

(Signed)

JAMES MADISON,

Washmcfionf Novembers, 1811.



OFFICIAL CORRESPONDENCE,

Laid before Congress^ on Tuesday ^ November 6-

ORDERS IN COUNCIL.

MR. FOSTER TO MR. MONROE.

WASHINGTON, July 3, 1811

SIR,

1 have had the honour of stating- to vou ver-
bally the system of defence to which his majesty ha*^
been compelled to resort for the purpose of protectini^-
the maritime rights and interests othis dominions
against the new description of warfare that has been
adopted by his enemies. I have presented to you
Ihe grounds upon which hU Majesty finds himsell'stUh



HISTORY OP THE WAR. 17

oblit^ed to rontinue that system, and I conceive that
I shall best meet your wishes as expressed to me this
morning, if in a more formal shape I should 1. y be-
fore you the whole extent of the question, as it appears
to his Majesty's government to exist between Great-
Britain and America.

1 beg leave to call your attention, sir, to the princi-
j)les on which his Majesty's Orders in Council were
originally founded. The Decree of Berlin was direct-
ly and expressly an act of war, by which France pro-
hibited all nations from trade or intercourse with
fireat-Britain under peril of confiscation of their
ships and merchandise ; although Fiance had not the
means of imposing an actual blockade in any degree
adequate to such a purpose. The immediate and
professed object of this hostile Decree was the destruc-
tion of all British commerce through means entirely
unsanctioned by the law of nations, and unauthorised
by any received doctrine of legitimate blockade.

This violation of the established law of civilized
nations in war, would have justified Great-Britain in
retaliating upon the enemy by a similar interdiction
of all commerce with France, and with such other
countries as might co-operate with France in her sys-
tem of commercial hostility against Great-Britain.

The object of Great-Britain was not, however, the
destruction of trade, but its preservation under such
regulations as might be compatible with her own se-
curity, at the same time that she extended an indul-
gence to foreign commerce, which strict principles
would have entitled her to withhold. The retaliation
of Great-Britain was not therefore urged to the full
extent of her right ; our prohibition of French trade
was not absolute, but modified ; and in return for the
absolute prohibition of all trade with Great-Britain,
we prohibited not all commerce with France, but all
such commerce with France as should not be carried
on through Great-Britain.

It was evident that this system must prove prejudi-
cial to neutral nations ; this calamity was foreseen,

3



18 HISTORY OF THE WAR.

and deeply regTctted. But the injury to the neutral
nation arose from the aggression of France, which
had compelled Great-Britain in her own defence to
resort to adequate retaliatory measures of war. The
operation on the American commerce of those pre-
cautions, which the conduct of France had rendered
indispensable to our security, is therefore to be ascrib-
ed to the unwarrantable aggression of France, and
not to those proceedings on the part of Great-Britain,
which that aggression had rendered necessary and
just.

The object of our system was merely to counteract
an attempt to crush the British trade ; Great-Britain
endeavored to permit the continent to receive as large
a portion of commerce as might be practicable,
through Great-Britain ; and all her subsequent regu-
lations, and every modification of her system by new
orders or modes of granting or withholding licences,
have been calculated for the purpose of encourag-ing-
the trade of neutrals through Great-Britain, whenever
such encouragement might appear advantageous to
the general interests of commerce, and consistent
with the public safety of the nation. The justifica-
tion of his Majesty's Orders in Council, and the con-
tinuance of that defence, have always been rested up-
on the existence of the Decrees of Berlin and Milan,
and on the perseverance of the enemy in the system
of hostility which has subverted the rights of neutral
commerce on the continent; and it has always been
declared on the part of his Majesty's government,
that whenever France should have effectually repeal-
ed the Decrees of Berlin and Milan, and should have
restored neutral commerce to the condition in which
it stood previously to the promulgation of those De-
crees, we frhould immediately repeal our Orders in
Council.

France has asserted that the Decree of Berlin was
a measure of just retaliation on her part, occasioned
by our previous aggression ; and the French govern-
tuent has insisted that om* system of blockade, as it



inSTORY OF THE WAK. 19

existed previously to ihe Decree of Berlin, was a
manifest violation of the rt ceived law of nations ;
we must therefore, sir. refer to the articles of tlie Ber-
lin Decree, to find the principles of our system of
blockade, which France considers to be new, and
contrary to the law of nations.

By the 4th and 8th articles it is stated as a justifi-
cation of the French Decree, that Great-Britain
'extends to unfortified towns and commercial ports,
to harbors, and to the mouths of rivers, those rights
of blockade, which bv the reason and the usage of
nations, are applicable only to forlihcd places; and
thai ihe rights of blockade ought to be limited to for-
tresses really invested by a sufficient force.'

It is added in the same articles that Great-Britain
* lias declared places to l)e in a state of blockade,
before which she has not a single ship of war, and
even pli:\ces which the whole British force would be
insufficient to blockade ; entire coasts, and a whole
empire.'

Neither the practice of Great-Britain, nor the law
of nations, has ever sanctioned the rule now laid down
by France, that no place excepting fortresses in a
complete state of investiture, can be deemed lawfully
blockaded by sea.

If such a rule were to be admitted, it would be-
come nearly impracticable for Gre^it-Britain to at-
tenijit the blockade of any port of the continent, and
our submi.ssion to this perversion of the law of na-
tions, while it would destrov one of the principal ad-
vantages of our naval superiority, would sacrifice the
common rights and interests of all maritmie states.

It was evident that the blockade of 31 ay, 180G,
wa.s the principal pretended jusitication of the De-
cree of Berlin, though neither the principles on which
that blockade was founded, nor its practical opera-
tion, atlorded any color for the proceedings of
France.

In point of date, the blockade of May, 1806, pre-
ceded the Beriin Decree ; but it was a just and legal



20 HISTORY or THE AVAR.

blockade according- to the established law of nations,
because it was inlended to be maintained, and was.
actually maintained by an adequate force appointed
to guard the whole coast described in the notihcation,
and consequently to enforce the blockade.

Great-Britain has never attempted to dispute, that
in the ordinary course of the law of nations, no block-
ade can be justifiable or valid unless it be supported
by an adequate force destined to maintain it, and to
expose to hazard all vessels attempting- to evade its
operation. The blockade of May, 1 806, was notified
by Mr. Secretary Fox, on this clear principle, nor
was that blockade announced until he had satisfied
himself by a communication with his Majesty'^s Board
of Admiralty, that the Admiralty possessed the means
and would employ them, of watching the whole coast
from Brest to the Elbe, and of eft'ectually enforcing
the blockade.

The blockade of May, 1806, was therefore (ac-
cording to the doctrine maintained by Great-Britain)
just and lawful in its origin, because it was supported
by both in intention and fact by an adequate naval
force. This M'as the justification of that blockade,
until the period of time when the Orders in Council
were issued.

The Orders in Council were founded on a distinct
principle, that of defensive retaliation. France had
declared a blockade of all the ports and coasts of
Great- Britain, and her dependencies, without assign-
ing, or being able to assign, any force to support that
blockade. Such an act of the enemy would have
justified a declaration of the blockade of the whole
coast of France, even without the application of any
particular force to that service. Since the promulga-
tion of the Orders in Council, the blockade of May,
1806, has been sustained and extended by the more
comprehensive system of defensive retaliation on
which those regulations are founded. But it the Or-
ders in Council should be abrogated, tlie blockade of
May, 1806, could not continue under our construe^



HISTORY OF THE WAR. 21

tion of the law of nations, unless that blockade should
be maintained by a due application of an adequate
naval force.

America appears to concur with France in assert-
ing that Great-Britain was the original aggressor in
the attack on neutral riglits, and has particularly ob-
jected to the blockade of May, 1806, as an obvious
instance of that aggression on the part of Gieat-
Britain.

Although the doctrines of the Berlin Decree, res-
pecting the rights ot blockade, are not directly assert-
ed by the American government, Mr. Pinckney's
correspondence would appear to countenance the
principles on which those <loctrines are founded. The
objection directly stated by America against the
blockade of May, 1806, rests on a supposition that no
naval force which Great-Britain possessed, or could
have employed for such a purpose, could have render-
ed that blockade effectual and that therefore it was
necessarily irregular, and could not possibly be main-
tained in conformity to the law of nations.

Reviewing the course of this statement, it will ap-
pear that the blockade of May, 1806, cannot be
deemed contrary to the law of nations, either under
the objections urged by the French, or under thoso
declared or insinuated by the American governmdnt,
because that blockade was mainUiined by a sufficieni
naval force ; that the Decree of Berlin was not the(^~
fore justified either under the pretext alledged bv
France, or under those supported by America ; that
the Orders in Council were founded on a just principlo
of defensive retaliation against the violation of the law
of nations committed b-, France in the Decree of
Berlin ; that the blockade of May, 1806, is now in-
cluded in the more extensive operation of the Orders
in Council ; and lastly, that the Orders in Council
will not be continued beyond the effectual duration of
the hostile Decrees of France, nor will the blockade
ot May, 1806, continue after the repeal of the Orders
in Council, unless His Majesty's government shall



22 HISTORY OP THE WAR.

think fit to sustain it by the special application of a
sufficient nerval force. This fact will not be suffered
to remain in doubt, and if the repeal of the Orders in
Council should take place, the intention of His IVlajes-
ty'sg;overnment respecting- the blockade of May, 1806,
will be notiiied at the same time.

I need not recapitulate to you the sentiments of
His IMajesty's oovernment, so often repeated, on the
subject of the French Minister's Note to General
Armstrong-, dated the (3th of last August. The studi-
ed ambiguity of that note has since been amply ex-
plained by the conduct and language of the govern-
ment of France, of which one of the most remarkable
instances is to be found in the speech of the chief of
the French government on the 17th of last month to
certain deputies from the free cities of Hamburgh,
Bremen, and Lubeck, w l;eiein he declares that the
Berlin and Milan Decrees shall be the public code of
France as long as England maintains her Orders in
Council of 1806, and 1807. Thus pronouncings as
plainly as lang-uage will admit, that the system of vio-
lence and injustice of which he is the founder, will be
maintained by him until the defensive measures of re-
taliation to which they gave rise on the part of Great-
Britain shall be abandoned.

If other proofs w ere necessary to show the continu-
ed existence of those obnoxious Decrees, they may
be discovered in the Imperial Edict dated at Fontam-
bleau, October 19, 1810 ; that monstrous production
of violence, in which they are made the basis of a sys-
tem of general and unexampled tyranny and Oj)pression
over all countries subject to, allied with, or within the
reach of the power of France ; in the report of the
French minister for foreign affairs dated last Decem-
ber, and in the letter of the French minister of justice
to the president of the council of prizes. To this
latter, sir, 1 would wish particularly to invite youratten-
tioii ; the date is the 'iolh December, the authority it
comes from most unquestionable, and you will there
find, sir, the Dukeof Massa, in giving his instructions



HISTORY OF THE WAR. 23

to the council ot prizes in consequence of the President
of the United States' proclamation of iNovember 3,
most cautiously avoiding to assert that the French De-
crees were repealed, and ascribing^ not to such repeal,
but to the ambii^uous passage uhich he quotes at
length from M. Champagny's letter of August 5, the
new attitude taken by America ; and you will also
find an evidence in the same letter of the continued
capture of American ships after November, and under
^he Berlin and Milan Decrees, having been contem-
plated by the French government, since there is a
special direction given for judgment on such ships
being suspended in consequence of the American
proclamation, and for tlieir being kept as pledges for
its enforcement

Can then, sir, these Decrees be said to have been
repealed at the period when the proclamation of the
President of the United States appeared, or when
America enforced her non-im|K)rtation act against
Cireat-Brilain .* Are they so at this moment ? To
the iirst (lUeslion, the state papers which I have refer-
nui to, appear to give a sufhcient answer. For even
supjKising that the repeal has since taken place, it is
clear that on November o, there was no question as
to that not being then the case ; the capture of the ship
New-Orleans Packet seized at Bordeaux, and the
Grace-Ann-Green, seized at orcarried into Marseilles,
being cases arising under the French Decrees of Ber-
lin and Milan, as is very evident. Great-Britain
might therefore complain of being treated with injus-
tice by America, ev«n supposing that the conduct of
France had since been unequivocal.

America contends that the French Decrees are re-
voked as it respects her ships upon the high seas, and
you, sir, inform me, that the only two American ships
taken under their maritime operation, as you are pleas-
ed to term it, since November 1, have been restored ;
but may not they have been restored in consequence
of the satisfaction felt in France at the passing of the
non-importation act in the American Congress, an



^ HISTORY OP THE WAR'.

event so little to be expected ; for otherwise, having
been captured in direct contradiction to the supposed
revocation, why were they not restored immedi-
ately ?

The fears of the French navy however, prevent
many cases of the kind occurring in the ocean under
the Decrees of Berlin and Milan , but the most ob-
noxious and destructive parts of those Decrees are
exercised with full violence not only in the ports of
France, but in those of all other countries to which
Francethinks she can commitinjustice vvithinipunit}^

Great-Britain has a right to complain that neutral
nations should overlook the very worst features of
these extraordinary acts, and should suffer their trade
to be made a medium of an unprecedented, violent,
and monstrous system of attack upon her resources ; a
species of warfare unattempted by any civilized na-
tion before the present [)eriod. Not only has America
suffered her trade to be moulded into the means ot
annoyance to Great-Britain under the provisions of
the French Decrees, but as construing those Decrees
as extinct, upon a deceitful declaration of the French
Cabinet, she has enforced her non-importation act
against Great-Britain.

Under these circumstances, I am instructed by my
government, to urge to thatot the United States, ^the
injustice of thus enforcing that act against his Majes-
ty's dominions, and I cannot but hope that a spirit of
justice will induce the United States' government to
re-consider the line of conduct they have pursued,
and at least to re-establish their former state of strict
neutrality.

1 have only to add, sir, that, on my pari, I shall ever
be ready lo meet you on any opening which may seem
to ai!'ord a prospect of restoring complete harmony
between the two countries, and that it will at all times
give mt; the greatest satisfaction to treat with you on
the important concerns so interesting to both.

I have the honor to be, &c.

AUGUSTUS J. FOSTER.

To ihe hon. James Monroe, SCc.



HISTORY OF THE WAK. 25

Mr. Foster to Mr. Monroe.

WASHINGTON , /«/j/ 1 1 , 1 81 1 .

SIR,

In consequence of our conversation of yesterday,
and the observations which you made respecting that
part of my letter to you of the od inst. wherein 1 have
alluded to the principle on which his Majesty's Or-
ders in Council were orii>inally founded, I think it
right to explain myself, in order to prevejit any possi-
ble mistake as to the present situation of neutral trade
with his JSlajesty's enemies.

It will oidy be necessary for me to repeat what has
ah'cady, long" since, been announced to the American
'j^overnment, raujely, that his Majesty's Order in
Council of April *it), 1809, superceded those of No-
vember, 1807, and relieved the system of retaliation
adopted by his Majesty against his enemies from what
was considered m this country as the most objection-
able part of it ; the option g"iven to neutrals to trade
with the enemies of -Great-Britain, through British
ports, on payuient of a transit duty.

This explanation, sir, will, I trust, be sufficient to
do away any imjiression that you may have received
to the contrary from my observations respecting- the
effects which his Majesty's Orders in Council origin-
ally had on trade of neutral nations. Those observa-
tions were merely meant as preliminary to a consider-
ation of the fjuestion now at issue between the two
countries.

I have the honor to be, with the highest considera-
tion and respect, sir, your most obedient humble
i-ervant,

AUGUSTUS J FOSTER.

7V) ihp hort. Jmn^fi ]\]onrop, Xcc.



f& HlS'J'ORl O^ THE WAR.

3Ir. Foster to 3fr. Alonroe.

WdSULHGTOjY, July 14, 13 11".

SIR,

His Majesty's Packet boat having been so long
detained, and a fortnight having elapsed since my ar-
rival at this capitol, his Royal Highness, tlie Prince
Regent will necessarily expect that I should have to
transmit to his Royal Highness some official commu-
nication as to the line of conduct the American gov-
ernment mean to pursue. I trust you will excuse
me therefore, sir, if without pressing for a detailed
answer to my nole of the 3d inst, I anxiously desire
lo know from you vwhat is the President's determina-
tion wilh respect to suspending the operation of the
hite Act of Congress prohibiting allinsportation from
Uie British dominions.

There have been repeated avowals lately made by
tiie government of F'rance, that the Decrees of Berlia
and Milan were still in full force, and the acts of that
government have corresponded with those avowals.

'J'he measures of retaliation pursued by Great-
Britain against those Decrees are consequently to the
great regret of his Royal Higlmess sLill necessarily,
continued.

I have had the honor to state to yon the light in
which his Royal Highness, the Prince Regent view-
ed the Proclamation of the President of last Novem-
ber, and the surprise with which he learnt the subse-
quent measures oi Congress against the British trade.

American ships seized under his Majesty's Orders
in Council even after that Proclaniation aj)peare€l,
were not immediately condemned, because it was be-
lieved that the insidious professions of France might
have led the American government, and the mer-
chants of America into an erroneous construction of
the intentions of France.

But when the veil was thrown aside, and the
French ruler himself avowed the continued existence
of his invariable sysleu), it was not expected by his
Royal Highness that America would have refused to
retrace the steps she h;:d taken.



HISTORY OF THE WAR. ^T

Fi'esl) proofs ]ra.ye since occiiiTed of tlie resolutiaii
ef the French g'overnment to cast away all considera-
tioMof the rights of nations in the unprecedented war-
fare they liave adopted.

America however still |7orsists in lier injurions
measures ag-ainst the commerce of Great-Britain, and
his Koyal Hig-hness has in consequence been obliged
to look to means of retaliation against those measures
which his Royal Highness cannot but consider a<;
most unjustiiiable.

How desirable would it not be, sir, if a stop could
be put to any material progress in such a system of
retaliation, which, from step to step may lead to the
most unfriendly situation between the two countries :'

His Majesty's government will necessarily ^^e guid-
ed in a gre .t degree by the contents of my first dis-
patches as to the conduct they must adopt towards
America.

Allow me then, sjr, to repeat my request to learn from
you whether I may not convey what I know would be
most grateful to his Royal Highness' feelings, namely,
the hope that he may be enabled, by the speedy return of
America from her unfriendly attitude towards Great-
Britain, to forget altogether that he ever was obliged
to have any other object in view besides that of en-
deavoring to promote the best understanding possible
between the two countries.

I have the honor to be, with the highest considera-
tion, sir, vour mostobedi«Mit humble servant,

AUGUSTUS J. FOSTER.

3b the hon. James iMonroe, S^x\



Mr. Foster to Mr. Monroe.

WASHING TOJV, July 1 6, 1 8 1 1 .

SIR, ,

1 had the honor to receive the letter which you ad-
dressed to me under yesterday's date, requesting an
explanation from me, in consequence of my letter*^



28 HISTORY OF THE WAR.

of the 3d and 14th itist. of the precise extent in which
a repeal of the French Decrees is by his Majesty's
government, made a condition ol tlic repeal of the
British Orders, and particuhirly wlietlierthe condition
embraces the seizure of vessels and merchandize en-
tering' FrencI) ports in contravention of Fi'ench regu-
lations, as M'ell as the capture on the high seas, of
neutral vessels and their carg-oes, on tlie mere allega-
tion that they are bound to or from British ports, or
Ihatlhey have on board British j)roductions or man-
ufactures ; as also, stating' that in your view of the
French Decrees, they comprise reg^ulations essentially
different in their principles, some of them violating
the neutral ri£>hts of the United States, others operat-
ing against Great-Britain without any such violation.

You will permit me, sir, for the purpose of answer-
ing your questions as clearly and concisely as possi-
ble, to bring into view the French Decrees them-
selves, together with the official declarations of the
French minister which accompanied them.

In the body of those Decrees, and in the declara-
tions alluded to, you w ill find, sir, express avowals
that the principles on which they were founded, and
provisions contained in them, are wholly new, unpre-
cedented, and in direct contradiction to ail ideas of



Online LibraryJohn] 1793-1863 [RussellThe history of the war, betwee the United States and Great-Britain, which commenced in June, 1812, and closed in Feb. 1815 .. → online text (page 2 of 38)