響

DECEMBER, 1809.

British Minister.

H. OF R.

fused to give audience to him they sent to justify their transaction."

"In the year 1643, (says the same author,) Walter Strickland, Minister from the Parliament of London, presented a memorial to the States General, wherein he spoke of the Prince of Orange with little respect. He was urged to show his orders, but it was a kind of did it, either did not reflect on what they did, or else violence that could not well be justified. They that they were very willing to offend his master. We have seen within some years a Minister, who, having been sent by a powerful State to one of the first Princes of Germany, begun his negotiation by laying his instructions on the table. But all that can be said of it is, that it was the action of a fool, in the utmost extent of the signification of the epithet. It is an unheard-of thing that a Minister has been compelled to show his orders, and they who force him to do it offer violence to the law of nations."

Conduct of the thority. Had Mr. Erskine therefore shown the instructions, the authority of them would have rested not on their intrinsic character, but on the letter of credence which required faith to be put in his word. It is admitted that Mr. Erskine had authority to adjust the affair of the Chesapeake, and objected only that he violated his instructions. Yet it is certain he had no extra commission nor is it pretended that in that case he had any instructions, even, which he was authorized to communicate. His authority, therefore, was in his letter of credence. The proposals of our Minister, Mr. Pinkney, in London, on the subject of the embargo and Orders in Council, although they contemplated a repeal of both, were not obEjected to for want of power, yet he had no commission except his letter of credence. The instructions of Mr. Erskine contemplated a repeal of the prohibitory acts on both sides, although it "The Minister who is to carry on a negotiation (says is not pretended that he had any other commission Martens, book 7, chap. 3, sec.5) is furnished with instrucbut his general letter of credence. English his-tions. These instructions, as well as those that it may tory furnishes a precedent in point, which shows that a full power is not necessary to arrangements preliminary to a treaty. The case in question is the declaration and counter-declaration exchanged at Madrid, the 24th of July, 1790, between the Spanish Minister, Count Florida Blanca, and the British Ambassador, Alleyne Fitzherbert. In that "Instructions (says M. de Callieres in his Maniere case there was no full power, the phrase used is, de Negocier,' page 87, c. 12,) are a writing which con"being thereto duly authorized." This declara- tain the commands of the Prince or of the State that tion and counter-declaration were signed in vir- gives them to its negotiator, to which he may have retue of a general letter of credence, by Mr. Fitz-course for the purpose of refreshing his memory, and herbert, who was Minister Plenipotentiary from Great Britain to the Catholic King; but when, in consequence of this preliminary arrangement, a treaty was entered into on the 28th of October of the same year, the phrase is altered, as, after reciting Count Florida Blanca's and Mr. Fitzherbert's appointments to conclude the treaty, it says, "who after having communicated to each other their respective full powers."- Vide An. Reg. 1790, p. 300. On this and the other point, the calling for the exhibition of instructions as a preliminary to negotiation, I beg leave to read the following au

thorities:

be necessary to dispatch to him in the course of his embassy, being intended for himself alone, are not usually produced to the Court where he is sent, unless urgent motives, thinks himself justifiable in producing his own Court orders him to do it, or unless he, from certain passages of them. Sometimes he has two sets of instructions, the one public, and the other secret."

by which he is to regulate his conduct. There are sometimes two sets of instructions, one made to be shown, the other secret-which contains the true and ultimate intention of the Prince or State that gives

them."

The same author, page 88, declares:

"The instructions of a public Minister cannot be demanded without a violation of the law of nations. He ought never to communicate them without the express give full faith to his declaration, but the letter of crecommands of his Sovereign-nothing is necessary to dence which he has presented, or the full power which he may have communicated."

From these authorities it appears that the Ex"The Ambassador, after he has presented his letters ecutive had no right to demand of Mr. Erskine of credence, (says Wicquefort, folio ed., p. 109,) and his instructions. Mr. Erskine did not exhibit had them approved, ought to enjoy the effect thereof them-on the contrary, he declares, that he conpurely and simply, and has no further occasion to for-sidered it would be in vain to lay before the Govtify or authorize his negotiation by producing other in

struments."

ernment of the United States the despatch of the 23d of January, which he was at liberty to have done in extenso if he had thought proper.- Vide Correspondence, page 20.

"Instructions (says Wicquefort) are a secret instrument which the Ambassador is not obliged to communicate to the Court where he negotiates. Nay, I dare I will now proceed to examine how far the ar'affirm that he ought not to produce it, without a ne- rangement entered into was obligatory on the cessity and express order. În the year 1560, Queen Elizabeth sent into Scotland Robert Bowes, with orders British Government. In order to form a correct to make pressing instances to have the Duke of Lenox opinion on this subject it will be necessary to removed from the King's person, who was at that time pass in review the circumstances which took place very young. Those of the Council of Scotland said, prior to the late arrangement. The measures that it was so severe and unjust a thing, that not being adopted at the commencement of the second sesable to believe the Queen had given him any such sion of the eleventh Congress placed Great Briorders they desired to see them. Bowes said he would tain and France on an equal footing-every prenot show them. The Scotch were dissatisfied there- text for a continuance of the decrees and orders with. But the Queen was so displeased with their was removed, and the provision contained in the procedure, that she recalled her Ambassador, and re-eleventh section of the non-intercourse act was

H. OF R.

Conduct of the British Minister.

introduced for the express purpose of enabling the President to meet the advances of either Great Britain or France, for the restoration of intercourse. After a due lapse of time the arrival of a national ship is announced, bringing not an ordinary messenger but a Secretary of Legation charged with important despatches. Mr. Erskine, the British Minister, immediately addresses to the Secretary of State a note tendering reparation for the affair of the Chesapeake and expressing the sincere disposition of His Majesty for an adjustment of all the differences between the two countries.

DECEMBER, 1809.

This pledge, sir, thus solemnly made in the face of the whole world, is accepted by the Executive; he could not have declined it without supposing the British Minister an unprincipled swindler. On what principle could the Executive of the United States have declined a tender thus made? The accredited Minister Plenipotentiary of Great Britain declares, "I am authorized to declare that His Majesty's Orders in Council will have been withdrawn on the 10th day of June next." Could the President of the United States have doubted the veracity or honor of the Minister? These had never been questioned. Could he suppose that Mr. Erskine would artfully sacrifice himself to such a project, against the views of his Government? for this there could be no possible tempt ation. Could the Executive suppose that Mr. Erskine had mistaken the views of his Government? Such a supposition could not be enter tained, because his despatches were brought by a diplomatic auxiliary, immediately from his Government, not doubted to be possessed of all its views, and well understood to be privy to all the steps taken by Mr. Erskine. Were the terms of fered at such a crisis of a nature to render the

I will read an extract from the first note"It having been represented to His Majesty's Government, that the Congress of the United States, in their proceedings at the opening of the first session, had evinced an intention of passing certain laws, which would place the relations of Great Britain with the United States upon an equal footing, in all respects, with the other belligerent Powers; I have accordingly received His Majesty's commands, in the event of such laws taking place, to offer, on the part of His Majesty, an honorable reparation for the aggression committed by a British naval officer, in the attack on the United States' frigate Chesapeake." The reparation for the outrage on the Chesa-offer suspicious? So far from it that the language peake is accepted, and the British Minister immediately addresses to the Secretary of State a second note, from which the following is an extract: "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.

"On these grounds and expectations, I am instructed to communicate to the American Government, His Majesty's determination of sending to the United States an Envoy Extraordinary, invested with full powers to conclude a treaty on all the points of the relations between the two countries.

"In the meantime, with a view to contribute to the attainment of so desirable an object, His Majesty would be willing to withdraw his Orders in Council of January and November, 1807, so far as respects the United States, in the persuasion that the President would issue a proclamation for the renewal of the intercourse with Great Britain, and that whatever difference of opinion should arise in the interpretation of the terms of such an agreement, will be removed in the proposed nego

of those who now reprobate the want of caution such circumstances the opportunity had been met was, that they were always attainable. If under by the scruples and subtleties now advanced, let candor decide whether the authors could not and would not have appeared in much greater force against the Administration. Let gentlemen say whether men of all parties would not have united in execrating the conduct of the Executive, if instead of meeting the overtures of Mr. Erskine, to use their own language, with "promptitude and frankness," he had told him to send back to Great Britain for a patent power as a prop for his veracity.

To make a contract binding, five things are necessary

1. That the parties have power to consent. 2. That they have consented.

3. That they have consented freely. 4. That the consent is mutual. 5. That the execution is possible. Vide Marten, b. 2, ch. 1 sec. 3. The arrangement is not disavowed for want of power on the part of Mr. Erskine, but for a departure from instructions. It is admitted by Mr. This also is met with that unsuspecting confi- Jackson that Mr. Erskine had power. In page dence which the circumstances under which it 69 of the correspondence, Mr. Jackson declareswas tendered was calculated to produce-the pro-I must beg your very particular attention to the posal of the British Minister is accepted, and he immediately addresses to the Secretary of State the following note:

tiation."

circumstance that His Majesty's ratification has 'been withheld, not because the agreement was 'concluded without a full power, but because it was altogether irreconcilable to the instructions "In consequence of the acceptance, by the President, on which it was professedly founded. The ques as stated in your letter dated the 18th instant, of the 'tion of the full power was introduced by your proposals made by me on the part of His Majesity, in my letter of the same day, for the renewal of the inter- self, to give weight, by a quotation from a highly course between the respective countries, I am author-respected author, to your complaint of the disa ized to declare that His Majesty's Orders in Council of vowal; in answer to which I observed, that the January and November, 1807, will have been withdrawn quotation did not apply, as Mr. Erskine had no as respects the United States, on the 10th day of June full power. Never did I imagine, or anywhere next." ' attempt, to rest the right of a disavowal upon

6

6

that circumstance." According to Mr. Jackson, then,

1. Mr. Erskine had power to consent. 2. He did consent.

3. He consented freely, for the proposition came from him.

H. OF R.

Canning. There is a perfect agreement between what Mr. Canning stated to Mr. Pinkney as the reparation which Mr. Erskine said would be acceptable to the American Government, and the reparation actually tendered. In page 7, of the last Message containing extracts from Mr. Pink

4. The consent was mutual, for it is in a writ-ney's letters, Mr. Pinkney says: ten form and signed by both.

5. The execution was not only possible, but just and easy.

The five essentials of a contract were complied with; the contract, so far as it respected the United States, executed with good faith; no future ratification was or could be reserved; the affair of the Chesapeake was to be concluded here; the stipulations as to the Orders in Council were to be carried into immediate effect. To use the language of Mr. Canning, the Orders in Council and the embargo were to be contemporaneously withdrawn, and Mr. Erskine was authorized to fix the time-no notice of a departure from instructions was given at the time of making the arrangement. To disavow with honor the act of its accredited agent, it is incumbent on a Government not only to show a palpable and manifest departure from instructions on material and important points, but also to produce such strong and solid reasons, as manifestly outweigh not only the general obligation, to abide by what has been done, but also the disappointment and injury accruing to the other party. This principle applies to cases where mutual ratification is reserved. The case before us is of a higher character-the refusal of the British Ministry is not simply to ratify what had been ratified by the other party, but to carry into effect on their part an arrangement which had been carried into full effect with good faith on the part of the United States.

I will now proceed to examine,

3. Whether there has been such a departure from instructions as to warrant a disavowal of the arrangement without a breach of good faith on the part of the British Ministry?

"In the interview which took place (on May 25) Mr. Canning said, that the British Minister had acted in his late negotiation and engagements with you, not only without authority, but in direct opposition to the most precise instructions; that the instructions actually given to him had been founded on his own letters received here in January, in which were set forth the particulars of several conversations that had passed between him and Mr. Madison, Mr. Gallatin, and yourself, but especially the two last; that it appeared from these conversations that, in the opinion of the persons with whom they were held, the Government of the United States would be willing that Great Britain should consider the measures then contemplated by Congress, relative to non-intercourse, and the indiscriminate exclusion of belligerent vessels from our waters, as presenting an opening for the renewal of amicable discussions with this country; that it would be disposed, in the case of the Chesapeake, to receive as sufficient reparaAdmiral Berkeley, the restoration of the seamen forcibly tion, in addition to the prompt disavowal and recall of taken out of that vessel."

In the next page of the same letter, Mr. Pinkney says, Mr. Canning proceeded to inform me, that, in consequence of these representations on the part of Mr. Erskine, two sets of instructions had been forwarded; the one relating to the Chesapeake, the other to the Orders in Council. What was the representation of Mr. Erskine as to the Chesapeake :

"That the American Government would be disposed to receive as sufficient reparation, in addition to the prompt disavowal and recall of Admiral Berkeley, the restoration of the seamen forcibly taken out of that vessel."

What was the reparation tendered by Mr. ErsThe arrangement entered into with Mr. Erskine? Precisely what is here stated, with the kine consisted of three parts

1. Reparation for the affair of the Chesapeake. 2. A withdrawal of the Orders in Council. 3. A promise to send over a Minister with full powers to conclude a treaty on all the subjects of difference between the United States and Great Britain.

addition only of a provision for the families of the unfortunate sufferers, if acceptable to the American Government. No mention is made of any condition in the representation of Mr. Erskine, on which the instruction was founded-nor is it probable that any conditions were contained in the instruction itself. But, sir, let us take the Let us pass in review the several parts of the disavowal as stated by Mr. Jackson. In page 63 arrangement, and see how far on each there has of the correspondence will be found the memobeen such a departure from instructions, as to war-randum tendered to the Secretary of State in the rant the course pursued by the British Ministry. following words: 1. The reparation for the outrage on the Chesapeake

"The President's proclamation of July, 1807, prohibiting to British ships of war the entrance into the The instructions of Mr. Erskine on this subject harbors of the United States, having been annulled, are not known to us; Mr. Jackson has not pointed His Majesty is willing to restore the seamen taken out to any despatch in which they were contained. of the Chesapeake, on reserving to himself a right to There is strong ground indeed for believing that claim, in a regular way, by application to the American as to the Chesapeake, there has been no departure Government, the discharge of such of them, if any, as from instructions; the instructious on this sub- shall be proved to be either natural born subjects of ject, and indeed on the Orders in Council, are His Majesty, or deserters from His Majesty's service. said to have been founded on a representation "His Majesty is willing to make a provision for the made by Mr. Erskine to the British Minister, Mr. | families of such men as were slain on board the

H. OF R.

Conduct of the British Minister.

Chesapeake, in consequence of the unauthorized attack upon that frigate, provided that such bounty shall not be extended to the family of any man who shall have been either a natural born subject of His Majesty, or a deserter from His Majesty's service."

And, in page 98, Mr. Jackson says, on the subject of the Chesapeake:

"When I informed you that the agreement concluded here in April last had been framed in deviation from the instructions given for the occasion, my explanation was intended to apply to both parts of that agreement. That nothing, required by the most scrupulous accuracy, may be wanting, I now add, that the deviation consisted in not recording, in the official document signed here, the abrogation of the President's proclamation of the 2d July, 1807, as well as the two reserves specified in the paper of memoranda enclosed in my official letter to you of the 27th ult."

It appears, then, that the tender of reparation for the Chesapeake is disavowed:

1. Because the repeal of the proclamation of the President was not recorded in the instrument by which the reparation was made.

2. Because it did not contain a stipulation admitting the right, on the part of Great Britain, to claim a discharge from our service of deserters generally, and particularly of her natural born subjects, without excepting such as had been naturalized in due form by the United States.

The first condition was entirely useless, because the proclamation was repealed.

DECEMBER, 1809.

were prescribed to Mr. Erskine for the conclusion of an arrangement with this country on the matter to which it relates. In page 69 of the correspondence, Mr. Jackson says: "In his despatch of the 23d of January, Mr. Secretary Canning distinctly says to Mr. Erskine: 'Upon ' receiving through you on the part of the Amer'ican Government a distinct and official recogni'tion of the three above-mentioned conditions, 'His Majesty will lose no time in sending to 'America a Minister fully empowered to consign them to a formal and regular treaty. This Min'ister would, of course, have been provided with a full power; but Mr. Erskine was to be guided by his instructions, and had the agreement con'cluded here, been conformable to them, it would, without doubt, have been ratified by His Ma'jesty."

Let us, then, turn to the conditions contained in the despatch of the 23d of January, to which Mr. Jackson refers, vide page 13th, Correspondence. These conditions are:

1st. "That the American Government is prepared, in the event of His Majesty's consenting to withdraw the Orders in Council of January and November, 1807, to withdraw, contemporaneously on its part, the interdiction of its harbors to ships of war, and all non-intercourse and non-importation acts, so far as respects Great Britain, leaving them in force with respect to France, and the Powers which adopt or act under her

decrees.

2d.

That America is willing to renounce, during the present war, the pretension of carrying on in time of war all trade with the enemy's colonies, from which she was excluded during peace.

3d. "Great Britain, for the purpose of securing the operation of the embargo, and the bona fide intention of America to prevent her citizens from trading with France, and the Powers adopting and acting under the French decrees, is to be considered as being at liberty to capture all such American vessels as may be found attempting to trade with the ports of any of these Powers; without which security for the observance of Great Britain alone, would, in fact, raise it with rethe embargo, the raising it nominally, with respect to spect to all the world."

The second condition has no connexion with the subject. Stipulations on the subject of deserters, or on any other subject, ought to have been reserved for arrangement by treaty. They could not honorably be tendered to the American Government as the price of reparation for an injury. The nation or individual tendering reparation for an injury cannot give better proof of treachery of the basest kind, than to clog it with disgraceful conditions, which insure its rejection. Who, sir, are the natural born subjects of Great Britain? All persons born within the dominions of Great Britain, whether naturalized by the laws of other countries or not. We are refused reparation for an atrocious injury, because we will not purchase it by a surrender of the rights of our naturalized citizens. The disavowal of the reparation for the Chesapeake manifests not only bad faith on the part of the British Ministry, but proves irre-ion with the subject; and the third, he says, sistibly to my mind, that if such a condition was could not with propriety constitute any part of a contained in Mr. Erskine's instructions, it was formal stipulation. In page 13th of the last Mesnot intended he should make us reparation. The sage of the President, containing extracts from veil attempted to be thrown over this transaction, Mr. Pinkney, Mr. Pinkney says: viz: a departure from instructions, is too thin to conceal the base perfidy by which it is charac

terized.

I now, sir, proceed to examine the second part of the arrangement, viz: the Orders in Council.

The stipulation for a withdrawal of the Orders in Council has also been disavowed, on account of a departure from instructions. The departure consists in Mr. Erskine's not obtaining a recognition of three conditions contained in the despatch of the 23d of January, which, Mr. Jackson says, was the only despatch by which the conditions

of these conditions was substantially obtained. By the arrangement with Mr. Erskine, the first The second, Mr. Canning admits, has no connex

"Upon the second of the conditions mentioned in Mr. Erskine's instructions, I made several remarks, I stated that it had no necessary connexion with the Great Britain by the reduction of almost all the coloprincipal subject; that it had lost its importance to to be affected by it; that it could not apply to Guada nies of her enemies; that Batavia was understood not loupe, (the only other unconquered colony,) since it was admitted that we were not excluded from a trade with Guadaloupe in peace; that I did not know what the Government of the United States would, upon sufficient inducements, consent to do upon this point, but that it could scarcely be expected to give the implied

Conduct of the British Minister.

sanction which this condition called upon it to give to the rule of the war of 1756, without any equivalent or reciprocal stipulation whatsoever. Mr. Canning admitted that the second condition had no necessary connexion with the Orders in Council, and he intimated that they would have been contented to leave the sub- "Such observations will be communicated more project of it to future discussion and arrangement. He perly through the Minister whom His Majesty has added, that this condition was inserted in Mr. Erskine's directed to proceed to America; not on any special instructions, because it had appeared from his own re- mission, (which Mr. Erskine was not authorized to proport of conversations with official persons at Wash-mise, except upon conditions, not one of which he has ington, that there would be no difficulty in agreeing