History of the United States During the Administrations of Thomas Jefferson/Second/II:4

Chapter 4: The Orders in CouncilEdit

The Orders in Council of Nov. 11, 1807, gave an impulse so energetic to the history of the United States; they worked so effectually to drive America into a new path, and to break the power and blot out the memory of Virginia and Massachusetts principles,—that every detail of their history was important. Englishmen were little likely to dwell on acts of which even at the time England was at heart ashamed, and which she afterward remembered with astonishment. To Americans alone the statesmanship of Spencer Perceval and George Canning was a matter of so much interest as to deserve study.

At the close of the year 1806 American merchants might, as always before, send cargoes of West Indian produce to any port on the continent not blockaded, provided they could satisfy British cruisers and courts that the cargo was in good faith neutral,—not French or Spanish property disguised. Jan. 7, 1807, Lord Howick issued the Order in Council which, under pretence of retaliation for Napoleon's Berlin Decree, cut off the coasting rights of neutrals. After that time the American merchant might still send a ship to Bordeaux; but if the ship, finding no market at Bordeaux, should resume her voyage, and make for Amsterdam or the Mediterranean, she became fair prize. Something has been already said[1] upon the character of Lord Howick's order, and on the subsequent debate in Parliament, when, February 4, Spencer Perceval attacked the Whig ministry for not carrying the principle of retaliation far enough. Two objects were to be gained, said Perceval[2] from the opposition bench: the first and greatest was to counteract the enemy's measures and protect English trade; the second was to distress France. Howick's order neither did nor could effect either object; and Perceval called for a measure which should shut out colonial produce from France and Spain altogether, unless it came from England and had paid a duty at a British custom-house to enhance the price. If Lord Howick's principle of retaliation was good for anything, Perceval contended it was good to this extent; and as for neutrals, there was no necessity for consulting them,—all they could reasonably expect was a notice.

The Whigs naturally replied to Perceval that before further punishing America for the acts of France, America should be allowed time to assert her own rights. This suggestion called out Lord Castlereagh, who frequently spoke the truth in ways inconvenient to his colleagues and amusing to his enemies. In this instance he admitted and even accented a point which became afterward the strongest part of the American argument. He ridiculed the idea of waiting for America to act, because notoriously the Berlin Decree had not been enforced against American commerce:—

"This is one ground why we should look upon America with jealousy. It is an aggravation that she has, by a secret understanding with the French government, contrived to take her shipping out of the operation of the decree, that was at first general, and placed herself in a situation of connivance with the French government."

A few weeks afterward Perceval and Castlereagh took office. One of their first acts set on foot a parliamentary inquiry into the state of West Indian commerce. The report of this committee, presented to the House July 27, was ordered to be printed August 8. August 10 the House voted to take it into consideration early in the next session; and four days afterward Parliament was prorogued, leaving ministers to deal at their leisure with the "Chesapeake" affair, the Danish fleet, and Napoleon's attempts to exclude English manufactures and commerce from Europe.

Napoleon's Berlin Decree of Nov. 21, 1806, had remained till then almost a dead letter. The underwriters at Lloyds, alarmed at first by the seizures made under that decree, recovered courage between April and August, 1807, so far as to insure at low rates neutral vessels bound to Holland and Hamburg. This commerce attracted Napoleon's notice. August 19 he threatened his brother Louis, King of Holland, to send thirty thousand troops into his kingdom if the ports were not shut;[3] August 24 he sent positive orders[4] that his decree of Berlin should be executed in Holland; and in the last days of August news reached London that a general seizure of neutral vessels had taken place at Amsterdam.[5] From that moment no ship could obtain insurance, and trade with the Continent ceased. Soon afterward the American ship "Horizon" was condemned by the French courts under the Berlin Decree, and no one could longer doubt that the favor hitherto extended to American commerce had also ceased.

These dates were important, because upon them hung the popular defence of Perceval's subsequent Orders in Council. No argument in favor of these orders carried so much weight in England as the assertion that America had acquiesced in Napoleon's Berlin Decree. The President had in fact submitted to the announcement of Napoleon's blockade, as he had submitted to Sir William Scott's decisions, Lord Howick's Order in Council, the blockade of New York, and the custom of impressment, without effectual protest; but the Berlin Decree was not enforced against American commerce until about Sept. 1, 1807, and no one in America knew of the enforcement, or could have acted upon it, before the British government took the law into its own hands.

The month of September passed, and the British ministry was sufficiently busy with the bombardment of Copenhagen and the assault on the "Chesapeake," without touching neutral trade; but October 1 Lord Castlereagh wrote a letter[6] to Perceval, urging retaliation upon France in order to make her feel that Napoleon's anti-commercial system was useless, and in order to assert for future guidance the general principle that England would reject any peace which did not bring commerce with it. The idea presented by Castlereagh was clear and straightforward,—the double-or-quits of a gambler; and however open to the charge of ignorance or violence, it was not mean or dishonest.

In reply Perceval drew up a paper of suggestions[7] for the use of the Cabinet, dealing first with the justice, next with the policy of retaliation. Of its justice as against France he thought there could be no doubt, while Lord Howick's order had already asserted the principle as against neutrals, even before it could be known whether neutrals would retaliate on their own account; but apart from this precedent, "the injury which neutrals sustain is consequential; the measure is not adopted with a view to injure the neutrals, but to injure the enemy." Perhaps Perceval felt that this argument might lead too far, and that on such a doctrine England might appropriate the world on every declaration of war; for in the next paragraph he pleaded the particular war in which England was actually engaged as his warranty:

"When an enemy arises who declares to all the world that he will trample upon the law of nations, and hold at nought all the privileges of neutral nations when they do not suit his belligerent interests; and when by the great extent of his power he is enabled in great measure to act up to his declaration,—it is evident that if those Powers with which he is at war should continue to hold themselves bound to rules and obligations of which he will not acknowledge the force, they cannot carry on the contest on equal terms. And the neutral who would control their hostility by those rules and laws which their enemy refuses to recognize, and which such neutral does not compel that enemy to observe, ceases to be a neutral by ceasing to observe that impartiality which is the very life and soul of neutrality."

This allegation differed from the first. Perceval began by maintaining that England possessed a right, if she chose, to suppress the existence of America or of any other neutral, provided the suppression were consequential on an intent to injure France. He next argued that the existence of America might be equally suppressed because she had not yet succeeded in compelling France to observe neutral privileges, which so far as she was concerned had not been violated. If these two propositions were worth making, they should have settled the question. Yet Perceval was not satisfied; he took a third ground:—

"This question, however, need not now be argued to the extent which was necessary to justify the assertion of the late Government; because whatever might be the doubts upon it when the decree of France first issued, and before it was known to what extent neutrals would resist or acquiesce in it, since those neutrals have acquiesced in it, or at least have not resisted or resented it to the extent of obtaining a formal recall of the decree and an open renunciation of the principle which dictated it, nor the abandonment of the practices which flow from it,—they by their acquiescence and submission have given to Great Britain a right to expect from them (when her interests require the exertion of measures of correspondent efficacy) a forbearance similar to that which they have shown toward her enemy."

If Perceval's two opening premises gave a strange idea of English statesmanship, his third was little creditable to the English bar. He took the ground that England might do what she would with American commerce, because America, whatever effort she might have made, had not already forced Napoleon to recall a decree from the application of which the United States notoriously had till within six weeks been exempted. Lord Castlereagh's doctrine that America's exemption aggravated her offence was a wide-minded argument by the side of Perceval's assertion that America's acquiescence was proved by the French decree itself. Considering that America had in this sense acquiesced in Sir William Scott's decisions and the wholesale confiscation of her commerce, in the impressment of her native citizens and their compulsory service in the British navy, in the blockade of New York, in Fox's paper blockade of the German coast, in Lord Howick's Order in Council, and perhaps even in the "Chesapeake" outrage, Perceval's argument must have seemed convincing to Napoleon, if not to President Jefferson. If the law of nations thus laid down was sound, the continued presence of American citizens in British ships of war was alone sufficient proof of American acquiescence in impressment to warrant Napoleon in acting without regard to neutral rights. From a neutral or French point of view Perceval's reasoning not only conceded the legality of the Berlin Decree, but barred his own right of retaliation, since England, as the first and worst offender, could not properly profit by her own misdeeds.

There Perceval rested his case, so far as concerned the law. His three grounds were (1) That as a neutral the United States could complain of no retaliation between belligerents, unless this retaliation was avowedly adopted with a view to injure neutrals; (2) That America ceased to be a neutral from the moment that she wished England to observe rules which France refused to recognize, and which America did not at once compel France to recognize; and (3) That the continued existence and recent enforcement of the Berlin Decree were sufficient proof of the neutral's acquiescence.

Thus a measure of vital consequence to England was proposed to the Cabinet on grounds which would hardly have been sufficient to warrant an injunction to restrain a private nuisance. So far as argument was concerned, Perceval had no more to say. Having in his opinion established his legal right to do what he pleased with American commerce, he next discussed the policy and extent of the proposed interference. His first idea was comparatively moderate.

"If we actually prohibit all intercourse between neutrals and the enemies' colonies," he continued, "or between neutrals and the enemies' continental possessions, it would be such a severe blow upon the trade of America as might make it no unreasonable choice on her part to prefer the dangers and chances of war to such a restriction upon her trade. I should therefore wish to leave such advantages still to neutral trade as to make it quite clear to be the policy of America, if she is wise, to prefer the neutral trade that will be left to her to the total stoppage of her trade with the enemy and with ourselves which a war might occasion.... With this view, therefore, I would recommend to relax thus far in the rigor of our retaliatory prohibitions as to leave to neutral nations the right of trading directly in articles of their own growth, produce, and manufacture exported in their own vessels to enemies' countries, and of importing from the enemies' countries for their own use articles the growth, produce, and manufacture of such enemies' countries; that is, leaving to them free the direct trade between the enemy and themselves in articles of their respective growth, etc., but to prohibit the re-exportation of any articles the growth, etc., of the enemies' countries or their colonies, or the carriage of them to any other country but their own."

Perceval's first suggestion was far from being so radical as the measure at last adopted. He proposed to cut off France from her colonies and force all trade between those colonies and Europe to pass through British hands; but an American ship laden with American cotton or wheat might still sail from the United States direct to France and return to the United States, or might carry provisions and lumber to Martinique and Cuba, carrying French or Spanish sugar back to New York. This so-called "direct" trade was to be untouched; the "indirect" or carrying trade between the West Indies and the continent of Europe was to be permitted only under special licenses to be issued by British authorities.

In this shape Perceval sent his suggestions to the Prime Minister, the Duke of Portland, who gave his entire approval to the principle of retaliation as against France, but wished to retaliate against France alone:[8] "Considering the unpopularity which, it cannot be denied, we are held in throughout the Continent, I very much doubt whether we should limit this intercourse beyond the actual dominions of France. I am well aware that by admitting the intercourse with Holland and Spain, France will obtain circuitously those supplies which she will stand in want of."

This disadvantage, the Duke thought, could be largely compensated by a rigid observance of the navigation laws. The Duke's opinion was very short, and barely hinted at the American question.

John Fane, Earl of Westmoreland, Lord Privy Seal,—Sot Privé, or Privy Fool, as Canning afterward nicknamed him by a pun on the French word sceau,[9]—gave next his written opinion on the subject.[10] Going beyond either Perceval or Portland, he urged the expediency of stopping all trade with the enemy except through the medium of England,—"the effect of which must be either to distress them to such a degree as to induce a relaxation of their decrees, or to cause a great trade from this country. Its effect in case of an extension of hostility can certainly not be ascertained; but I am disposed to think that we cannot carry on war allowing our enemy advantages of commerce as in peace, and that if we only do what is right we must take our chance for the consequences."

The next opinion was apparently that of Lord Hawkesbury, the Home Secretary, who was also clear that Perceval's plan wanted energy. While supporting the Duke of Portland in narrowing its scope to France, or at the utmost to Holland, he favored harsher treatment of America:[11]

"I incline strongly to the opinion that it is expedient to put an end, as far as in us lies, to all intercourse by sea between neutrals and the continental dominions of France, and possibly of Holland. I am satisfied that the measure of retaliation as proposed in the enclosed paper would have no other effect than to raise the price of colonial produce in France to a small degree. It would offend neutrals, particularly the Americans, and inflict no adequate injury upon the enemy. But if we should determine to prevent all intercourse whatever with the ports of France except by British license, we should have it in our power to destroy at once all the remaining commerce of France, which by means of neutrals is not inconsiderable, and to strike a most important blow against her agriculture by preventing the exportation of her wines."

Lord Hawkesbury kept in view the retaliatory character of the measure as a punishment of France. Lord Castlereagh, the Secretary for War, was not quite so careful.[12] He acquiesced in Perceval's scheme, provided it should reserve the right to extend its own application whenever the balance of advantage should favor the extension; but he added,—

"I am of opinion that some decisive measure, in vindication of our own commerce and in counteraction of the unsocial system of France,—the principle of which is not the growth of this war, but was acted upon by her throughout the late short peace,—is become indispensable, not merely as a measure of commercial policy, but in order to put the contest in which we are engaged upon its true grounds in the view of our own people and of the world. It is no longer a struggle for territory or for a point of honor, but whether the existence of England as a naval power is compatible with that of France."

Avowing that a commercial transaction was his object, and that the punishment of France was secondary to a "vindication of our own commerce," Castlereagh assumed that punishment of France and "vindication" of English commerce were both belligerent rights, as though the right to kill an adversary in a duel implied the right to pick a bystander's pocket. His colleague and rival Canning was not so confused, for Canning's duties obliged him to defend the new policy against neutral objections. Carefully as the other ministers mingled the ideas of retaliation and of commerce, the double motive of Perceval's measure had never been concealed; the intention to permit a licensed trade with France was avowed. Perceval and Castlereagh wanted, not to take commerce from France, but to force commerce upon her; and none of their colleagues could detect this inconsistency so readily as Canning, whose duties would oblige him to assert before the world that retaliation alone was the object of a measure which he privately knew to have no motive but that of commercial rivalry. Canning's written opinion, beginning by affirming in strong terms the right and justice of retaliation, continued as follows:[13]

The question of policy is all that remains; and in this view I should think all such modifications as go to lighten the burden imposed upon neutrals, and as are obviously intended for that purpose, more advisable than any direct reservations for our own interest and advantage. For this reason I would rather confine the measure to a part of the countries in the occupation of the enemy (a large part to be sure,—France and Holland, for instance), and apply it in all its rigor to that part, than extend it to the whole and relax it generally by complicated exceptions and regulations. And I would keep out of sight the exceptions in favor of ships going from this country, the benefit of which might be equally obtained by licenses; but the publication of that exception would give to the measure the air of a commercial rather than a political transaction."

By the end of October all the Cabinet opinions were in Perceval's hands, and he began the task of drafting the proposed orders. His original draft[14] contained an elaborate preamble, asserting that Napoleon's decrees violated the laws of nations, which Perceval broadly maintained were binding on one belligerent only when the obligation was reciprocally acknowledged by the other; that neutrals had not resented and resisted the outrage, "nor interposed with effect for obtaining the revocation of those orders, but on the contrary the same have been recently reinforced;" that Lord Howick's retaliatory order had served only to encourage Napoleon's attempts; that his Majesty had a right to declare all the dominions of France and her allies in a state of blockade; but "not forgetting the interests of neutral nations, and still desirous of retaliating upon the commerce of his enemies with as little prejudice to those interests" as was consistent with his purpose, he would for the present prohibit only trade which neutrals might be disposed to pursue in submission to the French decrees, and require that such trade should pass to or from some British port.

Then followed the order, which prohibited all neutral trade with the whole European sea-coast from Copenhagen to Trieste, leaving only the Baltic open. No American vessel should be allowed to enter any port in Europe from which British vessels were excluded, unless the American should clear from some British port under regulations to be prescribed at a future time.

This draft was completed in the first days of November, and was sent to Lord Bathurst, President of the Board of Trade, who mercilessly criticised the preamble, and treated his colleague's law with as little respect as though Bathurst were an American.

"I wish the principle of retaliation," wrote Lord Bathurst, "not to be unqualifiedly advanced, for which I think there is no necessity. May it not be said that in a contest with an unprincipled enemy the doctrine of retaliation is one dangerous to admit without qualifications? I own I do not like the word. If my enemy commits an act of injustice, I am not therefore justified in committing the same, except so far as may be necessary, in consequence of his act, either to protect myself from injury, or prevent a recurrence to, or continuance in, such acts of injustice. All operations of war are justified only on the principle of defence. Retaliation seems to admit something of a vindictive spirit."

The Board of Trade was not usually scrupulous in dealing with American commerce; but in this instance Earl Bathurst let it be plainly seen that he wished to have no share of responsibility for Perceval's casuistry. The longer he studied the proposed order the less he liked it; and in the end he wrote an opinion contrary to his first. He withdrew his assent to the order altogether, and hinted some unpleasant truths in regard to it.

"Our ability to continue the war," he said,[15] "depends on our commerce; for if our revenues fail from a diminution of our commerce, additional imports will only add to the evil. The enemy forms one great military empire. The extent of country he covers does not render him so dependent on an export and import trade. The whole of that trade might perish and he could still continue the war. If one third of ours were to fail we should be soon reduced to peace."

The proposed order, Bathurst argued, not only restricted the neutral trade still further than had been done by Napoleon, but risked war with Russia and America, without materially hurting France; he added an argument which struck at the foundation of Perceval's policy:—

"The object of the proposed order, though general, is in fact nothing but the colonial trade carried on through America; and by making it general we unite Russia in defence of a trade with which she has no concern or any interest to defend. As far as America is concerned, it must be expected she will resist it; and an American war would be severely felt by our manufacturers, and even by the very class of merchants now so eager for some measure of relief. We might therefore have to fight for a rule of war, new, the policy of which would be questionable, to support an interest which would be the first to suffer by the war,—against two countries, one of which the order unnecessarily mixes in the question, and with both of which we have great commercial relations."

Bathurst closed by expressing a preference for the Rule of 1756, or for a blockade of the West Indian Islands,—which, if the Admiralty thought it practicable, Bathurst considered as the best of all the measures proposed; but besides this radical change, he demanded certain alarming reforms. He complained to Perceval that already, even under the existing orders, such abuses prevailed that in order to prevent a public parliamentary inquiry he had been obliged by the general clamor of merchants to investigate their grievances:[16]

"The result of the examination established the truth of the vexations to which the trade is now subject by privateers, who are enabled to persevere in them in consequence of the commercial restrictions and the proceedings of the Court of Admiralty. In a communication I had with Sir William Scott, who had been very angry with the inquiry, I proposed some regulations which, indeed, I knew would be unsatisfactory unless there were some alterations in the proceedings of his Court,—a subject which I did not venture to touch."
Lord Bathurst's well-meant efforts for reform, gentle as they were, showed him the fortresses in which corruption was already entrenched. Sir William Scott, like his brother Lord Eldon, never relaxed his grasp on a profitable abuse. He gave cogent reasons for rejecting Lord Bathurst's suggestions, and could afford to disregard the danger of interference, for Spencer Perceval was completely under the influence of Lord Eldon. Bathurst urged Perceval to reform the license-system, so that at least the license should give complete protection to the cargo, no matter to whom the cargo might belong; and he hoped that this reform would put an end to the abuses of the Admiralty Court. "But," he added, "I did not venture to give this as my reason before Sir John Nichol [advocate-general], for you must be aware that both his profits and those of Sir William Scott depend much on privateers and the litigations which, it is my hope, will by this alteration be considerably diminished."

Many members of the British government and nearly the whole British navy were growing rich on the plunder of American commerce. From King George downward, mighty influences were involved in maintaining a system which corrupted law officers, judges, admirals, and even the King himself. Spencer Perceval's proposed Order in Council extended these abuses over whatever branches of commerce had hitherto been exempt; turned a new torrent of corruption into the government; and polluted the sources of British honor. In the light of Lord Bathurst's protest, and his significant avowal that the object of the proposed order, though general in form, was in fact nothing but the colonial trade carried on through America, Canning might well wish to publish nothing that would draw attention to what he called the "commercial" side of the affair. Jefferson's measures of peaceful coercion bore unexpected results, reacting upon foreign nations by stimulating every mean and sordid motive. No possible war could have so degraded England.

As the Cabinet came closer to the point, the political, or retaliatory, object of the new order disappeared, and its commercial character was exclusively set forth. In a letter written about November 30, by Spencer Perceval to Charles Abbot, Speaker of the House of Commons, not a word was said of retaliation, or of any political motive in this process of "recasting the law of trade and navigation, as far as belligerent principles are concerned, for the whole world."

"The short principle is," said Perceval,[17] "that trade in British produce and manufactures, and trade either from a British port or with a British destination, is to be protected as much as possible. For this purpose all the countries where French influence prevails to exclude the British flag shall have no trade but to or from this country, or from its allies. All other countries, the few that remain strictly neutral (with the exception of the colonial trade, which backward and forward direct they may carry on), cannot trade but through this being done as an ally with any of the countries connected with France. If therefore we can accomplish our purpose, it will come to this,—that either those countries will have no trade, or they must be content to accept it through us. This is a formidable and tremendous state of the world; but all the part of it which is particularly harassing to English interests was existing through the new severity with which Bonaparte's decrees of exclusion against our trade were called into action. Our proceeding does not aggravate our distress from it. If he can keep out our trade he will; and he would do so if he could, independent of our orders. Our orders only add this circumstance: they say to the enemy, 'If you will not have our trade, as far as we can help it you shall have none; and as to so much of any trade as you can carry on yourselves, or others carry on with you through us, if you admit it you shall pay for it. The only trade, cheap and untaxed, which you shall have shall be either direct from us, in our own produce and manufactures, or from our allies, whose increased prosperity will be an advantage to us.'"

These private expressions implied that retaliation upon France for her offence against international law was a pretence on the part of Perceval and Canning, under the cover of which they intended to force British commerce upon France contrary to French wishes. The act of Napoleon in excluding British produce from French dominions violated no rule of international law, and warranted no retaliation except an exclusion of French produce from British dominions. The rejoinder, "If you will not have our trade you shall have none," was not good law, if law could be disputed when affirmed by men like Lord Eldon and Lord Stowell, echoed by courts, parliaments, and press,—not only in private, but in public; not only in 1807, but for long years afterward; and not only at moments, but without interruption.

Thus Canning, although he warned Perceval against betraying the commercial object of his orders, instructed[18] Erskine at Washington to point out that American ships might still bring colonial produce to England, under certain regulations, for re-export to France. "The object of these regulations will be the establishment of such a protecting duty as shall prevent the enemy from obtaining the produce of his own colonies at a cheaper rate than that of the colonies of Great Britain." Not to distress France, but to encourage British trade, was, according to Canning, the object of this "political" weapon.

Thus Perceval, in the debate of Feb. 5, 1808, in discussing the policy of his order, affirmed that the British navy had been "rendered useless by neutral ships carrying to France all that it was important for France to obtain."[19] The Rule of 1756, he said, would not have counteracted this result,—a much stronger measure was necessary; and it was sound policy "to endeavor to force a market." Lord Bathurst, a few days afterward, very frankly told[20] the House that "the object of these orders was to regulate that which could not be prohibited,—the circuitous trade through this country,"—in order that the produce of enemies' colonies might "be subjected to a duty sufficiently high to prevent its having the advantage over our own colonial produce;" and Lord Hawkesbury, in the same debate, complained[21] that neutrals supplied colonial produce to France at a much less rate than the English paid for it. "To prevent this," he said, "was the great object of the Orders in Council." James Stephen's frequent arguments[22] in favor of the orders turned upon the commercial value of the policy as against neutrals; while George Rose, Vice-President of the Board of Trade, went still further, and not only avowed, in the face of Parliament, the hope that these Orders in Council would make England the emporium of all trade in the world, but even asserted, in an unguarded moment of candor, that it was a mistake to call the orders retaliatory,—they were a system of self-defence, a plan to protect British commerce.[23]

Thus, too, the orders themselves, while licensing the export through England to France of all other American produce, imposed a prohibitive duty on the export of cotton, on the ground—as Canning officially informed[24] the American government—that France had pushed her cotton manufactures to such an extent as to make it expedient for England to embarrass them.

According to the public and private avowals of all the Ministry, the true object of Perceval's orders was, not to force a withdrawal of the Berlin Decree so far as it violated international law, but to protect British trade from competition. Perceval did not wish to famish France, but to feed her. His object was commercial, not political; his policy aimed at checking the commerce of America in order to stimulate the commerce of England. The pretence that this measure had retaliation for its object and the vindication of international law for its end was a legal fiction, made to meet the objections of America and to help Canning in maintaining a position which he knew to be weak.

After this long discussion, and after conferences not only with his colleagues in the Cabinet, but also with George Rose, Vice-President of the Board of Trade, with James Stephen, who was in truth the author of the war on neutrals, and with a body of merchants from the city,—at last, Nov. 11, 1807, Spencer Perceval succeeded in getting his General Order approved in Council. In its final shape this famous document differed greatly from the original draft. In deference to Lord Bathurst's objections, the sweeping doctrine of retaliation was omitted, so that hardly an allusion to it was left in the text; the assertion that neutrals, had acquiesced in the Berlin Decree was struck out; the preamble was reduced, by Lord Eldon's advice, to a mere mention of the French pretended blockade, and of Napoleon's real prohibition of British commerce, followed by a few short paragraphs reciting that Lord Howick's order of Jan. 7, 1807, had "not answered the desired purpose either of compelling the enemy to recall those orders or of inducing neutral nations to interpose with effect to obtain their revocation, but on the contrary the same have been recently enforced with increased rigor;" and then, with the blunt assertion that "his Majesty, under these circumstances, finds himself compelled to take further measures for asserting and vindicating his just rights," Perceval, without more apology, ordered in effect that all American commerce, except that to Sweden and the West Indies, should pass through some British port and take out a British license.

The exceptions, the qualifications, and the verbiage of the British Orders need no notice. The ablest British merchants gave up in despair the attempt to understand them; and as one order followed rapidly upon another, explaining, correcting, and developing Perceval's not too lucid style, the angry Liberals declared their belief that he intended no man to understand them without paying two guineas for a legal opinion, with the benefit of a chance to get a directly contrary opinion for the sum of two guineas more.[25] Besides the express provisions contained in the Order of November 11, it was understood that American commerce with the enemies of England must not only pass through British ports with British license, but that colonial produce would be made to pay a tax to the British Treasury to enhance its price, while cotton would not be allowed to enter France.

The general intention, however confused, was simple. After November 11, 1807, any American vessel carrying any cargo was liable to capture if it sailed for any port in Europe from which the British flag was excluded. In other words, American commerce was made English.

This measure completed, diplomacy was to resume its work. Even Canning's audacity might be staggered to explain how the government of the United States could evade war after it should fairly understand the impressment Proclamation of October 17, the Order in Council of November 11, and the Instructions of George Henry Rose,—who was selected by Canning as his special envoy for the adjustment of the "Leopard's" attack on the "Chesapeake," and who carried orders which made adjustment impossible. Such outrages could be perpetrated only upon a helpless people. Even in England, where Jefferson's pacific policy was well understood, few men believed that peace could be longer preserved.


  1. See vol. iii. p. 416.
  2. Cobbett's Debates, Feb. 4, 1807, viii. 620-656.
  3. Napoleon to Champagny, Aug. 19, 1807; Correspondance, xv. 509.
  4. Same to Same, Aug. 24, 1807; Ibid., p. 542.
  5. Parliamentary Inquiry, 1808; Evidence of Robert Shedden and Mr. Hadley.
  6. Castlereagh to Perceval, Oct. 1, 1807; Castlereagh Correspondence, viii. 87.
  7. Original Suggestions to the Cabinet, Oct. 12, 1807; Perceval MSS.
  8. Opinion of the Duke of Portland; Perceval MSS.
  9. Stapleton's Canning, p. 411.
  10. Opinion of the Earl of Westmoreland; Perceval MSS.
  11. Opinion of Lord Hawkesbury; Perceval MSS.
  12. Opinion of Lord Castlereagh; Perceval MSS.
  13. Opinion of Mr. Canning; Perceval MSS.
  14. First Draft of Orders in Council, with remarks by Earl Bathurst; Perceval MSS.
  15. Opinion of Lord Bathurst in dissent to the Principle of Mr. Perceval's proposed Order; Perceval MSS.
  16. Lord Bathurst to Spencer Perceval, Nov. 5, 1807; Perceval MSS.
  17. Spencer Perceval to Speaker Abbot; Diary and Correspondence of Lord Colchester, ii. 134.
  18. Erskine to Madison, Feb. 23, 1808; State Papers, iii. 209.
  19. Cobbett's Debates, x. 328.
  20. Debate of Feb. 15, 1808; Cobbett's Debates, x. 471.
  21. Debate of Feb. 15, 1808; Cobbett's Debates, x. 485.
  22. Speech of James Stephen, March 6, 1809; Cobbett's Debates, xiii., Appendix lxxvi.
  23. Debate of March 3, 1812; report in Times and Morning Chronicle of March 4, 1812.
  24. Erskine to Madison, Feb. 23, 1808; State Papers, iii. 209.
  25. Baring's Inquiry, pp. 14, 15.