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Lorsque le document est trop grend pour Atre reproduit en un seul clichA, il est filmA A partir de I'angle supArieur gauche, de geuche A droite, et de haut en bas, an pranent le nombra d'imagas nAcessaire. Las diagrammes suivants illustrent la mAthode. 1 2 3 1 2 3 4 6 6 THE LIBRARY THE UNIVERSITY OF BRITISH COLUMBIA 'i-\/\^ F !f «^1l4' T v4 '14^' w:: »*••■ s > fc. ORDERS IN COUNCIL, OR AN EXAMINATION * OP THE JUSTICE, LEGALITY, AND POLICY A- 'I ' OP THE NEfF SYSTEM OP COMMERCIAL REGULATIONS, "WHTH AW TLvptntijc OF State Papers, Statutes/ and Authoritm, t LONDON: , CllINTGD rOE L»NGMAN, HURST, HERS, AND ORMF., ]>ATERN05TEIl ROW, AMD J. RIDGWAT, PICCADILLY. 1808. . • Price Four Shillings. / Examination OF THl ORDERS IN COUNCIL. T may be premised, that the enemy, and those powers under his control, or who take his part, have no right to interfere in this dis- cussion. This title is confined exclusively to two parties — the neutrals, and the people of these realms. The former have a right to de- mand whether our late proceedings are justified by the law of nations ; the latter are entitled to ask if those proceedings are consistent with the municipal law of England. They have a further right to demand if they shall be in- jured or benefited by this new system. These tiirec questions it is proposed to exumiiie in their order. 'Tfr^- ''StU^.'- I. Are the late Orders consistent with tlic law of nations ? As no man can pretend lliat England has a right to seize neutral sliips, unless they are found carr}ing contraband of war, or at- tempting to violate an actual blockade, tiie defenders of the Orders have the burden of the proof; and they must shew that there was a just cause, for attacking in this man- tier the undoubted rights of neutral nations. The only cause which can be assigned, is that France had previously done the same, and that neutrals acquiesced initj therefore we are justi- fie<:l in retaliatingupon France. This is however quite inconsistent with fact. France, by a decree, Nov. Si, 1806, declared generally, •' that the British i^sles are in a state of blockade ;" with several particular clauses, explaining what sort of blockade this was to be *. The seventh clause alone prohibits jntercourse betvvccn England and neutrals; and that, only by ordering that no vessel from an English j)ort, shall enter a French port. It does not even declare such vessel, iff actually within a French port, io be scize- able. General Armstrong, the American mi- nister at Pans, demanded, if the decree sub- jected to capture, neutral vessels found at * See At>i)ciidix. s is^^j on their voyage to, or from England ? Ill short, he asked whether the term biock- i€uk, in the first article of the decree, was iiised in its ordinary sense? The answer of M. D6cr^s, the minister of marine, (dated -Dec. 24.) was, that the decree did ^lot subject such ships to seizure "; and that nothing in -the decree was intended to infringe on the rights of neutrals, as either established by ;treatics, oi* by the common law of nations *. In other words, the decree, as so explained, .only prohibited neutral vesseis from entering a French port after having cleared out. at au English one. This prohibition is strictly consistent with the law of nations. It is in- finitely more so than our rule of the war 1756 ; it is exactly in the nature of our Navigation .Act. The explanation was acted upon at; least down to last September, when an Aineri- can vess.^l being captured, was released i>y ;..' i^rench courts i-n virtue c*" it. Some peisons 'deny that it ever was departed from; but all are agreed, tliat time was not given for America to acquiesce or resist. In Octo- hetf say some people, France condemned •Americans taken in the voyage to and from England. If so, the same persons adn/it that America would proJ)ably have resented ihis • See Appendix, fifrench of the law of nations. At any rate, long before it could be known that the intelligence of this illegal proceeding had been received in America, our orders are issued* Now upon America, we had no right to retaliate, until she should fully acquiesce in the new and confessedly illegal conduct of France. Indeed it cannot be pretended that the or- ders were issued in consequerrce of the French Government, acting upon a new construction of their decree ; for it is perfectly well known that the report of this change of conduct had not reached England on the eieventk of No- *vember, nor until some days after the orders were published ; and we are greatly misin- formed if any of the King's Ministers, in con- ferences with the mercantile bodies who addressed them on the subject, ever hinted at the report alluded to, or cited, in justification of their measures, any thing further than the words of the original decree, as explained by themselves. They knew of no variation, or alleged variation, in the conduct of the enemy with respect to that decree, until after the or- ders were passed and promulgated. Far, therefore, from giving i\\Q iieutrals time to ac- quiesce or resist, our government proceeded to retaliate before they themselves knew that t^e enemy had in the smallest degree deviated from the strict law of nations. But admitting that America should, (con- trary to all probability ) have acquiesced in the decree of November 2l, 1806 :— The French blockade consisted of two pareichant-stranger in our ports is as much under the protection of the law, and as well secured against tiie acts of tlie executive, as any subject of tiie realm. Unless the law prohiljits the exportation of certain goods hy neutrals, or tiie sailing of neutrals to certain ports, they have a right to export and to sail as much as if they were Jiege subjects. Unless the law 4;i>tubli!»hei 2d iegulations for their dealings, they may deal freely like natives, and no royal proclamation can interfere with them in any manner of Way. The crown might with the very same reason levy a tax on foreigners residing with- in tiie reahn, and plead in excuse that it has the power of making war on their nation, treating them as alien-enemies, and thui forcing them either to pay the tax or leavt the country. In defiance of these clear principles, and in direct violation of law, the late orders, among other things, have proclaimed the fol- lowing restrictions upon trade. Threejirsi orders, Nov. 11 f 1S07. • ( 1. ) By the first order, neutrals must have '■•'fared out from British ports (as well as allied ones) for the hlockaded countries un- der certain regulations, otherwise they are liable to be captured ou the voyage. This is as complete a restriction as if they were ibrccd, while in the ports of the realm, to clear out in a certain manner. "^Ihe Sovereiiia is entrusted with the naval forces for lawful purposes; not surely to cruize against such «f his subii^cts as are proceeding on lawful .*' ,!;! I voyages, nor (for the same reasons) to cruize against foreigners who have left his ports iu a lawful way. (2.) By thesccwid order, certain articles, as brandy, sugar, wine, &c. imported in neu- tral vessels can only be re-exported in the same vessels, under licence from the crown. The general objection applies here. More- over, how can any person be legally stopped in his attempts to export contrary to this order? And how can the prohibited goods be seized or forfeited ? (3. ) Certificates of origin may be found on board of vessels in the ports of the realm : therefore, the first order authorizes the evi- dently illegal act of seizing in a British port, a friendly vessel carrying neutral or British property. SLv additional ordcrSf Nov. 25, 1 807. (1.) By the second additional order, a li- cence from the crown must be obtained before a neutral ship can clear out from a British |)ort, to an enemy's colony witli fo- reign produce. (2.) By the same Order, paragraph 2, a li- cence is rt(iuircd before a iicutiul can clear out n V a ^'j di tr: 3 ■ Hi, uith certain articles, viz. foreign sugar, coffee, wrtie, cotton, &c. to any part of the world, hostile or friendly ; nay strictly interpreted, to Malta or Gibraltar. ( 3. ) By the same paragraph, no vessel (mean- ing probably no neutral vessel) can clear out from this kingdom, to any part of the w orld, with the cargoes of foreign hostile produce, which she had previously imported, without first entering and landing the same. Thus an American having imported French wine from Gottenburgh, may be prevented, by this royal edict, from sailing with it to New York, un- less she stops to enter and land it ! Upon this and every other part of these enactments, it may be remarked, that if the crown has the power to make them, the Navigation Act was nugatory. Its place might have been most adecjuately supplied by an Order in Council; yet observe what Lord C. J. Hale sa3's on this subject above. . . (4.) By the 3d paragrnph of the same Or- der, no vessel (meaning probably no neutral vessel) can clear out from Guernsey, Jersey, or IMan, with any articles imported from the blockaded country, except to some British port; nor can any such cargoes enter there, except From a British port. So that these islands in respect of all such articles arc plac- ::Ji ttl In a state of blockade, nearly as rigorotls as if tliey were enemy's territory. Every one of these provisions in the late orders, militates most directly against the whole? spirit of the Constitution as described in the laws of the realm, and the opinions of eminent writers formerly detailed. The Constitution says, merchants, as well strangers as natural subjects, shall be protected, encouraged, by all means induced to trade and settle in these realms; they shall enjoy full freedom of trade and security in all their transactions; while they are on British ground, their rights shall only be touched by the law of the land. The Orders in Councilsay, Foreign merchants are as nothing in the eye of the law — they are at the mercy of the crown — they can only, trade in our ports as the King pleases — they must conform in every particular to his will- in the ports ofthe realm, they alone, of all the inhabitants, may be prevented from sending out what vessels, and what cargoes they please, or of sailing to what foreign ports. The Con- stitution says, it is the privilege of English sub- jects to trade in English ports, with merchant strangers, the subjects of powers at amity, freely, without let or hindrance ; it is the pri- vilege of Englishmen, that free trade be car* ,, I .'"■( 27- ried on at all tiine« bv all friendly sfrantrers, • carrying botli lo and from our ports whatever may lawfully be dealt in, and on whatr.ver destination. The late Royal Edicts say, all neutral trade in English ports is under the con- trol of the Sovereign not of the law — he may impose upon it such restrictions and regulationi as he pleases. But some of the regula- tions imposed by the Orders are still more di- rectly unconstitutional. Foreign vessels are not allowed to proceed as they may think proper on their voyages, but are liable to such deten- tion as the servants of the crown may think fit to prescribe. Licences are required for cer- tain voyages; those licences may be granted upon payment of certain fees; that is, for cer- tain sums of money — or, they may be refused altogether, and the vessels detained until Par- liament shall impose certain duties upon ex- portation. In the former case, a direct tribute is levied by the Crown upon a large proportion of the trading interest, without authority of Parliament. In the latter case, the Crown of ilself takes the first ste[) towards raising an unauthorised tax. The illegality of extorting money for licenced is clear and indubitable. It is not excused by the late frequency of the practice. When the King has declared war m m m 28 upon a foreign nation, it is the duty of all liis subjects to refrjiin from intercourse with the enemy; such intercourse is unlawful, and it is the duty of the Sovereign to prevent if. If he grants to some of his subjects a licence to do that which he prevents the rest from do- ing, and exacts money for this preference, does he not levy a tribute, properly speaking, upon those who continue dutifully to abstain from this irregular traffic ? They are prevented from trading with the enemy, and others for a certain sum, profit by the monopoly of a trade, which either should be wholly prohibited, or wholly free: those others can afford to pay this sum, because of the exclusive preference given them, that is, because the bulk of the community are excluded from the traffic. The Constitution invests the King with the power of making war, to be used, like every preroga- tive, for the good of the people. It docs not invest him with the power of raising money ; or of deriving a profit from part of Wvi subjects out of the war wliich he may be ol)liged to wage for the benefit of tlic whole. " This pro- hibition" (says the Lord C. J Hale, discoursing of the King's power to lay embargoes on cer- tain branches of trade, upon pressing occa- sions) "neither ought nor might be an engine y of all ie with ul. and vent if. ence to om do- ce, does I, upon in from evented ;rs for a a trade, ited, or to pay ference L of the c. The ? power >reroga- locs not noncv : "iubjects liy^ed to bis pro- oursinj; on cer- : occa- cnuinc to gain money for licences; for if the procla- mation had any strength, it was because of the exportation of these things. If it were not a public inconvenience, it could not be inhibited barely by a proclamation ; and if it were a public inconvenience, it might not be licensed for private profit ; if it might, the strength of the prohibition would consequently cease" CDe Port. Mar. Pt. IL C, 8. ) The prac- tice, therefore, which has of late years crept in, is utterly repugnant to the constitutional law of England. But infinitely more so is the new step which the (Jrovvn has lately been advised to make, by prohibiting certain branches of trade, in our ports, not nverelv law- ful during war, but highly beneficial to the country-branches of trade, to the benefits of "Nvhich, the subject has an undoubted right — and then exacting money from individuals in whose favour the general prohibition is relaxed. If those impediments are only thiown in the way of this lawful and beneficial commerce to give Parliament an opportunity of taxing it; then does the crown, without any authority, commence a process of levying tribute as much contrary to law, as if it cotnprlled the subject to deliver in accounts of his income, or com- ply with the whole regulations of a tax bill, 1 80 i I I' except the actual demand of money. Nay, the proceeding is still more illegal, in as much as the trader has a right to perform his voyage until the Parliament imposes duties; and by impeding him, the crown secures his eventually paying money, which otherwise he never could have been made to pay. It might perhaps be thought, that sufficient violence had been offered to the most sacred principles of the Constitution, by the measures already exposed. But an act, if possible, still more daringly and directly illegal — an act in breach of the very letter of our written laws, has been added to the general infringements upon the rights of the subject. The men whose whole clamour was formerly raised against a Parliamentary interference with the Navigation Act, rendered absolutely necessary by the circumstances of the war, and only at- tempted with the formal, deliberate consent of the legislature, have presumed to issue, in the name of the wSovereign alone, during a proroga- tion of Parliament unnecessarily, unconstituti- onally prolonged, a proclamation, ordaining the direct violation of that very Act of Navigation, in its most essential branch. The Navigation Art, and the system of com- mercial legislation, of which it forms the chief u digestj (although it was by no means the origin of that system) has for its main object the encouragement of English shipping, and the exclusion of foreigners from the carrying trade, as far as any municipal laws crin cfFcct this purpose. The fundamental rule of the system then is, that a variety of foreign goods shall only be imported into England in English ships, or ships of the country where they are produced or manufactured. Towards the latter end of the last war, several acts were passed, giving the crown a power, for a li- mited time, (generally for about half a year) to suspend this rule of the navigation law, and permit neutrals to import from foreign coun- tries, whether at peace or at war with us: thus, 39. Geo, III, c, J 12, and 41. Geo. lU. c, J9. This last expired six weeks after the beginning of the session ISOl, and has never been re- newed. But in August, 1803, an act was passed giving the crown the power to issue orders in council, permitting, during the pre- sent war, the importation of goods from enemy's ports in neutral vessels, (4S Geo. III. c. 153. — 16} No power, however, was given to permit such importation from friendly or neutral ports, and the reason was obvious. 32 The legislature intended only to relax the navigation law, where the circumstances of the war obliged them; and to'allow the only inter- course which could be devised with the enemy; leaving all other trade under the monopoly of the British ship owner. The Second Order of November 1 1, is founded upon this statute, and although the preamble mis-states the law, the Order itself only give power to import from hostile countries. So far the mistake h not very material, and the proceeding is ru*"- ficiently legal in substance, bowever slovenly in its form. But by the First Order of November 11, especially when coupled with the Setond additional Order, November gj, although no permission whatever is given, o^' could be given, in any of the orders, to import from neutral or friendly ports in foreign vessels of a different country, yet the most express direc- tions are issued for bringing into British ports, vessels so trading, and in certain cases, for enter- ing and landing their whole cargoes. The Se- cond Order of November 1 1, gives, indeed, the option to all neutrals warned into our ports, of importing their cargoes if they please, but adds, " under the conditions prescribed by law," and as the law positively prohibits the importation now in cjuestion, the mobt fa- 33 torable interpretation of the clause is, to sup- pose that it is not meant to reach this case. If it is, the permission is utterly illegal, and whether it is intended to be given or not, the other orders compelling such importations to be made, are directly and grossly unlawful. The navigation law says, Americans shall not import goods from Prussia into England. The crown has no power by 43 Geo. 111. c. 153, to suspend this law by any Order in Council. Vet Orders and Instructions are issued forcing all Americans laden with Prussian goods Whithersoever they may be sailing, to come into some English port, to enter and land their cargoes. Upon this act of violent iisur* pation over the laws, \vhich the crown has been advised to attempt, all further commentary is superfluous. The illegality of the new system of Or- ders being quite manifest, a Bill of Indemnity will be necessary ; and Parliament may then, determine whether this illegal act is justified by any such urgency, in point of time, as prevented a delay until Parliament should assemble. In this view of the case, it may be worth while to remember that a further prorogation took place about a month after llie first Orders were issued. D si There are, indeed, various reasons for refus- ing such an Act of Indemnity as soon as the King's Ministers may apply for it. If a tem- porary pressure of circumstances had ren- dered some deviation from a particular law, or even some infringement upon the general spirit of the Constitution absolutely necessary, and Government had, fur the mean while^ and as if sensible of thfc illegality of their proceed-- ings, issued orders upon the face of them teir porary like the emergency; the Parlia- ment in its justice might have granted them that indemnity which they respectfully ^ asked. But here is a new system of Royal enactment— of executive legislation — a Privy council Code promulgated by some half dozen individuals (for as such only the law know* them) upon principles utterly repugnant to the whole theory and practice of the Consti- tution — a full grown Cabinet Satute book, not authorising any single and temporary pro- ceeding, but prescribing general rules for a length of time; dispensing with the laws of the land in some j)oints; adding to them in others ; in not a few instances annullin"- tliem. It is an entire new Law-merchant for ILngland during war, proclaimed by the court, not of Parliament, but of St. James% 35 With as much regard to the competent autho- rities, or to the rightful laws of the reahn, as the Rescripts of the latter Roman Empe- ror. It is not such a daring attempt as this that should he sanctioned by the Parliament, against whose authority it is levelled. But the Ministers, should they obtain an Indemnity, may now come forward, and propose to carry tlieir new system into ef- fect by a regular act of the legislature. It will then he for Parliament to consider whe- . ther they can by one deed of theirs over- throw the most ancient and best established principles of the British Constitution. The statute may indeed have all the formalities of law — it may supply the solemnity which the illegal orders now want. But repugnant as it must be to the genuine spirit of our Govern- ment, men may perliaps look for the sub- stance of the English law rather in those fundamental maxin>s of our jurisprudence which it will have supplanted. All the proofs formerly adduced to illustrate the un- constitutional nature of the late Orders, form in truth insurmountable objections to any measure wiiich may be proposed for erecting them into laws, unless indeed some para- mount and permanent reasons of expediency 36 can be urged, for enterprizing so mighty an innovation upon the constitution of the state. These reasons we shall now have oc- casion to discuss, in examining the policy of the new system. III. Jre the late Orders in Council con- sistent with sound po/ici/ ? The late Orders are so exceedingly con- fused, they deliver the regulations intended to be established with so little arrangement, and in some instances prescribe rules so ma- nifestly contradictory to each other, that it is not very easy to collect from them the precise nature of the new system. As an example of direct contradictions may be cited the Second order Nov. 1 1, and the Second order Nov. 25. In the former, sugar, coftee, wine, brandy, snuff and tobacco, are mentioned as among the articles which neutrals may im- port into the United Kingdom fruui enemy's ports; but must re-export under certain regu- lations. The latter order lays down these re- gulations, but substitutes cotton for tobacco; so that it remained a doubt how tobacco could be re-exported, although it was s>ill re-ex- portable : and then in the Order Dec. 18. a general prohibition of all imports, direct from J 37 ^ ■» * ■ • the enemy's colonies, is given under the form of an explanation of the former^Orders. But since the navigation law prevents the impor- tation of almost all foreign colony produce * in any except ships of the country pro- duciiig ; and since the 43 Geo. HI. c. 153, on which these orders are founded, gives no power to the crown to suspend the naviga- tion law, unless with respect to enemy's ports; it is clear that the Order Dec. 18, renounc- ing the use of this power in the present case, leaves the whole importation of the enemy's colonial produce rigorously prohibited, ex- cept cotton, indigo and cochineal, (as men- tioned in the note below) which may still be carried from the hostile colonies to Ameri- ca, and from thence, brought in IJritish ships, to this country. So that this last order, in- stead of explaining the clauses of the former Oders, relative to foreign sugar, coflee, snuffj tobacco, and cotton, reverses the permission given in those clauses to import and re-export under restrictions the four first articles, and , • Willi n few exceptions, viz. cochinoul, (13 Gio. T. c. 15), Indigo, (7 GfOt II, c, 18), nncl colton-wooh, (5 Geo. III. c. 32), which may be imported hum any plucu iu Drt* rikh shipK. 38 leaves it very doubtful whether tlie framers of the orders were aware that cotton is ex- cepted from the provisions of the navigation law. In the Second order Nov. 25, a contradiction in terms occurs, equally demonstrative of the crude, indigested form of these rules. A ves- sel arriving from whatever place with a cargo, the produce of are strlcted country, must Und it before it can rc-cxj)ort to any place; and a vessel arriving with any cargo whatever, formerly shipped in a restricted port, must land it befoie it can re-export to any place; except the caigo is the produce of an un- restricted country, and comes here directly from thence. This exception is downright non- sense, as applied to tlic rvdc. Taking its parts together, the order is — You must land French goods brought from America, and American goods brought from Fra'.ice, unless the goods are American, and brought^ directly from America. Such contusions as these make it dillicult to obtain any corrfct view of the state in whicii the orders have left the neu- lial tra-de. Ijur, as far as ihii cun be muur Orders of Council; but England, whose trade is the great support of her wealth, and which exists as a powerful nation by selling to and buying from the states of the Continent. Admitting that we can enforce our decrees most rigorously, Holland, France, Denmark, and Prussia, will no longer trade with each other by sea ; nor with America and England at all. They will lose their trade with us, and retain their trade by land with each other ; we shall at once lose our whole trade with each of them, and consequently suffer seven times more than any one of them. Wo. sliall retain our American trade; but that must be diminish- ed i,n a great degree by the loss of her Euro- pean trade which America will have sustain- ed.— Surclv the wit of man could not havi invented a contest more favourable to the jenemy than this. It is laying down our weapons and fighting him with his own; it is putting the dispute between us upon the very 44 ground which he must chuse; it is hke a dwarf agreeing to strive with a giant, stand- on the same level : it is as if we should con- sent to bum our whole navj, provided France burned all her's ; whereby we should give up a thousand ships to deprive her of fifty. But can we enforce even this bad bargain ? France may with much greater certainty prevent ships from entering her ports than we can stop them on their voyage. She may cut off the trade from England to the Con- tinent by means of neutrals; but we shall find it impossible to suspend all direct in- tercourse between those neutrals and the Con- tinent. While, therefore, the part of the new system most hurtful to us is sure of being established if the enemy pleases, the prohibi- tions which we impose on his foreign trade cannot with equal certainty be enforced. We shall destroy his trade with ourselves, in order to cut off his direct trade with neu- trals ; but he will retain a part of this trade in spite of all we can do; and unless ha feels it for his advantage will not trade with neutrals through us. A strict and general blockade of the ene- my's ports, is at least an intelligible and consistent measure. It cuts o/T his foreigrs >• ^ H trade entirely, although it deprives 'us of our trade with him ; and if rnmmercial distress can ruin him, such a proceeding gives us some chance of effecting his downfall. But the hew system is only a blockade of the enemy, if the enemy himself chuses that it shall be so. It can never, by possibility ruin him, or even materi- ally injure his commerce : For the moment he is pinched, he can relieve himself, He can allow neutrals to enter his own ports, from those of Great Britain ; and thus obtain as large a share of foreign commerce as he desires*. These neutral carriers, it is true, must land and re-ship in England certain cargoes; and many, (but no^ by any means all ) of these voyages will be somewhat more circuitious than formerly. An American bound to Bordeaux, must touch at Cork, Falmouth, &c. which is somewhat out of her course ; if bound to Dunkirk, Amsterdam, &c. she would probably touch at Cowes front choice, to receive advices respecting the market from London correspendents. Admitting that some considerable inconvenience arises from hence, in all cases on an average ; the whole ef- f.It is confwlenHy reported that some rclaxafion of tht French [Decree, has already beea allowed in Holland, though this does not appear very likely. i ( 11 !^ 5 !*^5 r ' I iect Is to raise the prices of the neutral goods a little to the enemy, and to lower somewhat the profits of the neutral, without any gain whaC- fver to ourselves. Our friends and our ene- mies lose each a little, and we gain nothing at all. The obligation to land certain cargoes can do us no more real good. It increases Some- what the loss of the neutral and the enemy, and may enable us to keep a few more custom- house officers. If indeed, tlie orders in coun- cil are followed up by an act of Parliament, imposing duties on the goods so landed, then we clearly shall propose to ourselves, not cer- tainly to distress the enemy's trade, but to pro* fit both by his commerce and that of our friends. Would it not be a much simpler expedient, and answer the very same purpose, to propose that America should pay us a year- ly tribute, and to raise it as she best can, either upon her own citizens, or her French customers ? If the duty which we mean to lay on is not the merest trifle, we may be well assur- ed that America will not submit to it. It may be said that France left us no choice in this matter ; that she began by interdicting all trade between England and the continent, through neutrals; and that had no Orders in Council been issued by us, we should still have 47 lost the trade Europe. Thi« remark is, however, extremely incorrect. Had no measures on our part followed, there was little fear of tte French decree being rigorously put in force. The neutrals would nave found means of evad- ing French regulations, as they have, according to our own statements, always contrived to elude the restrictions formerly imposed by Eng- land. The utmost rigour in the French ports, could only have forced the neutrals to make a circuitous voyage ; and *' certificates of ori- gin " so much censured by our own govern- ment, are perhaps of all the restrictions that ever were invented the most easily evaded. The mly part of the new system that looks consistent with itself, is the blockade of the enemy's West Indian colonics. By the first two sets of orders this was not effected. A provision was, on the contrary, made for bringing over their produce to this country ; and various regulations were prescribed for preventing, or at least impeding its re-ex- portation. Afterwards, however, the raon- 8lr6us absurdity was perceived, of violently and suddenly increasing, a glut already ruinous of such produce in the home market ; and the Or- der of Dec, 18th, confined the exports of the enemy's islands to America. This measure i$ much more plain and consistent with bellijje- 4S ih I rent views than the rest of the plan ; but when jcxamined, it appears equally short-sighted and Unwise. The blockade of the enemy's colonies can only have two objects— -to deprive the ene- my of certain articles of consumption ; and to increase the demand for those articles in our own market. These objects, are, in a consider- able degree, incompatible ; for our West In- dia produce commonly finds a vent on the con- tinent, by supplying the wants of the enemy. But supposing, for argument sake, that both the two ends may be gained at once, let us ex- amine the consequences. ^ The French have borne every Species of public and private calamity for nearly eighteen years ; they have passed through all the vicissitudes of revolution, from anarchy to despotism ; they have tasted only of war, with its whole train of evils, of which priva- tions have been the smallest : they have suf- fered the most unsparing conscription, aug- mented in rigour as the service of the army be- came more irksome and dangerous : to all thii they have submitted in quiet, with rallying points for emigration in the neighbouring nations, and for rebellion in the heart of their own country. No dangers, no calamities, no private distresses,not even the conscrigtioa 49 11 a es ■le- T- itself, has ever extorted a murmur of discon- tent — and we now expect insurrections to break out as soon as coffee and sugar shall be- come scarce at Paris, or the army shall find tobacco growing dear ! The conscription is at an end, or is become only holiday work ; the armies go out not to fight but to revel in triumph, and to amuse themselves with fo- reign travel ; but grocery and snuff are ad- vancing in price, and let Bonaparte look to it ! If he does not speedily make peace on our terms, restore the Bourbons, jynd give up Belgium, his earthly course is run ! — This is the argument. But if it be not a waste of time to give tuch positions as these a serious refutation, let us only consider how little chance any commer- cial bjpckade h of being effectually enforced. Every successful attempt of this kind which we make, augments incalculably the teujptations to elude our vigilance. If certain drugs, for example, were almost excluded from Irancc by the activity of our cruizers, their price would rise so enormously, that a neutral merchant would find his account in attempting to land a cargo of bark, (necessarily lowered in price elsewhere) though he should lose three fourtlK in the attempt; so that we shall in ,vain ■i 'U II 50 continue to wage war against the wretched hospitals of our enemy. To a certain degrcfe the same remark applies in all the other Cases. — In one way or another the goods will find their way from the places of glut, to those of de- mand. Their prices may be somewhat eri- hanccd, and the use of such as are not essen- tially necessary, will be diminished. -' . All the changes of this sort, however, which we attempt to make, and to a certain degree su(?- cessfully, will take place gradually. The stock in hand will beoecnomized in proportion as thefuV- ther supplies are obstructed, and instead of pro- ducing lasting discontents, or even disgust with the war, among our enemies, we cannot hlep fur- nishing the very remedy along with evil, by teach- ing tl\em gradually to alter certain habits in them- selves indifferent. It would not be so irrationa"! for their rulers to expect that some hatred of Kngland should ari^t; out of this policy ; but for us wjio hiTvc not once excited the least dis- position to throw otr the Frenclr yoke by all our hos^tilities — who see the French peopl6 thcmsflves, not merely unsubdued, but evcfi flourishing .'liter all our victories over their 4rade— for us to think of conquering by the carcity af two or three wares, the people whom our greatest captains and innumerable ihips have never humbled during years of the nu;!»t Lutcc.sful naval warfare — burely exceeds 51 the bounds even of popular or party delusionj It is supposed that the peculiar restraints imposed upon cotton, afford extraordinary satisfaction to the mercantile friends of the new system. These may operate either in lowering the price of the article at home; or in distressing the enemy for want of that which it is known he cannot find elsewhere. The former of these effects is surely no great ad- vantage, in the present situation of West Indian affairs. The ruined state of the sugar planter makes it necessary that he should turn a large portion of his capital into other branches of cultivation; and of these cotton planting is on every account one of the best. The price for some time past has been on the decline; and such a glut as the orders in council must produce, is sure at once to injure those al- ready occupied in cotton planting, and to prevent tl o sugar planters from adopting this mode of relieving their distresses. It would »ot be the wisest policy *o complcat the ruin oi the West-Indies, for the sake o( alleviating the burthens which the war has brought on anotlitjr class of the community. Besides that >this class would probably s«..»! experience a glut of manufactured goods, occasioned by the uu:re;tsrd manufacture set agoing under the r i ■ • •'• • ■) iiill j2 vi-ol. • t^ie trade of Brazil too will now be laid o,.v,ii, and all the sugar which used to supply ' Portugal, part of the ^lediterranean, and rven to find its way into the north of Eu- rope, will now be brought direct to Englam'- The smuggling between the enemy's colo* jiies antl Ihazil will increase this quantity, in proportion as the interruption of the Ameri- can trade with the enemy is effectually en- forced ; and it will be ro easy matter to pre- vent such a rontr;iband on coasts so exten- sive. Indeed, by thr present orders, the Nvholc produce of the enemy's islands may be carried first to North America and tiiencc to Brazil, from whence, as there is no possibi- 54 r; I lity of" distinguishing it from Brazil produce, it must come to this country ; and no con- ceivable restrictions can prevent this, unless we chuse to decree that mv allies in Brazil shall have j trade with America, and none with ourselves, or the rest of Europe*. Supposing, however, that these insupera- ble obstacles did not stand in the way of an immediate relief to the British planters, this relief can only be temporary ; for the produce which we prevent the enemy's colonies from exp>)rting, must be heaped up there, and come over to Europe, at a peace, to the final destruction of our planters. Wq allow them to receive supplies of provisions; we know that rather than throw su<{ar lands out of cultivation, planters will bear years of clear loL- on their estates : can we expect then any oiher erle*.-t from the most compleat success of our j)lan, tlnn a temporary rise of sugars, and a sul)sc(iueut glut of the market increased * By tlieslricl httor of the Orders, hostile colonial pro- duoi* may be carried (Iiroiigli America, to tlic ports of al. lii'd powor* in Kiiropc, iinil from thincc to tlu' restricted coun'rie^- ; so that the bloolvadc of tiie enemy's colonics is, itrictly sjieakiiijj, not at all enfjrcod, Hni as this is ihecica iittontof the Ord«'r, December, 18, (he (jiicslion is ur^ttcd as if aouxo supplementary rci«trtclions had beeu inaJo. .15 In i.he same proportion, as soon as peace conies, or tlie blockade is raised ? No mea-- sure could be devised more effectual for per- petuating the evils that now oppress the planters, and j)reventing them from appl}ing the only possible remedy, viz. diminishing the cultivation of the great West Jndiaa staples. The interruption of the trade which the Americans carry on with the Spanish colonies is somewhat greater than may at first appear. They are not only prevented from importing more of the consumable produce of those settlements, than is sufficient for the home market: they are also, though indirectly, prevented from employing the greater parr of the bullion which they obtain from thence. This bullion is carried by them to the East Indies and China, and purchases the manu- factures of those countries, with which the Americans supply the greater part of Europe. The mono|)oly of our East India comp'iny prevents them from importing those goods into this countrv, and tlie Orders in Council, ot' course, neither do nor can jjcrmit such au importation. The Americans, tlitreforc, can no longer supply the continent with India goods. I3ut it is the sale of thost goods '4 56 !'r which enables them to pay foj our comtiio- tliHes ; so that by checking their carrying trade to the Spanish main and the East Indies, we in fact destroy a great part of our own market. The same operation, cannot fail to injure exceedingly our Asiatic possessions. While the company's monopoly prevents the capital of this country from finding its way thither> the Americans have, as a matter of necessity, not of choice, been allowed to supply its place, to the incalculable benefit of those fine settlements. Are the same meu who cut off this necessary resource, prepar- ed to throw open the East India trade? If not, (and surely no one would recommend; such a step as a temporary expedient — a war measure adopted on the spur of the occasion) then the Orders in Council, here as every where ch(\ though pointed against neutrals, and professing to aim at the enemy, in fact hit only ourseiivis. In arguing this part of the question, care haspurposily been (i!vn to put the case as much as possible, on the j>l..in st and narrow- est views of national advimfnge, that no one might impute to the advcnarics of thenewsys- tem any disposition to refinement, or suppose that the proofs of its impolicy rested upon spc- 57 ' w dilative grounds. But more general reasons than those already advanced, are by no means wanting ; and however contemptuously they may be received by the supporters of the //cw Code, they cannot fiail to strike every enligl^t- ened statesman with additional conviction c^f its absurdity. If America is in truth our best customer! if she possesses what we require, and wants what we have to export; if the market which she thus furnishes is not only beyond all othei's extensive, but must grow with the rapid growth cf her resources, and continually accelerate the progress of our own ; if from language, l«ws, government, the trade with her inhabi- tants is next to a home, or colonial commerce the most convenient and beneficial that we can carry jn ; if in short, America is, as it were, made for us, and we for her — can any but the veriest driveller in political science,- doubt for a moment that her gains are our gains ; that we are sufTercrs by her losses ; that the less she trades with othernations,the less she will trade with ourselves ; and that to confine her foreign commerce to her trade with Englandr would be to diminish, if not to destroy this trade also. Next to our own territory at^ that of our foreign settlements, were we ai 58 'It I II 1 Wise, as we are brave, we should wish well to the American states. The ruin of the great home, and colonial market alone could injure us more than the rurji of the American com- merce; and the impolicy of fettering that com- merce, if it were practicable, would be exceed-- ed only by the folly which all the maritirae nations ia Europe have sooner or later lament- ed— the folly of stunting, by monopolies, the traffic of their foreign settlements. ' Hitherto it has been supposed that the Americans, (which in truth is as much as to say all neutrals, in the present state of things) would submit to our new Orders. But th^ more probable supposition is that they will at once refuse, and even if at first they should not quarrel with us, it can only be in the expec- tation of the restrictions never being enforced. vShould they find us persisting in the execution of these oppressive decrees, levying tribute ujMm all their foreign trade, cutting oil* some of- its most lucrative branches altogether, es- pecially their rovind-about East India com- merce, h is easy (o perceive from their present temper of mind, how speedily they will go to war with us. And this last of all calamities to our commerce — our manufactures — our who'e system at home and abroad, will be the result 1. :;j' 5& of attempting to establish a code, alread]^ proved to he not only of no advantage to England, but positively detrimental to her best interests, in the most favorable light in, ^vhich it can be viewed. That additional grounds of complaint may not be wanting, and cxar^jles of follies not necessarily connected with the new system, two regulations are U\r- trcduced, one should think, for the express purpose of making a quarrel, and yet incapable of beingen forced. If a neutral vessel, carrying a cargo not British, has a certificate of this fact' on board, she is seized. The utter disregard of all justice is here as remarkable as the inef- ficacy of the Order. On the one hand it is no retaliation to the French decree ; and on thy ^f m ■■■' 61 violence" ^' totauthorized," perhaps, 1)ut very tardily disavowed*? Is it by a policy like this that we can hope to retain even our own party; or to give their efforts weight with their countrymen ? At the very moment that the orders were issued, their defenders tell us, the French had proceeded to new acts of vio- lence against the American flag. Was it then like statesmen, or was it like the present Mi- nisters, to run this race of aggression, and eagerly dispatch our violent decrees, least, if we delayed, the French might get the start of us, and the Americans quarrel with our enemies in preference to ourselves ? ; ' Unfortunately such infatuated notions are to be found out of the cabinet as well as in it. Hatred of America seems a prevailing sentiment in this country. Whether it be that they have no crown and nobility, and arc on this account not quite a genteel power — or that their manners are less polished than our own — or that wc grudge their independence, and hanker after our old monopoly of their trade — or that they closely resemble us in language, character, and laws — or, finally, that it is more our interest to live well witli them than with any other nation in the world — the fact is undeniable, that thd * Sco Kings speech. bulk of the people Mould fain be at war with them, and those who arc a little wiser would never rest till they make them go to war with France. The former wish is plainly tlie worst of the two; but to desire that America should give up her neutrality is not a great deal wiser. How can she assist u^ or to use the modihh phrase, m.ake common cause with us, against France, half so effectually AS by continuing to trade with both, uhile both are lighting together, and thus preserve our commerce, to whom commerce is so much more essential than to the enemy ? There is, in truth, only one line of conduct, which Americl can adopt more hurtful to us, than that of taking part with us ; and this is tak- ing part with our enemy. If any measures of ours can ensure such a misfortune, the good people of these realms may rest satisfied that the late Orders in Council will answer the purpose. And now that which has been said meta- phorically is come to be very nearly matter of plain and sad rcrJity — and we are indeed at war with the wiiole world To make an excep- tion of Sweden is surely drivelling ; to com* foTt ourselves with the alliance of Brazil, is somewhat more excusable; but the consola- tion has not niuch more solidity. If the tradr ' 63 ,\vith Brazil is even considerably exteiuled* ;that of Portugal is gone, and we lose more than we gain upon the whole transaction. The very goods which the new empire furnishes^, are, with a single exeption, those which we want ihc least ; and the traffic in the chief of them will be positively detrimental to us. The new court, too, may be on the whole well dis7 posed to us; but our enemy, while he occu^ pies Portugal, has unfortunately a stronger hold in their interests than we have in their aifec-* tions ; and may easily prevent us from mak- ing the most of the little good which the emigration, so /tf/je/y* described both as to it.^ causes and consequences, is capable of yielding us. r^et us not deceive ourselves therefore. Our situation is perilous; and to despise the danger is not to brave it, but to destroy ours- elves in the dark. All this, indeed, is only an increase of former evils; and the natural progress of the favourite war system in this country. But il.rre is woO" a circumstance in our situation, of a com-» plexion so new and strange, that it may well appal us beyond all the ordinary evils that *Tho contompt of good faith, which is now the fa>, voiirite policy' towards foreign states, has been also exnil bited to the people of this country, in (he late official ac-' counts of the emigration, after. a manrtcr. qtiit« di«igrn(? I No. II. Translation of an Official Note from M. Decres, thz French Minister of Marine y to General Arm- strongy envoy of the United States of America. Parisy 2UhOct. 1806. I hasten to reply to the note which you did me the honour to communicate on the 20th of this month. I am of opinion that the Imperial decree of Nov. 21, does 7iot in i*s present shape alter the regulations now in fores in France on the subject of neutral na- vigation, nor consequently affect the convention of Sept. 30, 1801, with the United §tates. " But although by this answer I have fully resolved the four questions submitted to me by your Excel- lency, I think I may add — 1st. That as the declara- tion contained in the first article of the decree, Nov. 21, does not alter the present French code of mari- tine capture, it is unnecessary to examine what con- struction, restriction, or extension may be given to this article.— 2. That capture, contrary to the existing laws, will not accrue to tlie benefit of the captors.— 3. That an American vessel cannot he takr at sea^ merely because :he is sailing to or returning Jrom an English portf and for this reason — that by the 7th article of the decree we can do no further in France than merely exclude from our ports, vessels coniiug from England or Eng^lish colonics.— . . That as the regulations of articles 2 and 5 a.c in the nature of a 7< .fii^-t'i genera' '> ,1% iliey vapply to foreigners tlomiciliatcd in France, or in countries occupicJ by the troops of his Majesty the Emperor and King ; but that it would be proper for your excellency o refer to the minister of exteric. relations, as o that part which conccns thr comtnunication of citizens of the Ut'ted Stat.s witii England. I beg- your excellency to accept tht ray high consideration. (Signed) T J the >Iinisti^i' Pienip'^'tentiary of the i'"i'f,cd 9tut.cs. No III. viisurance of DECRi;S. I ' ! i.l '■fi 1 ! H ■M Order f)/' Council 0/ 7 t'l Jan, 1807- Whcu'as the French governtnent has issued certain orders, wijich, in violation of the usages of war. purport to prohibit tlic commerce of all netttral j.ations with his Majesty's dominions, and also to pre- vjtit such nations from trading with any other coun- try, in any articles the growth^ produce, or manufac- ture of his Majesty's dominions : And whereas, the said government has also taken up- on itself to declare ?11 his Majesty's dominions to h*i in » 5.tate of blockade, at a tioie when the flecti of France and her allies arc themselves contincd within their own ^Drts by the superior valour and discipUnc of the British navv : And whereas such attempt* on the part of the en ^, v would give to hii Majesty an unquestionable rig- -> retaliation, and w« ■ warrant hii Majcst) . ^ rocced to any such port j and any vessel i t I •if 7$ after being so warned, or any vessel coming frcra any such port; after a reasonable time i^hall have been afforded for receiving information of this his Majesty's oruer, which shall be found proceeding to another such port^ shall be captured and brought in^ and^ together with her cargo, shall be condemned as lawful prize. And his Majesty's principal secretaries of state, the lords commissioners of the admiralty, and the judges of the high court of admiralty and courts of vice-admiralty, are to take the necessary measures herein, as to them shall respectively appertain. (Signed) W, FAWKENER. . No. IV. ] French Decree, Dece.nler 96, 1807, Napoleon, emperor of the French, king of Italy, and protector of the Rhenish confe4pration : — Observing the measures adopted ly the British government, on the I \th of November last, by which vessels belonging to neutral, friendly, or even powers the allies of Eng- land, are made liable, not only to be searched by English cruizers, but to be compulsoiily detained in England, and to have a tax laid on them of so much per cent, on the cargo, to be regulated by the British legislature — observing that by these acts the British government denationalizes ships of every nation in Europe, that it is not competent for any government to detract from its own independence and rights, all the sovereigns of Europe having of trust the sovereign- ties and independence of the flag ; that if by an uu- 73 pardonable weakness, and which, in the eyes of pos-' terity, would be an indelible stain, such a tyranny" was allowed to be established into principles, and con- ' secrated by usage, the English would avail^ themselves of it to assert it as a right, as they have availed them- * selves of the tolerance of governments to establish" the infamous principle, that the flag of a nation does"^ not cover goods, and to give to tiieir right of blockade an arbitrary extension, and which infringes on the so- " vereignty of every state ; we have decreed and do decree as follows: , t. — •-. i=; . a .■■ Arr. 1. Every ship, to whatever nation it may be- long, that shall have submitted to be searched by an English ship, or to a voyage to England, or that sliajl have paid any tax whatsoever to the English govern- ment, is thereby, and for that alone, declared to be denationalized, to have forfeited tlie protcotion of its king, and to have become English property, .> i. . 2. Whether the ships thus denationalized by the arbitrary measures of the English government, enter into our ports, or those of. our allies, or whetiier they fall iflto the hands of our ships of war, or of our pri-r-;. vateers, they are declared to be goi)d and lawl'ijl prizos,^;,! 3. The British islands are declared to be in a state . of blockade, both by land and sea. Every ship of whatever nation, or whatsoever tiie nature of its cargo may be, that sails from the ports of England, or tliosv of the English colonies, and of the countries occupied by English troops, and proceeding to England* or to the English colonies, or to countries occupied by English troops, is good and lawful prize, au contrary to '' " cccnt decree, and may be capture. I by our ..^ ^--^ j^^: 74 \i I Ml ships of war, or our privateers, and adjudged to the captor. 4. I'hese measniL,;:, L -ii are resorted to only in just retaliation cr tlic ^aibarous system adopted by Enghind, whicii assimilates its legislation to that of Algiers, shall cease to have any effect with respect to all nation'^, who shall have the firmness to compel the English government to respc.t liicu nag. T! .^y sliall continue to be rigorously in force as long as that go- verh-nent does not return to the principle of the law of nations, which regulates the relation of civilized states in a state of war. The provisions of the present decree shall be abrogated and null, in fact, as soon as the English abide again by the principles of the law of nations, which are also the principles of justice and honour. All our ministers are charged with the execution of the present decree, which shall be inserted in the bulletin of the laws. t ! In iiil No. V. Order of Council. Hth Nr ember 1807. Whereas certain orders, establishing an unprece- dented system of ^v;. fare against this kin^-doni, and aimed especially at the destructicu of its commerce and resources, were some time «*!' ce, issued by the government of France, b; which '* the Britisli islands were declared to \ a - ate of blockade," thereby subjecting to capluie and condemnation all f >esselh with iheir cargoes, which should costiime to trade with his Mujesty's dominions. And whereas by the same orders, " all trading in English merchandise is prohibited, and every article of merchandise belonging to England, or coming from her colonies, or of her manufactures^ is declared law- ful prize:" And whereas the nations In alliance with France, and under her control, were required to give, and have gi?en, and do give effect to such orders : And whereas his Majesty's order of the 7th of Ja- nuary last, has not an ered the desired purpose, either of compelling the enemy to recal 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 increasing rigour : And whereas his Majesty, under these circum- stances, finds himself compelled to take further mea- sures for asserting and vindicating his just rights, and for supporting that maritime power, which the exer- ti'ms and valour of his people have, under the blessing Oi Providence, enabled him to establish and maintain; and the maintenance of which is not more essential to the safety and prosperity of his Majesty's dominions, than it is to the protection of such states as still retain their independence, and to the general intercounu; uid happiness of mankind. His Majesty is therefore pleased, by and with the advice of his Privy Council, to order, and it is hereby ordered, ihatallthe ports and places of France and her allies, or of any other country at war with his Majesty, and all other ports or places in Europe, from 76 i»? ii ft ) :1s whiqb, although not at war with his Majesty, the British flag is excluded, and all ports or places in the colonics belonging to his Majesty's enemies, shall, from henceforth, be subject to the same restrictions, in point of trade and navigation, with the exceptions herein-after mentioned, as if the same were actually blockaded by his Majesty's naval forces, in the most strict and rigorous manner. And it is hereby further ordered and declared, that all trade in articles which arc of the produce or ma- ni^f*cture of the said countries or colonies, shall be (Jeemed and considered to be unlawful ; and that every vessel trading from or to the said countries or co- lonies, together with all goods and merchandise on board, and all articles of the produce or manufacture of the said couiitries or colonies, shall be captured, and condemned as prize to the captors. Bui although his Majesty would be fully justified^ by the circumstances and considerations above re- cited, in establishing such system of restrictions with respect to all the countries and colonies of his ene- mies, without- exception or qualification j yet his Majesty, being nevertheless desirous not to subject neutrals to any greater inconvenience, than is abso- lutely inseparable from the carrying into effect his Majesty's ju5t determination to counteract the designs of his enemies, and to retort upon his enemies them- selves the consequences of their own violence and injustice j and being yet willing to hope that it may be possible, consistently with that object, still to allow to neutrals the opportunity of furnishing themselves wiiJi colonial produce, for their own consumption Shd supply ; and even to leave open, for the pi-esehf; such trade with his Majesty's enemies, as shall be caM ricd on directly with the ports of his Majesty's do- minions, or of his allies, in the manner herein-aftef mentioned : his Majesty is therefore pleased further to order, and it is hereby ordered, that nothing hierein contained shall extend to subject to capture or con- demnation any vessel, or the cargo of any vessel, be- longing to any country not declared by this order, to be subjected to the restrictions incident to a state of blockade, which shall have cleared out with such car- go from some port or place of the country to which she belongs, either in Europe or America ; or fiiam some free port of his Majesty's colonies, under cir- cumstances in which such trade from such free port is permitted, direct to some port or place h\ the ct)- lonies of his Majesty's enemies, or from those colo- nies direct to the country which such vessel belongs, or to some free port in his Majesty's colonies, in such cases, and with such articles as may be lawful toimi port into such free port : • -'.;'. ' Nor to any vessel, or the cargo of aWy vfcssd, Vi* longing to any country not at war with his Majesty, which shall have cleared out from some port or plac6 in this kingdom, or from Gibraltar or Malta, undei? such regulations as his Majesty may think fit to pre- scribe, or from any port belonging to his Majesty's allies, and shall be proceeding direct to the spot spe-i cified in her clearance : • ' Nor to any vessel, or the cargo of any VesSel, be- longing to any country not at war with his Majestyj which shall be coming from any port or place in Eu- •il 78 rope which is declared by this order to be subject to the restrictions incident to a state of blockade, des- tined to some port or place in Europe belonging to his Majesty, and which iiiall be on her voyage direct thereto : But these exceptions are not to be understood as exempting from capture or confiscation any vessel or goods, which shall be liable thereto, in respect of having entered or departed from any port, or place actually blockaded, by his Majesty's squadrons or ships of war, or from being enemiei^ property, or for any other cause than the contravention of this present order. And the commanders of his Majesty's ships of war and privateers, and other vessels acting under his Majesty's commission, shall be, and are hereby, in- structed to warn every vessel which shnll have com- menced her voyage prior to any notice of tliis order, and shall be destined to any port of France, or of her allies, o: of any other country at war with his Majes- ty, or to any port or place from which the Biitisii flag as aforesaid is excluded, or to any colony be- longing to his Majesty's enemies, and which shall not have cleared out as is hercin-bcfoie allowed, to dis- continue her voyage, and proceed to some port or place in this kingdom, or to Gibraltar or Malta. And any vessel which, after having been so warned, or after a reasonable time shall have been alfordcd for the arrival of information of this his Majesty's order at any port or place from which she nailed, or which after having notice of thi$ order. 79 )t i- )r >o ;n lis le jr, ihall be found in the prosecution of any voyage con- trary to the restrictions contained in this order, shall be captured, and together with her cargo, condemned as lawful pi iae tr> the captors. And whereas countries, not engaged in the war, have acquiesced in the orders of France, prohibiting all trade in any articles the produce or manufacture of his Majesty's dominions ; and the nierchanii af those coumries have given countenance and effect to those prohibitions^ by accepting from persons, styling themselves commercial agents of the enemy, resident at neutral ports, certain documents, termed " Certi- ficates of Origin," being certificates obtained at the ports of shipment, declaring that the articles of the cargo arc not of the produce or manufacture of his Majesty's domituons, or to that ctFcct: And whereas this expedient has been directed by France, and sub- mitted to by such merchants, as part of the new system of warfare directed against the trade of this kingdom, and as the most effectual instrument of ac- complishing the same, and it is therefore essentially necessary to resist it : His Majesty is therefore pleased, by and with the advice of his Priry Council, to order, and it is hereby ordered, that if auy vessel, after reasonable time shall have boon afforded for receiv- ing notice of this his Majesty's order, at the port or place from wi)ich such vevsel shdll have cleared out, shall be found carrying any such certificate, or document as aforesaid, or any document referring, to or authenticating the same, such vessel shall I ;l I : I ■I \^ X 80 be Adjudgctl lawful prize to the captor, together with the goods laden therein, belonging to the person or persons, by whom or on whose behalf, any such document was put on board. And the Right Honourable the Lords Commis- sioners of his Majesty's Treasury, his Majesty's Prin- ripal Secretaries of State, the Lords Commissioners of the Admiralty, and the Judges of the High Court* of Admiralty aud Courts of Vice-Admiralty, are to take the necessary measures herein, as to them shall respectively appertain, WM. FAWKENER. No. VI. Second Order in Council, N'ov. II, 1807. Whereas articles of the growth and manufacture of foreign countries cannot by law be imported into this coui¥try, except in British ships, or in ships be- longing to the countries of which such articles are the growth and manufacture, without an order in council specially authorising the same.* * The preamble mis-states the lavf completely. The Navigation Act docs not prohibit all articL'S of foreiga grovi'th, &c. It only prohibits certain euumoreted ar- » i i i 81 ilis majesty, taking into consideration thr order of this day's date, respecting the trade to be carried ori to and from the ports of the enemy, and deeming it expedient that any vessel belonging to any country in alliance, or at amity with his majesty, may be per- mitted to import into this country, articles of the produce or manufacture of countries at war with his majesty: His majesty, by and with the advice of his privy council, is therefore pleased to order, and it is hereby ordered, that all goods, wares, and merchandises, specified and included in the schedule of an act, paseed in the forty-third year of tiis present majesty's reign, intituled, " An act to repeal the duties of customs payable in Great Britain, and to grant other duties in lieii thereof," may be imported from any port or place belonging to any state not at amity with his majesty, in ships belonging to any state at amity with his majesty, subject to the payment of such ^i>»^ ■ I I I I ■ ■ ■! I I I . ■ I . ■■ ■ ■ I — I M I i i !■! ■ ■ ■ ■ .1 ■.» ■■■ ■■■! ■■^^■■l» ■■ i m i^mmm^m^^K^a^mmtai^^l*,* ■ ticlos, as the produce of Muscovy and others. The power to siiHponil tiic imvigalion act, j^lvdii dining this war by the Ptttt. 43 Geo. ill. c. 15T, enables his M»jesty to siispMid It only with respect to (he trade earr'^d on by foiviguers between om ports and the enemy's ports, lirdi^'d theenuct. inj^ part of Ihi . necond <,rdi.«T, (if we misi nov a|)|)ly to the procl.inialions of the crov.n, (ernis formerly reser cd for nets of ihe Ir^i'^latiuc)) *"dy suspend i\ui Navigation Act With respect ir> enemy's porls, and liMv.s the importation /by neutrals of divers arliih's from restricted ports, not hos- tile, utill utterly illegal, though imposed iipot) tiittm h) the fimt Order. C il 8^i 1 >l m &' ' n i* ci itifs, ;i;k1 li-('>)ic to such drawbacks a?! are now as- tablishcu bv Luv upon the iniportalK^u of the said ^.otn's, wArcs, or merchandize, in ships navigated ac- cording lo law ; and with rcsptct to such of the said good.-, u arc^;, or merchandize, as are authorized to be~ n arelioused under tlic j>i()visions of an act, passed in the I'orlv-third year oF his present Mrjesty's reign, i'uitiiled, *' An act for permitting certain goods im- ported into Great Britain, to be secured in warehouses \vith(;ut payment of duty," subject to all the re^-ula- tions of the said last mentioned act; and with nspect to all articles which are prohibited by law fron. being imported into t.hi? country it is ordered liiat the same shall be reported for exportation to any country in cunity or alliance with his Majesty. And his Majestv is further pleased, by and with the advice of his privy council, to order, and it is hereby (.relf red, That all vessels which shall arrive .'itaav port of t.he uuited kingdom, or at Gibraltar or Malta, in consecpicuce of haviu*;^ been warned i)ur- !«uant to the aforesaid order, or in cousequenci of rccciviiiij; information in any other ujanner, (u" the .-aidordrr suhsc(iueiU to their having taken on bjard any part of dii'ir car^roes, whether previous or subse- quent 10 their ^ailing, shall be permitted to report thtir cargoes for rxporlaiiou, and shall be allowed to pro- ceed unon their vovacres to their orii;inal port^ ot destination, (if not unlawful biforc the issuing of the vaid order,) or lu any port at amity v. ilh his Majesty, unr.n rceciviii'j; a errtificale front the eollrctor or t)om;\r(il;ir ol' liir ciistr-ms at the port at which the) vlnch (•(.Milleaie ihc ^-aid eollocloi^ Hh. -. ') inUr, -7 83 and comptrollers of the customs are hereby authorized and required to give^) setting forth that such vessels came into such port in consequei.ee of being so warn-' ed, or of receiving such information as aforesaid ; and that they were permitted to sail from such povl under the regulations which his Majesty has been pleased to establish in respect to such vessels. But in case any vessel 80 arriving shall prefer to import her cargo, thcti such vessel shall be allowed to enter and import the same, upon such terms and conditions aS the said cargo might have been imported upon, ac- cording to law, in case the said vessel had sailed after having received notice of the said order, and in con- formity thereto. And it is further ordered, that all vessels which shall arrive at any port of the united kingdom, or at Gibraltar, or Malta, in conformity and obedience to the said order, shall be allowed, in respect to all ar- ticles which may be onboard the same, xcept sugar, coflee, wine, brandy, snuff, and tobacco, to clear out to amy port whatever, to be specified in such rlenrpr.r-p; and, with respect to the Jast-mentbned articles, to export the same to such ports, and under such con- ditions and regulations only, as his Majesty by any licence to be granted J or that purjiose, may direct. And the right honourable the lords commissioners of his Majesty's treasury, hii Majesty's principal secretaries of state, the lords commissioners of the admiralty, and the judges of the high court ol" admi- ralty and courts of vice- admiralty, arc to take the necessary measures herein as to them may respectivelv appertain. OS W. FAWKENER. hi No. VII. Thifd Order in Coimcil, Nov. 11. 1807. 'vi/e to the captors. A'ad the right honourable the lorda commissioners of his Mijesly's treasury, his majesty's principal irciMlHiles of slate, the lords commissioners of the 85 atliuiiwUy, and the jii Ves - 1.0 ^« I.I If 1^ m li^ 12.5 12.2 M 1.8 1.25 1.4 1.6 « 6" - ► V] v^ ^. c*. c^? J^K^J^ J' /. /A '/ Photographic Sciences Corporation 33 WIST MAIN STRUT WiBSTIRN Y MSSO (716) 873-4S03 ^ 'i^. Q.- m % m \ ^ Mi 90 No. XI. Second additional Order, 2bth November ^ 1*07. ' Wlu-reas his Majesty, by iiis order in council, dated nth November instant, respecting the trade to be carried on with his Majesty's enemies, was pleased to exempt from the restrictions of the said order, ail vessels which shall have cleared out from any port or place in this kingdom, under such rcgwlaiions as hi« Majesty may think fit to pr'^scribe, and shall be pro- ceeding direct to the ports specified in the respective clearances : His Majesty, taking into consideration the expediency of making such regulations, is pleased, by and with the advice of his privy cduncii, to order, and it is hereby ordered. That all vessels belonging to countries not at war with his Maje' ly, shall be p-rmitted to lade, in any port of the united kingdom, any goods being the pro- duce or manufactue of his Majesty's dominions. East India goods, or prize goods (all such goodsthaving been lawfully it7i ported) and to clear out wim and frc^cly to convey the same to any port or place in any colony in the West Indies, or America, belonging to his Majesty's enemies, such port or place not being in a stato of actual blockade ; subject to the payment of such duties as may at the time when any such vessels may be cleared out, be due by law on the cxporta- tion of any Ruch goot which would not have been subject to capture and confiscation if such order had not been made. And the right honorable the lords commissioners of bis Majesty's treasury, his Majestys principal fee- cretaries of state, the lords commissioners of th« 1 I m admiralty, r.ncl the judges of the high court ofadmi- rtih) and vice admiialty are to take tlie necessary mt^asures herein, as to them may respectively apper- tain. W. FAWKENER. • No. XIV. . Fiflh Additional Order in Council^ 25th November 1807. His Majesty taking into consideration the circum- stances under wliich Prussia and Lubeck have been compelled to shut their ports against British ships anci goods, is pleased, by and with the advice of his privy council, to order, and it is hereby ordered, that all ships and goods belonging to Prussia, which may have been seized subsequent to his Majesty's order, of the nineteenth of November one thousand eight hundred and six, and are now detained in the ports of this kingdom, or elsewhere, and all ships and goods be- longine after the warre beginnc, they may be dealt wiihall as open rnemies: and yet of auncient lime three men had privilcdge granted thcni in lime p %?'■. 104 warre. Clerlcus, agricola, et mercator, tempore belli. Ut oretq ; colat, commutet, pace fruuntur. The end of this chapter was for advancement of trade, and traffique ; the meanes for the well using and intreating of merchant strangers in all the parti- culars aforesaid, is a matter of great moment, as ap- peareth by many other acts of parliament, for as they be used here, so our merchants shall be dealt withall in other countries. King Philip and Queen Mary, graunted by letters patents to the mayor,baylifrcs, and burgesses of South- ampton, and their successors, that no wines called malmeseys to be imported into this realme by any denizen, or alien, should be discharged or landed at any other place within this realme, but onely at the said town and port of Southampton, with a prohibi- tion, that none should doe to the contrary upon pain to pay treble customc to the King and queen, &c. And for that Anthony Donate, Thomas Frcderice, and other merchant strangers bought divers buts of Hjalnicsey, &c. and landed them at Goorc, and in Kent, Gilbert Gerard the attournfy gcncrall, informed in the exchequer, against the said merchant strangers for the said treble customc, &c. Upon which in- formation, as to the said treble customc, the said Anthony Donat demurred in law, he. And this ca&€ was argued in the exchequer chamber by coun- scU learned on both sides, and upon conference had, two points were resolved by all the judges. I. That the grant made in restraint of landing of the said whies was a restraint of the liberty of the subject, against the lawcs and statutes of the realme. S ♦ That n il! 103 the assessment of treble custome was merely void, and against the law. As it appeareth by the report of the lord Dier under his hand (which I have in my custody) But after by act of parliament, in anno 5 Eliz. the said charter is established as to merchant strangers oncly, but not against subjects, (ii. Inst. 47.) No. xviiir. . ;'■/' Magna Charta. (9 Hen. III. cap. iO.J ' Omnes mercatores nisi publice antea prohibit! fue*- rint habcant salvum & securum conductum exire de Angl. & venire in Angl. & morari 8c ire per Angl. tarn per terram quani per aquam ad emend. & ven- dend. sine omui'ous tollis malis per antiquas & rectas consuetudincs prelerquam in tempore guerre & si sint de terra contra nos gucrrina & talis inveniantur in terra nostra in principio guerre attachientur sine damno corporum vel rerum donee sciatur a nobis vel a capitali Justic. nostro quomodo Mercatores terre nostre trac- tantur qui tunc invcnivuitur in terra ilia contra no» quirrina &c si nostri salvi sint in terra nostra. No. XIX. C Ed- IlL Stat. 1. cap. 1.^1 and f. That all merchant strangers, and denizens, and all other and every of them, of what condition or state loevcr they be, that will buy or sell corn, wines, aver I I t i i 106 ^epoiSf flesh, fish, and all other livings and victuals, wools, clothes, wares, mcrchandiees, and all other, things vendible, from whence soever they come, by foreigners or denizens, at what place soever it be, cit}', borough, town, port of the sea, fait, market, or elsewhere, within the realm, within franchise or with- out, may freely, without interruption sell them to what persons it shall please them, as well to foreigners as denizens ; except always the enemies of our Lord the King and his^ realm. And if haply any disturb- ance be done to any merchant stranger, or denizen, nr any other, for the sale of such thingSj, in any city, borough, town, port of the sea, or other place which hath franchise, and the mayors and bailiffs, or other which hath the rule of such franchise, bcinjr re- quired by the said merchants, or other thereof to pro- ride remedy, and do not and be thereof attained, the franchise shall be seized into the king's hands, £19^ * Ko. XX. 11 Ell III. Stat. 2. rap. 2. § f . Tliat all merchants, denizens, and foreigners, (cx- eept those which be of our enmity) may without let safely come into the said rcahn of Kiigland with their goods and mcrcjiandizcs, and safely tarry and safely return, payinp^ the customs subsidies and other profits reasonably thereof due; so always that franchises and iiFe<> nistomi, reasonably granted by us and our a»- ior fjcstori to the city of London, and other cities, boroughs, and good towns of our lealtn of England^ |>e to them saved. - t- No. XXI. 1 8. Ed. III. Stat. 2. c. 3. § 9. And that everj man, as well stranger ai privy ^ from henceforth may buy wools, according as they may a^ree with the seller, as they were wont to do before the said ordinances ; and that the sea be open to all manner of merchants to pass with their mer- chandise uhere it shall please them^ (qe la mieer soit fiverte a tout manere des marchantz dt passer over lour marchandises.) ' ■ ' ' ■ No. XXII. 25 Evith money, gold and silver plate^ and merchandize of foreign countries, and for giving to merchant strangers inducements to come with the wares and merchandize of foreign countries into these realms aforesaid — We have ordained and established that all tnerchant strangers who are not at ejimity with u$ of xi'hat coiL7itry or nation whatsoever, may undercut protection and safe conduct come and tarry in our realms aforesaid, wheresoever they chuse, and frona thence may return with their imported wares and inerchandize freely, and sell the same at the staples and elsewhere, &c. . .. \ No. XXIV, t :t r \6 :8 r- i) in 2d liich. II. Stat. 1. f. 1. §4. Our Lord the King considering clearly the coming of mercliant strangers within the realm, to be very profitable for many causes, to all the realm, by the assent of the prelates, dukes, earls, barons, and of the commons of the realm, hath ordained and stab- lished, that all nurchanis aliens, of what realms, countries, or seignories that they come, which be of the amity of the King, and of hU realm, may from ioi heticcfortli safely ami surely come wltliin the realm of England, and in all cities, boroughs, ports of thfr sea, fairs, markets, or other places iV^ithin the realm^ within franchise and without, and abide with their goods and all merchandizes under the safeguard and protection of the king, as long as shall please him,- without disturbance or denying of any person.* "I ■I j i No. XXV. 4 Sic. 11. sL 2. c. 1. s. 1 and 2. That all manner of merchant strangers, of whatso-' ever nation or country they be, being of the amity of the King and of his realme, shall be welcome, and freely may come within the realm of England, and * The three last statutes completely prove that the ex- ception in some of the former ones " of the kings cncmici^^ mcanf either rebels and foes within the realm, or is to be interpreted as shewing who are }iot to come and sell here—not Jis prohibiting merchant strangers at amity from wiling to all — foes as well as friends. — Evan if it were pretended that those statutes meant to prohibit the trade of alien friends with alien enemies, it would remain for the defenders of ths latJ Orders to shew that all the restricted countries are those of alien enemies, or to ad- mit that at least in part those orders arc quite illegal. But no such interpretation can be set up, nor is it sup^ ported by a single law authority. — See Comj/ns, 332. — 2 Itibt, b7.—Bac, Ab. Merchant, Ill elsewhere within the King's power, as well within franchise as without, and there to be conversant to ' merchandize, and tarry as long as them liketh, as those whom our said lord the King by the tenor hereof, taketh under his protection and safeguard, with their good*, merchandizes, and all manner fami- liara. And for so much the King willeth and com- mandeth, That they and every of them be well, friendly, and merehantlike entreated and demeaned within all parts within his said realm and power, with their merchandizes, and all manner goods, and suffered to go and come, and into their proper country peaceably to return without disturbance or impeach- ment of any. he No. XXVI. $ Hen. IV. cap. 7. s.1. Item, It is ordained and established, that all the merchant sttangers, of what estate or condition that they be, coming, dwelling, or repairing within the realm of England, shall be entreated or demeaned within the realm in the manner, form, and condition, as the merchants denizen? be, or shall be entreated or demeaned in the parts beyond tht tea. I hi' ; ■■J ' » • ■j 1 -l .' i r f 1 '> }'■ t- A TF i 112 No. xxvir. Extract fro n Lord C. J". Hales Treatise De Vortilas Maris." For general prohibitions of nerchandlzes of any particular kind. These were sometimes made, but very rarely j neither indeed could they be lawful with- out the help of an act of parliament, because there have been in all times several statute* made for the liberty and encouragement of merchant strangers especially to come into the kingdom and trade, which could not be derogated by a proclamation. And therefore, if at any time there were such inhibi- tions by proclamation, they were commonly tempo- rary upon an exigence of state, and not perpetual, nor of any certain continuance. But when there were perpetual or long restraints of this nature, they were always done by parliament. And the reasons of these mterposings of acts of parliament was, because that proclamations proved very inefieclual to that purpose, partly because it was at best doubtfuU whether they could at all be effeotual against so manie acts of parliament ; but doubtless they could not without an act of parliament induce a forfeiture of the goods so imported, as hath been often resolved ; whereof more hereafter. Concerning cxportations, and how far forth the ports may be shut in reference to goods and mer- chandizc exported. Those inhibitions were for the most part touching such commodities whereby the kingdom might be weakened, or scarcity occasioned, by the exportation ; as arms, ammunition, corn, victuals, gold, silver, of shi} trade 25. of iaeficct 113 liorses, tinioer, thread of yarn, of woollen, and some- times of falcons. And sometimes m the proclamation there was' an- nexed a clause of imprisonment of offenders ; some- times the forfeiture of the things imported ; some- times the forfeiture of all their goods and lands. But these clauses of forfeiture were only in fenorem t for, as wc have before observed, a proclamation barely cannot induce a forfeiture of goods. Though possibly in the time of hostility or public, danger, or common scarcit)-, such prohibitions by proclamation of exportation of victuals and arms might have a temporary efFect and use ; yet we may easily guess that they were not effectual for perpe- tuity, nor indeed sufficient provisions pro icmpore; for the kino; and his council tlioun-ht not fit to rest upon such inofTeclual means, but acts of parliament liave successively passed for the inhibition of expor- tation of these very things with penalties of for- feitures added to them. Sec i E. 4. c. 5. for horses 1 E. 2. P. IM. c. .b, of corn, herring, butter, cheese, and wood ; '25 FL 9, c. 5. of victuals of all sorts ; 9 E. 3. c. 1.19 11. 7. c. 15, of bullion or money. The like might be instanced in divers other things. The restraints of exportation in any but English bottoms. This hath been attempted to be done bv proclamation, as a good expedient for the increase of shipping and mariners, and the encouragement of trade and navigation. Vide inde clau)!. il V..3. m. 25. of a proclamation to that purpose ; but it proved ineffectual, till provision was made for it by acts, of I 114 parliamciu, viz. 5 R. 2. c. 3. — 6 R. 2. c. 8. — 14 R. 2. c. — 4 H. 7. c. 10. But because it provoked foteign princes to do the like, it was tepealed by the statute } Eliz. c. 13. with certain provisions made in the case oy that statute and the statutes of 5 Eliz. c. 5. and 13 Eliz. c. 13 But now by a late act of parlia- ment, 12 Car. 2. entitled, "An act for encouraging of navigation," the use of foreign ships is in a g cat measure restrained. And upon the whole matter it will appear ^v:^ca the several acts of parliament that have been made ror the support and increase of trade, and for the keeping of the sea open to foreign and English merchants and merchandise, that there Is now no other means for the restraint of exportation or importatiou of goods and merchandises in times of peace, but only when and where an act of parliament puts any restraint. Several Juts of parliament having provided guela^nere soil' overt, it may not be regularly shut against the merchandise of Erglish, or foreigners in amity with this crown, unless an act of parliament shut it out, as it hath been done in some particular cases, and may be done in others. (De Port. Mar, Pi, II. Cap. 8.J <' SJtowtT, Printer, Paternosar Ilew voiced ay the ade in I.e. 5. parlia- raginr great m the tor the )ing of ts and ans for goods whea itraint. la^nere list the y with it out, nd may , B.J 702692: u- '■-5.^