Star. — London, England, 1810-01-02 00:00:00

IMPORTANT DOCUMENTS , p.ELATIVE TO THE DIFIZRZNCILS BETWEIN GREAT BRITAIN AND AMERICA. ~,r.o.ssPoNDENCiiitTwlttly Tat 111111$11 mnuttta AND tat A MERICAN sidastmeits, wins Accomrixitt Tat PRESIDENT'S LATE !SWAGS TO cotditss. IRE SECRETARY OF STATE TO MR: JACESONI ENVOY x. TRAORDINARY AND MINISTER ELENIPOTIDITIARY OF HIS ERITANN/C MAJESTY. No. 11.— MR. SMITH TO MR. JACKSON. Depsrtnient of State, Octobei 19. ST it —I have had the honour of receiving your let: tcr•of the 11th inst. Before I proceed to the More rattrial copies which it embraces, it is proper that I s hould take some notice of your construction, which Ills unhappily converted an intimation of the expedi- ' ency of conducting in a written form our further dis cussions on this particular occasion into a general erohibition of all verbal communications whatever, anB into an unprecedentedviolation of the mostessen tial rights of a public Minister, requiring a formal protest and a resort to the commands of your Sove reign. A recurrence to that intimation cannot fail to shew that its sole object was to avoid, in the further dis= cussions of a case of unusual delicacy and impor tance, the misconcepsions well known to be incident to oral proceedings, and of which the diplomatic In tercourse between the two Governments had furnish ed so many and such serious proofs; nay of which your letter itself is additional illustration. That a change in diplomatic discussions from an oral to a written form is not without precedent, I cannot refer to one which will be more satisfactory to you than the inti mation recently given by Mr. Canning, in the case of the proposal by Mr. Pinkney on the subject of the Orders in Council and the Embargo, that the discus :ions which had been previously verbal must thence forth take a written form. And with this view I take the liberty of recalling your attention to the subjoin ed extracts (See A. and B.) of letters that passed on that occasion. On the present, as on that occasion, the change from verbal to written communications was requested *after two conferences, and when the subject appeared to one of the parties to have, by those verbal discus sions, been brought to a point, which required a pre eke understanding of the views and propositions of _ the, other. You will, Sir, hence perceive, that in maintaining the right, which every Government has as to the rules of intercourse with foreign functionaries near it, no encroachment has been made or intended on any right or customary privilege belonging to you in that character, nor any thing done to impede the proper • and usual course of negociation. You have been sufficiently apprised, by my letter of the 9th, of the light in which the President views the arranement lately made by. your predecessor with this Government, and of the grounds on which he has etpected a formal and satisfactory explanation of the reasons for the refusal of his Britannic Majesty to carry it into affect. He persists in that expecta tion, and in the opinion, that there has been given to explanation that is adequate, either ao, to the matter or as to the mode. When one Government bas been solemnly pledged . :to another in a mutual engagement by its acknow. • ledgeil and competent agent, and refuses to fulfil the pledge, it is perfectly clear that it owes it, both to it self and to the other party, to accompany its refusal with a formal and frank disclosure of sufficient rea sons fOr a step, which, without such reasons, must - deeply injure its own charaCter, as well as the rights of the patty confiding in its good faith. ," To refuse with honour (says a high authority on public law) to ratify what has. been concluded on by virtue of a full power, it is necessary that the Go vernment should have strong and solid reasons, and that he shew in particular that his Minister has vio lated his instructions." Although it is particularly incumbent oh the Sove reign in such case to shew that his instructions have been violated, yet it is not a inere violation of them on immaterial points that will be sufficient. It is dispensibly requisite, moreover , that the reasons be strong and solid ; that they manifestly outweigh, not only the general obligation to abide by what has been so done, but also the disappointment and injury ac cruing to the other party. Arid it , is worthy of no tice, that the case Under discussion is of a higher cha; ratter, avid appeals with greater solemnity to the ho nour and justice of the refusing party, than the case stated iii Vattel, inasmuch as the transaction, not: disavowed, was nbt a treaty or convention to be ra tified by both parties, previout to an execution by either. It had, according to the terms of it (and this peetiliarity appeal.: to have been contemplated by, pout Governinent), been actually and immediately carried into execution on the part of Atnerica. The itfasal of his tritannio Majesty is, therefore; nut simply tb :nay what had been ratified by the other ilanysbut to carry into effect on his part, an atrange."-' rnent which had been carried into full effect with good faith oil the of the United States. . Now the case is stren gthened by the further peculiarity, that Rime of the circumstances attending the execu tion of the arrangement, oh the part of the United States, render It unsusceptible of a full equivalent for the refusal to execute it on the other side: It has net escaped observations that the oblirratioti of your Government to tetider explanations on oc casion, is admitted by your attempt to shew that it has been sufficiently done in what passed in conversation between Mr. Canning and Mr. Pinkney, and by the iastroctions given to IVlrbErskine to communicate such expiaoations. With every disposition to view in the most favour able light whatever may affect the relations' between the two 'countries, it is impossible to mistake the con wrsatioits of those Ministers for a discharge of such a debt to the good faith and reasonable expectations of the United States. Besides that they were mere ;:nnversations in a case requiring the precision and respect of a formal communication, it is certain that it was neither understood by Mr. Pinkney nor intend ed by Mr. Canning, that those conversations were so t) be regarded. Piohoeyis explicit on this point— and Mr. Canninspintudif, after declining any reca pitulation in seat he had verbally remarked, signified to Mr. . in a letter dated May 27th, that his abeerimeions on the subject would be more ProPetii node through the successor of Mr. Erskine, who WAS about to proceed to the United States. tAiiii6lllllll2l446fdirly= :~ •-^ - • . . With 49ect to the iettenttioes os this point I ''' eats pat it t ' ooitt o f his • ' • • • to Mr. Erskine,' it misfit be snificiett to reale* thilt Osier to confirm any they were never earned into execution; bee-it any '.,. act tent amhtg *mi. . • • May have been iceir iMention in this be asked, whether it was a Mark of friendly our conversation ; or whatever may be the in to the United States to employ for such a fiart= 4 * - - . . the pasiage to Which I have juin alluded, I Minister with whom his Government had re now the honour of signifying to Toil, that I am proper publicly to withdrase its confidence, antrio authorised to rekeive in a' proper form whatever ex the peculiar delicacy and embarrassment f whole prick explanationf you may choose to make with re• situation yon have yourself referred, as accounting 'Oct to the grounds of this part of the disavowal -. for his not having executed the task imposed upon and without inquiring whether your authority be cli. him. . I must here repeat, What was suggested sn• rivedfrom histructionsthat have been additased to you r. rnY self, or that bate devolved on you as the Successor of former letter, that the successor of Mr. Erskine is the Minister who had declined to execute them. the proper - functionary for a proper explanation. Nor As yonhave, at the same time, been pleased to say can I perceivethe force of your remark, that the delay that his Britannic Majesty had authorised you to re incident to your arrival in the United States rendered , new the offer of satisfaction which Mr. Erskine it more consistent with the friendly sentiments of his was instructed to make, it was also naturally expected Majesty to press the other channels for communicat- that you would in yo ur le d tter have stated with preci ing the motives for his disavowal. To your own re- sion in what that from the reparation consideration I appeal, which i s the course most con- solemnly tendered by Mr. Erskine, and accepted by :errant to those friendly sentiments, was not the oh- , the United States, and that you would have she wn vious one of employing the new organ, guarding at in what the reparation thus. tendered differed from his the same time against any misconstruction of the instructions. And when I had the honour to tact-' delay by apprising the American )overnment through mate that order to avoid the misconceptioni incident ' its Minister of the case of it. The supposition that to oral proceedings, it was thought expedient that our the delay, incident to your mission, gave rise to the father discussions on the present occasion should be conversation of Mr. Canning and Mr. Pinkuey, is in the written form, there was no part of the subject not reconcileable to the correspondence of the latter, to which that intimation applied with more force t han" which contains no such , indication. On the contrary, t h e cas e of the Chesapeake ; none on which it was it distinctly shews:pat he was apprised of the ince*. tfitlre desirable to avoid misconceptions, and obtain a i tion to replace Mr:Erskine by a successor, whom he precise knowledge of the propositions which you were regarded as the proper channel for the explanatory authorised to mate, not only because I did not really communications, and he understood Mr. Canning to understand the particulars of the offer as distinctly be under the same impression, and that he learned as you seem to have supposed, but also because, on from yourself, not more than two days after his con - that point, and on that alone, y9u had expressly stated I versation with Mr. Canning, that you were to sail for that you had propositioni to make, andahat you were the United States within three weeks. authorised to carry them into immediate execution. Although it may not have been your intention to. On the subject of the Orders in Countil, the Presi have given to this subject a posture which it would dent perceives with sentiments of deep regret, that i not have naturally assumed, yet such has been the your instructions contemplate neither an explanation tendency of some of your remarks, and particularly of the refusal of your Government to fulfil the of the conclusion you have drawn from the two car- arrangement of that branch of the existing diffe cumstances, Ist. That no trace of complaint from this reams, nor the substitution of any other plan or ad- Government against the disavowal appears in the re- instment, nor any authority to conclude any agree cords of the British mission, or was distinctly_an.. i meat on that subject ; but merely to receive and dis flounced by me in our conferences ; and 2d. That cuss proposals that might be made to you on the part from the official correspondence of Mr. Erskine with of the United States ; and these it appears, must in. his Government, it appears, that although he did not dude a stipulation on the part of the United States communicate in extenso his original instructions, be to relinquish the trade with the enemies colonies, submitted to me the three conditions therein specified even in branches not hitherto interrupted by British and received my observations on each. Orders for capture, and also a sanction to the en. If there be no trace of complaint against the din, forcing of an act of Congress by the British navy. avowal in the archives of the mission, it is because Were the way properly opened for formal proposi ' this Government could not have entered such can- tions frora this Government, a known determination plaints before the reasons for the disavowal had been on the part of his Britannic Majesty to adhere to such explained, and especial - Las 'the explanations were' extraordinary pretentious , would preclude the hope justly and confidently expected through the new func- of success in such advances, whether regard be had tionary. And as to the supposed reserve on my part to the conditions themselves, or, to the disposition on this subject in our several conferences, I did ima- they indicate, in return for the conciliatory temper gine that my repeated intimation's to you of the ne- which has been evinced_by the United States. cessity of satisfactory explanations as to the disa. As to the demand in relation so the colonial trade, vowal were sufficient indications of the dissatisfac- it has been the less apprehended, as it is not in itself tion of this Government with respect to the disa• connected, nor has it ever before been brOught into vow-al itself. connection, either with the case of the Orders in The stress you have laid on what you have been Council, or with that of the Chesapeake. And it was pleased to state as the substitution of the terms fin al - reasonably to be presumed, if the idea of such a con ly agreed on, for the terms first .propOsed, has nzglt dition had •In the 'first Instance proceeded from the ted no small degree of surprise. Certain it is that' erroneous belief that it was not objectionable to the your predecessor did present for my consideration United States, that it would not have been persisted the three conditions which now appear in the print- in after that error had been ascertained and acknow ed document ; that he was disposed to urge them ledged. - more than the nature of two of them (both palpably The other demand could still less have been a, inadmissible, and one more than merely inadmio.si. hended. Besides the inevitable and incalculat. ble) could permit, and that on finding his first Pro- 'abuses incident to such a license to foreign cruisers, posals unsuccessful, the more reasonable terms COrn- the stipulation would tcSuch one of those vital printi. prised in the arrangement respecting the Orders in pies of sovereignty which no nation ought to have Council were adopted. And what, Sir, is there in been expeeted to impair. For where would be the this to countenance the conclusion you have drawn difference in principle between authorising . a foreign in favour of the right of his Britannic Majesty to Government to execute, and authorising it to male disavow the proceeding ? Is any thing more corn- laws for us ? Nor ought it to be supposed' that the mon in public negotiations than to begin with a sanctions and precautions of a law of the United higher demand, and, that failing, to descend to a States, in the cases of the prohibited trade in question, lower ? To have, if not two sets of instructions, two would pro.? inefficacious for its purposes: or more than two grades of propositions in the same Had none of those obstacles presented themselves set of instructions—to begin with what is the most, to the course corresponding with the sentiments and desirable, and to end in what is found to bestdmis: dispositions of the President, I should have felt great ' sible in case the more desirable should not be at- pleasure in giving you formal assurances of his readi• tainable. This must be obvious to every understand- ness to execute the conditional authority with which ing, and it is confirmed by universal experience. he is invested for reclining in its full extent, as far as ' What were the real and entire instructions given it may depend on the United States, the commercial intercourse of the two countries, and that he would , to your predecessor, is a question essentially between him and his Government. That be had, or at least, \ moreover, be disposed to extend the experiment of a friendly negotiation to ever) point of difference and that be believed be bad suffi cient authorit y to con. elude the arrangement, his formal assurances, during of mutual interest between them. If, indeed, in the our discussions, were such as to leave no room for event of a successful termination of what relates to donbt. His subsequent letter of the 13th June, re- the case of the Chesapeake,, .it be thought that a re newhig his assurance to me, 4 , that the terms of the moral of the difficulties arising from the Orders in agreement so happily concluded by the recent nego- Council might be facilitated by comprehending them nation will be strictly fulfilled on the part of his Ma. in a general negotiation, and the operation of the jesty," is an evident indication of What his persuasion Orders cat's in the mean.time be suspended,. the door *then was as to his instructions. And with a view to - might be considered 'as immediately Open to that chew what his impressions have been ever since the course of proceeding : . •.: • -. . disavowal, I must take the liberty of referring 'you ; ~. To such A suspension no .reasonable objection can to the annexed extracts ( See C.) from his officiaille- i be made, if, as you have stated, . the. Orders in Council , tens of the 31st July and of the 14th of August .. ..as now modified, leave the trade of the United States The declaration 4 that the dispatch fromlfr.Cank , nearly as great as it would; be without the existence ring_tb Mr. Erskine, of the 23d January, is the only of such Orders,- so 'long 'as France and the other dispatch by width the conditions Were-prescribed to powers shall tontine their decrees, and inasmuch as Mn Erskine for the conclusion of an arrangement on a discontinuance of their decrees by those-powers the matter to which it relates," is now for the first confessedly requires an immediate and . entire revoca. time made to this Government. And I need hardly • tion of the Orders in Council. • •-- 'add, that if that dispa tch had been communicated at, . That a suspension of- the Orders, with a view to the time of the arrangement, or if it had been kriown °their being brought into a • general negotiation, is that the propositions contained in it, and which were more reasonable than a temporary submission to their at first presented by Mr. Erskine, were the only ones authority by the United States with that view, is ob on which be was authorized to make an arrange- *ions from the reflection that such a submission would anent, the agreement would not have been made. necessarily involve a relinquishment of the principle As you have disclaimed any authority to offer ex- which they have stedfastly asserted, whereas a dis planations for the disavowal —as you have been will- continuance of the Orders in Council, in the present ing to ascribe the want of such authority to the con- actual state of things, would not.be incompatible with sideration that other channels had been preferred, arid the principles on wbich they were originally tounded. as you have even considered the circumstances under This principle IVlts, as you well know, the necessity which the arrangement took place to be such as of retaliating, through neutral., injuries received could only lead to a disavowal, and therefore as sus- through a violation of their rights by another Belli vac • the necessity of any explanation whatever, ,terent. In the actual state of things, and under the kisto be regretted, that you bad not deemed it pro- actual modification of the Orders in Council, pro %pee to render precise and explicit, that part of your duced by it, it is admitte d by you, that the Orders letter which seems to imply that you bad in have no practical effect in abridging the.commerce the affair of the of neumals, and cm of course have no retaliating our conversations, in relation to Chesapeake, following the words of your instruc- effect on the other Belligerents. only the m tions, held out not e wer an which the Although it cannot be allowed to be true that the been acceZ but even the form Orders in t crancil are no longer injurious to the com reparation had , as warrantillg his metre of the: United States, it is certainly true that in which it bad been ten t ing the offer ci reention, they produce no degree of injury to the enemies of Majesty in even retrac _ _ ober,* _ by a re- Great Britain that can countenance the retaliating and that you had elucidated the Z i t at all , pies __, _ vdin support of them. ference to the particular ormolu r ail tk) . ,: . ' i ••• , What,. Pima k actually accruing to her retaliating Orders\ —..ese Orders ap now modified , and* tin* into *se w alcing with them the pro 'ibis country in retition to France, the eliental ice between their repeal and their , existence consists in thisthat in the case of their repeal, as pledged by the trrange-, menu of April; the trade of the United States might • be carried on directly with the porti of Holland, whilst during their existence, as at present, it is to be carried on through the contiguous and neighbouring ports: To your own calchlations, Sir, I submit whether the inconsiderable effect of this circuit on the prices in Holland and in the countries supplied through her; can any longer sustain the plea of inflicting distress on an enemy, or palliate the injuries done to a friend by a proceeding so contrary to his sentiments of jos:- tice, and which subject his regular commerce not only to inconvenient channels, but to all the abuses which may result from' the suspicions, real or pre tended, of interested cruizers. You cannot but. be . sensible, that a perseverance under such circumstances in a system which cannot longer be explained by its avowed object, would force an explanation by some object not avowed. What object might be considered as best explaining it, is an inquiry into which I do notrermit myself to enter, further than to remark, - that in relation to the United State% it must be an oltect. ft-remains tifi make a few observations which are due to the jnit interests of the United States, and which are invited by yours, relating to the Orderi in Council of May kit. , • You seem to consider that measure as comprising the utmost precaution that was in the power of his Biitannic Majesty to take, for preventing losses, from hlf disavowal of the engagement of your predecessor to the citizens of the United States, who had resum- , ed their commercial pursuits oh the faith of that act. Without entering into a full view of the inade quacy of the Order in that respect, I take the liberty of pointing out the following instances ;n which it falls essentially short of its declared intention. 1. The Order does not provide for the important case of vessels returning with cargoes from the ports of Holland: 2. The etemption from interruption of vessels bound filom the United States to Holland was re stricted by that eider to such as should have.depart ed prior to the 20th of July, at which date it is not certain that the Order, which was not officially com municated until the 31st of that month, had even reached any one point of the Unite,d States. So that some 'vessels may have sailed between. the limited date and the arrival of the Order in the United States, and many fiorn distant ports must have done so after its arrival, but before a knowledge of it had become general ; all proceeding on the faith of the arrange ment, yet all left by the Order exposed to capture and condemnation. • 3. ' At : coffin to Keediostiii4 The Order does not prrivide for the itnportant - case of vessels which had sailed qu the bite faith for Dutch ports other than those of Holland. 4. It does not include in its proviiioni the extensive riessels;:going indirectly from the Iluited States, but directly fiom.foreign ports to Holland, nor ves sels trading entirely frOni Foreign ports to Holland ; and in both theie instances proceerling on the faith of the arrangement prolessed to be respected within, the defined period. • It is true; in s these t instances the vessels were • ti not to be captured Vithbuf' an attempt, after contrary warning, to groceed.to these ports. But I need not remind you that the injuries incident to the delay and to the breaking up of such voyages cannot have been considerable, and will have resulted as manifestly frOm the disappointed faith in the arrangement, as in the cases specially provided for, and consequently with all other losses fairly resulting from the same handfuls confidence in that act, they will fall within the just indemnification for which the principle, as. sumed in the Order, is a formal pledge. I conclude, Sir, with pressing upon your candid attention, that the least which the President could have looked for in consequence of the disavowal of a transaction such as was concluded by your predeces sor and carried faithfully into effect by this Govern ment, was an explanation from yours of the disa. vowal, not through the Minister disavowed, but through his successor—an explanation founJed_on reasons strong and solid in themselves, and presented, neither verbally, nor vaguely, but in a form comport. ing with the occasion, and with the respect due to the character and to the good faith of the disappointed party ; that it has been found with much concern and with not less surprise, that you are charged with no such explanations ; that you have apparently wished to bring the subjects which have been formally and definitively arranged into fresh negociations, as if no such arrangement had taken place ; that one of the cases. thus slighted, viz. that of the frigate Chesa patio is a case for which reparation, not denied to be due, had been previously so long withheld, or rather in which the aggression itself has been spun out • to the present moment, by the continued detention of the mariners; whose seizure, making a part of the original hostility committed against the American tijgate e nsustbe regarded in a light analagous to a continued detention of the ship itself ; that in the other case, viz. that of the Orders in Council, you aft not au thorised to tender explanations for the dis ayowal, or: to propose any new arrangement, nor to conclude any agreement but solely to receive and dis chss propositions which might be made to you, not concealing, at the same time, that, to be satisfactory, they must include two conditions, both inadmissible —one altogether irrelevant tb the subject, and the other requiring nothing less than a sm render of an un alienable function of the national sovereignty. Notwithstanding these repulsive considerations, such is the disposition of the President to facilitate a final and comprehensive accommodation between the two nations, that tie is ready, as I have already had the honour of signifying to you, to favour any mode of bringing about so happy an event that may be found consistent with the honour and the essential interest of the United States.—l have the honour to be, &c. (Signed) a. SMITH. The Hon. Panels James - Jackson, &c. (To he cordinutd To-morrow.) I The Unity has arrived at Falmouth from Malaga, after the short passage of 17 days. She has brought very few letters, and they contain nothing of impor- t mat. I 1 +~.~_ ~.~ - I • • N ~;. - .-=- , 0 10% 4; tik m 04 it; .4 Ctt• al, 'et, lin- 109, 14, win Lys- will lays ay, fter tied eat,. 3 of liry