The enquirer — Richmond, Va., 1810-01-20 00:00:00, page 2

concerning commercial intercourse withG.
Eritain and France; and for other purpo
ses
And the House adjourned till Monday
next.
Mr. EPPF.S’s SPEECH
Gn Air. Oil ns’s resolution from the
•f Senate.
December 27.
Mr Kfjfie* snid, that as the mot ion to post
pone indefinitely the resolution before the
House involved the merits of the questio..,
he would avail himself of the opportunity to
present to the House and to the public his
view of a transaction which so deeply affec
ted the honor, the interest and independence
uf the nation. If, said he, there is any ques
tion on which the two great parties ot our
country ought to unite on ground truly Ame
rican, it is the one which we are now cal
led upon to decide. In maintaining the re
spect due to the Executive branch of our
own government, in discountenancing rude
ness or ituolance on the part of a foreign a
gent, men of all political parties have a
common interest. Whatever difference of
opinion may exist either as to general or lo
cal policy, we surely cannot, on a question
involving the support of a foreign agent a
gainst the Executive government of our oven
country, arrange ourselves under the ban
ners of party. Hitherto in all questions be
iween me administration ot tins country and
that of Great Britain, gentlemen hare teld '
us, you need not expect justice until you
repeal laws considered in Great Britain hs '
manifesting hostility on the part of the U. J
States. The partial non importation act
was said tobe a measure of hostility ; this is
done away.. The proclamation issued after
the most flagrant violation of our territory
end rights was considered a hostile mea
sure ; this it done away. The embargo was
considered as a hostile measure ; thie >i done
away also. Gicat Britain and France must
be placed on an equal footing ; this has also
been done. The former administration a
gainst which gentlemen had been habituated
to indulge feelings of distrust and suspicion,
has gone out. The first act of the new ad
ministration, but for the bad faith of the
British ministry, would have consigned to
oblivion every measure which the opponents
of the former administration have hereto
fore considered a bar to the adjustment of
our differences with Great Britain. Will
gentlemen now tell us why Great Britain
will not do us justice? Will they tell the
people the grounds on which the disavowal
of the late arrangement with Mr. Erskinc.
is made and justifv the British ministry?
They dare not. Will they sacrifice i n the
altar of public good party feelings, and pre
•ent to foreign nations that united front
which alone gives force to a free govern
ment? The vigor of a free goverement de
pends on union. To the patriotic and volun
tary exertions of our citizens we must look
for that energy which a tyrant forces from
relnctant slaves. VV’liat prospect of redress
for our injuries can we have, if on an occa
sion like the present, marked bv such strong
features of injustice on the part of the Bri
tish government, and of atrocious ir.bolcnce
on the part of its minister, the representa
tives if the people shall present to the world
the extraordinary spectacle of discord, di
vision and disunion. It seems, sir, that the
fair castle of union and confidence, which
men of all parties united in rearing at the
last session, has vanished. It seems that the
present administration is not to be judged bv
its own acts, but is destined to receive as a
sort of inheritance all those bitter and acri
monious feelings which years of party con
flict, had ripened into inveterate hostility c
gainst the former. Gentlemen have just
discovered that the promptitude and frank
ness with which the Executive of the Uni
ted States met the overtures cf Mr. Erskinc.
is all an error. A gentleman from Connecti
cut (Mr. Dana) who at the last session of
Congress told us, that on this occasion the
President of the United States had acted
like atr.au of business; that no diplomatic
difficulties had been thrown in the way ; that
the tender was met fairly, openly and hon
orably, has employed himself duriugthe re
cess. in reading Grotins, Puflendorf, Vattel,
Wicqucfort, Martens, and other writers on’
national law, ar.d now tells us gravely this
thing is all an error. In May last I thought
with the gentleman from Connecticut. I see
nothing in the correspondence laid before us
which can justify a charge of opinion. 1
cannot, like the Satyr in the fable, blow
hoi—blow cold with the same breath. I
cannot call black, what I at that time tho’c
white. I cannot assent to attach myself to
the pendulum of Mr. Canning, whether its
vibrations tend to promote the interest or
ruin of my country. Sir, do gentlemen for
get that the conduct of the Executive on this
occasion was approved by men of all par
ties iu this country? Do they forget
that it was eulogised and approved by
themselves? Do they expect to explain
to the people this sudden vibration
ny rciercnces to ruttendorf and Grotius?_
Will they tell the people the real grounds
on which the disavowal of the late arrange
ment with Mr. Erskine is made, and an ay
themselves in opposition to the administra
tion for having entered into it ? They dare
not. Will ttiev say tu the people, that as to
the affmr of the Chesapeake, the British go
vernmeot will not make us reparation, be
cause the repeal of the President's procla
mation is* not recorded in the instrument
The people will tell them the proclamation
is repealed. Will the gentlemen then tell the
people, that although Captain Bradley vio
lated your territory ; that although Pearce
was murdered within sight of the harbor of
Kew York; although the attack on the Che
sapeake took place before the proclamation
issued, still it is made an affair of honor !>v
the British government? It is rot enough
that it is repealed, you must acknowledge
you were wrong in having issued it. Will
gentlemen, in addition to this, tell the peo
pie, that before reparation far the Chesa
peake >s made, we must disfranchise our
naturalized citizens, and acknowledge the
right of his Britannic ronjei'y to claim them ?
Will they tell the people, that before the
orders in council are withdrawn, we must
give security for the continuance of our non
intercourse system against France. The
people will reply, that bv the arrangement
with Mr Erskine, tha» has been already
clone? Will the gentlemen then say to the
people in the language of Mr. Canning, this
law may be repealed. Great Britain must
have two other conditions Complied with ■
you imift relinquish all right to trade with
enemies colonies ; hut this is not sufficient j
your own government is too imbecile to cxc
cu'e your la\ s against France ; the British
fleet must be allowed to aid you, so as to se
run the gor’d fai'li of th<> United Suites!_
Will any g nikmandtii) that uu..,e age the
reason* assigned by the British ministry tar
disavowing the late arrangement. Mr.
Cantiingtays, Mr. Erskine v as authorised
to make the arrangement on those condi
tiongonly, and these have not obtained? I
cull upon gentlemen to rleny the statement
1 havr made. They cannot. To our dis
grace it is on record, & the record before us.
The course pursued by the gen1 lew an from
Connecticut (Mr. Dana.) in discussing the
resolution before the House, renders it ne
cessary to bring into view the whole of the
late arrangement tfc disavowal. The gentle J
man has told ns—
1. That the whole correspondence is
founded on an error on the part of our own
executive, via: that Mr. Erskine could
make stipulations binding an his govern
ment in virtue of his general lettor of ere
Idence.
2. That in all cases where stipulations
are to he made by a minister hindiug on his
government, there must be a full power, or
as the gentleman terms it, a patent power. |
3. That it was the duty of the executive of
the United States to have demanded of Mr.
Erskine, as a preliminary to negotiation, the
production of the authority under which lie
acted, whether it was contained in a full !
power or instructions.
me gentleman from Connecticut, (Mr.
Dana.) who on this occasion has certainly
displayed both learning and industry, stems
to have viewed the arrangement entered
into with Mr. Erskiue, as a formal treaty,
and has appiicd to it principles not at ali
applicable to what it really was. viz: apre
HniSnary arrangement to be succeeded by a
treaty. All ti.e authorities cited by the
gentleman are applicable «>n!v to treaties
embracing regulations of a permanent ebu
racter. The gentleman has correctly cited
various cases under the authority of the U.
States: 1 President Jefferson to Messrs.
Monroe and Pinkney, letters of credence
arid full power—President Adams, eavoj s to '
France, letters of credence and full power; j
ansi lastly, the case of Mr. Ilammond under i
General Washington's administration, who
had presented letters of credence, and was
nevertheless called upon to produce a sepa
rate power.
In pH these casc3 the ministers were to
form a treaty. .The last case between Mr.
Hammond and Mr. Jefferson, embraced not
only a ire. <y of commerce, but the adjust
ment of difficulties produced by a failuie on
both sides to execute certain'articles of a
treaty concluded under the old confederati
on. It never 1ms been doubted, but that a
separate power, independent of the letter of
credence, is necessary for the formation of
a treaty embracing regulations of a perma
nent character. The full power or potent
power, on which the gentleman from Con
necticut has said so much, was original
ly designed to bind Princes to ratify the acts
[of their agents.- It was much in use in the
lClh, 17th, and part of the 18th centuries,
when Princes were prore to p*\fidy, mid
being considered according to Wicquefort,
as a power cf attorney, absolutely bound the
sovereign. Indeed, the same author relates
instances where treaties were published be
fore ratification, 3c says, that the ratification
i:< not of the essence of a treaty. It is nor,
however, doubted but that nccording to the
present usage of nations, whether a treaty is
concluded in v.rtue of a fi ll power or not,
sovereigns claim the right, to use the lan
guage of Vattel, “not to lay uny stress upon
their treaties, util they h ave signed upon
and ratified them”—vid. Vattel, b. 2. clmp.
s£*c 156.—By the same writer, the tils
tiaction is cleaily laid down, between a trea
ty embracing permanent legulations, and
whut are termed conventions on public af
fairs—vid. book 2. chap 12, s<c. 207. Th«
reference which the gentleman has insole
to the message of President Madison, in
support of his doctrine of full power, is ra
ther an unfortunate one.—Here Mr. E. read
the following extract :
“ In consequence of the provisions of the
act interdicting commercial intercourse
with Great Britain and France, our trrinis
ters at London and Paris, were, without de
lay, instructed to let it be understood by the
French and British governments, that the
authority vested iu the executive to renew
commercial intercourse with their respect
ive nations, would be exercised in the case
specified by that act.
“ Soon after these instructions were des
patched, it was found that the British go
vemment, anticipating, from early proceed
ings of Congress, at their last session, the
state of our laws, which has had the effect
of placing the two belligerent powers on a
footing of equal restrictions, and relying on
the conciliatory disposition of the United
States, hsd transmitted to their legation here,,
provisional instructions, not only to offer
satisfaction for the attack on the frigate
Chesapeake, and to make known the deter
minatiun of his Britannic majesty, to srnd
an envoy extraordinary with powers to con
elude a treaty on all the points between the
twocountries; but, moreover, to signify his
willingness,,in the mean time, to withdraw
his orders in council, in the persuasion that
the intercourse with G. Britain would be
renewed on the part of the U. States.”
Here then the form in which this ar
I niiKciiiri!i was mane, is stated ollic.iallv to
I the gentleman from Connecticut. The ar
rangement has none of the characteristic
features of a treaty. It has never, until the
present time, been considered as a treaty.—
It was stated by the President, as it really
was, as a mere preliminary arrangement,
contemplating only a temporary withdrawal
of certain measures, until the general relati
ons cf the twoenuntrics Could be fixed by a fur
m;.l treaty. On this part of the subject, to
wit: “that the arrangement with Mr. Krs
kirn* cannot be considered as a formal tren
dy —“the observations of the gentleman from
North Carolina, (Mr. Macon.) are infinite
ly superior to any thing which 1 can say,
because they are conclusive.
Having made these preliminary remarks,
I will now proceed to examine—
1. IIow far the Executive of the United
States was authorized to receive the
declaration of the accredited minister
of Great Britain, as to the extent of his
powers, or was bound to require an cxlii
hidon of his instructions as a prelimina
ry to thearrangement.
2. How far the arrangement entered into
was obligatory on the British govern*
rri'-nt.
3. W, hether there has been such a depar
ture from instructions as to war. ant a
disavowal of the arrangement, without
a breach of g <«1 faith on the part of the
British ministry.
In examining the first point, the first
question which presents itself is, under what
authority did Mr. Krskine act i
1. Under a general letter of credence.
2. Under instinations.
What is a general letter of credence ? It
;s a paper Rddre«^d by the fcAecutivc Ma
gistrate of one country to the Executive Ms ;
gistrate of another country. It contains the
name end quality of the minister who hears
it, and is always presented in person—after
mentioning the name and quality of the mi
nister. it proceeds to state—
“We therefore'desire, that yon will give
a favorable reception to our said niinistci
plenipotentiary, and that you will gi\c en
tire credence to whatever he may leprescttt
to you in our nanie.”
A letter of credence, being tinder the sig
natnre of the head of the government and
seal of the nation, and of course parent to
the government receiving it, is equivalent to
a commission in any other form whatever.
The only difference between :• fullp. wer
(unless limited to a special object.) nnd age
neral letter of credence, consists in this—
The full power gives a right to make sti
pulations on all subjects.
'1 he letter of credence, on such subjects
as come properly within the range ci the
general powers of tiie minister resident.
The full power is signed by the head < f
the government, and being under the seal of
the nation, is of course patent.
The letter ol credence is also under the
signature of the h**ud of the gavernuunt
and seal of the nation, and of course pa
tent.
minister acting nnucr ajull power and
instructions, presents to the government on
ly the full power.
A minister noting under a letter of c.re
denre and inxtruc'iun*, presents only Uis let
ter t)f credence to the government
The instructions in b .Vi. r ises belon rx [
clusively to the minister and cannot be <1 1
mantled. They contain, totlRC the language
ol Vattel, the master’s secret. The only
question therefore seems to be whetinv the
subjects arranged bv Mr. F’-skine. viz. the
Chesapeake and ordcis in council come 1'air
lv within the tattle of the powers oft resi
dent plenipotentiary.
„ 1 he powers of a resident minister pleni
potentiary arc no where precisely defined—
and consequently there is m« precise d”
markation between !hc fulling within
liis powers' and those tequiring n special
plenipotentiary comiiiivsiwi. Usag*. reason
and common sense, must trace the distinc
tion. I-i genei .il—occurrences of a transitn
ry character are settled hy the resident |
functionary. Transactions and agreements j
operating like treaties of peace, commerce, ;
alliance, &c. either on account of their per. •
manent character or peculiar magnitude,
arc the work of plenipotentiaries specially
commissioned.
Mr, Hofe for tlie adjustment of the affair
of the Chesapeake brought only a letter if
credence under the hand and seal oNiis so
vereign. The despatch of Mr. Canning to
Mr. Erskine of the 23d of January i« not a
full power in the legal sense of the terms,
being neither signed or sealed like a full
power or addressed to the proper authority.
Ildu Mr. lvv. kine therefore shewn the in
structions, tlie authority of them would
have tested not cn their intrinsic character,
hut on the letter of credence which required
Jaith to oe put in his word. It is admitted
j that Mr. Erskine had authority to adjust
| tlie affair of the Chesapeake, aiul objected
• illy that he violated his instructions Vet
lit is certain he had no extra commission—
I nor is it pretended (hat in (hat case lie It •(!
jituy instructions, even which he was autho
j rised to communicate, liis authority tuere
! fore was in his letter of credence. The
| proposals of our minister Mr l’inkncy in
| London, on the subject of the embargo and j
orders in council, although they conteinpla- !
i tf*cl a repeal of both, were lint ebjicivu to
lor want ol power, yet he had no commissi |
on except his letter of c redence. Thfe in
structions ol Mr. Erskine contemplated a
repeal of the prohibitory acts on both sides,
although it is not pretended that he had hoy
other commission but his general letter of
credence. English histoty furnishes a pre
cedent in point, which shews ihr.t a full ■
power is not necessary to arrangements pre- !
I iiminary to a treaty. The case in q uestion
is the declaration anil counter declaration
[exchanged at Madrid the 24 h of July, 1~S0,
between the Spanish mmister count Florida
Blanca and the B’.’.isti ambassador AI
layne Fitsherbert. In that cr.sc there w as
[no fttil power, tlie phrase used is *• bei ig
thereto duly authorised.” This decl'.ration
and counter declaration were sig ;cd in sir.
tuc of a general letter of credence, l Mr.
Fitzherbcrt, who was minis tr pleuip n
i tiary front Great Britain to. the Catholic
king, hut when in coiiecquencc of this prtli'
minarjr arrangement a treaty was cat wed
into on the 28ih of October of the same vear,
the phrase is titered, as after rot: ting count
Florida Blanca’s and Mr. Fit^herbert’s np
pointments to conclude the treaty, it says,
“ who after having communicated to each
other their respective full powers”—vid. Am
Keg. 1*90, p 300. On this and the oilier
point the calling'.for the exhibition of instruc
tions as a preliminary to negociaticn, I beg
leave to read ihe following authorities.
“ The embassador after he has presented
his letter* of credence (says Wicquefort,
folio cd. p. 109,) and hod them approved,
might to enjoy the effect thereof purely and
simply and has no further ocoataon to fortify
or au .home his negociatiun by producing o
ther instruments.”
'’Instructions (says Wicquefort) are a
Kccrct instrument which the embassador is
not rb'iged to communicate to the court
where he negociatcs. Nay, I dare affirm
that lie ought not to produce it, \ i scut a
necessity and express order. In tlic year
15G0 queen Elizabeth sent into See.land !' •*.
bert Bowes, with orders to make pressing
instances to have the Duke of Lenox ie
moved from the King’s person, who was at
that time very young Those of the ceut.-.il
ot Scotland said, that it was so severe and
unjust a thing, that noticing able to believe
the queen had given him unv such orders
they desired to see the' i. Bowes said he
would vot shew thrtn. The Scotch were
dissatisfied therewith. But the queen was
so displeased with their procedure, that she
recalled her ambassador, and refused to give
audience to him they sent to justify their
transaction.”
^ “ In the year 1643 (says tfir same author)
Walter Strickland, minister from the parli
ament of London, presented a memorial to
the states general, wherein he spoke of the
prince of Orange with lit tic respect. He
woe urged to shew hie order ti, Lot it was a
kind of violence that could not well he jus
tified. They that did it, eilhrr did not re
fl ct on what they did, or else they v err
w illing to offend liis mas er. YVe have teen
within some years a minister, whol-ivn
been sent by a powerful state to onc < f t».*
fitst princes of Germany. beqan hi* nr ,-.i
ation by laying bis instruction- or. the tabic
But ail that can he said of if L, tli a it was
the ac'hmof u f *>I. in the utmost extent of
tlie signification of the epit;.~t. h l.t un us
herd *f ihU'ff that ft fitiniefer has keen com
h'lled to ehev* his order f, end they rrtlo
force him t<- do it offer ^violence to the taw
:f tia ‘ions.**
** The minister who is to carry on s tie -
/tMVKiioii (suvs Martens, Rook 7, ch. 3 sect.
5.) is furnished with ins'ruttiohs. These
instructions, ns well ns those th it it mav b *
necessary to despatch-to him in tlic r mrs,
of his embntsy, being intended fur him nett
atone, urc mi usually fircduced to the court
•where he is sent, untes* his own court ord i>
him to do it, or unles-. he, fmm urg-nt mo
tives. think*: himself justifiable in producing
certain p i*v»g -s of them. Snnieiiines he
has two sets of int'rucliont, the but fiablic,
and the other secret
“ Instructions (*sys M dc Cnllieres in
his *• maniere de negneier,” page f:7,c. 12 )
•ire a writing which contain the commands
of the prince orof the state, that gives them |
to its negotiator, to which thev may have
recourse for the purpose of refreshing h s
memory and by which he is to regulate his
conduct.—Tliere sue sometimes two sets ol
i istructions, one nn.de to he shewn, tiie o
therseeret—wiiich contains the true and ul
tinta e intendou of the prince or suite that
gives then:.”
'* i lie same author, page E8. declares,
the instructions of n public minister car.not
be demands, d without a violation of the law
of nations. Me ouglr utver to Cemnumicntc
them without the i xpress commands of his
sovereign—Nothing is necessary to give full
fai'h to his declaration, but the letter of ere !
deuce which he has presented or the full i
power which lie may have communicated ” f
1 "rom these authorities it appeals that
it.e exccu! » .‘had no right todemar.d of Mr. j
Erskine ins instructions—Mr. Erskine did j
not cxhilot them—on thecontiaiv he de ;
ctares, tha' he considered it would lie in vain j
to lay betore the government of ihe Uniud i
States the despatch of the 23d of January, j
which he was a; liberty to have d me in
t x enso if lie had thought proper, vid. cor.;
page SO.
J will now proceed to examine how far !
the arrangement emered into was obligate
ry on the liritisli government—
In order to form a correct opinion on this
subject it will be necessary to pass iniev;c»v
the circumstances which" took place prior
to the late arrangement. The r.ieasutea a
dopted at the commencement of the 2d sc.
sion of the llth Congress, placed Great
Britain and France on r>n equal fooling—
Every pretext for a continuance of the de
crees and orders was removed, and the pro j
tision contained in the llth section ut the
nrn-intercourse act, was introduced for the !
express purpose of enabling the President, |
to meet the advances of either Great Britain
or France fora restoration c>f intercourse—
alter a due lapse of time the arrival of a r.a
tionalahip is announced, htinging tint an cr
dinary messenger hut a secretary of Jegati
on charged with important despatches_
Mr. Erskine, live Biitish minister, imme
diately addresses to the secretary of state a
note tendering reparation for t'ue affair of
toe Chesapeake, and expressing the sincere !
ili°position «if his imjesty for an adjustment
of ah the differences between the two coun
tries.
1 will read an extract from the first note.
“ It having |>e?n tepresented to hi* majrs
ty’& government, that the Congress of the
United States, in their proceedings at the
opening of the last session, had evinced an |
intention of passing certain laws, which!
would place the relations of Great Hrrain j
with the United States upon a'1 equal fool
ing, in all respects, with the other hi Inge
rent powers; I have according!) received
liis majesty’s commands, in the event of such
laws taking place, to offer, on the part of
his majesty’, an hc.mrabie reparation for the
aggression committed by a Biitish naval <>f
fi er in the attack on the Uniled'Staics
t< ig tte Chesapeake ”
*1 he reparation for the outrage on the .
Chesapeake is accepted and the Uriti.hi mi
ihater immediately addresses to lie st r eta
ry of state a second note from which ic fol
lowing is nn extract—
“ The favorable change in the relations of
his majesty with the U.. States, whir*-, h -.s,
been produced by the ac/ (usurl’v tr i red the
noii-inicrcoui e act) past in the • si h<•• r,io:»
of Congress, was alsoanticipated by his ma
jesty, and has encouraged a further \ pe, •
that a re consideration of the existing du
ferences might lead to their satisfactory ad
justment.
‘‘On .hese grounds and expectations'!
am instructed to communicate to die A.r.e
rican government, his majesty’s determina
tion of sending to the iJ. States, an envoy ,
extraordinary invested v/itli toil powers to j
conclude a treaty on all the points of the re
lationc between the two couitliics.
“ In the mean time, with a view to con
tribute to the attainment of *o desirable an i
object, his majesty would be willing to with
di aw his orders in council of J.muary and
November, 18tr', so far as respects the U. i
State*, in the per oa.tion that the President ■
would issue a Proclamation for the renewal I
of the intercourse with Great Britain, and!
that whatever ri herence of opinion should ■
arise in the interpretation of the terms of
such an agreement, will be removed in the
proposed negotiation.”
1 his also is met with tbnt unsuspecting
confidence which the circumstances under
which it was tendered was calculated to
produce—The proposal of the B itixh r.mis
ter is ; cccpted, and he immediately acldres
ses to t.ic secretary of state the following
“ In consequence of the acceptance, by the
President, as stated in your letter dated the
12th iost. of the proposals made by me on
the part of his majesty, in my letter of the
same clay, for the renewal of the intercourse
between the respective countries, I am nu
t'lnrizedto declare tha his majesty’s orders
in council o; January and November, 1807,
'"ill havz been withdrawn, as respec ts the
United States, on the 10th d ty of June
next.”
This pledge, sir, thus solemnly made in
tins face of the whole world is accepted l»y
the Executive*—he could not have declined
it without supposing the British minister nn
unprincipled swindler. Oh what principle
could the Executive of the U.S. have deeii
ii'd a tender thus made? The ac. ’editjd
minister plenipotentiary of (i. Britain de
dares, “ 1 ;tm authorised to declare that his
majesty’s orders in council will have been
withdrawn on the 10th dr.y orJune r-xt.”_
Cculd the President of the IJ. States have
d ili.ed the veracity or honor of the minis
ter? These had never been questioned,—
b'c-.drl he suppose that Ivlr Krskim: would
a: tfully sacrific- bimseif to such a project
neiin u t'ne \ jews of his government ; for this
th. M< coiil ll eno possible temptation. Con’d
the F.x-’c.itive siqipose that Mr Krskinelrid
Hiisfi-keo the vi* v/s o* his governiiieM ?.
Such '* * opf* s .i'll cetrtl cot Imj em* *tnined,
h r in . ht , d*s inches were brnnsrbt by n
ci i lor., ic auxiii.ry, i.imicdiatel) i'ron» his
government, not OouVtd to be posscsprd «'t
nil its view* and veil understood to be priv}*
to all the steps taken In- I»Ir. lirskine.-•
Were the let ins ufiercd nt stic.lt a crisis of a
nature to render the v fTcr suspicious—to fat*
front it, that the ktnpiiare « f those who now
reprobate thr want »>t c.uuioii was, tit:* tlw*y
•vtre ahv.iys h* t«j i Jf uiitfcrr fcuch c»r«
nmstancc r tlu- npjiot turitv had been met by
die scruples and subtleties now ndvanced.
let candor th 'ide v. halter the M’tl'e: s r. u’d
not and would not have npncav d in »» uch
greater force pg«inst the adntii,;*',n‘i' tt.—
I.ft gentlemen s.-.y, whether men ‘f -i
tics would not hj> • t)',i>cd. in execrating lh«
c r.doclof tin ejtvct't;vt-, if instead of nt et
ing the ovortuteH of IV1 r. I>skine, to use
their own language, with “promptitude and
frankness.” he had told flirt to s nil h:;ok tt»
(* Britain for ti patent fiowcr as a prop for
his \>cracity.
1 o maKf u contract binding, five things r.re
necessary—
1. That the parties have p jvver to con
sent.
2. That they have conserved.
2. That they have c.onsrnttd fitcly.
4 That the consent is mutual.
5. That the exccn'ion is p
I'kI Mtrtir, Ji'jok 2, ('.* 1 Ecc 3.
Tire arrangement is nut disavowt 1 for
want of power on the part of ivl* . JEhskine,
but f.T a depirtu c from ii.s**tm ii ns. !» is
admitted |>y Mr. Jackson tlc.l Mr. jv,'shine
hud power. In peg- (9 of the can cspintdenrr,
I .'Ir Jackson declares — "I must hr; your
! very panicuhir a'lenti n to the circr ./stance
that Irs majssiy's ratification hasb.*«:n . r,i
| hehl. rot because tlit* agreement v,.s cru
| eluded without a full power, hut because it
[ was altogether irreconcilable to the i.mnic
| tu ns on which it was professedly founded.'
I I ne question i.1 the full power was iv.trcdu
icerl by yourjsrLf, (ogive weight by a quota*
|iion ‘mat a highly resprcHd >i lior, toyour
,C *'Mplain* of the di-M'i, val ; in . nswer I®
j which 1 observed, that i! c qir.'.ation ilid
not a; p v, ns \li*. I'.i -.Line i>:> .1full p * cr.
Never did J imagine or any »vi :re attempt,
to rear the r.gnt ut d savowa! upon that cir
cinutanrr.'’ According to Mr. J,irkM<n
the1 1 Mr. Jv»! ioe had power to c uisciit.
2 Hi* did Rori.se i:t.
3 )!•* consented freely, for the proposition
came from him:
4. » he consent wr.s nv.t*nal, for it is in a
wiitleii form ana signed by both. .
5. The execution was not riiiy possible,
but just and ea'\.
1 he f v** essentials of a contract were
complied with ; the contract, so far as it re
spected tlb U. S. executed with good faith;
no future ratification was or could be reser
ved j the afi iirof the Chesapeake wrtsiob®
concluded here; the wipulatious as to the
orders in council were to be carried into im
rnctiiats effect. louse the language of ,ir.
Cunning, the orders in c ttncil and the < m
lutgo were m be contemporaneously with
drawn, and Mr. Krskine was authorised to
fix the time—No notice of a departure front
instructions was given at the time of making
the arrangement.
: To disavow with honor the act of its
credited agent, it is incumbent on a govern
ment not only to shewa palpable and" mani
fest departure from instructions on material
and important points, but also to produce
such strong and so id reasons, as manifestly
nutwwigh not only the general obligation, to
abide i»y what I.as L en done, but aim the
disappointment and injury accruing to the
°thcr party. This principle applies to cases
where mutual ratification is reserved. The
Co"" before us isof a higher character—'.he
refusal of lit- Bri'oh ministry is not simply
to r.i'ifv \vhyt hail ratifi'*dbv ihc other
p.-.fiy, bnt»ocarry in i* off* i;t on their nvrt
r.ti nr . .g meat whim ha 1 be-n cavrb-dVito
U:ii edict with g-uj fault on the fari of the
United {State*.
I *vill now proceed to examine,
3 \\ tether there has be *n such a c!?;:ar
rave from inai ui ions as t > 'nrrant a •: ia
loivai of the art atiff*!Tiert ■ i hout ft b^c icIl
or goo i faith on the. part of the ll.i'idi i..in
is'.rv ?
1 e arrangement entered into With Mr:
lv. skb e, covns’ed of three part;,—
1. Ilepurutinu ihr the affair of the Chesa
peake.
2 A withdrawal of the orders in coun
cil.
.. A promise to s?ncl over a minister with.
; full powers to conclude a treaty <in all the
<-fs it difference between the U. b and
G Brit in.
1j“\ us pass in review the several parts of
i ilit' aira .g» uient, and sue how far on < ^cli
tiierr lias been rur.li a departure from in
ttrnc’ions, as to warrant tlie course pursued
by the Briti.h ministry.
1 l lie reparation for the outrage on the
Chesapeake—
J he instructions of Mr. Enkinr on this
subjxt are tint km wn tons; Mr Jackson
has not pointed to any despatch in which
they were contained. There is strong
I ground indeed for believing that as to the
i Chesapeake, there has been no departure
| from instructions ; the instructions on this
j subject, and indeed on 'heonh . s in council
j are said to have been foutuKuon •' c pri st n ■
I tation made by Mr Erakine to the British.
! minister, Mr. Cam mg. There is a perfect;
i agreement between what Mr. Canning sta
lled to Mr. Pinkney ns the reparation which
; Mr. Rrskine s iid would bcacci plat lc to the
! American government and the reparation
1 actually tendered. In p.gc 7 of she hist
I me.ssag; coutaiiiimc extract. from M* Pink
, ney'* letters Mr Pinkney say*, “In the in*
< terview which took plarc (on May 25) Mr.
: Canning said, that the British ministci had
acted in the late negotiation and engage
| ments with vou, not only without authority,
j lint in direct opposition to the most precise
, instructions; that the instruct! ns actually
given to him hr.-1 been fn .at:. A on his own
i rtters receired hcri in J , In i i
| were tot. fori.o the particulars t.f i d <■ n
I versa’.ions that had |,iv<d between him and
Mr. Madison, Mr. (. lihuin and voi • elf,
l mt especially the two list; that iir’ppcaietl
born these convers r.ions that, in the epinip'i
of the persons with wi m ihev w^n> hi id,
the government oftlicU.S would lie willing
l that (» Britain t.iiou', J ci-nsidei the meanr e-*
then contemplated toy Con, . .relative to
i n'*ti intercourse, anti !ir indiscriminate cx*
iclusionof belligerent vessels fiotn our wa
iters aspiv *mingan opening for the renew*
[ uii.i i »if niscns iiwiiH w:f!) his counti v \
' that it would be disposed, pi the cate of the
j Chesapa'k", to receive as sufficient repara*
, tion, ill addition to the prompt disavowal and
recall of Admi“al Berkley, the restoration
of t »»e seamen forcibly taken out of that vet
itel."
fn the next pare of theatric letter, Mr.
Pnki’.y snjs, Mr. Cannot; pneerdv1 to
Ini <riti me that in cram queue? of the* i .
pit-sent tiion.4 outlie p.i t>f Mr. lii>fejc
t« o ret.of instructin'. bed !>t« u forwarded,
t ' ttj is. liit ( ; tn tpesk , ' it