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2d of November, declaring the Berlin and Milan decrees to be repealed. This proclamation was accompanied by a circular from the treasury department to the collectors of the customs, ordering that, unless they should be officially notified, by the treasury department, before the 2d of February, of the revocation or modification of the British edicts violating the neutral commerce of the United States, they should proceed to carry into effect the law prohibiting the entrance of British vessels, and the importation of articles of the growth, produce, or manufacture of Great Britain.
On the meeting of congress, memorials were presented to them from most of the mercantile cities, stating the peculiar hardships which would result to the merchants by enforcing the non-intercourse with Great Britain so early as the second of February, and stating that orders had been sent for goods previous to the issuing of the president's proclamation, which would not arrive till after that date, and of course would be liable to seizure and condemnation. For the relief of these cases an act was passed on the second of March, 1811, exempting from forfeiture all vessels which should have left a British port prior to the second of February. The same act provided, that in case Great Britain should so revoke or modify her edicts as that they should cease to violate the neutral commerce of the United States, the president should declare the fact by proclamation, from the date of which all restrictions should cease. No other evidence, however, of the revocation was to be admitted except the proclamation. A great amount of property was relieved from confiscation by this act, but it did not operate equally. A number of vessels, finding they could not reach their destined ports in America previous to the second of February, altered their course for some of the British dependencies in America, where the goods were landed. These goods, of course, were excluded from the benefit of the extension granted by congress, and were stored until some arrangements should take place between Great Britain and the United States.
On the 18th of June, 1812, war was declared by the United States against Great Britain. On the 23d of the same month, an order in council was issued by the British government, revoking her hostile edicts so far as related to the United States, subject, however, to certain specified conditions. On the promulgation of this order a great number of shipments were made on board of American vessels in Great Britain, most of them in conformity with previous orders from merchants in America to their correspondents in England to make such shipments immediately on the revocation of the orders in council, on the presump
tion that the proclamation of the president would immediately follow. On the 30th of July, the news of the declaration of war reached England, and an embargo was immediately laid on American vessels. On the ensuing day, however, they were by order in council permitted to proceed to the United States with cargoes of British merchandise, being for that purpose provided with licenses protecting them, notwithstanding existing hostilities, from capture by British cruizers. On their arrival in the United States these vessels were seized and libelled by the collectors, pursuant to instructions from the treasury department.
After the declaration of war, most of the goods which had been carried into the British dependencies on account of not being able to reach the United States before the 2d of February, 1811, were imported, and seized in like manner.
The committee of ways and means, to whom the subject had been referred by the house of representatives, made a report on the 25th of November, on the subject of the direct importations from Great Britain and Ireland. This report was accompanied by a correspondence with the secretary of the treasury; by a detailed examination of committees of merchants from Boston, New York, Philadelphia, and Baltimore, and affidavits and letters from a number of other merchants; and by a statement made by Mr. Russell to the committee.
The secretary stated, that however reasonable the expectation of the discontinuance of the non-importation act might have been, yet as not only the act had made the president's proclamation the only evidence of the fact, but that the restrictions were to cease, not from the date of the revocation of the orders in council, but from the date of the proclamation; that the act to put merchandize on board a vessel with intent to import was forbidden by those restrictions, and that (all the merchandize having been thus laden, either prematurely and before a proclamation could in point of time be issued by the president, or after the knowledge of war) all the shipments were therefore made in direct contravention of an existing provision; the collectors were therefore instructed to seize and libel all such vessels and cargoes without discrimination. No exception was made with respect to vessels captured and sent in by American privateers, because, if American property, their right to make prizes was by law confined to enemy's property, and whether American or enemy's, the forfeiture to the United States had been incurred from the date of the shipment, and could not be superseded by a subsequent capture. Instructions to prevent any interference in that respect by either public or private armed vessels were also issued by the president; such interference being consider
ed wholly unnecessary, since the vessels from England were of their own accord coming into the ports of the United States. appears, however, that in some cases the owners of privateers contested a prior claim to forfeiture of the United States, and those cases, of course, were before the courts.
A considerable diversity took place in different states with respect to the disposal of the goods thus seized. The district attorneys had been instructed by the comptroller of the treasury, previous to the war, to oppose every motion of the claimants of prohibited merchandize for its restoration on giving bond for its appraised value, on the grounds of such restoration being contrary both to the spirit and letter of the non-importation act, the policy and intention of which was to shut the door, as effectually as possible, against the introduction of British manufactures, the exclusion of which might be totally defeated by an opposite construction, as the enhanced value of the British com. modity, arising from a general scarcity, might make it, in most cases, the interest of the importer to forfeit his bond. It appearing, however, that the judges of some of the most commercial districts, notwithstanding the opposition on the part of the United States, continued to order the restoration of the British merchandize; no appeal being practicable, since the orders were immediately executed; and the commercial interest of those districts where the restoration was refused being deeply affected by the want of uniformity in the decisions, the comptroller authorized the district attorneys to withdraw their opposition in all cases of bona-fide American property.
The secretary, in conclusion, states it to be his opinion, that, so far as could be judged from the current price of goods, and from sales said to have taken place, the supposition that they had been or could be generally made so as to cover the whole amount of the bonds, as well as the prime cost, charges, and duties, though perhaps true in some particular instances, was no doubt greatly exaggerated. That it was, however, an indisputable fact, that the importation fell far short of the ordinary annual importations from Great Britain, and of the actual demand for most species of the merchandize imported; and that the goods were accordingly generally sold at an advance greater than the usual profits of importers. The difference constituted an extraordinary profit, and was a tax levied on the community by the persons who imported the merchandize contrary to law; which extra profit or tax was solely due to the non-importation act continuing in force with respect to all other persons and importations. The secretary accordingly submitted it as his opinion, that the one half of the forfeitures which would otherwise
fall to the share of collectors ought to be remitted; but that, with respect to the one half belonging to the United States, justice to the community required that, when remitted, at least an equivalent should be secured to the public for the extra profit, beyond that on common importations, which arises from the continuance of the non-importation act.
The statements made by the merchants, who are mentioned by the committee as men of character and respectability, were delivered apparently with such fairness and candour as induced the committee to give much credit to them. These statements went principally to prove, that they were innocent of intentiona? violations of the prohibitory law, and that the current reports of the enormous advances obtained by importers were not well founded, and had probably originated from a misunderstanding of the mode of selling English goods in some of the cities. That in New York, for instance, it is usual to demand and obtain three for one in the sale of such goods, which means £ 3 New York currency for £1 sterling, which really yields but 68 per cent. advance on the prime cost. They admitted that particular articles had been sold for very high prices; but these articles were few in number, and were more than counterbalanced by the losses sustained on others, arising from the change of fashions, or the competition of American manufactures, which had grown up or increased in quantity while these goods had been kept in England by the non-importation law, at the expence and risk of their owners, and from the unsaleableness of goods for the southern market from the expence or impracticability of land carriage, and the risk of water conveyance from the cruizers of the enemy. They stated likewise that the high prices which had been obtained on some articles had been often received by second or third purchasers and not by the importers, the second purchasers being often a species of jobbers, who, having money at command, and being well acquainted with the state of the market, when there is a scarcity of a particular article, monopolize it and raise the price. These statements were corroborated and confirmed by declarations made on oath, by persons disinterested, as well as those interested in these importations.
Mr. Russell, late American charge d'affaires in Great Britain, who attended the committee at their request, stated that after the revocation of the orders in council, many of the American merchants applied to him to obtain his opinion, whether they could ship British manufactures to the United States with safety, or not? That before the revocation of the orders, upon considering the whole circumstances of the case, examining the words of the law, and perceiving that its operation depended
solely on the revocation of the orders in council; considering the evident bearing of the examinations in parliament, and the ground on which the opposition contended for the revocation of the orders, which was not so much an act of justice to the United States, as the advantage that was promised to their own manufacturers, he thought it his duty to countenance the idea that shipments made after the revocation of the orders would be admitted into the United States; that this ground was taken by the advocates for a revocation of the orders, who declared that they would advise their friends to ship, as they believed shipments, in the event of a revocation, might be made with safety, and that he thought good policy required him to countenance the idea, in order to co-operate as far as possible with the advocates of the revocation of the orders. That after the revocation of the orders, he continued to declare, and did declare to the merchants who applied to him, as his opinion, that they might make shipments with safety. This opinion applied only to the cases where shipments were made before the war; after a knowledge of the war had reached England he declared distinctly to the merchants, that the ground of a probable annulment of the non-importation act by the government of the United States had ceased. Mr. Russell stated, however, that after the knowledge of the declaration of war had reached England, he did still advise the American merchants to ship; because, if the property remained in England during the war, it would be ruinous to the holders. Many persons, after the revocation of the orders, and before the news of war arrived, had made purchases. He would not be understood to say, that he advised the merchants that in case the law should not be repealed, they would be permitted to enjoy the advantages of a monopoly and the consequent extraordinary profits, but merely that the property would not be confiscated; this, however, he said, was not at all a subject of conversation. His opinion that shipments might be made with safety, was founded as well on a presumption that the law would be annulled, as that the shippers would, in any event, be placed as nearly as possible on the footing on which they would have stood, had the law been annulled. That if the law should not be annulled, e special circumstances under which the shipments were made would entitle them to an exemption from its penalties.
The committee, in their report to the house, stated, that, on a view of the whole subject, they were of opinion, that the secretary of the treasury had full power to remit or mitigate the penalties and forfeitures incurred, should an interposition in either way be called for by the circumstances of the case. That they