First Order in Council (January 7, 1807)

However, Lord Howick's governmental measure turned out to be the first step in the British counteraction which was to occupy the thoughts of the whole world during the following five years. Like its successors, it assumed the form of a measure by the King in Council, without the co-operation of Parliament, and it was therefore, from the point of view of public law, an Order in Council. Hence, this term became afterwards in the popular mind almost a proper name for regulations of this kind. The first Order in Council was issued on January 7, 1807, or a month and a half after the Berlin decree. As a measure of reprisal against the Berlin decree and with the reference, previously quoted, to the necessity of 'restraining the violence of the enemy and to retort upon him the evils of his own injustice', trade between enemy ports was entirely forbidden, and also trade between other ports at which the Berlin decree prevented English ships from calling. The members of the Grenville government afterwards maintained that this was only an application of the 'rule of 1756', which included a prohibition of coasting trade along the territory of the enemy. But if that had been the case, there would have been no use of asserting an intention of reprisal; and the opponents of the government—e.g., Lord Eldon, the Lord Chancellor in the following Ministry—also observed that the order went outside the alleged principle, in that it prohibited, for instance, trade between French and Spanish ports. Trade between the enemy mother country and her colonies was forbidden as a matter of course, but this implied nothing new. On the other hand, as regards coasting trade proper, it was more difficult to get at than any other part of the enemy's shipping, a point to which the domestic opponents of the government did not fail to call attention. On March 17, 1807, in a communication to J. G. Rist, the Danish chargé d'affaires at London at the time, Lord Howick amplified this further by declaring that there was no objection to neutral vessels carrying cargo to an enemy port, thence going in ballast to another port, and then carrying cargo from this last port to the home country. It was just the flourishing Danish Mediterranean trade that was hit by the new law; but apart from that the importance of the measure can not be regarded as great, except that to a certain extent it compromised the Whig Party with regard to the justifiability of measures of reprisal, and so far rendered difficult their position with regard to the more comprehensive measures of their successors in the same direction.

It was quite natural, therefore, that those who were in favour of more forcible measures on the part of the government, either against Napoleon or against the neutrals, were not satisfied with the January order. In this connexion we have first to think of Stephen and his supporters, who, according to the later evidence of his opponent, Brougham, constituted the great majority. It is true that Stephen's book had appeared as far back as the autumn of 1805, or more than a year before the issue of the Berlin decree; but there is nothing to indicate that either the man or his book had exerted any influence on the January order. The positive demands of Stephen are not quite clear, it is true; but in any case they can not be regarded as having been satisfied by the measure of the Grenville ministry. In many passages in his book Stephen assumes a negative attitude toward the thought of using the war as a pretext for commercial advantages, which he calls 'a morbid excess of sensibility to immediate commercial profit'; and as a warning example to his countrymen he mentions the action of the Dutch, during a siege, of selling powder to the enemy, whereby, he says, they 'preferred their trade to their political safety'. In accordance with this, he adopts for the most part a purely naval standpoint and urges that the neutrals, with very few exceptions, should be entirely prevented from dealing with enemy countries and in enemy goods, and especially with enemy colonies. In that way the enemy would be compelled to carry on his trade himself and to fetter his naval forces by convoying trading vessels and protecting his colonies and providing them with supplies; and by all these things the desired possibility of captures would also be secured to its fullest extent. Alongside all of this, however, we also find hints that more directly anticipate the following course of development, namely, that the goods of the enemy colonies might be conveyed to the British market and there taxed to such an extent as to prevent them from competing with those of the British colonies.

Stephen was closely connected with the English Tory politician, Spencer Perceval, who as prime minister was in company with Stephen at the time of his assassination by a lunatic in 1812; and it was from Perceval that there came the first positive criticism of the January regulations, viz., in the House of Commons on February 4, 1807. In his speech, too, we have the first complete explanation of the motives that lay behind the definitive Orders in Council; and to judge by the speech it would seem that the detailed framing of those orders was due less to Stephen than to Perceval. The latter clearly takes his stand, from the very first, on what we have designated above as the 'third line' of policy, namely, that of trade rivalry. After a criticism of the January regulations he comes to what he regards as two possible expedients for meeting the Berlin decree. The one would be 'to exclude certain necessary commerce' from the territory of the enemy. But if this leads us to expect a plea for an effective blockade, we are immediately disabused; for it refers to the importation of French and Spanish colonial goods into France, with the object of at least making them dearer and thus strengthening the competitive power of the British goods. The alternative expedient, and the one which was to acquire practical importance, consists in the previously treated 'third line', namely, to turn the measures of France against herself by the order 'that no goods should be carried to France except they first touched at a British port. They might be forced to be entered at the custom-house and a certain entry fee imposed, which would contribute to enhance the price and give a better sale in the foreign market to your own commodities.' It is scarcely necessary to point out how faithfully the previously traced economic tendency of maritime blockade is here expressed, with sales on the enemy market as a self-evident aim. The second of these concrete proposals is somewhat influenced by the instructions of 1798, which in their turn stand in a certain connexion with the entrepôt or 'old colonial' system.

Perceval's contribution to the discussion became of great practical importance owing to the fact that some few weeks later, in March 1807, the Grenville ministry resigned and was succeeded by a government with the Duke of Portland as a figurehead prime minister, Canning as foreign secretary, and Perceval himself as chancellor of the exchequer. The minister of finance soon found occasion to take up afresh the question of measures against the Berlin decree, and that occasion arose in the West Indian interest, which to some extent had also lain behind Stephen's action. A West Indian petition which had been presented to the House of Commons as early as February had been referred to a select committee, whose report was ordered to be printed in August. The report strongly emphasized the American trade between the enemy colonies and Europe as the cause of the fall in the price of sugar, and this was stated to have gone so far that it no longer covered even the expenses of cultivation except on the largest estates in the British West Indies. In the debate on this report Perceval promised a prompt treatment of the question. We may regard as a first step toward the fulfilment of this promise an Order in Council which was issued only a few days afterwards (August 19), whereby vessels sailing under the flags of Mecklenburg, Oldenburg, Papenburg, or Kniphausen were declared lawful prize if they touched at an enemy port unless they were going from or coming to a British port. As the colours of these somewhat dubious North German principalities were commonly used as neutral flags in the more risky cases, this measure implies a first application of the new principle to a part of the pretended neutral trade.