In the final days of Jefferson's presidency, Congress replaced the Embargo Act with the Non-Intercourse Act of 1809. This act lifted all embargoes on American shipping except for those bound for British or French ports. The intention was to damage the economies of Great Britain and France, forcing them to repeal their embargoes and recognize America's neutrality. But the act was hurting American business. More and more, the people were urging the U.S. government to lift the embargo.
Then on April 1809, James Madison issued a Presidential proclamation stating that as of June 10th, the embargo with Great Britain will be lifted. This was a direct result of instructions given to the United States by the Minister Plenipotentiary of Great Britain, David Montague Erskine. Erskine had declared to Madison that on June 10, 1809 the orders in Council will be withdrawn. As of June 11, trade between the United States and Great Britain would resume. James Madison, in his first year of his presidency had the great pleasure of reporting to Congress this positive change with Great Britain. Not only, was the opening of trade with Great Britain important itself, but it was a sign that the march to war between the two countries was over. But, then Great Britain repudiated the instructions given by the Minister Plenipotentiary, and replaced Erskine with a new Minister Plenipotentiary. This new Minister communicated to the United States that the Orders in Council would not be withdrawn, and the policy of non-intercourse would resume.
President Madison was angry, and in the opening remarks of his State of the Union Address, James Madison who studied law but never secured the status of lawyer laid out his legal case to prosecute Great Britain. He pinned the continuation of a non-intercourse policy with the belligerent nation squarely on Great Britain. Madison's words can be difficult to read, so below is a paraphrase of his opening remarks, followed by his actual words.
[paraphrase]
Last time we met, I had the satisfaction of communicating to you a positive change in with Great Britain. The change itself was highly important, but even more so it was a sign that Great Britain was willing to to change their ways and accommodate our commercial needs. But now, it is with deep concern that I must inform you that this favorable prospect has now been clouded over by a refusal of the British Government to honor the instructions given to us by their minister plenipotentiary, and by the new policies towards the United Sates as communicated by the minister sent to replace him.[actual words]
There are times, when one party can repudiate an agreement established by diplomatic law without mutual ratification. For example, if one party departs form the instructions given, or one party is taking unfair advantage of the other. Even then, one can not break good faith and disavow themselves from an agreement that was made without notice or without any evidence of a violation from the other party. Yet, in this case, the actions of Great Britain are even more repugnant for two reasons. First, as part of the agreement, there were no terms established allowing Great Britain to disavow themselves, and second it has been shown that the instructions given to the United States as part of the agreement were immediately carried out in good faith by us.
I have pleaded with the British Government, to consider this and respect their agreement to revoke the orders in council, and authorize the renewal of commercial intercourse, but they have refused. This, then raised the question as to whether our own Non-Intercourse act should remain in effect. After much deliberation, we have determined that it should. My Secretary of Treasury has already sent to the collectors of our seaports instructions to require British vessels to post bond before proceeding to their own parts. Enforcement of these instructions. Therefore, I urge you to consider additional legislation and penalties for those collectors who refuse to follow these new instructions.
"At the period of our last meeting I had the satisfaction of communicating an adjustment with one of the principal belligerent nations, highly important in itself, and still more so as presaging a more extended accommodation. It is with deep concern I am now to inform you that the favorable prospect has been over-clouded by a refusal of the British Government to abide by the act of its minister plenipotentiary, and by its ensuing policy toward the United States as seen through the communications of the minister sent to replace him.
Whatever pleas may be urged for a disavowal of engagements formed by diplomatic functionaries in cases where by the terms of the engagements a mutual ratification is reserved, or where notice at the time may have been given of a departure from instructions, or in extraordinary cases essentially violating the principles of equity, a disavowal could not have been apprehended in a case where no such notice or violation existed, where no such ratification was reserved, and more especially where, as is now in proof, an engagement to be executed without any such ratification was contemplated by the instructions given, and where it had with good faith been carried into immediate execution on the part of the United States.
These considerations not having restrained the British Government from disavowing the arrangement by virtue of which its orders in council were to be revoked, and the event authorizing the renewal of commercial intercourse having thus not taken place, it necessarily became a question of equal urgency and importance whether the act prohibiting that intercourse was not to be considered as remaining in legal force. This question being, after due deliberation, determined in the affirmative, a proclamation to that effect was issued. It could not but happen, however, that a return to this state of things from that which had followed an execution of the arrangement by the United States would involve difficulties. With a view to diminish these as much as possible, the instructions from the Secretary of the Treasury now laid before you were transmitted to the collectors of the several ports. If in permitting British vessels to depart without giving bonds not to proceed to their own ports it should appear that the tenor of legal authority has not been strictly pursued, it is to be ascribed to the anxious desire which was felt that no individuals should be injured by so unforeseen an occurrence; and I rely on the regard of Congress for the equitable interests of our own citizens to adopt whatever further provisions may be found requisite for a general remission of penalties involuntarily incurred."
http://www.presidency.ucsb.edu/ws/index.php?pid=29451
https://en.wikipedia.org/wiki/Non-Intercourse_Act_(1809)
http://founders.archives.gov/documents/Madison/03-01-02-0144
http://lawdigitalcommons.bc.edu/lsfp/363/
https://upload.wikimedia.org/wikipedia/commons/2/2c/James_Madison_by_Gilbert_Stuart.jpg
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