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Maps, plates, charts, etc., may be filmed at different reduction ratios. Those too large to be entirely included in one exposure are filmed beginning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Les cartes, pisnches, tableaux, etc., peuvent Atre filmAs A des taux de reduction diff Arents. Lorsque le document est trop grand pour Atre reproduit en un seul clichA, 11 est film* A partir de I'angle supArieur gauche, de gauche A droite, et de haut en bas, en prenant le nombre d'images nAcessaire. Les diagrammes suivants illustrent la m6thode. 1 2 3 1 2 3 4 5 1 6 J^" ■"^■''■■m ll :i-?l ir I •T3f -f ♦• ■•w J,"ii I .t.I. % ' ^' •*v^ »;^fev^ > .' r ^" '.V>J -J.. 1 '^1 ft"v; p >,' V <*i-^» t t*' ;> •* i « f. g-ai'.f'J »*.■■- 4 . .#f -^1 ? REMARKS OK THK inglisi O^nlistment Question, WITH AN ABSTRACT OF THE CORRESPONDENCE til i I ^r THEREON. : i BY R. W. RUSSELL, .i i NEW YORK: WM. C. BRYANT & CO., PRINTEllS, 41 NASSAU ST., COR. LIBERTY. 1856. Th cogn may trove Tlu those fesaio parti< of Cc tions obser Y. H spirit enlist of pel servic consti respo] menti part c In willfi pious Gushi remar discus REMARKS ON THE ENGLISH ENLISTMENT QUESTION. The following remarks are made without the authority or cognizance of any English official, and in some respects may be opposed to the English view of the subject in con- troversy. The writer has had no means of information other than those afforded by the public press. He has not been pro- fessionally engaged or consulted by any or eitlier of the parties alleged to be implicated in the violation of the Act of Congress respecting foreign enlistments ; and his reflec- tions may be regarded as those of a perfectly disinterested observer. On the 23d January last he published in the K. Y. Herald a letter upon the (luestiou as to what is the true spirit and meaning of the Act of Congress prohibiting foreign enlistments in the I'^nited States, and the liiring ov retaining of persons to go abroad, with intent to be enlisted in foreign service. Having thus embarked in the discussion, he feels constrained to support his position by a review of the cor- respondence between the English and American Govern- ments, which was published in the newspapei-s in the latter part of February last. In additi( n to the letter before referred to, the reader will find the substance of that correspondence, and a co- pious extract from the opinion of Mr. Attorney General Gushing, (as published in the N. Y. Herald,) with various remarks on the questions of law and fact involved in the discussion between the two Governments. New York, April, 1856. i i ', i ,!■ V' r.ETTEB ON THE ENGLISH ENLISTMENT QUESTION, PUBLISHED IN THE NEW YORK HERALD, 23r) JANUARY, 1856. 1 It has been pretty generally assumed of late by the news- paper press of this country, upon the siq^posed autliority of tlie oi)inionjt of Judges Kane and IngersoU, and Mr. Attor- ney-General Cushing, that it is unlawful to assist or induce any one to leave tlie United States for tlie purp< so of en- listing himself in the service of u foreign government ; and before Judge Kane's decision in riiiladclphia, in the case of the United States vs. Henry Hertz, the Attorney-General of the United Spates, in an otticial letter dated Attorney- General's office, September 12, 1866, and addressed to Mr. 2 Van Dyke, the District Attorney, at Philadelphia, insists that even if the letter of the law had not been violated by the agents of the Britisli Government, tho spirit of the law had been evaded. The President's message ulso takes the same ground. I propose, with your permission, to inquire what is the true spirit and meaning of this lav\ which has been so dif- ferently undei-stood by tho agents of the British Govern- ment on the one hand and some of the American authori- ties on the other. It will, I presume, be conceded that any person in the United States has a right to go abroad and serve in any foreign ann^^ ; also, that'it was not until recently understood 3 by the public that it was criminal to advise, induce, per- suade, or assist men to go abroad for that purpose. It never occurred to me, for instance, that the act of Congress passed in the year 1818 (re-enacting the law of June 6, ITD-l,) which provides that no pereon shall " hire or retain" another to go out of the United States, " with in- tent to be enlisted," would be construed to mean that I should not be allowed to recommend or assist a poor unem- ployed Englishman in New York to go to Canada to erdist in the British army. I supposed that the act w^as merely designed to prohibit contracts to enlist^ or contracts to go abroad with mtent to he cnllMt'd — tJiat h to say, to2^roh{hH lohat is commonly knoicn as " recrtiitinr/.''- (1) It appears, Itowover, tlmt I iiuiat liavo 1)ecn all wrong in tills idea, if Mr. Attorncy-( Joueval Cnsliing and the President have rightly intei-preted the law ; and oven if tlioy have not, the Attorney -(ioneral will insist that my act would he an invasion of the spirit of the law. lliis appears to mo to ho a mere gratnitons nssnniption, taking for granted what is not in the slightest degree pro- hahle, viz., that C'ontjrc.Hxint* mini to prolnbit any one from advising, indnrinf/, jjersuadinff or amistlwj another to go abroad to eidist. (2) '^riie first question which naturally arises is, if such had been the intention of Congress, would not approjmate words have heen K., makes it a mis- demeanor to attempt to got others to go abroad to servo a foreign prince; but then the same act prohibits any English- manfrom entering into or agreeing to enter into the service of a foreign prince or people. (;V) It is rpiito clear that Con- gress did not intend to make sack a law as that, for the government of the peojtie of the Cnittd States. Indeed, the constitutional power of Congress to go so far as that nn"ght well 1)0 doubted. N'or has anv State of the Union vet deemed it necessary or ])roper to prohibit its citizens from serving in foreign armies. And no such prohibition being in existence, no law has been enacted by any c. ?Iic States. making it penal to advise or assist citizens to go ahroad to enlist. It is evident, moreover, that such a law would 6 Note 1. — This is the construction put on the law liy Mr. Mnicy's first letter (see post folio 60) by Judge Kane (see post folio 72). and in Lord Claren- don's letters (post folios 6l>, 72, 105, 107, 110). Note 2. — Mr. Marcy contends in his leltcr of Dee. 28th (see post folio 178) that Bucli was the intention of Congress, but the position assumed by him in that letter is inconsistent with his remarks referred to in the previous note. See comments on this inconsistency (post folios ISS, lob). Note 3. — Mr. Buchanan erroneously assumes that the policy of the English and American laws on this subject are identical (see post folios 59, 292 to 297). It 6 'I' u bo a rank absurdity, so long as the citizen is allowed to go of Ills own accord. In the case of Hertz, tried before Judge Kane, in Phila- delphia, the instructions alleged to have been given by the British Minister to the witness Strobel, contained the fol- lowing : — " Memoranda for the guidance of those who are to make known to persons in the United States the terms and con- ditions upon which recruits will be received into the Bri- tish army : — 1. The parties wlio may go to Buffalo, Detroit or Cleve- land for this purpose, must clearly understand that they must carefully refrain from anything which would consti- tute a violation of the law of the United States. 2. They must therefore avoid any act which might bear the appearance of recruiting within the jurisdiction of the United States for a foreign strvice, or of hiring or retaining anybody to leave that jurisdiction with the intent to enlist in the service of a foreign power. [Both these acts are illegal by the act of Congress of 1818, sec. 2.] 4. There must be no collection, embodiment of men, or organization whatever, attempted'within that jurisdiction. 5. JV^o promises at' contracts, loritten or verbal, on the auh- ject of enlistment, must be entered into with any person within that junsdiction. (4) ■r ■ «# Note 4. — If any agent employed by the British Government, to give advice and assistance to persons desirous of enlisting in the British Provinces, did coatrary to these instructions make any contract, he did so without author- ity, and no blame can bf attached to the British Government on account of it. The printed instructions furnished to the agents contain the following caution : " Should the strict observance of these points be neglected, and the parties " thereby involve themselves in diflSculty, they are hereby distinctly apprised " that they must expect no sort of aid or assistance from the British Govern- " ment : — this government would be compelled by the clearest dictates of " international duty to disavow their proceedings, and moreover, would be " absolved from all engagements contingent upon the success of the parties in " obtaining by legal means soldiers for her Britannic Majesty's army." The information to bo given will be, simply, that to those 10 desiring to enlist in tlio BritiBh army, facilities Mill be af- forded for so doing on their croHsiiig the h"ne into British territory, and the tenm qfcred by the British Government may he stated as matter of mfonnation only, and not as im- plying any promise or eugagomoiit on the part of tiiose supplying such information, so long at least as they remain within American jurisdietiun." (5; This appeal's to be Mr. Cuahing's authority for the state- ment in this letter l«eion> referred to, that " the (lovern- ment of Great lirituin, witli extraordinary inattention to the grave aspect of its acts, namely, the tlii<;rant violation of ^1 our sovereign rights involved in them, has HUj)posi'(l it a sufficient justification of what it has done, to rejdy that it gave instructions to its agents so to proceed as not to in- fringe our munici]»al laws ;" and he continues : " But if the British Government has, by ingenious contrivances^ succeed- ed in sheltering its agents from conviction as via/tfactors, it has, in so doing, doubled the magnitude of the national wrong inflicted on the United States." The Attorney-General assumes, in the first place, that the acts authorized in the before cited instructions, would be evasions of the municipal laws of this country; and, so condly, that such acts constitute a violation of " our sove- reign rights as a nation." No reasons are given by Mr. Gushing for either of these propositions. In a second letter to Mr. Van Dyke, dated " Attorney- General's office, 17th Septe'Mbcr, 1855," he says: " I desire to make t. further suggestion in regard to the trial of par- ties charged with recruiting soldiers in the United States for the service of the British Government. It is known that instructions on this subject were given by that government to its officers in the United States. 12 .!■ ! Xfote 6. — In the case of Wngner, it was assumed by the judge, that the terms oflfered by the British Government were not stated as matter of infor- mation only by Wagner, but that he Wagner promised on his own behalf or undertook to make a contract on behalf of the British Government, that Cook should receive certain pay for his services as a soldier (see folio 23). This was an unreasonable coustruotion of Wagner's words and conduct. I! ( ! ■i ■ n 13 "We aro told by Lord Claren(U»M that tlioao officers had " 8triii lulld hi the Ihit'ixli armi/^ if the giv- ing of that information and assistance be not prohibite«l by tlie nnuucipal law. ((!.) It is worthy of observaiion that these letters of Mr. Cush- ing, which were very improperly road by Mr. \'an Dyke in oi>en court in J^hiladelphia in the case of the United States tvs'. ircrt;^, were oiKcious, and nut ])roperly olliciah The duties of the Attoriioy-(ieneral aro prescribed by law, and it is no part of his duty to give opiinons or instructions to District Attorneys ; and many of Mr. Cushing's j»rede- 1«^ cessors have refused to give such opinions or instructions. (Opinions of Attorneys (reneral, 15(1.) Mr. (bushing's prin cipal object in writing the letters to Mr. \'au JJyko, evi- dently, was to liiivo a Hing at tho Jiritish (rovernment and its agents. Ihit oven Mr. (Jushing aj)pearis to have boon outdone by Judge Kane, who is reported to have charged the jury as follows : "Our peojtle ami our government have been accused of forgetting tho obligations of neutrality, and pushing our- selves forward into tho contlicts of foreign nations, and leav- 16 ing belligerents to light out their own quarrels. For one, I confess that I felt surprised, as this case advanced, to learu that during the very time that these accusations were fulmin- ated against the American jjeople by tho press of England, there was on the part of euunent British functionaries here a series of arrangements in progress, carefully digested, and combining all sorts of people, under almost all sorts of iniiu- Note 6. — Sec the dieciissioQ on tbia point (folios 104, 114, 246 et seq.) ^ft'iiii; ences, to erado tlio laws of tlio T^tiitod Stntoa })y wliicli our 17 country souglit to oiitorco its lUMitrulify ; iirningitiiKMils iiiu- tured upon a careful iuH|)octi()ii uf ili.« ditU'ivnt hoctions of our Htatutes ingenioualy to violate their spirit imd principle without incuniii',' their penalty, and Ihi* enlist and nend away soldiers from our neutral shores to li^lit the battles of those who were incontinently, and not over courteously, admonishing us to fulfil the duties of neutrality. " I alludo to these circumstances and this train of thought, gentlemen, not because it is one that sh(»uld intlucnce your action as jurors, ])Ut because I feel it my duty to ^iiard you 18 against its influence-*." Tiie Judge delivered tills inihunniatMry haran^nie, denounc- ing what he calls the falsi; accusations of the British ])res8 and the misconduct of i'ritish funclionarie-, for the mere sake, as ho would have us believe, (>f sootltiinjt/u' vihuls of the jury ! Faugh ! The Judge told the jury that it M-ns not lawful for a pev- Bon to engage another here to <;-o to Halifax for the purpose of enlisting. Ho did n(«t instruct the jury that, it was law- ful to assist, huhice and j}<')'f<)rt." If the judge had repented this opinion to the jury in Hertz's case instead of talking loosely about "engaifiiKj" another here to go to Halifax for the pur- pose of eolisting, it is probable that Hertz wou d not have been convicted. If, however, Hertz did " hire or retain " any person to go to llulifux with in- tent (be, be violated bis instructions. 2 i-_ ■ 10 20 li t ' h > y 21 22 a trial, we may form a pretty shrewd conjecture as to how and why it was got up. One is not hired or retained to go out of the United States with intent^ tfco., if he does not enter into a contract or obli- gation to do so. It is necessary for the contract or obliga- tion to be made in such a way that the party could be sued for a breacli of it, if it were a legal contract. There must be an actual hiring or retainer, not a mere attempt or offer to hire or retain, that not being provided against by the act. If the party receiving assistance to go abroad with intent to enlist, can alter his mind, and stay here without violating any contract or engagement on his part, there is no hiring or retainer within the meaning or spirit of the act. (8.) Any other construction would make \i penal to give a man the price of a railroad ticket to enable him to reach the place where ho intends to enlist. (9) It may bo asserted, without fear of contradiction, that so far from the spirit of the act being as represented hy Mr. Cashing, not half a dozen votes could have been obtain- ed in Congress in the year 1794 or the year 1818, or at any time since, in support of a bill couched in that spirit. (10.) In the case of the United States vs. AVagner, tried before Judge Ingersoll in New York, the Judge charged the jury as follows : — " Any resident of the United States has a right to go to Halifax with the inten t to enlist. { 1 1 ) If one person merely in- fonns another that if he went to Halifax, or any foreign country, he can be enlisted as a soldier in the service of a foreign government, this is no offence against the law of Congress." Note 8. — See Lord Clarendon's remarks to the same effect (folios 69, 72, 107, 110). Note 9. — See the opinion of Judge Kaiio on this point, given before the Government, insisted ou a different construction of the law (folio 72). Note 10.— See remarks (folios 34, 41. Notes 87, 95.) Note 11.— See this subject fully discusaed (folio 28R). The existence of this right makes the authorities relied on by Mr. Gushing, wholly inapplicable to this country (see notes 16, 30, 95). And the neutrality of the U. 8. would be in no respect compromised by the exercise of the right which haa existed ever since the formation of this goveroment (See, per Galiani, cited by Mr. Guthing folio 198). 11 Then the Judge instructed the jury that if the man 28 named Cook " agreed " with Wagner that he, Cook, would go beyond the limits of the United States to Hali- fax and enlist, and if tlie inducement of such agreement " was a promise on the part of Wagner that he, Cook, when he should so enlist should receive $30 advance, and rtliould also receive $10 a month for his services as a sol- dier ; (12) or if u part or the whole of the consideration for such agreement on tlie part of Cook, was the payment of the passage of Cook from New York to Boston, or a pro- mise to pay snch passage, or if the consideration of such 24 agreement, or reason, or motive, which led to it, was any other promise of money l)y Wagner, or any other valuable thing ; and if Cook, when he entered into such agreement upon any such consideration, had tlie intent to go to Hali- fax, and there be enlisted or entered as a soldier," the of- fence would be complete. The Judge adds : " 3o that you t^ee that the mere giv- ing of information is not sutlicient — the mere starting to go is not sufficient ; there must be sonic inducement such as I have stated to you." (I'J) 25 Upon this charge, it is not probable that any of the jury understood the law to be, that not only might information be lawfully given, as suggested in the Judge's charge, but that any one may lawfully advise and assist, or induce another to go and ejdist in the service of a foreign govern- Note 12. — See remarks on this part of the charge, ante note 5, page 7. Note I.S.— No exception couhl linvc been taken to the Judge's charge as it was delivered ; but if be had been required to charge that to " advise and assist" is not to " hire or retain" he could not properly have refused to so lay down the law, and probably would liave ooniiilied witli the request. In that event, it is not at all likely that the jury would have convicted the accused. ITie Judges charge properly construed is, that the law is not violated un- less a contract is made. But tiie charge, ns reported, was indistinct, and cal- culated to mislead the jury. It is true that the Judge does not say that the payment of the passage from this country of a man who desires to enlist in a foreign po>-t would be a violation of the Act (that it would not, see per Judge Kane, poat folio 72,) but the jury might have supposed that such payment constituted " some inducement " within the meaning of those words as used in Judge lugersoU's charge. 12 26 27 28 ment. The Judge does not instruct the jury that one may assist or induce another to enlist, and yet that he, by so doing, cannot be accused of hiring or retaining him to do so. But the Judge repeats to the jury that the mere giving of information is no offence, from which they could but conchide that any act beyond that would be unlawful. (14) To hire is " to engage a man in temporary service for wages." ( Johnson's Diet. ) To retain is " to keep in pay to hire." (lb.) To constitute a hiring or retainer, there must be a ])romiso to render services in consideration of something to l)e paid or done by some other person. As to what constitutes a contract, see Comyn on Con- tracts, vol. 1, p. 1 ; Chitty on Contracts, p. 3. The act of Congress is a penal one, and should be strictly construed ; but if consfnted rver so looi<(Iy, it could not be made to tnean that persuading a man to enlist is hiring him to do 80, nor that the ad of assisting a man to go abroad is a retainer of him for that purpose. (15) It will be observed that the Judge assumes that what could only have been a rc])resentation by Wagner as to the bounty to be paid by the British Government to a sol- dier and his pay, miglit be treated by the jury as a pro- mise on the part of Wagner that such bounty should be paid and such pay allowed. This serves to show how loose are the Judge's ideas as to what constitutes a contract of hiring. The jury, as miglit be expected from the unpopularity of the cause of the allies in the city of Xew York, readily adopted the Judge's views ; and in the exercise of their power to decide u{)on conflicting testimony, preferred the evidence of the single witness for the i)rosecution to that of three respectable witnesses for the defendant, although the former was, by his own account, a participant in the Note 14. — Upon sudi ii locc charge, a man would be in jeopardy who bftd, from cliaritabic niotivts, given a few dollars to another to enable him to eniigrati'. Note IT).— Obvious as this may appear, it is contradicted by Mr. Marcy and Mr. Gushing, (folio.s 133, 135, 178, 218). See remarks on Mr. Marcy'a incon. siatency. Notes 30, 86, 37, folio 295. 18 alleged violation of the law, and there was no corrobora- 29 tion of his testimony. Presidecfc Pierce's recent message lays down the un- deniable I' >osition that no government can he permitted to levy 01 raise troops in the United States, and that the attempt to do it would be an unwarrantable attack on the national sovereignty. In this he is fully supported by Vattel, B. 3, ch. 2, s. 15. (16) He goes on to say that when the British Parliament passed an act to provide for the enlistment of foreigners in the military service of Great Britain, it was not anticipat- ed " that the British Government proposed to attempt re- 30 cruitment in the United States, nor did it ever give inti- mation of such intention to this Government. It was mat- ter of surprise, therefore, to tind subsequently that the en- gagement of persons witliin the United States to proceed to Halifax, in the British province of Kova Scotia, and there enlist in the service of Great Britain, was going on extensively, with little or no disguise." (17) Note IG. — Vattel in the passage rcfcrreci to, epeaka of the acts of indivi duals, ami says, Umt if they acted by the order of their Sovereign, such a proceeding is a sufticient reason for declaring war against iiim, Vattel does not say that an aot which an individual might lawfully perform would be- come illegal if dune V)y the order of hia Sovereign. His wortlaterovided (i) CJeo. i^, c. 30, enforced by Stat. 21) (ieo. 2, e. 17.) that if any subject of (Ireat Britain should enlist himself, or if any person should procure him to he enlisted, in any i'oroign service, or should detain or em- hark him for that }.urpose, without the King's license, he shonld suffer death. (4 Black. Com., 101.) Congress declined in> Hating this legislation (which has since been greatly moditied in England by the act 59 Geo. ;5, c. CD). 41 The British subjec^t was not allowed to go abroad to serve another government, bccaus(5 he was the property of his sovereign ; (21) but the citizen of the United States owns himself, and has a right to go where he pleases, and Congress oidy desired to prevent such acts within the jurisdiction of I Note 2l.~-Soc as to the origin of tbid prohibition post folio 270. 8 I I r t' » 1 ' ' i ' iJ Im 18 42 the United States as might ho coinplained of by any bel- ligerent as involving a broach of nentrality. I do not believe that the framcrs of the act of Congresg ever intended to prevent any man, or number of men, from furnishing money or other assistance to parties de- sirous of going abroad to join in military expeditions, pro- vided they are not carried on from the territory or jurisdic- tion of the United States, The parties supplying the funds may reasonably ex})ect that those who received tlie money or other assistance will carry out their expressed intentions; but there is no violation of the law if it bo left entirely to ^3 them to determine wliether afterwards they will go or not. But, however this may be, it is quite clear that the admis- sion of the British (Tovernment as to the instructions given as above to its agents, does not warrant the President's con- clusion, it being evident that the true intention of Congress was merely to prevent "recruiting" within the United States, and that there was no design or intentUm to prohibit citizens or residents fro ni ijoing abroad for the purpose of enlisting in any foreign service, and consequently no inten- tion to make criminal the act of assisting them in the exer- 44 cise of their undoubted right to leave this country for that purpose. -.6 ABSTRACT OF THR CORRESPONDKNCE BKTWKEN THE GOVERN- MENTS OF ENGI.ANn AND THE UNITED STATES ON THE ENLIST- MENT QUESTION, AS PUBLISHED IN THE N. Y. HERALD ON FEB. 29th, 1866. Mr. Marcy to Mr. Buchanan Department OF State, \ Washington, June J), 1856. j Sir, — Some time since, it became ktiown that a plan was on foot to enlist soldiers vlthln the limits of the United States to serve in the Britisli army, and that rendezvous* for that purpose had been actually opened in some of our principal cities. i>esides being a disregard of our sove- reign rights as an independent nation, the procedure was a clear and manifest infringement of our laws, enacted for y bel- 10 ihe express purjwse of mahitaining our neutral relations 46 with other potoers. (22) It was not roasonuble to susi)pct that this scheme was ill any way connttMiancod by the Hrltish " Government, or any of itn bubonlinato aiitliorities reaident within the United States or in the Britisli Nortli American Provinces; but a further uxamiuati<»ii into tlio matter has disclosed tlie fact that it luis had not oidy tlio countenance, but the active 8U]iport of some of the iiulhoritics, and, to some extent, the sanction of the Ih-itisli (iovt'niiucnt. When intimations were tlirown out tliat the Ih-itish con- suls in thiscoujitry were aiding iui(UMU'ourii^Iiig this scheme 47 oi enlistment within our limits, Mr. (Viuii])ton, II er Bri- tannic Majesty's Minister to tliis (iovcrmuont, showed mo the copy of a letter, wliicli lie had addressed to one of tliem, disapproving of the ]>roco('(linrocce'tnicnts.{2-i) I am directed by the President to instruct yon to call the attention of Iler Majesty's Gctvernment to this sul)ject. lie desires you t<> ascertain how far persons in ollicial station under the British Government acted in tlie tirst instance in this matter with its approbation, and wliat measures, if any, it has since taken to restrain their unjustiliable conduct. The excuse offered by the British anth(»rities for enlist- ing or engaging soldiers to enlist within tlie United States is, that Tier 3f iitrr the ItrltiNh (unnj. This fact, if it were uncpiesticMiabie, would not jnstity t!ie l^ri- 52 tish authorities in converting the United States into a held for recruiting the British army. Were not the proceedings in open violation of law, a re- spect for our obligations of nentralitu, and the observance of the comity due to us as a friendly ]iower, would render such a course by either belligerent disrespectfid to us. * * Though the proceedings of this government to frustrate this scheme may have caused the manner of carrying it on to be changed, there is reason to believe that it is still elan- Note 24. — Mr. Marcy takes a correct view of the law in tliis letter, but was mistaken in supposing tlmt the British Oovernment liad autliorisecl enlistments to be made iu the United States, or any engageniciita to be made sueh as he speaks of. See a totally different view of the law adopted by Mr. Marcy, ( folio 135) after Mr. Cushing's opinion had been taken, August t»th, 1866, upon the receipt of Lord Clarendon's letter of July 16th. I- ' '■ - SI (lestinely prosecuted hy British ofliccrs with meanB furnish- 53 ed by their Government. * * ^* » Mr. Buchanan. to Laid Chirentlon. LKOA'PfoN OK TMi-: TlNiTKn States, ) Luiuloii July (), 1855. j # •>:• * " tk The Aniericmi (Tovernnicnt ure constantly receiving in- tbrnitttion W\\xi persons arr Icavimj, and have lift the United States, under cn^jafjnnenta contracted v;ithin their limits to enlist aasohliern in th(> JJrilish urniy en thoir arrival in the British J/'"ovinces.(2r)) These jjcrsous are provided with 54 ready Diean < of transit to Aura Scofia, In eonsc(inenceoftho express promise oi'the Lii'iitenant-^Jovenior of that Province to pay " to iVora Seotian and othi r ship made rs''' the cost of a passage p>r each, poor man., '''• wiUhttj to serve Her Ma- jesty^'' Hhip]»e(i iVom IMiiliKl'^ljihia, New York or lioston. The disclosnros niadu within the very last month, upon a j\idicial invest iujation at I'oston, (a report of which is now before the nn ILt,Iifaj\ thoro to cotiiploto the tbnnal net ot'cnliHtinont, llicn it is iiianitoHt that this low, to a very ^reat extent, would Ikoohk* a dead K'ttor. The unck'rHi^Mied is hap|)\ to knoi^ tiiuit, in this rospoot, the policy of the liritiMh Gor^rn/i ^>t !.•< id-ntieal with that of the [Tnitetl States, {2U.) The foreign (UiJistincnt act, (fiJ) (Jeo. 3, cIj. C9,) like the aet of (Atnf^resH, intliets the sftnio |ienaltio3 upon any individual \viio shall, within the iW'ltish dotniriions, "engage any persun or porKons whatever" "to go, or to agree to go, or eiidmrk trotn any j^urt of Tier 60 \' ./wty'g dominions, tor the i)urpo8e or with intent to hki so eii'isted," aH though the enlistment had actualh taken place within the same. • # 4» » Ii; view of all these considerations, tiie President has in- Btructed the undersigned to ascertain from the Karl of Ciarondon how fir persons in offieiul station, unth^r the Ih'itish Government, have acted ; whether with or v ithout its npiirol)ation, either in nilistinij j>ers(>ns within th ( 'niiid atates, or engaging them to proceed from thence to the Bi tish Provinoeifor the purpose of being there enlisted, (30 ;) and Note 28. — Mr. nuchannn ia right ia treating tLe uctH of individuals, whether ofliciul or iinofticial, im Ht muling <>n the Harne hitsiH. A (lifferent poniti"*, however, is anHunu'd hy Mr. Miircy, (Hee on tliia i>oiiit folioH 21)4 to 3i"i.) Mr. liiii'hunnn ix nUo rigiit in mijing that the law did not permit inJi- vi(hml» to eni/afff (i. e. to contract with) otliers in I'hihidelpliin, Nuw York, Ac, to servo in the nritixli army. Hut lie iniHtukos thu position taken liy the Lieutenant (rovernor of Nova Hcotiu who did not authorise any such oiigagemeiitM to bo made in thu United States. Note 29. — This is a mistake. ( See ante folio 5 and post folio '29'2.) Note 8(» — N. B. — The only question put to Lord Clarendon is, how far per sons in oflidal station have acted '• either in eniiMing persons within the ITnited States, or engar/in;/ them to proceed from thence to th« Britisli Prov. inces for the purpose of being flurc enlisted." On receiving th<' tinswer of Lord Clarendon that luMlid not believe that any persons in oflicial station had acted in the way suggested, and that if they had, their i-ttnM was unauthorised, Mr. Marcy, under the guidance of Mr. Gushing, bioaciies an entirely new theory and talks about the seduction of peo- ple from the ITnited States as if they were the subjects of some despotic prince ! And all this after Lord Clarendon, in order to avoid any offenc* 24 61 what measures, if uny, have been taken to restrain their unjuBtifiable conduct. -X- -x- * # m Mr. Marcy to Mr. Jhichauan. J)j;i'Artmi:nt ok Statk, | Was]uiin, July 15, 1855. f SiK, — Since my dispatch oi the 0th ultimo, in relation to the recruitin}i;s()ldicrH williiii the Luitcd States for the i?ri- "2 tish army, informatioM iian been received here that the business i.^ not only continued, but j)rosecuted with increas- ed vioor and success, and tbcre is nodouiii that it is carried on by tlie ellicieut aid ol' the oilicci-s aud a;j:cnts of tlici i>ri- tish (iovernment. Il was cxiiected, after the attention of Her Britannic ]\ljijosty's Miiuster near ibis (iovernment was directed to this suliject, and after he had presented Lord Clarendon's note of ihe V.h\\ of April last to this De- partment, and given assurance tbat Htej)s had been taken to aiTCst the illegal proceilure, tbat we should have witnes- sed nt. further particijiation by Hritish functi^jiuiries in the attempt to invade our sov>' reignty and defy our laws. 63 ^v ^ • * ,, Tlie notiiication (»f the Governor of Nova Scotia (a copy (»f whicli accompaiued my di>patch of lliu !Hh idtimo,) is inirevoked ; agents in our jirincipal cities are now busily cngagiid in makhuj rontraets imth persons to go into the British Provinces, and there to (!nm]>letc their eiirolmeT-l, in tlie British army ;(.'5l) liberal adv;in(u.'S still continue to be made as an imbKuunent Wn- enlei-ing into snchf it'nu'nfs, and a. free jxinsaye to the British J/nwinces is provided for being n^iveti to tliis coimlry I'V tlioovir-zciil of llmsulpDrdiMutoH (tf tlie British Ufiverrirrii'iit, li.id ilmi'' far niorf tliaii <'(iiil(l li!i\<' Imcn r('(iuir('<], viz : iilitilisii fil Uio recruitlnL; eMtiilili.'^iniuiit iil Ilitiirax fur tiii' iiiiistinciit uf |)urHOiiii coming from tlie United Staf''s. JVb Ihiit on nrrivint; tliere the particH arc "treated as under obligation to perfect th sclicnie for recruiting the Briti>h army hy men drawn iVoiii the I'nitcd G5 States, that excuse could not he availaii'i' after tlie provi- sions of these laws were iirst made known to tlio^^e enyagcd in the scheme. "' * '^' As recruiting for the British army, in tlie mode alluded to, is still prosecuted wilhin the I'nited States hy ollicers and agents employed for that purpose, the President in- structs yon to say to llcr ^^aicsty^s (i(»veniment that he ex- pects it will take j)ronipt and oU'ective measures to arrest their proceedings, and to discharge from service tliose per- sons now in it who were enlisted within the L'niteil States, or who left the United Sfatcn u)id< r conlrai'tn iickJ' Jwre to Qg enter and serve as so/di^'rn in the British tiriKi/. These measures of redress cannot, as the ! 'resident con- ceive?, 1)0 withheld on any other ground than the assertion of a right, on the i)art of Groat Britain, to i>mi)loy ollicers and agents to recruit her nulitary forces iriihin our limits, in defiance of our laws and our sc-vereign i-ights. Jt is not anticipated that any such pretext will ho aUeged; it cer- tainly cannot he permitted to he a suhject of discussion. The President instructs you to present the views con- tained in this dispatch tu Her Jiritannic Majesty's Govern- ment. 26 67 Lord Clarendon to Mr. Buchanan. r|.ii li ^' Foreign Office, July 16, 1856. The undersigned, Her Majesty's rrincipal Secretary of State for Foreign AtFair^i, lian the lionor to acknowledge the recei})t of the note which ]\rr. Jiuchanan, Fnvoy Extraor- dinary and Minister Plenipotentiary of the United States, addressed to him on the 0th instant, respecting attempts stated to have recently hecn made to enlist, within the limits of the United States, soldiers for the British army. The mulevsigncd ni'ist, in tlie first instance, express the regret of lier Majesty's (iovernmont if the law of the Uniied States has been in any wpy infringed by persons 68 acting with or without any authority from tiiem ; and it is hardly necessary for the undersigned to assure Mr. Bu- chanan that auvsuch infringement of the law of the United States is entirely contrary to the wishes and to the positive instructions of ller Majesty's Government. The undersigned, however, thinks it right to state to Mr. Buchanan that some months ago Her Majesty's (Government were informed, from various sources, that in tlie British North American ]M>ssessions, as well as in the United States, tJuire were maioj iiuhjixUnf the (Jiictii who, from sentiments of loyaltij, aivl laamj fortit/ners who, from jjolltical feel- ing, were anxious to enter J/er Jlojestfs service, and to take part in the war. Ilcr jMajesty's (Government, desirous of availing theuiselves of the offers of these volunteers, adopt- ed the measures necessary for making generally hiovm that Her Majesty's Government were ready to do no, a7id for re- ceiving such 2>('rsons as should present themselves at an ap- pointed place in one of the British possessions. 2'he right of Her Majesty^'i (jovernmtnt to act in. this way was incon- testable ;{22) but at the same timu they issued stringent instructions to guard against any violation of the United States law of neutrality ; the importance and sound i)olicy of which law has been so well expounded by Mr. Ihicluinan, in whose remarks upon it, as well as upon the foreign en- 69 Note 32. — It is not contested in the previous letters fif Mr. Marcy and Mr. Buclianun but is fully admitted Ity iin[)iicalion. Tlie denial of the right is an afterthouglit. 27 n listmeiit bill of this country, Her Majesty's Government 70 entirely concur. It can scarcely be matter of surprise that when it became blown that ITer Majesty's Government was prepared to ac- cept these voluntary oilers, 7iiani/ persons in various quar- ters should give i/uvusehh's out as agents employed hj the British Governmod^ in tlio hope of eurniiii^ reward by promoting, though on their own responsibility, an object which they were aware Avas favorably looked u]>on by the British Government, Tier Majesty's (Jovernment do not deny that tlie acts and advertisements of thfse self-consti- tuted and unauthorized agents wrre, in tnang instances, un- douhled violations of the la ui of the I'nited States ; but such persons had no authority whatever for their })rocueding8 from any British agents, by all ol" whom they were promptly and uncfpiivocally disavo\v(;d.(.'5'>) With respect to the proclamation by tlio Lieutenant- Governor of Nova Scotia, inclosed in j\[r. Buchaiuin's note, the undersigned can assure Mi-. Ihichanan, with reference both to tiie character of Sir CJaipard Le Marchant and to the instructions he received, as well as to his correspondence on these instructions, that that ollicer is (juite incapable of intentionally acting against the law of the United States; and in proof that he did not in fact do so, tlie undersigned begs leave to i-efer Mr, Biielianan to the legal decision given on the particidar pnint advei'ted to by Mr. ]'>uchanan, by Judge Kane, nn the 2lM of !\Iay last, in the I'nited States (Jircuit (Jourt at i'hiladeljihia. The Judge says: "/ do not think that the paipmid (f the passage from this coun- try if a man mJio di sires to enli.sl in a foreign port, comes ivithin the act.'' Crhe neutrality act of 181 S,) " /» the terms (f the jtrintal pmcl'ttji'divn, there is -nothing eonjlict- ing loith the laws if the United. Slatts.{p>\) A person may go abroad, prodded the enlistment be in a foreign place, not having accei)ted and exercised a commission. There is some evidence in llertz's case that he did hire and retain, 72 Note 3:{. — This is iictimlly treiitod l>y Mr. Mnny ( folio 12S) us an admission that the authorised agents of the Uritisii ({oviTiiiiiciit liad violated tlie law! Note 3-t. — Seo Mr. Cu.-iLiug's argument coiitru with comments thereon, post folio 218. 28 73 and therefore liis case would liave to bo submitted to a jury. In Perkins' case, there was testimony upon which a jury might convict. In Bucknell's case, it appears that there was a conversation at M'hicli he was present, but there was no enlistment, or hii'ing, or retaining. The conversation related a'* to the practicability of persons going to Nova Scotia to enlist. If the rule I have laid down be connect, then the evidence does not connect him with the misde- meanor. Mr. Biicknell is therefore discharged, and Messrs. Perkins and Hertz are remanded to take their trial." 74 As regards the proceedings of ller Majesty's Govern- ment, the undersigned has the honor to inform Mr. Bu- chanan that Mr. C'ra:n])ton was directed to issue strict orders to British Consuls in tlie Ignited States to l)e careful not to violate the law ;and Mr. Crampton was enjoined, above all, to have no cmccalnu'tit from the (rovcnunent of the United StaU'g.{'>\5) In the absence of Mr. C^rampton fromWashington, Iler Majesty's Charge d'Allaires placed in Mr, Marcy's hands a dispatch f 'om the undersigned on this subject, ex- pressly stating that "ller Majesty's (xovernincnt would on no account run any ri-k of infringing this (the neutrality) 75 law of the United St;itos." Tiie undersigned luis, however, the honor, in conclusion, to state to ]\Ir. Bnelianan that Her Majesty's Government — having reasun to think tluit no precautionary measures, with whatever honesty they might be carried out, could effectually guard against some real or ajyparent infringe- ment of the law, which would give just cause for complaint to the Government of the United States — determined that all proceedings tor enlistnu-nt should be juit an end to, and instructions to that elfeet were sent out before the under- signed had the honor to receive Mr. Buchanati's note, as the undersigned need hardlv sav that the advantajjre which Ilor ^Majesty's service might derive from enlistinent in Notn ;!5. — In ft ri'cciit dcbiitf; in tin; Senate it was coiitondeil by one of the Scnutui-s that the fact that Mr. (Jt'ani|itou coirosponclecl by telegraph witli various persons in cipher was conclusive proof that lie was concealing some- thing from the Government of the United States, as if he were bound to let uli the details of his correspondence be known to the clerks of the telegraph pfficcs ! 29 Korth America would not be sought for by Her Majesty's 76 Government, if it were supposed to be obtained in disre- gard of the respect due to the law ofthe United States. (36.) Mr. Marcy to Mr. Crampion. Depaijtmknt of State, ) Washington September 5, 1855. \ Sir, — Having ascertained that the scheme to raise recruits for the British army, within the limits of the United States, was vigorously prosecuted after our first conversation on the subject, and that officers of Her J>ritannic Majesty's Go- vernment were taking an active part in it, notwithstanding the disapi)robation of tliis (loverumont was well known, the 77 President directed Mr. Ihichanan, the L'nited States Min- ister at London, to he instructed to bring the subject to the attention of Lord Clarendon, Her Majesty's Trincipal Sec- retarv of State for Foreifthe United States. As functionaries of a foreign government, their duties towards this country as a neutral and sovereiun power, are not prescribed by our legislative enactments, but by the lata of nations. In this respect, .heir relation to this government differs from that of private persons. Jlad there been no acts of Coiigi'css on the subject, foreign go- vernments are forbidden by that law to do anything which would in any manner ^>^;^ to hazard our 2)osiiio)i of neutral- S2 itij in respect to the belligerents. iW^.') The information which hasbfc::n laid before the President has convinced him that the proceedings resorted to for the purpose oi drawing reeruits from this country for the Bri- tish army, have been instigated and carried on by the active agency of British oflicers, and that their parlicii)ation there- in has involved them in the double offence of infringing our laws and violating our sovereign territorial rights. * * ■:<■ » Tliocase '' which the United States feel hound to present to Her Majesty's Government, involves considerations not embraced in Lord (Marendon's reply to Mr. I^iichaiian's note. The question is not whether that government has authorized, or any of its oflicers have done acts for which the punishment denounced by our laws can be inflicted, but tohether they partiei/>afed, i/i any foroi or manner, in proceed ings contrary to international I a to or derogatory to our natiomd sovereignty. It is not now necessary, there- fore, to consider what technical defence these othcers might interpose if on trial for violating our numicipal lav;s. * * * * (Mr. Marcy informs Mr. Crampton that the disclosures implicate him. lie says that the arrangements made " are \itterly incompatible with any pretence that they were de- signed merely to afford facilities to British subjects or other foreignors in this country to carry out their wishes, prompt- 83 84 Note 38.— See note 22 and post folios 252 to 256, 288, 318. S5 ed purely by " sentiments of loynlty" or " political feeling,'* to participate with the Allies in the existing war in Europe.)" The course which the President would deem it proper to take, towards tho implicated officers within tlio United States, depends, in some measure, upon their relation to their government in this matter. Lord Clarendon's note of the 16th of July, does not make it quite clear that Her Majesty's Government is prepared to disavow tho acts com- plained of and to throw the entire responsibility of them upon its officers and agents. " Stringent instructions" were undoubtedly given to Her Majesty's officers " to guard gg against any violation of the United States law of neu- trality ;" but it docs not appear that r('.y)fief, for our f^rrito- riil sovei't'igiiti/, or the well liiown policy of the United States as a neutral^ not specifically embraced in our municipal en- actments, was enjoined. The instructions might therefore ha formally co)nj)lied with, and their q/Kcer,s, at the same time, do acts which constitute an offence against our rights OS a sovereign power. Such acts, it is believed, they have committed ; whether with or without the ai)proval or coun- tenance of their government, does not authoritatively ap- pear. * * * The object of this note is to ascertain how far the acts of the known and acknowledged agents of the British goveni- 87 nient, done within the United States, in carrying out this scheme of recruiting for the British army have been autho- rized or sanctioned by Her Majesty's Government.(39) l\ ' Mr. Crampton to Mr, Marcy, Washington, Sept. 7, 1855. Sir, — I have the honor to acknowledge the receipt of your note of the 5th instant, upon the subject of alleged re- cruitments in the United States of soldiers for the British army. Note 39. — Compare this question (which opens up \ new discussion,) with that put in Mr. Buchanan's letter of July 6tfa, (folio 60) and see commeata thereon, ante note 36. 1^14^ 33 As your note, although addressed to myself, refers in a 88 great measure to a (correspondence which has taken place between Lord Clarendon and Mr. iiuclianan, on the same subject, I have thought it expedient to defer reply;"" at length to your present communiciition, until T shall . ^ve been more fully put in possession of the views of Her Ma- jesty's Government, in regard to all tiio matters to which it relates. I shall tlien do myself the honor of addressing to you a further communication ; and I confidently trust that I shall be enabled altogether to remove the unfavorable impres- 89 sion which has been created as to the motives and conduct of Her Majesty's (Tovernment, and their officers, including myself, in regard to this matter. (40.) Mr. Marcy to Mr. Buchanan. Dki'Artmknt of State, ) Washington, Sept. 8, 1855. f » * * -X- * * Lord Clarendon must have been misinformed as to the actual state of things here, when he assured you that the persons who had violated our neutrality law were self con- stituted and unauthorized agents. If the British Govern- ment choose to take ])ains to ascertain what disposition has been made of the large sums of money expended in carry- ing out the scheme of enlistinenis hi this country, it will find that a considerable amount of it hasgone into the hands of tfieac agents, (41) and that it was paid to them for the 90 Note 40. — The corrL'spoiuIenci- hithorto publislunl closes with Mr. Marcy's letter of Deccnilter 28tli, 18,')5. It is piosumed tliiit Mr. Crampton'a further communication ami Lord Clarendon's reply to Mr. Marcy have been since re- ceived. A'o/*41. — No money had b(!eii expended njion " enlistments in this country," but doubtless eoiisideralile sums had been paid I'V the Britisli authorities to agents here " for the purpose of being expended in the United States" in giving information and assistance to persons to go to the British Provinces who intended, on arriving there, to become reeruits for the British military ser. vice, but properly speaking, no money was expended in "raising recruits" in the United States. 84 91 purpose of beinjaj expended in the United States, in raising recruits for the British military service. Lord Clarendon to Mr. Buchanan. FoKKioN Office, Sept. 27, 1866. (Lord Clarendon says lie had hoped that his previous ex- planations and aMsuraiices would have hocn satisfactory. Referring to Mr. Marey's letter to Mr. Crajupton, of Sept. 6, 1855, Lord Clarend(»n says :) " In thir< letter, Mr. Marcy, laying less stress than Mr. 9*^ Buchaniin did upon the alleged intVaclinu of the municipal laws of the riiited J'uchanan more particularly called the attention of the undersiijned * * * # Oroat dexterity is on iiict'il by Mr. Marcy in tlie latter part of this corres ponck'iiot! in the clKiioc of a variety i>{ obscure or uinbif^uous expressions eiich ui " this sclieiiK' of reci'iiitintf," " raising recruits for the Britisli military service," "drawititr recruits from tlie United States," "drawing military forces from our territory," " recniitiiifj in tlie United States," "inducements offered by recruiting agents here," itc, itc, ttc. Tliese expressions may refer only to the exercise of the right claimed by the British Government to invite, persuade, or assist men in the United States i to go to the Rritisli provinces and there to enlist them, or may be intended to express a totally ditferent meaning, /. e. that men were enlisted here, or that the British agents contracted unlawful engagements here. But all this ma- noeuvring is of no avail, the merits of the discussion can neither be smothered by u mass of words nor mystified by special pleading. 35 (TiOrd ClarGndon alliuloa to tlio cxtraorflinnrv in ^iiures which have been adopted in viiriniiH parts of tlio T'nion, to obtain evidence ajcjaiiiHt llor Ariijcsty's servants (tr thoir agents. And rclerring to tho noutriility professed by the United States, lie says :) The United States profess noiitr.'ility in tlic jn-csent war between tho Western I'owers and liiissia ; but liavo no acts been done witliin tlio Initod States, by citi/eiis tlioreof, which accord little witli tho spirit of neutrality if JIavo not arms and anitniinition, and warlike stores of various kinds, ])een sent in largo (juaiitilies from tlio United States for tho service of Itussia^ llavi^ not plots been openly ng avowed, and consi)iraoioa entered into w itliout disi^qiise or hindrance, in various ]»iirts of the Cnion to lake advunta"-e of the war in whieh (rreat Ih-itain is enua^ed, arid to siiize the opportunity forprojnotin;,' insuiTeelion in Her Majesty's dominions, and tho invasion thereof by an armed foreo pro- ceeding from the United States f (Lord Clarendon adds that Her jMajesty's Government would not have adverted to the execptional course pursued by a certain number of individuals, if it had not been for 9^ the statements in Mr. Marey's note.) J//'. Marcy to Jfr. Buvhanan. DkI'AUTMFN (•' SlATE, ) Washington, O^i. J, 1855.) I herewith send you pa[)ers containing tho report of tho trial of llortz, for a violation of our neutrality laws by enlisting soldiers lor the British army. The testimony shows that Mr, ('rampton and several other British officials are dee[)ly iniplicatnJ in the transac- tion. Lord Clarendon's note, in answer to yours, bringing tho subject to his notice, assumed that none of Iler Majesty's officers had been in any way evigagcul in the plan of recruit- ing in the United States. (42.) Had the facts been as he Note 42. — Lord Clarendon does not assume " tbnt none of tier Mnje9t}-'9 officers had been in any way engaged in" a plan of recruiting by which men se r 97 asflumed tliem to bo, and tliis Government had no reason to believe that the measure was not designed to draw rt- oruit^ from the, United tStatcs, his Loi'dBiiij>'8 reply would have been flatiHlactory. Subso(j[ueiit developments show that Lord Clarendon was misinformed as to the true Htato of the case. Tlie second dispatch on the subject showed that the ground of grievance was not contined to the mere fact of a violation of our neutrality laws by British officers. It presented the case as a national ott'ence committed by them, irres])ectivo of tliose laws. J'/**."*: nfficers maij have con- trived to s/iif'/d t/wnisi'/wM front the penalties of our laws, and yet hire committed an off* nee a(jaind our sovereign 9g territofiid riunishod in the courts of the Unitod States; the other, to wliich I especially desired tu direct his atten- tion, consisted in a violation of our neutrality, under the general law of nations, by the attempts which had hoen made by iiritish otl^ieors and agents, nut jmnlshatjlc under our munin])al lau^to (traiv ni ilitanj^ forty >< from, our territory to recruit their armies in the Crimea. (44) As examidesof this, I passed in review the conduct nf Mr. Crampton, of the Lieutenant-Cfovernor of Nova Scotia, and the British consuls at Now York and I'hiladelphia.' 99 100 Lord ClarcJidon to Mr. Cranvpton. FoRKiGN Offick, Xov. 16, 1855. (Lord Clarendon observes that llcr Majesty's Clovennnent jqj had not doubted that the frank expression of their regret for any violation of the I'nited States law, which, contrary to their i.:.5iruciioi.s, might have taken place, and of their determimition to remove all cause for further com]tlaint by puttingau end tc all proceedings for enlistment,in the British provinces would have satisfactorily and honorably terminat- ed a ditFerence between two governments whoso duty it I I NoU 44. — No " mil itanj forces" were drawn from the I J. S. to rocruit the British forces in the Crimea. Some aliens resident in the U. S having learned that they could fight against Russia, went from the U. S., as they had a per- fect right to do, and accepted the invitation of the British authorities in Nova Scotia to enlist in the British army. Mr. Buchanan calls this the drawing of " military forces from our territory," oa if the emigrants had become soldiers ia the U. S. 88 ^'■'■: In 102 was to maintain the friendly relations which have hither- to, and to tlieir great reciprocal advantage, happily subsisted between Great Britain and the United States.) " It appears that two distinct charges are made against the officers and agents of Her Majesty's Government: — First — ^Tliat they have within the United States territory infringed :he United States la^v ; and, secondly, that they have violated the sovereign territorial rights of the United States, by being engaged " in recruiting " for the British army within the United States territory. 103 Now, with respect to both these charges, I have to observe that the information possessed by Her Majesty's Govern- ment is imperfect, and that none of a definite character has been supplied by the dispatches of Mr. Marcy, inasmuch as no individual British officer or agent is named, and no particular fact or time or place is stated ; and it is therefore impossible at the present to know either who is accused by Mr. Marcy, or what is the chai'ge he makes, or what is the evidence on which he intends to rely." (45) 104 * * "With reference to the second charge made by Mr. Marcy — namely, that of " violating the sovereign territorial rights of the United States, by recruitinfij for the British army within their territories " : I have to observe, that apart from any municipal legislation in the United States on the subject of foreign enlistment, or in the entire absence of any such legislation. Great Britain, as a belligerent nationl would commit no violation of the " sovereign territorial j^Qg rights of the United States," simply by enlisting as sol- diers, within British territory, persons who might leave the United States territory in order so to enlist. The violation alleged is the recruiting within the United States ; but to assume that there was in fact any such " recruiting," (that is, hiring or retaining by British officers,) is to beg the question. (46) Note 45. — Mr. Marcy in his next letter, after arguing that Lord Clarendon had no right to inquire for these particulars (folios 142 to 14C), does, for the first time moke some specific charges (folios 159 to 186), the answer to which has not yet been published. Note 46. — That is precisely what is done throughout the correspondenc*- aiace Lord Clarendon's letter of July 16th, 1865. 89 It appears to Her Majesty's Government that, provid- 105 ed no actual " recruiting " (that is, enlisting or hiring,) takes place within the United States, British officers who, within the United States territories, might point out the routes which intending recruits should follow, or explain to them the terms upon which they would be ac- cepted, or publish and proclaim such terms, or even de- fray their travelling expenses, or do similar acts, could not be justly charged with violating such sovereign ter- ritorial rights. (47) It has been legally decided in the United States that the payment of the passage from that conn, try of a man who desires to enlist in a foreign port, does 1^^ not come within the neutrality law of the United States, and that a person may go abroad, provided the enlist- ment be in. a foreign place, not having accepted and exer- cised a commission. It would, indeed, be a violation of territorial rights to enlist and organize, and train men as British soldiers, within the United States (48) ; and whether or not this has been done by British authority, is the question involved in the first of Mr. Marcy's charges. But it is decidedly no violation of such r'ujhts to persuade or tc assist men 107 merely to leave the United States territory, and to go into British territory, in m'der, when they arrive there, either to be voluntarily enlisted in Bntish service, or not, at their own discretion. (4i>) There can be noipiestion that the men who went to Halifax were free, and not compelled to be soldiers on their arrival. (50) Upwards of (me hundred Irish- men, in one body, for instance, if Her Majesty's Govern- ment are rightly informed, refused to enlist on arriving there, and said they came in order to work on a railway. ( V Note 47. — See on this (juestion notes 1, 30, 30, 37, Note 48.— See ante fo. '29. Note 49. — See note 1 and fo. il94. Note 50.— This is a roply to timt part of Mr. Marcy's letter (ante folio 50) where he says that contracts are mailc with persons to go into the British provinces, tiieru to complete their enrolment in the British army, and that Buch persons " are taken to thf provinces free of charge, and there treated »» under obligation to perfect their ciiliatmeut." 40 .■3 1l 108 They were, therefore, not enlisted, hired or retained as sol- diers in the United States ; no attempt was made to enforce against them any such contract or engagement. Mr. Marcy cites no authority fur the position he has as- sumed iti relation to this jxirticular doctrine of the effect of foreujn enlistment on socereiyn territorial rights / but the practice of nations has been very generally adverse to the doctrine, as proved by the numerous instances, in which foreign troops luivo been, and still are, raised and em- ployed. (51) It cannot, therefore, be said that Mr. Marcy's doctrine is 109 in accordance with tlie general practice of nations ; and high authority might be (juoted directly adverse to any such doctrine as a])plieable to free countries, " \d)i civitas non career est.'''' lint even admitting the alleged doctrine as to the bearing of the principle of territorial sovereignty, its application nuist obviously be subject to many limita- tions in practice. Her Majesty had (for instance) internationally em un- questionable right to recall to her standard, displayed upon her oion territory those (f her own subjects cajmhle of bear- ing arms, who might be transiently or temporarily resident 110 in ei foreign country, and Her Majesty would not therel)y incur any risk of vi(»lating the "• territorial sovereignty" of such country. Again, in tlio case of political refugees driven from their own country, an essentially migratury cl."8s, owing a merely local and qualifed allegiance to the Lnital States, \<, '\i Xo be eiMitended tluit to induce such persons hy any fair m.eans short of " hiring'''' or enlisting them to leave the United States in order to '\rol themselves on British territory, as volunteers, in a war in v.liich many of them feel the strongest and the most natural desire to engage, is to violate the territorial sovereignty of the Unit- ed States ?(r)2) Note 61.— Sec unte note 47 and post folios 'ifi'i to 250, 288. 313. Note 52. — See Mr. Mniry's r('|)ly (t'olio 132). He is like a zealous young advoiat" condnctinL' a case in a County Court, unwilling to admit anything, even the nio«t obvious fact or propositiou of law. In the first place Mr. Marcy assunieB, that Great Britain would be violating "tl.e sovereign righfd of the U. 8., if she were to enlist, hire, or engage as BokMers, within the 41 It 18, of course, coirij otent to any nation to enact a mu- 111 nicipal law, such asactnally exists in many countries, forbid- ding its subjects to leave its territory, l»iit in sncli cases " clvitas career cd ;" and it may l)e the duty of other conn- tries to abstain from actively assisting the captives to escape from tlie national prison in order to serve another master. But the Govermnent of the TT^nited States has enacted no such law : it justly boasts of its conipletr freedom In this respect, ^^ clvitas non career est '^^ all residents therein, whether foreigners or citizens, are i)erfeclly free to leave its territory, without the pernussion of the garate and different charge from that of violation of the municipal law of the United States.(56) But the municipal law was cer- tainly not violated l)y the orders, nor, as far as thoy believe, by the officers of Her Majesty's Government ;(57) and both Pier Majesty's Government and Her Majesty's Minister at Washington irave reiterated orders to all concerned care fully to abstain from such violation ; and if the British (io- vernment did not i)urp()SL'ly cause tlio rnlted States' law to be violated, tlicn tlie territorial rights of the United States, whatever they may be, were not, as has been said, inten- tionally violated by Great l>rirain, ''as a 7iatIon," even if it should be shown that (he muniei[»al law of the Union was infringed. Before I conclude this dispatch, it may be useful to place on record certain facts connected with the question 115 Jfote 55. — As already observed (folio 30, 36), the doctrine in question was not started until Lord Clarendon lesolved to abandon enlistments in the British provinces of persons coniiii!; from the U. 3. Mr. Marcy was thereupon advised by Mr. Cushinir, mainly, it appears on the strength of n passage in Vattel, that the British Government had done no more than they were bound to do by the law of nations, and afterwards we find Mr. Marcy, for the first time, broaching the " peculi ir doctrine" referred to by Lord Clarendon. Note 6G.— See folios l.S, 104. Note 67. — This is erroneously assumed by Mr. Marcy, (folio 141) to be in- consifltent with I.ord Clarendon's previous statement. See note 72. 43 ofrecmiting in North America, the correctness of which 116 will, I doubt not, be acla\itted by Mr. Marcy ; and I will observe — First — That the l.'nited States Government '>vere from the fi^'st perfectly well aware that Her ^Majesty's Govern- ment were in want of recruits, and were desirous of raising a foreign lemon. Secondly. — ^Tliat [(reparations were making to receive recruits in a British Nortli American colony for such a legion. Thirdhj. — ^That ITer Majesty's (iovornmont expected to 117 receive recruits there for sucli a legion from the United States, although, wliilst so doing, they were anxious not to violate the United States' law.(58) Fourthly. — That many British subjects and foreigners, in the United States, wore honajide "• volunteers," desirous from various, but natural and powerful motives, to enlist. Numerous otters to raise men, within the Ignited States, were made, but were conslsteutlv and lnaiorablv refused by Iler Majesty's ministers and consuls, in order to avoid violating tlie United States' law, 118 Fifthly. — That Mr. Marcy was in confidential commu- nication witli you on tlie suliject for months, without ever that I am aware of, warning you agr.inst attempting any- thing of the kind, or stating that the ['nited States would re- sist or resent it, njxirf frotn any^jUixtloi) of municij Haw ^ thus, in ett'ect, ac(|uiescing, and only insisting that the United States' law sliould be respectcd.joO) iVb/?58. — It cannot be doubt til that the U. S. Government knew very well that the British autlioritii'u •■xpoelt'd to enlist persons at Hulifiix, itc., who >night come from the U. S. in piirsuMnce of invitations put fortli by the Bri- tish authorities. Mi'. Marcy's lirst letter impliedly admits their right to do BO. (See folio 60, note 7S). Nole 69. — Mr. Marcy did not at that time intimate tliat foreigners who had been persuaded to leave tlie l'. S. could not riglitfully be enlisted in the Bri- tish provinces. Neither Mr. Crampton nor anybody else could have then supposed that such a doctrine would bo set up by a Republic, whose fleets and armies are composed almost exclusively of foreigners. 44 119 Sixthly. — Tliat as soon as it became apparent that the United Sta'es Government was adverse to the scheme, and that it Diitjht load to viohitions of the United States' law, the whole project was abandoned out of deference to the United States ; bnt this oonelnsive proof of the good faith and good Mill of Her JMajesty's Government has not heea noticed or appreciated by the Government of the United Statos.(0()) Seventhly. — That tl:e whole rpiestion in dispute now turns, not on wliPit is doini;, or shall or may be done, by 120 Iler Miijesty's (lovernnient, but on Mhat was done many months ago, under a system which is not continuing nor about to bo revived, and which has been voluntarily and delinitively abandoned, in order to satisfy the United States, and to prevent the occurrence of any just ground for com- plaint. * * » * Lord Clare7uIo7i to Mr. Crampton. FoiiEKiN Offick, April 5, 1855. Sir, — I entirely a])prove of your proceedings, as reported in your dispatch, No. 57, (^f the 12th ult., with respect to the proposed enlistment, in the (Queen's service, oiforeign- 121 ers and British suhjcvtfi in the United States. The instructions which I addressed to j'ou upon this sub- ject, and those which were sent to the Governor of Nova Scotia, were founded upon the reports from various quar- ters that reached Iler Majesty's Government of the desire felt by many British subjects as well as Germans, in the United States, to enter the Queen's service, for the purpose of taking part in the war in the East; but the law of the United 'States, with resj/ect to ejdistin^nt, however conduct- Note 60,— See notes 80, 36, ?7. 49 ed, 18 not only veryjunt, hvt very 8tnngent,{Ql) according to 182 the report which is enclosed in your dispatch ; and Her Majesty's Government would, on no account, run any risk of infringing this law of the United States. Mr. Marcy to Mr. Buchanan. Department of State, ) Washington, Dec. 28, 1855. \ " \y is perceived with deep regret, that there ex i stfi avevy wide diiterence of opinion between this government and that of Great Britain, in regard to the principles of law in- volved in the ponding discussion, and a still wider difter- ence, if possible, as to the material facts of the case." (Ueferring to Lord Clarendon's dispatch of Nov. IG, 1855, Mr. Marcy says) : "The claim put forth in that despatch of the right of a foreign belligerent power to resort to the ter- ritories of a neutral state to recruit its armies, and for that purpose employ such means as he justifies, raises one of the gravest international questions whicli can come under con- sideration. If that right be conceded, then any foreign power can justifiably resort to measures for recruiting its armies within the jurisdiction of this country almost co- extensive with those which can be employed by this go- vernment.(62) 123 Note 61. — Lord Clarendon ia evidently speaking of enlistments in the Bri- tish provinces of foreigners and British subjects then in the U. S. but who were to be invited to come to the British provinces. He refers to tlie U. S. Irw, prohibiting foreign enlistments in the U. S., and yet Mr. Marcy insists (folio 126) that by the first paragraph in tliis letter, Lord Clarendon has ex- preosod his approval of sueh prohibited enlistments. Mr. Marcy relies on the word " in" That construi^tion is wholly unwarranted. Note 62. — Here Mr. Marcy flatly denies the right claimed by Lord Claren- don (ante folio 110). As to the assertion, that if foreign governments could invite foreigners to leave the U. S., they would possess a power of " recruit- ing" within the jurisdiction of this country, almost equal to that held by the U. S. government, it is manifestly erroneou.s. No man can becoire a recruit in a foreign service whilst he is in the U. S. nor can he engage to go abroad 46 124 Before adverting to the conduct of the officers and agents of Her Majesty's Government in recruiting within the ter- ritories of the rnited States, it will be necessary not only to define our own rights, but to ascertain the precise limits of Ih'itish pretensions. After tlie dehuteable i::rouud shall be clearly ascertained, the range of discusssloii will, it is hoped, be reduced to nar- rower limits, and the probability of an amicable adjustment of the present dirticiilties increased." •:<• •:■> * * Mr. Marcy says : " The first intimation which reached 125 this government that recruiting within the TTnited States had the sanction of I>ritish authority, was derived from the proceedings which had taken place in executing the plan of enlistment. The first stop taken by the British Govern- ment, or any of its ofticors, in communicating with that of the United States on the subject, was one which implied an assurance that the Britisli (government not only had no connection with, but actually discountenanced, the scheme of reciuiting for the J-Jritish army. "(63) -:<• -X- * •>r * Mr. Marcy rol'ers to tlie lettCi' from Lord Clarendon to Mr. (.'rampton, dated, r>th April, iSao, and says: " Thus it wa.s brought to light that the Bntlah Cabinet had jpropostd enlist inoit^ in the I'nitril States, and had employ- ed Her Majesty's Knvoy Kxtraordinary and Minister Pleni- potentiary accredited to this government to aid in the undertaking. When this despatch was received at this department, ]\lr. Gramjiton M-as in the British provinces. It had direct reference to.tlie enlistment, for the Queen's ser- vice, of foreigners and British subjects i;j the Fnited States. (64.) The object to be accomplished was against law ; and 126 and become such recruit. If any further restraint Iiad been consistent with the iiistitut'ons of tiiis cuuntry, Congress wouhl not have contincd its prohibition to acts of enlistments witliin tl e U. S. ami contracts to go abroad with in- tent, itc. Nole. 03. — The assurance referred to was merely that no contracts respect- ing eiili.stnietits were autjiorizcd to be made here (folio 71). This assurance was in exact accordance with the instructions given to the agents. ( ee folio 9). Note. 64 — See this remarkable misconstruction of Lord Clarendon's lott( r commented on. Note 01. it is difficult to conceive what one step Mr. Crampton could 127 have taken in fiii'tlicrunco <..f it witliout pnttiiijr at dotiancc an aci of Congress Avliicli jn-ohihits, in explicit terms and under heavy penaltie.', sucli a i>rocecdin<^/' *:• •::• •;;• "" «. In the note of the IGui of July, Lord Clcmiubm seems to admitthattheredminhujefnityt'thelawnftlv'Unkcd States in regard to recruit hi(/ /.v fiuch as this (joverninent ansscrts it tohe ; hut, by In's exposition of tliat hnv in his despatch of the IGth November, it is bereft of the very stringont character he liad before ascril)cd to it, and it is now so construed by him as to afford justification for siicli acts as, in his former note, lie conceded to bo illegal. (<;5.) igg In the note to you of July, the Ih-itish (lovernnient only claimed the right to makegcnerally kiiown toliritish subjects and foreigners in the I'nited States, who wished to enter lEcr Majesty's service and take part in the war, its desire to ac- cept these volunteers, and to receive such as should present themselves at an appointed place in one of the liritish pro- vinces. That Lord Clarendon intnhli,sh hanel- hills qfcrinf/ inducenientKy (OO) and to send agents into the United States for recruiting purposes, is sliown by the foUow- Note 66. — Loril CliirfHiloii's note of ICth July, .-o far iVom containing this admission, insists fully (in*l .'learly upon tiip riglit of tln' liiiti.>h (iovcrninent to act u» it had doni', ^fulio 08) Lord Clnrt'ndon there in.-kts on the right to invite volunteers from the United States, ( folio t'.'.i) iunl oii ;lu> right to pny their passnge from the I'nited States to tlie British provinces. ( folio 72) No new elaim of riglit is se-t up by Lord Ciarendoii in iiis dispatch 'if the IGth November, but he ghows clearly that .Mr. Marcy iiail set n|) a new case an('. one that was inconsiste'^t with his former letters, (see folios 11;', US, noti?8 8), 3(5, 37.) Note GC. — So far from this, wo find that Lortl Clarendon, in the letter re- ferred to, claimed the right to adoj)! " the measures necessary for mnking generally known that Her Majesty's (Government were ready to" enlist in the Briti-sh Provinces Buhjects of the Queen, and foreigners in the United States, who, from political feeling, were desirous of entering tlie Britisli service. Mr. Morcy's argument is, that Lord Clarendon must he taken as having ad- mitted in this letter that the Briti.sh Government had no right to publish hand- bills, «tc., to make known their readiness to receive volunteers in British North Ameiica, because he said thot some unauthorised persons had violated the laws of the United States 1 a most illogical conclusion. 1 is 129 ing passage ; — "It can scarcely be matter of surprise that, wlien it bocame known that Ilcr Majesty's Government was prepared to accept these vohmtary offers, many personv in various (piarters should give themselves out us agents em- ployed by the Jiritish (-rovernmeut, in the hoi)c' of earning ro^vard by promoting, though on their own responsibility, an object which they were aware was favorably looked upon by the British (lovernment. Her Majesty's Govern- ment do not deny that the acts and advertisements of these self-constituted and unauthorized agents were, in many in- stances, undoubtedly violations of the laws of the United States ; but such persons had no authority whatever for their 130 proceedings from any British agents, by all of whom they were promptly and unehts of the I'niled States — tirst, that, in (Ii • a/'Si nreof nnniirljuil liiit\ ((iKi (-Jrcat liritain nuiy enlist, hirt-, or en,uai;e, ;is soldit-rs, within the British territory, i)ersons who have left the I'liitcd Siuti-s for that ])urposi', Thi-; proposition is, hdwi'vti', to Ih' un- (Ur^ooil as not ai)i)lyiniich as eoniinissioMs in the llritish arui\, /li;/// //'"/.«, lihi'ial bounties, pensions and portions ot' tin.' royal domain, urrei^ii power has a right '"to enlist and orlii:uteil, ii-s nllcgcil, if il be an offence to invite or induce foreiiriuTS to liavc ll.u lliiitcit States to be en- listed in foreign servieo, l)ut on no otlier iiyiiotiicsis nni any etiarge against the British agents be sustained upon the pnlilislied allegations and proofs. Note 69. — See comments on tliis passage, notes 12, 'M. 2fote 70. — That is not Lord Clarendon's proiiosition, for l)e admits that no contract can be made for parties to go abioad with intent lo enlist. His lan- guage is express, plaio and clear on that subject. ( folios lui- to 103, 110.) 60 135 by tills pr.v.-^rnmont, wliicii hoUU that, no foroipn power wluituvcr IiUH tlio right to do eitlu-r of the Fiiociliod iwU without itri coiMi'iit. i\o l'or(Miji;ii power cm, by its iigciitH or otKccrs, hiwI'iiUy enter tlie territory of aiiolht'r to enlist soldiers for itn s^ervico, or orgiini/.e or train them therein, or even ciitici' pemms inivit/ In anlir to he cidldedy without ex- {)ress permission. (71.) This, as a rule of international law, was oonsidoredso well ;36 lor 11(1- eettledthat it was not deemed iieee-sury l(»invnki' the uutl ity of i»ul>lieis1s to sup|»ort it. I am not aware that any i dorn writer on international law has (piestioned its sound- ness. As this important i»riiK'ij)lo is controverted l>y Lord C'larendon, and as it^ nniintenanee is fatal to his defenee of British reernitino to establish it by a refer- ence to a few elementary writers of eminence u]>on the law of nations : — "' Siiiet- a rii^ht of vaisinc; poldiors is n vii;lit of majesty which cannot be viohiti-d bs- a Ibreiixn mitioii, it is not per- 137 tl mitted to raise soldiers on the ti ii'itnrij of antihii' without le consent of its siovereigu." — Woljiun. Vattel says, that — '' T/iv man who undertakes to eidist sr.ldicrs in a foreign conntry without the s-overeiun's permission, and, in general, whoever i ni'a rx uu'iiij tin nnhjicfx iif iUinthiv SUifr^ violate> one of the most sacred rights of the prince of that nation." lie designates the crime by harsher names than I clioosu to nse, which, as he says, " is ]»unished wilh tiie utmost ge- 138 verity in every well-regulated State.''' \'attel further observe?, that — " It is not i>rosnmed that their sovereign has ordered them (foreign rerruitei-s) to commit u crime; and su))posiug,even, that tliev bad ri'eeived such an ordc^r, they ougiit not to have obeyed it; their sovereign having no riglit to command what is conti-ary to the law of miture." Ilantefcuille, a modern Frencli author of much repute, regards j^ermiirsion — and acciuiescence implies pernjipsion — Note 7t. — Tliis doctrine as to enticement is unsound as applied to the United States. ( See notes 16, 30, fo. 2 IC ct seq) i o 61 by a tunitrul power to ono licUi^i^rcut, thoii^^li cxteiuUid to 139 both, to ratHi' retwuitu in. iti trrritin-o.^^ iiiib'HW it wuh allowed in poueo, to bo an act ot' bad liiifli, which cuinproiiiits its iKMitrulity. Thoro can bp no well foundod di-^tiiiction, in thu ruin of iiitL-rnational law, hi'twecii raisin;^; soldiiTst'or ahclli^vreiit's .iiiiiv and sailoiH i'or itx navy williin a neutral coiiutrv. llautot'euillo says : ''The neutral sov('i'ei/ .'ndloi.^ iij>oii ih t rritarij tor tUo service of the l)elliun Its tii-fiforii to ooniplele a ship's company rey ci'inltHt or any other eause. [\\c pr«»hi!)ition to in;;af;'e sailors on the territory of u pacilie j»rinee must extend to loivinner-i who are found in the ports o|' his juri-^diefion, and even to tho-o "who bc- lon^X to th(^ beliixerent nation owniiii:; the vessel that wishes to coni}»lete its crew, or ^-hip's eoinpany." Itid'erenco to other writoif* niii>;ht bo made to sustain tho position eontencUd I'or by this (lovernment, antl to (ivorthrow that advaiice.l by I,(»rd ( "larendon ; but the au- 141 thoriiy uf tlioso prosentod is doomed sullicient for that pur- pose. * " The (/roft'id tiihii hi Jul'j — flmt ihc j>irs(Jiis c/ir/af/cd in r('(^niitintj trAm lixd viiddti'tf the Ihick >>f tin- f'/iitid '< W, I'C K, /r-/'oii^-(ifitf<'d (iiid itiiiiutliDrizcd ri;H'(l ix'fiiiis liinl vii'latfd tlic act nf (.-'"injicss— Ur did not wsiy tliat tlu! liritisli (itivi'niiui'.it, hml imt ;mllioiiM'd;\;,'«'iit» to pi- lonii wliat Mr. Mnrcy now discovers to !).' \vi-oiij,'l'uI acts. Mr. Maicv charg. s tiiu Hritish ngt-iits with imviiit; flu'cted Liilistmeiit.s uiid made unlawful enga^'emeiits in the United Stato-i, and alxo with iiaviiii^ invitccl niid a^M>tl•'l foreigners to leuvo the United States. The latter act is jiistitied, whilst tho former is denied, and imrtieularri of tJie alleyd inisdced.s are asked for in lieu of vague and general charges. It is surprising that Mr. Marcy should have supposed that there was any inc'ousistency iu this. 52 ^ 142 it 18 not denied that these persons have acted under the authority of the i>ritish (Tovernment; hut Her Majesty's miniistcrs now jn'Dpose to <>;ive their attention to the de- mand of this (Government for redroi^s, if it will make and establish niure distinct charges, with proper specifications against particular individuals hy name. Quite as much, and indeed nioi-e ihan is usual, has been done in this case in spLJcilying cliarges, and indicating the persons impli- cated.'" ^li -X- * * * * " Not long siiu'e, Her Majesty's minister, Mr. Ciampton, 143 represented to tliis (Titvermiiont that the l)ark Maury was being litted out in the [)ort of New York as a privateer, to depredate u[)on the commerce of the Allies. Tlie evidence, if it could be called such, to support the charge, conBisted of alHdavits, detniling loose rumors, and some circumstances about her e(]uii>uient, wlil(;li justified a hare suspicion of an illegal jiurpuse. li' there could be a ca«el and against all ]>ersons wlio should be found to be implicated. All the alleged causes of suspi- cion wi're immediately investigated, and the result, which showed the utter grersons concerned might have un o])portunity to deal with it, nothi)ig would be done, no stej) would be taken, until those preliminary matters should have been attended to — woidd such a reply jn the c:ise of the Maury have been what her Majesty's 53 minister might have expected — would it have been deemed 146 courteous or friendly to the Britisli Government ? Lord Clarendon may be well assured that such a reply, in the case of the Maury, would hav(i been quite as satisfactory to Her Majesty's Government as is his rei)ly to this Government in relation to its remonstrance and com- plaint against British recruitments within the United States." (73.) * * •:<■ * * -X- " This Government asked, as a part of the satisfaction due to it from Great Britain, that the men who had been enticed, contrary to law, from the United States into the 147 British Pro'inces, and there enlisted into Her Majesty's service should be discharged." * * * •;<• * * Mr. Marey shows that Lord Clarendon does not propose to comply with this re(piest "notwithstanding the illegal means which were Uhod to entice or decoy" men "to leave the United States for the purpose of heingenlisted into the British Foreign Legion." (74.) "Lord Clarendon has placed on record "certain facts," — seven in imnd>er — the correctness of which he says he does not «loubt will be ndniitted hy me. After duly consin of regret that " this proof of good faith and good will of Her Majesty's Government has not been noticed or appreciated by the Government of the United States." If tlie fact on which Lord Clarendon relies for the proof of good faith and good will shall be shown to be essen- tially ditiereiit from what he conceive.-* it to be, he will understand the cause why tliis Government does not appre- ciate it a^ he docn In a question of this kind, dates are important. When did ^^^ it become apparent that the United States CJovernment was averse to tlie recruiting scheme, and how soon thereafter was it abandoned i I hope to l)e able to convince Lord Clarendon that they were not contem])oraneous events; that far the greatest number of obiectionable acts committed 1)V the British officers was jierfonned huig after this government luid, in the most public and emphatic manner, reprobated tlie re- cruiting project ; after prosecutions had been ponding for months against tlio agents of IJrltish otKcers, -with the full knowledge of tliese otficers, and also, as it was fair to pre- sume, with the knowledge of tlieir government. Mr. Cmmjiton's intercourse with these recruiting agents commenced in Jamuiry. On the 4th of February, ho noti- fied Strobel and Hertz, by a note addressed to each, that ho was tlien a1)le to give them precise in-^tructions on the subject alluded to in a ])revious personal interview, and there can be no doubt tluit tlie subjec*" alluded to was re- 152 cruitinfj witliin tlie United States. That scheme did not sufficiently develope itself in our principal cities u!itil the month of March. Immeiiately tliereupnn, the United States Government nuiuilV'sted the niD.st decided, unecpu- vocal and public demonstration of averseness and resist- ance to it." (75.) * * * -x- * # 151 Note 75. — Why \ Mr. ("'rampton as a disavowal by the British (iovernment, as well as by himself, of all par- ticipation in the recruiting proceedings then just com- menced within the United States." # « # * "Mr. Crampton could not have been ignorant of what is now established beyoiul doubt — that a scheme for raising troops for the British service within the United St "'es had been approved and adopted by Her Majesty's Government ; that autlioiized agents, furnished with Instructions and pe- cuniary means, and stimulated by the promise of connnis- sions in the British army and other tempting rewards, had been employed to induce pereons to leave this country and Note 79. — Doubtless Mr. Crnmptnn never told Mr. Mnrcy thnt agents were employed to "recruit" in tlie U. S., bec.inso tlint was not the fnct. But Mr. Marcy must have known at the begining tlmt the British Government intended to invite foreigners to go to Nova ocotia, &.C., to enlist, jnd yet he did not iutiipate that otfence would b« taken at it. 8 58 bi- 163 go into the British jn'ovinccs for tlie express pni*po9e of entering in^o the British service ; and that many H'h«o were prevailed on to do so, had oin])arked for Halifax free of e\pon.se in vessel.'? employed by JJritish anthority for that purpose, and on arrivin*; at Halifax had oidisted and been enrolled in the British Foreign Legion. (80) It is with reluctance that I perform the duty of bringing ii; viev,- Mr Crnin]iton's connection with some of the f.g s who were cniployed in carrying out tlie recruitment >ii/^ -7/I, and who have, in doing so, viola'ed the law and 163 sovereiirn riiihts of tiiis csessiGn of ^]m Government. I do not mean, liowever, by this restriction, to cast the slightest doubt upiui tlic credibility of Mr. Strobel. Mr. (Jrampton's letter to Mr. Strobel was dated on the same day, (February 4,) as that addressed to Hertz, .lud is e.xpre-sed nearly in the same terms. After Mr. Strobel's interviews with Mr. Crampton in Washington, lie embarked in the recruiting service, and suddenly r(jse to the ra ' f " Captain of the 1st company of (ho Foreign Legion." He went with a detacliment of 1^7 recruits raised in. rhiladeljiliia, to Halifax ; was exultingly received into followship with the military and civil otii- cers of the highest position in Her Miijesty's scr- ?. tiierc stationed; was invited to partake of the ho?i)italiiy of His Excellency, Sir (iaspard Le Marchant, of '• Col. Clark and " the otiicers of the 76th llegiment," and of ''Col. Fraser, " Col. Stothera, and the otiicers of the Royal Artillery " and Royal F^ngineers;" and the original cards of invita- tion, addressed to him, were produced on Hertz's trial. he wan authe !'»iil to do, vi.'.-, to give tlio men information ami assistanrc. The Bi-iti.sli ai^fiits could liglitfuUy pay thu expi'iices of tlieir pn?sni;e. {>oe ant.! folios On, ",'!.) If Hertz made any nnlawfid ongagemunt with any pcr.sou the facts oonntitutinf,' »ucli en^agenifnt should have been proved, and the ca^e shouM not have been allowed to depend upon tlie vai^ue and eqnivc.eal ex- pressions of the witness, showini? merely his conelusion of niatt.Ts of l;iw and f let. If Hertz did make any iileu'al cnnt' ac's, he violated Mr. Cranip'on's positive instructions, t.nl it is u.ifa.- to tie.it f-o latter as res^wns-b'-c for that conduct. 60 ¥ \ 168 After snch an endorsement of liis character, it would seem that the testimony of Capt. Strobel, even if it were uncorroborated, should command confidence. Mr. Strobel, who had then acquired the rank of " Captain " of the 1st company in the Foreign Legion," and Mr. Crampton, were again brought together at Halifax, and were engaged there for some time in making further ar- rangements for recrating within tlie United States. Original documents, now in the possession of this Go- vernment, show that there can be no mistake as to tlie ob- ject of Mr. Crampton's visit to Halifax, and that it had 169 special regard to recruitments in the United Statts for the British service. (82.) Bruce McDonald, who appears to have been a Secretary in the Executive Departm;:nt of Nova Scotia, addressed a letter to "■ Capt. Strobel, First Company Foreign Legion," dated "Provincial Secretary's office, 3d May, 1855," in these words : — " Dear Sir, — I am directed bv Ilia Excellency the Lieu- " tenant-Governor to introduce to vou the bearer, Lieut. " Kuntzel. He comes with a letter to Sir Gaspard from " Mr. Crampton. You will please explain to him the " steps necessary for him to take to secure a commis- 170 " sion." On the 13th of May, the second or third day after Mr. Crampton's arrival at Halifax, J. W. Preston, Lieutenant of Her Majesty's 70th Regiment, who had charge of the depot at Niagara for the reception of recruits sent from the United !:: tates, wrote to Capt. Strobel as follows : — " My Deak Strobel, — I am directed by the General to " acquaint you that Mr. Crampton wants to see you at his " house, at 10 o'clock to-morrow morning ; be punctual. " If you like, come up to my room at 9^ o'clock, and we " will go together." These letters corroborate Capt. Strobel's statement that Mr. Crampton, while at Halifax, was engaged about the Note 82. — This is evidently an erroneous nssumption on the part of Mr. Marcy, for Mr. Crampton has always forbidden any " recruitments in the U. S." 61 recmiUnghusinesfi within the United States. {^^) ITo after- 171 wards went with Cajjt. Strobol to Quebec for llic Biime purpose. Passing witliont coinuient the i)lan for recrnitiiiir, which Strobel says was i)repared at the request of mV. Crampton, and ai)proved by him and Sir Gaspard Le :Mar- chant, I propose to offer some remarlcs upon tlie instruc- tions furnislied l>y ^Ir. Ci-ampton, wliik> in the Provinces, to tlic recruiting agents wlio were to go to " Buifah>, ])e- " troit, or Clevchmd,"' " to make known to persons in tlie " United States the terms and conditions ujion which re- " emits will be received into the British service." This paper will be found in the loUers i-eferred to in Hertz's 172 trial. Its genu! oiiess, I presume, will not be (piestioned. It is framed witli great a'lroitiie-. of ddlslng tnea- " sures for enlistimj^ and the parties should scrupulously Note 84. — No arrnngnmcnfs wpio ever mndo for eending any " rcxrruitcrs into tlie United States." — Mr. Craiiipton was perfectly justified in continuing to authorise agents to give information and assistance to foreigners untd tlie recruiting establisliment at Halif.ix was broken up. Tlie federal court.s have recognized such conduct to be perfectly legal, ( sec folio "2.) As to the trials of Hertz and Wiigner, see tlic rcrn,'irk« ante fos. 10 to 29. Mr. Crampton could not have anticipated the course which Mr. Marcy and Mr, Gushing have thought fit to take. How could it have been supposed f jr instance that any American President would broach the absurd doctrine lately concocted by Messrs. Cusliing and Marcy about seducing foreigners to leave the United States t rt 63 178 "avoid resortin aud Hustain a ditferent one has created niucli snr|)rist* ; thai it has been (h)iie by a friendly government with whieh the I'nite*! States are niobt anx- ious to maintain and strenujtiien the rchitions of amity, in the cause of deep re<;'ret. When the President presented the ease to the consider- ation of Ilev Mjiii'sty's (iovernment, with the assurance that hehad such iniurnmtion on the ^nl»iect as compelled him to believe tliat Hrltish oUleers, in eminent stations, were impli- 181 cated in a sclieme wiiich had resulted in an infrin«;ement of the riylits of the I'nited States and a violation of their law, and asked for some sati-^factinii i.f the wrong, he cer- tainly did hot expect that the conduct of those ottieers W(Mjld he justiiird upon jirincijile.. which impair the sove- reignty of the I'nited States as an Inde]>i'ndent nation, and by an interpretation of their law which makes it entirely ini'jf't'ciii'efor tin' pufposv iHteiifIi(L{i^'i) Some satisfaction for the injury was eonlideiitly expected ; but nothing that can be regarch'd in tliat light has been of- 182 fered ; and this (Tovernnirnt is compelled, in vindication of its I'iu'hts and laws, to taki' a course which it sincerely hiped Her Majesty's (lovemment would have rendered un- necessary, Jler Majesty's .Minister to this (iovernment, Mr. ('ramp- ton, h'ls taken a conspicuous i);irt in organizing and execut- injx the scheme for recruitinjj; for the P>!'itish army witiiin the United States. Were it possible, with due regard to the evidence and disclosures in ihe case, U) assign him a subordinate part in ooniinii to tlieir instructions " ns> matter of irit'oniinlioii (Jiilv, mul not as implying iiny pvomisc or engiigcrntiit on tlie f)iirt of those supplying such information." See folio 10. Xotf 87. — Ni 1 at all so. Mr. Murry wliolly nii.sreprcst.'nts the purpose o the law. See fo->. 2 to 5, ',3, It may safely be asserred, without fear of contradiction, tint Congress can- not even now be persuaded to extend the provisions of Ihe Aet of Congress so as to make unlawful the aet of advisiiijf, persuading or assisting a foreigner or even a native bora citizen, to go abroad to enlist in foreign service. h'- II ■■■■ 05 that sdionio, ovon tlmt would not allow tlio Prc.-i(l(Mit to 183 chiin!irti(;iputi<>n in tlio project, as it has lii-i'ii (K'vclopi'd, ot" raisiiii; recruits in lliis country tor llu; Uritisli scrvici', was iiicompafiMi! with liin ofticial relations to this (iovei-nuieiit. lli^ coniicctiou with thatatl'uir has rcndere*! him an uiiacei'[»tahl'' ropresentativc of Ilor liritannic Maje.^ty near this (tovornmcnt, ami you are directi'd hy the I*resi(ient to ask llerMm- 1\ 's (Jovorn- ment to recall him. (88) Mr. Kowecrot't. the P>ritisli Consul al Cincinnati, and Mr- Matthew, the iliitisii Consul at i'hi ailelpiiia. are implifute I 184 in the reeruitinjj^ project ; and you are I'ur'her directed by the President to ask lor their removal tor that cause. The persons connected with the lii'ilish Cunsnhvie a* New York have heen actively eniiai^'ed in I'niilieiiij: tlie ^'ecrnit- in^; scheme. ^Ir. Stanley, the assistant cKrk of the ( sul, has taken a nuuv open and etli'ciivc pait than the Co j 8ul liiniselt", and is now rmdi'r an iii of- fice and under his immediate and f)Re o You are ( directed hv the ['resident to rend this despatch ^I'l'ss cnn- e'ongi-ess fineigner ■ICL-. Note 88.— The return of the reduced foreigners does not soein to be insist- ed upon, nor any "indemnity for the past or socurity for tlie future.' See folios 147,165, ai'J, etscq. 9 tin C6 186 to the Earl of Clarendon, and, should he desire it, to hand him a copy. The copies of the orighial documents to which I have re- ferred are contained in Hertz's trial. I send you herewith an autliontic report of that trial, which you will oft'er to Lord Clarendon as a document connected with this despatch. I also send herewith a copy of the }>roceedings of the Cham- ber of Commerce in the city of New York relative to Mr. Barclay's conduct in the case of the hark Maury. This, also, you will present to Lord Clarendon, as furnishing one ground for the request herein made for the withdrawal of 187 Mr. Barclay. The President to Attor fie tj- General Cushing. ExEcrnvK Mansion, ) "Washington, Aug. (I, 1855. j Tlie reports of the District Attorneys of the Southern District of New York and the Eastern District of Pennsyl- vania, on tlie subject of tlie levy of troops in the Tnited States, by official or other agents of Great P>ritain, are re- turned herewith to the Attorney -General; and his opinion is required upon the (luestion, wlietlier or not the acts re- ported are in violation of the municipal law and of the na- 188 tional sovereignty and neutrality, and especially upon the question, what legal responsibility, if any, those acts devolve on the British Minister and British Consuls? Fka>'klin Pierce. Mr. Cashin(js Rejihj. AlTOKNliY-GjiNKRAL's C)rFICE ) Aug. 9, 1855. ) Sir, — I have the honor to submit herewith the considera- tions of law applicable to the tnlhtment of troops within the United States by the liritish Government, in so far as the facts appearing in the documents before me conceni the personal action either of the British Minister or of the British Consuls in the United States. 67 Tliere is no room for doubt as to tlio law regarding the 189 general question. In the first place, the act of Congress of April 20, 1818, contains the following provision : — Sec. 2. And he it further enacted, That if any person shall, within the territory or jurisdiction of the United States, enlist or enter liini^elf, or hire or retain another pereon to enlist or enter himself, or to go heyond the limits of, or jurisermission been given to (ireat Britain. To the contrary of this, the iiritish (Tovernment was expressly notified, by letter of Mr. IMarcy to ]\Ir. Crampton, of April 28, 1854, that no eidistmenls in the Uiuted States would be permitted either to Great Britain or to Russia. (Exec. Docs., 1st sec, ayd Engr., vol, XII., No. lO;?, p. 5.) In the second placis independently of municipal rela- 191 tions of the acts in (pie-^tion they constitute, whether they be the acts of the Ih-iti^^h (Jovernment or of its Ministers and Consuls, a violation of the sovereignty and of the neu- tral rijrhts of the United States. The rnle of i)ublic law is unequivocal on this point, and is correctly stated as follows, by "Wolfius : — "Since the riixht of raising soldiers is a right of majesty which must not be violatiMl hy a foreign mition, it is not 2>ermitte(l to vxixe soldirrs on the ti'r/'itari/{S[y) without the consent of its sovereigii." (,Jus. Gentum, s. 1, 174.) By Vattcl :— 192 "As war cannot be carried on without soldiers, it is evi- dent that whoever lun the right of making war, has also naturally that of raising troi>i»s. The latter, therefore, be- lono-s likewise to the sovereign, and is one of the preroga- Ifote 89. — See as to what acts constitute this offence, notes 1, 16, and fos. 110, m. 63 !l i ':. 193 lives of majesty." (Vattel, Droit des Gens, B 3, eh. ii, p. 2U3.) 195 * « * * " As the riii;lit of levvinc; soldiers belongs solely to the na- tion or the sovereign, no person must attempt to enlist sol- dior.> in a foreign country, witliout th sovereign ; anil, even with tiiat perm mission of the 1S810U, none hut vo- lunteers are to ho enlisted ; for the service of their country is out of ihe ((uestion Imre, iind no sovereign has a riir rht to give 'irseli his sul»iec'ts to another Wlioever uiulertakes to enlist soldiers in aforeign country, without the sovereign's permission, and, in general, who- ever ei)f/c '.s ((icini the .■othjeefs of atioi/ier >Sf/(ft\,{dO) violates one of the most s;ieiv(l rights of the ])iince and the nation. 194 This crinu^ is designated by the name of I'idnirpjying or man-fS.) By Klnl.i^r:— '•A ^tate entirely neutral has tlie light toexact, even hy leUigerent ])o\vei"s {\>> not use its force if nec;ss!ii'v, tliat 1 nenti'd ti'iritoiv lor the pni'poses of war; ihat they take n'H th"r<'fi'(,ui DiiDtitioHN of war 'Aw\ itrovisions an( d oti ler Ininieiliatc re(]iiire;nents of war for their arnues ;(5n) that they do )>i.f oiake therr any military prepai'ations, / )iro(liaeiits 196 ('/' (.'o'/r/t/'of).s of ti(K i,s ; that none of their ti'oo])s, armed or unarmed, jiass tiirouuih, (.Vc, cV:c. ; that they exercise there no aci of hostility against the ])ersons or j>rojterty of the stdijects 'f the hostile State; that they do not occu])y it militarilv. or make it the tlieatre of war." ^Droit des Gens, ]\Iod ernes < le V\- iirope, s. 2^i) By G. F. d(^ Alartens : — "Whilst i". case of rupture between two nations a neutral yijtc 9(1. — S>. (■ iiiuarks on tiiis piissn^i' and iis to itn inapplicability to the Uniud Stiitcs. iio;.t8 Itl, ro ; folios 24(1 et teij. Xole 'Jl.— Ad to this bOL- folios 30, 254. 69 State preserves the full enjoyment of its territorial rights, 197 it can, in the absence of treaties, prohibit during the war, as in time of peace, any passage or sojourn of foreign troops ; and much more, forbid the ocinipation of its for- tresses, the recruiting, ninsterituj and e,ri'rcising troops, and it may use force against those -who shall attenij^t to violate the prohibition." (Precis du Droit dos Gens, s. 350.) By Galiani : — " All governments are aecnstomcd to for])id, under capi- tal penalty, any foreigiu'r to nutkc military engagtmenta or rccniit^ within their territory ; in duiiig ^vhich, they do no more than to sustain and defend a natural rigiit, and one jgg inherent in every sovereignty. '•■ '^' * The neutral sovereign who leaves his subjects at liberty to engage theniselve-^ in the service of a foreign belligerent, will not therein be wanting to his neutral duties, piovided it has been customary with lii> miti;es of their position, and to be exemi)t from all the evils of war. The duty of the belligerent is to abstain from the infringemejit of this right. Tims, neutral territory ouixht to be lield sacred and inviol- able by natioi<-' nt war. 'J hesc last ought not, on any pre- text, nor in nny manner, ti» iiiah' ,'«> of .swh territori/ to subserve theii |t^l'pni;o^ oi hostilities, direelly or indirect- ly. The /)<(■■'■ (((/' <)j\(i')in'i froojjtt, thi' lei')/l)tif of soldiers, 202 <-Vc., without the consent of the sovereign, would constitute an olfence against the sovereignty of the neutral and a vio- lation of the duty of the belligerent."— (Droits et Devoirs des Nations Neutres, tonu: 1. .'!l-_'. ;>]:}. '• As to the territoiw of neutral nations, the occurrence of hosrilitit'S makes no change nor mociitieation of their rights : thev remain inviolable in time of veace. Their territorv ought then to be sheltered I'rom all enterprises of the belli- gerent<, of vrhatever nature they may be. The eonsecpienees of war ought lun-er to be leit by them dii-ectly ; that is to say, no act of hostility should be eonunitted aii'ainst them liuder any pri'text. 203 '* iJelligerent nation-:, in this rtvj)i-ct. have only the rights they p<»ssessed in tinn' <>f pt-afe, because war never inju- liously alfect- nations nt [)eace. J^i'liigerents cannot, then, in any case, witii()ut the iiermi-^sinu of the soverv-ign, use 'm^itral ftrrlfcri, — 1 ilo not say directly for the operations of war — luit canno' even nudvo n^e of it fir any advantage whatever, to the pi'ejudice of t'leir enemy. This permis- sion camiot be granted to them by the neutral without vi >- lating his duties. " 'ihe princijile of the inviolabdily of the territory being adiint[e(l, the coticlu-ion. a< absolute as the ]irineiple itself, follows, mat a belligi'rent has no I'ight to use m'Htnd terri- 204 ^f>'7/^ ii' it'iy nuinner whatever, without the ])ermissionof the neutral nation sovereign of such territorv, and cannot, there- fore A''"y //v>»';y/.v i'/z^vr, and nuircli armies through it, tVrc, without this ]K'rmissi(»n. " The neutral has the incmtestible right to resist every attempt the belligerent iuay nuike to use his territory — to oppo-e it l)y all the means in his j)ower, and even by force of arm<, in the same manner as a eiti/en has the right to deiend his property by all tiie means placed at his disposal bv tlu! law to which he is subject." — (Ibid, tome II, pp. 4S, 4^.) I do not perceive that this doctrine is explicitly produced i)r;^-..'i' a -state 206 loses its ntutralitii l)if jiiniiittni'i forfian tn-os, and con- cludes properly that if it be permitted to one, it should bo permitted to each of tlie resiiective belligerent powers. (Manning's Law of Nations, l»k. liL, ch. 1.) In this connectio!) ihe same accredited English writer considers and confutes the a-sumjition, ha>tdy and errone- ously taken u]> in (ir(>at I'ritiun. that some doctrine to the contrary of this is to be ibund in Vallel. And u\)on an elaborate review of the whole subject, he concludes thus: — bemg itself, / terri- of the there- , Arc., every vy — to force ght to s[)osal II, pp. * '•* ^' F'orrtr//! /rrn.'^ >>'"!/ 11"^ ^>' alloirrti to one hdluj- 207 event while refused to his antagonist, consistently with the dulit^s of neutrality. Wlien fr'nti k autecedvHt to tear permit such exclusive privilege, then no conq)laint of breach of neutrality cae be maintained by the exciluded party. I5ut when no ante(;edent treaty exists m/f/i a per- mlssloi) iroii/d he a rinlat'niii (-f in utrat'ti/, the principles of which deieand the ^tricte>t aitstinence from a'^sistance to either jjarty, and of course will imt admit tluit exclusive privileges in so important a )>articul;ir shoidd he granted to one belligerent. Nor lune the i-ustonis >.i^ Kuro[»e, derived from the i>racticesof tlu^ midilleages, esrablished any usage that prevents this(juestion from being settled in acc(U"dance 208 with the dictates of reason, or, in otlu-r words, with the law of nature." — (Mamung's Laws of Nations, p. l^jO.) Mr. Manning's reasoiung is conclusive, as iar as it goes; and the imperfection of other English law hooks in this re- spect is of no account, as against the general authority of the expounders of international law in all the rest of Chris- tendom. Misconstruction has also been placed on the fact that Bynkei'shoeck maintains the riijht of private or voluntary 1 i- SO9 egepatriation, itinfor the purpose of foreign military service. (93.) But lie d'es not express or countenance the thought that a foreign belligerent may recrt'/it soldiers in a neutral country without the consent of its sovereign. On the con- traiy, he exhibits in full the legislavion of the United Pro- vince*, according to which it was a .'apilai (/il'ence to make enlistments in ihc country vdthout co?>^^'ni of the Siatos Generah (Qua -t. Jur. Publici, lib. I., c. 22.) Besidt^ Grear Britain has by lu^^r own lo^ifihwion -,ai).- 210 tioned and adoj-ted the nile of pu1)]ic law, by onactiog that if any perso') whatever, witliin ihe IT:>ited Kingdom, or in any part of the domiiiio;.:i of Great Britain, sliall hire, engage, retain or />;•(>:?«>'«, or ^bal! attcjniU or endoavoi to hire, retain, engage or procure uxy peiron whatever to e.n- list, or to c'-iter or engage to cnlisr, jis an oitieer: , 'jidier, saikir or marine, cither on land or fnvd serrice, for or uivi.er, oi'in aid oi any foreign prince or government, or to go or agree to go, or embark froin any place in the British 211 domiui >'i3, foi the purpose, or with tlie intent to be so e?i1ist«Hl, entered or engaged as aforesrnd, every pereon so off(;nding shall be deemed guilty of a suisdemcanor, pun- ishable by fine or imprisonment, at the discretion of the court having jurisdiction of the act. (Act 51>, Geo. III., ch. 69.) We in the United States acting in the nense of natural right, and following the rules of public law as explained by the jurists of continental Europe, aastrteil and established 212 tf^is dociri7ie (9 A) at a very early period, in ep})Osition to the undertaking of the French Government, through its Minis- ter, M. Genet, to man or equip cruisers within the United States. (Mr. Jefterson to M. (ienet, .lune 17, 1793, Ame- rican State Papers, For. Aft',, vol. I. p. 154.) And our judicial text books are full and explicit on the same point. (Wheaton, by Lawrence, p. 491 ; Kent's C)m., lee. vi.) It is obvious to the most superficial reflectio 1 that no distinc- Note 93.— See extract from Bynk, folio 300. Note 94. — The United States did not assert the doctrine now contendtd for, ▼iz : that it is an ofifencc to invite foreigners to leave the United States to ■erve la foreign armies. 73 / 34rvice. thought neutral the con- ted Pro- to make e States J n acting ingdom, all hire, oavoi to cr to «n- . .Toldier, , for or lit, or to IJritieh :o be so ereon so or, puii- 1 of the eo. III., natural plained ahliahed to the 8 Minis- United 3, Aiue- ^nd our ic point, vi.) It distinc- enH«d for, SUtw to tion of principle exists in the levy of a military force in 218 the neutral country, as between the land and sea Bcrvice ; and if Great J^ritain may raise within the United States volunteers ibr licr land f^ervice, so Kussia may rai^c them for her marine service; that i«, may fit ou: privateers in our ports ; and, indeed, if wc grant or permit the former privilege to Great Britain, we must in like manner, in or- der to be inii)artially neutral, concede the latter privilege to Ilnssia. And it is equally obvious that foreign recruiting cannot be forbidden or pfiinitted under the iiiHuence of any as- 214 sumed national sympathies or anti])athie^. Individual or national preferences are quite immaterial in such a ques- tion. The United States cannot, either lawfully or honor- ably, practice a stimulated neutrality ; nor can a dissembled alliance be claimed oi expected from us, either l)y Great Britain or by llussia. From the well established rules and principles of law, then, it is plain to conclude : 1. The acta of enlistment in question are contrary to the municipal law of this country, and indictable us a high mis- 215 demeanor. 2. Those acts, if permitted to one belligerent, must bo permitted to all, in observance of impartial neutrality. 3. Being against law in the United State-, and therefore not permitted to Great Britain, if undertaken by her as a government, they afford just cause of war, being a direct- national violation of the territorial sovereignty of one na- tion by another. 4. AVhatever agents of the British Goverimient, whether official or unofficial, acting voluntarily or by orders have gjg participated in such acts, are not oidy guilty of a crimintd infraction of the statute law, but also, in the Janguajije of Yattel, of violating one of the most sacred rights of the nation. I presume that if, in the present case, the British ^Minis- ter imagines that the acts performed under his direction were not contrary to the municipal law, it must be on the .ground that the recruits were not completely etdlded in- the ' United Slates— t\x2it is, did not here, in aliform, enter the fnilitary service of Groat Britain. Tiiat assumption is al- together erroneous. The statute is express that if any per- 10 F.l.yi' \h-i^: 74 217 eon shall liire or retain another person to go beyond the limits or jurisdiction of the Fnitod States, with intent to bo en- listed or entered into the service of any foreign State, he shall be deemed guilty of the defined misdemeanor. It is possible, also, that he may have supposed that a solemn contract of hiring in the United States is necessary to consiitute the offence. That would be mere delusion. The words of the statute arc, " hire or retain." It is true, our act of Congress does not expressly say, as the British act of Parliament does, " whether any enlistment money, pay or reward shall have been given and recf^ived or not," 218 (Act 59 Geo. III., chap. GO, sec. 2,) nor was it necessary to insert these Avords. A party inay he retained hy a verbal promise, or by invitation, for a declared or known purpose. If such a statute could be evaded or set at nought by elabo- rate contrivances to engage without enlisting, to retaiii without hiring, to invite without recruiting^to pay recruiting money in fact, but under another name of board, passage money, expenses, or the like, it would be idle to pass acts of Con^/'t'ss for the punishment of crime or any other offence.(95) Xotc 95. — Mr. Cusliing would find it difficult to cite nny legal authority for the proposition that there can bo a hiring or retainer without a contract or engagement. Moroos'or he has to avoid the eti'ect of the early correspondence between Mr. Buchanan and Mr. Marry, and especially of that between Mr. Bu- chanan nud tiie British (Government, wherein Mr. Buciianan contents himself with infjuiring " how far persons in official station, under the British Govern- ment have acted, whether with or without its ajiprobation either in enlUling persons within the U.S. c)r f»((7a(;i/i5r them to proceed thence .) the British provinces for the purpose of being thorc enlisted." (folio (lO.) Here Mr. Buchanan a.ssumes that there can be no ground of complaint unlesi persons had been engaged to jirocecd from the U. S. to the British i)ro?ince8 for the purpose of being there cnli!*ted. He does not pretend to say as Mr. Gushing docs that an invitation to come to Canada is a hiring or retainer within the meaning of the Act of Congress. That was reserved for Mr. Gush- ing to propound, but the discovery is made a little too late for the purposes of this correspondence. As to the words quoted by Mr. Cufhing from the British Act of Parliament, nobody pretends that they would make any difference, and he has merely con- jured \i\> an imaginary argument for the sake of refuting it. Neither does anybody say thot parlies could i)0 lawfully tngaf/rd or retained logo to the British provinces, having an mtention to enlist on their arrival. But it is contended, notwithstanding Mr. Ctishing'a jumble of the three things to- gether, that on engagement or retainer is quite different from an invitation, w ;i 75 However this may be, and if such were the thought of 219 the British Government, it has notheen successfully carried out ; for on the evidence hefore ?n<', hiclurling the general instructions of the British Minister, and his direct corres- pondence with the reeruitinf; oflicers in the United States and others, my opinion is positive, that the parties have made themselves amenable to the penalties of tliu statute, and may be convicted before ; iv competent court of the United States. It is further to be observed, in conclusion of this branch of the subject, that whether the acts of the British Minister and his agents, in recruiting troops within the T'nitod States, do or do not come within the technical provisions of the and althougli he may not perceive the ilifTercnco, it is one which will be pretty generally recognised as well by lawyers ns the public at large. According to Mr. Gushing, if I pay the price of tiie passage of an Kniigrnnt to Canada, knowing that he intends to i-nUst wlieii hi? gels there, I um pay- ing " recruiting money," and it may bo adinitttd tlint in one sense, tliis state- ment is correct, for if the Emigrant enlists in the Uritish armj- the force of Qreat Britain is recruited to tliat extent, ami I liave nidod in sncli recruit- ment. But how, in the name of common seii.'^e, can it be i)retended that I have " hired or retained" the man to go ? Is a penal Statute or any other Statute to 1k) construed in that way? Can it be reasonably supposed that Congress intended to prohiliit such acts, ami yet with the English Statutes before them contented tiiemselvcs with prohibiting in terms acts of liiring or retaining, saying nothing about persuasions or inducements < If Mr. Cusliing's doctrine were correct, it wouhl bo idle to have rules for tiie construction of ■tatutes, and equally idle to attempt to judge of the meaning of Legislative enactments by reference to the words used or the ndschief intended to be re- medied. And any person might be subjected to three years imprisonment for an act innocent in itself, and even laudable. It was correctly stated in the first letters, written by Mr. Marcy and Mr. Buchanan on this subject, that the true object of the Act of Congress was, to maintain the neutral relations of this country with other powers, and it was contended limt such neuiraiity would be compromitted by permitting either perfect eidistnients in the U. S. or incipient enlistments here, /. e. contracts to go uoroa.l for the purpose of being there enlisted. That was the true ground to take, and we may attribute the abandonment of it to Mr. Cushing's unfor- tunate discovery of the passage in Vattel, about enticing subjects away from their allegiance. The misnpplication of this doctrine to Republican America has led to the protracted discussion before us— but for that the matter would, in all probability, have been allowed to rest when the British Government declared that they had not authorized any contracts to be made in the U. S. and would even abandon the practice of inviting enlistments ia the British proviuces, re IlliVl 202 act of Congress, is altogether immaterial to the question of iutcrnatiorial riglit, ns het\ve?n thi;^ government and that of Great Itritain. li\ by inf/rniowi evcf^iann of the h'itet' of a penal statuf,'^ iuteiuled only for private nialelactorB, the Brititih Government shonhl, nevertheless ^'''/y iroops here, the fact of the statute heing thnn dofeateil and trami>led undor f )(>t, woidd serve only to augment the ptihlie \vroii its othcers, civil or military, in tlie Ihitish North American provinces, and to its diplomatic or consu- lar agents in the United States — "You will procet'd to v«he 221 so mani/mn> hi f/t,; Ihntod States; hut rememher that to do so is forbidden hy the municipal law of that country, and i* indictable as a misdemeanor ; you will tliorefore take care to proceed cautiously in this, so as not to incur the penalties of the statute." (i)t)) Such instructions, while they migiit have the ^;//'< ''/ of rai King the froop.^, asdoired by the British (iovernment, without its agents incurring the jienal- tie8 of the statute, would but constitute a more Ihigrant and a5:giavate(l violation of ihe national dignity ami the sove- reiirn rights of the United States, In ti ntli, the ntdtnte in this inattev is of but seeondari/ acumui. The main con- 222 sideration is the sovereign right of tlie Unite 1 States to ex- ercise comjdete and exclu>)ive jurisdic*ii>ii within their own territory; to remain strictly neutral, if they jdease, in the face of the warring nations of Europe ; and ofeouise, nt»t to tolerate enlistments in the country by either of the belhge- rents, whether for land or sea service. If there be local statutes to punish the agents or partie-i to sucli enlistments, it is well ; but that is a domestic (piestion for our considera- tion, and does not concern any foreign government. All which it concerns a foreign government to know is, EiJ cl. rec Pr J. Note 06. — Tills absurdity existe on'y in Jlie mind of Mr. Cusliiii^, and liin must l)c bad ciiKG to maintain when we find hini rompeilpd to resort to 8u<'h astylfi of argumentation. Tiif Hritish Government instead of sayina; " you will prorcpd to laise so many intu in the U. S.," said, you will will take care not to raise any men in the IT. S., hut you arc to inform people there that we invite them lu come to the British provinces to enlist, and you may os- sist such of them as desire to come here, but the\ .imst be under no obliga- tion whatever to enlist on ornviug herj. it! 7T con- ox- own II the .t to i:ge- ocal u'lits, «K'i.i- AU is. 11(1 hii 8U<'h " 50U C! care e Dint ly i>8- bliga- whother we, a<^ a govormn portin't sucli ai'lstment^. It 233 18 bound to ask lUM-miHsioii ofiis hotoro e.>niinLr into our ter- ritory to rainc tt'oopti I'or its own si>rvi(>o. It haw no business to inquire wliutlior lucre bestalutu.-* ou tlio subject or not. (97; Loast of all lias it the ric^ht to take notice of the statutes, only to see how it may derive moans by wliioh to evade them. Instead of this, it is bound not «.iily by everv con- elflcration of international comity, but of the istrictest inter- national law, t(t respect the sovereignty and regard the l)ublic policy of llie United Slates. Accordingly, when, at the coinmencenient of the great European struggle between Kngland and Franco, near the 224 close of the last century, the French Convention assumed to recruit inarine forces in the I'nited States, it was held bv President Washington, and by his Secretary of State (Mr. Jeftersouj, as exiiJained in the correspondence herein- before qiu)ted, lliat, by the law <»f nations, in virtue of our sovereignty, and witliout .9/(;y7>i"/ij7 fo oiad muniripal laws on the suljject, we had iull right to repress and repel fori'ign eidistinents, ami, e converso^ that the attempt to make any such enlistments was an act of gross national aggression <»n the I'nited Slates. 226 When a foreign government, bv its agents, enters into the United States to perform acts in violation of our sove- reignty, and contra I'll to our public ])olicy, though acts not made pemd by municipal law, that is a grave national in- dignity and wrong. If, in a-i 227 to nih'st recruits without rospoct for the loc(j" 'ovrv.-»i^nty, but with earo to avoid or evade tho letter of )u al stntuten, instead of diiuiui^hiiii;, that v/ouM aggravate the injn.tice and the illojLralify of the proceeding in tiie eye of tht; law of nations, and the intensity ot'tiie pnhlie wrong as regards the neutral States thus eoiiverted, without their ermsent, into a recruiting ground for the luinits ot (ireat Hritain. Such instructions wotdd he tlerogatory to the ])id)lic honor in another res[>ect. Tiu'V presume that the United States, without becoming the open ally of (ireat Britain, //.» ferrifon/ for bclUqtrcnt 228 ill. b at thi of ffs Territory jor oetnijerci jxtrpones, while jirofessing neutrality, thus carry on, as already intimated, a dishunorahio war in ilisguise against Russia. ({«^.) It appears, however, that tlut liritish (tovermnent, find- ing it impossible to keen the ranks of its army tilled by voluntary enlistments, and being loath to encoimter the responsibility of a law for conscription, <>r drafts on militia for periodical service of its able-bodied men, or for any other systematic method of raising troops from its own 229 population, introduced into Parliatneiit a bill ontitled " An act Xo permit forclijner.'i to he enli.'itol \\\v\ to serve as otH- cers aiul soldiers in Her Miijesty's forces," but which jm^ i)k fad a hill to authorize the yorernnunt to emjfloi/ agents to carry on recruiting service in the neutral states of Europe and America. (!*l>) The law was earnestly objected to in its progress, as Note 98. — If onlistineiits in tlie U. S. by tla^ Hiitisli Oovernment Imd lieon permitted, it mi^lit linve bccii sniil that tlit> KoveriimoiU of tlia l'. 8, had connivod at tl>c use of its terrilori; for bi'llif^cicnt luirpose."*, but no such com- plaint, could bi' frrourid.-d on tiii! ]>ublic;iti<)n <«f iKlveitisteiiicnts in the U. 8. by the Uiitis.ii Govointnenf, invitin;^ i'nii>?rfttii)i) into the Hritish provinces, of persons desirous of lighting ngainst Itussiu Xute 99. — Tiie liill hero refcrrfd to wjis necossnry to authorize the enlist- nicnt of foreignors in the DritJMh army, for, ulthougii under the political sys- tem of the U. S., foreigners mny hovvo in the armies of tin; Uepub ic (see folio .S09), the Ikitish 8vortlH'lcsi, on the 22(1 of Dtcoin- ber, 1854. (IIuuBanrs Ddnitts, third serieia, vol. 136, passim.) At an oarly duv nfttn* tho p.issniijo of tliM net, measures were trtk(»n to recruit otticers mid in.'ii, for a proposed foreign let was established at Halifax, for thi» rec(»]»tion and enri>biient of recruits; and Mr. Howe, a nientber of the Provincial (Toverinnent, witii 231 other agents, came into the I tiited Statt>s to nudve arrange- ments for C)ifj(iiji)uj and forwardiui^ the )yf'i'uits, ehietly from Ht)ston, New York- and PhihitK-iphia. Subseijuontly, corresponding arrangements were made for collecting and forwarding recruits from tho Western States, by ButValo or Niagara, througli I'pper ('atunhi. (!(''») Tliese acts were connuenced and prosecuted with printed hand-hillK and ct/nr nminfi of adiwtimment. and recruits were collected in depots at New York and elsewlierc, and 232 regularly tran-yxtrtedfo Canada or N^om Scotia, with undis- guised notoriety, as if the United States were still a constitu- ent part of the British Kmpire. Of course they attracted great attention, atul the various measures, whetlier legal or politi- cal, proper to put a slop to them, wore instituted by your direction, through the instrumentality of the foreign or legal departments of the government of the United States. In the course of the investigations which ensued, among the facts broui^ht to light are some in the documents Note 100.— It will bo observed tlint Mr. Cusliing horo asserts that the British agents engnged ami i'orwnriK'il recruits, whilst the fact is tliat there were no rt-rruits nt nil in the U. S.— the persons forwarded were not recruits, not hoving enlisted themselves, timl bein;,' at perfect liberty to decline doing 80, on their anivnl in the Biiiish provinces, nor were luiy "engagements" oiade by or with the persons f.)rwurde.) It is charged by Mr. .Mai'cy that tiu' agents of the l^riti^■h (ioverument did actually hire (n- retji.iit iktsous to go ahroad to enlist in the sense in which tlmse words were used in Mr. Marcy's first letter, (tbljo ,")(!.) lie insists that iiirings and retainiTS were rlfected by int'n who were not irresponsible and unauthorizcMJ persons, but who were the agents of the Dritish (Trovei-nuit'iit. To this it is replied that those agents were otdy authoriz- ed to give inCuruiation, advicr. and a^si: ranee ; tliat they wore not aulhoriziMl to liirr or i-ctain parties lo go abroad; but, on the contrary, were expresssly forbidden to do so, (folio 1>.) These arc the (piestions of fact, and it will be seen that Mr. Marcy is r'early wrong in a-^Miniing, a< lie has done, (folio Il'S) that lb,' Ih-itish (oneruim-nt liavc adndttedthat thev diret'tv'd and authorized tlicir agents to do what could not l)e done witi'ont a vi(dation \A' the law of the ITnited Slates. Hut Mr. Marcy insists. Jsily. That even if the British Go- vernment are not to be hely inviting, pi-rsuading, and assisiiiig resi- detits of the I'nirod States to go abroad with the intention to eidist on their arrivid in the I'ritish Provinces. 2dlv. That even if by those acts the letter of the law lias not been broken, yet it-^ s])iril has been violated and its object defeated ; and, 11 237 82 m^ 23i) <^o ilir inion of a 1 )isti'ict .1 udgc ( Kane,) tliat '• the |ia\ iui'nt of i he passage fmui tiii-' country of a man who iN^ii'o to onli.-t in a t'oi-ciw-n jx.ii,"' doo not conn- 0^1 within thi.- Ai-t. tSe;.' anti' foliti ',•_'.) Antrict .hulge, I Ingt'isoll.) has Laid down ihi- hiw to he that ""any resident of the (nitcd States has a right to go to Halifax M'ith the intrut to \\-\." (l-'.>Ho •_•!.) After Mr. ('n>hing hadgixm his opini(»n, (August IMJi 185."i.) Mr. Marcy jtreM'nud a ih'W vit-w .>t' tin- hiw, i^ec folio 77 ft ^eij.i and liegaii to ''ouiphiin o|' acts the rightful- iiess of w hicii lie had prrviou>ly ri'coM||i/;i'(h (See ivmarks on the rpirif which intluencetl this cniidnct, ante noti s ;50, 30, 87. i)Ai) It has hecn eonteuded ihat the Ihitisji < iii\ ei'iniicnt is not at liherty to drny I lie con>l ruction put upon the act of ( 'on- gre.-s hy the < iovei niiient of the ( iiited States — that the o]>i .ion ottli(> l*re--i(ient is conclusive. It is sutlieient to re[»ly, that if that [r >o.sition eouhl he maintained, th^' agi'uts of a foreign government, when ac- cused by the I're.-ident of violating llic laws of this coun- try, could never d(;nv the truth of the accusation, nor even be pernutted to showthf.t the charge was made iu had faith, 8.3 and for the mere purpose of picking a (juarrel. According to 243 that doctrine, a despotic prince niiglit declare an act per- fectly innocent to 1)(^ a vidlatiou of the nuinieiiial law, and hi:? assertion could in no i-ast; l>e u'ainsaved. The doL-trine is wholly iuadniis.-iihlc. for it is evident that tl le ( [uestion grees fuUv iliscu— I'll, ante. Also, r(Mii;irl.> on the trial of 2U whether the law has heen violated cannot depend entirely on the assertion of the accuser. In ordinary cast -. the opinion of tlie l'ro>\ a foreign government. But in thii controversy we havi\ in the lir>t ii stance, the ofiinion (U the Secretary of State that the true ohici-t and intent of the law of ( "ongrebs was merely to prevent a itrcach of the neutrality which this country desires to ol).-erve hetween belligerents, ami that to constitute u violation ni tliat law tlu're mu>t he eithei- an eidistment within tiie I'nited States, or a contract to go aiiroad lor tiie puriHi-e of Ix'ing enli>led, (fos. 50, »ii>.) Ami t'l the >ame eifect are ihe judicial opi- nions belbi-e (pioted. In oppo^-itioii lo these opinions we h;i\e ihat of ihe At- torney-( Jeiu'ral, U'ojio lM>^,) :z'i\en after the aliove men- 2-t5 tioned letter Iiad bi'.'U wi'itteu and -rut h\ Mi'. Marey to .Mr. ibudianan to Iti' communicated to Lord Clarendon. Si'C till' to the eon--triictioii oi' the act of (Jon- Ilert/, before . I udge Kani\ (folio I •'.) j;;,'! uf W'jigner, be- fore fludge Iiigei'soil, it'ilio •J-J.) It Is (di'arlv too hite for th(> I niied Stages (ii>\ ernmeut lo Contend f>r tin- !;Uitui" the < ni\'i rmneui, if it intended to insist on that di.eiiini' at all, to advise tlie 216 British authoriiies at the outset, that in\'ila;ions to l'oivii:;n- ers to go to Canada, iVe., to enlist, 'vould be resi>t<'d. (See iixft', tols. c>i', tiu. Holes J."*. •'■)", ol, ;.(>. ) It is founded upon the supposed authority of European publici&ta who are speak- 84 247 ing of systems of government wliolly dit}en nt from that of the (Inited States. ViUte! sayss, tha*^ it is a grave otlence to " enticfi away tlie ,^>(l>jedii of another State, '" lie distin- guishes between kidnap[)ors who n«ie violence, and those who have "practi^jd f<('ihic^i<»i oidy f observing, that iis to the latter "it i^i generally thuuglit sutliciei)t to puni^ih them when thev can be detected and caught ;" bnt tiiat as to the former, '*it is usnal to deiuaml a ^^niTi'iider of tl iC delinquents, and to claim th.. otiv' Booh n, cJi. 2, .sv6\ 15. l)e r.-M>.i IS tl lev iiave carried Adopting this doijtrine as being entindy a}tplicable to -48 this republic, Mr. Marcy couten Is, (See fo, \'-\'l, c/.s^/'y,,) that the British (Tovcrnment had no riglit to cali-t men in Hali- fax, who liad lu'-n induced to go fi-om ihj I'nited States to th;;t port i»y promises of high wages. 6cc.. and that, whether such emigraats W(n'e foreigner^ or juitive^ of the l.'nited States, (.See notes 30. 3(), 07, 55, fo, ■j:>5.> So that, according to Mr, Marcy. if one F-iigli-^hman sliould ytersuade or induce another Kiii>:lisliman. r(>si'' (hii'> not go so far as that, but merely asserts tiiat it is an oif>.\iC(! to " entice away the slbjk "rs of another State.'' It is uunece-sary to argue this i{uesti(ni. it being (piiie idain that Mich jiersua- sion or inducement irniy be rightfully oti'ei-ed \y, the ab- sence of any nnniicipal law forhi'hling the same. (See ante, fo. 'M.) There is no such law at ju-esent in the I'aited States, and, as alret-uly observed, (folio 2l.| tiiei-e i- no [)robability of any enactment to that effect, eirher by Congress or by any 250 *^^''^ of tlie State Legislatures. Nor is it pn/oable that any law will ite i>a*sed to pro- hibit any person from [>ersnadiiig. Inducing or " seducing" evi'U citiz'^iis of the I'nited Statt-s, wliefinr naiive or adopt- ed, to leave this country for tin- purpose of engaging in foreign military service. It would be inconsisteiit and ungracious for the Fnited States, (;r ibr any Srate of the Urdon, to nuike it penal to persuade or induce aliens or naturalized citizens to return to their native country. that of offence distin- l tliose that !is punish ut that of ilie carried alihi to /./) that 111 llali- tates to tvhellier I'liiteil H-^hniiiM idoiit ill ' ill tl.c I'-h {HM-- i hiw of s'> i'ai" entice sary to )ersiia- he ah- (See '?. and, iiitv of i'V any to pro- uciiisif,:;:iice. Lord ('iareiidon "s ])erft>etlv li^ht ii; sa^iiiG: that the charge of viohitioii of hiovereign territorial lights, cannot lie fairly urged as a separaU- and different charge I'rom that of violation of (ho niiinii'ii>al law of the irnitecl States. When VoJul asst.-rts that ir is an otfenee agaiut^t tiie law of nations \i\tiii'/cr av.ay the suhjoct.-j of anotiiei-St.-iti'. iu' i^ -•''- assiniiiiig tiie policy of such Stat^' to he toivoti) its sniijects hoiuid to tlicii- allegiance. Jhit in the (nited States no such doctrine ^irevails, "the riglil oi expatriation heing." in the language of the Court of .Vppealsof Kentucky, " a i)ractical and fmidainenial American doclriue." (1* D'fii.<, jHirt -I", rh. o, •'<. 17. and ]\/ii(ifiiiii^ Illdoiij (f the L'iin ,if y,iihh. ^VihHiinn <.I»- rr\-cs, that (h:riiig the wars of the Freneh lievolutiwu, the Tinted ."tate-. jipiH-aling to tlie itrinciples laid vlown hy Vi(U>K />'. ''!. '/'. ^5. •'^vc. it»t-. )»rohi!)ited " the heliigerent pou\'rs from ei-^, cL 6, fn't: 2, as to what are tlie di.iios of neutrals. Also (irofiiix^ />'. '.I. <'/'• IV, The Suj)reme Court of the United States has decided that '' the sending of armed ve:-sels or of munirions of war from a neutral countiy to a heliigerent port for sale as arti- cles of commerce, is unlawful only iis it suhjects the pro- Y- 86 256 256 perty to confiscation or cai)tiire l\y tlio other belligerents." The S(tntis/>r//i(i Trinithul, 7 Whatt. livp., 2S.".. Bynl'ernh(('cl\ in liis treatise on the law of war, snhje 't of "enlisting men in foreign countries and incidentall;' of ex{»atriatioii." lie holds that in tlic absence (if nuiiii<'iital law prohibiting the act, it is perfectly lawful and right to enlist men in a foreign State. A fortiof'i. a State who«c citiz* n-; have the right of ox- l>atriatioii, cannut ctnuphnn if a foreigner merely )iersua tiiem to exercise that rii.hl. Of cnur>e,the State might |»rithibit llie givin',;' of sueli advici", ]>ut legislation of that character w(»ul nat V(> countrv. That is the position avsunu'il liy tli(> (^;vei'nnieut ol' tl; ■ I inte (pu'>tioii. t'oi the tbrmer meant only to assert that it is ;in otl'ence again-t the hiw of luitiou- tor nn individual to di-turlt the doine-.tie pi.iicv n\' a foreiixn State ; whilst Bijuh-. maintai't- that wiieii the policy of a .State is n^it op[)o>( d to the exp.iti'iatioa of it> (•iiizen>. then it !;- lawful to inibu-i' them to Icavi- rheir native country, ami enter into the military service of atiotjici". It is true that no American eould lawt'ully in Knglaud persuade or assist an l-jiglis' nai to go abroad to . It would be al>surd to nuiiutai i, in the [)resent State ^A' the niunicij)al law of the United States, that an Knglishnuui should be subjected to three years imprisonment if he in- 87 gerenta. , devotee ; men in u." He itiiig tlio lien ill a lit of ox- )orsiiU(los till' State "(lation of ! a Slato oiistaiilly »lve liiiii- lat is tlu! •tl Mati'6. cnuntrv uU from '•-. of the HUM- alle- r. NFarov '/./ iind only to l ry. aiitl ■Inu'laini -crve in w it is a service Com. (8 eh. '1-1, State of lisliinan f he in- duced one of his fellow-couutrynien to return home to serve 259 his country. This country cannot reasonahly claim (( ///c;;;o;W// of the riting the Aniericm (h'etriiie of expatriation, hold tliis conntry hound l)y its n-peated atiinnauce <»f it. 260 The doctrine of the Knglish law is <• rlmt natural horn subjects owe an alleuiance which is intrinsic and. perpetual, and which caiimit he divested by any act (vf their own." 1 Hlac. ('(Mil., ;;(1!). Kent says, 2 Knii(tii freipieiitly and i;ra\ely arubject, and concludes that the weiixht of .\merican aulliority is in fav<>r of the Knu'lish doctrine; l>ut adds, "The naturali/;ation laws of the I'nited "261 States are, however, incon-iistent with this i^eneral doctrine, for the\ reipiirc the alien wlio is to be naturalized, to abjure his I'ornier alle^^'innce without reovereic;u has released it." In tlie I a>e of ILnfrll, repofted in Wharton s Statu Trhilft if thi' ['nlttil Stall K, y. 4!>, the defendant was charii'od w itli haviuii' eidisted in a Ireiich pri\atcer, at a time when the I'nited State> were at [leace with Kngland, ami theri' Ava> war between Eti^land and France. The trial took j.lace in the Circuit Court of the I'nited States, 262 at rhiladclphia, in the year 1T1>3, before the passage of any act ot" ( 'ongrcss, res])ectiiig t'orcign enlistments. dudge Wilson, in his cliarge to the (irand .lury, said : That •• a r/'tf'zrii who. in (.tir State of neutrality, and without the authority of the nation, take-, an hostile part with either of the heligerents, violate- tlien'hy his duty, and the laws of his country." It appears that the judge referred to acts done within the 88 >ei 263 jitrisdictioTi of the T'liited States. The iiKlictinoiit cliarp;ocl that tlio (Ic'l'endant was an inhabitant of tho rnitcd States, and that he being a j)rizeniaster on lioard the privateer, did sail to several nuu'itlnie phiees, witiiin tlie Jnrisdielion of the court, to capture English ships, tfcc. All the counts are to the same effect. It was contended by the counsel for the prosecution that tl'e law of nations was part of the law of tlie land, ard that the defeiulant had otfended ai!,ainst the law of nations. That at the time of the eommissio i of the act the defen*ew]iere. and that his family was still in Mas-achu^ctls. The defendant had en- listed in the privateer, at ( harleston. Ilie counsel for the l>rospcution ai'ii'ued as follows, (j), SI): •* Let us su[)pose America enpiixed in war. and that one of lier falthles; children ]ii'efers (ae otlicr ])arty, joins an hostile detachment, which has already inva;ht to leave one country, anil hecime a citizen of another, L', lie has a right to tlist-'Ugage himself entirety iVom the obligations of duty and obedience to the first co\intry, ?>. The act of jraning the other country, of itself, exempts him fiom tho.-i' piima'w ol)ligations, S(» fur the parallel is e,\act. To escape its effect, it may be asserted that a man c;in never lift his haiul against his native country. But then what becomes ot all these rights ( If the slavish doctrine of an unalienable allegiance is admitted, it totally destroys tlie rigl'.t of emigration. Thus, after all this circuit, we are let down where Me began, viz: That the eni'gration from one couTitry, and the reception in another, must be sub- stantially and ilefmitively effected before theaetsof hostility. 265 20'^ 80 Kit IS tilO r;in lion rriiie roys are I 0111 lity. Let it not 1)0 i-jiid tluit this cloctn'm- violates the ri^^hts of 207 mail. It is on the riy-lits of man that it is established," In ehar-i'in*,^ the jury, .liidoe Wilson nbserved (p. 84) tlmt the defendant had admitted that when he committed the act of hostility in <|ncsti(Mi he was a eili/en of the United States. It was at thaf time (says the Jutitce* '• th(\ least of his thoui,dits to expatriate hiniselr.'" The jury retnrned a veriilrrs of t/iaf rhiii'ncd r Inj luilyraiion^ and other acts nianitestiiiu- their iiiteiitinn, and may then heeonie the suhjecth of another power, and free to do whatover the subjects of that [xtwcr niav do. I Jut the laws do notadir.it that the bare commission ofa crime amounts of itself to a divestment of tlie eharactcM- of citixi'ii, and witlulraws the ;>69 criminal from their coercion."' In Tidliof \. Jdnxoii, ,'> l)alli(i), 1 •')•'.'), before the Su]»r(Mne Court of the I'niied Slates, in 1 T!'."), it was held that ''a eaptnrt^ l>y a citi/.(.'ii oi" a neutral state, who sols up an act of expatriation to jiistil'v it, is unlawful, where the removal from his own country was by sailiiii;' contrary to the laws of his country in tin- eapacitv of ;i criiisi.'r au'ainst foreign |iower>.*" riie caiiture was made by a vessel illegally tit- ted out in the I'liited States l)y citizi-iis of the United States, and carrying the tlag ol' tlie l''ren('li Iie[)ublic, being com- missioned as a privati'er. It was contended by Mr. Ingersoll, that the abstract 27<> riirht of individuals to withdraw from the society of which they wert: memlters, was antecedent and superior to the law of society, and recognized by the best writers on pnblic law, and by the nsage (»f nations ; that the law of allegi- ance was derivi'vith the iiioi.U and social (tIditjatidnM ; that thu itDWir :i5,^nnu>(l h the GovoruiniMit of the I'uited States dl' iiatMvali/ini>' aliens h\ an onlli of alh-iilauce to riiis ctuintrv, iiit<. r a temporary residonee. virtually iuiwlivs that o\ir citizens nuiy ln'conu? suhjei'ts of a foroij^u ]H)\vt'r by the same moaii.'. 'I'lie eounxd on llie oiher side etiuci^; d that Idrth ^ave no property t" tlu' nuiu ; that upnn ilu- priiu-ipU^- of the Anu'riean < JoviTuiiu'iii lu' miixht li':ivo his country when 27w lie pleased. pn<\ idcd it wa-i done /> i/id cause and under tlu- rcu'iiiations picscrihcd hv law ; and that he aetnally took up iii-i residence in anotiu'r cnunlry unuer an open and avowed deelaation of hi- intent'on t() settle there. The (pie.->tion w i- no; (U'cided 1»y the ("oiirt. lu the ca^^e of U7V/^///rv. tiied in tlie Ciicuit <'itin't of the United State-^. at llarH'ord. I 7l»!». \VI>"rl,n:.^ Sfat, 7'n"l.^, (tr)2,the defendant, a citizen oi" the Tuiiid ^ t.ite-.was cIi.h'l;- cd with having in the Wision from the Ueouhlic of France, tla'u at war \\it:i reason and 274 p<»liey to jiennit euiig-ratitui. Ihii cur jiolicy is dilfei-ent, for our country is but sparsely settled, and we ha\v! no in- habitants to spare." * "' " ('onsent has bi;en arirned iVom the acts oi' our o;overn- inent, permittiiii;" tlie naturalization of foiiio-ucrs. When a foreigner ])resen^s himself here aim pi-oves himself to lu; of a good moral character well ati'ected to ilm ( 'onstitution and Government of the Uinted Stale-, and a friend to the good order and happiness of civil society, if he lias resided 1 upon tli [lit WftS -M- the iiioi.il ul 1./ the ; iilioiin 1>y ioiii|)oran l»ivth pivo .Ic^ ol' the \\\vy wIkmi witli ;;()(»< 1 ' luw ; jiml ci' c'ouutrv lltOlltioll tu '>\\vt 1)1" the '(tfr ///'//.v, was I'h.ir:^- .'iiiuiiii^sion |ri- cliMuhiiit and l!u' ^('(l liad unt'i'd Ills •11 ■ I dv'i'em'o, ai(l : '• III llicall'^ nf t'a>i'!i and dilflTCMlt. :\\ <.■ lift iii- iv fifovcrn- r,. Wht'H .■If to be liistitittioii lid ti) till! as resided 91 Jiecc the time prostcrihod by law wo ^rixul hiintlm privilcf^e 275 ot a c'lti/,t'ii, \\ o do not iii(|iiin' wiiat his ndafioii is t<» his own coniitrv ; we iiavi' not tin- means ofkiiowiiiir, and tho iiLpiirv would ho indolieato. We k-a/ehini to jud^^^e ot'tluit. If ho ond)arrass("* himself hy contruftini!; contnuiietorv oh- li^nitions, the far.If and the folly are his cnvn, JJi.t this im- plies no ef»nsont of the i^overnment that ouv own citizens should expatriate themselves." This is hut the opinion of a siiiM-Jo Judire on Cireuit. See, Hi to the riii'ht to i^o into f . .ijjn serviee, the opiidon of Chief Ju-tiec Marshall, (pu. M"olio(:>SS\, 27fi .Induce KlIsworilTs opinion in a. ])amphletput forth hy "Mr. Madison's admii • it the time of the imiiressMient dillieidties, now ui ti-!.> .d to have heeii writ- ten 1)V Mr. ilav, then Distriet Attornev of Viru-inia. ul ti''aiif<(' on Ki'j''ifri((fit»), Wl^.^/u'/r/ff>/l, 1x14.) See ll7/;r.>' //^'/n to this case. "'I'lie ^piestion raided in the text, wliethei- a c!t;/en may, in any manner, without the ci>n>ent of his (rovernmeiit, care- ^•ard paid !'V the l^riti-^h (iovei'!im(>nt li> tlie naturalization of ih'itisli >\ Ljeet-i in this eiuntiy. Within a ve.y short j)(« riod the nuitter has heon aii'ain auritated !n the masterly des- |)atch of Ml-, i'uehanan, ai'i>iui:; iVnin ti e deteiilion f»f lier. fj^en and Ivyan. diniiuj;; the late iiisarr.x'tion in Ireland. The claim of the I'liiit'd Stat.'-, for ih • relea->e of the^e parties was foumled on the a--umpiion tliat iis naturalized citizens of this coumry tlu^y wi' -e no liDio-ei- suhjict to the juiasdic- tii>n of iMiiiiand.'" ''The ttMideiu'v of tiii^ puldieiuind in th'-. e )'mti-y is uu- '-"M questionably in favor of the rili'lit of exj)atriat"ion. The ex- travagant extent t'> whieli tiu» doeli-ine ol" p>.:rpeiual alle- giaMe(> ha- been at tinier carrie 1 in Iviniand, the grievances sulfereil by us from the i)raetical 0[)eration ot' the Knglish rule during tin' t;.rly part of this century, and the some- what migrat(»ry habits of oui" i>eojde, liavo rendered the doctrine distasteful : while the apparent inconsistency ^vith our system of naturalization, and the uiuf >rm encourage- uient offered by the Government to eaugration. have been IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I L£|21 12.5 m Ui us 12^ y£ 12.0 m ||'-4 1 1.6 ^ 6" ► n Photographic Sciences Corporation 23 WIST MAIN STRUT WIBSTKR.N.Y. 14S80 (716) •73-4503 ,^^>-^ %' 92 279 thought to prechide its adoption by tlie Courts. It has al- so, as has been seen, been opposed by very high authority in the Cabinet and in Congress." * * * He refers to the common hiw maxim " that no one may throw off his country, or abjure his alle- giance." "This rule," says he, " founded on the feudal re- lation of lord and vassal, stamps upon any one born within the British kingdom so indelibly the character of a British subject, that no act on his part can relieve him from its con- sequent duties." Thlfi doctrine he considers to he adopted, in this co^mtrrj ! -^^ although he admits that the publicists in general speak of the right to leave the State at ])leasuro as a natural riglit. "That the King of England refused to permit the naturali- zation (^f aliens in the Colonies, was one of tlie causes of complaint enumerated in the J)eclaration of Indepondance Before the adoption of the Constitution, two States, Penn- sylvania and Virginia, had provisions in their Constitution, and laws in favor of the right of emigration. These pro- visions were considered as destroying the common law rule. Murray vs. McCarthy ^'1 Munford,'3\)3 ; Joebson \h. Burns. 281 3 Bi7mei/, 83." Mr. Wharton, after referring to tlie opinion of the Su- preme Court of tlio laiited States, in Shanks vs, Dupont, 8 Peters, 2i'2, and in Inglis vs.Trustees of Sailors Snug Har- bour, ib. 99, says : " However distasteful it may have been in a political ])oint of view, we are bound therefoiv now to hold that allegiance does not shift at will, biit is a contract disssoluble oidv bv consent. Nur is it to be dismiised that the repugnance with which this view was visited in tho earlier stages of the lie])ublic, when the conntry was com- 282 posed of nothing else t!ian aliens naturalized or revolution- ized, is now yielding to a more imperial policy." In /Shanks v. Di/pont, •'> Peters, '246, Story, J., delivering the opinion of a majority of the court, incidentally observed that, " Tlie general doctrine is that no person, can by any act of their own, without the consent of the government, put otF their allegiance and become aliens." This case was decided in the year 18JJ0. The question involved was whether the iieirs of a British subject who owned lands 93 has al- litliority maxim lliis aile- [udal re- |i within |i British |i its con- \ouHtrj/ ! 4)euk of ill right, naturaii- auses of ic'iK lance !S, Penn- stitntion, leso pro- law rule. H. Burns. f the Su- iiiug llar- lave been iH) now to , contract lised that (1 in tho .vas com- volution- elivering observed II by any ernment, rhis case lived was ed lands ^n Soutli Carolina in 1794, were entitled to the same by vir- 283 tue of the treaty with Great Britain. The Conrt of Ap])eals in Fventucky, in Alsberry v. Haw- kins, 9 Dana's Rep., 17S, hold (in the year 1839) that, " //* there he no stafiitc retjulation on the fmljeot, a citizen may in good faith abjnre his country, and tluit the assent of the government wan to be presiiiNct/, and ho lie deemed dena- tionalized." 2 Kent's (Join., 49, ?iot,' h. Most writers on pnblic law atHrm the right even of a subject \o abandon his miiive couiilry. Burlamaqui, ch. 5, *•, 13: '• It is ii right natural to all free peoj)le that every one sIiDuld have the libci-ty of re- ^"^ moving out of the Connnouwfaltli if he thinks proper." He adds that, " in general, a man ought not to quit his native ccnintry without tiio [lormission of his sovereign. But his sovereign ought not to refuse it him without very important reasons." Vattel.^ B. 1, ch. 1!>, .v. 22() : "Every man has aright to (juit his country in onU'i- to settle in any other, when by that step he does not endanger the NVcUare of his country." In a note to the 7th American edition, the editor says : " Our laws rerpn're the services of naturalized citizens in time of war, even if the enemy should be their native State; and our government has always resisted all attempts 285 by such State to ]>u)iish them as traitors." (irotias, Bool' •_*, ch. T*, .s. 24, lays down a doctrine similar to that of V^attel. And so I*ufen)'- vire^ without cotn])romisiiig tlie neutrality of his goyern- ment, or diyesting himself of his citizenship. lie also held, 289 that the application of this general principle to the case in hand was not preyented by the treaty of peace between the United States and Spain. This accords with the jpinions recently delivered by Judges Kane and Ingersoll, quoted supm, so that ^ my consider it settled that citizens of the United States : ^ go abroad and enlist in foreign service. But, according to the doctrine sustainod by the federal courts, an Knglishman, who has become naturalized, will be treated as a traitor, if, after I'eturning to his native coun- 290 ^'T ^'^ settle there, he be found in arms against the United States ; and yet the application by Eugland, of the same doctrine, is denounced and resisted hy this government. See Wharton s American Crirn. Laic, 3d ed., page 1)02. " It seems, however, that a foreigner who had a])pliey the United States that iiitei-national law is violated, if tbreigners resident here are invi.ed to return liome to serve their native country. Even in England there is nioro treedoni of speech and action, in this respect, than Mr. Marcy Mould alloM' in this Jiepublic. Any person may put fortli advertisenu-nts in the English newpapers, or uiiike speeches in |)uhlic, recoin- niending tlie foreigners now resident in England to leave that country anil come to tie T'nited States, fur example, for the i)ur|)0?e of enteriners ice ; it would ]»o a mis- demeanor at (Jomnion law to advise or jier-uade him to do so. But the Act of Parlianu'Ut does not make it [lenal to advise or persuade a/<>/v/V/>/rr resident in England toenn'g- rute for the purpose of etdisting in foreign service, nor is it an oli'ence to assist him in the accomplishment of that pur- pose. The Act is a penal one, and would l)e strictly construed, ami acts of advice and assistance wouKl not be treated as acts of hiring or [)rocuring, A:c, No one in England \' ould think of ol»jecting, that either the letter or the spirit of the Act of Parliament would be violated by this cour>e of j)roceedi.ig, although that Act is more rigid in its provisions than the Act of Congress. Nor would it be contended that the sovereign rights of Great Britain would be violated, if agents of this Republic were to 293 294 00 lil'- ¥ 1, 'k^ It. 'i } 295 persuade and assist the foreign residents in England to come to the United States lor any pni'j)ose whatever. Mr. Marcy, not content even with the doctrine, that it is nidawl'ul to invite I'oreignei's to leave the United States, and go into foreign service, intimates that, if an Act of Congress should he passed forbidding any person from leav- ing the United States for the ])nriiose of eidlsting as a soldier within the r>ritish territory, ihen f/tc wrt/v/y// riC the United States army and mivy, although this govern- ment is well aware that the law of luigland [»rohibits them from entering Into foreign nulitarv servic(? ! The upshot of all this is simply that this country is to claim all the bcnetit of a su]»|»osed rule of law which is nevertheless to bu repudiated when any other country in- vokes it. An«l the ji'overnuuMit of the Ignited States is to disregard the laws of other cted in iroveni- s them 11 led ov 97 insisted on, it cannot be improper for the agent of a foreign 299 government to call public attention to the advantages to be gained from the exercise of tliat right by either the tem- porary residents, or naturalized or native citizens. If it be conceived that good policy requires some restraint in this particular, let now laws bo made accordingly. The passage quoted by Mr. Marcy, from Vattel, draws no distinction between the acts of private persons and those of the agents of a foreign government. BynhershoBck^ in his treatise on the law of war, {chap. 22,) considei's, the (juestion, " whether a prince may, in the 300 ten'itory of afriemlbj sovereign, enlist private individuals, who are not soldiers, and make use of them in war against his own enemies." He says ; " It is certain that if a prince prohibits his subjects from transferring their allegancc and entering into the army or navy of another sovereign, such sovereign cannot with propriety enlist them into his service ; but where no such prohibition exists, (as is the case in most of the countries of Europe,) it is lawful, in my opinion, for the subject to abandon his country, immi- grate into another, and there serve his new sovereign in a military capacity. 301 " It is lawful, I rojieat it, if there is no law that prohibits it, for a subject to change his condition and transfer his allegiance from one sovereign to another. The writers on public law are all of this opinion; nor does Grotius dissent from them, but he adds, that expatriation is not lawful among the Muscovites, and we know that it is unlawful also amongst the English and Chinese t" * * * " If it is lawful for a subject to pass under the dominion of another prince, it must be so likewise for him to seek the means for procuring an honest livelihood, and why may he not do it l)y entering into the land or sea service ? 302 In the United Provinces there is certainly no law to prevent it ; and many Dutchmen, formerly, as well as within my own recollection, have served other sovereigns, by sea as well as by land. " When I speak of other sovereigns, I only mean those who are in amity with us." * * * "If, therefore, our subjects, whose assist- lince we do not want in time of war, and who are not pre- 13 98 303 U',.) 304 305 306 vented by any law from transfering tlieir allegiance, may lawfully hire out tlieir military servicer to a friendly prince, why may not also that friendly prince nifiH soldiers in the territoi^y of a friendly nation f Where it is lawful to let out to hire, it is also lawful to hire, and why should it not be equally so to contract for the hiring of Boldioi*s in the territory of a friend, as to make any other^contract and carry on any kind of trade." He answera the objection, that the soldiers thus hired, may possibly be employed against their own sovereign, by saying, " that we are only to attend to the state of our country at the time, and ought not to look so far into futurity. Nor do I see any difference between enlisting men and purchasing gun powder, ammunition, arms and warlike stores, which may certainly be done by a friendly sovereign in our country, and which ho may also use after- wards against us." * * * <' I ani of opinion, therefore, that the same law which obtains as to the pur- chase of implements of war, must apply in like manner to the enlistment of soldiers in the territory of a friendly nation," unless there is a legal prohibition. IIo mentions that there is such a prohibition in the Ihiited Provinces. BynkershcecJc's doctrine is not that enlistments may be made in a neutral country without the ])ernns8ion of the sovereign, but that (if that permission be obtained) the ob- jections often raised to the practice are insuflBcient. Neither of the belligerents can complain of it, if partiality be not shown, and if the practice be not a novel one. Whether Bynkershoeck's opinion be sound or not, no ob- jection can be raised, even by the most captious, against the right to publish advertisements in a free neutral country stating the terms on which foreigners resilient there will, on emigrating to another country be received into the service of any of the belligerents, that is to say, if there be no positive law prohibiting such advertisements. It will perhaps be said that citizens of the United States, whether native or naturalized, should not be permitted to expatriate themselves and enlist in foreign service, because they might be opposed to each other. But this considera- tion will not appear to be entitled to any weight, when we reflect upon the fact that in this republic men from all parts 99 le, may prince, sin the 111 to let d it not I in the act and 18 hired, eign, by of our far into mlisting rins and friendly ise after- opinion, the pur- anner to friendly mentions s'inees. may be ri of the ) the ob- iufficient. )artiality lie. )t, no ob- i, against 1 country lere will, into the " there be 3d States, tnitted to , because ionsidera- when we 1 all parts of Europe arc encouraged to absolve themselves from their 307 allegiances, and uro enlisted in the armies ot the rejmblic, and may indeed be compelled by this government to fight against their native country. Vattel, Book 3, cli. 2, sec. 13, examines tlie question, " whether the proil-ssion of a mercenary soldier be lawful or not^ or whether individuals may, for money or any other reward, engage to serve a foreign prince in his wars r' lie says, '' This question does not to me appear very difficult to bo solved. Thoy who enter into such en- gagements, without tlui express or tacit consent of their 308 sovereign, offend against the duty of subject. But if their sovereign leaves them at liberty to follow their inclination for a military life, they are absolutely free. Now, every man joins himself to whatever society he pleases, and which to him appears to Jiiiu most advantageous, lie may make its cause his own, and espouse its (piarrels." In Tho United iStatcs vs. Wijiujall, it was held by the Su- preme Court of the State of Xew York, in the year 1843, 5 liiWa RqK^ 22, tliat " there is no statute or principle of public policy which forbids the enlistment of aliens into the army of the United States." 309 Per (Jur., p. 22. ♦• It is supposed, however, that inde- pendently of the statute, there is such an imiitness in an alien enlisting in our army, thus obliging himself to fight perhaps against his own country, that tlie act is criminal by tlie law of nations. We were not referred to any pub- licist who has al.. M- ^ :.:i I Hi m:: ' 811 capacity. (See Vattd, B. 1, cA. 19, tieo. 220 ^o 226. Du Ponceau'' 9 Bynkcrtthaick^ chaf. 22, p. 175.) Kinijrratioii, en- liBtment, aud taking tho soldier's outli, is ett'octually a change of allegiance. 'Iliough it do not confer all the rights of citizenship, it is a naturalization quoad hon ; and if the expatriation bo bona Jide, there is nothing contrary either to law or morals in tho soldier lighting against his original country, should a war break out between that and the one into whoso service ho has chosen to enter. Being domiciled in the latter for any purpose, his native country would not, in time of war, discriminate between him and 312 his neighbors. Tho person and effects of each would be alike exposed to the violence and ravages of the conflict, and both would bo equally entitled to defence and protec- tion from his adopted country. Who would deny that un- der such circumstances, he might properly render assist- ance of any kind toward the common defence? But whether he may resist his own country or not, he may enlist in a foreign seiwice, binding himself in general terms and acting accordingly, so long as his country is at peace with the state to which he engages himself. The 313 right to do so much, even without an intent to transfer his allegiance, has always been recognized in practice, and forms a familiar head in the works of publicists. Vattel pronounces it to be always lawful, many times laudable; and he defines the obligations which spring out of the rela- tion thus created. ( Vattel, B. 8, c. 2, .?. 13 and 14.) It has been said that the project of enlisting in the British Provinces emigrants from the United States, was ill con- ceived and impracticable, on account of the material pros- 314 parity of the people of this Republic. On this point the New York Evening Post (March Sth, 185H,) makes the fol- lowing remarks : "It was the most natural thing in the world that when Great Britain wanted soldiers, she should have bethought herself of a country which had sent out so many warlike expeditions against nations with which it was at peace, which abounded with men of a roving, adventurous spirit, and the government of which had so very recently given an example of its contempt for the obligations of neutrali- ty. Here they deemed it easy, by the exercise of a little 101 26. Du itiou, en- tiinlly a all the ,' and if contrary aiiist his thnt and Being country \hn and ronld be conflict, I protec- that nn- jr assist- • not, he I jweneral try is at \\l The mster his ice, and Vattel indable ; the rela- British 1 ill con- I'ial pro8- loint the J the fol- lat when jthought warlike t peace, iiB spirit, ly given neutrali- f a little 315 qwiot dexterity, to collect recruits for thoir ai-my in the East. They tried the ox|)eriinent, and, to tiieir surprise, found those who were onii)loycd in this service watched and prosecuted." The fact is that at this time there were many thousan.ds of able-bodied men in Xew Vork and other large cities of the IJ. S., emigrants from Iroliiiid {iiuKlornmny, out of employ- ment and entirely destitute. And hut for the latitudinarinn construction put upon the act of (Jongrussby tlie Pierce ad- ministration, several regimentb could easily luive been ob- tained in the way i»roi»ose(l. It may be iiure observed that the distress was by no means conHiicd t(» emigrants, tliouidi it was from that class that the recruits weiv expected to 316 come. An unprejudiced en(juirer can scarcely fail, after a care- ful perusal of the correspondence under review, to come to the conclusion, that in no respect wiuitciver can the conduct of the British Goveriiiiu'iit be justly com])laiiied of by the Government of the United States. It even appears doubt- ful whether the complaint has been prosecuted in good faith, for it seems ditticult to escape the conclusion that the real object of the President throughout tlie correspondence has been to pick a quarrel with England, to bo turned to ac- count in the event of a defeat of tlie Allies in the war Avith Russia. If the Allies had been compelled to raise the siege 317 of Sebastopol, and if that luul been followed by the defec- tion of Austria, it is not imj)robable that the United States would have been found enrolled amongst the supporters of Russia. As matters now stand, there is i)nt little probability of a rupture between England and the United States ; but it is evident, from the captious spirit dis])layed by the latter in this correspondence, that the continuance of peace depends upon the question, whether a convenient opportunity shall present itself to this Goverjnnent for joining the enemies of 313 Great Britain. At all events a casus belli will never be deemed wanting by this Government so long as the control of affairs remains in the hands of men who have got up the tissue of absurdities, misrepresentations, quibbles, and inconsiBtencies displayed in the above correspondence. !!'-.f \ 102 f ' ^ 319 The reply, on behalf of the British (4ovornmont, to Mr. Marcy, will probably not follow that gentleman througii all his verbose special pleading. It may bo presumed that Lord Clarendon has not sufticient leisure t(» write a treatise by way of answer to that of Mr. Marcy, and will be content to expose the elaborate fallacies of the latter by reiterating u few i»lain statements of facts and propositions of law. A few words fro»n Mr. Crampton would not bo amiss in relation to the exact period when the now and peculiar doctrine as to seduction and sovereign rights was Hrst broach- 320 ed by Mr. Marcy, and as to the previous conversations be- tween those two gentlemen on the subject ot the proposed enlistments in the British Provinces of foreigners emigrating from the II. S. for that purpose. The withdrawal, or dismissal, of Mr. Crampton a!id the accused Consuls, will by no means settle the questions in controversy. This Government has demanded, ''«« a part of the mt- iafaction due to it from Great Britain, that the men who had been enticed, contrary to law, from the United States 321 into the British Provinces and there enlisted into Her Ma- jesty's service, should be discharged." (Fo. 146.) Indemnity for the past and security for the future, are re- quired. (Fo. 155.) England is required to admit the soundness of Mr. Marcy 's last constiniction of the act of Congress, and the tmsound- ness of hmjirst reading of the same, although this is in ac- cordance with the plain meaning of the act and the judicial interpretation thereof. Next, the soundness of the new point of international law lately discovered by Mr. Cushing, must be admitted. 322 And after doing so, it must be acknowledged by Great Britain that if a law be made in the United States, forbid- ding persons here to go abroad to enlist in foreign service, those persons cannot be enlisted within the British domin- ions without a violation of international law, (fo. 132) but that tha laws of England, forbidding British subjects to en- ter into foreign military service are void, so far as regards the United States, it being competent for the Government of the latter to absolve British subjects from their allegi- ance. lOS rt is (|uito likely that tlioro will bo some sli^lit domiir to all this, liuloed, it may not Iks very rash fo enrmiflo, tiiat if poaco bo i»ro(;laiiiio(l in Kuropo, we shall lintl Iho Tierce •dminiHt ration resting,' content for awhile with the (H^i-Mna- tic triumph which they have achieved by hucIi a vast dis- play of learning and aciitoness, and willing to leave for a more fitting opportunity the task of enforcing a complete submission to these doctriiioa. '.m