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OPINION 
 
 or 
 
 ti f 
 
 
 I 
 
 ii 
 
 ■V 
 
 TI-IE ATTORNEY GENERAL 
 
 
 CONCERNINO 
 
 
 If 
 
 BRITISH rl:cruitment 
 
 IV THK 
 
 UNITED STATES 
 
 • i 
 
 WASHINGTON: 
 
 A. O. p. NICHOLSON, PUBLIC PRINTER. 
 
 1856. 
 
Executive JIansion, 
 
 Washiiif/ton, Arif/ust G, 1855. 
 The reports of the district attorneys of tlie southern district 
 of New York and the eastern district of Pennsylvania, on 
 the subject of the levy of troops in tlie United States by 
 official or other agents of Great Britain, are returned liere- 
 Avith to the Attorney General, and his opinion is re([uired 
 upon the question, Avhether or not the acts reported are in 
 violation of the municipal law and of the national sov- 
 ereignty and neutiality ; and especially upon the question, 
 what legal responsibility, if any, those acts devolve on tlie 
 British minister and British consuls. 
 
 FRANKLIN PIERCE. 
 
OPINION. 
 
 Attorney General's Office, 
 Axujust y, 1855. 
 
 Sir: I huvo the lionor to snlimit herewith the con- 
 siderations of hiw applicable to the enlistment of troops 
 within the United States by the British government, 
 in so tar as the facts appearing in documents before 
 me concern the personal action either of the British 
 minister or of the British consuls in the United States. 
 
 There is no room for doubt as to the law reffardinjr 
 the general question. 
 
 In the first place, the act of Congress of April 20th, 
 1818, contains the following provision: 
 
 "Sec, 2. And he it further enacted^ That if any per- 
 son shall, within the territory or ju.'isdiction of the 
 United States, enlist or enter himself, or hire or 
 retain another person to enlist or enter himself, or to 
 go beyond the limits or jurisdiction of the United 
 States with intent to be enlisted or entered, into the 
 service of any foreign prince, state, colony, district, or 
 people, as a soldier, or as a marine or seaman on board 
 of any vessel of w^r, letter of marque, or privateer, 
 every person so offending shall be deemed guilty of a 
 higii misdemeanor, and shall be fined not exceedin"- 
 one thousand dollars, and be imprisoned not exceeding 
 three years." (iii Stat, at Large, p. 448.) 
 
 Of course, as the levy of troops within the United 
 Stated for foreign service is forbidden by law, no 
 such right has, by your permission, been given to 
 (ireat Britain. To the contrary of this, the British 
 
 1 
 
 li 
 
government was expressly notified, by letter of Mr. 
 .Alarcy to Mr. Crampton of April 28tli, 1854, that no 
 enlistments in the United States would be permitted 
 either to Great iJritain or to Russia. (E.\. Doc 1st 
 session 33d Congress, vol. xii, No. 103, }>. 5.) 
 
 In the second place, independently of the municipal 
 relations of the acts in question, they constitute, 
 whether they be the acts of the British government or 
 of its minister and consuls, a violation of the sove- 
 reignty and of the neutral rights of the United States. 
 
 The rule of public law is unequivocal on this point, 
 and is correctly stated, as follows, by WoUY: 
 
 ''Since the right of raising soldiers is a right of 
 majesty, whicli must not be violated by a foreign 
 nation, it is not permitted to raise soldiers on the 
 territory without the consent of its sovereign." (Jus 
 Gentium, s. 1174.) 
 
 By Vattel: '"As war cannot be carried on without 
 soldiers, it is evident that, whoever has the right of 
 making war, has also naturally that of raising troops. 
 The latter, therefore, belongs likewise to the sovereign, 
 and is one of the prerogatives of majesty." (Vattel, 
 Droit des Gens, liv. 3, ch. ii, s. 7.) 
 
 « 
 
 * 
 
 "As the right of levying soldiers belongs solely to 
 the nation or the sovereign, no person must attempt to 
 enlist soldiers in a foreign country without the permis- 
 sion of the sovereign ; and, even with that permission, 
 none but volunteers are to be enlisted; for the service 
 of their country is out of the question here, and no 
 sov^ereign has a right to give or sell his subjects to 
 another. 
 
 "Whoever undertakes to enlist soldiers in a foreign 
 country without the sovereign's permission, and, in 
 
gener 
 
 •al, wlioever onticos away the subjocts of another 
 state, violates one of the most sacred rights of the 
 j)rincc and tlie nation. This crime is distinguished by 
 the name of kidnapping or man-stealing, and is pun- 
 ished with the utmost severity in every well-regulated 
 state. Foreign recruiters are hanged without mercy, 
 and with great justice. It is not })rcsumed that their 
 sovereign has ordered them to commit a crime; and 
 supposing even that they had received such an order, 
 they ought not to have obeyed it ; their sovereign 
 having no right to command wliat is contrary to the law 
 of nature." * * •"• " Dut if it appears that they 
 acted by order, such a proceeding in a foreign sover- 
 eign is justly considered as an injury, and as a sufficient 
 cause for declaring war against him, unless he makes 
 suitable reparation." (Ibid. s. 15.) 
 
 By Kluber: " A state entirely neutral has the right 
 to exact, even by force, if necessary, that belligerent 
 powers do not use neutral territory for the purposes of 
 war ; that they take not therefrom munitions of war, 
 and provisions and other immediate requirements of 
 war, for their armies ; that tltey do not make there any 
 militarypreparati'ms, enrolments or collections of troops; 
 that none of their troops, armed or unarmed, pass 
 through, &c., &c. ; that they exercise there no act of 
 hostility against the persons or property of the subjects 
 of the hostile state ; that they do not occupy it mili- 
 tarily, or make it the theatre of war." {Droit des Gens 
 moderne de V Europe, s. 285.) 
 
 By G. F. de Martens: ' Whilst, in case of rupture 
 between two nations, a neutral state preserves the full 
 enjoyment of its territorial rights, it can, in the absence 
 of treaties, prohibit during the war, as in time of peace. 
 
 
 \W 
 
 ! i i| 
 
 ^11 
 
It 
 
 G 
 
 any passjirro or sojouni of i\m'\n-n troops, iitul much 
 more lorbirl tlio occiiiiation of its fortresses, the recruit. 
 w(/, ninstoriji<,^ and oxcrcisin,!,' troops; and it may use 
 Ibrco ao-ainst those; wiio shall attempt to violate the pro- 
 hibition." (Precis du Droit des Gens, s, 350.) 
 
 By Galiani: "All ^governments are accustomed to 
 Ibrhid, under capital penalty, any foreigner to make 
 niditary enfragements or recruits within their territory ; 
 in doinrr which they do no more than to sustain and 
 defend a mitural right, and one inherent in every sov- 
 ereignty. ■•' ■"■ 
 
 " The neutral sovereign, who leaves his subjects at 
 liberty to engage themselves in the service of a'lbreign 
 belligerent, will not therein be wanting to his neutml 
 duties, provided it has been customar^r with his nation; 
 if It has been usual in time of peace; if it accords 
 with the physical and political condition of the country; 
 if, in fine, he i)ractices indill'erence and impartiality, 
 not denying to one belligerent what he concedes to the 
 other. But if a sovereign has not been accustomed to 
 allow his subjects to enlist in the military or naval ser- 
 vice of other governments, it may well be doubted 
 whether he may, Ibr the first time, do it on the occur- 
 rence of war between two states, each of which is in 
 amity with him. 1 am not prepared to say that in so 
 doing he gives ecpudity of advantage and 'facilities to 
 both; there might be inequality in the need of the 
 belligerents; for perhaps otw of them, sufcrincj from 
 dejiciency of men, luoiild derive precious and poicerful 
 succor from such permission, while to the other it ivouhl 
 he useless and superfluous. In my opinion, therefore, 
 this question comes within the general rule of essential 
 neutral duties: that is, to continue in the anterior con- 
 dition, it being lawful to persevere in what has been 
 
usual, hut unlawl'ul to inuovato." {Dei hoveri </e 
 Principi Neulrali, p. :j2r», :{27, .'{2!).) 
 
 By Hautc'CcuillL' : " TIk; duties of hcllif^orotitH may bo 
 summed up in very {ii\w words. Tlu! li(illi<-(.re„t ou<,dit 
 to abstain iVom the eniploynicMt of all such indirect 
 means to molest his enemy as, in the accomplishment 
 of their object, would first injuriously nllect a neutral 
 nation. Jb; ou«^ht to respect, in tin; most (;o(ni)lctoand 
 absolute nnmner, the indcjjendem.'c and soverei^-nty of 
 nations at peace; in a word, he ou<;ht to treat them in 
 the same nuinner as if the most profound peace con- 
 tinued to prevail. 'I'iiose nations, in fact, are at peace 
 with him, lullillin<,' strictly their duties of neutrality; 
 tlu'y have the ri<^ht ic enjoy the advaiita^^es of their 
 ])Osition, and to l)e exempt from all the evils of war; 
 the duty ol' the belli<;erent is to al;stain from the in- 
 fringement of this right. Thus neutral territory ought 
 to be held sacred and inviolable by nations at war; 
 these last ought not, on any i)retext, iKjr in any man- 
 ner, to make use of such territory to subserve their 
 purposes of hostilities, directly or indirectly. The j»as- 
 sage of armed troops, the lcvi/iN(/ of eolf/kt\s, &c., &c., 
 without the consent of the sovei-eign, would constitute 
 an oHence against tlie sovereignty (jf the neutral, and a 
 violation of the duty of the beiligerent.'' (Droits et 
 Devoirs des Nations Neutres, torn, i, WVl, olW.) 
 
 "As to the territory of neutral luitions, the occurrence 
 of hostilities makes no change noi- niodilication of their 
 rights: they remain inviolal)le as in time of ])eace. 
 Their territory ought, then, to be sheltered from all 
 enterprises of the belligerents, of whatever nature they 
 may be. The coi:se(|uences of war ought never to be 
 felt by them directly ; that is to say, no act of hostility 
 should be committed against them, under any pretext. 
 
 ' I 
 
 s r 
 
 m 
 
8 
 
 "nelliprcront imtioii.s, in tliis rospoct, liiiv*! only the 
 rights tlioy ixwsesscfl in time of poiico, Ixicauso war 
 never injurifnisly jilVects nation.s iit peace, belligerents 
 cannot, then, in any case, without the perniisnon of tbo 
 sovereign, use neutral territory, I do not say directly, 
 for the operations of war; hut cannot even tnake use 
 of it for any advantage whatever, to the prejudice of 
 their enemy. This pcrnuvsion cannot be granted to 
 them by the neutral without violating his duties. 
 
 "The principle of the inviolability of the territory 
 being admitted, the conclusion, as absolute as the prin- 
 ciple itself, follows: that a belligerent has no right to 
 use neutral territory, in any manner whatever, without 
 the permission of the neutral nation, sovereign of such 
 territory ; and cannot, therefore, levy troops there, and 
 march armies through it, &c., without this permission. 
 "The neutral has the incontestable right to resist 
 every attempt the belligerent may make to use his 
 territory; to oppose it by all the means in his power, 
 and even by force of arms, in the same numner as a 
 citizen has the right to defend his property by all the 
 means placed at his disposal by the law to which he is 
 subject." {Ibid., tom. ii, p[). 48, 49.) 
 
 I do not perceive that this doctrine is explicitly pro- 
 duced ill any one of the books of international law 
 published during the last few years in (Jreat Britain. 
 Possibly their silence on this point may be caused by 
 the policy of their country, which, under the kings of 
 the house of Hanover, has fre([ueiitly relied upon tbr- 
 eign recruits in time of war. However this may be, 
 some of the English works referred to recognise the 
 right of every sovereignty to the exclusive use of its 
 own territory and resources, (Wildinan's International 
 Law, vol. i, p. 64,) but without adverting to the present 
 
u 
 
 hvjrmil conseriunnco of this rip^lil; ; nltliouf^Mi ono of thorn 
 (liscuHscs I'lilly th(; colhitoml ((iiostion, wh<'th(M- ii stiit(» 
 l(),s(!s its iioiitriility by ))i'niiittiti<^ r()roi«,Mi levies, and 
 coiK'Imlcs, properly, that if it bo permitted to ono, it 
 shoidd be perrnitte(l to each, ot the; respective belli^re- 
 rent powers. (Mainiiii^'s Law of Nations, [)k. iii, ch.l.) 
 
 in this eonnexion the same aci-redited English writer 
 considers and confutis the assuni[)tion, crudely and 
 erroneously taken up in (Jreat Britain, that some doc- 
 trine to the contrary of this is lo be found in Vattel ; 
 and, upon an elaborate review of the whole subject, ho 
 concludes thus : 
 
 "Forei<r|, levies may not bo allowed to ono beilioe- 
 rent, while refused to his anta^i,'onist, consistently v/ith 
 the duties of neutrality, '\\1ion treaties, antecedent to 
 war, permit such exclusive ])rivihHn,', theii * * no 
 complaint of breach of neutrality can be maintained by 
 the excluded party. IJut, when no antecedent treaty 
 exists, such a permission would bo n violation of neu- 
 trality, the princii)les of which demand the strictest 
 abstinence from assistance to eitlier party, and, of course, 
 will not admit that exclusive privileges, in so important 
 a particular, shoidc' be -■•ranted to ono beliigeront. Nor 
 have the customs of J'Jurope, derived from the prac- 
 tices of the middle ages, established any usage that pre- 
 vents this question from being settled in accordance 
 with the dictates of reason, or, in other words, with 
 the law of nature." (Manning, ibid.^ p. 180.) 
 
 Mr. Matming s reasoning is conclusive so far as it 
 goes. Ami the imperfection of other English law books 
 in this respect is of no account, as against the general 
 authority of the expounders of international law in all 
 the rest of Christendom. 
 B. 11.— 2 
 
 i i I 
 
 ! M 
 
 ift- 
 
 I - 
 
 A 
 
10 
 
 .Misconstruction has calso boon placed on t]:o fact that 
 Bynkcrslioek maintains tlio ri^lit of* private or volan- 
 tary expatriatit)n, even for the purpose of ibreign mili- 
 tary service. But ho does not express nor countenance 
 the thought that a Ibreign belligerent may recruit sol- 
 diers in a neutral country witliout the consent of its 
 sovereign. On the contrary, ho exhibits in full tlio 
 legislation of the !'• •\.vl iVovinces, according to which 
 it was a capital oHence to make enlistments in tl'o 
 country vvdtnout consent of the States (Jeneral. ( Quct'sf. 
 J/ir. Pnl)U<u\ lib. i, c. Tl.) 
 
 Besides, Great Britain has, in her own legislation, 
 sanctioned i'- J adopted the rule of public "law, by 
 enacting that if any person wdiatcver, within the United 
 Kingdom, or in any part of the dominions of Great 
 Britain, shall hire, engage, retain, or procure, or shall 
 attejnpt or endeavor to hire, retain, engage or procure 
 any person whatever to enlist, or to enter or engage to 
 enlist, as an ollicer, soldier, sailor, or marine, eitlier on 
 land or sea service, for or nnder or in aid of any foreign 
 prince or government, or to go or to agree to go or 
 embark from any place in the British dominions for the 
 purpose or with the intent to be so enlisted, entered, or 
 engaged as aibresaid, eveiy person so oll'en.ding shall 
 be deemed guilty of a misdemeanor, punishable by line 
 or imprisonment, at the discretion of the court having 
 jurisdiction of the act. (Act of 59 Geo. Ill, di. m.) 
 
 \s\\ in the United States, acting in the sense of 
 natural I'ight, and following the rules of public law as 
 explained by the jurists of continental Europe, asserted 
 and established this doctrine at a very early period, in 
 opposition ^o the undertaking of the French govern- 
 ment, through its minister, .AI. Genet, to man or ecptip 
 cruisers within the United States. (Mr. Jefferson to 
 
11 
 
 31. Genet, June 17, 1793. American State Pancrs. For. 
 Air., vol. i, p. 154.) 
 
 And our judicial text-Looks are full and explicit on 
 the same point. (Wlieaton hy Lawrence, p. 498; 
 Kent's Com, lee. G.) 
 
 It is obvious to tlie most sui)erricial reflection, that 
 no distinction of principle exists in the levy of a mili- 
 taiy force in the neutral country, as between the land 
 and sea service; and if (ireat liritain may raise within 
 the United States volunteers i )r her huul service, so 
 Russia may raise them for iier marine service, that L, 
 may lit out privateers in our i)orfs; and, inrleJd if we 
 grant or permit the former privilocro to Great Britain, 
 we must, m like manner, in order to l)e impartially 
 neutral, concede the latter privilege tc Russia. 
 
 And it is equally obvious that foreign recruitino- 
 must not be forbidden or permitted under the inlluence 
 (.1 any assumed national .sympathies or antipathies 
 Individual or national preferences are quite immaterial 
 m such a question. The United States cannot, either 
 lawIuUy or honorably, practice a simulated neutrality- 
 nor can a dissembled alliance be claimed or expected 
 irom us, cither by Great Britain or by Russia 
 
 From the well-established rules and" principles of law 
 then, it is plain to conclude: ' 
 
 1. The acts of enlistment in question are contrary to 
 the municipal law of this country, and indictable as a 
 Jngii misdemeanor. 
 
 1'. Those acts, if permitted to one belligerent, must 
 be permitted to all, in observance of impartial neu- 
 trality. 
 
 3. Being against law in the United States, and there- 
 ore not permitted to Great Britain, if undertaken l)v 
 iH r as a government, they all'ord just cause of war 
 
 I ', 
 
 
 *V,' 
 
 *1 I: 
 
 ;if; 
 
 J '' 
 

 12 
 
 being direct national violation of the territorial sover- 
 eignty of one nation by another. 
 
 4. Whatever agents of the British government, 
 whether official or nnofiicial, acting voluntarily or by 
 orders, have participated in such acts, are not only 
 guilty of a criminal infraction of the statute law, but 
 also, in the language of Vattel, of violating one of the 
 most sacred rights of the nation. 
 
 1 presume that if, in the present case, the British 
 minister 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 com- 
 pletely enlisted in the United States ; that is, did not 
 here in all form enter the military service of Great 
 Britain. That assumption is altogether fiillacious. The 
 statute is express, tliat if any person shall hire or retain 
 another person to go heijond the limits or jurisdiction of 
 the United States, ivt'fk intent to be enlisted 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 neces- 
 sary to constitute the offence. That Avould be mere 
 delusion. The words of the statute are " hire or re- 
 tain." 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 received or not," (Act 59 Geo. Ill, ch. 09, 
 s. 2;) nor wa::- it necessary to insert these words. A 
 party may be retained by verbal promise, or by invita- 
 tion, for a declared or known purpose. If such a statute 
 could be evaded or set at nauglit by elaborate contri- 
 vances to engage without enlisting, to retain without 
 hiring, lo invite without recruiting, to pay recruiting 
 
13 
 
 money in fact, but under another name of board, pass- 
 a<^e money, expenses, or the like, it would be idle to 
 pass acts of Congress for the punishment of this or any 
 other offence. 
 
 However this may be, and if such were the thought 
 of the British government, it has not been successfully 
 carried out; for, on the evidence before me, including 
 the general instructions of the British minister and his 
 direct correspondence with recruiting officers in the 
 United States and others, my opinion is positive, that 
 the parties have made themselves amenable to the 
 penalties of the statute, and may be convicted before 
 any competent court of the United States. 
 
 It is farther 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 
 witliin the United States, do or do not come within the 
 technical provisions of the act of Congress, is altogether 
 immaterial to the question of international right, as 
 between this government and that of Great Britain. If, 
 by ingenious evasions of the letter of a penal statute 
 intended only for private malefactors, the British gov- 
 ernment should, nevertheless, levy troops here, the fact 
 of the statute being thus defeated and trampled under 
 foot would serve only to augment the public wrong. 
 
 Suppose, for instance, that the British government 
 shall have said to its ollicers, civil or military, in the 
 British North American provinces, and to its diploma- 
 tic or consular agents in the United States: "You 
 will proceed to raise so many men in the United 
 States ; but remember that to do so is forbidden by 
 the municipal law of that country, and is indictable as 
 a misdemeanor; you will, therefore, take care to pro- 
 ceed cunningly in this, so as not to incur the penalties 
 
 I i 
 
14 
 
 of tlio statute." Such instructions, while they miglit 
 have the eiFect of raising the troops, as desired by the 
 British government, without its agents incurring the 
 penalties of the statute, would but constitute a more 
 flagrant and aggravated violation * of the national 
 dignity and the sovereign rights of the United States. 
 In truth, the statute in this matter is of but secon- 
 dary account. The main consideration is the sovereign 
 right of the United States to exercise complete and 
 exclusive jurisdiction within their own territory; to 
 remain strictly neutral, if they please, in the face of the 
 warring nations of Europe ; and of course not to tolerate 
 enlistments in the country uy either of belligerents, 
 Avhether for land or sea service. W there be local 
 statutes to punish the agents or parties to such enlist- 
 ments, it is well; but that is a domestic question for 
 our consideration, and does not regard any forei"-n 
 government. All which it concerns a foreign govern- 
 ment to know is, whether we, as a government, permit 
 such enlistments. It is bound to ask permission of us 
 before coming into our territory to raise troops for its 
 own service. It has no business to inquire whether 
 there be statutes on the subject or not. Least of all 
 has it the right to take notice of the statutes only to see 
 how it may revise means by which to evade them. 
 Instead of this, it is bound, not only by every con- 
 sideration of international comity, but of the strictest 
 international law, to respect the sovereignty and rec>-ard 
 the public policy of the United States. 
 
 Accordingly, when, at the commencement of the 
 great European struggle between England and France, 
 near the close of the last century, the French Conven- 
 tion assumed to recruit marine forces in the United 
 States, it was held by President Washington, and by 
 
15 
 
 Ins Secretary of State, Mr. Jefferson, as explained in 
 the correspondence liereinbelbre quoted, that by the 
 law of nations, in virtue of our soverei,i,nity, and with 
 out stoppincr to enact municipal laws on the subject, 
 we had full right to repress and repel forei^rn eiUist- 
 nients, and, e converso, that the attempt to make any 
 :sach enlistments was an act of gross national aggres- 
 sion on the United States. 
 
 When a foreign government, by its agents, enters 
 mto the United States to perform acts in violation of 
 our sovereignty, and contrary to our public policy, 
 though acts not made penal by municipal law, that is a 
 grave national indignity and wrong. If, in addition 
 to this, such foreign government, knowing that ])enal 
 statutes on the subject exist, deliberately undertakes to 
 evade the municipal law, and thus to bailie and bring 
 into disrepute the internal administration of the country^ 
 in such case the foreign government not only violates 
 but in iults our national sovereignty. 
 
 1 repeat, then, that, if it were to be supposed that the 
 British government had so far forgotten what is due to 
 Its own dignity, as to instruct its agents within the ter- 
 ritories of the German Bund, in the Netherlands, in the 
 I lilted States, to enlist recruits without respect for 
 local sovereignty, but with care to avoid or evade the 
 letter of local statutes, instead of diminishing, that 
 would aggravate the injustice and illegality of tbe pro- 
 ceeding in the eye of the law of nations, and the inten- 
 sity of the public wrong as regards the neutral states 
 thus converted, without their consent, into a recruiting 
 ground for the armies of Great Britain. 
 
 Such instructions would be derogatory to our public 
 honor in another respect. They p. , i.me that the 
 bnited States, without becoming the open ally of Great 
 
 ! .•! 
 
 
 ! I 
 
 i 
 
 1 < 
 
 riti" 
 
 Mt. 
 
16 
 
 Britain, will, by conniving at the use of their territory 
 for belligerent purposes, while professing neutrality, 
 thus carry on, as already intimated, a dishonorable war 
 in disguise against Russia. 
 
 It appears, however, that the British government, 
 finding it impossible to keep the ranks of its army 
 filled by voluntary enlistments, and being loth to en- 
 counter the responsibility of a law for conscripton, for 
 draughts on militia, for periodical service of its able- 
 bodied men, or for any other systematic method of 
 raising troops from its own population, introduced into 
 Parliament a bill entitled "An act to permit foreigners 
 to be enlisted, and to serve as officers and soldiers in 
 her Mnjesty's forces," but which was in fact a bill to 
 authorize the government to employ agents to carry on 
 recruiting service in the neutral states of Europe and 
 America. 
 
 The law was earnestly objected to in its progress, as 
 insulting to neutral states and derogatory to the na- 
 tional dignity, but was passed, nevertheless, on the 22d 
 of December, 1834. (Hansard's Debates, third series, 
 vol. 13 G, passim.) 
 
 At any early day after the passage of this act, meas- 
 ures Avere taken to recruit ollicers and men, for a pro- 
 posed foreign legion, in the United States, those meas- 
 ures being publicly pursued under the oflicial responsi- 
 bility of Sir Gaspard le Marchant, lieutenant governor 
 of the province of Novn Scotia. A military depot was 
 established at Halifax for the reception and enrolment 
 of recruits; and Mr. Ilowe, a member of the provincial 
 government, with other agents, came into the United 
 Slates to make arrangements for engaging and forward- 
 ing tlio recruits, chiefly from Boston, New York, and 
 rhiladelphia. Subsecpiently, corresponding arrange- 
 
17 
 
 ments were made for collecting and forwarding remiita 
 from the western States, by Buffalo or Niagara, throu-h 
 Upper Canada. ° 
 
 These acts were commenced and prosecuted with 
 printed handbills and other means of advertisement 
 and recruits were collected in depots at New York and 
 elsewhere, and regularly transported to Canada or Nova 
 Scotia, with undisguised notoriety, as if the United 
 States were still a constituent part of the British em- 
 pire. Of course, they attracted great attention, and the 
 various measures, whether legal or political, proper to 
 put a stop to them, were instituted by your direction 
 through the instrumentality of the foreign or legal de' 
 partments of the government of the United States. 
 
 In the course of the investigations which ensued 
 among the fiicts brought to light are some, in the docu- 
 ments referred to me, which unequivocally implicate 
 not only British consuls, but the British minister him^ 
 self, in the unlawful transactions in question, and so call 
 lor inquiry as to the rights of this government in refer- 
 ence to them and their government. 
 
 In the application of the general rules of law to the 
 off' -ices committed, it is necessary to distinguish 
 between the case of any of the consuls and that of the 
 minister. 
 
 The several district attorneys of the United States 
 within whose jurisdiction, respectively, the cases oc- 
 curred, very properly assumed that the consuls were 
 subject to indictment for infraction of the municipal 
 law, and have proceeded accordingly, prosecutions 
 having already been instituted in the southern district 
 of Ohio against the consul at Cincinnati, and in the 
 southern district of New York against an officer of the 
 consulate of New York 
 
 ^1 
 
 "t, I 
 
 Ml 
 
 
 { '■ 
 
 I 
 
 Fr 
 
18 
 
 Nothing is better settled by adjudication in this 
 country, than tliat foreign consids are subject to crimi- 
 nal process for violation of the municipal laws. (United 
 States i;.9. Ravara, ii Dall., 207; Mamduirdt m Soder- 
 Strom, i Bin., 144; Commonwealth ?\9 KosloH', i 8erg. 
 and li., 545; State vs. De hi Foret, ii Nott and Mc, 
 217.) 
 
 Ihcse adjudications are in e.^act conformity with the 
 law of nations in regard to consuls, as understood and 
 practised not less in Great Britain than in the other 
 states of Christendom. (Sec Opinion, November 4, 
 1854, MSS.; also, Kent's Com., vol. i,p. 44; Wheaton's 
 El. by Lawrence, 305.) 
 
 The only privilege, which a consul enjoys in this 
 respect, in the United States, is that awarded to him by 
 the constitution, of being tried by the federal courts : 
 the effect of which is, that his case remains within the 
 control of the general government, Avhicli may deal 
 with it according to the convenience or the exigencies 
 of its foreign policy, without imi)cdiment from the 
 authority of any of the individual States of the Union. 
 (Const., art. iii, sec. 2; act of September 24, 1 789, sec. 
 0, i Stat, at Large, p. 77.) 
 
 The consul at Cincinnati, as appears by the legal ])ro- 
 ceedings there, snpposcs that ho is entitled to the 
 benelits of certain peculiar stipulations in the consular 
 convention between the United States and France, of 
 February 23, 1853. If it were so, that would not serve 
 him on the main point, because it does not exempt con- 
 suls from the criminal jurisdiction of either of the con- 
 tracting governments. But this convention has no 
 application whatever to the consular relations of Great 
 Britain and the United States. Whether it applies or 
 not to governments with which we have entered into 
 
19 
 
 stii)iiliitions to i>liic'o our respective consuls on the ibot- 
 111- of the most favored nation, is a question as yet suh 
 lite. But there is no stipuliition of tliat nature in exist- 
 ence, as between (Jreat Hritain and the United States 
 Of course, the duties and the ri-hts of American con- 
 suls m Creat JJritain, and of liritish consuls in the 
 United States, stand upon the law of nations, except as 
 the same is modified by their treaties, and by the local 
 law of cither country. The local law of each, as avo 
 have seen, withholds from consuls the diplomatic privi- 
 lege of exterritoriality A British consul, therefore, 
 has no just cause of complaint, if, when charged with 
 iui olfence, he is held amenable to the criminal juris- 
 diction of the United States. 
 
 In addition to those ordinary means of redress in the 
 case of the misconduct ofa foreign consul, is thatafltbrded 
 ))y the law of nations. The Presid(mt of the United 
 States has the undoubted power, in his discretion, to 
 withdraw the exequatur of any foreign consul. To jus- 
 tify the exercisf^ of this power, he does not need the 
 fact of r„ technical violation of a law judicially proved, 
 lie may exercise it for any reasonable cause, whenever' 
 ill his judgment, it is called for l)y the interests or the 
 honor of the United States. (De Clercq, Gitide des 
 Consulats, p. 101.) 
 
 On each of these points provision was made in the 
 commercial convention between the United States and 
 Creat Britain of July 3d 1815, which stipulates that 
 " before any consul (in either country) shall act as such, 
 ho shall, in the usual form, be approved and admitted by 
 the government to which he is sent; and, '' * in case of 
 illegal or improper conduct towards the laws of the gov- 
 mimcnt of the country to which ho is sent, such consul 
 may either be punished according to law, if the law 
 
 ^; 
 
 
 I ' 
 
 f 
 
 i 
 
20 
 
 
 will reach the case, or be sent back ; the oHoiKlcd ^gov- 
 ernment assigiung to the other the reasons ibr the same." 
 (Art. iv.) 
 
 This convention, by its terms, was to subsist only four 
 years. By a subsotiuent convention, that of October 
 20th, 1S1(S, its duration was prorogued ton years, (art. 
 iv;) and afterwards, by the convcMition of August (Jtli, 
 1827, for another ten years, and until denounced by 
 either party on twelve months' notice. 
 
 For the rest, the stipulations of the convention of 
 1815, as continued by the conventions of 1818 and 1827, 
 are but declaratory of the law of nations, as that is un- 
 derstood both in Great Britain and the United States. 
 
 In regard to the minister, it is clear, if he violate 
 the laws of the government to which he is accredited, 
 or otherwise olfend its sovereignty, there is no remedy 
 except in the m.mner and form prescribed by the law 
 of nations. lie enjoys an exemption from judicial pro- 
 cess, which immunity is not so much his right as that 
 of his government. 
 
 It was formerly held in England, as we see in March's 
 case, reported by Rolle, in the time of James I, that, 
 " although an ambassador is privileged by the law of 
 nature and of nations, yet, if he commit any offence 
 against the law of nature or reason, he shall loose his 
 privilege, but not if he ollbnd against a positive law of 
 any realm." (Rolle's R., p. 175.) No such distinction 
 between mala 2>ro1ubita and mala in se, as respects am- 
 bassadors, is now admitted; and their exterritoriality is 
 the unanimous doctrineof all publicists, and is recognised 
 in England, as it is in the United States, by statute. 
 
 The whole question is learnedly discussed by Wild- 
 man, whose views are in accordance with those of 
 Grotius and Bynkershoek, which now prevail through- 
 out Ciiri^-tendom. (institutes, vol. i, p. !M) ) 
 
21 
 
 IJiit t\u) privilo<,'o of exterritoriality is not conferred 
 
 on II public minister an a Hlii(;l(l to crime. h 
 
 or 
 
 any 
 
 ay commit, the remedy varies accord- 
 
 crimes, which lie m 
 
 ing to the nature of the case. 
 
 As to ollences a^^ainst th(? municipal law of the coun- 
 try, committed by a foreij^ni minister, or other person 
 entitled to the privile^a' of diplomatic exterritoriality, 
 we have a statute which declares that any writ or pro- 
 cess against them, issued by any court, is utterly null 
 and void. (Act of Aprd .*](), 17!)U, sec. 25, i Statutes 
 at Large, p. 117.) And this immunity of public minis- 
 ters has been the subject of judicial recognition in 
 several instances. (See United States vs. Hand, ii 
 Wash. C. C. R., 435 ; United States va. Liddle, ibid., p. 
 205 ; exparte Cabrera, ibid., p. 232. See also Wheaton 
 by Lawrence, p. 284 ; Kent's Com., vol. i, p. 38; Opin- 
 ion of Mr. Attorney General Lee, of July 27, 1797.) 
 
 The cases of criminality on the part of a public min- 
 ister may be distinguished into the following classes : 
 
 1st. If the crime committed by the minister alfect 
 individuals only, (ddicta prlvata,) the government of 
 the country is to demand his recall ; and if his govern- 
 ment refuse to recall him, the government of the coun- 
 try may either expel him by force, or bring him to 
 trial, as no longer entitled to the immunities of a min- 
 ister. (Kluber, Droit des Gens, sec. 211 ; Ch. de Mar- 
 tens, Guide Diplomatique, tom. i, p. 88.) 
 
 2d. If the crime allect the public safety of the coun- 
 try, its government may, for urgent cause, either seize 
 and hold his person until the danger be passed, or expel 
 him from the country by force ; for the safety of the 
 state, which is superior to other considerations, is not 
 to be perilled by overstrained regard for the privileo-cs 
 of an ambassador. (Ibid ; see also Kent, vol. i, 38- 
 
1' ill 
 
 22 
 
 schooner Excliaiip^o va. McFad.oii, vii Uruncli, 1 1 C, 1 ;{!».) 
 Indood, it has bcmi liold, in sticli a case, in Kti^diuul, 
 that the olCeiulin^' party may bo jn-oeeedod ii;^niinst 
 ibr treason. " If," it is alllrniod in the case of Rex m. 
 Owen, "iin ambassador compass and intend death to 
 the kin^^'s })orson, in the land where ho is, ho may be 
 condemned and execnted for treason." (Ilex vs. Owen, 
 RuUe's !{., p. 18.S.) Hut that dictum is not in accord 
 with preceth'uts, whicli, in neneral, <?o no further than the 
 
 arrest and conlinemeni, and the eventual or tlieimin(,'diate 
 expulsion, of a public minister, for treasonable acts, or 
 acts dangerous to the security of the state, 
 
 Signal instances of the arrest or summary expulsion 
 of public ministers in such a case, are collected by 
 Bynkershoeic, by \Vic([uefort, by Wildnnin, and by 
 Charles de ^lartens, {Causes Ceh^hrcs.) 
 
 A very modern case of great notoriety is that of Sir 
 Henry Uulwer, who, while British minister at ^[adrid, 
 during the administration of the Duke of Valencia, 
 (General Narvaez,) being detected in complicity with 
 domestic revolutionists, was required by letter of the 
 Duke of Sotomayor, the Spanish Minister of Foreign 
 Allairs, to ipiit Spain immediately, and did so. (Hernan- 
 dez, Esjialia y vl Vlscoiuh Palmersfon, iMadrid, 1848.) 
 
 This incident occasioned a brief interruption of the 
 diplomatic relations of the two governments; but Si)ain 
 stood lirm; and, as Sir Henry Bulwer had acted under 
 the instructions of Lord Palmerston, the British Minis- 
 ter of Foreign Alfairs, the British government, alM- 
 some delay, and the exchange of explanations, conscious 
 that it had been placed in the wrong by Lord Palmer- 
 ston, submitted to send a nov/ minister to Madrid. 
 (Hansard's ]>.^bntcs, third series, vol. H!), ]>. ;M7. ) 
 
 :5d. F.-ur i'j', r the >;i'encc be grave, but not such as to 
 
09 
 
 compromise tlio piiUlic safety, the course of proceed iufr 
 in aoconlance with the law of uath^m, and snnetiouod 
 I'X (liploiiiatie usance, is to (lemaiul the recall of tho 
 minister, and meanwhile to refuse, or not, all further 
 intercourse with liim, accordinrr to the circumstances. 
 The United States have pursued this course in sev- 
 eral instances, of which a memorable one, and exactly 
 pcrtin-iit to the present case, is the demand on Franco 
 fur the rocjill of U. Genet, f,^uilty of enlistments in this 
 (■(Hiiitry without tho consent of its {^'overnmcnt. (Am. 
 State Papers, For. All"., vol. i, No. G5.) 
 
 The i)ublic law and usaj^'o in this respect arc well 
 stated by a modern ]M)<^lish author, who says: 
 
 '' With respect to the dismissal of ministers, it is 
 usual, whci-c the matter admits of delay, first to de- 
 inajid his recall. * "• But this is a mere act of cour- 
 tesy, which cannot be expected on occasions of immi- 
 nent peril. The dismissal of an ambassador on such 
 occasions is not an assumption of jurisdiction, but a 
 measure of self-defence, whicii no one has over denied 
 to be lo.yal in the case of ambassadors. •"' •-• If an 
 ambassador use force, he may be repelled by force. * ^• 
 A\'hen the danjj^er is imminent, an ambassador may bo 
 seized as a public enemy, may be imprisoned, may be 
 put to death, if it be indispensably necessary to our 
 safety." (Wildman, Institutes, vol. i, p. 114.) 
 
 On the whole, tho case of the British minister, 
 regarded in tho li<-ht of established rules of the law 
 of nations, and diplomatic miv^o founded thereon, 
 would seem to resolve itself into, first, a question of 
 strict right; and, secondly, of discretion in the exercise 
 that right. 
 
 It clearly is not a case alfccting the security of tho 
 state, and thus needing or justifying the interposition 
 
 ■■ji 
 11, 
 
 i 
 
 
 ll. 
 
 .j^^^w.^ 
 
M; 
 
 24 
 
 of summary authority, as in the instance of the Prince 
 of Ccllamaro in France, (Ch. de Martens, Causes Celc- 
 hirs, torn, i, p. 139,) Count Gyllenberf]^ in Great Britain, 
 (Foster's Crown Law, p. 187,) and many other cases 
 of historical and legal notoriety or interest. No acts 
 of violence arc imputed to the Ih'itish minister, nor 
 any purpose or act threatening to the national stability 
 of the United States. What is charged against him is 
 conduct improper in a public minister, illegal as respects 
 the municipal law, injurious to the national sovereignty. 
 If sullieicntly shown, it requires to be repressed in such 
 manner as eil'ectively to vindicate the public honor. Of 
 strict right, the President may, as the Queen of Spain 
 did in the case of Sir Ilenry Bulwer, send his passports 
 to the British minister, with intimatioii to leave the 
 country without delay; or he may well, in his discre- 
 tion, adopt the milder course, as President Washington 
 did in tlie case of ]\I. Genet, that is, after allbrding to 
 the British minister opportunity of explanation through 
 the Secretary of State, tlien, if his explanation be not 
 satisfactory, to demand liis recall of the Queen's gov- 
 ernment. The personal esteem, which the British min- 
 ister justly enjoys here in other respects, might counsel 
 the latter course, more especially if the British gov- 
 ernment, assuming the responsibility of his acts, should 
 thereupon proceed to tender, in its own name, com- 
 plete and ample satisfaction for having authorized or 
 permitted such a flagrant wrong, as the systematic 
 attempt to recruit a military force in the United States, 
 by the instrumentality of the lieutenant-governor of 
 Nova Scotia. 
 
 I have the honor to be, very respectfully, 
 
 C. CUSIIING. 
 The President. 
 
i ^ ' 
 
 APPENDIX. 
 
 f ■ 'I- 
 
 I 
 
 
 Attorney General's Office, 
 
 Ilarch 23, 1855. 
 
 Sir : The Secretary of State has referred to me your 
 letter to him of tlie 22(1 instant, enclosing a handbill 
 signed "Angus McDonald," who proposes to recruit 
 soldiers for the military service of the British govern- 
 ment, and advertises a recruiting station for that ob- 
 ject at a place indicated in the city of New York. 
 
 Statements corroborative of this document appear 
 in sundry newspapers of New York. 
 
 It is perfectly clear that any such enlistment is con- 
 trary to law. The act of Congress of April 20, 1818, 
 not only forbids military enlistments in the United 
 States, for a purpose hostile to any country in amity 
 with us, but also by foreign states for any purpose 
 whatever. 
 
 L" the troops recruiting for Great Britain in New 
 York are intended to serve against Russia, the under- 
 taking is in violation of cur licutrality; and, if not, 
 still It is in violation of the sovereign authority of the 
 United Statjs. 
 
 Not long since the consul of the ^Me.xican republic at 
 San Francisco was duly tried and convicted there of 
 this precise oilence, in having enlisted persons in Cali- 
 fornia for the domestic service of his government. 
 
 These views of the present question have been sub- 
 
 mitted to the President, and have his approbation; and 
 
 he accordingly has directed mo to advise you at once, 
 
 lu order to avoid delay, and to desire you to take the 
 4 
 
 I 
 
 f 
 
 H;i'l 
 
 t ■ ! 
 
2U 
 
 |)rop(n- and lawful fitpps, in your discinition, to brinj^ to 
 j)nnislitnont all ])(m\soiih eiigagiul in such onlistmonts 
 witliin youi- district. 
 
 I !uri, v(;ry rospoctfully, 
 
 C. CUSIIING. 
 
 lion. .loiiN M(;Ki;()>f, 
 
 f/'nlti'd iS/(itcn Ailonu'ij, New York. 
 
 Actohnky Gknkhai,'h OrproE, 
 
 Septemhvr 12, 1855. 
 SiFi: In roply to your letter of tlu! lOtli instant, on 
 llu! subject of the indictments j)onding- a.^ainst jjorsona 
 charged with recruiting for the military service of 
 (Jr(>at Hrilaiii, 1 have tlu; honor to make (he following 
 observations: 
 
 Mr. McKeon has been advised of the desirableness of 
 conferring with you personally, either by himself or his 
 assistant, in regard to new evidence; to which ho may 
 have access, and which can be us( I'ul to you, 
 
 1 suggev-t the exi)ediency of trying oidy a part of 
 the cas< .s now, >. specially a yoti fail to convict in some 
 leadii g case. 
 
 Hut the most imj)ortant consideration is this: 
 This gi)vernment has, of course, addressed to that of 
 Creat J>ritain such demands of public redress and satis- 
 faction in the premises as the national honor reipiires. 
 IJnt the government of (h-eat J?ritain, with extraordi- 
 nary inattention to the grave as})cct of its acts, namely, 
 the llagrant violation of t)ur sovercugn rights involved 
 in them, has sup})osed it a suilicicnt justification of what 
 it has done to reply, that it gave instructions to its 
 agents so to proceed as not to infringe our municipal 
 laws ; and it quotes the remark of J udge Kaue in sup- 
 
27 
 
 111 some 
 
 port of tho idn.i that it has Ruccoedorl in this purpose. 
 It irijiy 1)0 Ko : .lud^ro K,i„o j^ ,^„ uprifrht and intelligent 
 judp;, and will pronounee the law as it is, without fear 
 or favor. 
 
 Hilt if the British f,'overnrnont has, by inf^enious con- 
 trivances, succe(!ded in slielt(!rinf,r its ai,rents from con- 
 viction as nialefa,ctors, it has in so doing doubled the 
 magiiitude of the national wrong inflicted on the United 
 
 States. 
 
 This government has done its duty of internal ad- 
 ministration, in prosecuting the individuals engaged in 
 suc-h acts. Jf they are acquitted, by reason of'^a de- 
 liberate undertaking on the part of the British govern- 
 ment not only to violate as a nation our sovereign rights 
 as a nation, l)ut also to evade our municipal laws, and 
 that undertaking shall be consummated by its agents in 
 the Ur.ited States, when all this shall have been judi- 
 cially ascertained, the i^rcsident will then have before 
 liim the elements of decision as to what international 
 action it becomes the United States to adopt in so im- 
 portant a matter. 
 
 I am, very respectfully, 
 
 T n Ar T. G- GUSHING. 
 
 Jas. C!. Van Dykk, E.sq., 
 
 United Slates Attorney, Philadelphia. 
 
 IJIM 
 
 ! ll 
 
 i H 
 
 \ 
 
 Attorney General's Office, 
 
 September 17, 1855. 
 Sir : I desire to make a further suggestion in regard 
 to the trial of parties charged with recruiting soldiers 
 in the United States for the service of the British gov- 
 ernment. 
 
 It is known that instructions on this subject were 
 
 till 
 
 m. 
 
28 
 
 given by that government to its officers in the United 
 States. We are told by Lord Clarendon that those 
 officers had " stringent instructions " so to proceed as 
 not to violate the municipal law; that is, to violate its 
 spirit, but not its letter. If so, the instructions them- 
 selves violate the sovereign rights of the United States. 
 
 But, in the meantime, cverv consul of Great Britain 
 in the United States is, by the avowal of his govern- 
 ment, subject to the just suspicion of breach of law ; 
 while, apparently, he must either have disobeyed his 
 own government, or, in obeying it, have abused his 
 consular functions by the violation of his international 
 duty to the United States. 
 
 In these circumstances, it is deemed highly necessary 
 that the British consul at Philadelphia, or any other 
 officer of the British government, shall not be suiFered 
 to interfere in the trials, as he attempted to do on a 
 previous occasion ; that no letter of his be read except 
 in the due form of evidence; and that if he have any- 
 thing to say, he shall be put on the stand by the de- 
 fence, in order that he may be fully cross-examined by 
 the prosecution. 
 
 It is clear that he has no right, by any rule of public 
 law, or of international comity, to be heard in the case 
 by the court, otherwise than as a witness, whether en- 
 forced or volunteer. 
 
 I have the honor to be, ver''" respectfully, 
 
 C. GUSHING, 
 
 Jas. C. Van Dyke, Esq., 
 
 United States Attorney, Philadelphia. 
 
29 
 
 Attorney General's Office, 
 
 Octoher 20, 1865. 
 
 Sir : I have the honor to acknowledge the reception 
 of your two communications of the 16th and 17th in- 
 stant, in which you inform me of the conviction of 
 Joseph Wagner, accused of the offence of being en- 
 gaged in unlawfully recruiting troops within the United 
 States for the service of Great Britain, and request in- 
 structions as to other indictments of the same class still 
 pending in your district. 
 
 These prosecutions were instituted, primarily, for 
 the purpose of arresting the continued perpetration of 
 acts derogatory to the sovereignty and public honor, 
 and contrary to the neutral policy of the United States! 
 
 The punishment of crime in these, as in all other 
 cases of infringement of statute provisions, of what- 
 ever nature, was an object also, but in these particular 
 cases a secondary one; for the individual misdemeanor 
 of the parties implicated, whether they be citizens or 
 foreigners, and whether private or official persons, is 
 but a minor incident of the national indignity and 
 wrong inflicted on this government by the foreign gov- 
 ernment, in whose behalf and for whose benefit they 
 presume to violate the laws of the United States. 
 
 If, therefore, you find that what has thus far been 
 done by you so judiciously and successfully suffices to 
 maintain the public peace and vindicate the public 
 justice within your district, you w'l make such disposi- 
 tion, as in your discretion seems best, of the remainino- 
 complaints against any persons, who, do not hold an 
 official relation to the British government. 
 
 As to guilty persons of the latter description, whether 
 yet under prosecution or not, their criminal acts stand 
 
 
 I'' 
 
 Ui 
 
 W. 
 
 rA 
 
30 
 
 on a clifFerent ground, and additional instructions re- 
 garding them will be forwarded to you in due time. 
 
 Such persons are not only indictable, in common with 
 all others who violate the law of the land, but they are 
 also violators of the international law, and subject to 
 special consideration by the United States, unless dis- 
 avowed and punished by their own government. 
 
 I have the honor to be, your obedient servant, 
 
 C. GUSHING. 
 
 Hon. John McKeon, 
 
 United States Attorney, New York. 
 
istructions re- 
 in due time. 
 1 cummon with 
 3, but they are 
 md subject to 
 ;es, unless dis- 
 3rnment. 
 ; servant, 
 GUSHING.