Papers Relating to the Foreign Relations of the United States, Transmitted to Congress with the Annual Message of the President, December 2, 1872, Part II, Volume I

[181] *Mr. Gushing, Attorney-General, to the President.

Attorneyz-General’s Office, August 9, 1855.

Sir: I have the honor to submit herewith the considerations of law applicable to the enlistment of troops within the United States by the British government, in so far 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, municipal or international, regarding the general question.

In the first place, the act of Congress of April 20, 1818, contains the following provision:

Sec. 2. And be it further enacted, That if any person shall, within the territory or jurisdiction 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 war, letter of marque, or privateer, every person so offending shall be deemed guilty of a high misdemeanor, and shall be fined not exceeding one thousand dollars, and be imprisoned*not exceeding three years.—(3 Stat, at Large, p. 448.) [182]

Of course, as the levy of troops within the United States for foreign service is forbidden by law, no such right has, by your permission, been given to Great Britain. To the contrary of this, the British government was expressly notified, by letter of Mr. Marcy to Mr. Crampton, of April 28, 1851, that enlistments in the United States would not be permitted either to Great Britain or to Russia.—(Ex. Docs. 1st session 33d Congress, vol. xii, No. 103, p. 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 sovereignty and of the neutral rights of the United States.

The rule of public law is unequivocal on this point, and is correctly stated by Wolff to the effect that, since the right of raising soldiers is a right of majesty, which must not be violated by a foreign nation, it is not permitted to raise soldiers in the territories of a state without the consent of its sovereign.—(Jus Gentium, 747–753.)

The following passages of Wolff are translated, as comprehending the whole question in all its *parts: [183]

Inasmuch as to him who has the right of war belongs the right of enlisting soldiers, consequently the right of enlisting soldiers is intimately connected with the right of war; and as the right of war pertains to the class of rights of sovereignty, the right of enlisting soldiers also pertains to rights of sovereignty.—(Wolff, Jus Gentium, s. 747.)

It is not lawful to enlist soldiers in foreign territory without consent of its government. * * Since it is not lawful to enlist soldiers in foreign territory without consent of its government, if any person presume to do so, he violates the law of nations, and wrongs the local sovereignty; and as this wrong is a crime if committed by an alien, and as aliens guilty of crime in a foreign country are punishable according to the local law, hence, if an alien presume to recruit soldiers in a foreign territory without consent of its government, being apprehended, he may be punished. Whoever recruits troops in a foreign territory against the will of its government, or without the permission obtained, either does it without the knowledge of his own government, or else by its command or its implied *approbation. In the first case, a crime is committed by the individual recruiter, but no wrong has been done on the part of his sovereign; but, in the latter case, since the sovereign whom the recruiter serves, participates in the crime, that sovereign violates the law of nations, and the wrong done by him is to be distinguished from the crime which the recruiter commits. [184]

It often happens that considerations of policy exist, which induce the injured party in such case to dissemble the international wrong, and, therefore, to punish the municipal offense of the recruiter with more severity, as a warning to others. The abstract right of society to punish crimes is infinite and limited to a particular case only by circumstances, among which undoubtedly is consideration of the degree of punishment adequate to prevent repetition of the offense. Hence, inasmuch as capital punishments are lawful, if crime cannot be repressed without them, it is not to be doubted but that they who undertake to levy troops in foreign territory without permission of its government first obtained may be coerced with capital punishment. It is in the highest degree contrary to the public security that an alien should enter the territory of a foreign *country and there levy troops at will, whether he abduct the inhabitants by clandestine force or by mendacious persuasions. Of course, it is neither unjust nor harsh to punish this crime by hanging, as it is not unknown to have been provided in some countries.—(Ibid., 753, 754.) [185]

Kidnaping (or man-stealing) is the surreptitious abduction of a man from the authority to which he is subject. * * * It is man-stealing, or kidnaping, for one government surreptitiously to draw away the subjects of another * * * for its military service.—(Ibid., s. 755, 756.)

Whoever, by fraudulent contrivances, surreptitiously draws the subjects of another government into acts of war, outrages the sovereign power of such government. * * * If this be done by command or permission of a foreign government, the latter is responsible for the wrong; that is to say, it is to be understood as a wrong done by nation to nation.

The magnitude of this wrong fails to be comprehended by those who have no idea, or at least not a clear one, of sovereign rights, and especially of eminent power, and who do not, therefore, rightly appreciate the gravity of any foreign violation of the territorial rights of sovereignty. Even if the *local sovereign have no jurisdiction over the foreigner, still the latter is not for that cause to violate at will rights which are of the sole competency of the local sovereign. If it were otherwise, we should have to concede that any man may do what he pleases against the rights of another if he be not subject to the latter’s authority. How absurd this would be, and how diametrically opposed to natural right, no man can fail to see unless he labors under gross ignorance of all natural right, and has become destitute of all common sense of what he would not have others do to himself. And, for this reason, it is not presumed of any government that surreptitious enlistments for its military service have been carried on in a foreign country with its will, unless that will manifestly appear, or the verified fact shall overcome the contrary presumption. Meanwhile, although the foreign agents who carry on surreptitious recruiting in a country perpetuate this man-stealing by their own sovereign’s authority, they are not the less amenable to animadversion, for they ought not to have obeyed commands of their sovereign which were against natural right, since malefaction *does not cease to be such because perpetuated by command of a superior, nor will the excuse of unlawful obedience to another convert into right what is acquired by malefaction [186] [187]

Since a government inflicts national wrong on another, if by its order or permission the personal or material instruments of war be stolen from the latter for belligerent use, such acts are a just cause of war. * * *

It is not intended to say that whenever the instruments of war, personal or material, have been surreptitiously procured for belligerent use, either by command or by consent of the sovereign in whose behalf it is done, therefore the injured government must of necessity declare war, but only that it may well be received among the justificatory causes of war.

Nor is the cause of war removed, if the guilty agents of the crime shall happen to have been punished. They indeed have suffered the just penalty of the crime they committed: but that does not satisfy the wrong done to the national sovereignty.—(Ibid., s. 758, 759.)

The same ideas are found in Vattel; but he need not be quoted at length, as he does but copy or abridge Wolff.

Kluber says:

[188] *A state entirely neutral has the right to exact, even by force, if necessary, that belligerent powers do not use its neutral territory for the purposes of war; that they do not take there arms, munitions of war, and provisions and other immediate requirements of war, for their armies; that they do not make there any military armaments, either enrollments 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 militarily, or make it the theater of war.—(Droit des Gens modern de l’Europe, s. 585.)

G. F. de Martens says:

While, 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, any passage or sojourn of foreign troops, and much more forbid the occupation of its fortresses, the recruiting, mustering, and exercising troops; and it may use force against those who shall attempt to violate the prohibition.—(Précis du Droit des Gens, s. 30.)

Galiani says:

[189] All governments are *accustomed to prohibit, under capital penalty, any foreigner to make military engagements or recruits within their territory; in doing which they do no more than to sustain and defend a natural right, and one inherent in every sovereignty.—(Dei Doveri dé Principi Neutrali, p. 325.)

The sovereign, who leaves his subjects at liberty to engage themselves in the service of a foreign belligerent, will not therein be wanting to his neutral duties, provided it has been customary 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 practices indifference 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 service of other governments, it may well be doubted whether he may, for the first time, do it on the occurrence of war between two states, each of which is in amity with him. I am not prepared to say that in doing so he gives equality of advantage and facilities to both; there might be inequality in the need of the belligerents; for, perhaps, one of them, suffering from deficiency of men, would derive precious and powerful succor from such permission, while to the *other it would be 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 condition, it being lawful to persevere in what has been usual, but unlawful to innovate.— (Ibid., p. 329.) [190]

Hautefeuille says:

The duties of belligerents may be summed up in very few words. The belligerent ought to abstain from the employment of all such indirect means to molest his enemy as, in the accomplishment of their object, would first injuriously affect a neutral nation. He ought to respect, in the most complete and absolute manner, the independence and sovereignty of nations at peace; in a word, be ought to treat them in the same manner as if the most profound peace continued to prevail. Those nations, in fact, are at peace with him, fulfilling strictly their duties of neutrality; they have the right to enjoy the advantages of their position, and to be exempt from all the evils of war; the duty of the belligerent is to abstain from the infringement of this right. Thus, neutral territory ought to be held sacred and inviolable by nations at war; these last ought not, on any pretext, nor in any manner, to make use of such territory to subserve their purposes *of hostilities, directly or indirectly. The passage of armed troops, the levying of soldiers, &c., &c., without the consent of the sovereign, would constitute an offense against the sovereignty of the neutral, and a violation of the duty of the belligerent.—(Droits et Devoirs des Nations Neutres, torn, i, 312, 313.) [191]

As to the territory of neutral nations, the occurrence of hostilities makes no change nor modification of their rights; they remain inviolable as in time of peace. Their territory ought, then, to be sheltered from all enterprises of belligerents, of whatever nature they may be. The consequences 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.

Belligerent nations, in this respect, have only the rights they possessed in time of peace, because war never injuriously affects nations at peace. Belligerents cannot, then, in any case, without the permission of the sovereign, use neutral territory, I do not say directly, for the operations of war; but cannot even make use of it for any advantage whatever, to the prejudice of their enemy. This permission cannot be granted to them by the neutral without violating his duties.

[192] The principle of the inviolability of the territory *being admitted, the conclusion, as absolute as the principle 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 manner 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., torn, ii, pp. 48, 49.)

By Riquelme:

It is also a violation of the rights of neutrality to entice enlistments in the neutral state, without the authorization of its government; because the right to levy troops is inherent in the national sovereignty. But, on the other hand, a government which grants this authority ceases to be neutral, because it supplies to one of the belligerents the principal element of war.—(Derecho Publico Internacional, tom, i, p. 144.)

Citations to the same effect might be multiplied from the works of the jurists of *continental Europe. [193]

I do not perceive that this doctrine is explicitly produced in any of the books of international law published during the last few years in Great 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 frequently relied upon foreign recruits in time of war. However this may be, some of the English works referred to recognize the right of every sovereignty to the supreme use of its own territory and resources, (Wildman’s International Law, vol. i, p. 64,) but without adverting to the present logical consequences of this right. At least, one of them discusses fully the collateral question whether a state loses its neutrality by permitting foreign levies, and concludes, properly, that if it be permitted to one it should be permitted to each of the respective belligerent powers.—(Manniug’s Law of Nations, vol. iii, ch. i.)

In this connection the same accredited English writer considers and confutes the assumption, crudely and erroneously taken up in Great Britain, that some doctrine to the contrary of this is to be found in Vattel.—(Pendergast, Army Law, p. 44; idem., Navy Law, vol. i, p. 131.)

[194] *The truth is that Vattel, as already stated, maintains unequivocally the doctrine that there can be no foreign recruiting in a country without the consent of its government. He says expressly that all such unlicensed foreign recruiters are kidnapers, and justly “punished with the utmost severity in every well-regulated state.”—(Droit des Gens., liv. iii, ch. 2, s. 15.) Nay, he admits the general rule that the neutral should not furnish assistance to either belligerent.—(Ibid., liv. iii, ch. 7, s. 110.) But Vattel was a Swiss, of Neufchatel, and he labored, in this matter, under the patriotic necessity of extenuating, as he best might, the ignominious capitulations of the Swiss cantons for the supply of mercenary troops to the other states of Europe. But, in this case, he has enough of conscientiousness to say that there must be strict impartiality, or at least contracts of service anterior to the war.

Mr. Manning, in an elaborate review of the whole subject, concludes thus:

Foreign levies may not be allowed to one belligerent while refused to his antagonist, consistently with the duties of neutrality. When treaties, antecedent to war, permit such exclusive privilege, then * * no complaint of breach of neutrality can be maintained by the excluded party. But when no antecedent treaty exists such a permission would be a violation of neutrality, *the principles of which demand the strictest abstinence from assistance to either party, and, of course, will not admit that exclusive privileges, in so important a particular, should be granted to one belligerent. Nor have the customs of Europe, derived from the practices of the middle ages, established any usage that prevents this question from being settled in accordance with the dictates of reason, or, in other words, with the law of nature.—(Manning, ut supra, p. 180.) [195]

Mr. Manning’s reasoning is conclusive so far as it goes. And 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.

Misconstruction has also been placed on the fact that Bynkershoek maintains the right of private or voluntary expatriation, even for the purpose of foreign military service. But he does not express nor countenance the thought that a foreign belligerent may recruit soldiers in a neutral country without the consent of its sovereign. On the contrary, he exhibits in full the legislation of the United Provinces, according to which it was a capital offense to make *enlistments in the country without the consent of the States-General.—(Quœst. Jur. Publici, lib. i, c. 22.) [196]

Besides, Great Britain has, in her own legislation, sanctioned and adopted the rule of public law, by enacting that if any person whatever, within the United Kingdom, or in any part of the dominions of Great Britain, shall hire, engage, retain, or procure, or shall attempt or endeavor to hire, retain, engage, or procure any person whatever to enlist, as an officer, soldier, sailor, or marine, either on land or sea service, for or under 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 aforesaid, every person so offending shall be deemed guilty of a misdemeanor, punishable by fine or imprisonment, at the discretion of the court having jurisdiction of the act.—(Act of 59 Geo. III, ch. 69.)

We, in the United States, acting in the sense of natural right, 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 to the undertaking of the French government, through *its minister, M. Genet, to man or equip cruisers within the United States.—(Mr. Jefferson to M. Genet, June 17, 1793. American State Papers, Foreign Affairs, vol. i, p. 154.) [197]

And our judicial text-books are full and explicit on the same point.—(Wheaton, by Lawrence, p. 498; Kent’s Com., lec. 6.)

It is obvious to the most superficial reflection, that no distinction of principle exists in the levy of a military force in the neutral country, as between the land and sea service; and if Great Britain may raise within the United States volunteers for her land service, so Russia may raise them for her marine service, that is, may fit out privateers in our ports; and, indeed, if we grant or permit the former privilege to Great Britain, we must, in like manner, in order to be impartially neutral, concede the latter privilege to Russia.

And it is equally obvious that foreign recruiting must not be forbidden or permitted under the influence of any assumed national sympathies or antipathies. Individual or national preferences are quite immaterial in such a question. The United States cannot, either lawfully or honorably, practice a simulated neutrality; nor can a dissembled alliance be claimed or *expected from us, either by Great Britain or by Russia. [198]

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 high misdemeanor.

2. Those acts, if permitted to one belligerent, must be permitted to all, in observance of impartial neutrality.

3. Being against law in the United States, and therefore not permitted to Great Britain, if undertaken by her as a government, they afford just cause of war, being direct national violation of the territorial sovereignty of one nation by another.

4. Whatever agents of the British government, whether official or unofficial, 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.

I 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 completely enlisted in *the United States; that is, did not here in all form enter the military service of Great Britain. That assumption is altogether fallacious. The statute is express, that if any person shall hire or retain another person to go beyond the limits or jurisdiction of the United States, with intent to be enlisted or entered into the service of any foreign state, he shall be deemed guilty of the defined misdemeanor. [199]

It is possible, also, that he may have supposed that a solemn contract of hiring in the United States is necessary to constitute the offense. That would be mere delusion. The words of the statute are “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 received or not,” (Act 59 Geo. III, ch. 69, s. 2;) nor was it necessary to insert these words. A party may be retained by verbal promise, or by invitation, for a decared or known purpose. If such a statute could be evaded or set at naught by elaborate contrivances to engage without enlisting, to retain 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 Congress for the punishment of this or any other offence. [200]

However this may be, and if such were the thought of the British government, it has not been succesfully 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 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 United States, do or do not come within the technical provisions of the acts of Congress, is altogether immaterial to 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 government 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.

[201] *Suppose, for instance, that the British government shall have said to its officers, civil or military, in the British North American Provinces, and to its diplomatic 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 proceed cunningly in this, so as not to incur the penalties of the statute.” Such instructions, while they might have the effect 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.

Suppose a foreign government, by circular instructions to its diplomatic and consular agents in the United States, instructs them to organize a system for evading the revenue laws of the country. In such ease would the international injury be any less if the contemplated evasions should be successfully perpetrated? Or, if the government of an adjoining country send hither agents, under the immediate superintendence of its minister, to *counterfeit the coin, circulate base coin, steal, rob, or commit any other offense, with depots on our frontier to facilitate the commission of the crime and utilize its proceeds: Should we be satisfied with the reply, that in all this our laws had been successfully evaded by the careful instructions and ingenious devices of the foreign government and its public functionaries in the United States? [202]

Beyond all this, it would seem that the legal advisers of the British government conceive that the official agents of one nation may rightfully do, within the territory of another, anything which is not by the domestic statutes of the latter declared to be a municipal offense, indictable as such before the courts of law. If such an idea be entertained by the British government or its law-officers, certainly it is a mere delusion, possible to exist only in minds shut up in the narrow sphere of the technical common law of England.

How insular that law is, and how defective the knowledge it imparts even for the purpose of domestic, and still more of foreign, administration, the jurists of England themselves have too frequently had cause to observe.—(See, ex. gr., Phillimore’s Internat. Law, pref., p. xi; Chitty’s Prac., pref., p. v, note.)

[203] Nothing can be plainer than the position that the objects of the municipal law in such a case are domestic only. In constitutional governments it confers on the executive in the particular matter powers which he would not otherwise possess, and it provides the means of repressing all acts of individual persons, whether foreign agents or not, which may contravene the policy or infringe the rights of the country. But the municipal law cannot reach the foreign sovereignty, by whose orders the individuals in question, if public agents, act in violation of the local sovereignty. Yet, is not the foreign sovereign, as sovereign, the chief wrong-doer? And is the wrong to be redressed in no way except by punishing the subordinate agents of the wrong, if there happen to be any municipal law to reach the case? And if there be no such law, is the injury to go unredressed? Clearly not, for governments in their international acts are directly responsible to governments.

[204] But the radical absurdity is in assuming that a foreign government may lawfully do on the territory of another government, or cause to be done, anything whatever, which is not made penal by local statutes. This assumption is altogether groundless. The law of nations is *international, not domestic or municipal; it is the ensemble of international conventions, usages, and received opinions, aided, in case of need, by the doctrines of abstract justice and of universal reason. It is not restricted to the bounds of acts of Parliament or acts of Congress. International right would be reduced to a singular condition indeed if it consisted of those things, and those things only, which, for consideration of internal convenience, Great Britain or the United States may have happened to enact as law by means of their legislative assemblies. It is not so, either affirmatively or negatively. Things are affirmed in their statutes which are not according to the law of nations; and there are many points of international law which have not been affirmed by their statutes. A single pertinent illustration of the latter will suffice.

[205] There are two matters of sovereign right which are alike in character, and are naturally associated in the writings of international jurists, namely, the right to prevent either the transit of foreign troops or the enlistment of soldiers for foreign service. In Great Britain and the United States we have municipal laws to repress and to punish the individual agents, official *or unofficial, of the latter invasion of our sovereign rights; but none to punish or even to repress the former. May it, therefore, be done with impunity? Nay, can it be done without national offense? It may, according to the premises assumed in the other case. If all acts of foreign enlistment may be rightfully done, provided there be no prohibitory statute, and if there be any, then all such as the statute does not reach—of course all acts of foreign military transit may be rightfully performed, and there is the end of the sovereignty of every nation, which does not happen, like Great Britain, to be surrounded by water.

[206] In truth, the statute in all these matters is of but secondary 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 by either of belligerents, whether for land or sea service. If there be local statutes to punish the agents or parties to such enlistments it is well; but that is a domestic question for our consideration, and does not regard any foreign government. All *which it concerns a foreign government to know is, whether we, as a government, permit such enlistments. It is bound to ask permission of us before coming into our own 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 devise means by which to evade them. Instead of this it is bound, not only by every consideration of international comity, but of the strictest international law, to respect the sovereignty and regard the public policy of the United States.

[207] Accordingly, when, at the commencement of the great European struggle between England and France, near the close of the last century, the French government assumed to recruit marine forces in the United States, it was held by President Washington, and by his Secretary of State, Mr. Jefferson, as explained in the correspondence hereinbefore quoted, that by the law of nations, in virtue of our sovereignty, and without stopping to enact municipal laws on the subject, we had full right to repress and repel foreign enlistments, and, e converse, that the attempt to make any such enlistments was an act of gross national aggression on the United States.

When a foreign government, by its agents, enters into 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 penal statutes on the subject exist, deliberately undertakes to evade the municipal law, and thus to baffle and bring into disrepute the international administration of the country, in such case the foreign government not only violates but insults our national sovereignty.

I 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 territories of the German Bund, in the Netherlands, in the United 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 the proceeding in the eye of the law of nations, and the intensity of the public wrong as regards the neutral states thus converted, without their consent, into a *recruiting ground for the armies of Great Britain. [208]

Such instructions would be derogatory to our public honor in another respect. They presume that the United States, without becoming the open ally of Great 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 loath to encounter the responsibility of a law for conscription, for drafts 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 Majesty’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 national dignity, but was passed, *nevertheless, on the 22d of December, 1854.—(Hansard’s Debates, third series, vol. 136, passim.) [209]

At an early day after the passage of this act measures were taken to recruit officers and men for a proposed foreign legion in the United States, those measures being publicly pursued under the official responsibility of Sir Gaspard le Marchant, lieutenant-governor of the province of Nova Scotia. A military depot was established at Halifax for the reception and enrollment of recruits; and Mr. Howe, a member of the provincial government, with other agents, came into the United States to make arrangements for engaging and forwarding the recruits, chiefly from Boston, New York, and Philadelphia. Subsequently, corresponding arrangements were made for collecting and forwarding recruits from the Western States, by Buffalo or Niagara, through 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 empire. 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 departments of the Government of the United States. [210]

In the course of the investigations which ensued, among the facts brought to light are some, in the documents referred to me, which unequivocally implicate not only the British consuls but the British minister himself in the unlawful transactions in question, and so call for inquiry as to the rights of this Government in reference to them and their government.

In the application of the general rules of law to the offenses 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 occurred 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. [211]

Nothing is better settled by adjudication in this country than that foreign consuls are subject to criminal process for violation of the municipal laws.—(United States vs. Ravara, 2 Dall., 297; Mannhardt vs. Soderstrom, 1 Bin., 144; Commonwealth vs. Kosloff, 1 Serg. & R., 545; State vs. De la Foret, 2 Nott and Ma, 217.)

These adjudications are in exact conformity with the law of nations in regard to consuls, as understood and practiced not less in Great Britain than in the other states of Christendom.—(See ante, p. 18; also Kent’s Com., vol. i, p. 44; Wheatou’s Ed. 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, which may deal with it according to the convenience or the exigencies of its foreign policy, without impediment from the authority of any of the individual States of the Union.— (Const., art. iii, sec. 2; act of September 24, 1789, sec. 9, 1 Stat, at Large, p. 77.)

The consul at Cincinnati, as appears by the legal proceeding there, supposes that he is *entitled to the benefits 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 consuls from the criminal jurisdiction of either of the contracting 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 stipulations to place our respective consuls on the footing of the most favored nation, is a question as yet unsettled. But there is no stipulation of that nature in existence, as between Great Britain and the United States. Of course, the duties and the rights of American consuls in Great Britain, and of British 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 either country. The local law of each, as we have seen, withholds from consuls the diplomatic privilege of exterritoriality. A British consul, therefore, has no just cause of complaint if, when charged with an offense, he is held amenable to the criminal jurisdiction of the United States. [212]

[213] In addition to those ordinary means of redress *in the case of the misconduct of a foreign consul, is that afforded by the law of nations. The President of the United States has the undoubted power, in his discretion, to withdraw the exequatur of any foreign consul. To justify the exercise of this power, he does not need the fact of a technical violation of a law judicially proved. He may exercise it for any reasonable cause, whenever, in his judgment, it is called for by the interests or the honor of the United States.—(De Clercq, Guide des Consulates, p. 101.)

On each of these points provision was made in the commercial convention between the United States and Great Britain of July 3, 1815, which stipulates that “before any consul (in either country) shall act as such, he 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 toward the laws of the government of the country to which he is sent, such consul may either be punished according to law, if the law will reach the case, or be sent back; the offended government assigning to the other the reasons for the same.”—(Article IV.)

This convention, by its terms, was to subsist only four years. By a subsequent convention, *that of October 20, 1818, its duration was prorogued ten years, (Article IV,) and afterward, by the convention of August 6, 1827, for another ten years, and until denounced by either party on twelve months’ notice. [214]

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 understood 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 offend its sovereignty, there is no remedy except in the manner and form prescribed by the law of nations. He enjoys exemption from judicial process, 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 embassador is privileged by the law of nature and of nations, yet, if he commit any offense against the law of nature or reason, he shall lose his privilege, but not if he offend against a positive law of any realm.”—(Rolle’s R., p. 175.) No such distinction between mala prohibita and mala in se, as respects embassadors, is now admitted, and their exterritoriality is the *unanimous doctrine of all publicists, and is recognized in England, as it is in the United States, by statute. [215]

The whole question is learnedly discussed by Wild man, whose views are in accordance with those of Grotius and Bynkershoek, which now prevail throughout Christendom.—(Institutes, vol. 1, p. 90.)

But the privilege of exterritoriality is not conferred on a public minister as a shield to crime. For any crimes which he may commit the remedy varies according to the nature of the case.

As to offenses against the municipal law of the country, committed by a foreign minister, or other person entitled to the privilege of diplomatic exterritoriality, we have a statute which declares that any writ or process against them, issued by any court, is utterly null and void.—(Act of April 30, 1790, sec. 25, 1 Stat, at Large, p. 117.) And this immunity of public ministers has been the subject of judicial recognition in several instances. (See United States vs. Hand, 2 Wash. C. C. R., 435, United States vs. Liddle, ibid., p. 205 ex parte Cabrera, ibid., pi 232. See also Wheaton by Lawrence, p. 284; Kent’s Com., vol. 1, p. 38; Opinion of Mr. Attorney-General Lee, of July 27, 1797.)

[216] The cases of criminality on the part of a public minister in may be distinguished into the *following classes:

1st. If the crime committed by the minister affect individuals only, (delicta privata,) the government of the country is to demand his recall; and if his government refuse to recall him, the government of the country may either expel him by force or bring him to trial as no longer entitled to the immunities of a minister.—(Kluber, Droit des Gens, sec. 211; Ch. de Martens, Guide Diplomatique, torn. 1, p. 88.)

2d. If the crime affect the public safety of the country 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 periled by overstrained regard for the privileges of an embassador.—(Ibid.; see also Kent, vol. 1, p. 38; Schooner Exchange vs. McFadden, 7 Cranch, 116–139.) Indeed, it has been held in such a case in England that the offending party may be proceeded against for treason. “If,” it is affirmed in the case of Bex vs. Owen, “an embassador compass and intend death to the King’s person in the land where he is, he may be condemned and executed for treason.”—(Rex vs. Owen, Rolle’s R., p. 188.) But that dictum is not in concord with precedents, *which, in general, go no further than the arrest and confinement and the eventual or the immediate expulsion of a public minister for treasonable acts or acts dangerous to the security of the state. [217]

Signal instances of the arrest or summary expulsion of public ministers in such a case are collected by Bynkershoek, by Wicquefort, by Wildman, and by Charles de Martens, (Causes Célèbres.)

A very modern case of great notoriety is that of Sir Henry Bulwer, who, while British minister at Madrid during the administration of the Duke of Valencia, (General Narvaez,) being detected in complicity with domestic revolutionists, was, after his recall had been respectfully requested of the British government and refused by it, required by letter of the Duke of Soto in ay or, the Spanish minister of foreign affairs, to quit Spain immediately, and did so.—(Hernandez, España y el Viseonde Palmerston, Madrid, 1848.)

The incident occasioned a brief interruption of the diplomatic relations of the two governments; but Spain stood firm; and, as Sir Henry Bulwer had acted under the instructions of Lord Palmerston, the British minister of foreign affairs, the British government, after some delay and the exchange of explanations, conscious that it had been placed in the wrong by Lord Palmerston, *submitted to send a new minister to Madrid.—(Hansard’s Debates, third series, vol. 99, p. 347.) [218]

3d. Finally, if the offense be grave, but not such as to compromise the public safety, the course of proceeding in accordance with the law of nations, and sanctioned by diplomatic usage, is to demand the recall of the minister, and meanwhile to refuse, or not, all further intercourse with him, according to the circumstances.

The United States have pursued this course in several instances, of which a memorable one, and exactly pertinent to the present case, is the demand on France for the recall of M. Genet, guilty of enlistments in this country without the consent of its Government.—(Am. State Papers, For. Af., vol. 1, No. 65.)

The public law and usage in this respect are well stated by a modern English author, who says:

With respect to the dismissal of ministers, it is usual, where the matter admits of delay, first to demand his recall. * * But this is a mere act of courtesy, which cannot be expected on occasions of imminent peril. The dismissal of an embassador on such occasions is not an assumption of jurisdiction, but a measure of self-defense, which no one has ever denied to be legal in the case of embassadors. * * If an *embassador use force he may be repelled by force.* * When the danger is imminent, an embassador maybe seized as a public enemy, may be imprisoned, may be put to death, if it be indispensably necessary to our safety.—(Wildman, Institutes, vol. 1, p. 114.) [219]

On the whole, the case of the British minister, regarded in the light of established rules of the law of nations and diplomatic usage founded thereon, would seem to resolve itself into, first, a question of strict right; and, secondly, of discretion in the exercise of that right.

It clearly is not a case affecting the security of the state, and thus needing or justifying the interposition of summary authority, as in the instance of the Prince of Cellamare in France, (Oh. de Martens, Causes Célébres, torn. 1, p. 139,) Count Gyllenberg in Great Britain, (Foster’s Crown Law, p. 187,) and many other cases of historical and legal notoriety or interest. No acts of violence are imputed to the British minister, nor any purpose or fact 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 sufficiently shown, it requires to be repressed *in such a manner as effectively to vindicate the public honor. Of strict right the President may, as the Queen of Spain did in the case of Sir Henry Bulwer, send his passports to the British minister, with intimation to leave the country without delay; or he may well, in his discretion, adopt the milder course, as President Washington did in the case of M. Genet; that is, after, affording to the British minister opportunity of explanation through the Secretary of State, then, if his explanation be not satisfactory, to demand his recall of the Queen’s government. The personal esteem which the British minister justly enjoys here in other respects might counsel the latter course, more especially if the British government, assuming the responsibility of his acts, should thereupon proceed to tender, in its own name, complete 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. [220]

I have the honor to be, very respectfully,

C. CUSHING.

The President.