[521] *Attorney-General Cushing to the President
May 27, 1856.
Sir: I deem it incumbent on me to bring to your notice sundry passages in official communications of the British minister, Mr. Crampton, to his government, as they appear in the “papers relative to recruiting in the United States,” recently presented to Parliament, which contain palpable errors of statement touching me personally or my official action as Attorney-General.
1. In a letter to the Earl of Clarendon, of the 19th of November, 1855, in commenting on Mr. Marcy’s letter to Mr. Buchanan, of the 15th of July, 1855, Mr. Crampton assumes that the British consuls, implicated in illegal enlistments in the United States, were prevented, by the tenor of my instructions to the district attorney of Philadelphia, from testifying to their alleged innocence. (Papers ut supra, p. 128.) That statement is not true.
The district attorney was instructed to object to any attempt of the British consul to do what he had undertaken on a previous occasion to do, that is, to interfere in the trials by officious letters, written for the purpose; but, instead of being forbidden, it was expressly suggested that he should appear as a witness.
[522] *It is obvious that it cannot be admitted that a person, who deems himself inculpated by judicial proceedings, be allowed to interpose in the trial by mere letters of denial or ex parte explanation. He has no right, in law or courtesy, to any such privilege. If he desires to be heard, he must appear in a legal manner, that is to say, as a witness, in order that he may be examined so as to elicit the truth.
The British consul at Philadelphia might have volunteered as a witness [Page 638] in the case of Hertz, if he had seen fit. He ought to have done so, if his testimony, lawfully given, could have proved anything material, either to the prosecution or the defense.
There was nothing extraordinary in this particular matter, except the presumption of a foreign consul in supposing that he might interfere by volunteer letters, to affect the course of criminal justice in the United States.
2. [523] In Mr. Crainpton’s letter to the Earl of Clarendon, of November 27, 1855, it is alleged that the proceedings against Hertz and others, in Philadelphia, were instituted, not against the persons who were ostensibly arraigned, but against the British diplomatic and consular *agents in the United States. (Ubi supra, p. 134.)
That is incorrect. The proceedings were commenced in March, 1855, when no suspicion was entertained by this Government of the relation of Mr. Crampton and of British consuls to the illegal acts in question. It is true, however, that among the objects expected from and accomplished by the trial, was the legal ascertainment of facts alike important to the British government and that of the United States.
3. In these same letters Mr. Crampton says that, at the time of the trial referred to, (September 21, 1855,) “the United States Government must have known that all recruitment, legal or illegal, had been put a stop to several weeks before.” (Ubi supra, p. 134.)
That is a mistake. This Government knew nothing on that point, at that time, except what Lord Clarendon had said in his letter to Mr. Buchanan of July 16, 1855, namely, that the British government had sent orders to put an end to “all proceedings for enlistment.”
[524] Lord Clarendon did not mention when the orders were sent; nor does the context of his letter show whether the orders spoken of applied to the United States only, or also to British America. At what time those orders took effect, *to whom sent, and their exact scope, did not then appear of public notoriety, and was never communicated to this Government.
This Government well knew that recruitments took place in August; it did not know that they had ceased in August. So soon as it had satisfactory information of their cessation, instructions were given to desist from all further judicial proceedings, except against official agents of the British government. (Letter of the Attorney-General to Mr. McKeon, of October 20, 1855, ubi supra, p. 129.)
4. In the same letter Mr. Crampton says that the United States Government must have known that the proceedings of Hertz were, from the moment he attempted to enter upon a system of recruitment, disavowed by Her Majesty’s officers.” (Ubi supra, p. 136.)
This is not so. This Government knew the contrary of what is thus alleged. It knew that Mr. Crampton had corresponded with Hertz. (Ubi supra, p. 67.) It also knew that Hertz was officially employed and paid by Mr. Howe, as the latter has since declared on oath. (Ubi supra, p. 218.)
5. [525] In his letter to the Earl of Clarendon, of March 3, 1856, Mr. Crampton assumes that he *and the inculpated consuls were the real parties defendant, and then proceeds to argue on the further assumption that they were prohibited from appearing in their own defense. (Ut supra, p. 178.)
I have already commented upon and corrected the error of fact involved in these assumptions, in so far as regards the consul.
As to Mr. Crampton, he also could have offered his testimony if he [Page 639] had pleased. If he suggest that considerations of diplomatic dignity would prevent this, the reply is, that considerations of diplomatic dignity should have prevented his engaging in association with persons, now said by him to be of equivocal character, in the systematic violation or evasion, for a period of nearly six months, of the municipal law of the United States.
He well knew in April that persons, in the actual pay of his government, were under prosecution in Boston, New York, and Philadelphia, and should then have anticipated that his name would eventually come in question before the courts of justice, all the personal annoyance and other inconveniences of which he encountered voluntarily, and with no right now to complain of the consequences.
[526] *For the rest, the law of nations, it is true, exempts Mr. Crampton from trial for misdemeanor; but it is idle for him to suppose that his hired agents in the commission of the misdemeanor, who are not themselves invested with diplomatic privilege, were to have it accorded to them otherwise, or that his participation in the acts perpetrated should not come under observation in a court of justice without his being able to appear directly as defendant on the record.
6. In the same letter Mr. Crampton repeats the erroneous statement that the consuls were not allowed to be heard on the trial of Hertz.” (Ut supra, p. 179.)
I have already remarked on this point. I add, that on the trial of Wagner in New York, pains were taken to obtain the evidence of the active official agent of enlisting there, Consul Barclay’s deputy, Mr. Stanley, but without success.
7. In the same letter Mr. Crampton reproaches the “law-officers of the United States” for resorting to the aid of “spies and informers” for the proof of facts. (Ut supra, p. 179.)
[527] Those are designations of mere prejudice applied by Mr. Crampton to his own paid agents and accomplices in the violation of the laws of the United States.*It is a very strange complaint to make against the “law-officers of the United States.”
Crimes are not to go unpunished merely because the only attainable witnesses of the crime were accomplices in its commission. If such evidence were excluded, it would be impossible to administer penal law. Its employment belongs to the ordinary course of law in Great Britain, as well as in the United States.
The complaint is the more groundless in this case, since the offense which the parties had committed, and in the commission of which they acted under orders and with pay, proceeding in the first instance from the British ministers, was not of a nature to affect the credibility of the parties as witnesses. Notwithstanding their participation in illegal recruiting, they were competent and credible witnesses, morally, and also by the rigorous rules of law.
I omit all remarks on the captious commentary which Mr. Crampton makes in the same letter respecting the judicial proceedings in the trial of Hertz. That is diplomatic matter. My present object is only to speak of those passages in Mr. Crampton’s dispatches in which he attacks the Executive Government by reflections on the Attorney-General.
*8. [528] In the same letter Mr. Crampton criticises a remark made in Mr. Marcy’s letter to Mr. Buchanan of the 28th of December, to the effect that whoever entices away the subjects of another state for military purposes, and without its consent, violates its sovereign rights; and he founds the criticism upon the assumed authority of the original [Page 640] text of two writers on the law of nations, who are cited by Mr. Marcy, namely, Christian de Wolff and Vattel.
As the same authors, and to the same effect, have in another document been cited by rue, it may not be improper for me here to say that the error in this matter is on the part of Mr. Crampton. He assumes that the word “debaucher” in Vattel, is incorrectly rendered in the received English translation, “entice away,” and alleges that the idea intended is “kidnaping,” which he infers from the use by Vattel, in the context, of the word “plagiat” with equivalent sense, and as the corresponding Latin word “plagium” is used by Wolff.
[529] What Mr. Crampton impliedly asserts in this criticism is, that though it may be contrary to the law of nations to enter the territory of a foreign government and seize recruits there by force, yet that it is lawful to enter that *territory and entice them into foreign military service, without the consent of the state, provided it be done by pecuniary or other inducements.
The misconception of Mr. Crampton in this respect becomes manifest by reference to the text of Wolff, which is copied and abridged, and thus rendered obscure, by Vattel.
It is perfectly clear that Wolff intends by the word “plagium” to cover all the possible means of obtaining recruits in a foreign country without consent, and especially enticement, because, in the passage in which he defines “plagium” and gives illustrative examples, he expressly includes acts of mere persuasion or enticement, and also includes reference’ to such enticement in contravention of the authority of the state.
Mr. Crampton’s error in this respect would have been avoided if he had read and quoted the whole of the material passage in Wolff.—(Jus Gentium, sections 785, 756.)
But the most important error of fact which Mr. Crampton commits in this correspondence, relates to the order of the British government for the cessation of recruiting in the United States.
[530] *In a letter to Lord Clarendon of March 3, 1856, he says:
A new charge is now brought up against us, which is not alluded to in Mr. Marcy’s dispatch of December 28, to the effect that, though we promised to stop the recruitment by your note of July 16, we still continued it. I can disprove this by documentary testimony.—(Papers, ut suqra, p. 212.)
In a letter to Sir Gaspard Le Marchant of January 13, 1856, Mr. Crampton writes:
There is one story which I want your assistance in demolishing.
I know the assertion to be false, but I wish to have it under your hand that it is so, as far as you are concerned.
Mr. Cushing openly asserts that he knows, and can prove, that we—you and I—went on with the recruitment long after Lord Clarendon said we had been ordered to stop it.
[531] Now, how are the facts? Lord Clarendon announced this to Mr. Buchanan in a note dated the 16th of July, a copy of which I received somewhere about the 2d of August. I immediately telegraphed to Lieutenant Preston to break up his station at Niagara, and not receive another man. I know he obeyed. People who were ready to start *from New York were stopped. I also lost no time in communicating with you, in case you should not have heard from home.
As there were no other places where recruits could be received but Niagara and Halifax, all we want is the dates at which the last man was received from the United States.—(Ut supra, p. 232.)
Here is exquisite confusion of thought and of statement.
It is immaterial to inquire whether I ever asserted anything of the nature imputed. Certain it is that I can prove it, by the testimony of two competent witnesses, Mr. Crampton and Sir Gaspard Le Marchant.
The statement imputed to me is, that the recruitment went on “long [Page 641] after Lord Clarendon said we (Mr. Crampton and Sir Gaspard Le Marchant) had been ordered to stop it.”
Mr. Crampton expressly refers, in his letter to Sir Gaspard, to Lord Clarendon’s letter to Mr. Buchanan of the 16th of July. I suppose he alludes to that in the phrase quoted, “Lord Clarendon said we had been ordered.” But Lord Clarendon does not say that. He says, “Instructions to that effect were sent out,” but does not say when they were sent, nor that they were sent to Mr. Crampton and Sir Gaspard Le Marchant.
[532] *Nothing particular was known by me in January, 1856, of those orders, nor to whom they were sent. Of course, I did not speak of them as having been addressed to Mr. Crampton and Sir Gaspard.
No direct official knowledge of them came under my eye until they were referred to in Lord Clarendon’s recent letter to Mr. Dallas, in which it is stated that the British government “sent out to Canada and to Nova Scotia, on the 22d of June, 1855, orders to discontinue all further proceedings in the matter of enlistment for the foreign legion.” But here, again, it is not said that orders on the subject were sent to Mr. Crampton.
I previously knew, however, from other sources of information, that orders had issued to somebody under date of June 22, 1855; and if I ever said anything on that subject of the nature imputed by Mr. Crampton, it must have been that the recruitment continued long after it ought to have ceased in prompt or due execution of the orders described by Lord Clarendon. And the fact is so.
[533] Orders to stop recruiting in the United States, dated in London, the 22d of June, should have reached Halifax the 5th of July, and Washing*ton the 8th of July, by the Canard mail-steamer, the America.—(National Intelligencer, July 6, 1855.)
Now let us see how, when, and by whom the recruiting was actually stopped in the United States, Canada, and Nova Scotia.
Mr. Crampton expressly says in the letter before me, that he, not Sir Edmund Head, gave orders to stop the reception of recruits in Canada, by telegraph, dated “somewhere about,” that is, not until after the 2d of August; he implies, but does not distinctly say, that at the same time he sent orders to the same effect to New York, and that he communicated with Sir Gaspard Le Marchant.
Thus, upon his own declaration, the recruiting was in fact continued by Mr. Crampton several weeks after it ought to have ceased, according to the intention of Lord Clarendon.
The matter stands yet worse on the declaration of Sir Gaspard Le Marchant, as it appears in a letter of his dated January 19, 1856, written in reply to Mr. Crampton’s letter of the 13th. He says:
[534] My instructions on the subject, the only instructions that I received from any source, were conveyed in two notes dated respectively the 5th and the 13th of August last, both of which reached *me about the same time, the first by the land-route, the second by the Cunard mail-steamer.—(Ut supra, p. 233.)
He afterward states, in the same letter, that the time when he received the notes was the 17th of August.
These two notes, it is implied by other parts of Sir Gaspard’s letter, were from Mr. Crampton; and they were the only instructions, Sir Gaspard says, which he received from any source. That is to say, the whole business, both in Canada and in Nova Scotia, as well as the United States, was under the superintendence of Mr. Crampton, alone; and the orders on the subject from the British government went to him, not to [Page 642] Sir Edmund Head or to Sir Gaspard Le Marchant. This fact it will be material to remember in the sequel.
It is also proved that the date of Mr. Cramptoivs orders was the 5th of August; which corresponds with the fact that the latest act of recruiting proved on the trials was of the 5th of August.—(Mr. McKeon’s letter to Mr. Cushing, Ex. Doc. Senate, 34th Congress, first sess., No. 35., p. 87.)
[535] Thus far we proceed on the assumption that not only Sir Gaspard Le Marchant, but Mr. Crampton, never received any direct communication of the order of June 22; that the only knowledge Sir Gaspard had of it was through Mr. *Crampton; and that the only knowledge Mr. Crampton ever had of it was by the incidental reference to it in Lord Clarendon’s letter to Mr. Buchanan of the 16th of July, a copy of which was received by Mr. Crampton, at Washington, on the 2d of August.
Is that possible? Can it be that the foreign office of the United Kingdom thus carries on its business? That Mr. Crampton was left by Lord Clarendon to discover the existence of such an order through the indirect channel of his own letter to Mr. Buchanan? It is not possible and is not the fact.
On the 22d of June, 1855, Lord Clarendon addressed to Mr. Crampton the following letter:
[Extract.]
Foreign Office, June 22, 1855.
I communicated to the war department Mr. Lumley’s dispatch of the 21st ultimo, inclosing copies of his correspondence with Her Majesty’s consul at Mobile, with regard to an offer made by a Pole, resident in that city, to enlist several of his countrymen for Her Majesty’s foreign legion.
I have been informed by Lord Pannmre in reply, that his lordship wishes all further proceedings in the matter of enlistment to be stayed, and the project to be definitively abandoned.
[536] Corresponding instructions to the governor-*general of Canada, and to the lieutenant-governor of Nova Scotia, will be dispatched by this evening’s mail,— (Papers, ut supra, No. 22, p. 16.)
Now comes the question, why were not these orders executed by Mr. Crampton? How did it happen that they never reached Sir Gaspard Le Marchant That they never did reach him is clear, for the first and onlyinstructions he ever received on the subject were from Mr. Cramp-ton, under date of the 6th of August. But what became of Lord Clarendon’s letter to Mr. Crampton of the 22d of June? That letter, as appears on its face, left England by the steamer of the 23d, the America, whose mail was in Washington the 8th of July. Of course Mr. Crampton persisted in the enlistment business for about one month after the receipt of express orders for its cessation directed personally to him by the Earl of Clarendon.
What became of the orders dispatched by the same mail to Sir Gaspard Le Marchant? Of that, no explanation appears. But the subject has another bearing, of deepest importance to the good understanding of the United States and of Great Britain.
[537] Mr. Crampton left Washington on the 2d of May, 1855, to attend to the recruiting business in Canada and Nova Scotia.—(Ut supra, [537] pp. 131, 132.) *He returned to Washington on the 2d of June, and there he remained during the month of July.—(Ut supra, pp. 22, 132.) Why did he not obey the orders of his government, as communicated in Lord Clarendon’s letter of the 22d of June, and put a stop to recruiting at once on the 8th of July, instead of waiting until [Page 643] the 5th of August? He was forced to act on the 5th of August, because the orders of June 22 had then come to the knowledge of this Government through Lord Clarendon’s letter to Mr. Buchanan. Why did he not act sooner? It is not for me to answer that question. The answer may be inferred from the facts and circumstances exposed by the Secretary of State.
The important consideration here is, that the conduct of Mr. Crampton in regard to that letter of Lord Clarendon-s is the proximate cause of all the serious controversy between the two governments on the subject of enlistment.
[538] Mr. Marcy’s second letter on the subject is dated July 15, 1855. He had called, the attention of Mr. Buchanan to the subject by a previous letter of the 9th of June. You, sir, felt constrained to direct the Secretary of State to repeat the complaints of this Government so soon, and without waiting for a reply to the first communication, in consequence of the apparently increased activity of the recruit*ing business in the interval, and especially in the month of July. If Mr. Crampton had obeyed the orders which he received on the 8th of July, by putting an instant stop to recruitments in the United States, it is probable that either no occasion would have arisen for the dispatch of Mr. Marcy’s letter of the 15th of July, or at any rate it would have been different in tenor. And in the sequel, when Lord Clarendon’s letter of the 16th of July arrived, the explanations contained in that letter, coupled with the fact of the actual cessation of the recruiting early in July, might have sufficed, in your opinion, to justify this Government in not pursuing the matter any further, and so have ended the question as between the two governments.
On the recent occasion of Mr. Cramp ton’s omission to obey Lord Clarendon’s instructions to communicate his letter of the 10th of November to Mr. Marcy, his act of non-compliance with instructions in that respect, negligence, misjudgment, or whatever else it may have been, was somewhat singular, especially in view of his own condition at that time as a minister under request of recall because of his being: unacceptable to the United States. It was prejudicial to both countries, because it served to place this Government in a false position with respect to the subject-matter of the dispatch, the question of Central *America, and thus to cause Lord Palmerston and Lord Clarendon to go before Parliament in February, under incorrect impressions regarding the attitude of the United States. That was an evil, but a reparable one. In the present case the evil was irreparable, because of the new events which occurred to complicate the question. [539]
On the 8th of July this Government had no knowledge, although it began to have suspicions of the deep complicity of Mr. Crampton in the systematie violation of the laws and the sovereign rights of the United States. Of course no steps had then been taken looking to the demand for his recall.
If, on receiving Lord Clarendon’s letter of June 22, on the 8th of July, Mr. Crampton had gone immediately to Mr. Marcy, and shown him that letter, with proper assurances that orders had actually been given to stop all recruiting, would not the communication have produced in the mind of the latter such conviction of the loyalty of Lord Clarendon in the matter, as to have induced him not only to advise that what there had been of inconvenience in the action of the British government should be overlooked, but also to stifle his growing; suspicions of Mr. Crampton?
[540] I cannot but think so. In which event the indications, which were beginning to appear, of *Mr. Cramptoirs prominent [Page 644] participation in the enlistments would not have been followed up in July; the proofs of his complicity would not have come in to demand consideration in August; there would have ceased to be occasion for the demands made in Mr. Marcy’s letter of July 15, and in that of September 5; the judicial proceedings of September and of October might have been dispensed with, and, in a word, all which there has been of irritating or embarrassing in the question could have been effectually saved both to Great Britain and to the United States.
In view of all which herein appears, I venture, sir, to express the hope that you will be satisfied that, if it happened to me in January last to say to Mr. Crampton or to anybody else that the recruitments did not cease so soon as, in reference to the directions of Lord Clarendon, they ought to have done, I said what is true, and is in controvertible established as fact by the declarations of Mr. Crampton and of Sir Gaspard Le Marchant, and, in addition to that, by consideration of Lord Clarendon’s letter of the 22d of June, communicating the original order to Mr. Crampton.
I observe, also, in the same collection of “papers,” a letter from Lord Clarendon to Mr. Crampton,*of the 8th of February, 1856, which betrays the existence of erroneous impressions regarding my relation to the judicial proceedings at Philadelphia. [541]
He assumes, and then proceeds to draw inferences from the assumption, that my instructions of the 12th” and 17th of September to the district attorney of Eastern Pennsylvania were published “a few days before the trial of Hertz, at Philadelphia, took place.”—(Ut supra, p. 167.) That is an error. The letters were not published until after the trial.—(Papers, ut supra, p. 106.) Of course all the reflections, founded. on the opposite supposition, fall to the ground.
The Earl of Clarendon proceeds to build up another series of reflections and imputations upon the suggestion that the instructions to the district attorney of Eastern Pennsylvania were my own individual act. That, of course, is an error. It need not be said to you, except for the purpose of thus fixing; the truth of history, that neither the dispatch of the instructions in question nor any other important step in the business was taken without express authority of the Secretary of State and the President.
In a word, those instructions were an act in the due course of domestic administration, as to which the only thing remarkable is that *they should have been made the subject of remark by a foreign government. [542]
But any disposition which might otherwise be entertained by me to comment at more length on the letter of the Earl of Clarendon, is removed by perusal of the letters of Mr. Crampton in this collection of documents, and in the “correspondence with the United States respecting Central America,” likewise recently presented to Parliament. My previous views of the action of the Earl of Clarendon, in matters affecting this country, have undergone material modification by the knowledge now acquired of the curiosa felicitas of the British minister in the perpetration of mistakes, and the very inexact representations which he habitually made regarding the conversations, opinions, and purposes of individuals in the executive and in the Congress of the United States.
I have the honor to be, very respectfully,
The President.