[546] *Lord Clarendon to Mr. Dallas.
The undersigned, Her Majesty’s principal secretary of state for foreign affairs, had the honor to receive, on the 20th of January, from Mr. Buchanan, envoy extraordinary and minister plenipotentiary of the United States at this court, a copy of a dispatch, dated the 28th of the previous December, addressed to Mr. Buchanan by Mr. Marcy, Secretary of State of the United States, containing observations on a dispatch which the undersigned had directed Her Majesty’s minister at Washington to communicate to Mr. Marcy. Mr. Marcy’s dispatch was in continuation of the discussion which had been some time pending between the two governments on the subject of the conduct which was alleged by the Government of the United States to have been pursued by certain of Her Majesty’s officers, in giving effect to the intentions of Her Majesty’s government to receive into, the military service of the Queen any persons who, coming from any quarter into Her Majesty’s dominions, might then be willing to engage in that service.
[547] The undersigned has hitherto deferred replying to Mr. Marcy’s dispatch, not only because it was more consistent with the respect which Her Majesty’s government entertain for the United States, thoroughly to inquire into the allegations contained in it, but also because it was just and right towards Her Majesty’s *officers, whose conduct was impugned to put them in possession of the charges brought against them, and to give them that opportunity of explanation and defense which was then for the first time afforded them.
The undersigned, before he adverts to Mr. Marcy’s last dispatch, must express his deep regret that the Government of the United States should have deemed it necessary to continue a controversy on a question which Mr. Buchanan considered at the time would be finally settled by the note of the undersigned of the 16th of July, 1855—a note which Mr. Buchanan said he would transmit with much satisfaction to his Government. The undersigned had, indeed, hoped that that note, together with his subsequent communications of the 27th of September to Mr. Buchanan, and of the 16th of November, through Mr. Crampton, to the Government of the United States, would have been accepted by a friendly govern men t, such as that of the United States, as a disclaimer of any intention to give offense, and as a satisfaction [Page 647] for any offense which that Government might have been led by circumstances to think had, though unintentionally, been given.
For what has been the course of the transactions which have given rise to this correspondence:
[547] On the breaking out of the late war between the western powers and Russia, the British govern*ment was informed that many persons resident within the United States—some natives of the continent of Europe, and some natural-born subjects of Her Majesty—were desirous of entering into the military service of Great Britain. The British government believing the information they had received on this matter to be well founded, and being anxious to increase, as rapidly as possible, their military force, took steps to avail themselves of this disposition, and gave directions that any persons presenting themselves within the British North American provinces, willing to enlist and found fit for service, should be engaged for the British army. But Her Majesty’s government gave the most positive orders that in making arrangements for this purpose nothing should be done to infringe, in any manner whatsoever, the neutrality laws of the United States.
[549] It was not doubted that such arrangements might be carried into execution without any violation of those laws, because those laws prohibit enlistments or engagements only within the territories of the United States; they do not forbid citizens of the United States, or residents therein, from leaving those territories; nor do they forbid such citizens or other persons from engaging or enlisting in military service elsewhere, *when of their own free will, and without any previous contract or engagement, they may have left those territories.
The intentions of the British government, and the arrangements made to carry those intentions into execution, were not concealed from the Government of the United States.
Those intentions and arrangements were frankly stated by Mr. Crampton to Mr. Marcy in a conversation on the 22d of March, 1855, and the only observations which Mr. Marcy made in reply were that the neutrality laws of the United States would be rigidly enforced, but that any number of persons who desired it might leave the United States, and get enlisted in any foreign service.
[550] Up to this point, therefore, there was no misunderstanding as to the purpose of the British government, and no difference of opinion as to the legality of the course which that government intended to pursue. But the British government soon found, by accounts which reached them from the United States, that it would be difficult to prevent the execution of the contemplated arrangements from being attended by circumstances which might give rise to discussions between the two governments. It *was seen that, however strict might be the orders of Her Majesty’s government that nothing should be done in contravention of the laws of the United States, and however scrupulous Her Majesty’s officers in America might be in obeying those orders, yet a misconception of the precise bearing of those laws might lead some of those officers unintentionally to overstep their limits, while other persons, either from honest zeal, or for the sake of gain, or from a desire to entrap Her Majesty’r officers, might do things at variance with the provisions of those laws. Her Majesty’s government, therefore, being most anxious that nothing should happen to disturb the good understanding between the two governments, and being desirous of showing unequivocally their respect for the laws of the United States, at once, and of their own accord, determined to give up the further prosecution [Page 648] of the arrangements in question, and they accordingly sent out to Canada and Nova Scotia, on the 22d of June, 1855, orders to discontinue all further proceedings in the matter of enlistment for the foreign legion.
[551] A fortnight after these orders had been sent out, the under signed received from Mr. Buchanan a *note, dated July 6, alleging that the neutrality laws of the United States had, in many instances, been violated by persons taking steps (either with or without the approbation of the British government) for the purpose of engaging or enlisting within the United States recruits for the British service; and Mr. Buchanan, in the conclusion of his note, stated that “the President would be much gratified to learn that Her Majesty’s government had not authorized the proceedings complained of, but had condemned the conduct of its officials engaged therein, and had visited them with its marked displeasure, as well as taken decisive measures to put a stop to conduct contrary to the laws of nations, the laws of the United States, and the comity which ought ever to prevail in the intercourse between the two friendly powers.”
The undersigned, in reply to this note, expressed to Mr. Buchanan, on the 16th of July, the regret of Her Majesty’s government, if the law of the United States had been in any way infringed by persons acting with or without authority from Her Majesty’s government; and he stated that any such infringement of the law of the United States would be contrary to the wishes and the positive instructions of the British government.
[552] The undersigned went on to explain his reasons *for believing that no person authorized to act for the British government had violated the law of the United States; and, in conclusion, he stated that the request of the President, that decisive measures might be taken to put an end to these proceedings, had been anticipated by the spontaneous act of Her Majesty’s government, who had, a fortnight before the receipt of Mr. Buchanan’s note, sent out orders to put an end to the arrangement for enlisting, within the North American provinces, persons who might come there from other places.
Mr. Buchanan, in reply, said, in a note dated the 18th of July, that he should feel much satisfaction in transmitting to his Government the note of the undersigned.
[553] So strong appears to have been the impression on the mind of Mr. Buchanan of the satisfactory nature of this communication, that when afterwards he received a dispatch from Mr. Marcy with renewed instructions to address remonstrances to the British government on the subject of the recruiting proceedings, he abstained from acting upon those instructions, and withheld Mr. Marcy’s dispatch containing them from the knowledge of Her Majesty’s government, obviously because he perceived by its date (the 15th of July) that it was written long before the note *of the undersigned, of the 16th of July, could have been received by Mr. Marcy, and because he concluded that when that note should have been received, the Government of the United States would be satisfied with its contents.
For a considerable time this conclusion appeared well founded. On the 5th of September, however, Mr. Marcy addressed a note to Mr. Crampton, not alleging that fresh subjects of complaint had arisen since the receipt in America of the British orders of the 22d of June, but going back to the same transactions to which Mr. Buchanan’s note of the 6th of July had adverted, and renewing all his original complaints, as if no notice had been taken of his former representation, as if no regret [Page 649] had been expressed, and as if no measures bad been adopted to put an instant stop to the proceeding out of which his complaints had originated.
[554] A communication so much at variance with what Mr. Buchanan’s note of the 18th of July had led Her Majesty’s government to expect, might well be received with some feelings of surprise, inasmuch as they believed that they had given to the Government of the United States every satisfaction which one government could reasonably expect to receive from another in a case *of this kind.
The undersigned, however, on the 27th of September, replied to Mr. Marcy’s note, answering the allegations renewed in it, and repeating that Her Majesty’s government had no reason to believe that any of Her Majesty’s servants, or any agents duly authorized by them, had disregarded the injunctions to respect and to obey the laws of the United States.
Nevertheless, the Government of the United States still considered this answer unsatisfactory, and on the 13th of October Mr. Marcy addressed another dispatch on these matters to Mr. Buchanan, which was communicated to the undersigned on the 1st of November. In that dispatch Mr. Marcy renews his general assertions that Her Majesty’s officers in America had violated the laws of the United States; he refers to his dispatch of the 15th of July, which Mr. Buchanan had abstained from communicating on the supposition that the note of the undersigned of the 16th of July had finally settled the question at issue, and he states that the said dispatch of the 15th of July indicated the satisfaction which the Government of the United States believed it had a right to claim from the government of Great Britain.
[555] *This dispatch of the 15th of July, which was not communicated to the undersigned by Mr. Buchanan till the 2d of November, concludes by saying that “the President is disposed to believe that Her Majesty’s government has not countenanced the illegal proceedings of its officers and agents since its attention was first directed to the subject, and will consider it alike due to itself and the United States to disavow their acts, and deal with them in such a manner as their grave offense merits,” but that, “as recruiting for the British army m the mode alluded to is still prosecuted (as he believed) within the United States by officers and agents employed for that purpose, the President instructs Mr. Buchanan to say to Her Majesty’s government that he expects it will take prompt and effective measures to arrest their proceedings, and to discharge from service those persons now in it who were enlisted within the United States, or who left the United States, under contracts made here, to enter and serve as soldiers in the British army.”
This, then, is the satisfaction which, as late as the 13th of October, Mr. Marcy declared was that which the Government of the United States demanded.
[556] *With respect to the first part of this demand Her Majesty’s government deny that any illegal proceedings were, so far as they know, committed by its officers or authorized agents, and therefore they have none to disavow, and no officers or agents to deal with as offenders. With regard to the other points specified by Mr. Marcy, the undersigned, on the 16th of November, deeming it respectful to the Government of the United States to do so, entered into a detailed, and, as he has hoped, a satisfactory reply to the arguments and statements contained in Mr. Marcy’s dispatch of the 13th of October. In that reply the undersigned stated that the most material point, that of the alleged [Page 650] recruiting, had been already disposed of for nearly four months before the date of that dispatch; the recruiting arrangements and proceedings had been abandoned by orders sent by Her Majesty’s government on the 22d of June; and that the second part of the satisfaction required it was not in their power to give, because no person had, to their knowledge, been enlisted within the United States, or left the United States under contract made therein to enter into service in the British army. And he further added that if it could be shown that any *men had been so enlisted they should immediately be discharged and sent back to the United States. The undersigned thus showed that the satisfaction claimed by the Government of the United States had long since been given, as far as it was, in the nature of things, possible to give it; and, in addition to the satisfaction asked for, he expressed the regret of Her Majesty’s government if anything had been done by any person, authorized or unauthorized, which could, be considered an infringement of the law of the United States. [557]
It might naturally have been supposed that the correspondence would here have ended. Regret has been expressed for any infringement of the law of the United States, if any had taken place, notwithstanding the positive and repeated orders of Her Majesty’s government to the contrary. The satisfaction which the Government of the United States, after mature deliberation, had demanded, had either been spontaneously and by anticipation, granted, or had been shown to be impracticable because there was no man in the British service whose enlistment, or contract to enlist, had, to the knowledge of Her Majesty’s government, taken place in the manner specified by Mr. Marcy in his dispatch of *the 15th of July, and whose discharge, therefore, could form part of the satisfaction indicated by Mr. Marcy. Her Majesty’s government, however, expressed their readiness to give that satisfaction also, if any case should be established to which it could apply.
[558] Her Majesty’s government were, however, disappointed in the confident expectation which they had entertained that this further explanation would prove satisfactory, for, on the 29th of January of the present year, Mr. Buchanan communicated to the undersigned a dispatch from Mr. Marcy, dated the 28th of December preceding, recapitulating the complaints of the Government of the United States, and making a demand in the way of satisfaction different from those which were mentioned in Mr. Marcy’s note of the 15th of July, and which were referred to, in his dispatch of the 13th of October, as the satisfaction which the Government of the United States believed itself entitled to claim. This, demand consisted in an application for the recall of Her Majesty’s minister at Washington, and of Her Majesty’s consuls at Philadelphia, New York, and Cincinnati. It will naturally be asked whether any new ground has been found for this demand, or whether any new event had happened between the 13th of October *and the 28th of December, in which these officers of Her Majesty had been concerned? Nothing of the kind had taken place, and the accusations made against those officers, in Mr. Marcy’s dispatch of the 28th of December, rest upon statements which were equally within the knowledge of the Government of the United States on the 13th of October, when no such demand was made. [559]
Before the undersigned proceeds to reply to Mr. Marcy’s note of the 28th of December, he must notice an erroneous construction which Mr. Marcy has there put upon a passage in a dispatch of the 12th of April, 1855, from the undersigned to Mr. Crampton, which was communicated by him to Mr. Marcy. The passage is as follows: “I entirely approve [Page 651] of your proceedings, as reported in your dispatch (No. 57) of the 12th ultimo, with respect to the proposed enlistment, in the Queen’s service, of foreigners and British subjects in the United States.” Mr. Marcy assumes, and argues upon the assumption, that the meaning of this passage was that the enlistment of the persons mentioned, and which were approved of by Her Majesty’s government, were to take place in the United States; whereas the sentence, according to its obvious meaning, *relates to foreigners and British subjects resident in the United States. The word “in” has reference to the place where they resided, and not to the place where they were to be enlisted; and if any doubt could arise on this point, that doubt must have been removed by the concluding passage, which adverts to the neutrality law of the United States, and says that Her Majesty’s government would on no account run any risk of infringing that law. This construction of the passage under consideration does not appear to have occurred to Mr. Marcy at the time when the dispatch of the undersigned of the 12th of April was communicated to him by Mr. Lumley. So far from it, Mr. Marcy expressed to Mr. Lumley his satisfaction with that dispatch, and desired that he might be furnished with a copy of it, in order that he might show it to his colleagues. [560]
[561] The undersigned must also further observe that Mr. Marcy, in the same dispatch, has misconceived the meaning of an expression used by the undersigned in making an offer, above referred to, that any man who might have been enlisted within the United States should be immediately discharged and sent back. The reference there made to British law was merely *intended to indicate that if persons had been enlisted under the circumstances supposed, such enlistment would have been at variance with British, as well as with American, law; but the undersigned did not mean that respect would not be paid, in the discharge of men, to the principles of the law of the United States alone, should that law appear to have been violated in a single case.
In reply to the general statements of Mr. Marcy’s dispatch, the undersigned must repeat that Her Majesty’s government gave the most positive orders that no man should be enlisted or engaged within the territory of the United States, and that the neutrality laws of the United States should be strictly and scrupulously respected. But Mr. Marcy now contends that this was not enough; and though, in conversation with Mr. Crampton, on the 22d of March, 1855, he said that he could not object to any number of persons going to Nova Scotia to be there enlisted, provided the neutrality laws of the United States were not infringed, he now argues that the enlistment in Nova Scotia of persons, coming thither from the United States was a violation of the policy of the United States, and that not to respect that policy was an offense on the *part of Great Britain against the sovereign rights of the United States. [562]
Now, in reply to this, the undersigned begs to observe that the policy of a nation in regard to its internal arrangements must be sought for in the laws of that nation; that what those laws forbid it must be understood to be the policy of the state to prohibit; and that what those laws do not forbid, it must be understood to be the policy of the state to allow. In every state, whatever may be its form of government, there is a sovereign power; that sovereign power may impose upon the subjects or citizens of such state what duties, obligations, and restrictions it may think tit; and it is a necessary conclusion that when, the sovereign power puts a limit to its enactments, whether of obligation or [Page 652] of prohibition, it means to leave its subjects or citizens free in regard to all matters not within the enactments of the law. This principle is indeed admitted by Mr. Buchanan’s note of the 6th of July, wherein he lays it down that the neutral policy of the United States is defined and enforced” in the statute of 1818.
[563] Different countries have different laws in regard to the enlistment of their subjects and *citizens in the military and naval service of other states, and these laws vary according to the different policy of these countries with respect to such matters.
In Great Britain the law not only prohibits recruiting or enlisting within the British dominions for the service of any foreign state, without the permission of the sovereign but it goes farther, and prohibits any subject of Her Majesty from so enlisting, even elsewhere, without the royal permission. The policy of Great Britain hence appears to be to prevent British subjects from entering at all into the service of foreign states without the permission of the Crown.
[564] The law of the United States appears to be different. Her Majesty’s government understood, and that understanding is confirmed by Mr. Buchanan’s note of the 6th of July, that the law of the United States only forbids enlistments, recruiting, and contracts or engagements within the United States, and hiring or retaining persons to quit the United States with the intent to be enlisted elsewhere, but it does not forbid citizens of the United States, who may have used their natural right of quitting the United States, to enlist into the service of a foreign state, when they have *left their own country. The sovereign power of the United States mighty lowed its citizens with a prohibitory enactment beyond the territory of the United States, but it has not thought fit to do so, and the just and inevitable conclusion is that what it might have forbidden, but has not forbidden, it has designedly allowed—that is to say, in other words, that it is the policy of the United States to prevent foreign enlistment within the United States, but that it is not the policy of the United States to forbid citizens of the United States to enlist, when out of the United States, into the service of foreign states, if they should choose to do so.
Such being the state of this matter, it is obvious that the British government cannot justly be charged with any disregard of the policy of the United States, nor with any disrespect to their sovereign rights by taking into the Queen’s military service any persons who, having come from the United States, freely and without contract or engagement, into a British territory, might then be willing to enlist.
[565] The real questions at issue between Her Majesty’s government and that of the United *States are, whether the British government ordered or contemplated any violation of the neutrality laws of the United States; whether, if the British government did not order or contemplate such violation, those laws were nevertheless violated by persons acting with the authority or approbation of the British government; and lastly, whether, if any violation of the law of the United States did take place, sufficient satisfaction has been given to the government of that country.
In regard to the first point, the British government neither ordered nor contemplated any violation whatever of the laws of the United States; but, on the contrary, issued the most positive and repeated orders that those laws should not be infringed by any persons acting under their authority.
In regard to the second point, Mr. Marcy alleges that, notwithstanding the orders of the British government, officers and agents of that [Page 653] government did, within the United States, do things which were a violation of the neutrality laws of the United States; and Mr. Marcy specifically makes this charge against Mr. Crampton, Her Majesty’s minister at Washington, and against Her Majesty’s *consuls at Cincinnati, Philadelphia, and New York. [566]
With respect to Mr. Crampton, the undersigned has to state that Mr. Crampton positively and distinctly denies the charge brought against him. He declares that he never hired, or retained, or engaged a single person within, the United States for the service of Her Majesty, and that he never countenanced or encouraged any violation of the law of the United States. The charge brought against Mr. Crampton is mainly founded upon evidence given by Strobel on the trial of Hertz, and on the so-called confession of Hertz himself. One of those persons, Strobel, was, in consequence of his misconduct, dismissed from employment by the lieutenant-governor of Nova Scotia at Halifax, and afterwards applied to Mr. Crampton, and endeavored to extort money from him by a threat, which was of course disregarded. The undersigned has the honor to transmit, as in closures to this note, documents which sufficiently prove that both Strobel and Hertz are wholly unworthy of credit. It is impossible for Her Majesty’s government to set the assertions of such men as these against the declaration of Mr. Crampton, a *man of unquestionable honor. [567]
The undersigned must indeed remark that the whole proceeding in regard to the trial of Hertz was of such a nature that whilst Her Majesty’s ministers and Her Majesty’s consuls might be, and indeed were, inculpated by the evidence of unscrupulous witnesses, that minister and those consuls had not any means or any opportunity of rebutting the charges which were thus incidentally and indirectly brought against them.
With regard to Her Majesty’s consuls at Cincinnati, Philadelphia, and New York, they ail equally deny the charges which have been brought against them; and they declare that they have in no way whatever infringed the laws of the United States.
[568] With respect to Mr. Rowcroft, Her Majesty’s consul at Cincinnati, the undersigned has to observe, that legal proceedings against that gentleman are still pending. As to the origin, character, and nature of those proceedings, the undersigned might have much to say; but as they are still pending, he abstains from doing so. He must, however, be permitted to remark, that it would at all events be inconsistent with the plainest principles of *justice to assume as established charges which are still the subject-matter of judicial investigation.
The accusation against Mr. Mathews, Her Majesty’s consul at Philadelphia, rests entirely upon assertions made by Hertz. Those assertions are positively denied by Mr. Mathews, and Her Majesty’s government can scarcely believe that the Government of the United States, with the knowledge which it will have obtained of the character of Hertz, will hesitate to concur with the government of Her Majesty in giving credit to Mr. Mathews.
With respect to Mr. Barclay, Her Majesty’s consul at New York, he declares that he neither favored the alleged recruiting nor participated in it, nor was informed of the hiring, retaining, or engaging any man for that purpose.
Her Majesty’s government cannot but accept the denial of these gentlemen as more worthy of belief than the assertions and evidence of such men as Hertz and Strobel.
But Mr. Marcy considers that the conduct of Mr. Barclay in [Page 654] the affair of the bark Maury ought to be an additional reason *why Her Majesty’s government should recall him. Upon this the undersigned must observe that Mr. Barclay received information, on oath, from persons in the service of the United States, leading to the belief that the bark Maury was fitting out with designs hostile to British interests, and at variance with the neutrality laws’ of the United States. It was Mr. Barclay’s bounden duty to communicate that information, without delay, to Her Majesty’s minister at Washington. Mr. Barclay did so, and his direct action in the matter was then at an end. Mr. Crampton submitted this information to the proper authorities of the United States, in order that they might determine what proceedings, if any, it might be right to take thereupon. The officers of the United States considered the prima facie case against the Maury to be sufficient to call for proceedings on their part. Such proceedings were accordingly instituted by them, and not by Mr. Barclay, whose conduct in regard to the Maury was in strict performance of his duty, and received the approval of Her Majesty’s government. [569]
[570] With regard to the last point the undersigned must refer to the offers of sat*isfaction, and to the explanations already made, and to the repeated expression of sincere regret of Her Majesty’s government, if, contrary to their instructions and to their reiterated directions, there has been any infringement of the laws of the United States.
The undersigned has now had the satisfaction of communicating to the Government of the United States the statements and declarations of Her Majesty’s minister at Washington, and of Her Majesty’s consuls, at Cincinnati, Philadelphia, and New York, as to the conduct imputed to them.
The Government of the United States had been led to suppose that the law and the sovereign rights of the United States had not been respected by Her Majesty’s government, and, relying upon evidence deemed to be trustworthy, they believed that that law and those rights had been infringed by British agents.
[571] If such had been the case, the Government of the United States would have been entitled to demand, and Her Majesty’s government would not have hesitated to afford, the most ample satisfaction, for no discredit can attach to the frank admission and complete reparation of an *unquestionable wrong. Her Majesty’s government, however, unequivocally disclaim any intention either to infringe the law, or to disregard the policy, or not to respect the sovereign rights of the United States; and the Government of the United States will now, for the first time, learn that Her Majesty’s minister at Washington, and Her Majesty’s consuls at New York, Philadelphia, and Cincinnati solemnly affirm that they have not committed any of the acts that have been imputed to them. The Government of the United States will now, also, for the first time, have an opportunity of weighing the declarations of four gentlemen of unimpeached honor and integrity, against evidence upon which no reliance ought to be placed. The undersigned cannot but express the earnest hope of Her Majesty’s government that these explanations and assurances may prove satisfactory to the Government of the United States, and effectually remove any misapprehension which may have hitherto existed, and he cannot doubt that such a result will afford as much pleasure to the Government of the United States as to that of Her Majesty by putting an end to a difference which has been deeply regretted by Her Majesty’s government, for there are no two countries which are bound by stronger ties or by higher con*siderations [Page 655] than the United States and Great Britain to maintain unbroken, the relations of perfect cordiality and friendship. [572]
The undersigned requests Mr. Dallas to accept the assurance of his highest consideration.
[For inclosures see Senate Documents, first and second sessions Thirty-fourth Congress, vol. 14, 1855–’56.]