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 II

[149] * Annex (B.)

[undated.]

The British and American Foreign-Enlistment Acts.

It is assumed throughout the United States Case that the American * act of Congress of 1818 is more efficient than the British act of Parliament of 1819, and a contrast is attempted to be drawn, to the disadvantage of the British law, between the provisions of the former, as epitomized in the President’s proclamation of neutrality of October 8, 1870, and the provisions of the latter, as explained in a summary giren at page 111 of the Case. Annex (B.)

A very cursory examination will be sufficient to show that this assumption is erroneous.

Mr. Bemis, an American counsel of acknowledged reputation, who cannot be suspected of any partiality in favor of Great Britain, points out no less than ten particulars in which the United States is inferior to the British law, as follows:^l

Some of these points of superiority relate to warlike preparations on land (on which subject English legislation had provided, to some extent, at a much earlier date than our own) and some to preparations by sea, and some again to preparations combining both land and marine operations. Under one or the other of these heads, I can name at least ten important points of superiority in the British statute over our own.

1. In the first place, the British act is decidedly more comprehensive than the American, in denouncing unneutral enlistments, both in the land and naval service of a foreign government, by making it penal “to agree to enlist,” or to “engage or contract to enlist,” or to “engage” or “attempt to engage another person to enlist,” neither of which initiatory steps of raising foreign levies is forbidden by our statute. Our act (section 2) only punishes one who “enlists or enters himself, or hires or retains another person to enlist,” &c., thus making a positive and complete enrollment or hiring on neutral soil a prerequisite to the offense.

The importance of this distinction will be appreciated when it is remembered that not a Fenian recruit nor a Fenian recruiter has been prosecuted for violating American laws by recruiting on American soil during the late Fenian demonstration in the United States, though the engaging to enlist, or the attempting to engage others to enlist, have probably been as open as the day in all the northern cities.

2. In the second place, the British act is more complete than our own, in prohibiting any hiring or retaining of any person whatsoever, by way of recruiting, for foreign warships transiently sojourning in British neutral waters, without excepting the subjects or citizens of the same nation as that to which such ivar-ships belong, as the American statute does, in section 2. The effect of the American exception is, that if the United States happens to be a neutral power, and England and France, for instance, are belligerents toward each other, England can lawfully recruit from among British subjects for her ships of war, transiently stopping in American ports; and France, in like manner, from French subjects under like circumstances.

3. On the other hand, in the third place, the superiority of the British act over the American is decided, in forbidding British subjects from enlisting or engaging in warlike operations anywhere whatsoever; while the prohibition of the United States law is limited to “any person within the territory or jurisdiction of the United States,” (except in reference to fitting out ships abroad to prey upon American commerce, as already noticed in the criticism on the revision of the act of 1797, and which exception, as by section 4 of the act of 1818, is altogether abrogated in General Banks’s new scheme.) It would seem thus that citizens of the United States, under the laws of the United States as they now stand, may freely go abroad to enlist in a foreign service—in fact, may at home, on American soil, agree to enlist in such service, (provided they do not take money and “enter themselves”) without committing any offense against United States laws, (see United States vs. Kazinski;) but that both these descriptions of belligerent undertakings are denounced by the British statute.

4. [150] In the fourth place, the British act is greatly superior to our own as a preventive of infractions of neutrality, in authorizing (as by section 5) the detention of any vessel about leaving the British dominions with persons on board “who have enlisted or engaged to enlist,” &c, in any foreign belligerent service; thus authorizing the stopping of any warlike embarkation for foreign parts, which our laws, as they now stand, do not, unless the number of persons thus collectively embarking brings it under another head, of “setting on foot a military expedition.” Section 6 of the British act follows up this preventive provision, by making it penal for any ship-master to take on board his ship any such recruits, enlisted or engage to enlist” in a foreign belligerent service, under a penalty of £50 per *head for each passenger. It further subjects the ship itself to seizure and detention, until the fine incurred as above is paid, or satisfactory security given for its payment.

These provisions are entirely new in the British act, and find no exemplar in our own statutes.

5. In the fifth place, (to come to the head of fitting out ships, and maritime neutrality purely,) the British foreign-enlistment act, as a neutral measure, has a clear superiority over our own in forbidding the fitting out, &c., of any “transport or storeship” for belligerent use—a prohibition never contained in the American statute, and which would have materially narrowed the right of engaging in the carrying trade of European wars, (whether by chartering or selling vessels to the belligerents,) which our Government so strenuously contended for at the period of the Crimean war, under the administration of President Pierce.

6. In the sixth place, the British statute contains those much-belabored words, “equip, furnish, fit out, or arm;” while our own only denounces “the fitting out and arming” a ship of war for belligerent uses—a distinction between “or” and “and” which saved us from having Laird’s iron-clads let loose against us in September, 1863.

7. Seventhly, the British foreign-enlistment act is more comprehensive than our own, in using after the clause “equip,” &c., “or attempt to equip,” &c., the phraseology “with intent, or in order, that such ship be employed,” &c. Our statute stops short “with intent” while the British, by adding “in order that,” helps to simplify a troublesome question of whose the intent must be—whether the equipper’s or the belligerent state’s for whose use the vessel is equipping.

8. Eighthly, the British statute has a wider scope than the American, and so seems more effectively neutral, in using after the words “colony, province,” &c., the terms, “or of any person exercising, or assuming to exercise, any powers of government,” &c. The government of Jefferson Davis and his associates, for example, both in the Alexandra and the Pampero proceedings, was set forth under these terms of the foreign-enlistment act.

9. Ninthly, that the British statute is more sweeping and more thoroughly neutral than our own, in enacting various prohibitions against augmenting the armament of foreign ships of war which come into port already armed, but which have occasion to refit or add to their warlike equipment. By the British act (section 8) no foreign ship of war at all, whether belonging to a power at peace or at war, is allowed to add to or vary its warlike armament in a British port; while, by our own statute, (section 5,) the modified prohibition against adding to the armament of such a ship of war is only leveled against a ship of a belligerent power. That is, the American statute does not pretend to interfere at all with increasing the number of guns, &c., of a foreign ship of war at a time when the government to which the ship belongs is at peace, but only prohibits such augmentation when the ship is the representative of a belligerent power. The British act, on the other hand, directs its prohibition equally against such warlike equipment in time of peace as well as in time of war.¹

10. In the tenth and last place, the British statute is more severe in its penalties throughout than the American.

It is true that the American act contains two clauses not included in the British act of 1819, clauses 10 and 11, commonly known as the bonding clauses.”² With regard to these, Mr. Bemis remarks:

To my own appreciation both of these “bonding” clauses, as they are called, had most of their neutral virtue taken out of them when Congress made them applicable— (1.) To “vessels belonging wholly or in part to citizens of the United States? thereby leaving foreigners at liberty to clear unneutrally armed ships, (see project of the act, Ann. Con., 1816–’17, p. 477, sec. 1;) (2.) When they limited the bond so as only to prevent “such owners” from cruising or committing hostilities, instead of making the bond guard against belligerent employment of the vessel by “any person to whom they (such owners) may sell or pretend to sell such vessel.” (Ann. Cong., 1816–’17, p. 478, see. 2;) and (3) by requiring that any vessel, to be subject to detention, must have on board “a cargo principally consisting of arms and munitions of war,”.thus letting go at large a vessel armed to the “teeth,” and “manifestly built for warlike purposes,” provided she adopts the precaution of taking no such cargo with her, and is owned by foreigners.

[151] Great stress is laid in the Case of the United States on the eighth section of the act of Congress. “The tribunal of arbitration will also observe,” it states, “that the most important section of the American act is omitted in the British act, namely, the power conferred by the eighth section on the Executive to take possession of and detain a ship without judicial process and to use the military and naval forces of the Government, if necessary.” This implies that the Executive is empowered to detain any ship $ but on turning to the act itself it will be seen that this is by no means the case. The eighth section provides that “in every case in which a vessel shall be fitted out and armed, or attempted to be fitted out and armed, or in which the force of any vessel of war, cruiser, or other armed vessel, shall be increased or augmented, or in which any military expedition or enterprise shall be begun or set on foot, contrary to the provisions and prohibitions of this act, and in every case of the capture of a ship or vessel within the jurisdiction or protection of the United States as before defined, and in every case in which any process issuing out of any court of the United States shall be disobeyed or resisted by any person or persons having the custody of any vessel of war, cruiser, or other armed vessel of any foreign prince or state, or of any colony, district, or people, or of any subjects or citizens of any foreign prince or state, or of any colony, district, or people, in every case it shall be lawful for the President of the United States, or such other person as he shall have empowered for that purpose, to employ such part of the land or naval forces of the United States, or the militia thereof, for the purpose of taking possession of and detaining any such ship or vessel, with her prize or prizes, if any, in order to the execution of the prohibitions and penalties of this act, and to the restoring the prize or prizes in the cases in which Restoration shall have been adjudged, and also for the purpose of preventing the carrying on any such expedition or enterprise from the territories or jurisdiction of the United States against the territories or dominions of any foreign prince or state, or of any colony, district, or people, with whom the United States are at peace.”

Neither the Alabama nor Florida, nor any of the other vessels complained of, was fitted out and armed, or attempted to be fitted out and armed, within British jurisdictionand, if there had been a similar provision in the British act of Parliament, it would not, therefore, have been applicable. The section, which is taken from the act of 1794, (section 7,) was evidently intended to enable the President to repress the arming of French privateers in American ports and their violations of neutrality in American waters, and did not contemplate any interference with unarmed vessels except for the purpose of restoring prizes brought into the ports of the United States after having been captured within their jurisdiction.

The American law was indeed purposely restricted in its operation. When the act of 1817 was introduced into Congress it was entitled “A bill to prevent citizens of the United States from selling vessels of war to the citizens or subjects of any foreign power, and more effectually to prevent the arming and equipping vessels of war in the ports of the United States, intended to be used against nations in amity with the United States,” and the first section would have prohibited the fitting out and arming by American citizens of “any private ship or vessel of war, to sell the said vessel, or contract for the sale of the said vessel to be delivered in the United States, or elsewhere, to the purchaser,” with intent to cruise, &c.; but this section was struck out by the Senate, and the title of the bill changed. The act, as it was passed, contained no such prohibition.

Notwithstanding the fact that the British act of 1819 is of greater stringency than the American act, Lord Bussell was willing, during the civil war, to consider what amendments could be introduced into it if the United States Government had given any encouragement to a suggestion he made for a joint revision of the two laws.

On the 20th of November, 1862, Mr. Adams solicited “a more effective prevention of any repetition” of occurrences like those of which he complained.¹ Lord Bussell replied December 19, 1862:²

As regards your demand for a more effective prevention, for the future, of the fitting out of such vessels in British ports, I have the honor to inform you that Her Majesty’s government, after consultation with the law-officers of the Crown, are of opinion that certain amendments might be introduced into the foreign-enlistment act, which, if sanctioned by Parliament, would have the effect of giving greater power to the executive to prevent the construction, in British ports, of ships detained for the use of belligerents. But Her Majesty’s government consider that, before submitting any proposals of that sort to Parliament, it would be desirable that they should previously communicate with the Government of the United States, and ascertain whether that Government is willing to make similar alterations in its own foreign-enlistment act, and that the amendments, like the original statute, should, as it were, proceed pari passu in both countries.

I shall accordingly be ready to confer at any time with you, and to listen to any suggestions which you may have to make by which the British foreign-enlistment act and the corresponding statute of the United States may be made more efficient for their purpose.

Mr. Adams did not give any answer to this in writing, but, on the 14th of February, 1863, Lord Russell informed Lord Lyons:

I had a conversation a few days ago with Mr. Adams on the subject of the Alabama

It did not appear that his Government desired to carry on the controversy on this subject from Washington; they rather left the conduct of the argument to Mr. Adams.

On a second point, however, namely, whether the law with respect to equipment of vessels for hostile purposes might be improved, Mr. Adams said that his Government were ready to listen to any propositions Her Majesty’s government had to make, but they did not see how their own law on this subject could be improved.

I said that the cabinet had come to a similar conclusion; so that no further proceedings need be taken at present on this subject.¹

On the 27th of March Lord Russell told Lord Lyons that the subjecs had been again mentioned. “With respect to the Jaws itself, Mr. Adamt said, either it was sufficient for the purpose of neutrality, and then let the British government enforce it; or it was insufficient, and then let the British government apply to Parliament to amend it. I said that the cabinet were of opinion that the law was sufficient) but that legal evidence could not always be procured.”²

The revision of the British act of 1818, upon the recommendation of the neutrality laws commission, has already been noticed in Part II. An attempt was made in 1866 to revise the American act, but in a very different spirit.

On the 11th of July, 1866, a week after the Fenian raid on Canada, a resolution was passed in the House of Representatives instructing the Committee on Foreign Affairs to inquire into the expediency of reporting a bill for the repeal of the act of 1818; and, in compliance with this instruction, the committee presented a report on the 2oth of July, accompanied by a bill which was accepted and passed on the following day by a unanimous vote.

The report and bill are given in the Appendix, vol. v, p. 343.

The following extracts from the report will show the views of maritime neutrality entertained by the committee, and indorsed by the House:

[152] The American statute is not demanded by international or natural law. According to these systems neutrality is impartiality. A state, in virtue of its sovereignty, has an inherent and “indefeasible right to remain neutral as between other states at war. This neutrality implies, on one part, impartiality; on the other, inviolability. The state cannot inflict, and is not bound to suifer injury. It is a temporary coudition, incident to the situation, and not necessarily permanent. An attempt to impose upon a people permanent neutrality, especially if that word is interpreted to mean, as in our legislation it does, an estrangement, abscission, and isolation of the state from other nations, is opposed to the true principles of public morality and law. To make such a system permanent is impracticable. It can be justified only by a regard to the emporary condition of states by which it is enacted. The highest interests of civilization demand that the liberties and rights of neutrals should be extended, and the privileges and powers of states at war diminished. Upon the recognition of this principle depends the progress of nations, the independence of states, the liberties of the people. To restrict the rights of neutrals and enlarge the power of belligerents is to reject the teachings of Christianity and the improvements of civilization, and to return to the doctrines of uncivilized nations and the practices of barbaric peoples.

In reviewing the statute of 1818 we cannot escape the conclusion that it is founded upon an opposite and unsound philosophy; that it disregards the inalienable rights of the people of all nations; that it was imposed upon the country by considerations affecting exclusively the political interests of other nations; that it criminally restrains the rights of nations at peace for the benefit of those at war; that it was intended to perpetuate the supremacy of favored nations on the sea. It properly belongs to another age, and is not of us or for us.

It was in deference to the conditions then imposed that American legislators thought it expedient to divest this country of rights enjoyed by others, indispensable to the development of the strength of republican institutions and the American States, and to inflict upon their people the irreparable injury of depriving them of privileges necessary to their private prosperity and the preservation of the liberties of their race. It is incredible that it should have been thought necessary permanently to suppress as crimes on the part of our citizens transactions which are not punished as crimes elsewhere, for the benefit of nations inimical, if not hostile, to us, and against states struggling for independence and liberty in emulation of our own example.

No; these concessions to the peace of the world were made for the time when they were enacted. It was an opportune and patriotic policy. The preservation of the republic was the first duty of our fathers, as it is now ours. It is destined, if sustained, to be the grand disturber of the right divine of kings, the model of struggling nations, the last hope of the independence of states and of rational liberty.

To the example and prospect of our fathers we still adhere. But if the time has come for which they waited and worked, or whenever it shall come, in which the rights of the country can be asserted, its interests protected without departure from the established policy of our government, which we indorse without hesitation, and to which we adhere without reservation, it is our opinion that the opportunity should not be lost. And we therefore recommend, as incident to this duty and this day, a thorough revision of the statutes affecting our national relations with other governments, and the enactment of such laws as will limit its prohibitions and restrictions to those imposed by the laws of nations, the stipulation of treaties, the reciprocal legislation of other governments, the freedom of commerce, the independence of states, the interests of civilization, and that will curb the power of nations at war, and strengthen and extend the rights of those at peace.

Ships are articles of commerce; they are in no liberal or just sense contraband of war, nor are the materials of which they are made. The recent improvements in naval architecture are such as to. diminish the distinctions between merchant-vessels and ships of war, and to facilitate the adaptation of one to the purposes of the other. A strong-built, swift-sailing merchant vessel or steamer could be made with a single gun an effective war vessel. To prohibit our citizens from building such vessels or selling material for their construction at a time when all nations, except our own, are at war, because they may be employed for hostile purposes by foreign subjects, or to demand bonds in double the amount of vessel, cargo, and armament, and to require officers of the customs to seize and detain them whenever cargo, crew, or “other circumstances” shall render probable a suspicion that they are to be so used, and where American citizens are part owners only, is substantially to deprive them of their rights to engage in the construction of vessels or to furnish materials therefor. Considering the limitless capacity of the country in this respect, it is a privilege that ought not to be surrendered except upon grounds of absolute necessity and justice.—(Appendix to British Case, vol. v, pp. 347, 348.)

The principal alterations proposed in that bill were to make it clear that “fitting out” a vessel for a belligerent was not prohibited, and that there must be “fitting oat and arming;” to repeal the clauses known as “bonding clauses;” to insert a declaration that the act should not “pro-hibit citizens of the United States from selling vessels, ships, or steamers built within the limits thereof, or materials or munitions of war the growth or product of the same to inhabitants of other countries not at war with the United States;” and to repeal the clauses making it an offense to begin or set on foot, or provide or prepare the means for any military expedition or enterprise to be carried on from the limits of the United States against any foreign country at peace with the United States, (the clause under which the Fenian leaders were prosecuted,) and which authorize the President to employ the military or naval forces of the republic to prevent such expeditions.

The bill did not become a law, as the Senate refused to pass it without consideration, and referred it to the Senate Committee on Foreign Relations; and Congress adjourned without the committee having made a report.

The immediate effect of the bill, if passed, would have been to facilitate the dispatch from the ports of the United States of vessels to be employed by Chili and Peru in the war they were then carrying on against Spain.

1. American Neutrality; its Honorable Past; its Expedient Future. By George Bemis. Boston, 1866: pp. 65–81.
1. It may be doubted whether the interpretation placed by Mr. Bemis on the British statute of 1819, under this ninth “head,” is correct. In all other respects his observations are accurate and well founded.
2. For the acts, see Appendix, vol. iii, pp. 29–41.
1. Appendix to United States Case, vol. iii, p. 73.
2. Ibid., p. 92.
1. See vol. i, p. 668. The correspondence will be found also in the Appendix to the British Case, vol. iv, No. 1, p. 48.
2. Appendix to British Case, vol. iv, No. 2, p. 2.