out any defeasance whatsoever for said ministers, against whom, as we shall see in a great many places, the statute provides in a manner irrisory, absurd, and of impossible application.

ARTICLE 156. Any person who, without the authorization of the government, shall recruit or procure to be recruited, hire or procure to be hired, men for a foreign military or naval service, or shall procure arms, or ships, or munitions for the same purpose, shall be condemned to the maximum of correctional imprisonment and to the maximum of time.

ONLY SECTION. If the offender be a foreigner, he shall be temporarily expelled from the country.

This article appears, with respect to its wording, to have been copied from the article 22 of the French penal statute:

Seront punis de mort ceux qui auront levé on fait lever des troupes armées, engagé on enrôlé, fait engager ou enrôler des soldats, ou leur auront fourni des armes [391] ou munitions sans ordre ou autorisation du *gouvernement."

By the construction of that article it is not doubtful that it can only be enforced in cases where it may be proved that such recruiting had for object to disturb the internal safety of the country. The court of cassation at Paris, in its proceedings of the 13th of February, has decided that such proof was not required, and that the law being silent, the material fact alone was to be considered, excluding entirely its object.

But Chauveau and Hélié (Théorie du Code Pénal, cap. 18,) show that this doctrine is altogether contrary to the law, and that the legislator cannot have intended to inflict capital punishment for offenses of other character.

Such a penalty could not be justified as concerning enlistments for a foreign country. This fact is not criminal in itself, but only when the object is not honest, or when it infringes the municipal laws, or laws of police, or of public convenience. It is the selfishness of proper conservation, leaving the contending parties or belligerent powers to themselves, when a succor of that kind might save them, or bring the war to a sooner and more honorable conclusion.

Our statute has taken that crimination and applied it not only to enlistments for foreign military service, but also to naval and mili[392] tary *service itself. It has declared an offense that which is essen

tially of a character that no government whatsoever can make licit, for the government's authorization can only be granted to that which is morally licit. But if the violation of the law consists only in neglecting that formalité, the infringement assumes the character of a delinquency of more or less importance, but can never assume that of a erime.

The crimination of the French statute, with the same provision for capital punishment, was adopted by our statute of 1837, with the same meaning, but with direct connection to any object whatsoever, excepting the case of urgent necessity for repelling an imminent danger of the country attacked by war abroad or on its territory.

The same statute implicitly prohibited any recruiting or enlistment for foreign service, but authorized all individual efforts of that nature in cases of stringent necessity for defense abroad and in the country.

The Brazilian penal statute has omitted such provisions, and we shall not criticise it on that account. It incriminates only in a general manner, under article 73, the fact of hostilities against the subjects of another nation, such as to endanger peace or to provoke to reprisals.

[393]

*The Spanislr statute, under article 147, No. 6, inflicts the pun

ishment of irons up to that of death on any one who shall, within the territory of Spain, recruit men for the service of the armies of an hostile power. We shall therefore omit it with regard to our present

article.

The statute of Sardinia, article 181, and that of the Two Sicilies, concur with our two cases, between which, however, they make a differ

ence.

In the first case the Sardinian statute inflicts temporary reclusion or the galleys, according to circumstances, and capital punishment in the second. The statute of the Two Sicilies inflicts also capital punishment in the latter case, but in that of our article it inflicts temporary exile.

The modern Bavarian statute, article 306, No. 4, provides for an offense which is substantially the same, and is considered as treason at the fourth degree, and punished as such with imprisonment for a term of two to six years.

Celui qui enrôlera secrètement des sujets du royaume au service d'une puissance belligérante étrangère, ou qui prétera aide et assistance à un recruteur non autorisé pour l'exécution de ses desseins.

Under the other German statutes, in connection with the crime of

treason, are considered and punished as being preparatory acts [394] thereto the recruiting and purchases of arms and munitions. The

same doctrine is to be found in the Prussian statute, section 64. Finally, the Austrian statute, under article 77, concurs also with our article, but it provides only that a similar crimination be punished by the military law, confining it, however, to the state of war with the recruiting nation.

Celui qui enrôle des hommes pour un service militaire étranger conformément aux lois militaires, par le pouvoir militaire.

est jugé et puni

This observation was presented by Cambacerès to the council of state during the discussion of the French penal statute. Mr. Berlier replied that there was no inconvenience in inscribing such provision in the statute. But the above-mentioned Chauveau and Hélié answered then that such a crimination would be useless, because, if it is acknowledged that the incriminated facts are of a military character, he did not see any reasonable ground that would justify such an exception as inserting said provision in the common law. It would be a derogation of the order of matters which was proposed to be followed by the statute.

However, if the defendants on the crime under our said article be not soldiers, they cannot be tried by the military courts, in accordance with the provisions of our statute, article 16.

[395] As regards the penalty, that of correctional im*prisonment and the fine, we acknowledge that it is appropriated to the offense under said article. It is one of the very few cases where pecuniary punishment has not the inconvenience of being confiscation. Without pecuniary means no one does recruit, no one becomes a soldier, no one hires himself or procures himself to be hired. Money is here the principal inducement, or the instrument, of the offense. A heavy fine is certainly a means to stop it, in conformity with article 81 of the statute. However, the offense may be of greater or of less gravity, the circumstances of the case may exculpate or not, and in a greater or less degree, according to the intention of the offender. To recruit in a foreign country for raising the cry of liberty, of independence, or of legiti macy, is an enterprise which excites the sympathies of a noble public, and of all men who hate tyranny, injustice, usurpation. To recruit in order to restore absolute power, to co-operate in conquest, to re-estab

lish the inquisition, to destroy the property or credit of another nation, this is a crime which excites horror, and which is detested by all those who appreciate order, peace, and the happiness of mankind.

What! must such proceedings be incriminated if intended to succor a nation struggling with unequal forces in order to maintain its independence or its liberty, or its legitimate prince?

[396] *Upon these promises a penalty which always threatens with

the maximum of punishment is a vicious one, as it cannot be divided. It necessarily causes a too severe punishment to be inflicted on the offender whose object was noble and generous, as well as the one whose object was abominable and base. Moreover, recruiting or enlisting for maritime service is not in itself as important as enlisting or recruiting for the military or naval service of a foreign power.

Reciprocal free trade between nations, which is so profitable and so worthy of encouragement, shall always exculpate an infringement of a mere formality of authorization.

In mercantile speculations connected with travels by sea, one day's, one hour's delay, may miscarry a good business, ruin or render worthless a commercial operation which would otherwise have proved most profitable had it been managed in due time. The secret itself, which is often necessary to keep, the secret which is the soul and life of such undertakings, will not permit to be particular about the delay for preparatory acts, delay which would involve the necessity of an authorization in similar cases.1

[397] *Thus, if considered under this point of view, the defects [398] *of the penalty are greater still. The same punishment is not inflicted for facts of different gravity with regard to the intention, but of different gravity with regard to their actual char

[399]

acter.

*This crimination has its grounds in the doctrines of Wolf and

1 Mr. Levy contends that said article is to be understood as providing only for warlike service; he grounds his opinion on the fact that the contrary would be so absurd that it is not possible to suppose that the legislator would have enacted it. But, notwithstanding all the respect and deserved admiration we pay to the young jurisconsult, we do not see in the words nor in the context of the article any conclusive reason for limiting its provisions. Were it even an aberration from all that has been enacted on the subject in other statutes, as the incriminated fact is only a delinquency, the legislator may have considered the necessity of manning our own men-of-war and merchantmen, and we do not, therefore, consider said provision to be so absurd as it should appear at first. The recruiting of sailors for the national mercantile shipping is not prejudicial to the recruiting for the navy, but moreover our men-of-war can be supplied with men from our merchant-vessels, while, on the contrary, the recruiting for foreign merchantmen deprives our navy of sailors. And it is so well the case that, under the regulations of the 30th of August, 1839, article 13 of chapter 3, all merchantmen are to be minutely searched in order that they do not raise Portuguese sailors without leare, and, if any such sailors be found on board, the captain of the port is to take them immediately into custody and give them up to the police officer, who shall, by the first opportunity, send them to the navy guard, where they shall be shipped on board a vessel of the Crown. And under the provisions of the additional article, the said captain is bound to make all possible diligence, in order to have always a list of all the sailors, with declaration of the number of men upon whom one may reckon for the service of the fleet.

Thus, the meaning of foreign naval service, though not military, but naval service generally, can, without appearance of absurdity, be considered as involved in the words military service or foreign naval service," so much the more that in this way the fact of non-authorization is incriminated against the recruiting agent, as it was incriminated against the recruits and the parties accepting to be enlisted, by sections 1 and 2 above mentioned, with the express designation of merchantmen.

Anyhow, we acknowledge that the wording of the article is not good, but we deem it more proper to criticise the law, in order that it be altered, than to resort to the last of arguments, the argument ex absurdo, in order that its literal provisions be contradictory with themselves. Dura lex, sed lex.

1

Vattel, claimed by the American Government in 1793 in the beginning of the war in Europe, and which have been incorporated in au act of Congress of 1794, corrected and re enacted in 1818.

Under the provisions of said act it is not only an offense to increase the force of a vessel of war of a friendly country, and to prepare a military expedition against said country, but equally to hire or recruit men for any foreign service on land or on the water.

The example of America was soon followed by Great Britain, by an act of Parliament, (59 Geo. III, cap. 59,) known as "An act to prevent the enlistment or recruiting of His Majesty's subjects for foreign service, or the armament and equipment within His Majesty's dominions, with an intent of war without His Majesty's permission."

The principal reason upon which Vattel and Wolf ground their opinion in condemning enlistments without the authorization of the gov ernment, is, that recruiting constitutes an exclusive prerogative of sovereignty, which no one can legitimately exercise, without express leave, in the territory of another state.

[400] But all the prerogatives of sovereignty *have their just limits. It does not extend further than what is required in order to accomplish the social object. If the enlistment be not prejudicial to the national military service, if it does not free the recruits of the tribute of blood they are to pay to their country, where is, then, the offense against its prerogative?

The federal constitutional act of Germany, signed at Vienna on the 8th day of June, 1815, permits, by article 18, all subjects of the confederated states "to enter the civil or military service of any of those states, provided that such right do not interfere with the obligation incumbent on said subjects to enter the military service in their own country if required to do so by statute."

The Americans have amplified the principles of natural law, claiming in favor of their absolute neutrality, that as a man must remain in peace with another man who does not assault him, thus also a nation must behave toward another nation.

But this argument is not right in the present case, because it would assume that the natural law is false, which not only does not incriminate so much personal defense as that of another person (a principle

which has been adopted by our statute, article 14, No. 3, and [401] *other articles concurring with it,) but it condemns still more, as

being immoral, the fact of a man who remains an indifferent looker-on to a fight between two of his fellow-creatures, and allows one of them to be killed or severely wounded, when it is in his power to assist him.

But there is nothing therein which can be applied to service on board of merchantmen in time of peace, when there is no appearance of any concealment or fraudulent preparations for war.

In short, this crimination involves facts of different gravity and dif ferent character, which it would be convenient to discriminate from each other, and to punish in a different manner according to the character of the offense, which would be consistent with justice, but cannot be done with the penal provisions of the article, the same maximum of punishment being enacted for all offenses under said article.

With regard to the amendment in section 1, we consider this solution as adequate to the legislator. When the recruiting agent is a foreigner, and does not entertain any hostile views against us, the most proper course is to expel him from the kingdom.

[402]

And this penalty has not the same *inconvenience as the above

mentioned ones, because being only temporarily inflicted, without declaration, the foreigners are to be expelled from the country for a term of years not to exceed twelve years, and which can, according to circumstances, be reduced to three years, in conformance with article 36.

[103] *No. 2.-EFFORTS TO PRESERVE THE NEUTRALITY OF THE AZORES AND MADEIRA.

Mr. Harvey, United States minister, to Mr. Seward, Secretary of State. [Extract.]

LEGATION OF THE UNITED STATES,

Lisbon, October 3, 1862.

SIR: After my No. 157 was dispatched on the 29th ultimo, I had a personal interview with the Viscount Sada Barrdeira, the minister of war, who is also acting as minister of foreign affairs during the absence of the Marquis de Loulé, in reference to the outrages at the Azores, the conduct of the Portuguese authorities there, and other matters connected with the general subject. I carried with me some of the testimony bearing on the important points, and submitted it to him with explanatory comments.

He was frank enough to say that the islands in question had been used and abused by corsairs and pirates during centuries; that they were exposed and unprotected, and therefore might be so employed again; and that our best plan would be to send a sufficient force there

to protect American ships against threatened depredations and [404] to punish criminal offenders. I informed him that two war

steamers had already been ordered to the islands, and that the sloop-of-war Saint Louis was ready to sail; but I had detained her a day for my own dispatches, and offered him that opportunity of communicating with the Portuguese officials. He thanked me for the courtesy, but said it would be impossible to prepare any instructions within the time named, and that the authorities of the Azores were already possessed of the views of the government through the royal proclamation of last year.

I called his attention particularly to the report of a project to establish a coal depot for "confederate" cruisers on the islands, saying that it was part of a plan to equip and arm against our commerce in flagrant disregard of the king's proclamation. It was agreed between us that I should address him a note on the subject, directing attention to the points most requiring prompt consideration. A copy of that note is now inclosed for your information. It needs no explanation at my hands.

No effort has been spared and no precaution neglected which care and prudence could suggest or provide for this emergency. In fact [405] all the resources at my disposal or discretion *have been exhausted, and I may say, without egotism, at least energetically, if not wisely.

I am, sir, very respectfully, your obedient servant,

Hon. WILLIAM H. SEWARD,

JAMES E. HARVEY.

Secretary of State.