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self, or hire or retain another person to enlist or enter himself, or to go beyond the limits of jurisdiction of the United States with intent to be enlisted or entered in the service of any foreign prince, state, colony, district, or people, as a soldier or as a marine or seaman, on board of any vessel of war, letter of marque, or privateer, every person so offending shall be deemed guilty of a high misdemeanour, and shall be fined not exceeding one thousand dollars, and be imprisoned not exceeding three years,' &c.
II. The following is the opinion of Judge Kane:
'He would reject from the consideration every argument founded upon the punctuation of it (the Act). The phraseology of the second section is clear. The word "soldier" does not connect itself with any vessel. The important words in the Bill are "hire or retain," which include mutuality of engagement; "contract" means having paid, or engaged to pay or perform. I do not think that the payment of the passage from this country of a man who desires to enlist in a foreign port, comes within the Act. In the terms of the printed proclamation there is nothing conflicting with the laws of the United States. A person may go abroad, provided the enlistment be in a foreign place, not having accepted and exercised a commission.' (Papers, &c., p. 16.)
III. The following instructions were issued by the British Minister :
'Memorandum for the guidance of those who are to make known to persons in the United States, the terms and conditions upon which recruits will be received into the British Army:
1. The parties who may go to Buffalo, Detroit, or Cleveland, for this purpose, must clearly understand that they must refrain from any thing which would constitute a violation of the law of the United States.
2. They must therefore avoid any act which might bear the appearance of recruiting within the jurisdiction of the United States for a foreign service, or of hiring or retaining anybody to leave that jurisdiction with the intent to enlist in the service of a foreign Power. 3. Both these acts are illegal by the Act of Congress of 1818, sec. 2nd.
4. There must be no collection, embodiment of men, or organisation whatever, attempted within that jurisdiction.
5. No promises or contracts, written or verbal, on the subject of enlistment, must be entered into with any person within that jurisdiction.
6. The information to be given will be simply that to those desiring to enlist in the British army, facilities will be afforded for so doing on their crossing the line into British territory; and the terms offered by the British Government may be stated as a matter of information only, and not as implying any promise or engagement on the
part of those supplying such information, so long at least as they remain within American jurisdiction.
7. It is essential to success that no assemblages of persons should take place at beer houses or other similar places of entertainment, for the purpose of devising measures for enlisting; and the parties should scrupulously avoid resorting to this or similar means of disseminating the desired information, inasmuch as the attention of the American authorities would not fail to be called to such proceedings, which would undoubtedly be regarded by them as an attempt to carry on recruiting for a foreign Power within the limits of the United States; and it certainly must be borne in mind that the institution of legal proceedings against any of the parties in question, even if they were to elude the penalty, would be fatal to the success of the enlistment itself.
8. Should the strict observance of these points be neglected, and the parties thereby involve themselves in difficulty, they are hereby distinctly apprised that they must expect no sort of aid or assistance from the British Government: this Government would be compelled, by the clearest dictates of international duty, to disavow their proceedings, and would moreover be absolved from all engagements contingent upon the success of the parties in obtaining by legal means soldiers for Her Britannic Majesty's army.'
We have given these extracts at length, because we thus enable every one of our readers to form for himself an impartial opinion. The essential point of the law, on which so much stress has been laid, lies, as Judge Kane says, in the words hire or retain.'
Mr. Crampton tells Mr. Ströbel that he must not only not recruit for foreign service within the jurisdiction of the United States, or hire or retain any body to leave that jurisdiction, with the intent to enlist in the service of a foreign Power-but that he must avoid any act which might bear even the appearance of recruiting, or hiring or retaining any body to leave that jurisdiction with intent to be enlisted in the service of a foreign Power. If Judge Kane duly interpreted the United States law, Mr. Crampton told Mr. Ströbel to beware of even the appearance of disobeying the law: if Judge Kane erred in his interpretation of the United States law, Mr. Crampton is surely excusable for having likewise committed an error. Nevertheless, we do not say there was no risk in giving the instructions we have recited. In every course of action there is a risk, and this risk is in proportion to the number of persons who are required to follow such a course of action. But in criticising a man in any public situation for what he has done, you are bound to consider what would be said if he had not done it. Let us suppose that whilst the British Government wanted recruits whilst crowds of recruits were to be found in the United States, Mr. Crampton had remained inactive under the
plea that he could not move without infringing the American law, and that Judge Kane's opinion of that law had come forth, what would have been said of Mr. Crampton? But if we deem that the opinion of so eminent a legal authority justifies Mr. Crampton against a charge of indiscretion, when he acted in conformity with that opinion, it does not in the least surprise us to hear that there are eminent lawyers the legitimate advisers of the United States Government, who take an entirely different view of the matter in question from that which Judge Kane took. Neither are we surprised that Lord Clarendon, looking at the matter rather with the eye of a statesman than a lawyer, should have deemed that-whatever might be the abstract question of law at issue-the practical good which was to be achieved by attempting to obtain recruits under such a law was not likely, judging by the experiment that had been already made, to be in proportion with the practical evil which would result from the disputes which were certain to arise as to whether the law had, or had not, been infringed. Accordingly, on the 22nd of June, 1855, 'orders were sent out by Her Majesty's Government to Canada and Nova Scotia to discon'tinue all further proceedings' (i. e. all proceedings which were not then commenced, and in the way of being executed,) ́in 'the matter of enlistment for the Foreign Legion."*
But whilst the law officers of the United States Government are forming an opinion on the proceedings which have been taken for the purpose of reinforcing the British army in the Crimea by volunteers in the United States — an opinion at variance with that of Judge Kane, and the facilities which that opinion afforded: whilst Lord Clarendon, disregarding what may be the precise legal effect of a law which seems to be liable to more than one interpretation, deems it better to forego all risk of acting against such a law, — what is the United States Government itself about? Does it quietly inform Mr. Crampton that his proceedings have been watched; that the conduct he is pursuing is disapproved of; that any reliance he places upon Judge Kane's recent observations (they were delivered in the month of May) is unfounded? Not a bit of it. The Government of the United States, during the whole of the transactions to which we have been alluding, does nothing, says nothing. Mr. Crampton calls on Mr. Marcy; Mr. Marcy shakes him by the hand, talks to him and treats with him on every other matter; but on the matter which is quietly and obscurely growing and expanding into a national
* See Lord Clarendon's dispatch to Mr. Dallas, 30th April, 1856.
VOL. CIV. NO. CCXI.
difficulty, he breathes not a syllable. There he sits - the astute Secretary of State in his cabinet at Washington, like a hungry but discreet spider, watching the flies buzzing about his web, yet careful not to disturb their operations, until he sees, or thinks he sees, them tightly entangled. Then he makes his rush and it is singular to see how aptly he chooses his time. On the 22nd of June, we have said that Lord Clarendon had given orders for the cessation of all further proceedings in the enlistment scheme. It must have been almost on that very day that Mr. Marcy wrote to Mr. Buchanan, instructing him to complain of the proceedings which had taken place. Mr. Buchanan did complain, and was replied to by Lord Clarendon (16th July) in a communication which for its frank, manly, and conciliatory spirit defies criticism, and is thus spoken of by Mr. Buchanan himself in a note to his own Government.
'Lord Clarendon's note had entirely changed the aspect of the case from the view you took of it, and must necessarily have taken of it, at the date of your No. 102. (of July 15.). The general tenour of this note, its disavowals and its regrets, was certainly conciliatory; and the concluding paragraph, declaring that all proceedings for enlistment in North America had been put an end to by Her Majesty's Government for the avowed reason that the advantage that Her Majesty's service might derive from such enlistments would not be sought for by Her Majesty's Government if it were supposed to be obtained in disregard of the respect due to the laws of the United States, was HIGHLY SATISFACTORY. It was for these reasons that I expressed the SATISFACTION I would have in communicating it to you.'
The affair, indeed, here seemed practically terminated, but it is just when its real importance is over that its diplomatic importance commences. In vain Mr. Buchanan,-to whose conduct throughout this affair injustice has we think been done, and who seems to have been guided by a wise desire to terminate further debates on a question that had practically ceased,expresses his own satisfaction to his Government, and keeps back a further dispatch written in a very hostile tone, which he received from Mr. Marcy a few days after he had received from Lord Clarendon the friendly communication to which we have been alluding. He is ordered instantly to make known the dispatch which, from prudential motives and on a fair calculation of what was probable, viz., that the correspondence had closed with the assurances already made to him, he had hitherto refrained from communicating; and it is curious to mark the cumulative progress of the ensuing negotia tion. Mr. Buchanan, in his dispatch of the 6th of July, merely
complains of the proceedings that had been resorted to, and requires that they should cease. Mr. Marcy's communication of the 15th July not only required that all proceedings should cease, but that the British Government should take 'prompt and efficient measures to discharge from the British 'service those persons who were enlisted within the United States, or who left the United States under contract made 'there to enter and serve as soldiers in the British army.' To this Lord Clarendon replies on 16th November, stating that if there are any persons now in the Foreign Legion who 'have been enlisted or hired in violation of the United States, 'Her Majesty's Government will be prepared to offer them 'their discharge, and to give them a free passage back to 'the United States if they desire to return thither.' Another communication from Mr. Marcy, dated in December,_and written after the receipt of this last assurance from Lord Clarendon, follows: and here it will be seen that Mr. Marcy is not satisfied with having that which he had hitherto required, nor with resting his case solely on the laws of the United States; he requires that Mr. Crampton and three of Her Majesty's Consuls in the United States should be dismissed, and quotes Vattel, to prove that the offence with which he charges thema violation of the neutrality of the United States, is one not only against the Act of Congress, which we have cited, and on which the United States' case had at first been placed, but against the law of nations. Now we all know what a diplomatist means when he quotes Vattel and the law of nations; it is to plunge a disputed question into an unfathomable vortex of profound and conflicting authorities, until the disputants lose sight of the idea which they began by discussing, and only hear the noise of the whirlpool by which it has been swallowed up. Lord Clarendon's reply to Mr. Marcy's observation in December indicates by its tone, that though the English Government desires a peaceful solution of the question that has risen up, there is still a limit to concession. This, again, Mr. Marcy answers by a remarkably able state paper: its tone is at once dignified and courteous; and although he adheres to the demand which he seems now determined to stand by, viz., that Her Majesty's Minister and Consuls should be recalled, he makes use of such language as seems best calculated to palliate the offensiveness of this pretension. The rejoinder of Lord Clarendon does equal honour to that statesman's ability; he (evidently with intention) passes by the question of withdrawing any of the British functionaries in the United States,