that all such unlicensed foreign recruiters are kidnapers, and justly "punished with the utmost severity in every well-regulated state."(Droit des Gens., liv. iii, ch. 2, s. 15.) Nay, he admits the general rule that the neutral should not furnish assistance to either belligerent.(Ibid., liv. iii, ch. 7, s. 110.) But Vattel was a Swiss, of Neufchâtel, and he labored, in this matter, under the patriotic necessity of extenuating, as he best might, the ignominious capitulations of the Swiss cantons for the supply of mercenary troops to the other states of Europe. But, in this case, he has enough of conscientiousness to say that there must be strict impartiality, or at least contracts of service anterior to the

war.

Mr. Manning, in an elaborate review of the whole subject, concludes thus:

Foreign levies may not be allowed to one belligerent while refused to his antagonist, consistently with the duties of neutrality. When treaties, antecedent to war, permit such exclusive privilege, then no complaint of breach of neutrality can be maintained by the excluded party. But when no antecedent treaty exists such [195] a permission would be a violation of neutrality, the principles of which demand

the strictest abstinence from assistance to either party, and, of course, will not admit that exclusive privileges, in so important a particular, should be granted to one belligerent. Nor have the customs of Europe, derived from the practices of the middle ages, established any usage that prevents this question from being settled in accordance with the dictates of reason, or, in other words, with the law of nature.-(Manning, ut supra, p. 180.)

Mr. Manning's reasoning is conclusive so far as it goes. And the imperfection of other English law-books in this respect is of no account, as against the general authority of the expounders of international law in all the rest of Christendom.

Misconstruction has also been placed on the fact that Bynkershoek maintains the right of private or voluntary expatriation, even for the purpose of foreign military service. But he does not express nor countenance the thought that a foreign belligerent may recruit soldiers in a neutral country without the consent of its sovereign. On the contrary,

he exhibits in full the legislation of the United Provinces, accord [196] ing to which it was a capital offense to make *enlistments in the country without the consent of the States-General.-(Quæst. Jur. Publici, lib. i, c. 22.)

Besides, Great Britain has, in her own legislation, sanctioned and adopted the rule of public law, by enacting that if any person whatever, within the United Kingdom, or in any part of the dominions of Great Britain, shall hire, engage, retain, or procure, or shall attempt or endeavor to hire, retain, engage, or procure any person whatever to enlist, as an officer, soldier, sailor, or marine, either on land or sea service, for or under or in aid of any foreign prince or government, or to go or to agree to go or embark from any place in the British dominions for the purpose or with the intent to be so enlisted, entered, or engaged, as aforesaid, every person so offending shall be deemed guilty of a misdemeanor, punishable by fine or imprisonment, at the discretion of the court having jurisdiction of the act.-(Act of 59 Geo. III, ch. 69.)

We, in the United States, acting in the sense of natural right, and following the rules of public law as explained by the jurists of continental Europe, asserted and established this doctrine at a very early

period, in opposition to the undertaking of the French government, [197] through its minister, M. Genet, to man or equip cruisers within

the United States.-(Mr. Jefferson to M. Genet, June 17, 1793. American State Papers, Foreign Affairs, vol. i, p. 154.)

And our judicial text-books are full and explicit on the same point.(Wheaton, by Lawrence, p. 498; Kent's Com., lec. 6.)

It is obvious to the most superficial reflection, that no distinction of principle exists in the levy of a military force in the neutral country, as between the land and sea service; and if Great Britain may raise within the United States volunteers for her land service, so Russia may raise them for her marine service, that is, may fit out privateers in our ports; and, indeed, if we grant or permit the former privilege to Great Britain, we must, in like manner, in order to be impartially neutral, concede the latter privilege to Russia.

And it is equally obvious that foreign recruiting must not be forbid den or permitted under the influence of any assumed national sympa thies or antipathies. Individual or national preferences are quite im material in such a question. The United States cannot, either lawfully or honorably, practice a simulated neutrality; nor can a dissem [198] bled alliance be claimed or *expected from us, either by Great Britain or by Russia.

From the well-established rules and principles of law, then, it is plain to conclude:

1. The acts of enlistment in question are contrary to the municipal law of this country, and indictable as a high misdemeanor.

2. Those acts, if permitted to one belligerent, must be permitted to all, in observance of impartial neutrality.

3. Being against law in the United States, and therefore not permitted to Great Britain, if undertaken by her as a government, they afford just cause of war, being direct national violation of the territorial sovereignty of one nation by another.

4. Whatever agents of the British government, whether official or unofficial, acting voluntarily or by orders, have participated in such acts, are not only guilty of a criminal infraction of the statute law, but. also, in the language of Vattel, of violating one of the most sacred rights of the nation.

I presume that if, in the present case, the British minister imagines that the acts performed under his direction were not contrary to the

municipal law, it must be on the ground that the recruits were [199] not completely enlisted in the United States; that is, did not

here in all form enter the military service of Great Britain. That assumption is altogether fallacions. The statute is express, that if any person shall hire or retain another person to go beyond the limits or jurisdiction of the United States, with intent to be enlisted or entered into the service of any foreign state, he shall be deemed guilty of the defined misdemeanor.

It is possible, also, that he may have supposed that a solemn contract of hiring in the United States is necessary to constitute the offense. That would be mere delusion. The words of the statute are "hire or retain." It is true, our act of Congress does not expressly say, as the British act of Parliament does, "whether any enlistment money, pay, or reward shall have been given and received or not," (Act 59 Geo. III, ch. 69, s. 2;) nor was it necessary to insert these words. A party may be retained by verbal promise, or by invitation, for a decared or known purpose. If such a statute could be evaded or set at naught by elab orate contrivances to engage without enlisting, to retain without hiring, to invite without recruiting, to pay recruiting money in fact, but under another name of board, passage-money, expenses, or the like, it [200] would be *idle to pass acts of Congress for the punishment of this or any other offence.

However this may be, and if such were the thought of the British government, it has not been succesfully carried out; for, on the e

dence before me, including the general instructions of the British minister and his direct correspondence with recruiting-officers in the United States and others, my opinion is positive that the parties have made themselves amenable to the penalties of the statute, and may be convicted before any competent court of the United States.

It is further to be observed, in conclusion of this branch of the subjeet, that, whether the acts of the British minister and his agents, in recruiting troops within the United States, do or do not come within the technical provisions of the acts of Congress, is altogether immaterial to international right, as between this Government and that of Great Britain. If, by ingenious evasions of the letter of a penal statute intended only for private malefactors, the British government should, nevertheless, levy troops here, the fact of the statute being thus defeated and trampled under foot would serve only to augment the public

wrong.

[201] *Suppose, for instance, that the British government shall have said to its officers, civil or military, in the British North American Provinces, and to its diplomatic or consular agents in the United States, "you will proceed to raise so many men in the United States; but remember that to do so is forbidden by the municipal law of that country, and is indictable as a misdemeanor; you will, therefore, take care to proceed cunningly in this, so as not to incur the penalties of the Such instructions, while they might have the effect of raising the troops, as desired by the British government, without its agents incurring the penalties of the statute, would but constitute a more flagrant and aggravated violation of the national dignity and the sovereign rights of the United States.

Suppose a foreign government, by circular instructions to its diplomatic and consular agents in the United States, instructs them to organize a system for evading the revenue laws of the country. In such case would the international injury be any less if the contemplated evasions should be successfully perpetrated? Or, if the government of

an adjoining country send hither agents, under the immediate [202] superintendence of its minister, to *counterfeit the coin, circulate

base coin, steal, rob, or commit any other offense, with depots on our frontier to facilitate the commission of the crime and utilize its proceeds: Should we be satisfied with the reply, that in all this our laws had been successfully evaded by the careful instructions and ingenious devices of the foreign government and its public functionaries in the United States?

Beyond all this, it would seem that the legal advisers of the British government conceive that the official agents of one nation may rightfully do, within the territory of another, anything which is not by the domestic statutes of the latter declared to be a municipal offense, indictable as such before the courts of law. If such an idea be entertained by the British government or its law-officers, certainly it is a mere delusion, possible to exist only in minds shut up in the narrow sphere of the technical common law of England.

How insular that law is, and how defective the knowledge it imparts even for the purpose of domestic, and still more of foreign, administration, the jurists of England themselves have too frequently had cause to observe. (See, ex. gr., Phillimore's Internat. Law, pref., p. xi; Chitty's Prac., pref., p. v, note.)

[203]

Nothing can be plainer than the position that the objects of the municipal law in such a case are domestic only. In constitutional governments it confers on the executive in the particular matter powers

which he would not otherwise possess, and it provides the means of repressing all acts of individual persons, whether foreign agents or not, which may contravene the policy or infringe the rights of the country. But the municipal law cannot reach the foreign sovereignty, by whose orders the individuals in question, if public agents, act in violation of the local sovereignty. Yet, is not the foreign sovereign, as sovereign, the chief wrong-doer? And is the wrong to be redressed in no way except by punishing the subordinate agents of the wrong, if there happen to be any municipal law to reach the case? And if there be no such law, is the injury to go unredressed? Clearly not, for governments in their international acts are directly responsible to governments.

But the radical absurdity is in assuming that a foreign government may lawfully do on the territory of another government, or cause to be done, anything whatever, which is not made penal by local statutes.

This assumption is altogether groundless. The law of nations is [204] *international, not domestic or municipal; it is the ensemble of

international conventions, usages, and received opinions, aided, in case of need, by the doctrines of abstract justice and of universal reason. It is not restricted to the bounds of acts of Parliament or acts of Congress. International right would be reduced to a singular condition indeed if it consisted of those things, and those things only, which, for consideration of internal convenience, Great Britain or the United States may have happened to enact as law by means of their legislative assemblies. It is not so, either affirmatively or negatively. Things are affirmed in their statutes which are not according to the law of nations: and there are many points of international law which have not been affirmed by their statutes. A single pertinent illustration of the latter

will suffice.

There are two matters of sovereign right which are alike in character. and are naturally associated in the writings of international jurists, namely, the right to prevent either the transit of foreign troops or the enlistment of soldiers for foreign service. In Great Britain and the

United States we have municipal laws to repress and to punish [205] the individual agents, official *or unofficial, of the latter invasion

of our sovereign rights; but none to punish or even to repress the former. May it, therefore, be done with impunity? Nay, can it be done without national offense? It may, according to the premises assumed in the other case. If all acts of foreign enlistment may be rightfully done, provided there be no prohibitory statute, and if there be any, then all such as the statute does not reach—of course all acts of foreign military transit may be rightfully performed, and there is the end of the sovereignty of every nation, which does not happen, like Great Britain. to be surrounded by water.

In truth, the statute in all these matters is of but secondary account. The main consideration is the sovereign right of the United States to exercise complete and exclusive jurisdiction within their own territory: to remain strictly neutral, if they please, in the face of the warring nations of Europe; and, of course, not to tolerate enlistments in the country by either of belligerents, whether for land or sea service. If there be local statutes to punish the agents or parties to such enlistments it is

well; but that is a domestic question for our consideration, and [206] does not regard any foreign government. All *which it concerns

a foreign government to know is, whether we, as a government, permit such enlistments. It is bound to ask permission of us before coming into our own territory to raise troops for its own service. It has no business to inquire whether there be statutes on the subject or not.

Least of all has it the right to take notice of the statutes only to see how it may devise means by which to evade them. Instead of this it is bound, not only by every consideration of international comity, but of the strictest international law, to respect the sovereignty and regard the public policy of the United States.

Accordingly, when, at the commencement of the great European struggle between England and France, near the close of the last century, the French government assumed to recruit marine forces in the United States, it was held by President Washington, and by his Secretary of State, Mr. Jefferson, as explained in the correspondence herein before quoted, that by the law of nations, in virtue of our sovereignty, and without stopping to enact municipal laws on the subject, we had full right to repress and repel foreign enlistments, and, e converso, that the attempt to make [207] any such enlistments was an act of gross *national aggression on the United States.

When a foreign government, by its agents, enters into the United States to perform acts in violation of our sovereignty, and contrary to our public policy, though acts not made penal by municipal law, that is a grave national indignity and wrong. If, in addition to this, such foreign government, knowing that penal statutes on the subject exist, deliberately undertakes to evade the municipal law, and thus to baffle and bring into disrepute the international administration of the country, in such case the foreign government not only violates but insults our national sovereignty.

I repeat, then, that, if it were to be supposed that the British government had so far forgotten what is due to its own dignity, as to instruct its agents within the territories of the German Bund, in the Netherlands, in the United States, to enlist recruits without respect for local sovereignty, but with care to avoid or evade the letter of local statutes, instead of diminishing, that would aggravate the injustice and illegality of the proceeding in the eye of the law of nations, and the intensity of the public wrong as regards the neutral states thus [208] converted, without their consent, into a *recruiting ground for the armies of Great Britain.

Such instructions would be derogatory to our public honor in another respect. They presume that the United States, without becoming the open ally of Great Britain, will, by conniving at the use of their terri. tory for belligerent purposes, while professing neutrality, thus carry on, as already intimated, a dishonorable war in disguise against Russia.

It appears, however, that the British government, finding it impossible to keep the ranks of its army filled by voluntary enlistments, and being loath to encounter the responsibility of a law for conscription, for drafts on militia, for periodical service of its able-bodied men, or for any other systematic method of raising troops from its own population, introduced into Parliament a bill entitled "An act to permit foreigners to be enlisted, and to serve as officers and soldiers in Her Majesty's forces," but which was in fact a bill to authorize the government to employ agents to carry on recruiting service in the neutral states of Europe and America.

The law was earnestly objected to in its progress as insulting to neutral states and derogatory to the national dignity, but was passed, [209] *nevertheless, on the 22d of December, 1854.-(Hansard's Debates, third series, vol. 136, passim.)

At an early day after the passage of this act measures were taken to recruit officers and men for a proposed foreign legion in the United States, those measures being publicly pursued under the official respon