out; if he engages him to go because he has such an intent, then the offence is complete within the section. Every resident of the United States has the right to go to Halifax, and there to enlist in any army that he pleases; but it is not lawful for a person to engage another here to go to Halifax for that purpose. It is the hiring of the person to go beyond the United States, that person having the intention to enlist when he arrives out, and that intention known to the party hiring him, and that intention being a portion of the consideration, because of which he hires him, that defines the offence. I believe that after making this comment upon the law, I might pass on to the facts; but it occurs to me to add, that you are not to require proof of the connexion of the defendant with each particular fact and circumstance which has been given in evidence to show the working out of the general plan. If you believe the witnesses, the object here was to effectuate an enlistment beyond the borders of the United States, and yet escape from the provisions of this section; to do effectively, and yet not seem to do. If you are satisfied-no matter what was the avowed object of the party, no matter what the pretext, if you are satisfied that Henry Hertz was here engaged in hiring and retaining men to go off to Nova Scotia, there to enlist, that being their intention, and he be lieving that it was so, and therefore hiring them; then, no matter what was the costume or mask which the transaction wore, he has committed the offence charged in the bill of indictment. As to the evidence, gentlemen, you have listened to it very carefully, and it has been commented upon abundantly. I do not know that it is my duty to detain you by a single remark on it. It is all on one side. Whether it establishes the fact is for you to judge. The enlistment necessarily includes the action of different parties; the concert between them is to be inferred from their acts. The intention of the party engaged or retained to enlist, is to be gathered from his conduct and declaration here, from his conduct after he reaches the foreign country, and from the action of third persons with whom he perfects the enlistment that he may have contracted for here. You are, therefore, while looking primarily at the conduct of Hertz, to look also at the actions of others tending to the same objects; and if you judge that they were actually in concert with him, then all their acts, done in pursuance of the common purpose and plan, are to be regarded as his. With these remarks I leave the case in your hands. At the conclusion of the judge's charge, the jury retired, and returned in about fifteen minutes. On taking their seats, the clerk of the court, in the usual form, put the question: "Gentlemen of the jury, have you concluded upon your verdict?" To which the foreman replied, "We have." Clerk. How say you, guilty or not guilty? Foreman. Guilty as to Henry Hertz, in manner and form as he stands indicted on all the bills of indictment; as respects Emanuel C. Perkins, not guilty. The jury were then discharged. Sentence deferred for the present. And now, September 29th, 1855, Theodore Cuyler, esq., and Stephen Remak, esq., for Mr. Hertz, move for a rule for a new trial, and, by leave of court, file the following reasons: UNITED STATES vs. HENRY HERTZ. In the district court of the United States, sur indictment for unlawful enlisting, &c. 1. That the learned judge erred in admitting in evidence proof of the acts and declarations of other persons done and said in the absence of defendant. 2. The learned judge erred in his construction of the language and meaning of the act of Congress of 1818, under which these indictments are framed. That he held, and so instructed the jury, that the words "hire or retain," employed in said act, would be satisfied by less than an absolute contract, founded upon sufficient consideration, and capable of legal enforcement if the same were not made unlawful by the provisions of said act. 3. The weight of the evidence was clearly and decidedly that no person was hired or retained to enlist, or to leave the United States," with intent to enlist; but the several persons sent to Halifax were engaged to go, and were sent there, with the distinct understanding that they were there to determine whether they would or would not enlist, and were, until then, entirely free and at liberty, bound by no contract or engagement, and therefore having no intent, &c., within the meaning of the act of Congress. 4. The verdict was against the evidence; and 5. The verdict was against the law. THEODORE CUYLER. And now, October 12th, 1855, the motion for a rule for new trial coming on before Honorable John K. Kane, is argued by Theodore Cuyler, esq., and Stephen S. Remak, esq., for the motion; and the same being denied, and new trial refused Mr. Van Dyke said: The motion of the defendant for a new trial. being refused, I ask leave to present to this court the confession which has been made to me by the defendant, Henry Hertz. This prosecution has not been merely local in its tendencies, nor the influence of its results likely to be confined to the sphere of an ordinary prosecution in this district. Its results are of a far more extended importance. The disclosures made in the progress of this cause may be the ground-work of an important step on the part of the federal government in relation to those who have been instrumental in producing that system of interference with our affairs, which has formed the basis of this prosecution. I am permitted to say that the trial which has just resulted in the conviction of this defendant was authorized by the national Executive; and before making the motion which I intend to submit to your honor, I beg leave to read the instructions. which I have received in relation to this trial. Being aware that the system of enlistments had been effectually broken up by the prompt execution of the warrants which I had caused to be issued for the arrest of various parties, and by the efficient aid which Mr. Wynkoop, the marshal of this district, and his officers, had otherwise furnished me in ferreting out the system adopted for the evasion of our laws, I had supposed there might not be any urgent necessity in pressing the prosecution of the defendants who have just been tried, and had written to the Attorney General of the United States, asking whether it was the desire of the administration further to press these prosecutions. To which I received the answers dated September 12, 1855, and also the letter dated September 17, 1855; both of which I shall take the liberty of reading to the court. Mr. Van Dyke read the letters as follows: "ATTORNEY GENERAL'S OFFICE, September 12, 1855. "SIR: In reply to your letter of the 10th instant, on the subject of the indictments pending against persons charged with recruiting for the military service of Great Britain, I have the honor to make the following observations: "Mr. McKeon has been advised of the desirableness of conferring with you personally, either by himself or his assistant, in regard to new evidence to which he may have access, and which can be useful to you. "I suggest the expediency of trying only a part of the cases now, especially if you fail to convict in some leading case. "But the most important consideration is this: "This government has, of course, addressed to that of Great Britain such demands of public redress and satisfaction in the premises as the national honor requires. But the government of Great Britain, with. extraordinary inattention to the grave aspect of its acts-namely, the flagrant violation of our sovereign rights involved in them-has supposed it a sufficient justification of what it has done, to reply that it gave instructions to its agents so to proceed as not to infringe our municipal laws; and it quotes the remarks of Judge Kane in support of the idea that it has succeeded in this purpose. It may be so. Judge Kane is an upright and intelligent judge, and will pronounce the law as it is, without fear or favor. But if the British government has, by ingenious contrivances, succeeded in sheltering its agents from conviction as malefactors, it has, in so doing, doubled the magnitude of the national wrong inflicted on the United States. "This government has done its duty of internal administration in prosecuting the individuals engaged in these acts. If they are acquitted, by reason of a deliberate undertaking of the British government, not only to violate, as a nation, our sovereign rights as a nation, but also to evade our municipal laws, and that undertaking shall be consummated by its agents in the United States; when all this shall have been judicially ascertained, the President will then have before him the elements of decision, as to what international action it becomes the United States to adopt in so important a matter. "I am, very respectfully, "JAS. C. VAN DYKE, Esq., "United States Attorney, Philadelphia.' "C. CUSHING. "ATTORNEY GENERAL'S OFFICE, 'SIR: I desire to make a further suggestion in regard to the trial of parties charged with recruiting soldiers in the United States for the service of the British government. "It is known that instructions on this subject were given by that government to its officers in the United States. We are told by Lord Clarendon that those officers had stringent instructions' so to proceed as not to violate the municipal law-that is, to violate its spirit, but not its letter. If so, the instructions themselves violate the sovereign rights of the United States. "But, in the meantime, every consul of Great Britain in the United States is, by the avowal of his government, subject to the just suspicion of breach of law; while, apparently, he must either have disobeyed his own government, or, in obeying it, have abused his consular functions by the violation of his international duty to the United States. "In these circumstances, it is deemed highly necessary that the British consul at Philadelphia, or any other officer of the British government, shall not be suffered to interfere in the trials, as he attempted to do on a previous occasion; that no letter of his be read, except in the due form of evidence; and that, if he have any thing to say, he shall be put on the stand by the defence, in order that he may be fully cross-examined by the prosecution. "It is clear that he has no right, by any rule of public law or of international comity, to be heard in the case by the court, otherwise than as a witness, whether enforced or volunteer. "I have the honor to be, very respectfully, "JAS. C. VAN DYKE, Esq., "United States Attorney, Philadelphia.” "C. CUSHING. Your honor will perceive that the object in this prosecution has been as much to break up the general system which had been adopted by the British government to violate our municipal laws, as it was to punish those who should be found guilty as the instruments of that government. If the present defendant, since his conviction, has contributed in any manner to aid the government in this investigation, and that aid has been the result of a sincere regret and repentance for his past conduct, it is, in my opinion, but just that he should have the benefit of his present conduct in the sentence which your honor may see fit to pronounce in his case. I therefore move that the defendant's confession be read, and that it be filed of record among the proceedings in the cause, to be duly considered by the court in the judgment which may hereafter be pronounced against the defendant. Per curiam. Let the paper be read and filed of record. The confession is as follows: UNITED STATES vs. HENRY HERTZ. In the district court of the United States, in and for the eastern district of Pennsylvania. United States, eastern district of Pennsylvania, ss. Be it remembered, that on this 11th day of October, A. D. 1855, before me, Charles F. Heazlitt, a commissioner of the United States, personally came Henry Hertz, who, being duly sworn, says: That some time in the month of January, 1855, I read in the London Times a notice of the passage of a resolution of the British Parliament, authorizing the enlistment of a foreign legion. A day or two afterwards I went to the United States Hotel, where I heard three or four gentlemen speaking of this country as a place where enlistments could best be made. One gentleman by the name of Miller pointed at me, as the man best fit for enlisting men for the British service, because, as he said, I am so well known among the German and foreign population. One of the gentlemen sitting there arose and said to me, "I am an English officer; I am not particularly engaged in this matter now, but I can tell you how to embark in it without running any risk, and I would be glad if you would engage in it; but, in order to accomplish this, it is necessary for you to go to Washington and see Mr. Crampton, the English ambassador." From what I learned afterwards, the name of the gentleman was Mr. Bruce McDonald. Two or three weeks afterwards I went to Washington, and was introduced by many gentlemen by letters to Mr. Crampton. I had obtained these letters without telling those, gentlemen the object of my visit; but, before delivering any of these letters of introduction, I addressed a note to Mr. Crampton, requesting an interview with him; that note did not state the object of the interview. The principal object of my visit to Mr. Crampton was to ascertain whether I could safely embark in this enterprise. I was stopping at Willard's Hotel, and in reply to my note, I received the note hereto annexed, marked A. (C. F. H.) (This note has been published in Mr. Strobel's testimony, and will be found, ante, at page 145.) After the receipt of this note I called on Mr. Crampton, at his residence; it was on Sunday morning when I called; I saw Mr. Crampton; he said, in substance: "Your letters of introduction assure me that I may have full confidence in you; I have not sufficient authority yet from the home government with regard to the matter, but I expect early authority from Lord Clarendon. I have already received à letter from Lord Clarendon, inquiring how many men might be enlisted in this country for British service, and what the United States government would think of such an attempt. I can tell you this; that if you embark in this matter, you can make a great deal of money; if procuring of men for the English service should be undertaken, it will be very advantageous to you; but I expect a letter from Lord Clarendon by the next steamer, which may be expected in eight or ten days, giving me full explanations and instructions how the matter is to be conducted." In this conversation he had reference to enlistments in this country for the Crimean war. He stated that he had |