PART IV.

DEFECTIVE EXECUTION OF THE ATTEMPT TO DETERIORATE ("SCALE") THE NEUTRALITY LAWS OF THE UNITED STATES.

CHAPTER IX.

The new project does not propose the immediate repeal, but only a temporary revision or "scaling "-down, of the neutrality code. - So much of the old law retained as hardly to excite notice of any change; not enough of repeal to quite come up to the programme of the Report, yet so much that it deserves grave attention. The inquiry how much has actually been repealed, sheds important light upon the whole subject. The scheme is to take the old statute into a new draft, leaving out the obnoxious clauses, and then amending. Seven sections retained almost identical with those of law of 1794; five sections left out, and a formula of repeal adopted that all provisions and penalties, "inconsistent with the provisions of this act, are hereby repealed." — What provisions and penalties are inconsistent? Not the provisions against setting on foot a military expedition, nor that giving the President power to use the army and navy to suppress it. Nor the "bonding" clauses.. In general, most of the provisions supposed to interfere with Fenianism hold their place. — No thanks, however, to the good-will of the House, which was earnestly bent on their repeal. — This illustrated by the repeal of the clause giving half penalties to informers. - Particulars of the congressional debate on that head. — Mr. Jenckes's motion to give the whole penalty to the United States. - Mr. Thaddeus Stevens's suggestion that that would prove fatal to any further prosecution. - General Banks's silence. His statement refuted, that there is no such provision in the British act as that of the Ameri- The British act gives informer half penalties, if not half forfeitures. — Note canvassing the distinction. It seems that the British act meant, at least, to correspond to the American. — Are bounties to informers necessary? — If so, did General Banks mean to strip the law of all its efficiency? — Doubtless, the new scheme substitutes "and" for "or" in the clause relating to fitting out ships of war. - Nugatory amendments. The provision against masters of vessels carrying away enlisted recruits contains no scienter. - Hence

can.

a Cunard steamer might be innocently subjected to forfeiture. — The same clause has no grammatical consistency, unless one "person " is made "to take on board" another "person" puss-back. — The same defect exists as to augmenting the force of a ship of war, unless by a chaise-a-porteur process. - Clause as to punishing offences without United-States jurisdiction noticed; a punishment without a crime. The new important provision as to the right of trading in ships of war also fails altogether of its appropriate expression. — This provision dwelt on to secure its better enactment.-Ludicrous mistake of Mr. Jenckes, of Rhode Island, as to Hamilton's use of the term "complaints," in § 7 of present law. - Illustrated by the legislative anecdote of mistaking "heath-hen" for "heathen."- General Banks's Bill "to preserve the neutral relations of the United States " quite on a par with this.

ACCORDING to the new project (as has already been in part suggested, in noticing General Banks's Report), the Committee on Foreign Affairs do not purpose the entire, immediate repeal of the existing neutral code of the United States; but, after recommending "a thorough revision of the statutes affecting our neutral relations" hereafter, content themselves for the present with reporting in their new Bill a law which omits certain of the most obnoxious provisions of the existing statute, and which then takes the remainder of the statute, with three or four additional and amendatory sections, into a new draft. In this sense, the committee's Bill retains so much of the existing law, in the new draft, that the casual reader of it would hardly suppose that any thing had been disturbed, and that the statutory project did not at all answer to the revolutionary designs broached in the chairman's Report.

Personally, I must confess to sharing myself in this feeling of disappointment, at contrasting the project of the law actually recommended with the revolutionary changes and fundamental reconstruction implied in General Banks's Report; yet, on more careful examination, it will be found, I think, that more repeal has been attempted than meets the eye, and, has already been suggested, than is indicated and explained in the preliminary Report itself. As a whole, however, the new legislative scheme cannot, it seems to me, be thought to quite come up to the programme of that great movement forward in the path of national destiny, which, according to the chairman's idea, has already reached the hour of its inauguration; but, on the contrary, it resolves itself into little better than a temporary politi

cal manifesto, intended to express congressional resentment for British unfriendliness, and congressional sympathy for the cause of Irish independence.

But, if the reader cares to follow the unanimous action of the American House of Representatives upon this important subject, I will endeavor to very briefly point out how far the new legislation succeeds in expressing the views of its promoters. I believe the inquiry will help shed important light upon the subjects hitherto discussed, particularly upon the disparagement of the Foreign-Enlistment Act, and the promotion of Fenianism.

As has just been suggested, a large portion of the existing law finds its place in the new draft.1

Seven sections of that law (there being thirteen in all) are retained in the committee's project nearly verbatim, with a slight modification only of penalties, as already noticed. These are Sections One, Two, Three (with a slight addition, hereafter commented on), Five (with a similar addition), Seven, a part of Eight, and Nine. These seven sections are almost identical with the original legislation of 1794, of Hamilton's proposing; and, so far, the first part of General Banks's reply to Mr. Jenckes is borne out, in which he says:

"The Bill reported, I will say, in answer to the inquiry of the gentleman from Rhode Island, is identical with that adopted during Washington's administration, and from which we have since departed."

Whether the identity is retained in the remaining sections, and who it is that departs from it, I leave to the reader to infer from what has already been said about the history and analysis of the existing statute, and from what follows as to attempted repeals.

Then, for the purposes of repeal, five sections or parts of sections of the existing law are left out in the new draft. These are Section Four (the clause forbidding the fitting-out of privateers in foreign ports to cruise against American commerce,

1 For the reader's convenience, I subjoin, in the Appendix, the new act, as it has passed the House, and now awaits the action of the Senate.

already considered), Sections Six and part of Eight (directed against setting on foot military expeditions, and giving the President power to stop them, already noticed under the head of Fenianism), and Sections Ten and Eleven, the bonding clauses, as I have termed them. These five sections and parts of sections constitute all that is specially doomed to annihilation. The new draft, then, embraces some new additions, which may be noticeable hereafter; but with these five sections ends all matter of subtraction.

To effect the repeal of these obnoxious sections, the House -not without examination of the matter, but following the lead of Messrs. Bingham and Conkling, who expressed themselves opposed to a specific and sweeping repeal, lest it should abrogate provisions not intended to be sacrificed-adopted the following formula of repeal :

"SEC. 12 [of new act]. — Provided, That all acts and parts of acts inconsistent with the provisions of this act, or inflicting any other penalty or forfeiture than are hereinbefore provided for the acts forbidden herein, are hereby repealed."

The question now arises, how far this formula, as thus crudely and rudely phrased, effectuates the objects of the committee, and how great an inroad will thus be made upon existing neutral legislation, provided the Bill, in its present shape, receives the sanction of the Senate, and ultimately becomes a law.

In reply to this, it is plain, that, unless the provisions thus sought to be repealed are "inconsistent" with those left standing in the new project, or unless the penalties or forfeitures prescribed by the old provisions are "other" than those “hereinbefore provided" (i.e., by the new act), there is no abrogation of those omitted sections.

Now, submitted to these tests, I venture to say that it will be found that no repeal in fact will have been wrought of either of the sections in question by the proposed formula, supposing it to be matured hereafter into a law. Thus, take the most important one, the clause forbidding the setting on foot of any military expedition, &c. (sec. 6 of the existing law). Is it inconsistent with any thing denounced against accepting a com