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PART II.

THE TRUE ESTIMATE OF BRITISH NEUTRAL LAWS

AND BRITISH NEUTRALITY.

CHAPTER VI.

General Banks quoted as to

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scaling "American neutral laws down to the level of the British. The assertion, that British neutral laws are laxer than our own, an unfortunate one. On the contrary, British laws are decidedly the more stringent and complete of the two. This natural, because they profess to be an improvement, and were adopted after a thorough discussion, in which Mackintosh, Canning, &c., took part. The only wonder that the British improved so little upon Hamilton's model. At least ten important heads of superiority on the part of the British code: -(1) Its provision against the incipient offences of "agreeing to enlist," &c., for the land service. Illustrated by Fenianism, and case of Sir James Crampton's recruiting. (2) In forbidding recruiting for foreign ships from among foreigners. - Illustrated by Laird's recruiting for the "Alabama" in his ship-yard. — It was useless for Sir Roundell Palmer to urge this point upon the Court of Exchequer, when the British Government had so scandalously neglected to prosecute Laird. The American act, however, hits other violators of the law than "the natural-born subjects" of the United States. - Illustrated again from Fenianism.—(3) In embracing British subjects everywhere, while ours is limited to acts within United-States territory. — (4) In authorizing the detention of vessels about leaving with recruits "enlisted, or engaged to enlist," for foreign service. It is under this provision that the crew of the "Alabama" ought to have been stopped at Consul Dudley's demand.-(5) In prohibiting the fitting-out of any transport or storeship for belligerent use. - Reference to American practice in Crimean War, and to the new provision authorizing free traffic in ships of war as merchantable articles. —(6) In forbidding the fitting-out or arming, &c., of a ship of war, when our act only prohibits "fitting out and arming," with an exception which General Banks takes pains to subvert. - Laird's iron-clads stopped on this use of the word "or" in the British act. - Importance of this word "or" in several of our leading cases ignored. - Did General Banks mean to strike hands with Chief

Baron Pollock, of "Alexandra " fame? - Baron Bramwell's "quibble" and " evasion " noticed. —(7) In using the terms "in order that" in addition to "with intent" of our law. - Baron Pigott's friendly demonstration of this superiority alluded to. (8) In employing the terms "persons assuming to exercise the powers of government," in addition to "colony, province," &c. -Illustration from description of Jefferson Davis in the "Alexandra" and "Pampero" cases. Notice of Lord Curriehill's keen point, that neither the American nor the British act forbids the fitting-out of privateers. — The writer meets it with the American decisions. Cases of Guinet and Quincy noticed. The point may hold good of letters of marque.

THE Chairman of the Committee on Foreign Affairs thus states their motive for seeking to conform the new legislation of their proposing, to the tenor and terms of the British Foreign-Enlistment Act of 1819 (59th George III., chap. 69), which constitutes the only British neutral legislation now in force. I quote General Banks's oral explanation in debate, as more explicit than any thing contained in his written report:

"The object of the committee has been to scale the [United States] neutrality act of 1818 to the standard of the Foreign-Enlistment Act enacted by Great Britain in 1819. The provisions of the Bill which has been read are essentially the same as the provisions enacted for the same purpose in the Foreign-Enlistment Act of Great Britain. With the exception of the section giving citizens of the United States authority to sell vessels, the material of which they are made, and munitions of war, to governments or citizens of governments with whom the United States may not be at war, there is nothing in this Bill which is not contained in that act, and there is no provision in that act which is not substantially embraced in this Bill." ("Globe," July 30.)

The Chairman had previously stated in his Report (p. 6), — "Its restrictions [those of the British act] are nominal, compared with those of the American statute."

So that, by "scaling," I understand General Banks to mean that he proposes to lower the requisitions of the new American act to the level of the imperfections of the British statute; his line of reasoning being, that, whereas England has not been faithful to the fulfilment of her neutral duties towards this country in the late civil struggle, we now propose to put ourselves in a position to practise towards her, whenever it shall be deemed

advisable, the same treatment which her imperfect legislation has enabled her to practise towards us.

When the Chairman of the Committee on Foreign Affairs of the House of Representatives asserts that "the restrictions of the British statute are nominal, compared with those of the American," he hazards a statement which I shall be sorry to have meet the eye of any English jurist or statesman. So far

is it from being true that we shall have to make a descent in our legislation on this head, in order to come down upon a level with that of England, that I venture to affirm, that in many, if not in most, respects, the English statute is decidedly the more high-toned and comprehensive of the two.

Why should it not be so? It was passed the year after ours; it was professedly modelled upon ours, and with the bona-fide intent, as I believe, of improving upon it; and it had the benefit of one of the ablest and most thorough discussions that any measure involving the enforcement of international duties ever received in the British Parliament. When I mention that Sir James Mackintosh, Sir William Scott, Henry Brougham, Thomas Denman, James Scarlett, John Singleton Copley, all took active and prominent parts in the discussion; that Sir James Mackintosh made one or more of his most eloquent and celebrated speeches upon the Bill; and that George Canning, in closing for the ministry, replied to Mackintosh in one of his greatest efforts, in which he did us and himself equal honor for vindicating the good faith of the law of nations (as I have already briefly quoted in part), — I think I hardly need add any thing to show that the British Foreign-Enlistment Act is primâ facie as honest and thorough a piece of legislation as our own. The only wonder to me is, that the English publicists and statesmen were able to improve so little as they did upon Hamilton's model, in that part of the Bill borrowed from us; and I regard it as one of the greatest tributes to the genius of that extraordinary man, that all the legal talent of England combined, virtually confessed, twenty-five years after his act was penned, that it hardly knew how to better the groundwork of his scheme for enforcing international neutrality on the ocean.

Yet, with this actual or professed adherence to the American

standard of maritime neutrality, there are numerous details in which the British statute is decidedly more comprehensive and wholesomely severe than our own, either as left by Hamilton, or as modified by the laws of 1797, 1817, and 1818. Some of these points of superiority relate to warlike preparations on land (on which subject English legislation had provided, to some extent, at a much earlier date than our own), and some to preparations by sea, and some again to preparations combining both land and marine operations. Under one or the other of these heads, I can name at least ten important points of superiority in the British statute over our own.

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(1). In the first place, the British act is decidedly more comprehensive than the American, in denouncing unneutral enlistments, both in the land and naval service of a foreign government, by making it penal" to agree to enlist," or "to engage or contract to enlist," or to "engage engage" or or attempt to engage another person to enlist, neither of which initiatory steps of raising foreign levies is forbidden by our statute. Our act (sec. 2) only punishes one who "enlists or enters himself, or hires or retains another person to enlist," &c. ; thus making a positive and complete enrolment or hiring on neutral soil a prerequisite to the offence.

The importance of this distinction will be appreciated, when it is remembered that not a Fenian recruit nor a Fenian recruiter has been prosecuted for violating American laws by recruiting on American soil during the late Fenian demonstration in the United States, though the engaging to enlist, or the attempting to engage others to enlist, have probably been as open as the day in all the Northern cities. It was even made a question by Governor Andrew, at the time of Sir John Crampton's dismissal in 1855, Mr. Andrew being then one of the counsel who defended a British recruiting agent, indicted for procuring British levies on American soil,- whether our statute goes any farther than to forbid enlisting in the naval service, merely, of a foreign government; its words being, "to enlist," &c., "as a soldier, or as a marine or seaman, on board of any vessel of war," nothing being said about land service. Judge Sprague, of the United-States District Court, overruled the

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