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" fine and imprisonment, or either of them, at the discretion of the court; ” with the exception of the punishment for masters of vessels who transport foreign levies out of the kingdom, which is fixed at a forfeiture of fifty pounds per head (sec. 6). General Banks, in imitation of this, reported his Bill originally, with every penalty left discretionary with the court, exactly in the terms just quoted; the provisions as to masters of vessels, as we have already seen, making no part of the existing American act. (House of Representatives' Document, No. 806.)
Upon the taking-up of the Bill in the House for consideration, the Chairman of the Committee — struck, perhaps, with this unscientific and un-American feature of his measure moved to insert, in Sections One, Two, and Three, specific maximums of punishment, --so that, in Section One, the imprisonment should not exceed two years (one year less than at present by the act of 1818); in Section Two, the same maximum (also one year less than at present); and in Section Three, the same maximum of imprisonment as at present (three years), but with a reduction of the maximum of fine from $10,000 to $3,000 : and in this shape the amendments were adopted by the House. Section Five, however (probably by some oversight), had the discretionary punishment of the first draft retained; so that, instead of the one year's imprisonment and the fine of $1,000 of the present law, the penalty is now left wholly " at the discretion of the court."
Now, going back to our starting-point, —viz., the comparative severity of the Foreign-Enlistment Act and of the American act in its present condition, unaffected by General Banks's project, — is it not a higher degree of severity for the British judge to have power to fine and imprison ad libitum, than for the American judge to be tied down to imposing a maximum of three years' imprisonment, and a limited amount of fine, for a violation of neutrality? And when the Chairman of the Committee on Foreign Affairs, not content with retaining this lesser stringency of the American law, proposes to reduce it still further, by lowering the maximums of imprisonment in three instances out of four, as has just been noticed (these four being the only remaining penal sections of the Bill, after striking out the clauses left for repeal in the project itself), is it hardly consistent with legislative candor to talk about scaling down to the level of the standard of the British Foreign-Enlistment Act?
Perhaps the Chairman of the Foreign-Affairs Committee, at the time of introducing his project to the House, was thinking of the paltry sentences actually imposed by the British judges, in the exercise of their discretion, upon Jones, Highat, and other such convicted violaters of the Foreign-Enlistment Act; but does that justify his general impeachment of the efficiency of the act itself, or permit him to leave the impression that we must lower the tone of our present laws in order to come down upon the same plane of neutral inefficiency with those of Great Britain ?
I might go on to add to my catalogue of points of superiority of the British neutral code over our own, several others besides the ten thus above enumerated, though doubtless of less moment. But I trust enough have been adduced to make good my position, that in many, if not in most, respects, the British statute is decidedly the more comprehensive and searching of the two. Perhaps, instead of " its restrictions being merely nominal,” the reader will be prepared to agree with me, that Canning borrowed from our code in good faith, and that if we would, in our turn, imitate again upon the model of the Foreign-Enlistment Act, we might " receive our own with usury.”
On the other hand, I frankly concede, as General Banks urges, that the British statute is obnoxious to the objection of being more or less dependent on the royal fiat of the monarch for its vitality and operative effect. As any one will notice who glances at its terms, several of its denunciations against forbidden acts are predicated upon their being done " without the leare or license of His Majesty being for that purpose first had and obtained ;” thus recognizing that His (or Her) Majesty's leave and license may quite legitimize the prohibited proceeding.
Now, in reference to this, I have to urge, in the first place, that this dispensing prerogative of the Crown does not apply to the statute universally and throughout, — as perhaps General Banks and his associates imagine ; but only to certain features of the enlistment clauses, and those regulating the fitting-out of ships. On the contrary, the whole business of recruiting for foreign service on British soil (see latter clause of section 2) is left to the regular operations of permanent law; and so are the taking on board a vessel of domestic levies for foreign service, and the personal liability incurred by the captain for consenting to it, — as by the provisions of sections 5 and 6, already commented on.
In the next place, while fully agreeing to the vicious and inadmissible character of the dispensatory feature referred to, I am only surprised that General Banks should himself have adopted it — at the suggestion of Mr. Jenckes, of Rhode Island ("Globe,” July 30) - in that part of his project upon which he lays most stress; I mean in the portion of his Bill putting beyond doubt the freedom of neutral commerce to traffic in ships and munitions of war. By section 10 of his Act, as amended by the House with his approbation, all the provision of that section (introduced into the statute for the first time, as a new feature), in regard to selling ships and material of war to foreign belligerents, which I have already quoted in connection with the clause of the British statute as to "the fitting-out of transports and storeships,” is made dependent on the executive will of the President of the United States, in the following manner :
“ Provided, that the operation of this section of this act shall be suspended by the President of the United States with regard to any classes of purchases, whenever the United States shall be engaged in war, or whenever the maintenance of friendly relations with any foreign nation may, in his judgment, require it.”
Now, as this clause can seldom or never come into operation whenever the United States shall be engaged in war,” — the very fact of their being at war with any nation implying that they cannot so far be neutral, or in a relation of peace, to that nation, – the latter category, " or whenever the maintenance of friendly relations with any foreign nation may, in his judgment, require it,” becomes the normal prescription of the statute, and so places it upon the very footing which the chairman himself so much reprobates.
Plainly this principle of autocratic dictation ought never to
find a place in American legislation. It is hard enough to comprehend how Englishmen, even at the date of 1819, should have left in the hands of the king's ministers the power of precipitating the kingdom into war, by allowing them to make the British dominions the recruiting-ground and the naval basis of foreign belligerents; but certainly, under the Constitution of the United States and the established practice of the American Government, no such power should be lodged with the President of the United States, as to be able to stop at pleasure all commerce" in selling vessels, ships, or steamers, built within the limits thereof, or material or munitions of war, the growth or product of the same, to inhabitants of other countries, or to governments not at war with the United States," which General Banks's new legislation proposes to confer henceforth.
With all respect, I would beg to inquire of the Chairman of the Committee on Foreign Relations, whether the too friendly aid which, seems to have been extended by the United States to Spain in her present contest with Chili, through an over-strict enforcement of our neutrality laws as against the latter power, and which, according to the chairman himself, " has been universally condemned” (Rep., p. 8), is not an exact illustration of that unneutral interference on the part of the Executive with our foreign commerce in times of war, which he now seeks to make normal and perpetual by express legislation. I would further ask whether such despotic stopping-short and letting-loose of quasi fighting-ships at pleasure is not an hundred-fold more objectionable in principle than the impartial and equally operative provision of simply taking a bond from the owners that they (not their vendees or assigns) will agree that their ships shall not violate the neutrality of the United States; - a restriction on commerce which, according to the chairman's denunciation, so " criminally restrains the rights of nations at peace for the benefit of those at war.
But, in the last place, I have to urge, more importantly than the two suggestions already made, - in reply to General Banks's assault upon the Foreign-Enlistment Act, founded upon its being dependent on the pleasure of the Crown for its vitality, that thus far we have never had any occasion to complain of this feature of the British statute, as applied against us; and so that it can make no part of that list of grievances which impels the present movement to scale our neutral laws down to the level of the English standard. Admitting that the whole of the Foreign-Enlistment Act has been subject to the royal supersession during our late civil struggle, will the Chairman of the Committee on Foreign Affairs for a moment contend that we have suffered any injury in consequence of the exercise of the kingly prerogative referred to? On the contrary, notwithstanding the clamor of the secessionists, that the neutrality of Great Britain has worked to their prejudice in its recognizing and respecting the Federal blockade, and in its refusing (to both parties) the right to carry in and sell prizes, and in various other particulars, who has ever heard that it was even proposed by the British Government to suspend the operation of a single section of the Foreign-Enlistment Act for a single day? There were proposals enough on their part, to be sure, to better it, which, I am sorry to say, never came to any thing, practically ; but when and where was it ever suggested by any responsible public man in England, that the Crown should interfere with the law, as it then stood, to set it aside in a single particular, or for a single moment?
No: the burden of our grievance against England, toned down to its lowest basis, is not that she had not on her statute-book a neutrality code as good as our own, and one sufficiently complete to guarantee to us our neutral rights, but that, having a law quite sufficient to afford us neutral protection, and one decidedly superior to our own, she did not adequutely and in good fuith enforce its provisions. Executively, it was Earl Russell's pettifogging mode of administering it, in for ever insisting upon proof sufficient to convict, instead of primâ-facie evidence adequate to detain ; Judicially, it was Chief-Baron Pollock's shuffing partisanship, in depriving us of a precedent declaring the "Alexandra” forfeited, at as early a day of the rebellion as June, 1863 ; and, Legislatively, it was the British Parliament's openly sanctioning and approving of a compromise with the violators of the law, in which " the law itself bought out the guilty prize," in the shape of paying