Charge of Judge Wilson to the grand jury of the circuit court for the southern district of Ohio.

[Extract.]

If I am correctly informed, gentlemen, these statutes to which I have directed your attention comprise all that you will have occasion to examine attentively, unless you become satisfied that the neutrality law of 1818 has been violated in this district. Should complaints come before you for the breach of this law, I would ask your especial examination of the first and second sections of the act. It is known as the "Act in addition to an act for the punishment of certain crimes against the United States," approved April 20, 1818.

[518] *It is now an acknowledged fact, and one that will constitute a part of the history of our times, that within the last fourteen months a foreign power has through its ministers, consuls, and other agents in the United States, been engaged, in violation of positive law, in enlisting troops for a war upon a nation with which our Government is at peace. After what has so recently transpired in the cities on our Atlantic sea-board, and a sister city of our own State, the Federal courts and grand juries would prove derelict of duty to shut their eyes upon these flagrant violations of law.

In the war which is now being carried on in Europe the United States occupies the position of a neutral power. The rights of neutrality bring with them corresponding duties; among these duties is that of impar tiality between the contending parties. By the law of nations the neutral is the common friend of both parties; consequently is not at liberty to favor one to the detriment of the other; and this impartiality permits the neutral nation to give no assistance, (when there is no previous stipulation to give it,) nor voluntarily to furnish troops, or arms, or anything of a direct use in war. No nation, either ancient or modern, has adhered more steadfastly to these rules governing neutrals than that of Great Britain.

[519] *At the commencement of the war between France and England, in 1793, an attempt was made by France to violate the neutrality of the United States by arming and equipping vessels and enlisting men within our ports to cruise against the shipping and merchant marine of England. Great Britain, conscious of the kind and sympathetic feeling then existing between the citizens of this country and France, became alarmed, and protested with arguments of great force to the claims made on this country by the French minister, M. Genet, in behalf of his government. And those of you, gentlemen, who retain fresh in your minds the history of those times, or who are at all familiar with the American state papers, will not fail to remember with what ability and wisdom Mr. Jefferson, then Secretary of State under President Washington, defined the neutral policy of the United States. This policy was in accordance with the then expressed views of the British government, and resulted in the unqualified denial to France of her demands. Accordingly the American Congress, in 1794, passed an act embracing this policy, which act was revised and re enacted in 1818, and this is the statute to which I have specially called your attention. This law having originally passed under the auspices of Washington, thus recognized at an early date in this country, [520] not only the obligations of neutrality, but the duty of the Gov ernment to enforce them.

*

The English government certainly cannot plead ignorance of this policy or complain of American legislation upon this subject, for, not

content with what her great lawyers and statesmen had for more than a century claimed to be a well-established matter of international law, the British Parliament, in 1819, passed what is called "the enlistment act," which is substantially a copy of the act of the American Congress of 1818.

If ever there is anything which will justify a sensitive and uneasy feeling in the people of the United States, it is when their laws are put at defiance and trampled under foot by the sanction of a foreign government. Neither will they recognize or admit of any palliation for this course of conduct on the part of the offending government or its citizens, on the ground of necessity, or that the belligerents in a foreign war, on the one side or on the other, have a just or an unjust cause. With the morale of this European controversy we have nothing to do, and whether it would be better for mankind that the standard of the crescent should be upheld by the armies of Christendom in the Ottoman Empire, or whether it should be supplanted by that of the cross, is a matter not to be considered by American courts and juries in administering the laws of the United States. It is unnecessary that I should make further comment upon the provisions of this act of 1818, or the cause which led to its passage. I am confident that in relation to this, as in all duties imposed on you as grand jurors, you will act fearlessly and faithfully, and as men fully impressed with the importance of maintaining the sovereignty of the laws.

[521]

*Attorney-General Cushing to the President.

ATTORNEY-GENERAL'S OFFICE,

May 27, 1856. SIR: I deem it incumbent on me to bring to your notice sundry pas sages in official communications of the British minister, Mr. Crampton, to his government, as they appear in the "papers relative to recruiting in the United States," recently presented to Parliament, which contain palpable errors of statement touching me personally or my official action as Attorney-General.

1. In a letter to the Earl of Clarendon, of the 19th of November, 1855, in commenting on Mr. Marcy's letter to Mr. Buchanan, of the 15th of July, 1855, Mr. Crampton assumes that the British consuls, implicated in illegal enlistments in the United States, were prevented, by the tenor of my instructions to the district attorney of Philadelphia, from testifying to their alleged innocence. (Papers ut supra, p. 128.) That statement is not true.

The district attorney was instructed to object to any attempt of the British consul to do what he had undertaken on a previous occasion to do, that is, to interfere in the trials by officious letters, written for the purpose; but, instead of being forbidden, it was expressly suggested that he should appear as a witness.

[522]

*It is obvious that it cannot be admitted that a person, who deems himself inculpated by judicial proceedings, be allowed to interpose in the trial by mere letters of denial or ex parte explanation. He has no right, in law or courtesy, to any such privilege. If he desires to be heard, he must appear in a legal manner, that is to say, as a witness, in order that he may be examined so as to elicit the truth.

The British consul at Philadelphia might have volunteered as a wit

ness in the case of Hertz, if he had seen fit. He ought to have done so, if his testimony, lawfully given, could have proved anything material, either to the prosecution or the defense.

There was nothing extraordinary in this particular matter, except the presumption of a foreign consul in supposing that he might interfere by volunteer letters, to affect the course of criminal justice in the United States.

2. In Mr. Crampton's letter to the Earl of Clarendon, of November 27, 1855, it is alleged that the proceedings against Hertz and others, in Philadelphia, were instituted, not against the persons who were osten

sibly arraigned, but against the British diplomatic and consular [523] *agents in the United States. (Ubi supra, p. 134.)

That is incorrect. The proceedings were commenced in March, 1855, when no suspicion was entertained by this Government of the relation of Mr. Crampton and of British consuls to the illegal acts in question. It is true, however, that among the objects expected from and accomplished by the trial, was the legal ascertainment of facts alike important to the British government and that of the United States.

3. In these same letters Mr. Crampton says that, at the time of the trial referred to, (September 21, 1855,) "the United States Government must have known that all recruitment, legal or illegal, had been put a stop to several weeks before." (Ubi supra, p. 134.)

That is a mistake. This Government knew nothing on that point, at that time, except what Lord Clarendon had said in his letter to Mr. Buchanan of July 16, 1855, namely, that the British government had sent orders to put an end to "all proceedings for enlistment."

Lord Clarendon did not mention when the orders were sent; nor does the context of his letter show whether the orders spoken of applied to the United States only, or also to British America. At what time [524] those orders took effect, *to whom sent, and their exact scope, did not then appear of public notoriety, and was never communicated to this Government.

This Government well knew that recruitments took place in August: · it did not know that they had ceased in August. So soon as it had satisfactory information of their cessation, instructions were given to desist from all further judicial proceedings, except against official agents of the British government. (Letter of the Attorney-General to Mr. McKeon, of October 20, 1855, ubi supra, p. 129.)

4. In the same letter Mr. Crampton says that the United States Government must have known that the proceedings of Hertz were, from the moment he attempted to enter upon a system of recruitment, disavowed by Her Majesty's officers." (Ubi supra, p. 136.)

This is not so. This Government knew the contrary of what is thus alleged. It knew that Mr. Crampton had corresponded with Hertz. (Ubi supra, p. 67.) It also knew that Hertz was officially employed and paid by Mr. Howe, as the latter has since declared on oath. (Ubi supra, p. 218.) 5. In his letter to the Earl of Clarendon, of March 3, 1856, Mr. [525] Crampton assumes that he *and the inculpated consuls were the real parties defendant, and then proceeds to argue on the further assumption that they were prohibited from appearing in their own defense. (Ut supra, p. 178.)

I have already commented upon and corrected the error of fact involved in these assumptions, in so far as regards the consul.

As to Mr. Crampton, he also could have offered his testimony if he

had pleased. If he suggest that considerations of diplomatic dignity would prevent this, the reply is, that considerations of diplomatic dignity should have prevented his engaging in association with persons, now said by him to be of equivocal character, in the systematic violation or evasion, for a period of nearly six months, of the municipal law of the United States.

He well knew in April that persons, in the actual pay of his government, were under prosecution in Boston, New York, and Philadelphia, and should then have anticipated that his name would eventually come in question before the courts of justice, all the personal annoyance and other inconveniences of which he encountered voluntarily, and with no right now to complain of the consequences.

[526] For the rest, the law of nations, it is true, exempts Mr. Crampton from trial for misdemeanor; but it is idle for him to suppose that his hired agents in the commission of the misdemeanor, who are not themselves invested with diplomatic privilege, were to have it accorded to them otherwise, or that his participation in the acts perpetrated should not come under observation in a court of justice without his being able to appear directly as defendant on the record.

6. In the same letter Mr. Crampton repeats the erroneous statement that "the consuls were not allowed to be heard on the trial of Hertz." (Ut supra, p. 179.)

I have already remarked on this point. I add, that on the trial of Wagner in New York, pains were taken to obtain the evidence of the active official agent of enlisting there, Consul Barclay's deputy, Mr. Stanley, but without success.

7. In the same letter Mr. Crampton reproaches the "law-officers of the United States" for resorting to the aid of "spies and informers" for the proof of facts. (Ut supra, p. 179.)

Those are designations of mere prejudice applied by Mr. Crampton to *his own paid agents and accomplices in the violation of the laws [527] of the United States. *It is a very strange complaint to make

against the "law-officers of the United States."

Crimes are not to go unpunished merely because the only attainable witnesses of the crime were accomplices in its commission. If such evidence were excluded, it would be impossible to administer penal law. Its employment belongs to the ordinary course of law in Great Britain, as well as in the United States.

The complaint is the more groundless in this case, since the offense which the parties had committed, and in the commission of which they acted under orders and with pay, proceeding in the first instance from the British ministers, was not of a nature to affect the credibility of the parties as witnesses. Notwithstanding their participation in illegal recruiting, they were competent and credible witnesses, morally, and also by the rigorous rules of law.

I omit all remarks on the captious commentary which Mr. Crampton 'makes in the same letter respecting the judicial proceedings in the trial of Hertz. That is diplomatic matter. My present object is only to speak of those passages in Mr. Crampton's dispatches in which he attacks the Executive Government by reflections on the Attorney-General.

[528]

*8. In the same letter Mr. Crampton criticises a remark made in Mr. Marcy's letter to Mr. Buchanan of the 28th of December, to the effect that whoever entices away the subjects of another state for military purposes, and without its consent, violates its sovereign rights; and he founds the criticism upon the assumed authority of the original

text of two writers on the law of nations, who are cited by Mr. Marcy, namely, Christian de Wolff and Vattel.

As the same authors, and to the same effect, have in another document been cited by me, it may not be improper for me here to say that the error in this matter is on the part of Mr. Crampton. He assumes that the word "debaucher," in Vattel, is incorrectly rendered in the received English translation, "entice away," and alleges that the idea intended is "kidnaping," which he infers from the use by Vattel, in the context, of the word "plagiat" with equivalent sense, and as the corresponding Latin word "plagium" is used by Wolff.

What Mr. Crampton impliedly asserts in this criticism is, that though it may be contrary to the law of nations to enter the territory of a foreign government and seize recruits there by force, yet that it is [529] lawful to enter that *territory and entice them into foreign military service, without the consent of the state, provided it be done by pecuniary or other inducements.

The misconception of Mr. Crampton in this respect becomes manifest by reference to the text of Wolff, which is copied and abridged, and thus rendered obscure, by Vattel."

It is perfectly clear that Wolff intends by the word "plagium" to cover all the possible means of obtaining recruits in a foreign country without consent, and especially enticement, because, in the passage in which he defines "plagium" and gives illustrative examples, he expressly includes acts of mere persuasion or enticement, and also includes reference to such enticement in contravention of the authority of the state.

Mr. Crampton's error in this respect would have been avoided if he had read and quoted the whole of the material passage in Wolff.—(Jus Gentium, sections 785, 756.)

But the most important error of fact which Mr. Crampton commits in this correspondence, relates to the order of the British government for the cessation of recruiting in the United States.

[530]

*In a letter to Lord Clarendon of March 3, 1856; he says:

A new charge is now brought up against us, which is not alluded to in Mr. Marey's dispatch of December 28, to the effect that, though we promised to stop the recruitment by your note of July 16, we still continued it. I can disprove this by documentary testimony.-(Papers, ut supra, p. 212.)

In a letter to Sir Gaspard Le Marchant of January 13, 1856, Mr. Crampton writes:

There is one story which I want your assistance in demolishing.

I know the assertion to be false, but I wish to have it under your hand that it is so, as far as you are concerned.

Mr. Cushing openly asserts that he knows, and can prove, that we-yon and I-went on with the recruitment long after Lord Clarendon said we had been ordered to stop it. Now, how are the facts? Lord Clarendon announced this to Mr. Buchanan in a note dated the 16th of July, a copy of which I received somewhere about the 2d of August. I immediately telegraphed to Lieutenant Preston to break up his station at

Niagara, and not receive another man. I know he obeyed. People who were [531] ready to start *from New York were stopped. I also lost no time in communicating with you, in case you should not have heard from home.

As there were no other places where recruits could be received but Niagara and Halifax, all we want is the dates at which the last man was received from the United States. (Ut supra, p. 232.)

Here is exquisite confusion of thought and of statement.

It is immaterial to inquire whether I ever asserted anything of the nature imputed. Certain it is that I can prove it, by the testimony of two competent witnesses, Mr. Crampton and Sir Gaspard Le Marchant. The statement imputed to me is, that the recruitment went on "long