THE FOREIGN ENLISTMENT ACT.

THE Foreign Enlistment Act is the title commonly given to a Statute which was passed, in the year 1819, with two objects: first, to prevent the Enlistment of British subjects in the military or naval service of Foreign Powers without the licence of the Crown; and, secondly, to prevent, without the same licence, the Equipment of vessels to be employed in the service of one Foreign Power against another Foreign Power with which the country is not at war. The title has been taken from the first of these two objects. At the time when the Statute was passed, the enlistment of thousands of the veterans of the Peninsula in the service of the South American States attracted the attention of every one. At the present moment the Alabama, the Alexandra, and the Steam Rams have forced into prominence the subject of the Equipment of Vessels for belligerent Powers. The Statute imposes a restraint on such equipments; and it is, therefore, of importance to determine, if possible, the amount of restraint thus imposed, as well as the policy of the restraint; and to distinguish between such a sale of a vessel to one of two belligerent Powers as does not come within the Statute, and the equipment of a vessel for the same belligerent Power forbidden by the Statute. With this view, I have given, in the following pages, a short account of the legislation on the subject. I have attempted to examine both the policy and the interpretation of the Statute, in the hope of supplying materials for the discussions now proceeding in the Courts of Law and likely to take place in Parliament, and of contributing towards the formation of a just and dispassionate public opinion upon a question of difficulty.

There is a difference between the policy and the interpretation of the Statute, and the distinction between the two is shown most clearly by the difference of the methods used for their investigation. To interpret a Statute, we must look, in the first instance, at the words of the Statute. The historical circumstances out of which it arose, and the evils it was intended to prevent, can be taken into consideration only when the terms employed are doubtful, or the grammatical meaning uncertain. If the terms are clear and exact, we can go no further. When we have arrived at the grammatical meaning of the words, we have arrived at the interpretation of the Statute. This interpretation is peculiarly the duty of Courts of Law. But in examining the policy of a Statute the historical circumstances under which it was passed, and the evils it was intended to prevent, are of the first importance. A knowledge of them is necessary in order to understand the objects which the statesman who framed the law had in view. His exact words often fail to express his policy fully. He may have found it impossible to carry it out completely, and his words may be the result of a compromise. Or, again, he may have accidentally used language inadequate for his object. The grammatical meaning of his words expresses only the degree to which he has made his policy law. The best exposition of that policy will be found in the State Papers of the Executive Department to which the subject belonged. These State Papers, therefore, and the history of the events connected with the enactment, explain the policy of a law; the Reports of the Courts give us the interpretation of the law. Taken together, the two make up a complete account of the legislation on any subject.

The framers of the Foreign Enlistment Act had before them an Act of the Congress of the United States passed in the year 1818; and this Act follows almost word for word an earlier law of the 5th of June, 1794, which it was introduced to amend, bearing the title of "An Act in addition to an Act "for the punishment of certain crimes against the United "States." Thus the English Statute of 1819 traces its origin to the American Statute of 1794. They are the enactments of

two natious, deriving their law from the same sources, adopting the same legal language and the same rules for the interpretation of that language, and in the habit of appealing each to the decisions of the Courts of the other, not indeed as binding precedents, but as authorities of value. The American Act was passed in consequence of the conduct of the French Minister at Philadelphia, in the summer of 1793,-conduct unsurpassed for effrontery, even in a generation which abounded in instances of flagrant contempt for the rights of nations. In his defence of the English Statute in 1823, Mr. Canning said, that it was enacted on the principle of neutrality adopted by the Americans on that occasion. We may look, therefore, to the history of the American Act, and the decisions of the American Courts upon its interpretation, to throw light upon the policy and interpretation of the English Act. For its own sake, too, this portion of history is worth our study. The summer of 1793 was a critical period of American diplomacy. The Act of 1794 is a landmark in American history. The neutrality then secured has influenced all subsequent American policy.

The year 1793 opened with the execution, on the 21st of January, of Lewis the Sixteenth of France. On the 1st of February, the National Convention of France declared war against England and Holland; and the news of the declaration reached America in the beginning of April. Washington had entered upon the office of President of the United States for the second time, on the 4th of March; and the Members of his Cabinet were Thomas Jefferson, Secretary of State for Foreign Affairs; Alexander Hamilton, Secretary of the Treasury; Henry Knox, Secretary of the War Department; and Edmund Randolph, Attorney-General. Of these four, Hamilton and Jefferson were the master spirits. They were unlike one another in every respect. Hamilton was both a lawyer and a soldier. He had been the favourite aide-de-camp of Washington in the War of Independence, and had brought away from his military service an ardent admiration for his chief, and a deep conviction of the necessity of a strong central

government. This conviction guided every part of his policy. The revision of the Constitution in 1789, undertaken to strengthen the Federal government, had called into existence two parties-the Federalists and the Antifederalists; the political ancestors of the respective supporters of Federal Rights and State Rights. Hamilton was the foremost man of the Federal party. In foreign politics, his sympathies were towards England.

Jefferson had been educated for the Bar. At an early age he entered the Provincial Assembly of Virginia, where he distinguished himself in the debates on the tyranny of the mother-country, and he prepared the draft of the Declaration of Independence. In 1782, he was sent as Minister to Paris, and remained there till the end of 1789, when he returned to America, and was appointed Secretary of State. Thus he had taken a prominent part in the American Revolution, and been present at the beginning of the French Revolution. During his residence in Paris, he had thrown himself, heart and soul, into the most liberal section of French society. He had seen the enthusiasm which ushered in the Revolution, and he felt intense interest in its success. The pillage of the Tuillcries, and the arrest of the King happened after his return to America. The recital of these excesses could not obliterate the impression of what he had beheld. At the time he even found excuses for them. His sympathies were expressed loudly in private, and though repressed by his position gave a colour to his policy in office. The revision of the Constitution had taken place while he was in France; but he had disapproved of it in his letters, and on his return joined the Antifederalists. Thus there was scarcely one political question on which he and Hamilton were not opposed. He considered Hamilton a royalist scarcely disguised; and Hamilton considered him a leveller. Their political differences produced personal dislike." The private letters of each abound in scornful allusions to the other.

On questions of disputed policy, Randolph leaned towards Jefferson, and Knox followed Hamilton. Jefferson describes

his position by saying he was in a minority of one and a half to two and a half in the Cabinet.

The relations of the United States to France at the moment were intricate, and calculated to involve them, whether they wished it or not, in the contest. The Treaty of Commerce of 1778, by which France recognised the independence of the United States, was accompanied by a Treaty of Alliance, entered into with particular regard to the possibility of a rupture between England and France, in consequence of the relations and good understanding established between France and the United States. Among the clauses framed with this view, the Treaty contained stipulations so worded as to be independent of the occurrence of such a war, and to look beyond the war if it should actually occur. They were reciprocal guarantees of territory. In the event of the war, the United States guaranteed to His Most Christian Majesty the possessions of the Crown of France in America, as they should be fixed by the future Treaty of Peace at the end of the war. The war between England and France took place. It was ended by the Treaty of Peace of 1783. And thus the possessions of the Crown of France in America, as fixed by that Treaty, were the possessions guaranteed to His Most Christian Majesty by the United States. The case that now arose was not contemplated by the framers of the guarantee, and certainly did not come within its spirit. Franklin and his coadjutors, who negotiated the Treaty for the United States, were ready to incur great sacrifices to secure the alliance of France; but they never meant to bind their country by a guarantee through all time to engage, at the call of France, in offensive no less than defensive war, to be waged possibly for the gratification of ambition, or for some point of honour, in support of objects purely European, at a moment most inconvenient to their country, without reserving to their country a voice as to the policy, the wisdom, or the justice of the war. But no such reservation had been introduced in express terms.

The Treaty of Commerce contained two articles, the seventeenth and the twenty-second, destined to cause more difficulty