CHAPTER VII. FOREIGN ENLISTMENT ACTS. Foreign [IT is proposed in the present chapter to give a short account of the settlement and provisions of the Foreign Enlistment Acts of the United States and of Great Britain, and of the leading decisions upon them. It is scarcely necessary to draw attention to the importance of the subject in connexion with the relations between neutrals and belligerents in time of war. The history of the great contest in the United States, the diplomatic correspondence between the authorities at Washington and London, and the well-known case of the Alexandra, will bear sufficient testimony to that fact; and, as from what has been said in the former chapter, the law relating to privateering is materially influenced by the municipal regulations we are about to describe, it will not be out of place to take that description in this intermediate chapter. The history of the two principal American Foreign Enlistment Acts of 1794 and 1818 begins, strictly speaking, with the trial of Gideon Henfield on the 22nd of May, 1793; but the narrative of that event may fitly be preceded by a notice of two letters from Washington to Alexander Hamilton'. In the first, dated April the 12th, 1793, speaking of the war then commenced between Great Britain and France, the President said: "It behoves the government of this country to use every means in its power to prevent the citizens thereof from embroiling us with either of those powers by endeavouring to maintain a strict neutrality. I therefore require that you will give the subject mature consideration that such 1 See Hamilton's Works, Vol. IV. pp. 357 and 359. Enlistment measures as shall be deemed most likely to effect this Foreign purpose may be adopted without delay, for I have understood that vessels are already designated as privateers, Acts. and are preparing accordingly." In the second, dated the 18th of April, he alludes to a meeting to be held the next day to discuss the measures necessary for preserving a strict neutrality, and specifies one question (among several others) as of paramount importance, viz. whether a proclamation should issue for the purpose of preventing interferences of the citizens of the United States in the war between France and Great Britain, and whether it should contain a declaration of neutrality. On the next day, the 19th, it was resolved that such a proclamation should issue, and by that proclamation the citizens were reminded of the neutral attitude of their government, of its intention strictly to preserve that attitude, and of the evil consequences to such of the citizens as should aid or abet hostilities in defiance of this proclamation. Within a month after its publication its effect and the neutral attitude of the United States were tested by the conduct of M. Genet, the minister plenipotentiary from the re- Case of M. public of France. The facts, as stated by Mr Hamilton', were, that M. Genet, on his arrival at Charleston, caused two privateers to be fitted out, to which he issued proclamations to cruise against the enemies of France. There also the privateers were manned partly with citizens of the United States, who were enlisted or engaged for the purpose, without the privity or permission of the American Government. One or both of these privateers made captures of British vessels in the neighbourhood of the United States coasts, and brought or sent their prizes into their ports. The British minister demanded restitution of these prizes. With that demand, Mr Hamilton thought there should be a compliance; but this view was opposed both by Mr Jefferson and the then Attorney General. It is not necessary to dwell at any further length upon these facts, or upon the language and conduct of M. Genet. What we have just stated is for the purpose of shewing the point in which the neutral attitude. of the United States was imperilled, and the reasons and 1 Works of Alex. Hamilton, Vol. iv. p. 394. As to that see American State Papers, Vol. 1. pp. 77–82. Genet. Foreign trial. necessity for the prosecution of Gideon Henfield. From the brief statement of the evidence against him, as set out in Wharton's State Trials of the United States', it apHenfield's pears that Gideon Henfield was a citizen of the United States, and that his family resided in Salem, Massachusetts. Being a seafaring man, he had been absent from them some time; and, about the 1st of May, 1793, whilst at Charleston, South Carolina, and desirous of coming to Philadelphia, he applied to the master of a packet, who asked him more for his passage than he could afford to pay, whereupon he entered on board the Citizen Genet, a French privateer, commissioned by the French republic, and commanded by a Frenchman; by him Henfield, having been promised the post of prize-master on board the first prize captured, was put on board a ship belonging to, and captured from, British subjects, and in that capacity arrived at Philadelphia. Upon these facts he was indicted for a breach of the neutrality laws of the United States, by unlawfully and maliciously sailing and cruising on board a ship of war, called the Citizen Genet, and seizing and taking as prize a ship belonging to certain subjects of the king of Great Britain. After a long and anxious trial, and after a careful and impartial charge, and a still more careful and impartial summing up, Henfield was acquitted. In his life of Washington, Chief Justice Marshall says: "By the acquittal of Gideon Henfield, the administration received additional evidence of the difficulty that would attend an adherence to the system commenced by them. As the trial approached a great degree of sensibility was displayed, and the verdict was celebrated with extravagant marks of joy and sensibility. It bereaved the executive of the strength to be derived from an opinion, that punishment might be legally inflicted on those who should openly violate the rules prescribed for the preservation of neutrality, and exposed that department to the obloquy of having attempted a measure which the laws would not justify." So grave was the crisis in Washington's opinion that, on the 3rd of August, 1793, he wrote to the heads of departments and the Attorney General to ask their advice 1 Wharton's State Trials, p. 49. 2 Vol. 11. p. 273, 4. Enlist Henfield's whether it were proper or not to convene the legislature Foreign at an earlier day than that on which it was to meet by ment law'. On the 5th of June, 1794, an Act of Congress Acts. was passed to meet the difficulty into which the govern- case. ment was cast, and to protect its neutrality obligations and duties by municipal regulations. It was not long before this Act, like the proclamation of neutrality above recorded, was tested. trial. Etienne Guinet, a citizen of Philadelphia, and J. Guinet's B. Le Maitre, of the same place, were indicted3, May 11, 1795, for being knowingly and unlawfully concerned in furnishing and fitting out and arming a ship called Les Jumeaux, with intent that she should be employed in the service of the French Republic, then at peace with the United States, to cruise and commit hostilities upon the subjects and property of the king of Great Britain; and the facts proved were that Les Jumeaux entered at the port of Philadelphia laden with merchandise from Port au Prince, and mounting four guns and two swivels, it being necessary to repair her (she being then owned by Le Maitre and others); the repairs were commenced and being prosecuted, when the master warden by order of the government instituted an inquiry, and on his report the government directed that all the equipment of a warlike nature should be dismantled and the vessel restored to the state in which she was on her arrival. In spite however of these efforts the vessel managed to make her way out of Philadelphia, and was brought up at Wilmington. There, it was deposed in evidence, she took on board by night muskets, lanterns, cans, &c. and thirty or forty additional men, intending to have received six more guns, for which a pilot boat had been despatched to Philadelphia; but that was prevented by the marshal seizing the boat and the guns and apprehending the persons on board her. In his summing up the learned judge, Patterson, after shortly specifying the nature of the charge, thus interpreted the language of the statute: "Much has been said upon the construction of 1 Washington's Writings, by Sparks, Vol. x. p. 362. The correspondence on this subject will be found in the Appendix to that volume. 2 United States Statutes at Large, Vol. 1. p. 311. 3 On the 3rd and 4th Sections of the Statute. Foreign ment Guinet's case. American decisions upon the Act of 1794. the 3rd and 4th sections of the Act of Congress; but the Court is clearly of opinion that the 3rd section was meant to include all cases of vessels armed within our ports by one of the belligerent powers, to act as cruisers against another belligerent power in peace with the United States, converting a ship from her original destination with intent to commit hostilities, or, in other words, converting a merchant ship into a vessel of war, must be deemed an original outfit; for the act would otherwise become nugatory and inoperative. It is the conversion from the peaceable to the warlike purpose that constitutes the offence." He then told the jury that if it was intended so to convert this ship every man knowingly concerned in so doing was guilty in the eye of the law, and with reference to the defendant's knowledge, his defence being that he had acted only as an interpreter in a fair mercantile business, the learned judge reminded the jury of the secret nature of the transaction. The prisoner was found guilty. In this trial then we have the first judicial exposition of the legal meaning of those clauses which in later days have in an English statute caused so much difficulty and provoked so much discussion. But besides this case, valuable as it is for Justice Patterson's direction, there are several important decisions upon the American act of 1794, some of which we shall now briefly state. Thus, in a case where a vessel had been built in the United States for the purpose of being employed in a war with England, supposing such war had broken out, and was afterwards sold to a French citizen who used her as a privateer, the Supreme Court refused to hear counsel against the allegation that this was an original construction or outfit of the vessel for the purposes of war. Again, where a French privateer had taken out her guns, masts and sails, which remained on shore until the general repairs were completed and were again put on board, after which she sailed on a cruise and captured a British vessel which she sent into Charleston; on a claim of restitution preferred by the British consul, on the ground that the vessel had been originally fitted out in the United States in a neutral port, the court 1 Trial of Guinet and others, Wharton's State Trials, p. 94. 2 Moodie v. The Alfred, 3 Dallas, 307. |