§ On the order of the day for the third reading of this bill,
Sir W. Scott
said, it was quite unnecessary for him to argue, that it was just and proper to preserve a strict neutrality between a country and its colonies, when that country was bound to us in the ties of amity, by existing treaties. When he said a strict neutrality, he meant a neutrality which consisted in a complete abstinence, not only from absolute warfare, but from the giving of any kind of assistance to either one side or the other. The very meaning of the word neutrality implied, that they were to withhold succour from both parties. This was the doctrine laid down by all the authorities on the subject; and he particularly referred to a very eminent writer, Vattel, who had stated his opinion on this point. He said, "In order to view this question properly, one must distinguish what a nation ought to do, if it pretended to be perfectly neutral whilst a war is carrying on between an ally and some other state. Whilst a nation choose to remain in that state, it ought, in every thing, to preserve the most exact neutrality. It ought in the first place, to give no succour, either of troops, or arms, or any thing else serviceable in carrying on war. I say, absolutely no succour." Grotius had expressed himself on the subject in a similar manner. It had in the course of the debate on this question, been insinuated, that it was quite fit this 1233 country should afford to the South Americans succour both in troops and arms. This was not a doctrine that ought to be tolerated in a deliberative assembly, although supported by general sympathy, in accordance with the national wishes, and aided and invigorated by feelings which were connected with commercial speculations. To listen to this was to act unjustly to one of the parties, by depriving him, while in a state of amity with us, of that preponderance of power which he would otherwise enjoy. He was far from saying that cases might not arise, in which a third party would be fully justified in assisting the oppressed; but such cases deserved the deepest consideration—and no country could be released from the operation of its neutrality, unless it gave notice that it meant to change its line of conduct. While a country remained in that situation it had no right to practise hostile conduct. If it did interpose it must be in an open manner—by an open declaration of war. In naming these conditions, he described them as the duties of states—because it was the duty and the right of states, and not of individuals, to determine on what might be done during the existence of treaties. There could be no solecism more injurious in itself, or more mischievous in its consequences, than to argue that the subjects of a state had a right to act amicably or hostilely with reference to other countries, without any interposition of the state itself. It was hardly necessary for him to press these considerations, because all the arguments that he had heard on the subject had fully admitted, that it was the right of states, and of states only, to determine whether they would continue neutral, or assume a belligerent attitude—that they had the power of preventing their subjects from becoming belligerent, if they pleased to exert it. In the next place, it was fully admitted, that the government of this country possessed that right, which was essential to its safety and sovereignty. Indeed, he thought some surprise had been expressed when this right was called into question, or made matter of dispute—but the doubt was, in fact, hung upon other circumstances. It had been said, that all governments, and, of course our own, had admitted, in some instances, those individual interpositions—that there were several circumstances, which on the present occasion, ought to have induced the British government to allow their 1234 subjects to assist the South Americans—and that, in fact, individuals had embarked in it, in consequence of the government not having prohibited it before. Now, it should be recollected that proclamations had been issued on the subject—and that persons had proffered their assistance in utter violation and contempt of those instruments which formerly warned them against such a proceeding. With respect to the other point, he would again say, that the considerations were such as could not be decided on by individuals, but must be judged of by the state, which alone possessed the proper facilities for judging whether individual interposition should or should not be admitted. Many ancient instances, he knew, could be adduced, where a permission to act as belligerents was given to individuals, without impugning the neutrality of the states to which they belonged. Of these instances, he must observe, that they were most of them of a date antecedent to these times when Grotius, and Puffendorf, and the other eminent writers on the law of nations, had elucidated the subject. In those periods, the law was very little understood, and still more laxly acted on. They all knew that the Romans, when at war, held every state that did not assist them to be an enemy—so that the words hostis and malefidis were almost synonimous terms. In more modern times, the combination of states, for purposes of amity, was recognised and held to be sacred—they were not fettered by such a principle as that which he had alluded to. In the time of Elizabeth, and up to a later period (and these were the times which gentlemen who took a different view of the question had selected) it was a well known fact, that all Christendom was divided into two great parties the Protestants and the Catholics. In the war between Holland and Spain the principle acted on was this, that the subjects of Protestant countries supported the one party, and the subjects of Catholic states the other. By a sort of tacit agreement, the Protestants made common cause with Protestants—the Catholics with Catholics; but this created no difference between the states to which the parties respectively belonged. In the war between the French and English, at a later period, the Irish Catholics were allowed to serve in the French army, while the recusants who fled, in consequence of the revocation of the edict of Nantes, assisted the Eng- 1235 lish. With respect to them, a sort of agreement was entered into, that they should not be considered as subjects of the states against which they bore arms, although, in fact, they were so. In the case of the Swiss, it was well known that their government lent out troops for the military service of other nations, without hazarding any imputation of breach of neutrality. But these were isolated cases, and did not warrant such a general principle as was now sought to be established. The right hon. and learned gentleman then adverted to the argument urged on the opposite side, that the treaty was opposed to the commercial interests of Great Britain. Admitting the fact, which he, however, did not admit, he contended, that the interests of the country should not stand in the way of treaties, or of the honour of the nation, which was pledged to their performance, neither should the supposed weakness of Spain have any other effect upon our councils, than to induce a greater degree of respect and delicacy in the performance of our engagements. After some other observations which were not audible in thy gallery, the right hon. and learned gentleman sat down amid cheers from the ministerial side.
§ Mr. Scarlett,
after paying some high compliments to the speaker who had preceded him, observed, that if it either had been or could be made out, that aid had been given to one of the belligerent parties exclusively, the arguments which the House had just heard would be perfectly unanswerable; but as no such case had been made out, he could not help observing that the right hon. and learned gentleman had not come to the conclusion which he had drawn, with his usual clearness and felicity. Me had quoted the opinion of Vattel, that it was the duty of a neutral state to prevent assistance being given by its members to either of two belligerent parties, and had passed encomiums upon that writer, which he did not expect to have heard from such a quarter. That writer, though gifted with great ingenuity, was not much distinguished for the solidity of his conclusions, and this circumstance might be accounted for by consideration of the circumstances under which he had written his book. Now, though he could not quote chapter and verse as the right hon. gentleman had done, he believed that this very writer, for whose opinions so much deference was demanded, had somewhere said, that this 1236 strict rule of neutrality admitted of some exceptions, and had instanced, as an example of it, the case of Switzerland, which, without any impeachment of its neutrality, was allowed to let out its troops to any power who chose to engage them. If there was any authority in this exception, he could not see that any circumstances had as yet occurred in the conduct of this country, which rendered its neutrality matter of doubt, or which prevented it from having the benefit of this exception. The question now before them was, not whether they should give assistance to either of the two contending parties, or whether they should prohibit their subjects from doing that which, by all their previous laws, they had been allowed to do; but whether they should allow a belligerent nation to demand of them to alter their laws in order to provide for the security of its interest. Now, he maintained, that no belligerent had a right to make such a demand, and argued that, if the present bill were passed into a law, its result would be to prevent volunteers from entering into the service of those who were called the Spanish Insurgents, without a license from the Crown, many of which, as he was informed, had been granted to British officers in the service of Spain, though they had not been granted to those in the service of the opposite party. It had been said, on a former occasion, that if we were determined to preserve a strict neutrality, we ought to give or to deny the same assistance to both the contending parties, and that we ought not to grant to one of them what we prohibited to the other. With this doctrine he perfectly agreed, though he could not discern that we were bound in consequence of it to change the nature of our institutions. If any foreign power were to make such a demand of our government, there was a ready answer which government ought to give to it. It was this—"The control which we possess over our subjects is not so absolute as to permit us to prohibit them from doing one thing, and to enjoin them to do another: we therefore cannot consent to such application as you are now making to us." "Then," says the right hon. gentleman, "no such application has been made to the government as that to which you allude;" and yet, in the latter part of his speech, somewhat inconsistently, he asserts, that such an application might be justifiably made. The right hon. gen- 1237 tleman was certainly more likely to know than be himself was, whether such an application had or had not been made; but, in the last debate on this question, it seemed to be very generally admitted that some hint or intimation from a foreign power had given rise to the present measure. That debate had been conducted with becoming temper; and, whenever allusions to foreign sovereigns had been made, they had been made with as much delicacy as circumstances would permit; not that he was inclined to concede that it was requisite to treat the crowned heads of foreign states with any peculiar respect, when it was requisite to canvass their conduct in that House—no, the freedom of debate required a corresponding freedom of language; but that it was not proper to indulge in any useless or unnecessary virulence against them. The hon. and learned member then proceeded to argue, that the government of this country was not called upon by any treaty between it and Spain, or any strong and imperious necessity, to pass so extraordinary a law as that which was now proposed to the House. The treaty made with Spain in 1814 did not contain any stipulation which could warrant the Spanish government in demanding from the British government any prohibitory measure like the present; and from the absence of such a stipulation, he inferred the non-existence of any necessity for acceding to it. That treaty merely stipulated, that his Britannic majesty should not supply the Insurgent provinces with arms, ammunition, or warlike stores, but did not prohibit any of his subjects from entering into the service either of the Insurgents or of Spain itself. The exportation of warlike stores could be prevented by a proclamation from the Crown; but it was requisite to apply to the two Houses of Parliament before a British subject could be hindered from employing his talents and his services in whatever quarter of the globe he chose.—The hon. and learned member then took a review of the statutes forbidding the exportation of warlike stores. The first was made in the reign of Charles 2nd, and was afterwards en-forced by the 22nd of George 2nd, cap. 14, which, in addition to the former prohibited articles, added saltpetre, which was not, under certain penalties, to be exported without a license granted by the king in council. Now, it was worth the while of the House to consider that this 1238 prohibition had been relaxed to Spain, while it had been rigidly enforced towards the colonies; and, therefore, as Spain hail not been at war with any other power, except her own colonies, since the time that this prohibition had been proclaimed, he wished to know, whether this was acting impartially in the dispute between them. Indeed, he wondered how we could talk of the strictness of our neutrality, while licenses were granted to those officers who were engaged in the service of Spain, and denied to those in the service of the independents, and while arms were allowed to be exported to the ports of Spain, and not to the ports of South America. The right hon. gentleman had then argued, that though our interest might incline us to favour the cause of the colonists more than that of the mother country, we ought to prefer our honour and our good faith to our interest: he (Mr. Scarlett) said so too; our honour and our good faith ought to be preserved free from the slightest imputation, and this could only be effected by our showing the same impartiality to the two parties which were now opposed to each other. We, who had been the first persons to call upon the Americans to revolt; we, who had, in the proclamation of sir Thomas Picton, backed by the signature of a cabinet minister, promised them our assistance and protection if they did revolt, ought not to be the first in taking measures to prevent the success of that revolt; especially as it was well known, that when we offered to become mediators in the dispute, our mediation was acceded to by the Independent, and refused by the Spanish government. We were adding, therefore, a new misdemeanor to those already defined in our laws; not, indeed, by prohibiting foreign enlistment by the wholesale (for that he considered to be a high misdemeanor already), but by preventing our fellow countrymen from promoting their interests in a foreign country. "But, then," say the advocates of the bill, "the change of circumstances has so far weakened the prerogative of the Crown, that it is requisite to have new legislative enactments, in order to revive that part of it which from desuetude has fallen into oblivion;" meaning by this, he supposed, to argue that the Crown had the power of prohibiting its subjects from engaging in the quarrels of other nations. Into that question he would not then enter, though he could 1239 not help expressing a hope, that the House of Commons would never add to the prerogative of the Crown, in order to enable it to make our own government more like those of foreign nations, or in order to render it capable of enforcing those niceties in the laws of nations which were hostile to the liberties of mankind. He could not see any reason why we should be so generous as to sacrifice to Spain, not merely the welfare of our commercial interests which we should by enacting the present measure, but also our character for good faith, which was so strongly implicated in it.—He then made a short recapitulation of his former arguments, and informed the House, that he could not feel that apathy which some hon. members did upon the present question: that he could not do so might be attributed to his constitution, and the form of government under which he had the happiness of living; however, so far from thinking that there was any cause for restraining, he thought that there was good cause for indulging the warmth of his feelings upon it.
§ Mr. Robert Grant
said, that, could he have seen this subject in the same light with the hon. gentleman who had just sat down, he certainly should not have been apt to vote in support of the present bill, still less to stand publicly forth in its defence, and least of all to select this as the occasion of his presenting himself for the first time to the indulgent attention of the House. So far, indeed, he perfectly concurred in the view which the hon. gentleman and other gentlemen on the same side of the House had taken of the question,—that it was one of vital importance,—that it was one in which the honour and character of the country were most deeply committed,—but he believed they were committed in a different manner and on a different stake from that which those gentlemen had contemplated. It seemed, indeed, clear to him, that the greater part of the reasonings employed by the opponents of the bill involved the most radical inconsistencies;—that their arguments were at war with each other, and at war with the conclusion which they aimed at establishing.
Whatever differences of sentiment might prevail on this subject, there were two propositions, on one of which there was confessedly an agreement of opinion and on the other no variance could possibly be anticipated. The first of these pro- 1240 positions was, that the treaty made with Spain in 1814, of which so much had been said, was, with all the obligations growing out of it, to be faithfully observed: the second, that if for any reason whatever, whether it were from motives of humanity, from considerations of policy, or from the dictate of principle, the strict observance of that treaty was become impracticable or unadvisable, our proper course was, not to take refuge in a hollow, an insincere, an equivocal observance of it, but to start forth at once into the attitude of open and avowed hostility.—These points being settled, the next question, and that which must supply the basis of all discussion respecting the proposed bill, was, What was the proper construction of the treaty of 1814, and did it or did it not place us in such a relation with Spain, as was inconsistent with the permission of those levies of troops for the war in South America which it was the object of the bill to prevent? And here he found his first example of that inconsistency in the arguments used against the bill to which he had referred. An hon. gentleman (sir J. Mackintosh), in a speech on a former night, which to mention was to praise, had stigmatized the treaty as amounting to a virtual declaration of war against the Spanish colonies and of alliance with the mother country of Spain:—yet it was uniformly the argument of that hon. gentleman, and of all those who had opposed the present bill, that, according to the strictest construction, the treaty required of us nothing more than the maintenance of a cold neutrality in the present contest. These things seemed to him (Mr. Grant) great inconsistencies:—he could not possibly reconcile them:—he could not possibly understand how that could be a declaration of war against the colonies, which yet was consistent with our permitting them to draw entire armies out of our own population, or how, with respect to Old Spain, we could possibly imagine, that a stipulation of close alliance might duly be fulfilled by a conduct of cold neutrality.
On the point of construction, his learned friend (Mr. Scarlett) had ingeniously contended, that the new measures to which the government was pledged by the treaty, must evidently be confined to measures preventing the exportation of arms and ammunition, and not relate to measures directed against the levies for 1241 South America; because, by our law, the crown, which made the treaty, was competent of itself to one of these objects, while the other could only be accomplished by parliament. The learned gentleman's argument was, that the executive government must be understood to have stipulated for that which was in its own power, and not for that which was not in its own power. Now, all this might be very well with respect to the interpretation of the treaty by us; but how did it bear on the interpretation of it by the Spanish government? Surely it should be remembered, that Spain was to read this treaty, not by the light of the law of England, but by that of the law of nations.—Spain knew nothing of the distinctions that might prevail in our municipal code. She know no other rule of construction but that which public law supplied, and must understand this treaty to imply the same obligations when coming from England, as would fairly be deemed to attach to it, had it been offered her by any other European power.
For his own part, Mr. Grant said, he could not read this treaty in any other way than as an engagement on our part with the government of Spain, that we should remain neutral in the war between that government and her revolted colonies. This was the impression which could not fail to be made on any impartial mind, looking at the document in question as addressed to the common sense and popular feeling of mankind.—It was not necessary to enter into any critical or technical disquisitions respecting the effect of particular terms or stipulations;—the treaty, fairly viewed, bound us to observe a strict neutrality; and, of coarse, to adopt any measures that might be proper and necessary for the due fulfilment of that purpose.—And here it was not unimportant to remark a distinction pointed out by all writers on the law of nations; namely, the distinction between a voluntary and a stipulated neutrality. A voluntary neutrality was, in its very terms, ones from which the neutral might depart at pleasure. Such departure might be very unadvisable, but it was necessarily a matter of option. To break a voluntary neutrality, might be impolitic, might be unfeeling, might be wrong,—as war might be impolitic, and unfeeling, and wrong,—but it did not involve the specific offence of a breach of faith, nor could a deviation from a voluntary neutrality with respect to one 1242 of two belligerents, furnish any reason for the breach of a plighted neutrality with respect to the other.
Such, then, was the relation in which this treaty had placed us with Spain; and then two questions arose; first, whether it was consistent with that relation, that we should permit the Spanish colonists to supply themselves with large levies of troops from this country; and if not, then secondly, whether the measure now in question was requisite and proper for the purpose of putting a stop to those levies.
On the first of these questions, Mr. Grant said, he felt himself immediately at issue with the doctrines laid down in the speech of his learned friend (sir J. Mackintosh) on a former night. He paid the highest compliments to that speech, declaring that no member of the British senate, whatever might be his political sentiments, could fail to exult in such a specimen of parliamentary eloquence. Such were its topics and such the style in which it treated them, that it might be compared to a collection of the most beautiful pictures seen by the finest lights. It reminded him of the recorded oratory of a great departed genius; and should the present struggles of the Spanish colonies terminate in their attaining the liberty at which they aimed, it would hereafter be an interesting reflection, that, as the rising independence of the states of North America had been hailed by a member of the British House of Commons in strains of the highest eloquence, so the southern division of that continent, pursuing the same arduous path, had found a champion within the same walls, distinguished by similar richness of style, splendor of imagination, and depth of political philosophy. But, with all this respect for the ability displayed in that speech, Mr. Grant said he must be allowed entirely to dissent, not only from the conclusions at which his hon. friend had arrived, but from the leading positions which he had maintained, and this, though they had been brought forward as standing on the clearest principles of the law of nations.
The question had been argued on three grounds;—on principle;—on authority;—and on practice. Mr. Grant said, he would touch on each; but the first was, in his view, perfectly decisive. It was not necessary to go farther than the meaning of the term neutrality, to prove that the stipulating nation ought not to furnish the opposite belligerent with direct means or 1243 implements of carrying on war against the power to whom the stipulation had been given. Hence it is, that you forbid your subjects to supply the opposite belligerent with arms or money; but, how palpable would be the absurdity, if, while they were not allowed to send a single musket, a single barrel of gunpowder, or a single ingot of gold, to the hostile army, they might yet join that army themselves in any force? It had been observed, by a great writer, that the sinews of war were not what they were often said to be, iron and gold, but the real sinews of the hands and arms of brave men:—but, according to this new doctrine, your subjects were prohibited from supplying the South Americans with iron and gold, with arms and subsidies; and yet, the better sinews of war, or rather the very soul of war, the men who were to wield those arms, such men as those subsidies could not purchase,—they might safely supply, and supply (what was a most material consideration in the present discussion) in such numbers, as confessedly should make the whole difference between the certain and speedy success of the colonists on the one hand, and the long adjournment, if not the ultimate failure of their hopes, on the other.
This was not all;—while we might thus injure Spain, we were to be safe from retaliation ourselves. This left-handed neutrality, it seems, though it could not protect them, would effectually protect us, except in the single point where we chose to make the attack.—Our fleets would be sailing without convoy, our shores would be safe from invasion, our colonies would be protected from capture,—while, in the mean time, our veteran troops ranged under their own officers, were stripping Spain of all her American dominions, were despoiling her of a whole continent;—and, if in any instance, she affected to retaliate,—if she fired even a shot at one of the vessels in which those troops were embarked—Oh, then Spain and not England would be guilty of the breach of neutrality, and would immediately be exposed to all the penalties of war! "Why, Sir," (said Mr. Grant) "what sort of neutrality is this, which, while it operates only as a more subtle sword of annoyance against the passive party, throws an impenetrable aegis over the assailant? A neutrality which completely protects the aggressions of the power who has stipulated to observe it, while it leaves the power 1244 to whom the stipulation has been given, only tenfold more exposed and defenceless?—Let the matter next be tried on a somewhat broader ground. Every government, in its foreign relations, was the representative of the nation to which it belonged; and it was of the highest importance to the peace of nations, that government should be so considered. Nations announced their intentions to each other through the medium of their rulers. Hence every state knew where to look to expressions of the will of foreign nations,—where to learn, whether war or peace was intended,—where to demand redress for injuries,—and where to visit injuries unredressed. But all this system was inverted and thrown into confusion, if the government might act in one way and the nation in another.—All this system was at an end if, while we were professedly at peace with Spain, she was to be attacked by a large army of military adventurers from our own shores,—a sort of extra-national body—utterly irresponsible—utterly invulnerable, except in their own persons—for whose acts no redress could be demanded of the British government;—who might burn, pillage, and destroy,—then find a safe asylum in their own country, and leave us to say, "We have performed our engagements,—we have honourably maintained our neutral character!"
The last observation which the hon. member said, he would offer on this part of the subject, was, that the doctrine he was contending against, opened a door to the most perfidious conduct on the part of states; and this was forcibly illustrated by one of the very historic facts on which the hon. gentleman (sir J. Mackintosh) had so impressively dwelt on a former evening. The hon. gentleman had exultingly told the House of the 6,000 men whom the marquis of Hamilton had conveyed into Germany to the assistance of Gustavus Adolphus, against the emperor with whom we were then at peace. But the hon. gentleman had omitted to inform the House, that these troops, though nominally raised and conveyed by a subject, were in fact raised and sent on that service, not only with the connivance, but by the order of Charles the 1st; who thus covered with a thin veil of neutrality, an act of immediate hostility. The necessities of that unfortunate prince might palliate such an act; but, whatever might be thought of this as an historical precedent (on which 1245 point Mr. Grant would say something presently), it seemed to him that the circumstance was far less remarkable as an instance of the practical application of the rule contended for, than as an illustration of the gross abuses to which that rule was liable.
Thus did this question stand on principle. The next inquiry was, how it stood on authority;—an inquiry the more important, since any one who should have casually heard the eloquent speech he had so often alluded to, might have been apt to conclude, that the most celebrated publicists, without an exception, were in favour of the doctrine which that speech maintained. Mr. Grant then proceeded to examine the opinions of Bynkershoek, on whom his hon. friend had relied as a conclusive and commanding authority. He regretted his hon. friend had not told the House that Bynkershoek distinctly represented the question as one which had excited great controversy;—that, from the defensive tone that author employed, it was clear he felt himself in a minority on the subject;—and that he admitted that the government of Holland itself so far differed from him as to have forbidden the levying of troops among their own subjects by foreigners without a licence from themselves under the heaviest penalties;—the state of Holland even imposing that of death. But, after all, what was Bynkershoek's opinion? It was in substance this; that to serve under foreign powers implied a transfer of allegiance,—that, where the laws of a stare prohibited the subject from so transferring his allegiance, there the subject ought not to serve a foreign power, nor ought any foreign power to invite his service—but that, where the municipal law was silent on the point, there the subject might lawfully serve in foreign armies, and if he might lawfully serve, he might of course lawfully be asked to serve. Now, whatever might be thought of this reasoning (which to Mr. Grant himself seemed unsound), yet it clearly made the case of England an exception to M. Bynkershoek's rule; since the English law certainly holds the maxim "Nemo potest exuere patriam!" Nay, Bynkershoek himself, in mentioning some nations whose laws forbad the subject from abdicating his country, and which therefore formed fair exceptions to his general doctrine, specifically enumerates the Angli among them. Thus, then, it 1246 appeared that this writer directly and in, terms sanctioned the principle recognized in the present bill, against which he had been triumphantly adduced as an authority without appeal.
The hon. member next examined the sentiments of Vattel; of whom his learned friend (Mr. Scarlett) had justly observed that his opinion was to be received with caution, since, being a native of Switzerland, which for centuries had notoriously permitted and encouraged its people to serve in the wars of foreign states, he must be supposed to have considered the question under the influence of a national prejudice. All this was true;—Vattel was a biassed judge undoubtedly;—but the House should know that his judgment was against his bias. He held that every state had the clearest right to prevent the inhabitants of neutral countries from serving in the armies of its enemies. He said, indeed, that it might be prudent not to press this right;—that the nations of Europe were, in fact, in the frequent habit of waiving it;—that they even permitted neutral governments formally to supply an enemy with a contingent of troops;—but that the right of objection [still subsisted, and was indefeasible.—And, in either of the two cases mentioned, when was this right to be put in force? Manifestly, when the succour thus afforded by the neutral, whether by the subjects or the government, became considerable—became important,—when it was likely to turn the scale of victory. "For," (said Vattel, speaking primarily of the latter of the two cases referred to, but his argument evidently applying, and meant to apply, to both), "shall I suffer the neutral, under the protection of his pretended neutrality, to do me all the mischief in his power? No! The law of nature, the law of nations, obliges us to be just", but does not condemn us to be dupes."—Mr. Grant next read the opinion of Wolf on this subject, recorded in his Jus Gentium. Speaking of the duties of a nation, which had stipulated its neutrality by treaty to one of two belligerents (the very case under consideration), that author said, with equal conciseness and clearness, "Quineutrarum partiurn esse vult,…… non potest per millere ut pars adversajcederato suo mililem in territorio suo conscribat, cum hoc perinde sit ac mittere auxilia. Similiter, subditis suis permittere nequit ut mutuo dent pecunias, cum 1247 hoc perinde esse videatur ac dare subsidia."
On the whole, not only was the weight of authority in favour of the principle of the bill; but not a single authority, nor the shadow of it, could be found, in opposition to this plain, clear, irrefutable position, that, when a neutral nation knowingly permitted the levying of troops in its territory by one of two belligerents to go so far as very materially to sway the fortunes of the war, there such nation was virtually departing from its neutral character, and assuming that of an enemy, and this in the worst manner, because not directly. With respect to the practice of Europe, after what he had already stated from Vattel, he did not know that this need be minutely inquired into. The question was not as to particular instances of connivance;—there might, under circumstances, have been many such;—nations, pressed by war, had often forborne to press their rights against neutrals.—But the question was, Whether the known and uniform practice of Europe had ever established or even sanctioned this principle, that a state, having pledged its neutrality to one of two powers engaged in war, might afterwards permit the opposite belligerent to draw troops from its population to any conceivable extent for the purpose of deciding that very war, without affording the slightest ground of just complaint to the power to whom its neutrality was pledged?—Nothing of the kind could be pretended even for a moment.—The three or four instances that had been relied on, fell infinitely short of this, even allowing them all the weight that could possibly be claimed for them. But the truth was, that they had been brought forward with great inaccuracies in point of fact. Much stress had been laid on the circumstance of James the First's having permitted sir Horace Vere to lead a British force to the assistance of the Protestant princes of Germany against the Emperor, with whom we were then professedly at peace. Surely it was not necessary to inform the House, that those troops were not volunteers, nor led out by sir Horace Vere as a private individual;—it was a force openly and avowedly sent by the British government as such. So that, if this precedent proved any thing, it proved infinitely too much;—it proved—not merely that our government might, without the smallest breach of their neutral character, allow the South Americans to 1248 beat up for any number of recruits in this country,—but that they might themselves send any number of troops of the British line to oppose Spain in America, nay, that they might have deputed the whole army of Waterloo, with its illustrious general at its head, on that service, and yet have boasted that they were strictly fulfilling the duties of neutrality.—With regard to the 6,000 men raised by the marquis of Hamilton for the assistance of Gustavus Adolphus, Mr. Grant said, he firmly believed that, if the emperor had not so speedily been overwhelmed by the victories of that great prince, he would have called the government of Charles the First to a strict account for their permission or contrivance of this expedition. But, when it was said, as it had been exultingly said, that these troops went forth without any licence or authority, from the Crown, he could not help intreating, that gentlemen would consult the accurate pages of Rush-worth on the subject. They would there find, not only that the marquis of Hamilton himself acted under the direct authority of his sovereign, but that each of the officers, 30 in number, employed in recruiting for him in England (and doubtless it was the same in Scotland) was directly and by name licensed to this employment by a commission from the Crown, the commission expressing the particular counties where their respective levies were to be made, and also that they were to be employed in the service of the king of Sweden. And then this was to be brought forward as a precedent for permitting unnamed foreign agents to crimp for recruits throughout the country, which recruits were to be employed, nobody knew in what army, or under whose command, or where, or how!
Another instance much relied on had been that of James the First having permitted volunteers from this country to serve in the armies of Holland against Spain, and having resisted the application of the Spanish government for a prohibition of the practice. Now what were the facts of the case? By the treaty between Spain and England, the English were not to succour Holland, either directly or indirectly, in the Spanish war. It was generally said, however, that, by a secret article annexed to the treaty, or at least by a distinct understanding between the negotiating parties, it was agreed that the stipulation against succouring Holland was to be of no force. This state of 1249 things produced the consequence that might have been expected;—a perpetual diplomatic contest between the two governments. On the part of England, the great lord Salisbury resisted the complaints of Spain on various grounds;—among those grounds, he might possibly on some occasion have alleged that England was justified by the general principles of neutrality;—but Mr. Grant said, that having looked over the whole correspondence, he had not happened to light on any passage taking that position. Not that he therefore denied the existence of such a passage;—but this he thought he might safely say, that the correspondence contained no such emphatic or prominent assertion of the doctrine contended for by the gentlemen opposite,—no such joining issue with Spain on the principles of public law,—as could at all justify the use that had been made of this part of our history. And, after all, it was to be observed of this and of every other alleged example of the kind, in which nations had differed on a point of public law, that, for that very reason, the precedent proved nothing. Unless the dispute could be shown to have terminated in an acquiescence, and an acquiescence not of prudence but of conviction, the assertion of a rule on one side could be of no greater weight than the denial of it on the other.
Having now completed what he had to offer on the first of the two questions he had proposed, namely, whether it was consistent with our obligations under the treaty with Spain to allow the Spanish colonists to continue their levies in this country, Mr. Grant said, he would more shortly consider the second, namely, Whether the measure now under deliberation ought to be resorted to for the purpose of putting a stop to those levies. On this question, indeed, he might easily be brief; since it was resolved to his full satisfaction by the opponents of the bill. For what was the meaning of all the clamour that had been raised on the subject? What was the meaning of the loud and reiterated complaints respecting the present measure, as being ruinous to the hopes of the colonists? What could possibly be inferred from such representations, except that, without this bill, there was no adequate prospect of checking the levies in question, and that, with this, they would assuredly be checked?—If, then, the object was good, there could be no doubt that this bill, which furnished the only 1250 probable means of effecting it was good also. Still, objections were urged against it; and some of them he would concisely consider.—And first, it was objected that this was a needless innovation upon the common law of the country, and that, if it was necessary to prevent British subjects from setting out on an expedition to South America, this ought to be done by the old legal method of the writ ne exeat regno. In reply to this objection, the noble lord on the treasury bench (lord Castlereagh) had unanswerably remarked that, if this measure was to be considered as an innovation, it innovated not on our common but on our statute law, the very object of the bill being the repeal of four previous statutes. The remark might be still farther extended; for, in England, at no period since the date of legal memory, had it been left entirely to the common law to prevent the emigration of subjects. There had been a succession of statutory regulations on this point ever since the days of Henry the Second;—directed indeed to different ends, according to the exigencies of the country;—yet furnishing the clearest precedents of the propriety of parliamentary interference in aid of the common law.
Oh, but then, it was said that Spain had no right to expect that we should alter our laws for her sake. Perhaps not; but Spain had a right to expect that, if we condescended to make a treaty with her, we should condescend to keep it; and that we should, if necessary, put ourselves in a condition to keep it. Our Statute-book was covered with enactments arising out of our foreign relations; and what difference could it make, whether those relations grew out of accidental circumstances, or were the result of a treaty voluntarily entered into by ourselves, provided that treaty were agreeable to the law of nations? It was, besides, to be remembered, that an exact precedent for the present measure was supplied by the act to which the hon. gentleman opposite (Mr. Scarlett) had referred; the act for preventing the exportation of arms and ammunition without the royal licence. There, as here, the Crown possessed a prerogative by the common law; and there, as here, you added facilities for the exercise of that prerogative by statute.
Nothing (said Mr. Grant) is more to be reprobated than a mode of argument which has been pursued, at least out of doors, On this occasion;—the case has 1251 been represented as a sort of contest between the law of England and the law of nations. Those who so argue, entirely forget one of the finest and most exalted maxims of English jurisprudence,—a maxim which has been quoted by lord Mansfield from the mouths of our most illustrious legal authorities,—our Holts and Talbots and Hardwickes,—and to which he adds the equal sanction of his own great name. It is this, that "the law of nations is a part of the common law of England:"—a noble principle surely!—worthy of the refinement of modern Europe! worthy of that nation which glories in being the guardian of European rights and liberties! But, if this be so, then I assert, that a treaty which is agreeable to the law of nations, is agreeable to the common law of England; if this be so, then I assert, that a statute in aid of the law of nations, is not merely as proper, as legitimate, as constitutional, as a statute in aid of our common law; it is a statute in aid of our common law, and cannot be impeached on any general principle which would not absolutely rescind the legislative power of parliament, and expunge the whole of our Statute-book at once.
It is next objected, that this engagement with Spain has never received the deliberate sanction of parliament. The treaty has lain indeed on our table,—it has casually been mentioned, but attention has never been particularly directed to it, at least not to the obnoxious article. This argument, Sir, is a striking example of that inconsistency between the premises and the inferences of the opponents of the bill, to which I have already referred. If the argument means any thing, it means that parliament is not fully bound by the treaty;—but then what is the inference drawn?—that we should break the treaty? No, but that we should pretend to keep it!—Let me not be misunderstood; I know that no ill faith is intended by the gentlemen opposite; I well know that we are all equally incapable of recommending a breach of the national engagements; but the effect of the line of reasoning adopted by the opponents of the bill, would inevitably be such as I have described.—In the same manner we are told of proclamations addressed in or before the year 1804, by some of our governors in the West Indies to the inhabitants of Spanish America, inviting them to throw off the yoke of Spain; and it is contended, that we are now basely deserting those whom we our- 1252 selves thus encouraged to take up arms. Why, Sir, if this be just reasoning, we are not at liberty to be neutral in the South American contest,—we ought to assist the colonists,—and our treaty of neutrality, as being incompatible with a prior engagement of an opposite kind, is a nullity. But how am I to reconcile this with the universal admission, that the treaty ought to be kept, and neutrality to be maintained? This inconsistency, however, glaring as it is, is not the only one in the argument. For can any thing be more surprising than that proclamations issued by some of our local governors 15 or 20 years ago,—proclamations not only never sanctioned or discussed in parliament, but never known, never heard of, fetched now (according to the very expressions of gentlemen opposite) from the desks of ministers,—that such proclamations, I say, after a lapse of so many years, and after so many changes of fortune, should be held to have a binding, indefeasible, obligation upon us,—while a solemn treaty, duly entered into by persons authorized for that purpose, duly presented to the two Houses of Parliament, ratified by the two Houses of Parliament, should, from the mere circumstance of its not having been considered in detail, be thought to have lost half its force—to have slept itself (if I may so speak) to death—in the short space of four or five years?
Without dwelling on this inconsistency, however,—if it be really meant that the invitations we held out at that remote period to the Spanish colonies to revolt, are obligatory upon us at the present moment,—though those invitations were never complied with, and though, since that time, new events, new wars, new revolutions, have wholly changed the relative positions of all the parties concerned:—if, I say, this be intended, then there is one inquiry which I cannot help making of the hon. gentlemen opposite. Whence came it that the administration of Mr. Fox, in the written instructions they addressed to the commanders whom they sent out to Buenos Ayres in 1807, charged those officers to hold out no hopes to the inhabitants of their being supported by us in any struggle for independence, and even to decline committing this country to a promise, that, should they surrender to us, they would not be restored on the re-establishment of peace? I am correct, I believe, in asserting that such were the instructions, and that they were in fact 1253 acted upon; and then, if precedent is to be the order of the day, I at least beg to ask which precedent we are to follow,—that of the proclamations in 1804, or that of the instructions in 1807?
Then comes another head of objection, if it can take that name,—the character of the Spanish government;—a subject, on which much has been said out of doors, and much has been implied in this House. But surely, whatever may be due to the character of Spain, a strict fulfilment of our engagements is due to that of our own country. Otherwise Spain may turn round upon us and say,——"Si ego digna hâc contumeliâSum maxime, at tu indignus qui facerestamen:"—"You call me base and abject and degraded; but if, after having plighted to me your neutrality, and while professing to keep that promise, you keep it only to the ear,—if, safe in your pretended neutrality, you take advantage of my weakness to overwhelm me with your veteran troops, and to despoil me of half of my dominions,—and all this, while you are affecting a mote than ordinary feeling for the rights, the interests, and the honour of nations; then, however base and abject and degraded I may be, I shall have the consolation of knowing that there is at least one European government, which has sunk itself to a point so low as to incur the just reproaches even of the degenerate kingdom of Spain."
then observed, that the argument founded on the injuries alleged to have been recently committed by the Spanish government, had the same fault with most of the arguments against the bill; it proved too much. If the treaty was void ab initio, it should be so declared;—if it was not fit to be observed, it should be broken;—if it had already been broken by Spain, it existed no longer;—all these were consistent inferences;—but it was not consistent to lay down these premises, and then to maintain that the treaty should be kept. And here, he said, he would conclude what he had to offer on the immediate objections to the bill; but he could not sit down without noticing another class of arguments that had been powerfully urged during these discussions;—they were arguments addressed either to our national interests or our feelings.—And first, as to our commercial interests, if the general views he had submitted to the House of the subject before 1254 them were at all just, it was clear that commercial considerations could here have no weight; and we ought to be even jealous lest the high regard which we cherished, and justly cherished for the interests of commerce, should too much influence us in deciding a question, which was one of pure justice. Of the patriotism and enlightened views of British merchants, the highest opinion was to be entertained; yet the experience of centuries had been thrown away on us, if we could forget that commerce, which, in its proper sphere, ever proved the friend of human liberties and happiness, was but a very questionable counsellor in matters of state. An extreme instance might be found in the case of these very South American colonies. Of the regulations under which they had suffered so much, if one half was to be ascribed to a spirit of tyranny, a misplaced spirit of commerce was answerable for the other. But an appeal was on this occasion made, not only to our commercial, but to what, if possible, we held still dearer, our military interests. It was said that our disbanded soldiery would find employment in the South American war, and would at the same time learn to sympathize with brave men struggling against tyranny. Sir (said Mr. Grant), the services of our soldiery have been great, and would cheaply be rewarded at any expense, short of the sacrifice of that national honour which they have so gloriously maintained, and the breach of those treaties which their victories have been the means of establishing. As to sympathy with freemen struggling for their rights, I trust our martial countrymen have not ill learned that lesson already; but let us beware lest the South American war should be apt to teach them other lessons. All authentic accounts represent that conflict as a bellum plus quam civile, a civil war raging with more than the average inflammation of civil fury. It is recorded by historians, that the army of count Mansfeld, when engaged in the cause of the Bohemian liberties (and a noble cause it was), unhappily acquired habits of license and brigandage, which, from their example, deeply infected all the military proceedings of that military period. I am aware, that British officers are too well schooled in the principles of humanity to forget them, even amidst such scenes of rapine and bloodshed as are said to be too common in South America; but I much fear that our 1255 gallant soldiers may not be equally proof against the contagion. Then, as to their acquiring a love of liberty, those who represent the system of standing armies as unfavourable to liberty, are apt to consider it as an important preservation against this evil, that the armies whom war calls forth, should be disbanded on the return of peace, and the soldier subside into the citizen.—I would, therefore, ask those who profess, and, I doubt not, profess most truly, a peculiar jealousy of standing armies, whether it can be desirable that our soldiers, instead of being re-absorbed into the bosom of the pacific part of the community in time of peace, should be still kept in a state of separation; nay, that, for this purpose, they should be sent to serve as mercenaries in foreign armies, and never allowed to intermit even the immediate and active pursuit of war?
So much, Sir, for the appeal to our interests on this occasion: there has been a still stronger appeal,—one to our feelings,—our sympathy for brave and oppressed men, committed in a desperate conflict with their tyrants—Sir, I should be strangely false to all the principles which have been inculcated in me from my youth up, if I could be dead to such a consideration. If I have not felt in such entire unison with the Spanish colonists, if I have not yielded them so full a heart of sympathy as many other persons, it has been from a doubt, whether the largest and perhaps the most interesting part of the South American population,—I mean the Indians,—have any thing to hope from the proposed change. But, in truth, all this is beside the question. If the light in which I have considered this subject be at all correct, then it will, I am sure, be conceded to me that we are absolutely shut out from all such considerations of feeling as I have described. We have but one plain principle to act upon—the faith of treaties. Such is the view of the case taken by the supporters of the bill. It is not that we are insensible to the claims of sympathy,—it is not that our bosoms do not beat to the high sounds of freedom and national independence with a pulse as true as those, I doubt not, of the hon. gentlemen opposite; but it is that we feel, or think we feel, the force of still stronger and more imperative claims,—it is that we hear a still more sacred and authoritative voice calling upon us to forbear!
Should we, however, think proper to 1256 assist the colonists, from whatever pure feelings we may act, I am afraid; and, in a case where the national reputation has been so much dwelt upon, this is a point of some moment—that we shall have the credit of being swayed by motives less elevated. In the present most important crisis (and I really think it such), it is natural to look back to a former very eventful period of our history, I mean that of the revolt of our own colonies. France assisted the colonies in that attempt; she assisted them, making the loudest professions of her hatred of oppression and her sympathy with gallant resistance.—Her famous manifesto of 1779 abounds with sentiments of this nature, as noble and as high-sounding as any that we have heard on the present occasion. Sir, it is well known that such sentiments were then sincerely entertained by many individuals of the French nation, and I am far from denying that they might be entertained by some members of the French government. But has France generally had the credit of having acted from the disinterested views she professed? On the contrary, has it not been usual to mark her policy on that occasion as most ungenerous and selfish, and even to represent the evils she has since undergone as scarcely more than a just retribution for her conduct? To avail herself of the misfortunes of a friendly power for the promotion of her own interests, to seize the occasion of dismembering the dominions of that power,—to increase the difficulties of that power by making war upon it in violation of all treaties,—and then to veil her cupidity under pretensions of the most exalted kind,—could she possibly have acted worse? Yes, in one respect she might have acted still worse; if she had done all this, affecting to observe that neutrality which she was violating, conniving at levies which she dared not avow, evading obligations which she professed to respect; thus accomplishing her object while she was avoiding the retaliations of England, and setting our Hoods and Rodneys at defiance, and perhaps concluding the farce by kindly condoling with us on the loss of our colonies.
The same passage of our history presents us with another circumstance still more full of interest at the present period. Spain, as well as France, ungenerously assisted the British colonies in their defection. This was thought surprising in a power possessing such extensive colonies 1257 of its own on the very same continent; and, long before the occurrence of the recent events in South America, probably many of us, in reading the history of the part taken by Spain in the American war, have paused to wonder whether an occasion of retaliation would not one day be afforded to this country, and to consider what use would probably be made of it. Posterity will peruse that eventful history with the same feelings, with the same curiosity; they will mark the injurious policy of Spain, and will then anxiously hurry forward to see whether England did not find an hour of revenge, and how the opportunity was employed. That hour is now arrived! Forty years, I believe I might say forty years to a single day, have elapsed, since Spain publicly declared herself in favour of our revolted colonies. Forty years have brought you into the very position of the power that so injured you; she is distracted with troubles, her own American colonies have revolted, and you are bound to her by treaty;—fuller means of retribution could not be afforded, and it is for this House now to determine, what species of retribution shall be resorted to!—It is for you to decide, what sort of revenge it will best befit this great and renowned and generous nation to take on her ancient enemy!—what sort of vindictiveness is worthiest of her feeling, her interest, her honour, and of that justice which she deems paramount even to all these!—I will not waste a word more on such a subject;—this only I will implore and obtest the House, that, whatever part they adopt, may be plain, explicit, and decisive.—If the blow is to be struck against Spain,—if she has forfeited all right to your forbearance, then tear the treaty into tatters, and denounce the Spanish power as an enemy. But, if you conceive your engagement to be binding,—if you are satisfied that neither the solicitation of warm feelings, nor the prospect of future advantage, nor the memory of ancient wrongs, can relax the force of that sacred obligation,—then resolve to fulfil your promises strictly, construing them not with technical nicety, but with a free and noble spirit. In a word, it seems to me that there are but two plain paths to be pursued; my objection to the course recommended by the opponents of the bill, is, that it coincides with neither.
§ Lord Nugent
contended, that the hon. gentleman who spoke last had not touched the main strength of the argument of the 1258 opponents of the measure. The treaty of 1814 could only bind the Crown of this realm according to the laws of the land at the time when that treaty was signed; and Spain knew, or ought to have known, that in England a power unknown to despotic states existed, of limiting even the prerogatives of the king, or at least of confining them within the bounds of the law. It was said, notwithstanding, that a treaty made five years ago, and not heard of until to-day, was binding not only on the sovereign in his executive, but upon parliament in its legislative capacity; but it did not engage the House to enact laws to thwart the genius of the people, and to give a forced direction to their energies. It ought never to be forgotten, that we were now talking of a revolt which we had been the first to excite: in 1797, we had first unfurled the standard of independence in South America, and a few years afterwards, in a treaty with Spain, we had most basely deserted those rights which we had been so active in inducing the sufferers to assert. It ought never to be forgotten, that the very arms employed in accomplishing the work of tyranny in New Spain had been procured from British manufactories; and three years ago, in Spain, he had seen a brigade about to embark for Mexico, every man of which was furnished with a musket with the Tower mark: the disgust with which he beheld the crown and initials of his sovereign upon those instruments of the most foul and bloody tyranny could not be described. Much had been said about neutrality and the necessity of preserving the balance; but how had that balance been preserved? Was it by sending 36 ships from the Thames to transport arms, troops, and stores, to the royalists? Was it by fitting out ships of war to protect on the coast of Mexico the conveyance of the precious metals of Spain? If the doctrines of neutrality were applicable at all, they were applicable at all times, and to all countries; and if so, why was this great principle of national law never before asserted? Why was it not acted upon in 1813, when British officers were serving in the armies of Persia against Russia? Why not in 1816, when British officers were marched to the frontiers of Portugal, to repel an invasion which was threatened by Spain? In future, in the event of a war between Spain and Portugal, it would be compulsory upon this government to recall marshal Beresford 1259 and the British officers under his orders in the service of the court of Lisbon. Against South America only was this doctrine enforced. He could not help examining the claims which Spain had upon us for this exclusive preference. He would not go over the indignities we had suffered from her since 1810—the thanksgiving for her deliverance from heretics, and the decimation of the most able and honourable members of the Cortes: men who had been raised almost to the rank of martyrs in the cause of their country, who had been persecuted by a tyrant, whose hatred was the best tribute to their virtue. He would inquire, shortly, how she had preserved her commercial good faith. It was known that Biscay had been governed for ages by its own fiscal regulations. British merchants had been established and protected there for nearly 400 years; but, for the purpose of aiming a deadly blow at the trade of this country, Ferdinand had even violated the constitution of his own province, and the commerce was given to the Philippine company, a bankrupt establishment. What respect had Spain paid to the treaty for the abolition of the slave trade north of the line? For a time she might be bound to her engagements by a mercenary charity; but the moment that tie was removed, she would again commence her career of faithless cupidity. The noble lord then, alluding to the present state of our commercial relations, observed, that as a sample of the export trade, it would only be necessary for him to refer to the returns which an hon. friend of his had lately brought before the House, by which it appeared, that the exports to one of these provinces, to Buenos-Ayres alone, were above 300 per cent more than those to Portugal and Spain altogether. If the bill was to pass into a law, the consequence of it would be fatal to our commerce, and destructive to our character, unless people should learn what was the distinction between a British law and the spirit of the British people; but that the petitions against it, which loaded their table, and the voice of the whole nation, (a voice excited by no arts of popular delusion), would best evidence; and he mentioned this to prove that the spirit of the people was averse to the measure. He hoped, as an Englishman, for his own sake, and for that of his country, which he feared would soon have to repent bitterly many things that she had been 1260 laying up in store for the destruction of her own liberties; that even in South America, the distinction would be felt between a British law, and the spirit of the British people.
§ Mr. J. H. Smyth
said, he had listened to his hon. friend who spoke last but one with very great admiration; an admiration, indeed, not accompanied with much surprise or wonder, because he was previously well acquainted with his hon. friend's eminent talents. If, however, he now differed with him, it was because it appeared to him that this bill was as little called for on any grounds of neutrality, as it was hostile to the ancient policy of this country. Much had been said as to assisting two nations; and Vattel had been referred to: the question was, whether a belligerent was not at liberty to enlist troops in the territory of a neutral? On referring to the chapter which had been cited in Bynkershoeck, he thought some confusion had occurred to his hon. friend who spoke last but one. The argument of that author was, "if a belligerent power be allowed to exercise commerce in a neutral country, why should the not hire troops also?" With respect to the treaty of 1814, he owned he must protest against that novel doctrine, that a treaty entered into by the Crown was to be obligatory on parliament. It was true, indeed, that the Crown had a right of entering in to such engagements; but were they, therefore, to be considered as binding on then conduct? He apprehended the object was, to give Spain an auxiliary force to carry on her operations against her colonies; but because such might be the object, was parliament bound to carry it into execution? He objected to this bill, first, because it was unnecessary; secondly, because it was unprecedented—for, in looking into history, he found no precedents for it: or rather, he should say, that he had found one case extremely similar to this, but it was one of resistance to an application from the court of Spain, to prevent our subjects from enlisting under foreign banners, against that power. He Could not but think, from the circumstance that no precedents were to be found for it, that the principle of the bill was not bottomed on the law of nations. So many instances, on the contrary, might be adduced of subjects of this country having entered into the services of belligerents, with whom we were at that time at peace, that it was unnecessary to quote them. 1261 To mention only one—the case of the great Maryborough: he began his career under one of the most celebrated captains of his age, the mareschal Turenne, and with a commission from Louis 14th: he served against a power with whom we were at peace, yet no remonstrance was ever made by it upon that account. He objected to the bill in the third place, because he thought it any thing rather than what it professed to be—a neutral measure. It appeared to be, under the mask of neutrality, an act of hostility to the colonies, and of favour to Spain. What, then, was the object of the bill—to assist Spain or the colonies? Could there be any doubt? The conduct of ministers must be taken to be expositive of their intentions. It was any thing but a measure of neutrality: under that disguise, it was calculated to repress the independence of America—to extinguish that flame of liberty which it had ever been the policy of a country to cherish, ever anxious to assist liberty against oppression. His hon. friend had referred to the sanguinary contest now unfortunately carrying on in South America. Those excesses were not to be justified, indeed; but they were rendered but too natural by the measures pursued in regard to the parties. Could any one doubt that it was of consequence that America should continue free? or that her commerce was of value to us? or that the trade of the revolted colonies, as they were called, was at present highly favourable to us? The hon. member proceeded to show, that under present circumstances there must be some persons to whom the habits of peace were not congenial; and others, dissatisfied from more questionable motives, with their country, who were devoted to disturbance and agitation: he could not see, therefore, why, by the present measure, they should pen up the peccant humours of one of these parties, or close up the field of heroic enterprise to the other—a field of war in the most glorious of all causes. He then entered into a rapid review of the previous conduct and wishes of Spain, expressing his conviction that she was not entitled to the favour she now claimed of us, in soliciting the passing of this bill. Considering that there was nothing to justify it in the law of nations, in the law of justice, or in the principles of political conduct, and considering also that it was directly adverse to the ancient policy of the country, he should give his vote against it.
§ Mr. Shepherd
contended, that the measure was called for by the law of nations, nothing but an effectual prohibition against both parties could in the present case, secure a course of complete neutrality. From the very strong feelings in favour of the colonies here, a permission to enlist for both sides would be the exercise of the strongest partiality to Spain. Unless this measure passed, there was no penal or vindictatory part to the law empowering his majesty to prevent his subjects from enlisting with the South Americans. The relations of commerce did not depend on mutual friendship, but mutual interests. But even if the commercial interests of the country were endangered, by adopting the line of conduct which honour pointed out, could there be any hesitation in making the choice? But the treaties with Spain bound us, from the circumstances under which they were contracted, and their real spirit, not to afford any assistance to her American colonies. Great Britain had never yet been accused of a breach of national honour, and he should be sorry (notwithstanding the prejudice which he was conscious prevailed against her in these countries) that an occasion for it should now be afforded to Spain.
§ Mr. Granville Vernon
rose and said:—Sir; I have ventured to intrude myself on your attention, partly because my hon. friend (Mr. R. Grant) has intimated, with some truth, that the arguments of the opponents of this bill are various and inconsistent with each other, and I have therefore thought that it was important to record distinctly the grounds of my dissent, which would not be adequately implied from a silent vote: partly also, not merely because I feel strongly on the question, although I admit that to be the fact, since that would have led me to apprehend that I should not do justice to that feeling; but because it seems to be an opinion current among the supporters of the bill, that whereas they perceive such a feeling strongly arrayed against it, they may assume that the amount of argument opposed to it is proportionally small., I consider this to be a very illogical inference. I am confident that on this occasion our instincts are not at variance with, but in furtherance of our reason, and that the present is one of a multitude of cases in which the maxim is verified, "nunquam aliud natura aliud sapientia dicit." I am conscious, Sir, 1263 that, in addressing you, I labour under two great disadvantages which under other circumstances might have sufficed to deter me. In the first place, I have to follow the very eloquent and impressive speech with which my hon. friend has advocated this measure; and secondly, I am aware that much of what I may have to urge can only be the faint echo of that most powerful, most eloquent, yet most argumentative speech, with which an hon. and learned gentleman (sir J. Mackintosh) delighted the House on a former night, and which was, to use the language of an eminent modern poet,As rapid as deep, and as brilliant a tide,As ever bore freedom aloft on it's wave.In considering the present bill, I deem the means more objectionable than the end. The view which I take of it, does not lead me into any considerable conflict in point of principles with my hon. friend and the other supporters of the measure. The grounds on which they propose to rest it, are substantially two: first, on the propriety of investing the executive government with the complete control of the services of the subject; secondly, on the duty of preserving a strict neutrality between the contending parties in South America. I fully admit both these principles, and I rest my case on that admission. I concur with my hon. friend in his premises, but I follow them to a directly opposite conclusion. First then, I allow that our law ought, but I affirm without fear of contradiction, that our common law does prohibit the subject, from qualifying in any degree his allegiance, or transferring his services to any other state, or person, or aggregate of persons. It is a misdemeanor at the common law to do so, or to incite or engage others to do so. But then, the hon. gentleman who preceded me (Mr. Shepherd) considers the common law as a mere brutum fulmen, as inefficacious in this respect. This is to malign and libel the common law. He talks of a wrong without a remedy. The very essence and meaning of the common law is, that there should be no wrong without a remedy, and as it is founded on common sense and the principles of our constitution, it does not admit of any evasion. It knows no such quibbling distinctions as that which applies to the statutes which this bill very properly seeks to repeal. The common law considers it an affront and an injury to 1264 our own sovereign to accept military or civil service under any other authority. So far as the present bill goes to constitute that an offence, it is declaratory of the common law, and so far superfluous, and therefore vicious; but so far as it proceeds to mend and botch the common law, it is repugnant to the best principles both of our law and our constitution. I allude particularly to the three clauses, the first of which requires bail with the alternative of imprisonment from persons going abroad "with the intention" of serving, &c.; the second assigns the discretionary power of arresting any ship in any British port throughout the world, to the Custom-house officers, the lowest agents of government; and this if any one person shall be on aboard "having that intention," though without the knowledge of the captain. It is needless to insist on the vexation which may ensue to our commerce from this power, which as the bill was brought in, was liable to be exercised on the vaguest latitude of surmise, but which I procured to be altered in this respect in the committee by the introduction of a clause requiring information upon oath. It may be curious to inquire how this new-fangled principle can be acted upon, or what proof can exist of a bare intent. The third clause respects the penalties to be inflicted on captains having on board knowingly any person with such intention. Insomuch as these clauses go to punish offences before they are committed, I think them both vexatious and unconstitutional. They are a kind of tumor or morbid excrescence on the body of our common law, calculated to sap it to the vitals. To what purpose are they inserted? A right hon. gentleman on a former night said, because otherwise persons will commit the offence, and the punishment will only follow, and so come too late, and the hon. and learned gentleman who preceded me says, because otherwise the penal and vindicatory part of a law will be wanting in this offence. I protest against such doctrines. There is the same process of outlawry, and the same range of punishment upon conviction in this case as in every other misdemeanor in the code of our laws. If the guilty person has no property and continues expatriated till his death, what signifies his impunity? Would not every other offender be in the same case? If he returns, the arm of the law awaits him. In the case of murder it is no compensa- 1265 tion to the deceased that the murderer should be punished; but the object of his punishment is to deter others. With the exception of the power of holding to bail for breach of the peace and for good behaviour, there is no trace in our jurisprudence of the preventive and suspecting policy of the present bill; and that power is applicable to the evil now complained of. Moral prevention is the only principle which is consistent with rational liberty, and that is from the fear of punishment. I confidently affirm, that the object of punishment is not, as has been contended, vindictive, but preventive; at least in a humane and Christian country. The penalty of fine and imprisonment operates as much to deter from this offence as from any other, and I do not see what peculiarity attaches to it to distinguish it from others of the same class, except that whereas the form of indictment runs generally, that it was done "against the peace of our sovereign lord the king, his crown and dignity," the offence in question seems rather directed against the peace of his Catholic majesty, his crown and dignity. This is "the head and front of their offending," and I cannot admit that this constitutes a sufficient reason for introducing these vexatious and dangerous preventives which we decline to adopt in the case of other more heinous offences, more nearly affecting ourselves. With respect to the fleets and armies which the hon. gentleman has alluded to as filling our ports and parading the streets of the metropolis, I can only say, that I doubt whether any one has seen them but, to borrow against himself an allusion of the very eloquent president of the board of control, I suppose these are Knights bridge regiments which furnish armies in disguise. However, if such did exist, without doubt it would be a flagrant insult to our sovereign, and a direct breach of the peace, which would subject all the parties concerned in such acts to immediate indictments, and to be held to bail. The bill has no effect upon these cases. With regard to offences actually committed within its jurisdiction, the common law is perfectly efficacious. It is only for the suspicion, and presumption, and anticipation, of guilt that the extraordinary provisions in question are desired.—It is not, then, only on the ground of national feeling, or national policy, that I oppose this bill, but on behalf of our jurisprudence and of 1266 our constitution. The second principle to which I have adverted as one in which I concur with the supporters of this bill in the duty of preserving a strict neutrality. But this is effected when our laws preserve a perfect impartiality, operating with equal efficacy upon both parties. At present, an unfair advantage is given by the particular words of the existing statutes on this subject. That construction was evidently unworthy of an enlightened jurisprudence, being a mere quibble certainly not within the contemplation of the framers of the statutes. Perhaps it may be questionable, whether that construction is a sound one; but, at any rate, by the repeal of those statutes, our impartiality would be restored. I had once thought of proposing their repeal, but I am sure that the committee for the revision of the capital part of the penal code would not have terminated their labours without a recommendation to that effect. I feel confident of this, because it is conducted under the auspices of an hon. and learned gentleman (sir J. Mackintosh), who exhibits a rare union of qualities which fit him for such a function, of zeal tempered by prudence, of feeling regulated by judgment, and of perseverance and assiduity, rendered still more effective by his brilliant and commanding talents.—While I am on this topic, I will remark, in passing, that I am persuaded that ministers have profited considerably on this question by the accidental injustice of the operation of these statutes. Many persons are led to support the present measure from the general admission that the present state of the law is not neutral, and they do not nicety scrutinize how much alteration is requisite to restore the balance. In respect to these statutes, it is material to observe under what circumstances they were passed. It appears that excepting the statute of James 1st, which had other objects, no similar statute law existed previously, and up to the 9th Geo. 2nd, the common low had always been esteemed adequate both to preserve our neutrality and to protect the Crown from any diminution of allegiance. The 9th Geo. 2nd was passed after a speech from the throne acquainting the House with the machinations of the Jacobites, and the expediency of protecting the recent pacification of Europe. It is obvious that it was not proposed by that statute to manufacture on the sudden a new offence into a capital felony, or to create a malum prohibitum, 1267 so highly penal: but whereas at that conjuncture the offence which was at common Jaw a misdemeanor savoured very nearly of treason, it was intended to make the punishment commensurate with the guilt. In truth, though these subjects did not intend to serve directly against England, they were very effectively employed against her allies. The next of the two statutes, 29th Geo. 2nd was still more manifestly of a temporary design and character; for it only prohibited from serving as officers under the French king. This was on the eve of the Seven Years War. Was it, then, no offence to serve as an officer under any other state than France, while it was a capital felony to serve as a common soldier under the same state? Let us consider the particular crisis at which it is attempted to reinforce the common law in the prevention of this offence. Is it not a period when it would be expedient, instead of impeding emigration, to open as wide a vent to it as possible. If there is any characteristic of the times more pregnant with alarm than another, it is the overcharged state of our population. This springs partly, no doubt, from the unhappy system of our poor laws; but the evil is greatly aggravated by the transition from war to peace. The country was already glutted with a pacific population hardly able to maintain itself by the exertion of honest industry. What must be the consequence of throwing upon it a surplus of military population from our disbanded fleets and armies, who can ill-accommodate themselves to the habits of industry and the arts of peace? They will find it too difficult "to turn their swords into ploughshares and their spears into pruning-hooks." I see no motive for desiring to keep pent up at home, these elements of turbulence and convulsion. I am aware that I should pursue a more popular course by describing these persons as noble spirits thirsting for fame, and eager to promote the cause of freedom. But I cannot really view them as generally actuated by such motives. I am reminded on this subject of a humorous allegorical story related in Boccalini's advertisements from Parnassus. He describes the public gardeners, by which he means to typify statesmen, as petitioning Apollo for some means of clearing their garden of its noxious and useless weeds. He expressed his willingness to comply with their request, but declared his inability to suggest any cri- 1268 terion by which they might be separated from the valuable herbs. The gardeners answered, that the best mode would be to grant to them the instruments, drum, and trumpet, at the sound of which all such plants as took delight in dying would speedily follow them and so perish, and the garden would be ridded of its weeds. But whether gentlemen are disposed to view these persons as adventurers in pursuit of gain, or as courting active employment in pursuit of glory, it would be in the one case impolitic, and in the other unjust, to restrain them unnecessarily from the attainment of their object.—But it is urged, that the consequence of this mild state of our laws would be injurious to Spain, and that she would therefore be entitled to complain. She might complain of the injury; but she could have no ground to accuse us of injustice. The greatest part of the argument in favour of the bill arises from the misconception of these two ideas, from the confusion of injury with injustice. Many circumstances may be inherent in the constitution of one country which may produce an injury to the ruling power of another, but of which no claim of justice could require the alteration. For instance, the liberty of the press in this country, the freedom of debate in this House, is probably very injurious to Spain, and to every other despotic government; but is she therefore entitled to call upon us to stifle that freedom, and to abrogate that liberty? But my hon. friend has argued, that as Spain is not cognisant of our constitution, she will look to the law of nations, and claim at our hands such proceedings as she may find dictated by the jurists. I must protest against this monstrous proposition. Are we then to take the dicta of Puffendorf and Vattel as the guides of our jurisprudence, or to new model our constitution because an arbitrary monarch, with these glosses to assist him in its construction, has mistaken it? We ought not to abandon the principles of our institutions in compliance with any abstract theories. If, not through any partiality of our laws, not through their inefficacy, but from the accidental prevalence in favour of one party of the incentives of interest and feeling, Spain is liable to suffer any injury in her South American contest, I do not hesitate to avow that I should rejoice at it. On what grounds can Spain claim of us such an alteration of our laws as should more 1269 effectually prevent British feeling from flowing in its natural channel, and British speculation from pursuing its natural advantages? By what motives can she enforce such a claim? I know but four grounds which can entitle any power to interfere with the legislation of a foreign state, namely justice, interest, fear, or favour. With respect to any claim of justice, I trust I have disposed of it by showing the existence of equal laws in the ordinary constitutional spirit of our jurisprudence, which prohibit assistance to either party.—Before, however, I quit this part of the subject I wish to address a few observations to the argument of my hon. friend founded on the treaty. The treaty of 1814 agreed to prohibit the subjects of this country from furnishing the South Americans with arms, or other warlike articles. Did the term "articles" contemplate men, or is that now by a strained and tardy construction to be implied from it? The Crown exercised its prerogative by making a treaty. It stipulated by virtue of the prerogative for that which' by the prerogative it was entitled to perform, and for no more. I cannot conceive how, by a general approbation of the treaty, the faith of parliament can be considered as pledged to more than even the framers of the treaty contemplated, when they framed it, or when they laid it on our table. I take the ministers themselves for my interpreters of it. Would they have suffered that treaty to be dormant for five years as far as the present implication from it is concerned, if they had meant to stipulate for a new legislative measure? If, then, I have established that there is no claim of justice let us consider how far interest can influence us to adopt the additional restrictions of this bill. On this head, I will only refer to the cloud of petitions against it which have been laid on our table unopposed by a single one in favour of the measure. It will, in such a case, be a safe inference that the interest of so many individuals is identifiable with the interest of the community. As it is not on grounds of expediency that I rest my opposition to the bill I will not dilate on this topic.—Next, as to the motive of fear, which I admit to be a principle which ought sometimes to induce governments to concede that for the security of their people which they are not bound to grant from any claim of justice. Thank God we are not now deliberating under the influence of any such 1270 servile feeling! This, however, tempts me to attract the attention of the House to a period of our history which has not been sufficiently noticed. Let us turn to one of its brightest pages, to the reign of queen Elizabeth. Let us look to the foreign policy of that wise, and magnanimous princess, who however questionable and arbitrary were many of the features of her domestic administration, was in her military and diplomatic policy, a pattern to all future princes. I advert particularly to the ten years which preceded her rupture with Spain. Philip the 2nd remonstrated with her on account of the supplies of men and money which the revolted Netherlander received from this country. She withdrew at his requisition all national assistance, but refused to interfere with the voluntary acts of her subjects. She did not suffer herself to be influenced by the motive of fear, although her country was still fevered and distracted by the virulence of religious factions, and domestic treachery gave additional terror to the menace of external attack. At that period too the monarch of Spain wielded a power greater both in wealth, in territory, and in influence, than has ever been known in civilized Europe, with the exception of the despot who has recently swayed its destinies. But though she was no visionary friend to liberty, she was probably unwilling to cramp unnecessarily the energies of her people, and she felt that a free state is a good neighbour, since, in proportion as it is less vulnerable to external attacks on itself so it is at once more impotent and more indisposed to foreign aggressions. But my hon. friend has eloquently expatiated on the beauty of generosity, and has urged that we should concede to her weakness what Elizabeth and James denied to her strength. However this argument may afford scope to fine periods in this House, I cannot consider it as a principle fit for statesmen to act upon. What! because Spain is fortunately too weak to inflict an injury and an insult upon us, are we to show our generosity by inflicting it on ourselves? Such chivalrous notions are better calculated for the plains of La Mancha than for a British House of Commons. Indeed this high point of honour reminds me of that which induced Prince Prettyman to marry the old Chandler's widow. Lastly, will any feeling of favour induce us to grant as a been what the other motives had 1271 been wanting to enforce? What favour can we bear to that Spain which received with such unworthy jealousy those splendid services by which, in the late war, we preserved her a station in the catalogue of independent nations? What favour to her who imposed on us, at the return of peace, as the need of those services, commercial restrictions highly injurious, though, mark again the distinction, not unjust? What favour, lastly, do we owe her for draining that last pittance from our purse, already too much exhausted in those efforts on her behalf, in consideration of her partial abandonment of a trade which disgraced her character as a Christian nation?—Before I quit the topic of favour, I must declare that I am not aware of any sufficient ground of discretion which should restrain a British senator from avowing the conscientious opinion which he may entertain in favour of South American Independence. I am confident, that if such a feeling may be expected to exist any where it would naturally be sought in British bosoms, in those who have themselves been nursed in the lap of freedom. The principle of liberty is of a diffusive and communicative nature. It has nothing of the selfish and monopolising spirit which characterizes the tyrant and the slave. It teaches those who enjoy it to appreciate its blessings, and to desire their extension. This feeling is also consistent with its best policy,—because, in proportion as liberty is diffused, in proportion as its ramifications are wide and numerous, it is consolidated and secured wherever it previously existed. I am sure I cannot be fairly accused of not being a warm friend to legitimate governments; but I feel that it is for the benefit and preservation of all such as are worth preserving that in cases where gross and grievous oppression obtains, the abuse should find a remedy, that where they conduce rather to the misery and degradation than the welfare of the people, the evil should be redressed, and the tyranny overthrown. Such events as these are memorable examples, and salutary admonitious both to monarchs and their people. They teach the former that they cannot trample with impunity on the fights of nature, while they warn the people, that as on the one hand they are not doomed by any fatality to a state of wretchedness and slavery, so on the other they ought to be very cautious how they presume to innovate, or to tamper with 1272 existing institutions. They will be ad monished that it is only grievous evil, and intolerable abuse which can justify such, attempts when they see through what a crowd of miseries, and through what a deluge of blood they must wade in order to attain that redress. I will conclude by again protesting against our being deterred from maintaining a course which is sanctioned by justice and which is consonant to our best feelings, merely because it is also conducive to our advantage.
§ Mr. Alderman Waithman
assured the House, that it was not his intention to trespass on its attention for more than a very few minutes. On the question of neutrality he should say nothing, after the ample discussion which it had undergone, and because he considered that the common law was sufficient to provide for it. The act of George 2nd was justifiable upon a principle of self-defence; but here no such ground could be alleged. The only question now was, whether we were bound by treaty to the adoption of this measure? Had Spain fulfilled her obligations arising out of it with regard to the commercial intercourse between the two countries? So far was this from being the fact, her prohibitory laws had been revived, and to that extent the treaty had been violated on her part. This was a consideration which had not been adverted to, he believed, by any preceding speaker. The allegations contained in the petitions upon this subject had not been controverted or denied. On other occasions it was usual to consult the feelings and opinions of commercial men. In fact, ministers had never contemplated any great job, without making an appeal to the merchants and citizens of London. He recollected a great meeting in Merchant-Tailors'-hall, followed by another in Grocers'-hall, on the subject of the Bank restriction. When the war broke out in Spain, it was thought necessary to have a dinner, in order to rouse a spirit favourable to its support. He believed the price of the tickets was not less than four guineas each. One of the toasts which were drunk on that occasion was, "Our brave associates in liberty and arms," alluding to the Spanish people. It was not just thus to work upon the feelings of the public at one moment, and to despise them at another. Thousands of individuals had freely poured out their, blood in the contest which followed those meetings and toasts; but he was sorry to say, that 1273 our allies, the Spanish patriots themselves, in Old Spain, had) been disgracefully abandoned. He did not wish to dwell upon the commercial interests of the country, though it could hardly be denied that they required protection when not militating against justice or general policy. To overlook those interests at a moment when they were so crippled, and when fresh burdens were about to be imposed, looked like a voluntary surrender of them. He trusted that, however attached a majority of the House might be to the ministers, it would not, under the circumstances of our present situation, sanction a measure so injurious and so unnecessary.
§ Dr. Phillimore
said:—Reluctant as I always am to obtrude myself on the notice of the House, and infinitely as that reluctance is increased in the present instance, by the protracted discussion which this question has undergone; I nevertheless feel desirous of being permitted to state the reasons which have hitherto induced me to vote in support of this measure; and why it is, that neither subsequent reflexion, nor any of the arguments we have heard this night; nor yet the seducing and bewitching eloquence of an hon. and learned friend of mine on a former occasion, have in the slightest degree shaken the opinion I was led to form upon the first examination and consideration of this subject. I am desirous of explaining that opinion, because, agreeing as I do in many of the sentiments expressed by the hon. and learned gentleman who last addressed the House; concurring as I entirely do in many of the general positions laid down by him,— In ever the less decidedly think, that such are not the sentiments which ought to influence us on a question of this description; that such positions (true as they may be in general, and abstractedly), are not applicable to the present question, and consequently are not correct premises from which we can deduce any just and legitimate conclusion.—I am desirous also of explaining my opinion, because I am one of those who think it utterly impossible not to feel a deep and anxious interest in the great and momentous transactions which are now developing themselves on the other side of the Atlantic. It is impossible, indeed, not to view with interest and emotion so large a portion of the other hemisphere,—so long depressed by an unwise, impolitic, and tyrannical system of government,—emerging as it 1274 were from the condition to Which it has been debased and degraded,—to see the distant and dependant provinces of a feeble and unwieldy empire, struggling to shake off the yoke by which they have been so long galled, and rising with all the characteristic vigour and energy of newly acquired liberty into the rank and character of independent states—As an individual, it may be permitted me to add, that I ardently hope the result of this struggle may be the complete emancipation of the South American colonies from the dominion of the parent state;—as an individual I entertain a confident; opinion, that if these transactions observe the ordinary march of human events, they will not so far falsify all that history and experience has taught us, but that such must be the final, such the inevitable result.
Deeply, however, as I may be impressed with these sentiments, I still feel that they ought not to influence our votes on the present occasion. The true question for our deliberation this night is, what is the relative situation of Great Britain with respect to the contending parties? What are the particular compacts and obligations by which we are bound?—What the solemn declarations given in the face of Europe and the world to which we are pledged to adhere? In fine, what is the line of conduct which the law and practice of nations point out to us, if we would wish to preserve inviolate our national faith and national honour?—These are momentous considerations; all, more or less, implicated in this discussion; all, more or less, exciting us not only to guard against the impulse of the kind and generous feelings which would naturally prompt us to lend aid to those who are struggling to emancipate themselves from a state of oppression and thraldom, but most especially also to guard ourselves against the repeated appeals which have been made to our interests, and against that branch of argument so pressed upon our attention, namely, the benefit which would infallibly accrue to our commercial speculations, from a different' course of proceeding. Our table is strewed with petitions, all breathing one spirit; descanting on the odious monopolies of Old Spain; expatiating on the vent which the South American colonies offer to our manufactures; pourtraying also, in glowing colours, the commercial distress of this country 1275 and the diminished employments of our labourers and manufacturers; nay, a worthy alderman, who has recently taken a part in this debate, has mainly founded his arguments in opposition to the measure on the claim the trade of the country has from parliament for an equivalent for the three millions of taxes it has imposed upon the people.—As a general proposition, I am free to admit, that the views of British merchants are so liberal and enlarged in the management of their commercial concerns, that whatever contributes to the extension of British commerce may be said to contribute to the benefit of the human race.—But where the question is à priori, between the plighted faith of the country on the one hand, and the advantages to be derived to trade and manufactures on the other; British merchants are the last persons whose opinions ought to guide the counsels and deliberations of the state: they stand on the footing of witnesses, deeply interested in the result of a suit: their opinions should have no weight with those who are to decide: they are liable (for they are men, and subject to the infirmities of men), to bias and prejudice, and favour on behalf of the side which they espouse; they are liable, as all interested witnesses are, to deceive themselves, by the most common species of sophistry, into thinking that what contributes to their profit and advantage, is best for the community at large.
It is admitted, that we are pledged to maintain an exact neutrality between the contending parties. Without entering into any abstract definition of neutrality, it may be simply stated to mean, that there should be on our part no interposition in the war; not that we are thereby prohibited from commercial intercourse, or from the interchange of kind offices with either of the belligerents, but that we are prohibited from transporting to them those articles by which the war is supported, instructed, and maintained; or, to borrow the language of the eminent publicist, whose authority has been so often involved in the course of these discussions, those articles quibus bellum instruatur et foveatur; and, in enumerating the articles clearly prohibited, he uses the following terms: "arma, tormenta, et quorum præcipuus in bello usus, milites;"—at first sight, this seems to conclude the whole argument; for, if whole regiments (as is notoriously the fact), are raised in this 1276 country for the supply of the South American armies; on the authority just cited, it should seem that our neutrality is unquestionably violated towards the other belligerent. But a distinction has been taken as to this, and it is said that, however unneutral it may be for the state to furnish troops to a belligerent, yet that individuals in their private capacity may enlist under the banners of either belligerent, without compromising the neutrality of their country; and it has been further asserted, that Bynkershoek, in the chapter intituled "an liceat militem conducere in amicæ Gentis populo?" sanctions and enforces this doctrine. This is considera, bly to overstate Bynkershoek. He considers the question in two points of view, viz. whether it is lawful for a belligerent to levy troops within the territory of a neutral state? and 2ndly. Whether it is lawful for the subject of a neutral state to enter into the service of a belligerent? On entering upon this question, he states it to be one of great difficulty—a vexata quœstio as it were, and one which had at all times much divided, and at the time he wrote, still continued to divide the opinions of great jurists. Undoubtedly with respect to the first branch of the question, he lays grounds for a strong inference that his own opinion was favourable to the right of the belligerent to raise troops in a neutral state. But he candidly states, that so different was the opinion of his own country cm this head, that in Holland (no mean authority on any question of the law of nations) such an act was punishable by death. On the second point, whether an individual can divest himself of his country, and enter into the military service of another state? he explicitly lays it down, that it entirely depends upon the laws of the country to which the individual belongs, and that it is unlawful if it is prohibited by the laws of the state; and amongst the states in which such a prohibition notoriously exists, he enumerates England. The case, however, does not rest here; an extraordinary fallacy has pervaded all the arguments rested upon, the authority of Bynkershoek; the whole of his reasoning applies to the case of states, who are simply friends, and unconnected by any alliance with either belligerent. In all his disputations, he cautiously guards himself on this point; his language invariably is de federatis alia est impectio. The hon. members who have opposed this measure seem entirely 1277 to have thrown out of their consideration, that Great Britain is the ally and confederate of Spain; and that she is not bound by any treaty or compact to the South American colonies. By the treaty of 1814 "the sovereigns of Great Britain and Spain profess themselves equally animated by a desire to strengthen and perpetuate the union and alliance, which has been the principal means of re-establishing the balance of power in Europe, and restoring peace to the world." One of the articles contains the following express stipulation: "His Britannic majesty being anxious that the troubles and disturbances which unfortunately prevail in the dominions of his Catholic majesty should cease, and the subjects of those provinces should return to their obedience to their lawful sovereign, engages to take the most effectual measures for preventing his subjects from furnishing arms, ammunition, or any other warlike article to the revolted in America." And in the face of this article, can it be maintained that the revolted in America, may levy troops in Great Britain against the king of Spain? The article was framed with reference to the warfare which now exists hoc ipso intuitu, the casus fœderis has occurred; and who will say that if Great Britain permits these levies, she does not give Spain a right of war against her? It would be a most unworthy quibble, a most pitiful and paltry subterfuge, that because troops are not enumerated among the warlike articles prohibited nominatim, therefore they might be supplied. Look to the spirit and meaning of the treaty, and the object for which it was framed, and see whether writers on the law of nations would include levies of troops in their enumeration of supplies by which war is supported and maintained. An hon. friend of mine has said, if there is such a treaty it is not binding upon parliament. But the treaty was entered into and concluded by that branch of the executive government in which the constitution of this country has vested the power of making peace and war. It was laid four years ago on the table of this House, and the Crown was thanked for it. With the merits of this treaty therefore, unhappily we have now no concern; be the stipulations of it, the most absurd—be they the most disadvantageous that can be imagined; they were made by competent authority, and the House and the country are inviolably bound by it, we may impeach the minister who signed 1278 it, but we cannot break the covenant to which we are pledged.
Farther, it has been urged (no point indeed has been more pressed), that we are about to alter the law of the land:—this I deny; it is the very essence of this measure, that it has its foundation in that reciprocity of rights, and obligations which exists between the sovereign of this country and his subjects. Every natural-born subject of Great Britain is entitled to the protection of his sovereign; but in return for that protection, it is the undoubted law of this land,—derived to us indeed from our feudal ancestors, and deeply tinged with the colouring of the parent stream from which it derives its source, but it is the undoubted law of this land—that in return for that protection, every natural-born subject owes to his sovereign allegiance—an allegiance, not the result of express law, or the creature of positive enactment, but an implied original and virtual allegiance, impressed upon him at his birth, and only to be divested from him by his death; it is contrary to this allegiance to enter into the service of any foreign state without the permission or his own sovereign; it is a high misdemeanor at common law, and punishable as such.. Not content with this, our immediate forefathers have,—as has frequently been the case since the Revolution, grafted a statute on the common law of the land; and in 1736 an act was passed (which it is the object of the present bill to modify and renew) denouncing the punishment of death against any British subject who should engage without the licence of the king in the service of "any foreign prince, state, or potentate."
It has been asserted, that this statute (9th Geo. 2nd) was passed under particular circurnstances, and to meet the exigencies of a special case. Where are the facts on which this assertion rests? It was passed in the ninth year of the second sovereign of the house of Brunswick, not as has been stated this night, at a moment when this country was engaged in a war against the Pretender, aided by all the great powers of Europe,—but in the ninth year of a reign up till that period of uninterrupted tranquillity, and at a period when this country was under the guidance of the most peaceful minister that England ever knew True it is that war had raged between two great powers on the continent of Europe, which threatened to involve the other states; but in the year preceding the pas- 1279 sing of this act, George the second, in concurrence with the states-general, had been appointed mediator between the contending parties. So successful had been their mediation that an armistice had been signed, and the preliminaries of peace agreed upon. Such indeed was the confidence of the British monarch and his ministers, in the stability of these arrangements, that the king opened the very session of parliament in which this act was subsequently passed, by recommending in his speech from the throne considerable reductions of the forces both by sea and land. What is the inference deducible from these historical facts? Surely not that this statute was passed under the pressure of a necessity, or for a temporary purpose; but that when peace was restored to the continent, and the affairs of Europe were composed, England feeling the inconvenience which had resulted during a war in which she had been neutral, from her subjects enlisting under the banners of the respective belligerents, applied herself to correct the evil by confirming, by statutory provisions, the power the Crown possessed under the original constitution of the country. This inference is further corroborated by the immediate operation of the law; for the law has not, as has been represented, been always a mere dead letter which has slumbered in the Statute-book, from the moment of its enactment. It appears from a search which has been instituted by an hon. friend near me into the sessional papers of the Old Bailey, that in the first four years after it passed, four convictions took place under it, and two of them were followed by executions; and these convictions were not for entering into the service of the Pretender, but for enlisting men for the service of the king of Prussia.—Such being the common law, and such the statute law of this realm, the one making the enlisting in foreign service, without the permission of the king, a misdemeanor, the other denouncing death against this offence—it being notorious also to all the world, not merely from the writings of foreign jurists, and the language Great Britain has held on this subject in more ancient times, but from the recent discussions which have taken place between this country and the United States of America; that England has, on all occasions, held high the doctrine of the control exercised by her sovereign over the allegiance of his 1280 subjects. We pledge ourselves by treaty to Spain to prevent our subjects from supplying the South American colonies with military stores, &c.; in despight of this treaty, enlistments are carried on here, to a most extraordinary extent, for the service of those colonies. The Spanish government remonstrates; we reply, it is true that our law is binding against you, but we have no means of enforcing it against your opponents; we are anxious to fulfil our solemn engagements, or at all events to preserve strict neutrality; but in the sense of our act of parliament, the insurgent provinces of America cannot be considered as states. What? we admit them by our conduct to be de facto states; we give them the rights of war, and together with those rights, the incidents and emergents arising from them; but yet, in construction of law as far as Old Spain is concerned, we deny them to be states. Is not this a solecism? is it not a quibble unworthy of a great nation? I stop not here to examine the construction put upon the statute by the law-officers of the Crown, which holds that these powers, towards whom we enjoin our commanders by sea and land to observe an exact neutrality, are neither to be esteemed "foreign princes, states or potentates." I think the construction very questionable; but this I maintain, that whatever may be the construction of our municipal law, such a construction is not to be tolerated under the law of nations. In common fairness Spain has a right to your law not distorted by special pleading, and perverted by legal subtlety, but placed upon such a footing as shall entitle her to the equal and just interpretation of it. Spain places you in this dilemma,—either her revolted provinces are or are not states; if they are not states, they cannot claim the exercises of the rights of war, or the privileges of neutrality; if they are states, the same law which prevents your subjects from enlisting in the service of Old Spain, ought to prevent them also from enlisting in the service of the South Americans. On every principle then, of justice and good faith, we are called upon to make the letter of our law correspond with the spirit of it; and to place it upon the same footing with respect to our ally, on which it stands with relation to the other belligerent.
Compare this transaction with a transaction in private life; with the case of an individual, who, having entered into a 1281 contract after a lapse of four or five years refuses to complete it because it turns out in its execution irksome or inconvenient to him, or prejudicial to his interests. The obligation contracted by this country to Spain rests on ground precisely similar. For we are to remember that it is fixed in the unalterable constitution of things that the same rules of moral obligation which bind men together in families, bind families into nations, and again bind nations together in the great society of mankind. We are to remember that states as well as individuals are liable to suffer injury, and to receive benefit from each other; that it is alike the duty of man in his collective, as it is in his individual capacity, to cultivate and enforce the observance of those rules of justice which contribute so much to the comfort and happiness of the whole human race. We are to remember that though nations acknowledge no common superior upon earth, and consequently that there is no tribunal but that of arms to which they are amenable for acts of injury, and injustice towards each other; yet if they deviate from their sacred obligations, if they break their plighted faith, it frequently happens in the awful dispensations of Providence, that the same avenging punishments await them in their national capacity, which characterise the fate and fortunes of individuals in private life for similar breaches of morality and justice. It is impossible that the discussions of this night should not forcibly recall to our recollection an appropriate and exact illustration of this awful truth. The subject naturally compels us to revert to that period of our history when Great Britain was involved in a war with her own colonies; at that unfortunate period France and Spain were impelled by interested considerations, by the prospect of commercial advantages, and by the hope of humiliating a powerful rival, in violation of solemn covenants to assist our revolted colonies in America. Mark the moral effects of this conduct: observe the just retribution by which it was followed. The experience of the last 30 years has evidenced how deeply France has rued her perfidy. Little too did Spain think when she was fanning revolt in North America, of the evils she was preparing for herself. But the hour of retribution has arrived, the trumpet of civil discord has been blown; the blast of war has gone forth: it has pervaded all her transatlantic colonies; it has resounded through all the 1282 peopled cities, and all the hundred provinces of the vast continent of South America; it has been re-echoed from the extremity of Cape Horn, to the banks of the Oronoco; from the banks of the Oronoco to the inmost recesses of Mexico.Audiît et Triviæ longè lacus, audiît amnisSulphureâ Naralbus aquâ, fontesque Velini;Et trepidæ matres pressêre ad pectora natos.Shall we then fall victims to the allurements of similar temptation? Shall we, with this example before us, retaliate upon Spain injustice for injustice? Because Spain 40 years ago provoked us unjustly to war, shall we be stimulated by views of commercial advantage and the hope of territorial aggrandisement to a similar deviation from good faith towards Spain?
The hon. member who the last but one addressed the House, has contrasted the conduct of Great Britain on the present occasion with the conduct of queen Elizabeth towards the revolted provinces in the Netherlands; but in what does the analogy consist? In what point is our relative situation to South America similar to our relative situation to the Netherlands in queen Elizabeth's time? The sovereign who at that period wielded the vast resources of the Spanish empire had inherited from his father an ardent desire for the universal monarchy of Europe; the only spot of Europe which held out any refuge for tile oppressed, any rallying point against his vast and overwhelming power, was England. Added to his political hostility, Philip 2nd was also animated by every feeling of personal rancour, and every sentiment of infatuated and furious bigotry against Elizabeth. Well indeed, was that intelligent princess aware that her destruction was the scope of his views, the ultimate object of his ambition: on the soundest principles therefore of the law of nature and nations,—on that principle which alike justifies nations and in dividuals in arming in self-defence,—with a view to her own security, and the preservation of her people she was impelled to assist, first the Huguenots against the Spanish faction in France (for France was then rent by contending factions), and afterwards the revolted provinces of the Netherlands in the struggle they were maintaining in vindication of their natural rights and liberties against the cruel and unjust usurpation of their sovereign. Perfectly indeed might that intelligent, princess have, foreseen that by fostering" 1283 the growth of on independent state on the Flemish coast she was laying the foundations of a power whose interests in process of time might become inseparably blended and mixed up with the best interests of this country; but she was equally aware, that at the moment she was erecting a bulwark for her own preservation, and making the surest preparation for that storm which she well foresaw would sooner or later, burst over the heads of her people and herself. Elizabeth too had no treaties with Spain, but she had bound herself by repeated and solemn engagements to assist the United Provinces against the mother country. In truth, if we examine the question we shall find that the parallel holds in no one circumstance, but that the South American colonies and the Netherlands were at the time of their respective revolts subjects of Old Spain—The hon. and learned member then recapitulated his arguments, and concluded by imploring the House on a question in which the good faith of their country was involved, not to allow their opinions to be biassed, and their judgments warped from the right course by the fervour of their feelings on the one hand, or by considerations of interest and advantage on the other.
said, that much stress had been laid upon the treaty of 1814; but what duty could it impose upon England? It could not be pretended, that his majesty in the exercise of his prerogative, could enter into any treaty which should oblige parliament to pass an act to effect its purposes. He expressed his firm conviction, that if this bill passed into a law, it would be not only prejudicial to our commercial interests, but to the national honour.
Mr. Long Wellesley
thought it unbecoming the character and dignity of Great Britain, to state to another country, that because legal gentlemen took exceptions to certain parts of a treaty, formally and solemnly concluded, she was not bound to the observance of its stipulations.
§ The House then divided: Ayes, 190; Noes 129.
|List of the Minority.|
|Allen, J. H.||Aubrey, sir J.|
|Althorp, viscount||Beaumont, T. W.|
|Anson, hon. G.||Buxton, T. F.|
|Bentinck, lord W.||March, earl of|
|Blandford, marq. of||Mackinnon, W. A.|
|Barnard, visct.||Marryat, Jos.|
|Barnett, J.||Madocks, W. A.|
|Becher, W. W.||Maitland, viscount|
|Belgrave, visct.||Martin, John|
|Bernal, R.||Maxwell, John|
|Benyon, Ben.||Mills, G.|
|Birch, Jos.||Mildmay, P. St. J.|
|Browne, Dom.||Milton, viscount|
|Brougham, H.||Monck, sir C.|
|Byng, G.||Moore, Peter|
|Carhampton, earl of||Newman, R. W.|
|Calcraft, J.||North, Dudley|
|Calvert, C.||O'Callaghan, James|
|Campbell, hon. J.||Ord, W.|
|Carter, John||Osborne, lord F.|
|Clifford, Aug.||Palmer, col.|
|Colborne, N. R.||Palmer, C. F.|
|Coke, T. W. jun.||Pares, Thos.|
|Concannon, Lucius||Parnell, sir H,|
|Crompton, S.||Philips, G.|
|Crespigny, sir Wm.||Philips, G. jun.|
|Davies, T. H.||Phillipps, C. M.|
|Denman, Thos.||Pringle, John|
|Duncannon, vise.||Primrose, hon. F.|
|Dundas, hon. L.||Piggott, sir A.|
|Dundas, Thos.||Powlett, hon. W.|
|Ellis, hon. G. A.||Price, Robert|
|Ebrington, visc.||Pryse, Pryse|
|Euston, earl of||Rickford, W|
|Ellice, Ed.||Robertson, Alex.|
|Fitzgibbon. hon. R.||Ricardo, D.|
|Forbes, C.||Robarts, A.|
|Fazakerley, Nic.||Rowley, sir W.|
|Fergusson, sir R. C.||Russell, lord G. W.|
|Fitzroy, lord C.||Russell, R. G.|
|Foley, Thos.||Rumbold, C.|
|Gaskell, Benj.||Scarlett, J.|
|Grant, J. P.||Smith, John|
|Gordon, Robt.||Smith, W.|
|Graham, S.||Smith, Saml.|
|Grenfell, Pascoe||Smyth, J. H.|
|Guise, sir Wm.||Spencer, lord R.|
|Harcourt, John||Stuart, lord J.|
|Hamilton, lord A.||Stewart, Wm.|
|Harvey, D. W.||Tavistock, marq. of|
|Hill, lord A.||Vernon, G.|
|Honywood, W. P.||Waithman, aid.|
|Hume, Jos.||Webb, Ed.|
|Hutchinson, hon. C.||Western, C. C.|
|Kennedy, T. F.||Wharton, John|
|Leigh, J. H.||Whitbread, W. H.|
|Lawson, M.||Williams, W.|
|Lamb, hon. G.||Williams, sir R.|
|Langton, W. G.||Wilson, sir Rt.|
|Latouche, John.||Wilson, Thos.|
|Latouche, Robt,||Westenra, hon. H. R.|
|Lemon, sir W.||Wood, aid.|
|Lloyd, sir E.||TELLERS.|
|Montague, lord F.||Bennet, hon. H. G.|
|Macleod, Rod.||Nugent, lord|
§ Mr. George Lamb
did not rise to oppose the amendment, but he wished to remark upon the curious manner in which this bill was worded. The learned lawyer who had framed the measure, whoever he might be, seemed to have had his head completely filled with military phrases, and the individual who now filled the civic chair, was raised to the high and distinguished rank of "chief civil commander." To the lord mayor application was to be made to put the provisions of this bill into execution. He should really advise hon. gentlemen not to limit it to the mayor alone of any town, but to extend it to all the subordinate officers, even to the village schoolmaster, who would be found to be upon this, as upon all other occasions, a most active and useful personage: nay, the sextons and their companions might be applied to in cases of great emergency. The gallant officer behind him (sir R. Wilson) had prophesied the influence this measure would have on foreign countries: he would prophesy its influence nearer home; and he should have thought his majesty's legal advisers, after the lessons they had already received—after the repeated proofs they had seen of the wisdom and the undaunted spirit of a British jury,—would have been wise enough not to press such a measure as this. The efforts of government had already been defeated by the firmness and independent spirit of a few individuals at home. Thank God, it yet remained to be seen whether a British jury would assist the government in enforcing such a law as was now attempted to be forced upon the people.
felt confident that a British jury would not swerve from its duty. Englishmen placed in such an awful situation would recollect the sacred oath they had taken, and would not be influenced by any suggestions, either from within or from without the walls of parliament.
§ The amendment was negatived, and the bill passed.